Exhibit 10.104
AMENDED AND RESTATED ACCOUNT CONTROL AGREEMENT
THIS AMENDED AND RESTATED ACCOUNT CONTROL AGREEMENT (this "Agreement")
is made effective as of October 15, 2002, by and among BANK ONE, NA ("Bank"),
GMAC COMMERCIAL MORTGAGE CORPORATION, a California corporation (together with
its successors and assigns, "Lender"), and CAPITAL SENIOR LIVING A, INC., a
Delaware corporation ("Borrower").
RECITALS:
A. Borrower, by its Amended and Restated Promissory Note in the
original principal amount of $5,560,000.00 dated June 13, 2002, given to Lender,
as amended by that certain First Amendment to Amended and Restated Promissory
Note dated as of October 15, 2002, by and between Borrower and Lender
(collectively, the "Note"), is indebted to Lender in the principal sum of
$5,389,815.22 as of the date hereof in lawful money of the United States of
America, with interest thereon as set forth in the Note (such indebtedness and
interest being referred to as the "Loan"). The Loan is further evidenced by that
certain Loan Agreement dated August 15, 2000, by and between Borrower and
Lender, as amended by that certain Loan Modification Agreement dated as of
October 15, 2002, by and between Borrower, Lender and Capital Senior Living
Corporation, a Delaware corporation (collectively, the "Loan Agreement").
B. The Loan is secured by, among other things, that certain Mortgage
and Security Agreement dated August 15, 2000, by and between Borrower and Lender
and recorded with the Register of Deeds of Sedgwick County, Kansas in Official
Records Film 2087, Page 1243, as re-recorded in Film 2096, Page 0075 and again
re-recorded in Film 2112, Page 1270, as amended by that certain
Cross-Collateralization, Cross-Default and Mortgage Modification Agreement dated
as of October 15, 2002, by and between Borrower and Lender (collectively, the
"Security Instrument"), which grants to Lender, among other things, a first lien
on certain real property more particularly described therein (the "Property"),
located in Wichita, Sedgwick County, Kansas, upon which Borrower and its
affiliate operate a senior housing facility (the "Facility").
C. As additional security for repayment of the Loan, by that certain
Account Control Agreement dated as of June 13, 2002, by and among Lender,
Borrower and Bank (the "Original Agreement"), Lender required that Borrower (1)
provide certain Cash Collateral (described below) into a Deposit Account
(described below) separately established by Lender with the Bank for such
purpose, (2) grant to Lender a lien on and security interest in the Deposit
Account into which Borrower deposits such Cash Collateral, and (3) provide that
such Deposit Account will be maintained for the benefit of Lender and
administered in accordance with the terms of this Agreement.
D. Borrower has requested that Lender modify certain terms of the
Original Agreement, and Lender as agreed to such modifications, subject to the
terms and conditions contained in this Agreement.
E. The Borrower, the Bank and the Lender are entering into this
Agreement to amend and restate the Original Agreement and to provide for the
control of the Deposit Account referred to above and to perfect the pledge,
assignment, security interest and lien of the Lender in such Deposit Account and
all cash (including the Cash Collateral), securities or other financial assets
at any time on deposit to, carried or held in or for the benefit of, such
Deposit Account.
AGREEMENT:
NOW, THEREFORE, in consideration of the mutual promises contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree that the Original Agreement is hereby amended
and restated as follows:
1. Defined Terms.
(a) As used herein, the following capitalized terms have the respective
meanings set forth below:
(i) "Actual Management Fees" has the meaning given to
that term in the Loan Agreement.
(ii) "Business Day" means any day other than a Saturday,
Sunday or any day on which commercial banks in the
Commonwealth of Pennsylvania or in the state where
the Deposit Account is located are authorized or
required to close.
(iii) "Cash Collateral" means the principal sum of
$3,389,815.22 provided by or on behalf of Borrower on
or prior to the date hereof, as such principal sum
may be reduced pursuant to the provisions of Sections
5(a) and 5(b) hereof.
(iv) "Debt Service Coverage Ratio" means the "Debt Service
Coverage Ratio," as that term is defined in the Loan
Agreement, for the Loan and all Related Loans,
calculated based on (A) the preceding three (3) month
period, (B) Actual Management Fees, and (C) the
required debt service on the Loan, the Related Loans,
and all other debts and obligations of Borrower and
its affiliate Capital Senior Living ILM-B, Inc., a
Delaware corporation.
