CONTRIBUTION AGREEMENT

EXHIBIT 10.1

CONTRIBUTION AGREEMENT

Between

FIFTH AVENUE 58/59 ACQUISITION CO. L.P.

a Delaware limited partnership,

BP 767 FIFTH LLC

a Delaware limited liability company,

and

767 VENTURE, LLC

a Delaware limited liability company

Premises:

767 Fifth Avenue

New York, New York

TABLE OF CONTENTS

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Schedules

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Exhibits

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THIS CONTRIBUTION AGREEMENT (this “ Agreement ”) made as of the 23rd day of May, 2008 by and between FIFTH AVENUE 58/59 ACQUISITION CO. L.P., a Delaware limited partnership (“ Owner ”), having an office c/o Macklowe Properties, 767 Fifth Avenue, New York, New York 10153-0023, BP 767 FIFTH LLC, a Delaware limited liability company (the “ Investor ”), having an address at 599 Lexington Avenue, New York, New York 10022, and 767 VENTURE, LLC, a Delaware limited liability company (the “ Company ”), having an address at 599 Lexington Avenue, New York, New York 10022.

W I T N E S S E T H:

WHEREAS, Owner is the owner and holder of the fee simple estate in and to that certain plot, piece and parcel of land (the “ Land ”) known as 767 Fifth Avenue, New York, New York and more particularly described in Schedule A , together with the building and all other improvements located thereon (collectively, the “ Building ”; the Building and the Land, collectively, the “ Premises ”);

WHEREAS, simultaneously herewith, certain affiliates of Owner (collectively, “ Legacy Owner ”) and BP Manhattan LLC, a Delaware limited liability company (“ Legacy Purchaser ”) have entered into that certain Purchase and Sale Agreement (the “ Legacy PSA ”), pursuant to which Legacy Owner is agreeing to sell to Legacy Purchaser, and Legacy Purchaser is agreeing to purchase from Legacy Owner, those certain plots, pieces and parcels of land known as 125 West 55th Street, Two Grand Central Tower and 540 Madison Avenue, New York, New York, together with the building and all other improvements located thereon and certain related personal property; and

WHEREAS, subject to and upon the terms and conditions of this Agreement, Owner and Investor desire that on the Closing Date: (a) Owner and Investor shall enter into that certain amended and restated limited liability company agreement of the Company, in the form attached hereto as Exhibit O (the “ JV Agreement ”); (b) Investor (together with its co-investors) shall make a cash contribution to the Company in exchange for the issuance by the Company to Investor and such co-investors of ownership interests in the Company and shall also make loan(s) to the Company; and (c) Owner shall contribute the Property to the Company (or, at the Company’s direction, a wholly owned subsidiary thereof) in exchange for (i) the issuance by the Company to Owner of an ownership interest in the Company, (ii) a cash distribution by the Company of the proceeds of such loan(s) and (iii) an additional cash distribution by the Company to Owner, all as more particularly set forth in this Agreement.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, the parties hereto covenant and agree as follows:

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Subject to the terms and conditions of this Agreement, on the Closing Date the following transactions shall occur, and shall be deemed to occur in the following order:

(a) Owner, Investor and the other parties to be members of the Company shall execute and deliver the JV Agreement.

(b) (i) Investor shall contribute, and cause the other members of the Company (other than Owner) to contribute, to the Company an aggregate amount equal to FIVE HUNDRED THREE MILLION ONE HUNDRED THIRTY THOUSAND AND 00/100 DOLLARS ($503,130,000.00) (the “ Investor Contribution ”), and in exchange for the Investor Contribution, the Company shall issue to such Investor and such other members (other than Owner) membership interests in the Company (collectively, the “ Member Interests ”), having the rights and obligations set forth in the JV Agreement.

(ii) Investor shall loan, and cause the other members of the Company (other than Owner) to loan, to the Company an aggregate amount equal to FOUR HUNDRED FIFTY MILLION AND 00/100 DOLLARS ($450,000,000.00) (the “ Investor Loan ”); provided , the Company, in its sole discretion, may elect to borrow funds from a third party pursuant to a loan satisfying the applicable credit and other criteria and requirements set forth in the Tax Protection Agreement to be delivered at the Closing in the form attached hereto as Exhibit F (such loan, the “ Acquisition Loan ”), in which case, the Investor Loan shall be reduced dollar-for-dollar to the extent of the Acquisition Loan, such that the aggregate amount of the Investor Loan and the Acquisition Loan shall be an amount equal to FOUR HUNDRED FIFTY MILLION AND 00/100 DOLLARS ($450,000,000.00).

(c) (i) Owner shall contribute, assign and convey the following property to the Company (or, if directed by the Company, to the Subsidiary

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Owner (as defined below)): (A) the Premises; (B) all grants, easements, rights of way or use, privileges and appurtenances to the Premises and any and all development rights relating to the Premises; (C) the fixtures, furnishings, furniture, equipment, machinery, inventory, appliances and other personal property owned by Owner or Owner’s property manager and located at the Premises (but excluding any Excluded Personalty (as hereinafter defined)) (collectively, the “ Personalty ”), subject to depletions, replacements or additions thereto in the ordinary course of business of the Premises between the date hereof and the Closing Date provided that the Premises are operated in accordance with the provisions of Section 9 hereof, (D) all right, title and interest of the lessor in, to and under the Leases in effect on the Closing Date at the Premises (subject to Section 9 ); (E) all of Owner’s right, title and interest in and to the Contracts in effect on the Closing Date for the Premises (subject to Section 9 ); and (F) all of Owner’s right, title and interest in and to all transferable licenses, approvals, certificates, warranties and permits held by Owner or Owner’s property manager and exclusively relating to the use, occupancy or operation of the Premises, and all other items of intangible personal property owned by Owner or Owner’s property manager and exclusively relating to the use, occupancy or operation of the Premises (the items described in clauses (A)  through (F)  above are sometimes referred to hereinafter, collectively, as the “ Property ”). The parties hereto acknowledge and agree that the value of the Personalty is de minimis and that no part of the Investor Contribution is allocable thereto.

(ii) In exchange for the Property, Investor shall cause the Company to: (A) issue to Owner a membership interest in the Company (the “ Owner Interest ”), having the rights and obligations set forth in the JV Agreement, and which the parties agree shall be deemed to have a value of TWO HUNDRED TEN MILLION AND 00/100 DOLLARS ($210,000,000.00) based on the total capitalization of the Company and the percentage interest ownership in the Company represented by the Owner Interest, (B) transfer to Owner by wire transfer of immediately available funds to one or more accounts to be designated by Owner, FOUR HUNDRED FIFTY MILLION AND 00/100 DOLLARS ($450,000,000.00) (the “ Debt Financed Distribution ”) to Owner, it being agreed by the parties that the Debt Financed Distribution shall be funded solely with proceeds from the Investor Loan and/or the Acquisition Loan, as applicable, and is intended by the parties to qualify as a “debt-financed transfer” under Treasury Regulations Section 1.707-5(b), and (C) distribute to Owner by wire transfer of immediately available funds to one or more accounts to be designated by Owner, TWO HUNDRED FORTY MILLION AND 00/100 DOLLARS ($240,000,000.00) (such distribution, together with the Debt Financed Distribution, collectively, the “ Macklowe Distribution ”), subject to apportionment as provided in Section 7 .

(iii) Harry Macklowe shall execute and deliver to the maker of the Investor Loan and/or the Acquisition Loan, as applicable, a guaranty in the form of Exhibit R relating to the Investor Loan and/or the Acquisition Loan, as applicable.

(d) Subject to the terms of Section 38 , in addition to the Owner Interest and the Macklowe Distribution, Investor shall cause (i) the wholly-owned subsidiary of the Company (any wholly-owned subsidiary of the Company, a

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“ Subsidiary ” and, collectively, the “ Subsidiaries ”) which acquires fee title to the Premises (the “ Subsidiary Owner ”) to assume that certain mortgage loan in the principal amount of $1,300,000,000.00 on the date hereof encumbering the Premises and more particularly set forth on Schedule 11(c)(xii)-1 (the “ Existing Mortgage Loan ”), and (ii) one or more of its Subsidiaries that are direct or indirect owners of the Subsidiary Owner to be substituted as the borrowers under those certain mezzanine loans in the aggregate principal amount of $600,000,000.00 on the date hereof relating to the Premises and more particularly set forth on Schedule 11(c)(xii)-4 (collectively, the “ Existing Mezzanine Loans ”; the Existing Mortgage Loan and the Existing Mezzanine Loans, collectively, the “ Existing Loans ”) and to assume the same.

(e) The Company will use a portion of the Investor Contribution equal to TWO HUNDRED SIXTY THREE MILLION ONE HUNDRED THIRTY THOUSAND AND 00/100 DOLLARS ($263,130,000.00) to repay a portion of the Existing Mezzanine Loans (such portion being referred to as the “Lehman/UBS Mezzanine Interests” in the Existing Lender Consent Letter Agreement (as hereinafter defined)) as provided in the Existing Lender Consent Letter Agreement.

(f) The parties shall execute, deliver and exchange the other agreement, documents, instruments and other items to be executed, delivered and/or exchanged on the Closing Date pursuant to Section 17 hereof and the other provisions of this Agreement.

(a) Subject to the provisions of Section 3(b) , Investor and its agents, employees, consultants, inspectors, appraisers, engineers, contractors, prospective investors, and the agents, employees, consultants, inspectors, appraisers and engineers of Investor’s prospective investors (collectively, “ Investor’s Representatives ”) shall have the right, prior to the Closing Date, from time to time, upon at least two (2) business days’ prior written notice to Owner, to enter upon and pass through the Premises during normal business hours to examine and inspect the same. Notwithstanding any such inspection, Investor’s obligations hereunder shall not be limited or otherwise affected as a result of any fact, circumstance or other matter of any kind discovered following the date hereof in connection with any such inspection, access or otherwise, except as may be otherwise expressly set forth in this Agreement; it being agreed that Owner is permitting Investor such right of inspection and access as a courtesy to Investor. Without limiting the generality of the foregoing, (x) Investor agrees that (1) Investor shall not have any so-called “due diligence period” and (2) except for the rights of Investor expressly set forth in this Agreement, Investor shall have no right to terminate this Agreement or obtain a reduction of the Investor Contribution as a result of any such fact, circumstance or other matter so discovered (including, without limitation, relating to the physical condition of the Premises, the operations of the Premises or otherwise), and (y) Investor shall have no right to terminate this Agreement or obtain a return of the Deposit except as expressly provided in Sections 6(b) , 10(h) , 12(a)(ii) , 13(a)(ii) , 20(b) and 20(d)(i) .

