EXHIBIT 10.1


 


SECOND AMENDMENT TO REVOLVING
CREDIT AGREEMENT


 


THIS
SECOND AMENDMENT TO REVOLVING CREDIT AGREEMENT (this
“Amendment”) made as of the 16th day of March, 2004 by and among AMERIVEST
PROPERTIES INC., a Maryland corporation (“Borrower”), AMERIVEST
CHATEAU INC., a Texas corporation (“Chateau”), AMERIVEST CAMELBACK INC., an
Arizona corporation (“Camelback”) and AMERIVEST GREENHILL INC., a Texas
corporation (“Greenhill”; Chateau, Camelback and Greenhill are sometimes
hereinafter referred to individually as “Guarantor” and collectively as
“Guarantors”)  FLEET NATIONAL BANK, a
national banking association  (“Fleet”), U.S. BANK NATIONAL ASSOCIATION (“US Bank”;  Fleet, US Bank
and the other lenders which may hereafter become a party to the Loan Agreement (as
hereinafter defined) are hereinafter referred to collectively as the “Lenders”)
and FLEET
NATIONAL BANK, as Administrative Agent (the “Agent”).


 


W I T N E S S E T H:


 


WHEREAS,
Borrower, Fleet and Agent entered into that certain Revolving Credit Agreement
dated November 12, 2002, as amended by that certain First Amendment to
Revolving Credit Agreement dated February 6, 2003 (as amended, the “Loan
Agreement”); and


 


WHEREAS,
Chateau executed and delivered to Agent a Guaranty dated as of
November 25, 2002 (the “Chateau Guaranty”); and


 


WHEREAS,
Greenhill executed and delivered to Agent a Guaranty dated December 3,
2003 (the “Greenhill Guaranty”)


 


WHEREAS,
Camelback executed and delivered to Agent a Guaranty dated March 16, 2004
(the “Camelback Guaranty”; the Chateau Guaranty, the Greenhill Guaranty and the
Camelback Guaranty are hereinafter referred to collectively as the
“Guaranties”); and


 


WHEREAS,
Borrower, the Lenders and Agent have agreed to modify
certain provisions of the Loan Agreement; and


 


WHEREAS,
as a condition to such modification, Agent and the
Lenders have required that Borrower and the Guarantors execute this Amendment;
and


 


NOW,
THEREFORE, for and in consideration of the sum of TEN
and NO/100 DOLLARS ($10.00), and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto do
hereby covenant and agree as follows:


 


1.                                       Definitions.  All the terms used herein which are not
otherwise defined herein shall have the meanings set forth in the Loan
Agreement.


 


2.                                       Modification
Fee.  Borrower hereby agrees to pay
to the Agent for the account of each Lender a non-refundable cash fee (the
“Modification Fee”) in an amount equal to 0.125%


 

















 


(or 12.5 basis points) of the amount of each such
Lender’s Commitment, which Modification Fee shall be fully earned when paid and
non-refundable under any circumstances.


 


3.                                       Modification
of the Loan Agreement.  Borrower,
Agent and the Lenders do hereby modify and amend the Loan Agreement as follows:


 


(a)                                  By
deleting in its entirety the definition of the term “Funds from Operation”
appearing in § 1.1 of the Loan Agreement and inserting in lieu thereof the
following:


 


Funds From
Operations.  With
respect to any fiscal period of the Borrower, an amount equal to net income
(computed in accordance with Generally Accepted Accounting Principles) from the
operation of Real Estate Assets, excluding gains (or losses) from debt
restructuring and sales of property, plus real estate depreciation and
amortization, and after adjustments for unconsolidated partnerships and joint
ventures; provided, however, in the event that Borrower shall not have owned a
Real Estate Asset for the entire previous four fiscal quarters, then for the
purpose of determining the Funds From Operation with respect to such Real
Estate Asset, the net income (computed in accordance with Generally Accepted
Accounting Principles) for such Real Estate Asset shall be annualized in a
manner reasonably acceptable to Agent.  Adjustments
for unconsolidated partnerships and joint ventures will be calculated to
reflect funds from operations on the same basis.


 


(b)                                 By
deleting §8.7 and of the Loan Agreement in its entirety and inserting in lieu
thereof the following new §8.7:


 


“§8.7 Distributions.  Beginning with the period of four
consecutive fiscal quarters ending March 31, 2005, Borrower shall not
permit the total Distributions by it during any period of four consecutive
fiscal quarters calculated as of the end of each fiscal quarter to exceed
ninety percent (90%) of Funds From Operations during such period.  Such limitations on Distributions may be
exceeded to the extent necessary for the Borrower to maintain its REIT status
provided that the Borrower provides the Agent with a letter from its
accountants or attorneys setting forth the basis for computation of the amount
of such necessary excess Distributions. 
During any period, including without limitation, at any time prior to
March 31, 2005 when any Default or Event of Default has occurred and is
continuing the total Distributions by the Borrower will not exceed the minimum
amount necessary for the Borrower to maintain its REIT status.”


