Document

Exhibit 10.6


Execution Version

Fifth Amendment to Note Purchase Agreement


This Fifth Amendment dated as of December 9, 2021 (this “Fifth Amendment”) to the Note Purchase Agreement (as defined below) is among Pebblebrook Hotel, L.P., a Delaware limited partnership (the “Company”), Pebblebrook, Hotel Trust, a Maryland real estate investment trust (the “Parent REIT”) and each of the institutions set forth on the signature pages to this Fifth Amendment (collectively, the “Noteholders”).
Recitals
A.The Company and each of the Noteholders have heretofore entered into the Note Purchase Agreement dated as of November 12, 2015, as amended by that certain First Amendment dated as of October 13, 2017, that certain Second Amendment dated as of June 29, 2020, that certain Third Amendment dated as of December 10, 2020 and that certain Fourth Amendment dated as of February 18, 2021 (as amended, the “Note Purchase Agreement”).  The Company has heretofore issued (i) $60,000,000 aggregate principal amount of its 4.70% Senior Notes, Series A, due December 1, 2023 (the “Series A Notes”) and (ii) $40,000,000 aggregate principal amount of its 4.93% Senior Notes, Series B, due December 1, 2025 (the “Series B Notes” and, together with the Series A Notes, the “Notes”) pursuant to the Note Purchase Agreement.
B.The Company, the Parent REIT and the Noteholders now desire to amend the Note Purchase Agreement in the respects, but only in the respects, hereinafter set forth including certain amendments which have only been approved by the holders of Notes as set forth in Exhibit A hereto, which as a group hold more than 50% in principal amount of the Notes outstanding (the “Required Holders”).
C.Capitalized terms used herein shall have the respective meanings ascribed thereto in the Note Purchase Agreement, as amended by this Fifth Amendment, unless herein defined or the context shall otherwise require.
D.All requirements of law have been fully complied with and all other acts and things necessary to make this Fifth Amendment a valid, legal and binding instrument according to its terms for the purposes herein expressed have been done or performed.
Statement of Agreement
Now, Therefore, the Company, the Parent REIT and the Noteholders, in consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, do hereby agree as follows:










Article I 
Amendments to Note Purchase Agreement
Section 1.1.Effective upon the Fifth Amendment Effective Date (as hereinafter defined), the Parent REIT, the Company and the Required Holders agree that the Note Purchase Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double−underlined text (indicated textually in the same manner as the following example: double−underlined text) as set forth in the composite conformed copy of the Note Purchase Agreement in Section 9.12, Section 10.6, Section 10.10 and the amendments, additions and deletions of definitions in Schedule A, in each case as shown in the attached hereto as Exhibit B. For the avoidance of doubt, only the Required Holders have consented to the amendments set forth in this Section 1.1.
Section 1.2.Effective upon the Fifth Amendment Effective Date (as hereinafter defined), the Parent REIT, the Company and all Noteholders agree that the Note Purchase Agreement is hereby amended to delete the stricken text (indicated textually in the same manner as the following example: stricken text) and to add the double−underlined text (indicated textually in the same manner as the following example: double−underlined text) as set forth in the composite conformed copy of the Note Purchase Agreement in Section 8.5, Section 8.9, the deletion of Section 8.11 and the deletion of a certain corresponding definition in Schedule A, in each case as shown in the attached hereto as Exhibit B. 
Article II
Conditions to Effectiveness
Section 2.1.This Fifth Amendment shall not become effective until, and shall become effective (the “Fifth Amendment Effective Date”) when, each and every one of the following conditions shall have been satissfied:
(a)executed counterparts of this Fifth Amendment, duly executed by the Company, the Parent REIT and the Noteholders, shall have been delivered to the Noteholders;
(b)the Noteholders shall have received a duly executed and delivered copy of the amendments to each Material Credit Facility dated prior to or as of the date hereof, in form and substance reasonably satisfactory to the Noteholders;
(c)the Noteholders shall have received evidence that a copy of this Amendment (including Exhibits A and B) has been provided to counsel for the Administrative Agents under each Material Credit Facility;
(d)the Noteholders shall have received a copy of the resolutions of the Board of Directors of the Company authorizing the execution, delivery and performance by the Company of this Fifth Amendment, certified by its Secretary or an Assistant Secretary; 










(e)the Noteholders shall have received the favorable opinion of counsel to the Company as to the matters set forth in Sections 3.1(a), 3.1(b) and 3.1(c) hereof, which opinion shall be in form and substance satisfactory to the Noteholders; and
(f)the representations and warranties of the Company set forth in Section 3.1 hereof are true and correct on and with respect to the date hereof; and
(g)the Company shall have paid the fees and expenses of Chapman and Cutler LLP, counsel to the Noteholders, in connection with the negotiation, preparation, approval, execution and delivery of this Fifth Amendment.  
Article III 
Representations and Warranties of the Company
Section 3.1.To induce the Noteholders to execute and deliver this Fifth Amendment, the Company and the Parent REIT represents and warrants (which representations and warranties shall survive the execution and delivery of this Fifth Amendment), to the Noteholders that:
(a)this Fifth Amendment has been duly authorized, executed and delivered by the Company and the Parent REIT and this Fifth Amendment constitutes the legal, valid and binding obligation, contract and agreement of the Company and the Parent REIT enforceable against each in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(b)the Note Purchase Agreement and the Notes, as amended by this Fifth Amendment, constitute the legal, valid and binding obligations, contract and agreement of the Company and the Parent REIT enforceable against each in accordance with their terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws or equitable principles relating to or limiting creditors’ rights generally;
(c)the execution, delivery and performance by the Company and the Parent REIT of this Fifth Amendment (i) has been duly authorized by all requisite corporate action and, if required, shareholder action, (ii) does not require the consent or approval of any governmental or regulatory body or agency, and (iii) will not (A) violate (1) any provision of law, statute, rule or regulation or its certificate of incorporation or bylaws, (2) any order of any court or any rule, regulation or order of any other agency or government binding upon it, or (3) any provision of any indenture, agreement or other instrument to which it is a party or by which its properties or assets are or may be bound, including, without limitation, any Material Credit Facility, or (B) result in a breach or constitute (alone or with due notice or lapse of time or both) a default under any indenture, agreement or other instrument referred to in clause (iii)(A)(3) of this Section 3.1(c); 










(d)as of the date hereof and after giving effect to this Fifth Amendment, no Default or Event of Default has occurred which is continuing; and
(e)neither the Parent REIT, the Company nor any of its Subsidiaries has paid or agreed to pay any fees or other consideration to the lenders under any Material Credit Facility or any agent acting on their behalf, except for customary and usual commitment and arrangement fees and agent fees paid in connection with entering into any Material Credit Facility, and reasonable out of pocket expenses, including attorneys’ fees, incurred in connection therewith.
Article IV 
Miscellaneous
Section 4.1.This Fifth Amendment shall be construed in connection with and as part of the Note Purchase Agreement, and except as modified and expressly amended by this Fifth Amendment, all terms, conditions and covenants contained in the Note Purchase Agreement and the Notes are hereby ratified and shall be and remain in full force and effect.
Section 4.2.The Parent REIT, on behalf of each Subsidiary Guarantor (a) acknowledges and consents to all of the terms and conditions of this Fifth Amendment, (b) affirms all of its obligations under the Subsidiary Guaranty, (c) agrees that this Fifth Amendment and all documents delivered in connection herewith do not operate to reduce or discharge its obligations under the Note Purchase Agreement or the Subsidiary Guaranty, and (d) agrees that this Fifth Amendment and all documents delivered in connection herewith do not operate as a waiver of any Default or Event of Default that may exist prior to the effectiveness of this Fifth Amendment.
Section 4.3.Any and all notices, requests, certificates and other instruments executed and delivered after the execution and delivery of this Fifth Amendment may refer to the Note Purchase Agreement without making specific reference to this Fifth Amendment but nevertheless all such references shall include this Fifth Amendment unless the context otherwise requires.
Section 4.4.The descriptive headings of the various Sections or parts of this Fifth Amendment are for convenience only and shall not affect the meaning or construction of any of the provisions hereof.
Section 4.5.This Fifth Amendment shall be governed by and construed in accordance with New York law.
[Remainder of page intentionally left blank]













The execution hereof by you shall constitute a contract between us for the uses and purposes hereinabove set forth, and this Fourth Amendment may be executed in any number of counterparts, each executed counterpart constituting an original, but all together only one agreement.


Very truly yours,


PEBBLEBROOK HOTEL, L.P.,
a Delaware limited partnership


By:    PEBBLEBROOK HOTEL TRUST, a Maryland Real Estate Investment Trust, its general partner




By: /s/ Raymond D. Martz    
Name:  Raymond D. Martz
Title:  Executive Vice President and Chief
Financial Officer




PEBBLEBROOK HOTEL TRUST,
a Maryland Real Estate Investment Trust




By: /s/ Raymond D. Martz     
Name:    Raymond D. Martz
Title:    Executive Vice President and Chief Financial Officer
SIGNATURE PAGE TO
FIFTH AMENDMENT TO 2015 NOTE PURCHASE AGREEMENT 









As of the date first written above.


MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By: Barings LLC, as Investment Advisor


By:    /s/ James Moore       
Name:  James Moore 
Title:  Managing Director


YF LIFE INSURANCE INTERNATIONAL LIMITED
By: Barings LLC, as Investment Advisor


By:    /s/ James Moore       
Name:  James Moore 
Title:  Managing Director


SIGNATURE PAGE TO
FIFTH AMENDMENT TO 2015 NOTE PURCHASE AGREEMENT 








GREAT WEST LIFE & ANNUITY INSURANCE COMPANY




By:/s/ Robyn Richards    
Name:  Robyn Richards
Title:  Assistant Vice President, Investments
SIGNATURE PAGE TO
FIFTH AMENDMENT TO 2015 NOTE PURCHASE AGREEMENT






ALLIANCE LIFE INSURANCE COMPANY OF NORTH AMERICA


By: Allianz Global Investors U.S. LLC, as the authorized signatory and investment manager




By:    /s/ Lawrence Halliday    
Name:  Lawrence Halliday
Title:  Managing Director


SIGNATURE PAGE TO
FIFTH AMENDMENT TO 2015 NOTE PURCHASE AGREEMENT






THE GUARDIAN LIFE INSURANCE 
COMPANY OF AMERICA


By:    /s/ Timothy Powell    
Name:  Timothy Powell
Title:  Managing Director








SIGNATURE PAGE TO
FIFTH AMENDMENT TO 2015 NOTE PURCHASE AGREEMENT







Exhibit A
Required Holders:
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
YF LIFE INSURANCE INTERNATIONAL LIMITED
ALLIANZ LIFE INSURANCE COMPANY OF NORTH AMERICA
THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA








Exhibit B


Composite Conformed Copy of Note Purchase Agreement


Reflecting Fifth Amendment to the Note Purchase Agreement


[see attached]

















Pebblebrook Hotel, L.P.
$60,000,000 4.70% Senior Notes, Series A, due December 1, 2023


$40,000,000 4.93% Senior Notes, Series B, due December 1, 2025


______________
Note Purchase and Guarantee Agreement
______________
Dated November 12, 2015
			
	











Table of Contents
																		
	SECTION	HEADING	PAGE
						
	SECTION 1.	AUTHORIZATION OF NOTES.		1
						
	SECTION 2.	SALE AND PURCHASE OF NOTES.		1
		Section 2.1.		Purchase and Sale of Notes.		1
		Section 2.2.		Affiliate Guaranties.		2
						
	SECTION 3.	CLOSING.		2
						
	SECTION 4.	CONDITIONS TO CLOSING.		2
		Section 4.1.		Representations and Warranties.		2
		Section 4.2.		Performance; No Default.		2
		Section 4.3.		Compliance Certificates.		3
		Section 4.4.		Opinions of Counsel.		3
		Section 4.5.		Purchase Permitted By Applicable Law, Etc.		4
		Section 4.6.		Sale of Other Notes.		4
		Section 4.7.		Payment of Special Counsel Fees.		4
		Section 4.8.		Private Placement Number.		4
		Section 4.9.		Changes in Corporate Structure.		4
		Section 4.10.		Affiliate Guaranties.		4
		Section 4.11.		Funding Instructions.		4
		Section 4.12.		Proceedings and Documents.		5
						
	SECTION 5.	REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE PARENT REIT.		5
		Section 5.1.		Organization; Power and Authority.		5
		Section 5.2.		Authorization, Etc.		5
		Section 5.3.		Disclosure.		5
		Section 5.4.		Organization and Ownership of Shares of Subsidiaries; Affiliates.		6
		Section 5.5.		Financial Statements; Material Liabilities.		6
		Section 5.6.		Compliance with Laws, Other Instruments, Etc.		7
		Section 5.7.		Governmental Authorizations, Etc.		7
		Section 5.8.		Litigation; Observance of Agreements, Statutes and Orders.		7
		Section 5.9.		Taxes.		7
		Section 5.10.		Title to Property; Leases.		8
		Section 5.11.		Licenses, Permits, Etc.		8
		Section 5.12.		Compliance with ERISA.		8
		Section 5.13.		Private Offering.		9
		Section 5.14.		Use of Proceeds; Margin Regulations.		9
		Section 5.15.		Existing Indebtedness; Future Liens.		10










																		
		Section 5.16.		Foreign Assets Control Regulations, Etc.		10
		Section 5.17.		Status under Certain Statutes.		12
		Section 5.18.		Notes and Affiliate Guaranties Rank Pari Passu.		12
		Section 5.19.		Environmental Matters.		12
		Section 5.20.		REIT Status.		13
						
	SECTION 6.	REPRESENTATIONS OF THE PURCHASERS.		13
		Section 6.1.		Purchase for Investment.		13
		Section 6.2.		Source of Funds.		13
						
	SECTION 7.	INFORMATION AS TO COMPANY.		15
		Section 7.1.		Financial and Business Information.		15
		Section 7.2.		Officer’s Certificate.		17
		Section 7.3.		Visitation.		18
		Section 7.4.		Electronic Delivery.		18
						
	SECTION 8.	PAYMENT AND PREPAYMENT OF THE NOTES.		19
		Section 8.1.		Maturity.		19
		Section 8.2.		Optional Prepayments with Make‐Whole Amount.		19
		Section 8.3.		Allocation of Partial Prepayments.		20
		Section 8.4.		Maturity; Surrender, Etc.		20
		Section 8.5.		Purchase of Notes.		20
		Section 8.6.		Make‐Whole Amount.		21
		Section 8.7.		Prepayment of Notes upon Change in Control.		22
		Section 8.8.		Payments Due on Non‐Business Days.		23
		Section 8.9.		Prepayment of Notes upon Waiver Period Event.		23
		Section 8.10.		Additional Prepayment Offer upon Waiver Period Event.		24
		Section 8.11.		Waiver Period Optional Prepayment.		25
						
	SECTION 9.	AFFIRMATIVE COVENANTS.	26	25
		Section 9.1.		Compliance with Laws.	26	25
		Section 9.2.		Insurance.		26
		Section 9.3.		Maintenance of Properties.		26
		Section 9.4.		Payment of Taxes and Claims.		26
		Section 9.5.		Legal Existence, Etc.	27	26
		Section 9.6.		Notes to Rank Pari Passu.		27
		Section 9.7.		Books and Records.		27
		Section 9.8.		Subsidiary Guarantors.		27
		Section 9.9.		Most Favored Lender Status.		28
		Section 9.10.		Collateral.		29
		Section 9.11.		Note Rating.		31
						
	SECTION 10.	NEGATIVE COVENANTS.	32	31
		Section 10.1.		Transactions with Affiliates.	32	31
						
						
						
						










																		
		Section 10.2.		Merger, Consolidation, Etc.		32
		Section 10.3.		Line of Business.		33
		Section 10.4.		Terrorism Sanctions Regulations.		33
		Section 10.5.		Liens.		33
		Section 10.6.		Financial Covenants.		35
		Section 10.7.		Dispositions.	40	39
		Section 10.8.		Restricted Payments.	41	40
		Section 10.9.		Investments.	42	41
		Section 10.10.		Enhanced Negative Covenants.	44	43
						
	SECTION 11.	EVENTS OF DEFAULT.	45	44
						
	SECTION 12.	REMEDIES ON DEFAULT, ETC.	48	47
		Section 12.1.		Acceleration.	48	47
		Section 12.2.		Other Remedies.	48	47
		Section 12.3.		Rescission.	48	47
		Section 12.4.		No Waivers or Election of Remedies, Expenses, Etc.	49	48
						
	SECTION 13.	PARENT GUARANTY, ETC.	49	48
		Section 13.1.		Parent Guaranty.	49	48
		Section 13.2.		Obligations Unconditional.	50	49
		Section 13.3.		Marshalling and Accounts.	53	52
		Section 13.4.		General Limitation on Guarantee Obligations.	53	52
						
	SECTION 14.	REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.	53	52
		Section 14.1.		Registration of Notes.	53	52
		Section 14.2.		Transfer and Exchange of Notes.	54	53
		Section 14.3.		Replacement of Notes.	54	53
						
	SECTION 15.	PAYMENTS ON NOTES.	54	53
		Section 15.1.		Place of Payment.	54	53
		Section 15.2.		Home Office Payment.	55	54
						
	SECTION 16.	EXPENSES, ETC.	55	54
		Section 16.1.		Transaction Expenses.	55	54
		Section 16.2.		Survival.	56	55
						
	SECTION 17.	SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.	56	55
						
	SECTION 18.	AMENDMENT AND WAIVER.	56	55
		Section 18.1.		Requirements.	56	55
						
						
						
						










																		
		Section 18.2.		Solicitation of Holders of Notes.	56	55
		Section 18.3.		Binding Effect, Etc.	57	56
		Section 18.4.		Notes Held by Company, Etc.	57	56
						
	SECTION 19.	NOTICES.	58	57
						
	SECTION 20.	REPRODUCTION OF DOCUMENTS.	58	57
						
	SECTION 21.	CONFIDENTIAL INFORMATION.	58	57
						
	SECTION 22.	SUBSTITUTION OF PURCHASER.	60	59
						
	SECTION 23.	MISCELLANEOUS.	60	59
		Section 23.1.		Successors and Assigns.	60	59
		Section 23.2.		Accounting Terms.	60	59
		Section 23.3.		Severability.	61	60
		Section 23.4.		Construction, Etc.	61	60
		Section 23.5.		Counterparts.	61	60
		Section 23.6.		Governing Law.	62	61
		Section 23.7.		Jurisdiction and Process; Waiver of Jury Trial.	62	61
		Section 23.8.		Subordination.	62	61
						
						
						
						
						
						
						
						
						
						
						
						
						
						
						
						
						
						
						
						
						
						
						
						
						
						










																		
	Schedule A	—	Defined Terms		
						
	Schedule 1(a)	—	Form of 4.70% Senior Note, Series A, due December 1, 2023		
						
	Schedule 1(b)	—	Form of 4.93% Senior Note, Series B, due December 1, 2025		
						
	Schedule 2.2	—	Form of Subsidiary Guaranty		
						
	Schedule 4.4(a)	—	Form of Opinion of Special Counsel for the Company and the Guarantors		
						
	Schedule 4.4(b)	—	Form of Opinion of Special Counsel for the Purchasers		
						
	Schedule 5.3	—	Disclosure Materials		
						
	Schedule 5.4	—	Subsidiaries of the Company and Ownership of Subsidiary Stock		
						
	Schedule 5.5	—	Financial Statements		
						
	Schedule 5.15	—	Existing Indebtedness		
						
	Schedule B	—	Information Relating to Purchasers		
						
						
	Exhibit A	—	Liquidity Compliance Certificate		
						
	Exhibit B	—	Pledge Agreement		

















Pebblebrook Hotel, L.P.
7315 Wisconsin Ave., 1110 W
Bethesda, MD  20814


$60,000,000 4.70% Senior Notes, Series A, due December 1, 2023
$40,000,000 4.93% Senior Notes, Series B, due December 1, 2025
November 12, 2015
To Each of the Purchasers Listed in
Schedule B Hereto:


Ladies and Gentlemen:
Pebblebrook Hotel, L.P., a Delaware limited partnership (together with any successor thereto that becomes a party hereto pursuant to Section 10.2, the “Company”) and Pebblebrook, Hotel Trust, a Maryland real estate investment trust (together with its successors and assigns, the “Parent REIT”), agree with each of the Purchasers as follows:
SECTION 1.    AUTHORIZATION OF NOTES.
The Company will authorize the issue and sale of (i) $60,000,000 aggregate principal amount of its 4.70% Senior Notes, Series A, due December 1, 2023 (the “Series A Notes”) and (ii) $40,000,000 aggregate principal amount of its 4.93% Senior Notes, Series B, due December 1, 2025 (the “Series B Notes” and, together with the Series A Notes, as amended, restated or otherwise modified from time to time pursuant to Section 17 and including any such notes issued in substitution therefor pursuant to Section 13, the “Notes”).  The Series A Notes shall be substantially in the form set out in Schedule 1(a) and the Series B Notes shall be substantially in the form set out in Schedule 1(b).  Certain capitalized and other terms used in this Agreement are defined in Schedule A.  References to a “Schedule” are references to a Schedule attached to this Agreement unless otherwise specified.  References to a “Section” are references to a Section of this Agreement unless otherwise specified.
SECTION 2.    SALE AND PURCHASE OF NOTES.








Section 2.1.    Purchase and Sale of Notes.  Subject to the terms and conditions of this Agreement, the Company will issue and sell to each Purchaser and each Purchaser will purchase from the Company, at the Closing provided for in Section 3, the relevant Notes in the respective principal amount(s) and in the Series specified opposite such Purchaser’s name in Schedule B at the purchase price of 100% of the principal amount thereof.  The Purchasers’ obligations hereunder are several and not joint obligations and no Purchaser shall have any liability to any Person for the performance or non-performance of any obligation by any other Purchaser hereunder.
Section 2.2.    Affiliate Guaranties.  The payment by the Company of all amounts due with respect to the Notes and the performance by the Company of its obligations under this Agreement will be absolutely and unconditionally guaranteed by the Parent REIT pursuant to the Parent Guaranty as set forth in Section 13 and by the Subsidiary Guarantors pursuant to the Subsidiary Guaranty substantially in the form of Schedule 2.2 attached hereto and made a part hereof (the “Subsidiary Guaranty”).
SECTION 3.    CLOSING.
The execution of the Note Purchase Agreement shall occur at the office of Chapman and Cutler LLP, 111 West Monroe Street, Chicago, Illinois 60603 on November 12, 2015 (the “Execution Date”).  The sale and purchase of the Notes to be purchased by each Purchaser shall occur at the offices of at the offices of Chapman and Cutler LLP, 111 West Monroe Street, Chicago, Illinois 60603 at 10:00 A.M. Chicago time, at a closing (the “Closing”) on December 1, 2015.  At the Closing the Company will deliver to each Purchaser the Notes to be purchased by such Purchaser in the form of a single Note of each Series to be purchased by such Purchaser (or such greater number of Notes in denominations of at least $100,000 as such Purchaser may request) dated the date of the Closing and registered in such Purchaser’s name (or in the name of its nominee), against delivery by such Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor by wire transfer of immediately available funds for the account of the Company to account number Pebblebrook Hotel L.P. at U.S. Bank, N.A., Antioch, TN, ABA 064000059, Account #151203840377.  If at the Closing the Company shall fail to tender such Notes to any Purchaser as provided above in this Section 3, or any of the conditions specified in Section 4 shall not have been fulfilled to such Purchaser’s satisfaction, such Purchaser shall, at its election, be relieved of all further obligations under this Agreement, without thereby waiving any rights such Purchaser may have by reason of any of the conditions specified in Section 4 not having been fulfilled to such Purchaser’s satisfaction or such failure by the Company to tender such Notes.
SECTION 4.    CONDITIONS TO CLOSING.
Each Purchaser’s obligation to purchase and pay for the Notes to be sold to such Purchaser at the Closing is subject to the fulfillment to such Purchaser’s satisfaction, prior to or at the Closing, of the following conditions:
Section 4.1.    Representations and Warranties.  (a) The representations and warranties of the Company in this Agreement shall be correct when made and at the time of such Closing. 








(b)    The representations and warranties of the Guarantors in this Agreement and the Affiliate Guaranties, as applicable, shall be correct when made and at the time of such Closing.
Section 4.2.    Performance; No Default.  (a) The Company shall have performed and complied with all agreements and conditions contained in this Agreement required to be performed or complied with by it prior to or at the Closing and from the Execution Date to the Closing assuming that Sections 9 and 10 of this Agreement are applicable.  From the Execution Date until the Closing, before and after giving effect to the issue and sale of the Notes (and the application of the proceeds thereof as contemplated by Section 5.14), no Default, Event of Default or Change in Control shall have occurred and be continuing.  None of the Company Parties shall have entered into any transaction since the date of the Information Memorandum that would have been prohibited by Section 10 had such Section applied since such date.
(b)    Each Guarantor shall have performed and complied with all agreements and conditions contained in this Agreement and the applicable Affiliate Guaranty required to be performed and complied with by it prior to or at the Closing, and immediately after giving effect to the issue and sale of Notes at the Closing (and the application of the proceeds thereof as contemplated by Section 5.14), no Default or Event of Default shall have occurred and be continuing.  None of the Company Parties shall have entered into any transaction since the date of the Memorandum that would have been prohibited by Section 10 had such Section applied since such date.
Section 4.3.    Compliance Certificates.
(a)    Officer’s Certificate.  The Company shall have delivered to such Purchaser an Officer’s Certificate, dated the date of the Closing, certifying that the conditions specified in Sections 4.1(a), 4.2(a) and 4.9 have been fulfilled.
(b)    Guarantor Officer’s Certificate.  Each Guarantor shall have delivered to such Purchaser an Officer’s Certificate, dated the date of the Closing, certifying that the conditions specified in Section 4.1(b), 4.2(b) and 4.9 have been fulfilled.
(c)    Secretary’s Certificate.  The Company shall have delivered to such Purchaser a certificate of its Secretary or Assistant Secretary, dated the date of the Closing, certifying as to (i) the resolutions attached thereto and other entity organizational proceedings relating to the authorization, execution and delivery of the Notes and this Agreement and (ii) the Company’s Organization Documents as then in effect.
(d)    Guarantor Secretary’s Certificate.  Each Guarantor shall have delivered to such Purchaser a certificate of its Secretary or Assistant Secretary, dated the date of the Closing, certifying as to the resolutions attached thereto and other entity organizational proceedings relating to the authorization, execution and delivery of this Agreement (in the case of the Parent REIT) and the applicable Affiliate Guaranty.
(e)    Certificates.  The certificates provided under this Section 4.3 may be combined and delivered as one or more certificates.








Section 4.4.    Opinions of Counsel.  Such Purchaser shall have received opinions in form and substance satisfactory to such Purchaser, dated the date of the Closing (a) from Honigman Miller Schwartz and Cohn LLP, counsel for the Company and the Guarantors, covering the matters set forth in Schedule 4.4(a) and covering such other matters incident to the transactions contemplated hereby as such Purchaser or its counsel may reasonably request (and the Company hereby instructs its counsel to deliver such opinion to the Purchasers) and (b) from Chapman and Cutler LLP, the Purchasers’ special counsel in connection with such transactions, substantially in the form set forth in Schedule 4.4(b) and covering such other matters incident to such transactions as such Purchaser may reasonably request.
Section 4.5.    Purchase Permitted By Applicable Law, Etc.  On the date of the Closing, such Purchaser’s purchase of Notes shall (a) be permitted by the laws and regulations of each jurisdiction to which such Purchaser is subject, without recourse to provisions (such as section 1405(a)(8) of the New York Insurance Law) permitting limited investments by insurance companies without restriction as to the character of the particular investment, (b) not violate any applicable law or regulation (including, without limitation, Regulation T, U or X of the Board of Governors of the Federal Reserve System) and (c) not subject such Purchaser to any tax, penalty or liability under or pursuant to any applicable law or regulation, which law or regulation was not in effect on the Execution Date.  If requested by such Purchaser, such Purchaser shall have received an Officer’s Certificate certifying as to such matters of fact as such Purchaser may reasonably specify to enable such Purchaser to determine whether such purchase is so permitted.
Section 4.6.    Sale of Other Notes.  Contemporaneously with the Closing, the Company shall sell to each other Purchaser and each other Purchaser shall purchase the Notes to be purchased by it at the Closing as specified in Schedule B.
Section 4.7.    Payment of Special Counsel Fees.  Without limiting Section 15.1, the Company shall have paid on or before the Execution Date and the Closing the fees, charges and disbursements of the Purchasers’ special counsel referred to in Section 4.4 to the extent reflected in a statement of such counsel rendered to the Company at least one Business Day prior to  the Execution Date and the Closing.
Section 4.8.    Private Placement Number.  A Private Placement Number issued by Standard & Poor’s CUSIP Service Bureau (in cooperation with the SVO) shall have been obtained for the Notes of each Series.
Section 4.9.    Changes in Corporate Structure.  The Company Parties shall not have changed their respective jurisdiction of incorporation or organization, as applicable, or been a party to any merger or consolidation or succeeded to all or any substantial part of the liabilities of any other entity, at any time following the date of the most recent financial statements referred to in Schedule 5.5.  
Section 4.10.    Affiliate Guaranties.  The Affiliate Guaranties shall have been executed and delivered by each Guarantor and shall be in full force and effect.  








Section 4.11.    Funding Instructions.  At least three (3) Business Days prior to the date of the Closing, each Purchaser shall have received written instructions signed by a Responsible Officer on letterhead of the Company confirming the information specified in Section 3 including (i) the name and address of the transferee bank, (ii) such transferee bank’s ABA number and (iii) the account name and number into which the purchase price for the Notes is to be deposited.
Section 4.12.    Proceedings and Documents.  All corporate and other proceedings in connection with the transactions contemplated by this Agreement and all documents and instruments incident to such transactions shall be satisfactory to such Purchaser and its special counsel, and such Purchaser and its special counsel shall have received all such counterpart originals or certified or other copies of such documents as such Purchaser or such special counsel may reasonably request.
SECTION 5.    REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE PARENT REIT.
The Company and the Parent REIT represent and warrant to each Purchaser as of the Execution Date and as of the Closing that: 
Section 5.1.    Organization; Power and Authority.  The Company and the Parent REIT are each an entity duly organized, validly existing and in good standing under the laws of its jurisdiction of organization, and duly qualified as a foreign entity and in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  Each of the Company and the Parent REIT has the entity organizational power and authority to own or hold under lease the properties it purports to own or hold under lease, to transact the business it transacts and proposes to transact, to execute and deliver this Agreement, the Parent Guaranty and the Notes, as applicable and to perform the provisions hereof and thereof.  
Section 5.2.    Authorization, Etc.  This Agreement, the Affiliate Guaranties and the Notes have been duly authorized by all necessary entity organizational action on the part of the Company Parties party thereto, and this Agreement and each Affiliate Guaranty constitutes, and upon execution and delivery thereof each Note will constitute, a legal, valid and binding obligation of each Company Party party thereto, enforceable against such Company Party party thereto in accordance with its terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors’ rights generally and (ii) general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law).








