Part 4 (1/2)

_Executive Committee Union Pacific Railroad Company._

_Resolved_, the foregoing contract between the Union Pacific railroad company and Oakes Ames, referred to the executive committee by a resolution of the board, August 16, 1867, to settle the details, be approved, and that the proper officers of the company be instructed to execute the same, subject, however, to the written approval of the stockholders of the company, as understood by the board of directors when the same was voted upon.

_Resolved_, that the option to extend this contract to Salt Lake be referred to the board, with recommendation that said option be accepted.

a.s.sIGNMENT OF CONTRACT TO SEVEN TRUSTEES.

Memorandum of agreement, in triplicate, made this 15th day of October, 1867, between Oakes Ames of North Easton, Ma.s.sachusetts, party of the first part, Thomas C. Durant, of the city of New York; Oliver Ames, of North Easton, Ma.s.sachusetts; John B. Alley, of Lynn, Ma.s.sachusetts; Sidney Dillon, of the city of New York; Cornelius S. Bushnell, of New Haven, Connecticut; Henry S. McComb, of Wilmington, Delaware, and Benjamin E. Bates, of Boston, Ma.s.sachusetts, parties of the second part, and the Credit Mobilier of America, party of the third part.

That whereas, the party of the first part has undertaken a certain large contract for the construction of certain portion therein named of the railroad and telegraph line of the Union Pacific railroad company over the plains and through and over the Rocky mountains, which will require a very large and hazardous outlay of capital, which capital he is desirous to be a.s.sured of raising, at such times, and in such sums as will enable him to complete and perform the said contract according to its terms and conditions.

And whereas, the Credit Mobilier of America, the party of the third part, a corporation duly established by law, is empowered by charter to advance and loan money in aid of such enterprises, and can control large amounts of capital for such purposes, and is willing to loan to said party of the first part such sums as may be found necessary to complete said contract, provided sufficient a.s.surance may be made to said party of the third part therein, that said sums shall be duly expended in the work of completing said railroad and telegraph line, and that the payments for the faithful performance of said contract by said railroad company shall be held and applied to reimburse said party of the third part for their loans and advances, together with a reasonable interest for the use of the money so loaned and advanced.

And whereas, said party of the third part fully believes that said contract, if honestly and faithfully executed, will be both profitable and advantageous to the parties performing the same, and therefore willing to guarantee the performance and execution of the same for a reasonable commission to be paid therefor.

And whereas, both parties of the first and third parts have confidence and reliance in the integrity, business capacity, and ability of the several persons named as parties of the second part hereto, and confidently believe that said persons have large interests as well in the Union Pacific railroad company as in the Credit Mobiler of America, they will execute and perform the said contract, and faithfully hold the proceeds thereof to the just use and benefit of the parties ent.i.tled thereto.

Therefore, it is agreed by and between the said parties of the first, second, and third parts hereto as follows; that is to say:

That said Oakes Ames, party of the first part hereto, hereby, for and in consideration of $1.00 lawful money of the United States, to him duly paid by the party of the second part, and for divers other good and valuable considerations herein, thereunto moving, doth hereby a.s.sign, set over, and transfer unto the said Thomas C. Durant, Oliver Ames, John B. Alley, Sidney Dillon, Cornelius S. Bushnell, Henry S. McComb, and Benjamin E. Bates, parties of the second part, all the right, t.i.tle, and interest of, in, and to, the said certain contract heretofore made and executed by and between the Union Pacific railroad company and the said Oakes Ames, bearing date the 16th day of August, 1867, for the construction of portions of the railroad and telegraph line of said railroad company, to which contract reference is herein made for them, the said parties of the second part, to have, and to hold the same to them and their survivors and successors forever in trust.

Nevertheless, upon the following trusts and conditions and limitations, to-wit:--

1. That they, the said parties of the second part, shall perform all the terms and conditions of said contract so a.s.signed in all respects which in and by the terms and conditions thereof is undertaken and a.s.sumed and agreed to be done and performed by the said party of the first part herein named.

