EXHIBIT 10.2


	
 

	
 


	
(Space above
 this line reserved for Recorder’s use)

	
 


	
 


	
 

	
 


	
RECORDED
 REQUESTED BY AND

	
 


	
AFTER
 RECORDING RETURN TO:

	
 


	
 

	
 


	
ALSTON &
 BIRD LLP

	
 


	
90 Park
 Avenue

	
 


	
New York,
 New York 10016-1387

	
 


	
Attention:
 BOA–NYC Document

	
 


	
Manager

	
 


	
Servicing
 No.: 3204104

	
 


	
 

	
 


	 

	 





CONSENT AND ASSUMPTION AGREEMENT

WITH RELEASE

[No New Money Is Being Advanced by Lender]


          This
Consent and Assumption Agreement with Release (this “Agreement”) is made
by and among 1334 YORK, LLC, a Delaware limited liability company (“New
Borrower”); SOTHEBY’S, a Delaware corporation (“New Guarantor”);
1334 YORK AVENUE L.P., a Delaware limited partnership; (“Original Borrower”),
Aby Rosen, an individual, and Michael Fuchs, an individual (collectively, “Original
Guarantor”), and BANK OF AMERICA, N.A., a national banking association, as
authorized agent for (i) Wells Fargo Bank, N.A., as Trustee for Banc of America
Commercial Mortgage Inc., Commercial Mortgage Pass-Through Certificates, Series
2005-4, (ii) LaSalle Bank National Association, as Trustee for the Registered
Holders of Banc of America Commercial Mortgage, Inc., Commercial Mortgage
Pass-Through Certificates, Series 2005-5, and (iii) Capital Trust, Inc. (“Lender”),
and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, Inc., a Delaware corporation (“MERS”),
dated as of February 6, 2009 (the “Effective Date”) with reference to
the following agreed-upon facts:


RECITALS


          A.
Original Borrower is presently the owner of certain real property located in
New York County, State of New York, commonly known as 1334 York Avenue, New
York, New York, and more particularly described in Exhibit A
attached hereto and incorporated herein by reference, together with all
improvements, fixtures and personal property located thereon which, with the
above-described real property, are collectively referred to as the “Property.”
The Property is encumbered by a first lien and security interest evidenced by,
among other things, that certain Mortgage and Agreement of Consolidation and
Modification of Mortgage, Assignment of Leases and Rents, and Security
Agreement, dated June 22, 2005, executed by Original Borrower as mortgagor, in
favor of Mortgage Electronic Registration Systems, Inc., as mortgagee and as
nominee of Lender, recorded as Instrument Number CRFN 2005000434391, in the
Official Records of New York County, securing TWO HUNDRED THIRTY FIVE MILLION
and No/100 Dollars ($235,000,000.00) and interest thereon (the “Mortgage”).







Lender’s
interest in the Loan (hereinafter defined) is also evidenced and governed by
that certain Loan Agreement, dated June 22, 2005, between Original Borrower,
Original Guarantor and Lender, as subsequently amended by the certain First
Amendment to Loan Agreement and Other Loan Documents, dated as of September 20,
2005 (the “Loan Agreement”).


          B.
The Mortgage secures, among other things, repayment of a loan (“Loan”)
by Original Borrower evidenced by that certain Consolidated, Amended and
Restated Promissory Note, dated June 22, 2005, in the original principal amount
of $235,000,000.00 made by Original Borrower in favor of Lender, as severed
pursuant to that certain Note Severance and Modification Agreement dated as of
June 22, 2005, and subsequently severed pursuant to that certain Note Severance
and Modification Agreement dated as of September 20, 2005, pursuant to which
such consolidated note severed and split into the following replacement notes:
(i) Replacement Note A-1 in the original principal amount of $110,000,000.00,
made by Original Borrower in favor of Lender (“Note A-1”), (ii)
Replacement Note A-2 in the original principal amount of $100,000,000.00, made
by Original Borrower in favor of Lender (“Note A-2”, collectively with
Note A-1, “Note A”), and (iii) Replacement Note B in the original
principal amount of $25,000,000.00 (“Note B”), made by Original Borrower
in favor of Lender, as each of the same may be assigned, amended, restated,
replaced, extended, renewed, supplemented, severed, split or otherwise modified
from time to time in accordance with the terms and provisions of the Loan
Agreement. References to “Note” herein shall refer to Note A and Note B
collectively. The Mortgage secures performance of all of the monetary and
non-monetary obligations, covenants and agreements contained in the Mortgage and
all other documents executed by Original Borrower in connection with the Loan
or otherwise evidencing, securing or memorializing the Loan or perfecting the
lien or security interest created by the Mortgage (such documents, together
with all other documents identified in the Loan Agreement as Loan Documents and
all substitutions therefor and extensions, renewals and amendments thereof, are
collectively and individually referred to herein as the “Loan Documents”).


          C.
Original Guarantor has guaranteed certain of Original Borrower’s obligations to
Lender in accordance with the Loan Agreement.


          D.
New Guarantor has guaranteed the New Borrower’s obligations to Lender in
accordance with this Agreement.


          E.
Unless Lender consents to the transfer of the Property from Original Borrower
to New Borrower, the Loan Documents entitle Lender to declare an “Event of
Default” as defined in the Loan Documents, to accelerate payment of the balance
due under the Note and to foreclose on the Mortgage. Original Borrower will
sell, transfer, and convey the Property to New Borrower, subject to the terms,
covenants and conditions contained in Loan Documents, provided that (1) New
Borrower assumes the Loan and all of Original Borrower’s obligations under the
Loan Documents, and (2) Lender agrees not to exercise its rights under the
Mortgage to accelerate the unpaid balance of the Note as a result of such
transfer to New Borrower and allows New Borrower to assume the Loan and all of
Original Borrower’s obligations under the Loan Documents.


          F.
Upon the timely and complete satisfaction of the conditions set forth in this
Agreement and the execution of such other documents as Lender may require in
its sole and 


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absolute
discretion, Lender will consent to the transfer of the Property to New
Borrower, allow New Borrower to assume the Loan and the obligations under the
Loan Documents and, subject to Section 13 hereof, release Original
Borrower and Original Guarantor from their obligations under the Loan
Documents.


AGREEMENT


          NOW,
THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties agree as follows:


          1.
Representations, Warranties and Covenants of Lender, New Borrower and
Original Borrower.


          (a)
Lender, New Borrower and Original Borrower agree that as of the Effective Date:



                    (i)
the current outstanding principal balance of (i) Note A-1 is $110,000,000.00,
(ii) Note A-2 is $100,000,000.00 and (ii) Note B is $25,000,000.00; 


                    (ii)
the current effective interest rate of (i) Note A-1 is 5.222476190476190% per
annum, (ii) Note A-2 is 5.222476190476190% per annum and (iii) Note B is
12.662000000000000% per annum;


                    (iii)
the current effective monthly interest installment payment under (i) Note A-1
is $446,811.85, (ii) Note A-2 is $406,192.59 and (iii) Note B is $146,983.33;


                    (iv)
the current effective monthly escrow payment to Lender for taxes on the
Property is $0; 


                    (v)
the current effective monthly escrow payment to Lender for insurance on the
Property is $0; 


                    (vi)
the current effective monthly escrow payment to Lender for Replacement Reserves
is $0;


                    (vii)
all installment payments due under the Note, through February 1, 2009, have
been paid current; 


                    (viii)
there are no defenses or claims of setoffs with respect to any such sums or other
amounts owing under the Note or any other Loan Documents; 


                    (vii)
Lender is the current holder of the Note, the Mortgage and the other Loan
Documents; 


                    (viii)
there exists no payment default of any amount due and owing under the Loan
Documents and no late charges are currently owing thereunder; and 


                    (ix)
there are no currently outstanding default notices issued pursuant to the Loan
Documents.


