EXHIBIT 10.1
FIRST AMENDMENT TO
REVOLVING CREDIT AGREEMENT
AMONG
AMERIVEST PROPERTIES INC.
and
FLEET NATIONAL BANK, AS ADMINISTRATIVE AGENT
and
THE LENDERS PARTY HERETO
FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT
---------------------------------------------
This FIRST AMENDMENT TO REVOLVING CREDIT AGREEMENT is dated as of the sixth
(6th) day of February, 2003, by and among AMERIVEST PROPERTIES INC., a Maryland
corporation (the "Borrower"), and FLEET NATIONAL BANK, a national banking
association ("FNB"), the other lending institutions which are listed on Schedule
1, (the "Lenders") and FLEET NATIONAL BANK, as agent for itself and such other
lending institutions (the "Agent").
WHEREAS, the Borrower, the Agent, and FNB executed and delivered that
certain Revolving Credit Agreement dated as November 12, 2002 (as amended, the
"Credit Agreement"); and
WHEREAS, the Borrower has requested that the Lenders approve as an
Additional Property the Real Estate Asset owned by AmeriVest Black Canyon Inc.,
an Arizona corporation, known as the Southwest Gas Building and located at 10851
N. Black Canyon Freeway, Phoenix, Arizona (the "Southwest Gas Building") and the
Borrower has requested an increase, pursuant to ss.2.2 of the Credit Agreement,
of the Total Commitment from $30,000,000 to $42,000,000 and the Lenders have
approved such requests subject to certain amendments to the Credit Agreement in
connection therewith; and
WHEREAS, the parties to the Credit Agreement have agreed to amend certain
provisions thereof as set forth herein.
NOW, THEREFORE, the parties hereby agree that effective upon the date
hereof the Credit Agreement is amended as follows:
1. Definitions: ss.1.1 of the Credit Agreement is amended to provide that
the following terms shall have the following meanings and, to the extent that
any of the following terms are already defined in the Credit Agreement, such
definitions shall be deemed to be amended and restated by the following
definitions:
Gross Asset Value. At any date, Borrower's total assets, adjusted to add
back the accumulated depreciation of its real estate assets, all as determined
in accordance with Generally Accepted Accounting Principals as of such date,
plus $4,507,557 (which amount represents the difference between the purchase
price and historical net book value of Sheridan Plaza upon Borrower's
acquisition in 2001).
Guarantor. AmeriVest Centerra Inc., a Colorado corporation, AmeriVest
Chateau Inc., a Texas corporation, AmeriVest Black Canyon Inc., an Arizona
corporation and each Related Company that owns a Real Estate Asset approved by
the Majority Lenders as an Additional Property and that executes and delivers a
Guaranty.
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Change in Control. The occurrence of any of the following events: (A) if
during any twelve month period on or after the Effective Date, individuals who
at the beginning of such period constituted the Board of Directors of the
Borrower (together with any new directors whose election by the Board of
Directors or whose nomination for election by the shareholders of the Borrower
was approved by a vote of at least a majority of the members of the Board of
Directors then in office who either were members of the Board of Directors at
the beginning of such period or whose election or nomination for election was
previously so approved) cease for any reason to constitute a majority of the
members of the Board of Directors then in office; or (B) if there occurs a
change of control of the Borrower of a nature that would be required to be
reported in response to Item 1a of Form 8-K filed pursuant to Section 13 or 15
under the Securities Exchange Act of 1934, or in any other filing by the
Borrower with the Securities and Exchange Commission; or (C) if the Borrower or
any Guarantor consolidates with, is acquired by, or merges into or with any
Person.
Term Loan Agreement. The Term Loan Agreement dated as of the First
Amendment Effective Date pursuant to which FNB will make a term loan to Borrower
in the initial principal amount of $5,100,000, secured by pledges of Borrower's
stock or other ownership interests in certain of the Related Companies.
2. Increase in Total Commitment. Pursuant to ss.2.2 of the Credit Agreement
FNB hereby increases its Commitment to the amount shown on the revised Schedule
1.1 attached hereto effective on the First Amendment Effective Date (hereinafter
defined) which shall be the Commitment Increase Date. Pursuant to ss.2.2 (c) the
Borrower shall execute and deliver to FNB a new Note so that the principal
amount of its Note shall equal its Commitment.
3. Amendment of ss.4.1. ss.4.1 is hereby amended and restated to read as
follows:
ss.4.1. Fees. On the Effective Date, the Borrower shall pay to FNB the
fees in the amounts specified in the Term Sheet provided by FNB to the
Borrower dated September 18, 2002. On the Commitment Increase Date the
Borrower shall pay to FNB the fees with respect to the Commitment Increase
in the amounts specified in the Term Sheet provided by FNB to the Borrower
dated January 29, 2003. Borrower shall pay to the Agent, for the account of
Agent only, an annual Agent's fee in the amount of $50,000 payable annually
in advance beginning on the first date that there is more than one Lender
hereunder and each anniversary of such date thereafter so long as any Loan
or Letter of Credit is outstanding or the Lenders have any obligations to
make Loans. In addition, upon each addition or substitution of Mortgaged
Properties under ss.5, Borrower shall pay Agent, for the account of Agent
only, an additional Agent's fee of $2,500.
