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ST9502-CS 95111311-13-95 05:32PM FROM JACKSON & WALKER Richa~ M. Dooley [214) ~'j3-1900 Noveml~r I3, 1995 VIA TELECOPY 614/764-3243 AND FEDERAL EXPRESS Daniel G. Caxducci, Esq. Senior Corporate Counsel Wendy's International, Inc. P. O. Box 256 4288 West Dublin Granville Road Dublin, Ohio 43017 Contract of Sale (the "Contract") by and between The Parks of Coppell Trust., as Seller, and Cometied Bank-Texas, as Purchaser. with respect to property located in Coppell, Texas Dear Dan: Pursuant to our prior discussions, enclosed arc five oxecution counterparts each of the following: (i) East-West Public Road Construction Supervision Agreement (the "Supervision Agreement"); (ii) East-West Public Road Escrow Agreement (the "Escrow Agreement"): and (iii) Clarification Agreement (herein so called). By copy of this letter, I am telecopying to you machine-marked counterparts of the Supervision Agreement and the Escrow Agreement showing the changes to the prior dram thereof delivered to you under cover of my letter. dated October 24. 1995. Almost all of the changes are non-substantive. By copy of this letter, I am telecopying the machine-marked counterparts of the Supervision Agreement and the Escrow Agreement to Messrs Beaird, Ginsberg, Griffin, Hargrave, Smith, Snell, Tuner and Witt. It is my understanding that a hearing to consider approval of the Supervision Agreement and the Escrow Agreement by the City Council of the City of Coppell has been scheduled for tomorrow. If such approval is ubtaimxt, it is tny understanding that th~ Contract will be chased On Wednesday, November 15, 1995. 11-13-95 05:32PM FROM JACKSON ~ WALKER TO 9-3043570 P002/020 ,..JACKSON ,& WALKER, L.L.P. ATTOI~N~YS AND CQUIN,~CI, OI~'5 ~01 MAIN $TR~T DALe5, TEXA~ 7580~-3~7 ~8 I 4~ 953-8000 OTN~ LOCATIC)N5 FO~T WO~T~ ANTONIO Ri~ha~ M, Doelc~, (214) November I3, 1995 VIA TELECOPY 614/764-3243 AND FEDERAL EXPRESS Daniel G, Carducci, Esq. Senior Corporate Counsel Wendy's International, Inc. P. O. Box 256 4288 West Dublin Granville Road Dublin, Ohio 43017 Corm'act of Sale (the "Contract") by and between The Parks of Coppell Trust., as Seller, and Cometics Bank-Texas, as Purchaser. with respect to property located in Copp¢ll, Texas Dear Dan; Pursuant to our prior discussions, enclosed are five execution counterparts each of the following: (i) East-West Public Road Construction Supervision Agreement (the "Supervision Agreement"); (ii) East-West Public Road Escrow Agreement (the "Escrow Agreement"); and (iii) Clarification Agreement (herein so called). By copy of this letter, I am telecopying to you machine-marked counterparts of the Supervision Agreement and the Escrow Agreement showing the changes to the prior dratts thereof delivered to you under cover of my letter, dated October 24, 1995. Almost all of the changes are non-substantive. By copy of this letter, I am telecopying the machine-marked counterparts of the Supervision Agreement and the Escrow Agreement to Messrs. Beaird, Ginsberg, Griffin, Hargrave, Smith, Snell, Turner and Witt. It is my understanding that a hearing to consider approval of the Supervision Agreement and the Escrow Agreement by the City Council of the City of Coppell has been scheduled for tomort'ow. If such appruval hi obtained, it is tny understanding that the Cuntract will be cluscd On Wednesday, November 15, 1995. 11-13-95 05:32PM FROM JACKSON & WALKER TO 9-3043570 P003/020 Daniel G. Carducei, Esq. November 13, 1995 Page 2 If you have any questions regarding the enclosed or the foregoing, please contact me. If the enclosed are in order, please have them executed by duly authorized officers of Wendy's and return them to Mr. Turner for the closing. Very truly yours, ~~e~ard M. Dooley RMD/am l~nclosures Mr. Dan L. 1aeah'd (w/eric.) - VIA TELECOPY 522-2682 Mr. Harold H. Ginsburg (w/enc.) - VIA TELECOPY 871-2023 Mr. Ken Griffin (w/eric.) - VIA TELIECOPY 30d-3~70 Mr, Harry M. Hatgrave (w/enc.) - VIA TELECOPY 233-5881 Peter G. Smith, Escl. (w/enc.) - VIA TELECOPY 9654)010 Donald H. Snell, Esq. (w/enc.) - VIA TELECOPY 871-3517 lay S. Turner, Esq. (w/enc.) - VIA TELECOPY 393-9043 Mr. 'rim West (w/enc.) - VIA 'I'EI.