EXECUTION VERSION

PURCHASE AND SALE AGREEMENT

between

LEXINGTON HOTEL, LLC,

as SELLER,

and

DIAMONDROCK NY LEX OWNER, LLC,

as PURCHASER

Dated as of May 12, 2011

TABLE OF CONTENTS

1. DEFINITIONS			1
2. PURCHASE AND SALE; PROPERTY NOT INCLUDED IN SALE			1
3. PURCHASE PRICE; DEPOSIT			4
4. RIGHTS OF INSPECTION AND CONFIDENTIALITY			5
5. ESCROW AGENT; ESCROW PROVISIONS			9
6. STATUS OF THE TITLE			11
7. TITLE INSURANCE, LIENS			12
8. APPORTIONMENTS			15
9. EMPLOYEES			23
10. COVENANTS OF SELLER; APPROVALS			28
11. CONDITIONS PRECEDENT TO CLOSING			30
12. FIRPTA COMPLIANCE			31
13. REPRESENTATIONS AND WARRANTIES			31
14. DAMAGE AND DESTRUCTION			37
15. CONDEMNATION			39
16. BROKERS AND ADVISORS			40
17. TRANSFER TAXES AND RECORDING CHARGES; OTHER COSTS			41
18. DELIVERIES TO BE MADE ON THE CLOSING DATE			41
19. CLOSING DATE			45
20. NOTICES			46
21. DEFAULT BY PURCHASER OR SELLER			48
22. MISCELLANEOUS			53
23. ESTOPPELS			58
24. PROPERTY CONVEYED “AS IS” AND DISCLAIMER OF REPRESENTATIONS AND WARRANTIES			58
25. EXCULPATION			60
26. FRANCHISE AGREEMENT			60
27. PRESS RELEASES			62
28. ASSIGNMENT OF MORTGAGE			62
29. TAX CONSIDERATIONS			63

TABLE OF CONTENTS
(continued)

Schedules

A		Definitions
B		Legal Description of the Land
C-1		List of Contracts
C-2		List of Equipment Leases
D		Marked Title Commitment
E-1		List of Leases
E-2		Tenant Arrearages
F		Pending Litigation
G		List of Excluded Personalty
H		Environmental Reports

Exhibits

1		Bargain and Sale Deed
2		Bill of Sale
3		FIRPTA Certificate
4		Title Affidavit
5		ERISA Letter
6		Assignment and Assumption of Contracts
7		General Assignment and Assumption Agreement
8		Assignment and Assumption of Collective Bargaining Agreement
9		Escrow Holdback Agreement
10		Escrow Agreement
11		Tenant / Contract Service Provider Direction Letter
12		Franchise Indemnity Agreement
13		Assignment and Assumption of Leases
14		Replacement Management Agreement
15		Representation Bring-Down Certificate
16		Radisson Consent

PURCHASE AND SALE AGREEMENT

THIS PURCHASE AND SALE AGREEMENT (this “Agreement”) is dated as of May 12, 2011 (the “Effective Date”) by and between LEXINGTON HOTEL, LLC, a Delaware limited liability company, having an address c/o Highgate Holdings, Inc., 870 Seventh Avenue, 2nd Floor, New York, New York 10019 (“Seller”), and DIAMONDROCK NY LEX OWNER, LLC, a Delaware limited liability company, having an address c/o DiamondRock Hospitality Company, 3 Bethesda Metro Center, Suite 1500, Bethesda, Maryland 20814 (“Purchaser”).

W I T N E S S E T H:

WHEREAS, Seller is the owner and holder of the fee estate in that certain plot, piece and parcel of land (the “Land”) located at 511 Lexington Avenue, New York, New York, and more particularly described in Schedule B attached hereto, together with the building and all other improvements (collectively, the “Building”) located on the Land (the Building and the Land being sometimes referred to hereinafter, collectively, as the “Premises”);

WHEREAS, a portion of the Premises is currently being operated as that certain hotel commonly known as “The Radisson Lexington Hotel” (the “Hotel”), which Hotel includes, without limitation, approximately 712 guest rooms, meeting facilities, conference rooms, restaurants, a fitness center and retail facilities;

WHEREAS, subject to the terms and conditions set forth in this Agreement, Seller desires to cause the sale, assignment and transfer of its interests in and to the Property to Purchaser on the Closing Date, in accordance with the terms and provisions of this Agreement, and Purchaser desires to purchase the Property from Seller on the Closing Date, upon the terms more particularly set forth in this Agreement; and

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto covenant and agree as follows:

1. DEFINITIONS.

When used in this Agreement, the capitalized terms shall have the meanings as indicated on Schedule A attached hereto.

2. PURCHASE AND SALE; PROPERTY NOT INCLUDED IN SALE.

(a) On the Closing Date, Seller shall sell, assign, transfer and convey to Purchaser, and Purchaser shall purchase and assume from Seller, subject to the terms and conditions of this Agreement, all of Seller’ right, title and interest in and to the following:

(i) the Premises;

(ii) all easements, licenses, rights of way, privileges and appurtenances and other rights pertaining to the Premises;

(iii) all tangible personal property owned by Seller and located in the Premises and used solely in connection with the operation of the Premises, including, without limitation, appliances, furniture, furnishings, equipment, carpeting, draperies and curtains, tools and supplies, decorations, china, glassware, linens, silver, utensils and other items of personal property (excluding cash and deposit accounts), and all vehicles (if any) used in connection with the Hotel, in all cases subject to depletion, resupply, substitution, replacement and disposition in the ordinary course of business in accordance with the provisions of this Agreement (collectively, the “Personalty”);

(iv) (A) to the extent transferable, all existing warranties and guaranties (express or implied) issued or assigned to Seller in connection with the Premises or the Personalty; (B) all transferable names, marks, logos and designs, used in the operation or ownership of the Premises or the Personalty or any part thereof, if any, but specifically excluding any name including “Radisson” and any and all names, marks and intellectual property licensed under the Franchise Agreement or otherwise belonging to Franchisor or any of its affiliates, and all derivatives and cognates thereof and any logos or other identification or trademarks relating thereto (and Purchaser acknowledges that Seller expressly disclaims any representation or warranty, express or implied, regarding (i) ownership, right to use or registration of any names, marks, logos, designs or other intellectual property, or (ii) whether use of any intellectual property violates any ownership or other rights of any third parties); (C) all transferable licenses, franchises (subject to the provisions of Section 26 hereof) and permits owned by Seller and used in or relating to the ownership, occupancy or operation of the Premises or the Personalty or any part thereof, subject to Purchaser’s compliance with any limitations or restrictions on transfer or assignment of any computer-related materials or software which are contained in any license or similar agreement; (D) all assignable telephone numbers, TWX numbers, post office boxes, signage rights, utility and development rights and privileges, general intangibles, business records, site plans, surveys, environmental and other physical reports, plans and specifications pertaining to the Premises and the Personalty; and (E) all assignable websites and domains used exclusively for the Hotel, including access to the FTP files of the websites to obtain website information and content pertaining to the Hotel (the property described in this clause (iii) of Section 2(a) being herein referred to collectively as the “Intangibles”);

(v) all assignable service, maintenance, supply and other contracts relating to the operation and maintenance of the Premises or the Personalty or other property used in connection with the operation of the Premises or the Personalty (collectively, together with any amendments or modifications thereto, the “Contracts”), which are (A) listed on Schedule C-1, but excluding the Existing Management Agreement, the Franchise Agreement and any Contracts that are terminated on or before the Closing in accordance with the provisions of this Agreement, (B) listed on Schedule C-2 (the “Equipment Leases”), and (C) entered into after the Effective Date in accordance with the provisions of this Agreement;

(vi) (A) all food and beverages (subject to any legal restrictions pertaining to the sale or transfer of alcoholic beverages); (B) inventory held for sale to Hotel guests and others in the ordinary course of business including all opened and unopened retail inventory in any area at the Hotel conducting retail sales (collectively, “Retail Inventory”); (C) engineering, maintenance and housekeeping supplies, including soap and cleaning materials, fuel and materials; stationery and printing items and supplies; and (D) other supplies of all kinds, whether used, unused or held in reserve storage for future use in connection with the maintenance and operation of the Premises or the Personalty, in each case to the extent located at the Premises, together with any additions thereto prior to Closing and subject to depletion, resupply, substitution, replacement and disposition in the ordinary course of business in accordance with the provisions hereof (all of the foregoing described in sub-clauses (A) — (D) being referred to as the “Consumable Inventory” and, to the extent contained in unopened boxes, bottles, jars or containers of any type as of the Closing Date, shall collectively be referred to, together with unopened packages of china, glass, silver and linens, as the “Unopened Inventory”);

(vii) all leases for the lease and occupancy of space at the Premises (collectively, the “Leases”) which are (A) listed and described on Schedule E attached hereto and made a part hereof, but excluding any Leases that are terminated on or before the Closing in accordance with the provisions of this Agreement, and (B) are entered into after the Effective Date in accordance with the provisions of this Agreement, in each case, including any security deposits relating to such Leases held by Seller and not applied to the tenant’s obligations as of the Closing Date. For purposes of this Agreement, the term “Leases” does not include Bookings;

(viii) all accounts receivable of the Hotel and all related operations which are outstanding and less than one hundred twenty (120) days past due as of the Closing Date (collectively, the “Receivables”) (which receivables are not included in the Purchase Price and shall be purchased by Purchaser at Closing for an amount equal to 98% of the amount of those accounts receivable as set forth on the Hotel’s most current balance sheet);

(ix) subject to Section 8 hereof, all contracts or reservations for the use of guest rooms, ballroom and banquet facilities, conference facilities, meeting rooms or other facilities of the Hotel and located within the Premises (“Bookings”), and any deposits held by Seller in connection with the Bookings not previously applied;

(x) subject to Section 8(j) hereof, Seller’s interest in the funds contained in “house banks” for the Hotel as of the Cut-Off Time, whether held in the name of Seller, the Hotel or Manager and owned by Seller (collectively, the “House Bank Funds”). Purchaser expressly acknowledges and agrees that the Property to be transferred to Purchaser pursuant to this Agreement does not include any reserve or other accounts created or maintained by or on behalf of Seller or Manager in connection with the ownership or operation of the Premises; and

(xi) files and records in Seller’s possession or reasonable control and relating to the Premises (including but not limited to all files and records relating to the Hotel and the development, operation, management, maintenance, repair, marketing and promotion thereof, such as financial records and statements, maintenance records, building plans, specifications and drawings, group and individual guest history records and all reservation and booking records for rooms and meeting space, regardless of whether such files and records are stored in paper form, on computer hard drive, computer disk, CD Rom, DVD or other medium).

The items described in sub-clauses (i) through (xi) above shall be referred to herein collectively as the “Property”.

(b) Notwithstanding anything to the contrary contained in Section 2(a) above, it is expressly agreed by the parties hereto that the following items are expressly excluded from the Property to be sold to Purchaser hereunder:

(i) any tangible or intangible property (including, without limitation, fixtures, personal property or intellectual property) owned or leased by (A) any supplier, vendor, licensor, lessor or other party under any Contracts, (B) the tenants under any Leases, (C) Manager, (D) Franchisor, (E) any employees, (F) any guest or customers of the Hotel, or (G) any other third party;

(ii) all cash on hand or on deposit in any operating account or other account or reserve, except for security deposits held by Seller as landlord with respect to any Lease as of the Closing Date and the House Bank Funds each of which are to be transferred at Closing subject to the terms of this Agreement; and

(iii) all personal property listed on Schedule G attached hereto, if any (collectively, “Excluded Personalty”).

3. PURCHASE PRICE; DEPOSIT.

(a) The purchase price to be paid by Purchaser to Seller for the Property (the “Purchase Price”) is THREE HUNDRED THIRTY-FIVE MILLION and 00/100 DOLLARS ($335,000,000.00), subject to apportionment as provided in Section 8 hereof, which shall be payable as follows:

(i) Simultaneously with the execution hereof, Purchaser is delivering to Commonwealth Land Title Insurance Company, 140 East 45^th Street, 22^nd Floor, New York, New York 10017, Attention: Peter G. Doyle, as escrow agent (the “Escrow Agent”), via wire transfer in immediately available federal funds the sum of THIRTY-THREE MILLION FIVE HUNDRED THOUSAND and 00/100 DOLLARS ($33,500,000.00) (the “Deposit”), to be held by Escrow Agent pursuant to the escrow instructions set forth in Section 5 hereof (the “Escrow Instructions”). It shall be a condition precedent to the effectiveness of this Agreement that Purchaser shall have timely delivered the Deposit to Escrow Agent, as provided above.

(ii) At Closing, Seller shall be entitled to retain the Deposit and Purchaser shall deliver to Seller the balance of the Purchase Price (i.e., the Purchase Price less the Deposit (and without deduction for any interest accrued thereon), subject to apportionment as provided in Section 8 hereof. All monies payable by Purchaser under this Agreement, unless otherwise specified in this Agreement, shall be paid by Purchaser causing such monies to be wire transferred in immediately available federal funds at such bank account or accounts designated by Seller in accordance with wiring instructions delivered by Seller prior to Closing, and divided into such amounts designated by Seller as may be required to facilitate the consummation of the transactions contemplated by this Agreement.

(b) Seller and Purchaser shall use commercially reasonable efforts, based on the depreciated book value of the Personalty as set forth in the books and records of Seller, to agree, no later than three (3) Business Days prior to the Closing Date, upon an allocation of the Purchase Price among the Real Property and various items of Personalty. If Seller and Purchaser agree on such allocations, each party agrees to file federal, state and local tax returns consistent with such allocations agreed upon between the parties. If Seller and Purchaser cannot agree upon such allocations of the Purchase Price, each party shall file federal, state and local tax returns based on each party’s own determination of the proper allocations of the Purchase Price, each bearing its own consequences of any discrepancies.

4. RIGHTS OF INSPECTION AND CONFIDENTIALITY.

(a) Subject to the provisions of this Section 4, Purchaser and/or any of Purchaser’s agents, employees, attorneys, accountants, consultants, advisors, lenders, investors, inspectors, appraisers, engineers, contractors, experts, partners, prospective partners, prospective investors, mortgage brokers and officers (collectively, “Purchaser’s Representatives”) shall have the right, from time to time, upon reasonable advance notice, and subject to the rights of Manager under the Existing Management Agreement, guests of the Hotel and the tenants under the Leases, to enter upon and pass through the Premises during normal business hours to inspect the Premises and examine the operations of Seller related thereto, including, without limitation, any operating files maintained by or for the benefit of Seller in connection with the leasing, operation, current maintenance and/or management of the Property (“Property Information”), including, without limitation, the Leases, the Contracts, insurance policies, bills, invoices, receipts and other general records relating to the income and expenses of the Hotel, correspondence, surveys, plans and specifications, warranties for services and materials provided to the Hotel, environmental audits and similar materials, materials related to Hotel Employees and the Union, to the extent Seller is not prohibited by applicable contracts or law from disclosing such materials, and any other documents relating to the Property in Seller’s or Manager’s possession or reasonable control, but excluding materials not directly related to the current ownership, maintenance and/or management of the Property such as, without limitation, Seller’s financial projections, forecasts, budgets, appraisals, company tax records, internal memoranda, correspondence and reports and similar proprietary or confidential information. Notwithstanding any such inspection, or anything to the contrary herein contained, Purchaser’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; it being agreed that Seller is permitting Purchaser such right of inspection and access as a courtesy to Purchaser in its preparation for taking title to the Property. Without limiting the generality of the foregoing, (i) Purchaser agrees that it shall not have any so-called “due diligence period” and that it shall have no right to terminate this Agreement or obtain a reduction of the Purchase Price 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 (ii) Purchaser shall have no right to terminate this Agreement or obtain a return of the Deposit except as expressly provided in this Agreement.

(b) In conducting any inspection of the Premises, (i) Purchaser shall, and shall cause any of Purchaser’s Representatives to, at all times comply with the terms and provisions of this Agreement (if applicable) and all applicable governmental laws, rules and regulations, (ii) Purchaser and Purchaser’s Representatives shall not enter the Premises unless there is a representative of Seller present at all times during each such inspection; provided, however, that upon no less than three (3) Business Days’ advance notice to Seller, Seller shall make a representative available at reasonable times to accompany Purchaser and/or Purchaser’s Representatives, (iii) neither Purchaser nor any of Purchaser’s Representatives shall take any of the following actions: (A) contact or have any discussions with Manager’s on-site managers or on-site employees, or any other employees working at the Hotel, any guests of the Hotel, any party to any Contract (other than Seller or Manager), any tenants under the Leases, the Existing Mortgage Lender (except as provided in Section 28 hereof) or any governmental authority (other than (x) to perform customary municipal and public record searches, or (y) in connection with obtaining a temporary or permanent liquor license or the transfer of the Existing Liquor License in accordance with Section 10(d) below) without in each instance (I) obtaining Seller’s prior written consent, which consent shall not be unreasonably withheld, and (II) providing Seller with the option to either attend or participate in any meetings, conversations or communications between Purchaser and such party or expressly waiving its right to do so in writing (which writing may be in the form of an email), and Purchaser shall not communicate in any manner with any such party without satisfying the foregoing, (B) interfere with the business of Seller (or any of its tenants) or Manager conducted at the Premises or disturb the use or occupancy of any occupant of the Premises, including any guest of the Hotel, or (C) cause physical damage to the Property or any portion thereof. Purchaser and Purchaser’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 Property, without the consent of Seller, which consent may be withheld in Seller’s sole discretion.

(c) Prior to entering the Premises to conduct any such inspection, (i) Purchaser shall obtain, and during the period of such access shall maintain, at its expense (and shall require and cause any Purchaser’s Representatives entering the Premises that are independent contractors to obtain and maintain, at their expense), commercial general liability insurance, including a contractual liability endorsement, and personal injury liability coverage, naming Seller, Manager and any other parties that Seller may require to be named (together with each of their respective successors and assigns), as additional insureds (provided, that Seller has previously furnished to Purchaser the name and address of any such other party), on a primary and noncontributory basis, from an Acceptable Purchaser Insurance Company, which insurance policies must have limits for bodily injury and death of not less than Five Million Dollars ($5,000,000) for any one occurrence and not less than Five Million Dollars ($5,000,000) for property damage liability for any one occurrence, and (ii) Purchaser shall furnish to Seller a certificate of insurance evidencing the foregoing coverages. Such insurance shall state that it shall not be suspended, voided and/or cancelled by any party, reduced in coverage or in limits except after thirty (30) days’ prior written notice has been delivered to Seller.

(d) Purchaser agrees to pay to Seller on demand, the reasonable cost of repairing and restoring any damage to the Property (or portion thereof) caused by Purchaser or Purchaser’s Representatives, provided that Seller shall have delivered reasonable evidence of such damage and of the cost incurred by Seller in making such repairs. Any liens against the Premises (or any portion thereof) arising from the performance of services by third-party contractors in connection with Purchaser’s inspection of the Premises shall be removed by Purchaser as promptly as practicable and in any event not later than ten (10) Business Days after Purchaser shall have been notified of the filing of such liens. The provisions of this Section 4(d) shall survive the Closing or any termination of this Agreement.

(e) If Purchaser fails to close upon the purchase contemplated by this Agreement in accordance with the provisions hereof, Purchaser agrees to promptly deliver to Seller copies of any and all third-party reports, studies, environmental audits, environmental assessments, or other documents or information prepared for Purchaser or obtained by Purchaser or Purchaser’s Representatives with respect to the Property, without any representation or warranty; provided, however, that Purchaser shall not be required to deliver any of the foregoing materials to Seller to the extent the same contain any information which is proprietary or confidential to third parties to whom Purchaser owes a duty of confidentiality. The provisions of this Section 4(e) shall survive any termination of this Agreement.

(f) All inspection fees, appraisal fees, engineering fees and other costs and expenses of any kind incurred by Purchaser or Purchaser’s Representatives relating to such inspection of the Property and its other due diligence shall be at the sole expense of Purchaser.

(g) (i) Purchaser acknowledges and agrees that any and all of the Property Information which is delivered to (or is otherwise made available to) Purchaser or any of Purchaser’s Representatives by, or at the direction of Seller, or any of its agents or affiliates, including, without limitation, all information relating to the Property contained in the secure website to which Purchaser has previously been granted access, or which is prepared by, or for Purchaser or Purchaser’s Representatives, or which otherwise relates to the Property or is derived in connection with Purchaser’s or Purchaser’s Representatives’ inspection of the Property, is deemed to be confidential in nature (collectively, the “Property Confidential Information”). The parties further acknowledge and agree that the terms and conditions of this Agreement are confidential in nature (the “Agreement Confidential Information” and, together with the Property Confidential Information, collectively, the “Confidential Information”). For the purpose of clarity, each party acknowledges and agrees that there is no obligation to treat as confidential all or any Confidential Information which was publicly known or available to the public at the time of disclosure by such party (or such party’s representatives) except where such Confidential Information was known publicly or available to the public as a result of such disclosure by such party (or such party’s representatives) made in breach of any term of this Agreement.

(ii) Purchaser shall not disclose, and agrees to use commercially reasonable efforts, and to act in good faith, to ensure that Purchaser’s Representatives shall not disclose, the contents of the Confidential Information to any party outside of Purchaser’s organization or Purchaser’s Representatives. Purchaser’s obligations under this Section 4(g) shall be subject to Purchaser’s and/or Purchaser’s Representatives right to make disclosures (A) as may be required by law or a court, (B) pursuant to or in connection with any filings with the Securities and Exchange Commission or by any rules or regulations of any public stock exchange or stock quotation system, that may be applicable to Purchaser or any of Purchaser’s direct or indirect constituent owners or affiliates, and (C) as may be necessary or appropriate to disclose, in Purchaser’s reasonable judgment, to direct or indirect investors or otherwise in connection with a proposed equity offering to be made by Purchaser or an Affiliate of Purchaser; provided, that in the case of sub-clause (A) above, Purchaser will provide Seller with prompt notice so that Seller may, in its sole discretion, seek a protective order or other appropriate remedy. In the event that such protective order or other remedy is not obtained, Purchaser will furnish (and Purchaser shall cause Purchaser’s Representatives to furnish) only that portion of the Confidential Information which said party is

required to disclose as determined by its counsel. In permitting Purchaser and the Purchaser’s Representatives to review the Confidential Information, Seller has not waived any privilege or claim of confidentiality with respect thereto, and no third party benefits or relationships of any kind, either express or implied, have been offered, intended or created by Seller and any such claims are expressly rejected by Seller and waived by Purchaser and Purchaser’s Representatives, for whom, by its execution of this Agreement, Purchaser is acting as an agent with regard to such waiver. Purchaser shall return to Seller or, with Seller’s prior written consent, destroy all originals and all copies of the Confidential Information (including, without limitation, any materials prepared by Purchaser or Purchaser’s Representatives incorporating the Confidential Information) at such time as this Agreement is terminated, provided that, if this Agreement is terminated by reason of Seller’s default, Purchaser shall not be required to return materials prepared by Purchaser or Purchaser’s Representatives. Purchaser further acknowledges that Seller has not made and does not make any warranty or representation regarding the truth, accuracy or completeness of the Property Confidential Information or the source(s) thereof. Seller has not undertaken any independent investigation as to the truth, accuracy or completeness of the Property Confidential Information. The provisions of this Section 4(g)(ii) shall survive any termination of this Agreement for a period of twenty-four (24) months.

(h) Purchaser and Principal, jointly and severally hereby agree to indemnify, defend and hold Seller and its disclosed or undisclosed, direct and indirect shareholders, officers, directors, trustees, partners, principals, members, employees, agents, contractors, attorneys, accountants, consultants and any successors or assigns of the foregoing (collectively with Seller, the “Seller Related Parties” or each a “Seller Related Party”) 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) incurred by any of Seller Related Parties, to the extent they relate to, arise out of or are the result of (i) Purchaser’s and/or Purchaser’s Representatives’ access to, or inspection of the Property, or any tests, inspections or other due diligence activities conducted pursuant to this Agreement (except to the extent any of the forgoing indemnified items are the result of (A) any Seller Related Parties willful misconduct or gross negligence or (B) pre-existing physical conditions of the Property which are not exacerbated by Purchaser and/or Purchaser Representatives), and/or (ii) the breach by Purchaser or Purchaser’s Representatives of the confidentiality requirements and inspection obligations described in this Section 4. Without limiting the foregoing indemnity, if (1) Purchaser or Principal pays a Seller Related Party (and such Seller Related Party actually receives) any amounts relating to the foregoing indemnity claim and (2) any such Seller Related Party subsequently recovers insurance proceeds in connection with such indemnity claim, then Seller shall promptly pay (or cause the applicable Seller Related Party to promptly pay) such insurance proceeds to Purchaser or Principal, as applicable, up to the amount actually received by any such Seller Related Party from Purchaser or Principal, as applicable, with respect to the indemnity claim in question. Seller shall have the right (but not the obligation) to cure any of Purchaser’s and/or Purchaser’s Representatives’ violations of this Section 4. The provisions of this Section 4(h) shall survive the Closing or any termination of this Agreement.

5. ESCROW AGENT; ESCROW PROVISIONS.

(a) Upon receipt by Escrow Agent of the Deposit, Escrow Agent shall (i) acknowledge to Seller and Purchaser its receipt of the Deposit, (ii) cause the Deposit to be deposited into an interest bearing account at JPMorgan Chase, N.A. or another national bank selected by Seller and reasonably approved by Purchaser (the “Escrow Bank”), and (iii) hold the Deposit (together with all interest accrued thereon) in accordance with the Escrow Instructions as set forth in this Section 5.

(b) Escrow Agent shall deliver the Deposit to Seller or to Purchaser, as the case may be, pursuant to the terms of this Agreement and under the following conditions:

(i) The Deposit shall be delivered to Seller at the Closing upon receipt by Escrow Agent of a statement executed by Seller and Purchaser authorizing the release of the Deposit to Seller; or

(ii) The Deposit shall be delivered to Seller following receipt by Escrow Agent of written demand therefor from Seller stating that Seller is entitled to the Deposit under this Agreement, which demand shall specify the provision of this Agreement which entitles Seller to the Deposit; provided, that Purchaser shall not have given written notice of objection in accordance with the provisions set forth in Section 5(c) hereof; or

(iii) The Deposit shall be delivered to Purchaser following receipt by Escrow Agent of written demand therefor from Purchaser stating that Purchaser is entitled to the return of the Deposit under this Agreement, which demand shall specify the provision of this Agreement which entitles Purchaser to the return of the Deposit; provided, that Seller shall not have given written notice of objection in accordance with the provisions set forth in Section 5(c) hereof; or

(iv) The Deposit shall be delivered to Purchaser or Seller as directed by the joint written instruction of Seller and Purchaser (which instruction may be delivered separately by each of Seller and Purchaser).

(c) Upon the filing of a written demand for the Deposit by Seller or Purchaser, pursuant to Section 5(b)(ii) or Section 5(b)(iii) hereof, 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 ten (10) 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, and the interest accrued thereon, until (i) Escrow Agent receives written joint notice from Seller and Purchaser directing the disbursement of the Deposit (which notice may be delivered separately by each of Seller and Purchaser), in which case Escrow Agent shall then disburse the Deposit, and the interest accrued thereon, in accordance with said direction, or (ii) litigation is commenced between Seller and Purchaser, in which case Escrow Agent shall deposit the Deposit, and the interest accrued thereon, with the clerk of the court in which said litigation is pending, or (iii) 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, and the interest accrued thereon, in court and commencing an action for interpleader, the costs thereof to be borne by whichever of Seller or Purchaser is the losing party in such interpleader action, as determined by a final non-appealable order of such court.

(d) 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 Seller or Purchaser, 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 negligence, willful misconduct or default. 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 Purchaser and Seller, 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 Seller and Purchaser for any actual out-of-pocket 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, however, that, as between Purchaser and Seller, 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 Purchaser or Seller 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 the interest accrued thereon, and may decline to take any other action. After delivery of the Deposit, and the interest accrued thereon, in accordance herewith, Escrow Agent shall have no further liability or obligation of any kind whatsoever.

(e) Escrow Agent shall have the right at any time to resign upon ten (10) Business Days’ prior notice to Seller and Purchaser. Seller and Purchaser shall jointly select a successor Escrow Agent and shall notify Escrow Agent 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. If Escrow Agent has not received notice of the name and address of such successor Escrow Agent within such period, Escrow Agent shall have the right to select on behalf of Seller and Purchaser 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, and the interest accrued thereon, to any successor Escrow Agent selected hereunder, provided such successor Escrow Agent shall execute and deliver to Seller and Purchaser 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 Escrow Agent hereunder, and the resigning Escrow Agent shall have no further responsibilities or obligations hereunder.