Section 5.3.    Disclosure.  The Company, through its agent, U.S. Bancorp Investments, Inc. and Wells Fargo Securities LLC, has delivered to each Purchaser a copy of an Information Memorandum, dated August 2015 (the “Information Memorandum”), relating to the transactions contemplated hereby.  The Information Memorandum fairly describes, in all material respects, the general nature of the business and principal properties of the Company and its Subsidiaries.  This Agreement, the Information Memorandum, the financial statements listed in Schedule 5.5 and the documents, certificates or other writings delivered to the Purchasers by or on behalf of the Company and the Parent REIT prior to September 9, 2015 in connection with the transactions contemplated hereby and identified in Schedule 5.3 (this Agreement, the Memorandum and such documents, certificates or other writings and such financial statements delivered to each Purchaser being referred to, collectively, as the “Disclosure Documents”), taken as a whole, do not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading in light of the circumstances under which they were made.  No representation is made as to any projections included in the Disclosure Documents other than that such projections are based on information that the Company and the Parent REIT believed to be accurate as of the date of preparation and were calculated in a manner the Company and the Parent REIT believe to be reasonable.  Except as disclosed in the Disclosure Documents, since December 31, 2014, there has been no change in the financial condition, operations, business, properties or prospects of the Company Parties, taken as a whole, except changes that could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  There is no fact known to the Company or the Parent REIT that could reasonably be expected to have a Material Adverse Effect that has not been set forth herein or in the Disclosure Documents.
Section 5.4.    Organization and Ownership of Shares of Subsidiaries; Affiliates.   (a)  Schedule 5.4 contains (except as noted therein) complete and correct lists of (i) the Company Parties as of the date of the Closing showing, as to each Subsidiary, the name thereof, the jurisdiction of its organization, and the percentage of shares of each class of its capital stock or similar equity interests outstanding owned by each Company Party, (ii) the Parent REIT’s and the Company’s Affiliates, other than Subsidiaries, and (iii) the Parent REIT’s and the Company’s directors and senior officers.
(b)    All of the outstanding shares of capital stock or similar equity interests of each Subsidiary shown in Schedule 5.4 as being owned by the Company Parties have been validly issued, are fully paid and non-assessable and are owned by such Company Party or another Subsidiary free and clear of any Lien that is prohibited by this Agreement.








(c)    Each Subsidiary is a corporation or other legal entity duly organized, validly existing and, where applicable, in good standing under the laws of its jurisdiction of organization, and is duly qualified as a foreign corporation or other legal entity and, where applicable, is in good standing in each jurisdiction in which such qualification is required by law, other than those jurisdictions as to which the failure to be so qualified or in good standing could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  Each such Subsidiary has the corporate or other power and authority to own or hold under lease the properties it purports to own or hold under lease and to transact the business it transacts and proposes to transact.
(d)    No Subsidiary is subject to any legal, regulatory, contractual or other restriction (other than the agreements listed on Schedule 5.4 and customary limitations imposed by corporate law or similar statutes) restricting the ability of such Subsidiary to pay dividends out of profits or make any other similar distributions of profits to the Parent REIT or the Company or any of their respective Subsidiaries that owns outstanding shares of capital stock or similar equity interests of such Subsidiary.
Section 5.5.    Financial Statements; Material Liabilities.  The Parent REIT and the Company have delivered to each Purchaser copies of the financial statements of the Parent REIT and its Subsidiaries listed on Schedule 5.5.  All of such financial statements (including in each case the related schedules and notes) fairly present in all material respects the consolidated financial position of the Company Parties as of the respective dates specified in such Schedule and the consolidated results of their operations and cash flows for the respective periods so specified and have been prepared in accordance with GAAP consistently applied throughout the periods involved except as set forth in the notes thereto (subject, in the case of any interim financial statements, to normal year-end adjustments).  The Company Parties do not have any Material liabilities that are not disclosed in the Disclosure Documents.
Section 5.6.    Compliance with Laws, Other Instruments, Etc.  The execution, delivery and performance by the Company Parties of this Agreement, the Affiliate Guaranties and the Notes to which they are a party, will not (i) contravene, result in any breach of, or constitute a default under, or result in the creation of any Lien in respect of any property of any Company Party under, any indenture, mortgage, deed of trust, loan, purchase or credit agreement, lease, corporate charter or by-laws, shareholders agreement or any other agreement or instrument to which any Company Party is bound or by which any Company Party or any of their respective properties may be bound or affected, (ii) conflict with or result in a breach of any of the terms, conditions or provisions of any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority applicable to any Company Party or any Subsidiary or (iii) violate any provision of any statute or other rule or regulation of any Governmental Authority applicable to any Company Party. 
Section 5.7.    Governmental Authorizations, Etc.  No consent, approval or authorization of, or registration, filing or declaration with, any Governmental Authority is required in connection with the execution, delivery or performance by the Company Parties of this Agreement, the Affiliate Guaranties or the Notes, as applicable.








Section 5.8.    Litigation; Observance of Agreements, Statutes and Orders.  (a) There are no actions, suits, investigations or proceedings pending or, to the best knowledge of the Parent REIT or the Company, threatened against or affecting any Company Party or any property of the Company Parties in any court or before any arbitrator of any kind or before or by any Governmental Authority that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
(b)    No Company Party is (i) in default under any agreement or instrument to which it is a party or by which it is bound, (ii) in violation of any order, judgment, decree or ruling of any court, arbitrator or Governmental Authority or (iii) in violation of any applicable law, ordinance, rule or regulation of any Governmental Authority (including, without limitation, Environmental Laws, the USA PATRIOT Act or any of the other laws and regulations that are referred to in Section 5.16), which default or violation could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 5.9.    Taxes.  Each Company Party has filed all tax returns that are required to have been filed in any jurisdiction, and have paid all taxes shown to be due and payable on such returns and all other taxes and assessments levied upon them or their properties, assets, income or franchises, to the extent such taxes and assessments have become due and payable and before they have become delinquent, except for any taxes and assessments (i) the amount of which, individually or in the aggregate, is not Material or (ii) the amount, applicability or validity of which is currently being contested in good faith by appropriate proceedings and with respect to which a Company Party has established adequate reserves in accordance with GAAP.  Neither the Parent REIT nor the Company knows of any basis for any other tax or assessment that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.  The charges, accruals and reserves on the books of the Company Parties in respect of U.S. federal, state or other taxes for all fiscal periods are adequate.  The U.S. federal income tax liabilities of the Company Parties have been finally determined (whether by reason of completed audits or the statute of limitations having run) for all fiscal years up to and including the fiscal year ended 2011.
Section 5.10.    Title to Property; Leases.  The Company Parties have good and sufficient title to their respective properties that individually or in the aggregate are Material, including all such properties reflected in the most recent audited balance sheet referred to in Section 5.5 or purported to have been acquired by the Company Parties after such date (except as sold or otherwise disposed of in the ordinary course of business), in each case free and clear of Liens prohibited by this Agreement.  All leases that individually or in the aggregate are Material are valid and subsisting and are in full force and effect except where the failure to be in full force and effect could not reasonably be expected to have a Material Adverse Effect. 
Section 5.11.    Licenses, Permits, Etc.  (a) The Company Parties own or possess all licenses, permits, franchises, authorizations, patents, copyrights, proprietary software, service marks, trademarks and trade names, or rights thereto, that individually or in the aggregate are Material, without known conflict with the rights of others.








(b)    To the best knowledge of the Parent REIT and the Company, no product or service of any Company Party infringes in any material respect any license, permit, franchise, authorization, patent, copyright, proprietary software, service mark, trademark, trade name or other right owned by any other Person.
(c)    To the best knowledge of the Parent REIT and the Company, there is no Material violation by any Person of any right of any Company Party with respect to any patent, copyright, proprietary software, service mark, trademark, trade name or other right owned or used by any Company Party.
Section 5.12.    Compliance with ERISA.  (a)  Each Company Party and each ERISA Affiliate have operated and administered each Plan in compliance with all applicable laws except for such instances of noncompliance as have not resulted in and could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.  No Company Party nor any ERISA Affiliate has incurred any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans (as defined in section 3 of ERISA), and no event, transaction or condition has occurred or exists that could, individually or in the aggregate, reasonably be expected to result in the incurrence of any such liability by any Company Party or any ERISA Affiliate, or in the imposition of any Lien on any of the rights, properties or assets of any Company Party or any ERISA Affiliate, in either case pursuant to Title I or IV of ERISA or to section 430(k) of the Code or to any such penalty or excise tax provisions under the Code or federal law or section 4068 of ERISA or by the granting of a security interest in connection with the amendment of a Plan, other than such liabilities or Liens as would not be individually or in the aggregate Material.
(b)    Neither the Company, the Parent REIT nor their respective ERISA Affiliates maintain or contribute to any Plan that is subject to Title IV of ERISA.
(c)    Each Company Party and their ERISA Affiliates have not incurred withdrawal liabilities (and are not subject to contingent withdrawal liabilities) under section 4201 or 4204 of ERISA in respect of Multiemployer Plans that individually or in the aggregate are Material.
(d)    The expected postretirement benefit obligation (determined as of the last day of the Parent REIT’s most recently ended fiscal year in accordance with Financial Accounting Standards Board Accounting Standards Codification Topic 715-60, without regard to liabilities attributable to continuation coverage mandated by section 4980B of the Code) of the Company Parties is not Material.
(e)    The execution and delivery of this Agreement and the issuance and sale of the Notes hereunder will not involve any transaction that is subject to the prohibitions of section 406 of ERISA or in connection with which a tax could be imposed pursuant to section 4975(c)(1)(A)-(D) of the Code.  The representation by the Parent REIT and the Company to each Purchaser in the first sentence of this Section 5.12(e) is made in reliance upon and subject to the accuracy of such Purchaser’s representation in Section 6.2 as to the sources of the funds to be used to pay the purchase price of the Notes to be purchased by such Purchaser.








Section 5.13.    Private Offering.  Neither the Parent REIT, the Company nor anyone acting on its or their behalf has offered the Notes, Affiliate Guaranties or any similar Securities for sale to, or solicited any offer to buy the Notes or any similar Securities from, or otherwise approached or negotiated in respect thereof with, any Person other than the Purchasers and not more than twelve (12) other Institutional Investors, each of which has been offered the Notes and the Affiliate Guaranties at a private sale for investment.  Neither the Parent REIT, the Company nor anyone acting on its or their behalf has taken, or will take, any action that would subject the issuance or sale of the Notes to the registration requirements of section 5 of the Securities Act or to the registration requirements of any Securities or blue sky laws of any applicable jurisdiction.
Section 5.14.    Use of Proceeds; Margin Regulations.  The Company will apply the proceeds of the sale of the Notes hereunder to reduce outstanding indebtedness under the Bank of America Credit Facility and for general corporate purposes.  No part of the proceeds from the sale of the Notes hereunder will be used, directly or indirectly, for the purpose of buying or carrying any margin stock within the meaning of Regulation U of the Board of Governors of the Federal Reserve System (12 CFR 221), or for the purpose of buying or carrying or trading in any Securities under such circumstances as to involve the Company in a violation of Regulation X of said Board (12 CFR 224) or to involve any broker or dealer in a violation of Regulation T of said Board (12 CFR 220).  Margin stock does not constitute more than 5% of the value of the consolidated assets of the Company Parties and the Parent REIT does not have any present intention that margin stock will constitute more than 5% of the value of such assets.  As used in this Section, the terms “margin stock” and “purpose of buying or carrying” shall have the meanings assigned to them in said Regulation U.
Section 5.15.    Existing Indebtedness; Future Liens.  (a)    Except as described therein, Schedule 5.15 sets forth a complete and correct list of all outstanding Indebtedness of the Company Parties as of September 30, 2015 (including descriptions of the obligors and obligees, principal amounts outstanding, any collateral therefor and any Guaranties thereof), since which date there has been no Material change in the amounts, interest rates, sinking funds, installment payments or maturities of such Indebtedness.  No Company Party is in default and no waiver of default is currently in effect, in the payment of any principal or interest on any Indebtedness of the Company Party and no event or condition exists with respect to any Indebtedness of the Company Parties that would permit (or that with notice or the lapse of time, or both, would permit) one or more Persons to cause such Indebtedness to become due and payable before its stated maturity or before its regularly scheduled dates of payment.
(b)    Except as disclosed in Schedule 5.15, none of the Company Parties has agreed or consented to cause or permit any of its property, whether now owned or hereafter acquired, to be subject to a Lien that secures Indebtedness or to cause or permit in the future (upon the happening of a contingency or otherwise) any of its property, whether now owned or hereafter acquired, to be subject to a Lien that secures Indebtedness.








(c)    None of the Company Parties is a party to, or otherwise subject to any provision contained in, any instrument evidencing Indebtedness of the Company Party, any agreement relating thereto or any other agreement (including, but not limited to, its charter or other Organization Document) which limits the amount of, or otherwise imposes restrictions on the incurring of, Indebtedness of the Company, except as disclosed in Schedule 5.15.
Section 5.16.    Foreign Assets Control Regulations, Etc.  (a) Neither any Company Party nor any Controlled Entity is (i) a Person whose name appears on the list of Specially Designated Nationals and Blocked Persons published by the Office of Foreign Assets Control, United States Department of the Treasury (“OFAC”) (an “OFAC Listed Person”) (ii) an agent, department, or instrumentality of, or is otherwise beneficially owned by, controlled by or acting on behalf of, directly or indirectly, (x) any OFAC Listed Person or (y) any Person, entity, organization, foreign country or regime that is subject to any OFAC Sanctions Program, or (iii) otherwise blocked, subject to sanctions under or engaged in any activity in violation of other United States economic sanctions, including but not limited to, the Trading with the Enemy Act, the International Emergency Economic Powers Act, the Comprehensive Iran Sanctions, Accountability and Divestment Act (“CISADA”) or any similar law or regulation with respect to Iran or any other country, the Sudan Accountability and Divestment Act, any OFAC Sanctions Program, or any economic sanctions regulations administered and enforced by the United States or any enabling legislation or executive order relating to any of the foregoing (collectively, “U.S. Economic Sanctions”) (each OFAC Listed Person and each other Person, entity, organization and government of a country described in clause (i), clause (ii) or clause (iii), a “Blocked Person”).  Neither a Company Party nor any Controlled Entity has been notified that its name appears or may in the future appear on a state list of Persons that engage in investment or other commercial activities in Iran or any other country that is subject to U.S. Economic Sanctions.
(b)    No part of the proceeds from the sale of the Notes hereunder constitutes or will constitute funds obtained on behalf of any Blocked Person or will otherwise be used by a Company Party or any Controlled Entity, directly or indirectly, (i) in connection with any investment in, or any transactions or dealings with, any Blocked Person, or (ii) otherwise in violation of U.S. Economic Sanctions.








(c)    Neither any Company Party nor any Controlled Entity (i) has been found in violation of, charged with, or convicted of, money laundering, drug trafficking, terrorist-related activities or other money laundering predicate crimes under the Currency and Foreign Transactions Reporting Act of 1970 (otherwise known as the Bank Secrecy Act), the USA PATRIOT Act or any other United States law or regulation governing such activities (collectively, “Anti-Money Laundering Laws”) or any U.S. Economic Sanctions violations, (ii) to the Parent REIT’s and the Company’s actual knowledge after making due inquiry, is under investigation by any Governmental Authority for possible violation of Anti-Money Laundering Laws or any U.S. Economic Sanctions violations, (iii) has been assessed civil penalties under any Anti-Money Laundering Laws or any U.S. Economic Sanctions, or (iv) has had any of its funds seized or forfeited in an action under any Anti-Money Laundering Laws.  The Company Parties have established procedures and controls which they reasonably believe are adequate (and otherwise comply with applicable law) to ensure that each Company Party and each Controlled Entity is and will continue to be in compliance with all applicable current and future Anti-Money Laundering Laws and U.S. Economic Sanctions.
(d)    (1) Neither any Company Party nor any Controlled Entity (i) has been charged with, or convicted of bribery or any other anti-corruption related activity under any applicable law or regulation in a U.S. or any non-U.S. country or jurisdiction, including but not limited to, the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010 (collectively, “Anti-Corruption Laws”), (ii) to the Parent REIT and the Company’s actual knowledge after making due inquiry, is under investigation by any U.S. or non-U.S. Governmental Authority for possible violation of Anti-Corruption Laws, (iii) has been assessed civil or criminal penalties under any Anti-Corruption Laws or (iv) has been or is the target of sanctions imposed by the United Nations or the European Union; 
(2)    To the Parent REIT and the Company’s actual knowledge, no Company Party nor any Controlled Entity has, within the last five years, directly or indirectly offered, promised, given, paid or authorized the offer, promise, giving or payment of anything of value to a Governmental Official or a commercial counterparty for the purposes of: (i) influencing any act, decision or failure to act by such Governmental Official in his or her official capacity or such commercial counterparty, (ii) inducing a Governmental Official to do or omit to do any act in violation of the Governmental Official’s lawful duty, or (iii) inducing a Governmental Official or a commercial counterparty to use his or her influence with a government or instrumentality to affect any act or decision of such government or entity; in each case in order to obtain, retain or direct business or to otherwise secure an improper advantage in violation of any applicable law or regulation or which would cause any holder to be in violation of any law or regulation applicable to such holder; and








(3)    No part of the proceeds from the sale of the Notes hereunder will be used, directly or indirectly, for any improper payments, including bribes, to any Governmental Official or commercial counterparty in order to obtain, retain or direct business or obtain any improper advantage.  Each Company Party has established procedures and controls which it reasonably believes are adequate (and otherwise comply with applicable law) to ensure that each Company Party and each Controlled Entity is and will continue to be in compliance with all applicable current and future Anti-Corruption Laws.
Section 5.17.    Status under Certain Statutes.  No Company Party is subject to regulation under the Investment Company Act of 1940, as amended, the Public Utility Holding Company Act of 2005, as amended, the ICC Termination Act of 1995, as amended, or the Federal Power Act, as amended.
Section 5.18.    Notes and Affiliate Guaranties Rank Pari Passu.  The obligations of the Company under this Agreement and the Notes and the obligations of each Guarantor under their respective Affiliate Guaranties rank at least pari passu in right of payment with all other unsecured Senior Indebtedness of the Company or such Guarantor, as the case may be, including, without limitation, all unsecured Senior Indebtedness of the Company or such Guarantor, as the case may be, described in Schedule 5.15 hereto.
Section 5.19.    Environmental Matters.  (a) No Company Party has knowledge of any claim or has received any notice of any claim and no proceeding has been instituted asserting any claim against the Company Party or any of its respective real properties or other assets now or formerly owned, leased or operated by any of them, alleging any damage to the environment or violation of any Environmental Laws, except, in each case, such as could not reasonably be expected to result in a Material Adverse Effect. 
(b)    No Company Party has knowledge of any facts which would give rise to any claim, public or private, of violation of Environmental Laws or damage to the environment emanating from, occurring on or in any way related to real properties now or formerly owned, leased or operated by any of them or to other assets or their use, except, in each case, such as could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(c)    No Company Party has stored any Hazardous Materials on real properties now or formerly owned, leased or operated by any of them in a manner which is contrary to any Environmental Law that could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
(d)    No Company Party has disposed of any Hazardous Materials in a manner which is contrary to any Environmental Law that could, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.








(e)    All buildings on all real properties now owned, leased or operated by a Company Party are in compliance with applicable Environmental Laws, except where failure to comply could not, individually or in the aggregate, reasonably be expected to result in a Material Adverse Effect.
Section 5.20.    REIT Status.  The Parent REIT is qualified as a REIT and the Company is qualified as a REIT, a partnership or a disregarded entity (in each case, for federal income tax purposes), a TRS or a QRS, and each of their Subsidiaries that is a corporation is either a TRS or a QRS.  As of the Closing, the Subsidiaries of the Parent REIT and the Company that are taxable REIT subsidiaries, as such term is used in the Code, are identified on Schedule 5.4.
SECTION 6.    REPRESENTATIONS OF THE PURCHASERS.
Section 6.1.    Purchase for Investment.  Each Purchaser severally represents that it is purchasing the Notes for its own account or for one or more separate accounts maintained by such Purchaser or for the account of one or more pension or trust funds and not with a view to the distribution thereof, provided that the disposition of such Purchaser’s or their property shall at all times be within such Purchaser’s or their control.  Each Purchaser understands that the Notes have not been registered under the Securities Act and may be resold only if registered pursuant to the provisions of the Securities Act or if an exemption from registration is available, except under circumstances where neither such registration nor such an exemption is required by law, and that the Company is not required to register the Notes.
Section 6.2.    Source of Funds.  Each Purchaser severally represents that at least one of the following statements is an accurate representation as to each source of funds (a “Source”) to be used by such Purchaser to pay the purchase price of the Notes to be purchased by such Purchaser hereunder:
(a)    the Source is an “insurance company general account” (as the term is defined in the United States Department of Labor’s Prohibited Transaction Exemption (“PTE”) 95-60) in respect of which the reserves and liabilities (as defined by the annual statement for life insurance companies approved by the NAIC (the “NAIC Annual Statement”)) for the general account contract(s) held by or on behalf of any employee benefit plan together with the amount of the reserves and liabilities for the general account contract(s) held by or on behalf of any other employee benefit plans maintained by the same employer (or affiliate thereof as defined in PTE 95-60) or by the same employee organization in the general account do not exceed 10% of the total reserves and liabilities of the general account (exclusive of separate account liabilities) plus surplus as set forth in the NAIC Annual Statement filed with such Purchaser’s state of domicile; or
(b)    the Source is a separate account that is maintained solely in connection with such Purchaser’s fixed contractual obligations under which the amounts payable, or credited, to any employee benefit plan (or its related trust) that has any interest in such separate account (or to any participant or beneficiary of such plan (including any annuitant)) are not affected in any manner by the investment performance of the separate account; or








(c)    the Source is either (i) an insurance company pooled separate account, within the meaning of PTE 90-1 or (ii) a bank collective investment fund, within the meaning of the PTE 91-38 and, except as disclosed by such Purchaser to the Company in writing pursuant to this clause (c), no employee benefit plan or group of plans maintained by the same employer or employee organization beneficially owns more than 10% of all assets allocated to such pooled separate account or collective investment fund; or
(d)    the Source constitutes assets of an “investment fund” (within the meaning of Part VI of PTE 84-14 (the “QPAM Exemption”)) managed by a “qualified professional asset manager” or “QPAM” (within the meaning of Part VI of the QPAM Exemption), no employee benefit plan’s assets that are managed by the QPAM in such investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization and managed by such QPAM, represent more than 20% of the total client assets managed by such QPAM, the conditions of Part I(c) and (g) of the QPAM Exemption are satisfied, neither the QPAM nor a person controlling or controlled by the QPAM maintains an ownership interest in the Company that would cause the QPAM and the Company to be “related” within the meaning of Part VI(h) of the QPAM Exemption and (i) the identity of such QPAM and (ii) the names of any employee benefit plans whose assets in the investment fund, when combined with the assets of all other employee benefit plans established or maintained by the same employer or by an affiliate (within the meaning of Part VI(c)(1) of the QPAM Exemption) of such employer or by the same employee organization, represent 10% or more of the assets of such investment fund, have been disclosed to the Company in writing pursuant to this clause (d); or
(e)    the Source constitutes assets of a “plan(s)” (within the meaning of Part IV(h) of PTE 96-23 (the “INHAM Exemption”)) managed by an “in-house asset manager” or “INHAM” (within the meaning of Part IV(a) of the INHAM Exemption), the conditions of Part I(a), (g) and (h) of the INHAM Exemption are satisfied, neither the INHAM nor a person controlling or controlled by the INHAM (applying the definition of “control” in Part IV(d)(3) of the INHAM Exemption) owns a 10% or more interest in the Company and (i) the identity of such INHAM and (ii) the name(s) of the employee benefit plan(s) whose assets constitute the Source have been disclosed to the Company in writing pursuant to this clause (e); or
(f)    the Source is a governmental plan; or
(g)    the Source is one or more employee benefit plans, or a separate account or trust fund comprised of one or more employee benefit plans, each of which has been identified to the Company in writing pursuant to this clause (g); or
(h)    the Source does not include assets of any employee benefit plan, other than a plan exempt from the coverage of ERISA.
As used in this Section 6.2, the terms “employee benefit plan,” “governmental plan,” and “separate account” shall have the respective meanings assigned to such terms in section 3 of ERISA.








SECTION 7.    INFORMATION AS TO COMPANY.
Section 7.1.    Financial and Business Information.  The Company shall deliver to each Purchaser and each holder of a Note that is an Institutional Investor: 
(a)    Quarterly Statements — within forty-five (45) days (or such shorter period as is the earlier of (x) fifteen (15) days greater than the period applicable to the filing of the Parent REIT’s Quarterly Report on Form 10-Q (the “Form 10-Q”) with the SEC regardless of whether the Parent REIT is subject to the filing requirements thereof and (y) the date by which such financial statements are required to be delivered under any Material Credit Facility or the date on which such corresponding financial statements are delivered under any Material Credit Facility if such delivery occurs earlier than such required delivery date) after the end of each quarterly fiscal period in each fiscal year of the Parent REIT (other than the last quarterly fiscal period of each such fiscal year), duplicate copies of,
(i)    a consolidated balance sheet of the Company Parties as at the end of such quarter, and
(ii)    consolidated statements of income, changes in shareholders’ equity and cash flows of the Company Parties, for such quarter and (in the case of the second and third quarters) for the portion of the fiscal year ending with such quarter,
setting forth in each case in comparative form the figures for the corresponding periods in the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP applicable to quarterly financial statements generally, and certified by a Senior Financial Officer as fairly presenting, in all material respects, the financial position of the companies being reported on and their results of operations and cash flows, subject to changes resulting from year-end adjustments, provided that delivery within the time period specified above of copies of the Parent REIT’s Form 10-Q prepared in compliance with the requirements therefor and filed with the SEC shall be deemed to satisfy the requirements of this Section 7.1(a);
(b)    Annual Statements — within ninety (90) days (or such shorter period as is the earlier of (x) fifteen (15) days greater than the period applicable to the filing of the Parent REIT’s Annual Report on Form 10-K (the “Form 10-K”) with the SEC regardless of whether the Parent REIT is subject to the filing requirements thereof and (y) the date by which such financial statements are required to be delivered under any Material Credit Facility or the date on which such corresponding financial statements are delivered under any Material Credit Facility if such delivery occurs earlier than such required delivery date) after the end of each fiscal year of the Parent REIT, duplicate copies of
(i)    a consolidated balance sheet of the Company Parties as at the end of such year, and
(ii)    consolidated statements of income, changes in shareholders’ equity and cash flows of the Company Parties for such year,








setting forth in each case in comparative form the figures for the previous fiscal year, all in reasonable detail, prepared in accordance with GAAP, and accompanied by an opinion thereon (without a “going concern” or similar qualification or exception and without any qualification or exception as to the scope of the audit on which such opinion is based) of independent public accountants of recognized national standing, which opinion shall state that such financial statements present fairly, in all material respects, the financial position of the companies being reported upon and their results of operations and cash flows and have been prepared in conformity with GAAP, and that the examination of such accountants in connection with such financial statements has been made in accordance with generally accepted auditing standards, and that such audit provides a reasonable basis for such opinion in the circumstances, provided that the delivery within the time period specified above of the Parent REIT’s Form 10-K for such fiscal year (together with the Parent REIT’s annual report to shareholders, if any, prepared pursuant to Rule 14a-3 under the Securities Exchange Act of 1934) prepared in accordance with the requirements therefor and filed with the SEC, shall be deemed to satisfy the requirements of this Section 7.1(b);
(c)    SEC and Other Reports — promptly upon their becoming available, one copy of (i) each financial statement, report, notice or proxy statement sent by any Company Party to its principal lending banks as a whole (excluding information sent to such banks in the ordinary course of administration of a bank facility, such as information relating to pricing and borrowing availability) or to its public Securities holders generally, and (ii) each regular or periodic report, each registration statement (without exhibits except as expressly requested by such Purchaser or holder), and each prospectus and all amendments thereto filed by any Company Party with the SEC and of all press releases and other statements made available generally by any Company Party to the public concerning developments that are Material; 
(d)    Notice of Default or Event of Default — promptly, and in any event within five days after a Responsible Officer becoming aware of the existence of any Default or Event of Default or that any Person has given any notice or taken any action with respect to a claimed default hereunder or that any Person has given any notice or taken any action with respect to a claimed default of the type referred to in Section 11(f), a written notice specifying the nature and period of existence thereof and what action the Company is taking or proposes to take with respect thereto;
(e)    ERISA Matters — promptly, and in any event within five days after a Responsible Officer becoming aware of any of the following, a written notice setting forth the nature thereof and the action, if any, that the Company or an ERISA Affiliate proposes to take with respect thereto:
(i)    with respect to any Plan, any reportable event, as defined in section 4043(c) of ERISA and the regulations thereunder, for which notice thereof has not been waived pursuant to such regulations as in effect on the Execution Date; or








(ii)    the taking by the PBGC of steps to institute, or the threatening by the PBGC of the institution of, proceedings under section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any Plan, or the receipt by the Parent REIT, the Company or any ERISA Affiliate of a notice from a Multiemployer Plan that such action has been taken by the PBGC with respect to such Multiemployer Plan; or
(iii)    any event, transaction or condition that could result in the incurrence of any liability by the Parent REIT, the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, or in the imposition of any Lien on any of the rights, properties or assets of the Company or any ERISA Affiliate pursuant to Title I or IV of ERISA or such penalty or excise tax provisions, if such liability or Lien, taken together with any other such liabilities or Liens then existing, could reasonably be expected to have a Material Adverse Effect; 
(f)    Notices from Governmental Authority — promptly, and in any event within 30 days of receipt thereof, copies of any notice to any Company Party from any federal or state Governmental Authority relating to any order, ruling, statute or other law or regulation that could reasonably be expected to have a Material Adverse Effect;
(g)    Resignation or Replacement of Auditors — within ten days following the date on which the Parent REIT’s or the Company’s auditors resign or the Parent REIT or the Company elects to change auditors, as the case may be, notification thereof, together with such supporting information as the Required Holders may request; and
(h)    Requested Information — with reasonable promptness, such other data and information relating to the business, operations, affairs, financial condition, assets or properties of the Company Parties (including, but without limitation, actual copies of the Parent REIT’s Form 10-Q and Form 10-K) or relating to the ability of the Company to perform its obligations hereunder and under the Notes as from time to time may be reasonably requested by any such Purchaser or holder of a Note.
(i)    Waiver Period Reporting — not later than seven (7) Business Days after the last Business Day of each month during the Waiver Period, a Liquidity Compliance Certificate signed by the chief executive officer, chief financial officer, treasurer or controller of the Parent REIT (which delivery may, unless any Purchaser or holder of a Note that is an Institutional Investor requests executed originals, be by electronic communication including fax or email and shall be deemed to be an original authentic counterpart thereof for all purposes), together with documentation reasonably satisfactory to any Purchaser or holder of a Note that is an Institutional Investor to verify the calculations set forth in such certificate.
Section 7.2.    Officer’s Certificate.  Each set of financial statements delivered to a Purchaser or a holder of a Note pursuant to Section 7.1(a) or Section 7.1(b) shall be accompanied by a certificate of a Senior Financial Officer:








(a)    Covenant Compliance — setting forth the information from such financial statements that is required in order to establish whether the Parent REIT and the Company were in compliance with the requirements of Section 10.6 during the quarterly or annual period covered by the statements then being furnished (including with respect to each such provision that involves mathematical calculations, the information from such financial statements that is required to perform such calculations), and detailed calculations of the maximum or minimum amount, ratio or percentage, as the case may be, permissible under the terms of such Section, and the calculation of the amount, ratio or percentage then in existence.  In the event that any Company Party has made an election to measure any financial liability using fair value (which election is being disregarded for purposes of determining compliance with this Agreement pursuant to Section 23.2(a)) as to the period covered by any such financial statement, such Senior Financial Officer’s certificate as to such period shall include a reconciliation from GAAP with respect to such election; and
(b)    Event of Default — certifying that such Senior Financial Officer has reviewed the relevant terms hereof and has made, or caused to be made, under his or her supervision, a review of the transactions and conditions of the Company Parties from the beginning of the quarterly or annual period covered by the statements then being furnished to the date of the certificate and that such review shall not have disclosed the existence during such period of any condition or event that constitutes a Default or an Event of Default or, if any such condition or event existed or exists (including, without limitation, any such event or condition resulting from the failure of any Company Party to comply with any Environmental Law), specifying the nature and period of existence thereof and what action the Company shall have taken or proposes to take with respect thereto.
Section 7.3.    Visitation.  The Parent REIT and the Company shall permit the representatives of each Purchaser and each holder of a Note that is an Institutional Investor:
(a)    No Default — if no Default or Event of Default then exists, at the expense of such Purchaser or holder and upon reasonable prior notice to the Parent REIT and the Company, to visit the principal executive office of the Parent REIT and the Company, to discuss the affairs, finances and accounts of the Company Parties with the Parent REIT’s and the Company’s officers, and (with the consent of the Parent REIT, which consent will not be unreasonably withheld and presence of the Parent REIT if requested by the Parent REIT) its independent public accountants, and (with the consent of the Parent REIT, which consent will not be unreasonably withheld) to visit the other offices and properties of the Company Parties, all at such reasonable times and as often as may be reasonably requested in writing; and








(b)    Default — if a Default or Event of Default then exists, at the expense of the Parent REIT and the Company to visit and inspect any of the offices or properties of the Company Parties, to examine all their respective books of account, records, reports and other papers, to make copies and extracts therefrom, and to discuss their respective affairs, finances and accounts with their respective officers and independent public accountants (and by this provision each of the Parent REIT and the Company authorizes said accountants to discuss the affairs, finances and accounts of the Company Parties), all at such times and as often as may be requested.
Section 7.4.    Electronic Delivery.  Financial statements, opinions of independent certified public accountants, other information and Officer’s Certificates that are required to be delivered by the Parent REIT or the Company pursuant to Sections 7.1(a), (b) or (c) and Section 7.2 shall be deemed to have been delivered if the Parent REIT or the Company, as the case may be, satisfies any of the following requirements with respect thereto:
(i)    such financial statements satisfying the requirements of Section 7.1(a) or (b) and related Officer’s Certificate satisfying the requirements of Section 7.2 are delivered to each Purchaser or holder of a Note by e-mail; 
(ii)    the Parent REIT or the Company, as the case may be, shall have timely filed such Form 10-Q or Form 10-K, satisfying the requirements of Section 7.1(a) or Section 7.1(b), as the case may be, with the SEC on EDGAR and shall have made such form and the related Officer’s Certificate satisfying the requirements of Section 7.2 available on its home page on the internet, which is located at http://pebblebrookhotels.com as of the Execution Date; 
(iii)    such financial statements satisfying the requirements of Section 7.1(a) or Section 7.1(b) and related Officer’s Certificate(s) satisfying the requirements of Section 7.2 are timely posted by or on behalf of the Parent REIT or the Company, as the case may be, on IntraLinks or on any other similar website to which each Purchaser or holder of Notes has free access; or 
(iv)    the Parent REIT or the Company, as the case may be, shall have filed any of the items referred to in Section 7.1(c) with the SEC on EDGAR and shall have made such items available on its home page on the internet or on IntraLinks or on any other similar website to which each Purchaser or holder of Notes has free access;
or the Company, as the case may be, provided however, that in the case of any of clauses (ii), (iii) or (iv), the Parent REIT shall have given each Purchaser and each holder of a Note prior written notice, which may be by e-mail or in accordance with Section 19, of such posting or filing in connection with each delivery, provided further, that upon request of any Purchaser or holder to receive paper copies of such forms, financial statements and Officer’s Certificates or to receive them by e-mail, the Parent REIT or the Company, as the case may be, will promptly e-mail them or deliver such paper copies, as the case may be, to such Purchaser or holder.  
SECTION 8.    PAYMENT AND PREPAYMENT OF THE NOTES.