~I!;{3OPY 541-0179 Mr, lira Witt (w/ene.) ~ VIA TELECOPY 304-3673 RMD/443132/13 11-13-95 05:32PM FROM JACKSON & WALKER TO 9-3043570 POO4/020 EAST-WEST PUBLIC ROAD CONSTRUCTION SUPERVISION AGREEMENT This East-West Public Road Construction Supcrvioion Agrcemcnt ("Agreement"] is made and entered into as c)f the 2Gth 15t_____hhday of October ~vember, 1995, by and among The Parks of Coppell Trust- (the "TruSt"), a Texas trust, acting by and through its sole Trustee, the City of Coppel!, Texas (the "City"), a municipal corDoration, acting by and through its duly authorized City Manager, Comerica Bank-Texas ("Comerica"), a Texas banking association, acting by and through its duly authorized officer and Wendy'n ~ntcrnational, Inc. ("Wendy's"), an Ohio corporation, acting by and through its duly authorized officers. WITNESSETH: WHEREAS, the Trust owns several tracts of land situated in the city of Coppoll, Dallas County, Texas (the "Trust Tracts"); and WHEREAS, the City owns several tracts of land situated in the City of Coppell, Texas, in the proximity of the Trust Tracts (the "City Tracts"); and WHEREAS, Wendy's has acquired from the Trust and others a certain tract of land situated in the City of Coppel]o, county, Texas (the "Wendy's Tract"); and WHEREAS, Comerica has acquired from the Trust and others a certain tract of land situated in the City of Coppell, Da].].as County, Texas (the "Comerica Tract"); and WHEREAS, the Trust by separate Right-of-Way Dedication has dedicated to the City that certain right-of-way described on ~tach~d Exhibit A and d~picted on attached Exhibit B (the "East- West Road Right-of-Way Area") upon which is to be constructed a public road and appurtenant landscaping (the "East-West Public Road"); and W~EREA9, at lea~t two-third~ of the cost to construc~t~ the East-West Public Road is to be paid by or through special assessments levied by the City on the lands that would benefit from the construction or ~he East-West Public Road; WHEREAS, in lieu of any special assessment by the City for the costs to construct the East-West Public Road, the Trust has agreed to dedicate the right-of-way for the East-West Public Road and tc pay one-third of the costs to construct the East-W~t ~,~b]i.c Road; and 11-13-95 05:32PM PROM JACKSON & WALKER TO 9-3043570 P005/020 WHEREAS, in lieu of any special assessment by the City for the costs to construct the East-West Public Road, Comerica has agreed to pay one-third oE Lh~ c~ts to construct the Ea~t-W~st Public Road; and WHEREAS, in consideration of the dedication of the right-of- way ~or ~he East-West Public Road by ~he Trus~ and the Trust°s and Comerica'e agreement to each pay one-third o~ the costs to construct the East-west Public Road and because of the benefits accruing to the City Tracts from the construction of the East-West Publi~ Road, the City has agreed to pay one-third of the costs to construct the East-West Public Road; and WHEREAS, because of the benefits accruing to the Wendy's Tract from the construction of the East-West Public Road and as an accommodation to the Trust, the City and Comerica, Wendy'~ ha~ agreed to contract for and to supervise the construction of the East-West Public Road; and WHEREAS, as a material inducement to Wendy's to contract for and to supervise the construction of the East-West public Road, the Trust, the City and Comerica have agreed to enter into this Agreement with Wendy's to evidence their agreement to pay their respective agreed upon portions of the co~t~ to construct the East- West Public Road. NOW, THEREFORE, for and in consideration of the agreements contained herein, the Trust, the City, Comerica and Wendy's hereby agree as follows: 1. Certain Definitions. As used in this Agreement: (i) the term "Ea~t-We~t Public Road Plans" mean~ the plan~ and specifications for the East-west Public Road ~nd an aDDurtenant water line (the "Water Line")described on attached Exhibit C; (ii) the term "East-West Public Road Contractor" means Landmark General ContraCtors which is the contractor with which Wendy's will contract for the construction of the East-West Public Road .~d the Water L~p~; (iii) the term "East-West Public Road Approved Costs" m~ans the sum of 6 .... ~.6Q,180.09 which is the estimated coet~ for the construction of the East-'We~t Public Roa~ and the Water Line in accordance with the East-West Public Road Plans; (iv) the term "East-West Public Road Construction Contract" means ~he construction contract between wendy's and Lhe EasL-W~ Public Road Contractor for the construction o£ the East-West public Road and the Water .Line in accordance with the East-West Public Road Plans; and (v) the term "East-West Public Road Escrow Agreement" means an escrow agreement among the Trust., the City, Comerica, wendy's and Jay S- Turner, P.C. ("F~rnw Agent"), pursuant to which the Trust, the City and Comerica escrow funds in - 2 - 11-i3-95 05:32PM FROM JACKSON & WALKER TO 9-3043570 P006/020 the total amount of the East-West Public Road Approved Costs with Escrow Agent to pay the costs to construct the East-West Public Road .and the Water Line in accordance with the East-West Public Road Plans. 