(v) "Deposit Account" has the meaning set forth in
Section 2(a) hereof.
(vi) "Event of Default" means any Event of Default under
the Loan Documents, as such term is defined in the
Loan Documents.
(vii) "Facility" has the meaning set forth in the Recitals
hereto.
(viii) "Loan" has the meaning set forth in the Recitals
hereto.
2A
(ix) "Loan Agreement" has the meaning set forth in the
Recitals hereto.
(x) "Loan Documents" has the meaning set forth in the
Security Instrument.
(xi) "Note" has the meaning set forth in the Recitals
hereto.
(xii) "Payment Due Date" means the first day of July 1,
2002, and the first day of each and every calendar
month thereafter until the Loan is paid in full.
(xiii) "Property" has the meaning set forth in the Recitals
hereto.
(xiv) "Related Loans" has the meaning given to that term in
the Loan Agreement.
(xv) "Security Instrument" has the meaning set forth in
the Recitals hereto.
(b) All terms used but not otherwise defined in this Agreement shall
have the same defined meanings as set forth in the Loan Agreement, unless the
context otherwise requires.
2. Deposit Account.
(a) Borrower has caused Bank to establish and maintain a depository
account, at its branch located in Dallas, Texas for the benefit of Lender and
Borrower as set forth herein, that bears account number 636253023 and is
designated "Capital Senior Living A, Inc. for the benefit of GMAC Commercial
Mortgage Corporation, as lender" (such account, all funds at any time on deposit
therein and any proceeds, replacements or substitutions of such account or funds
therein, are referred to herein as the "Deposit Account"). The Deposit Account
will be maintained for the purpose of disbursing sums on deposit therein in
accordance with this Agreement. The parties hereto agree that the Deposit
Account is a "deposit account" within the meaning of Article 9 of the Uniform
Commercial Code of the State of Texas (the "State").
(b) Bank and Borrower hereby represent and warrant to Lender that (i)
the Deposit Account has been established as recited above, and (ii) except for
the claims and interest of Lender and Borrower in the Deposit Account (subject
to any claim in favor of Bank permitted under Section 3 hereof), Bank and
Borrower do not know of any claim to or interest in the Deposit Account.
(c) Borrower acknowledges and agrees that neither Borrower (except to
the extent contemplated by Sections 4, 5 and 6) nor any other party claiming on
behalf of, or through, Borrower, shall have any right, title or interest,
whether express or implied, to withdraw or make use of any amounts from the
Deposit Account.
3A
(d) Borrower and Lender agree all sums in the Deposit Account shall be
held by Bank in an interest bearing account, if allowed by law, and any interest
earned on such sums shall be added to the then existing balance of the Deposit
Account and shall be disbursed in accordance with the provisions of this
Agreement. Lender and Bank shall not be responsible for any losses resulting
from investment of sums in the Deposit Account or from obtaining any specific
level or percentage of earnings on such investment. Borrower shall pay all costs
and expenses of Bank in the establishment and maintenance of the Deposit
Account.
(e) Prior to the date of this Agreement, Borrower has deposited the
amount of the Cash Collateral into the Deposit Account.
3. Bank Obligations with respect to Deposit Account.
(a) Bank agrees to establish and maintain the Deposit Account as
contemplated by this Agreement and agrees not to commingle the amounts held in,
or designated for deposit in, the Deposit Account with any other amounts held on
behalf of Lender, Borrower or any other party. Bank and Borrower hereby
acknowledge the security interests granted to Lender by Borrower in the Deposit
Account and all cash, securities and other financial assets at any time on
deposit to, carried or held in or for the benefit of, the Deposit Account. Bank
acknowledges that all amounts held in the Deposit Account are for the benefit
and account of Lender and agrees not to make disbursements from or debits to the
Deposit Account other than in accordance with this Agreement. Bank waives any
rights to offset any claim it may have against the funds held in the Deposit
Account.
(b) The parties agree that items deposited in the Deposit Account shall
be deemed to bear the valid and legally binding endorsement of the payee and to
comply with all of Bank's requirements for the supplying of missing
endorsements, now or hereafter in effect. As between Borrower and Lender, any
deposit made by or on behalf of Borrower into the Deposit Account shall be
deemed deposited into the Deposit Account when the funds in respect of such
deposit shall become collected funds.