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(b) In conducting any inspection of the Premises or otherwise accessing the Premises, Investor shall at all times comply with all laws and regulations of all applicable governmental authorities, and neither Investor nor any of Investor’s Representatives shall (i) contact or have any discussions with any of Owner’s employees, agents or representatives (other than (x) with the Owner’s representatives accompanying Investor in its inspection of any the Premises, (y) the Owner Knowledge Individuals or (z) the Brokers), or with any tenants at, or contractors providing services to, the Premises, unless in each case (xx) such contact or discussions do not involve the Premises or (yy) Investor obtains the prior written consent of Owner, it being agreed that all such contacts or discussions shall, pending any such approval, be directed to Noah Leonard at Macklowe Properties, (ii) interfere with the business of Owner (or any of its tenants) conducted at the Premises or disturb the use or occupancy of any occupant the Premises or (iii) damage the Premises. In conducting the foregoing inspection or otherwise accessing the Premises, Investor and Investor’s Representatives shall at all times comply with, and shall be subject to, the rights of the tenants under the Leases (and any persons claiming under or through such tenants). Owner may from time to time establish reasonable rules of conduct for Investor and Investor’s Representatives in furtherance of the foregoing. Investor shall schedule and coordinate all inspections, including, without limitation, any environmental tests, with Owner and shall give Owner at least two (2) business days’ prior notice thereof. Owner shall be entitled to have a representative present at all times during each such inspection or other access. Investor agrees to pay to Owner on demand the reasonable cost of repairing and restoring any damage which Investor or Investor’s Representatives shall cause to the Property, and Owner agrees to provide reasonable supporting documentation for such costs, provided, that Investor shall not be responsible for such costs to the extent that they are paid from the proceeds of Owner’s insurance. If Investor does not pay to Owner such cost within five (5) business days’ demand by Owner, Investor shall pay to Owner such cost with interest at the Default Rate. All inspection fees, appraisal fees, engineering fees and other costs and expenses of any kind incurred by Investor or Investor’s Representatives relating to such inspection and its other access shall be at the sole expense of Investor. In the event that the Closing hereunder shall not occur for any reason whatsoever (other than Owner’s default), Investor shall: (A) promptly deliver to Owner, at no cost to Owner, and without representation or warranty, the originals of all tests, reports and inspections of the Premises, made and conducted by Investor or Investor’s Representatives or for Investor’s benefit which are in the possession or control of Investor or Investor’s Representatives, and (B) promptly return to Owner copies of all due diligence materials delivered by Owner to Investor or confirm in writing to Owner that Investor has destroyed all copies and abstracts thereof. Investor and Investor’s Representatives and any others who gain access to the due diligence materials provided by or on behalf of Owner through Investor or Investor’s Representatives shall treat all such due diligence materials (other than information which is generally available to the public other than as a result of a disclosure by Investor or any Investor’s Representative or becomes available to Investor on a non-confidential basis from other sources not known by Investor to be subject to confidentiality obligations to Owner or any Owner Parties or information that is developed independently by Investor other than from any confidential information) as confidential and proprietary to Owner, and shall not disclose to others during the term of

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this Agreement (or thereafter in the event that the Closing hereunder shall not occur) any such due diligence materials whether verbal or written, or any description whatsoever which may come within the knowledge of Investor, Investor’s Representatives or such other parties, unless, in each instance, Investor obtains the prior written consent of Owner. Notwithstanding the foregoing, in the event Investor or any Investor’s Representative is required, requested or demanded by law, regulation or legal process (e.g., oral questions, interrogatories, request for information or documents, subpoena, civil investigation, demand or similar process) to disclose any such confidential and proprietary information, (1) Investor or such Investor’s Representative shall give prompt notice to Owner of such request or demand (to the extent not prohibited by law) so that Owner may, should it elect to do so, seek a protective order or other appropriate remedy to challenge or contest such request and/or waive compliance with the provisions of this Section 3(b) relating to confidentiality, and (2) if, in the absence of a protective order or other remedy nullifying the legal requirement to comply with such request or demand, Investor or such Investor’s Representative is nonetheless legally required to disclose such confidential and proprietary information to a tribunal, Investor or such Investor’s Representative may disclose such information to such tribunal to the extent required without liability hereunder. Investor shall indemnify and hold Owner harmless from any and all damages, losses, liabilities and reasonable expenses (including, without limitation, reasonable attorneys’ fees) actually incurred by Owner in the event Investor breaches any of the terms or provisions of this Section 3 (excluding any consequential, indirect, special or punitive damages). Investor and Investor’s Representatives shall not be permitted to conduct borings of the Premises or drilling in or on the Premises, or any other invasive testing, in connection with the preparation of an environmental audit or in connection with any other inspection of the Premises without the prior written consent of Owner (and, if such consent is given, Investor shall be obligated to pay to Owner on demand the cost of repairing and restoring any borings or holes created or any other damage as aforesaid and Owner shall provide reasonable supporting documentation for such costs, and in the event Investor shall become entitled under any other provision of this Agreement to a return of the Deposit, any such repair or restoration cost remaining unpaid shall be withheld from the Deposit and paid to Owner before any remaining balance of the Deposit is returned to Investor). Any liens against the Premises, or any portion thereof, arising from the performance of services by third-party contractors in connection with Investor’s due diligence activities shall be removed by Investor as promptly as practicable and in any event not later than ten (10) business days after Investor shall have been notified of the filing of such liens. The provisions of this Section 3(b) shall survive the Closing or any termination of this Agreement for a period of one (1) year; provided , that (x) Investor’s indemnification obligations contained herein shall survive the Closing or any termination of this Agreement, (y) the obligations of Investor and Investor’s Representatives to treat all due diligence materials regarding Owner or any Owner Parties as confidential and proprietary shall survive the Closing or any termination of this Agreement and (z) the obligations of Investor and Investor’s Representatives to treat all due diligence materials regarding the Property as confidential and proprietary shall survive any termination of this Agreement (but shall not survive the Closing).

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(c) Prior to conducting any physical inspection or testing at the Premises, other than mere visual examination, including, without limitation, boring, drilling and sampling of soil, Investor shall obtain, and during the period of such inspection or testing shall maintain, at its expense, commercial general liability insurance, including a contractual liability endorsement, and personal injury liability coverage, with Owner and its managing agent, if any, as additional insureds, from an insurer reasonably acceptable to Owner, which insurance policies must have limits for bodily injury and death of not less than Ten Million Dollars ($10,000,000) for any one occurrence and not less than Ten Million Dollars ($10,000,000) for property damage liability for any one occurrence. Prior to making any entry upon the Premises, Investor shall furnish to Owner a certificate of insurance evidencing the foregoing coverages.

(d) Investor agrees to indemnify and hold Owner and its disclosed or undisclosed, direct and indirect shareholders, officers, directors, trustees, partners, principals, members, employees, agents, affiliates, representatives, consultants, accountants, contractors and attorneys or other advisors, and any successors or assigns of the foregoing (collectively with Owner, “ Owner Parties ”) harmless from and against any and all losses, costs, damages, liens, claims, liabilities or expenses (including, but not limited to, reasonable attorneys’ fees, court costs and disbursements) actually incurred by any of Owner Parties arising from or by reason of Investor’s and/or Investor’s Representatives’ access to, or inspection of, the Premises, or any tests, inspections or other due diligence in respect of the Premises conducted by or on behalf of Investor (excluding any consequential, indirect, special or punitive damages), provided, that Investor shall not be responsible for such costs to the extent that they are paid from the proceeds of the insurance policies referenced in Section 3(c) . The provisions of this Section 3(d) shall survive the Closing or any termination of this Agreement.

(a) Intentionally omitted.

(b) Simultaneously with the execution of this Agreement by Investor, Investor shall deliver to Fidelity National Title Insurance Company, as escrow agent (the “ Escrow Agent ”) either (I) ONE HUNDRED TEN MILLION AND 00/100 DOLLARS ($110,000,000.00) via wire transfer in immediately available federal funds in accordance with the wire instructions set forth on Schedule 4(b) (the “ Cash Deposit ”), or (II) an irrevocable standby letter of credit issued by Bank of America, N.A. or, at Investor’s option, another Qualified Issuer (the “ LOC Issuer ”) in substantially the form attached as Exhibit N or such other form acceptable to Owner (the “ Letter of Credit ”) in favor of Escrow Agent in the aggregate amount of ONE HUNDRED TEN MILLION AND 00/100 DOLLARS ($110,000,000.00) available for drawing. For purposes hereof, the Cash Deposit, the Letter of Credit, or the proceeds thereof drawn and held by Escrow Agent, and any interest accrued on the Cash Deposit or the proceeds of the Letter of Credit that is drawn and held by Escrow Agent pursuant to Section 4(c)(vii) below is referred to herein as the “ Deposit ”). From time to time, Investor shall have the right to substitute a Letter of Credit for the principal amount of a Cash Deposit (in whole or in part) or a Cash Deposit for a Letter of Credit (in whole or in part), in each instance at

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Investor’s sole cost and expense (it being understood that any interest earned on a Cash Deposit shall remain held and disbursed by Escrow Agent as provided in Section 4(c) below).