2. That they, the said parties of the second part, shall hold all the avails and proceeds of the said contract, and therefrom shall reimburse themselves and the party of the third part hereto, all moneys advanced and expended by them, or either of them, in executing or performing the said contract, with interest and commission thereon as hereinafter provided.

3. Out of the said avails and proceeds to pay unto the parties of the second part a reasonable sum as compensation for their service, as such trustees, for executing and performing the terms and conditions of this agreement, which compensation shall not exceed $3,000 per annum to each and every one of the parties of the second part.

4. To hold all the rest and residue of the said proceeds and avails for the use and benefit of such of the several persons holding and owning shares in the capital stock of the Credit Mobilier of America on the day of the date hereof, in proportion to the number of shares which said stockholders now severally hold and own, and for the use and benefit of such of the a.s.signees and holders of such shares of stock at the times herein set forth, for the distribution of said residue and remainder of said avails and proceeds, who shall comply with the provisions, conditions, and limitations herein contained, which are on their part to be complied with.

5. To pay over on or before the first Wednesday of June and September each year, or within thirty days thereafter, his just share and proportion of the residue and remainder of the said proceeds and avails as shall be justly estimated by the said trustees to have been made and earned as net profit on said contract, during the preceding six months, to each shareholder only in said Credit Mobilier of America, who being a stockholder in the Union Pacific railroad shall have made and executed his power of attorney or proxy, irrevocable, to said several parties of the second part, their survivors and successors, empowering them, the said parties of the second part, to vote upon at least six-tenths of all the stock owned by said shareholders of the Credit Mobilier of America, in the capital stock of the Union Pacific railroad company, on the day of the date hereof, and six-tenths of any stock in said Union Pacific railroad company he may have received a dividend, or otherwise, because or by virtue of having been a stockholder in said Credit Mobilier of America, or which may appertain to any shares in said Union Pacific railroad company, which had been so a.s.signed to him at the time or times of the distribution of the said profits as herein provided; and this trust is made and declared upon the express condition and limitation that it shall not enure in any manner or degree to the use or benefit of any stockholder of the Credit Mobilier of America who shall neglect or refuse to execute and deliver unto the said parties of the second part his proxy or power of attorney, in the manner and for the purpose hereinbefore provided, or who shall in any way, or by any proceeding, knowingly hinder, delay, or interfere with any execution or performance of the trust and conditions herein declared and set forth.

And the above transfer and conveyance of said contract is made upon these further trusts and conditions, to-wit:--

1. The said parties of the second part, their survivors and successors, trustees as aforesaid, in all their acts and doings in the execution and performance of said contract, and in the execution of their several trusts and conditions herein set forth, shall act by the concurrent a.s.sent of four of their number, expressed in writing, or by yea and nay vote, at a meeting of said trustees, either or both of which shall be recorded in a book of proceedings of said trustees, kept for the purpose by their secretary, and not otherwise.

2. Said parties of the second part shall keep an office in the city of New York for the transaction of the business incidental to said trust.

Meetings of said trustees may be held on call of the secretary on request of any two of their number; such call may be made personally or by mail.

3. The said trustees shall appoint a competent person as secretary, who shall keep a faithful record of all their acts, proceedings, and contracts, in books to be provided for that purpose, and shall cause to be kept suitable books of accounts and vouchers of all their business transactions, which books shall at all times be open to the inspection of any of said trustees.

4. The said trustees shall cause a monthly statement to be made, showing the amount due from the Union Pacific railroad company on account of work done or equipment or material furnished under the contract, according to the estimates of the engineer of the Union Pacific railroad company, as provided in said contract, a copy of which statement shall be furnished to the Credit Mobilier of America.

And the above transfer and conveyance of said contract is made upon the further trust and condition:--

1. That in case of death, declination, disability, by reason of sickness or absence from the country for the s.p.a.ce of six months, or neglect to fulfil the duties and obligations of said trust for the same time by either of said trustees, the remaining or surviving trustees may declare the place of said trustee to be vacant, and to fill such vacancy by vote in manner aforesaid.