(f) The interest earned on the Deposit shall be paid to the party entitled to receive the Deposit as expressly provided in this Agreement. At the Closing, Seller shall be entitled to retain the Deposit (together with all interest accrued thereon) and Purchaser shall deliver the balance of the Purchase Price (i.e., the Purchase Price less the Deposit (but without deduction for any interest accrued thereon)) to Seller, as adjusted pursuant to Section 8 hereof. At the Closing, Purchaser shall not be entitled to any credit against the Purchase Price with respect to any such interest paid to Seller. The party receiving such interest shall pay any income taxes thereon. The provisions of this Section 5(f) shall survive the Closing or termination of this Agreement.

(g) At the Closing, Escrow Agent shall execute and deliver the Escrow Holdback Agreement and the Escrow Agreement (if applicable pursuant to Section 21(c)(ii)(B) of this Agreement) to Seller and Purchaser.

6. STATUS OF THE TITLE.

Subject to the terms and provisions of this Agreement, Seller’s interest in the Premises shall be sold, assigned and conveyed by Seller to Purchaser, and Purchaser shall accept same, subject to the following (collectively, the “Permitted Encumbrances”):

(a) those matters set forth in Schedule B-II of the Commitment attached hereto as Schedule D, which are not marked as “Omit”;

(b) (i) any state of facts disclosed by that certain survey of the Land prepared by S.P. Belcher and dated October 25, 1920, and most recently updated by visual examination on August 31, 2006 by Roland K. Link (the “Existing Survey”), and (ii) any matters disclosed in any update to the Existing Survey or any future survey (for example, minor encroachments), that do not affect the use, operations, or marketability of the Property and are otherwise immaterial;

(c) Non-Objectionable Encumbrances and any liens, encumbrances or other title exceptions approved or waived by Purchaser as provided in Section 7;

(d) Property Taxes which are a lien but not yet due and payable;

(e) any laws, rules, regulations, statutes, ordinances, orders or other legal requirements affecting the Premises, including, without limitation, those relating to zoning and land use;

(f) all violations of laws, rules, regulations, statutes, ordinances, orders or requirements (“Violations”) now or hereafter issued or noted;

(g) any utility company rights, easements and franchises for electricity, water, steam, gas, telephone 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 either shown on the Existing Survey or consistent with the present use of the Premises;

(h) any matters that are (x) required by the Franchise Agreement or (y) otherwise permitted or consented to by Purchaser in accordance with this Agreement;

(i) the rights of Franchisor under the Franchise Agreement;

(j) the rights of tenants under the Leases; and

(k) the rights of Hotel guests which occupy the Hotel or have a reservation for rooms, food and beverages, meetings and other customary Hotel uses relating to periods subsequent to the Closing Date to the extent such rights were granted or such reservations were made in the ordinary course of business.

7. TITLE INSURANCE, LIENS.

(a) (i) Purchaser acknowledges that it has received and has reviewed (A) a title commitment or title report for an owner’s policy of title insurance, dated April 29, 2011 (Reference No. NY110378) (the “Commitment”) from Commonwealth Land Title Insurance Company, 140 East 45^th Street, 22^nd Floor, New York, New York 10017, Attention: Peter G. Doyle ((212) 973-6209; email: pdoyle@cltic.com) (the “Title Company”), and (B) the Existing Survey. Purchaser agrees that its agreement to acquire the Property at Closing in its “AS IS” condition as set forth in Section 24 hereof shall include its agreement to acquire the Property subject to the Permitted Encumbrances and any other matters set forth in the Commitment (which are not marked as “Omit” on the Commitment attached hereto as Schedule D), such matters that are marked as “Omit” are referred to herein collectively as the “Omitted Exceptions”). Seller acknowledges and agrees that, at or prior to the Closing, Seller shall cure, or otherwise cause to be removed, the Omitted Exceptions such that the same shall not appear as Schedule B exceptions on Purchaser’s title policy to be obtained in accordance with Section 7(a)(vi) hereof. After the Effective Date and prior to the Closing Date, Purchaser shall have the right to object to any new title exception, encumbrance or lien on title which is reflected in any updates to the Commitment (but not set forth in the Commitment) or any updates to the Existing Survey (but not reflected in the Existing Survey) (each an “Update Notice”), by delivery of written notice (“Purchaser’s Objection Notice”) to Seller and Seller’s attorneys, on or prior to the date which is five (5) Business Days after Purchaser’s receipt of the Update Notice, but only if same is not a Permitted Encumbrance (a “Title Objection”). If Purchaser shall deliver a Purchaser’s Objection Notice, any Title Objection which is not objected to in such Purchaser’s Objection Notice, but which was reflected in the Commitment, the Existing Survey, any updates to the Commitment or any updates to the Existing Survey that was the subject of such Purchaser’s Objection Notice, shall not constitute a Title Objection, but shall be deemed a Permitted Encumbrance. If Purchaser receives an Update Notice of said new matter less than five (5) Business Days prior to the then Scheduled Closing Date, then Purchaser must deliver any such Purchaser’s Objection Notice prior to the then Scheduled Closing Date. Notwithstanding anything herein to the contrary, Purchaser 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 be deemed Permitted Encumbrances) (x) over which the Title Company is willing to insure (without additional cost to Purchaser or where Seller pays such cost for Purchaser) or against which the Title Company is willing to provide affirmative insurance (without additional cost to Purchaser or where Seller pays such cost for Purchaser), (y) which will be extinguished upon the transfer of the Property to Purchaser, or (z) which cannot be cured or removed by the payment of a liquidated sum of money or the use of commercially reasonable efforts and do not materially adversely affect the value, use or operation or marketability of the title to, the Premises, (collectively, the “Non-Objectionable Encumbrances”).

(ii) Except as set forth in Section 7(a)(iii) hereof, it is expressly understood that in no event shall Seller 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 to otherwise cause title in the Premises to be in accordance with the terms of this Agreement on the Closing Date. Seller shall notify Purchaser (“Seller’s Response Notice”) within five (5) Business Days of Seller’s receipt of Purchaser’s Objection Notice as to whether Seller is prepared to cure the Title Objections identified in Purchaser’s Objection Notice. Seller’s failure to furnish Seller’s Response Notice within said five (5) Business Day period shall be deemed to constitute Seller’s election not to cure said Title Objections. In the event Seller notifies (or is deemed to have notified) Purchaser that Seller is unable or unwilling to cure any of the Title Objections, then Purchaser shall elect by providing written notice to Seller (a “Purchaser’s Election Notice”) to either terminate this Agreement, in which case Purchaser shall receive a refund of the Deposit (together with all interest accrued thereon), or to proceed to Closing and accept title to the Premises subject to the Title Objections without any liability or obligation on the part of Seller by reason of such Title Objections and without any abatement of the Purchase Price. In the event Purchaser fails to furnish Purchaser’s Election Notice to Seller within five (5) Business Days following Seller’s Response Notice (or within five (5) Business Days following the date Seller is deemed to have elected not to cure said Title Objections, if Seller has not timely furnished a Seller’s Response Notice), then Purchaser shall be deemed to have waived its right to object to any such Title Objection (and the same shall no longer constitute a Title Objection, but shall instead be deemed a Permitted Encumbrance).

(iii) Notwithstanding the foregoing, Seller shall, on or before the Closing, be obligated to remove (A) all mortgages (collectively, “Mortgages”) which affect the Property, including, without limitation, the Existing Mortgage to the extent the same is not assigned to Purchaser’s lender(s) pursuant to and in accordance with Section 28 hereof; (B) all mechanics’, laborers’ or materialmens’ liens affecting the Property which arise from work performed by or on behalf of Seller or any other Seller Related Parties; (C) all judgment and tax liens affecting the Property, which are against Seller (collectively, “Monetary Liens”); and (D) any Title Objections which would not fall within the definition of sub-clauses (A), (B) or (C) above and which can be removed by the payment of a liquidated sum of money, provided, however, that with respect to such items set forth in this sub-clause (D), in no event shall Seller be obligated to expend an amount in excess of the Pre-Closing Claim Amount (in the aggregate for all matters under this Agreement to which the Pre-Closing Claim Amount is applicable) pursuant to the provisions of this sentence. Notwithstanding the foregoing, if a Monetary Lien is bonded over by Seller or others at Closing such that it is omitted from the Commitment and Purchaser’s title policy (or is otherwise insured over by the Title Company), then such Monetary Lien shall be deemed to be a Non-Objectionable Encumbrance.

(iv) Any liens or encumbrances (collectively, “Tenant Lien”) created by or against a Tenant shall neither be a Monetary Lien nor a Title Objection. Notwithstanding anything to the contrary contained in this Agreement, Seller shall have no obligation to pay, satisfy, discharge or remove of record (or cause to be paid, satisfied, discharged or removed of record) any Tenant Lien; provided, that Seller shall use commercially reasonable efforts to enforce its rights, as landlord under its lease with a Tenant, to cause said Tenant to pay, satisfy, discharge or remove of record a Tenant Lien promptly after Seller’s becoming apprised of the existence of such Tenant Lien.

(v) Subject to the express provisions of this Section 7(a), if Seller is unable to eliminate the Title Objections by the Scheduled Closing Date, unless the same are waived by Purchaser without any abatement in the Purchase Price, Seller may, upon prior notice (“Title Cure Notice”) to Purchaser, adjourn the Scheduled Closing Date for up to sixty (60) days in order to attempt, as expeditiously as possible, to eliminate such Title Objections.

(vi) At the Closing, Purchaser shall obtain title insurance from the Title Company (on a direct basis through Peter G. Doyle ((212) 973-6209; e-mail: pdoyle@cltic.com), with (x) Royal Abstract of New York LLC, 500 Fifth Avenue, Suite 1540, New York, New York 10110, Attention: Martin Kravet ((212) 376-0900; e-mail: mkravet@royalabstract.com), (y) National Land Tenure Company, LLC, 1122 Franklin Avenue, Suite 400, Garden City, New York 11530, Attention: Matthew M. Miller ((516) 227-0800; email: mmillernlt@hotmail.com), and (z) First American Title Insurance Company, 1801 K Street NW, Suite 200-K, Washington, DC 20006 (collectively, the “Co-Insurers”) as co-insurers with the Title Company, with respect to Purchaser’s acquisition of the Property and any financing obtained in connection therewith. The Title Company and the Co-Insurers shall provide title insurance (owner and mortgagee policies) for any of the transactions contemplated under this Agreement in the following percentages: (i) the Title Company, 40%, (ii) Royal Abstract of New York LLC, 25%, (iii) National Land Tenure Company, LLC, 25%, and (iv) First American Title Insurance Company, 10%.

(vii) Purchaser, at its sole cost and expense, shall pay at the Closing all premiums, charges and disbursements required by the Title Company in accordance with its rates for issuance of the title insurance policies and issuance of any endorsements the Purchaser may request. The provisions of this Section 7(a)(vii) shall survive Closing and delivery of the Deed.

(b) In no event shall any lien, encumbrance or other exception arising as a result of any act or omission of Purchaser or anyone acting on behalf of Purchaser be deemed a Title Objection.

(c) Purchaser agrees to purchase the Premises subject to any and all 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. Seller shall have no duty to remove or comply with or repair any condition, matter or thing whether or not noted, which, if noted, would result in a violation being placed on the Premises. Seller shall have no duty to remove or comply with or repair any of the aforementioned Violations, or other conditions, and Purchaser 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 Purchase Price.

8. APPORTIONMENTS.

(a) The following shall be apportioned between Seller and Purchaser as of 11:59 p.m. (the “Cut-Off Time”) 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, such that Purchaser shall be treated as the owner of the Property for purposes of prorations of income and expenses, on and after the day of Closing:

(i) Subject to Section 8(d), prepaid rents, fixed rents and additional rents payable pursuant to 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 (to the extent not accounted for pursuant to sub-clause (iii) below), 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, are to be apportioned in accordance with Section 8(b) below;

(iii) charges for all utilities and other due and unpaid operating expenses shall be paid by Seller (and apportioned if necessary) in accordance with Section 8(c) hereof;

(iv) prepaid fees for licenses and other permits assigned to Purchaser at the Closing (which cover any period after the Closing);

(v) any amounts prepaid or payable by Seller under Contracts (if any) which are to be assumed by Purchaser at Closing;

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

(vii) Subject to Section 8(e), wage and fringe benefits (including, without limitation, vacation pay, sick days, health, welfare, pension and disability benefits) and other compensation payable to all Hotel Employees.

(viii) all other operating expenses with respect to the Premises to the extent such matters are customarily apportioned in connection with real estate closings of hotel properties located in New York, New York.

(b) (i) Property Taxes shall be apportioned on the basis of the fiscal period for which assessed. If the Closing Date shall occur either 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 Seller or Purchaser, as the case may be, shall make an appropriate payment to the other within five (5) Business Days based on such calculation. 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 or has become payable, Seller shall pay the unpaid installments of such assessments which are due prior to the Closing Date and Purchaser shall pay the installments which are due on or after the Closing Date.

(ii) Seller may file and/or prosecute an application for the reduction of the assessed valuation of the Premises or any portion thereof for real estate taxes or a refund of Property Taxes previously paid (a “Tax Certiorari Proceeding”) to the City of New York for any fiscal year. Seller shall have the right to withdraw, settle or otherwise compromise Tax Certiorari Proceedings affecting real estate taxes assessed against the Premises (A) for any fiscal period prior to the fiscal year in which the Closing shall occur without the prior consent of Purchaser, and (B) for the fiscal year in which the Closing shall occur or any fiscal year thereafter, provided Purchaser shall have consented with respect thereto, which consent shall not be unreasonably withheld or delayed. The amount of any tax refunds (net of attorneys’ fees and other costs of obtaining such tax refunds) with respect to any portion of the Premises for the tax year in which the Apportionment Date occurs shall be apportioned between Seller and Purchaser as of the Apportionment Date. If, in lieu of a tax refund, a tax credit is received with respect to any portion of the Premises for the tax year in which the Apportionment Date occurs, then (x) within thirty (30) days after receipt by Seller or Purchaser, as the case may be, of evidence of the actual amount of such tax credit (net of attorneys’ fees and other costs of obtaining such tax credit), the tax credit apportionment shall be readjusted between Seller and Purchaser, and (y) upon realization by Purchaser of a tax savings on account of such credit, Purchaser shall pay to Seller an amount equal to the savings realized (as apportioned). All refunds, credits or other benefits applicable to any fiscal period prior to the fiscal year in which the Closing shall occur shall belong solely to Seller (and Purchaser shall have no interest therein) and, if the same shall be paid to Purchaser or anyone acting on behalf of Purchaser, same shall be paid to Seller within thirty (30) days following receipt thereof and, if not timely paid, with interest thereon from the thirtieth (30th) day following such receipt until paid to Seller at a rate equal to ten percent (10%) per annum. All refunds, credits or other benefits applicable to any fiscal period following the fiscal year in which the Closing shall occur shall belong solely to Purchaser (and Seller shall have no interest therein) and, if the same shall be paid to Seller or anyone acting on behalf of Seller, same shall be paid to Purchaser within thirty (30) days following receipt thereof and, if not timely paid, with interest thereon from the thirtieth (30th) day following such receipt until paid to Purchaser at a rate equal to ten percent (10%) per annum. Purchaser agrees to reasonably cooperate with Seller in all such Tax Certiorari Proceedings. To the extent received by either party, sums payable to the other party hereunder shall be held by the receiving party as a trust fund, and remitted to the other party within thirty (30) days of receipt. Purchaser shall assume all liabilities under the property tax certiorari agreements with respect to the Property between Ditchik & Ditchik LLP and Seller, including, without limitation any fees or other amounts payable to Ditchik & Ditchik LLP thereunder, true, correct and complete copies of which have been provided to Purchaser.

(c) Purchaser and Seller hereby acknowledge and agree that the amounts of all telephone, electric, gas, steam, sewer, water bills, trash removal bills, janitorial and maintenance service bills and other utility bills (collectively, “Utilities”) relating to the Premises and allocable to the period prior to the Closing Date shall be determined and paid by Seller before Closing, if possible, or shall be paid thereafter by Seller or adjusted between Purchaser and Seller after the same have been determined. Seller shall attempt to have all utility meters read as of the day immediately preceding the Closing Date. Seller shall promptly pay all unpaid bills, which obligation shall survive Closing. At Closing, Seller shall receive a credit for all refundable cash or other deposits posted with utility companies serving the Premises or any governmental agencies or authorities or posted pursuant to any Contract, or, at Seller’s option, Seller shall be entitled to receive and retain such refundable cash and deposits.

(d) (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 Purchaser or Seller after the Closing Date from tenants who owe Base Rents for periods prior to the Closing Date, shall be applied, (A) first to rents due and payable for the calendar month in which the Closing occurs, (B) next to all rents due and payable for the period after the calendar month in which the Closing occurs, and (C) next to all rents due and payable for the period 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) Purchaser shall bill tenants owing Base Rents for periods prior to the Closing Date as are set forth on such updated arrearage schedule, on a monthly basis and Purchaser shall use commercially reasonable efforts to collect such past due Base Rents; provided, that Purchaser shall have no obligation to commence any actions or proceedings to collect any such past due Base Rents. Rents collected by Purchaser after the Closing Date to which Seller is entitled shall be paid to Seller within five (5) Business Days after receipt thereof by Purchaser. Purchaser shall provide Seller with monthly reports setting forth the status of such collection efforts. With respect to tenants who are not, at the time in question, in occupancy of any portion of the Premises, Seller may take all steps it deems appropriate, including litigation, to collect Base Rents delinquent as of the Closing Date which are still uncollected, and Seller shall give Purchaser written notice of any such actions taken to pursue such tenants. With respect to tenants who are, at the time in question, in occupancy of any portion of the Premises, Seller shall not take any action to pursue such tenants to collect such delinquencies (including, without limitation, litigation, seeking eviction of any tenant or causing any Lease to be terminated).

(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.

(iv) Purchaser shall (A) promptly render bills for any Overage Rent payable for any accounting period that expired prior to the Closing Date, but which is to be paid after the Closing Date; (B) bill tenants for such Overage Rent attributable to an accounting period that expired prior to the Closing Date; and (C) use commercially reasonable efforts in the collection of such Overage Rent; provided, that Purchaser shall have no obligation to commence any actions or proceedings to collect any such Overage Rent. With respect to tenants who are not, at the time in question, in occupancy of any portion of the Premises, Seller shall have the right to pursue tenants to collect such delinquencies (including, without limitation, the prosecution of one or more lawsuits) and Seller shall give Purchaser written notice of any such actions taken to pursue such tenants. With respect to tenants who are, at the time in question, in occupancy of any portion of the Premises, Seller shall not take any action to pursue such tenants to collect such delinquencies (including, without limitation, litigation, seeking eviction of any tenant or causing any Lease to be terminated). Seller shall furnish to Purchaser all information relating to the period prior to the Closing Date necessary for the billing of such Overage Rent, and Purchaser shall deliver to Seller, concurrently with delivery to tenants, copies of all statements relating to Overage Rent for any period prior to the Closing Date, including the aforementioned updated arrearage schedule. Purchaser shall bill tenants for Overage Rents for accounting periods prior to the Closing Date in accordance with and on the basis of such information furnished by Seller.

(v) Overage Rent payable for the accounting period in which the Closing Date occurs shall be apportioned between Seller and Purchaser based upon the ratio that the portion of such accounting period prior to the Closing Date bears to the entire such accounting period. If, prior to the Closing Date, Seller receives any installments of Overage Rent attributable to Overage Rent for periods from and after the Closing Date, such sums (less reasonable collection costs actually incurred by Seller) shall be apportioned at the Closing Date. If Purchaser receives any installments of Overage Rent attributable to Overage Rent for periods prior to the accounting period in which the Closing Date occurs, such sums (less reasonable collection costs actually incurred by Purchaser) shall be paid to Seller within five (5) Business Days after Purchaser receives payment thereof.

(vi) Any payment by tenants of Overage Rent shall be applied to Overage Rent then due and payable in the following order of priority: (A) first, in payment of Overage Rent for the accounting period in which the Closing Date occurs (subject to apportionment pursuant to this Section 8), (B) second, in payment of Overage Rent for the accounting period following the one in which the Closing Date occurs, and (C) third, in payment of Overage Rent for the period preceding the accounting period in which the Closing Date occurs.

(vii) To the extent any portion of Overage Rent is required to be paid monthly 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 Seller and Purchaser on the Closing Date based on such estimated payments (i.e., with (x) Seller 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 Seller for such periods), (y) Purchaser 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) Seller and Purchaser 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 Seller and Purchaser, 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 Seller if the recalculated amounts exceed the estimated amounts and to Purchaser if the recalculated amounts are less than the estimated amounts).

(viii) To the extent that any amounts are paid or payable to Seller 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.

(ix) To the extent tenants pay items of Rent which are not Base Rents or Overage Rent, 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). 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, Purchaser shall pay the entire amount thereof to Seller within five (5) Business Days after receipt thereof, less any reasonable collection costs actually incurred. Purchaser shall (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 Purchaser shall have no obligation to commence any actions or proceedings to collect any Additional Rent. With respect to tenants who are not, at the time in question, in occupancy of any portion of the Premises, Seller shall have the right to pursue tenants to collect such delinquencies (including, without limitation, the prosecution of one or more lawsuits) and Seller shall give Purchaser written notice of any such actions taken to pursue such tenants. With respect to tenants who are, at the time in question, in occupancy of any portion of the Premises, Seller shall not take any action to pursue such tenants to collect such delinquencies (including, without limitation, litigation, seeking eviction of any tenant or causing any Lease to be terminated). Seller shall furnish to Purchaser all information relating to the period prior to the Closing Date necessary for the billing of such Additional Rent, and Purchaser shall deliver to Seller, concurrently with delivery to tenants, copies of all statements relating to Additional Rent for any period prior to the Closing Date, including the aforementioned updated arrearage schedule. Purchaser shall 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 Seller. Additional Rent payable for the period in which the Closing Date occurs shall be apportioned between Seller and Purchaser 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 paragraphs (i) and (ii) above, (y) second to payment of any Additional Rent then due or delinquent, in accordance with paragraph (x) above and (z) third to any Overage Rent then due or delinquent, in accordance with paragraphs (iii)-(ix) above.

(e) All salaries, bonuses, other compensation and employment benefits for unused vacation, holiday, sick leave and personal days if, and to the extent, that amounts are accrued and vested and unused prior to the Closing Date, and contributions for retirement and welfare benefits, together with F.I.C.A., unemployment and other payroll taxes and benefits due with respect to the employment of all Hotel Employees, shall be prorated between Seller and Purchaser as of the Closing Date, with accrued vacation and other benefits due to Bargaining Unit Employees being determined in accordance with the Collective Bargaining Agreement and such matters for Non-Union Employees being determined in accordance with past practices. Purchaser shall pay the salaries and related benefits that are payable to any Hotel Employees for work performed at the Hotel on the Closing Date, whether prior to or following the time of Closing, regardless of whether such persons are employees of Seller or Purchaser.

(f) (i) At Closing, Seller shall receive one-half (1/2) of all revenues from the Hotel guest rooms and facilities occupied on the Apportionment Date with respect to the one night during which the Cut-Off Time occurs, including any sales taxes, room taxes, occupancy taxes and other taxes charged to guests in such rooms, all parking charges, sales from mini-bars, in-room food and beverage, telephone, facsimile and data communications, in-room movie, laundry, and other service charges allocable to such rooms with respect to the Apportionment Date. All revenues from restaurants, bars, lounges, vending machines and other service operations conducted at the Hotel shall be allocated based on whether the same accrued before or after the Cut-Off Time, and Seller shall cause the Manager to separately record sales occurring before and after the Cut-Off Time at the Hotel. The foregoing amounts are referred to collectively as “Guest Revenues”. Notwithstanding the foregoing, all revenues from any bars and lounges at the Hotel shall be prorated based on the actual closing time for such bar or lounge. For example, if such bar or lounge closes at 2 a.m. on the Closing Date, Seller shall retain the revenues from such services and operations even though such revenues were generated two (2) hours after the Cut-Off Time.

(ii) Revenues from conferences, receptions, meetings, and other functions occurring in any conference, banquet or meeting rooms in the Hotel, or in any adjacent facilities owned or operated by Seller, including usage charges and related taxes, food and beverage sales, valet parking charges, equipment rentals, and telecommunications charges, shall be allocated between Seller and Purchaser, based on when the function therein commenced, with (i) one-day functions commencing prior to the Cut-Off Time being allocable to Seller, (ii) functions commencing after the Cut-Off Time being allocable to Purchaser, and (iii) multi-day functions that include periods from both before and after the Cut-Off Time being allocated on a pro rata basis between Seller and Purchaser according to when the event commences and is scheduled to end in relation to the Cut-Off Time. The foregoing amounts are referred to collectively as “Conference Revenues.”

(iii) At Closing, all Receivables shall be assigned to Purchaser and Seller shall receive a proration credit in an amount equal to 98% of face value (without further adjustment or allowance for uncollectible accounts) of such receivables as set forth on Manager’s books including, without limitation, receivables accrued in connection with hotel reservations, the use of guest rooms, banquet and meeting room receivables (including any cancellation fees due to Seller in connection with any of the foregoing) as reflected on the city ledger, guest ledger or any other receivable ledger. Purchaser shall have no right to any adjustment to the prorations with respect to the Receivables on or after Closing for inability to collect outstanding Receivables or otherwise. All accounts receivable more than one hundred twenty (120) days past due on the Closing Date (“Retained Receivables”) shall be retained by Seller at Closing and (i) Purchaser shall cause its manager to endeavor to collect the Retained Receivables in a manner consistent with its efforts to collect the accounts receivable due to Purchaser, and (ii) Purchaser and its manager shall deliver to Seller any amounts received by them after the Closing Date on account of the Retained Receivables reasonably promptly following receipt by Purchaser or its manager.

(iv) Any Hotel operating revenues not otherwise provided for in this Section 8(f), shall be prorated between Purchaser and Seller as of the Apportionment Date.

(g) At Closing, Purchaser shall receive a proration credit equal to the aggregate amount of all outstanding accounts payable for the Hotel as of the Closing Date (“Hotel Payables”) as set forth in a schedule attached to the Preliminary Closing Statement Statement and Purchaser shall assume the obligation to satisfy all Hotel Payables for which Purchaser received such credit at Closing. After Closing, before paying any amount invoiced or otherwise claimed by a third party due with respect to the Hotel operations prior to Closing which is not included on such schedule (or is claimed in an amount larger than that shown on such schedule), Purchaser shall first submit such invoice or claim to Seller. Unless Seller, within fifteen (15) days after receiving such submission, objects to such invoice or claim (thereby making it a “Seller Disputed Payable”), Purchaser may pay the same and take a credit for such payment on the Final Statement. Seller shall make commercially reasonable efforts to resolve any Seller Disputed Payables in a timely manner; provided, that Purchaser shall have the right to pay any invoice or claim the non-payment of which does or could, in Purchaser’s reasonable judgment (i) result in the withholding of goods or services to the Hotel, or (ii) constitute a lien against the Property (or any portion thereof). Notwithstanding the foregoing, upon Closing Purchaser shall assume all obligations of Seller to pay for any (i) consumables or other items ordered by or for the benefit of Seller in the ordinary course of business but which are not yet received as of the Closing Date, and (ii) items or services listed on a purchase order log prepared by Manager which are not yet received as of the Closing Date, which list shall be updated by Manager immediately prior to Closing; provided, that there shall not be any adjustment to the Purchase Price in connection with Purchaser’s assumption of the liabilities described in clauses (i) and (ii) of this sentence.

(h) At Closing, Seller shall receive a credit in the amount of the fair market value of the Consumable Inventory, the Unopened Inventories and the Retail Inventories.

(i) Purchaser shall receive a proration credit equal to the aggregate amount of advance deposits that shall have been received by Seller prior to the Cut-Off Time on account of pending reservations for use or occupancy of the Property after the Cut-Off Time.

(j) Seller shall receive a credit at Closing in an amount equal to all House Bank Funds.