(c) (i) Escrow Agent shall deliver the Deposit (together with the interest accrued thereon, if applicable) to Owner or to Investor, as the case may be, under the following conditions:

(1) Upon and subject to the occurrence of the Closing, Escrow Agent shall either (y) return the Letter of Credit (without having drawn upon the Letter of Credit unless Escrow Agent is authorized to do so under Section 4(c)(vii) hereof) to Investor in exchange for, and upon tender of, a replacement Letter of Credit in favor of the “Escrow Agent” under the Legacy PSA in the aggregate amount available for drawing of TWENTY MILLION AND 00/100 DOLLARS ($20,000,000.00) and immediately deliver the same to the “Escrow Agent” under the Legacy PSA to be held and applied in the accordance with the terms and conditions of the Legacy PSA, or (z) deliver (I) to Owner a portion of the Cash Deposit equal to Ninety Million and 00/100 Dollars ($90,000,000.00), together with any interest accrued thereon, and (II) to the “Escrow Agent” under the Legacy PSA the balance of the Cash Deposit equal to Twenty Million and 00/100 Dollars ($20,000,000.00), together with any interest accrued thereon, to be held and applied in the accordance with the terms and conditions of the Legacy PSA; or

(2) Escrow Agent shall either distribute the Cash Deposit (together with the interest accrued thereon) to Owner or draw down the funds available under the Letter of Credit and distribute such funds to Owner following receipt by Escrow Agent of written demand therefor from Owner stating that Investor has defaulted in the performance of its obligations under this Agreement (and specifying the claimed default), provided Investor shall not have given written notice of objection in accordance with the provisions set forth below; or

(3) The Cash Deposit (together with the interest accrued thereon) or the Letter of Credit, as applicable, shall be returned to Investor (without having drawn upon the Letter of Credit unless Escrow Agent is authorized to do so under Section 4(c)(vii) hereof) following receipt by Escrow Agent of written demand therefor from Investor stating that (i) Owner has defaulted in the performance of its obligations under this Agreement (and specifying the claimed default) and that Investor has terminated this Agreement or terminated this Agreement with respect to the Premises, as the case may be, or (ii) this Agreement was terminated (or terminated with respect to the Premises, as the case may be) under circumstances entitling Investor to the return of the Deposit, and specifying the Section of this Agreement which entitles Investor to the return of the Deposit, in each case provided Owner shall not have given written notice of objection in accordance with the provisions set forth below; or

(4) The Deposit (together with the interest accrued thereon) shall be delivered to Investor or Owner as directed by joint written instructions of Owner and Investor.

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If the Deposit is held as a Letter of Credit, then in the case of Sections 4(c)(i)(1) and 4(c)(i)(3) above, Escrow Agent shall simultaneously deliver a statement to the LOC Issuer which statement shall acknowledge Escrow Agent’s consent to the cancellation of the Letter of Credit.

(ii) Upon the filing of a written demand for the Deposit by Owner or Investor, pursuant to Section 4(c)(i)(2) or 4(c)(i)(3) above, Escrow Agent shall promptly give notice thereof (including a copy of such demand) to the other party. The other party shall have the right to object to the delivery of the Deposit, by giving written notice of such objection to Escrow Agent at any time within five (5) business days after such party’s receipt of notice from Escrow Agent, but not thereafter. Such notice shall set forth the basis (in reasonable detail) for objecting to the delivery of the Deposit. Upon receipt of such notice of objection, Escrow Agent shall promptly give a copy of such notice to the party who filed the written demand. If Escrow Agent shall have timely received such notice of objection, Escrow Agent shall continue to hold the Deposit until (x) Escrow Agent receives joint written notice from Owner and Investor directing the disbursement of the Deposit, in which case Escrow Agent shall then disburse the Deposit in accordance with said direction, or (y) litigation is commenced between Owner and Investor, in which case Escrow Agent shall deposit the Deposit with the clerk of the court in which said litigation is pending, or (z) Escrow Agent takes such affirmative steps as Escrow Agent may elect, at Escrow Agent’s option, in order to terminate Escrow Agent’s duties hereunder, including, but not limited to, depositing the Deposit in court and commencing an action for interpleader, the costs thereof to be borne (as between Owner and Investor) by whichever of Owner or Investor is the losing party in such interpleader action, as determined by a final non-appealable order of such court.

(iii) Escrow Agent may rely and act upon any instrument or other writing reasonably believed by Escrow Agent to be genuine and purporting to be signed and presented by any person or persons purporting to have authority to act on behalf of Owner or Investor, as the case may be, and shall not be liable in connection with the performance of any duties imposed upon Escrow Agent by the provisions of this Agreement, except for Escrow Agent’s own gross negligence or willful misconduct. Escrow Agent shall have no duties or responsibilities except those set forth herein. Escrow Agent shall not be bound by any modification, cancellation or rescission of this Agreement unless the same is in writing and signed by Investor and Owner, and, if Escrow Agent’s duties hereunder are affected, unless Escrow Agent shall have given prior written consent thereto. Escrow Agent shall be reimbursed by Owner and Investor for any expenses (including reasonable legal fees and disbursements of outside counsel), including all of Escrow Agent’s fees and expenses with respect to any interpleader action incurred in connection with this Agreement, and such liability shall be joint and several; provided , that, as between Investor and Owner, the prevailing party in any dispute over the Deposit shall be entitled to reimbursement by the losing party of any such expenses paid to Escrow Agent. In the event that Escrow Agent shall be uncertain as to Escrow Agent’s duties or rights hereunder, or shall receive instructions from Investor or Owner that, in Escrow Agent’s opinion, are in conflict with any of the provisions hereof, Escrow Agent shall be entitled to hold the Deposit and may decline to take any other action. After delivery of the Deposit in accordance herewith, Escrow Agent shall have no further liability or obligation of any kind whatsoever.

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(iv) Escrow Agent shall have the right at any time to resign upon ten (10) business days’ prior notice to Owner and Investor. Owner shall select a successor Escrow Agent and shall notify Escrow Agent and Investor of the name and address of such successor Escrow Agent within ten (10) business days after receipt of notice of Escrow Agent of its intent to resign, provided that such successor Escrow Agent selected by Owner is (x) a title company, trust company or similar company licensed to do business in the State of New York, (y) not an affiliate of Owner or Investor, and (z) approved by Investor, such approval not to be unreasonably withheld, conditioned or delayed. If Escrow Agent has not received notice of the name and address of such successor Escrow Agent within such period, or if such successor Escrow Agent selected by Owner does not satisfy the foregoing requirements, Escrow Agent shall have the right to select on behalf of Owner and Investor a bank or trust company licensed to do business in the State of New York and having a branch located in New York County to act as successor Escrow Agent hereunder. At any time after the ten (10) business day period, Escrow Agent shall have the right to deliver the Deposit to any successor Escrow Agent selected hereunder, provided such successor Escrow Agent shall execute and deliver to Owner and Investor an assumption agreement whereby it assumes all of Escrow Agent’s obligations hereunder. Upon the delivery of all such amounts and such assumption agreement, the successor Escrow Agent shall become the Escrow Agent for all purposes hereunder and shall have all of the rights and obligations of the Escrow Agent hereunder, and the resigning Escrow Agent shall have no further responsibilities or obligations hereunder. If Escrow Agent has drawn down on the proceeds available under the Letter of Credit as provided in Section 4(c)(vii) below at the time of delivery to any successor Escrow Agent, then any and all interest accrued thereon and held by Escrow Agent and any subsequent interest accrued thereon and held by such successor Escrow Agent after the transfer of the Deposit shall be delivered to the party that is otherwise entitled to the Deposit upon the disposition of the Deposit pursuant to the provisions of this Section 4(c) .

(v) Except as otherwise provided in Section 4(c)(iii) Owner and Investor each hereby agrees to severally (but not jointly) indemnify, defend and hold harmless Escrow Agent from and against fifty percent (50%) of any and all loss, cost, damage, expense and reasonable attorneys’ fees actually incurred by Escrow Agent arising out of it acting as the Escrow Agent hereunder, other than to the extent arising from Escrow Agent’s gross negligence or willful misconduct.

(vi) Upon receipt by Escrow Agent of any Cash Deposit, or if the Letter of Credit is drawn by Escrow Agent, Escrow Agent shall cause the same to be deposited into an interest bearing account at JPMorgan Chase Bank, it being agreed that Escrow Agent shall not be liable for (A) any loss of such investment (unless due to Escrow Agent’s negligence, willful misconduct or breach of its obligations hereunder) or (B) any failure to attain a favorable rate of return on such investment. The interest earned thereon shall be paid to the party entitled to receive the Deposit as provided in this Agreement. The party receiving such interest shall pay any income taxes thereon. Owner’s federal employer identification number is 20-0196262. Investor’s federal employer identification number is 04-3372948.

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(vii) The Letter of Credit shall have an initial expiration date which is no earlier than six (6) months from the date hereof. If the Letter of Credit has not been renewed or replaced in either case by the sixtieth (60th) day prior to its expiration date, or LOC Issuer has indicated that it will not renew the Letter of Credit, then Escrow Agent, not earlier than the sixtieth (60th) day before the Letter of Credit expires, shall draw down the entire proceeds of the Letter of Credit, but not before giving Investor five (5) business days’ written notice of Escrow Agent’s intention to do so, and then only if the Letter of Credit has not been renewed or replaced by Investor prior to the end of such five (5) business day period, in which event such proceeds shall be held in escrow by Escrow Agent as the “Deposit” in accordance with the terms of this Agreement, and all references to the Deposit shall be deemed to include any such proceeds so drawn and all interest earned thereon.

(viii) The provisions of this Section 4(c) shall survive the Closing or termination of this Agreement.

(d) At the Closing, (i) Owner shall be entitled to retain the Cash Deposit or the proceeds of the Letter of Credit drawn down by Escrow Agent as provided herein (together with the interest accrued thereon), which amount shall be deemed a part of, and credited against, the Investor Contribution and the Macklowe Distribution, and (ii) Investor shall deliver the balance of the Investor Contribution (i.e., the Investor Contribution (less the amount of any Cash Deposit or the proceeds of any Letter of Credit drawn down by Escrow Agent as provided herein, and in either case any interest accrued thereon, delivered to Owner, but without any reduction for any Letter of Credit), by wire transfer of immediately available funds as herein provided, subject to apportionment as provided in Section 7 below.

(e) All monies payable by Investor or the Company under this Agreement, unless otherwise specified in this Agreement, shall be paid by Investor or the Company, as applicable, causing such monies to be wire transferred in immediately available federal funds to a bank account or accounts at a bank or banks in the United States as designated by (i) Investor, in the case of payments to the Company, and (ii) Owner, in the case of the Macklowe Distribution or any other payments to Owner, and divided into such amounts as may be designated by Investor or Owner, as applicable, to facilitate the consummation of the transactions contemplated by this Agreement.

