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7 <br /> 16.3 Force Majeure. Except as may be elsewhere specifically provided in this <br /> Agreement, if either party is delayed or hindered in, or prevented from the performance required <br /> under this Agreement (except for payment of monetary obligations) by reason of earthquakes, <br /> landslides, strikes, lockouts, labor troubles, failure of power, riots, insurrection, war, acts of God <br /> or other reason of the like nature not the fault of the party delayed in performance of its <br /> obligation (such events being referred to herein collectively as "Force Majeure"), such party is <br /> excused from such performance for the period of delay. The period for the performance of any <br /> such act will then be extended for the period of such delay. <br /> 16.4 Time for Performance. Except as may be elsewhere specifically provided in this <br /> Agreement, time is of the essence of each of the party's respective obligations under this <br /> Agreement. Whenever a date specified in this Agreement falls on a Saturday, Sunday, or federal <br /> holiday, the date will be extended to the next business day. <br /> 16.5 Entire Agreement. This Agreement, together with the Entry Agreement, contains <br /> the entire agreement between BNSF and City with respect to the matters covered by this <br /> Agreement. Oral statements or prior written matters not specifically incorporated into this <br /> Agreement are superseded hereby. No variation, modification, or change to this Agreement shall <br /> bind either party unless set forth in a document signed by both parties. <br /> 16.6 No Waiver. No failure or delay of either party in exercising any right, power or <br /> privilege hereunder shall operate as a waiver of such party's right to require strict compliance <br /> with any term of this Agreement. <br /> 16.7 Section Headings and Captions. Section headings and captions in this Agreement <br /> are for reference only and do not modify or affect this Agreement. <br /> 16.8 Construction. Each party has had the opportunity to have counsel review this <br /> Agreement, and, therefore,no rule of construction that any ambiguities are to be resolved against <br /> the drafting party must not be employed to interpret this Agreement or any closing document. <br /> 16.9 Counterparts. This Agreement may be executed in multiple counterparts, each of <br /> which shall be deemed an original and all of which shall constitute the same Agreement. <br /> 16.10 Severability. This Agreement is intended to be performed in accordance with, and <br /> only to the extent permitted by, all applicable laws, ordinances,rules and regulations. If any term or <br /> provision of this Agreement or the application thereof to any person or circumstance shall for any <br /> reason and to any extent be held to be invalid or unenforceable, then and in that event, it is the <br /> intention of the parties hereto that the remainder of this Agreement shall not be affected thereby, <br /> and it is also the intention of the parties to this Agreement that in lieu of each clause or provision <br /> of this Agreement that is illegal, invalid or unenforceable, there be added, as a part of this <br /> Agreement, a clause or provision as similar in terms to such illegal, invalid or unenforceable <br /> clause or provision as may be possible and be legal, valid and enforceable. <br /> Exchange Agreement -26- 5 $ DRAFT 5/23/06 <br />