Exhibit 10.6
CONTROL ACCOUNT AGREEMENT
(“Agreement”)
This
Agreement is dated as of August 9, 2005, by and among BANK OF
AMERICA, N.A. , successor by merger to Fleet National Bank, a
national banking association organized and existing under the laws
of the United States of America , (“Bank”),
CORPORATE REALTY INCOME FUND I, L.P. (“Company”)
and BANK OF AMERICA, N.A. , in its capacity as a Lender and
as Agent for itself and Lenders (“Agent”).
This
Agreement refers and applies to the deposit account established by
Company at Bank (the “Account”) and listed on Schedule
1 hereto, which is incorporated herein and made a part
hereof. Furthermore, this Agreement supplements, rather than
replaces, Bank’s account agreement, terms and conditions and
other standard documentation in effect from time to time with
respect to the Account or services provided in connection with the
Account (“Account Documentation”), which Account
Documentation shall continue to apply to the Account and such
services, and the respective rights, powers, duties, obligations,
liabilities and responsibilities of the parties thereto and hereto,
in all cases only to the extent not conflicting with the provisions
of this Agreement; however, in the event of any such conflict, the
provisions of this Agreement shall control.
1. Bank
is advised that Agent and Lenders (as such term is defined in the
Loan Agreement [“Loan Agreement” is defined below]) are
making, have made or may in the future make loans in accordance
with an Amended and Restated Loan Agreement dated as of October 12,
2000 (as amended by that certain First Amendment to Amended and
Restated Loan Agreement of even date herewith and as the same may
further be amended, supplemented or otherwise modified from time to
time, the “Loan Agreement”) among Agent, Lenders party
thereto from time to time and Company. Pursuant to the terms
of the Loan Agreement and other Loan Documents (as such term is
defined in the Loan Agreement), Company has granted to Agent, for
itself and the benefit of Lenders, a first priority lien on and
security interest in, among other things, the Account, all cash,
funds, items, instruments, investments, securities and/or any other
amounts on deposit from time to time therein and all proceeds
thereof (the foregoing being, “Funds”). Company
hereby affirms that it has granted and/or grants such lien and
security interest to Agent, for itself and the benefit of Lenders,
and Bank hereby acknowledges Agent’s, for itself and the
benefit of Lenders, first priority lien and security
interest.
2. Agent,
for itself and the benefit of Lenders, shall have sole dominion and
control over the Account and Funds, and Company hereby agrees and
confirms that it has no dominion or control over the Account or
Funds and further disclaims any right or ability of any nature to
control or otherwise direct or make any claim against the Account
or Funds except to the limited extent expressly permitted by Agent
under this Agreement. Bank shall honor all withdrawal,
payment, transfer or other fund disposition or other instructions
(collectively, “Instructions”) received from Agent
concerning the Account and Funds. Company agrees that Bank
shall honor all Instructions received from Agent concerning the
Account and/or Funds without any action or further consent by
Company and Bank agrees to comply with all Instructions of Agent
and to take such actions as shall from time to time be specified by
Agent with respect to the Account and/or Funds.
3. Company
and Bank agree that Company shall have no right to close any
Account or, except as otherwise permitted in Section 4 below, issue
Instructions or any other right or ability to access or withdraw or
transfer funds from or with respect to the Account or Funds without
Agent’s prior written consent with respect thereto.
Bank has not and will not agree with Company or any third party to
comply with instructions or other directions concerning the Account
and/or Funds other than as set forth in this Agreement.
4. Until
further written notice from Agent, which Agent may only deliver (i)
upon the occurrence of a monetary default; provided, however, such
notice will be revoked by Agent upon the curing of such monetary
default and/or (ii) during the continuance of an Event of Default
(as defined in the Loan Agreement), Agent hereby directs Bank to,
and Agent and Bank hereby agree that, Bank shall honor the
following standing Instructions: all available funds in the Account
will be made available for draft or wire to the order of Company in
accordance with Bank’s customary practices. Company,
Bank and Agent agree that upon Receipt (as defined below) of
written notice from Agent altering, modifying, amending, revoking
or terminating such standing Instructions, Bank shall immediately
comply with such written notice and shall immediately cease
complying with the standing Instructions set forth
above.
5. Notwithstanding
anything to the contrary in this Agreement, Bank hereby waives any
and all rights of setoff, banker’s lien and/or other like or
similar rights it may now have or hereafter acquire against or with
respect to each of the Account and the Funds, except with respect
to (i) any returned or uncollected Funds originally deposited into
an Account to the extent that Company or Agent or any Lender
received value for such Funds, or (ii) Bank’s customary
service charges that are directly and solely related to such
Account. Company agrees to pay the charges of Bank in effect
from time to time for the performance of the services set forth in
this Agreement and for any other charges in connection with this
Agreement or the Account. Bank’s charges shall be
billed directly to Company in accordance with its normal
practice. Except as expressly provided for elsewhere in this
Agreement, none of Agent or