4. Amendment of ss.12.1. ss.12.1 is hereby amended by adding the following
additional paragraphs following paragraph (o) thereof:
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(p) a Change of Control shall occur without the prior written consent of
all Lenders;
(q) any "Event of Default" as defined in the Term Loan Agreement shall
occur;
5. Updated Schedules. The following Schedules to the Credit Agreement are
hereby replaced with the attached Schedules as follows:
Schedule 1.1 Commitments
Schedule 1.2 Mortgaged Properties
Schedule 6.15 Related Party Transactions
Schedule 6.18 Environmental Reports and Environmental Matters
Schedule 6.22(d) Property Condition Reports
Schedule 6.20 is supplemented by adding thereto the rent roll for the Southwest
Gas Building attached hereto.
6. Representations and Warranties. The Borrower represents and warrants
that, to its knowledge and belief, no Default or Event of Default has occurred
and is continuing on the date hereof, and that each of the representations and
warranties contained in ss.6.18, in ss.6.20 and in ss.6.22 of the Credit
Agreement (with each reference therein to the terms "Mortgaged Property" or
"Mortgaged Properties" being deemed to include the Southwest Gas Building) are
true and accurate as of the date hereof with respect to the Southwest Gas
Building.
7. Effectiveness of Loan Documents. The Borrower hereby confirms that each
of the Security Documents shall continue to secure the payment and performance
of all of the Obligations under the Credit Agreement as amended hereby and the
Borrower's obligations under the Security Documents shall continue to be valid
and enforceable and shall not be impaired or limited by the execution or
effectiveness of this Amendment. Every reference contained in the Loan Documents
to the Credit Agreement shall mean and be a reference to the Credit Agreement as
amended hereby and as the Credit Agreement may be further amended. Except as
specifically amended by this Amendment, the Credit Agreement and each of the
Loan Documents shall remain in full force and effect and are hereby ratified and
confirmed.
8. Miscellaneous. This Amendment shall be governed by, interpreted and
construed in accordance with all of the same provisions applicable under the
Credit Agreement including, without limitation, all definitions set forth in
ss.1.1, the rules of interpretation set forth in ss.1.2, the provisions relating
to governing law set forth in ss.20, the provisions relating to counterparts in
ss.22 and the provision relating to severability in ss.26.
9. Conditions to Effectiveness. This First Amendment to Credit Agreement
shall become effective on the earliest date that each of the following
conditions shall have been satisfied (such date being the "First Amendment
Effective Date"):
(a) Each of the following documents shall have been duly executed and
delivered by all of the parties hereto: (i) this First Amendment to Credit
Agreement, (ii) the replacement Note payable to FNB in the amount of its
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increased Commitment; (iii) a First Amendment to each of the Guaranties executed
prior to the date hereof reflecting the increase in the amount of the Notes;
(iv) a First Amendment to each of the Security Deeds executed prior to the date
hereof reflecting said amendment of the Guaranty secured thereby and the
increase in the amount of the Notes; (ii) a First Amendment to each of the
Assignments of Leases and Rents executed prior to the date hereof reflecting
said amendment of the Guaranty secured thereby and the increase in the amount of
the Notes; and (v) the Term Loan Agreement.
(b) The conditions set forth in ss.5.4 with respect to the Southwest Gas
Building shall have been satisfied, except that the Certificate described in
ss.5.4 (d) shall not be required as the substance thereof is included in
paragraph 6 of this Amendment.
(c) The Security Documents with respect to the Southwest Gas Building, the
Guaranty from AmeriVest Black Canyon Inc. and all related documents described in
ss.5.3 shall have been executed and delivered to the satisfaction of the Agent.
(d) The Title Policies for each Mortgaged Property shall be endorsed to
reflect the amendments of the applicable Security Deed and the applicable
Assignment of Leases and Rents and a tie-in endorsement shall be added to each
Title Policy issued by Chicago Title Insurance Company, all in form satisfactory
to the Agent, provided that if Borrower is unable to obtain such endorsement
with respect to the Mortgaged Property in Texas, Borrower shall submit other
evidence acceptable to the Agent as to the recording of such amendments.
(e) The Agent shall have received Update Certificates from the Secretary or
Assistant Secretary of the Borrower and each Guarantor, all in form satisfactory
to the Agent.
(f) The Agent shall have received favorable opinions addressed to the
Lenders and the Agent and dated as of the First Amendment Effective Date, in
form and substance reasonably satisfactory to the Lenders and the Agent from
Borrower's counsel.