(k) Seller shall receive a credit at Closing in an amount equal to any fees and other amounts paid or advanced by Seller to Franchisor under the Franchise Agreement which relate to periods from and after the Closing Date, to the extent that (a) such amounts may be applied to Purchaser’s obligations under the New License, (b) Franchisor does not directly reimburse Seller for such fees and other amounts at Closing, and (c) Purchaser receives a credit for such amounts from Franchisor.

(l) Unless this Section 8 expressly provides otherwise, all items of revenue and expense with respect to the Hotel’s operations shall be classified and determined in accordance with the Uniform System of Accounts for the Lodging Industry, as reasonably modified by Manager for use at the Hotel consistent with past practices within the twelve (12) months preceding the Closing, and otherwise in accordance with generally accepted accounting principles.

(m) At or prior to the Closing, Seller and Purchaser and/or their respective agents or designees will jointly prepare a preliminary closing statement (the “Preliminary Closing Statement”) which will show the net amount due either to Seller or to Purchaser as the result of the adjustments and prorations provided for herein, and such net due amount will be added to or subtracted from the cash balance of the Purchase Price to be paid to Seller at the Closing pursuant to Section 3 hereof, as applicable. Within twelve (12) months following the Closing Date, Seller and Purchaser will jointly prepare a final closing statement reasonably satisfactory to Seller and Purchaser in form and substance (the “Final Closing Statement”) setting forth the final determination of the adjustments and prorations provided for herein and 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). The net amount due to Seller or Purchaser, if any, by reason of adjustments to the Preliminary Closing Statement as shown in the Final Closing Statement, shall be paid in cash by the party obligated therefor within ten (10) Business Days following that party’s receipt of the approved Final Closing Statement. The adjustments, prorations and determinations agreed to by Seller and Purchaser in the Final Closing Statement shall be conclusive and binding on the parties hereto, except to the extent that any such determinations are not able to be finally determined until a later date or are expressly subject to a longer survival period hereunder. Seller and Purchaser agree that any items which are not capable of being determined at the time the Final Closing Statement shall be determined as soon as feasible and paid promptly after such determination. Prior to and following the Closing Date, each party shall provide the other with such information and data as the other shall reasonably request (including, without limitation, access to the books, records, files and ledgers) 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.

(n) Purchaser and Seller shall each bear their own accounting costs to resolve all prorations provided for under this Section 8.

(o) The provisions of this Section 8 shall survive the Closing.

(p) The rights and obligations of Purchaser under this Section 8 may be assigned to a taxable REIT direct or indirect subsidiary (“TRS”) of DiamondRock Hospitality Company; provided, that any such TRS shall at all times be a wholly owned direct or indirect subsidiary of DiamondRock Hospitality Company and shall not be a Prohibited Person. Seller acknowledges that (i) Purchaser will enter into a lease with the TRS, (ii) the operations of the Hotel will be conducted on behalf of the TRS, and (iii) any debits or credits related to operations will be solely at the expense of, or for the benefit of, the TRS; provided, however, as between Purchaser and Seller, any such debits or credits will be included within the adjustments to the Purchase Price as determined in accordance with this Agreement. Nothing contained in this Section 8(p) shall affect or otherwise release Purchaser and/or Principal from its obligations under this Agreement.

9. EMPLOYEES.

(a) For purposes of this Agreement, (i) “Hotel Employees” means, collectively, all individuals employed at the Hotel by Manager or Seller as of the Closing Date, irrespective of whether such individuals are active, on leaves of absence or otherwise inactive but still employed at the Hotel, and (ii) “Bargaining Unit Employees” shall mean all employees of Seller who work at the Hotel and are covered by the Collective Bargaining Agreement. The provisions of this Agreement set forth in Sections 9(b) through Section 9(f) will apply to Purchaser if and to the extent that Seller immediately before the Closing has a corresponding and direct obligation to Hotel Employees or to Bargaining Unit Employees and to their Union. The provisions of Section 9(f), and any obligation of Purchaser thereunder shall be to the same extent and have the same nature as that of Seller immediately before the Closing. The provisions of Section 9(h) will operate and be applied, if and only to the extent that Seller has an obligation to contribute to the Retirement Plan that runs directly to such plan. Nothing in this Section 9 is intended by its own force and without the consent of Purchaser to increase any obligation or commitment of Purchaser beyond the obligation or commitment that Seller has immediately before the Closing.

(b) Purchaser agrees that it will, or it will cause its manager to, extend offers to hire effective at and upon Closing, a sufficient number of the Hotel Employees (“Rehired Employees”) so that Seller shall not be required to give any layoff, closing or other termination notices or otherwise incur any liability pursuant to the provisions of the Federal Worker Adjustment and Retraining Notification Act. 29 U.S.C. 2101-2109 (the “Federal WARN Act”), the New York State Worker Adjustment and Retraining Notification Act, N.Y. Labor Law §860 et seq. and 12 NYCRR Part 921 (“New York WARN Act”), and the Displaced Building Service Workers Act set forth in Section 22-505 of the Administrative Code of the City of New York (the “Displaced Building Service Workers Act”). Purchaser further agrees that (i) Bargaining Unit Employees shall be offered employment in accordance with Section 9(e) below, (ii) Purchaser or, as the case may be, its manager shall be required to assume and discharge, in accordance with their terms, all obligations and liabilities of Seller or Manager with respect to costs of termination of any employees who are not Bargaining Unit Employees (“Non-Union Employees”) incurred after the Closing including, without limitation, any severance claim made after the Closing by any Non-Union Employee that is not offered employment by Purchaser, or Purchaser’s manager.

(c) From and after the Closing, Purchaser (i) shall be solely responsible for complying or causing compliance with all applicable provisions of federal, state and municipal laws and regulations relating to Rehired Employees, including Purchaser’s covenants set forth in this Section 9, including without limitation compliance with any applicable provisions of the Federal WARN Act, the New York WARN Act or the Displaced Building Service Workers Act, and (ii) hereby agrees to indemnify, defend, protect and hold Seller, Manager, and their respective affiliates harmless from and against any and all claims, liabilities, debts, costs, expenses, damages, attorneys’ fees and disbursements arising out of any violation of the Federal WARN Act, the New York WARN Act or the Displaced Building Service Workers Act in connection with the transaction contemplated by this Agreement. Seller agrees to indemnify, defend, protect and hold Purchaser, Purchaser’s manager, and their respective affiliates harmless from and against any and all claims, liabilities, debts, costs, expenses, damages, attorneys’ fees and disbursements arising out of any violation of the Federal WARN Act, the New York WARN Act or the Displaced Building Service Workers Act for any period prior to the Closing (excluding any matters arising from the transaction contemplated by this Agreement).

(d) During the period prior to Closing, the parties agree to reasonably cooperate and also to consult on a regular basis and coordinate their activities relating to employee matters so as to facilitate a smooth transition of Hotel operations and the continued proper performance by the Hotel Employees of their respective duties up to Closing. Other than in the ordinary course of operations, Seller and/or Manager shall not replace, layoff or terminate any of the Hotel Employees, without Purchaser’s prior written consent, which consent may not be unreasonably withheld. Seller shall promptly deliver to Purchaser copies of any written materials delivered or received relating to Union representation of Hotel Employees, and Seller shall keep Purchaser updated with respect to the status of any discussions with respect thereto.

(e) Purchaser shall: (i) credit Rehired Employees with their original date of hire with the Hotel for purposes of any length of service requirements, waiting periods, vesting periods, or differential benefits based on length of service in any benefit plan established or maintained by or on behalf of Purchaser (or Purchaser’s manager) for which such Hotel Employees may be eligible after the Closing; (ii) provide, subject to the consent of any third-party insurer or other similar third party having liability for benefit payments, that any pre-existing conditions, restrictions or waiting periods under any benefit plan established by or on behalf of Purchaser providing medical, dental, vision, or prescription drug coverage or benefits are waived to the extent necessary and possible under the applicable plans to provide immediate coverage for Hotel employees who are hired for the Hotel following termination of such Hotel Employees’ coverage under the benefit plans maintained by or on behalf of Seller, such that Seller shall not have COBRA obligations for any such Hotel Employees who are hired by Purchaser; and (iii) indemnify, defend and hold Seller harmless from and against all loss, expense (including reasonable attorneys’ fees and disbursements incurred to enforce this indemnity), damage and liability resulting from any COBRA obligations arising in respect of Rehired Employees and any obligations respecting Rehired Employees regarding employee benefits arising from and after the Closing Date.

(f) Without limiting any other provision of this Section 9, (i) Seller has informed Purchaser that Seller is a party to and is bound by the terms of that certain Industry Wide Agreement between Hotel Association of New York, Inc. and New York Hotel and Motel Trades Council, AFL-CIO (“Union”) which is in effect through June 30, 2012, including any related written memorandum of understanding and other related agreements, as provided by their terms (collectively, the “Collective Bargaining Agreement”), (ii) a copy of the Collective Bargaining Agreement had previously been delivered or made available to Purchaser for its review, and (iii) Purchaser or Purchaser’s manager shall offer to retain all Bargaining Unit Employees and, if they accept their offers, their employment will continue uninterrupted without loss of seniority, compensation, benefits or other terms and conditions of employment subject to the Collective Bargaining Agreement and applicable law, and (iii) the Purchaser will recognize the Union and assume and be bound by the Collective Bargaining Agreement from and after the Closing Date. Purchaser further agrees to an assumption agreement in the form of the IWA Assumption Agreement attached hereto as Exhibit 8 and made a part hereof to effectuate an assumption of the Collective Bargaining Agreement in its name (without modification or amendment). To the extent required by the Collective Bargaining Agreement, Purchaser shall also cause its designated manager that becomes the employer of the Bargaining Unit Employees to be a party to the IWA Assumption Agreement.

(g) Under the Collective Bargaining Agreement, Seller currently contributes, on a monthly basis, various amounts under the (i) New York Hotel Trades Council and Hotel Association of New York City, Inc. Health Benefits Fund, (ii) New York Hotel Trades Council and Hotel Association of New York City, Inc. Pension Fund, (iii) New York Hotel Trades Council and Hotel Association of New York City, Inc. Prepaid Legal Services Fund, and (iv) New York Hotel Trades Council and Hotel Association of New York City, Inc. Industry Training and Scholarship Fund (collectively, the “Union Employee Benefit Funds”). At Closing, regular contributions paid or payable with respect to the Union Employee Benefit Funds shall be prorated, with the appropriate party receiving a credit or debit to the Purchase Price, on a pro rata basis based on the date Closing occurs.

(h) Retirement Plan.

(i) The Seller is not currently an “employer” with respect to the Hotel for purposes of Title IV of ERISA, and subsequent to the Closing Date, the Purchaser will also not be an “employer” with respect to the Hotel for purposes of Title IV of ERISA. The “employer” with respect to the Hotel for purposes of Title IV of ERISA is, as to each of the parties, the manager of the Hotel. As a result, neither the Seller has nor, subsequent to the Closing Date, the Purchaser shall have, an obligation to contribute to the New York Hotel Trades Council and Hotel Association of New York City, Inc. Pension Fund (the “Retirement Plan”) with respect to the Hotel. The parties recognize, however, that the Retirement Plan may contend otherwise, and accordingly, the parties have agreed to include provisions herein sufficient to comply with Section 4204 of ERISA as if the Seller had an obligation to contribute to the Retirement Plan with respect to the Hotel. In doing so, neither the Seller nor the Purchaser admits or acknowledges that it is an “employer” with respect to the Hotel for purposes of Title IV of ERISA, or has an obligation to contribute to the Retirement Plan with respect to the Hotel.

(ii) Seller and Purchaser agree that during the Contribution Period, Purchaser (to the extent Seller has had an obligation to contribute) shall make contributions to the Retirement Plan in accordance with the Collective Bargaining Agreement, for substantially the same number of contribution base units, within the meaning of Section 4001(a)(11) of ERISA, for which Seller or Manager had an obligation to contribute with respect to the Hotel. If, as a result of a failure to comply with the foregoing requirements or as a result of any other action by Purchaser, Seller incurs any withdrawal liability under the Retirement Plan with respect to the Hotel, the Purchaser shall indemnify, defend, and hold Seller and any of its ERISA affiliates harmless from and against any such liability and all related costs and expenses, including reasonable attorneys’ fees.

(iii) Purchaser agrees to reasonably cooperate with Seller and/or Retirement Plan representatives with respect to any inquiry or reasonable request for information and assistance in order to facilitate the transfer of the contribution obligation with respect to the Retirement Plan from Seller (or the manager of the Hotel) to Purchaser (or the manager of the Hotel). The parties agree that they will notify the Retirement Plan of their intention that this transaction comply with Section 4204 of ERISA.

(iv) Subject to Section 9(h)(vii), during the period commencing on the first day of the plan year following the Closing Date and ending on the expiration of the fifth such plan year (the “Contribution Period”), Purchaser shall provide to the Retirement Plan either a bond, letter of credit, or an escrow in an amount and manner meeting the requirements of Section 4204 of ERISA. The cost of any bond, letter of credit, or escrow provided under this Section 5.8(h)(iv) shall be paid by Purchaser.

(v) To the extent required pursuant to Section 4204(a)(3) of ERISA, Seller shall provide to the Retirement Plan a bond or escrow equal to the present value of the withdrawal liability Seller would have had to the Retirement Plan with respect to the assets acquired by Purchaser pursuant to this Agreement (but for the provisions of Section 4204 of ERISA), reduced to the extent provided under Section 4204(a)(3) of ERISA in the event only a portion of Seller’ assets are distributed during the Contribution Period.

(vi) If Purchaser at any time withdraws from the Retirement Plan in a complete or partial withdrawal with respect to the assets acquired by Purchaser pursuant to this Agreement during the Contribution Period, Purchaser shall be primarily liable and pay, and Seller shall be secondarily liable for any withdrawal liability Seller would have had to the Retirement Plan with respect to the Hotel (but for the provisions of Section 4204 of ERISA) if any withdrawal liability of Purchaser with respect to such Retirement Plan is not paid. Purchaser shall indemnify and hold Seller harmless for any withdrawal liability incurred by Seller pursuant to the preceding sentence. Purchaser agrees to provide Seller with reasonable advance notice of any action or event which could result in the imposition of any withdrawal liability contemplated by this Section 9(h)(vi), and in any event Purchaser shall immediately furnish Seller with a copy of any notice including, but not limited to a notice of withdrawal liability, it may receive with respect to the Retirement Plan, together with all the pertinent details. If any such withdrawal liability shall be assessed against Purchaser, Purchaser further agrees to provide Seller with reasonable advance notice of any intention on the part of Purchaser not to make full payment of any withdrawal liability when the same shall become due. Any proposed notice or communication to the Retirement Plan relating to Purchaser’s obligations under this Section shall be provided to Seller at least ten (10) days before such notice is provided to the Retirement Plan, and the form of such notice and communication shall be subject to Seller’s written approval, which approval shall not be unreasonably withheld.

(vii) Notwithstanding anything contained in Section 9(h)(iv) to the contrary, Purchaser shall not be obligated to provide any bond, letter of credit, or escrow in the event and to the extent Purchaser obtains from the Retirement Plan or the Pension Benefit Guaranty Corporation a proper variance or exemption under Section 4204(c) of ERISA and the applicable regulations thereunder, provided any and all requirements of said variance or exemption are met and Purchaser approves such exception. Upon Purchaser’s request, Seller agrees to reasonably cooperate with Purchaser in providing the Retirement Plan with notice of the parties’ intention that this transaction be covered by Section 4204 of ERISA.

(i) Purchaser agrees to indemnify, defend and hold harmless Seller, Manager and any other Seller Related Parties from and against any claim, liability, or judgment asserted against any of the Seller Related Parties on account of or with respect to any of the following: (i) any causes of action, damages, complaints, judgments, orders and/or claims, whatsoever, and all costs and expenses (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection therewith, which may be asserted against any of the Seller Related Parties on account of any violation of the National Labor Relations Act, Title VII of the Civil Rights Act, the Fair Labor Standards Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act, the Family and Medical Leave Act, the Vocational Rehabilitation Act of 1973, the Federal WARN Act and/or the New York WARN Act, the Displaced Building Service Workers Act, New York Labor Law, New York State and City Human Rights Law, and/or any other applicable federal, state or city employment statutes, laws, rules and regulations (collectively, “Employment Laws”) by Purchaser, or any designee or management company engaged by Purchaser to employ Hotel personnel, except to the extent such are based on the acts of any Seller Related Parties, and (ii) any claims or liabilities arising (A) under the federal Employee Retirement Income Security Act, as amended, and/or any other applicable federal or state law or regulation concerning employee benefit plans with respect to the employment of employees by Purchaser or such designee or management company from and after the Closing, or (B) from or under any employee benefit plan applicable to any Rehired Employee or any other employee hired by Purchaser or such designee or management company to perform services at or for the Hotel, to the extent that any such claim or liability relates to any period of employment from and after the Closing.

(j) Seller agrees to indemnify, defend and hold harmless Purchaser, or any designee or management company engaged by Purchaser to employ Hotel personnel and their respective officers, directors, members, owners and affiliates (herein, the “Purchaser Related Parties”) from and against any claim, liability, or judgment asserted against any of the Purchaser Related Parties on account of or with respect to any of the following: (i) any causes of action, damages, complaints, judgments, orders and/or claims, whatsoever, and all costs and expenses (including, without limitation, reasonable attorneys’ fees and costs) incurred in connection therewith, which may be asserted against any of the Purchaser Related Parties on account of any violation of the Employment Laws occurring up to and including the Closing by Seller-Related Parties, except to the extent such are based on the acts of any Purchaser-Related Parties and (ii) any claims or liabilities arising (A) under the federal Employee Retirement Income Security Act, as amended, and/or any other applicable federal or state law or regulation concerning employee benefit plans with respect to the employment of employees by Seller-Related Parties up to and including the Closing, or (B) from or under any employee benefit plan applicable to any Rehired Employee or any other employee hired by Purchaser or such designee or management company to perform services at or for the Hotel, to the extent that any such claim or liability relates to any period of employment up to and including the Closing.

(k) Purchaser’s and Seller’s obligations under this Section 9 shall survive Closing.

10. COVENANTS OF SELLER; APPROVALS.

(a) Interim Covenants of Seller. During the period between the Effective Date and the earlier of (x) the termination of this Agreement or (y) Closing, except as otherwise expressly set forth to the contrary herein (or unless expressly required to comply with the Franchise Agreement in which event Purchaser’s consent shall not be required), Seller hereby covenants as follows:

(i) Seller shall (and shall cause Manager to) operate and maintain the Hotel in a manner generally consistent with the requirements of the Franchise Agreement and the manner in which Seller and Manager have operated and maintained the Hotel during the twelve (12) month period immediately prior to the date hereof, except that Seller shall not be required to make any capital improvement or replacement to the Premises;

(ii) Seller shall not enter into any Lease or terminate, amend, modify (except as required pursuant to its terms or other de minimis amendments or modifications), renew, grant any consent rights relating to assignment, subletting or material alterations or knowingly waive any of its rights under any Lease, or accept rental more than one (1) month in advance without first obtaining written consent from Purchaser; provided, that any agreement entered into by Seller with a tenant to confirm the terms of any right or option exercised by such tenants, or otherwise required by the applicable Lease, shall not require Purchaser’s consent;

(iii) Seller shall not sell or assign, or enter into any agreement to sell or assign all or any portion of the Property, except for the provision of hotel rooms and facilities in the ordinary course;

(iv) Seller shall not enter into any new Contracts relating to the operation of the Premises that will be binding on Purchaser or will affect the Premises following Closing without first obtaining written consent from Purchaser, except for (A) utility service agreements (e.g., electricity, water, gas, telephone, cable and any other utility services necessary for the use and operation of the Premises), (B) boiler and compressor service agreements relating to the operation of the Premises, and (C) such other agreements that Seller reasonably determines are necessary or advisable for the operation of the Premises (provided, that any such agreements are terminable, without premium or penalty, on not more than ninety (90) days’ notice);

(v) Seller shall not amend or modify (other than non-material amendments or modifications, or amendments and/or modifications which do not survive the Closing) or renew any of the Contracts that will survive the Closing without first obtaining written consent from Purchaser; provided, that such prior approval shall not be required with respect to any Contracts that are terminable, without premium or penalty, on not more than ninety (90) days’ notice;

(vi) Seller shall not initiate or settle any litigation that will materially adversely affect the Premises following Closing, without Purchaser’s prior written consent; and

(vii) Seller shall maintain (or shall cause Manager to maintain) in full force and effect the insurance policies currently in effect with respect to the Premises (or replacements containing similar coverage).

(b) Approvals. Except as otherwise expressly provided in this Agreement, whenever Seller is required to obtain Purchaser’s approval with respect to any transaction, documents, action or other matter provided for herein, Purchaser shall, (i) within five (5) Business Days after receipt of Seller’s request therefor, notify Seller of its approval or disapproval of same (and if a disapproval, said disapproval shall be accompanied by Purchaser’s reasonable basis therefor), and (ii) not unreasonably withhold or condition such approval and if Purchaser fails to notify Seller of its disapproval within said 5-Business Day period, TIME BEING OF THE ESSENCE, Purchaser shall be deemed to have approved the same. For the avoidance of doubt, any such Seller request or Purchaser notice to Seller as aforesaid shall be given in accordance with the terms of Section 20 hereof.

(c) Management Agreement. Purchaser acknowledges that the Hotel is being operated and managed by Highgate Oxford Management Company, LLC, a Delaware limited liability company (the “Existing Manager”), pursuant to that certain Hotel Management Agreement dated as of October 1, 2004, by and between Seller, Lexington Hotel Operating Lessee, LLC., a Delaware limited liability company, and the Existing Manager (the “Existing Management Agreement”). At Closing, (i) the Existing Management Agreement will be terminated effective as of the Closing Date at Seller’s sole cost and expense, and (ii) as a condition to Seller’s obligation to close the transaction contemplated under this Agreement, Purchaser shall enter into a replacement management agreement with Highgate Hotels, L.P., a Delaware limited partnership (“Manager”) for the operation and management of the Hotel in the form attached hereto as Exhibit 14 (the “Replacement Management Agreement”).

(d) Alcoholic Beverage License. Purchaser acknowledges that Seller is the current licensee under the existing alcoholic beverage license for the Hotel (the “Existing Liquor License”). Seller shall reasonably cooperate with Purchaser in submitting documents to the New York State Liquor Authority (the “NYSLA”) and obtaining all necessary approvals needed by Purchaser in order to obtain all appropriate licenses and permits for the sale of alcoholic beverages at the Hotel; provided, that such cooperation shall (i) not create any potential liability for Seller, and (ii) be at no cost or expense to Seller. To that end, upon the issuance of a temporary retail permit for the Hotel, Seller hereby agrees to deliver the Existing Liquor License to the NYSLA for safekeeping and, upon the issuance of a liquor license for the Hotel, Seller hereby agrees to cause the Existing Liquor License to be surrendered to the NYSLA and shall provide the NYSLA with all necessary documentation, including, without limitation, a Petition for Surrender of License, in connection therewith. In no event shall Seller be required to transfer to Purchaser any unopened alcoholic beverage inventory which is located at or held for use in the Hotel unless and until Seller has received a liquidators permit and Purchaser has obtained a valid and effective license entitling Purchaser to sell alcoholic beverages at the Hotel and only to the extent that Seller is permitted to transfer such inventories pursuant to applicable law. Promptly following the Effective Date, Purchaser shall file all necessary applications and supporting materials with the New York State Liquor Authority as may be required to obtain a temporary retail permit and liquor license for the Hotel, and shall diligently pursue the issuance of such temporary retail permit and liquor license. If Purchaser has not secured a temporary retail permit or liquor license for the Hotel as of the Scheduled Closing Date, then Purchaser shall have the one-time right to adjourn the Scheduled Closing Date to any Business Day occurring on or before June 8, 2011 by giving notice to Seller at least three (3) Business Days prior to the then Scheduled Closing Date; provided, that, the failure of Purchaser to secure a temporary retail permit or liquor license by the Scheduled Closing Date (as the same may be adjourned pursuant to the immediately preceding sentence) shall not excuse or in any other way affect Purchaser’s obligation to consummate the transaction contemplated under this Agreement and the Purchase Price shall not be reduced and Seller shall have no additional obligation as a result thereof.

11. CONDITIONS PRECEDENT TO CLOSING.

(a) Purchaser’s obligation to close the transactions hereunder shall be subject to the satisfaction of the following conditions precedent, provided that Purchaser, at its election, upon written notice delivered to Seller at or prior to the Closing, may waive all or any of such conditions:

(i) Seller shall have executed, acknowledged (if applicable) and delivered to Purchaser all of the documents required of Seller at Closing under this Agreement;

(ii) All of Seller’s representations and warranties set forth in Section 13(a) of this Agreement shall be true and correct in all material respects on the Closing Date; provided, however, that it shall not be deemed a failure of a condition to Closing under this Section 11(a) (and shall also not be deemed a default by Seller) if, with respect to Seller’s representations and warranties set forth in Section 13(a)(iv), Section 13(a)(v), Section 13(a)(vi) and Section 13(a)(ix) through Section 13(a)(xvii), (A) the facts relating to any such representation which has become untrue (other than as a result of a Seller default) does not have a material adverse effect on the operations of the Premises, or (B) any such representation was untrue when made but Seller has caused such representation to be true at Closing in all material respects; and

(iii) Seller shall have caused Manager to enter into the Replacement Management Agreement at Closing.

(b) Seller’s obligation to close the transactions hereunder shall be subject to the satisfaction of the following conditions precedent, provided that Seller, at its election, upon written notice delivered to Purchaser at or prior to the Closing, may waive all or any of such conditions:

(i) Purchaser shall have executed, acknowledged (if applicable) and delivered to Seller all of the documents required of Purchaser at Closing under this Agreement, including, without limitation the Replacement Management Agreement;

(ii) Purchaser shall have delivered to Escrow Agent the Purchase Price and Escrow Agent shall have been irrevocably authorized to deliver same to Seller; and

(iii) All of Purchaser’s representations and warranties set forth in Section 13(e) of this Agreement shall be true and correct in all material respects on the Closing Date.

(c) Seller and Purchaser each covenant and agree to use commercially reasonable, diligent and good faith efforts to satisfy (or cause the satisfaction of) the conditions precedent to the Closing set forth in this Section 11 on or prior to the Closing Date.

12. FIRPTA COMPLIANCE.

Seller shall comply with the provisions of the Foreign Investment in Real Property Tax Act, Section 1445 of the Internal Revenue Code of 1986 (as amended), as the same may be amended from time to time, or any successor or similar law. Seller acknowledges that Section 1445 of the Internal Revenue Code provides that a transferee of a United States real property interest must withhold tax if the transferor is a foreign person. To inform Purchaser that withholding of tax is not required upon the disposition of a United States real property interest by Seller, Seller hereby represents and warrants that Seller is not a foreign person as that term is defined in the Internal Revenue Code and Income Tax Regulations. On the Closing Date, Seller shall deliver to Purchaser a certification as to Seller’s non-foreign status in substantially the form attached hereto as Exhibit 3 and shall comply with any temporary or final regulations promulgated with respect thereto and any relevant revenue procedures or other officially published announcements of the Internal Revenue Service of the U.S. Department of the Treasury in connection therewith.

13. REPRESENTATIONS AND WARRANTIES

(a) Seller hereby represents to Purchaser that the following are true and correct in all material respects as of the date hereof:

(i) Seller is duly organized, validly existing, and in good standing under the laws of the state of its formation, and has or will have at Closing all requisite power and authority to enter into and carry out the transactions contemplated by this Agreement.

(ii) The execution and delivery of this Agreement and the performance by Seller of its obligations hereunder do not and will not conflict with or violate any law, rule, judgment, regulation, order, writ, injunction or decree of any court or governmental or quasi-governmental entity with jurisdiction over Seller, including, without limitation, the United States of America, the State of New York, or any political subdivision of any of the foregoing, or any decision or ruling of any arbitrator to which Seller is a party, or by which Seller is bound or affected, which conflict or violation would prevent Seller from performing its obligations pursuant to this Agreement.

(iii) This Agreement has been duly authorized by all necessary action on the part of Seller, constitutes the legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms. Neither the execution, delivery and performance of this Agreement nor the consummation of the transactions contemplated hereby is prohibited by, or requires Seller to obtain any consent, authorization or approval of (or registration with) any governmental authority or any third-party under any law, statute, rule, regulation, judgment, order, writ, injunction, decree, contract or agreement which is binding upon Seller, the failure of which would prevent Seller from performing its obligations under this Agreement.

