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, � PS- FORM 1001-G
<br /> REVISED APRIL 29,2008
<br /> AGREEMENT NO. CSX654431
<br /> oi• loss of or destruction of any property whatsoever, arising out of, resulting from, or in any way
<br /> connected with the construction, repair,maintenance, replacement, presence, existence,
<br /> operations,use or removal of the Facilities or any structure in connection therewith, or
<br /> restoration of premises of Licensor to good order or condition after removal, EXCEPT when
<br /> proven to have been caused solely by the willful misconduct or gross negligence of Licensor.
<br /> HOWEVER, to the fullest extent permitted by State law, during any period of actual
<br /> construction, repair,maintenance,replacement or removal of the Facilities,wherein agents,
<br /> equipment or personnel of Licensee are on the railroad rail corridor, Licensee's liability
<br /> hereunder shall be absolute, irrespective of any joint, sole or contributory fault or negligence of
<br /> Licensor.
<br /> 9.2 Use of Licensor's rail corridor involves certain risks of loss or damage as a
<br /> result of the rail operations. Notwithstanding Section 9.1, Licensee expressly assumes all risk of
<br /> loss and damage to Licensee's Property or the Facilities in, on, over or under the Encroachment,
<br /> including loss of or any interference with use or service thereof, regardless of cause, including
<br /> electrical field creation, fire or derailment resulting from rail operations. For this Section,the
<br /> term "Licensee's Property" shall include properiy of third parties situated or placed upon
<br /> Licensor's rail corridor by Licensee or by such third parties at request of or for benefit of
<br /> Licensee.
<br /> 9.3 To the fullest extent pernutted by State law, as above, Licensee assumes all
<br /> responsibility for, and agrees to defend, indemnify and hold Licensor harmless from: (a) all
<br /> claims, costs and expenses, including reasonable attorneys' fees, as a consequence of any sudden
<br /> or nonsudden pollution of air, water, land and/or ground water on or off the Encroachment area,
<br /> arising from or in connection with the use of this Encroachment or resulting from leaking,
<br /> bursting, spilling, or any escape of the material transmitted in or through the Facilities; (b) any
<br /> claim or liability arising under federal or state law dealing with either such sudden or nonsudden
<br /> pollution of air,water, land and/or ground water arising therefrom or the remedy thereof; and (c)
<br /> any subsidence or failure of lateral or subjacent support of the tracks arising from such Facilities
<br /> leakage.
<br /> 9.4 Notwithstanding Section 9.1, Licensee also expressly assumes all risk of loss
<br /> which in any way may result from Licensee's failure to maintain either required clearances for
<br /> any overhead Facilities or the required depth and encasement for any underground Facilities,
<br /> whether or not such loss(es)result(s) in whole or part from Licensor's contributory negligence or
<br /> joint fault.
<br /> 9.5 Obligations of Licensee hereunder to release, indemnify and hold Licensor
<br /> harmless shall also extend to companies and other legal entities that control, are controlled by,
<br /> subsidiaries of, or are affiliated with Licensor, as well as any railroad that operates over the rail
<br /> con�id��on which the Encroaclunent is located, and the officers, emp�oyees an� agents af euch.
<br /> 9.6 If a claim is made or action is brought against Licensor, and/or its operating
<br /> lessee, for which Licensee may be responsible hereunder, in whole or in part,Licensee shall be
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