(f) As used in this Agreement, the term “ business day ” shall mean every day other than Saturdays, Sundays, all days observed by the federal or New York State government as legal holidays and all days on which commercial banks in New York State are required by law to be closed.

(g) Any reference in this Agreement to a “ day ” or a number of “ days ” (other than references to a “business day” or “business days”) shall mean a calendar day or calendar days.

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Subject to the terms and provisions of this Agreement, on the Closing Date, the Premises shall be contributed, assigned and conveyed by Owner to the Subsidiary Owner, and the Subsidiary Owner shall accept the same, subject only to the following (collectively, the “ Permitted Encumbrances ”):

(a) the state of facts disclosed (the “ Disclosed Survey Items ”) on the survey performed by Earl B. Lovell-S.P. Belcher, Inc. dated July 26, 1998 and most recently updated by visual examination made by Fehringer Surveying, P.C. on May 19, 2007 (the “ Survey ”), which the parties acknowledge that Investor has received and reviewed, and any further state of facts which are not Disclosed Survey Items as a current survey or private inspection of the Premises would disclose, provided such further state of facts would not materially and adversely affect the current uses of the Premises;

(b) the standard printed exclusions from coverage contained in the ALTA form of owner’s title policy currently in use in New York, with the standard New York endorsement, and all matters set forth on Schedule 5(b) ;

(c) Non-Objectionable Encumbrances (as hereinafter defined); and any liens, encumbrances or other title exceptions approved or waived by Investor as provided in this Agreement;

(d) Property Taxes (as hereinafter defined) which are a lien but not yet due and payable, subject to proration in accordance with Section 7 hereof;

(e) any laws, rules, regulations, statutes, ordinances, orders or other legal requirements affecting the Premises, including, without limitation, all zoning, land use, building and environmental laws, rules, regulations, statutes, ordinances, orders or other legal requirements, including landmark designations and all zoning variance and special exceptions, if any;

(f) all utility company rights, covenants, restrictions, easements and franchises relating to electricity, water, steam, gas, telephone, sewer or other service or the right to use and maintain poles, lines, wires, cables, pipes, boxes and other fixtures and facilities in, over, under and upon the Premises, provided, that in the case of any of the foregoing items which shall not be of record as of the date hereof, the same do not materially adversely affect the present use of the Premises;

(g) any installment not yet due and payable of assessments imposed after the date hereof and affecting the Premises or any portion thereof;

(h) all Violations (as hereinafter defined) now or hereafter issued or noted;

(i) the rights and interests held by tenants under the Leases in effect at Closing and others claiming by, through or under such Leases (and any non-disturbance agreements and memorandum of lease relating thereto of record or as otherwise set forth on Schedule 5(b) (it being understood that nothing contained in this Section 5(i) shall impair Owner’s obligations under Section 9(b) hereof);

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(j) consents by Owner or any former owner of all or a portion of the Premises for the erection of any structure or structures on, under or above any street or streets on which the Premises may abut;

(k) possible encroachments and/or projections of stoop areas, roof cornices, window trims, vent pipes, cellar doors, steps, columns and column bases, flue pipes, signs, piers, lintels, window sills, fire escapes, satellite dishes, protective netting, sidewalk sheds, ledges, fences, coping walls (including retaining walls and yard walls), air conditioners and the like, if any, on, under, or above any street or highway;

(l) any lien or encumbrance (including, without limitation, any mechanics’ lien or materialmen’s lien), the removal of which is the obligation of a tenant under a Lease (it being understood that nothing contained in this Section 5(l) impairs Owner’s obligations under Section 9(a) hereof); and

(m) all other matters which, pursuant to the terms of this Agreement, are deemed Permitted Encumbrances.

(a) (i) The parties acknowledge that Investor has received and reviewed that certain Title Commitment No. 08-7406-18927-NYM issued by Fidelity National Title Insurance Company, dated March 14, 2008 (the “ Existing Title Report ”). At the Closing, the Company (or the Subsidiary Owner) shall obtain, at Investor’s sole cost and expense, a policy of owner’s title insurance from Fidelity National Title Insurance Company (on a direct basis through Neil Clark), and any other title insurance companies that Purchaser designates and which are acceptable to the Existing Lenders (collectively, the “ Title Company ”) in an amount not less than $2,800,000,000.00.

(ii) Investor shall have no right to object to any exceptions or other matters affecting title disclosed in the Existing Title Report or Survey which are Permitted Encumbrances.

(iii) Investor shall direct the Title Company to deliver a new title report and any updates thereto to Owner simultaneously with its delivery of the same to Investor. If, prior to the Closing Date, the Title Company shall deliver any such new title report and any update thereto which discloses additional liens, encumbrances or other title exceptions which were not disclosed by the Existing Title Report and are not Disclosed Survey Items and which do not otherwise constitute Permitted Encumbrances hereunder (each, an “ Update Exception ”), then Investor shall have until the earlier of (x) five (5) business days after delivery of such report or any update thereto to Investor or its counsel or (y) the business day immediately preceding the Closing Date, time being of the essence (the “ Update Objection Deadline ”), to deliver written notice to Owner objecting to any of the Update Exceptions (the “ Update Objections ”; the Update

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Objections are also collectively referred to herein as the “ Title Objections ”). If Investor fails to deliver such objection notice by the Update Objection Deadline, Investor shall be deemed to have waived its right to object to any Update Exceptions (and the same shall not constitute Title Objections, but shall instead be deemed Permitted Encumbrances). If Investor shall deliver such objection notice by the Update Objection Deadline, any Update Exceptions which are not objected to in such notice shall not constitute Title Objections, but shall be Permitted Encumbrances.

(iv) Investor shall not be entitled to object to, and shall be deemed to have approved, any liens, encumbrances or other title exceptions (and the same shall not constitute Title Objections, but shall instead be deemed to be Permitted Encumbrances) (A) over which the Title Company is willing to insure (without additional cost to Investor or where Owner pays such cost for Investor), (B) against which the Title Company is willing to provide affirmative insurance (without additional cost to Investor or where Owner pays such cost for Investor), (C) which will be extinguished upon the transfer of the Premises, or (D) which are the responsibility of any tenant under the Leases to cure, correct or remove (collectively, the “ Non-Objectionable Encumbrances ”). Notwithstanding anything to the contrary contained herein, if Owner is unable to eliminate the Title Objections by the Scheduled Closing Date, unless the same are waived by Investor without any abatement in the Investor Contribution, Owner may, from time to time, upon at least two (2) business days’ prior notice to Investor (except with respect to matters first disclosed during such two (2) business day period, as to which matters notice may be given at any time through and including the Scheduled Closing Date) adjourn the Scheduled Closing Date, for a period not to exceed ninety (90) days in the aggregate (the “ Title Cure Period ”), in order to attempt to eliminate such exceptions.

(b) If Owner is unable to eliminate any Title Objection within the Title Cure Period which Owner is not obligated to eliminate pursuant to the provisions of Section 6(c) below, then, upon notice from Owner that Owner is unable to eliminate such Title Objection, and unless the same is waived by Investor, Investor may (i) cause the Subsidiary Owner to accept the Premises subject to such Title Objection without abatement of the Investor Contribution, in which event (x) such Title Objection shall be deemed to be, for all purposes, a Permitted Encumbrance, (y) Investor shall close hereunder notwithstanding the existence of same, and (z) Owner shall have no obligations whatsoever after the Closing Date with respect to Owner’s failure to cause such Title Objection to be eliminated, or (ii) terminate this Agreement by notice given to Owner within ten (10) business days following the date that Owner gives Investor notice that Owner is unable to eliminate such Title Objection, time being of the essence. If Purchaser shall fail to deliver the termination notice described in clause (ii)  above within the ten (10) business day period described therein, time being of the essence, Purchaser shall be deemed to have made the election under clause (i)  above. Upon the timely giving of any termination notice under clause (ii)  above, Investor shall be entitled to a return of the Deposit, this Agreement shall terminate and neither party hereto shall have any further rights or obligations hereunder with respect thereto other than those which are expressly provided to survive the termination hereof.

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(c) Subject to the terms of this Section 6 , it is expressly understood that in no event shall Owner be required to bring any action or institute any proceeding, or to otherwise incur any costs or expenses in order to attempt to eliminate any Title Objections, or take any other actions to cure or remove any Title Objections, or to otherwise cause title to the Premises to be in accordance with the terms of this Agreement on the Closing Date. Owner shall be required to remove, by payment, bonding or otherwise, any Title Objections which (1) can be satisfied and discharged of record by the payment of a liquidated sum not in excess of Ten Million Dollars ($10,000,000) in the aggregate for all such Title Objections, (2) are mechanics’ liens or materialmen’s liens arising from work contracted for by Owner, provided that Owner shall not be obligated to remove, by payment, bonding or otherwise, mechanics’ and materialmen’s liens which are the responsibility of any tenant under a Lease to pay, bond or remove or (3) otherwise have been voluntarily granted by Owner and recorded against the Premises on or after May 1, 2008 (other than (x) Permitted Encumbrances, and (y) any Title Objection with which Owner has the right to encumber the Property pursuant to Section 9 ).

(d) If Owner shall have adjourned the Scheduled Closing Date in order to cure Title Objections in accordance with the provisions of this Section 6 , Owner shall, upon the satisfactory cure thereof, promptly reschedule the Scheduled Closing Date, upon at least seven (7) business days’ prior notice to Investor (the “ New Closing Notice ”); it being agreed, however, that if any Title Objections arise between the date the New Closing Notice is given and the rescheduled Scheduled Closing Date, Owner may again adjourn the Closing for a reasonable period or periods, in order to attempt to cause such exceptions to be eliminated; provided , that Owner shall not be entitled to adjourn the new Scheduled Closing Date pursuant to this Section 6 for a period or periods that, when aggregated with the number of days which Owner has previously adjourned the Closing in accordance with this Agreement (but excluding Section 36(b) , it being agreed that any extension by Owner under Section 36(b) shall be in addition to any extension(s) under this Section 6(d) ), exceed ninety (90) days in the aggregate.

