-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, JNIdWcv2zqkW2sEs56nOfoA8KEXBroa+SzaeucetNUMdRcm2kr3wI4bnHdoCuIcM 8/vLV9BYrXdB6aYyJdi+9g== 0001104659-05-044715.txt : 20050919 0001104659-05-044715.hdr.sgml : 20050919 20050919165803 ACCESSION NUMBER: 0001104659-05-044715 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 6 CONFORMED PERIOD OF REPORT: 20050914 ITEM INFORMATION: Entry into a Material Definitive Agreement ITEM INFORMATION: Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20050919 DATE AS OF CHANGE: 20050919 FILER: COMPANY DATA: COMPANY CONFORMED NAME: AMERIVEST PROPERTIES INC CENTRAL INDEX KEY: 0000927102 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 841240264 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-14462 FILM NUMBER: 051091774 BUSINESS ADDRESS: STREET 1: 1780 S BELLAIRE ST STREET 2: SUITE 515 CITY: DENVER STATE: CO ZIP: 80222 BUSINESS PHONE: 3032971800 MAIL ADDRESS: STREET 1: 1780 S. BELLAIRE ST. STREET 2: SUITE 515 CITY: DENVER STATE: CO ZIP: 80222 8-K 1 a05-16364_18k.htm 8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): September 14, 2005

AmeriVest Properties Inc.

(Exact name of small business issuer as specified in its charter)

Maryland		1-14462		84-1240264
(State or other jurisdiction of incorporation or organization)		(Commission File No.)		(I.R.S. Employer Identification No.)

1780 South Bellaire Street, Suite 100, Denver, Colorado 80222

(Address of principal executive offices)

(303) 297-1800

(Registrant’s telephone number)

N/A

(Former Name or Former Address, if Changed Since Last Report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o Written communications pursuant to Rule 425 under the Securities Act

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act

Item 1.01. Entry into a Material Definitive Agreement.

On September 14, 2005, AmeriVest Properties Inc. (“AmeriVest”) announced that it had entered into amended loan agreements for its secured and unsecured credit facilities with its primary bank group.

The current agreements require AmeriVest to repay $10 million of its secured facility and at least $5 million of its unsecured facility by September 15, 2005. The amendments eliminate these payments and require an aggregate $15 million payment against the facilities on or before January 17, 2005. In addition, the maturity date for each facility has been extended to April 1, 2006.

The amendments also modify certain covenants and collateral provisions, including adding a requirement that AmeriVest enter into an employment agreement with its Chief Executive Officer for the remaining term of the facilities. The agreement entered into between AmeriVest and Charles K. Knight, President and CEO, on August 31, 2005 and announced in AmeriVest’s Current Report on Form 8-K, filed with the Commission on September 6, 2005, satisfies that requirement.

In connection with the amended loan agreements, AmeriVest executed a letter agreement with its primary bank group which refers to provisions in the amended loan agreements that establish a plan of transfer for certain of the Applicant’s assets. Pursuant to such provisions, the Letter sets forth prices below which the lender’s consent must be obtained prior to selling such assets.

Also in connection with the amended loan agreements, AmeriVest’s wholly-owned subsidiaries AmeriVest Chateau Inc. and AmeriVest Greenhill Inc. entered into certain amendments to existing collateral account agreements.

The description of the terms of each of these agreements is qualified in its entirety by reference to the agreements, copies of which are included under Item 9.01(c) as Exhibit 10.1, 10.2, 10.3, 10.4, and 10.5 to this Current Report and are included in this item by reference.

Item 2.03. Creation of a Direct Financial Obligation or an Obligation under and Off-Balance Sheet Arrangement or a Registrant.

Item 1.01 is incorporated by reference herein.

Item 9.01. Financial Statements and Exhibits.

Exhibit 10.1

Fifth Amendment to Revolving Credit Agreement between AmeriVest Properties Inc., AmeriVest Chateau Inc., AmeriVest Greenhill Inc., KeyBank National Association, as agent, and the lenders party thereto, dated September 14, 2005.

Exhibit 10.2	Second Amendment to the Amended and Restated Unsecured Revolving Credit Agreement among AmeriVest Properties Inc., KeyBank National Association, as lender, and KeyBank National Association, as agent, dated September 14, 2005.

Exhibit 10.3	First Amended and Restated Collateral Account Agreement between AmeriVest Chateau Inc., AmeriVest Greenhill Inc., and KeyBank National Association, dated September 14, 2005.