2. AD~Oyals/Escrow__A~reem~nt/Construction Contract. By execution hereof, the Trust, the City, Comerlea and Wendy's hereby approve Lh~ ~-West Public Road Plans, nhe EasE-wesT Public Road Contractor, the East-West Public Road Approved Costs, the East-West Public Road Construction Contract and the East-West Public Road Escrow Agreement. Concurrently herewith, the Trust, the city, Comerica and Wendy's shall execute and deliver the East-West Public Road R~c~w ~greement to Escrow Agent, and the Trust, the City and Comerica shall deposit their agreed upon portions of the Eas~-West Public Road Approved Costs with EsCrow Agent pursuant to the East- West Public Road E~crow Agreement. Concurrently herewith, and the East-West Public Road Contractor shall execute and deliver the East-West Public Road Construction Contract. Promptly after the execution hereof, Wendy's shall cause the East-West Public Road Contractor to commence the construction of the East-West Public Road ~nd ~h~.._~..ter Line within the East-West Public Road Right-of- Way Area and to diligently pursue the same to completion in accordance with the East-West Public Road Plans. Wendy's agrees that W~ndy's wi~ no~ i~u~ or approve any chan~e o.:'de~' under Easn-West Public Road Construction Contract, or accept or permit any change, amendment or supplement to the East-West Public Road Construction Contract or accept or permit the East-West Public Road Contractor to materially deviate from the East-West Public Road Plane in the construction of the East-West Public Road and the Water Line without written authorization from the Trust, the City and Comerica. In the event a change order is required, Wendy's ~h~ll ~ubmiL count~rpaz'~s of the written cl~ ~i-d~ z~qu~t the Trust, the City and Comerica. The form and content of the change order request shall correspond with the standard AIA form. The Trust, the City and Comerica shall have three business days from receipt to approve the change order request. If no objection t~ the change order is received within three busj.nes~ d~y,g t~n change order is deemed approved and each party shall bc rcquircd to dcposit one third of the totel of ~he the Trust and the City ~11 d~posit an~ additional funds requir~d'ir~ ~ow; p~vld~d, howcvcr,. -Comcrica's obligation t.o cccrow onc third of. such additional requirc~ funds is Dubjcct to thc provisions of paragraph 3-hereof. Thc dcposit ratios amd handling-of the additional i~ any ohalt bc govcrncd by the .Eao~ West Public Road ~scrow Agreement witb...~he..~rus~_and the.Qi&X ~ha~inq in such deDoslt m~ger agreed upon by them (any such deposit, an 'l~>=~_ip_n.~.a~ Escrow DeDosi..t").. In the event any party objects to the change order request, tile objecting parU'yshall detail its objections in writing tO Wendy's. wendy's upon receipt shall undertake to satisfy the - 3 - 11-13-95 05:32PM PROM JACKSON & WALKER lO 9-3043570 P007/'020 applicable party's objections and shall resubmit to the Trust, the City and Comerica a revised change order request. If wendy's is unable to satisfy the objections raised or if an objection is raised to the revised change order request Or ~f after a chanqe order reauest ~ S, aDDroved ~v ~ee~e~ a~proved,. the ~rust and the City fail or refuse Dr6mDtlv to make a~. required Additional bepo_si~.~ then w~dy's may: (i) b~ w~iteen~oti~ '~'6 %~% Trust, the City and Comerica withdraw from i~s duti~ puz~u~z,~ to Lhis Agreement in which event Wendy's shall be relieved from all further obligations and/or liabilities hereunder; or (ii) institute a Bill of Interplea~er 1n any court of competent jurisdiction to determine the rights of any of the parties claiming an interest or raising an objection to the action taken or ~o h~ ta~m by wenSy'~ in its role of supervising construction pursuant to this Agreement. Wendy's shall have a prior lien upon the funds held in escrow for all reasonable expenses, char~es and attorneys' fees incurred by Wendy's incident to any Bill of Interpleader. 3- Comerlea Limitation. By separate agreement between the Trust and Cometics, Comerica's total obligation with respect to the con~t~ct~n c-osts ~or the East-West Public Road and the portion of another public road to be constructed upon the easterly boundary line of the Cometics Tract is limited to $31,000 (the "Comerica Limitation"). AD used heroin, ~h~ ~t-z',~ "e~uczi~ DCfi~iL" that .amount equal to (x) Comcriea~s onc third portion of By execution hereof, the Trust.. acknowledqes_ and ~ree. S t.h~t: (i) Comerica has d~posite~ ~31,000 with Escrow A~ent East-West Public Road Appro,~cd Coot~ (including any incrcaMc in such costs approvcd in ~riting by t-he Trust, the City and ~mcaLtq~.[~ .leas, ( i the ~o~_~l_~a~_Q~L~t pf such coats that Comcrica d,.