(c) Bank hereby subordinates all security interests, encumbrances,
claims and, rights of setoff it may have, now or in the future, in, under on or
against the Deposit Account or any funds in the Deposit Account to the security
interest, encumbrances, claims and rights of set-off, if any, in favor of
Lender.
4. Right to Withdraw from Deposit Account; Control of Account.
(a) Except as set forth in Sections 4(b), 5(a), 5(b), 6(b) and 6(c)
below, Borrower shall have no right to withdraw funds from the Deposit Account
and no checks shall be issued or processed with respect to the Deposit Account.
(b) Upon the occurrence and continuance of an Agreement Default
(described below), Lender will have sole dominion and control of the Deposit
Account including, without limitation, the right to withdraw funds from the
Deposit Account and then apply such funds to the Loan. Bank hereby is authorized
to honor all transfer or withdrawal requests from the Deposit Account directed
by Borrower with Lender's written authorization until such time as Bank receives
written notice from Lender that an Agreement Default has occurred and has had a
4A
reasonable opportunity to act upon such notice. Upon receipt of such notice from
Lender, Bank will comply with all instructions originated by Lender regarding
the Deposit Account and any moneys on deposit therein without any further
consent of Borrower or Bank.
5. Partial Release of Cash Collateral.
(a) At such time, either on or after December 31, 2002, that the Debt
Service Coverage Ratio is greater than or equal to 1.15 to 1.0, the required
Cash Collateral will be reduced to the principal sum of $2,694,907.61.
(b) At such time, either on or after June 30, 2003, that the Debt
Service Coverage Ratio is greater than or equal to 1.25 to 1.0, the required
Cash Collateral will be reduced to the principal sum of $2,000,000.00.
6. Termination of Agreement.
(a) Borrower may not terminate this Agreement for any reason without
Lender's prior written consent. Bank, acting alone, may terminate this Agreement
and close the Deposit Account at any time and for any reason by written notice
delivered to Borrower and Lender not less than thirty (30) days prior to the
effective termination date. Lender, acting alone, may terminate this Agreement
at any time by written notice delivered to Borrower and Bank. If Bank so
terminates this Agreement or if Lender so terminates this Agreement but requires
that a Deposit Account with a different depository be established, Lender shall
select a new depository to replace Bank, and thereupon Lender and Borrower shall
enter into a new deposit account arrangement with such depository in form and
substance substantially similar to this Agreement. Bank hereby agrees that it
shall promptly take all reasonable action necessary to facilitate the transfer
of any funds held in the Deposit Account to the replacement depository selected
by Lender. Except as specifically provided in this Section 6, Bank agrees that
Bank shall not close the Deposit Account during the term of this Agreement.
(b) Unless terminated in accordance with Section 6(a), this Agreement
shall terminate upon repayment in full of the Loan and the balance then
remaining in the Deposit Account, if any, shall be disbursed to Borrower.
(c) Upon termination of this Agreement by Lender pursuant to Section
6(a) where Lender does not require the re-establishment of a Deposit Account
with another depository or upon termination of this Agreement pursuant to
Section 6(b), the funds remaining in the Deposit Account shall be disbursed to
Borrower after deducting all outstanding charges or fees due to Bank or Lender
in connection with this Agreement.
7. Fees and Expenses. Bank agrees to look solely to Borrower for
payment of its fees in connection with its maintenance of the Deposit Account
and services hereunder, and Borrower agrees to pay such fees to Bank on demand
therefor; provided, however, that the fees which Bank may charge to Borrower
shall not exceed the fees and charges customarily charged by Bank to its
customers with respect to the customary and standard maintenance of a Deposit
Account. Borrower acknowledges and agrees that it solely shall be, and at all
times remains, liable to Bank and Lender for all normal and customary fees,
charges, costs and expenses in connection with the Deposit Account, this
Agreement and the enforcement hereof, including without limitation the
5A
commercially reasonable fees and expenses of outside legal counsel to Bank and
Lender as needed to enforce performance of this Agreement. In the event Borrower
fails or refuses to timely pay Bank's fees, charges, costs and expenses as set
forth herein, Bank may debit any of Borrower's other accounts at Bank for such
amounts.