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          (b)
Lender and New Borrower acknowledge and agree that as of the date hereof, in
accordance with the Loan Documents, the following balances for impounds,
reserves and escrow accounts are on deposit with Lender:


	
 

	
 

	
 


	
(i)

	
Tax Impound

	
$0


	
 

	
 

	
 


	
(ii)

	
Insurance
 Impound

	
$0


	
 

	
 

	
 


	
(iii)

	
Replacement
 Reserve

	
$0


	
 

	
 

	
 


	
(iv)

	
Debt Service
 Reserve

	
$0





          Such
impounds, reserves and escrow accounts and any balance therein are hereby
assigned by Original Borrower to New Borrower.


          (c)
New Borrower further acknowledges that (i) the Note contains a fixed interest
rate and, accordingly, the interest rate does not adjust from time to time
pursuant to the terms set forth in the Note, (ii) the maturity date of the Note
is July 1, 2035 and (iii) the Optional Prepayment Date of the Note is July 1,
2015.


          (d)
New Borrower agrees that unless and until Lender provides an alternative
address for Lender, all Loan payments shall be made to Bank of America, N.A.,
P.O. Box 65585, Charlotte, North Carolina 28265-0585 or via wire transfer to
the Cash Management Account pursuant to Article 10 of the Loan Agreement.


          (e)
New Borrower represents and warrants that to the best of its knowledge: 


                    (i)
at the time of the conveyance of the Property to New Borrower, all outstanding
and due taxes and assessments against the Property shall have been paid;


                    (ii)
all insurance required by the Loan Documents (the “Required Insurance”)
is currently maintained on the Property; and 


                    (iii)
all insurance premiums on the Required Insurance have been paid current. 


          New
Borrower warrants that the Required Insurance will at all times continue in
force and that New Borrower will pay for the same from and after the date the
Property is conveyed to New Borrower.


          (f)
Each of Original Borrower, New Borrower, Original Guarantor and New Guarantor
acknowledge and agree that the execution and delivery of this Agreement and
compliance with the provisions hereof will not conflict with, or constitute a
breach of or a default under, any agreement or other instrument to which it is
a party or by which it is bound or affected. 


          (g)
New Borrower hereby certifies that, upon Closing, the Property shall be
self-managed by New Borrower in accordance with the terms of this Agreement and
the Loan Documents (as modified hereby).


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          (h)
Lender hereby represents that it is duly authorized to enter into this
agreement and that it is has received all required consents and authorizations
from the holders of Note A-1, Note A-2, and Note B. 


          2.
Consent to Transfer; Release of Original Borrower and Original Guarantor.
Subject to satisfaction of all of the following conditions precedent (each of
which shall be deemed satisfied as of the date hereof) and except as expressly
provided herein, Lender consents to the transfer of the Property from Original
Borrower to New Borrower and, subject to Section 13 hereof, releases
Original Borrower and Original Guarantor from their respective obligations
under the Loan Documents.


          (a)
the complete execution and acknowledgment of this Agreement by all of the
parties hereto and the delivery thereof to Lender for recordation concurrent
with Closing (hereinafter defined);


          (b)
the complete execution and delivery to Lender by New Borrower of the following
documents:


                    (i)
IRS form W-9; and 


                    (ii)
such other documents as Lender may require in its sole and absolute discretion;


          (c)
the complete execution and delivery to Lender by New Borrower and New Guarantor
of a New Borrower Certification;


          (d)
the delivery to Lender of satisfactory evidence of the currency of the Required
Insurance;


          (e)
the full release and reconveyance of any other liens or monetary encumbrances
against the Property;


          (f)
the delivery to Lender of a Lender’s policy of title insurance or endorsement,
as Lender may require in its sole and absolute discretion, including a CLTA
111.4 endorsement or the equivalent thereof insuring that the lien of the
Mortgage is unimpaired by the transfer of title to the Property to New
Borrower, the release of Original Borrower or the assumption of the Loan by New
Borrower;


          (g)
Lender’s review and approval of New Borrower’s organizational documents;


          (h)
Lender’s review and approval of a current rent roll and monthly financial
statement with respect to the Property;


          (i)
Lender’s review and approval of opinions of counsel for New Borrower and New
Guarantor with respect to: (i) the existence, validity and organization of New
Borrower as well as the enforceability of this Agreement, the Loan Documents
and all documents or agreements executed herewith as against New Borrower and
New Guarantor, and (ii) the substantive non-consolidation of the New Borrower;


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          (j)
payment to Lender of the assumption fee and all other payments, fees and
expenses required by Section 3 below to be paid at the time of New
Borrower’s acquisition of the Property and the recordation of this Agreement
(the “Closing”) by New Borrower and/or Original Borrower; and


          (k)
such other items as Lender may require in its sole and absolute discretion.


          3.
Assumption Fee; Expenses. As consideration for Lender’s consent to the
transfer of the Property from Original Borrower to New Borrower, New Borrower
covenants and agrees to pay to Lender prior to or at Closing:


          (a)
$2,350,000.00, which represents the assumption fee to be paid to Lender for
consenting to New Borrower’s assumption; and


          (b)
$61,250, which represents Lender’s documentation and Lender’s legal fees.


          4.
New Borrower’s Assumption of Loan and New Guarantor’s Assumption of
Obligation. New Borrower hereby expressly assumes the unpaid balance due
and owing on the Note, together with interest thereon as provided in the Note,
together with all other monetary and non-monetary covenants, agreements and
other obligations under the Note and each and every one of the other Loan
Documents with the same force and effect as if New Borrower had been
specifically named therein as the original maker, borrower, trustor or grantor,
as applicable. New Borrower agrees to pay all Loan installments as they become
due and to observe all obligations of the Note and the other Loan Documents.
The foregoing assumption by New Borrower is absolute and unconditional and is
not subject to any defenses, waivers, claims or offsets, nor may such
assumption be affected or impaired by any agreement, condition, statement or
representation of Original Borrower or any borrower or any failure to perform
the same, and New Borrower hereby relinquishes, waives and releases any and all
such defenses, claims, offsets, and causes of action. New Borrower expressly
agrees that it has read and approved and will comply with and be bound by all
of the terms, conditions and provisions contained in the Note and the other
Loan Documents. New Guarantor hereby expressly assumes all of the Original
Guarantor’s obligations arising from and after the date hereof pursuant to the
Article 4, Section 12.6, Article 13, Article 15 and Article 18 of the Loan
Agreement.


          5.
Modification of Existing Loan Documents. In consideration of the
covenants set forth in this Agreement, the New Borrower and Lender agree as
follows:


          (a)
Except as otherwise expressly and specifically provided herein, the Loan
Documents are hereby modified such that:


	
 

	
 

	
 


	
 

	
(i)

	
Wherever the
 term Borrower appears, it shall mean New Borrower.


	
 

	
 

	
 


	
 

	
(ii)

	
Wherever the
 terms Borrower Principal appears, each shall mean New Guarantor.