~posit with Escrow Aqent r~sulus i~ th~ Com~r~ b~m~ation ifs~hc Como~ca Limitation c~mc0 i~to offcot. The TrUst agrees that the Trust will pay any-Comcrica Deficit and that the T~ust will dc~si.t in cao~ with ~sc~ow ~cnE the amount of any Cometics Deficit pursuant to thc r~uircmcnts containS-in paragraphs 2 and ] beinq in effect: and (~) t~ T~ust will b~ ~.s~o~h]~ portion of any ~dditional D~osit...r~uir~d ~urSua~t z6 ~ara~b 2 of th~s ~greement. 4. City. Aqceptange/Mai.ntenance. By execution hereof, the City hereby acknowledges and agrees that: (i) the City has reviewed and approved the East-West Public Road Plans; and (ii) after the City Engineer confirms that the East-West Public Road has and the water Line have been completed without material deviation from the East'zWest Public Road Plans, the City will accept the East-West Public Road and the Water Lin~ as e public .-s~.rcct improvements and maintain the same as a public street a~3~ a public water line. - 4 - 11-13-95 05:32PM FROM JACKSON & WALKER $0 9-3043570 P008/020 5. EnforCement. If any party to this Agreement fails or refuses to pay or perform such party's duties and obligations under this Agreement, the other parties to this Agreement shall have the right to enforce specific performance of such duties and obligations. If Wendy's f~i],~ Or refuses to perform any duty or obligation under this Agreement and such failure remains outstanding 30 days after the delivery to Wendy's from the Trust, thc City and Comerica of a written request that Wendy's perform such duty or obligation, the Trust, the City and Comerica shall have the right to terminate this Agreement, and thereafter agree upon another party to perform Wendy's duties and obligations under this Agreement, in which event the Trust, the City and Comerica shall be entitled to ~se all remaining funds held in escrow pursuant to the East-West Public Road. Escrow Agreement in connection therewith. All parties to this Agreement hereby cxpre~ly waive all rights to sue any o~h~ pdrLy L~ t. his Agreemen~ for consequential damages arising or resulting from any party to this Agreement failing or refusing to pay or perform such party's ~uties and obligations under this Agreement. 6. Exhibits. incorporated into purposes. All exhibits to ~hi~ Agreement are and made a part of this Agreement for all 7. No Recorda_tion. This Agreement shall not be recorded in the Real Property ~ecords of Dallas County, Texas, but each party to th~s Agreement agrees to provide a copy of this Agreement to any transferee of any of the tracts of land re~erred to in this Agreement ~md to require ~uch transferee to asgume any dutie~ and obligations of the transferor under this Agreement. 8. No~ice. ~y z~u~£c~ o~' ~ommu~icatiux~ r~quired or permitted hereunder shall be given in writing, sent by (i) personal. delivery, or (ii) expedited delivery service with proof of delivery, or (iii) United States mail, postage prepaid, registered or certified mail, return receipt requested, addressed to the appropriate par~y ~t ~s addre~ set forth on the ~ignature page o£ this Agreement or to such other address or to the attention of such other person as heroinafter shall be designated in writing by the applicable party sen~ iii accordance herewith. Any ~uch no~ice or communication shall be deemed to have been given, whether actually received or not, when sent or dispatched in the manner provided herein. 9. Entire .A~r~emSDt/Binding Effect. Thi.~ Agreement, together with the East-West Public Road Escrow Agreement, sets forth the entire agreement among the parties hereto with respect to the mubject matter hereof and ~uper~edes all prior oral or written agreements among the parties hereto with respect to the subject 1)-13-95 85:32RM FROM JACKSON & WALKER ?0 9-3043570 P009/020 matter hereof. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF, the parties hereto have e~c,~ted This Agreement as of the day, month and year first above written. WENDY'S INTERNATIONAL, INC. wendy's address for notice: P. O. Box 256 By 4288 W. Dublin-Granville Rd. Name Dublin, Ohio 42017 Title Attn: Legal Department By Name Title THE PARKS OF COPPELL TRUST Trust's address for notice: c/o Harry M. Margrave, Trustee 12221 Merit Drive Suite 1750 Dallas, Texas 75251-2252 Harry M. Hatgrave, Trustee CTTV OF COPPMT,T,, TRXA~ City'$ address for notice; 255 Parkway 8oulevard coppell, Texas 75019 Attn: Jim Witt, City Manager Jim WitL, City Manager 11-13-95 05:32B,I FRO~f JACKSOlk& WALKER TO 9-3043570 P010/'020 COMERZCA BANK-TEXAS Comerica's address Eor notice: P. 0. Box 650282 Mail Code 6518 Dallas, Texa~ 75265-0282 Attn: kdena Nichols, Vice President By Adena Nichols, vice P~'~sident I~MD,/4,?