Section 8.1.    Maturity.  As provided therein, the entire unpaid principal balance of each Note shall be due and payable on the Maturity Date thereof.
Section 8.2.    Optional Prepayments with Make-Whole Amount.  (a) The Company may, at its option, upon notice as provided below, prepay at any time all, or from time to time any part of, the Notes of any Series, in an amount not less than 10% of the aggregate principal amount of the Notes of any Series to be prepaid then outstanding in the case of a partial prepayment, at 100% of the principal amount so prepaid, and the Make-Whole Amount determined for the prepayment date with respect to such principal amount.  The Company will give each holder of Notes written notice of each optional prepayment under this Section 8.2 not less than ten days and not more than 60 days prior to the date fixed for such prepayment unless the Company and the Required Holders agree to another time period pursuant to Section 18.  Each such notice shall specify such date (which shall be a Business Day), the aggregate principal amount of the Notes of each Series to be prepaid on such date, the principal amount of each Note of each Series held by such holder to be prepaid (determined in accordance with Section 8.3), and the interest to be paid on the prepayment date with respect to such principal amount being prepaid, and shall be accompanied by a certificate of a Senior Financial Officer as to the estimated Make-Whole Amount due with respect to each Series of Notes to be prepaid in connection with such prepayment (calculated as if the date of such notice were the date of the prepayment), setting forth the details of such computation.  Two Business Days prior to such prepayment, the Company shall deliver to each holder of Notes a certificate of a Senior Financial Officer specifying the calculation of such Make-Whole Amount as of the specified prepayment date.
(b)    Notwithstanding anything contained in this Section 8.2 to the contrary, if and so long as any Default or Event of Default shall have occurred and be continuing, any partial prepayment of the Notes pursuant to the provisions of Section 8.2(a) shall be allocated among all of the Notes of all Series at the time outstanding in proportion, as nearly as practicable, to the respective unpaid principal amounts thereof.
Section 8.3.    Allocation of Partial Prepayments.  In the case of each partial prepayment of the Notes of any Series pursuant to Section 8.2, the principal amount of the Notes of each Series to be prepaid shall be allocated among all of the Notes of such Series at the time outstanding in proportion, as nearly as practicable, to the respective unpaid principal amounts thereof not theretofore called for prepayment.
Section 8.4.    Maturity; Surrender, Etc.  In the case of each optional prepayment of Notes pursuant to this Section 8, the principal amount of each Note to be prepaid shall mature and become due and payable on the date fixed for such prepayment, together with interest on such principal amount accrued to such date and the applicable Make-Whole Amount, if any.  From and after such date, unless the Company shall fail to pay such principal amount when so due and payable, together with the interest and Make-Whole Amount, if any, as aforesaid, interest on such principal amount shall cease to accrue.  Any Note paid or prepaid in full shall be surrendered to the Company and cancelled and shall not be reissued, and no Note shall be issued in lieu of any prepaid principal amount of any Note.








Section 8.5.    Purchase of Notes.  The Company will not and will not permit any Affiliate to purchase, redeem, prepay or otherwise acquire, directly or indirectly, any of the outstanding Notes except (a) upon the payment or prepayment of the Notes in accordance with the terms of this Agreement and the Notes or (b) pursuant to an offer to purchase or prepay made by the Company or an Affiliate pro rata to the holders of all Notes at the time outstanding upon the same terms and conditions (except to the extent necessary to reflect differences in interest rates and maturities of the Notes of different series).  Any such offer shall provide each holder with sufficient information to enable it to make an informed decision with respect to such offer, and shall remain open for at least 15 Business Days.  If the holders of more than 33% of the principal amount of the Notes then outstanding accept such offer, the Company shall promptly notify the remaining holders of such fact and the expiration date for the acceptance by holders of Notes of such offer shall be extended by the number of days necessary to give each such remaining holder at least 5 Business Days from its receipt of such notice to accept such offer.  The Company will promptly cancel all Notes acquired by it or any Affiliate pursuant to any payment, prepayment or purchase of Notes pursuant to any provision of this Agreement and no Notes may be issued in substitution or exchange for any such Notes.
Section 8.6.    Make-Whole Amount.  “Make-Whole Amount” means, with respect to any Note of any Series, an amount equal to the excess, if any, of the Discounted Value of the Remaining Scheduled Payments with respect to the Called Principal of such Note over the amount of such Called Principal, provided that the Make-Whole Amount may in no event be less than zero.  For the purposes of determining the Make-Whole Amount, the following terms have the following meanings:
“Called Principal” means, with respect to any Note of any Series, the principal of such Note that is to be prepaid pursuant to Section 8.2 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires.
“Discounted Value” means, with respect to the Called Principal of any Note of any Series, the amount obtained by discounting all Remaining Scheduled Payments with respect to such Called Principal from their respective scheduled due dates to the Settlement Date with respect to such Called Principal, in accordance with accepted financial practice and at a discount factor (applied on the same periodic basis as that on which interest on the Notes of such Series is payable) equal to the Reinvestment Yield with respect to such Called Principal.








“Reinvestment Yield” means, with respect to the Called Principal of any Note of any Series, .50% (50 basis points) over the yield to maturity implied by the yields reported as of 10:00 a.m. (New York City time) on the second Business Day preceding the Settlement Date with respect to such Called Principal, on the display designated as “Page PX1” (or such other display as may replace Page PX1) on Bloomberg Financial Markets for the most recently issued actively traded on-the-run U.S. Treasury securities (“Reported”) having a maturity equal to the Remaining Average Life of such Called Principal as of such Settlement Date.  If there are no such U.S. Treasury securities Reported having a maturity equal to such Remaining Average Life, then such implied yield to maturity will be determined by (a) converting U.S. Treasury bill quotations to bond equivalent yields in accordance with accepted financial practice and (b) interpolating linearly between the yields Reported for the applicable most recently issued actively traded on-the-run U.S. Treasury securities with the maturities (1) closest to and greater than such Remaining Average Life and (2) closest to and less than such Remaining Average Life.  The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the applicable Note.  
If such yields are not Reported or the yields Reported as of such time are not ascertainable (including by way of interpolation), then “Reinvestment Yield” means, with respect to the Called Principal of any Note, .50% over the yield to maturity implied by the U.S. Treasury constant maturity yields reported, for the latest day for which such yields have been so reported as of the second Business Day preceding the Settlement Date with respect to such Called Principal, in Federal Reserve Statistical Release H.15 (or any comparable successor publication) for the U.S. Treasury constant maturity having a term equal to the Remaining Average Life of such Called Principal as of such Settlement Date.  If there is no such U.S. Treasury constant maturity having a term equal to such Remaining Average Life, such implied yield to maturity will be determined by interpolating linearly between (1) the U.S. Treasury constant maturity so reported with the term closest to and greater than such Remaining Average Life and (2) the U.S. Treasury constant maturity so reported with the term closest to and less than such Remaining Average Life.  The Reinvestment Yield shall be rounded to the number of decimal places as appears in the interest rate of the applicable Note.
“Remaining Average Life” means, with respect to any Called Principal, the number of years obtained by dividing (i) such Called Principal into (ii) the sum of the products obtained by multiplying (a) the principal component of each Remaining Scheduled Payment with respect to such Called Principal by (b) the number of years, computed on the basis of a 360-day year composed of twelve 30-day months and calculated to two decimal places, that will elapse between the Settlement Date with respect to such Called Principal and the scheduled due date of such Remaining Scheduled Payment.








“Remaining Scheduled Payments” means, with respect to the Called Principal of any Note of any Series, all payments of such Called Principal and interest thereon that would be due after the Settlement Date with respect to such Called Principal if no payment of such Called Principal were made prior to its scheduled due date, provided that if such Settlement Date is not a date on which interest payments are due to be made under the Notes of such Series, then the amount of the next succeeding scheduled interest payment will be reduced by the amount of interest accrued to such Settlement Date and required to be paid on such Settlement Date pursuant to Section 8.2 or Section 12.1.
“Settlement Date” means, with respect to the Called Principal of any Note of any Series, the date on which such Called Principal is to be prepaid pursuant to Section 8.2 or has become or is declared to be immediately due and payable pursuant to Section 12.1, as the context requires.
Section 8.7.    Prepayment of Notes upon Change in Control.  (a)  Notice of Change in Control.  The Company will, within five Business Days after any Responsible Officer has knowledge of the occurrence of any Change in Control, give written notice of such Change in Control to each holder of Notes.  Such notice shall contain and constitute an offer to prepay Notes as described in subparagraph (b) of this Section 8.7 and shall be accompanied by the certificate described in subparagraph (e) of this Section 8.7.
(b)    Offer to Prepay Notes.  The offer to prepay Notes contemplated by subparagraph (a) of this Section 8.7 shall be an offer to prepay, in accordance with and subject to this Section 8.7, all, but not less than all, the Notes held by each holder (in this case only, “holder” in respect of any Note registered in the name of a nominee for a disclosed beneficial owner shall mean such beneficial owner) on a date specified in such offer (the “Proposed Prepayment Date”) which shall be a Business Day.  Such date shall be not less than 30 days and not more than 120 days after the Change in Control.
(c)    Acceptance/Rejection.  A holder of Notes may accept the offer to prepay made pursuant to this Section 8.7 by causing a notice of such acceptance to be delivered to the Company not later than 15 days after receipt by such holder of the most recent offer of prepayment.  A failure by a holder of Notes to respond to an offer to prepay made pursuant to this Section 8.7 shall be deemed to constitute a rejection of such offer by such holder.
(d)    Prepayment.  Prepayment of the Notes to be prepaid pursuant to this Section 8.7 shall be at 100% of the principal amount of such Notes, together with interest on such Notes accrued to the date of prepayment, but without Make-Whole Amount or other premium.  The prepayment shall be made on the Proposed Prepayment Date.








(e)    Officer’s Certificate.  Each offer to prepay the Notes pursuant to this Section 8.7 shall be accompanied by a certificate, executed by a Senior Financial Officer of the Company and dated the date of such offer, specifying: (i) the Proposed Prepayment Date; (ii) that such offer is made pursuant to this Section 8.7; (iii) the principal amount of each Note offered to be prepaid; (iv) the interest that would be due on each Note offered to be prepaid, accrued to the Proposed Prepayment Date; (v) that the conditions of this Section 8.7 have been fulfilled; and (vi) in reasonable detail, the nature and date or proposed date of the Change in Control.
(f)    Deferral Pending Change in Control.  The obligation of the Company to prepay Notes pursuant to the offers required by Section 8.7(b) and accepted in accordance with Section 8.7(c) is subject to the occurrence of the Change in Control in respect of which such offers and acceptances shall have been made.  In the event that such Change in Control does not occur on the Proposed Prepayment Date in respect thereof, the prepayment shall be deferred until and shall be made on the date on which such Change in Control occurs.  The Company shall keep each holder of Notes reasonably and timely informed of (i) any such deferral of the date of prepayment, (ii) the date on which such Change in Control and the prepayment are expected to occur, and (iii) any determination by the Company that efforts to effect such Change in Control have ceased or been abandoned (in which case the offers and acceptances made pursuant to this Section 8.7(c) in respect of such Change in Control shall be deemed rescinded).
Section 8.8.    Payments Due on Non-Business Days.  Anything in this Agreement or the Notes to the contrary notwithstanding, (x) subject to clause (y), any payment of interest on any Note that is due on a date that is not a Business Day shall be made on the next succeeding Business Day without including the additional days elapsed in the computation of the interest payable on such next succeeding Business Day; and (y) any payment of principal of or Make-Whole Amount on any Note (including principal due on the Maturity Date of such Note) that is due on a date that is not a Business Day shall be made on the next succeeding Business Day and shall include the additional days elapsed in the computation of interest payable on such next succeeding Business Day.
Section 8.9.    Prepayment of Notes upon Waiver Period Event.  








(a)  Notice.  During the Waiver Period, if any Consolidated Party makes any Disposition (other than those permitted by Section 10.7(b)(i), (ii), (iii) and (iv)), issues any Equity Interests, or incurs any Indebtedness or if any Excess Un-Reinvested Proceeds no longer qualify as Excluded Net Proceeds pursuant to the definition thereof (each a “Waiver Period Event”), the Company shall offer to prepay the Notes in accordance with Section 8.9(b) below; provided that (i) the designation of Net Cash Proceeds as Excluded Net Proceeds (for so long as such Excluded Net Proceeds are not Excess Un-Reinvested Proceeds) and (ii) the issuance of the 2020 Permitted Convertible Notes shall not constitute a Waiver Period Event.  The Company shall give not less than three (3) Business Days prior written notice of the Waiver Period Event. If there are Net Cash Proceeds that are expected to be received by the holders of the Notes pursuant to Section 2.10 of the Intercreditor Agreement in connection with such Waiver Period Event, such notice shall contain and constitute an offer to prepay Notes as described in subparagraph (b) of this Section 8.9 and shall be accompanied by the certificate described in subparagraph (e) of this Section 8.9.
(b)    Offer to Prepay Notes.  The offer to prepay Notes contemplated by subparagraph (a) of this Section 8.9 shall be an offer to prepay, in accordance with and subject to this Section 8.9, the pro rata amount of such Notes held by each holder in relation to the Net Cash Proceeds that are expected to be received by the holders of the Notes pursuant to Section 2.10 of the Intercreditor Agreement in connection with such Waiver Period Event.  The Company shall propose a date for such prepayment, if accepted, which shall be a Business Day not less than 10 days and not more than 30 days after the notice pursuant to Section 8.9(a) is sent. 
(c)    Acceptance/Rejection.  A holder of Notes may accept the offer to prepay made pursuant to this Section 8.9 by causing a notice of such acceptance to be delivered to the Company not later than 5 days after receipt by such holder of the most recent offer of prepayment.  A failure by a holder of Notes to respond to an offer to prepay made pursuant to this Section 8.9 shall be deemed to constitute a rejection of such offer by such holder.
(d)    Prepayment.  Prepayment of the Notes to be prepaid pursuant to this Section 8.9 shall be at 100% of the principal amount which was offered pursuant to this Section 8.9, together with interest on such Notes accrued to the date of prepayment, but without Make-Whole Amount or other premium.
(e)    Officer’s Certificate.  Each offer to prepay the Notes pursuant to this Section 8.9 shall be accompanied by a certificate, executed by a Senior Financial Officer of the Company and dated the date of such offer, specifying: (i) the date proposed for prepayment; (ii) that such offer is made pursuant to this Section 8.9; (iii) a good faith estimate of the principal amount of each Note offered to be prepaid; and (iv) the interest that would be due on each Note offered to be prepaid, accrued to the date proposed for prepayment.








Section 8.10.    Additional Prepayment Offer upon Waiver Period Event.Notice.  During the Waiver Period, after the occurrence of any Waiver Period Event and the disposition of Net Cash Proceeds pursuant to Section 2.10(a)(i) or 2.10(a)(ii) of the Intercreditor Agreement, the Company shall offer to prepay the Notes in accordance with Section 8.10(b) below. The Company shall give not less than three (3) Business Days prior written notice of such offer to prepay.  Such notice shall contain and constitute an offer to prepay Notes as described in subparagraph (b) of this Section 8.10 and shall be accompanied by the certificate described in subparagraph (e) of this Section 8.10.  
(b)    Offer to Prepay Notes.  The offer to prepay Notes contemplated by subparagraph (a) of this Section 8.10 shall be an offer to prepay each Note, which shall be the pro rata amount of such Note held by each holder in relation to the Additional Amount.  The “Additional Amount” shall be a dollar amount equal to 4% of the amount of the Net Cash Proceeds that are distributed pursuant to Section 2.10(a)(i) or 2.10(a)(ii) of the Intercreditor Agreement in connection with such Waiver Period Event.  Notwithstanding the foregoing, if the holders of Notes are entitled to a prepayment offer pursuant to Section 8.9 hereof and Section 2.10 of the Intercreditor Agreement in connection with such Waiver Period Event, such Additional Amount shall be reduced by the amount offered under such provisions. The Company shall propose a date for such prepayment, if accepted, which shall be a Business Day not less than 10 days and not more than 30 days after the notice pursuant to Section 8.10(a) is sent.
(c)    Acceptance/Rejection.  A holder of Notes may accept the offer to prepay made pursuant to this Section 8.10 by causing a notice of such acceptance to be delivered to the Company not later than 5 days after receipt by such holder of the most recent offer of prepayment.  A failure by a holder of Notes to respond to an offer to prepay made pursuant to this Section 8.10 shall be deemed to constitute a rejection of such offer by such holder.  If a holder of Notes rejects such offer to prepay pursuant to this Section 8.10, the Company shall have no further obligation to the holder of Notes with respect to such Waiver Period Event and the Company may retain the Additional Amount, which Additional Amount is not subject to Section 2.10 of the Intercreditor Agreement. 
(d)    Prepayment.  Prepayment of the Notes to be prepaid pursuant to this Section 8.10 shall be at 100% of the principal amount which was offered pursuant to this Section 8.10, together with interest on such Notes accrued to the date of prepayment, but without Make-Whole Amount or other premium.
(e)    Officer’s Certificate.  Each offer to prepay the Notes pursuant to this Section 8.10 shall be accompanied by a certificate, executed by a Senior Financial Officer of the Company and dated the date of such offer, specifying: (i) the date proposed for prepayment; (ii) that such offer is made pursuant to this Section 8.10; (iii) a good faith estimate of the principal amount of each Note offered to be prepaid; and (iv) the interest that would be due on each Note offered to be prepaid, accrued to the date proposed for prepayment.








Section 8.11.    Waiver Period Optional Prepayment.  The Company may, at its option at any time on or prior to June 30, 2021 and from time to time during such period, upon notice as provided below, prepay at any time all, or from time to time any part of, the Notes of all Series, in an amount not less than 10% of the aggregate principal amount of the Notes then outstanding in the case of a partial prepayment, at 100% of the principal amount to be prepaid plus a premium equal to 2.00% of such principal to be prepaid (such premium, a “Waiver Period Prepayment Premium”).  The Company will give each holder of Notes written notice of each optional prepayment under this Section 8.11 not less than 10 days and not more than 60 days prior to the date fixed for such prepayment unless the Company and the Required Holders agree to another time period pursuant to Section 18.  Each such notice shall specify such date (which shall be a Business Day), the aggregate principal amount of the Notes to be prepaid on such date, the principal amount of each Note of each Series held by such holder to be prepaid (determined in accordance with Section 8.3), the Waiver Period Prepayment Premium and the interest accrued to the prepayment date with respect to such principal amount being prepaid, and shall be accompanied by a certificate of a Senior Financial Officer as to the estimated Waiver Period Prepayment Premium due with respect to the Notes to be prepaid in connection with such prepayment, setting forth the details of such computation.
SECTION 9.    AFFIRMATIVE COVENANTS.
From the Execution Date until the Closing and thereafter, so long as any of the Notes are outstanding, the Company and the Parent REIT covenant that:
Section 9.1.    Compliance with Laws.  Without limiting Section 10.4, the Company and the Parent REIT will, and will cause each other Company Party to, comply with all laws, ordinances or governmental rules or regulations to which each of them is subject, including, without limitation, ERISA, Environmental Laws, the USA PATRIOT Act and the other laws and regulations that are referred to in Section 5.16, and will obtain and maintain in effect all licenses, certificates, permits, franchises and other governmental authorizations necessary to the ownership of their respective properties or to the conduct of their respective businesses, in each case to the extent necessary to ensure that non-compliance with such laws, ordinances or governmental rules or regulations or failures to obtain or maintain in effect such licenses, certificates, permits, franchises and other governmental authorizations could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 9.2.    Insurance.  The Company and the Parent REIT will, and will cause each other Company Party to, maintain, with financially sound and reputable insurers, insurance with respect to their respective properties and businesses against such casualties and contingencies, of such types, on such terms and in such amounts (including deductibles, co-insurance and self-insurance, if adequate reserves are maintained with respect thereto) as is customary in the case of entities of established reputations engaged in the same or a similar business and similarly situated and as otherwise required under the Primary Credit Facilities.  








Section 9.3.    Maintenance of Properties.  The Company and the Parent REIT will, and will cause each other Company Party to, maintain and keep, or cause to be maintained and kept, their respective properties in good repair, working order and condition (other than ordinary wear and tear), so that the business carried on in connection therewith may be properly conducted at all times, provided that this Section shall not prevent any of the Company Parties from discontinuing the operation and the maintenance of any of its properties if such discontinuance is desirable in the conduct of its business and the Company and the Parent REIT have concluded that such discontinuance could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
Section 9.4.    Payment of Taxes and Claims.  The Company and the Parent REIT will, and will cause each other Company Party to, file all tax returns required to be filed in any jurisdiction and to pay and discharge all taxes shown to be due and payable on such returns and all other taxes, assessments, governmental charges, or levies imposed on them or any of their properties, assets, income or franchises, to the extent the same have become due and payable and before they have become delinquent and all claims for which sums have become due and payable that have or might become a Lien on properties or assets of the Company and the Parent REIT or any other Company Party, provided that none of the Company Parties need pay any such tax, assessment, charge, levy or claim if (i) the amount, applicability or validity thereof is contested by such Company Party on a timely basis in good faith and in appropriate proceedings, and the Company Parties have established adequate reserves therefor in accordance with GAAP on the books of the Company Parties or (ii) the nonpayment of all such taxes, assessments, charges, levies and claims could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. 
Section 9.5.    Legal Existence, Etc.  Subject to Section 10.2, the Company and the Parent REIT will at all times preserve and keep their respective legal existence in full force and effect.  Subject to Sections 10.2 and 10.7, the Company and the Parent REIT will at all times preserve and keep in full force and effect the legal existence of each other Company Party and all rights and franchises of the Company Parties unless, in the good faith judgment of the Company and the Parent REIT, the termination of or failure to preserve and keep in full force and effect such legal existence, right or franchise could not, individually or in the aggregate, have a Material Adverse Effect. 
Section 9.6.    Notes to Rank Pari Passu. The Notes and all other obligations under this Agreement of the Company and the obligations of each Guarantor under their respective Affiliate Guaranties are and at all times shall rank at least pari passu in right of payment with all other present and future unsecured Senior Indebtedness of the Company or such Guarantor, as the case may be, which is not expressed to be subordinate or junior in rank to any other unsecured Senior Indebtedness of the Company or such Guarantor, as the case may be. 








Section 9.7.    Books and Records.  The Company and the Parent REIT will, and will cause each of its Subsidiaries to, maintain proper books of record and account in conformity with GAAP and all applicable requirements of any Governmental Authority having legal or regulatory jurisdiction over the Company the Parent REIT, or such other Company Party, as the case may be.  The Company and the Parent REIT will, and will cause the Company Parties to, keep books, records and accounts which, in reasonable detail, accurately reflect all transactions and dispositions of assets.  The Company Parties have devised a system of internal accounting controls sufficient to provide reasonable assurances that their respective books, records, and accounts accurately reflect all transactions and dispositions of assets and the Company Parties will continue to maintain such system.
Section 9.8.    Subsidiary Guarantors.  The Parent REIT and the Company will cause each of its Subsidiaries that guarantees or otherwise becomes liable at any time, whether as a borrower or an additional or co-borrower or otherwise, for or in respect of any Indebtedness under any Primary Credit Facility to concurrently therewith:
(a)    enter into a joinder to the Subsidiary Guaranty in the form and substance appended to the Subsidiary Guaranty as Exhibit A thereto executed at the Closing, a guarantor Joinder Agreement (as defined in the Intercreditor Agreement) (if applicable), and a Grantor Joinder Agreement (as defined in the Intercreditor Agreement) (if applicable); and 
(b)    deliver the following to each Purchaser and holder of a Note:
(i)    an executed counterpart of such joinder to the Subsidiary Guaranty;
(ii)    a certificate signed by an authorized responsible officer of such Subsidiary containing representations and warranties on behalf of such Subsidiary to the same effect, mutatis mutandis, as those contained in Sections 5.1, 5.2, 5.6, 5.7, 5.16 and 5.18 of this Agreement (but with respect to such Subsidiary and such Subsidiary Guaranty rather than the Company) in the form of Exhibit B to the Subsidiary Guaranty;
(iii)    all documents as may be reasonably requested by the Required Holders to evidence the due organization, continuing existence and good standing of such Subsidiary and the due authorization by all requisite action on the part of such Subsidiary of the execution and delivery of such Subsidiary Guaranty and the performance by such Subsidiary of its obligations thereunder; and 
(iv)    an opinion of counsel with respect to such Subsidiary and such joinder in substantially the form of opinion delivered at the Closing with respect to the Subsidiary Guaranty and Subsidiary Guarantors that existed as of the Closing.








(c)    Release of Guarantors.  A Subsidiary Guarantor shall be automatically released from the Subsidiary Guaranty, so long as: (i) after giving effect to such release, such Consolidated Subsidiary does not have any liability as a guarantor, borrower, co-borrower or otherwise with respect to any Indebtedness under any Primary Credit Facility, (ii) no Default or Event of Default exists immediately after giving effect to such release and (iii) if any fee or other form of consideration is given to any holder of Indebtedness under any Primary Credit Facility directly related to releasing such Subsidiary Guarantor, the holders of the Notes shall receive an equivalent fee payable pro rata in accordance with each holder’s outstanding principal amount of Notes.  Each of the Parent REIT and the Company shall deliver to the holders of the Notes an Officer’s Certificate certifying that the conditions set forth in immediately preceding clauses (i), (ii) and (iii) will be true and correct upon the release of such Subsidiary Guarantor.  Upon the receipt by the holders of the Notes of the Officer’s Certificate referenced above, the release shall be effective automatically without any further action by any party and each holder of Notes shall thereafter execute and deliver, at the sole cost and expense of the Parent REIT and the Company, such documents and instruments as the Parent REIT and the Company may reasonably request to evidence such release, provided, that, the execution and delivery of such documents and instruments shall not be necessary to give effect to such release. 
Section 9.9.    Most Favored Lender Status.  (a)  If at any time after the Execution Date, a Primary Credit Facility contains a Financial Covenant by the Company that is more favorable to the lenders under such Primary Credit Facility than the covenants, definitions and/or defaults contained in this Agreement (any such provision (including any necessary definition), a “More Favorable Covenant”), then the Company shall provide a Most Favored Lender Notice (as defined herein below) in respect of such More Favorable Covenant.  Unless waived in writing by the Required Holders, within 15 days after each holder’s receipt of such notice, such More Favorable Covenant shall be deemed automatically incorporated by reference into Section 10 of this Agreement, mutatis mutandis, as if set forth in full herein, effective as of the date when such More Favorable Covenant shall have become effective under such Primary Credit Facility.