	
 

	
 

	
 


	
 

	
(iii)

	
Wherever the
 term Borrower Principal Family Group appears, it shall mean New Guarantor.





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(iv)

	
The
 definition of the term “Management Agreement” shall be deleted and replaced
 with the following: “Management Agreement” means any property management
 agreement entered into with a Manager in accordance with the terms of this
 Agreement.


	
 

	
 

	
 


	
 

	
(v)

	
The
 definition of the term “Manager” shall be deleted and replaced with the
 following: “Manager” means any Person (other than Borrower) which provides
 management services for the Property appointed in accordance with the
 provisions of this Agreement.


	
 

	
 

	
 


	
 

	
(vi)

	
Section
 7.3(c)(C) of the Loan Agreement shall be deleted and replaced with the
 following: (C) the Property shall be managed by a Qualified Manager or
 continue to be self-managed in the manner in which the Property is managed
 immediately prior to such transfer.


	
 

	
 

	
 


	
 

	
(vii)

	
The
 following shall be added as Section 7.3(d) of the Loan Agreement: (d) the
 sale, transfer or issuance of stock in Borrower Principal provided such stock
 is listed on the New York Stock Exchange or such other nationally recognized
 stock exchange.


	
 

	
 

	
 


	
 

	
(viii)

	
Section 4.27
 of the Loan Agreement shall be deleted and replaced with the following: The
 Property is self-managed by the Borrower and there is no management agreement
 currently in place at the Property. The Borrower does not and will not
 receive any compensation for its management duties at the Property during the
 term of the Loan. Borrower shall not, without the prior written consent of
 Lender (which consent shall not be unreasonably withheld) appoint a Manager
 who shall manage the Property pursuant to a Management Agreement


	
 

	
 

	
 


	
 

	
(ix)

	
The
 following line shall be added to the beginning of Section 5.14(a) of the Loan
 Agreement: In the event that Borrower enters into a Management Agreement
 pursuant to Section 5.14(b) or Section 4.27 hereof.


	
 

	
 

	
 


	
 

	
(x)

	
Section
 5.14(b) of the Loan Agreement shall be deleted and replaced with the
 following: If at any time, (i) an Event of Default has occurred and is
 continuing and Lender has accelerated the Loan; (ii) the Optional Prepayment
 Date shall occur, (iii) in the event Borrower has entered into a Management
 Agreement in accordance with this Section 5.14(b) or Section 4.27 hereof and
 Manager shall become insolvent or a debtor in a bankruptcy proceeding, or
 (iv) a material default has occurred and is continuing beyond applicable
 notice and cure periods (if any) under any Management Agreement; Borrower
 shall, at the request of Lender, terminate any existing Management Agreement
 (if applicable) and enter into a Management Agreement with a Qualified
 Manager approved by Lender on terms and conditions satisfactory to Lender, it
 being understood and agreed that the management fee for such replacement
 manager shall 





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not exceed
 then prevailing market rates, and Borrower shall cause the new manager at the
 Property to execute an assignment and subordination of management agreement
 with the Lender on a form customarily used by Lender.


	
 

	
 

	
 


	
 

	
(xi)

	
Section
 5.14(d) of the Loan Agreement shall be deleted and replaced with the
 following: In the event Borrower enters into a Management Agreement pursuant
 to subsection (b) above, Borrower shall not, without the prior written
 consent of Lender (which consent shall not be unreasonably withheld,
 conditioned or delayed): (i) surrender, terminate or cancel the Management
 Agreement or otherwise replace Manager or enter into any other management
 agreement with respect to the Property; (ii) reduce or consent to the
 reduction of the term of the Management Agreement; (iii) increase or consent
 to the increase of the amount of any charges under the Management Agreement;
 or (iv) otherwise modify, change, supplement, alter or amend, or waive or
 release any of its rights and remedies under, the Management Agreement in any
 material respect.


	
 

	
 

	
 


	
 

	
(xii)

	
Section
 6.1(a)(xiii) of the Loan Agreement shall be deleted and replaced with the
 following: fail to file either its own tax returns or a consolidated federal
 income tax return with any Person (unless prohibited or required, as the case
 may be, by applicable Legal Requirements). 


	
 

	
 

	
 


	
 

	
(xiii)

	
In Section
 8.1(a)(i)(C) of the Loan Agreement, the maximum deductible of $100,000 shall
 be changed to $500,000, provided, however, that it shall revert to $100,000
 upon the occurrence of any of the following: (a) New Borrower sells the
 Property, (b) New Guarantor ceases to Control New Borrower and/or the
 Property, or (c) the senior unsecured or equivalent rating of New Guarantor
 shall fall below either (i) in the case of S&P, BB+ or (ii) in the case
 of Moody’s, Ba3. 


	
 

	
 

	
 


	
 

	
(xiv)

	
The notice
 address for Original Borrower and Original Guarantor in Section 16.1 of the
 Loan Agreement shall be deleted and replaced with the following:








	
 

	
 


	
 

	
If to
 Borrower:


	
 

	
 


	
 

	
1334 York,
 LLC


	
 

	
c/o
 Sotheby’s


	
 

	
1334 York
 Avenue


	
 

	
New York,
 New York 10021


	
 

	
Attention:
 Michael L. Gillis


	
 

	
Facsimile
 No.: (212) 894-2094





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with a copy
 to:


	
 

	
 


	
 

	
Stroock
 & Stroock & Lavan LLP


	
 

	
180 Maiden
 Lane


	
 

	
New York,
 New York 10019


	
 

	
Attention:
 Peter G. Koffler, Esq.


	
 

	
Facsimile
 No.: (212) 806-2686


	
 

	
 


	
 

	
If to
 Borrower Principal:


	
 

	
 


	
 

	
Sotheby’s


	
 

	
1334 York
 Avenue


	
 

	
New York,
 New York 10021


	
 

	
Attention:
 Michael L. Gillis


	
 

	
Facsimile
 No.: (212) 894-2094


	
 

	
 


	
 

	
with a copy
 to:


	
 

	
 


	
 

	
Stroock
 & Stroock & Lavan LLP


	
 

	
180 Maiden
 Lane


	
 

	
New York,
 New York 10019


	
 

	
Attention:
 Peter G. Koffler, Esq.


	
 

	
Facsimile
 No.: (212) 806-2686








	
 

	
 

	
 


	
 

	
(xv)

	
The entity
 name “RFR Holding Corp.” as used in Section 20.7 of the Loan Agreement shall be
 deleted therein and replaced with the term “Borrower Principal.”


	
 

	
 

	
 


	
 

	
(xvi)

	
The
 following sentence shall be added to end of Section 20.7 of the Loan
 Agreement: Notwithstanding the foregoing, disclosures required by any federal
 or State securities laws, rules or regulations, as determined by Borrower’s
 or Borrower Principal’s counsel, shall not be subject to the prior written
 approval of Lender.


	
 

	
 

	
 


	
 

	
(xvii)

	
Schedule
 2.2(b) of the Loan Agreement is hereby deleted and replaced with Schedule
 2.2(b) attached hereto.





