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<br /> (including, without limitation, causes of action in tort) costs and expenses (including, without
<br /> limitation fines, penalties and judgments, and attorneys'fees) of any and every kind or character,
<br /> known or unknown, which City might assert or allege against the BNSF Indemnitees arising from
<br /> or in any way related to the BNSF Property Conditions or the alleged presence, use, storage,
<br /> generation, manufacture, transport, release, leak, spill, disposal or other handling of any
<br /> Hazardous Substances in, on or under the BNSF Property. "BNSF Losses" shall include without
<br /> limitation (i) the cost of any investigation, removal, remedial or other response action that is
<br /> required by any Environmental Law, that is required by judicial order or by order of or agreement
<br /> with any governmental authority, or that is necessary or otherwise is reasonable under the
<br /> circumstances, (ii) BNSF Losses for injury or death of any person, and (iii) BNSF Losses arising
<br /> under any Environmental Law enacted after transfer. The rights of BNSF under this section shall
<br /> be in addition to and not in lieu of any other rights or remedies to which it may be entitled under
<br /> this document or otherwise. This indemnity specifically includes the obligation of City to remove,
<br /> close, remediate, reimburse or take other actions requested or required by any governmental
<br /> agency concerning any Hazardous Substances on the BNSF Property.
<br /> 8.2.4 Except to the extent otherwise required by applicable laws, City shall not disclose
<br /> to any third parties any information City discovers or obtains concerning the BNSF Property as a
<br /> result of any inspections, surveys, tests or other activities conducted with respect to the BNSF
<br /> Property ("BNSF Confidential Information") including, but not limited to, any oral, electronic or
<br /> written information provided by BNSF or on BNSF's behalf. Notwithstanding the foregoing, City
<br /> may disclose BNSF Confidential Information to those of City's employees and agents directly
<br /> involved with City with respect to the acquisition of the BNSF Property, provided such individuals
<br /> and firms have agreed to maintain the confidentiality of BNSF Confidential Information pursuant
<br /> to this Agreement and provided further that City shall be liable hereunder for any breach by such
<br /> parties of such obligation. BNSF Confidential Information shall not include information that is or
<br /> becomes in the public domain other than as a result of a breach by City or its agents.
<br /> 8.3 Inspection of City Property by BNSF.
<br /> 8.3.1 BNSF acknowledges and agrees that it has been given the opportunity to fully
<br /> and thoroughly inspect the City Property in accordance with this Section 8, including without
<br /> limitation the preparation of: (i) a Phase I Environmental Site Assessment dated February 11,
<br /> 2002 by GeoEngineers, Inc. and (ii) the 41st Street Overcrossing ESA. BNSF will conduct such
<br /> additional inspections and tests as BNSF may deem advisable in BNSF's discretion to fully
<br /> evaluate and analyze the City Property and all City Property Conditions (defined below). Except
<br /> for and subject to City's obligations under Section 8.4 below, BNSF IS PURCHASING THE CITY
<br /> PROPERTY ON AN "AS-IS, WHERE-IS" AND "WITH ALL FAULTS" BASIS WITH ANY AND
<br /> ALL PATENT AND LATENT DEFECTS, INCLUDING THOSE RELATING TO THE
<br /> ENVIRONMENTAL CONDITION OF THE CITY PROPERTY, AND IS NOT RELYING ON ANY
<br /> REPRESENTATION OR WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND
<br /> WHATSOEVER FROM CITY AS TO ANY MATTERS CONCERNING THE CITY PROPERTY,
<br /> including, but not limited to, the physical condition of the City Property; zoning status; tax
<br /> consequences of this transaction; utilities; operating history or projections or valuation;
<br /> compliance by the City Property with Environmental Laws or other laws, statutes, ordinances,
<br /> decrees, regulations and other requirements applicable to the City Property; the presence of any
<br /> Hazardous Substances, wetlands, asbestos, lead, lead-based paint or other lead containing
<br /> structures, urea formaldehyde, or other environmentally sensitive building materials in, on, under,
<br /> or in proximity to the City Property; the condition or existence of any above ground or
<br /> underground structures or improvements, including tanks and transformers in, on or under the
<br /> City Property; the condition of title to the City Property, and the existence of any leases,
<br /> easements, permits, orders, licenses, or other agreements, affecting the City Property
<br /> (collectively, the "City Property Conditions").
<br /> 8.3.2 Except for and subject to City's obligations under Section 8.4 below, BNSF
<br /> represents and warrants to City that BNSF has not relied and will not rely on, and City is not liable
<br /> V
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<br /> Exchange Agreement -10- DRAFT 10/19/05
<br /> SEA 1713601v1 39546-32
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