 


(c)                                  By
deleting §§9.4 and 9.5 of the Loan Agreement in their entirety and inserting in
lieu thereof the following new §§9.4 and 9.5:


 


“§9.4 Adjusted
EBITDA to Interest Expense.  The
Borrower will not permit the ratio of its Adjusted EBITDA to Interest Expense
to be less than 1.5 to 1.0 for any period of two fiscal quarters annualized,
calculated as of the end of each fiscal quarter through and including the
fiscal quarter ending March 31, 2004. Beginning with the fiscal quarter
ending June 30, 2004, the Borrower will not


 


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permit the ratio
of its Adjusted EBITDA to Interest Expense to be less than 1.75 to 1.0 for any
period of two fiscal quarters annualized, calculated as of the end of each
fiscal quarter through and including the fiscal quarter ending
December 31, 2004.  Beginning with
the fiscal quarter ending March 31, 2005, the Borrower will not permit the
ratio of its Adjusted EBITDA to Interest Expense to be less than 2.0 to 1.0 for
any period of two fiscal quarters annualized, calculated as of the end of each
fiscal quarter.


 


§9.5 EBITDA to
Fixed Charges.  The Borrower will
not permit the ratio of its EBITDA to Fixed Charges to be less than 1.35 to 1.0
for any period of two fiscal quarters annualized, calculated as of the end of
each fiscal quarter through and including the fiscal quarter ending
March 31, 2004.  Beginning with the
fiscal quarter ending June 30, 2004, the Borrower will not permit the
ratio of its EBITDA to Fixed Charges to be less than 1.5 to 1.0 for any period
of two fiscal quarters annualized, calculated as of the end of each fiscal
quarter through and including the fiscal quarter ending December 31,
2004.  Beginning with the fiscal quarter
ending March 31, 2005, the Borrower will not permit the ratio of its
EBITDA to Fixed Charges to be less than 1.75 to 1.0 for any period of two
fiscal quarters annualized, calculated as of the end of each fiscal quarter.”


 


(d)                                 By
deleting Appendix I of Exhibit C of the Credit Agreement in its entirety and
inserting in lieu thereof the new Appendix I attached hereto.


 


4.                                       Waiver.  The Agent and the Lender do hereby waive the
Default by Borrower of compliance with the covenants set forth in §8.7 of the
Loan Agreement for the fiscal quarter ending December 31, 2003.  The Agent and the Lenders have made no
agreement, and are in no way obligated, to grant any future extension, waiver,
indulgence or consent.


 


5.                                       References
to Loan Agreement.  All references
in the Loan Documents to the Loan Agreement shall be deemed a reference to the
Loan Agreement as modified and amended herein.


 


6.                                       Consent
of Guarantors.  By execution of this
Amendment, each Guarantor hereby expressly consents to the modification and
amendment to the Loan Agreement as set forth herein, and the Borrower and the
Guarantors hereby acknowledge, represent and agree that the Loan Documents
(including without limitation the Guaranties) remain in full force and effect
and constitute the valid and legally binding obligations of the Borrower and
the Guarantors enforceable against such Persons in accordance with their
respective terms, and that the execution and delivery of this Amendment and any
other modification documents do not constitute, and shall not be deemed to
constitute, a release, waiver or satisfaction of Borrower’s or the Guarantors’
obligations under the Loan Documents (including, without limitation, the
Guaranties).


 


7.                                       Representations.  Borrower and each Guarantor represents and
warrants to Agent and the Lenders as follows:


 


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(a)                                  Authorization.  The execution, delivery and performance of
this Amendment and the transactions contemplated hereby (i) are within the
authority of Borrower and the Guarantors, (ii) have been duly authorized by all
necessary proceedings on the part of such Persons, (iii) do not and will not
conflict with or result in any breach or contravention of any provision of law,
statute, rule or regulation to which any of such Persons is subject or any
judgment, order, writ, injunction, license or permit applicable to such
Persons, (iv) do not and will not conflict with or constitute a default
(whether with the passage of time or the giving of notice, or both) under any
provision of the partnership agreement or certificate, certificate of
formation, operating agreement, articles of incorporation or other charter
documents or bylaws of, or any mortgage, indenture, agreement, contract or
other instrument binding upon, any of such Persons or any of its properties or
to which any of such Persons is subject (v) do not and will not result in
or require the imposition of any lien or other encumbrance on any of the
properties, assets or rights of such Persons, other than the liens and
encumbrances created by the Loan Documents.


