Exhibit 10.5
AGREEMENT made this 29th day of December, 1943,
between The Baltimore and Ohio Railroad Company
(hereinafter called the Baltimore Company) and
Buffalo, Rochester and Pittsburgh Railway Company
(hereinafter called the Rochester Company.
WHEREAS the Baltimore Company is operating the
railroads and other property of the Rochester Company, pursuant
to an Agreement between said Companies, dated December 15, 1931,
as amended January 1, 1940, which said agreement as so amended is
hereinafter called the Operating Agreement; and
WHEREAS the Interstate Commerce Commission, pursuant to
section 20 of the Interstate Commerce Act, has entered an order
requiring that, effective as of January 1, 1943, depreciation
accounting be established in respect of certain fixed property of
railroad companies, and in view of such order of the Commission
the parties hereto desire to amend the Operating Agreement in the
manner hereinafter set forth, which amendment shall be effective
as of the effective date of the aforesaid order, namely, January
1, 1943;
NOW, THEREFORE, in consideration of the premises and
the mutual undertakings of the parties hereto, the Operating
Agreement is hereby amended as follows:
"including depreciation on way,
structures, equipment and other property
of the Rochester Company and its leased
lines accrued or accruing on and after
the date of this agreement;
is hereby modified so as to read as follows:
"including depreciation on equipment of
the Rochester Company, and on way,
structures, equipment and other property
of the Rochester Company's leased lines
accrued or accruing on and after the
date of this agreement;"
ARTICLE SECOND: The sixth paragraph of the Operating
Agreement providing as follows:
"The Baltimore Company shall at its own
expense maintain said lines of railroad
in as good operating condition as said
railroad lines are at the date hereof,
and when and as necessary for safe and
efficient operation shall replace and
renew all tracks, bridges and other
structures, facilities and
appurtenances, and the Baltimore Company
shall pay so much of the cost thereof as
under the then prevailing accounting
classifications of the Interstate
Commerce Commission is chargeable to
expenses or against income."
is hereby modified so as to ready as follows:
"The Baltimore Company shall at its own
expense maintain said lines of railroad
in as good operating condition, except
for depreciation, as said railroad lines
are at the date hereof. When and as
necessary for safe and efficient
operation, the Baltimore Company shall
replace and renew all tracks, bridges
and other structures, facilities and
appurtenances, and the Baltimore Company
shall pay so much of the cost thereof as
under the then prevailing accounting
classifications of the Interstate
Commerce Commission is chargeable to
expenses or against income. In the
event of the retirement or abandonment
of any such property, with the approval
of any public authority having
jurisdiction, in cases where such
approval is necessary, and with the
consent of the Rochester Company, the
Baltimore Company will pay to the
Rochester Company an amount equal to the
cost or estimated cost of the property
retired or abandoned, less amortization
or depreciation, if any, theretofore
required or allowed to be taken by the
Bureau of Internal Revenue with respect
to such property. Any property retired
or abandoned and for which the Rochester
Company shall have been compensated, as
in this paragraph provided, shall belong
to the Baltimore Company."
ARTICLE THIRD: The eighth paragraph of the Operating Agreement
is hereby modified by inserting in the third line after the words
"other assets" the words "(not theretofore accounted for)" so as
to make said paragraph read as follows:
"The Baltimore Company will, at the
termination of this agreement, account
for all cash and the value of materials
and supplies and other assets (not
theretofore accounted for) belonging to
and taken over from the Rochester
Company, and shall charge to said
account any and all unliquidated amounts
then found to be due by the Rochester
Company to the Baltimore Company."
ARTICLE FOURTH: The Operating Agreement is hereby modified
further by the insertion after the fourteenth paragraph thereof
providing as follows:
"Amounts equal to an annual dividend at
the rate of $4.00 per share on all
common stock and $6.00 per share on all
preferred stock of the Rochester Company
outstanding, except on such stock as may
be owned by the Baltimore Company."
of a new or additional paragraph reading as follows:
"Monthly from January 1, 1943, an amount
equal to the charges or deductions which
may be allowed the Rochester Company by
the Bureau of Internal Revenue pursuant
to the Internal Revenue Code for
amortization or depreciation with
respect to any property (other than
equipment for which express provision is
hereinbefore made) covered by this
agreement, which amount may in the first
instance be estimated, but shall be
adjusted when actual allowances are
ascertained. Any payment in this
agreement provided to be made by either
of the parties hereto to the other, may,
at the election of the Baltimore
Company, be made in whole or in part in
cash, or be offset against an equal
amount of indebtedness of the other
party to such party."
The modifications of the Operating Agreement
hereinabove set forth shall become effective as and from the
first day of January 1943, and shall continue until the
termination of the Operating Agreement in the manner provided in
the last paragraph thereof.
THE BALTIMORE AND OHIO RAILROAD COMPANY,
By: /s/X. X. Xxxx
Attest: -------------
Vice President.
/s/ G. F. May
-------------
Secretary
BUFFALO, ROCHESTER AND PITTSBURGH RAILWAY
COMPANY,
By: /s/X. X. Xxxxxxxxx
------------------
Attest: Vice President.
/s/ G. F. May
-------------
Secretary.