(iv) Except as set forth on Schedule F attached hereto and except for insured claims, there is no pending or, to Seller’s knowledge, threatened action, suit, claim, investigation or proceeding at law or in equity against Seller and/or Seller’s members, before or by any court or federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality which is reasonably likely to materially and adversely affect the Property or which otherwise would prevent Seller from performing its material obligations under this Agreement on the Closing Date.

(v) To Seller’s knowledge, there are no condemnation or eminent domain proceedings pending or threatened against the Premises.

(vi) Seller has no Plans (as that term is defined in Section 3(3) of ERISA) of which Seller is a sponsor or to which it contributes or has contributed or in which it otherwise participates or has participated.

(vii) Neither Seller, nor any person controlling or controlled by Seller is in violation of any applicable anti-money laundering or anti-bribery laws and regulations (including funds being derived from any person, entity, country or territory on a Government List or engaged in any unlawful activity defined under Title 18 of the United States Code, Section 1956(c)(7)). Seller is not a person or an entity described by Section 1 of the Executive Order (No. 13,224) Blocking Premises and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism, 66 Fed. Reg. 49,079 (September 24, 2001) (the “Executive Order”) and does not engage in any dealings or transactions and is not otherwise associated with any such persons or entities.

(viii) None of Seller or its affiliates are acting, directly or indirectly, on behalf of terrorists, terrorist organizations or narcotics traffickers, including those persons or entities that appear on the Annex to the Executive Order, are included on any relevant lists maintained by the Office of Foreign Assets Control of U.S. Department of Treasury, U.S. Department of State, or other U.S. government agencies, all as may be amended from time to time.

(ix) Attached hereto as Schedule C-1 and Schedule C-2 is a complete list of all Contracts which currently affect the Property and that may be in effect after Closing, and Seller has delivered (or otherwise made available to Purchaser) true, correct and complete copies of such Contracts and no uncured written notice of default has been delivered by Seller or received by Seller with respect to any Contracts.

(x) Attached hereto as Schedule E-1 is a true, correct and complete list of all Leases which currently affect the Premises, and Seller has delivered to Purchaser (or otherwise made available to Purchaser) true, correct and complete copies of such Leases. To Seller’s knowledge, attached hereto as Schedule E-2 is a true, correct and complete list of all outstanding tenant arrearages under the Leases (the “Tenant Arrearages”), as of the date specified thereon. As of the date hereof, except in connection with the Tenant Arrearages and the litigation involving Habana Room Restaurant disclosed on Schedule F attached hereto, Seller has neither given nor received any written notice of default under any Lease which default remains uncured. No tenant under any Lease has delivered any notice to Seller or Manager exercising any right of termination under its Lease. There are no construction allowances or material brokerage commissions now due or payable in the future in connection with the Leases.

(xi) The Franchise Agreement is the only agreement between Seller and Franchisor regarding the operation of the Hotel as one of Franchisor’s “System Hotels” (as defined in the Franchise Agreement) under the Radisson brand. Seller has delivered (or otherwise made available to Purchaser) a true, correct and complete copy of the Franchise Agreement and no uncured written notice of default has been delivered by Seller or received by Seller from Franchisor. In the event that Franchisor issues a Denial Notice, the provisions of this Section 13(a)(xi) shall automatically cease to apply and the foregoing representation shall be of no further force or effect.

(xii) There are no employees of the Hotel other than Hotel Employees.

(xiii) All Personalty (other than trade fixtures belong to tenants) are owned by Seller (other than any leased Personalty under the Equipment Leases), free and clear of any liens or encumbrances except for Permitted Encumbrances.

(xiv) Seller has not granted, and to Seller’s knowledge there do not exist in favor of any person or party: (i) any option to buy all or any portion of the Property (other than to Purchaser as contemplated by this Agreement), or (ii) any right of first offer or right of first refusal to purchase all or any portion of the Property.

(xv) Seller is not the debtor under any bankruptcy proceedings, voluntary or involuntary, and has not made an assignment for the benefit of creditors.

(xvi) There exist no actual or, to Seller’s knowledge, threatened in writing union strikes, work stoppages or slow downs or any other labor disputes concerning individuals employed at the Hotel which may materially and adversely affect the Property or which would otherwise prevent Seller from performing its material obligations under this Agreement on the Closing Date, except as set forth on Schedule F.

(xvii) Except as disclosed on Schedule H or in the environmental reports (and all modifications thereto) listed on Schedule H, Seller has not received any written notice from any governmental or regulatory authority of the presence or release of any Hazardous Substance that is regulated under any Environmental Laws that would cause the Premises to be in material violation of any applicable Environmental Laws, which material violation remains uncured.

(b) For the purposes of this Agreement the term “to Seller’s knowledge”, and similar terms, shall be limited to the actual knowledge of Vann Avedisian (the “Seller Knowledge Party”). The knowledge of others shall not be imputed to the Seller Knowledge Party. The parties hereby agree that recourse under this Agreement is limited to Seller and no claim will be made against Neil Luthra individually or in his capacity as the Seller Knowledge Party.

(c) Notwithstanding the foregoing, if to Purchaser’s knowledge, any of Seller’s representations or warranties set forth in Section 13(a) hereof were untrue prior to Closing and Purchaser nonetheless elects to close the purchase contemplated under this Agreement, then Purchaser shall not be permitted to seek damages (or deliver a Claim Notice) with respect to the breach of such representations or warranties following Closing (but the foregoing shall not prohibit Purchaser from seeking a Purchase Price credit in respect thereof to the extent permitted under Section 21(c)(ii) hereof).

(d) The parties agree that under no circumstance will either party be entitled to Consequential Damages as a result of a breach of a representation or warranty under this Agreement, and each party hereby waives any rights to seek same. Purchaser shall notify Seller in writing within five (5) Business Days after Purchaser’s knowledge of any default or breach hereunder by Seller or that any of Seller’s representations was untrue when made or has subsequently become untrue, and Seller shall not be liable for any claims or suits relating to a particular default or breach if Purchaser fails to provide a Claim Notice in respect of same within said 3-Business Day period. For the purposes of this Agreement the term “to Purchaser’s knowledge”, and similar terms, shall be limited to the actual knowledge of any one or more of William Tennis and/or Chris King (collectively, the “Purchaser Knowledge Party”). The knowledge of others shall not be imputed to the Purchaser Knowledge Party. The parties hereby agree that recourse under this Agreement is limited to Purchaser and no claim will be made against William Tennis or Chris King individually or in each of his/her capacity as the Purchaser Knowledge Party.

(e) Purchaser represents and warrants to Seller as of the date hereof that:

(i) Purchaser is duly organized, validly existing and in good standing under the laws of the state of its formation, and has the requisite power and authority to enter into and carry out the transactions contemplated by this Agreement.

(ii) The execution and delivery of this Agreement and the performance by Purchaser of its obligations hereunder do not and will not conflict with or violate any law, rule, judgment, regulation, order, writ, injunction or decree of any court or governmental or quasi-governmental entity with jurisdiction over Purchaser, including, without limitation, the United States of America, the State of New York, or any political subdivision of either of the foregoing, or any decision or ruling of any arbitrator to which Purchaser is a party or by which Purchaser is bound or affected, as the case may be, which conflict or violation would prevent Purchaser from performing its obligations pursuant to this Agreement.

(iii) This Agreement has been duly authorized by all necessary action on the part of Purchaser, constitutes the legal, valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms. Neither the execution, delivery and performance of this Agreement nor the consummation of the transactions contemplated hereby is prohibited by, or requires Purchaser to obtain any consent, authorization or approval of (or registration with) any governmental authority or any third-party under any law, statute, rule, regulation, judgment, order, writ, injunction, decree, contract or agreement which is binding upon Purchaser, the failure of which would prevent Purchaser from performing its obligations under this Agreement.

(iv) No action, suit, claim, investigation or proceeding, whether legal or administrative or in mediation or arbitration, is pending or, to Purchaser’s knowledge, threatened, at law or in equity, against Purchaser before or by any court or federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality which may materially and adversely affect Purchaser’s ability or which otherwise would prevent Purchaser from performing its obligations pursuant to this Agreement, and there are no judgments, decrees or orders entered on a suit or proceeding against Purchaser, an adverse decision in which might, or which judgment, decree or order does, materially and adversely affect Purchaser’s ability or which otherwise would prevent Purchaser from performing its obligations pursuant to, or Seller’s rights under, this Agreement, or which seeks to restrain, prohibit, invalidate, set aside, rescind, prevent or make unlawful this Agreement or the carrying out of this Agreement or the transactions contemplated hereby. There is no material litigation or regulatory action pending or, to the Purchaser’s knowledge, threatened against Purchaser, Purchaser’s Principals and/or Related Entities which may materially and adversely affect Purchaser’s ability to perform under, or which otherwise would prevent Purchaser from performing its obligations pursuant to, this Agreement. “Purchaser’s Principals” means Purchaser’s (A) managing members, general partners or principal shareholders and (B) such other members, partners or shareholders who directly or indirectly own a fifteen percent (15%) or greater interest in Purchaser. “Related Entities” means all other entities which may be owned or controlled directly or indirectly by Purchaser’s Principals.

(v) Neither Purchaser, nor any person controlling or controlled by Purchaser, is a country, territory, individual or entity named on a Government List, and the monies used in connection with this Agreement and amounts committed with respect thereto, were not and are not derived from any activities that contravene any applicable anti-money laundering or anti-bribery laws and regulations (including funds being derived from any person, entity, country or territory on a Government List or engaged in any unlawful activity defined under Title 18 of the United States Code, Section 1956(c)(7)). Purchaser is not a person or an entity described by Section 1 of the Executive Order and does not engage in any dealings or transactions and is not otherwise associated with any such persons or entities.

(vi) None of Purchaser or, to Purchaser’s knowledge, its affiliates are acting, directly or indirectly, on behalf of terrorists, terrorist organizations or narcotics traffickers, including those persons or entities that appear on the Annex to the Executive Order, are included on any relevant lists maintained by the Office of Foreign Assets Control of U.S. Department of Treasury, U.S. Department of State, or other U.S. government agencies, all as may be amended from time to time.

(vii) Purchaser has not been a party to any bankruptcy proceedings, voluntary or involuntary, made an assignment for the benefit of creditors or taken advantage of any insolvency act, or any act for the benefit of debtors.

(viii) Purchaser is not acquiring the Property with the assets of an employee benefit plan as defined in Section 3(3) of ERISA.

(f) Subject to Purchaser’s compliance with the requirements of Section 13(g) below, Seller’s representations and warranties contained in (i) Section 13(a)(i) through Section 13(a)(iii) above, inclusive, shall survive the Closing as to any Claim asserted in a Claim Notice in accordance with Section 13(g) below until the expiration of the statute of limitations period applicable with respect thereto, and (ii) Section 13(a)(iv) through Section 13(a)(xvii) above, inclusive, shall survive the Closing as to any Claim that is asserted in a Claim Notice in accordance with Section 13(g) below within a period of one hundred eighty (180) days after the Closing Date (such survival periods referred to in sub-clauses (i) and (ii) immediately above, collectively or individually as the context may require, the “Limitation Period”). Each such representation and/or warranty shall automatically become null and void and of no further force and effect after the Limitation Period unless, prior to the end of the Limitation Period, TIME BEING OF THE ESSENCE, Purchaser shall have delivered a Claim Notice relating thereto to Seller. Subject to Section 21(c) below, in no event will Seller be liable to Purchaser in excess of the Maximum Liability Amount, in the aggregate, for actual damages pursuant to any Claim Notice(s).

(g) Subject to the terms of this Agreement (including, without limitation, Section 13(f) above and Section 21(c) below), if either party desires to make a claim that the other was in breach of a representation or warranty contained in Section 13 of this Agreement, then such claiming party shall deliver a written notice (in the case of Seller’s claim, each such notice, a “Breach Notice” and in the case of Purchaser’s claim, each such notice, a “Claim Notice”) thereof to the other party. Any such Breach Notice or Claim Notice, as the case may be, in order to be effective, must allege that (i) the other party was in breach of such representation or warranty either when initially made under this Agreement or when made at Closing, (ii) the claiming party did not have actual knowledge of such breach at Closing (as and to the extent such Breach Notice or Claim Notice is given after the Closing) and (iii) the claiming party has suffered, or reasonably anticipates that it will suffer, actual damages as a direct result thereof. If, following the Closing, a party shall have timely issued a Breach Notice or Claim Notice, as the case may be, the parties shall endeavor in good faith to resolve such matter within twenty (20) Business Days following the issuance of the Breach Notice or the Claim Notice, as applicable (said 20-Business Day period is hereinafter referred to as the “Settlement Period”). If the parties are unable to resolve such matter by the expiration of the Settlement Period, the claiming party may commence a proceeding asserting its claim in a court of competent jurisdiction, subject in all cases to the Limitation Period and the terms of Section 13(f) above. From and after the date that is one hundred fifty (150) days following the expiration of the Settlement Period, the non-claiming party may notify the claiming party in writing that the claiming party must commence a proceeding asserting its claim with respect to the Breach Notice or Claim Notice in question, within thirty (30) days of receipt of said notice. If the claiming party fails to commence such a proceeding within said thirty (30) day period, the non-claiming party may deliver a second notice which shall inform the claiming party, in capitalized type of at least 12 points in size on the top of the first page: “THIS NOTICE IS BEING DELIVERED PURSUANT TO SECTION 13(g) OF THAT CERTAIN PURCHASE AND SALE AGREEMENT WITH [LEXINGTON HOTEL, LLC] [DIAMONDROCK NY LEX OWNER, LLC]. IF YOU FAIL TO COMMENCE A PROCEEDING ASSERTING THE APPLICABLE CLAIM WITHIN TEN (10) BUSINESS DAYS OF YOUR RECEIPT OF THIS NOTICE, YOU SHALL BE DEEMED TO HAVE WAIVED SUCH CLAIM UNDER THE TERMS OF THE PURCHASE AND SALE AGREEMENT.” If the claiming party thereafter fails to commence a proceeding with respect to such claim within said ten (10) Business Day period, the claim in question shall be deemed waived by the claiming party under this Agreement. In the event that a proceeding is commenced: (A) the party so commencing the proceeding shall diligently prosecute its claim, and (B) the prevailing party shall be entitled to recover its reasonable legal fees and all related out-of-pocket expenses actually incurred from the other party.

(h) The provisions of this Section 13 shall (i) be subject to the provisions of Section 21(c) and (ii) survive the Closing, but, in the case of the representations and warranties set forth in Section 13(a) above, such survival shall be limited to the extent set forth in Section 13(c) and Section 13(f) above.

14. DAMAGE AND DESTRUCTION.

(a) If all or any part of the Building is damaged by fire or other casualty occurring following the date hereof and prior to the Closing Date (and not caused by Purchaser, Purchaser’s Representatives, and/or any of their affiliates), whether or not such damage affects a material part of the Building, then:

(i) If the estimated cost of repair or restoration is less than or equal to five percent (5%) of the Purchase Price or if the estimated time to substantially complete such repair or restoration is nine (9) months or less, neither party shall have the right to terminate this Agreement, (y) the parties shall nonetheless consummate the transactions in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of such destruction or damage, and (z) Seller shall assign to Purchaser and Purchaser shall have the right to make a claim for and to retain any casualty insurance proceeds received under the casualty insurance policies in effect with respect to the Premises on account of such physical damage or destruction as shall be necessary to perform repairs to the Building and/or to rebuild the Building to substantially the same condition as it existed prior to the occurrence of such fire or other casualty and Purchaser shall receive a credit against the balance of the Purchase Price due at Closing for the amount of the deductible on such casualty insurance policy less any amounts reasonably and actually expended by Seller to collect any such insurance proceeds or to remedy any unsafe conditions at the Property or to repair or restore any damages to substantially the same condition as existed prior to the occurrence of such fire or other casualty, in no event to exceed the amount of the loss. In the event such amounts spent by Seller exceed the amount of the deductible on such casualty insurance policy, then Purchaser shall deliver such excess amount to Seller, within ten (10) Business Days of its receipt of any casualty insurance proceeds received on account of such casualty.

(ii) If the estimated cost of repair or restoration exceeds five percent (5%) of the Purchase Price and if the estimated time to substantially complete such repair or restoration exceeds nine (9) months, Purchaser shall have the option, exercisable on or prior to the Casualty Election Date (as defined below), to terminate this Agreement or to consummate the transactions in accordance with this Agreement by delivering notice of such election to Seller; upon Purchaser’s election to terminate this Agreement in accordance herewith, the Deposit (together with all interest accrued thereon) shall be returned to Purchaser and this Agreement shall be deemed canceled and of no further force or effect, and neither party shall have any further rights or liabilities against or to the other except for such provisions which are expressly provided in this Agreement to survive the termination hereof. If a fire or other casualty

described in this clause (ii) shall occur and Purchaser shall not timely elect to consummate the transactions in accordance with this Agreement, then Purchaser shall be deemed to have elected to consummate the transactions in accordance with this Agreement. If a fire or other casualty described in this clause (ii) shall occur and Purchaser shall timely elect (or be deemed to have elected) to consummate the transactions in accordance with this Agreement, (y) the parties shall consummate the transactions in accordance with this Agreement, without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of such destruction or damage and (z) Seller shall assign to Purchaser and Purchaser shall have the right to make a claim for and to retain any casualty insurance proceeds received under the casualty insurance policies in effect with respect to the Premises on account of such physical damage or destruction as shall be necessary to perform repairs to the Building and/or to rebuild the Building to substantially the same condition as it existed prior to the occurrence of such fire or other casualty and Purchaser shall receive a credit against the balance of the Purchase Price due at Closing for the amount of the deductible on such casualty insurance policy less any amounts reasonably and actually expended by Seller to collect any such insurance proceeds or to remedy any unsafe conditions at the Property or to repair or restore any damages to substantially the same condition as existed prior to the occurrence of such fire or other casualty, in no event to exceed the amount of the loss.

(b) The estimated cost to repair and/or restore and the estimated time to complete, as contemplated in subsection (a) above, shall be established by estimates obtained by Seller from independent contractors, subject to Purchaser’s review and reasonable approval of same and the provisions of Section 14(c) below.

(c) Any disputes under this Section 14 as to the cost of repair or restoration or the time for completion of such repair or restoration shall be resolved by expedited arbitration before a single arbitrator acceptable to both Seller and Purchaser in their reasonable judgment in accordance with the rules of the AAA; provided, that if Seller and Purchaser fail to agree on an arbitrator within five (5) days after a dispute arises, then either party may request that the AAA designate an arbitrator. Any dispute submitted to arbitration pursuant to the provisions of this Section 14 shall be held in the City of New York before a single arbitrator under the Expedited Procedures provisions of the Commercial Arbitration Rules of the AAA. The arbitrator conducting any such arbitration shall be bound by the provisions of this Agreement and shall not have the power to add to, subtract from or otherwise modify such provisions, and the arbitrator shall consider only the specific issues submitted to it for resolution. Such arbitrator shall be an independent general contractor having at least ten (10) years of experience in the construction of high rise, first class hotel towers in New York, New York comparable to the standards set forth in this Agreement. The determination of the arbitrator shall be conclusive and binding upon the parties. The costs and expenses of such arbitrator shall be borne equally by Seller and Purchaser.

(d) For the avoidance of doubt, the provisions of Section 5-1311 of the General Obligations Law shall not apply to this Agreement. The provisions of this Section 14 shall survive Closing.

(e) “Casualty Election Date” means (x) the tenth (10^th) Business Day following Seller’s delivery of the estimates as described in clause (b) above or, (y) in the event any dispute under this Section 14 as to the cost of repair or restoration or the time for completion of such repair or restoration, the tenth (10^th) Business Day following final resolution of such dispute by arbitration determination or agreement of the parties.

15. CONDEMNATION.

(a) If, prior to the Closing Date, any part of the Premises is taken (other than a temporary taking), or if Seller shall receive an official notice from any governmental authority, having eminent domain power over the Premises, of its intention to take, by eminent domain proceeding, any part of the Premises (a “Taking”), then:

(i) if such Taking involves an area less than or equal to fifteen percent (15%) of the entire Premises and does not materially adversely affect access to, or operations of, the Hotel (which cannot be cured prior to, or in a reasonable period of time after, Closing), then neither party shall have any right to terminate this Agreement and the parties shall nonetheless consummate this transaction in accordance with this Agreement (it being understood that in the event that a portion of the Premises is taken, Seller shall be relieved of its duty to convey the title to the portion of the parcel so taken) without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of said Taking, provided, however, that Seller shall, on the Closing Date (i) assign and remit to Purchaser, and Purchaser shall be entitled to receive and keep, the net proceeds of any award or other proceeds of such Taking which may have been collected by Seller as a result of such Taking less any amounts actually expended by Seller in connection with such Taking, or (ii) if no award or other proceeds have been collected, deliver to Purchaser an assignment of Seller’s right to any such award or other proceeds which may be payable to Seller as a result of such Taking and Purchaser shall reimburse Seller for any amounts actually expended by Seller in connection with such Taking.

(ii) if such Taking involves an area more than fifteen percent (15%) of the entire Premises or materially adversely affects access to, or the operations of, the Hotel (which cannot be cured prior to, or in a reasonable period of time after Closing), then both Purchaser and Seller shall each have the option, exercisable within ten (10) days after receipt of notice of such Taking, TIME BEING OF THE ESSENCE, to terminate this Agreement by delivering written notice thereof to the other party, whereupon the Deposit (together with all interest accrued thereon) shall be returned to Purchaser, and this Agreement shall be deemed canceled and of no further force or effect, and neither party shall have any further rights or liabilities against or to the other except pursuant to the provisions of this Agreement, which are expressly provided to survive the termination hereof. If a Taking described in this clause (ii) shall occur and neither party hereunder shall have timely elected to terminate this Agreement, then Purchaser and Seller shall consummate the transactions contemplated by this Agreement (it being understood that in the event that a portion of the Premises is taken, Seller shall be relieved of its duty to complete construction and convey the title to the portion of the parcel so taken), without any abatement of the Purchase Price or any liability or obligation on the part of Seller by reason of such Taking, provided, however, that Seller shall, on the Closing Date, (i) assign and remit to Purchaser, and Purchaser shall be entitled to receive and keep, the net proceeds of any award or other proceeds of such Taking which may have been collected by Seller as a result of such Taking less any amounts actually expended by Seller in connection with such Taking, or (ii) if no award or other proceeds shall have been collected, deliver to Purchaser an assignment of Seller’s right to any such award or other proceeds which may be payable to Seller as a result of such Taking, and Purchaser shall reimburse Seller for any amounts actually expended by Seller in connection with such Taking.

(b) Any disputes under this Section 15 as to whether the Taking involves more than fifteen percent (15%) of the entire Premises, or whether such Taking materially adversely affects access to, or the operations of, the Hotel, shall be resolved by expedited arbitration before a single arbitrator acceptable to both Seller and Purchaser in their reasonable judgment in accordance with the rules of the AAA; provided that if Seller and Purchaser fail to agree on an arbitrator within five days after a dispute arises, then either party may request that the AAA designate an arbitrator. Any dispute submitted to arbitration pursuant to the provisions of this Section 15 shall be held in the City of New York before a single arbitrator under the Expedited Procedures provisions of the Commercial Arbitration Rules of the AAA. The arbitrator conducting any such arbitration shall be bound by the provisions of this Agreement and shall not have the power to add to, subtract from or otherwise modify such provisions, and the arbitrator shall consider only the specific issues submitted to it for resolution. Such arbitrator shall be an independent architect having at least ten (10) years of experience in the construction of high rise, first class hotel towers in New York, New York comparable to the standards set forth in this Agreement. The determination of the arbitrator shall be conclusive and binding upon both parties. The costs and expenses of such arbitrator shall be borne equally by Seller and Purchaser.

16. BROKERS AND ADVISORS.

(a) Purchaser represents and warrants to Seller that it has not dealt or negotiated with, or engaged on its own behalf or for its benefit, any broker, finder, consultant, advisor, or professional in the capacity of a broker or finder (each, a “Broker”) in connection with this Agreement or the transactions contemplated hereby, other than Eastdil Secured, LLC. Purchaser and Principal, jointly and severally, hereby agree to indemnify, defend and hold Seller and the other Seller Related Parties harmless from and against any and all claims, demands, causes of action, losses, costs and expenses (including reasonable attorneys’ fees, court costs and disbursements) arising from any claim for commission, fees or other compensation or reimbursement for expenses made by any Broker (other than Eastdil Secured, LLC) engaged by or claiming to have dealt with Purchaser in connection with this Agreement or the transactions contemplated hereby.

(b) Seller represents and warrants to Purchaser that it has not dealt or negotiated with, or engaged on its own behalf or for its benefit, any Broker in connection with this Agreement or the transactions contemplated hereby, other than Eastdil Secured, LLC. Seller hereby agrees to indemnify, defend and hold Purchaser and its direct and indirect shareholders, officers, directors, partners, principals, members, employees, agents, contractors and any successors or assigns of the foregoing, harmless from and against any and all claims, demands, causes of action, losses, costs and expenses (including reasonable attorneys’ fees, court costs and disbursements) arising from any claim for commission, fees or other compensation or reimbursement for expenses made by any Broker (including Eastdil Secured, LLC) engaged by or claiming to have dealt with Seller in connection with this Agreement or the transactions contemplated hereby. Upon the Closing, Eastdil Secured, LLC shall be paid a commission by Seller pursuant to a separate written agreement.

(c) The provisions of this Section 16 shall survive the termination of this Agreement or the Closing.

17. TRANSFER TAXES AND RECORDING CHARGES; OTHER COSTS.

(a) At the Closing, Seller and Purchaser shall execute, acknowledge, deliver and file all such returns (or, if required by ACRIS E-tax procedures, an electronic version thereof) as may be necessary to comply with any applicable city, county or state conveyance tax laws and/or New York real estate conveyance tax laws (including, without limitation, Article 31 of the Tax Law of the State of New York and the regulations applicable thereto, and the New York City Real Property Transfer Tax Law (Admin. Code Chapter 21) and the regulations applicable thereto) (collectively, as the same may be amended from time to time, the “Transfer Tax Laws”). The transfer taxes payable pursuant to the Transfer Tax Laws shall collectively be referred to as the “Transfer Taxes”. On the Closing Date, Seller shall pay (or cause to be paid) to the appropriate party the Transfer Taxes payable under the Transfer Tax Laws, if any, in connection with the consummation of the transactions contemplated by this Agreement.

(b) Seller shall be responsible for (i) the costs of its legal counsel, accountants, advisors and other professionals employed by it in connection with the sale of the Property, and (ii) one-half of all escrow fees, including, without limitation, Escrow Agent fees.

(c) Purchaser shall be responsible for (i) the costs and expenses associated with its inspection of the Premises and its due diligence, (ii) the costs and expenses of its legal counsel, accountants, advisors and other professionals employed by it in connection with the purchase of the Property, (iii) all premiums and fees for title examination and title insurance and endorsements obtained in connection with the transactions contemplated by this Agreement and all related charges and survey costs in connection therewith, (iv) all costs and expenses incurred in connection with any financing obtained by Purchaser, including without limitation, loan fees, mortgage recording taxes, lender’s legal fees and any costs, expenses or fees incurred in connection with the Mortgage Assignment, (v) all recording fees for the Deed and any documentation to be recorded in connection with the purchase transaction contemplated by this Agreement, (vi) all fees, costs and expenses incurred in connection with the transfer of the Existing Liquor License, (vii) all fees, costs and expenses incurred in connection with the transfer of the Franchise Agreement and obtaining a New License, and (viii) one-half of all escrow fees, including, without limitation, Escrow Agent fees.

(d) The provisions of this Section 17 shall survive the Closing.