(e) If the Existing Title Report discloses judgments, bankruptcies or other returns against other persons having names the same as or similar to Owner or that of any entity making up Owner, on request Owner shall deliver to the Title Company affidavits showing that such judgments, bankruptcies or other returns are not against Owner or any such entity making up Owner in order to induce the Title Company to omit exceptions with respect to such judgments, bankruptcies or other returns or to insure over same.

(f) Investor and the Company agree that the Premises shall be accepted subject to any and all notes or notices of violations of law, or municipal ordinances, orders, designations or requirements whatsoever noted in or issued by any federal, state, municipal or other governmental department, agency or bureau or any other governmental authority having jurisdiction over the Premises (collectively, “ Violations ”), or any condition or state of repair or disrepair or other matter or thing, whether or not noted, which, if noted, would result in a Violation being placed on the Premises. Owner shall have no duty to remove or comply with or repair any condition, matter or thing

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whether or not noted, which, if noted, would result in a Violation being placed on the Premises. Owner shall have no duty to remove or comply with or repair any of the aforementioned Violations, or other conditions, and the Subsidiary Owners shall accept the Premises subject to all such Violations, the existence of any conditions at the Premises which would give rise to such Violations, if any, and any governmental claims arising from the existence of such Violations, in each case without any abatement of or credit against the Investor Contribution or the Macklowe Distribution.

(g) If any of the title companies comprising the Title Company shall be unwilling to remove any Title Objections which any Owner Designated Title Company would be willing to remove without additional premium (unless paid by Owner), then Owner shall have the right to substitute any such Owner Designated Title Company for any one or more of the title insurance companies comprising the Title Company (subject to each such title insurance company’s internal aggregate maximum risk exposure and otherwise on the same terms and conditions set forth in each such title insurance company’s standard title insurance agreement or commitment, as the case may be), provided that if Investor elects not to use any such Owner Designated Title Company, such Title Objections which such Owner Designated Title Company would be willing to remove shall not constitute Title Objections and shall be deemed Permitted Encumbrances. “ Owner Designated Title Company ” shall mean any of the following: Chicago Title Insurance Company, First American Title Insurance Company, Stewart Title Insurance Company, Commonwealth Title Insurance Company, Lawyers Title Insurance Company, LandAmerica Title Insurance Company (either directly or through an authorized agent).

(a) The following shall be apportioned between Owner and the Company as of 11:59 p.m. on the day immediately preceding the Closing Date (the “ Apportionment Date ”) on the basis of the actual number of days of the month which shall have elapsed as of the Closing Date and based upon the actual number of days in the month and a 365 day year:

(i) subject to Section 7(b) below, prepaid rents, fixed rents and additional rents payable pursuant to the Leases (including, without limitation, operating expense escalation payments, real estate tax escalation payments and percentage rent, if any, payable under the Leases) (collectively, “ Rents ”);

(ii) real estate taxes, sewer rents and taxes, water rates and charges, vault charges and taxes, business improvement district taxes and assessments and any other governmental taxes, charges or assessments levied or assessed against the Premises (collectively, “ Property Taxes ”), on the basis of the respective periods for which each is assessed or imposed, to be apportioned in accordance with Section 7(c) below;

(iii) administrative charges, if any, permitted under the Leases or applicable law, on security deposits held pursuant to the Leases;

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(iv) fuel, if any, as estimated by Owner’s supplier, at current cost, together with any sales taxes payable in connection therewith, if any (a letter from Owner’s fuel supplier dated no later than three (3) business days prior to the Closing shall be conclusive evidence as to the quantity of fuel on hand and the current cost therefor);

(v) prepaid fees for licenses and other permits assigned to the Company at the Closing;

(vi) any amounts prepaid or payable by Owner under the Contracts that the Company is otherwise obligated to assume as of the Closing Date in accordance with the terms hereof;

(vii) wages and fringe benefits (including, without limitation, vacation pay, sick days, health, welfare, pension and disability benefits) and other compensation payable to all Employees (it being understood, however, that the Company shall not be liable for any portion of any withdrawal liability assessed in connection with or related to events occurring prior to the Closing Date);

(viii) interest payable on the Existing Loans; and

(ix) such other items as are customarily apportioned in real estate closings of commercial properties in The City of New York, State of New York.

(b) (i) Monthly base rents (collectively, “ Base Rents ”) under the Leases shall be adjusted and prorated on an if, as and when collected basis. Base Rents collected by the Company (or the Subsidiary Owner) or Owner after the Closing Date from tenants who owe Base Rents for periods prior to the Closing Date, shall be applied, (A) first to all rents due and payable by the tenant in question for the calendar month in which the Closing occurs, then (B) to all rents due and payable by such tenant for the calendar months following the month in which the Closing occurs, then (C) to all delinquent rents due and payable by such tenant for the calendar months preceding the calendar month in which the Closing occurs. Each such amount, less reasonable collection costs, shall be adjusted and prorated as provided above, and the party receiving such amount shall, within five (5) business days, pay to the other party the portion thereof to which it is so entitled.

(ii) The Company, after the Closing, shall cause the Subsidiary Owner to bill tenants owing Base Rents for periods prior to the Closing Date, on a monthly basis and use commercially reasonable efforts to collect such past due Base Rents; provided , that the Subsidiary Owner shall have no obligation to commence any actions or proceedings to collect any such past due Base Rents or terminate any Lease. Investor shall provide or cause to be provided to Owner monthly reports setting forth the status of such collection efforts. In addition to the foregoing, Owner may take all steps it deems appropriate, including litigation, to collect Base Rents delinquent as of the Closing Date which are still uncollected; provided , that Owner may not cause any Lease to be terminated. Any such amounts that Owner collects after the Closing shall be applied by Owner as provided in Section 7(b)(i) hereof.

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(iii) With respect to any Lease that provides for the payment of additional or escalation rent based upon (A) a percentage of a tenant’s gross sales during a specified annual or other period or (B) increases in real estate taxes, operating expenses, labor costs, cost of living indices or porter’s wages (collectively, “ Overage Rent ”), such Overage Rent shall be adjusted and prorated on an if, as and when collected basis as set forth below.

(iv) The Company, after the Closing, shall cause the Subsidiary Owner to (A) promptly render bills for any Overage Rent payable for any accounting period that expired prior to the Closing Date or an accounting period in which the Closing Date occurs, but which is to be paid after the Closing Date or an accounting period in which the Closing Date occurs; (B) bill tenants for such Overage Rent attributable to an accounting period that expired prior to the Closing Date, on a monthly basis; and (C) use commercially reasonable efforts in the collection of such Overage Rent; provided , that the Subsidiary Owner shall have no obligation to commence any actions or proceedings to collect any such Overage Rents or terminate any Lease. In addition to the foregoing, Owner shall have the right to pursue tenants to collect such delinquencies (including, without limitation, the prosecution of one or more lawsuits) which, if collected, shall be applied as provided herein; provided , that Owner may not cause any Lease to be terminated. Owner shall furnish to the Company all information relating to the period prior to the Closing Date necessary for the billing of such Overage Rent, and the Company shall to deliver to Owner, concurrently with delivery to tenants, copies of all statements relating to Overage Rent for any period prior to the Closing Date. The Company, after the Closing, shall cause the Subsidiary Owner to bill tenants for Overage Rents for accounting periods prior to the Closing Date and accounting periods in which the Closing Date occurs in accordance with and on the basis of such information furnished by Owner.

(v) Subject to the terms of this Section 7(b)(v) , Overage Rent payable for the accounting period in which the Closing Date occurs shall be apportioned between Owner and the Company based upon the ratio that the number of days in such accounting period prior to the Closing Date bears to the number of days in the entire such accounting period. If, prior to the Closing Date, Owner receives any installments of Overage Rent attributable to Overage Rent for periods from and after the Closing Date, such sums (less reasonable collection costs) shall be apportioned on the Closing Date. If the Company or the Subsidiary Owner receives any installments of Overage Rent attributable to Overage Rent for an accounting period ending prior to the Closing Date or Owner’s proportionate share of Overage Rent attributable to an accounting period in which the Closing Date occurs, such sums (less reasonable collection costs actually incurred by the Company or the Subsidiary Owner shall be paid to Owner within five (5) business days after the Company or the Subsidiary Owner receives payment thereof. If, after the Closing Date, Owner receives any installments of Overage Rent attributable to Overage Rent for the Company’s proportionate share of Overage Rent attributable to an accounting period in which the Closing Date occurs, or

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an accounting period commencing on or after the Closing Date, such sums (less reasonable collection costs actually incurred by Owner) shall be paid to the Company within five (5) business days after Owner receives payment thereof.

(vi) Any payment by tenants of Overage Rent shall be applied to Overage Rents then due and payable in the following order of priority: (A) first, in payment of Overage Rents by the applicable tenant for the accounting period in which the Closing Date occurs (subject to apportionment pursuant to this Section 7 ); (B) second, in payment of Overage Rents by such tenant for the period preceding the accounting period in which the Closing Date occurs; and (C) third, in payment of Overage Rents by such tenant for the accounting period following the one in which the Closing Date occurs.

(vii) To the extent any portion of Overage Rent is required to be paid monthly or in other periodic installments by tenants on account of estimated amounts for the current period, and at the end of each calendar year (or, if applicable, at the end of each lease year or tax year or any other applicable accounting period), such estimated amounts are to be recalculated based upon the actual expenses, taxes and other relevant factors for that calendar (lease or tax) year, with the appropriate adjustments being made with such tenants, then such portion of the Overage Rent shall be prorated between Owner and the Company on the Closing Date based on such estimated payments (i.e., with (x) Owner entitled to retain all monthly installments of such amounts with respect to periods prior to the calendar month in which the Closing Date occurs, to the extent such amounts are as of the Closing Date estimated to equal the amounts ultimately due to Owner for such periods, (y) the Company entitled to receive all monthly installments of such amounts with respect to periods following the calendar month in which the Closing Date occurs, and (z) Owner and the Company apportioning all monthly installments of such amounts with respect to the calendar month in which the Closing Date occurs). At the time(s) of final calculation and collection from (or refund to) tenants of the amounts in reconciliation of actual Overage Rent for a period for which estimated amounts have been prorated, there shall be a re-proration between Owner and the Company, with the net credit resulting from such re-proration, after accounting for amounts required to be refunded to tenants, being payable to the appropriate party (i.e., to Owner if the recalculated amounts exceed the estimated amounts and to the Company if the recalculated amounts are less than the estimated amounts). For the avoidance of doubt, the parties acknowledge and agree that, for purposes of this Section 7(b)(vii) , the accounting period for the reconciliation of percentage rent based on sales under that certain Agreement of Lease between Apple Computer, Inc. and Owner, dated November 15, 2005, shall be deemed the period commencing on September 30 and ending on September 29 of the following year.