~704~0i/D RMD/436700 03/D - '7 - 11-13-95 05:32PM FROM JACKSON & WALKER TO 9-3042570 P011/020 Exhibit C · [Dcocription el. t-he East-West Public Road Plans Sheet 4-14 (Pavinq plan a_n_d Pr_ofile - Town Center Boulevard and T6~f'~enter Drive) sheet 8-14 (Proposed Drainaqe Line "ST-3" and "$T-4" - Plan and Profile) and Sheet 13-14 (water plan sheeL 4 of 4, S_t_.a 1.2+00 End of ".W-i" an~all"0f. "W.-..2") o. ut ~rts Facilitv Addition..~_ dated November 3, 1995, prepared bv Pa_c. heco Koch Consultin~ Snq'ineers, 'Inc., 9..401.. LBJ ~00, D_a_~%a-~~ T~ RMD/436700.03 to be alt:whs~l) 11-13-05 05:32PM FROM JACKSOL& WALKER TO 9-3043570 _ P012/020 .E _AST-WEST PUBLIC ROAD ESCROW AGREEMENT This East-West Public Road Escrow Agreement ("Escrow A r e ..... ~ g e ment") is made and entered into ae of the ~ 15th day of October November, 1995 by and among The Parks of Coppoll Trust (the "Trust"), a Texas trust, acting by and through its sole Truseee, ~he City of Coppell, Texas (the "city"), acting by and through its duly authorized City Manager, Comerica Bank-Texas {"Comerica"), a Texas banking association, acting by and through its duly authorized officer, Wendy's international, Inc. ("Wendy's"), an Ohio corporation, acting by and through its duly authorized officers, and Jay S. Turner, P.C. ("Escrow Agcnt"), a Texas professional corporation, acting by and through its duly authorized officer. Recitals A. On the date hereof, the Trust, the City, Comerica and Wendy's have entered into that certain Eas~-West Public Road Construction Supervision Agreement (the "Construction Supervision Agreement") which, among other things, provides for the escrow of funds by the Trust, the City and C~m~r~ w~th R~cr~w Ag~ ~n connection with the construction oE the East-West Public Road and the Water Line. B. All capitalized terms used but not defined in this Escrow Agreement shall have the meanings ascribed to such terms in the Construction Supervision Agreement all of which are hereby incorporated heroin by reference for all purposes. C. This Escrow Agreement is the escrow agreement referred to in the Construction SupervisionAgreement and is being entered into among the Trust, the City, Cout~ica, Wendy's and Escrow Agent ~o satisfy the terms and conditions contained in the Construction Supervision Agreement regarding the escrow of funds with Escrow Agent by the Trust, the City and Comerica. NOW, THEREFORE, for and in co ideration o£ the premises and n= of the agreemenns contained herein, the Trust, the City, Comerica, Wendy's and Escrow Agent hereby agree as follows: 1. Concurrently herewith, the Trust, the City and Comerica have deposited with E~crow Agent ~he sum of ~ $160~180.09 (the "Escrowed Funds") which amount is equal to the East-West Public Road Approved Costs. 2. Escrow Agent shall invest the Escrowed Funds from time to time in certificates of deposit, savings accounts or money market fundc. All invcstmcnt~ or deposits of the Eucrowed Funds shall be 1I-i3-95 05:32PM PROM JACKSON & WALKER TO 9-3043570 P013/020 in accounts or institutions insured by the Federal Deposit Insurance Corporation. All interest earned with respect to the Sscrowed Funds shall become part of the Escrowed Funds. If Escrow Agent requests the Trust, the City and Comerica to approve any investment of the gscr~we~ W~lndg, the Trust, the City and Comerica each agree to promptly respond to such request. tf there is any disagreement among the Trust, the City or Comerica regarding any investment of Lhe E~i'uw~d Fu~ds proposed by Escrow Agent, then the Escrowed Funds shall be placed in a savings account insured by the Federal Deposit Insurance Corporation. 3- The Escrowed Funds shall be disbursed by Escrow Agent to Wen~y'~ ~m time to time upon receipt from Wendy'~ of Reque~t(~) for Escrow Disbursement in the form attached hereto as Schedule Each Request for Escrow Disbursement shall have all blank spaces completed, shall be dated, sha%Z be executed by a duly authorized officer of Wendy's and sha%l have Annexes A and B attached. At the time each Request for Escrow Disbursement is delivered to Escrow Agent, true, correct and complete copies of such Request for Escrow Disbursement shall be delivered to the Trust, the City and Comerica, together w~th Annexes ~ ~ ~ ~tt~h~d the Trust, the City or Comerica shall have the right, at any time within seven calendar days after receipt of each such request, to ~ive written notice to we~dy's ~nd Escrow Agent prohibiting' the disbursement o~ the funds requested if (i) the work performed or material supplied for which the disbursement is requested has not been completed or is not in place, or (ii) the Request for Escrow Disbursement or any Annex attached thereto contains omissions or errors of a material nature. Any ~uch notice from the Trust, the City or