8. Funds in Deposit Account as Security for the Loan; Grant of Security
Interest. As security for full payment of the Loan and timely performance of
Borrower's obligations under the Note, the Security Instrument, the Loan
Documents, and this Agreement, Borrower hereby pledges, transfers and assigns to
Lender, and grants to Lender a continuing security interest in and to the
Deposit Account, all moneys deposited therein from time to time, and all profits
and proceeds thereof. Borrower agrees to execute, acknowledge, deliver, file or
do, at its sole cost and expense, all other acts, assignments, notices,
agreements or other instruments as Lender may reasonably require in order to
perfect the foregoing security interest, pledge and assignment or otherwise to
fully effectuate the rights granted to Lender by this Section and authorizes
Lender to file financing statements in connection therewith. This Agreement also
constitutes a "security agreement" within the meaning of Article 9 of the
Uniform Commercial Code as adopted by the State of Texas.
9. Default.
(a) Borrower's failure to timely and fully perform its obligations
under this Agreement after written notice thereof provided by Lender to Borrower
and thereafter expiration of a thirty (30) day cure period shall constitute a
default under this Agreement ("Agreement Default") and the occurrence and
continuance of an Event of Default under and as defined in the Note, the
Security Instrument or any of the Loan Documents shall constitute an automatic
Agreement Default.
(b) Upon the occurrence and continuance of an Agreement Default, Lender
will have sole dominion and control of the Deposit Account and the right to
withdraw and apply funds from the Deposit Account to payment of any and all
debts, liabilities and obligations of Borrower to Lender pursuant to or in
connection with the Note, the Security Instrument, the Loan Documents and this
Agreement, in such order, proportion and priority as Lender may determine in its
sole discretion. Lender's right to withdraw and apply funds in the Deposit
Account shall be in addition to all other rights and remedies provided to Lender
under this Agreement, the Note, the Security Instrument, and the Loan Documents
and at law or in equity.
(c) In addition to all rights and remedies available to Lender by law
or in equity or pursuant to the terms of the Note, the Security Instrument or
the Loan Documents, Lender may convert the maintenance and administration of the
Deposit Account into a "hard lockbox account" upon the occurrence and
continuance of an Agreement Default in accordance with Section 10 of this
Agreement.
10. Conversion into Hard Lockbox.
(a) If Lender converts the Deposit Account into a "hard lockbox
account," pursuant to Section 9(c) above, Lender, on each Payment Due Date, will
direct Bank to transfer funds from the Deposit Account, and Bank shall comply
6A
with such instructions to the extent of collected funds available therein, to
the following parties and in the following amounts and order of priority:
(i) to Lender, the amounts required to be deposited
pursuant to the Security Instrument in escrow for the
payment of insurance premiums and Taxes (as defined
in the Mortgage);
(ii) to Lender, the amount of principal and interest due
under the Note; and
(iii) to Lender, the amounts required to be deposited
pursuant to the Loan Agreement or to the Loan
Documents or any other reserves provided for under
the Loan Agreement or the other Loan Documents.
Notwithstanding the foregoing, Borrower acknowledges that the order of priority
for payments from the Deposit Account is recited herein as a convenience only
and does not control over any conflicting requirements set forth in the Note,
the Security Instrument or any of the Loan Documents which Lender will follow in
applying such funds.
(b) Transfers to Lender contemplated by Section 10(a) are to be made by
wire transfer or other electronic transfer of immediately available funds to the
following account of Lender ("Lender Account"):
First Union Bank--Philadelphia
ABA # 031-201-467
Collection and Clearing Account-2100012537715
Reference: GMACCM - #011024215 and Sedgwick Plaza
Attention: Customer Service.
Lender reserves the right to change the Lender Account from time to time upon
written notice from Lender to Borrower and Bank, and thereupon all payments to
Lender shall be remitted to the new Lender Account.
(c) Nothing herein shall obligate Bank to make any transfer
contemplated herein unless sufficient collected funds remain in the Deposit
Account for such transfer, nor shall Bank be obligated to independently
determine the amount of any transfer. Bank shall have no liability to any person
or party as a result of acting on Lender's instructions with regard to any
transfer of funds from the Deposit Account, or for failure to timely act in the
event Lender fails to provide such instructions in a form reasonably acceptable
to Bank.
11. Certain Matters Affecting the Bank.
(a) Bank may rely and shall be protected in acting or refraining from
acting upon any written notice (including, but not limited to, electronically
confirmed facsimiles of such notice) believed by it to be genuine and to have
been signed or presented by the proper party or parties, and Bank shall have no
7A
obligation to review or confirm that actions taken pursuant to such notice in
accordance with this Agreement comply with any other agreement or document.