(viii) To the extent that any amounts are paid or payable to Owner by a tenant under a Lease in advance of the period to which such expense applies, whether as a one time payment or in installments (e.g., for real property tax escalations), such amounts shall be apportioned as provided above but based upon the period for which such payments were or are being made.

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(ix) To the extent tenants pay items of Rent which are not Base Rents or Overage Rents, such as charges for electricity, steam, water, cleaning, overtime services, sundry charges or other charges of a similar nature (collectively, “ Additional Rent ”), such rent shall be applied based on the period covered by such Additional Rent charge (i.e., the period the applicable work, utility or service was provided). If (x) Owner or the Company (or the Subsidiary Owner, as applicable) receives a payment from a tenant for Additional Rent, and (y) such tenant does not specify the time period or the particular charge to which such payment relates, then the Additional Rent shall be applied in the following order of priority: (A) first, for the period in which the Closing Date occurred (subject to apportionment pursuant to this Section 7 ); (B) second, for the period or periods preceding the period in which the Closing Date occurred; and (C) third, for the most recent period or periods after the Closing Date such work, utility or service was provided. In the case of any Additional Rent payable for a period that expired prior to the Closing Date, but which is to be paid after the Closing Date, the Company shall pay the entire amount thereof to Owner within five (5) business days after receipt thereof, less any reasonable collection costs actually incurred. The Company, after the Closing, shall cause the Subsidiary Owner to (A) promptly render bills for any Additional Rent payable for any period that expired prior to the Closing Date, but which is to be paid after the Closing Date; (B) bill tenants for such Additional Rent attributable to a period that expired prior to the Closing Date, on a monthly basis, and (C) use commercially reasonable efforts in the collection of such Additional Rent; provided , that the Subsidiary Owner shall have no obligation to commence any actions or proceedings to collect any such Additional Rent or terminate any Lease. In addition to the foregoing, Owner shall have the right to pursue tenants to collect such delinquencies due for the period prior to the Closing Date (including, without limitation, the prosecution of one or more lawsuits) which, if collected, shall be applied as provided herein; provided, that Owner may not cause any Lease to be terminated. Owner shall furnish to the Company all information relating to the period prior to the Closing Date necessary for the billing of such Additional Rent, and the Company shall cause the Subsidiary Owner to deliver to Owner, concurrently with delivery to tenants, copies of all statements relating to Additional Rent for any period prior to the Closing Date. The Company shall cause the Subsidiary Owner to bill tenants for Additional Rent relating to periods prior to the Closing Date in accordance with and on the basis of such information furnished by Owner. Additional Rent payable for the period in which the Closing Date occurs shall be apportioned between Owner and the Company based upon the same method used to apportion the underlying expense being billed to such tenant, or if such expense is not being apportioned, then based upon the ratio that the portion of such accounting period prior to the Closing Date bears to the entire such accounting period.

(x) To the extent any payment received from a tenant after Closing does not indicate whether the payment is for an item of Base Rent, Overage Rent or Additional Rent, and the same cannot be clearly determined from the context of such payment, then such payment will be applied (x)  first , to payment of any Base Rent then due or delinquent, in accordance with Sections7(b)(i) and 7(b)(ii) above, (y)  second , to payment of any Additional Rent then due or delinquent, in accordance with Section 7(b)(ix) above and (z)  third to any Overage Rent then due or delinquent, in accordance with Sections 7 (b)(iii) - 7(b)(viii) above.

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(c) Property Taxes shall be apportioned on the basis of the fiscal period for which assessed. If the Closing Date shall occur before an assessment is made or a tax rate is fixed for the tax period in which the Closing Date occurs, the apportionment of such Property Taxes based thereon shall be made at the Closing Date by applying the tax rate for the preceding year to the latest assessed valuation, but, promptly after the assessment and/or tax rate for the current year are fixed, the apportionment thereof shall be recalculated and Owner or the Company shall make an appropriate payment to the other within five (5) business days based on such recalculation. If as of the Closing Date the Premises or any portion thereof shall be affected by any special or general assessments which are or may become payable in installments of which the first installment is then a lien and has become payable, Owner shall pay the unpaid installments of such assessments which are due prior to the Closing Date and the Company shall pay the installments which are due on or after the Closing Date.

(d) If there are water meters at the Premises, the unfixed water rates and charges and sewer rents and taxes covered by meters, if any, shall be apportioned (i) on the basis of an actual reading done within thirty (30) days prior to the Apportionment Date, or (ii) if such reading has not been made, on the basis of the last available reading. If the apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Owner shall deliver to the Company or the Company shall deliver to Owner, as the case may be, the amount determined to be due upon such readjustment.

(e) Charges for all electricity, steam, gas and other utility services (collectively, “ Utilities ”) shall be billed to Owner’s account up to the Apportionment Date and, from and after the Apportionment Date, all Utilities shall be billed to the Company’s account. If for any reason such changeover in billing is not practicable as of the Closing Date as to any Utility, such Utility shall be apportioned on the basis of actual current readings or, if such readings have not been made, on the basis of the most recent bills that are available. If any apportionment is not based on an actual current reading, then upon the taking of a subsequent actual reading, the parties shall, within ten (10) business days following notice of the determination of such actual reading, readjust such apportionment and Owner shall promptly deliver to the Company, or the Company shall promptly deliver to Owner, as the case may be, the amount determined to be due upon such adjustment.

(f) At the Closing, Owner shall receive a credit for the cost to Owner of all cleaning and other supplies that constitute Personalty and are in unopened cartons or packages located at the Premises based on invoices therefor.

(g) The Company shall have no right to receive any rental insurance proceeds in respect of the Premises which relate to the period prior to the Closing Date and, if any such proceeds are delivered to the Company, the Company shall, within five (5) business days following receipt thereof, pay the same to Owner. Owner shall have no right to receive any rental insurance proceeds which relate to the period on

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or after the Closing Date and, if any such proceeds are delivered to Owner, Owner shall, within five (5) business days following receipt thereof, pay the same to the Company. If a fire or other casualty occurs at the Premises prior to the Closing, then, after the Closing, Owner shall cooperate with the Company in making a claim against Owner’s insurer for tenant rent abatement proceeds that are payable with respect to the period after the Closing (it being understood that the Company (or the Subsidiary Owner) shall receive any and all of the rental insurance proceeds from such claim for rental insurance proceeds for the period after the Closing). Owner, effective as of the date hereof, shall have the Subsidiary Owner named as an additional insured (as its interests may appear) on Owner’s rental insurance policy to facilitate the payment of any claims by Owner’s rent insurer directly to the Company (or the Subsidiary Owner) for a loss which extends beyond the Closing (and Owner, during the period from the date hereof to the Closing Date, shall not change or otherwise reverse the Company’s (or the Subsidiary Owner’s) being so named as an additional insured on such policy).

(h) (i) Subject to the terms of this Section 7(h)(i) , if the Closing occurs, then the Company shall be responsible for the payment of all Future Commissions. For purposes hereof, the term “ Future Commissions ” shall mean, (1) the leasing commissions set forth on Schedule 7(h) , (2) any leasing commissions which may become due and payable (whether before or after the Closing Date) pursuant to the Brokerage Agreements (as hereinafter defined) by reason of the exercise by a tenant under a Lease of any renewal option, extension option, expansion option, lease of additional space, right of first offer, right of first refusal or similar right or option or the lapse or waiver by a tenant under a Lease of any right of cancellation in each case on or after the date hereof, and (3) all leasing commissions which may become due and payable (whether before or after the Closing Date) in connection with any new Leases entered into between the date hereof and the Closing Date and which have been approved (or deemed approved) by Investor to the extent required by the terms hereof (including, without limitation, in connection with any Pending Lease Transaction). If, as of the Closing Date, Owner shall have paid any leasing commissions for which the Company is responsible pursuant to the foregoing provisions, the Company shall reimburse Owner therefor at Closing; provided , that Owner shall supply invoices and statements for all such leasing commissions to the Company prior to the Closing Date. If, as of the Closing Date, there remains payable any brokerage commissions for any of the Leases that remain in effect on the Closing Date (other than the Future Commissions), then Investor shall be entitled to a credit in the amount thereof, provided that Investor shall be responsible for the payment of such brokerage commission(s) from and after the Closing Date. Investor shall indemnify and hold Owner harmless with regard to the payment of such brokerage commission(s) for which Investor has received a credit for at Closing.

(ii) If the Closing occurs, then the Company shall be responsible for the payment of all Future Tenant Inducement Costs. For purposes hereof, the term “ Future Tenant Inducement Costs ” shall mean, (1) the Tenant Inducement Costs set forth on Schedule 7(h) , (2) any Tenant Inducement Costs which may become due and payable (whether before or after the Closing Date) pursuant to the Leases by reason of the exercise of any renewal option, extension option, expansion option, lease of additional space, right of first offer, right of first refusal or similar right or option or the

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lapse or waiver of any right of cancellation on or after the date hereof, and (3) all Tenant Inducement Costs which may become due and payable (whether before or after the Closing Date) in connection with any new Leases entered into between the date hereof and the Closing Date and which have been approved (or deemed approved) by Investor to the extent required by the terms hereof (including, without limitation, in connection with any Pending Lease Transaction). If, as of the Closing Date, Owner shall have paid any Tenant Inducement Costs for which the Company is responsible pursuant to the foregoing provisions, the Company shall reimburse Owner therefor at Closing. For purposes hereof, the term “ Tenant Inducement Costs ” shall mean any out-of-pocket payments required under a Lease to be paid by the landlord thereunder to or for the benefit of the tenant thereunder which is in the nature of a tenant inducement or concession, including, without limitation, tenant improvement costs, design, refurbishment and other work allowances, lease buyout costs, and moving allowances; provided , that “Tenant Inducement Costs” shall not include loss of income resulting from any free rental period (it being agreed that Owner shall bear such loss resulting from any free rental period with respect to the period prior to the Closing Date and that the Company shall bear such loss with respect to the period from and after the Closing Date). If, as of the Closing Date, there remains payable any Tenant Inducement Costs for any of the Leases that remain in effect on the Closing Date (other than the Future Tenant Inducement Costs), then Investor shall be entitled to a credit in the amount thereof, provided that Investor shall be responsible for the payment of such Tenant Inducement Costs from and after the Closing Date. Investor shall indemnify and hold Owner harmless with regard to the payment of such Tenant Inducement Costs for which Investor has received a credit for at Closing.