18. DELIVERIES TO BE MADE ON THE CLOSING DATE.

(a) Seller’s Documents and Deliveries: On the Closing Date, if not previously delivered to, or not in the possession or control of Purchaser, Seller shall deliver or cause to be delivered to Purchaser and/or the Title Company (as applicable) the following:

(i) A duly executed and acknowledged Bargain and Sale Deed Without Covenants Against Grantor’s Acts (the “Deed”), which shall be substantially in the form attached hereto as Exhibit 1;

(ii) A duly executed Bill of Sale, which shall be substantially in the form attached hereto as Exhibit 2;

(iii) A duly executed certification as to Seller’s non- foreign status, if appropriate, which shall be substantially in the form attached hereto as Exhibit 3;

(iv) An owner’s affidavit (which need only be delivered to the Title Company), which shall be substantially in the form attached hereto as Exhibit 4;

(v) Originals (or if originals are unavailable, copies) of the Leases and Contracts then in effect to the extent in Seller’s possession, together with such leasing and property files and records which are material in connection with the continued operation, leasing and maintenance of the Property and any keys to security deposit boxes;

(vi) Originals or, if unavailable, copies, of all warranties and guaranties which Seller is required to assign to Purchaser pursuant to and in accordance with the terms of this Agreement, to the extent same are in Seller’s possession or control;

(vii) Originals or, if unavailable, copies, of all permits, licenses and approvals relating to the ownership, use or operation of the Premises, to the extent in Seller’s possession or control;

(viii) Originals, or, if unavailable, copies, of plans and specifications, technical manuals and similar materials for the Building to the extent same are in Seller’s possession or control;

(ix) The cash security deposits (together with interest accrued thereon less any permitted administrative fee) and letters of credit held by Seller as security under the Leases, but only to the extent the same have not been applied in accordance with the Leases or returned to tenants and relate to tenants occupying space in the Building on the Closing Date pursuant to Leases then in effect;

(x) Keys and combinations in Seller’s possession relating to the operation of the Premises;

(xi) Originals of the Estoppel Certificates, if any, obtained pursuant to Section 23;

(xii) A form of letter to all tenants under the Leases and counterparties to Contracts to be delivered by Purchaser in the form of Exhibit 11;

(xiii) A copy of the termination agreement executed by Seller and Manager, which has the effect of terminating the Existing Management Agreement effective as of the Closing Date;

(xiv) A. At the Closing, Purchaser shall deliver the sum of the Maximum Liability Amount (which amount may be withheld from the Purchase Price at Closing) (the “Holdback Escrow”), to the Escrow Agent to be held in escrow pursuant to an Escrow Holdback Agreement substantially in the form attached hereto as Exhibit 9 (“Escrow Holdback Agreement”), to secure Seller’s obligations after Closing for a Claim;

B. Unless Purchaser shall have delivered a Claim Notice to Seller prior to the date that is one hundred eighty (180) days after the Closing Date (such period, the “Holdback Period”), Escrow Agent shall be instructed to, and shall, on the first Business Day after the expiration of the Holdback Period, deliver to Seller the Holdback Escrow;

C. Notwithstanding the forgoing, and as more particularly set forth in the Escrow Holdback Agreement, provided Purchaser shall have delivered a Claim Notice to Seller prior to the expiration of the Holdback Period, then, if the Claim asserted in such Claim Notice has not been resolved as of the expiration of the Holdback Period, Escrow Agent shall continue to hold in escrow such portion of the Holdback Escrow in an amount equal to the Claimed Damage set forth in such Claim Notice until Escrow Agent is authorized to disburse the same in accordance with the terms of this sub-paragraph C, and shall pay to Seller the balance of the Holdback Escrow on the first Business Day following the expiration of the Holdback Period. Escrow Agent shall continue to hold the Holdback Escrow until the earlier of (x) Escrow Agent’s receipt of joint instructions from Purchaser and Seller, in which event Escrow Agent shall deliver the Holdback Escrow in accordance with such instructions or (y) the entry of a final, non-appealable judgment with respect to the applicable Claim in which event Escrow Agent shall deliver the Holdback Escrow in accordance with the terms of said judgment;

D. Notwithstanding the forgoing, Seller shall be permitted to deliver to Purchaser at Closing, in lieu of the Holdback Escrow and without the need to enter into the Escrow Holdback Agreement, an indemnity from a creditworthy entity reasonably acceptable to Purchaser which indemnity will (x) be used to secure Seller’s obligations after Closing in the same manner as was intended in sub-paragraphs A, B, and C above and (y) have a maximum liability in the amount of the Maximum Liability Amount;

E. Purchaser shall not be entitled to receive any damages for any Claim that is asserted following the expiration of the applicable Limitation Period with respect to such claim. Further, and notwithstanding anything to the contrary contained in this Agreement, under no circumstances shall Purchaser be permitted to make a Claim for or receive Consequential Damages;

(xv) A duly executed original certificate of Seller in the form of Exhibit 15 updating the representations and warranties of Seller contained herein to the Closing Date and noting any changes thereto; and

(xvi) Any other documents required in connection with the transactions specified in this Agreement, and any other documents reasonably required by the Title Company in connection with the transactions contemplated by this Agreement as long as such documents reasonably required by the Title Company do not require Seller to incur additional cost, take on any additional obligations or expose Seller to any additional risks or liability.

Seller shall be deemed to have delivered the items set forth in sub-clauses (a)(v), (a)(vi), (a)(vii), (a)(viii) and (a)(x) above if the same are left in the management office of the Premises on the Closing Date.

(b) Purchaser’s Documents and Deliveries: On the Closing Date, Purchaser, shall deliver or cause to be delivered to Seller the following:

(i) The balance of the Purchase Price payable at the Closing by 2:00 P.M., New York time, on the Closing Date (TIME BEING OF THE ESSENCE), as adjusted for apportionments under Section 8, and subject to Purchaser’s delivery of the Holdback Escrow pursuant to Section 18(a)(xiv)(A)(1), if applicable, in the manner required under this Agreement;

(ii) A letter of direction from Purchaser (the form of which shall be subject to Seller’s reasonable approval) directing Escrow Agent to deliver the Deposit (together with all interest accrued thereon) to Seller and to pay the balance of the Purchase Price, as adjusted for apportionments under Section 8, and subject to Purchaser’s delivery of the Holdback Escrow pursuant to Section 18(a)(xiv)(A), and all other amounts due at Closing, or thereafter in accordance with the provisions of this Agreement, to Seller or any other person as Seller shall designate;

(iii) A letter in the form of Exhibit 5 attached hereto duly executed by Purchaser, confirming that Purchaser is not acquiring the Property with the assets of an employee benefit plan as defined in Section 3(3) of ERISA and, in the event Purchaser is unable or unwilling to make such a representation, Purchaser shall be deemed to be in default hereunder, and Seller shall have the right to terminate this Agreement and to receive and retain the Deposit (together with all interest accrued thereon);

(iv) Any other documents required in connection with the transactions specified in this Agreement, and any other documents reasonably required by the Title Company;

(v) An original counterpart of the Replacement Management Agreement; and

(vi) A duly executed original certificate of Purchaser in the form of Exhibit 15 updating the representations and warranties of Purchaser contained herein to the Closing Date.

(c) Jointly Executed Documents: Seller and Purchaser shall, on or before the Closing Date, each execute, acknowledge (as appropriate) and exchange the following documents:

(i) Any transfer tax returns required under any Transfer Tax Laws applicable to the transactions contemplated under this Agreement;

(ii) An Assignment and Assumption of Contracts, which shall be substantially in the form attached hereto as Exhibit 6;

(iii) A General Assignment and Assumption Agreement, which shall be substantially in the form attached hereto as Exhibit 7;

(iv) An Assignment and Assumption of the Collective Bargaining Agreement, which shall be substantially in the form attached hereto as Exhibit 8;

(v) The Franchise Indemnity Agreement (if applicable);

(vi) An Assignment and Assumption of Leases, which shall be substantially in the form attached hereto as Exhibit 13.

(vii) Any other affidavit, document or instrument required to be delivered by Seller or Purchaser pursuant to the terms of this Agreement.

19. CLOSING DATE.

The closing of the transactions contemplated hereunder (the “Closing”) shall occur, and the documents referred to in Section 18 of this Agreement shall be delivered upon Purchaser’s tender of the Purchase Price provided for in this Agreement, at 10:00 A.M., New York time, on May 25, 2011 (such date, as it may be adjourned pursuant to this Agreement, the “Scheduled Closing Date”; and the actual date of the Closing, the “Closing Date”), at the offices of Seller’s attorneys, Fried, Frank, Harris, Shriver & Jacobson LLP, One New York Plaza, New York, New York 10004 or, at Seller’s election, 375 Park Avenue, New York, New York 10152. TIME IS OF THE ESSENCE as to Purchaser’s and Seller’s obligation to close the transactions contemplated under this Agreement on the Scheduled Closing Date (or, if either party shall have extended the Scheduled Closing Date pursuant to the terms of this Agreement, on such Scheduled Closing Date so designated by the applicable party; it being acknowledged and agreed that Purchaser shall have no right to extend the Scheduled Closing Date except as expressly provided in Section 10(d)).

20. NOTICES.

(a) Except as otherwise expressly provided in this Agreement, all notices, demands, requests or other communications hereunder (each a “Notice” and collectively, “Notices”) required to be given or which may be given hereunder shall be in writing and shall be sent by (i) certified or registered mail, return receipt requested, postage prepaid, or (ii) national overnight delivery service, or (iii) facsimile transmission (provided that a copy shall be delivered by the next Business Day, by a national overnight delivery service or personal delivery), or (iv) personal delivery, addressed as follows:

If to Seller:

Lexington Hotel, LLC
c/o Highgate Holdings, Inc.
545 E. John Carpenter Fwy, Suite 1400
Irving, Texas 75062
Attention: Mahmood Khimji and Lynne A. Messina
Telephone No.: (972) 444-9700
Facsimile No.: (972) 401-2400

and

Lexington Hotel, LLC
c/o Highgate Holdings, Inc.
870 Seventh Avenue, 2nd Floor
New York, New York 10019
Attention: Neil Luthra
Telephone No.: (212) 707-5041
Facsimile No.: (212) 707-5555

and

Lexington Hotel, LLC
c/o Blackstone Real Estate Advisors
345 Park Avenue
New York, NY 10154
Attention: Bill Stein and Glenn Alba
Telephone No: (212) 583-5898
Facsimile No: (212) 583-5202

and

Lexington Hotel, LLC
c/o Goldman Sachs & Co.
200 West Street, 28^th Floor
New York, New York 10282
Attention: Jeffrey M. Fine
Telephone No: (212) 902-4252
Facsimile No: (212) 357-5505

with copies to:

Fried, Frank, Harris, Shriver & Jacobson LLP
One New York Plaza
New York, New York 10004
Attention: Ross Z. Silver, Esq.
Telephone No.: (212) 859-8078
Facsimile No.: (212) 859-4000

If to Purchaser:

DiamondRock NY Lex Owner, LLC
c/o DiamondRock Hospitality Company
3 Bethesda Metro Center
Suite 1500
Bethesda, Maryland 20814
Attention: General Counsel
Telephone No.: (240) 744-1188
Facsimile No.: (240) 477-1199

with copy to:

Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, New York 10019-6099
Attention: Steven D. Klein, Esq.
Telephone: No. (212) 728-8221
Facsimile No.: (212) 728-9221

If to Escrow Agent or Title Company:

Commonwealth Land Title Insurance Company
140 East 45^th Street, 22^nd Floor
New York, New York 10017
Attention: Peter G. Doyle
Telephone No.: (212) 973-6207
Facsimile No.: (212) 986-3215

(b) Any Notice so sent by certified or registered mail, return receipt requested, postage prepaid, shall be deemed given upon delivery (or at the time of refusal to accept delivery) as indicated on the return receipt thereto. Any Notice so sent by national overnight delivery service or personal delivery shall be deemed given on the next Business Day when sent (or at the time of refusal to accept delivery) as indicated on the return receipt or the receipt of the national overnight delivery service or personal delivery service. Any Notice sent by facsimile transmission shall be deemed given when received as confirmed by the telecopier electronic confirmation receipt (if followed by overnight delivery service as provided above). All Notices delivered after 5:00 p.m. (New York time) shall be deemed delivered on the next Business Day.

(c) Notice may be given either by a party or by such party’s attorney. Seller or Purchaser may designate, by not less than five (5) Business Days’ notice given to the other in accordance with the terms of this Section 20, additional or substituted parties to whom Notices should be sent hereunder. A party receiving a Notice which does not comply with the technical requirements for notice under this Section 20 may elect to waive any deficiencies and treat the notice as having been properly given.

21. DEFAULT BY PURCHASER OR SELLER.

(a) (i) If (1) Purchaser shall default in the payment of the Purchase Price, (2) Purchaser shall default in the payment of the sums required to be paid by Purchaser under this Agreement at Closing, (3) Purchaser shall default in delivering all Closing deliverables required of Purchaser under this Agreement (executed where necessary or appropriate), and/or (4) Purchaser shall default in the performance of any of its material obligations to be performed prior to the Closing Date and such default shall continue for five (5) Business Days after notice to Purchaser specifying the nature of such default, then Seller may, as its sole and exclusive remedy (except as provided in Section 21(a)(ii)), terminate this Agreement by notice to Purchaser and thereafter Purchaser and Seller shall have no further rights or obligations under this Agreement except for those that are expressly provided in this Agreement to survive the termination hereof. If Seller terminates this Agreement as described in this Section 21(a)(i), then Seller shall be entitled, as its sole and exclusive remedy (except as provided in Section 21(a)(ii)), to retain the Deposit (together with all interest accrued thereon) as liquidated damages for such default, it being agreed that the damages to Seller by reason of such default are difficult, if not impossible, to ascertain.

(ii) If Seller terminates this Agreement pursuant to a right given to it hereunder and Purchaser takes any action which interferes with Seller’s ability to sell, exchange, transfer, lease, dispose of or finance the Property or take any other actions with respect thereto (including, without limitation, the filing of any lis pendens or other form of attachment against the Property), then the named Purchaser (and any permitted assignee of Purchaser’s interest hereunder) and, by its signature hereto, Principal shall be jointly and severally liable for all losses, costs, damages (excluding Consequential Damages), liability or expense (including, without limitation, reasonable attorneys’ fees, court costs and disbursements) (collectively, the “Interference Damages”) incurred by Seller by reason of such action to contest by Purchaser; provided, however, that in no event shall Seller be entitled to Interference Damages beyond its retention of the Deposit (together with all interest accrued thereon) upon a termination of this Agreement in accordance with Section 21(a)(i), except to the extent a final non-appealable judgment has been entered whereby it is determined that Purchaser’s interference or other acts (including, without limitation, any proceeding commenced by Purchaser) were undertaken in bad faith and/or any such interference or Purchaser acts were frivolous or wholly baseless in nature (that is, with no legal merit and/or no reasonable expectation of prevailing) (any such judgment, “Bad Faith Finding”), in which case there shall be no such limitation on the amount of the Interference Damages. Notwithstanding the foregoing, none of the above liquidated damages shall be deemed to reduce or waive in any respect the additional obligations of Purchaser and Principal to indemnify Seller as provided in this Agreement. Nothing contained in this Section 21(a)(ii) shall prevent Purchaser from commencing, or result in Purchaser or Principal having any personal individual liability for commencing, a legal proceeding, in good faith and based on a legitimate dispute, to determine whether Seller was entitled to terminate this Agreement as aforesaid. Until such time as a Bad Faith Finding shall have been entered, neither Purchaser nor Principal shall have any liability to Seller under this Section 21(a)(ii) relating to any such dispute. The provisions of this Section 21(a)(ii) shall survive any termination of this Agreement.

(iii) Notwithstanding anything to the contrary set forth in this Agreement, (1) in no event shall Purchaser or Principal be liable for any Consequential Damages with respect to any liability of such parties to Seller under this Agreement, and (2) any liability of Purchaser or Principal to Seller under this Agreement shall be net of any insurance proceeds and any indemnity, contribution or other similar payment actually received by Seller from any insurance company (or other third party in settlement of a claim relating thereto).

(b) (i) If Seller shall default in (1) any of its obligations to deliver the Property on the Closing Date in the state (including state of title) required by this Agreement, (2) delivering all Closing deliverables required of Seller under this Agreement (executed where necessary or appropriate), (3) paying the sums required to be paid by Seller under this Agreement at Closing, and/or (4) Seller shall default in the performance of any of its material obligations to be performed prior to the Closing Date and Seller fails to cure such default within five (5) Business Days after notice by Purchaser to Seller specifying the nature of such default, or if such default is of a nature that it is not capable of being cured within such 5-Business Day period, Seller fails to commence such cure within said 5-Business Day period and to thereafter diligently prosecute the same to completion continuously and within such time as is reasonably necessary to effectuate the same, but in no event more than sixty (60) days after Seller’s commencement of the same, then Purchaser may elect, as its sole and exclusive remedy, either (A) subject to the other provisions of this Section 21(b), to seek to obtain specific performance of such obligations hereunder (it being expressly acknowledged by Purchaser that the remedy of specific performance is an appropriate remedy in the event of a willful default by Seller under this Agreement), provided, that any action for specific performance shall be commenced no later than sixty (60) days after the Scheduled Closing Date it being understood that if Purchaser fails to commence an action for specific performance on or prior to the expiration of said 60-day period, Purchaser’s sole remedy shall be to receive a return of the Deposit (together with all interest accrued thereon) and terminate this Agreement as described in sub-clause (B) of this Section 21(b)(i); or (B) (in lieu of prosecuting an action for damages, specific performance (as described in sub-clause (A) of this Section 21(b)(i)) or proceeding with any other legal course of conduct, the right to bring such actions or proceedings being expressly and voluntarily waived by Purchaser, to the extent legally permissible, following and upon advice of counsel) shall have the right, subject to the other provisions of this Section 21(b), to terminate this Agreement and receive a refund of the Deposit (together with all interest accrued thereon). If Purchaser elects to seek specific performance of this Agreement as aforesaid, then as a condition precedent to any suit for specific performance, Purchaser shall on or before the Scheduled Closing Date, TIME BEING OF THE ESSENCE, fully perform all of its obligations hereunder which are capable of being performed (other than the payment of the Purchase Price, which shall be paid as and when required by the court in the suit for specific performance). Upon termination of this Agreement by Purchaser in accordance with sub-clause (B) of this Section 21(b)(i) and the return and delivery of the Deposit (together with all interest accrued thereon) hereunder to Purchaser, this Agreement shall terminate and neither party hereto shall have any further obligations hereunder except for those that are expressly provided in this Agreement to survive the termination hereof.

(ii) In no event whatsoever shall Purchaser file any instrument of record (except for a lis pendens filed in conjunction with an action for specific performance Purchaser timely commences in accordance with this Section 21(b)) or (y) seek money damages of any kind as a result of any default by Seller of this Agreement, except pursuant to those provisions of this Agreement that expressly survive Closing or termination of this Agreement (subject to Section 21(c) below).

(c) (i) Notwithstanding anything to the contrary set forth in this Agreement, and except for (A) any Seller indemnity obligations pursuant to Section 16(b) (Brokerage) of this Agreement (which shall be governed by the terms thereof) and (B) any costs and expenses related to or arising in connection with any Purchaser action for specific performance or injunctive relief against Seller pursuant to this Agreement and/or any costs and expenses incurred in connection with Seller’s compliance with any order for specific performance and/or injunctive relief, all of which items described in sub-clause (A) and sub-clause (B) above Seller acknowledges and agrees shall not be subject to any cap on Seller’s liability (other than as provided in Section 25 of this Agreement) or any other Seller obligation to make any expenditure or incur any expense hereunder, (1) Seller’s aggregate liability for breach or default of any covenant, agreement, indemnity, representation or warranty under this Agreement (including, without limitation, for all Claims and any Pre-Closing Claim Amount), or other obligation contained in this Agreement (including, without limitation, any pre-Closing or post-Closing obligations which survive the Closing) or in any document executed by Seller pursuant to this Agreement or in any other instruments delivered at Closing shall not exceed the aggregate amount of Three Million and 00/100 Dollars ($3,000,000.00) (the “Maximum Liability Amount”), (2) Purchaser shall only be entitled to make such a claim if Purchaser is reasonably and in good faith asserting that the breach or default that is the basis for such a claim directly resulted in actual damages suffered by Purchaser or that Purchaser reasonably anticipates that it will suffer, or a diminution in the value of the Property in excess of One Hundred Fifty Thousand Dollars ($150,000.00) in the aggregate (the “Threshold Amount”), (3) in no event shall Seller be liable for any Consequential Damages with respect to any liability of Seller to Purchaser under this Agreement, and (4) any liability of Seller to Purchaser under this Agreement shall be net of any insurance proceeds and any indemnity, contribution or other similar payment actually received by Purchaser from any insurance company (or other third party in settlement of a claim relating thereto).

(ii) If, prior to the Closing, Purchaser alleges that Seller was in breach of one or more of Seller’s representations or warranties set forth in Section 13(a) of this Agreement, either when initially made or when re-made (or to be re-made) at Closing (individually or collectively, as applicable, a “Breach”) Purchaser may assert its claim therefor (a “Claim”) by delivering to Seller a Claim Notice promptly after Purchaser has learned of such Breach, which Claim Notice shall set forth (1) a description in reasonable detail of the claimed Breach accompanied by reasonable back-up documentation supporting the Claim, (2) the section and subsection of this Agreement under which the Claim is asserted, and (3) Purchaser’s reasonable calculation of the actual damages suffered by

Purchaser or that Purchaser reasonably anticipates that it will suffer or the diminution in the value of the Property directly resulting from such Breach (the “Claimed Damage”). As used in this Agreement, the term “Material Adverse Effect” means that Purchaser’s Claimed Damage, in each case, is in an amount equal to or greater than the Threshold Amount. The rights and remedies of Purchaser and Seller in respect of any Claim asserted prior to the Closing shall, without limiting the foregoing, be as hereinbelow provided:

A. If, prior to the Closing, there occurs or exists a Breach of which Purchaser has obtained knowledge which does not have a Material Adverse Effect and Purchaser has delivered a Claim Notice to Seller with respect to such Breach prior to the Closing, then Purchaser must proceed to the Closing with no remedy therefor other than an adjustment not to exceed the Pre-Closing Claim Amount (in the aggregate for all matters under this Agreement to which the Pre-Closing Claim Amount is applicable), the amount of which adjustment may be subject to Dispute, and Seller shall have no other liability therefor. If, prior to the Closing, there occurs or exists a Breach of which Purchaser has obtained knowledge and Purchaser fails to deliver a Claim Notice to Seller prior to the Closing, then Purchaser shall be deemed to have waived such Breach and shall not be entitled to make any Claim with respect thereto. If, prior to the Closing, Purchaser shall deliver a Claim Notice to Seller asserting a Claim which would have a Material Adverse Effect (a “Material Claim”, and such Claim Notice a “Material Claim Notice”), Seller shall notify Purchaser in writing within ten (10) Business Days of receipt of the Material Claim Notice as to whether Seller intends to cure the Material Claim (“Seller’s Cure Notice”) by crediting the Purchase Price in the amount of the Claimed Damage (the “Material Claim Credit”), subject to Seller’s right to dispute the same as hereinafter provided. If Seller fails to deliver Seller’s Cure Notice within ten (10) Business Days as aforesaid, Purchaser may send a second notice to Seller, which notice shall state in capitalized, type of at least 12 points in size on the top of the first page: “THIS NOTICE IS BEING DELIVERED PURSUANT TO SECTION 21(c)(ii)(A) OF THAT CERTAIN PURCHASE AND SALE AGREEMENT WITH [DIAMONDROCK NY LEX OWNER, LLC]. IF YOU FAIL TO DELIVER SELLER’S CURE NOTICE TO PURCHASER WITHIN THREE (3) BUSINESS DAYS OF YOUR RECEIPT OF THIS NOTICE, THEN SUCH FAILURE SHALL BE DEEMED AN ELECTION BY SELLER NOT TO CURE THE MATERIAL CLAIM.” If Seller thereafter fails to deliver Seller’s Cure Notice to Purchaser within said three (3) Business Day period, then such failure to deliver Seller’s Cure Notice shall be deemed an election by Seller not to cure the Material Claim. If Seller elects (or is deemed to elect) not to cure the Material Claim, then Purchaser shall notify Seller in writing that it elects, as its sole and exclusive remedy, to either (x) proceed to close title to the Property with no adjustment of the Purchase Price (other than an adjustment not to exceed the Pre-Closing Claim Amount (in the aggregate for all matters under this Agreement to which the Pre-Closing Claim Amount is applicable), which amount of adjustment may be subject to Dispute) or (y) terminate this Agreement and receive a full refund of the Deposit (together with all interest accrued thereon).

B. If, prior to the Closing, Purchaser delivers a Material Claim Notice and Seller maintains that either (1) no Breach has occurred or exists, (2) the asserted Breach is not a Material Claim and/or (3) the amount of the Claimed Damage exceeds the loss, cost and expense to Purchaser directly resulting from such Breach (each, a “Dispute”), then Seller may Dispute such Material Claim Notice by delivering written notice to Purchaser in the manner herein provided (a “Seller Notice of Dispute”). A Seller Notice of Dispute shall be given on or prior to the earlier of (i) ten (10) Business Days following Seller’s delivery of Seller’s Cure Notice and (ii) the Closing. If Seller fails to timely deliver a Seller Notice of Dispute, then the parties shall proceed with the Closing as described in Section 21(c)(ii)(A) and the Purchase Price shall be reduced by the Material Claim Credit. If Seller timely delivers a Seller Notice of Dispute, then Seller shall deposit with Escrow Agent at the Closing an amount equal to the Material Claim Credit (the “Escrow Funds”), to be held in escrow pending a resolution of the Dispute by the Arbiter in accordance with the terms set forth in an escrow agreement to be entered into by the parties at the Closing, which agreement shall be in substantially the form attached hereto as Exhibit 10 and made a part hereof (the “Escrow Agreement”), until the earlier to occur of (1) written agreement of Seller and Purchaser with respect to the disposition of the Escrow Funds, or (2) a resolution of the Dispute made by the Arbiter pursuant to Section 21(c)(ii)(C) below. Seller may direct that a portion of the Purchase Price to be paid at Closing be paid to Escrow Agent to serve as the Escrow Funds. Provided Seller has deposited the Escrow Funds with Escrow Agent pending resolution of the Dispute as hereinabove provided, Purchaser shall be required to close the transactions contemplated by this Agreement without adjustment of the Purchase Price on account of the Breach in Dispute.

C. The Dispute as set forth in a Seller Notice of Dispute shall be resolved by the arbitration procedure set forth below.

D. The parties shall attempt in good faith to agree upon an individual acceptable to each party to act as arbiter (the “Arbiter”) of the Dispute. If, after expiration of twenty (20) days following Seller’s delivery of a Seller Notice of Dispute, the parties are unable to agree upon the selection of the Arbiter, either party may request that the President of the Real Estate Board of New York select a retired jurist or other individual having substantial experience in dispute resolution of commercial real estate matters (who is impartial and has no existing or historical personal or professional relationship with Seller, Purchaser or their respective Affiliates) to act as Arbiter. Within ten (10) days after selection of an Arbiter, Arbiter shall be asked to determine whether a Breach has occurred or exists pursuant to the terms of this Agreement. The Arbiter shall be bound by the provisions of this Agreement and shall not have the power to add to, subtract from or otherwise modify such provisions, and the Arbiter shall consider only the specific issues submitted to it for resolution under this Section 21(c)(ii). In connection with said determination, Seller and Purchaser shall simultaneously deliver to the Arbiter all instruments, documents and other materials forming the basis for the existence or non-existence of a Breach. If the Arbiter determines that a Breach has occurred or exists, then both Seller and Purchaser shall, within ten (10) Business Days after said determination that a Breach has occurred or exists, each submit in writing to Arbiter the amount, if any, of actual damages that such party reasonably believes Purchaser has suffered or will suffer, and/or the amount by which the total value of the Property has been diminished by reason of the Breach claimed by Purchaser (each of the estimated amounts of said damage as determined by Seller and Purchaser as aforesaid, the “Estimated Claimed Damages”), which for the avoidance of doubt, may be equal to, greater than or less than the amount of the Material Breach Credit initially asserted by Purchaser. Within three (3) Business Days of receipt of the submission of said Estimated Claimed Damages from both Seller and Purchaser, Arbiter shall simultaneously deliver a copy of the Seller’s Estimated Claimed Damages to Purchaser and Purchaser’s Estimated Claimed Damages to Seller. Within twenty (20) days of receipt of the submission of said Estimated Claimed Damages from both Seller and Purchaser, the Arbiter shall select

which of Seller’s or Purchaser’s Estimated Claimed Damages most closely reflects the actual damages that Purchaser has suffered or will suffer, if any, or the actual diminution, if any, in the value of the Property directly resulting from the alleged Material Claim (but such Arbiter shall not select any other sum, i.e., the arbitration shall be “baseball” style arbitration). If based on the selection of the Arbiter it is determined that there did not occur a Material Claim (as the case may be), the Escrow Funds shall be paid to Seller in accordance with the Escrow Agreement (less, if applicable, any portion below the Threshold Amount which Purchaser would be entitled to as a Purchase Price adjustment under the first and last sentences of Section 21(c)(ii)(A) above). If based on the selection of the Arbiter it is determined that a Material Claim exists, then (i) if the Arbiter selected Purchaser’s Estimated Claim Damages, the Escrow Funds shall be paid to Purchaser in accordance with the Escrow Agreement, and (ii) if the Arbiter selected Seller’s Estimated Claim Damages, a portion of the Escrow Funds in the amount of Seller’s Estimated Claim Damages shall be paid to Purchaser and the balance of the Escrow Funds shall be paid to Seller, in each case in accordance with the Escrow Agreement. The determination of the Arbiter hereunder shall be final and binding in all respects against all parties to this Agreement. The costs and expenses of arbitration hereunder (including the fees and disbursements of the Arbiter) shall be paid by the party whose calculation of the Estimated Claim Damages shall not have been selected. Notwithstanding the foregoing, if interim payments are required to be made on account of such costs prior to the determination by the Arbiter, such interim payments shall be funded equally by Seller and Purchaser, subject to reimbursement of the prevailing party by the losing party upon the Arbiter’s final determination hereunder.

