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1 <br /> AGREEMENT REGARDING OPTION TO ACQUIRE FEE PARCEL <br /> AND REGARDING CROSSING LICENSES <br /> BNSFICITY OF EVERETT <br /> THIS AGREEMENT REGARDING OPTION TO ACQUIRE FEE PARCEL AND REGARDING CROSSING LICENSES <br /> ( AGREEMENT ) IS A LEGALLY ENFORCEABLE AGREEMENT. BOTH PARTIES SHOULD READ THIS DOCUMENT <br /> CAREFULLY AND UNDERSTAND IT BEFORE SIGNING. <br /> 1. BNSF Option to Acquire. <br /> a. The CITY OF EVERETT, a Washington municipal corporation ("City" or Seller ), in consideration of the <br /> mutual promises and other consideration herein contained, the receipt and sufficiency of which is hereby acknowledged, <br /> hereby grants to BNSF RAILWAY COMPANY, a Delaware corporation ("BNSF" or"Buyer"), an option to acquire (the <br /> "Option") all of Seller's interest in that certain .69 acre parcel of unimproved real property owned by City and located in <br /> the City of Everett, County of Snohomish, State of Washington and legally described in Exhibit"A" attached hereto and <br /> made a part hereof, together with any appurtenant easements, rights-of-way or other rights appurtenant thereto (the <br /> "Property"). <br /> b. In order for the Buyer's exercise of the Option to be effective, Buyer must exercise the Option in writing <br /> on or before September 1, 2015 ("Option Expiration Date"), by the mailing of a notice, such notice to be in substantially <br /> the same form as set forth on the Exercise of Option attached hereto as Exhibit "B" and incorporated herein by this <br /> reference, by certified mail, return receipt requested, or by commercial delivery service, addressed to Seller at the <br /> address set forth beneath Seller's signature below. Seller acknowledges and agrees that the execution of the attached <br /> Exercise of Option form by Buyer is sufficient documentary evidence of Buyer's exercise of the Option granted by this <br /> Agreement. If the Buyer does not exercise the Option on or before the Option Expiration Date,the Option terminates. <br /> c. City hereby represents and warrants to BNSF that it has or shall have taken all necessary legislative <br /> action required in order to lawfully grant the herein Option to BNSF and to consummate the sale of the Property to BNSF <br /> in the event BNSF elects to exercise its Option. Notwithstanding anything to the contrary contained herein, the Option <br /> Expiration Date shall be extended as may be necessary in order to accommodate any necessary legislative action or <br /> appeals therefrom. <br /> d. Neither this Agreement nor the TCE (defined below) shall grant Buyer the right to use or occupy the <br /> Property unless and until Buyer's acquisition of the Property pursuant to the Option granted herein. <br /> 2. Tax-Deferred Exchange. Buyer may assign its rights (but not its obligations) under this Agreement to Goldfinch <br /> Exchange Company LLC, an exchange intermediary, in order for Buyer to effect an exchange under Section 1031 of the <br /> Internal Revenue Code. In such event, Buyer shall provide Seller with a "Notice of Assignment," in a form substantially <br /> similar to that attached hereto as Exhibit "C", and Seller shall execute an acknowledgement of receipt of such notice. <br /> Seller may also assign its rights (but not its obligations) under this Agreement to an exchange intermediary in order for <br /> Seller to effect an exchange under Section 1031 of the Internal of Revenue Code. Seller agrees to fully cooperate with <br /> Buyer to permit Buyer to accomplish a tax-deferred exchange, but at no additional expense or liability to Seller for such <br /> tax-deferred exchange, and with no delay in the Closing. Seller's cooperation will include, without limitation, executing <br /> such supplemental documents as Buyer may reasonably request. Seller agrees that Buyer may use its standard form of <br /> "Assignment of Rights," attached hereto as Exhibit"D", in connection with any tax-deferred exchange. <br /> 3. AS-IS I Release. <br /> a. EXCEPT FOR THE EXPRESS REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS <br /> SET FORTH IN THIS AGREEMENT OR IN ANY DOCUMENT DELIVERED IN CONNECTION WITH THE CLOSING, <br /> BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT SELLER IS SELLING AND THAT BUYER IS <br /> PURCHASING THE PROPERTY ON AN "AS IS, WHERE IS, WITH ALL FAULTS" BASIS AND THAT BUYER IS NOT <br /> RELYING ON ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, <br /> FROM SELLER, ITS AGENTS OR BROKER AS TO ANY MATTERS CONCERNING THE PROPERTY, INCLUDING <br /> 51382125.11 <br /> 5 <br />