CONSENT AND ASSUMPTION AGREEMENT WITH RELEASE

EXHIBIT 10.2

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:

          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:

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          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 Loa