Comerica to Wendy's and Escrow Agent shall set forth in detail the reasons for the applicable party's objection to the i~qu~d disbursement of the Escrowed Furxd~. ~f ~]o~ ~f Lh~ Trust, the City or Comerica object to any requested disbursement within seven calendar days after receipt of the applicable Request for Escrow Disbursement, Escrow A~ent shall issue a check from the Escrowed Funds payable to the order of Wendy's in the amount requested in the applicable Request for Escrow any of the Trust, the City or Comerica object to any requested disbursement within seven calendar days after the applicable paz~y'~ ~'~ipt of th~ applicable K~qu~ £uz E~o~ Disbursement, Wendy's shall undertake %o satisfy the applicable party's objections and resubmit to the Trust, the City, Comerica and to Escrow Agent a corrected Request for Escrow Disbursement. If none of the Trust, the City or Comerica objects to any corrected Request for Escrow Disbursement within seven calendar applicab%e party's receipt o~ such corrected Request for Escrow Disbursement, Escrow Agent shall issue a check from the Escrowed Funds payable to the order of Wendy's in the amount requested in such corrected Request for Escrow Disbursement. Escrow Agent promptly shall deliver to the Trust, the City and Comerica copies 1i-13-95 05:32PM FROM JACKSON_..,& WALKER TO 9-3043570 _ P014/020 Of Escrow Agent's check(s) issued to Wendy's in payment of such requested amounts. 4. This Escrow Agreement shall terminate and be null and void upon the occurrcncc of either of thc following cvcnts: (i) upon the written instruc=ions of the Trust, the City, Comerica and Wendy's; or (ii) upon the delivery by Wendy's to Escrow Agent of a certificate certifying that the East-West Public Roan hac an~ the Wa~er Line h~ been completed, that all of the costs to construct the same have been paid and that Wend¥'s does not intend to request any further disbursements pursuant to paragraph 3 of this Escrow Agreement. Upon the termination of this Escrow Agreement, Escrow Agent promptly shall disburse onc third of ~y the remainder of the Escrowed Funds to the Trust., the-City and Comcr~ca; provided, howcvcr, if the Trust-has ~dviscd Escrow Agent in wr!~ing {hat a pore. ion-of the ROcrowe~ Funds rcprcscnts ~hc funding by the Tr~st of a. Comcrioa Deficit, Escrow Agent shall not dioburoc any of thc-rcm~ining Escrow Funds to Comc~ica until thc Trust and Comcrica issue ~rittcn instructions to Eccrow Agent advioing Escrow Agcnt Ecgarding thc manner in which ~ny---ouch remainder of the Eccrowed--pundo arc to bc dioburocd. and the City pursuant to written instructions of ~he Trust and the..Citv. 5. The following provisions shall control with respect EO the rights, duties, liabilities, privileges and immunities of Escrow Agent: (a) Escrow Agent is not a party to, and is not bound by, the Construction Supervision Agreemcnt or any other agreement out of which this escrow may arise. (b) Escrow Agent shall act hereunder as a depository and disbursing agent only, and Escrow Agent shall not be liable for anything which Escrow Agent may do or refrain from doing in connection herewith except for Escrow Agent's own gross negligence or willful misconduct. Under no circumstances shall Eocrow Agent be recponsible for the genuineness, validity, legality or negotiability of any instruments constituting the subject matter of this Escrow Agreement nor shall Escrow Agent be charged with no~ice of the contents of any instrument or document deposited hereunder nor shall the terms thereof be considered to be adopted in whole or in Dart by Escrow Agent. (c) Escrow Agent shall be protectcd in acting upon any written notice, request, waiver, consent, certificate, receipt, authorization, power of attorney or other paper or document which Escrow Agen~ in good falZh believes to b~ genuine and what it purports to (d) Escrow Agent may advise with legal counsel in the event of any dispute or question with respect to any of the provisions hereof or Escrow Agent's aut~es hereunder, and - 3 - 11-i3-95 05:32PM FROM JACKSON~& WALKER TO 9-3043570 _ P015/020 Escrow Agent shall incur no liability and shall be fully protected in acting in accordance with the opinion and instructions of such counsel. (e) rn the event off any disagreement between any o£ the parties to this Escrow Agreement resulting in conflicting claims or demands being made in connection with this Escrow AgreementS, ~' in the event tha~ Escrow Agenn, in good faith, is in doubt as to what action Escrow Agent should take hereunder, Escrow Agent may, at Escrow Agent's option, refuse to comply with any claims or demands on Escrow Agent or refuse to take any other action hereunder, so long as such disagreement