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<br /> • 8.2.2 City represents and warrants to BNSF that City has not relied and will not
<br /> rely on, and BNSF is not liable for or bound by, any warranties, guaranties, statements,
<br /> representations or information pertaining to the BNSF Property or relating thereto
<br /> (including specifically, without limitation, any Information related to the BNSF Property
<br /> or any BNSF Property information packages distributed with respect to the BNSF
<br /> Property) made or furnished by BNSF, the manager of the BNSF Property, or any real
<br /> estate broker or agent representing or purporting to represent BNSF, to whomever made
<br /> or given, directly or indirectly, orally or in writing.
<br /> 8.2.3 City assumes the risk that Hazardous Substances or other adverse matters
<br /> may affect the BNSF Property that were not revealed by City's inspection and, to the
<br /> fullest extent allowed by law, hereby indemnifies, defends and holds harmless and hereby
<br /> waives, releases and discharges forever BNSF and BNSF's officers, directors,
<br /> shareholders, employees and agents (collectively, "BNSF Indemnitees") from any and
<br /> all present or future claims or demands, and any and all damages, BNSF Losses (defined
<br /> below), injuries, liabilities, causes of actions (including, without limitation, causes of
<br /> action in tort), costs and expenses (including, without limitation fines, penalties and
<br /> judgments, and attorneys' fees) of any and every kind or character, known or unknown,
<br /> which City might assert or allege against the BNSF Indemnitees arising from or in any
<br /> 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
<br /> without limitation (i) the cost of any investigation, removal, remedial or other response
<br /> action that is required by any Environmental Law, that is required by judicial order or by
<br /> order of or agreement with any governmental authority, or that is necessary or otherwise
<br /> is reasonable under the circumstances, (ii) BNSF Losses for injury or death of any
<br /> person, and (iii) BNSF Losses arising under any Environmental Law enacted after
<br /> transfer. The rights of BNSF under this section shall be in addition to and not in lieu of
<br /> any other rights or remedies to which it may be entitled under this document or
<br /> otherwise. This indemnity specifically includes the obligation of City to remove, close,
<br /> 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
<br /> disclose to any third parties any information City discovers or obtains concerning the
<br /> BNSF Property as a result of any inspections, surveys, tests or other activities conducted
<br /> with respect to the BNSF Property ("BNSF Confidential Information") including, but
<br /> not limited to, any oral, electronic or written information provided by BNSF or on
<br /> BNSF's behalf. Notwithstanding the foregoing, City may disclose BNSF Confidential
<br /> Information to those of City's employees and agents directly involved with City with
<br /> respect to the acquisition of the BNSF Property, provided such individuals and firms have
<br /> agreed to maintain the confidentiality of BNSF Confidential Information pursuant to this
<br /> Agreement and provided further that City shall be liable hereunder for any breach by
<br /> such parties of such obligation. BNSF Confidential Information shall not include
<br /> information that is or becomes in the public domain other than as a result of a breach by
<br /> City or its agents.
<br /> Exchange Agreement -12- 3 9 DRAFT 5/23/06
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