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Certificate of Deposit, which will be renewed annually during the
<br />term of this Escrow Agreement. Interest earned on the escrow fund
<br />shall be paid directly to Seller.
<br />2. Seller shall perform, or cause to be performed, at no cost
<br />or expense to Wendy's or the City or any of their successors and
<br />assigns, any soils analysis, soil or ground water monitoring,
<br />decontamination, or other related work determined to be necessary by
<br />Wendy's or the Regional Water Quality Control Board, San Fransisco
<br />Bay region, or any other governmental authority, as a result of the
<br />discharge of hydrocarbons onto, into or under the real estate.
<br />Notwithstanding the preceding sentence, however, Seller's liability
<br />shall be limited to the amount of the escrow fund.
<br />3. Seller hereby indemnifies and holds Wendy's, its officers,
<br />directors, employees and agents, and the City, its officers,
<br />officials, directors, employees and agents, harmless from and
<br />against any and all demands, claims, actions or causes of action,
<br />losses, damages, liabilities, costs and expenses (including, without
<br />limitation, reasonable attorney's fees) (hereinafter collectively
<br />"Claims") directly or indirectly arising out of or in connection
<br />with the discharge of hydrocarbons from the tanks. Notwithstanding
<br />the preceding sentence, however, Seller's liability shall be limited
<br />to the amount of the escrow fund. Seller, Wendy's and the City
<br />acknowledge and agree that the intention of this Escrow Agreement is
<br />to make Seller responsible for any assessment or curative actions
<br />(up to the amount of the escrow fund) required to be undertaken in
<br />connection with the removal of the tanks or the leakage or spillage
<br />of hydrocarbons from the tanks onto or into the real estate.
<br />4. In the event Wendy's or the City becomes aware of a Claim,
<br />Wendy's or the City shall notify Seller and the City or Wendy's (as
<br />the case may be) in the manner hereinafter set forth. Seller shall
<br />immediately commence with, and diligently pursue, any assessment,
<br />monitoring, decontamination or other related work determined to be
<br />necessary by Wendy's or any governmental authority having
<br />jurisdiction. In the event Seller fails to perform such assessment,
<br />monitoring, decontamination or other related work, Wendy's or the
<br />City shall have the right, but not the obligation, at Seller's cost
<br />and expense, to take such actions on behalf of Seller. If Wendy's
<br />or the City undertakes such actions, any and all costs and expenses
<br />incurred by Wendy's or the City, up to the amount of the escrow
<br />fund, shall be forthwith due and payable to Wendy's or the City (as
<br />the case may be) by Seller. In the event Wendy's or the City does
<br />not receive payment from Seller within thirty (30) days after
<br />Wendy's or the City gives notice in the manner hereinafter set
<br />forth, Wendy's or the City shall have the right to receive
<br />reimbursement from the escrow fund. In such event, (i) Wendy's
<br />shall have and is hereby irrevocably granted the right to be
<br />immediately reimbursed from the escrow fund, and (ii) the City shall
<br />notify Wendy's and Seller in writing of the amount due to the City
<br />from Seller, and that such amount has not been paid within thirty
<br />(30) days after the City has given notice. Upon Seller's failure to
<br />reimburse Wendy's within the time period set forth above, or upon
<br />Wendy's receipt of such written demand from the City, Wendy's shall
<br />immediately take the necessary action to withdraw immediately
<br />available federal funds from the Certificate of Deposit in an amount
<br />sufficient to reimburse Wendy's and/or the City in full for the
<br />amount of all Claims incurred by Wendy's or amounts demanded by the
<br />City. If there are insufficient funds to reimburse Wendy's and the
<br />City entirely for the amounts claimed as due, then Wendy's shall
<br />receive its reimbursement and reimburse the City from the entire
<br />amount of funds available, with the proceeds allocated between
<br />Wendy's and the City prorated based on the amount claimed as due by
<br />each party. If the amount claimed as due by Wendy's and the City is
<br />less than the entire escrow fund, any remaining funds shall continue
<br />to be held in a Certificate of Deposit (to the extent available)
<br />pursuant to all of the provisions of this Escrow Agreement. In the
<br />event Seller performs the assessment, monitering, decontamination or
<br />other related work, Seller shall give written notice of the same to
<br />Wendy's and the City, together with copies of all invoices and
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