continues or such doubt exists, and in any such event, Escrow Agent shall not be or become liable in any way or to any party for Escrow Agent's failure or refusal to act, and Escrow A~nt shall be entitled to continue to so refrain from acting until (i) the rights of all parties shall have been fully and finally adjudicated bV a court of competent jurisdiction, or (ii) all differences shall have been adjusted and all doubts resolved by agreement among the Trust, the C~y, Comerica and Wendy'e and E~crow Agent shall have been notified thereof in writing signed by the Trust, the City, Comerica and Wendy's. In this regard, should any controversy arise peruainin~ to the ownership or right to receive Lhe Escrowed Funds, Escrow Agent shall have the right to institute a Bill of Interpleader in any court of competent jurisdiction to determine the rights of any parties claiming an interest therein. Escrow Agent shall have a prior lien upon the /scrowed Fund~ for all reasonable expenses, charges and attorneys' fees incurred by Escrow Agent incident to any Bill of Interpleader. The rights of Escrow Agent under this paragraph are cumulative of all onher rigbEg which 5scrow Agent may have by law or otherwise. (f) Except for any expenses, charges or attorneys' fees incurred by Escrow Agent in connection with any Bill. of Interpleader, E~crow Agent shall not make any charge for EscrOw Agent's services pursuant to this Escrow Agreement. (g) Jay 8. Turner, P.C. shall have the right to resign as Escrow Agent hereunder at any time by giving 30 calendar days prior written notice o~ such resignation to the Trust, the City, Comerica and Wendy's. In the event that Jay S. Turner, P.C. shall at any time fail or refuse to serve or shall resign a~ Escrow Agent hereunder, or if any of the Trust, the City, Comerica or Wendy's shall at any time elect by written notice to the other parties to remove Jay S. Turner, P.C. as Escrow Ag~x~ h~L~unde~', the~ Wendy's shall have the right to designate a successor Escrow Agent, subject to the prior written approval of the Trust, the City and Comerica, which approval shall not be unreasonably withheld. If any successor Escrow Agent hereunder shall at any time fail or refuse to act a~ E~crow Agent, ~ ~ha]] be rern~ve~ by any 1i-13-95 G5:32PM FROM JACKSON & WALKER TO 9-3043578 P016/020 party hereto in accordance with the provisions hereof, then a further successor shall be selected by Wendy's, subject to the prior written approval of the Trust, the City and Comerica, as aforesaid. 6. Any notice or demand required to be given or to be served upon any party hereunder must be in writing, may be delivered by certified mail, r~urn receipt requested, and shall be deemed to have been given and received when a certified letter, return receipt requested, containing such notice or demand, properly a~ressed, with postage prepaid, is deposited in the United States mail. If given otherwise than by certified mail, return receipt requested, ~ notice or demand sha~l be deemed to have been given when delivered to or received by the party to whom addressed. Such notices or demands shall be given to the parties hereto at the fo~iowin~ addre~se~: If tO the Trust: The Parks of Coppel! Trust ~2221 Merit Drive, Suite 1750 Dallas, Texas 75251-2252 Attn: Marry M. MarCrave, Trustee If to the City: The City of Coppell, Texas 255 Parkway Boulevard Coppe%%, Texas 75019 Attn: Jim Witt, City Manager If to Comerica: Comerica Bank-Texas P. O. Box ~50282 Mail Code 6518 Dallas, Texas 7B2~5-0282 Attn: Adena Nichols, Vice President If ~o Wendy's: wendy's International, Inc. P. O. Box 256 4288 West Dublin-Granville Road Dal!a~, Texa~ ~3517 Attn: Legal Department If no E~uz'uw A~ent: Jay S. Turner, P.C. Chicago Title Insurance Company 598 Denton Tap Road, Suite 106 Coppell, Texa~ 7~19 - 5 - 11-13-95 05:32PM FROM JACKSON & WALKER TO 9-3043570 P017/020 Attn: Jay S. Turner, President Any party hereto may at any time, by giving written notice by certified mail, return receipt requested, to the other parties h~to, designate any other address in substitution of the foregoing address to which such notices or demands shall be given. 