(i) No less than five (5) days before and no more than ten (10) days prior to the Closing, Owner shall prepare and deliver to Investor a preliminary closing statement (the “ Preliminary Closing Statement ”) which shall show the net amount due either to Owner or to the Company as the result of the adjustments and prorations provided for in this Agreement, and such net due amount will be (A) in the case of any net amount due to Owner, added to the Investor Contribution to be contributed to the Company and distributed to Owner (in addition to the Macklowe Distribution) on the Closing Date, or (B) in the case of any net amount due to the Company, subtracted from the Macklowe Distribution and retained by the Company, as applicable. Investor shall deliver to Owner any comments that Investor may have to the Preliminary Closing Statement not later than three (3) days prior to the Closing and the parties shall endeavor to agree on the Preliminary Closing Statement no later than (1) day prior to the Closing. Notwithstanding anything to the contrary contained herein, the failure of Investor and Owner to agree to the Preliminary Closing Statement shall not be a condition to either Owner’s or Investor’s obligation to close under this Agreement. Not later than the first (1 ^st ) anniversary of the Closing Date, Owner and Investor and/or their respective agents or designees will meet to jointly prepare a final closing statement reasonably satisfactory to Owner and Investor in form and substance (the “ Final Closing Statement ”) setting forth the final determination of the adjustments and prorations provided for in this Agreement, setting forth any items which are not capable of being determined at such time (and the manner in which such items shall be determined and paid) and correcting any errors in calculation. The net amount due Owner or the Company, if any, by reason of adjustments to the Preliminary Closing Statement as shown on the Final Closing

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Statement, shall be paid in cash by the party obligated therefor within five (5) business days following that party’s receipt of the approved Final Closing Statement. The adjustments, prorations and determinations agreed to by Owner and Investor in the Final Closing Statement shall be conclusive and binding on the parties hereto except for any items which are not capable of being determined at the time the Final Closing Statement is agreed to by Owner and Investor, which items shall be determined and paid in the manner set forth herein and except for other amounts payable hereunder pursuant to provisions which survive the Closing. Prior to and following the Closing Date, each party shall provide the other with such information as the other shall reasonably request (including, without limitation, access to the books, records, files, ledgers, information and data with respect to the Property during normal business hours upon reasonable advance notice) in order to make the preliminary and final adjustments and prorations provided for herein.

(j) If any payment to be made after Closing under this Section 7 shall not be paid when due hereunder, the same shall bear interest (which shall be paid together with the applicable payment hereunder) from the date due until so paid at a rate per annum equal to the Prime Rate (as such rate may vary from time to time) as reported in The Wall Street Journal plus 5% (the “ Default Rate ”). To the extent a payment provision in this Section 7 does not specify a period for payment, then for purposes hereof such payment shall be due within five (5) business days of the date such payment obligation is triggered.

(k) In the event that, based upon the final adjudication of an audit that is currently being conducted on the date hereof by any of the tenants set forth on Schedule 11(c)(ii)-3 with respect to their respective Leases, such tenant is entitled to a refund of any Overage Rents payable under its Lease with respect to accounting periods ending prior to the Closing Date, then Owner shall pay to Investor an amount equal to such refund within five (5) business days after Owner receives notice from Investor thereof. Investor shall pay any such refunds in respect of accounting periods commencing after such Closing Date. Any such refunds in respect of an accounting period in which a Closing Date occurs shall be apportioned between Owner and Investor based upon the ratio that the number of days in such accounting period prior to such Closing Date bears to the number of days in the entire such accounting period. Owner shall pay to Investor the proportional share of any such refunds which Owner is obligated to pay in respect of the accounting period in which such Closing Date occurs within five (5) business days after Owner receives notice from Investor thereof. Prior to the Closing, Owner shall administer any audits which may be conducted by any tenant and may settle any audit claims by any of such tenants without Investor’s consent; provided , that Owner shall not settle any such audit claims and shall be required to obtain Investor’s consent (which consent shall not be unreasonably withheld, conditioned or delayed) to any such settlement that (A) is an amendment to the Lease with respect to the provisions for the payment of Overage Rents which amendment would be binding on Investor after such Closing, (B) defers the repayment by Owner under the Lease of any refund of Overage Rent in a manner such that Investor would be liable for a greater amount of such refund than would be the case without such deferral or (C) changes the amount that the Company (or Subsidiary Owner, as applicable) is required to use as the base amount for

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operating expense escalation charges. From and after the Closing, Owner and Investor shall mutually administer any audits which are being conducted by the foregoing tenants and are pending as of the Closing Date, and Investor shall not settle any audit claims by any of such tenants in respect of accounting periods ending prior to such Closing Date or any accounting period in which such Closing Date occurs, in each case without Owner’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed to the extent that any such settlement would result in Owner being liable for making any payment in respect thereof under this Section 7(k) or otherwise. Notwithstanding anything to the contrary contained in this Section 7 or elsewhere in this Agreement, if any audit of charges for Overage Rent is commenced by any tenant after the date hereof, Owner shall not be liable for any monies owed, if any, to such tenant, whether accruing prior to or after the Closing.

(l) The provisions of this Section 7 shall survive the Closing.

Notwithstanding anything to the contrary contained herein, it is expressly agreed by the parties hereto that any fixtures, furniture, furnishings, equipment or other personal property (including, without limitation, trade fixtures in, on, around or affixed to the Building) owned or leased by any tenant, managing agent (except for equipment located at the Premises and owned by the existing managing agent that is necessary to operate the Building), leasing agent, contractor, or employee at any Building, and any personal property owned by Owner or Owner’s property manager located on the 21st floor of the Premises (collectively, “ Excluded Personalty ”), shall not be included in the Property being contributed to the Company by Owner hereunder.

(a) During the period from the date hereof until the Closing Date, Owner shall:

(i) be permitted to enter into any agreements with unrelated third parties with respect to all or any portion of the Property provided that such agreements expire by their terms on or prior to the Closing Date or, in accordance with its terms, would not be effective following the Closing Date, or, in the case of Contracts, are on commercially reasonable terms and are entered into in the ordinary course of business and may be terminated by the owner of the Property without penalty upon not more than thirty (30) days’ (or less) prior notice; provided , that if an emergency occurs during the period from the date hereof to the Closing Date, then Owner shall have the right to enter into a Contract to respond thereto on commercially reasonable terms taking into account that Owner must react on an emergency basis (regardless of whether such Contract is terminable by the owner of the Property on thirty (30) (or less) days of prior notice), except that if such Contract is not terminable on 30 days’ (or less) prior notice, in no event shall any such Contract require the Company to (i) expend more than One Hundred Thousand Dollars ($100,000) in respect of the Property in the aggregate after the Closing or (ii) involve material capital improvements to the Property, unless, in either such case,

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Owner obtains the prior approval of Investor, such approval not to be unreasonably withheld, conditioned or delayed taking into account the emergency nature of such Contract (and Owner shall promptly deliver to Investor a copy of any such Contracts entered into after the date hereof and prior the Closing Date);

(ii) maintain in full force and effect the insurance policies currently in effect with respect to the Premises (or replacements continuing similar coverage) and which are evidenced by certificates of insurance listed on Schedule 9(a)(ii) ; provided , that Owner may make commercially reasonable modifications to such insurance policies if such modifications do not (i) materially reduce or adversely affect the insurance coverage existing as of the date hereof or (ii) result in an increased premium or deductible thereunder;

(iii) operate and manage the Premises in a manner consistent in all material respects with past practice, except that (A) Owner shall not be required to make any capital improvement or replacement to the Premises and (B) other than the work at the Premises described on Schedule 9(a)(iii) , which the Company shall assume at Closing and the cost of which shall be apportioned between the Company and Owner on a work-in-place basis at the Closing (i.e. Owner shall bear the cost of the work performed prior to the Closing and the Company shall bear the cost of all work remaining to be performed from and after the Closing), Owner shall not be permitted to undertake any new capital improvement or replacement to the Premises the cost of which Investor or the Company shall be responsible for except for any capital improvement or replacement which is (x) either (I) required by law or (II) necessary to avoid the imminent threat of damage or injury to persons or property (and Owner shall provide Investor with reasonable prior notice or, in the case of clause (II), such notice as is reasonable under the circumstances, and Investor shall have right to approve, which approval shall not be unreasonably withheld, conditioned or delayed, the terms of the contract providing for the performance of such capital improvement or replacement (but shall not have any approval right over whether Owner has the right to perform such capital improvement or replacement) unless, in the case of clause (II), in Owner’s good faith judgment, the circumstances do not reasonably allow sufficient time for Investor to review and approve the applicable contract for such capital improvement or replacement) or (y) with Investor’s prior approval, which approval shall not be unreasonably withheld, conditioned or delayed, necessary to maintain the current use of the Property and comply with the obligations of the lessor under the Leases and, in each of the foregoing cases, the actual cost of such new capital improvement or replacement shall be apportioned between Owner and the Company as of the Closing Date based upon the useful life of such capital improvement or replacement as determined in accordance with Generally Accepted Accounting Principles, consistently applied, and Owner shall deliver to Investor a copy of any contract relating to such new capital improvement work or replacements to the Premises;

(iv) comply with the material obligations of the lessor under the Leases;

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(v) make the interest payments due under the Existing Loans and otherwise comply with the borrowers’ material obligations thereunder in all material respects;

(vi) provide Investor with notice of any updates to the Representation set forth in Section 11(c)(vi) from time to time prior to Closing and any other update to any Representation within five (5) business days prior to Closing, but only to the extent and subject to the qualification that such updates are to Owner’s Actual Knowledge; and

(vii) on or prior to the Closing Date, Owner shall (at Owner’s cost) terminate the existing Contract for cleaning services with Quality Building Services Corp. effective on or prior to the Closing Date. Owner, on or prior to the Closing Date, shall also cause to be amended any Contract that covers the Premises and other property that Owner or any affiliate of Owner owns or manages so that, as of such Closing Date, such Contract shall apply only to the Premises and not such other property).