          6.
Grant of Security Interest; New Financing Statements. New Borrower
hereby grants Lender a security interest in all fixtures and personal property
collateral described in the Mortgage. New Borrower hereby authorizes Lender at
any time and from time to time to file any initial financing statements,
financing statement amendments and continuation statements with or without
signature of New Borrower as authorized by applicable law, with respect to
fixtures and personal property collateral related to the Property and covered
by the security agreement contained in the Mortgage. For purposes of such
filings, New Borrower agrees to furnish any information requested by Lender
promptly upon request by Lender. New Borrower also ratifies its authorization
for Lender to have filed any like initial financing statements, financing
statement amendments or continuation statements if filed prior to the date of
this Agreement. New Borrower hereby irrevocably constitutes and appoints Lender
and any officer, servicer or


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agent of
Lender, with full power of substitution, as its true and lawful
attorneys-in-fact with full irrevocable power and authority in the place and
stead of New Borrower or in New Borrower’s own name to execute in New
Borrower’s name any such documents and to otherwise carry out the purposes of
this Section 5, to the extent that New Borrower’s authorization
above is not sufficient. To the extent permitted by law, New Borrower hereby
ratifies all acts said attorneys-in-fact have lawfully done in the past or
shall lawfully do or cause to be done in the future by virtue hereof. This
power of attorney is a power coupled with an interest and shall be irrevocable.


          7.
Limitation of Consent. Lender’s consent in this Agreement is strictly
limited to the conveyance of the Property from Original Borrower to New
Borrower, and this Agreement shall not constitute a waiver or modification of
any requirement to obtain Lender’s consent to any future transfer of the
Property or any portion thereof or interest therein, nor shall it constitute a
modification of the terms, provisions or requirements of the Loan Documents in
any respect except as expressly provided herein and as modified hereby. New
Borrower specifically acknowledges that (a) any transfer of the Property
or any portion thereof or interest therein by New Borrower shall entitle Lender
to accelerate the Note balance and foreclose the Mortgage, and
(b) Lender’s consent to this Agreement shall not be deemed consent to New
Borrower encumbering the Property with any junior or other financing (except as
expressly permitted by the Loan Documents). New Borrower represents and
warrants that it shall not encumber the Property with junior or other
financing. New Borrower represents and warrants that it will not assume or
become obligated to repay any debt or obligation unrelated to the Loan or to
the operation or management of the Property. The Loan Documents are hereby
ratified and except as expressly modified in this Agreement, the Note and other
Loan Documents remain unmodified and are in full force and effect.


          8.
No Representations of Lender. New Borrower recognizes and agrees that
Lender has made no representation or warranty, either express or implied,
regarding the Property and has no responsibility whatsoever with respect to the
Property, the condition of the Property or the use, occupancy or status of the
Property. To the extent New Borrower has any claims which in any manner relate
to the Property, the condition of the Property, or the use, occupancy or status
of the Property, the same shall not be asserted against Lender, Master
Servicer, Primary Servicer or any of their agents, employees, professional
consultants, affiliated entities, successors or assigns, or asserted as a
defense to any of the Loan Documents.


          9.
Effect of Agreement. Upon the complete and timely satisfaction of the
conditions precedent set forth in Section 2 above, this Agreement
and the other documents being executed concurrently herewith shall be deemed to
form a part of the Loan Documents. This Agreement shall not prejudice any
present or future rights, remedies or powers belonging or accruing to Lender
under the Loan Documents or any document or instrument being executed in
connection herewith, nor shall this Agreement impair the lien of the Mortgage.


          10.
No Effect on Liens or Priority. Nothing in this Agreement shall in any
way release, diminish or affect the first position lien of the Mortgage or any
liens created by, or the agreements or covenants contained in, the Loan
Documents or the first-lien priority of any such liens. New Borrower agrees
that the Note, the Mortgage and the other Loan Documents shall 


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secure all
other sums that may be advanced in the future by Lender pursuant to the terms
of the Loan Documents.


          11.
Original Borrower’s Additional Representations and Warranties. Original
Borrower hereby represents and warrants that: 


          (a)
Original Borrower is the owner of the Property and is duly authorized to
execute, deliver and perform this Agreement; 


          (b)
any court or third-party approvals necessary for Original Borrower to enter
into this Agreement have been obtained; 


          (c)
the entities and/or persons executing this Agreement on behalf of Original
Borrower are duly authorized to execute and deliver this Agreement; 


          (d)
subject to bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors’ rights and remedies
generally, this Agreement and the Loan Documents are in full force and effect
and the transactions contemplated herein and therein constitute valid and
binding obligations enforceable by Lender in accordance with their terms and
have not been modified either orally or in writing;


          (e)
no Event of Default (as defined in the Mortgage) exists, nor to Original
Borrower’s actual knowledge, does any event exist which, as a result of the
passage of time or the expiration of any cure period or both, would constitute
an Event of Default; and


          (f)
all representations and warranties of Original Borrower made herein shall be
true as of the date of this Agreement and Closing and shall survive Closing.


          12.
New Borrower’s Additional Representations and Warranties. New Borrower hereby
represents and warrants that: 


          (a)
New Borrower is duly authorized to execute, deliver and perform this Agreement;



          (b)
any court or third-party approvals necessary for New Borrower to enter into
this Agreement have been obtained; 


          (c)
the entities and/or persons executing this Agreement on behalf of New Borrower
are duly authorized to execute and deliver this Agreement; 


          (d)
this Agreement and the Loan Documents are in full force and effect and the
transactions contemplated herein and therein constitute valid and binding
obligations of New Borrower enforceable by Lender in accordance with their
terms and have not been modified either orally or in writing; 


          (e)
New Borrower’s mailing address for all correspondence and notices is: c/o
Sotheby’s, 1334 York Avenue, New York, New York 10021, Attention: Michael L.
Gillis; 


Capital Markets Servicing Group


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          (f)
to the best of New Borrower’s knowledge, no Event of Default (as defined in the
Mortgage) exists, nor does any event exist which, as a result of the passage of
time or the expiration of any cure period or both, would constitute an Event of
Default; and


          (g)
all representations and warranties referred to herein shall be true as of the
date of this Agreement and Closing and shall survive Closing.


          13.
Release of Original Borrower and Original Guarantor. Lender hereby
releases Original Borrower and Original Guarantor from all liability and
obligations they may now or hereafter have under the Loan Documents; provided,
however, that Lender does not release Original Borrower or Original Guarantor
from any liabilities under the Loan Documents arising from events occurring
prior to the Effective Date. Nothing in this Section 13 or elsewhere in
the Loan Documents shall affect or impair the liability of New Guarantor under
the Loan Agreement.


          14.
Status of New Borrower. New Borrower is and will continue to be (a) duly
organized, validly existing and in good standing under the laws of the State of
its organization, (b) authorized to do business and in good standing in each
State in which the Property is located, and (c) possessed of all requisite
power and authority to carry on its business and to own and operate the
Property. New Borrower’s exact legal name is correctly set forth on the
signature page hereof. New Borrower is an organization of the following type:
limited liability company. New Borrower is incorporated in or organized under
the laws of the State of Delaware. New Borrower shall be a Single Purpose
Entity as represented i) in Section 6.1 of the Loan Agreement and ii) in
Section 9(d)(iv) of the New Borrower’s Limited Liability Company Agreement. New
Borrower will not cause or permit any change to be made to its name or identity
or to its corporate, partnership or other organizational structure unless New
Borrower shall have notified Lender in writing of such change at least 30 days
prior to the effective date of such change, and shall have first taken all
action required by Lender for the purpose of further perfecting or protecting
the lien and security interest of Lender in the Property. New Borrower’s
principal place of business and chief executive office, and the place where New
Borrower keeps its books and records, including recorded data of any kind or
nature, regardless of the medium of recording, including software, writings,
plans, specifications and schematics concerning the Property, has been for the
preceding four months (or if less, the entire period of the existence of New
Borrower) and will continue to be the address of New Borrower set forth in Section
12 above. New Borrower shall notify Lender in writing of any change in New
Borrower’s principal place of business or its chief executive office or the
place where New Borrower keeps its books and records at least 30 days prior to
the date of such change. New Borrower’s organizational identification number,
if any, assigned by the State of incorporation or organization is 4649252. New
Borrower shall promptly notify Lender of any change in its organizational
identification number. If New Borrower does not now have an organizational
identification number and later obtains one, New Borrower shall promptly notify
Lender of such organizational identification number.