(b)    Any More Favorable Covenant incorporated into this Agreement (herein referred to as an “Incorporated Covenant”) pursuant to this Section 9.9 (i) shall be deemed automatically amended herein to reflect any subsequent amendments made to such More Favorable Covenant under the applicable Primary Credit Facility; provided that, if the amendment of such More Favorable Covenant would make such covenant less restrictive on the Company, such Incorporated Covenant shall only be deemed automatically amended at such time, if it should occur, when such Default or Event of Default no longer exists and (ii) shall be deemed automatically deleted from this Agreement at such time as such More Favorable Covenant is deleted or otherwise removed from the applicable Primary Credit Facility or such applicable Primary Credit Facility ceases to be a Primary Credit Facility or shall be terminated; provided that, if a Default or an Event of Default then exists, such Incorporated Covenant shall only be deemed automatically deleted from this Agreement at such time, if it should occur, when such Default or Event of Default no longer exists; provided further, however, that if any fee or other consideration shall be given to the lenders under such Primary Credit Facility for such amendment or deletion, the equivalent of such fee or other consideration shall be given, pro rata,  to the holders of the Notes.
(c)    “Most Favored Lender Notice” means, in respect of any More Favorable Covenant, a written notice to each of the holders of the Notes delivered promptly, and in any event within ten Business Days after the inclusion of such More Favorable Covenant in any Primary Credit Facility (including by way of amendment or other modification of any existing provision thereof) from a Responsible Officer referring to the provisions of this Section 9.9 and setting forth a reasonably detailed description of such More Favorable Covenant (including any defined terms used therein) and related explanatory calculations, as applicable.
(d)    Notwithstanding the foregoing, no covenant, definition or default expressly set forth in this Agreement as of the Execution Date (or incorporated into this Agreement by an amendment or modification to this Agreement other than pursuant to this Section 9.9) shall be deemed to be amended or deleted in any manner that is less favorable to the holders of Notes by virtue of the provisions of this Section 9.9.
Section 9.10.    Collateral.  During any Collateral Period, on or prior to the times specified below (or such later date as the Required Holders shall reasonably determine), the Company will cause, subject to clause (f) below, all of the issued and outstanding Equity Interests of each Guarantor (other than the Parent REIT) (collectively, the “Collateral”), to be, subject to the terms of the Intercreditor Agreement, subject to a perfected Lien in favor of the Collateral Agent to secure the Obligations in accordance with the terms and conditions of the Collateral Documents:
(i)    within thirty (30) days of the Collateral Trigger Date; and
(ii)    contemporaneously with the occurrence of any date any Subsidiary shall be required to become a Guarantor pursuant to Section 9.8 hereof.








(b)    During a Collateral Period, and without limiting the foregoing, the Company will, and will cause each Company Party that owns any Collateral to, execute and deliver, or cause to be executed and delivered, to the Collateral Agent such documents, agreements and instruments, and will take or cause to be taken such further actions (including the filing and recording of financing statements), which may be required by applicable Law and which the Collateral Agent may, from time to time during a Collateral Period, reasonably request to carry out the terms and conditions of this Agreement and the other Note Documents and to ensure perfection and priority of the Liens created or intended to be created by the Collateral Documents, all at the reasonable expense of the Company; provided, however, that no Pledged Subsidiary shall be permitted to certificate its Equity Interests or make an election under Article 8 of the UCC unless such certificates are promptly delivered to the Collateral Agent, together with an endorsement in blank.  Without limiting the foregoing, the Company shall cause each Company Party that owns any Collateral to execute and deliver to the Collateral Agent a Grantor Joinder Agreement (as defined in the Intercreditor Agreement).
(c)    During a Collateral Period, without limiting the release provisions set forth in clause (d) below, the Company may request in writing that the Collateral Agent release, and upon receipt of such request the Collateral Agent shall promptly, and in any event use commercially reasonable efforts to within five (5) Business Days, release, the Equity Interests in any Pledged Subsidiary from the Pledge Agreement with respect to any Unencumbered Borrowing Base Property that is being removed pursuant to Section 9.8(c) if such Subsidiary becomes a Non-Guarantor Subsidiary in connection with such removal or will become a Non-Guarantor Subsidiary within ten (10) Business Days of such removal, so long as no Default or Event of Default exists or would result therefrom. The Collateral Agent agrees to furnish to the Company, promptly, and in any event use commercially reasonable efforts to within five (5) Business Days, after the Company’s request and at the Company’s reasonable expense, any release, termination, or other agreement or document evidencing the foregoing release as may be reasonably requested by the Company.
(d)    The Company may deliver to the Collateral Agent, on or prior to the date that is five (5) Business Days (or such shorter period of time as agreed to by the Collateral Agent) before the date on which the Collateral Release is to be effected, written notice that it is requesting the Collateral Release, which notice shall identify the Collateral to be released and the proposed effective date for the Collateral Release, together with a certificate signed by a Responsible Officer of the Company (such certificate, a “Collateral Release Certificate”), certifying that:
(i)    the Consolidated Leverage Ratio is either (A) less than or equal to 6.75 to 1.00 as of the last day of any two (2) consecutive fiscal quarters, or (B) less than or equal to 6.25 to 1.00 as of the last day of any fiscal quarter, in each case as reflected on the most recently delivered Compliance Certificate delivered pursuant to Section 7.2(a); and








(ii)    at the time of the delivery of notice requesting such release, on the proposed effective date of the Collateral Release and immediately before and immediately after giving effect to the Collateral Release, (A) no Default or Event of Default has occurred and is continuing or would result therefrom and (B) the representations and warranties contained in Section 5 and the other Note Documents are true and correct in all material respects on and as of the effective date of the Collateral Release, except to the extent that such representations and warranties specifically refer to an earlier date, in which case they are true and correct in all material respects as of such earlier date, and except that for purposes of this Section 9.10, the representations and warranties contained in subsections (a) and (b) of Section 5.5 shall be deemed to refer to the most recent statements furnished pursuant to clauses (a) and (b), respectively, of Section 7.1.
(e)    On or after any Collateral Release Date, the Collateral Agent shall, subject to the satisfaction of the requirements of clause (d) above, promptly, and in any event use commercially reasonable efforts to within five (5) Business Days, release all of the Liens granted to the Collateral Agent pursuant to the requirements of this Section 9.10 and the Collateral Documents (the “Collateral Release”).  Upon the release of any Collateral pursuant to this Section 9.10, the Collateral Agent shall (to the extent applicable) promptly, and in any event use commercially reasonable efforts to within five (5) Business Days, deliver to the Company, upon the Company’s request and at the Company’s reasonable expense, such documentation as may be reasonably satisfactory to the Collateral Agent and otherwise necessary or advisable to evidence the release of such Collateral from the Note Documents.
(f)    Notwithstanding the foregoing, if (i) a Collateral Trigger Date occurs in connection with a First Limited Collateral Trigger Event only, the Collateral required to be delivered hereunder shall be limited to a pledge of the issued and outstanding Equity Interests of the Guarantors owning Unencumbered Borrowing Base Properties that have an aggregate Unencumbered Asset Value (calculated as of December 31, 2019) that equals fifty percent (50%) of the amount of the aggregate amount of the Pari Passu Obligations (including the amount of any unfunded commitments thereunder) as of the date of the First Limited Collateral Trigger Event and (ii) a Collateral Trigger Date occurs in connection with a Second Limited Collateral Trigger Event only, the Collateral required to be delivered hereunder shall be limited to a pledge of the issued and outstanding Equity Interests of the Guarantors owning Unencumbered Borrowing Base Properties that have an aggregate Unencumbered Asset Value (calculated as of December 31, 2019) that equals the amount of the aggregate amount of the Pari Passu Obligations (including the amount of any unfunded commitments thereunder) as of the date of the Second Limited Collateral Trigger Event.
Section 9.11.    Note Rating.  The Company will any time upon request from the Required Holders, obtain a private letter rating with respect to the Notes from one Rating Agency requested by the Required Holders.








Section 9.12. Waiver Period Interest. For the period of time commencing on the Fourth Amendment Effective Date through and including the last day of the Waiver PeriodFee Termination Date, the per annum interest rate of the Notes shall be increased by 45 basis points (.45%) (the “Waiver Period Increased Interest”). For the avoidance of doubt, (i) the payment or accrual of the Waiver Period Increased Interest on the Notes does not waive any Default or Event of Default otherwise applicable under this Agreement and (ii) such additional interest shall not be included in the calculation of any Make-Whole Amount.
Although it will not be a Default or an Event of Default if the Company fails to comply with any provision of Section 9 on or after the Execution Date and prior to the Closing, if such failure occurs then any of the Purchasers may elect not to purchase the Notes on the date of the Closing that is specified in Section 3.
SECTION 10.    NEGATIVE COVENANTS.
From the Execution Date until the Closing and thereafter, so long as any of the Notes are outstanding, the Company and the Parent REIT covenant that:
Section 10.1.    Transactions with Affiliates.  The Company and the Parent REIT will not and will not permit any other Company Party to enter into directly or indirectly any transaction or group of related transactions (including without limitation the purchase, lease, sale or exchange of properties of any kind or the rendering of any service) with any Affiliate (other than another Company Party Subsidiary), except in the ordinary course and pursuant to the reasonable requirements of the Company’s or such Subsidiary’s business and upon fair and reasonable terms no less favorable to the Company or such Subsidiary than would be obtainable in a comparable arm’s-length transaction with a Person not an Affiliate.
Section 10.2.    Merger, Consolidation, Etc.  The Company and the Parent REIT will not, nor will they permit any other Company Party to, consolidate with or merge with any other Person or convey, transfer or lease all or substantially all of its assets in a single transaction or series of transactions to any Person (including, in each case, pursuant to a Division) unless:








(a)    the successor formed by such consolidation or the survivor of such merger or the Person that acquires by conveyance, transfer or lease all or substantially all of the assets of the Company or any such Guarantor as an entirety, as the case may be, shall be a solvent corporation or limited liability company organized and existing under the laws of the United States or any state thereof (including the District of Columbia), and, if the Company or such Guarantor is not such corporation or limited liability company, as the case may be, (i) such corporation or limited liability company shall have executed and delivered to each holder of any Notes its assumption of the due and punctual performance and observance of each covenant and condition of this Agreement and the Notes, in the case of a transaction involving the Company, or the related Affiliate Guaranty in the case of a transaction involving any Guarantor and (ii) such corporation or limited liability company shall have caused to be delivered to each holder of any Notes an opinion of nationally recognized independent counsel, or other independent counsel reasonably satisfactory to the Required Holders, to the effect that all agreements or instruments effecting such assumption are enforceable in accordance with their terms and comply with the terms hereof; 
(b)    each Guarantor under any Affiliate Guaranty that is outstanding at the time such transaction or each transaction in such a series of transactions occurs reaffirms its obligations under such Affiliate Guaranty in writing at such time pursuant to documentation that is reasonably acceptable to the Required Holders; and
(c)    immediately before and immediately after giving effect to such transaction or each transaction in any such series of transactions, no Default or Event of Default shall have occurred and be continuing.
Provided that (i) any Non-Guarantor Subsidiary may consolidate with or merge with any other Person or transfer or lease all or substantially all of its assets in a single transaction or series of transactions to any other Person; provided such merger or Disposition shall be permitted only if (A) there exists no violation of the financial covenants hereunder on a Pro Forma Basis after such transaction and (B) no Default or Event of Default would result therefrom and (ii) any Non-Guarantor Subsidiary may merge with a Note Party; provided that (A) the Note Party shall be the continuing or surviving Person and (B) no Default or Event of Default would result therefrom.
No such conveyance, transfer or lease of substantially all of the assets of the Company shall have the effect of releasing the Company or any Guarantor or any successor corporation or limited liability company that shall theretofore have become such in the manner prescribed in this Section 10.2 from its liability under this Agreement, the Affiliate Guaranties or the Notes, respectively except that the foregoing shall not limit the automatic release of a Subsidiary Guarantor as provided in Section 9.8(c) of this Agreement.
Section 10.3.    Line of Business.  The Company and the Parent REIT will not and will not permit any other Company Party to engage in any business if, as a result, the general nature of the business in which the Company Parties, taken as a whole, would then be engaged would be substantially changed from the general nature of the business in which the Company Parties, taken as a whole, are engaged on the Execution Date as described in the Memorandum.








Section 10.4.    Terrorism Sanctions Regulations.  The Company and the Parent REIT will not and will not permit any Controlled Entity (a) to become (including by virtue of being owned or controlled by a Blocked Person), own or control a Blocked Person or any Person that is the target of sanctions imposed by the United Nations or by the European Union, or (b) directly or indirectly to have any investment in or engage in any dealing or transaction (including, without limitation, any investment, dealing or transaction involving the proceeds of the Notes) with any Person if such investment, dealing or transaction (i) would cause any holder to be in violation of any law or regulation applicable to such holder, or (ii) is prohibited by or subject to sanctions under any U.S. Economic Sanctions, or (c) to engage, nor shall any Affiliate of either engage, in any activity that could subject such Person or any holder to sanctions under CISADA or any similar law or regulation with respect to Iran or any other country that is subject to U.S. Economic Sanctions.
Section 10.5.    Liens.  The Company and the Parent REIT will not and will not permit any Company Party to directly or indirectly create, incur, assume or permit to exist (upon the happening of a contingency or otherwise) any Lien on or with respect to any property or asset of any Company Party, whether now owned or held or hereafter acquired, or any income or profits therefrom, or assign or otherwise convey any right to receive income or profits, except (the items described in clauses (a) through (h) below to be referred to as “Permitted Liens”): 
(a)    Liens, if any, that secure the Obligations;
(b)    Liens that secure Indebtedness of the Company Parties on a pari passu basis with the Lien described in Section 10.5(a) subject to the terms of the Intercreditor Agreement; 
(c)    Liens existing on the Execution Date and listed in Schedule 5.15 and any renewals or extensions thereof, provided that (i) the property covered thereby is not changed, (ii) the amount secured or benefited thereby is not increased except by an amount equal to a reasonable premium or other reasonable amount paid and fees and expenses reasonably incurred in connection with such refinancing and by an amount equal to any existing commitments unutilized thereunder, and (iii) the direct or any contingent obligor with respect thereto is not changed;
(d)    Liens for taxes not yet due or which are being contested in good faith by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person in accordance with GAAP;
(e)    carriers’, warehousemen’s, mechanics’, materialmen’s, repairmen’s or other like Liens arising in the ordinary course of business which are not overdue for a period of more than thirty (30) days or which are being contested in good faith and by appropriate proceedings diligently conducted, if adequate reserves with respect thereto are maintained on the books of the applicable Person;








(f)    pledges or deposits in the ordinary course of business in connection with workers’ compensation, unemployment insurance and other social security legislation, other than any Lien imposed by ERISA;
(g)    deposits to secure the performance of bids, trade contracts and leases (other than Indebtedness), statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like nature incurred in the ordinary course of business;
(h)    easements, rights-of-way, restrictions and other similar encumbrances affecting any Real Property owned by the Company or any Guarantor which, in the aggregate, are not substantial in amount, and which do not in any case materially detract from the value of the property subject thereto or materially interfere with the ordinary conduct of the business of the applicable Person and which, with respect to Unencumbered Borrowing Base Properties, have been reviewed and approved in accordance with the requirements of the Bank of America Credit Facility; 
(i)    Liens securing judgments for the payment of money not constituting an Event of Default under Section 11(i);
(j)    (i) the interests of any ground lessor under an Eligible Ground Lease and the interests of any TRS under a lease of any Unencumbered Borrowing Base Property and (ii) Liens in connection with Permitted Intercompany Mortgages; 
(k)    Liens on any assets (other than any Unencumbered Borrowing Base Property and related assets) securing Indebtedness of any Note Party or Non-Guarantor Subsidiary incurred or assumed after the Execution Date; provided, such Lien to secure such Indebtedness can only be incurred if: (i) no Default shall exist immediately before or immediately after the incurrence or assumption such Indebtedness and (ii) there exists no violation of the financial covenants hereunder on a Pro Forma Basis after the incurrence or assumption of such Indebtedness, including Liens on such Real Property existing at the time such Real Property is acquired by the Company or applicable Guarantor or any Non-Guarantor Subsidiary;
(l)    Liens on the Equity Interests of any Non-Guarantor Subsidiary; provided, no such Liens shall be permitted with respect to the Equity Interests of Pebblebrook Hotel Lessee, any entity which is the lessee with respect to an Unencumbered Borrowing Base Property or the direct or indirect parent thereof;
(m)    other Liens on assets (other than Unencumbered Borrowing Base Properties) securing claims or other obligations of the Note Parties and their Subsidiaries (other than Indebtedness) in amounts not exceeding $5,000,000 in the aggregate; and
(n)    any interest of title of a lessor under, and Liens arising from or evidenced by protective UCC financing statements (or equivalent filings, registrations or agreements in foreign jurisdictions) relating to, operating leases permitted hereunder.  








Notwithstanding anything contained in this Section 10.5, the Company and the Parent REIT shall not, and shall not permit any of their Subsidiaries to, secure pursuant to this Section 10.5 any Indebtedness outstanding under or pursuant to any Primary Credit Facility unless and until the Notes (and any guaranty delivered in connection therewith) shall concurrently be secured equally and ratably with such Indebtedness pursuant to documentation reasonably acceptable to the Required Holders in substance and in form, including, without limitation, an intercreditor agreement and opinions of counsel to the Company and/or any such Subsidiary, as the case may be, from counsel that is reasonably acceptable to the Required Holders.
Section 10.6.    Financial Covenants.
(a)     Consolidated Leverage Ratio.  
(i)    The Parent REIT and the Company will not permit the Consolidated Leverage Ratio to, as of the last day of any fiscal quarter commencing with the Initial Compliance Date: (I) as of the Initial Compliance Date, exceed 8.50 to 1.00; (II) as of the last day of the first and second fiscal quarters ending after the Initial Compliance Date, exceed 8.00 to 1.00; (III) as of the last day of the third fiscal quarter ending after the Initial Compliance Date, exceed 7.50 to 1.00; and (IV) as of the last day of any fiscal quarter thereafter, exceed 6.75 to 1.00; provided that, notwithstanding the foregoing,
(A)    if as of the last day of any fiscal quarter, commencing on the earlier of June 30, 2022 or the last day of the fiscal quarter following the expiration of the Waiver PeriodFee Termination Date, the Consolidated Leverage Ratio exceeds 6.50 to 1.00 but does not exceed 6.75 to 1.00 as of the last day of any fiscal quarter (the “Leverage Surge Date”), (1) the Company shall provide written notice to each holder of a Note in an officer’s certificate timely delivered pursuant to Section 7.2; and (2) the Notes shall be subject to the Increased Interest Rate pursuant to Section 10.6(a)(ii) (such period, the “Leverage Surge Period”); and further, 
(B)    if, as of the last day of any fiscal quarter, commencing on the earlier of June 30, 2022 or the last day of the fiscal quarter following the expiration of the Waiver PeriodFee Termination Date, the Consolidated Leverage Ratio exceeds 6.75 to 1.00 (the “Additional Surge Date”), the Notes shall be subject to the Increased Interest Rate pursuant to Section 10.6(a)(ii) (such period, the “Additional Surge Period”) and provided the availability of such Additional Surge Period shall end on the fiscal quarter in which the Company is required to be in compliance with Section 10.6(a)(i)(IV);








(ii)    During a Leverage Surge Period or an Additional Surge Period, as applicable, the per annum interest rate (in addition to any Default Rate, if any) otherwise applicable to each series of the Notes as specified in the first paragraph thereof shall be increased as follows (for each series of Notes, the “Increased Interest Rate”):
(A)    If the Consolidated Leverage Ratio exceeds 6.50 to 1.00 but is not greater than 6.75 to 1.00, then the per annum interest rate shall be increased by 45 basis points (.45%);
(B)    For the first fiscal quarter in which the Consolidated Leverage Ratio exceeds 6.75 to 1.00, then the per annum interest rate shall be increased by 45 basis points (.45%);
(C)    For the second fiscal quarter in which the Consolidated Leverage Ratio exceeds 6.75 to 1.00, then the per annum interest rate shall be increased by 50 basis points (.50%);
(D)    For the third fiscal quarter in which the Consolidated Leverage Ratio exceeds 6.75 to 1.00, then the per annum interest rate shall be increased by 75 basis points (.75%); and
(E)    For the fourth and fifth fiscal quarter in which the Consolidated Leverage Ratio exceeds 6.75 to 1.00, then the per annum interest rate shall be increased by 100 basis points (1.00%);
provided that the additional basis points in Section 10.6(a)(ii)(A) through (E) are not cumulative; and further provided that changes to the applicable rate of interest shall be effective as of the first day of the first calendar month after the Additional Surge Date or Leverage Surge Date, as applicable, until (A) the first day of the first calendar month after the last day of the fiscal quarter for which an officer’s certificate has been timely delivered pursuant to Section 7.2 containing a written statement to each holder of a Note terminating the Additional Surge Period or Leverage Surge Period, as applicable, and evidencing that the Consolidated Leverage Ratio, as of the last day of such fiscal quarter, is equal to or less than 6.75 to 1.00 (in the case of an Additional Surge Period) or 6.50 to 1.00 (in the case of a Leverage Surge Period) or (B) in the case of an Additional Surge Period, the last day of the fiscal quarter in which such Additional Surge Date is allowed, if earlier. For the avoidance of doubt, (i) the payment or accrual of an Increased Interest Rate of the Notes does not waive any Default or Event of Default otherwise applicable under Section 10.6(a) and (ii) such additional interest shall not be included in the calculation of any Make-Whole Amount. 








(b)    Consolidated Recourse Secured Indebtedness Limitation.  The Parent REIT and the Company will not permit Consolidated Recourse Secured Indebtedness to, at any time on or after the Initial Compliance Date, exceed an amount equal to five percent (5%) of Consolidated Total Asset Value; provided that, notwithstanding the foregoing, once during the term of this Agreement, so long as no Default or Event of Default has occurred and is continuing, for up to four (4) consecutive quarters, Consolidated Recourse Secured Indebtedness may exceed five percent (5%) but not exceed ten percent (10%) of Consolidated Total Asset Value.
(c)    Consolidated Secured Debt Limitation.  The Parent REIT and the Company will not permit Consolidated Secured Debt to, at any time on or after the Initial Compliance Date, to exceed an amount equal to forty-five percent (45%) of Consolidated Total Asset Value.
(d)    Consolidated Fixed Charge Coverage Ratio.  The Parent REIT and the Company will not permit the Consolidated Fixed Charge Coverage Ratio, as of the last day of any fiscal quarter commencing with the Initial Compliance Date, to be less than (i) as of the Initial Compliance Date, 1.051.25 to 1.00, (ii) as of the last day of the first fiscal quarter ending after the Initial Compliance Date, 1.25 to 1.00, and (iii) as of the last day of any fiscal quarter thereafter, 1.50 to 1.00.
(e)    Unsecured Leverage Ratio.  The Parent REIT and the Company will not permit the Unsecured Indebtedness (less Adjusted Unrestricted Cash as of such date) to, as of the last day of any fiscal quarter commencing with the Initial Compliance Date: (i) as of the Initial Compliance Date, exceed sixty-seven and one-half of one percent (67.5%); (ii) as of the last day of the first and second fiscal quarters ending after the Initial Compliance Date, exceed sixty five percent (65%); and (iii) as of the last day of any fiscal quarter thereafter, exceed sixty percent (60%) of Unencumbered Asset Value; provided that, notwithstanding the foregoing, so long as no Default has occurred and is continuing, as of the last day of the fiscal quarter in which any Material Acquisition occurs and the last day of the two (2) consecutive quarters thereafter, such ratio may exceed sixty percent (60%) but not exceed sixty five percent (65%) (such period being an “Unsecured Leverage Increase Period”); provided further that (i) the Company may not elect more than three (3) Unsecured Leverage Increase Periods during the term of this Agreement and (ii) any such Unsecured Leverage Increase Periods shall be non-consecutive.
(f)    Consolidated Unsecured Interest Coverage Ratio.  The Parent REIT and the Company will not permit the Consolidated Unsecured Interest Coverage Ratio, as of the last day of any fiscal quarter commencing with the Initial Compliance Date, to be less than (i) as of the Initial Compliance Date, 1.251.50 to 1.00, (ii) as of the last day of the first fiscal quarter ending after the Initial Compliance Date, 1.50 to 1.00, (iii) as of the last day of the second fiscal quarter ending after the Initial Compliance Date, 1.75 to 1.00, and (iviii) as of the last day of any fiscal quarter thereafter, 2.00 to 1.00.








(g)    Consolidated Tangible Net Worth.  The Parent REIT and the Company will not permit Consolidated Tangible Net Worth, as of the last day of any fiscal quarter commencing with the Initial Compliance Date, to be less than the sum of (i) $1,400,772,000 plus (ii) seventy-five percent (75%) of the Net Proceeds of all Equity Issuances by the Company Parties after June 30, 2017.
(h)    Restricted Payments.  Permit, for any fiscal year of the Company Parties, the amount of Restricted Payments (excluding Restricted Payments payable solely in the common stock or other common Equity Interests of the Parent REIT or the Company) made by the Company Parties to the holders of their Equity Interests (excluding any such holders of Equity Interests which are the Company or any Guarantor) during such period to exceed the FFO Distribution Allowance for such period; provided that, to the extent no Event of Default then exists or will result from such Restricted Payments (or if a Default or Event of Default then exists or will result from such Restricted Payments, then so long as no acceleration of the Notes shall have occurred), the Company, the Guarantors, and each other Subsidiary (including Pebblebrook Hotel Lessee) shall be permitted to make Restricted Payments to the Company and the Company shall be permitted to make Restricted Payments to Parent REIT, in each case to permit the Parent REIT to make Restricted Payments to the holders of the Equity Interests in the Parent REIT to the extent necessary to maintain Parent REIT’s status as a REIT and as necessary to pay any special or extraordinary tax liabilities then due (after taking into account any losses, offsets and credits, as applicable) on capital gains attributable to Parent REIT.  In addition, so long as no acceleration of the Notes shall have occurred, each TRS may make Restricted Payments to its parent entity to the extent necessary to pay any Taxes then due in respect of the income of such TRS.  Notwithstanding the foregoing, during the Waiver Period and at any time thereafter until the Consolidated Leverage Ratio is less than 6.75 to 1.00 as of the last day of any fiscal quarter, as reflected on the most recently delivered Compliance Certificate delivered pursuant to Section 7.2(a), the Parent REIT shall not purchase, redeem, retire, or defease any of its Equity Interests except as expressly permitted in Section 10.10(e). 
(i)    Minimum Liquidity.  At any time during the Waiver Period, permit Liquidity to be less than $200,000,000.
(j)    Waiver Period Financial Covenants; Adjustments.  
(i)    During the period of time commencing on the Second Amendment Effective Date up to, but excluding, the Initial Compliance Date the Parent REIT and the Company shall continue to deliver to the Purchaser and any holder of the Notes that is an Institutional Investor duly completed Compliance Certificates, for informational purposes only, as and when required under Section 7.2(a) certifying as to the Company’s calculations of the financial tests set forth in this Section 10.6.
(ii)    Immediately following the expiration of the Waiver Period, the financial covenants set forth in this Section 10.6 (including the related defined terms) (other than the covenants set forth in clauses (d), (f) (g) and (i) thereof) shall be modified as follows:








(A)    in the event the Company elects to terminate the Waiver Period on the date occurring under clause (b) of the definition of “Waiver Period”, the testing period for the covenants set forth in this Section 10.6 shall be measured as follows: (w) for the most-recent fiscal quarter ending on or immediately prior to the expiration of the Waiver Period, the trailing quarter, annualized; (x) for the two (2) most-recent fiscal quarters ending on or immediately prior to the expiration of the Waiver Period, the trailing two (2) quarters, annualized; (y) for the three fiscal quarters ending on or immediately prior to the expiration of the Waiver Period, the trailing three (3) quarters, annualized; and (z) thereafter, the trailing four (4) quarters. 
(B)    in the event the Waiver Period ends on the date occurring under clause (a) of the definition of “Waiver Period”, the testing period for the covenants set forth in this Section 10.6 shall be measured as follows: (w) for the fiscal quarter ending June 30, 2022, the trailing quarter, annualized; (x) for the fiscal quarter ending September 30, 2022, the trailing two (2) quarters, annualized; (y) for the fiscal quarter ending December 31, 2022, the trailing three (3) quarters, annualized and (z) thereafter, the trailing four (4) quarters.
(iii)    From and after the Initial Compliance Date, the financial covenants set forth in Sections 10.6(d) and 10.6(f) shall be modified as follows:
(A)    in the event the Company elects to terminate the Waiver Period on the date occurring under clause (b) of the definition of “Waiver Period”, the testing period for the covenants set forth in Sections 10.6(d) and 10.6(f) shall be measured as follows: (w) for the most-recent fiscal quarter ending on or immediately prior to the expiration of the Waiver Period, the trailing quarter, annualized; (x) for the two (2) most-recent fiscal quarters ending on or immediately prior to the expiration of the Waiver Period, the trailing two (2) quarters, annualized; (y) for the three fiscal quarters ending on or immediately prior to the expiration of the Waiver Period, the trailing three (3) quarters, annualized; and (z) thereafter, the trailing four (4) quarters. 
(B)    in the event the Waiver Period ends on the date occurring under clause (a) of the definition of “Waiver Period”, the testing period for the covenants set forth in this Section 10.6 shall be measured as follows: (w) for the fiscal quarter ending March 31, 2022, the trailing quarter, annualized; (x) for the fiscal quarter ending June 30, 2022, the trailing two (2) quarters, annualized; (y) for the fiscal quarter ending September 30, 2022, the trailing three (3) quarters, annualized and (z) thereafter, the trailing four (4) quarters.
Section 10.7.    Dispositions.  The Parent REIT and the Company will not make any Disposition of any assets or property, except:  








(a)    Dispositions in the ordinary course of business (other than those Dispositions permitted under clause (b) of this Section 10.7), so long as (i) no Default or Event of Default shall exist immediately before or immediately after such Disposition, and (ii) the Company Parties will be in compliance, on a Pro Forma Basis following such Disposition, with the covenants set forth in Section 10.6 of this Agreement as demonstrated by a compliance certificate with supporting calculations delivered to the Required Holders on or prior to the date of such Disposition showing the effect of such Disposition; 
(b)    Any of the following:
(i)    Dispositions of obsolete, surplus or worn out property or other property not necessary for operations, whether now owned or hereafter acquired, in the ordinary course of business and for no less than fair market value;
(ii)    Dispositions of equipment or real property to the extent that (A) such property is exchanged for credit against the purchase price of similar replacement property or (B) the proceeds of such Disposition are reasonably promptly applied to the purchase price of such replacement property, in each case in the ordinary course of business and for no less than fair market value;
(iii)    Dispositions of inventory and Investments of the type described in Sections 10.9(b) and (c) in the ordinary course of business;
(iv)    leases of Real Property (other than any Unencumbered Borrowing Base Property) and personal property assets related thereto to any TRS; and
(v)    in order to resolve disputes that occur in the ordinary course of business, the Company and any Subsidiary of the Company may discount or otherwise compromise, for less than the face value thereof, notes or accounts receivable;
(c)    Dispositions of property by the Company or any Guarantor to the Company or to another Note Party; 
(d)    Dispositions pursuant to Section 10.2, and
(e)    Any other Disposition approved in writing by the Required Holders.