(b) The duties and obligations of the Bank shall be determined solely
by the express provisions of this Agreement, and, except as expressly set forth
herein, Bank will not be charged with knowledge of any provisions of the Note,
the Security Instrument or any of the other Loan Documents. Bank shall not be
liable except for the performance of its duties and obligations as are
specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Bank.
(c) Bank shall not be liable for any claims, suits, actions, costs,
damages, liabilities, or expense, or for any interruption of services
("Liabilities") in connection with the subject matter of this Agreement, other
than Liabilities caused by the gross negligence or willful or intentional
misconduct of the Bank or any of its affiliates or any director, officer,
employee or agent of any of them. In no event will the Bank be liable for any
lost profits or for any incidental, special, consequential or punitive damages
whether or not the Bank knew of the possibility or likelihood of such damages.
Bank's substantial compliance with its standard procedures for provision of the
services required under this Agreement shall be deemed to constitute the
exercise of ordinary care. Lender and Borrower hereby agree to indemnify and
hold harmless the Bank and its affiliates, and the directors, officers,
employees, and agents of any of them, and the successors and assigns of the
Bank, from and against any and all Liabilities asserted against them in
connection with this Agreement, other than those Liabilities caused by (i) the
gross negligence or willful or intentional misconduct of the Bank or such
indemnified party or (ii) material breach of this Agreement by the Bank.
(d) If Borrower becomes subject to a voluntary or involuntary
proceeding under the United States Bankruptcy Code, or if the Bank is otherwise
served with legal process which Bank in good faith believes affects funds
deposited in the Deposit Account, Bank shall have the right to place a hold on
funds deposited in the Deposit Account until such time as Bank receives an
appropriate court order or other assurances satisfactory to Bank establishing
that the funds may continue to be disbursed according to the instructions
contained in this Agreement.
(e) If at any time Bank, in good faith, is in doubt as to the action it
should take under this Agreement, Bank shall have the right (i) to place a hold
on funds in the Deposit Account until such time as Bank receives an appropriate
court order or other assurances satisfactory to Bank as to the disposition of
funds in the Deposit Account, or (ii) to commence, at Borrower's expense, an
interpleader action in any United States District Court in the State and to take
no further action except in accordance with joint instructions from Lender and
Borrower or in accordance with the final order of the court in such action.
(f) Bank agrees that it will provide to Lender, at the address set
forth below, a monthly statement with respect to the Deposit Account setting
forth, among other items, the current balance of funds in the Deposit Account.
12. Payments Set Aside. To the extent amounts are paid into or are
distributed from the Deposit Account to the Lender in accordance with the terms
of this Agreement or the Lender enforces its security interests, or the Lender
exercises its rights of setoff, and such payment or payments or the proceeds of
8A
such enforcement or setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside, recovered from, disgorged
by or are required to be refunded, repaid or otherwise restored to or on behalf
of the Borrower, a trustee, receiver or any other person or entity under any
law, regulation or order, including any bankruptcy law, state or federal law,
common law or equitable cause, then to the extent of any such restoration, the
obligation or part thereof originally intended to be satisfied shall be revived
and continued in full force and effect as if such payment had not been made or
such enforcement or setoff had not occurred.
13. Miscellaneous.
(a) Notices. All notices and other communications under this Agreement
are to be in writing and addressed to each party as set forth below. Default or
demand notices shall be deemed to have been duly given upon the earlier of: (i)
actual receipt; (ii) one (1) Business Day after having been timely deposited for
overnight delivery, fee prepaid, with any reputable overnight courier service,
with a reliable tracking system; or (iii) five (5) Business Days after having
been deposited in any post office or mail depository regularly maintained by the
U.S. Postal Service and sent by certified mail, postage prepaid, return receipt
requested, and in the case of clause (ii) and (iii) irrespective of whether
delivery is accepted. A new address for notice may be established by written
notice to the other; provided, however, that no change of address will be
effective until written notice thereof actually is received by the party to whom
such address change is sent. Notice to outside counsel or parties other than the
named Borrower and Lender, now or hereafter designated by a party as entitled to
notice, are for convenience only and are not required for notice to a party to
be effective in accordance with this Section. Notice to outside counsel
designated by a party entitled to receive notice is for convenience only and is
not required for notice to a party to be effective in accordance with this
Section.
