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TMC has reimbursed Railroad for work necessitated by subsidence caused or exacerbated
<br />by the Project in accordance with the terms of this Agreement and Railroad fails to pay in
<br />full any persons who performed labor or provided materials in connection with such work
<br />resulting in a lien or encumbrance on Railroad's property, TMC shall not be responsible
<br />for such lien or encumbrance.
<br />7. Insurance.
<br />a. Before commencing the Project, TMC will provide Railroad with the insurance
<br />binders, policies, certificates and endorsements set forth in Exhibit "C" of this
<br />Agreement.
<br />b. All insurance correspondence, binders, policies, certificates and endorsements shall
<br />be sent to:
<br />Union Pacific Railroad Company
<br />1400 Douglas Street, STOP 1690
<br />Omaha, NE 68179
<br />Attn: General Director — Real Estate
<br />Folder No. 2170-70
<br />8. Hold Harmless. Railroad shall not be liable for any injury or property damage suffered
<br />by TMC or anyone else upon the Energy Spur during the Term, except to the extent
<br />injury or damage is caused by the active negligence, gross negligence or willful
<br />misconduct of Railroad or its agents, employees or invitees as determined in a final
<br />judgment by a court of competent jurisdiction. TMC hereby agrees to indemnify, defend,
<br />and hold harmless, and fully releases, acquits, and forever discharges Railroad, its
<br />successors, and assigns from any and all obligations, actions, causes of action, claims,
<br />demands, judgments, liabilities, losses, costs, damages, and expenses (including, without
<br />limitation, reasonable attorneys' fees), for any injury, death, or damages of any kind or
<br />character, whether to persons, animals, or property, to the extent caused directly or
<br />indirectly by TMC's presence upon, mining operations beneath the Energy Spur, or
<br />subsidence caused or exacerbated by the Project, except to the extent such injuries,
<br />claims, or damages arise out of the active negligence, gross negligence or willful
<br />misconduct of Railroad or its agents, employees or invitees as determined in a final
<br />judgment by a court of competent jurisdiction.
<br />9. Breach and Re -Entry. If TMC commits a material breach of any term of this Agreement
<br />and fails or refuses to commence in good faith to remedy the breach within thirty (30)
<br />days after Railroad sends written notice to TMC, then Railroad may, at its sole election,
<br />terminate this Agreement upon ten (10) days' written notice to TMC and pursue any
<br />action to recoup any reimbursable costs or expenses incurred by Railroad in accordance
<br />with the terms of this Agreement prior to the date of termination. The taking of action to
<br />remedy any alleged violation by TMC shall not be deemed an admission by TMC
<br />hereunder of the facts, causes or state of events described and set forth in Railroad's
<br />notice to TMC.
<br />T
<br />Subsidence Agreement TMC -UP
<br />DEC -1781676-9
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