 


(b)                                 Enforceability.  The execution and delivery of this Amendment
are valid and legally binding obligations of Borrower and the Guarantors
enforceable in accordance with the respective terms and provisions hereof,
except as enforceability is limited by bankruptcy, insolvency, reorganization,
moratorium or other laws relating to or affecting generally the enforcement of
creditors’ rights and the effect of general principles of equity.


 


(c)                                  Approvals.  The execution, delivery and performance of
this Amendment and the transactions contemplated hereby do not require the
approval or consent of any Person or the authorization, consent, approval of or
any license or permit issued by, or any filing or registration with, or the
giving of any notice to, any court, department, board, commission or other
governmental agency or authority other than those already obtained.


 


8.                                       No
Default.  By execution hereof, the
Borrower and each of the Guarantors certifies that each such Person is and will
be in compliance with all covenants under the Loan Documents after the
execution and delivery of this Amendment, and that no Default or Event of
Default has occurred and is continuing.


 


9.                                       Waiver
of Claims.  Borrower and each
Guarantor acknowledges, represents and agrees that none of such Persons has any
defenses, setoffs, claims, counterclaims or causes of action of any kind or
nature whatsoever with respect to the Loan Documents, the administration or
funding of the Loans or with respect to any acts or omissions of Agent or the
Lenders, or any past or present officers, agents or employees of Agent or the
Lenders, and each of such Persons does hereby expressly waive, release and
relinquish any and all such defenses, setoffs, claims, counterclaims and causes
of action, if any.


 


10.                                 Ratification.  Except as hereinabove set forth, all terms,
covenants and provisions of the Loan Documents, including, without limitation,
the Loan Agreement, remain unaltered and in full force and effect, and the
parties hereto do hereby expressly ratify and confirm, the Loan Documents and
the Loan Agreement as modified and amended herein.  Nothing in this Amendment shall be deemed or construed to
constitute, and there has not otherwise occurred, a novation, cancellation,
satisfaction, release, extinguishment or substitution of the indebtedness


 


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evidenced by the Notes or the other obligations of Borrower
and the Guarantors under the Loan Documents.


 


11.                                 Effective
Date.  This Amendment shall be
deemed effective and in full force and effect upon the execution and delivery
of this Amendment by Borrower, Guarantors, Agent and the Lenders.


 


12.                                 Amendment
as Loan Document.  This Amendment
shall constitute a Loan Document.


 


13.                                 Counterparts.  This Amendment may be executed in any number
of counterparts which shall together constitute but one and the same agreement.


 


14.                                 Miscellaneous.  This Amendment shall be construed and
enforced in accordance with the laws of The Commonwealth of Massachusetts.  This Amendment shall be binding upon and
shall inure to the benefit of the parties hereto and their respective permitted
successors, successors-in-title and assigns as provided in the Loan Agreement
and the Guaranties.


 


[Remainder of
Page Intentionally Left Blank; Signatures on Following Page]


 


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IN WITNESS WHEREOF,
the parties hereto have hereto set their hands and affixed their seals as of
the day and year first above written.


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  AMERIVEST PROPERTIES, INC.

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  John B. Greenman

  
	
   

  	
  Name: 

  	
  John B. Greenman

  
	
   

  	
  Title: 

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
  [CORPORATE
  SEAL]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  GUARANTORS:

  
	
   

  	
   

  
	
   

  	
  AMERIVEST CHATEAU INC., a Texas

  corporation

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  John B. Greenman

  
	
   

  	
  Name: 

  	
  John B. Greenman

  
	
   

  	
  Title: 

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
  [CORPORATE
  SEAL]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AMERIVEST GREENHILL INC., a Texas

  corporation

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  John B. Greenman

  
	
   

  	
  Name: 

  	
  John B. Greenman

  
	
   

  	
  Title: 

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
  [CORPORATE
  SEAL]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AMERIVEST CAMELBACK INC., an Arizona

  corporation

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  John B. Greenman

  
	
   

  	
  Name: 

  	
  John B. Greenman

  
	
   

  	
  Title: 

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
  [CORPORATE
  SEAL]

  
					



 


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  LENDERS:

  
	
   

  	
   

  
	
   

  	
  FLEET NATIONAL BANK, a national banking

  association

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  George A. Ojanuga

  
	
   

  	
  Name: 

  	
  George A. Ojanuga

  
	
   

  	
  Title: 

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  U.S. BANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  Peter F.C. Armstrong, Jr.

  
	
   

  	
  Name: 

  	
  Peter F.C. Armstrong, Jr.

  
	
   

  	
  Title: 

  	
  Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AGENT:

  
	
   

  	
   

  
	
   

  	
  FLEET NATIONAL
  BANK, a national banking

  association, as Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  George A. Ojanuga

  
	
   

  	
  Name: 

  	
  George A. Ojanuga

  
	
   

  	
  Title: 

  	
  Director

  
					



 


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