Exhibit 10.4	Second Collateral Account Agreement between AmeriVest Chateau Inc., AmeriVest Greenhill Inc., and KeyBank National Association, as Agent, dated September 14, 2005.

Exhibit 10.5	Letter from AmeriVest to KeyBank National Association, dated September 14, 2005.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.

Dated: September 19, 2005	AMERIVEST PROPERTIES INC.


	By:	/s/ Charles K. Knight
	Name:		Charles K. Knight
	Title:		President and CEO

EXHIBIT INDEX

Exhibit No.		Description
10.1		Fifth Amendment to Revolving Credit Agreement between AmeriVest Properties Inc., AmeriVest Chateau Inc., AmeriVest Greenhill Inc., and KeyBank National Association, as agent, and the lenders party thereto, dated September 14, 2005.
10.2		Second Amendment to the Amended and Restated Unsecured Revolving Credit Agreement among AmeriVest Properties Inc., KeyBank National Association, as lender, and KeyBank National Association, as agent, dated September 14, 2005.
10.3		First Amended and Restated Collateral Account Agreement between AmeriVest Chateau Inc., AmeriVest Greenhill Inc., and KeyBank National Association, dated September 14, 2005.
10.4		Second Collateral Account Agreement between AmeriVest Chateau Inc., AmeriVest Greenhill Inc., and KeyBank National Association, as Agent, dated September 14, 2005.
10.5		Letter from AmeriVest to KeyBank National Association, dated September 14, 2005.

EX-10.1 2 a05-16364_1ex10d1.htm EX-10.1

Exhibit 10.1

FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT

THIS FIFTH AMENDMENT TO REVOLVING CREDIT AGREEMENT (this “Amendment”) made as of the 14th day of September, 2005 by and among AMERIVEST PROPERTIES INC., a Maryland corporation (the “Borrower”), AMERIVEST CHATEAU INC., a Texas corporation (“Chateau”) and AMERIVEST GREENHILL INC., a Texas corporation (“Greenhill”; Chateau and Greenhill are sometimes hereinafter referred to individually as “Guarantor” and collectively as “Guarantors”), KEYBANK NATIONAL ASSOCIATION, a national banking association (“KeyBank”), U.S. BANK NATIONAL ASSOCIATION (“US Bank”; KeyBank, 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 KEYBANK NATIONAL ASSOCIATION, a national banking association, as agent (the “Agent”).

W I T N E S S E T H:

WHEREAS, the Borrower, Fleet National Bank (“Fleet”) and Fleet, as Agent (“Original 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, that certain Second Amendment to Revolving Credit Agreement dated March 16, 2004, that certain Third Amendment to Revolving Credit Agreement dated March 15, 2005, and that certain Fourth Amendment to Revolving Credit Agreement dated as of June 6, 2005 as effected by a letter agreement dated August 31, 2005 (as amended, the “Loan Agreement”); and

WHEREAS, KeyBank has acquired the interests of Fleet under the Loan Agreement pursuant to an Assignment and Acceptance dated October 4, 2004;

WHEREAS, Original Agent has resigned as “Agent” under the Loan Agreement and the Agent has been appointed as successor Agent under the Loan Agreement; and

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

WHEREAS, Greenhill executed and delivered to the Agent a Guaranty dated December 3, 2003 (the “Greenhill Guaranty”; the Chateau Guaranty and the Greenhill Guaranty are hereinafter referred to collectively as the “Guaranties”); and

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

WHEREAS, as a condition to such modification, the Agent and the Lenders have required that the 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 of the Loan Agreement. The Borrower, the Agent and the Lenders do hereby modify and amend the Loan Agreement as follows:

(a) By deleting the definitions of “Borrowing Base Value”, “Collateral Account Agreement”, “Fixed Charges” and “Maturity Date” in §1.1 of the Loan Agreement in their entirety, and replacing them with the following new definitions of “Borrowing Base Value”, “Collateral Account Agreement”, “Fixed Charges” and “Maturity Date”:

“Borrowing Base Value. For each Mortgaged Property, Borrowing Base Value shall equal seventy percent (70%) of the lesser of (a) the Appraised Value of such Mortgaged Property or (b) an amount equal to the sum of the purchase price of such Mortgaged Property plus all capital expenditures or improvements to the Mortgaged Property approved by the Agent and made by the Mortgagor since the date of purchase; provided, however, that upon the release of the Mortgaged Property commonly known as Chateau Plaza or Greenhill Park pursuant to this Agreement, the foregoing reference to seventy percent (70%) shall instead be sixty-five percent (65%).