E. Notwithstanding anything to the contrary contained in this Agreement, from and after the date of Closing, with respect to any asserted Claims, (x) Seller shall have no liability to Purchaser if Purchaser has received a credit against the Purchase Price or there is pending a Dispute in respect of which there have been deposited Escrow Funds pursuant to Section 21(c)(ii)(A), Section 21(c)(ii)(B) and Section 21(c)(ii)(C) above on account of such asserted Breach and (y) the aggregate liability of Seller arising by reason of or in connection with all such alleged Breaches, whether asserted prior to or after the Closing, shall not in any event exceed the Maximum Liability Amount, it being understood and agreed that the Maximum Liability Amount in connection with all Breaches shall be reduced by (1) any damages awarded by the Arbiter pursuant to Section 21(c)(ii)(C) above, plus (2) the aggregate amount of credits against the Purchase Price granted by Seller at Closing in connection with a Material Claim which is not the subject of a Dispute.

(d) In the event either party hereto is required to employ an attorney because any litigation arises out of this Agreement between the parties hereto, the non-prevailing party shall pay the prevailing party all actual and reasonable out-of-pocket fees and expenses, including attorneys’ fees and expenses, incurred in connection with such litigation.

(e) The provisions of this Section 21 shall survive the termination hereof.

22. MISCELLANEOUS.

(a) This Agreement may be executed in multiple counterparts, each of which shall be deemed an original and together constitute one and the same instrument. To facilitate execution of this Agreement, the parties may exchange signatory counterparts by telephone, facsimile, electronic mail (e-mail) including, but not limited to, electronic attachments in ‘pdf’ or ‘tif’ formats containing counterparts of this signature page, and all of which shall be effective as original signature pages for all purposes.

(b) Any consent or approval to be given hereunder (whether by Seller or Purchaser) shall not be effective unless the same shall be given in advance of the taking of the action for which consent or approval is requested and shall be in writing. Except as otherwise expressly provided herein, any consent or approval requested of Seller or Purchaser may be withheld by Seller or Purchaser in its sole and absolute discretion.

(c) The following provisions govern any actions for indemnity under this Agreement. Promptly after receipt by an indemnitee of notice of any claim, such indemnitee will, if a claim in respect thereof is to be made against the indemnitor, deliver to the indemnitor written notice thereof (an “Indemnitor Notice”) and the indemnitor shall have the right to participate in and, if the indemnitor agrees in writing that it will be responsible for any costs, expenses, judgments, damages, and losses incurred by the indemnitee with respect to such claim, to assume the defense thereof, with counsel mutually satisfactory to the parties; provided, however, that an indemnitee shall have the right to retain its own counsel, with the fees and expenses to be paid by the indemnitee, if the indemnitee reasonably believes that representation of such indemnitee by the counsel retained by the indemnitor would be inappropriate due to actual or potential differing interests between such indemnitee and any other party represented by such counsel in such proceeding. The failure of indemnitee to deliver an Indemnitor Notice to the indemnitor within a reasonable time after indemnitee receives notice of any such claim shall relieve such indemnitor of any liability to the indemnitee under this indemnity if and to the extent that such failure is prejudicial to its ability to defend such action, and the omission so to deliver written notice to the indemnitor will not relieve it of any liability that it may have to any indemnitee other than under this indemnity. If an indemnitee settles a claim without the prior written consent of the indemnitor, then the indemnitor shall be released from liability with respect to such claim unless the indemnitor has unreasonably withheld such consent.

(d) Escrow Agent is hereby designated the “real estate reporting person” for purposes of Section 6045 of Title 26 of the United States Code and Treasury Regulation 1.6045-4 and any instructions or settlement statement prepared by Escrow Agent shall so provide. Upon the consummation of the transaction contemplated by this Agreement, Escrow Agent shall file Form 1099 information return and send the statement to Seller as required under the aforementioned statute and regulation. Seller and Purchaser shall promptly furnish their federal tax identification numbers to Escrow Agent and shall otherwise reasonably cooperate with Escrow Agent in connection with Escrow Agent’s duties as real estate reporting person.

(e) The delivery of the Deed by Seller, and the acceptance thereof by Purchaser shall be deemed to be the full performance and discharge of every covenant and obligation on the part of Seller to be performed under this Agreement except for those covenants or obligations that are expressly provided in this Agreement to survive or to apply following the Closing.

(f) This Agreement contains all of the terms agreed upon between Seller and Purchaser with respect to the subject matter hereof, and all prior agreements, understandings, representations and statements, oral or written, between Seller and Purchaser are merged into this Agreement.

(g) This Agreement may not be amended, modified or terminated, except by an instrument executed by Seller and Purchaser.

(h) No waiver by either party of any failure or refusal by the other party to comply with its obligations shall be deemed a waiver of any other or subsequent failure or refusal to so comply. Either party may waive any of the terms and conditions of this Agreement made for its benefit provided such waiver is in writing and signed by the party waiving such term or condition.

(i) If any term or provision of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Agreement shall be valid and shall be enforced to the fullest extent permitted by law.

(j) The headings of the various sections of this Agreement have been inserted only for the purposes of convenience and are not part of this Agreement and shall not be deemed in any manner to modify, explain, expand or restrict any of the provisions of this Agreement.

(k) This Agreement shall be governed by the laws of the State of New York without giving effect to conflict of laws principles thereof.

(l) This Agreement and the various rights and obligations arising hereunder shall inure to the benefit of and be binding upon Seller and Purchaser and their respective successors and assigns (subject, in the case of Purchaser, to clause (m) below), provided, however, that none of the representations or warranties made by Seller hereunder shall inure to the benefit of any person or entity that may succeed to Purchaser’s interest in the Property or this Agreement after the Closing Date.

(m) Purchaser shall not directly or indirectly assign or otherwise transfer this Agreement or any of its rights or obligations hereunder or any of the direct or indirect ownership interests in Purchaser, without first obtaining Seller’s prior written consent thereto, which may be withheld in Seller’s absolute discretion; provided, however, that Purchaser may assign this Agreement, without Seller’s consent, to an Affiliate of DiamondRock Hospitality Company and/or DiamondRock Hospitality Limited Partnership; provided, that (A) such transaction and assignment of this Agreement is for a valid business purpose and not to circumvent the provisions of this Section 23(m) and (B) such Affiliate is not a Prohibited Person at the time of any such assignment. Purchaser shall provide written notice to Seller of any assignment of its interest in the Agreement no later than five (5) Business Days after the consummation of the transaction in question, but Purchaser shall remain liable following any such assignment for all obligations of “Purchaser” hereunder. Any such assignment(s) shall be conditioned upon (1) Purchaser delivering to Seller an executed original of the assignment and assumption agreement wherein said Affiliate assumes all of the obligations of the Purchaser named herein and proof reasonably satisfactory to Seller that said Affiliate is in fact an Affiliate, and (2) Purchaser cooperating with Seller. The direct or indirect transfer of shares in Purchaser or in any entity owning a direct or indirect interest in Purchaser shall be permitted without Seller’s written consent thereto; provided, that in each such direct or indirect transfer of shares is accomplished through the public “over-the-counter” securities market or through any recognized stock exchange.

(n) Neither this Agreement nor any memorandum hereof may be recorded without first obtaining Seller’s prior written consent thereto which may be withheld in Seller’s sole discretion.

(o) This Agreement is an agreement solely for the benefit of Seller and Purchaser (and their permitted successors and/or assigns). No other person, party or entity shall have any rights hereunder nor shall any other person, party or entity be entitled to rely upon the terms, covenants and provisions contained herein.

(p) The parties hereto agree to submit to personal jurisdiction in the State of New York in any action or proceeding arising out of this Agreement and, in furtherance of such agreement, the parties hereby agree and consent that without limiting other methods of obtaining jurisdiction, personal jurisdiction over the parties in any such action or proceeding may be obtained within or without the jurisdiction of any court located in New York and that any process or notice of motion or other application to any such court in connection with any such action or proceeding may be served upon the parties by registered or certified mail to or by personal service at the last known address of the parties, whether such address be within or without the jurisdiction of any such court. Any legal suit, action or other proceeding by one party to this Agreement against the other arising out of or relating to this Agreement (other than any dispute which, pursuant to the express terms of this Agreement, is to be determined by arbitration) shall be instituted only in the Supreme Court of the State of New York, County of New York or the United States District Court for the Southern District of New York, and each party hereby waives any objections which it may now or hereafter have based on venue and/or forum non-conveniens of any such suit, action or proceeding and submits to the jurisdiction of such courts.

(q) SELLER AND PURCHASER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT OR COUNTERCLAIM ARISING IN CONNECTION WITH, OUT OF OR OTHERWISE RELATING TO THIS AGREEMENT.

(r) Seller and Purchaser each agree to take such further steps, and deliver such further documents, as are reasonably necessary in order to implement the transactions contemplated hereby, including the execution and delivery of supplemental escrow instructions to the extent reasonably requested by the Escrow Agent. Notwithstanding the foregoing, neither party shall have any obligations to take any such steps or execute or deliver any such further documents if the same would be inconsistent in any material respect with the rights and obligations of the parties contemplated by this Agreement.

(s) Each party hereto hereby acknowledges and agrees that is has consulted legal counsel in connection with the negotiation of this Agreement and that it has bargaining power equal to that of the other parties hereto in connection with the negotiation and execution of this Agreement. Accordingly, the parties hereto agree the normal rule of construction which is that any ambiguities are to be resolved against the drafting party, shall not be employed in the interpretation of this Agreement or any exhibits, schedules or amendments hereto.

(t) Seller and Purchaser will do, execute, acknowledge and deliver all and every such further acts, deeds, conveyances, assignments, notices, transfers and assurances as may be reasonably required by the other party for carrying out the intentions or facilitating the consummation of this Agreement.

(u) Upon Closing, only those provisions of this Agreement that expressly by their terms survive Closing or where the terms thereof are specifically applicable to obligations or performance during the post-Closing period shall survive the delivery of the Deed and any other document(s) to be delivered by the parties hereto at Closing, and all other provisions hereof shall terminate.

(v) The parties hereto acknowledge and agree that, except as otherwise provided in this Agreement, TIME IS OF THE ESSENCE for the performance of all actions (including, without limitation, the giving of notices, the delivery of documents and the funding of money) required or permitted to be taken by any party under this Agreement. Subject to Section 19 hereof, whenever action must be taken (including, without limitation, the giving of notice or the delivery of documents) by Purchaser or Seller under this Agreement, prior to the expiration of, by no later than or on a particular date, such action must be completed by 5:00 p.m. (New York time) on such date.

(w) In this Agreement, unless inconsistent with the context: (1) the singular includes the plural and vice versa; (2) a gender includes each other gender; (3) a reference to any one of a person, corporation, unincorporated body, trust, government body or other entity includes any other of them; (4) reference to legislation or a provision of any legislation includes modifications or re-enactments of the legislation, or any legislative provision substituted for, and all legislation and statutory instruments and regulations issued under the legislation; (5) a reference to a party which is a company includes a related body corporate of that company; (6) a different grammatical form of a defined term has a corresponding meaning to the term; (7) a reference to this Agreement includes its schedules, exhibits and all variations and amendments properly made from time to time; (8) where a party consists of more than one person: (i) the liability imposed on such persons as comprise that party to any other party is to be borne jointly and severally; and (ii) the benefit conferred on such persons as comprise that party as against any other party is to be enjoyed jointly and severally; and (9) where a provision: (i) imposes a liability on more than one party, it binds such parties jointly and severally; and (ii) confers a benefit on more than one party, it is to be enjoyed by such parties jointly and severally.

(x) The provisions of this Section 22 shall survive the Closing or the termination hereof.

23. ESTOPPELS.

Promptly following the Effective Date, Seller shall request and use its reasonable efforts to obtain tenant estoppel certificates from each tenant under a Lease in the form required or permitted under the terms of its Lease (or, if neither a form nor the contents of any estoppel is specified therein, containing the date through which rent has been paid and the amount thereof and an affirmation by the tenant that, to its knowledge, the Lease is in full force and effect, that no event of default by Seller or the applicable tenant exists and no event exists which, with the passage of time, the giving of notice, or both, would constitute an event of default thereunder (or indentifying any such defaults or events, if applicable) and certifying as to the applicable Lease documents) (each such estoppel, an “Estoppel Certificate”), dated as of a date not more than sixty (60) days prior to the Closing Date; provided, that (a) the failure or inability of Seller to obtain any such Estoppel Certificates shall not in any way affect Purchaser’s obligations under this Agreement and obtaining any such Estoppel Certificate is not a condition to Closing, and (b) Seller shall not be required to expend any money, provide any financial accommodations or commence any litigation in connection with obtaining any such Estoppel Certificates.

24. PROPERTY CONVEYED “AS IS” AND DISCLAIMER OF REPRESENTATIONS AND WARRANTIES.

Except as otherwise expressly provided in this Agreement:

(a) Seller has not made and does not make any warranty or representation regarding the truth, accuracy, content, completeness, or suitability for any purpose, of the Confidential Information or the source(s) thereof. Seller has not undertaken any independent investigation as to truth, accuracy, content, completeness, or suitability for any purpose, of the Confidential Information, and Purchaser shall not have any recourse against any Seller Related Parties in the event of any errors therein or omissions therefrom.

(b) PURCHASER HEREBY ACKNOWLEDGES THAT, EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER SELLER NOR ANY OTHER SELLER RELATED PARTIES, NOR ANY OTHER PERSON ACTING ON BEHALF OF SELLER, NOR ANY PERSON OR ENTITY WHICH PREPARED OR PROVIDED ANY OF THE MATERIALS REVIEWED BY PURCHASER IN CONDUCTING ITS DUE DILIGENCE (INCLUDING, WITHOUT LIMITATION, ANY CONFIDENTIAL INFORMATION), NOR ANY SUCCESSOR OR ASSIGN OF ANY OF THE FOREGOING PARTIES, HAS MADE OR SHALL BE DEEMED TO HAVE MADE ANY ORAL OR WRITTEN REPRESENTATIONS OR WARRANTIES, WHETHER EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF HABITABILITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE), WITH RESPECT TO THE PROPERTY, THE PERMITTED USE OF THE PROPERTY OR THE ZONING AND OTHER LAWS, REGULATIONS AND RULES APPLICABLE THERETO OR THE COMPLIANCE BY THE PROPERTY THEREWITH, THE REVENUES AND EXPENSES GENERATED BY OR ASSOCIATED WITH THE PROPERTY, OR OTHERWISE RELATING TO THE PROPERTY OR THE TRANSACTIONS CONTEMPLATED HEREIN. PURCHASER FURTHER ACKNOWLEDGES THAT ALL

MATERIALS WHICH HAVE BEEN PROVIDED BY ANY OF THE SELLER RELATED PARTIES HAVE BEEN PROVIDED WITHOUT ANY WARRANTY OR REPRESENTATION, EXPRESSED OR IMPLIED AS TO THEIR CONTENT, SUITABILITY FOR ANY PURPOSE, ACCURACY, TRUTHFULNESS OR COMPLETENESS AND PURCHASER SHALL NOT HAVE ANY RECOURSE AGAINST ANY SELLER RELATED PARTIES IN THE EVENT OF ANY ERRORS THEREIN OR OMISSIONS THEREFROM. PURCHASER REPRESENTS THAT IT IS A KNOWLEDGEABLE, EXPERIENCED AND SOPHISTICATED PURCHASER OF REAL ESTATE, AND THAT IT IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF PURCHASER’S CONSULTANTS IN PURCHASING THE PROPERTY. PURCHASER IS ACQUIRING THE PROPERTY BASED SOLELY ON ITS OWN INDEPENDENT INVESTIGATION AND INSPECTION OF THE PROPERTY AND THE FRANCHISE AGREEMENT, AND NOT IN RELIANCE ON ANY INFORMATION OR MATERIALS PROVIDED BY ANY SELLER RELATED PARTIES, EXCEPT FOR THE REPRESENTATIONS EXPRESSLY SET FORTH HEREIN. PURCHASER EXPRESSLY DISCLAIMS ANY INTENT TO RELY ON ANY SUCH MATERIALS PROVIDED TO IT BY ANY SELLER RELATED PARTIES IN CONNECTION WITH ITS DUE DILIGENCE (INCLUDING, WITHOUT LIMITATION, ANY CONFIDENTIAL INFORMATION) AND AGREES THAT IT SHALL RELY SOLELY ON ITS OWN INDEPENDENTLY DEVELOPED OR VERIFIED INFORMATION.

(c) Upon Closing, Purchaser shall assume the risk that adverse matters, including, but not limited to, adverse physical and environmental conditions, may not have been revealed by Purchaser’s inspections and investigations. Purchaser acknowledges and agrees that at Closing and except as otherwise provided in this Agreement, (i) Seller shall sell and convey to Purchaser and Purchaser shall accept the Property “AS IS, WHERE IS”, with all faults; and (ii) Purchaser shall be deemed to have irrevocably and unconditionally waived, relinquished, released and discharged Seller from any and all claims, demands, causes of action (including, without limitation, causes of action sounding in tort), losses, damages, demands, obligations, liabilities, costs and expenses (including attorneys’ fees and court costs) of any and every kind or character, whether at law or in equity and whether known or unknown, which Purchaser asserted or alleged, or could have asserted or alleged, or could assert or allege, at any time against Seller or any of its affiliates by reason of or arising out of any latent or patent construction defects or physical conditions, violations of Requirements (including, without limitation, zoning laws and Requirements relating to Hazardous Substances) or the Franchise Agreement and any and all other acts, omissions, events, circumstances or matters with respect to the Property, subject, however, to Purchaser’s rights and remedies provided for in this Agreement in the event of the breach of any of Seller warranties or representations contained herein or any provisions of this Agreement which are expressly provided to survive Closing. Purchaser further acknowledges and agrees that there are no oral agreements, warranties or representations, collateral to or affecting the Property by Seller. Seller is not liable or bound in any manner by any oral or written statements, representations, or information pertaining to the Property furnished by any real estate broker, agent, employee, servant or other person, unless the same are specifically set forth or referred to herein. Purchaser has fully reviewed the disclaimers and waivers set forth in this Agreement with its counsel and understands the significance and effect thereof.

(d) Purchaser acknowledges and agrees that the Purchase Price has been negotiated to take into account that the Property is being sold pursuant to the provisions of this Section 24 and that Seller would have charged a higher purchase price if the provisions of this Section 24 were not agreed upon by Purchaser.

(e) Purchaser hereby acknowledges and agrees that its obligations under this Agreement shall not be subject to any financing contingency or other contingencies or satisfaction of conditions, except as expressly provided in Section 11 hereof, and Purchaser shall have no right to terminate this Agreement or receive a return of the Deposit (including any interest accrued thereon) except as expressly provided for in this Agreement.

(f) The provisions of this Section 24 shall survive the Closing or any termination of this Agreement.

25. EXCULPATION.

(a) In no event shall any officer, director, limited partner, member, shareholder, agent or employee of Purchaser or Seller or its respective partners be personally liable for any of the obligations of Purchaser or Seller, respectively, under this Agreement or otherwise.

(b) Subject in all events to Section 21(c), Purchaser agrees to look solely to Seller and Seller’s interest in the Property or, if the Closing has occurred, the net proceeds of the sale for the satisfaction of any liability or obligation arising under this Agreement or the transactions contemplated hereby, or for the performance of any of the covenants, warranties or other agreements contained herein, and further agrees not to sue or otherwise seek to enforce any personal obligation against any of Seller’s other assets or properties or any other Seller Related Parties (or their assets or properties) with respect to any matters arising out of or in connection with this Agreement or the transactions contemplated hereby.

(c) The provisions of this Section 25 shall survive the Closing or any termination of this Agreement.

26. FRANCHISE AGREEMENT.

(a) Purchaser acknowledges and agrees that (i) the Hotel is subject to that certain Amended and Restated License Agreement, effective as of February 1, 2002, as amended by that certain First Amendment to Amended and Restated License Agreement, dated as of April 1, 2005, and as further amended by that certain Second Amendment to Amended and Restated License Agreement, dated and effective as of March 31, 2010 (as amended, the “Franchise Agreement”) by and between Seller and Radisson Hotels International, Inc., a Delaware corporation (“Franchisor”), (ii) with respect to the sale of the Property and the assignment of the Franchise Agreement, Purchaser and Seller are required to abide by the terms of the Franchise Agreement, including without limitation, Section 11 of that agreement which governs transfers of the Hotel, (iii) Purchaser has advised Seller that Purchaser desires to continue to operate the Premises under the Radisson Hotel brand as a “System Hotel” (as defined in the Franchise Agreement), and (iv) notwithstanding the preceding clause (iii), Franchisor’s approval of Purchaser as a licensee and/or the operation of the Hotel under the Franchise Agreement or replacement license is not a condition to Purchaser’s obligations under this Agreement, including, without limitation, the obligation to purchase the Property.

(b) Promptly after the Effective Date, Seller and Purchaser shall each notify Franchisor of the transaction contemplated by this Agreement and Purchaser shall submit an application on the form prescribed by Franchisor pursuant to the Franchise Agreement. Following receipt by Franchisor of such notice, Purchaser shall diligently take all commercially reasonable actions and promptly provide all information and documentation reasonably requested by Franchisor, and otherwise diligently pursue the consent of Franchisor to (i) the sale of the Property to Purchaser, and (ii) the approval of Purchaser as successor to Seller as owner of the Hotel. It is desired that, at Closing, Purchaser and Franchisor shall enter into a written agreement pursuant to which Purchaser shall assume the obligations of “Licensee” (as defined in the Franchise Agreement) under the Franchise Agreement, with any modifications thereto as may be reasonably acceptable to Purchaser (the “New License”), and (B) Seller and Franchisor shall enter into an agreement whereby Franchisor agrees that, at the Closing, Franchisor will terminate and release Seller from its obligations under the Franchise Agreement and any other documents executed in connection therewith to the extent accruing from and after Closing without payment of any penalty or termination amount (Franchisor’s agreement to enter into a New License with Purchaser and to terminate the Franchise Agreement and to release Seller from all obligations accruing from and after Closing is referred to herein collectively as the “Radisson Consent”), it being acknowledged and agreed that the Radisson Consent executed and delivered in substantially the form of Exhibit 16 attached hereto shall be deemed acceptable to each of Seller and Purchaser. Purchaser shall bear all costs and expenses of Purchaser and Franchisor in connection with the attempted transfer of the Hotel to Purchaser under the Franchise Agreement, the Radisson Consent and the potential New License in favor of Purchaser including, without limitation, all application fees and costs, franchise fees and the reimbursement of Franchisor’s costs and expenses, provided that Purchaser shall have no liability for any other fees, costs or expenses accrued or payable by Seller prior to Closing in the ordinary course.

(c) In the event that at any time prior to Closing, either party receives written notice (the “Denial Notice”) from Franchisor confirming that Franchisor will not approve the sale of the Hotel to Purchaser or enter into the New License with Purchaser, such party will promptly notify the other. In the event Franchisor issues a Denial Notice or the New License or the Radisson Consent shall not be obtained by the Scheduled Closing Date, (i) this Agreement shall remain in full force and effect without adjustment to the Purchase Price, and (ii) Seller shall terminate the Franchise Agreement and Purchaser shall (1) acquire the Hotel at Closing without the benefits or burdens of the Franchise Agreement, and (2) pay all termination fees due in connection with the termination (the “Termination Amounts”).

(d) Seller agrees to cooperate in all reasonable respects with Purchaser in Purchaser’s efforts to obtain the Radisson Consent and the New License. Seller further agrees that, so long as (i) Purchaser proceeds diligently and in good faith in its efforts to enter into a New License, and (ii) Franchisor has confirmed in writing its willingness to approve Purchaser as a franchisee for the Hotel under terms consistent with this Agreement, then if Franchisor will not be able to enter into the New License for the Hotel until after the Closing, Seller will not terminate the Franchise Agreement until the effective date of the New License in order to permit the Hotel to continue to be operated as a “Radisson Hotel” during the period between the Closing Date and the date Purchaser and Franchisor enter into the New License (the “Interim Period”); provided, however, that (A) Seller shall not be required to extend the

termination date of the Franchise Agreement for the Hotel beyond the date which is twenty (20) days following the Closing Date, and (B) in the event that Purchaser is unable to obtain or enter into a New License prior to expiration of the Interim Period, Seller may elect in its sole discretion to terminate the Franchise Agreement effective at any time following expiration of the Interim Period and Purchaser shall be liable for all Termination Amounts (and if any such amounts are paid by Seller, Purchaser shall reimburse Seller for the Termination Amounts paid within 10 days following Seller’s written request). At Closing, Seller shall deliver to Purchaser a copy of Seller’s voluntary termination agreement with Franchisor or other evidence reasonably acceptable to Purchaser evidencing that, subject to the provisions of this Section 26(d), the Franchise Agreement shall not be terminated until the end of the Interim Period. In consideration of Seller’s agreement not to terminate the Franchise Agreement during the Interim Period, Purchaser shall indemnify Seller from and against any and all claims, losses, liabilities, costs and expenses (including without limitation reasonable attorneys’ fees) incurred by Seller and arising and accruing under the Franchise Agreement during the Interim Period (“Indemnified Claims”), other than any such Indemnified Claims that are the result of the gross negligence or willful misconduct of Seller, its agents, representatives or employees. The foregoing indemnity shall be memorialized in indemnification agreement in the form attached hereto as Exhibit 12 (the “Franchise Indemnity Agreement”) to be entered into by Purchaser and Seller at Closing.

27. PRESS RELEASES.

(a) Prior to the Closing Date, Purchaser and Seller shall confer and agree on a press release to be issued jointly by Purchaser and Seller disclosing the transaction and the appropriate time for making such release. Neither Purchaser nor Seller shall issue any other press releases (or other public statements) with respect to the transaction contemplated in this Agreement without approval of the other party except (i) as may be required by law or a court, (ii) pursuant to or in connection with any filings with the Securities and Exchange Commission or by any rules or regulations of any public stock exchange or stock quotation system, that may be applicable to Purchaser or Seller or any of their direct or indirect constituent owners or Affiliates, or (iii) as may be necessary or appropriate to disclose, in such party’s judgment, in connection with a proposed equity offering to be made by Seller or Purchaser or their respective Affiliates, provided that in any such event, prior notice thereof is furnished to the other party; provided, however, that (A) any such approval shall not be unreasonably withheld or delayed and (B) except with respect to any press releases (or other public statements) issued in accordance with sub-clauses (i), (ii) and (iii) above, in no event shall any press release (or other public statements) with respect to this transaction indicate the Purchase Price (or any of the other terms hereof) or, at the request of either party, the identity of said party.

(b) The provisions of this Section 27 above shall survive the termination of this Agreement and the Closing.

28. ASSIGNMENT OF MORTGAGE.

If requested by Purchaser, Seller shall use commercially reasonable efforts to cause its current mortgage lender (the “Existing Mortgage Lender”) to assign (the “Mortgage Assignment”) to Purchaser’s lending institution, at Closing, the lien of the Existing Mortgage Lender’s mortgage (the “Existing Mortgage”). Notwithstanding the foregoing, (a) Seller shall not be obligated to pay any fee or cost to the Existing Mortgage Lender, incur any expense in respect of the Mortgage Assignment or the recording thereof or incur any liability in connection therewith, and (b) the failure of Purchaser to obtain the Mortgage Assignment shall not be deemed a default or a failure of a condition to Closing and shall in no way alter Purchaser’s obligations hereunder to acquire the Property for the full Purchase Price. In the event that the Existing Mortgage Lender consents to the Mortgage Assignment, Purchaser shall pay to Seller at Closing, in addition to the Purchase Price, an amount equal to one-half of the mortgage recording tax savings available to Purchaser as a result of such Mortgage Assignment.