          15.
Further Assurances. New Borrower agrees to do any act or execute any
additional documents requested by Lender as may reasonably be required by
Lender to effectuate the purposes of this Agreement or to perfect or retain
Lender’s perfected security interest in the Property or the first-lien priority
of any such security interest.


Capital Markets Servicing Group


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          16.
Inurement. The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
successors-in-interest and permitted assigns. 


          17.
Governing Law/Severability. This Agreement shall in all respects be
governed, construed, applied and enforced in accordance with the internal laws
of the State of New York. In the event one or more provisions of this Agreement
shall be invalid, illegal or unenforceable, the validity or enforceability of
the remaining provisions shall not in any way be affected.


          18.
Modifications. Neither this Agreement, nor any term or provision hereof,
may be changed, discharged or terminated except by an instrument in writing
signed by the party against whom enforcement of the change, discharge or
termination is sought.


          19.
General Release and Waiver of Claims. In consideration of Lender’s
agreement to enter into this Agreement, Original Borrower and New Borrower
hereby agree as follows:


          (a)
Original Borrower and New Borrower hereby jointly and severally release and
forever discharge Lender, Master Servicer, Primary Servicer, and their
respective successors, assigns, partners, directors, officers, agents,
attorneys, administrators, trustees, subsidiaries, affiliates, beneficiaries,
shareholders, representatives, agents, servants and employees from any and all
rights, proceedings, agreements, contracts, judgments, debts, costs, expenses,
promises, duties, claims, demands, cross-actions, controversies, causes of
action, damages, rights, liabilities and obligations, at law or in equity
whatsoever, known or unknown, suspected or unsuspected, choate or inchoate,
whether past, present or future, now held, owned or possessed by Original
Borrower or New Borrower, or which Original Borrower or New Borrower may
hereafter hold or claim to hold from the beginning of time to the date of this
Agreement under common law or statutory right, known or unknown, arising,
directly or indirectly, proximately or remotely, out of the Property, the Loan
or any of the Loan Documents or any of the documents, instruments or any other
transactions relating thereto or the transactions contemplated thereby,
including any and all rights, proceedings, agreements, contracts, judgments,
debts, expenses, promises, duties, claims, demands, cross-actions,
controversies, causes of action, damages, rights, liability and obligations,
whether based upon tort, fraud, breach of any duty of good faith or fair
dealing, breach of confidence, undue influence, duress, economic coercion,
conflict of interest, negligence, bad faith, intentional or negligent
infliction of mental distress, tortious interference with contractual
relations, tortious interference with corporate or other governance or
prospective business advantage, breach of contract, deceptive trade practices,
libel, slander, defamation, conspiracy or any claim for wrongfully accelerating
the Note or wrongfully attempting to foreclose on any collateral relating to
the Note, contract or usury, but only to the extent that the foregoing arise in
connection with events which occurred prior to the execution and delivery of
this Agreement (collectively, the “Released Claims”). Without limiting
the generality of the foregoing, the Released Claims shall include the
following matters: (i) the origination and servicing of the Loan by
Lender, Master Servicer or Primary Servicer; (ii) all aspects of the
negotiations of this Agreement between or on behalf of New Borrower and/or
Original Borrower and Lender including, but not limited to, the demands and
requests by Lender of Original Borrower or New Borrower concerning this
Agreement and the other Loan Documents, including all meetings, telephone
calls, correspondence and/or other contacts among or on behalf of New Borrower
and/or Original Borrower and Lender incident to the attempts of said parties to


Capital Markets Servicing Group


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reach an
agreement, or in connection with this Agreement or the other Loan Documents;
and (iii) the attempt(s) of Lender to collect the Note and the exercise by
Lender of its rights under any of the Loan Documents or any of its rights under
this Agreement, any document executed contemporaneously herewith or the other
Loan Documents, or at law or in equity.


          (b)
This release is intended to release all liability of any character claimed for
damages of any type or nature, for injunctive or other relief, for attorneys’
fees, interest or any other liability whatsoever, whether statutory, or
contractual or tort in character, or of any other nature or character, now or
henceforth in any way related to any and all matters and dealings of any nature
whatsoever asserted or assertable by or on behalf of New Borrower and/or Original
Borrower against Lender, including any loss, cost or damage in connection with,
or based upon, any breach of fiduciary duty, breach of any duty of good faith
or fair dealing, breach of confidence, breach of funding commitment, breach of
any other duty, breach of any statutory right, fraud, usury, undue influence,
duress, economic coercion, conflict of interest, negligence, bad faith,
malpractice, violations of the Racketeer Influenced and Corrupt Organizations
Act, intentional or negligent infliction of mental distress, tortious
interference with corporate or other governance or prospective business
advantage, breach of contract, deceptive trade practices, libel, slander,
defamation, conspiracy or any other cause of action, but only to the extent that
the foregoing arise in connection with events which occurred prior to the date
of execution and delivery hereof.


          (c)
New Borrower and Original Borrower each understands and agrees that this is a
full, final and complete release. Each of New Borrower and Original Borrower
agrees that this release may be pleaded as an absolute and final bar to any or
all suits, actions or proceedings pending or which may hereafter be filed or
prosecuted by New Borrower or Original Borrower, or anyone claiming by, through
or under New Borrower or Original Borrower, in respect of any of the Released
Claims. New Borrower and Original Borrower each understands and agrees that no
recovery on account of the Released Claims may hereafter be had from anyone
whomsoever, and that the consideration given for this release is no admission
of liability and that neither New Borrower nor Original Borrower, nor anyone
claiming under New Borrower or Original Borrower, will ever claim that the
consideration for this release is an admission of liability. 


          (d)
Intentionally Deleted.


          (e)
The provisions, waivers and releases set forth in this Section 18 are
binding upon Original Borrower and New Borrower and their respective agents,
employees, representatives, officers, directors, general partners, limited
partners, joint shareholders, beneficiaries, trustees, administrators,
subsidiaries, affiliates, employees, servants and attorneys. 


          20.
Financial Information. In accordance with the applicable provisions of
the Loan Documents, New Borrower shall provide Lender with such financial or
other information concerning New Borrower’s affairs and properties as Lender
may request, to the extent required pursuant to the Loan Documents.


          21.
Notices. All notices to Lender, Original Borrower or New Borrower in
connection with this Agreement shall be in writing and shall be addressed to
the intended recipient thereof at its address as set forth below or in the Loan
Documents (or at such other 


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address as such
party may designate in writing from time to time by notice given to Original
Borrower, New Borrower or Lender). Additionally, the Mortgage is supplemented
to include New Borrower’s address: c/o Sotheby’s, 1334 York Avenue, New York,
New York 10021, Attention: Michael L. Gillis. All notices given to any party to
this transaction shall be deemed effectively given (a) upon personal
delivery of any such notice to the premises of the intended recipient as
required above or as most recently designated by such intended recipient as
provided herein, or (b) two (2) business days following the deposit of an
envelope containing such notice in the United States mail, sent by certified
mail, postage pre-paid and addressed to the intended recipient as set forth
above or as most recently designated by the intended recipient as provided
herein.