In the event that the effective date has not occurred on or before February 12,
2003 then this instrument shall be void and the Credit Agreement shall remain in
effect as though this instrument had never been executed.
[signature pages follow]
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IN WITNESS WHEREOF, the undersigned have duly executed this Agreement as a
sealed instrument as of the date first set forth above.
BORROWER:
AMERIVEST PROPERTIES INC.,
a Maryland corporation
By: John B. Greenman
--------------------
Name: John B. Greenman
Title: Vice President
AGENT:
FLEET NATIONAL BANK, as Agent
By: Lori Y. Litow
-----------------
Name: Lori Y. Litow
Title: Director
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Lender Signature Page
FLEET NATIONAL BANK
By: Lori Y. Litow
-----------------
Name: Lori Y. Litow
Title: Director
Commitment: $42,000,000
Commitment Percentage: 100%
Notice Address: Fleet National Bank
100 Federal Street
Boston, MA 02110
Attn: Structured Real Estate
With a copy to:
Fleet National Bank.
115 Perimeter Center Place, N.E.
Suite 500
Atlanta, GA 30346
Attn: Lori Y. Litow, Director
Fax: (770)390-8434 or 391-9811
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SCHEDULE 1.1
Commitments
-----------
Lender Commitment Commitment Percentage
- ------ ---------- ---------------------
Fleet National Bank $42,000,000 100%
Totals $42,000,000 100%
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Schedule 1.2
Mortgaged Real Property
Centerra Office Building, 1873 South Bellaire Street, Denver, Colorado
Chateau Plaza Office Building, 2515 McKinney Avenue, Dallas, Texas
Southwest Gas Building, 10851 N. Black Canyon Freeway, Phoenix, Arizona
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SCHEDULE 1.3
RELATED COMPANIES
& UNCONSOLIDATED ENTITIES
Related Companies - AmeriVest Properties Inc. is the 100% Shareholder of each:
- ------------------------------------------------------------------------------
Subsidiary Name State of Incorporation
- --------------- ----------------------
AmeriVest Broadway Properties Inc. Colorado
AmeriVest Sheridan Center Inc. Colorado
AmeriVest Properties Texas Inc. Texas
AmeriVest Buildings Texas Inc. Texas
AmeriVest Properties Indiana Inc. Indiana
AmeriVest Inverness Inc. Colorado
AmeriVest Arrowhead Inc. Arizona
AmeriVest Kellogg Inc. Colorado
Kellogg Executive Suites, Inc. Colorado
AmeriVest Parkway Inc. Texas
AmeriVest Centerra Inc. Colorado
AmeriVest Chateau Inc. Texas
AmeriVest Black Canyon Inc. Arizona
AmeriVest Keystone Inc. Indiana
Unconsolidated Entities:
- ------------------------
The Borrower's AmeriVest Broadway Properties Inc. subsidiary owns 20% of the
Panorama Falls building as a tenant in common.
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SCHEDULE 6.15
Related Party Transactions
See discussion captioned "TRANSACTIONS BETWEEN AMERIVEST AND RELATED PARTIES"
contained in Borrower's Form 10-Q for the quarter ended September 30, 2002, as
supplemented by Form 8-K dated December 23, 2002.
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SCHEDULE 6.18
PHASE I ENVIRONMENTAL SITE ASSESSMENTS
Phase I Environmental Site Assessment of Centerra Building, 1873 S. Bellaire
St., Denver, Colorado dated October 16, 2002 prepared by ENSR Corporation.
Phase I Environmental Site Assessment of Chateau Plaza, 2515 McKinney Avenue,
Dallas, Texas dated November 4, 2002 prepared by ENSR Corporation.
Phase I Environmental Site Assessment of Southwest Gas Building, 10851 N. Black
Canyon Freeway, Phoenix, Arizona dated January 2, 2003 prepared by ENSR
Corporation.
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SCHEDULE 6.22(d)
PHYSICAL CONDITION SITE ASSESSMENT REPORTS
Property Evaluation Report Centerra Office Building Denver, Colorado dated
September 20, 2002 prepared by LM Consultants, Inc.
Property Evaluation Report Chateau Plaza Dallas, Texas dated October 22, 2002
prepared by LM Consultants, Inc.
Property Evaluation Report Southwest Gas Building, Phoenix, Arizona dated
December 23, 2002 prepared by LM Consultants, Inc.
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SCHEDULE 6.20
Rent Rolls for the Mortgaged Properties
Centerra Office Building, 1873 South Bellaire Street, Denver, Colorado --
Attached to Credit Agreement dated November 12, 2002
Chateau Plaza Office Building, 2515 McKinney Avenue, Dallas, Texas -- Attached
to Certificate Regarding Mortgaged Property dated November 25, 2002
Southwest Gas Building, 10851 N. Black Canyon Freeway, Phoenix, Arizona --
Attached to this First Amendment to Credit Agreement dated February 6, 2003
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