29. TAX CONSIDERATIONS.

(a) Section 1031 Transaction. (i) Notwithstanding anything to the contrary contained in this Agreement, Seller and Purchaser each have the right to consummate the transactions contemplated by this Agreement in a manner that qualifies as a tax-deferred exchange, in whole or in part, under the provisions of Section 1031 of the Internal Revenue Code, the Treasury Regulations thereunder, and IRS Revenue Procedure 2000-37 (a “1031 Transaction”). The party seeking to effect a 1031 Transaction is referred to in this Section 1.7 as the “Exchanging Party.”

(ii) The other party shall cooperate with the Exchanging Party with respect to any 1031 Transaction, including executing any and all documents reasonably requested in connection therewith. The Exchanging Party herby agrees to pay or cause to be paid, and indemnify and hold harmless the non-Exchanging Party from and against, any and all liability, claim, action, damage, cost and expense (including reasonable attorneys’ fees), fine or penalty related to, arising out of or in connection with the non-Exchanging Party’s cooperation in effectuating any 1031 transaction requested by the Exchanging Party. All agreements and other documents necessary for an Exchanging Party to effect its 1031 Transaction shall be prepared at the expense of the Exchanging Party, by the Exchanging Party’s counsel. Each party acknowledges that the other party shall not be deemed the other’s agent.

(iii) Without limiting the foregoing, an Exchanging Party shall have the right to assign or transfer all or any portion of its rights under this Agreement to a qualified intermediary, an exchange accommodation title holder or one or more single member limited liability companies that are owned by any of the foregoing persons in accordance with the provisions of Section 1031 of the Internal Revenue Code, the Treasury Regulations thereunder, and IRS Revenue Procedure 2000-37. No such assignment or transfer of rights under this Agreement shall effect a release of the Exchanging Party from its obligations under this Agreement or impose any additional obligation or liability except to a de minimus extent on the non-Exchanging Party.

(iv) The terms and provisions of this Section 29(a) shall survive the Closing.

(b) If Seller requests, Purchaser shall consider structuring the transaction as a contribution of the Property to Purchaser’s operating partnership in exchange either for units in Purchaser’s operating partnership (the “Units”) or shares in Diamond Rock Hospitality Company (NYSE Symbol DRH) (the “Shares”). Purchaser shall not be obligated to structure the transaction in such a manner and the decision as to whether to do so, as well as the amount, if any, of Units or Shares to be transferred to Seller as consideration for the Property, shall be at Purchaser’s sole discretion. If Purchaser agrees to so structure the transaction as an exchange, in whole or in part, for Units or Shares, Purchaser and Seller will work together in good faith to negotiate standard tax protection provisions for Seller with respect to the Property and the documentation effectuating such structuring should be mutually agreeable to the parties, each acting reasonably.

[Signature Page Immediately Follows]

IN WITNESS WHEREOF, Seller has caused this Agreement to be executed the day and year first above written.

SELLER:

LEXINGTON HOTEL, LLC, a Delaware limited liability company

By:

Lexington Hotel (Holdings), LLC, a Delaware limited liability company, its sole member

By:

Lex Intermediate Mezz, LLC, a Delaware limited liability company, its sole member

By:

Lex Intermediate Mezz (Holdings), LLC, a Delaware limited liability company, its sole member

By:

Lex Sub Mezz (Holdings), LLC, a Delaware limited

liability company, its sole member

By:

WH/LEX, LLC, a Delaware limited

liability company, its managing member

By:

Name:

Title:

By:

MERISTAR LEXINGTON PARTNERS, LLC, a

Delaware limited liability company, its managing member

By:

Name:

Title:

[Signature Page Continues]

[Signature Page to the Purchase and Sale Agreement]

IN WITNESS WHEREOF, Purchaser has caused this Agreement to be executed the day and year first above written.

		PURCHASER:
		DIAMONDROCK NY LEX OWNER, LLC, a Delaware
		limited liability company
		By:
				Name:		William Tennis
				Title:		Director

[Signature Page Continues]

[Signature Page to the Purchase and Sale Agreement]

By its signature below, the undersigned hereby acknowledges and consents to the provisions of Sections 4(g), 16(a) and 21(a)(ii) of this Agreement:

Principal:

DIAMONDROCK HOSPITALITY LIMITED PARTNERSHIP,
a Delaware limited partnership

By:		DiamondRock Hospitality Company, its sole
		general partner
		By:
				Name:		William Tennis
				Title:		Executive Vice President

[Signature Page to the Purchase and Sale Agreement]

By its signature below, the undersigned hereby acknowledges, agrees and consents to the provisions of Sections 3(a), 5, 18(a)(ix), 21(c)(ii), 22(a), 22(d), 22(i), 22(j), 22(k), 22(p), 22(s), 22(u), 22(v), 22(w), and 22(x) of this Agreement:

Escrow Agent:

Commonwealth Land Title Insurance Company

Name:
Title:

[Signature Page to the Purchase and Sale Agreement]

SCHEDULE A

Definitions

1. “1031 Transaction” shall have the meaning given to such term in Section 29(a) hereof.

2. “AAA” shall mean the American Arbitration Association or its successor.

3. “Acceptable Purchaser Insurance Company” shall mean an insurer reasonably acceptable to Seller; provided, however, that any of the foregoing insurers must be an insurer of recognized responsibility that is qualified to do business in New York, rated by A.M. Best, or any successor publication of comparable standing, as A- VIII or better or the then equivalent of such rating.

4. “Additional Rent” shall have the meaning given to such term in Section 8(d) hereof.

5. “Affiliate” shall mean, as to any designated person or entity, any other person or entity which controls, is controlled by, or is under common control with, such designated person or entity. The term “controls” (and with correlative meaning, “controlled by” and “under common control with”) means ownership or voting control, directly or indirectly, of fifty (50%) percent or more of the voting stock, partnership interests or other beneficial ownership interests of the entity in question, along with the power and authority to manage the business and affairs of the entity in question.

6. “Agreement” shall have the meaning given to such term in Preamble hereof.

7. “Agreement Confidential Information” shall have the meaning given to such term in Section 4(g) hereof.

8. “Apportionment Date” shall have the meaning given to such term in Section 8(a) hereof.

9. “Arbiter” shall have the meaning given to such term in Section 21(c) hereof.

10. “Bad Faith Filing” shall have the meaning given to such term in Section 21(a) hereof.

11. “Bargaining Unit Employees” shall have the meaning given to such term in Section 9(a) hereof.

12. “Base Rents” shall have the meaning given to such term in Section 8(d) hereof.

13. “Bookings” shall have the meaning given to such term in Section 2(a) hereof.

14. “Breach” shall have the meaning given to such term in Section 21(c) hereof.

15. “Breach Notice” shall have the meaning given to such term in Section 13(f) hereof.

16. “Broker” shall have the meaning given to such term in Section 16(a) hereof.

17. “Building” shall mean the meaning given to such term in the Recitals hereof.

18. “Business Day” shall mean a day other than Saturday, Sunday or any days on which commercial banks in New York, New York are authorized or obligated to close. In the event any period would begin or expire, or any action is required to be taken by any party hereunder, on a day that is not a Business Day, such period will be deemed to commence or expire or the action will not be required to be taken, as the case may be, until the next Business Day.

19. “Casualty Election Date” shall have the meaning given to such term in Section 14(e) hereof.

20. “CERCLA” shall mean the Comprehensive Environmental Response, Compensation and Liability Act (codified in scattered sections of 26 U.S.C., 33 U.S.C., 42 U.S.C. and 42 U.S.C. Section 9601 et seq.).

21. “Claim” shall have the meaning given to such term in Section 21(a) hereof.

22. “Claim Notice” shall have the meaning given to such term in Section 13(g) hereof.

23. “Claimed Damage” shall have the meaning given to such term in Section 21(c) hereof.

24. “Closing” shall have the meaning given to such term in Section 19 hereof.

25. “Closing Date” shall have the meaning given to such term in Section 19 hereof.

26. “Co-Insurers” shall have the meaning given to such term in Section 7(a) hereof.

27. “Collective Bargaining Agreement” shall have the meaning given to such term in Section 9(f) hereof.

28. “Commitment” shall have the meaning given to such term in Section 7(a) hereof.

29. “Conference Revenues” shall have the meaning given to such term in Section 8(f) hereof.

30. “Confidential Information” shall have the meaning given to such term in Section 4(g) hereof.

31. “Consequential Damages” shall mean any incidental, consequential, indirect, punitive, speculative, special or exemplary damages, or for lost profits, unrealized expectations or other similar claims.

32. “Consumable Inventory” shall have the meaning given to such term in Section 2(a) hereof.

33. “Contracts” has the meaning given to such term in Section 2(a) hereof.

34. “Contribution Period” shall have the meaning given to such term in Section 9(h) hereof.

35. “Cut-Off Time” shall have the meaning given to such term in Section 8(a) hereof.

36. “Deed” shall have the meaning given to such term in Section 18(a) hereof.

37. “Denial Notice” shall have the meaning given to such term in Section 26(c) hereof.

38. “Deposit” shall have the meaning given to such term in Section 3(a) hereof.

39. “Diligence Confidential Information” shall have the meaning given to such term in Section 4(e) hereof.

40. “Displaced Building Service Workers Act” shall have the meaning given to such term in Section 9(b) hereof.

41. “Dispute” shall have the meaning given to such term in Section 21(c) hereof.

42. “Effective Date” shall have the meaning given to such term in the Preamble hereof.

43. “Employment Laws” shall have the meaning given to such term in Section 9(i) hereof.

44. “Environmental Laws” shall mean any federal, state or local statute, regulation or ordinance or rule of common law or any judicial, administrative or arbitral decree or decision, whether now existing or hereinafter enacted, promulgated or issued, in any way relating to the protection of the environment, including, inter alia, any hazardous materials, petroleum or any fraction thereof, drinking water, groundwater, wetlands, landfills, open dumps, outdoor air quality, indoor air quality, microbial matter, mycotoxins, storage tanks, underground storage tanks, solid waste, waste water, storm water runoff, waste emissions or wells. Without limiting the generality of the foregoing, the term shall encompass each of the following statutes, and regulations, order, decrees, permits, licenses and deed restrictions now or hereafter promulgated thereunder, and amendments and successors to such statutes and regulations as may be enacted and promulgated from time to time: (i) CERCLA; (ii) RCRA; (iii) the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.); (iv) the Toxic Substances Control Act (15 U.S.C. Section 2061 et seq.); (v) the Clean Water Act (33 U.S.C. Section 1251 et seq.); (vi) the Clean Air Act (42 U.S.C. Section 7401 et seq.); (vii) the Safe Drinking Water Act (21 U.S.C. Section 349, 42 U.S.C. Section 201 and Section 300f et seq.); (viii) the National Environmental Policy Act (42 U.S.C. Section 4321 et seq.); (ix) the Superfund Amendments and Reauthorization Act of 1986 (codified in scattered sections of 10 U.S.C., 29 U.S.C., 33 U.S.C. and 42 U.S.C.); (x) Title III of the Superfund Amendment and Reauthorization Act (40 U.S.C. Section 1101 et seq.); (xi) the Uranium Mill Tailings Radiation Control Act (42 U.S.C. Section 7901 et seq.); (xii) the Occupational Safety & Health Act (29 U.S.C. Section 651 et seq.); (xiii) the Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. Section 136 et seq.); (xiv) the Noise Control Act (42 U.S.C. Section 4901 et seq.); (xv) the Emergency Planning and Community Right to Know Act (42 U.S.C. Section 1100 et seq.); and (xvi) the Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.), and (xvii) any analogous present or future state or local statutes or laws.

45. “ERISA” shall mean the Employee Retirement Income Security Act of 1974, as amended.

46. “Escrow Agent” shall have the meaning given to such term in Section 3(a) hereof.

47. “Escrow Agreement” shall have the meaning given to such term in Section 21(c) hereof.

48. “Escrow Holdback Agreement” shall have the meaning given to such term in Section 18(a) hereof.

49. “Escrow Bank” shall have the meaning given to such term in Section 5(a) hereof.

50. “Escrow Funds” shall have the meaning given to such term in Section 21(c) hereof.

51. “Escrow Instructions” shall have the meaning given to such term in Section 3(a) hereof.

52. “Estimated Claimed Damages” shall have the meaning given to such term in Section 21(c) hereof.

53. “Estoppel Certificate” shall have the meaning given to such term in Section 23 hereof.

54. “Exchanging Party” shall have the meaning given to such term in Section 29(a) hereof.

55. “Executive Order” shall have the meaning given to such term in Section 13(a) hereof.

56. “Existing Liquor License” shall have the meaning given to such term in Section 10(d) hereof.

57. “Existing Management Agreement” shall have the meaning given to such term in Section 10(c) hereof.

58. “Existing Manager” shall have the meaning given to such term in Section 10(c) hereof.

59. “Existing Mortgage” shall have the meaning given to such term in Section 28 hereof.

60. “Existing Mortgage Lender” shall have the meaning given to such term in Section 28 hereof.

61. “Existing Survey” shall have the meaning given to such term in Section 6(b) hereof.

62. “Excluded Personalty” shall have the meaning given to such term in Section 2(b) hereof.

63. “Federal WARN Act” shall have the meaning given to such term in Section 9(b) hereof.

64. “Final Closing Statement” shall have the meaning given to such term in Section 8(m) hereof.

65. “Franchise Agreement” shall have the meaning given to such term in Section 26(a) hereof.

66. “Franchise Indemnity Agreement” shall have the meaning given to such term in Section 26(d) hereof.

67. “Franchisor” shall have the meaning given to such term in Section 26(a) hereof.

68. “Government List” means any of (a) the two lists maintained by the United States Department of Commerce (Denied Persons and Entities), (b) the list maintained by the United States Department of Treasury (Specially Designated Nationals and Blocked Persons), and (c) the two lists maintained by the United States Department of State (Terrorist Organizations and Debarred Parties).

69. “Guest Revenues” shall have the meaning given to such term in Section 8(f) hereof.

70. “Hazardous Substances” shall mean any hazardous, toxic or dangerous waste, substance or material, pollutant or contaminant, as defined for purposes of the CERCLA, or the RCRA, or any other federal, state or local law, ordinance, rule or regulation applicable to the Premises, or any substance which is toxic, explosive, corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise hazardous, or any substance which contains gasoline, diesel fuel or other petroleum hydrocarbons, polychlorinated biphenyls (PCBs), radon gas, urea formaldehyde, asbestos, lead, or electromagnetic waves.

71. “Holdback Escrow” shall have the meaning given to such term in Section 18(a) hereof.

72. “Holdback Period” shall have the meaning given to such term in Section 18(a) hereof.

73. “Hotel” shall have the meaning given to such term in the Recitals hereof.

74. “Hotel Employees” shall have the meaning given to such term in Section 9(a) hereof.

75. “Hotel Payables” shall have the meaning given to such term in Section 8(g) hereof.

76. “House Bank Funds” shall have the meaning given to such term in Section 2(a) hereof.

77. “Indemnified Claims” shall have the meaning given to such term in Section 26(d) hereof.

78. “Indemnitor Notice” shall have the meaning given to such term in Section 23(c) hereof.

79. “Intangibles” shall have the meaning given to such term in Section 2(a) hereof.

80. “Interference Damages” shall have the meaning given to such term in Section 21(a) hereof.

81. “Interim Period” shall have the meaning given to such term in Section 26(d) hereof.

82. “Land” shall have the meaning given to such term in the Recitals hereof.

83. “Leases” shall have the meaning given to such term in Section 2(a) hereof.

84. “Limitation Period” shall have the meaning given to such term in Section 13(f) hereof.

85. “Manager” shall have the meaning given to such term in Section 10(c) hereof.

86. “Material Adverse Effect” shall have the meaning given to such term in Section 21(c) hereof.

87. “Material Claim” shall have the meaning given to such term in Section 21(c) hereof.

88. “Material Claim Credit” shall have the meaning given to such term in Section 21(c) hereof.

89. “Material Claim Notice” shall have the meaning given to such term in Section 21(c) hereof.

90. “Maximum Liability Amount” shall have the meaning given to such term in Section 21(c) hereof.

91. “Monetary Lien” shall have the meaning given to such term in Section 7(a) hereof.

92. “Mortgage Assignment” shall have the meaning given to such term in Section 28 hereof.

93. “Mortgages” shall have the meaning given to such term in Section 7(a) hereof.

94. “New License” shall have the meaning given to such term in Section 26(b) hereof.

95. “New Title Objections” shall have the meaning given to such term in Section 7(a) hereof.

96. “New York WARN Act” shall have the meaning given to such term in Section 9(b) hereof.

97. “Non-Objectionable Encumbrances” shall have the meaning given to such term in Section 7(a) hereof.

98. “Non-Union Employees” shall have the meaning given to such term in Section 9(b) hereof.

99. “Notice” and “Notices” shall have the meaning given to such term in Section 20(a) hereof.

100. “NYSLA” shall have the meaning given to such term in Section 10(d) hereof.

101. “Omitted Exceptions” shall have the meaning given to such term in Section 7(a) hereof.

102. “Overage Rent” shall have the meaning given to such term in Section 8(d) hereof.

103. “Permitted Encumbrances” shall have the meaning given to such term in Section 6 hereof.

104. “Person” means an individual, partnership, corporation, limited liability company, trust or other entity.

105. “Personalty” shall have the meaning given to such term in Section 2 hereof.

106. “Preliminary Closing Statement” shall have the meaning given to such term in Section 8(m) hereof.

107. “Premises” shall have the meaning given to such term in the Recitals hereof.

108. “Pre-Closing Claim Amount” shall mean an aggregate amount of Three Hundred Seventy-Five Thousand and 00/100 Dollars ($375,000.00).

109. “Principal” shall mean DiamondRock Hospitality Limited Partnership, a Delaware limited partnership and its successors or assigns.

110. “Prohibited Person” shall mean any Person (including any Person directly or indirectly controlling, controlled by or under common control with a Person) which: (i) has been convicted of, or plead guilty to, a felony, (ii) entitled to sovereign immunity, (iii) is involved (or has been involved within the preceding five (5) years) in a material litigation adverse to Purchaser or Seller (as the case may be) or an Affiliate of Purchaser or Seller (as the case may be), (iv) within the preceding five (5) years, has filed a petition under any insolvency statute, made a general assignment for the benefit of its creditors, commenced a proceeding for the appointment of a receiver, trustee, liquidator or conservator, filed a petition seeking reorganization or liquidation or similar relief under any applicable law or statute, or has been subject to any of foregoing, or (v) cannot truthfully and accurately make for itself the same representations made by Seller in Section 13(a)(vii) and Section 13(a)(viii) of this Agreement.

111. “Property” shall have the meaning given to such term in Section 2(a) hereof.

112. “Property Confidential Information” shall have the meaning given to such term in Section 4(g) hereof.

113. “Property Information” shall have the meaning given to such term in Section 4(a) hereof.

114. “Property Taxes” shall have the meaning given to such term in Section 8(a) hereof.

115. “Purchase Price” shall have the meaning given to such term in Section 3(a) hereof.

116. “Purchaser” shall have the meaning given to such term in the Preamble hereof.

117. “Purchaser Knowledge Party” shall have the meaning given to such term in Section 13(d) hereof.

118. “Purchaser Related Parties” shall have the meaning given to such term in Section 9(j) hereof.

119. “Purchaser’s Election Notice” shall have the meaning given to such term in Section 7(a) hereof.

120. “Purchaser’s Objection Notice” shall have the meaning given to such term in Section 7(a) hereof.

121. “Purchaser’s Principals” shall have the meaning given to such term in Section 13(e) hereof.

122. “Purchaser’s Representatives” shall have the meaning given to such term in Section 4(a) hereof.

123. “Radisson Consent” shall have the meaning given to such term in Section 26(b) hereof.

124. “RCRA” shall mean the Resource Conservation and Recovery Act (42 U.S.C. Section 6901 et seq.).

125. “Receivables” shall have the meaning given to such term in Section 2(a) hereof.

126. “Related Entities” shall have the meaning given to such term in Section 13(e) hereof.

127. “Rents” shall have the meaning given to such term in Section 8(a) hereof.

128. “Replacement Management Agreement” shall have the meaning given to such term in Section 10(c) hereof.

129. “Requirements” means (i) all applicable laws, ordinances, rules, regulations (including, without limitation, the Americans With Disabilities Act of 1990, as amended, the Resource Conservation and Recovery Act and CERCLA) and permits of governmental and other appropriate authorities having jurisdiction over the Premises, (ii) all insurance requirements, (iii) all Permitted Encumbrances and (iv) all requirements of the Franchisor pursuant to the Franchise Agreement.

130. “Retail Inventory” shall have the meaning given to such term in Section 2(a) hereof.

131. “Retained Receivables” shall have the meaning given to such term in Section 8(f) hereof.

132. “Retirement Plan” shall have the meaning given to such term in Section 9(h) hereof.

133. “Scheduled Closing Date” shall have the meaning given to such term in Section 19 hereof.

134. “Seller” shall have the meaning given to such term in the Preamble hereof.

135. “Seller Disputed Payable” shall have the meaning given to such term in Section 8(g) hereof.

136. “Seller Knowledge Party” shall have the meaning given to such term in Section 13(b) hereof.

137. “Seller Notice of Dispute” shall have the meaning given to such term in Section 21(c) hereof.

138. “Seller Related Party” and “Seller Related Parties” shall have the meaning given to such term in Section 4(h) hereof.

139. “Seller’s Cure Notice” shall have the meaning given to such term in Section 21(c) hereof.

140. “Seller’s Response Notice” shall have the meaning given to such term in Section 7(a) hereof.

141. “Settlement Period” shall have the meaning given to such term in Section 13(g) hereof.

142. “Shares” shall have the meaning given to such term in Section 29(b).

143. “Taking” shall have the meaning given to such term in Section 15(a) hereof.

144. “Tax Certiorari Proceeding” shall have the meaning given to such term in Section 8(b) hereof.

145. “Tenant Arrearages” shall have the meaning given to such term in Section 13(a) hereof.

146. “Tenant Lien” shall have the meaning given to such term in Section 7(a) hereof.

147. “Termination Amounts” shall have the meaning given to such term in Section 26(c) hereof.

148. “Threshold Amount” shall have the meaning given to such term in Section 21(c) hereof.

149. “Title Company” shall have the meaning given to such term in Section 7(a) hereof.

150. “Title Cure Notice” shall have the meaning given to such term in Section 7(a) hereof.

151. “Title Objection” shall have the meaning given to such term in Section 7(a) hereof.

152. “Transfer Tax Laws” shall have the meaning given to such term in Section 17(a) hereof.

153. “Transfer Taxes” shall have the meaning given to such term in Section 17(a) hereof.

154. “TRS” shall have the meaning given to such term in Section 8(p) hereof.

155. “Union” shall have the meaning given to such term in Section 9(f) hereof.

156. “Union Employee Benefit Funds” shall have the meaning given to such term in Section 9(g) hereof.

157. “Units” shall have the meaning given to such term in Section 29(b) hereof.

158. “Unopened Inventory” shall have the meaning given to such term in Section 2(a) hereof.

159. “Update Notice” shall have the meaning given to such term in Section 7(a) hereof.

160. “Utilities” shall have the meaning given to such term in Section 8(c) hereof.

161. “Violations” shall have the meaning given to such term in Section 6(f) hereof.

[No further text on this page.]

SCHEDULE B

Legal Description of the Land

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

BEGINNING at the corner formed by the intersection of the southerly side of East 48th Street with the easterly side of Lexington Avenue;

RUNNING THENCE easterly along the southerly side of East 48th Street, 174 feet 6 inches;

THENCE southerly parallel with Lexington Avenue, 100 feet 5 inches to the center line of the block;

THENCE westerly along said center line of the block, 174 feet 6 inches to the easterly side of Lexington Avenue; and

THENCE northerly along the easterly side of Lexington Avenue, 100 feet 5 inches to the point or place of BEGINNING.

SCHEDULE C-1

Contracts

Union Agreements

Lexington Hotel & NY Hotel and Motel Trades Council, AFL-CIO — 02/16/2005
Latin Quarter & NY Hotel and Motel Trades Council, AFL-CIO — 03/05/2004
Alma Grill & NY Hotel and Motel Trades Council, AFL-CIO — 05/30/2007
Yetang Corp. & NY Hotel and Motel Trades Council, AFL-CIO — 06/29/2006

MAINTENANCE CONTRACTS

VENDOR

PURPOSE

FREQUENCY

AMOUNT

DUE DATE

TERM

10 BEST

Web-Extra services

A

1,500.00

07/31/2011

Year to Year Renewal

AAA

Lodging Program-License Fee

A

1,640.00

04/30/2011

Awaiting 2011-12 Contract/Invoice

AFA PROTECTIVE SYSTEMS

FireAlarm & Backup System

A

2,395.08

04/30/2011

Year to Year Renewal

ASSA ABLOY HOSPITALITY CORP.

Guests door lock maintenance

A

1,306.50

CORSICA TECHNOLOGIES

Printer maintenance

Q

2,014.19

03/01/2012

CROSS FIRE SECURITY

Fire alarm system maintenance

Bi-Annual

3,063.21

05/01/2011

Year to Year Renewal

DREW INDUSTRIAL /(ASHLAND)

Cooling Tower/Domestic Water/Chiller Treatment

Q

4,106.00

Year to Year Renewal-Jun30

HOMISCO

Phone Call Accounting

A

2,400.00

02/28/2011

Year to Year Renewal

LEC CONSULTING & INSP (LANELE)

Elevator Consultant

M

816.57

MBM BUSINESS SYSTEMS, INC.

Copier maintenance

A

2,133.95

04/19/2012

Year to Year Renewal

MICROS RETAIL SYSTEMS

Micros C.C.Terminal Maintenance(Bar/Dynasty/Raffels)

A

3,715.03

12/31/2012

Year to Year Renewal

MICROS RETAIL SYSTEMS

Merchant Linl- Credit Card Help-Bar

A

433.50

01/01/2011

MICROS SYSTEMS INC

License & Support fee for Opera

Q

9,399.20

NEOPOST USA INC.

Postage meter maintenance & meter rental

A

688.08

01/16/2012

NEW MARKET INT’L-DELPHI

Delphi & OX Annual Maintenance

A

7,812.25

12/31/2011

OTIS ELEVATOR

Elevator Maintenance

Q

6,097.00

REMCO MAINTENANCE

Metal maintenance in lobby

M

1,573.42

THE TRANE COMPANY

HVAC Maint. - Chillar (Labour) Aircon

Q

6,097.00

THYSSENKRUPP ELEVATOR (MAINCO)

Elevator Maintenance - Service

Q

7,602.57

Year to Year Renewal

VERSATECH

PBX and telecommunication maintenance

Q

5,035.47

Year to Year Renewal

		OTHERS-REGULAR & FIXED
		PAYMENTS
VENDOR		PURPOSE		FREQUENCY		AMOUNT				TERM
ELAVON, INC.		Credit card gateway service (processing)		A			849.23			03/31/2012
HOTEL REV UP		Per Room Key Charge		M		$	2,848.00
HOTWIRE		Travel Ticker Ads		A			7,999.55			12/31/2011
HRSMART (c/o Corp. office)		Applicant tracking system, subscription fees		Bi-Annual			2,252.03			11/30/2011
PRINTERON		Online Guest Printing with 2 Printers		A			595.00			12/10/2011
RADISSON HOTEL WORLWIDE		Franchise/Marketing/Reservation and other fees		M		Varies
RCN( RCN) A/C 6101-0234087-01		Cable TV for Rooms		M			5,231.03			4 Yrs-Ending-10/22/2012
XO COMMUNICATIONS		T 1 Line-Guest Internet		M			3,042.75			2 Yrs Ending-12/31/2010
YELP, INC. (c/o Corp. office)		Directory ad listing		M			112.50
Transbeam		Hotel Internet		M			250.00			2 Yrs Ending-12/17/2011
TIG		Interactive Marketing Agreement		M			2167.00			1 Yrs Ending-4/30/2012
Bookings.com		T/A Commission		M		15% comm.				1 Year Ending-12/31/2011
EZY Yield.com		Web Site services		A			149.00			Renews yearly from 05/08 90 day cxl
Flight Time TV LLC		Flight Time TV in Business Center		A			1,075.00			1 year license 02/2012
HIGHSPEED SYSTEMS		Internet Access Mainteneance		M			1,995.00			12/31/2011
Interior Foliage		Floral Arrangement & Maint.		A		Varies				Renews yearly from 03/05 90 day cxl
SWIFTRANK		Cost per click advertising		M			84.00			08/31/11

Miscellaneous Revenue Generating Contracts
Hotelbeds — expires 03/31/12
Tourico — expires 03/31/12

SCHEDULE C-2

Equipment Leases

QUENCH MOBILITY

Water coolers -HK

Q

150.25

Beginning of Qtr

36 Months

QUENCH MOBILITY

Water coolers -Acct.+PBX+Eng

Q

450.74

Beginning of Qtr

36 Months

QUENCH MOBILITY

Water coolers -FD+HK

Q

300.50

Beginning of Qtr

36 Months

USPS

P.O. Box Rental

A

1,090.00

03/31/2011

SCHEDULE D

Marked Title Commitment

(Follows immediately on the next page.)