(b) During the period from the date hereof until the Closing Date, Owner shall not, to the extent the same would be binding on or affect the Premises or any owner thereof after the Closing without Investor’s prior approval, which approval (except as otherwise provided in this Section 9(b) ) shall not be unreasonably withheld, conditioned or delayed:

(i) enter in any new Lease or terminate, amend or modify any Lease (except as required pursuant to its terms or other de minimis amendments or modifications), or release any guarantor of its obligation to guaranty the obligations of the tenant under any Lease (and Investor may grant or withhold approval of any such new Lease or Lease termination, amendment or modification or release of a guarantor in Investor’s sole discretion); provided , that (x) any agreement entered into by Owner with a tenant solely to confirm the terms of any right or option exercised by such tenant and that is set forth in the applicable Lease as of the date hereof shall not require Investor’s consent, and Owner shall deliver to Investor a true, correct and complete copy of any such agreement promptly after execution and deliver thereof, and (y) without Investor’s consent, Owner may enter into the pending new Lease transactions specified on Schedule 9(b)(i) (each, a “ Pending Lease Transaction ”) on the economic terms specified on such Schedule (or economic terms equivalent to, or more favorable to landlord than, the economic terms specified on such Schedule, on a net effective basis) and (I) in the case of a Pending Lease Transaction for a Lease demising 25,000 rentable square feet or less, on other terms and conditions that are commercially reasonable (taking into account the terms and conditions of other Leases of similar size entered into by Owner) or (II) in the case of a Pending Lease Transaction for a Lease demising more than 25,000 rentable square feet, the final form of Lease for such Pending Lease Transaction (but not any of the economic terms thereof to the extent consistent with the terms for such Pending Lease Transaction set forth on Schedule 9(b)(i) ) shall be subject to Investor’s approval, which approval shall not be unreasonably withheld, conditioned or delayed;

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(ii) amend or modify (other than de minimis amendments or modifications) or renew any of the Contracts (except to the extent permitted by Section 9(a)(i) above); provided , that Owner shall have the right to enter into a renewal of that certain Contract with DGA Security Systems, Inc. for a period not to exceed one (1) year following the current expiration date thereof on substantially the same terms that currently apply under such Contract, with Investor’s approval for such Contract, which approval shall not be unreasonably withheld, conditioned or delayed;

(iii) enter into any new Contracts (except to the extent permitted by Section 9(a)(i) above) without Investor’s prior approval which approval may be withheld in Investor’s sole discretion;

(iv) grant consent of the lessor to any subletting under, or an assignment of, a Lease; provided , that Owner shall have the right, without Investor’s consent, to consent to a subletting under, or an assignment of, a Lease where either (A) Owner is obligated under the terms of the Lease to consent to such subletting or assignment (or the consent of the lessor is not required) or (B) Owner is obligated to be reasonable in determining whether or not to consent to any such subletting or assignment, and Owner has reasonably determined that there is no reasonable basis to deny consent to such subletting or assignment (and Owner shall give Investor reasonable advance notice before Owner makes such determination and Owner shall consult reasonably with Investor in making such determination prior to entering into any such subletting or assignment);

(v) as prime lessor, enter into a non-disturbance agreement with a subtenant under any Lease (and Investor may grant or withhold approval of any such non-disturbance agreement in Investor’s sole discretion); provided , that Owner shall have the right without Investor’s consent to enter into a non-disturbance agreement with a subtenant under any Lease where either (A) Owner is obligated under the terms of the Lease to enter into such non-disturbance agreement, (B) Owner is renewing or replacing a non-disturbance agreement with a subtenant that previously received a non-disturbance agreement (and such subtenant is entitled to such renewal or replacement pursuant to the terms of the applicable Lease or the terms of such non-disturbance agreement) or (C) Owner is obligated to be reasonable in determining whether or not to enter into a non-disturbance agreement and Owner has reasonably determined that there is no reasonable basis to elect to not enter into such non-disturbance agreement (and Owner shall give Investor reasonable advance notice before Owner makes such determination and Owner shall consult with Investor in making such determination prior to entering into such non-disturbance agreement);

(vi) apply any security deposits held by Owner as lessor under any Leases (and Investor may grant or withhold approval of any such application of security deposits in Investor’s sole discretion), except as permitted by Section 10(b) below; or

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(vii) amend or modify the Existing Loan Documents (and Investor may grant or withhold approval of any such amendment or modification in Investor’s sole discretion), other than as contemplated or permitted by this Agreement.

(c) Whenever in Section 9(b) above Owner is required to obtain Investor’s approval with respect to any transaction described therein, Investor shall, within five (5) business days (two (2) business days in the case of Purchaser’s approval of any Lease for a Pending Lease Transaction described in clause (II) of Section 9(b)(i) above, provided that Owner has provided Investor with copies of interim drafts of the applicable Lease during the negotiation thereof) after receipt of Owner’s request therefor, notify Owner of its approval or disapproval of same and, if Investor fails to notify Owner of its disapproval within said five (5) business day period (or two (2) business days period, as applicable) with, where Investor’s approval is not to be unreasonably withheld, the reasonable basis therefor, Investor shall be deemed to have approved same.

(d) Upon written request of Investor, from the Closing Date and for a period of two (2) years following the Closing Date, Owner shall make its records relating to the Premises available to Investor for inspection, copying and audit by Investor’s accountants at Investor’s sole cost and expense. Without limiting the foregoing, from the Closing Date and for a period of two (2) years following the Closing Date, Owner shall, from time to time, upon reasonable advance notice from Investor and at Investor’s sole cost and expense, provide Investor and its representatives, agents and employees with access to the financial and other information in Owner’s possession that (i) relates to the operation of the Premises, (ii) pertains to the period of Owner’s ownership of the Premises, and (iii) is both relevant and reasonably necessary, in the opinion of Investor’s independent, third-party, certified public accountants, to enable Investor and Investor’s outside, third-party, certified public accountants to prepare financial statements on a timely basis in compliance with any or all of (A) Rule 3-14 and Rule 3-05 of Regulation S-X of the Securities and Exchange Commission, (B) any other rule issued by the Securities and Exchange Commission and applicable to Investor or its affiliates, or (C) any registration statement, report or disclosure statement filed with the Securities Exchange Commission by, or on behalf of, Investor or its affiliates (with the understanding, however, that any such inquiry that is made by Investor or Investor’s independent, third-party, certified public accountants shall pertain solely to the affairs of Owner as the owner and operator of the Premises, and shall not extend to the financial or other information of any direct or indirect owner of Owner or any of the affairs of any such direct or indirect owner of Owner or that is otherwise of a confidential or proprietary nature). Owner shall provide for the previous fiscal year and the period through and including the Closing such information and documentation, if available and at Investor’s sole cost and expense, including but not limited to:

(i) rent rolls;

(ii) Owner’s internally-prepared operating statements and prior years’ audited financial statements including supporting work papers and documentation.

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(iii) access to the Leases and all information available on tenant improvements and commissions for prior fiscal years;

(iv) Owner’s budgeted annual and monthly income and expenses, and actual annual and monthly income and expenses;

(v) access to the Owner’s cash receipt journal(s) and bank statements for the Premises;

(vi) Owner’s general ledger with respect to the Individual Premises;

(vii) Owner’s schedule of expense reimbursements required under the Leases in effect on the Closing Date, if one exists;

(viii) loan amortization schedules and interest statements;

(ix) a schedule, if one exists, of those items of repairs and maintenance performed by, or at the direction of the Owner;

(x) a schedule, if one exists, of those capital improvements and fixed asset additions made by, or at the direction of, the Owner;

(xi) access to the Owner’s invoices with respect to expenditures; and

(xii) access (during normal and customary business hours) to responsible personnel designated by Owner to answer accounting questions.

(a) Assignment . On the Closing Date, Owner agrees to assign to the Subsidiary Owner, pursuant to the instruments referenced in the applicable clauses of Section 17(c) , without recourse, representation or warranty (except as expressly set forth in this Agreement), and Investor shall cause the Company (or the Subsidiary Owner) to assume Owner’s obligations accruing on and after the Closing Date under, the documents described in clauses (i) - (iv)  below:

(i) the right, title and interest of the lessor under the leases, telecommunications leases, licenses, and other occupancy agreements demising space at the Premises, including without limitation any and all guaranties of the tenant’s obligations relating thereto, which are (A) in full force and effect as of the date hereof and listed on Schedule 11(c)(ii)-1 , (B) entered into after the date hereof in accordance with the provisions of this Agreement, together with all modifications and amendments thereof and supplements relating thereto that are entered into in accordance with the terms hereof (collectively, “ Leases ”) (it being understood that the term Leases shall not

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include any leases, subleases, licenses or other occupancy agreements entered into by tenants, as lessor, under the Leases that are then in effect), and (C) not terminated at or prior to the Closing;

(ii) to the extent transferable, the right, title and interest of Owner under the service, maintenance, supply and other agreements relating to the operation of the Premises and which are (A) in full force and effect as of the date hereof and listed on Schedule 11(c)(iii) , (B) entered into after the date hereof in accordance with the provisions of this Agreement, together with all modifications and amendments thereof and supplements relating thereto that are entered into in accordance with the terms hereof (collectively, “ Contracts ”), and (C) not terminated at or prior to the Closing;

(iii) intentionally omitted; and

(iv) the right, title and interest of Owner in the transferable permits and licenses, if any, relating to the Property and the other intangible Personalty.

(b) Security Deposits . Prior to the Closing, Owner shall have the right (i) to apply any security deposits held under Leases in respect of defaults by tenants under the applicable Leases only in the event the applicable Lease has been terminated