          22.
New Borrower’s and New Guarantor’s Specific Ratification, Reaffirmation and
Confirmation of Loan Documents. New Borrower and New Guarantor have read
and reviewed and agree to perform each and every obligation under the Loan
Documents in accordance with their respective terms and conditions. It is
expressly understood that Lender will hereafter require performance of any and
all terms, conditions or requirements of all documents and agreements executed
by New Borrower and/or New Guarantor, as applicable, relating to the Loan
Documents. New Borrower and New Guarantor acknowledge and agree that any
performance or non-performance of the Loan Documents prior to the Effective
Date does not affect or diminish in any way the requirement of compliance with
the Loan Documents. New Borrower and New Guarantor further acknowledge and
agree that the validity and priority of the liens and security interests
evidenced by the Mortgage is not diminished in any way by this Agreement and
that the Mortgage continues to be a first and superior mortgage lien and
security interest in and on the Property. The agreements and obligations of New
Borrower and New Guarantor under the Loan Documents are hereby ratified,
brought forward, renewed and extended until the Loan shall have been fully paid
and discharged. New Borrower and New Guarantor hereby ratify, affirm, reaffirm,
acknowledge, confirm and agree that the Loan Documents to which each is a party
represent the valid, binding and enforceable obligations of New Borrower and
New Guarantor. Lender, New Borrower and New Guarantor hereby agree that this
Agreement and the Loan Documents are in full force and effect so that nothing
contained herein shall be construed as modifying the Loan Documents in any
manner, except as may be specified herein. New Borrower specifically extends
the liens and security interests of the Mortgage and agrees that the Mortgage
(a) shall cover the Loan, and (b) shall continue to be in full force
and effect until the Loan is paid in full and all other obligations under the
Loan Documents are fully performed and satisfied. New Borrower and New
Guarantor hereby agree that this Agreement in no way acts as a diminution,
impairment, release or relinquishment of the liens, power, title, security
interest and rights securing or guaranteeing payment of the Loan. The Mortgage
is hereby renewed, extended, ratified, confirmed and carried forward by New
Borrower in all respects. Nothing contained herein shall be construed as a
waiver of any rights, remedies or recourses available to Lender with respect to
any default by New Borrower or New Guarantor under this Agreement or any of the
Loan Documents to which each is a party, as applicable. Except as otherwise
provided herein, Lender hereby preserves all of its rights against New Borrower
and New Guarantor and all collateral, including the Property. 


          23.
NO JURY TRIAL. ORIGINAL BORROWER, NEW BORROWER AND LENDER HEREBY
SEVERALLY, VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY WAIVE ANY AND ALL RIGHTS TO
TRIAL BY JURY IN ANY LEGAL 


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- 15 -






ACTION OR
PROCEEDING ARISING UNDER THE NOTE, THE MORTGAGE OR ANY OTHER LOAN DOCUMENT OR
CONCERNING THE OBLIGATIONS UNDER THE LOAN DOCUMENTS AND/OR WITH REGARD TO THE
PROPERTY OR PERTAINING TO ANY TRANSACTION RELATED TO OR CONTEMPLATED IN THE
MORTGAGE, REGARDLESS OF WHETHER SUCH ACTION OR PROCEEDING CONCERNS ANY
CONTRACTUAL OR TORTIOUS OR OTHER CLAIM. ORIGINAL BORROWER AND NEW BORROWER
ACKNOWLEDGE THAT THIS WAIVER OF JURY TRIAL IS A MATERIAL INDUCEMENT TO LENDER
PERMITTING THE LOAN ASSUMPTION DESCRIBED HEREIN AND THAT LENDER WOULD NOT HAVE
CONSENTED TO THE LOAN ASSUMPTION BY NEW BORROWER AND THE EXTENSION OF CREDIT TO
NEW BORROWER WITHOUT THIS JURY TRIAL WAIVER. ORIGINAL BORROWER AND NEW BORROWER
HAVE EACH BEEN REPRESENTED BY AN ATTORNEY OR HAVE HAD AN OPPORTUNITY TO CONSULT
WITH AN ATTORNEY IN CONNECTION WITH THE LOAN AND THE LOAN ASSUMPTION AND
UNDERSTAND THE LEGAL EFFECT OF THIS JURY TRIAL WAIVER.


          24.
Bankruptcy of New Borrower. New Borrower, as a material inducement to
Lender to enter into this Agreement, and in consideration of the mutual
covenants contained in this Agreement, and for other good and valuable
consideration, by its execution hereof covenants and agrees that in the event
New Borrower shall (a) file any petition with any bankruptcy court or be
the subject of any petition under the United States Bankruptcy Code
(11 U.S.C. §101 et seq., the “Code”), (b) file or
be the subject of any petition seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under any
present or future federal or state act or law relating to bankruptcy,
insolvency or other relief for debtors, (c) have sought or consented to or
acquiesced in the appointment of any trustee, receiver, conservator or
liquidator, or (d) be the subject of any order, judgment or decree entered
by any court of competent jurisdiction approving a petition filed against such
party for any reorganization, arrangement, composition, readjustment,
liquidation, dissolution or similar relief under any present or future federal
or state act or law relating to bankruptcy, insolvency or other relief for
debtors, Lender shall thereupon be entitled, and New Borrower irrevocably
consents, to the entry of an order by a bankruptcy court granting to Lender
relief from any automatic stay imposed by Section 362 of the Code or
otherwise, on or against the exercise of the rights and remedies otherwise available
to Lender as provided in the Loan Documents, this Agreement or as otherwise
provided by law or in equity, and New Borrower hereby irrevocably waives its
right to object to, attempt to enjoin or otherwise interfere with such relief
and the exercise and enforcement by Lender of its rights and remedies following
entry of such order. Without limiting the generality of the immediately
preceding sentence, New Borrower agrees that Lender will be entitled to and
hereby consents to immediate relief from the automatic stay imposed by the Code
to allow Lender to take any and all actions necessary, desirable or appropriate
to enforce any rights Lender may have under the Loan Documents, including the
right to possession of the Property, collection of rents, and/or the
commencement or continuation of an action to foreclose Lender’s liens and
security interests. New Borrower further agrees that the filing of any petition
for relief under the Code which postpones, prevents, delays or otherwise
hinders Lender’s efforts to collect the amounts due under the Note or to
liquidate any of the collateral therefor shall be deemed to have been filed in
bad faith, and shall therefore be subject to prompt dismissal or conversion to
a case under Chapter 7 of the Code upon motion therefor by Lender.
Further, New Borrower agrees that it will not seek, apply for or cause the
entry of any order 


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- 16 -






enjoining,
staying, or otherwise prohibiting or interfering with Lender’s obtaining an
order granting relief from the automatic stay and enforcement of any rights
that Lender may have under the Loan Documents, including Lender’s right to
possession of the Property, collection of rents and/or the commencement or
continuation of an action to foreclose Lender’s liens and security interests under
the Loan Documents.