SCHEDULE E-1

List of Leases

Tenant		Expiration Date
Habana Room Restaurant		10/31/2023
Yetang Dynasty		03/31/2015
Raffles		01/20/2013
Starbucks		11/30/2016
Latin Quarter		02/28/2022
NYCS, LLC (Concierge)		12/31/2014

EXHIBIT E-2

Tenant Arrearages

(see attached)

Radisson Lexington Hotel New York
A/R Tenants Aging
5/11/2011

Account Name		Current				31-60				61-90				91-120				121 and Over				Total
Habana Room Rent			15,450.00				7,225.00				15,450.00								8,822.50				46,947.50
Habana Room RE Tax			—				—				—				—				—				—
Habana Room Utilities			2,200.00				2,200.00				3,309.35				3,642.77				1,200.00				12,552.12
Habana Total:			17,650.00				9,425.00				18,759.35				3,642.77				10,022.50				59,499.62
J Sung Dynasty Rent			19,965.00				1,815.00																21,780.00
J Sung Dynasty RE Tax			—				—				—				4,663.17				—				4,663.17
J Sung Dynasty Utilities			3,750.72				—				—				—				—				3,750.72
Dynasty Total:			23,715.72				1,815.00				—				4,663.17				—				30,193.89
Raffles Restaurant Rent			38,665.06				38,668.33																77,333.39
Raffles Restaurant RE Tax															27,588.63				24,734.50				52,323.13
Raffles Restaurant Utilities			500.00				500.00																1,000.00
Raffles Total:			39,165.06				39,168.33				—				27,588.63				24,734.50				130,656.52
Starbucks Rent			—				—				—				—				—				—
Starbucks RE Tax			—				—				—				9,417.26				—				9,417.26
Starbucks Utilities			3,040.50				—				—				—				—				3,040.50
Starbucks Total:			3,040.50				—				—				9,417.26				—				12,457.76
Latin Quarter Rent			45,375.00																				45,375.00
Latin Quarter RE Tax															50,579.13				68,237.20				118,816.33
Latin Quarter Utilities			10,804.21																				10,804.21
Latin Quarter Total:			56,179.21				—				—				50,579.13				68,237.20				174,995.54
Concierge Services Rent			—				—				—				—				—				—
Concierge Total:			—				—				—				—				—				—
Grand Total			139,750.49				50,408.33				18,759.35				95,890.96				102,994.20				407,803.33
			34.27	%			12.36	%			4.60	%			23.51	%			25.26	%			100.00	%

SCHEDULE F

Pending Litigation

Worker’s Compensation

Micheline Augustine — Not Yet Litigated (slip and fall while cleaning)

General Liability

Claimant Name		Index
Vassell, Wayne		19488
Torres, Luis		100174/07
Grover, David		115918/08
Rodriguez, Ivelisse		100174/07
Mehta, Rungthip		111624/08

Employee Grievances

Various employee grievances (7) which in all likelihood will be resolved in the normal course, but in theory could turn into litigation. Issues ranging from back pay to vacation or scheduling grievances.

Gonzalo Hernandez v. Habana Room Inc. and Lexington Hotel LLC, Case No. 11 CV 1264 southern district of New York, class action employee litigation for failure to pay overtime

Tenant Litigation

Lexington Hotel LLC vs. Habana Room Inc., which is pending in the Civil Court of the City of New York, County of New York, Index No. 11N055559. This case involves an attempt to terminate Habana’s lease as a result of claimed violations of the lease involving failure to provide room service in a first class manner, failure to operate the restaurant in a first class manner and failure to comply with its union obligations. Habana Room Inc. has made a motion to dismiss the action, claiming various technical defenses regarding service of the notice of default and the petition. That motion is scheduled to be heard on May 16^th.

SCHEDULE G

Excluded Personalty

Lexus 450L, 2010 model, Black, VIN JTHDL5EF1A5001423

SCHEDULE H

Environmental Reports

Phase I Environmental Site Assessment: Radisson Lexington Hotel Prepared by Blackstone Consulting LLC on 4/26/11

Asbestos Operations and maintenance Program prepare by Athenica Environmental Services dated 12/22/04

Phase I Environmental Site Assessment: Lexington Hotel Prepared by Clayton Group Services, Inc. on 5/20/04

Lead Based Pain Operations & Maintenance Plan prepared by PSI Environmental Geotechnical Construction dated 7/29/99

28^th & 29^th Floors Asbestos Survey prepared by PSI Environmental Geotechnical Construction dated 7/22/99

Asbestos Management Plan — V.2.1 dated 7/21/99

Phase I Environmental Site Assessment Update and Visual Limited Asbestos Survey Prepared by Law Environmental Consultants, Inc. dated 6/16/99

Phase I Environmental Site Assessment Prepared by Law Environmental Consultants, Inc. dated 5/8/98

EXHIBIT 1

BARGAIN AND SALE DEED
WITHOUT COVENANT AGAINST GRANTOR’S ACTS

THIS DEED (“Deed”), made the  _____  day of May, 2011 by LEXINGTON HOTEL, LLC, a Delaware limited liability company, having an address c/o Highgate Holdings, Inc., 870 Seventh Avenue, 2nd Floor, New York, New York 10019 (“Grantor”) in favor of [                                        ], a [                                        ], having an address c/o DiamondRock Hospitality Company, 3 Bethesda Metro Center, Suite 1500, Bethesda, Maryland 20814 (“Grantee”).

WITNESSETH, that, in consideration of ten dollars ($10.00) and other valuable consideration paid by Grantee, the receipt and sufficiency of which are hereby acknowledged, Grantor does hereby grant and release unto Grantee, the heirs or successors and assigns of Grantee forever;

ALL that certain plot, piece or parcel of land with the building and improvements thereon erected, situate, lying and being, more particularly described on Exhibit A attached hereto and made a part hereof (the “Premises”);

TOGETHER with all right, title and interest, if any, of Grantor in and to any streets and roads abutting the Premises to the center lines thereof;

TOGETHER with all appurtenances thereto and all of the estate and rights of the Grantor in and to the Premises;

TO HAVE AND TO HOLD the same unto the Grantee and the successors and assigns of the Grantee, forever.

AND Grantor, in compliance with Section 13 of the Lien Law of the State of New York, covenants that it will receive the consideration for this conveyance and will hold the right to receive such consideration as a trust fund to be applied first for the purpose of paying the cost of improvement and will apply the same first to the payment of the cost of the improvement before using any part of the total of the same for any other purpose.

Wherever in this instrument any party shall be designated or referred to by name or general reference, such designation is intended to and shall have the same effect as if the words “successors and assigns” had been inserted after each and every such designation.

[No further text on this page; the signature page follows.]

IN WITNESS WHEREOF, Grantor has caused this Deed to be executed by its duly authorized representative on the day and year first above written.

LEXINGTON HOTEL, LLC, a Delaware limited liability company

By:

Lexington Hotel (Holdings), LLC, a Delaware limited liability company, its sole member

By:

Lex Intermediate Mezz, LLC, a Delaware limited liability company, its sole member

By:

Lex Intermediate Mezz (Holdings), LLC, a Delaware limited liability company, its sole member

By:

Lex Sub Mezz (Holdings), LLC, a Delaware limited liability company, its sole member

By:

WH/LEX, LLC, a Delaware limited liability company, its managing member

By:

Name:

Title:

		By:		MERISTAR LEXINGTON PARTNERS, LLC, a Delaware limited liability company, its managing member
				By:
						Name:
						Title:

Uniform Certificate of Acknowledgment
(Within New York State)

STATE OF NEW YORK			)
						: ss.:
COUNTY OF			)

On this                      day of                     , in the year 201_____, before me, the undersigned, a Notary Public in and for said State, personally appeared                                         , personally known to me or proved to me on the basis of satisfactory evidence to be the                                          of                                            and acknowledged to me that he/she executed the same in his/her capacity, and that by his/her signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument.

		Notary Public

Uniform Certificate of Acknowledgment
(Outside of the State of New York)

STATE OF			)
						: ss.:
COUNTY OF			)

On this                      day of                     , in the year 201_____, before me, the undersigned, a Notary Public in and for said state, personally appeared                                         , personally known to me or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument, and that such individual made such appearance before the undersigned in the State of                     .

		Notary Public

Bargain and Sale Deed		PREMISES LOCATED ON:
Without Covenant Against Grantor’s Acts
		SECTION:		5
		BLOCK:		1302
		LOTS:		51
LEXINGTON HOTEL, LLC		COUNTY:		New York
TO [                                                                      ]		STREET ADDRESS:		511 Lexington Avenue New York, New York
		RETURN BY MAIL TO:

Exhibit A to Bargain and Sale Deed

Legal Description of Land

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

BEGINNING at the corner formed by the intersection of the southerly side of East 48th Street with the easterly side of Lexington Avenue;

RUNNING THENCE easterly along the southerly side of East 48th Street, 174 feet 6 inches;

THENCE southerly parallel with Lexington Avenue, 100 feet 5 inches to the center line of the block;

THENCE westerly along said center line of the block, 174 feet 6 inches to the easterly side of Lexington Avenue; and

THENCE northerly along the easterly side of Lexington Avenue, 100 feet 5 inches to the point or place of BEGINNING.

EXHIBIT 2

BILL OF SALE AND ASSIGNMENT

LEXINGTON HOTEL, LLC, a Delaware limited liability company, having an address c/o Highgate Holdings, Inc., 870 Seventh Avenue, 2nd Floor, New York, New York 10019 (“Seller”), in consideration of Ten Dollars ($10.00) and other good and valuable consideration paid to Seller by [                                           ], a [                                           ], having an address c/o DiamondRock Hospitality Company, 3 Bethesda Metro Center, Suite 1500, Bethesda, Maryland 20814 (“Purchaser”), the receipt and sufficiency of which are hereby acknowledged, hereby sells, conveys, assigns, transfers, delivers and sets over to Purchaser all Personalty other than the Excluded Personalty (as both terms are defined in the Purchase Agreement) owned by Seller.

TO HAVE AND TO HOLD unto Purchaser and its successors and assigns to its and their own use and benefit forever.

Reference is hereby made to that certain Purchase and Sale Agreement (the “Purchase Agreement”), by and between Seller and Purchaser, dated May  _____, 2011. Capitalized terms used but not otherwise defined shall have the meanings ascribed to such terms in the Purchase Agreement.

Except as otherwise expressly provided for (and to the extent and duration provided for) in the Purchase Agreement, Purchaser hereby acknowledges and agrees that the Personalty, Consumable Inventory and all files and records in Seller’s possession or reasonable control and relating to the Premises is being conveyed in “AS IS, WHERE IS, WITH ALL FAULTS”, and the provisions of Section 24 of the Purchase Agreement are incorporated herein by this reference.

Except as otherwise expressly provided for (and to the extent and duration provided for) in the Purchase Agreement, this Bill of Sale and Assignment is made by Seller without recourse and without any expressed or implied representation or warranty whatsoever.

This Bill of Sale and Assignment and the provisions herein contained shall be binding upon and inure to the benefit of Purchaser and Seller and their respective successors and assigns.

This Bill of Sale and Assignment may be executed in several counterparts and all counterparts so executed shall constitute one Bill of Sale and Assignment, binding on all parties hereto and thereto, notwithstanding that all the parties are not signatories to the same counterpart.

[No further text on this page; the signature page follows.]

IN WITNESS WHEREOF, Seller has caused this Bill of Sale to be executed as of this  _____  day of May, 2011.

LEXINGTON HOTEL, LLC, a Delaware limited liability company

By:

Lexington Hotel (Holdings), LLC, a Delaware limited liability company, its sole member

By:

Lex Intermediate Mezz, LLC, a Delaware limited liability company, its sole member

By:

Lex Intermediate Mezz (Holdings), LLC, a Delaware limited liability company, its sole member

By:

Lex Sub Mezz (Holdings), LLC, a Delaware limited liability company, its sole member

By:

WH/LEX, LLC, a Delaware limited liability company, its managing member

By:

Name:

Title:

		By:		MERISTAR LEXINGTON PARTNERS, LLC, a Delaware limited liability company, its managing member
				By:
						Name:
						Title:

EXHIBIT 3

FIRPTA CERTIFICATE

Section 1445 of the Internal Revenue Code of 1986, as amended (the “Code”), provides that a transferee of a U.S. real property interest must withhold tax if the transferor is a foreign person. To inform the transferee, [                                        ], a [                                         ] (“Transferee”) that withholding of tax is not required upon the disposition of a U.S. real property interest by LEXINGTON HOTEL, LLC, a Delaware limited liability company, having an address c/o Highgate Holdings, Inc., 870 Seventh Avenue, 2nd Floor, New York, New York 10019 (“Transferor”), the undersigned hereby certifies the following to Transferee on behalf of Transferor:

1.		Transferor is not a foreign person, foreign corporation, foreign partnership, foreign trust, or foreign estate (as those terms are defined in the Code and Treasury Regulations promulgated thereunder);
2.		The U.S. employer identification number of Transferor is [                                        ];
3.		Transferor’s office address is c/o Highgate Holdings, Inc., 870 Seventh Avenue, 2nd Floor, New York, New York 10019;
4.		Transferor is not a disregarded entity as defined in §1.1445-2(b)(2)(iii); and
5.		Transferor understands that this certification may be disclosed to the Internal Revenue Service by Transferee and that any false statement contained herein could be punished by fine, imprisonment, or both.

(The remainder of this page is left intentionally blank.)

Under penalties of perjury I declare that I have examined this certification and to the best of my knowledge and belief it is true, correct, and complete, and I further declare that I have authority to sign this document on behalf of Transferor.

Dated as of May ___, 2011

LEXINGTON HOTEL, LLC, a Delaware limited liability company

By:

Lexington Hotel (Holdings), LLC, a Delaware limited liability company, its sole member

By:

Lex Intermediate Mezz, LLC, a Delaware limited liability company, its sole member

By:

Lex Intermediate Mezz (Holdings), LLC, a Delaware limited liability company, its sole member

By:

Lex Sub Mezz (Holdings), LLC, a Delaware limited liability company, its sole member

By:

WH/LEX, LLC, a Delaware limited liability company, its managing member

By:

Name:

Title:

		By:		MERISTAR LEXINGTON PARTNERS, LLC, a Delaware limited liability company, its managing member
				By:
						Name:
						Title:

EXHIBIT 4

TITLE AFFIDAVIT

Commonwealth Land Title Insurance Company

COMMON EXCEPTIONS AFFIDAVIT

Title No.: NY110378

Premises:

The Radisson Lexington Hotel 511 Lexington Avenue, New York, NY Block 1302 Lot 51 New York County

State of New York
County of New York

Lexington Hotel, LLC, a Delaware limited liability company (“Owner”), hereby certifies to Commonwealth Land Title Insurance Company, as of the date hereof, as follows:

1.		Owner is the fee owner of the above described premises (the “Premises”).
2.		That, to Owner’s knowledge, without inquiry or investigation, there has been no work done upon the Premises by the City of New York nor has the City of New York made any demand made for such work that may result in charges assessed by the Office of Rent and Housing Maintenance, Emergency Repairs Division.
3.		That, to Owner’s knowledge, without inquiry or investigation, there have been no work done upon the Premises by the City of New York, nor has the City of New York made any demand for any such work that may result in charges assessed by the Department of Health.
4.		That, to Owner’s knowledge, without inquiry or investigation, there are no unpaid fees or charges levied by the City of New York Department of Buildings for inspections, reinspections, examinations, services or permits relating to the Premises.
5.		That there are no tenants or persons in possession of the Premises, except for those tenants set forth on the rent roll attached hereto as Exhibit A, having rights as tenants only, and hotel guests, and Owner has not granted any party any option to purchase the Premises or right of first refusal to purchase the Premises either pursuant to written leases or by separate agreements.
6.		This affidavit is being delivered to induce Commonwealth Land Title Insurance Company to insure title to the aforesaid policy.

[Signature Page Immediately Follows]

LEXINGTON HOTEL, LLC, a Delaware limited liability company

By:

Lexington Hotel (Holdings), LLC, a Delaware limited liability company, its sole member

By:

Lex Intermediate Mezz, LLC, a Delaware limited liability company, its sole member

By:

Lex Intermediate Mezz (Holdings), LLC, a Delaware limited liability company, its sole member

By:

Lex Sub Mezz (Holdings), LLC, a Delaware limited liability company, its sole member

By:

WH/LEX, LLC, a Delaware limited liability company, its managing member

By:

Name:

Title:

		By:		MERISTAR LEXINGTON PARTNERS, LLC, a Delaware limited liability company, its managing member
				By:
						Name:
						Title:

EXHIBIT A

Rent Roll

(see attached)

EXHIBIT 5

ERISA Letter

May  _____, 2011

To:		Lexington Hotel, LLC (“Seller”) c/o Highgate Holdings, Inc. 870 Seventh Avenue, 2nd Floor New York, New York 10019
Re:		511 Lexington Avenue, New York, New York (Lot 51 in Block 1302 on the Tax Map of the City of New York)

Ladies and Gentlemen:

The undersigned represents to you that [                                           ], a [                                           ] (“Purchaser”), or any Affiliates thereof, or any firm, person or entity providing financing for the purchase of the entire interest of Seller in the Property (as defined in the Purchase Agreement) are not using the assets of an employee benefit plan as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) and covered under Title I, Part 4 of the ERISA or Section 4975 of the Internal Revenue Code of 1986, as amended, in the performance or discharge of its obligations under that certain Agreement of Purchase and Sale Agreement, dated May  _____, 2011 (“Purchase Agreement”), with respect to the Property by and between Lexington Hotel, LLC, a Delaware limited liability company, as Seller, and the undersigned, as Purchaser, including the acquisition of the Property. Capitalized terms used but not otherwise defined shall have the meanings ascribed to such terms in the Purchase Agreement.

EXHIBIT 6

ASSIGNMENT AND ASSUMPTION OF CONTRACTS

THIS ASSIGNMENT AND ASSUMPTION OF CONTRACTS (this “Assignment”), is made and entered into this  _____  day of May, 2011 by and between LEXINGTON HOTEL, LLC, a Delaware limited liability company, having an address c/o Highgate Holdings, Inc., 870 Seventh Avenue, 2nd Floor, New York, New York 10019 (“Assignor”), and [                                           ], a [                                           ], having an address c/o DiamondRock Hospitality Company, 3 Bethesda Metro Center, Suite 1500, Bethesda, Maryland 20814 (“Assignee”).

WITNESSETH:

Reference is hereby made to that certain Purchase and Sale Agreement (the “Purchase Agreement”), by and between Assignor and Assignee, dated May  _____, 2011. Capitalized terms used but not otherwise defined shall have the meanings ascribed to such terms in the Purchase Agreement.

Assignor hereby assigns to Assignee all of its right, title and interest in and to the Contracts (as defined in the Purchase Agreement) which are listed on Schedule A attached hereto.

Assignee hereby expressly assumes all of the obligations under the Contracts which accrue from and after the date hereof.

Except as otherwise expressly provided for (and to the extent and duration provided for) in the Purchase Agreement, this Assignment is made by Assignor without recourse and without any expressed or implied representation or warranty whatsoever.

This Assignment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

Any inconsistency between the terms herein and the terms set forth in the Purchase Agreement shall be resolved in favor of the terms of the Purchase Agreement.

This Assignment may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same agreement.

[No further text on this page; the signature page follows.]

IN WITNESS WHEREOF, Assignor and Assignee have executed this Assignment and Assumption of Contracts as of the date first above written.

ASSIGNOR: LEXINGTON HOTEL, LLC, a Delaware limited liability company

By:

Lexington Hotel (Holdings), LLC, a Delaware limited liability company, its sole member

By:

Lex Intermediate Mezz, LLC, a Delaware limited liability company, its sole member

By:

Lex Intermediate Mezz (Holdings), LLC, a Delaware limited liability company, its sole member

By:

Lex Sub Mezz (Holdings), LLC, a Delaware limited liability company, its sole member

By:

WH/LEX, LLC, a Delaware limited liability company, its managing member

By:

Name:

Title:

		By:		MERISTAR LEXINGTON PARTNERS, LLC, a Delaware limited liability company, its managing member
				By:
						Name:
						Title:

ASSIGNEE: [                                        ], a [                                        ],
By:
		Name:
		Title:

SCHEDULE A

Contracts

EXHIBIT 7

GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT

THIS GENERAL ASSIGNMENT AND ASSUMPTION AGREEMENT (this “Assignment”), is made and entered into this  _____  day of May 2011 by and between LEXINGTON HOTEL, LLC, a Delaware limited liability company, having an address c/o Highgate Holdings, Inc., 870 Seventh Avenue, 2nd Floor, New York, New York 10019 (“Assignor”), and [                                           ], a [                                           ], having an address c/o DiamondRock Hospitality Company, 3 Bethesda Metro Center, Suite 1500, Bethesda, Maryland 20814 (“Assignee”).

WITNESSETH:

Reference is hereby made to that certain Purchase and Sale Agreement (the “Purchase Agreement”) by and between Assignor and Assignee, dated May  _____, 2011. Capitalized terms used but not otherwise defined shall have the meanings ascribed to such terms in the Purchase Agreement.

Assignor for Ten Dollars ($10.00), and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, hereby assigns to Assignee all of Assignor’s right, title and interest in, to and the Intangibles and the Bookings solely to the extent relating to the Premises (as defined in the Purchase Agreement) that Seller is required to provide to Purchaser pursuant to the Purchase Agreement.

TO HAVE AND TO HOLD unto Assignee and its successors and assigns to its and their own use and benefit forever.

Assignee hereby expressly assumes the obligations of Assignor in respect of the Intangibles and the Bookings accruing from and after the date hereof.

Except as otherwise expressly provided for (and to the extent and duration provided for) in the Purchase Agreement, Assignee hereby acknowledges and agrees that the Intangibles, the Bookings and, subject to Section 8 of the Purchase Agreement, the Receivables and House Bank Funds are being conveyed in “AS IS, WHERE IS, WITH ALL FAULTS”, and the provisions of Section 24 of the Purchase Agreement are incorporated herein by this reference.

Except as otherwise expressly provided for (and to the extent and duration provided for) in the Purchase Agreement, this Assignment is made by Assignor without recourse and without any expressed or implied representation or warranty whatsoever.

This Assignment shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns.

Any inconsistency between the terms herein and the terms set forth in the Purchase Agreement shall be resolved in favor of the terms of the Purchase Agreement.

This Assignment may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which shall constitute one and the same agreement.

[No further text on this page; the signature page follows.]

IN WITNESS WHEREOF, Assignor and Assignee have executed this General Assignment and Assumption Agreement as of the date first above written.

ASSIGNOR: LEXINGTON HOTEL, LLC, a Delaware limited liability company

By:

Lexington Hotel (Holdings), LLC, a Delaware limited liability company, its sole member

By:

Lex Intermediate Mezz, LLC, a Delaware limited liability company, its sole member

By:

Lex Intermediate Mezz (Holdings), LLC, a Delaware limited liability company, its sole member

By:

Lex Sub Mezz (Holdings), LLC, a Delaware limited liability company, its sole member

By:

WH/LEX, LLC, a Delaware limited liability company, its managing member

By:

Name:

Title:

		By:		MERISTAR LEXINGTON PARTNERS, LLC, a Delaware limited liability company, its managing member
				By:
						Name:
						Title:

[Signature Page Continues]

ASSIGNEE:
[                                        ], a [                                        ]
By:
		Name:
		Title:

EXHIBIT 8

FORM OF ASSIGNMENT AND ASSUMPTION
OF THE COLLECTIVE BARGAINING AGREEMENT

IWA ASSUMPTION AGREEMENT

This IWA ASSUMPTION AGREEMENT (“IWAAA”) is made and entered into as of this  _____  day of May, 2011, by and between LEXINGTON HOTEL, LLC, a Delaware limited liability company, having an address c/o Highgate Holdings, Inc., 870 Seventh Avenue, 2nd Floor, New York, New York 10019 (“Seller”), which owns the hotel located at 511 Lexington Avenue, New York, New York and commonly known as “The Radisson Lexington Hotel” (“Hotel”), whose manager was the employer of the bargaining unit employees employed at the Hotel (“Employees”); and [                                          ], a [                                          ], having an address c/o DiamondRock Hospitality Company, 3 Bethesda Metro Center, Suite 1500, Bethesda, Maryland 20814 (“Purchaser”); and HIGHGATE HOTELS, L.P., a Delaware limited partnership, as managing agent for Purchaser in connection with the operation of the Hotel and the employer of the Employees (“Manager”); and the New York Hotel and Motel Trades Council, AFL-CIO (“Union”).

RECITALS:

A. Purchaser has agreed to purchase the Hotel from Seller pursuant to that certain Purchase and Sale Agreement, dated as of May  _____, 2011 (“Purchase Agreement”) and Manager shall operate the Hotel for Purchaser and shall employ the Employees;

B. Seller is bound to a collective bargaining agreement known as the Industry Wide Agreement, which is in effect through June 30, 2012 (“IWA”);

C. Article 59 of the IWA requires that in the event of any transaction which transfers majority ownership, management or operational control of the Hotel, Seller ensure that any party assuming such majority ownership, management or control (“Transferee”) assume and be bound by the IWA;

D. Purchaser and Manager are each a Transferee under Article 59 of the IWA;

AGREEMENTS:

It is now therefore agreed that:

1. The foregoing recitals are true and correct and are incorporated herein by reference.

2. Upon the closing of the sale of the Hotel from Seller to Purchaser (the “Closing”), Purchaser and Manager hereby assume all of Seller’s obligations under the IWA. However, nothing herein shall modify or limit the rights and obligations between Purchaser and Seller that survive the Closing as set forth in the Purchase Agreement.

3. Purchaser and Manager agree that, effective at Closing, they have assumed, adopted, and are bound by all terms and conditions, both economic and non-economic, of Seller under the IWA. Purchaser and Manager further agrees that Manager shall offer to retain all current bargaining unit employees, and if such offers are accepted, their employment will continue uninterrupted and without loss of seniority, compensation, benefits, and all other terms and conditions of employment, subject to the IWA and applicable law.

4. Effective immediately, any and all disputes between the Union and any party hereto regarding this IWAAA shall be subject to Article 26 of the IWA, the entirety of which is incorporated herein by reference herein.

5. This Agreement may be signed in counterparts, each of which shall be deemed an original.

[Signature Page Immediately Follows]

IN WITNESS WHEREOF, Seller, Purchaser and Manager have executed this IWA Assumption Agreement as of the date first written above.

SELLER: LEXINGTON HOTEL, LLC, a Delaware limited liability company

By:

Lexington Hotel (Holdings), LLC, a Delaware limited liability company, its sole member

By:

Lex Intermediate Mezz, LLC, a Delaware limited liability company, its sole member

By:

Lex Intermediate Mezz (Holdings), LLC, a Delaware limited liability company, its sole member

By:

Lex Sub Mezz (Holdings), LLC, a Delaware limited liability company, its sole member

By:

WH/LEX, LLC, a Delaware limited liability company, its managing member

By:

Name:

Title:

		By:		MERISTAR LEXINGTON PARTNERS, LLC, a Delaware limited liability company, its managing member
				By:
						Name:
						Title: