EXHIBIT 10.2


 


FIRST AMENDMENT TO UNSECURED
REVOLVING CREDIT AGREEMENT


 


THIS
FIRST AMENDMENT TO UNSECURED REVOLVING CREDIT AGREEMENT (this
“Amendment”) made as of the 16th day of March, 2004 by and among AMERIVEST
PROPERTIES INC., a Maryland corporation (“Borrower”), FLEET
NATIONAL BANK, a national banking association  (“Fleet”;  Fleet 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 Unsecured Revolving Credit
Agreement dated as of December 15, 2003 
(the “Loan Agreement”); and


 


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


 


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


 


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 Fleet 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


 


1

















 


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 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 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


 


2

















 


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


 


(a)                                  Authorization.  The execution, delivery and performance of
this Amendment and the transactions contemplated hereby (i) are within the
authority of Borrower, (ii) have been duly authorized by all necessary
proceedings on the part of Borrower, (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 Borrower is subject or any judgment, order, writ,
injunction, license or permit applicable to Borrower, (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 Borrower or any
of its properties or to which Borrower 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 Borrower, 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 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.


 


7.                                       No
Default.  By execution hereof, the
Borrower certifies that Borrower 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.


 


3

















 


8.                                       Waiver
of Claims.  Borrower acknowledges,
represents and agrees that Borrower does not have 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 Borrower
does hereby expressly waive, release and relinquish any and all such defenses,
setoffs, claims, counterclaims and causes of action, if any.


 


9.                                       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
constitute the legally valid and binding obligation of Borrower enforceable
against Borrower in accordance with their terms, 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 evidenced by the Notes or
the other obligations of Borrower under the Loan Documents.


 


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


 


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


 


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


 


13.                                 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.


 


 


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


 


4

















 


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]

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  FLEET:

  
	
   

  	
   

  
	
   

  	
  FLEET NATIONAL
  BANK, a national banking

  association

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  George A. Ojanuga

  
	
   

  	
  Name: 

  	
  George A. Ojanuga

  
	
   

  	
  Title: 

  	
  Director

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  AGENT:

  
	
   

  	
   

  
	
   

  	
  FLEET NATIONAL
  BANK, a national banking

  association, as Administrative Agent

  
	
   

  	
   

  
	
   

  	
  By: 

  	
  George A. Ojanuga

  
	
   

  	
  Name: 

  	
  George A. Ojanuga

  
	
   

  	
  Title: 

  	
  Director

  
					



 


5