Collateral Account Agreement. The First Amended and Restated Collateral Account Agreement between AmeriVest Chateau Inc., AmeriVest Greenhill Inc., Agent and KeyBank as depository with respect to the Chateau Plaza Reserve Account.

Fixed Charges. With respect to any fiscal period of the Borrower, an amount equal to the sum of (i) Interest Expense (but excluding any amortization of one-time upfront loan fees included in Interest Expense for such period), (ii) regularly scheduled installments of principal payable with respect to all Indebtedness of Borrower and the Related Companies, excluding any balloon payments due at the maturity of such Indebtedness, plus (iii) all dividend payments due to the holders of any preferred stock of the Borrower.

Maturity Date. April 1, 2006, or such earlier date on which the Loans shall become due and payable pursuant to the terms hereof.”

(b) By inserting the following new definitions in §1.1 of the Loan Agreement:

“Employment Contract. An employment agreement between Borrower and Charles Knight, pursuant to which Charles Knight agrees to perform services for the Borrower as Chief Executive Officer and President, such agreement to have a term ending not sooner than the repayment of the Loans and otherwise being in form and substance satisfactory to Agent.

Named Executive. Charles Knight.

Net Sales Proceeds. With respect to the sale of any Mortgaged Property, the gross sales price payable by the purchaser thereof less all actual costs of sale that are charged to the Mortgagor of such Mortgaged Property and payable to third parties unrelated to or unaffiliated with Borrower and Guarantors, including without limitation, title insurance charges, escrow fees, legal fees, real estate taxes,

transfer taxes, and real estate brokers’ commissions. In the event that any such costs are payable to a Person related to or affiliated with Borrower or Guarantors, such payments shall be subject to the approval of Agent.

KeyBank. KeyBank National Association.

Termination For Cause. Termination by Borrower of Named Executive’s employment by reason of (a) Named Executive’s (i) failure to adhere to written policies of Borrower, which failure has a material adverse effect on Borrower, (ii) appropriation (or attempted appropriation) of a material business opportunity of Borrower, including attempting to secure or securing any personal profit or benefit in connection with any transaction entered into on behalf of Borrower, or (iii) misappropriation (or attempted misappropriation) of any of Borrower’s funds or property, or (b) the conviction of, the indictment (or its procedural equivalent) for or the entry of a guilty plea or plea of no contest by Named Executive with respect to, a felony, the equivalent thereof, or any other crime with respect to which imprisonment is a possible punishment.”

“(b) The Borrower shall make principal payments to the Agent for the respective accounts of the Lenders for application to the Loans in the aggregate principal amount of at least $15,000,000.00 between the period March 16, 2005 and January 17, 2006.”

(d) By inserting the following as §3.2(c) of the Loan Agreement:

“(c) Fifty percent (50%) of the proceeds distributed to or received by or on behalf of the Borrower or any Related Company or, in the case of any Unconsolidated Entity, the proceeds actually distributed to or received by or on behalf of the Borrower or any Related Company by such Unconsolidated Entity, (i) from each and every sale or refinancing of or other capital event with respect to any asset [(other than office equipment and furnishings in the ordinary course of business)] of the Borrower, any Related Company or any Unconsolidated Entity (including a casualty or condemnation, return of capital or repayment of debt held by the Borrower or any Related Company with respect to such assets or any of such Person’s direct or indirect interest therein), less all reasonable and customary closing costs, expenses and commissions paid to unrelated parties and less any Indebtedness secured by such asset to be satisfied as a part of such sale or refinance and (ii) from each and every sale, financing, or refinancing of, or transaction which results in the dilution of, the Borrower’s, direct or indirect ownership interest in any of the Related Companies or any Unconsolidated Entity, shall be promptly paid to the Agent for the account of the Lenders after receipt thereof by the Borrower, such Related Company or such Unconsolidated Entity as a prepayment of the Loans to the extent of the outstanding balance of the Loans. All payments made under this §3.2(c) will be credited against the payment due under §3.2(b) hereof. The Borrower agrees that the Borrower shall, promptly, upon the Borrower’s belief that such event may occur, provide notice to Agent of

any proposed or contemplated event described in this §3.2(c). The provisions of this §3.2(c) shall not apply to any such event occurring with respect to the Mortgaged Properties.”