          25.
Compliance with Interest Law. It is the intention of Original Borrower,
New Borrower and Lender to conform strictly to the Interest Law (as hereinafter
defined). Accordingly, New Borrower and Lender agree that any provisions
contained in the Note or in any of the other Loan Documents to the contrary
notwithstanding, the aggregate of all interest or consideration constituting
interest under the Interest Law that is taken, reserved, contracted for,
charged or received under the Note or under any of the Loan Documents or
otherwise in connection with this Loan transaction shall under no circumstances
exceed the maximum amount of interest allowed by the Interest Law. If any
excess interest is provided for in the Note or in any of the other Loan
Documents, then (a) the provisions of this Section 25 shall govern
and control, (b) neither New Borrower nor the successors or assigns of New
Borrower shall be obligated to pay the amount of such interest to the extent
that it is in excess of the maximum amount of interest allowed by the Interest
Law, (c) any such excess shall be deemed a mistake and canceled
automatically and, if theretofore paid, shall be credited against the
indebtedness (or if the Note shall have been paid in full, refunded to New
Borrower), and (d) the effective rate of interest shall be automatically
subject to reduction to the Maximum Legal Rate of Interest (as hereinafter
defined). To the extent permitted by the Interest Law, all sums paid or agreed
to be paid to Lender for the use, forbearance or detention of the indebtedness
shall be amortized, prorated, allocated and spread throughout the full term of
the Note. For purposes of the Note, “Interest Law” shall mean any
present or future law of the State of New York (meaning the internal laws of
said State and not the laws of said State relating to choice of law), the
United States of America or any other jurisdiction which has application to the
interest and other charges under the Note or under any of the other Loan Documents
and to the classification of New Borrower under such law. For purposes of the
Note, the “Maximum Legal Rate of Interest” shall mean the maximum
effective contract rate of interest that Lender may from time to time, by
agreement with New Borrower, legally charge New Borrower and in regard to which
New Borrower would be prevented from successfully raising the claim or defense
of usury under the Interest Law as now or hereafter construed by courts of
appropriate jurisdiction.


          26.
Terms Generally. (a) Each definition contained in this or any other
Section of this Agreement shall apply equally to both the singular and plural
form of the term defined. Each pronoun shall include the masculine, the
feminine and the neuter form, whichever is appropriate to the context. The
words “included,” “includes” and “including” shall each be deemed to be
followed by the phrase “without limitation.” The words “herein,” “hereby,”
“hereof” and “hereunder” shall each be deemed to refer to this entire Agreement
and not to any particular Article or Section hereof. Notwithstanding the
foregoing, if any law is amended so as to broaden the meaning of any term
defined in it, such broader meaning shall apply subsequent to the effective
date of such amendment. Where a defined term derives its meaning from a
statutory reference, any regulatory definition is broader than the statutory
reference and any reference or citation to a statute or regulation shall be
deemed to include any amendments to that statute or regulation and judicial and
administrative interpretations of it, and (b) any term used or defined in
the New York Uniform Commercial Code, as in effect from time to time, which is
not defined 


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in this
Agreement has the meaning given to that term in the New York Uniform Commercial
Code, as in effect from time to time, when used in this Agreement.


          27.
Securities Act of 1933. Neither New Borrower nor any agent acting for
New Borrower has offered the Note or any similar obligation of New Borrower for
sale to, or solicited any offers to buy the Note or any similar obligation of
New Borrower from, any person or party other than Lender, and neither New
Borrower nor any agent acting for New Borrower will take any action which would
subject the sale of the Note to the provisions of Section 5 of the
Securities Act of 1933, as amended.


          28.
Compliance with ERISA. New Borrower is not an “employee benefit plan,”
as defined in Section 3(3) of ERISA, subject to Title I of ERISA, and none of
the assets of New Borrower constitutes or will constitute “plan assets” of one
or more such plans within the meaning of 29 C.F.R. Section 2510.3-101. In
addition, (a) New Borrower is not a “governmental plan” within the meaning of
Section 3(32) of ERISA and (b) transactions by or with New Borrower are not
subject to state statutes regulating investment of, and fiduciary obligations
with respect to, governmental plans similar to the provisions of Section 406 of
ERISA or Section 4975 of the Internal Revenue Code currently in effect, which
prohibit or otherwise restrict the transactions contemplated by the Loan
Documents.


          29.
Documentation Requirements, Sufficiency of Consents and Approvals. Each
written instrument required by this Agreement or any of the other Loan Documents
to be furnished to Lender shall be duly executed by the person or party
specified (or where no particular person or party is specified, by such person
or party as Lender shall require), duly acknowledged where required by Lender
and, in the case of affidavits and similar sworn instruments, duly sworn to and
subscribed before a notary public duly authorized to act in the premises by
governmental authority; shall be furnished to Lender in one or more copies as
required by Lender; and shall in all respects be in form and substance
satisfactory to Lender and its legal counsel in their sole and absolute
discretion. All title policies, surveys, appraisals and other evidence,
information or documentation required by Lender shall be in form and substance
satisfactory to Lender and its legal counsel in all respects in their sole and
absolute discretion.


          30.
Evidentiary Requirements. Where evidence of the existence or
non-existence of any circumstance or condition is required by this Agreement or
any of the other Loan Documents to be furnished to Lender, such evidence shall
in all respects be in form and substance reasonably satisfactory to Lender, and
the duty to furnish such evidence shall not be considered satisfied until
Lender shall have acknowledged in writing that it is satisfied therewith.


          31.
Number, Order and Captions Immaterial. The numbering, order and captions
or headings of the several articles, sections and paragraphs of this Agreement,
the Note and the other Loan Documents are for convenience of reference only and
shall not be considered in construing such instruments.


          32.
ENTIRE AGREEMENT; COUNTERPARTS. THIS AGREEMENT AND THE LOAN DOCUMENTS
CONTAIN THE ENTIRE AGREEMENT OF THE PARTIES HERETO WITH RESPECT TO THE ASSUMPTION
OF THE LOAN BY NEW BORROWER AND LENDER’S CONSENT TO THE TRANSFER OF THE
PROPERTY TO NEW BORROWER, 


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AND SUPERSEDE
ANY PRIOR WRITTEN OR ORAL AGREEMENTS BETWEEN OR AMONG THEM CONCERNING SAID
SUBJECT MATTER. THERE ARE NO REPRESENTATIONS, AGREEMENTS, ARRANGEMENTS OR
UNDERSTANDINGS, ORAL OR WRITTEN, BETWEEN OR AMONG THE PARTIES HERETO, RELATING
TO THE SUBJECT MATTER CONTAINED IN THIS AGREEMENT, WHICH ARE NOT FULLY
EXPRESSED HEREIN OR IN THE LOAN DOCUMENTS. THIS AGREEMENT MAY BE EXECUTED AND
ACKNOWLEDGED IN MULTIPLE COUNTERPARTS FOR THE CONVENIENCE OF THE PARTIES, WHICH
TOGETHER SHALL CONSTITUTE ONE AGREEMENT, AND THE COUNTERPART SIGNATURE AND
ACKNOWLEDGMENT PAGES MAY BE DETACHED FROM THE VARIOUS COUNTERPARTS AND ATTACHED
TO ONE COPY OF THIS AGREEMENT TO SIMPLIFY THE RECORDATION OF THIS AGREEMENT.
THE REPRESENTATIONS, WARRANTIES, AND COVENANTS OF THIS AGREEMENT SHALL CONTINUE
AND SURVIVE THE TRANSFER OF THE PROPERTY TO NEW BORROWER.


          33.
NO ORAL AGREEMENTS. THE WRITTEN LOAN DOCUMENTS, INCLUDING THIS
AGREEMENT, REPRESENT THE FINAL AGREEMENT BETWEEN AND AMONG THE PARTIES AND MAY
NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS OR SUBSEQUENT ORAL
AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS BETWEEN OR
AMONG THE PARTIES.


[NO
FURTHER TEXT ON THIS PAGE - SIGNATURES TO FOLLOW]


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          IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their duly authorized representatives, all as of the day and year
first above written.


	
 

	
 

	
 

	
 


	
 

	
NEW BORROWER:


	
 

	
 

	
 


	
 

	
1334 YORK, LLC, 


	
 

	
a Delaware
 limited liability company


	
 

	
 

	
 


	
 

	
By:

	
Sotheby’s, a
 Delaware corporation, 


	
 

	
 

	
its sole
 member


	
 

	
 

	
 


	
 

	
 

	
By:

	
 


	
 

	
 

	
 

	



	
 

	
 

	
Name: 


	
 

	
 

	
Title: 


	
 

	
 

	
 


	
 

	
ORIGINAL BORROWER:


	
 

	
 

	
 


	
 

	
1334 YORK AVENUE L.P.,
 a Delaware limited partnership


	
 

	
 

	
 


	
 

	
By:

	
1334 GP II
 LLC, a Delaware limited liability company, its general partner


	
 

	
 

	
 


	
 

	
 

	
By:

	
 


	
 

	
 

	
 

	



	
 

	
 

	
Name:


	
 

	
 

	
Title:





[SIGNATURES
FOLLOW ON THE NEXT PAGE]


Capital Markets Servicing Group


- 20 -






	
 

	
 

	
 

	
 


	
 

	
LENDER:


	
 

	
 

	
 


	
 

	
WELLS FARGO BANK N.A.,
 as Trustee for the Registered Holders of Banc of America Commercial Mortgage
 Inc., Commercial Mortgage Pass-Through Certificates, Series 2005-4


	
 

	
 

	
 


	
 

	
By:

	
Bank of
 America, N.A., a national banking association, its authorized agent


	
 

	
 

	
 


	
 

	
 

	
By: 

	
 


	
 

	
 

	
 

	



	
 

	
 

	
Name:


	
 

	
 

	
Title:


	
 

	
 

	
 


	
 

	
MERS:


	
 

	
 

	
 


	
 

	
MORTGAGE ELECTRONIC 


	
 

	
REGISTRATION SYSTEMS,


	
 

	
a Delaware
 corporation








	
 

	
 

	
 


	
 

	
By: 

	
 


	
 

	
 

	



	
 

	
Name


	
 

	
Title:


	
 

	
 


	
 

	
ORIGINAL GUARANTOR:


	
 

	
 

	
 


	
 

	



	
 

	
Aby Rosen,
 an individual


	
 

	
 

	
 


	
 

	



	
 

	
Michael
 Fuchs, an individual





Capital Markets Servicing Group


- 21 -






	
 

	
 

	
 


	
 

	
NEW GUARANTOR:


	
 

	
 

	
 


	
 

	
SOTHEBY’S, a
 Delaware corporation


	
 

	
 


	
 

	
By:

	
 


	
 

	
 

	



	
 

	
Name:


	
 

	
Title:





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ACKNOWLEDGMENT


	
 

	
 


	
State of ____________________)

	
 


	
)

	
 


	
County of __________________)

	
 





On
_______________________ before me, ______________________________________,
personally appeared ______________________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.


WITNESS my
hand and official seal.


	
 


	



	
(Signature)





- 23 -






ACKNOWLEDGMENT


	
 

	
 


	
State of ____________________)

	
 


	
)

	
 


	
County of __________________)

	
 





On
_______________________ before me, ______________________________________,
personally appeared ______________________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.


WITNESS my
hand and official seal.


	
 


	



	
(Signature)





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ACKNOWLEDGMENT


	
 

	
 


	
State of ____________________)

	
 


	
)

	
 


	
County of __________________)

	
 





On
_______________________ before me, ______________________________________,
personally appeared ______________________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.


WITNESS my
hand and official seal.


	
 


	



	
(Signature)





- 25 -






ACKNOWLEDGMENT


	
 

	
 


	
State of ____________________)

	
 


	
)

	
 


	
County of __________________)

	
 





On
_______________________ before me, ______________________________________,
personally appeared ______________________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the entity
upon behalf of which the person(s) acted, executed the instrument.


WITNESS my
hand and official seal.


	
 


	



	
(Signature)





- 26 -






ACKNOWLEDGMENT


	
 

	
 


	
State of ____________________)

	
 


	
)

	
 


	
County of __________________)

	
 





On
_______________________ before me, ______________________________________,
personally appeared ______________________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.


WITNESS my
hand and official seal.


	
 


	



	
(Signature)





- 27 -






ACKNOWLEDGMENT


	
 

	
 


	
State of ____________________)

	
 


	
)

	
 


	
County of __________________)

	
 





On _______________________
before me, ______________________________________, personally appeared
______________________________, personally known to me (or proved to me on the
basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they
executed the same in his/her/their authorized capacity(ies), and that by
his/her/their signature(s) on the instrument the person(s), or the entity upon
behalf of which the person(s) acted, executed the instrument.


WITNESS my
hand and official seal.


	
 


	



	
(Signature)





- 28 -






ACKNOWLEDGMENT


	
 

	
 


	
State of ____________________)

	
 


	
)

	
 


	
County of __________________)

	
 





On
_______________________ before me, ______________________________________,
personally appeared ______________________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.


WITNESS my
hand and official seal.


	
 


	



	
(Signature)





- 29 -






ACKNOWLEDGMENT


	
 

	
 


	
State of ____________________)

	
 


	
)

	
 


	
County of __________________)

	
 





On
_______________________ before me, ______________________________________,
personally appeared ______________________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.


WITNESS my
hand and official seal.


	
 


	



	
(Signature)





- 30 -






ACKNOWLEDGMENT


	
 

	
 


	
State of ____________________)

	
 


	
)

	
 


	
County of __________________)

	
 





On
_______________________ before me, ______________________________________,
personally appeared ______________________________, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose
name(s) is/are subscribed to the within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized capacity(ies), and
that by his/her/their signature(s) on the instrument the person(s), or the
entity upon behalf of which the person(s) acted, executed the instrument.


WITNESS my
hand and official seal.


	
 


	




	
(Signature)





- 31 -






EXHIBIT
A

LEGAL DESCRIPTION


ALL that
certain plot, piece or parcel of land, situate, lying and being in the Borough
of Manhattan, City, County and State of New
York, bounded and described as follows:


BEGINNING at the corner formed by the intersection of the easterly side
of York Avenue (formerly
Avenue A) and the southerly side of 72nd Street;


RUNNING THENCE
in a southerly direction along the easterly side of York Avenue 204 feet 4 inches to the corner formed by the intersection of
the easterly side of York Avenue and the northerly side of 71st Street;


RUNNING THENCE in a easterly direction along the northerly side of 71st
Street 198 feet;


THENCE in a
northerly direction and parallel with York Avenue 204 feet 4 inches to the southerly side of 72nd Street; and


THENCE in a westerly direction
along the southerly side of 72nd Street 198 feet to the point or place of
BEGINNING.


- 32 -






Schedule
2.2(b)


(Amortization Schedule)


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