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8
<br />EXHIBIT B
<br />AGREEMENT AND CONSENT OF NORFOLK SOUTHERN
<br />RAILWAY COMPANY
<br />HIv-so
<br />WI~REAS, Company, Licensee, and NSR desire to enter into the attached Agreement regarding
<br />the property described therein (the "Premises").
<br />NOW THEREFORE, in consideration of the above recitals and the promises and agreements
<br />contained herein, as well as for other good and valuable consideration, the receipt and sufficiency of which is
<br />hereby acknowledged, NSR, Company, and Licensee agree as follows:
<br />1. NSR gives its consent to the Agreement pursuant to the terms and conditions of this Consent. All
<br />of the terms of this Consent are hereby incorporated by reference into the Agreement. The term
<br />"NSR" as used in this Agreement and Consent and as used in the Agreement shall include NSR's
<br />officers, agents and employees, and any parent company, subsidiary or affiliate of NSR and their
<br />officers, agents and employees.
<br />2. The parties agree and understand that any right or claim of Company held in or by virtue of the
<br />Agreement shall also inure to the benefit of, and be enforceable by NSR or by any successor or
<br />assignee of Company or NSR, and NSR shall not be responsible for any obligations, duties or
<br />indemnities of Company to Licensee under the Agreement. NSR reserves any pre-existing rights,
<br />claims and defenses against Company and Licensee and said rights, claims and defenses shall not
<br />be waived or limited in any way by the Agreement.
<br />Licensee understands that NSR makes no warranties or representations regarding the condition of
<br />or title to the Premises. Licensee takes the Premises "AS IS" and expressly waives any and all
<br />claims against NSR relating to or arising from the condition of or title to the Premises and the
<br />property surrounding the Premises, including without limitation, any claims and costs relating to
<br />environmental contamination under any applicable laws (such as, without limitation, those which
<br />might arise under CERCLA, RCRA, and the North Carolina Oil Pollution and Hazardous
<br />Substances Act).
<br />4. Without the written consent of NSR, (i) neither the Agreement nor this Consent may be assigned
<br />in whole or in part by Company or Licensee; (ii) Licensee shall not enter into any sublicense or
<br />sublease of the Premises; and (iii) the Agreement shall not be amended by Company or Licensee.
<br />No consent by NSR to any sublease, sublicense, assignment, or amendment of the Agreement
<br />shall be construed to be consent to any further sublease, sublicense, assignment, or amendment of
<br />the Agreement.
<br />5. In consideration of the rights granted by NSR to Licensee by this Consent, Licensee agrees to
<br />indemnify and hold NSR harmless to the same extent as Company is indemnified and held
<br />harmless pursuant to the Agreement. In addition, without limiting the indemnities provided in the
<br />Agreement, Licensee specifically shall indemnify and hold harmless NSR from and against any
<br />and all attorney"s fees, costs, expenses, liabilities, injuries, claims (including third party claims
<br />and any claims under any environmental laws and regulations such as CERCLA, RCRA, and the
<br />North Carolina Oil Pollution and Hazardous Substances Control Act) and damages arising from
<br />or related to (1) the Agreement; {2) any acts or omissions by Licensee at or near the Premises, {3)
<br />Licensee's violations of environmental laws and regulations, and (4) environmental contamination
<br />caused by Licensee. For purposes of this paragraph, the term Licensee shall mean its officers,
<br />employees, agents, contractors, guests or invitees.
<br />6. NSR must be given at least thirty (30) days notice prior to the placement of any equipment,
<br />structure, facility, fixture, or other improvement on the Premises other than those permitted by the
<br />Agreement.
<br />1 212446.w.mod 02042003
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