2005/11/02 Council Agenda Packet

4 3.4 Release of Liens Affecting BNSF Property. Notwithstanding the foregoing provisions of Section 3.3 or anything to the contrary contained herein: 3.4.1 If any portion of the BNSF Property is encumbered by liens of one or more mortgages of BNSF (or its predecessors), BNSF shall deliver to City good and sufficient releases of such liens that are applicable to the BNSF Property within ninety (90) days after the first meeting of BNSF's Board of Directors held after the Closing Date. BNSF hereby indemnifies the City for all losses up to, but not to exceed, the amounts the City has paid BNSF pursuant to Section 10.4.1 and Section 10.4.2 of this Agreement or the fair market value of the BNSF Property at the time of the Closing, whichever amount is higher, to the extent BNSF fails to obtain and deliver to City good and sufficient releases of such liens against the BNSF Property. This provision shall survive Closing, shall be binding on the parties' successors and assigns and shall not merge into the BNSF Property Deed or any closing documents; 3.4.2 Any judgment or mortgage against BNSF that may appear of record as a lien against the BNSF Property shall be settled and satisfied by BNSF if and when it is judicially determined to be valid, and BNSF hereby indemnifies City for any losses or costs, including the costs incurred by the City in exercising its eminent domain powers, arising out of BNSF's failure to have such a judgment or mortgage lien so settled and satisfied; and 3.4.3 The releases, settlements or satisfaction by BNSF of such liens referred to in Sections 3.4.1 or 3.4.2 above shall be deemed an acceptable cure of such items for purposes of this Section 3. The provisions of this Section 3.4 shall survive the Closing of the exchanges contemplated under this Agreement. 3.5 Termination During Review Period. In addition to any other rights hereunder, each party shall have until the end of the Review Period to determine if the Exchange Property it intends to obtain is suitable for such party's purposes, in its sole discretion, including, but not limited to, the status of zoning, physical characteristics and conditions of the Exchange Property, and compliance with applicable laws. If a party determines that the Exchange Property it proposes to acquire is not suitable for its purposes, or if such party for any reason or no reason wishes to terminate this Agreement, such party may terminate this Agreement by written notice to the other received no later than the expiration of the Review Period. If either party does so terminate this Agreement, neither party shall have any further obligation hereunder except those that expressly survive termination. If either party does not so terminate this Agreement prior to the end of the Review Period, the parties shall proceed to Closing according to the remaining provisions of this Agreement. 3.6 No Limitation on Eminent Domain Rights. Notwithstanding the provisions of Section 3.5 above or elsewhere in this Agreement to the contrary, BNSF acknowledges that City may initiate any condemnation or eminent domain action against the BNSF Property permitted by applicable law and City is not waiving any such rights. Section 4 City Obligations. 4.1 Regulatory Approvals. 4.1.1 City shall be responsible, at its sole cost and expense, to obtain the approvals required in connection with the construction of the Replacement Facilities (collectively, "Regulatory Approvals") from all governmental authorities with jurisdiction over the Exchange Properties (collectively, "Governmental Authorities"), which include without limitation the Regulatory Approvals listed on Exhibit H and the Regulatory Approvals necessary or appropriate to facilitate track relocation and associated site work as shown in the Environmental Assessment— 415t Street Overcrossing Freight Mobility and Railroad Track Removal and Upgrade Project, dated February 11, 2004, prepared by the U.S. Department of Transportation, Exchange Agreement -4- DRAFT 10/19/05 6 SEA 1713601v1 39546-32