(e) By deleting §5.6 of the Loan Agreement in its entirety and inserting in lieu thereof the following new §5.6:

“§5.6 Chateau Plaza Reserve Account.

The Borrower has caused AmeriVest Chateau Inc. and AmeriVest Greenhill Inc. to establish the Chateau Plaza Reserve Account at KeyBank pursuant to the Collateral Account Agreement. Borrower acknowledges that for so long as KeyBank is the Agent hereunder, the Agent shall be deemed to be in control of the Chateau Plaza Reserve Account as required for perfection of said security interest under Article 9 of the Uniform Commercial Code. In the event that the Agent is no longer KeyBank, Borrower, AmeriVest Greenhill Inc., AmeriVest Chateau Inc., KeyBank and the successor Agent shall enter into a control agreement for purposes of maintaining such perfection. As of August 30, 2005, the balance of the Chateau Plaza Reserve Account is $2,899,325.36. For so long as Chateau Plaza shall be a Mortgaged Property, Borrower shall cause AmeriVest Chateau Inc. to make monthly deposits on or before the 20th day of each month into the Chateau Plaza Reserve Account equal to the excess of the Net Operating Income from Chateau Plaza for the preceding calendar month over the sum of (i) interest for one month on a principal amount of $15,400,000 at the actual average interest rate on the Loans during such preceding month and (ii) $45,125.00 which is an assumed contribution from Chateau Plaza toward the regular quarterly dividend on Borrower’s common stock, provided that in the event that the current quarterly dividend rate of 13.0 cents per share is increased or decreased, the monthly sum stated in this clause (ii) shall be proportionately increased or decreased. On or before the 20th day of each month Borrower shall give to the Agent a written Deposit Certificate in the form of Exhibit F hereto certifying the information used to compute the amount of each monthly deposit. Any termination fees or other consideration paid in connection with the termination of the current lease of the Dean Foods Premises shall be immediately deposited in the Chateau Plaza Reserve Account. If the existing Lease of the Dean Foods Premises terminates, then so long as Chateau Plaza is a Mortgaged Property and to the extent that the Mortgagor of Chateau Plaza executes Leases of portions of the Dean Foods Premises, Borrower may request periodic disbursements from the Chateau Plaza Reserve Account in amounts needed to pay leasing commissions and costs of tenant finish improvements constructed pursuant to the terms of such Leases, and Agent shall make such disbursements subject to receipt of lien waivers and other documents reasonably requested by the Agent. In addition, for so long as Greenhill Park shall be a Mortgaged Property, then to the extent that the Mortgagor of Greenhill Park executes Leases of portions of such Mortgaged Property, Borrower may request periodic disbursements from the Chateau Plaza Reserve Account in amounts needed to pay leasing commissions and costs of tenant improvements constructed pursuant to the terms of such Leases, and Agent shall make such disbursements subject to

receipt of lien waivers and other documents reasonably requested by the Agent. If an Event of Default has occurred and is continuing, the Agent may, in its sole discretion, apply any or all funds in the Chateau Plaza Reserve Account in the same manner as Collateral proceeds under §12.4.”

(f) By inserting the following as §8.9 of the Loan Agreement:

“§8.9 Employment Contract. Borrower shall not modify or amend in any material respect the Employment Contract, and shall cause the Employment Contract at all times to remain in full force and effect.”

(g) By deleting in its entirety §9.5 of the Loan Agreement and inserting in lieu thereof the following:

“§9.5 EBITDA to Fixed Charges. The Borrower will not permit the ratio of its EBITDA to Fixed Charges to be less than 1.25 to 1.0 for any period of two fiscal quarters annualized, calculated as of the end of each fiscal quarter. Notwithstanding the foregoing, extraordinary gains and losses shall not be annualized for purposes of the foregoing calculations if, and to the extent, approved by Agent in its reasonable discretion.”

(h) By deleting §12.1(o) of the Loan Agreement in its entirety, and inserting in lieu thereof the following:

“(o) The Named Executive shall cease to hold the positions of Chief Executive Officer and President of Borrower; provided, however, that an Event of Default shall not be deemed to have occurred if the Named Executive is terminated as a result of a Termination for Cause or is terminated as a result of death or disability and Borrower (A) presents a plan for the replacement of the Named Executive reasonably acceptable to the Majority Lenders within twenty (20) Business Days of such event, and (B) a competent and experienced successor for the Named Executive is approved by the Majority Lenders within ninety (90) days of such event causing the termination of such employment, which approval may be granted or withheld by the Majority Lenders in their sole and absolute discretion;”

(i) Notwithstanding anything in §5.5 of the Loan Agreement to the contrary, provided that no Default or Event of Default under the Loan Agreement exists or will be created as a result of a release, Borrower may obtain a release of a Mortgaged Property upon a sale of a Mortgaged Property to a Person that is not an affiliate of or related to Borrower or Mortgagors upon: (i) the delivery to Agent of a pro-forma Compliance Certificate reasonably satisfactory to the Agent demonstrating that the requested release, once consummated, will not result in a violation of any of the covenants in §9.1 through §9.6 of the Loan Agreement (as in effect following such release), and (ii) the payment to Agent for the account of the Lenders of a release price in an amount equal to the greater of (A) the Net Sales Proceeds from the sale of such Mortgaged Property and (B) $23,000,000.00 (with respect to the Mortgaged Property commonly known as Chateau Plaza) and $24,000,000.00 (with respect to the Mortgaged Property commonly known as Greenhill Park), which payment shall be applied to reduce the principal balance of the Loans and will be credited, if applicable, against the payments due under §3.2(b)

of the Loan Agreement. As a condition to such release, the Agent and the Lenders shall have the right to require the delivery of an Appraisal of the remaining Mortgaged Property to determine the Appraised Value thereof and require such additional principal payments such that the Outstanding Obligations does not exceed the aggregate Borrowing Base Value of the Mortgaged Properties (as the same will be determined following such release). Upon the release of either of the Mortgaged Property commonly known as Chateau Plaza and Greenhill Park pursuant to this paragraph, the funds in the Chateau Plaza Reserve Account in excess of $1,250,000.00 shall be applied as a prepayment of the principal amount of the Outstanding Obligations. Upon the requested release of the other Mortgaged Property commonly known as Chateau Plaza and Greenhill Park, the remaining balance in the Chateau Plaza Reserve Account shall be first applied against the Outstanding Obligations.

(j) For the purposes of §8.2 of the Loan Agreement, the Lenders consent to the granting by AmeriVest Chateau Inc. and AmeriVest Greenhill Inc. of a subordinate deed of trust and assignment of leases and rents on their respective Mortgaged Properties and a subordinate lien on the Chateau Plaza Reserve Account to secure the obligations of Borrower under that certain First Amended and Restated Unsecured Revolving Credit Agreement dated October 24, 2004 among Borrower and KeyBank, individually and as Agent, as amended.

(k) For the purposes of §8.4(c) of the Loan Agreement, the Lenders approve of the plan of transfers set forth in the separate plan delivered to Agent contemporaneously herewith, provided that such approval shall not affect Borrower’s obligation pursuant to §8.4(c) of the Loan Agreement to provide a Compliance Certificate with updated calculations prior to any such transfer.

3. 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.

4. Consent of Guarantors. By execution of this Amendment, each Guarantor hereby expressly consents to the modification and amendment to the Loan Agreement and any other amendments to the Loan Documents executed and delivered in connection herewith as set forth herein and therein, 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).

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

(a) Authorization. The execution, delivery and performance of this Amendment and any other amendments to the Loan Documents executed and delivered in connection herewith and the transactions contemplated hereby and thereby (i) are within the authority of the 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 and any other amendments to the Loan Documents executed and delivered in connection herewith are valid and legally binding obligations of the 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 any other amendments to the Loan Documents executed and delivered in connection herewith and the transactions contemplated hereby or thereby 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.

(d) Principal Reductions. As of the date hereof, Borrower has made no payments to be credited against the amounts due pursuant to §3.2(b) of the Loan Agreement.

6. 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 under the Loan Documents, as amended by this Amendment.

7. Waiver of Claims. The 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 the 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.

8. 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 or in any other modification documents executed in connection herewith 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 the Borrower and the Guarantors under the Loan Documents.