Address for Lender: GMAC Commercial Mortgage Corporation
8333 Douglas Avenue
Suite 1460
Dallas, Texas 75225
Attn.: Lisa M. Lautner
Address for Bank: Bank One, NA
1700 Pacific Avenue, 21st Floor
TX1-2810
Dallas, Texas 75201
Attn.: Jeff A. Etter,
Commercial Real
Estate
Address for Borrower: Capital Senior Living A, Inc.
14160 Dallas Parkway, Suite 300
Dallas, Texas 75240
Attn.: David R. Brickman, Esquire,
Vice President and General Counsel
9A
(b) Entire Agreement; Modification. This Agreement sets forth the
entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes and replaces all prior discussions, representations,
communications and agreements (oral and written) by and among the parties hereto
with respect thereto. This Agreement shall not be modified, supplemented, or
terminated, or any provision hereof waived, except by a written instrument
signed by the party against whom enforcement thereof is sought, and then only to
the extent expressly set forth in such writing.
(c) Binding Effect. This Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and assigns,
whether by voluntary action of the parties or by operation of law.
(d) Unenforceable Provisions. Any provision of this Agreement which is
determined by a governmental body or court of competent jurisdiction to be
invalid, unenforceable or illegal shall be ineffective only to the extent of
such holding and shall not affect the validity, enforceability or legality of
any other provision, nor shall such determination apply in any circumstance or
to any party not controlled by such determination.
(e) Construction of Certain Terms. Defined terms used in this Agreement
may be used interchangeably in singular or plural form, and pronouns cover all
genders. Section headings shall not be used in interpretation of this Agreement;
"herein," "hereof" and "hereunder" and other words of similar import refer to
this Agreement as a whole and not to any particular section, paragraph or other
subdivision; "section" refers to the entire section and not to any particular
subsection, paragraph or other subdivision; and "Agreement" means this original
agreement and all written modifications, supplements, extensions, or
restatements hereof. Reference to days for performance shall mean calendar days
unless Business Days are expressly indicated.
(f) Duplicate Originals; Counterparts. This Agreement may be executed
in any number of duplicate originals, and each duplicate original shall be
deemed to be an original. This Agreement (and each duplicate original) also may
be executed in any number of counterparts, each of which shall be deemed an
original and all of which together shall constitute a fully executed agreement
even though all signatures do not appear on the same document.
(g) Governing Law. This Agreement shall be interpreted and enforced
according to the laws of the State of Texas (without giving effect to its
conflicts of law rules), except with respect to issues relating to the
operations of the Deposit Account or any other account to which funds from the
Deposit Account are transferred, which issues shall be interpreted and enforced
according to the laws of the state where the Deposit Account or such other
account are located.
(h) WAIVER OF JURY TRIAL. EACH OF THE LENDER, BORROWER AND THE BANK
IRREVOCABLY WAIVES ANY AND ALL RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR CLAIM OF ANY NATURE RELATING TO THIS AGREEMENT, ANY
DOCUMENTS EXECUTED IN CONNECTION WITH THIS AGREEMENT OR ANY TRANSACTION
10A
CONTEMPLATED IN ANY OF SUCH DOCUMENTS. THE LENDER, BORROWER AND THE BANK
ACKNOWLEDGE THAT THE FOREGOING WAIVER IS KNOWING AND VOLUNTARY.
(i) Applicable Bank Agreements. The provisions of Bank's Commercial
Account or Treasury Management Agreement and applicable service terms ("Bank
Agreements") governing the operations of the Deposit Account are incorporated to
the extent not inconsistent with the terms and provisions hereof. In the event
of a conflict among the provisions of this Agreement and the provisions of the
Bank Agreements, the provisions of this Agreement shall govern and control.
[REMINDER OF PAGE INTENTIONALLY LEFT BLANK]
11A
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
WITNESS: BORROWER:
Capital Senior Living A, Inc.,
a Delaware corporation
______________________________________ By:/s/ Paul T. Lee (Seal)
---------------------------------
______________________________________ Paul T. Lee, Vice President,
Print Name Finance
12A
WITNESS: BANK:
Bank One, NA
______________________________________ By: /s/ Jeffrey A. Etter
---------------------------------
______________________________________ Name:Jeffrey A. Etter
Print Name -------------------------------
Title: First Vice President
------------------------------
WITNESS: LENDER:
GMAC Commercial Mortgage Corporation,
a California corporation
______________________________________ By: /s/ Lisa M. Lautner (Seal)
---------------------------------
______________________________________ Lisa M. Lautner
Print Name Senior Vice President
13A