Notwithstanding the foregoing provisions of this Section 10.7, neither the Company nor any Guarantor shall sell or make any other Disposition of assets or property that will have the effect of causing the Company or any Guarantor to become liable under any tax protection or tax sharing agreement if the amount of such liability would exceed an amount equal to one percent (1%) of the total assets of the Company or any Guarantor without the prior written consent of the Required Holders.
Section 10.8.    Restricted Payments.   The Parent REIT and the Company will not declare or make, directly or indirectly, any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:
(a)    so long as no Default or Event of Default shall exist at the time of such Restricted Payment or would result therefrom, each Subsidiary may make Restricted Payments to the Company, the Guarantors and any other Person that owns an Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made;
(b)    so long as no Event of Default shall exist at the time of such Restricted Payment or would result therefrom, the Company and each Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person;
(c)    so long as no Event of Default shall exist at the time of such Restricted Payment or would result therefrom, the Company and each Subsidiary may purchase, redeem or otherwise acquire Equity Interests issued by it with the proceeds received from the substantially concurrent issue of new shares of its common stock or other common Equity Interests; and
(d)    so long as no acceleration shall have occurred, each TRS may make Restricted Payments to its TRS parent entity to the extent necessary to pay any tax liabilities then due (after taking into account any losses, offsets and credits, as applicable); provided that any such Restricted Payments by a TRS shall only be made after it has paid all of its operating expenses currently due or anticipated within the current month and next following month.
Notwithstanding the foregoing, the Company and the Guarantors shall be permitted to make Restricted Payments of the type and to the extent permitted pursuant to Section 10.6(h) of this Agreement.
Section 10.9.    Investments.  The Parent REIT and the Company will not make any Investments, except:








(a)    Investments by the Company Parties (other than by the Parent REIT) in (i) Unencumbered Borrowing Base Properties, and (ii) other real properties that are fully-developed, open and operating income-producing “luxury,” “upper upscale” or “upscale” full or select service hotels, with all material approvals from each Governmental Authority required in connection with the lawful operation of such hotels, and which real properties shall, upon the making of such Investments, be wholly owned by such Company Party;
(b)    Investments held by the Company or such Guarantor or other Subsidiary in the form of cash or Cash Equivalents;
(c)    Investments existing as of the Closing and set forth in Schedule 5.15
(d)    Advances to officers, directors and employees of the Company, the Guarantors and other Subsidiaries in aggregate amounts not to exceed (i) $500,000 at any time outstanding for employee relocation purposes, and (ii) $100,000 at any time outstanding for travel, entertainment, and analogous ordinary business purposes;
(e)    Investments of (i) the Company in any Guarantor (including (A) Investments by the Company in any private REIT, so long as the Company owns one hundred percent (100%) of the “common” Equity Interests in such private REIT and (B) Investments by the Company in a Guarantor in the form of an intercompany loan), (ii) any Guarantor in the Company or in another Guarantor (including Investments by a Guarantor in the Company or in another Guarantor in the form of an intercompany loan), and (iii) the Company, any Guarantor or any Non-Guarantor Subsidiary in Non-Guarantor Subsidiaries (including Investments by the Company, any Guarantor or any Non-Guarantor Subsidiary in a Non-Guarantor Subsidiary in the form of an intercompany loan) that own, directly or indirectly, and operate Real Properties that are fully-developed, open and operating income-producing “luxury,” “upper upscale” or “upscale” full or select service hotels, with all material approvals from each Governmental Authority required in connection with the lawful operation of such hotels; provided, notwithstanding the foregoing or any other provision herein or in any other Note Document to the contrary, the Parent REIT shall not own any Equity Interests in any Person other than the Company;
(f)    Investments consisting of extensions of credit in the nature of accounts receivable or notes receivable arising from the grant of trade credit in the ordinary course of business, and Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss;
(g)    Guarantees of Indebtedness which are permitted under the Primary Credit Facilities and so long as the Company is in compliance with Section 9.8; 
(h)    Other Investments of the Company and its Subsidiaries in:








(i)    Real properties consisting of undeveloped or speculative land (valued at cost for purposes of this clause (h)) with an aggregate value not greater than five percent (5%) of Consolidated Total Asset Value and which real properties shall, upon the making of such Investments, be wholly owned by the Company or such Subsidiary;
(ii)    Incoming-producing real properties (other than hotels or similar hospitality properties) (valued at cost for purposes of this clause (h)) with an aggregate value not greater than ten percent (10%) of Consolidated Total Asset Value and which real properties shall, upon the making of such Investments, be wholly owned by the Company or such Subsidiary;
(iii)    Development/Redevelopment Properties (valued at cost for purposes of this clause (h); provided that all costs and expenses associated with all existing development activities with respect to such Development/Redevelopment Properties (budget to completion) shall be included in determining the aggregate Investment of the Company or such Subsidiary with respect to such activities) with an aggregate value not greater than fifteen percent (15%) of Consolidated Total Asset Value and which Development/Redevelopment Properties shall, upon the making of such Investments, be wholly owned by the Company or such Subsidiary and;
(iv)    Unconsolidated Affiliates (valued at cost for purposes of this clause (h)) with an aggregate value not greater than twenty percent (20%) of Consolidated Total Asset Value;
(v)    mortgage or real estate-related loan assets (valued at cost for purposes of this clause (h)) with an aggregate value not greater than fifteen percent (15%) of Consolidated Total Asset Value; and
(vi)    Equity Interests (including preferred Equity Interests) in any Person (other than any Affiliate of the Company) (valued at cost for purposes of this clause (h)) with an aggregate value not greater than fifteen percent (15%) of Consolidated Total Asset Value; provided, however, that the collective aggregate value of the Investments owned pursuant to items (i) through (vi) of this clause (h) above shall not at any time exceed thirty-five percent (35%) of Consolidated Total Asset Value.
Although it will not be a Default or an Event of Default if the Company fails to comply with any provision of Section 10 on or after the Execution Date and prior to the Closing, if such failure occurs then any of the Purchasers may elect not to purchase the Notes on the date of the Closing that is specified in Section 3.
Section 10.10.      Enhanced Negative Covenants.  Notwithstanding anything to the contrary contained in this Agreement, during the Waiver Period the Note  Parties shall not, nor shall they permit any other Company Party (except where expressly limited to the Company or the Note Parties, as applicable), directly or indirectly, to: 








(a)    make any Investments other than (i) Investments in one or more new Unencumbered Borrowing Base Properties (or in Equity Interests in Subsidiaries that own or will own new Unencumbered Borrowing Base Properties) solely with the proceeds of Excluded Net Proceeds or (ii) any other Investments otherwise permitted pursuant to Section 10.9 not to exceed $100,000,000 in the aggregate;
(b)    make or become legally obligated to make any expenditure in respect of the purchase or other acquisition of any fixed or capital asset other than (i) in connection with emergency repairs, life safety repairs or ordinary course maintenance repairs (ii) capital expenditures to complete ongoing renovations in an amount not to exceed $155,000,000 in the aggregate during the period commencing with the Fourth Amendment Effective Date through the remainder of the Waiver Period;
(c)    create, incur, assume or suffer to exist any Indebtedness not existing and permitted as of the Second Amendment Effective Date other than (i) to the extent the proceeds of such Indebtedness are used to fully or partially refinance or replace Indebtedness existing and permitted as of the Second Amendment Effective Date; provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(i) be earlier than the existing maturity date of the Indebtedness being refinanced or replaced; provided further, that any amounts in excess of the amounts used to fully or partially refinance or replace Indebtedness are otherwise permitted to be incurred pursuant to this Section 10.10(c), (ii) Secured Non-Recourse Debt not to exceed $250,000,000400,000,000 in the aggregate and pursuant to which the Company has made the mandatory offer to purchase pursuant to Section 8.9; provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(ii) be earlier than one (1) year after the Maturity Date of the Notes, or (iii) Indebtedness that is recourse to one or more Company Parties and pursuant to which the Company has made the mandatory offer to purchase pursuant to Section 8.9; provided, however, that in no event shall the final stated maturity date of any Indebtedness permitted under this clause (c)(iii) (other than (A) increases of any Indebtedness under any Material Credit Facility pursuant to the terms thereof and (B) Indebtedness under a 364-day facility not to exceed $100,000,000) be earlier than one (1) year after the Maturity Date of the Notes;
(d)    make any Disposition other than Dispositions (i) permitted by Section 10.7(b)(i), (ii), (iii) and (iv), or (ii) to a Person that is not a Note Party or Related Party of any Consolidated Party, (A) for fair market value in an arms’ length transaction, (B) in which the price for such asset shall be paid to a Consolidated Party solely in cash, and (C) pursuant to which the Company has made the mandatory offer to purchase, if any, required pursuant to Section 8.9; 








(e)    declare or make any Restricted Payments other than (i) Restricted Payments to the holders of the common Equity Interests in the Parent REIT of not more than $0.01 per share, (ii) Restricted Payments to the holders of the Equity Interests in the Parent REIT to the extent necessary to maintain the Parent REIT’s status as a REIT, (iii) so long as no Default or Event of Default has occurred and is continuing or would result therefrom, Restricted Payments with respect to any preferred Equity Interests, (iv) Restricted Payments by Subsidiaries of the Company to Company and by Company to the Parent REIT the proceeds of which are used by the Parent REIT to make Restricted Payments permitted by clauses (i) through (iii) preceding and (v) the purchase or redemption by the Parent REIT of its preferred Equity Interests solely with Net Cash Proceeds from Permitted Preferred Issuances; 
(f)    voluntarily prepay (i) the principal amount of any Permitted Convertible Notes other than pursuant to a conversion thereof into Equity Interests of the Parent REIT; or (ii) any Indebtedness incurred after the Fourth Amendment Effective Date;
(g)    create, incur, assume or suffer to exist any Lien upon any property, assets or revenues of any Consolidated Party, whether now owned or hereafter acquired, not existing and permitted as of the Second Amendment Effective Date other than (i) Liens securing the Pari Passu Obligations on a pari passu basis subject to the terms of the Intercreditor Agreement, (ii) Liens permitted by Sections 10.5(d), (e), (f), (g), (h), (i), (j) and (n), (iii) Liens securing Indebtedness permitted under Section 10.10(c)(i); provided that (A) the amount secured or benefited thereby is not increased except as contemplated by Section 7.03(b) of the Bank of America Credit Facility, (B) the direct or any contingent obligor with respect thereto is not changed, (C) any renewal or extension of the obligations secured or benefited thereby is permitted by Section 7.03(b) of the Bank of America Credit Facility, and (D) to the extent such existing Indebtedness being refinanced or replaced is Secured Debt, incurred to refinance or replace Secured Debt secured by the same property or assets, and (iv) Liens securing Indebtedness permitted under Section 10.10(c)(ii); or
(h)    enter into any Contractual Obligation (other than this Agreement) that limits the ability of the Company to make any prepayment offers hereunder, including for avoidance of doubt, Section 8.108.2, Section 8.5 or Section 8.118.10.
SECTION 11.    EVENTS OF DEFAULT.
An “Event of Default” shall exist if any of the following conditions or events shall occur and be continuing:
(a)    the Company defaults in the payment of any principal or Make-Whole Amount, if any, on any Note when the same becomes due and payable, whether at maturity or at a date fixed for prepayment or by declaration or otherwise; or
(b)    the Company defaults in the payment of any interest on any Note for more than five Business Days after the same becomes due and payable; or








(c)    the Company or the Parent REIT defaults in the performance of or compliance with any term contained in Section 7.1(d) or Section 10; or
(d)    the Company or any Subsidiary Guarantor defaults in the performance of or compliance with any term contained herein (other than those referred to in Sections 11(a), (b) and (c)) or in any Subsidiary Guaranty and such default is not remedied within 30 days after the earlier of (i) a Responsible Officer obtaining actual knowledge of such default and (ii) the Company receiving written notice of such default from any holder of a Note (any such written notice to be identified as a “notice of default” and to refer specifically to this Section 11(d)); provided that if the auditor’s opinion accompanying any audited financial statements is subject to any “going concern” or like qualification or exception, then the Parent REIT shall have a period of 45 days from the delivery date of such statements for the auditor to reissue its opinion without any “going concern” or like qualification or exception; or
(e)    (i) any representation or warranty made in writing by or on behalf of the Company or by any officer of the Company in this Agreement or any writing furnished in connection with the transactions contemplated hereby proves to have been false or incorrect in any material respect on the date as of which made, or (ii) any representation or warranty made in writing by or on behalf of any Subsidiary Guarantor or by any officer of such Subsidiary Guarantor in any Subsidiary Guaranty or any writing furnished in connection with such Subsidiary Guaranty proves to have been false or incorrect in any material respect on the date as of which made; or
(f)    (i) the Company or any Subsidiary is in default (as principal or as guarantor or other surety) in the payment of any principal of or premium or make-whole amount or interest on any Indebtedness that is outstanding in an aggregate principal amount of at least $25,000,000 beyond any period of grace provided with respect thereto, or (ii) the Company or any Subsidiary is in default in the performance of or compliance with any term of any evidence of any Indebtedness in an aggregate outstanding principal amount of at least $25,000,000 or of any mortgage, indenture or other agreement relating thereto or any other condition exists, and as a consequence of such default or condition such Indebtedness has become, or has been declared (or one or more Persons are entitled to declare such Indebtedness to be), due and payable before its stated maturity or before its regularly scheduled dates of payment, or (iii) as a consequence of the occurrence or continuation of any event or condition (other than the passage of time or the right of the holder of Indebtedness to convert such Indebtedness into equity interests), (x) the Company or any Subsidiary has become obligated to purchase or repay Indebtedness before its regular maturity or before its regularly scheduled dates of payment in an aggregate outstanding principal amount of at least $25,000,000, or (y) one or more Persons have the right to require the Company or any Subsidiary so to purchase or repay such Indebtedness; or








(g)    the Company or any Subsidiary (i) is generally not paying, or admits in writing its inability to pay, its debts as they become due, (ii) files, or consents by answer or otherwise to the filing against it of, a petition for relief or reorganization or arrangement or any other petition in bankruptcy, for liquidation or to take advantage of any bankruptcy, insolvency, reorganization, moratorium or other similar law of any jurisdiction, (iii) makes an assignment for the benefit of its creditors, (iv) consents to the appointment of a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, (v) is adjudicated as insolvent or to be liquidated, or (vi) takes corporate action for the purpose of any of the foregoing; or
(h)    a court or other Governmental Authority of competent jurisdiction enters an order appointing, without consent by the Company or any of its Subsidiaries, a custodian, receiver, trustee or other officer with similar powers with respect to it or with respect to any substantial part of its property, or constituting an order for relief or approving a petition for relief or reorganization or any other petition in bankruptcy or for liquidation or to take advantage of any bankruptcy or insolvency law of any jurisdiction, or ordering the dissolution, winding-up or liquidation of the Company or any of its Subsidiaries, or any such petition shall be filed against the Company or any of its Subsidiaries and such petition shall not be dismissed within 60 days; or
(i)    one or more final judgments or orders for the payment of money aggregating in excess of $25,000,000, including, without limitation, any such final order enforcing a binding arbitration decision, are rendered against one or more of the Company and its Subsidiaries and which judgments are not, within 60 days after entry thereof, bonded, discharged or stayed pending appeal, or are not discharged within 60 days after the expiration of such stay; or








(j)    if (i) any Plan shall fail to satisfy the minimum funding standards of ERISA or the Code for any plan year or part thereof or a waiver of such standards or extension of any amortization period is sought or granted under section 412 of the Code, (ii) a notice of intent to terminate any Plan shall have been or is reasonably expected to be filed with the PBGC or the PBGC shall have instituted proceedings under ERISA section 4042 to terminate or appoint a trustee to administer any Plan or the PBGC shall have notified the Company or any ERISA Affiliate that a Plan may become a subject of any such proceedings, (iii) the aggregate “amount of unfunded benefit liabilities” (within the meaning of section 4001(a)(18) of ERISA) under all Plans, determined in accordance with Title IV of ERISA, shall exceed an amount that could reasonably be expected to have a Material Adverse Effect, (iv) the Company or any ERISA Affiliate shall have incurred or is reasonably expected to incur any liability pursuant to Title I or IV of ERISA or the penalty or excise tax provisions of the Code relating to employee benefit plans, (v) the Company or any ERISA Affiliate withdraws from any Multiemployer Plan, or (vi) the Company or any Subsidiary establishes or amends any employee welfare benefit plan that provides post-employment welfare benefits in a manner that would increase the liability of the Company or any Subsidiary thereunder; and any such event or events described in clauses (i) through (vi) above, either individually or together with any other such event or events, could reasonably be expected to have a Material Adverse Effect.  As used in this Section 11(j), the terms “employee benefit plan” and “employee welfare benefit plan” shall have the respective meanings assigned to such terms in section 3 of ERISA; or
(k)    any Affiliate Guaranty shall cease to be in full force and effect, any Subsidiary Guarantor or any Person acting on behalf of any Guarantor shall contest in any manner the validity, binding nature or enforceability of any Affiliate Guaranty, or the obligations of any Guarantor under any Affiliate Guaranty are not or cease to be legal, valid, binding and enforceable in accordance with the terms of such Affiliate Guaranty; or
(l)    any Collateral Document shall for any reason fail to create a valid and perfected security interest in any portion of the Collateral purported to be covered thereby, with the priority required by the applicable Collateral Document, except as (i) permitted by the terms of any Note Document or (ii) as a result of the release of such security interest in accordance with the terms of any Note Document, it being understood and agreed that the failure of the Collateral Agent to maintain possession of any Collateral actually delivered to it or file any UCC (or equivalent) continuation statement shall not result in an Event of Default under this clause (l).
SECTION 12.    REMEDIES ON DEFAULT, ETC.
Section 12.1.    Acceleration.  (a) If an Event of Default with respect to the Parent REIT or the Company described in Section 11(g) or (h) (other than an Event of Default described in clause (i) of Section 11(g) or described in clause (vi) of Section 11(g) by virtue of the fact that such clause encompasses clause (i) of Section 11(g)) has occurred, all the Notes then outstanding shall automatically become immediately due and payable.








(b)    If any other Event of Default has occurred and is continuing, the Required Holders may at any time at its or their option, by notice or notices to the Company, declare all the Notes then outstanding to be immediately due and payable.
(c)    If any Event of Default described in Section 11(a) or (b) has occurred and is continuing, any holder or holders of Notes at the time outstanding affected by such Event of Default may at any time, at its or their option, by notice or notices to the Company, declare all the Notes held by it or them to be immediately due and payable.
Upon any Notes becoming due and payable under this Section 12.1, whether automatically or by declaration, such Notes will forthwith mature and the entire unpaid principal amount of such Notes, plus (x) all accrued and unpaid interest thereon (including, but not limited to, interest accrued thereon at the Default Rate) and (y) the Make-Whole Amount determined in respect of such principal amount (to the full extent permitted by applicable law), shall all be immediately due and payable, in each and every case without presentment, demand, protest or further notice, all of which are hereby waived.  The Parent REIT and the Company acknowledge, and the parties hereto agree, that each holder of a Note has the right to maintain its investment in the Notes free from repayment by the Company (except as herein specifically provided for) and that the provision for payment of a Make-Whole Amount by the Company in the event that the Notes are prepaid or are accelerated as a result of an Event of Default, is intended to provide compensation for the deprivation of such right under such circumstances.
Section 12.2.    Other Remedies.  If any Default or Event of Default has occurred and is continuing, and irrespective of whether any Notes have become or have been declared immediately due and payable under Section 12.1, the holder of any Note at the time outstanding may proceed to protect and enforce the rights of such holder by an action at law, suit in equity or other appropriate proceeding, whether for the specific performance of any agreement contained herein or in any Note or in any Affiliate Guaranty, or for an injunction against a violation of any of the terms hereof or thereof, or in aid of the exercise of any power granted hereby or thereby or by law or otherwise.








Section 12.3.    Rescission.  At any time after any Notes have been declared due and payable pursuant to Section 12.1(b) or (c), the Required Holders in principal amount of the Notes then outstanding, by written notice to the Company, may rescind and annul any such declaration and its consequences if (a) the Parent REIT and the Company have paid all overdue interest on the Notes, all principal of and Make-Whole Amount, if any, on any Notes that are due and payable and are unpaid other than by reason of such declaration, and all interest on such overdue principal and Make-Whole Amount, if any, and (to the extent permitted by applicable law) any overdue interest in respect of the Notes, at the applicable Default Rate, (b) neither the Parent REIT, the Company nor any other Person shall have paid any amounts which have become due solely by reason of such declaration, (c) all Events of Default and Defaults, other than non-payment of amounts that have become due solely by reason of such declaration, have been cured or have been waived pursuant to Section 17, and (d) no judgment or decree has been entered for the payment of any monies due pursuant hereto or to the Notes.  No rescission and annulment under this Section 12.3 will extend to or affect any subsequent Event of Default or Default or impair any right consequent thereon.
Section 12.4.    No Waivers or Election of Remedies, Expenses, Etc.  No course of dealing and no delay on the part of any holder of any Note in exercising any right, power or remedy shall operate as a waiver thereof or otherwise prejudice such holder’s rights, powers or remedies.  No right, power or remedy conferred by this Agreement, any Affiliate Guaranty or any Note upon any holder thereof shall be exclusive of any other right, power or remedy referred to herein or therein or now or hereafter available at law, in equity, by statute or otherwise.  Without limiting the obligations of the Parent REIT and the Company under Section 15, the Company will pay to the holder of each Note on demand such further amount as shall be sufficient to cover all costs and expenses of such holder incurred in any enforcement or collection under this Section 12, including, without limitation, reasonable attorneys’ fees, expenses and disbursements.
SECTION 13.    PARENT GUARANTY, ETC.








Section 13.1.    Parent Guaranty.  The Parent REIT hereby irrevocably, absolutely and unconditionally guarantees as primary obligors and not as surety to each holder of any Note or Notes at any time outstanding the prompt payment in full, in Dollars, when due (whether at stated maturity, by acceleration, by mandatory or optional prepayment or otherwise) of the principal of and Make-Whole Amount (if any) and interest on the Notes (including interest on any overdue principal and Make-Whole Amount (if any) and interest at the Default Rate (if any) and interest accruing at the then applicable rate provided in the Notes after the filing of any petition in bankruptcy, or the commencement of any insolvency reorganization or like proceeding, relating to the Company, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) and all other amounts from time to time owing by the Company under this Agreement and the other Note Documents to any holder (including costs, expenses and taxes) (such payments being herein collectively called the “Guaranteed Obligations”).  The Parent REIT hereby further agrees that if the Company shall default in the payment of any of the Guaranteed Obligations (after giving effect to all applicable grace and cure periods), the Parent REIT will (x) promptly pay the same, without any demand or notice whatsoever, and that in the case of any extension of time of payment or renewal of any of the Guaranteed Obligations, the same will be promptly paid in full when due (whether at extended maturity, by acceleration, by mandatory prepayment or otherwise) in accordance with the terms of such extension or renewal and (y) pay to the holder of any Note such amounts, to the extent lawful, as shall be sufficient to pay the costs and expenses of collection or of otherwise enforcing any of such holder’s rights under this Agreement, including reasonable counsel fees.  All obligations of the Parent REIT under this Section 13 shall be referred to as the “Parent Guaranty” and shall survive the transfer of any Note.  Any obligations of the Parent REIT under this Section 13 with respect to which the underlying obligation of the Company is expressly stated to survive payment of any Note shall also survive payment of such Note.
Section 13.2.    Obligations Unconditional.  (a) The obligations of the Parent REIT under Section 13.1 constitute a present and continuing guaranty of payment and not collectibility and are absolute, unconditional and irrevocable, irrespective of the value, genuineness, validity, regularity or enforceability of the obligations of the Company under this Agreement, the other Note Documents or any other agreement or instrument referred to herein or therein, or any substitution, release or exchange of any other guarantee of or security for any of the Guaranteed Obligations, and, to the fullest extent permitted by applicable law, irrespective of any other circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, other than the payment in full in Dollars of the Guaranteed Obligations. Without limiting the generality of the foregoing, it is agreed that the occurrence of any one or more of the following shall not alter or impair the liability of the Parent REIT hereunder which shall remain absolute and unconditional as described above:
(i)    any amendment, modification, compromise, release or extension of any provision of this Agreement, the other Note Documents or any assignment or transfer thereof, including the renewal or extension of the time of payment of any of the Notes or the granting of time in respect of such payment thereof, or of any furnishing or acceptance of security or any additional guarantee or any release of any security or guarantee so furnished or accepted for any of the Notes;








(ii)    any waiver, consent, extension, granting of time, forbearance, indulgence or other action or inaction under or in respect of this Agreement or the other Note Documents, or any exercise or non-exercise of any right, remedy or power in respect hereof or thereof;
(iii)    any bankruptcy, receivership, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceedings with respect to the Company or any other Person or the properties or creditors of any of them;
(iv)    the occurrence of any Default or Event of Default under, or any invalidity or any unenforceability of, or any misrepresentation, irregularity or other defect in, this Agreement, the other Note Documents or any other agreement or the failure to give notice to the Company or the Parent REIT of the occurrence of any Default or Event of Default under the terms and provisions of this Agreement; 
(v)    any transfer of any assets to or from the Company, including any transfer or purported transfer to the Company from any Person, any invalidity, illegality of, or inability to enforce, any such transfer or purported transfer, any consolidation or merger of the Issuer with or into any Person, any change in the ownership of any Equity Interests of the Company, or any change whatsoever in the objects, capital structure, constitution or business of the Company;
(vi)    any default, failure or delay, willful or otherwise, on the part of the Company or any other Person to perform or comply with, or the impossibility or illegality of performance by the Company or any other Person of, any term of this Agreement, the other Note Documents or any other agreement;
(vii)    any suit or other action brought by, or any judgment in favor of, any beneficiaries or creditors of, the Company or any other Person for any reason whatsoever, including any suit or action in any way attacking or involving any issue, matter or thing in respect of this Agreement, the other Note Documents or any other agreement;
(viii)    any lack or limitation of status or of power, incapacity or disability of the Company or any trustee or agent thereof; or
(ix)    the power or authority or the lack of power or authority of any Company Party to issue the Notes or to execute and deliver this Agreement or the other Note Documents, as the case may be, and irrespective of the validity of the Notes, this Agreement or the other Note Documents or of any defense whatsoever that any Company Party may or might have to the payment of the Notes (principal, interest and Make-Whole Amount, if any), or to the performance or observance of any of the provisions or conditions of this Agreement or the other Note Documents, or the existence or continuance of any Company Party as a legal entity;








(x)    any failure to present the Notes for payment or to demand payment thereof, or to give the Company or the Parent REIT notice of dishonor for non-payment of the Notes, when and as the same may become due and payable, or notice of any failure on the part of the Company to do any act or thing or to perform or to keep any covenant or agreement by it to be done, kept or performed under the terms of the Notes or this Agreement;
(xi)    any other thing, event, happening, matter, circumstance or condition whatsoever (other than the irrevocable payment in full in Dollars of the Guaranteed Obligations), not in any way limited to the foregoing.
provided that the specific enumeration of the above-mentioned acts, failures or omissions shall not be deemed to exclude any other acts, failures or omissions, though not specifically mentioned above, it being the purpose and intent of this paragraph that the obligations of the Parent REIT hereunder shall be absolute and unconditional and shall not be discharged, impaired or varied except by the payment to the holders thereof of the principal of, Make-Whole Amount, if any, and interest on the Notes, and of all other sums due and owing to the holders of the Notes pursuant to this Agreement and the Notes, and then only to the extent of such payments in Dollars.  Without limiting any of the other terms or provisions hereof, it is understood and agreed that in order to hold the Parent REIT liable hereunder, there shall be no obligation on the part of any holder of any Note to resort, in any manner or form, for payment, to the Company or to any other Person or to the properties or estates of any of the foregoing.  All rights of the holder of any Note pursuant thereto or to this Agreement may be transferred or assigned at any time or from time to time and shall be considered to be transferred or assigned upon the transfer of such Note, whether with or without the consent of or notice to the Parent REIT or the Company.  Without limiting the foregoing, it is understood that repeated and successive demands may be made and recoveries may be had hereunder as and when, from time to time, the Company shall default under the terms of the Notes or this Agreement and that notwithstanding recovery hereunder for or in respect of any given default or defaults by the Company under the Notes or this Agreement the obligations of the Parent REIT under this Section 13 shall remain in full force and effect and shall apply to each and every subsequent default.
(b)    The Parent REIT hereby unconditionally waives diligence, presentment, demand of payment, protest and all notices whatsoever and any requirement that any holder of a Note exhaust any right, power or remedy against the Company under this Agreement, the other Note Documents or any other agreement or instrument referred to herein or therein, or against any other Person under any other guarantee of, or security for, any of the Guaranteed Obligations.








(c)    In the event that the Parent REIT shall at any time pay any amount on account of the Guaranteed Obligations or take any other action in performance of its obligations hereunder, the Parent REIT shall not exercise any subrogation or other rights hereunder or under the Notes and the Parent REIT hereby waives all rights it may have to exercise any such subrogation or other rights, and all other remedies that it may have against the Company, in respect of any payment made hereunder unless and until the Guaranteed Obligations shall have been paid in full in Dollars.  If any amount shall be paid to the Parent REIT on account of any such subrogation rights or other remedy, notwithstanding the waiver thereof, such amount shall be received in trust for the benefit of the holders of the Notes and shall forthwith be paid to such holders to be credited and applied upon the Guaranteed Obligations, whether matured or unmatured, in accordance with the terms hereof.  The Parent REIT agrees that its obligations under this Section 13 shall be automatically reinstated if and to the extent that for any reason any payment (including payment in full) by or on behalf of the Company is rescinded or must be otherwise restored by any holder of a Note, whether as a result of any proceedings in bankruptcy or reorganization or otherwise, all as though such amount had not been paid.
(d)    If an event permitting the acceleration of the maturity of the principal amount of the Notes shall at any time have occurred and be continuing and such acceleration (and the effect thereof on the Guaranteed Obligations) shall at such time be prevented by reason of the pendency against the Company or any other Person of a case or proceeding under a bankruptcy or insolvency law, the Parent REIT agrees that, for purposes of the guarantee in this Section 13 and the Parent REIT’s obligations under this Agreement, the maturity of the principal amount of the Notes, as applicable, shall be deemed to have been accelerated (with a corresponding effect on the Guaranteed Obligations) with the same effect as if the holders of the Notes had accelerated the same in accordance with the terms of this Agreement, and the Parent REIT shall forthwith pay such principal amount, any interest thereon, any Make-Whole Amount and any other amounts guaranteed hereunder without further notice or demand.
(e)    The guarantee in this Section 13 is a continuing guarantee and shall apply to the Guaranteed Obligations whenever arising.  Each default in the payment or performance of any of the Guaranteed Obligations shall give rise to a separate claim and cause of action hereunder, and separate claims or suits may be made and brought, as the case may be, hereunder as each such default occurs.
Section 13.3.    Marshalling and Accounts.  (a)  None of the holders of the Notes shall be under any obligation (i) to marshal any assets in favor of the Parent REIT or in payment of any or all of the liabilities of the Company under or in respect of the Notes and this Agreement or the obligation of the Parent REIT hereunder or (ii) to pursue any other remedy that the Parent REIT may or may not be able to pursue itself and that may lessen the Parent REIT’s burden or any right to which the Parent REIT hereby expressly waives.
(b)    Until all amounts which may be or become payable by the Company under or in connection with the Notes have been irrevocably paid in full in Dollars while an Event of Default is continuing, any moneys received from the Parent REIT under this Agreement may be held in an interest-bearing bank account.








(c)    This guarantee is in addition to and is not in any way prejudiced by any other guarantee (including, without limitation, any Subsidiary Guaranty) now or subsequently held by a holder of a Note.
Section 13.4.    General Limitation on Guarantee Obligations.  
In any action or proceeding involving any state or provincial corporate law, or any foreign, state, provincial or federal bankruptcy, insolvency, reorganization or other law affecting the rights of creditors generally, if the obligations of the Parent REIT under Section 13.1 would otherwise be held or determined to be void, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under Section 13.1, then, notwithstanding any other provision hereof to the contrary, the amount of such liability shall, without any further action by the Parent REIT, any holder or any other Person, be automatically limited and reduced to the highest amount that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
SECTION 14.    REGISTRATION; EXCHANGE; SUBSTITUTION OF NOTES.
Section 14.1.    Registration of Notes.  The Company shall keep at its principal executive office a register for the registration and registration of transfers of Notes.  The name and address of each holder of one or more Notes, each transfer thereof and the name and address of each transferee of one or more Notes shall be registered in such register.  If any holder of one or more Notes is a nominee, then (a) the name and address of the beneficial owner of such Note or Notes shall also be registered in such register as an owner and holder thereof and (b) at any such beneficial owner’s option, either such beneficial owner or its nominee may execute any amendment, waiver or consent pursuant to this Agreement.  Prior to due presentment for registration of transfer, the Person(s) in whose name any Note(s) shall be registered shall be deemed and treated as the owner and holder thereof for all purposes hereof, and the Company shall not be affected by any notice or knowledge to the contrary.  The Company shall give to any holder of a Note that is an Institutional Investor promptly upon request therefor, a complete and correct copy of the names and addresses of all registered holders of Notes.








Section 14.2.    Transfer and Exchange of Notes.  Upon surrender of any Note to the Company at the address and to the attention of the designated officer (all as specified in Section 19(iii)), for registration of transfer or exchange (and in the case of a surrender for registration of transfer accompanied by a written instrument of transfer duly executed by the registered holder of such Note or such holder’s attorney duly authorized in writing and accompanied by the relevant name, address and other information for notices of each transferee of such Note or part thereof), within ten Business Days thereafter, the Company shall execute and deliver, at the Company’s expense (except as provided below), one or more new Notes (as requested by the holder thereof) of the same Series in exchange therefor, in an aggregate principal amount equal to the unpaid principal amount of the surrendered Note.  Each such new Note shall be payable to such Person as such holder may request and shall be substantially in the form of Schedule 1(a) or 1(b), as applicable.  Each such new Note shall be dated and bear interest from the date to which interest shall have been paid on the surrendered Note or dated the date of the surrendered Note if no interest shall have been paid thereon.  The Company may require payment of a sum sufficient to cover any stamp tax or governmental charge imposed in respect of any such transfer of Notes.  Notes shall not be transferred in denominations of less than $100,000, provided that if necessary to enable the registration of transfer by a holder of its entire holding of Notes, one Note may be in a denomination of less than $100,000.  Any transferee, by its acceptance of a Note registered in its name (or the name of its nominee), shall be deemed to have made the representation set forth in Section 6.2.
Section 14.3.    Replacement of Notes.  Upon receipt by the Company at the address and to the attention of the designated officer (all as specified in Section 19(iii)) of evidence reasonably satisfactory to it of the ownership of and the loss, theft, destruction or mutilation of any Note (which evidence shall be, in the case of an Institutional Investor, notice from such Institutional Investor of such ownership and such loss, theft, destruction or mutilation), and
(a)    in the case of loss, theft or destruction, of indemnity reasonably satisfactory to it (provided that if the holder of such Note is, or is a nominee for, an original Purchaser or another holder of a Note with a minimum net worth of at least $30,000,000 or a Qualified Institutional Buyer, such Person’s own unsecured agreement of indemnity shall be deemed to be satisfactory), or
(b)    in the case of mutilation, upon surrender and cancellation thereof,
within ten Business Days thereafter, the Company at its own expense shall execute and deliver, in lieu thereof, a new Note of the same Series, dated and bearing interest from the date to which interest shall have been paid on such lost, stolen, destroyed or mutilated Note or dated the date of such lost, stolen, destroyed or mutilated Note if no interest shall have been paid thereon.
SECTION 15.    PAYMENTS ON NOTES.








Section 15.1.    Place of Payment.  Subject to Section 15.2, payments of principal, Make-Whole Amount, if any, and interest becoming due and payable on the Notes shall be made in New York, New York at the principal office of U.S. Bank, N.A. in such jurisdiction.  The Company may at any time, by notice to each holder of a Note, change the place of payment of the Notes so long as such place of payment shall be either the principal office of the Company in such jurisdiction or the principal office of a bank or trust company in such jurisdiction.
Section 15.2.    Home Office Payment.  So long as any Purchaser or its nominee shall be the holder of any Note, and notwithstanding anything contained in Section 15.1 or in such Note to the contrary, the Company will pay all sums becoming due on such Note for principal, Make-Whole Amount, if any, interest and all other amounts becoming due hereunder by the method and at the address specified for such purpose below such Purchaser’s name in Schedule B, or by such other method or at such other address as such Purchaser shall have from time to time specified to the Company in writing for such purpose, without the presentation or surrender of such Note or the making of any notation thereon, except that upon written request of the Company made concurrently with or reasonably promptly after payment or prepayment in full of any Note, such Purchaser shall surrender such Note for cancellation, reasonably promptly after any such request, to the Company at its principal executive office or at the place of payment most recently designated by the Company pursuant to Section 15.1.  Prior to any sale or other disposition of any Note held by a Purchaser or its nominee, such Purchaser will, at its election, either endorse thereon the amount of principal paid thereon and the last date to which interest has been paid thereon or surrender such Note to the Company in exchange for a new Note or Notes pursuant to Section 14.2.  The Company will afford the benefits of this Section 15.2 to any Institutional Investor that is the direct or indirect transferee of any Note purchased by a Purchaser under this Agreement and that has made the same agreement relating to such Note as the Purchasers have made in this Section 15.2.
SECTION 16.    EXPENSES, ETC.








Section 16.1.    Transaction Expenses.  Whether or not the transactions contemplated hereby are consummated, the Company will pay all costs and expenses (including reasonable attorneys’ fees of a special counsel and, if reasonably required by the Required Holders, local or other counsel) incurred by the Purchasers and each other holder of a Note in connection with such transactions and in connection with any amendments, waivers or consents under or in respect of this Agreement, any Subsidiary Guaranty or the Notes (whether or not such amendment, waiver or consent becomes effective) within 15 Business Days after the Company’s receipt of an invoice therefor, including, without limitation: (a) the costs and expenses incurred in enforcing or defending (or determining whether or how to enforce or defend) any rights under this Agreement, any Subsidiary Guaranty or the Notes or in responding to any subpoena or other legal process or informal investigative demand issued in connection with this Agreement, any Subsidiary Guaranty or the Notes, or by reason of being a holder of any Note, (b) the costs and expenses, including financial advisors’ fees, incurred in connection with the insolvency or bankruptcy of the Company or any Subsidiary or in connection with any work-out or restructuring of the transactions contemplated hereby and by the Notes and any Subsidiary Guaranty and (c) the costs and expenses incurred in connection with the initial filing of this Agreement and all related documents and financial information with the SVO provided, that such costs and expenses under this clause (c) shall not exceed $3,500 for each Series.  The Company will pay, and will save each Purchaser and each other holder of a Note harmless from, (i) all claims in respect of any fees, costs or expenses, if any, of brokers and finders (other than those, if any, retained by a Purchaser or other holder in connection with its purchase of the Notes) and (ii) any and all wire transfer fees that any bank deducts from any payment under such Note to such holder or otherwise charges to a holder of a Note with respect to a payment under such Note.
Section 16.2.    Survival.  The obligations of the Company under this Section 16 will survive the payment or transfer of any Note, the enforcement, amendment or waiver of any provision of this Agreement, any Subsidiary Guaranty or the Notes, and the termination of this Agreement.
SECTION 17.    SURVIVAL OF REPRESENTATIONS AND WARRANTIES; ENTIRE AGREEMENT.
All representations and warranties contained herein shall survive the execution and delivery of this Agreement and the Notes, the purchase or transfer by any Purchaser of any Note or portion thereof or interest therein and the payment of any Note, and may be relied upon by any subsequent holder of a Note, regardless of any investigation made at any time by or on behalf of such Purchaser or any other holder of a Note.  All statements contained in any certificate or other instrument delivered by or on behalf of the Company pursuant to this Agreement shall be deemed representations and warranties of the Company under this Agreement.  Subject to the preceding sentence, this Agreement, the Notes and any Subsidiary Guaranties embody the entire agreement and understanding between each Purchaser and the Company and supersede all prior agreements and understandings relating to the subject matter hereof.
SECTION 18.    AMENDMENT AND WAIVER.








Section 18.1.    Requirements.  This Agreement and the Notes may be amended, and the observance of any term hereof or of the Notes may be waived (either retroactively or prospectively), only with the written consent of the Company and the Required Holders, except that:
(a)    no amendment or waiver of any of Sections 1, 2, 3, 4, 5, 6 or 22 hereof, or any defined term (as it is used therein), will be effective as to any Purchaser unless consented to by such Purchaser in writing; and
(b)    no amendment or waiver may, without the written consent of each Purchaser and the holder of each Note at the time outstanding, (i) subject to Section 12 relating to acceleration or rescission, change the amount or time of any prepayment or payment of principal of, or reduce the rate or change the time of payment or method of computation of (x) interest on the Notes or (y) the Make-Whole Amount, (ii) change the percentage of the principal amount of the Notes the holders of which are required to consent to any amendment or waiver, or the principal amount of the Notes that the Purchasers are to purchase pursuant to Section 2 upon the satisfaction of the conditions to Closing that appear in Section 4, or (iii) amend any of Sections 8 (except as set forth in the second sentence of Section 8.2) 11(a), 11(b), 12, 18 or 21.
Section 18.2.    Solicitation of Holders of Notes.  (a)  Solicitation.  The Company will provide each Purchaser and holder of a Note with sufficient information, sufficiently far in advance of the date a decision is required, to enable such Purchaser and such holder to make an informed and considered decision with respect to any proposed amendment, waiver or consent in respect of any of the provisions hereof or of the Notes or any Subsidiary Guaranty.  The Company will deliver executed or true and correct copies of each amendment, waiver or consent effected pursuant to this Section 18 or any Subsidiary Guaranty to each Purchaser and holder of a Note promptly following the date on which it is executed and delivered by, or receives the consent or approval of, the requisite Purchasers or holders of Notes.
(b)    Payment.  The Company will not directly or indirectly pay or cause to be paid any remuneration, whether by way of supplemental or additional interest, fee or otherwise, or grant any security or provide other credit support, to any Purchaser or holder of a Note as consideration for or as an inducement to the entering into by such Purchaser or holder of any waiver or amendment of any of the terms and provisions hereof or of any Subsidiary Guaranty or any Note unless such remuneration is concurrently paid, or security is concurrently granted or other credit support concurrently provided, on the same terms, ratably to each Purchaser and each holder of a Note even if such Purchaser or holder did not consent to such waiver or amendment.








(c)    Consent in Contemplation of Transfer.  Any consent given pursuant to this Section 18 or any Subsidiary Guaranty by a holder of a Note that has transferred or has agreed to transfer its Note to the Company, any Subsidiary or any Affiliate of the Company in connection with such consent shall be void and of no force or effect except solely as to such holder, and any amendments effected or waivers granted or to be effected or granted that would not have been or would not be so effected or granted but for such consent (and the consents of all other holders of Notes that were acquired under the same or similar conditions) shall be void and of no force or effect except solely as to such holder.
Section 18.3.    Binding Effect, Etc.  Any amendment or waiver consented to as provided in this Section 18 or any Subsidiary Guaranty applies equally to all Purchasers and holders of Notes and is binding upon them and upon each future holder of any Note and upon the Company without regard to whether such Note has been marked to indicate such amendment or waiver.  No such amendment or waiver will extend to or affect any obligation, covenant, agreement, Default or Event of Default not expressly amended or waived or impair any right consequent thereon.  No course of dealing between the Company and any Purchaser or holder of a Note and no delay in exercising any rights hereunder or under any Note or Subsidiary Guaranty shall operate as a waiver of any rights of any Purchaser or holder of such Note.
Section 18.4.    Notes Held by Company, Etc.  Solely for the purpose of determining whether the holders of the requisite percentage of the aggregate principal amount of Notes then outstanding approved or consented to any amendment, waiver or consent to be given under this Agreement, any Subsidiary Guaranty or the Notes, or have directed the taking of any action provided herein or in any Subsidiary Guaranty or the Notes to be taken upon the direction of the holders of a specified percentage of the aggregate principal amount of Notes then outstanding, Notes directly or indirectly owned by the Company or any of its Affiliates shall be deemed not to be outstanding.
SECTION 19.    NOTICES.
Except to the extent otherwise provided in Section 7.4, all notices and communications provided for hereunder shall be in writing and sent (a) by telecopy if the sender on the same day sends a confirming copy of such notice by an internationally recognized overnight delivery service (charges prepaid), or (b) by registered or certified mail with return receipt requested (postage prepaid), or (c) by an internationally recognized overnight delivery service (with charges prepaid).  Any such notice must be sent:
(i)    if to any Purchaser or its nominee, to such Purchaser or nominee at the address specified for such communications in Schedule B, or at such other address as such Purchaser or nominee shall have specified to the Company in writing,
(ii)    if to any other holder of any Note, to such holder at such address as such other holder shall have specified to the Company in writing, or








(iii)    if to the Parent REIT or the Company, to the Company at its address set forth at the beginning hereof to the attention of Finance Department, or at such other address as the Company shall have specified to the holder of each Note in writing.
Notices under this Section 19 will be deemed given only when actually received. 
SECTION 20.    REPRODUCTION OF DOCUMENTS.
This Agreement and all documents relating thereto, including, without limitation, (a) consents, waivers and modifications that may hereafter be executed, (b) documents received by any Purchaser at the Closing (except the Notes themselves), and (c) financial statements, certificates and other information previously or hereafter furnished to any Purchaser, may be reproduced by such Purchaser by any photographic, photostatic, electronic, digital, or other similar process and such Purchaser may destroy any original document so reproduced.  The Company agrees and stipulates that, to the extent permitted by applicable law, any such reproduction shall be admissible in evidence as the original itself in any judicial or administrative proceeding (whether or not the original is in existence and whether or not such reproduction was made by such Purchaser in the regular course of business) and any enlargement, facsimile or further reproduction of such reproduction shall likewise be admissible in evidence.  This Section 20 shall not prohibit the Company or any other holder of Notes from contesting any such reproduction to the same extent that it could contest the original, or from introducing evidence to demonstrate the inaccuracy of any such reproduction.
SECTION 21.    CONFIDENTIAL INFORMATION.








For the purposes of this Section 21, “Confidential Information” means information delivered to any Purchaser by or on behalf of the Parent REIT, the Company or any Subsidiary in connection with the transactions contemplated by or otherwise pursuant to this Agreement that is proprietary in nature and that was clearly marked or labeled or otherwise adequately identified when received by such Purchaser as being confidential information of the Parent REIT, the Company or such Subsidiary, provided that such term does not include information that (a) was publicly known or otherwise known to such Purchaser prior to the time of such disclosure, (b) subsequently becomes publicly known through no act or omission by such Purchaser or any Person acting on such Purchaser’s behalf, (c) otherwise becomes known to such Purchaser other than through disclosure by the Company or any Subsidiary or (d) constitutes financial statements delivered to such Purchaser under Section 7.1 that are otherwise publicly available.  Each Purchaser will maintain the confidentiality of such Confidential Information in accordance with procedures adopted by such Purchaser in good faith to protect confidential information of third parties delivered to such Purchaser, provided that such Purchaser may deliver or disclose Confidential Information to (i) its directors, officers, employees, agents, attorneys, trustees and affiliates (to the extent such disclosure reasonably relates to the administration of the investment represented by its Notes), (ii) its auditors, financial advisors and other professional advisors who agree to hold confidential the Confidential Information substantially in accordance with this Section 21, (iii) any other holder of any Note, (iv) any Institutional Investor to which it sells or offers to sell such Note or any part thereof or any participation therein (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by this Section 21), (v) any Person from which it offers to purchase any Security of the Company (if such Person has agreed in writing prior to its receipt of such Confidential Information to be bound by this Section 21, (vi) any federal or state regulatory authority having jurisdiction over such Purchaser, (vii) the NAIC or the SVO or, in each case, any similar organization, or any nationally recognized rating agency that requires access to information about such Purchaser’s investment portfolio, or (viii) any other Person to which such delivery or disclosure may be necessary or appropriate (w) to effect compliance with any law, rule, regulation or order applicable to such Purchaser, (x) in response to any subpoena or other legal process, (y) in connection with any litigation to which such Purchaser is a party or (z) if an Event of Default has occurred and is continuing, to the extent such Purchaser may reasonably determine such delivery and disclosure to be necessary or appropriate in the enforcement or for the protection of the rights and remedies under such Purchaser’s Notes, this Agreement or any Subsidiary Guaranty.  Each holder of a Note, by its acceptance of a Note, will be deemed to have agreed to be bound by and to be entitled to the benefits of this Section 21 as though it were a party to this Agreement.  On reasonable request by the Company in connection with the delivery to any holder of a Note of information required to be delivered to such holder under this Agreement or requested by such holder (other than a holder that is a party to this Agreement or its nominee), such holder will enter into an agreement with the Company embodying this Section 21.








In the event that as a condition to receiving access to information relating to the Parent REIT, the Company or its Subsidiaries in connection with the transactions contemplated by or otherwise pursuant to this Agreement, any Purchaser or holder of a Note is required to agree to a confidentiality undertaking (whether through IntraLinks, another secure website, a secure virtual workspace or otherwise) which is different from this Section 21, this Section 21 shall not be amended thereby and, as between such Purchaser or such holder and the Parent REIT and the Company, this Section 21 shall supersede any such other confidentiality undertaking.
SECTION 22.    SUBSTITUTION OF PURCHASER.
Each Purchaser shall have the right to substitute any one of its Affiliates or another Purchaser or any one of such other Purchaser’s Affiliates (a “Substitute Purchaser”) as the purchaser of the Notes that it has agreed to purchase hereunder, by written notice to the Company, which notice shall be signed by both such Purchaser and such Substitute Purchaser, shall contain such Substitute Purchaser’s agreement to be bound by this Agreement and shall contain a confirmation by such Substitute Purchaser of the accuracy with respect to it of the representations set forth in Section 6.  Upon receipt of such notice, any reference to such Purchaser in this Agreement (other than in this Section 22), shall be deemed to refer to such Substitute Purchaser in lieu of such original Purchaser.  In the event that such Substitute Purchaser is so substituted as a Purchaser hereunder and such Substitute Purchaser thereafter transfers to such original Purchaser all of the Notes then held by such Substitute Purchaser, upon receipt by the Company of notice of such transfer, any reference to such Substitute Purchaser as a “Purchaser” in this Agreement (other than in this Section 22), shall no longer be deemed to refer to such Substitute Purchaser, but shall refer to such original Purchaser, and such original Purchaser shall again have all the rights of an original holder of the Notes under this Agreement.
SECTION 23.    MISCELLANEOUS.
Section 23.1.    Successors and Assigns.  All covenants and other agreements contained in this Agreement by or on behalf of any of the parties hereto bind and inure to the benefit of their respective successors and assigns (including, without limitation, any subsequent holder of a Note) whether so expressed or not.  
Section 23.2.    Accounting Terms.  
(a)    All accounting terms used herein which are not expressly defined in this Agreement have the meanings respectively given to them in accordance with GAAP.  Except as otherwise specifically provided herein, (i) all computations made pursuant to this Agreement shall be made in accordance with GAAP, and (ii) all financial statements shall be prepared in accordance with GAAP.  For purposes of determining compliance with this Agreement (including, without limitation, Section 9, Section 10 and the definition of “Indebtedness”), any election by the Company to measure any financial liability using fair value (as permitted by Financial Accounting Standards Board Accounting Standards Codification Topic No. 825-10-25 – Fair Value Option, International Accounting Standard 39 – Financial Instruments: Recognition and Measurement or any similar accounting standard) shall be disregarded and such determination shall be made as if such election had not been made.








(b)    Changes in GAAP.  If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Note Document, and either the Company or the Required Holders shall so request, the holders of Notes and the Company shall negotiate in good faith to amend such ratio or requirement to preserve the original intent thereof in light of such change in GAAP (subject to the approval of the Required Holders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Company shall provide to the holders of Notes financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP. 
(c)    Financial Covenant Calculation Conventions.  Notwithstanding the above, the parties hereto acknowledge and agree that, for purposes of all calculations made under the financial covenants set forth in Section 10.6 (including without limitation for purposes of the definitions of “Pro Forma Basis” set forth in Schedule A, (i) after consummation of any Disposition or removal of an Unencumbered Borrowing Base Property (A) income statement items (whether income or expense) and capital expenditures attributable to the property disposed of or removed shall, to the extent not otherwise excluded in such income statement items for the Company Parties in accordance with GAAP or in accordance with any defined terms set forth in Schedule A, be excluded as of the first day of the applicable period and (B) Indebtedness which is retired shall be excluded and deemed to have been retired as of the first day of the applicable period and (ii) after consummation of any acquisition (A) income statement items (whether positive or negative) and capital expenditures attributable to the Person or property acquired shall, to the extent not otherwise included in such income statement items for the Company Parties in accordance with GAAP or in accordance with any defined terms set forth in Schedule A be included to the extent relating to any period applicable in such calculations, (B) to the extent not retired in connection with such acquisition, Indebtedness of the Person or property acquired shall be deemed to have been incurred as of the first day of the applicable period, (iii) in connection with any incurrence of Indebtedness, any Indebtedness which is retired in connection with such incurrence shall be excluded and deemed to have been retired as of the first day of the applicable period and (iv) pro forma adjustments may be included to the extent that such adjustments would give effect to items that are (1) directly attributable to the relevant transaction, (2) expected to have a continuing impact on the Company Parties and (3) factually supportable (in the opinion of the Required Holders).
Section 23.3.    Severability.  Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall (to the full extent permitted by law) not invalidate or render unenforceable such provision in any other jurisdiction.








Section 23.4.    Construction, Etc.  Each covenant contained herein shall be construed (absent express provision to the contrary) as being independent of each other covenant contained herein, so that compliance with any one covenant shall not (absent such an express contrary provision) be deemed to excuse compliance with any other covenant.  Where any provision herein refers to action to be taken by any Person, or which such Person is prohibited from taking, such provision shall be applicable whether such action is taken directly or indirectly by such Person.
Section 23.5.    Counterparts.  This Agreement may be executed in any number of counterparts, each of which shall be an original but all of which together shall constitute one instrument.  Each counterpart may consist of a number of copies hereof, each signed by less than all, but together signed by all, of the parties hereto.
Section 23.6.    Governing Law.  This Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the law of the State of New York excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.
Section 23.7.    Jurisdiction and Process; Waiver of Jury Trial.  (a) The Company irrevocably submits to the non-exclusive jurisdiction of any New York State or federal court sitting in the Borough of Manhattan, The City of New York, over any suit, action or proceeding arising out of or relating to this Agreement or the Notes.  To the fullest extent permitted by applicable law, the Company irrevocably waives and agrees not to assert, by way of motion, as a defense or otherwise, any claim that it is not subject to the jurisdiction of any such court, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum.
(b)    The Company consents to process being served by or on behalf of any holder of Notes in any suit, action or proceeding of the nature referred to in Section 23.7(a) by mailing a copy thereof by registered or certified mail (or any substantially similar form of mail), postage prepaid, return receipt requested, to it at its address specified in Section 19 or at such other address of which such holder shall then have been notified pursuant to said Section.  The Company agrees that such service upon receipt (i) shall be deemed in every respect effective service of process upon it in any such suit, action or proceeding and (ii) shall, to the fullest extent permitted by applicable law, be taken and held to be valid personal service upon and personal delivery to it.  Notices hereunder shall be conclusively presumed received as evidenced by a delivery receipt furnished by the United States Postal Service or any reputable commercial delivery service.
(c)    Nothing in this Section 23.7 shall affect the right of any holder of a Note to serve process in any manner permitted by law, or limit any right that the holders of any of the Notes may have to bring proceedings against the Company in the courts of any appropriate jurisdiction or to enforce in any lawful manner a judgment obtained in one jurisdiction in any other jurisdiction.








(d)    The parties hereto hereby waive trial by jury in any action brought on or with respect to this Agreement, the Notes or any other document executed in connection herewith or therewith.
Section 23.8.    Subordination.   If the Company or any other Note Party is now or hereafter becomes indebted to one or more Guarantors including with respect to any Permitted Intercompany Mortgage (such indebtedness and all interest thereon and other obligations with respect thereto being referred to as “Affiliated Debt”), then such Affiliated Debt shall be subordinate in all respects to the full payment and performance of the Obligations, and no Guarantor shall be entitled to enforce or receive payment with respect to any Affiliated Debt until such time as the Obligations have been irrevocably paid in full and the commitments relating thereto have expired or been terminated; provided that, so long as no Event of Default has occurred and is continuing, a Guarantor may receive payments with respect to any Affiliated Debt including the payment in full of same.  Each Guarantor agrees that any Liens, mortgages, deeds of trust, security interests, judgment liens, charges or other encumbrances upon the Company’s or any other Note Party’s assets securing the payment of the Affiliated Debt shall be and remain subordinate and inferior to any Liens, security interests, judgment liens, charges or other encumbrances upon the Company’s or any other Note Party’s assets securing the payment and performance of the Obligations. If an Event of Default exists, then, without the prior written consent of the holders of the Notes, no Guarantor shall exercise or enforce any creditor’s rights of any nature against the Company or any other Note Party to collect the Affiliated Debt (other than demand payment therefor) or enforce any such Liens, security interests, judgment liens, charges or other encumbrances.  In the event of the receivership, bankruptcy, reorganization, arrangement, debtor’s relief or other insolvency proceedings involving the Company or any applicable Note Party as a debtor, the holders of the Notes have the right and authority, either in their own name or as attorney-in-fact for any applicable Guarantor, to file such proof of debt, claim, petition or other documents and to take such other steps as are necessary to prove its rights hereunder and receive directly from the receiver, trustee or other court custodian, payments, distributions or other dividends which would otherwise be payable upon the Affiliated Debt.  Each Guarantor hereby assigns such payments, distributions and dividends to the holders of the Notes, and irrevocably appoints the each holder of the Notes as its true and lawful attorney-in-fact (which appointment is coupled with an interest) with authority to make and file in the name of such Guarantor any proof of debt, amendment of proof of debt, claim, petition or other document in such proceedings and to receive payment of any sums becoming distributable on account of the Affiliated Debt, and to execute such other documents and to give acquittances therefor and to do and perform all such other acts and things for and on behalf of such Guarantor as may be reasonably necessary in the opinion of the holders of the Notes in order to have the Affiliated Debt allowed in any such proceeding and to receive payments, distributions or dividends of or on account of the Affiliated Debt.


*    *    *    *    *









If you are in agreement with the foregoing, please sign the form of agreement on a counterpart of this Agreement and return it to the Company, whereupon this Agreement shall become a binding agreement between you and the Company.
Very truly yours,


Pebblebrook Hotel, L.P.
a Delaware limited partnership


By:    Pebblebrook Hotel Trust, a Maryland
real estate investment trust, its general partner




By /s/ Raymond D. Martz
Name:    Raymond D. Martz
Title:    Executive Vice President
Chief Financial Officer




Pebblebrook Hotel Trust
a Maryland real estate investment trust,




By /s/ Raymond D. Martz
Name:    Raymond D. Martz
Title:    Executive Vice President
Chief Financial Officer









This Agreement is hereby
accepted and agreed to as 
of the date hereof.
[Add Purchaser Signature Blocks]













Defined Terms
As used herein, the following terms have the respective meanings set forth below or set forth in the Section hereof following such term: 
"Additional Surge Date” is defined in Section 10.6(a)(i)(B).
“Additional Surge Period” is defined in Section 10.6(a)(i)(B).
“Adjusted NOI” means, as of any date of calculation, the sum of Net Operating Incomes for all Real Properties for the most recently-ended Calculation Period (and, if specifically required, including adjustments for subsequent events or conditions on a Pro Forma Basis).
“Adjusted Unrestricted Cash” means, on any date, an amount, not less than zero ($0), equal to the Company Party’s Unrestricted Cash less (a) with respect to the calculation of the Consolidated Leverage Ratio, $10,000,000, and (b) with respect to the calculation of the Unsecured Leverage Ratio, $100,000,000.
“Affiliate” means, at any time, and with respect to any Person, any other Person that at such time directly or indirectly through one or more intermediaries Controls, or is Controlled by, or is under common Control with, the Person specified.  Unless the context otherwise clearly requires, any reference to an “Affiliate” is a reference to an Affiliate of the Company. 
“Affiliate Guaranties” means the Parent Guaranty and the Subsidiary Guaranty, and “Affiliate Guaranty” means any one of the Affiliate Guaranties.
“Affiliated Debt” has the meaning specified in Section 23.8.
 “Agreement” means this Agreement, including all Schedules attached to this Agreement, as it may be amended, restated, supplemented or otherwise modified from time to time.
“Anti-Corruption Laws” is defined in Section 5.16(d)(1).
“Anti-Money Laundering Laws” is defined in Section 5.16(c).
“Attributable Indebtedness” means, on any date, (a) in respect of any capital lease of any Person, the capitalized amount thereof that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP, and (b) in respect of any Synthetic Lease Obligation, the capitalized amount of the remaining lease payments under the relevant lease that would appear on a balance sheet of such Person prepared as of such date in accordance with GAAP if such lease were accounted for as a capital lease.
“Bank of America Credit Facility” means the agreement referenced in clause (c) of the definition of Material Credit Facility; provided that if the Bank of America Credit Facility shall no longer be in existence, then the discretion given under this Agreement to the Bank of America Credit Facility shall instead be at the discretion of the Required Holders.
Schedule A
(to Note Purchase Agreement)






“Bank of America Term Facility” means the facility evidenced by that certain Credit Agreement, dated as of October 31, 2018, among the Company, the Parent REIT, certain lenders party thereto, and Bank of America, as administrative agent (as the same may be amended, restated, modified or supplemented from time to time).
“Blocked Person” is defined in Section 5.16(a).
“Business Day” means (a) for the purposes of Section 8.6 only, any day other than a Saturday, a Sunday or a day on which commercial banks in New York City are required or authorized to be closed, and (b) for the purposes of any other provision of this Agreement, any day other than a Saturday, a Sunday or a day on which commercial banks in New York, New York are required or authorized to be closed.
“Calculation Period” means, as of any date of determination commencing with the delivery of the Required Financial Information for the fiscal quarter ending June 30, 2017, the most recent four (4) fiscal quarter period for which the Company has provided the Required Financial Information; provided that, for calculations made on a Pro Forma Basis, the amounts calculated for the applicable Calculation Period shall be adjusted as set forth in Section 23.2(c) but shall otherwise relate to the applicable Calculation Period (as defined above).
“Capitalization Rate” shall have the meaning ascribed to such term in the Primary Credit Facilities from time to time, and, if for any reason no Primary Credit Facility then exists or such term is no longer used therein, the Capitalization Rate most recently in effect.  Notwithstanding the foregoing, in no event shall the “Capitalization Rate” at any time be less than (a) 6.75% in the case of Real Properties in the central business districts of New York, New York; San Diego, California; San Francisco, California; Washington, D.C.; and Boston, Massachusetts; (b) 6.75% in the case of Los Angeles, California urban Real Properties (including Real Properties located in Santa Monica, California) and LaPlaya Beach Resort & Club; and (c) 7.50% in the case of all other Real Properties.
“Capital One Facility” means the facility evidenced by that certain Credit Agreement, dated as of the date hereof, among the Company, the Parent REIT, certain lenders party thereto, and Capital One, National Association, as administrative agent (as the same may be amended, restated, modified or supplemented from time to time).
“Cash Equivalents” means any of the following types of Investments, to the extent owned by any Company Party:
(a)    readily marketable obligations issued or directly and fully guaranteed or insured by the United States or any agency or instrumentality thereof having maturities of not more than 360 days from the date of acquisition thereof; provided that the full faith and credit of the United States is pledged in support thereof;








(b)    time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i)(A) is a lender under the Bank of America Term Facility or (B) is organized under the laws of the United States, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof or the District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as described in clause (c) of this definition and (iii) has combined capital and surplus of at least $1,000,000,000, in each case with maturities of not more than 180 days from the date of acquisition thereof;
(c)    commercial paper issued by any Person organized under the laws of any state of the United States and rated at least “Prime-1” (or then equivalent grade) by Moody’s or at least “A-1” (or then equivalent grade) by S&P, in each case with maturities of not more than 180 days from the date of acquisition thereof; and
(d)    Investments, classified in accordance with GAAP as current assets of any Company Party, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions that have the highest rating obtainable from either Moody’s or S&P, and the portfolios of which are limited solely to Investments of the character, quality and maturity described in clauses (a), (b) and (c) of this definition.
“Change in Control” means an event or series of events by which:
(a)    any “person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but excluding any employee benefit plan of such person or its subsidiaries, and any person or entity acting in its capacity as trustee, agent or other fiduciary or administrator of any such plan) becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934, except that a person or group shall be deemed to have “beneficial ownership” of all securities that such person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “option right”)), directly or indirectly, of twenty-five percent (25%) or more of the equity securities of the Company or Parent REIT entitled to vote for members of the board of directors or equivalent governing body of the Company or Parent REIT on a fully-diluted basis (and taking into account all such securities that such person or group has the right to acquire pursuant to any option right);








(b)    during any period of twenty-four (24) consecutive months, a majority of the members of the board of directors or other equivalent governing body of the Company or Parent REIT cease to be composed of individuals (i) who were members of that board or equivalent governing body on the first day of such period, (ii) whose election or nomination to that board or equivalent governing body was approved by individuals referred to in clause (i) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body or (iii) whose election or nomination to that board or other equivalent governing body was approved by individuals referred to in clauses (i) and (ii) above constituting at the time of such election or nomination at least a majority of that board or equivalent governing body; or
(c)    the passage of thirty (30) days from the date upon which any Person or two (2) or more Persons acting in concert shall have acquired by contract or otherwise, or shall have entered into a contract or arrangement that, upon consummation thereof, will result in its or their acquisition of the power to exercise, directly or indirectly, a controlling influence over the management or policies of the Company or Parent REIT, or control over the equity securities of the Company or Parent REIT entitled to vote for members of the board of directors or equivalent governing body of the Company or Parent REIT on a fully-diluted basis (and taking into account all such securities that such Person or group has the right to acquire pursuant to any option right) representing twenty-five percent (25%) or more of the combined voting power of such securities.
“CISADA” means the Comprehensive Iran Sanctions, Accountability and Divestment Act.
“Closing” is defined in Section 3.
“Code” means the Internal Revenue Code of 1986, as amended from time to time, and the rules and regulations promulgated thereunder from time to time.
“Collateral” is defined in Section 9.10.
“Collateral Agent” means Truist Bank, a North Carolina banking corporation.
“Collateral Agency Agreement” means that certain Collateral Agency Agreement dated as of the Second Amendment Effective Date among the Collateral Agent and the holders of Notes. 
“Collateral Documents” means, collectively, the Collateral Agency Agreement, the Pledge Agreement, the Intercreditor Agreement and all other agreements, instruments and documents executed in connection with this Agreement that are intended to create, perfect or evidence Liens to secure the Obligations, including all other security agreements, pledge agreements, deeds of trust, pledges, powers of attorney, consents, assignments, notices, financing statements and all other written matter whether heretofore, now, or hereafter executed by the Company or any of its Subsidiaries and delivered to the Collateral Agent to create, perfect or evidence Liens to secure the Obligations.








“Collateral Period” means any period after the Second Amendment Effective Date commencing on the occurrence of a Collateral Trigger Date and ending on the Collateral Release Date.
“Collateral Release” is defined in Section 9.10. 
“Collateral Release Certificate” is defined in Section 9.10.
“Collateral Release Date” means any date after the expiration of the Waiver Period on which (a) no Default or Event of Default is continuing, (b) the Company delivers a Collateral Release Certificate as required by Section 9.10, and (c) the Consolidated Leverage Ratio is either (i) less than or equal to 6.75 to 1.00 as of the last day of any two (2) consecutive fiscal quarters, or (ii) less than or equal to 6.25 to 1.00 as of the last day of any fiscal quarter, in each case as reflected on the most recently delivered Compliance Certificate delivered pursuant to Section 7.2(a).
“Collateral Trigger Date” means any date during the Waiver Period, on which (a) the Liquidity of the Consolidated Parties does not exceed $400,000,000 after the Fourth Amendment Effective Date (the “First Limited Collateral Trigger Event”), (b) the Liquidity of the Consolidated Parties does not exceed $300,000,000 after the Second Amendment Effective Date (the “Second Limited Collateral Trigger Event”), (c) the Liquidity of the Consolidated Parties does not exceed $250,000,000 after the Second Amendment Effective Date, or (d) the Total Revolving Credit Outstandings exceed $400,000,000 at any time on or after the fourth (4th) Business Day following the Second Amendment Effective Date.
“Company” means Pebblebrook Hotel, L.P., a Delaware limited partnership or any successor that becomes such in the manner prescribed in Section 10.2.
“Company Parties” means, without duplication, the Parent REIT and its consolidated Subsidiaries (including the Company), and “Company Party” means any one of the Company Parties.
“Confidential Information” is defined in Section 21.
“Consolidated Adjusted EBITDA” means, for any period, EBITDA less an annual replacement reserve equal to four percent (4.0%) of gross property revenues (excluding revenues with respect to third party space or retail leases).
“Consolidated Fixed Charge Coverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Adjusted EBITDA for the Calculation Period ending on such date to (b) Consolidated Fixed Charges for such period.








“Consolidated Fixed Charges” means, for any period, the sum of (a) Consolidated Interest Charges for such period, plus (b) current scheduled principal payments on Consolidated Funded Indebtedness for such period (including, for purposes hereof, current scheduled reductions in commitments, but excluding any payment of principal under the Material Credit Facilities or under this Agreement and any “balloon” payment or final payment at maturity that is significantly larger than the scheduled payments that preceded it), plus (c) dividends and distributions paid in cash on preferred stock by the Company Parties on a consolidated basis and all Unconsolidated Affiliates, if any, for such period, in each case, determined in accordance with GAAP; provided that, to the extent the calculations under clauses (a), (b) and (c) above include amounts allocable to Unconsolidated Affiliates, such calculations shall be without duplication and shall only include such amounts to the extent attributable to any Unconsolidated Affiliate Interests (or, if greater, amounts that are attributable to Consolidated Funded Indebtedness that is recourse to a Company Party).
“Consolidated Funded Indebtedness” means, as of any date of determination, without duplication, the sum of (a) the outstanding principal amount of all obligations of the Company Parties on a consolidated basis, whether current or long-term, for borrowed money (including all obligations hereunder and under the Notes and, without duplication, Affiliate Guaranties) and all obligations of the Company Parties on a consolidated basis evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (b) all purchase money Indebtedness of the Company Parties on a consolidated basis, (c) all obligations of the Company Parties on a consolidated basis arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments, (d) all obligations of the Company Parties on a consolidated basis in respect of forward purchase agreements or the deferred purchase price of any property or services (other than trade accounts payable in the ordinary course of business), (e) Attributable Indebtedness of the Company Parties on a consolidated basis in respect of capital leases and Synthetic Lease Obligations, (f) without duplication, all Guarantees of the Company Parties on a consolidated basis with respect to outstanding Indebtedness of the types specified in clauses (a) through (e) above of Persons other than the Parent REIT or any Subsidiary, (g) without duplication, all Indebtedness of the Company Parties on a consolidated basis of the types referred to in clauses (a) through (f) above of any partnership or joint venture in which the Parent REIT or a Subsidiary is a general partner or joint venturer, and (h) without duplication, the aggregate amount of Unconsolidated Affiliate Funded Indebtedness for all Unconsolidated Affiliates.  Notwithstanding the foregoing, Consolidated Funded Indebtedness shall exclude Excluded Capital Leases.








“Consolidated Interest Charges” means, for any period, the sum of (a) all interest, premium payments, debt discount, fees, charges and related expenses of the Company Parties on a consolidated basis and all Unconsolidated Affiliates, in connection with borrowed money (including capitalized interest) or in connection with the deferred purchase price of assets, in each case to the extent treated as interest in accordance with GAAP, and (b) the portion of rent expense of the Company Parties on a consolidated basis and all Unconsolidated Affiliates with respect to such period under capital leases (other than Excluded Capital Leases) that is treated as interest in accordance with GAAP; provided that, to the extent the calculations under clauses (a) and (b) above include amounts allocable to Unconsolidated Affiliates, such calculations shall be without duplication and shall only include such amounts to the extent attributable to any Unconsolidated Affiliate Interests (or, if greater, amounts that are attributable to Consolidated Funded Indebtedness that is recourse to a Company Party).
“Consolidated Leverage Ratio” means, as of any date of determination, the ratio of (a) Consolidated Funded Indebtedness less Adjusted Unrestricted Cash as of such date to (b) EBITDA for the Calculation Period most recently ended.
“Consolidated Net Income” means, for any period, the sum of (a) the net income of the Company Parties on a consolidated basis (excluding extraordinary gains, extraordinary losses and gains and losses from the sale of assets) for such period, calculated in accordance with GAAP, plus (b) without duplication, an amount equal to the aggregate of net income (excluding extraordinary gains and extraordinary losses) for such period, calculated in accordance with GAAP, of each Unconsolidated Affiliate multiplied by the respective Unconsolidated Affiliate Interest in each such entity.
“Consolidated Recourse Secured Indebtedness” means, as of any date of determination, for the Company Parties on a consolidated basis and all Unconsolidated Affiliates, all Secured Debt that is recourse to any Company Party or any Unconsolidated Affiliate (except to the extent such recourse is limited to customary non-recourse carve-outs); provided that, to the extent the calculation of Secured Debt includes amounts allocable to Unconsolidated Affiliates, such calculation shall be without duplication and shall only include such amounts to the extent attributable to any Unconsolidated Affiliate Interests (or, if greater, amounts that are attributable to Secured Debt that is recourse to a Company Party).
“Consolidated Secured Debt” means, as of any date of determination, for the Company Parties on a consolidated basis and all Unconsolidated Affiliates, all Secured Debt; provided that, to the extent the calculation of Secured Debt includes amounts allocable to Unconsolidated Affiliates, such calculation shall be without duplication and shall only include such amounts to the extent attributable to any Unconsolidated Affiliate Interests (or, if greater, amounts that are attributable to Secured Debt that is recourse to a Company Party).








“Consolidated Tangible Net Worth” means, as of any date of determination, for the Company Parties on a consolidated basis and all Unconsolidated Affiliates, Shareholders’ Equity on that date, minus the amount of Intangible Assets, plus the amount of accumulated depreciation; provided that there shall be excluded from the calculation of “Consolidated Tangible Net Worth” any effects resulting from the application of FASB ASC No. 715: Compensation – Retirement Benefits; provided, further, that, to the extent the calculation of the foregoing amounts includes amounts allocable to Unconsolidated Affiliates, such calculation shall be without duplication and shall only include such amounts to the extent attributable to any Unconsolidated Affiliate Interests.
“Consolidated Total Asset Value” means, without duplication, as of any date of determination, for the Company Parties on a consolidated basis, the sum of: (a) the Operating Property Value of all Real Properties (other than Development/Redevelopment Properties); (b) the amount of all Unrestricted Cash; (c) the book value of all Development/Redevelopment Properties, mortgage or real estate-related loan assets and undeveloped or speculative land; (d) the contract purchase price for all assets under contract for purchase (to the extent included in Indebtedness); and (e) the Company’s applicable Unconsolidated Affiliate Interests of the preceding items for its Unconsolidated Affiliates.
“Consolidated Unsecured Interest Coverage Ratio” means, as of any date of determination, the ratio of (a) Net Operating Income from the Unencumbered Borrowing Base Properties for the Calculation Period ending on such date to (b) Unsecured Interest Charges for such period; provided that, there shall be excluded from the calculation of Consolidated Unsecured Interest Coverage Ratio: (a) any excess above forty percent (40%) of aggregate Net Operating Income from the Unencumbered Borrowing Base Properties from any one Major MSA and (b) any excess above thirty-three percent (33%) of aggregate Net Operating Income from the Unencumbered Borrowing Base Properties from any one Other MSA.
“Contractual Obligation” means, as to any Person, any provision of any security issued by such Person or of any agreement, instrument or other undertaking to which such Person is a party or by which it or any of its property is bound.
“Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise.  “Controlling” and “Controlled” have meanings correlative thereto.
“Controlled Entity” means (i) any of the Subsidiaries of the Company and any of their or the Company’s respective Controlled Affiliates and (ii) if the Company has a parent company, such parent company and its Controlled Affiliates.  
 “Debtor Relief Laws” means the Bankruptcy Code of the United States, and all other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief laws of the United States or other applicable jurisdictions from time to time in effect and affecting the rights of creditors generally.








“Default” means an event or condition the occurrence or existence of which would, with the lapse of time or the giving of notice or both, become an Event of Default.
“Default Rate” means that rate of interest that is the greater of (i) 2.00% per annum above the rate of interest currently applicable to the Notes or (ii) 2.00% over the rate of interest publicly announced by U.S. Bank, N.A. in New York, New York as its “base” or “prime” rate.
“Development/Redevelopment Property” means Real Property with respect to which development activities are being undertaken by the applicable owner thereof.  A Real Property shall cease to be a Development/Redevelopment Property on the last day of the sixth (6th) full fiscal quarter after opening or reopening (or such earlier date as elected by the Company by written notice to the holders of the Notes).
“Disclosure Documents” is defined in Section 5.3.
“Disposition” or “Dispose” means the sale, transfer, license, lease (excluding the lease of any Unencumbered Borrowing Base Property and personal property assets related thereto to any TRS pursuant to a form of Lease approved in the manner required under the Bank of America Credit Facility) or other disposition of any property by any Person (including any sale leaseback transaction), including any sale, assignment, transfer or other disposal, with or without recourse, of any notes or accounts receivable or any rights and claims associated therewith.  For the avoidance of doubt, leases of personal or Real Property (other than sale and leaseback transactions) entered into in the ordinary course of business shall not be deemed to be Dispositions.
“Dividing Person” is defined in the definition of “Division.”
“Division” means the division of the assets, liabilities and/or obligations of a Person (the “Dividing Person”) among two or more Persons (whether pursuant to a “plan of division” or similar arrangement), which may or may not include the Dividing Person and pursuant to which the Dividing Person may or may not survive.
“Dollar” and “$” mean lawful money of the United States.








“EBITDA” means, for any period, the sum of (a) an amount equal to Consolidated Net Income for such period plus (b) the following to the extent deducted in calculating such Consolidated Net Income: (i) Consolidated Interest Charges for such period, (ii) the provision for Federal, state, local and foreign income taxes payable by the Company Parties and Unconsolidated Affiliates for such period, (iii) depreciation and amortization expense of the Company Parties and Unconsolidated Affiliates, (iv) other non-recurring expenses of the Company Parties and Unconsolidated Affiliates reducing such Consolidated Net Income which do not represent a cash item in such period or any future period, (v) without duplication of any of the foregoing, amounts deducted from net income as a result of fees or expenses incurred in connection with acquisitions permitted under this Agreement, that can no longer be capitalized due to FAS 141R Changes and charges relating to the under-accrual of earn outs due to the FAS 141R Changes, (vi) all non-cash items with respect to straight-lining of rents materially decreasing Consolidated Net Income for such period, and (vii) all other non-cash items decreasing Consolidated Net Income (including non-cash expenses or losses with respect to Excluded Capital Leases), minus (c) the following to the extent included in calculating such Consolidated Net Income: (i) Federal, state, local and foreign income tax credits of the Company Parties and Unconsolidated Affiliates for such period, (ii) all non-cash items with respect to straight-lining of rents materially increasing Consolidated Net Income for such period, and (iii) all other non-cash items increasing Consolidated Net Income for such period (including non-cash revenues or gains with respect to Excluded Capital Leases); provided that, to the extent the calculations under clauses (a), (b) and (c) above include amounts allocable to Unconsolidated Affiliates, such calculations shall be without duplication and shall only include such amounts to the extent attributable to any Unconsolidated Affiliate Interests. “EDGAR” means the SEC’s Electronic Data Gathering, Analysis and Retrieval System or any successor SEC electronic filing system for such purposes
“Eligible Ground Lease” means a ground or similar building lease with respect to an Unencumbered Borrowing Base Property executed by the Company or a Subsidiary of the Company, as lessee, (a) that has a remaining lease term (including extension or renewal rights) of at least thirty-five (35) years, calculated as of the date such property becomes an Unencumbered Borrowing Base Property, (b) that is in full force and effect, (c) that may be transferred and/or assigned without the consent of the lessor (or as to which (i) such lease may be transferred and/or assigned with the consent of the lessor and (ii) such consent shall not be unreasonably withheld or delayed or is subject to certain customary and reasonable requirements), and (d) pursuant to which (i) no default or terminating event exists thereunder, and (ii) no event has occurred which but for the passage of time, or notice, or both would constitute a default or terminating event thereunder.
“Environmental Laws” means any and all federal, state, local, and foreign statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, permits, concessions, grants, franchises, licenses, agreements or governmental restrictions relating to pollution and the protection of the environment or the release of any materials into the environment, including but not limited to those related to Hazardous Materials.








“Equity Interests” means, with respect to any Person, all of the shares of capital stock of (or other ownership or profit interests in) such Person, all of the warrants, options or other rights for the purchase or acquisition from such Person of shares of capital stock of (or other ownership or profit interests in) such Person, all of the securities convertible into or exchangeable for shares of capital stock of (or other ownership or profit interests in) such Person or warrants, rights or options for the purchase or acquisition from such Person of such shares (or such other interests), and all of the other ownership or profit interests in such Person (including partnership, member or trust interests therein), whether voting or nonvoting, and whether or not such shares, warrants, options, rights or other interests are outstanding on any date of determination; provided that neither Permitted Convertible Notes (prior to conversion thereof) nor Permitted Convertible Notes Swap Contracts shall constitute Equity Interests of the Parent REIT..
“Equity Issuance” means the issuance or sale by any Person of any of its Equity Interests or any capital contribution to such Person by any holder of its Equity Interests.
“ERISA” means the Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect. 
“ERISA Affiliate” means any trade or business (whether or not incorporated) that is treated as a single employer together with the Company under section 414 of the Code. 
“Event of Default” is defined in Section 11.
“Excess Un-Reinvested Proceeds” has the meaning specified in the definition of Excluded Net Proceeds.
“Excluded Capital Lease” means any long-term ground lease or building lease that is treated as a capital lease in accordance with GAAP.
“Excluded Net Proceeds” means (a) Net Cash Proceeds from the issuance of any common Equity Interests of the Parent REIT after the Second Amendment Effective Date in an aggregate amount of up to $500,000,000 to be used to acquire one or more Unencumbered Borrowing Base Properties, (b) Net Cash Proceeds of Dispositions after the Second Amendment Effective Date in the aggregate amount of up to $500,000,0001,000,000,000 that the Company has designated in writing as being held for reinvestment in one or more new Unencumbered Borrowing Base Properties; provided that, if any such Net Cash Proceeds in excess of $200,000,000400,000,000 are not reinvested in one or more new Unencumbered Borrowing Base Properties on or before MarchJune 3130, 2022 (the “Excess Un‐Reinvested Proceeds”), then such Excess Un-Reinvested Proceeds shall no longer be qualified as Excluded Net Proceeds and shall be used to make an offer to prepay the Notes in accordance with Section 8.9, and (c) Net Cash Proceeds from Permitted Preferred Issuances which are contemporaneously (or not later than thirty (30) days after the issuance thereof) being used to redeem existing preferred Equity Interests of the Parent REIT.








“Excluded Swap Obligations” means, with respect to any Guarantor, any Swap Obligation if, and to the extent that, all or a portion of the Guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guarantee thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason to constitute an “eligible contract participant” as defined in the Commodity Exchange Act (determined after giving effect to any “keepwell, support or other agreement” for the benefit of such Guarantor and any and all Guaranties of such Guarantor’s Swap Obligations by other Note Parties) at the time the Guaranty of such Guarantor, or a grant by such Guarantor of a security interest, becomes effective with respect to such Swap Obligation.  If a Swap Obligation arises under a master agreement governing more than one swap, then such exclusion shall apply only to the portion of such Swap Obligation that is attributable to swaps for which such Guaranty or security interest is or becomes excluded in accordance with the first sentence of this definition.
“Execution Date” is defined in Section 3.
“FAS 141R Changes” means those changes made to a buyer’s accounting practices by the Financial Accounting Standards Board’s Statement of Financial Accounting Standard No. 141R, Business Combinations, which is effective for annual reporting periods that begin in calendar year 2009.


“Fee Termination Date” shall mean the last day of the fiscal quarter in which the Parent REIT and the Company can demonstrate compliance with the below covenant levels for such fiscal quarter:
(a)Consolidated Leverage Ratio shall not exceed 6.75 to 1.00;
(b)Consolidated Fixed Charge Coverage Ratio shall not be less than 1.50 to 1.00;
(c)Unsecured Indebtedness (less Adjusted Unrestricted Cash as of such date) shall not exceed sixty percent (60%) of Unencumbered Asset Value; and
(d)Consolidated Unsecured Interest Coverage Ratio shall not be less than 2.00 to 1.00.
“FFO Distribution Allowance” means, for any fiscal year of the Company Parties, an amount equal to ninety-five percent (95%) of Funds From Operations for such fiscal year.








“Financial Covenant” mean any covenant that relates to one or more numerical measures of the financial condition or results of operations (consolidated or otherwise) of the Company Parties (however expressed and whether stated as a ratio, as a fixed threshold, as an event of default, or otherwise, including, without limitation, financial covenants of the type included in Section 7.11 of the Primary Credit Facilities) (or any thereof shall be amended, restated or otherwise modified) and such financial covenant would be more beneficial, directly or indirectly, to the holders of the Notes than the financial covenants in Sections 10.6 of this Agreement as of the Execution Date. 
“First Limited Collateral Trigger Event” has the meaning specified in the definition of Collateral Trigger Date.
“Form 10-K” is defined in Section 7.1(b).
“Form 10-Q” is defined in Section 7.1(a).
“Fourth Amendment Effective Date” means February 18, 2021.
“Funds From Operations” means, with respect to the immediately prior fiscal quarter period, Consolidated Net Income, plus depreciation and amortization and after adjustments for unconsolidated partnerships and joint ventures as hereafter provided; provided that, to the extent such calculations include amounts allocable to Unconsolidated Affiliates, such calculations shall be without duplication and shall only include such amounts to the extent attributable to any Unconsolidated Affiliate Interests.  Without limiting the foregoing, notwithstanding contrary treatment under GAAP, for purposes hereof, (a) “Funds From Operations” shall include, and be adjusted to take into account, (i) the Parent REIT’s interests in unconsolidated partnerships and joint ventures, on the same basis as consolidated partnerships and subsidiaries, as provided in the “white paper” issued in April 2002 by the National Association of Real Estate Investment Trusts, as may be amended from time to time, and (ii) amounts deducted from net income as a result of pre-funded fees or expenses incurred in connection with acquisitions permitted under the Note Documents that can no longer be capitalized due to FAS 141R Changes and charges relating to the under-accrual of earn outs due to the FAS 141R Changes, and (b) net income (or loss) of the Company Parties on a consolidated basis shall not include gains (or, if applicable, losses) resulting from or in connection with (i) restructuring of indebtedness, (ii) sales of property, (iii) sales or redemptions of preferred stock, (iv) non-cash asset impairment charges or (v) other non-cash items including items with respect to Excluded Capital Leases. 
“GAAP” means generally accepted accounting principles as in effect from time to time in the United States of America.
“Glass Houses” means Glass Houses, a Maryland real estate investment trust. 
 “Governmental Authority” means
(a)    the government of








(i)    the United States of America or any state or other political subdivision thereof, or
(ii)    any other jurisdiction in which any Company Party conducts all or any part of its business, or which asserts jurisdiction over any properties of any Company Party, or
(b)    any entity exercising executive, legislative, judicial, regulatory or administrative functions of, or pertaining to, any such government.
“Governmental Official” means any governmental official or employee, employee of any government-owned or government-controlled entity, political party, any official of a political party, candidate for political office, official of any public international organization or anyone else acting in an official capacity.
“Guarantors” means, collectively, (a) the Parent REIT and (b) each of the Subsidiary Guarantors.
“Guaranty” means, with respect to any Person, any obligation (except the endorsement in the ordinary course of business of negotiable instruments for deposit or collection) of such Person guaranteeing or in effect guaranteeing any indebtedness, dividend or other obligation of any other Person in any manner, whether directly or indirectly, including (without limitation) obligations incurred through an agreement, contingent or otherwise, by such Person:
(a)    to purchase such indebtedness or obligation or any property constituting security therefor;
(b)    to advance or supply funds (i) for the purchase or payment of such indebtedness or obligation, or (ii) to maintain any working capital or other balance sheet condition or any income statement condition of any other Person or otherwise to advance or make available funds for the purchase or payment of such indebtedness or obligation;
(c)    to lease properties or to purchase properties or services primarily for the purpose of assuring the owner of such indebtedness or obligation of the ability of any other Person to make payment of the indebtedness or obligation; or
(d)    otherwise to assure the owner of such indebtedness or obligation against loss in respect thereof.
In any computation of the indebtedness or other liabilities of the obligor under any Guaranty, the indebtedness or other obligations that are the subject of such Guaranty shall be assumed to be direct obligations of such obligor.








“Hazardous Materials” means all explosive or radioactive substances or wastes and all hazardous or toxic substances, wastes or other pollutants, including petroleum or petroleum distillates, asbestos or asbestos-containing materials, polychlorinated biphenyls, radon gas, infectious or medical wastes and all other substances or wastes of any nature regulated pursuant to any Environmental Laws.
“holder” means, with respect to any Note, the Person in whose name such Note is registered in the register maintained by the Company pursuant to Section 14.1, provided, however, that if such Person is a nominee, then for the purposes of Sections 7, 12, 18.2 and 19 and any related definitions in this Schedule A, “holder” shall mean the beneficial owner of such Note whose name and address appears in such register.
“Immaterial Subsidiary” means any Subsidiary whose assets constitute less than one percent (1%) of Consolidated Total Asset Value; provided that if at any time the aggregate Consolidated Total Asset Value of the “Immaterial Subsidiaries” exceeds ten percent (10%) of all Consolidated Total Asset Value, then the Company shall designate certain “Immaterial Subsidiaries” as Guarantors such that the aggregate Consolidated Total Asset Value of the “Immaterial Subsidiaries” which are not Guarantors does not exceed ten percent (10%) of all Consolidated Total Asset Value.
“Incorporated Covenant” is defined in Section 9.9(b).
“Increased Interest Rate” is defined in Section 10.6(a)(ii).
“Indebtedness” means, as to any Person at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:
(a)    all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments;
(b)    all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments;
(c)    net obligations of such Person under any Swap Contract;
(d)    all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable incurred in the ordinary course of business and, in each case, not overdue by more than ninety (90) days after such trade account payable was created, except to the extent that any such trade payables are being disputed in good faith);








(e)    indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;
(f)    capital leases (other than Excluded Capital Leases) and Synthetic Lease Obligations;
(g)    all obligations of such Person to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person or any other Person, valued, in the case of a redeemable preferred interest, at the greater of its voluntary or involuntary liquidation preference plus accrued and unpaid dividends; and
(h)    all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include, without duplication, the Indebtedness of any partnership or joint venture in which such Person is a general partner or a joint venturer.  The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date.  The amount of any capital lease (other than an Excluded Capital Lease) or Synthetic Lease Obligation as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date. For avoidance of doubt, the Indebtedness of the Parent REIT shall include Permitted Convertible Notes (prior to conversion thereof)..
“Information Memorandum” is defined in Section 5.3.
“INHAM Exemption” is defined in Section 6.2(e).
“Initial Compliance Date” means (a) if the Waiver Period ends on the date occurring under clause (a) of the definition of Waiver Period, (i) March 31, 2022 with respect to the financial covenants set forth in Sections 10.6(d), 10.6(f) and 10.6(j)(iii) and (ii) June 30, 2022 with respect to the financial covenants set forth in Section 10.6 (other than the covenants set forth in clauses (d), (e) and (j)(iii) thereof)June 30, 2022 or (b) if the Waiver Period ends on the date occurring under clause (b) of the definition of Waiver Period, the last day of the applicable fiscal quarter set forth in the Compliance Certificate delivered pursuant to such clause (b).
“Institutional Investor” means (a) any Purchaser of a Note, (b) any holder of a Note holding (together with one or more of its affiliates) more than 5% of the aggregate principal amount of the Notes then outstanding, (c) any bank, trust company, savings and loan association or other financial institution, any pension plan, any investment company, any insurance company, any broker or dealer, or any other similar financial institution or entity, regardless of legal form, and (d) any Related Fund of any holder of any Note.








“Intangible Assets” means assets that are considered to be intangible assets under GAAP, including customer lists, goodwill, computer software, copyrights, trade names, trademarks, patents, franchises, licenses, unamortized deferred charges, unamortized debt discount and capitalized research and development costs.
“Intercreditor Agreement” means that certain Intercreditor Agreement, dated as of the Second Amendment Effective Date, by and among the Company, the Parent REIT, certain grantors and guarantors party thereto, Bank of America, N.A., U.S. Bank National Association, Capital One, National Association, the Collateral Agent, and each additional pari passu collateral agent from time to time party thereto.
“Intermediate REIT” means (a) Glass Houses and (b) any Subsidiary of the Company that is formed as a real estate investment trust under its jurisdiction of formation, which Subsidiary does not own any assets (other than any Equity Interests in any Subsidiary that owns any Real Property assets); provided that such Subsidiary (i) shall not incur or guarantee any other Indebtedness and (ii) may receive Restricted Payments paid in cash from its Subsidiaries so long as such Restricted Payments are immediately distributed upon receipt to the Company.
“Investment” means, as to any Person, any direct or indirect acquisition or investment by such Person, whether by means of (a) the purchase or other acquisition of capital stock or other securities of another Person, (b) a loan, advance or capital contribution to, Guarantee or assumption of debt of, or purchase or other acquisition of any other debt or equity participation or interest in, another Person, including any partnership or joint venture interest in such other Person and any arrangement pursuant to which the investor guarantees Indebtedness of such other Person, or (c) the purchase or other acquisition (in one transaction or a series of transactions) of assets of another Person that constitute a business unit.  For purposes of covenant compliance, the amount of any Investment shall be the amount actually invested, without adjustment for subsequent increases or decreases in the value of such Investment.
“Leverage Surge Date” is defined in Section 10.6(a)(i)(A).
“Leverage Surge Period” is defined in Section 10.6(a)(i)(A).
“Lien” means any mortgage, pledge, hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or other), charge, or preference, priority or other security interest or preferential arrangement in the nature of a security interest of any kind or nature whatsoever (including any conditional sale or other title retention agreement, any easement, right of way or other encumbrance on title to real property, and any financing lease having substantially the same economic effect as any of the foregoing).
“Liquidity” means, as of any date of determination, the sum of (a) cash and Cash Equivalents not subject to any Liens, Negative Pledges or other restrictions plus (b) undrawn availability under the Bank of America Credit Facility or under any other credit facilities of the Consolidated Parties (to the extent available to be drawn at the date of determination in accordance with the Bank of America Credit Facility or the other applicable credit facility).








“Liquidity Compliance Certificate” means a certificate substantially in the form of Exhibit A or in such other form as may be agreed by the Company and the Required Holders.
“Major MSA” means the metropolitan statistical area of any of the following:  (a) New York City, New York; (b) Chicago, Illinois; (c) Washington, DC; (d) Los Angeles, California (excluding Santa Monica, California); (e) Boston, Massachusetts; (f) San Diego, California; and (g) San Francisco, California.
“Material Acquisition” means the acquisition by any Company Party, in a single transaction  or in a series of related transactions, of one or more Real Properties or Persons owning Real Properties in  which the total investment with respect to such acquisition is equal to or greater than ten percent (10%)  of Consolidated Total Asset Value at such time.
“Make-Whole Amount” is defined in Section 8.6.
“Material” means material in relation to the business, operations, affairs, financial condition, assets, properties, or prospects of the Company Parties taken as a whole.
“Material Adverse Effect” means a material adverse effect on (a) the operations, business, properties, liabilities (actual or contingent) or condition (financial or otherwise) of the Company Parties taken as a whole, (b) the ability of the Parent REIT and the Company to perform its obligations under this Agreement and the Notes, respectively (c) the ability of any Guarantor to perform its obligations under its Affiliate Guaranty, or (d) the validity or enforceability of this Agreement, the Notes or any Affiliate Guaranty.
“Material Credit Facility” means, as to the Company Parties:
(a)    the Bank of America Credit Facility;
(b)    the Bank of America Term Facility;
(c)    the US Bank Facility; 
(d)    The US Bank Lessee Line of Credit;
(e)    the Capital One Facility; and
(f)    any other agreement(s) creating or evidencing indebtedness for borrowed money entered into on or after the date of the execution and delivery of this Agreement by the Company or any Subsidiary, or in respect of which the Company or any Subsidiary is an obligor or otherwise provides a guarantee or other credit support (“Credit Facility”), in a principal amount outstanding or available for borrowing equal to or greater than $25,000,000 (or the equivalent of such amount in the relevant currency of payment, determined as of the date of the closing of such facility based on the exchange rate of such other currency) but excluding Secured Non-Recourse Debt; and if no Credit Facility or Credit Facilities equal or exceed such amounts, then the largest Credit Facility shall be deemed to be a Material Credit Facility. 








“Material Lease” shall mean as to any Unencumbered Borrowing Base Property (a) any Lease of such Unencumbered Borrowing Base Property (and any personal property assets related thereto) between the applicable Company Party that owns such Unencumbered Borrowing Base Property and any TRS, (b) any Lease which, individually or when aggregated with all other Leases at such Unencumbered Borrowing Base Property with the same tenant or any of its Affiliates, accounts for ten percent (10%) or more of such Unencumbered Borrowing Base Property’s revenue, or (c) any Lease which contains any option, offer, right of first refusal or other similar entitlement to acquire all or any portion of the Property.
“Maturity Date” is defined in the first paragraph of each Note.
“More Favorable Covenant” is defined in Section 9.9(a).
“Most Favored Lender Notice” is defined in Section 9.9.
“Multiemployer Plan” means any Plan that is a “multiemployer plan” (as such term is defined in section 4001(a)(3) of ERISA).
“NAIC” means the National Association of Insurance Commissioners or any successor thereto.
“Negative Pledge” means a provision of any agreement (other than this Agreement or any other Note Document or any document relating to a Material Credit Facility) that prohibits the creation of any Lien on any assets of a Person; provided, however, that neither (a) an agreement that establishes a maximum ratio of unsecured debt to unencumbered assets, or of secured debt to total assets, or that otherwise conditions a Person’s ability to encumber its assets upon the maintenance of one or more specified ratios that limit such Person’s ability to encumber its assets but that do not generally prohibit the encumbrance of its assets, or the encumbrance of specific assets nor (b) any requirement for the grant in favor of the holders of any Unsecured Indebtedness of an equal and ratable Lien in connection with a pledge of any property or asset to secure the Obligations, shall constitute a “Negative Pledge” for purposes of this Agreement.
“Net Cash Proceeds” means:








(a)    with respect to any Disposition by any Company Party, the excess, if any, of (i) the sum of cash and Cash Equivalents received in connection with such transaction (including any cash or Cash Equivalents received by way of deferred payment pursuant to, or by monetization of, a note receivable or otherwise, but only as and when so received) over (ii) the sum of (A) the principal amount of any Indebtedness that is secured by the applicable asset and that is required to be repaid in connection with such transaction, including any accrued interest, repayment fees or charges due in connection with such repayment (other than Indebtedness under the Notes), (B) the reasonable and customary out-of-pocket expenses incurred by such Company Party in connection with such transaction and (C) income taxes reasonably estimated to be actually payable within two (2) years of the date of the relevant transaction as a result of any gain recognized in connection therewith; provided that, if the amount of any estimated taxes pursuant to subclause (C) exceeds the amount of taxes actually required to be paid in cash in respect of such Disposition, the aggregate amount of such excess shall constitute Net Cash Proceeds;
(b)    with respect to the sale or issuance of any Equity Interest by any Company Party, the excess of (i) the sum of the cash and Cash Equivalents received in connection with such transaction over (ii) the underwriting discounts and commissions, and other reasonable and customary out-of-pocket expenses, incurred by such Company Party in connection therewith; and
(c) with respect to the incurrence or issuance of any Indebtedness by any Company Party, the excess of (i) the sum of the cash and Cash Equivalents received in connection with such transaction over (ii) the sum of (A) the principal amount of any Indebtedness that is refinanced, replaced and/or repaid with the proceeds of such Indebtedness, including any accrued interest, repayment fees or charges due in connection with such refinancing, replacement and/or repayment (other than Indebtedness under the Notes) and (B) the reasonable and customary out-of-pocket expenses incurred by such Company Party in connection therewith.
“Net Operating Income” means, with respect to any Real Property and for the most recently ended Calculation Period, an amount equal to (a) the aggregate gross revenues from the operations of such Real Property during the applicable Calculation Period, minus (b) the sum of (i) all expenses and other proper charges incurred in connection with the operation of such Real Property during such period pro-rated as appropriate (including real estate taxes, but excluding any management fees, debt service charges, income taxes, depreciation, amortization and other non-cash expenses), and (ii)  actual management fees paid during such period and (iii) an annual replacement reserve equal to four percent (4.0%) of the aggregate revenues from the operations of such Real Property (excluding revenues with respect to third party space or retail leases).








“Net Proceeds” means, with respect to any Equity Issuance by any Company Party, the amount of cash received by such Company Party in connection with any such transaction after deducting therefrom the aggregate, without duplication, of the following amounts to the extent properly attributable to such transaction and such amounts are usual, customary, and reasonable: (a) brokerage commissions; (b) attorneys’ fees; (c) finder’s fees; (d) financial advisory fees; (e) accounting fees; (f) underwriting fees; (g) investment banking fees; and (h) other commissions, costs, fees, expenses and disbursements related to such Equity Issuance, in each case to the extent paid or payable by such Company Party.
“New Property” means each Real Property acquired by the Company Parties on a consolidated basis and all Unconsolidated Affiliates (as the case may be) from the date of acquisition for a period of six (6) full fiscal quarters after the acquisition thereof; provided, however, that, upon the Seasoned Date for any New Property (or any earlier date selected by Company), such New Property shall be converted to a Seasoned Property and shall cease to be a New Property.
“Non-Guarantor Subsidiary” means any Subsidiary (whether direct or indirect) of the Company, other than any Subsidiary which owns an Unencumbered Borrowing Base Property, which (a) is a TRS; (b) is an Intermediate REIT; (c) is (i) formed for or converted to the specific purpose of holding title to Real Property assets which are collateral for Indebtedness owing or to be owed by such Subsidiary, provided that such Indebtedness must be incurred or assumed within ninety (90) days (or such longer period as permitted under the Bank of America Credit Facility) of such formation or conversion or such Subsidiary shall cease to qualify as a Non-Guarantor Subsidiary, and (ii) expressly prohibited in writing from guaranteeing Indebtedness of any other person or entity pursuant to (A) a provision in any document, instrument or agreement evidencing such Indebtedness of such Subsidiary or (B) a provision of such Subsidiary’s Organization Documents, in each case, which provision was included in such Organization Document or such other document, instrument or agreement at the request of the applicable third party creditor and as an express condition to the extension or assumption of such Indebtedness; provided that a Subsidiary meeting the requirements set forth in this clause (c) shall only remain a “Non-Guarantor Subsidiary” for so long as (1) each of the foregoing requirements set forth in this clause (c) are satisfied, (2) such Subsidiary does not guarantee any other Indebtedness and (3) the Indebtedness with respect to which the restrictions noted in clause (c) (ii) are imposed remains outstanding provided further that in no event shall any party to a Permitted Intercompany Mortgage encumbering an Unencumbered Borrowing Base Property be a Non-Guarantor Subsidiary; (d)(i) becomes a Subsidiary following the date of Closing, (ii) is not a Wholly Owned Subsidiary of the Company, and (iii) with respect to which the Company and its Affiliates, as applicable, do not have sufficient voting power to cause such Subsidiary to become a Guarantor hereunder; or (e) is an Immaterial Subsidiary.
“Note Document” means the Note Purchase Agreement, the Notes, the Affiliate Guaranties, the Intercreditor Agreement, each Collateral Document and any other agreement entered into in connection with any of the above.








“Note Parties” means, collectively, the Company and Guarantors, and “Note Party” means any one of the Note Parties. 
“Notes” is defined in Section 1.
“Obligations” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Note Party arising under any Note Document or otherwise with respect to any Note, whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Note Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding; provided that the “Obligations” with respect to a Guarantor shall exclude any Excluded Swap Obligations of such Guarantor.
“OFAC” is defined in Section 5.16(a).
“OFAC Listed Person” is defined in Section 5.16(a).
“OFAC Sanctions Program” means any economic or trade sanction that OFAC is responsible for administering and enforcing.  A list of OFAC Sanctions Programs may be found at http://www.treasury.gov/resource-center/sanctions/Programs/Pages/Programs.aspx.
“Officer’s Certificate” means a certificate of a Senior Financial Officer or of any other officer of the Company whose responsibilities extend to the subject matter of such certificate.
“Operating Property Value” means, at any date of determination, (a) for each Seasoned Property, (i) the Adjusted NOI for such Real Property divided by (ii) the applicable Capitalization Rate, and (b) for each New Property, the GAAP book value for such New Property (until the Seasoned Date or such earlier date as elected by the Company by written notice to the holders of the Notes).
“Organization Documents” means, (a) with respect to any corporation, the certificate or articles of incorporation and the bylaws (or equivalent or comparable constitutive documents with respect to any non-U.S. jurisdiction); (b) with respect to any limited liability company, the certificate or articles of formation or organization and operating agreement; and (c) with respect to any partnership, joint venture, trust or other form of business entity, the partnership, joint venture, trust or other applicable agreement of formation or organization and any agreement, instrument, filing or notice with respect thereto filed in connection with its formation or organization with the applicable Governmental Authority in the jurisdiction of its formation or organization and, if applicable, any certificate or articles of formation or organization of such entity.
“Other MSA” means any metropolitan statistical area other than a Major MSA. For the avoidance of doubt, Santa Monica, California shall constitute an Other MSA.








“Parent Guaranty” means the guaranty by the Parent REIT set forth in Section 13 of this Agreement as amended, restated or modified from time to time. 
“Parent REIT” means Pebblebrook Hotel Trust, a Maryland real estate investment trust and any successor entity.
“Pari Passu Obligations” is defined in the Intercreditor Agreement.
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined in ERISA or any successor thereto.
“Pebblebrook Hotel Lessee” means Pebblebrook Hotel Lessee, Inc., a Delaware corporation, and its permitted successors.
“Permitted Convertible Notes” means senior convertible debt securities of the Parent REIT (a) that are unsecured, (b) that do not have the benefit of any Guarantee of any Subsidiary, (c) that are otherwise permitted under this Agreement, including Section 10.10, (d) the Net Cash Proceeds of which are applied during the Waiver Period, if applicable, in accordance with this Agreement and the Intercreditor Agreement, (e) that are not subject to any sinking fund or any prepayment, redemption or repurchase requirements, whether scheduled, triggered by specified events or at the option of the holders thereof (it being understood that none of the following will be deemed to constitute such a sinking fund or prepayment, redemption or repurchase requirement: (i) a customary “change in control” or “fundamental change” put, (ii) a right to convert such securities into common shares of the Parent REIT, cash or a combination thereof (in each case, at election of the Parent REIT) or (iii) an acceleration upon an event of default), and (f) that have the benefit of covenants and events of default customary for comparable convertible securities (as determined by the Parent REIT in good faith).
“Permitted Convertible Notes Swap Contract” means a Swap Contract entered into by the Parent REIT in connection with, and prior to or concurrently with, the issuance of any Permitted Convertible Notes pursuant to which the Parent REIT acquires a call or a capped call option requiring the counterparty thereto to deliver to the Parent REIT common shares of the Parent REIT, the cash value of such shares or a combination of such shares and cash from time to time upon exercise of such option; provided that the terms, conditions and covenants of each such Swap Contract shall be such as are typical and customary for Swap Contracts of such type (as determined by the Parent REIT in good faith).
“Permitted Intercompany Mortgage” means a loan by a Note Party to another Note Party secured by a Lien in Real Property so long as such loan is subordinated to the Obligations pursuant to Section 23.8 or otherwise on terms acceptable to the holders of the Notes.  
 “Permitted Liens” is defined in Section 10.5.








“Permitted Preferred Issuances” means the issuance after the Second Amendment Effective Date by the Parent REIT of preferred Equity Interests that (a) are not subject to mandatory redemption or are otherwise not treated as Indebtedness pursuant to GAAP and (b) to the extent used to purchase or redeem existing preferred Equity Interests, have a yield to maturity yield (including any voluntary or involuntary liquidation preference and any accrued and unpaid dividends) not greater than any preferred Equity Interest purchased or redeemed with the proceeds thereof.
“Person” means an individual, partnership, corporation, limited liability company, association, trust, unincorporated organization, business entity or Governmental Authority.
“Plan” means any “employee benefit plan” (as such term is defined in Section 3(3) of ERISA) established by the Company or, with respect to any such plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA Affiliate
“Pledge Agreement” means any pledge or security agreement entered into, after the Second Amendment Effective Date between the Company, certain Subsidiaries of the Company party thereto, and the Collateral Agent, for the benefit of the holders of the Notes, substantially in the form of Exhibit B.
“Preferred Stock” means any class of capital stock of a Person that is preferred over any other class of capital stock (or similar equity interests) of such Person as to the payment of dividends or the payment of any amount upon liquidation or dissolution of such Person.
“Primary Credit Facilities” means the agreements referenced in clauses (a), (b) and (c) of the definition of Material Credit Facility, and “Primary Credit Facility” means any one of the Agreements.
“property” or “properties” means, unless otherwise specifically limited, real or personal property of any kind, tangible or intangible, choate or inchoate.
“Proposed Prepayment Date” is defined in Section 8.7(b).
“Pro Forma Basis” means, for purposes of calculating (utilizing the principles set forth in Section 23.2) compliance with each of the financial covenants set forth in Section 10.6 in respect of a proposed transaction, that such transaction shall be deemed to have occurred as of the first day of the four (4) fiscal-quarter period ending as of the most recent fiscal quarter end preceding the date of such transaction with respect to which the holders of Notes has received the Required Financial Information.  As used herein, “transaction” shall mean (a) any borrowing, (b) any incurrence or assumption of Indebtedness, (c) any removal of an Unencumbered Borrowing Base Property from qualification as such pursuant to Section 10.7(a) or Section 10.7(b) or any other Disposition as referred to in Section 10.7, or (d) any acquisition of any Person (whether by merger or otherwise) or other property.  In connection with any calculation relating to the financial covenants set forth in Section 10.6 upon giving effect to a transaction on a Pro Forma Basis:








(i)    for purposes of any such calculation in respect of any Disposition as referred to in Section 10.7(a), (A) income statement items (whether positive or negative) attributable to the Person or property disposed of shall be excluded, (B) any Indebtedness which is retired in connection with such transaction shall be excluded and deemed to have been retired as of the first day of the applicable period, and (C) pro forma adjustments shall be included to the extent that such adjustments would give effect to events that are (1) directly attributable to such transaction, (2) expected to have a continuing impact on the Company Parties and (3) factually supportable (in the reasonable judgment of the Required Holders); and
(ii)    for purposes of any such calculation in respect of any acquisition of any Person (whether by merger or otherwise) or other property, (A) income statement items (whether positive or negative) and capital expenditures attributable to the Person or property acquired shall be deemed to be included as of the first day of the applicable period, and (B) pro forma adjustments (with the calculated amounts annualized to the extent the period from the date of such acquisition through the most-recently ended fiscal quarter is not at least twelve (12) months or four (4) fiscal quarters, in the case of any applicable period that is based on twelve months or four (4) fiscal quarters) shall be included to the extent that such adjustments would give effect to events that are (1) directly attributable to such transaction, (2) expected to have a continuing impact on the Company Parties and (3) factually supportable (in the reasonable judgment of the Required Holders).
“PTE” is defined in Section 6.2(a).
“Purchaser” or “Purchasers” means each of the purchasers that has executed and delivered this Agreement to the Company and such Purchaser’s successors and assigns (so long as any such assignment complies with Section 14.2), provided, however, that any Purchaser of a Note that ceases to be the registered holder or a beneficial owner (through a nominee) of such Note as the result of a transfer thereof pursuant to Section 14.2 shall cease to be included within the meaning of “Purchaser” of such Note for the purposes of this Agreement upon such transfer.
“QPAM Exemption” is defined in Section 6.2(d).
“Qualified Institutional Buyer” means any Person who is a “qualified institutional buyer” within the meaning of such term as set forth in Rule 144A(a)(1) under the Securities Act.
“Rating Agency” means any nationally recognized statistical rating organization recognized by the NAIC. 
“Real Properties” means, at any time, a collective reference to each of the facilities and real properties owned or leased by the Company or any other Subsidiary or in which any such Person has an interest at such time; and “Real Property” means any one of such Real Properties.








“Related Fund” means, with respect to any holder of any Note, any fund or entity that (i) invests in Securities or bank loans, and (ii) is advised or managed by such holder, the same investment advisor as such holder or by an affiliate of such holder or such investment advisor.
“Required Financial Information” means, with respect to each fiscal period or quarter of the Company, (a) the financial statements required to be delivered pursuant to Section 7.1 for such fiscal period or quarter of the Parent REIT, and (b) the compliance certificate required by Section 7.2 to be delivered with the financial statements described in clause (a) above.
“Required Holders” means at any time (a) prior to the Closing, the Purchasers, (b) on or after the Closing the holders of more than 50% in principal amount of the Notes (without regard to Series) at the time outstanding (exclusive of Notes then owned by the Company or any of its Affiliates).
“Responsible Officer” means any Senior Financial Officer and any other officer of the Company with responsibility for the administration of the relevant portion of this Agreement.
“Restricted Payment” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of the Parent REIT or any Subsidiary or any Unconsolidated Affiliate, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to the Parent REIT’s shareholders, partners or members (or the equivalent Person thereof); provided that, to the extent the calculation of the amount of any dividend or other distribution for purposes of this definition of “Restricted Payment” includes amounts allocable to Unconsolidated Affiliates, such calculation shall be without duplication and shall only include such amounts to the extent attributable to any Unconsolidated Affiliate Interests; provided, further, that payments for, in respect of or in connection with Permitted Convertible Notes Swap Contracts shall not constitute Restricted Payments.
“Seasoned Date” means the first day on which an acquired Real Property has been owned for six (6) full fiscal quarters following the date of acquisition of such Real Property. 
“Seasoned Property” means (a) each Real Property (other than a New Property) owned by the Company Parties on a consolidated basis and all Unconsolidated Affiliates (as the case may be) and (b) upon the occurrence of the Seasoned Date of any New Property, such Real Property.
“SEC” means the Securities and Exchange Commission of the United States or any successor thereto.
“Second Amendment Effective Date” means the date of effectiveness of the Second Amendment to this Agreement among the Company and the holders of Notes. 








“Second Limited Collateral Trigger Event” has the meaning specified in the definition of Collateral Trigger Date.
“Secured Debt” means, for any given calculation date, without duplication, the total aggregate principal amount of any Indebtedness of the Company Parties on a consolidated basis that is secured in any manner by any lien (other than Permitted Liens of the type described in Sections 10.5(a), (b), (c), (d), (e), (g), (h) and (j); provided that (a) Indebtedness in respect of obligations under any capitalized lease shall not be deemed to be “Secured Debt” and (b) Secured Debt shall exclude Excluded Capital Leases and any Indebtedness in respect of the Pari Passu Obligations which is secured by Common Collateral pursuant to and as defined in the Intercreditor Agreement as a result of a Collateral Trigger Event. 
“Securities” or “Security” shall have the meaning specified in section 2(1) of the Securities Act. 
“Securities Act” means the Securities Act of 1933, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.
“Senior Financial Officer” means the chief financial officer, principal accounting officer, treasurer or comptroller of the Company.
“Senior Indebtedness” means all Indebtedness of the Company or any Guarantor, as applicable, which is not expressed to be subordinate or junior in rank to any other Indebtedness of the Company or such Guarantor, as applicable.
“Series” means any one of the Series of Notes issued hereunder.
“Series A Notes” is defined in Section 1.
“Series B Notes” is defined in Section 1.
“Source” is defined in Section 6.2.
“State Sanctions List” means a list that is adopted by any state Governmental Authority within the United States of America pertaining to Persons that engage in investment or other commercial activities in Iran or any other country that is a target of economic sanctions imposed under U.S. Economic Sanctions. 
“Subsidiary” means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person.  Unless otherwise specified, all references herein to a “Subsidiary” or to “Subsidiaries” shall refer to a Subsidiary or Subsidiaries of the Parent REIT.








“Subsidiary Guarantor” means each Subsidiary that has executed and delivered a Subsidiary Guaranty.
“Subsidiary Guaranty” is defined in Section 2.2.
“Substitute Purchaser” is defined in Section 22.
“SVO” means the Securities Valuation Office of the NAIC or any successor to such Office.
“Swap Contract” means (a) any and all interest rate swap transactions, basis swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward foreign exchange transactions, cap transactions, floor transactions, currency options, spot contracts or any other similar transactions or any of the foregoing (including, without limitation, any options to enter into any of the foregoing), and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc. or any International Foreign Exchange Master Agreement.
“Swap Termination Value” means, in respect of any one or more Swap Contracts, after taking into account the effect of any legally enforceable netting agreement relating to such Swap Contracts, (a) for any date on or after the date such Swap Contracts have been closed out and termination value(s) determined in accordance therewith, such termination value(s), and (b) for any date prior to the date referenced in clause (a), the amounts(s) determined as the mark-to-market values(s) for such Swap Contracts, as determined based upon one or more mid-market or other readily available quotations provided by any recognized dealer in such Swap Contracts.
“Synthetic Lease Obligation” means the monetary obligation of a Person under (a) a so-called synthetic, off-balance sheet or tax retention lease, or (b) an agreement for the use or possession of property creating obligations that do not appear on the balance sheet of such Person but which, upon the insolvency or bankruptcy of such Person, would be characterized as the indebtedness of such Person (without regard to accounting treatment).
“Taxes” means all present or future taxes, levies, imposts, duties, deductions, withholdings (including backup withholding), assessments, fees or other charges imposed by any Governmental Authority, including any interest, additions to tax or penalties applicable thereto.
“TRS” means each of (a) Pebblebrook Hotel Lessee and (b) each other taxable REIT subsidiary that is a Wholly Owned Subsidiary of Pebblebrook Hotel Lessee.
“2020 Permitted Convertible Notes” shall mean the Permitted Convertible Notes which were issued by the Parent REIT on December 10, 2020, as approved by the holders of Notes on December 10, 2020. 








“USA PATRIOT Act” means United States Public Law 107-56, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, as amended from time to time, and the rules and regulations promulgated thereunder from time to time in effect.
“UCC” means the Uniform Commercial Code as in effect in any applicable jurisdiction.
“Unconsolidated Affiliate” means any corporation, partnership, association, joint venture or other entity in each case which is not a Company Party and in which a Company Party owns, directly or indirectly, any Equity Interest.
“Unconsolidated Affiliate Funded Indebtedness” means, as of any date of determination for any Unconsolidated Affiliate, the product of (a) the sum of (i) the outstanding principal amount of all obligations of such Unconsolidated Affiliate, whether current or long-term, for borrowed money and all obligations of such Unconsolidated Affiliate evidenced by bonds, debentures, notes, loan agreements or other similar instruments, (ii) all purchase money Indebtedness of such Unconsolidated Affiliate, (iii) all obligations of such Unconsolidated Affiliate arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, surety bonds and similar instruments, (iv) all obligations of such Unconsolidated Affiliate in respect of forward purchase agreements or the deferred purchase price of any property or services (other than trade accounts payable in the ordinary course of business), (v) Attributable Indebtedness of such Unconsolidated Affiliate in respect of capital leases and Synthetic Lease Obligations, (vi) without duplication, all Guarantees of such Unconsolidated Affiliate with respect to outstanding Indebtedness of the types specified in clauses (i) through (v) above of Persons other than such Unconsolidated Affiliate, and (vii) all Indebtedness of such Unconsolidated Affiliate of the types referred to in clauses (i) through (vi) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Unconsolidated Affiliate is a general partner or joint venturer, multiplied by (b) the respective Unconsolidated Affiliate Interest of each Company Party in such Unconsolidated Affiliate.
“Unconsolidated Affiliate Interest” means the percentage of the Equity Interests owned by a Company Party in an Unconsolidated Affiliate accounted for pursuant to the equity method of accounting under GAAP.
“Unencumbered Asset Value” means, without duplication, as of any date of determination, the Operating Property Value of all Unencumbered Borrowing Base Properties for the Note Parties on a consolidated basis (other than Development/Redevelopment Properties).
“Unencumbered Borrowing Base Properties” means, as of any date, a collective reference to each Real Property listed in the most recent compliance certificate delivered by the Company hereunder that meets the following criteria: 
(i)    such Real Property is, or is expected to be, a “luxury”, “upper upscale”, or “upscale” full or select service hotel located in the United States;








(ii)    such Real Property is wholly-owned, directly or indirectly, by the Company or a Subsidiary Guarantor in fee simple or ground leased pursuant to an Eligible Ground Lease (and such Real Property, whether owned in fee simple by the Company or a Subsidiary Guarantor of the Company or ground leased pursuant to an Eligible Ground Lease, is leased to the applicable TRS);
(iii)    if such Real Property is owned or ground leased pursuant to an Eligible Ground Lease by a Subsidiary of the Company, then (A) such Subsidiary is a Guarantor (unless such Subsidiary has been released as, or is not required to be, a Guarantor pursuant to the terms of Section 9.8(c) provided that if any such Subsidiary is released, the Real Property shall no longer be considered Unencumbered Borrowing Base Property, (B) the Company directly or indirectly owns at least ninety percent (90%) of the issued and outstanding Equity Interests of such Subsidiary, and (C) such Subsidiary is controlled exclusively by the Company and/or one or more Wholly Owned Subsidiaries of the Company (including control over operating activities of such Subsidiary and the ability of such Subsidiary to dispose of, grant Liens in, or otherwise encumber assets, incur, repay and prepay Indebtedness, provide Guarantees and make Restricted Payments, in each case without any requirement for the consent of any other Person);
(iv)    such Real Property is free of any Liens (other than Permitted Liens of the type described in Sections 10.5(a), (b), (d), (e), (g), (h) and (j)) or Negative Pledges;
(v)    such Real Property is free of all material title defects;
(vi)    if such Real Property is subject to an Eligible Ground Lease, then there is no default by the lessee under the Eligible Ground Lease and such Eligible Ground Lease is in full force and effect; 
(vii)    such Real Property is free of all material structural defects; 
(viii)    such Real Property complies in all material respects with all applicable Environmental Laws and is not subject to any material Environmental Liabilities; 
(ix)    neither all nor any material portion of such Real Property is subject to any proceeding for the condemnation, seizure or appropriation thereof, nor the subject of negotiations for sale in lieu thereof; 
(x)    such Real Property has not otherwise been removed as an “Unencumbered Borrowing Base Property” pursuant to the provisions of this Agreement; and 
(xi)    the Company has executed and delivered to the holders of Notes all documents and taken all actions reasonably required by the Required Holders to confirm the rights created or intended to be created under the Note Documents and the holders of Notes have received all other evidence and information that it may reasonably require;








provided that, if any Real Property does not meet all of the foregoing criteria, then, upon the request of the Company, such Real Property may be included as an “Unencumbered Borrowing Base Property” with the written consent of the Required Holders.
“Unencumbered Borrowing Base Value” means the Consolidated Total Asset Value of the Unencumbered Borrowing Base Properties. 
“Unencumbered Leverage Ratio” means, as of any date, then current Unencumbered Asset Value divided by then current Unsecured Indebtedness.
“Unrestricted Cash” means as of any date of determination, all cash of the Company on such date that (a) does not appear (or would not be required to appear) as “restricted” on a balance sheet of the Company, (b) is not subject to a Lien in favor of any Person other than Liens granted to the holders of Notes and statutory Liens in favor of any depositary bank where such cash is maintained, (c) does not consist of or constitute “deposits” or sums legally held by the Company in trust for another Person, (d) is not subject to any contractual restriction or obligation regarding the payment thereof for a particular purpose (including insurance proceeds that are required to be used in connection with the repair, restoration or replacement of any property of the Company), and (e) is otherwise generally available for use by the Company.
“Unsecured Indebtedness” means, with respect to any Person, all Consolidated Funded Indebtedness which is not Secured Debt.
“Unsecured Interest Charges” means, as of any date of determination, Consolidated Interest Charges on the Unsecured Indebtedness for the most recently ended Calculation Period.
“Unsecured Leverage Increase Period” is defined in Section 10.6(h).
“US Bank Facility” means the facility evidenced by that certain Amended and Restated Credit Agreement, dated as of the date hereof, among the Company, the Parent REIT, certain lenders party thereto, and U.S. Bank National Association, as administrative agent (as the same may be amended, restated, modified or supplemented from time to time).
“US Bank Lessee Line of Credit” means the facility evidenced by that certain Fourth Amended and Restated Revolving Credit Note, dated as of the First Amendment Effective Date, among Pebblebrook Hotel Lessee, as maker, and U.S. Bank National Association, as payee (as the same may be amended, restated, modified or supplemented from time to time).
“U.S. Economic Sanctions” is defined in Section 5.16(a).








“Waiver Period” means the period commencing on the Second Amendment Effective Date and ending on the earlier to occur of (a) the date the Company is required to deliver a duly completed Compliance Certificate for the fiscal quarter ending June 30, 2022 pursuant to Section 7.2(a) (or, if earlier, the date on which the Company delivers such Compliance Certificate pursuant to Section 7.2(a) evidencing, to the Required Holders’ reasonable satisfaction, the Company’s compliance with the financial covenants contained in Section 10.6 as of June 30, 2022) and (b) the date the Company delivers a Compliance Certificate in accordance with Section 7.2(a) with respect to any fiscal quarter ending after the Second Amendment Effective Date but prior to June 30, 2022 evidencing, to the Required Holders’ reasonable satisfaction, the Company’s compliance with the financial covenants contained in Section 10.6 as of the last day of such fiscal quarter as if such covenants had applied for such quarter, together with a written notice to the Purchaser and each holder of the Notes irrevocably electing to terminate the Waiver Period concurrently with such delivery.
“Waiver Period Event” is defined in Section 8.9. 
“Waiver Period Increased Interest” is defined in Section 9.12.
“Waiver Period Prepayment Premium” is defined in Section 8.11.
“Wholly-Owned Subsidiary” means, at any time, any Subsidiary all of the equity interests (except directors’ qualifying shares) with voting power owned by any one or more of the Company and the Company’s other Wholly-Owned Subsidiaries at such time.