9. Effective Date. This Amendment shall be deemed effective and in full force and effect upon (a) the execution and delivery of this Amendment by the Borrower, the Guarantors, the Agent and the Lenders, (b) the execution and delivery of the Second Amendment to Amended and Restated Unsecured Revolving Credit Agreement by the Borrower, the Agent and the lenders a party thereto, (c) the delivery to Agent of the Employment Contract, which shall be in full force and effect, and (d) the delivery to Agent of such other documents as Agent may reasonably require.

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

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

12. 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.

13. Expenses. Borrower shall pay the reasonable fees and expenses of Agent and Lenders in connection with the negotiation, execution and delivery of this Amendment.

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

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., a Maryland corporation

By:	/s/ Charles K. Knight
Name:		Charles K. Knight
Title:		President and CEO

[CORPORATE SEAL]


GUARANTORS:

AMERIVEST CHATEAU INC., a Texas corporation

By:	/s/ Charles K. Knight
Name:		Charles K. Knight
Title:		President and CEO

[CORPORATE SEAL]


AMERIVEST GREENHILL INC., a Texas corporation

By:	/s/ Charles K. Knight
Name:		Charles K. Knight
Title:		President and CEO

[CORPORATE SEAL]

[SIGNATURES CONTINUED ON NEXT PAGE

LENDERS:

KEYBANK NATIONAL ASSOCIATION, a national banking association

By:	/s/ Peter F.C. Armstrong, Jr.
Name:		Peter F.C. Armstrong, Jr.
Title:		Vice President


U.S. BANK NATIONAL ASSOCIATION

By:	/s/ Daniel P. Stegemoeller
Name:		Daniel P. Stegemoeller
Title:		Vice President


AGENT:

KEYBANK NATIONAL ASSOCIATION, a national banking association, as Agent

By:	/s/ Peter F.C. Armstrong, Jr.
Name:		Peter F.C. Armstrong, Jr.
Title:		Vice President

EX-10.2 3 a05-16364_1ex10d2.htm EX-10.2

Exhibit 10.2

SECOND AMENDMENT TO AMENDED AND RESTATED
UNSECURED REVOLVING CREDIT AGREEMENT

THIS SECOND AMENDMENT TO AMENDED AND RESTATED UNSECURED REVOLVING CREDIT AGREEMENT (this “Amendment”) made as of the 14th day of September, 2005 by and among AMERIVEST PROPERTIES INC., a Maryland corporation (the “Borrower”) KEYBANK NATIONAL ASSOCIATION, a national banking association (the “Lender”) and KEYBANK NATIONAL ASSOCIATION, a national banking association, as agent (the “Agent”).

W I T N E S S E T H:

WHEREAS, the Borrower, the Lender and the Agent entered into that certain First Amended and Restated Unsecured Revolving Credit Agreement dated October 20, 2004, as amended by that certain First Amendment to Amended and Restated Unsecured Revolving Credit Agreement dated March 15, 2005, as effected by a letter agreement dated August 31, 2005 (as amended, the “Loan Agreement”); and

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

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

(a) Notwithstanding anything contained in the Loan Agreement (including, without limitation, §2 thereof) or any other Loan Document to the contrary, from and after the date that all Obligations are paid, the Lender shall have no further obligation to make Loans and the Loan Agreement shall terminate (except for those provisions which by their terms survive a termination of the Loan Agreement).

(b) By inserting the following new definitions in §1.1 of the Loan Agreement:

“Assignments of Leases and Rents. The second assignments of rents and leases from the Mortgagor to the Agent pursuant to which the Mortgagor shall grant and assign to the Agent as agent for the Lenders a security interest in and assignment of the Mortgagor’s interest as lessor with respect to all Leases and rents thereunder of all or any part of the Mortgaged Properties as security for the Obligations, subject to the liens in favor of the “Agent” under the Secured Revolving Credit Agreement.

Chateau. AmeriVest Chateau Inc., a Texas corporation.

Chateau Plaza Reserve Account. See §5.4

Collateral. All of the properties of the Mortgagors that are subject to the security interests, liens and mortgages created by the Security Documents, including, without limitation, the Mortgaged Properties and the Leases.

Dean Foods Premises. That portion of the Mortgaged Property commonly known as Chateau Plaza currently leased to Dean Foods Company consisting of approximately 120,607 rentable square feet.

Employment Contract. An employment agreement between Borrower and Charles Knight, pursuant to which Charles Knight agrees to perform services for the Borrower as Chief Executive Officer and President, such agreement to have a term ending not sooner than the repayment of the Loans and otherwise being in form and substance satisfactory to Agent.