7. This Escrow Agreemen~ shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns; provided, however, that in no event shall EscrowAgent be obligated to deal with any party with respect to this Escrow Agreement other than the Trust, the City, Comerica and Wendy's. EXECUTED as of the day and year first above written. T~UST: The Parks of Coppoll Trust ~irry M. Hargrave, Trustee CITY: City of Coppell, Texas By jim wiz~, City Manager COMERICA: Comerica Bank-Texas By Adena Nichols, Vice President !1-13-95 05:32PM ~ROM JACKSON & WALKER TO 9-3043570 P018/020 WENDY'S wendy's International, Inc. By Name Title By Name Title ESCROW AGENT: Jay S. Turner, P.C. By Jay S. Turner, President - 7 - 11-13-95 05:32PM FROM 3ACi(SON & WALKER TO 9-3043570 ,,. P015/020 Schedule 1 REQUEST FOR ESC__ROW DISBURSEMENT TO: Jay S. Turner, P.C. 598 Denton Tap Road, Suite 106 Coppell. Texas 75019 Attn: Jay S. Turner, President 1. Pursuant to that certain East-West Public Road Escrow Agreement (the "Escrow Agreement"), dated October 26 November_ 15, 1995, among The Parks of Coppell Trust (the "Trus~"), the city 6f Coppell, Texas (the "City" ) , Comerica Bank-Texas ("Comerica") , Wendy's International, Inc. ("wendy's") and Jay S. Turner, P.C. ("Escrow Agent"), Wendy's hereby requests a di~bu~m~r~ in th~ amount of $ to pay the costs oE labor and materials incurred with respect' to the construction of the East-West Public Road and/or the Water Li~e. 2- As Annex A, Wendy'~ ha~ provided herewith~ (i) itemized statements, bills or invoices for labor and materials utilized in connection with the construction of the improvements described in paragraph i of nhis Reques~ ~or Escrow Disbursement, ir~ support of the disbursement requested in paragraph 1 of this Request for Escrow Disbursement; and (ii) lien waivers or releases covering labor or materials funded by the preceding disbursement- 3. Wendy'~ has provided herewith, as Annex ~. a certificate executed by Tim West which sets forth: (i) the portion of the improvements described in paragraph 1 of this Request for Escrow Disbursemen~ that have been completed; (ii) a statement that labor and materials covered by this Request for Escrow Disbursement have been Derformed and/or are in ~lace; and (iii) the aggregate amount of disbursements from the Escr0wed Funds that have been advanced to Wendy's to date. 4. Wendy's hereby certifies that: (i} to the best of Wendy's knowledge, the statements made in this Request for Escrow Disbursement and any documents submitted herewiLh and identified herein are true, correct and complete in all material respects; and (ii).al! previous disbursements under the Escrow Agreement have been applied in payment of the obligations set forth in any prior Request for Escrow Disbursement delivered to Escrow Agent. 5. Concurrently herewith, Wendy's has delivered to the Trust, the City and Comerlea true, correct and complete copies of this Request for Escrow Disbursement together with Annexes A and - 8 11-13-95 05:32PM FROM JACKSON & WALKER TO 9-3043570 _ P020/020 attached hereto. Unless Escrow Agent receives written objection from the Trust, the City or Comerica to the disbursement requested hereby within seven calendar days after the Trust's, the City's and Comerica's receipt hereof, in accordance with paragraph 3 of the EscrowAgreement, Escrow Agent ~ ~n~tructed to disburse to Wendy's the total amount set forth in paragraph 1 of this Request for Escrow Disbursement. DATED WENDY'$ INTERNATIONAL, INC. By Name Title The Parks of Coppoll Trust 12221 Merit Drive, Suite 1750 Dallas, Texas 75251-2252 Attn: Harry M. Hargrave, Trustee The City of Coppoll, Texas 255 Parkway Boulevard Coppell, Texam 75019 Attn: Jim Witt, City Manager Comerica Bank-Texas P. O. BOx 650282 Mail Code 6518 Dallas, Texas 75265-0282 Attn: Adena Nichols, Vice president i~ {D~'~ ~6T';5,n I ~D RA4DId,367'T5,02/D - 9 1-1-1.3-95 %5:32PM FROM JACKSO!z-a. WALKER TO 9-3043570 -~ P001/020 JACKSON & WALKER, L.L.P. 901 Main Street Suite 6OOO Dallaa, Texas 75202 (2x4) 953-6ooo FACSIMILE (214)953-5822, (214)953-5~23 (214)953-570t, (214)953-5704 FACSI1MILE - DISTRIBUTION LIST OTHER LOCATIONS Fn,~ Worth. Houston, Saa Antonio Date:-//-' FROM: Numbor of page~ including cover .qheet: ~,~ ~). NAME /f{tv', CO -~..5-/.~' : COMPANY NAME Client/Matter No.: Timekeeper ID: This facsimite is mtemde~ only for the t~e of the addp..ss~. If the ~dmsr~ of this facsimile is a client or agent tbr one of our clients, you axe furrier savisxl that ~ae facsimile enetains legally privileged and confidential intbrmafion wtdch we int~ndexi to send to the addressee only. In any event, if you axe not the intended recipient of ~e facsimile. you axe hereby notified that you have received tiffs facsimile inadvertently and in error. Any review, di~mimstion, distribution of copyhag of this facsLmlte is strictly prohibited. If you have received this facsimile in error, please immediately notify us by tMephone and retxh-I the original fac..~imile tO tt~ at the addre,~ above via the United Suites Postal Service. We will reimburse any costs you incuz in notifying as and in returning the facsimile Io us. ...... / aqx ...... . .... Please call (214) 953-g114~ if you do not receive all pages. _ FACSIMILE - INTEROFFICE USE 1_00 6 ,q' 1, l 0 No. of Pages: Date: