exv10w4






Exhibit 10.4




Eleventh Amendment

Haslett Warehouse

HL-SAFR001-00

Page 1




ELEVENTH AMENDMENT

TO

HISTORIC LEASE




(HL-SAFR001-00)



     THIS ELEVENTH AMENDMENT TO HISTORIC LEASE (HL-SAFR001-00) (“Eleventh Amendment”), effective as
of February 16, 2011 (the “Eleventh Amendment Effective Date”), is made and entered into by and
between the United States Department of the Interior, National Park Service acting through the
Regional Director, Pacific West Region, an agency of the United States of America (“Lessor”) and
Wildcats Owner LLC, a Delaware limited liability company (“Lessee”).



RECITALS




     This Eleventh Amendment is entered upon the basis of the following facts, understandings and
intentions of the parties.



     WHEREAS, Lessor and Maritime Hotel Associates, L.P., a California limited partnership (the
“Original Lessee”) entered into that certain Historic Lease (HL-SAFR001-98), effective as of
October 16, 2000 (the “Original Lease”), as amended by that certain First Amendment to Historic
Lease effective as of January 16, 2001 (the “First Amendment”), that certain Second Amendment to
Historic Lease effective as of January 18, 2001 (the “Second Amendment”), that certain Third
Amendment to Historic Lease effective as of January 22, 2001 (the “Third Amendment”), that certain
Fourth Amendment to Historic Lease effective as of January 24, 2001 (the “Fourth Amendment”), that
certain Fifth Amendment to Historic Lease effective as of January 29, 2001 (the “Fifth Amendment”),
that certain Sixth Amendment to Historic Lease effective as of February 1, 2001 (the “Sixth
Amendment”), that certain Seventh Amendment to Historic Lease (which corrected the designation to
HL-SAFR001-00) effective as of February 6, 2001 (the “Seventh Amendment”), that certain Eighth
Amendment to Historic Lease effective as of August 10, 2001 (the “Eighth Amendment”), that certain
Ninth Amendment to Historic Lease effective as of May 14, 2004 (the “Ninth Amendment”) and that
certain Tenth Amendment to Historic Lease effective as of September 18, 2008 (the “Tenth
Amendment”), which shall be amended by this Eleventh Amendment. This Eleventh Amendment, together
with the Original Lease, as amended by the First Amendment, the Second Amendment, the Third
Amendment, Fourth Amendment, Fifth Amendment, Sixth Amendment, Seventh Amendment, Eighth Amendment,
Ninth Amendment and Tenth Amendment hereinafter shall be referred to collectively as the “Lease”;
and



     WHEREAS, the rights and obligations of Original Lessee have been assigned and delegated to,
and assumed by, Lessee pursuant to that certain Assignment and Assumption of Historic Lease
(HL-SAFR001-00) of even date herewith; and



     WHEREAS, Lessor and Lessee desire to amend the Lease as set forth herein.



***SAN FRANCISCO MARITIME NATIONAL HISTORICAL PARK***

****PACIFIC WEST REGION — NATIONAL PARK SERVICE****




 









 





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HL-SAFR001-00

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AGREEMENT




     NOW, THEREFORE, in consideration of the terms, conditions and covenants set forth below and
other good and valuable consideration, the parties hereto agree as follows:



     1. Definitions. The capitalized terms not otherwise defined herein shall have the
meanings given in the Lease.



     2. Amended Section 1.72. Section 1.72 is hereby deleted in its entirety and replaced
with the following:




     (a) “Transfer” means the direct or indirect, voluntary or by operation
of law, sale, assignment, subletting, encumbering, pledge or other transfer
or hypothecation of Lessee’s or any permitted assignee’s or sublessee’s
interest in or rights with respect to the Premises or Lessee’s leasehold
estate therein. Any sale or other transfer, including by consolidation,
merger or reorganization, of a Controlling Interest in Lessee, or any
permitted assignee or sublessee, if such entity is a corporation, or any
sale or other transfer of a Controlling Interest in the partnership
interests of such entity, if such entity is a partnership, or any sale or
other transfer of a Controlling Interest in the membership interests of such
entity, if such entity is a limited liability company, whether in a single
transfer or in a series of related transfers, and whether directly or by
sales or transfers of underlying membership or partnership or corporate
ownership interests, shall be deemed a Transfer. In the event the Lessee is
directly or indirectly owned by a real estate investment trust (“REIT”) or
other entity which operates the Premises through a different wholly-owned
entity owned directly or indirectly by such REIT (the “Operating
Affiliate”), then, a “Transfer” shall include a change in the Controlling
Interest of the Operating Affiliate whether in a single transfer or in a
series of related transfers, whether directly or by sales or transfers of
the underlying ownership interests. For illustrative examples, please see
Attachments 1A and 1B attached to this Eleventh Amendment and incorporated
herein by this reference.




     (b) The term “Controlling Interest” as used in this Lease means: (i)
in the case of a corporate entity, an interest, beneficial or otherwise, (A)
of sufficient outstanding voting securities or capital of the Lessee,
Operating Affiliate, permitted assignee, sublessee or related entity so as
to permit exercise of managerial authority over the actions and operations
of the Lessee, Operating Affiliate, permitted assignee, sublessee or related
entity, and/or (B) of a majority of the Board of Directors of Lessee,
Operating Affiliate, permitted assignee, sublessee or



***SAN FRANCISCO MARITIME NATIONAL HISTORICAL PARK***

****PACIFIC WEST REGION — NATIONAL PARK SERVICE****




 









 





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related entity; or (ii) in the instance of a partnership, limited
partnership, joint venture, limited liability company, or individual
entrepreneurship, beneficial ownership of the capital assets of Lessee,
Operating Affiliate, permitted assignee, sublessee or related entity so as
to permit exercise of managerial authority over the actions and operations
of Lessee, Operating Affiliate, permitted assignee, sublessee or related
entity.




     (c) Notwithstanding the foregoing definition of “Transfer,” a
“Transfer” shall not include any transaction in connection with the granting
of an Assignment for Security or Leasehold Mortgage pursuant to Section 28.2
below (but excluding a foreclosure or giving of a deed in lieu of
foreclosure thereunder). A foreclosure or the giving of a deed in lieu
shall be deemed a “Transfer” and shall require Lessor’s prior written
approval in accordance with Section 28.13.2 below. For the avoidance of
doubt a “Transfer” shall not include the sale, assignment, encumbrance or
pledge, direct or indirect, of any (i) shares in any REIT, or (ii)
partnership interests (sometimes referred to as “units”) in the operating
partnership of any REIT.



     3. Amended Section 10.1.1. Section 10.1.1 is hereby amended to add the following:




If Lessee is not an Approved Operator, then it shall operate the Premises
through an Approved Operator pursuant to an Operating Agreement (as defined
in Section 28.13.2(k)), which shall require that such Approved Operator
shall operate and manage the Premises in accordance with the terms of this
Lease. Lessor acknowledges that Kimpton Hotel & Restaurant Group, LLC, a
Delaware limited liability company, is the Approved Operator as of the
Eleventh Amendment Effective Date. From and after the Eleventh Amendment
Effective Date, any change of the Approved Operator to a new operator shall
require Lessor’s prior written consent. Lessor shall approve or disapprove
any written request for approval of an operator which written request shall
include all the evidence reasonably necessary to make such determination
within forty-five (45) days from the date of receipt by Lessor of such
complete documentation supporting such written request. Lessor shall not
unreasonably withhold, condition or delay its approval of any operator. Any
disapproval by Lessor shall set forth a written explanation of the grounds
for such disapproval.



     4. Amended Section 21.1. The phrase “and shall ensure any Approved Operator complies
with all Applicable Laws” is hereby inserted at the end of the first sentence in Section 21.1.



***SAN FRANCISCO MARITIME NATIONAL HISTORICAL PARK***

****PACIFIC WEST REGION — NATIONAL PARK SERVICE****




 









 





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     5. Amended Sections 22. The phrase “Approved Operator (if applicable),” is hereby
inserted immediately before the word “Affiliates” or “Affiliates’”, as applicable, in each instance
the word “Affiliates” or “Affiliates’”, as applicable, appears in Section 22.



     6. Amended Sections 25. The phrase “Approved Operator (if applicable),” is hereby
inserted immediately before the word “Affiliates” in each instance the word “Affiliates” appears in
Section 25.



     7. Amended Section 27.2. The first sentence of Section 27.2 is deleted in its
entirety and hereby replaced with the following: “Lessee may make Transfers (other than the
subleases pursuant to Sections 27.7 and 27.10 below) without the prior written approval of Lessor
only if Pebblebrook Hotel L.P., a Delaware limited partnership maintains a Controlling Interest in
the Lessee and the Operating Affiliate.”



     8. New Section 27.10. Section 27 is hereby amended to add the following new Section
27.10:




	 	 27.10	 	Lessor’s prior written consent shall be required if a Transfer is a
sublease of the entire Premises or a sublease of the hotel portion of the
Premises.





     9. New Section 27.11. Section 27 is hereby amended to add the following new Section
27.11:




	 	 27.11	 	Each sublease entered into concurrently with and after the Eleventh
Amendment Effective Date shall contain provisions in form and substance
substantially as set forth below in this Section 27.11. By executing its
sublease, each subtenant shall be deemed to have agreed to these provisions,
which reflect the definitions in this Lease. All such defined terms shall be
modified in the sublease as appropriate to reflect the applicable definitions
in the sublease:
	 
	 	 	 	“All terms, covenants, and provisions of this sublease and all rights,
remedies and remedies of subtenant under this sublease are and shall at all
times remain fully subject and subordinate in all respects to the Lease. If
the Lease and the leasehold estate created thereby terminate, then this
sublease shall terminate. In that event, subtenant, only at the election
and request of Lessor (except as Lessor has agreed otherwise in writing) and
to the extent lawful under Applicable Laws, shall attorn to Lessor, and
recognize Lessor as subtenant’s direct landlord under this sublease, except
that subtenant acknowledges that Lessor shall not be liable to the subtenant
for any security deposit or prepaid rent or funds previously paid by such
subtenant to Lessee unless such deposits are transferred to Lessor.
Subtenant shall execute and deliver, at any time and from time to time,





***SAN FRANCISCO MARITIME NATIONAL HISTORICAL PARK***

****PACIFIC WEST REGION — NATIONAL PARK SERVICE****




 









 





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	 	 	 	upon the request of Lessee, Lessor, or any Mortgagee, any instrument
necessary or appropriate to evidence such attornment.”





     10. Counterparts. This Eleventh Amendment may be executed in counterparts, each of
which shall constitute an original, and all of which together shall constitute one and the same
instrument.



     11. Full Force and Effect. Except as otherwise expressly modified by the terms of
this Eleventh Amendment, the Lease remains unchanged and in full force and effect.



     IN WITNESS WHEREOF, the Regional Director of the Pacific West Region of the National Park
Service, acting on behalf of the United States, in the exercise of the delegated authority from the
Secretary, as Lessor, and Lessee have executed this Eleventh Amendment by proper persons thereunto
duly authorized as of the date first above written.



	 	 	 	 	 

	LESSEE:	 	 
	 
	 	 	 	 
	Wildcats Owner LLC,	 	 
	a Delaware limited liability company	 	 
	 
	 	 	 	 
	By: 

Name:

	 	/s/ Raymond D. Martz
 

Raymond D. Martz
	 	 
	Title:

	 	President	 	 
	 
	 	 	 	 
	LESSOR:	 	 
	 
	 	 	 	 
	National Park Service	 	 
	 
	 	 	 	 
	By: 

Name:

	 	/s/ Christine Lehnertz
 

Christine Lehnertz
	 	 
	Title:

	 	Regional Director	 	 






***SAN FRANCISCO MARITIME NATIONAL HISTORICAL PARK***

****PACIFIC WEST REGION — NATIONAL PARK SERVICE****




 









 





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HL-SAFR001-00

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ATTACHMENT 1A




Ownership Diagram




[Attached behind this page]




***SAN FRANCISCO MARITIME NATIONAL HISTORICAL PARK***

****PACIFIC WEST REGION — NATIONAL PARK SERVICE****




 









 





Eleventh Amendment

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HL-SAFR001-00

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ATTACHMENT 1B




Illustrative Examples of Transfers


The following are hypothetical examples are meant to be illustrative of certain Transfers resulting
from change in Controlling Interest described in Section 1.72, with reference to the organizational
structure shown in Attachment 1A. The examples below are by no means all inclusive and are not
intended to illustrate all possible types of Transfers. Other forms of Transfers described in
Section 1.72, such as, for example, an assignment by Lessee to a third party unrelated entity, and
similar transfers are not among the illustrative examples below. All defined terms are as defined
in the Eleventh Amendment to which this is attached.



As shown on Attachment 1A, Pebblebrook Hotel Trust, Pebblebrook Hotel, L.P., Wildcats Owner LLC,
Wildcats Lessee LLC, and Pebblebrook Hotel Lessee, Inc., are each Pebblebrook entities.




Pebblebrook Hotel Trust is a publicly traded REIT

Pebblebrook Hotel, L.P. is a wholly-owned operating partnership subsidiary

Pebblebrook Hotel Lessee, Inc. is a wholly-owned taxable REIT subsidary

Lessee: Wildcats Owner LLC

Operating Affiliate: Wildcats Lessee LLC



Example A: A change in Controlling Interest of Wildcats Owner LLC.





Since Wildcats LLC is the Lessee under the Lease, a change in the Controlling Interest of
Lessee is a Transfer which requires Lessor’s approval.


Example B: A change in Controlling Interest of Wildcats Lessee LLC





Wildcats Owner LLC is the Lessee under the Lease, which is directly or indirectly controlled
by a REIT. Wildcats Owner LLC, as Lessee will not manage and operate the hotel, but instead
will enter into a sublease with Wildcats Lessee LLC, which will enter into a hotel operating
agreement with a third party Approved Operator. The third party Approved Operator will
manage and operate the Premises. Wildcats Lessee LLC is a wholly-owned affiliate controlled
directly or indirectly by the REIT (an Operating Affiliate), therefore a change in the
Controlling Interest of Wildcats Lessee LLC shall require Lessor’s approval.



***SAN FRANCISCO MARITIME NATIONAL HISTORICAL PARK***

****PACIFIC WEST REGION — NATIONAL PARK SERVICE****