|
4
<br /> 2.3 Information Representatives. The "Information Representative" designated by each
<br /> party as the person to be contacted regarding the Existing Information and in connection with the
<br /> representations in Section 14 below is as follows:
<br /> 2.3.1 (tel. fax , e-mail
<br /> is designated as BNSF's Information Representative.
<br /> 2.3.2 Dave Davis (tel. 425-257-8913, fax 425-257-8857, e-mail
<br /> DDavis@ci.everett.wa.us) is designated as City's Information Representative.
<br /> Section 3 Review Period.
<br /> 3.1 Review Period. For purposes of this Agreement, the "Review Period" shall mean the
<br /> period commencing on the Effective Date and expiring at 5:00 p.m. Central Time on December 1, 2005,
<br /> 3.2 Survey and Title Commitment.
<br /> 3.2.1 The parties acknowledge that a survey and related field notes ("Survey") of the
<br /> BNSF Property and the City Property, has previously been prepared and updated by Perteet
<br /> Engineering, Inc. ("Surveyor"), and that each party has received an original of such Survey. The
<br /> Survey was most recently updated on September 6, 2005, to meet ALTA standards for extended
<br /> title insurance. BNSF and the City shall provide their comments on the most recent Survey to the
<br /> Surveyor no later than November 15, 2005. The updated Survey, addressing the comments
<br /> made by BNSF and the City, shall be referred to as the "Final Updated Survey". The cost of the
<br /> original Survey and updates to Survey, including updates to the survey necessary to meet ALTA
<br /> standards for extended title insurance, shall be paid by the City and shall not be included in the
<br /> Reimbursement Cap (defined below). The Final Updated Survey shall be completed by
<br /> December 1, 2005.
<br /> 3.2.2 During the Review Period, BNSF and City shall each have the right, to obtain and
<br /> examine an Owner's Commitment for Title Insurance setting forth the status of the title of the
<br /> Exchange Property such party proposes to acquire pursuant to this Agreement (each, a "Title
<br /> Commitment"), which Title Commitment shall show all encumbrances, liens, reservations,
<br /> restrictions, easements and other matters of record, if any, relating to the respective Exchange
<br /> Property (including a legible copy of all documents referred to in the Title Commitment, including
<br /> but not limited to, plats, reservations, restrictions, and easements). The parties have agreed to
<br /> use Lawyers Title Agency of Washington for the Title Commitment and Title Insurance.
<br /> 3.3 Encumbrances. If the Survey or the Title Commitment for either of the BNSF Property or
<br /> the City Property discloses any liens, claims, easements, covenants, conditions, rights-of-way,
<br /> reservations, reversions, restrictions, encroachments, tenancies, mineral interests, royalty interests, oil,
<br /> gas or mineral leases, and any other type of encumbrance (collectively, the "Encumbrances"), or other
<br /> matters which are not acceptable to BNSF (in the case of the City Property) or City (in the case of the
<br /> BNSF Property), then such party shall have the option at any time before the expiration of the Review
<br /> Period to choose one of the following as its sole and exclusive remedy: (i) terminate this Agreement by
<br /> sending written notice thereof to the other party on or prior to expiration of the Review Period, and on
<br /> such termination, neither party hereto shall have any further rights or obligations hereunder except for
<br /> those that expressly survive termination, or (ii) elect to waive any of the Encumbrances or other
<br /> unacceptable matters and proceed to Closing (defined below) according to the remaining provisions of
<br /> the Agreement, subject to the Encumbrances, which shall be deemed to be "Permitted Encumbrances".
<br /> Neither party shall be obligated to cure any title matters or issues disclosed in the Title Commitment
<br /> and/or Survey(but may do so, in their sole discretion), except as stated in Section 3.4 below.
<br /> 15
<br /> Exchange Agreement -3- DRAFT 10/19/05
<br /> SEA 1713601v1 39546-32
<br />
|