First Collateral Account Agreement. The Collateral Account Agreement as defined in the Secured Revolving Credit Agreement.

Greenhill. AmeriVest Greenhill Inc., a Texas corporation.

Leases. Leases, licenses and agreements whether written or oral, relating to the use or occupation of space in or on the Mortgaged Properties by persons other than the applicable Mortgagor.

Minimum Release Amount. See §5.3.

Mortgaged Properties. The (a) Real Estate Assets owned by Mortgagors, as such Real Estate Assets are more particularly described in the Security Deeds; and (b) all other property incident to any of same described in any Security Document.

Mortgagor. With respect to each of the Mortgaged Properties, Chateau or Greenhill as the owner thereof.

Named Executive. Charles Knight.

Net Sales Proceeds. With respect to the sale of any Mortgaged Property, the gross sales price payable by the purchaser thereof less all actual costs of sale that are charged to the Mortgagor of such Mortgaged Property and payable to third parties unrelated to or unaffiliated with Borrower or Mortgagors, including without limitation, title insurance charges, escrow fees, legal fees, real estate taxes, transfer taxes, and real estate brokers’ commissions. In the event that any such costs are payable

to a Person related to or affiliated with Borrower or Mortgagors, such payments shall be subject to the approval of Agent.

Second Collateral Account Agreement. The Second Collateral Account Agreement between AmeriVest Chateau Inc., AmeriVest Greenhill Inc., Agent and KeyBank as depository with respect to the Chateau Plaza Reserve Account.

Security Deeds. The second mortgages, deeds to secure debt and deeds of trust from each Mortgagor to the Agent pursuant to which such Mortgagor shall mortgage or convey the Mortgaged Properties as security for the Obligations, subject to the liens in favor of the “Agent” under the Secured Revolving Credit Agreement.

Security Documents. The Security Deeds, the Assignments of Rents and Leases, the Second Collateral Account Agreement, the Subordination, Attornment and Non-Disturbance Agreements and the UCC-1 financing statements.

Subordination, Attornment and Non-Disturbance Agreement. An agreement among and executed by the Agent, the Mortgagor and a tenant under a Lease pursuant to which such tenant agrees to subordinate its rights under the Lease to the lien of a Security Deed and agrees to recognize the Agent or its successor in interest as landlord under the Lease in the event of a foreclosure or other transfer under the Security Deed and the Agent agrees to not disturb the possession of the tenant so long as there is no default beyond applicable grace periods under the Lease.

(c) By deleting in their entirety the definitions of “Fixed Charges” and “Loan Documents” in §1.1 of the Loan Agreement, and inserting in lieu thereof the following:

“Fixed Charges. With respect to any fiscal period of the Borrower, an amount equal to the sum of (i) Interest Expense (but excluding any amortization of one-time upfront loan fees included in Interest Expense for

such period), (ii) regularly scheduled installments of principal payable with respect to all Indebtedness of Borrower and the Related Companies, excluding any balloon payments due at the maturity of such Indebtedness, plus (iii) all dividend payments due to the holders of any preferred stock of the Borrower.

Loan Documents. This Agreement, the Notes, the Security Documents, and any and all other agreements, documents and instruments now or hereafter evidencing, securing or otherwise relating to the Loans.”

(d) By deleting §3.2 of the Loan Agreement in its entirety and inserting in lieu thereof the following new §3.2:

“§3.2 Mandatory Repayments of Loan.

(a) If at any time the sum of the Outstanding Obligations exceeds the Maximum Credit Amount, then the Borrower shall immediately pay the amount of such excess to the Agent for the respective accounts of the Lenders for application to the Loans.

(b) [Intentionally Omitted.]

(c) The proceeds distributed to or received by or on behalf of the Borrower or any Related Company or, in the case of any Unconsolidated Entity, the proceeds actually distributed to or received by or on behalf of the Borrower or any Related Company by such Unconsolidated Entity, (i) from each and every sale or refinancing of or other capital event with respect to any asset [(other than office equipment and furnishings in the ordinary course of business)] of the Borrower, any Related Company or any Unconsolidated Entity (including a casualty or condemnation, return of capital or repayment of debt held by the Borrower or any Related Company with respect to such assets or any of such Person’s direct or indirect interest therein), less all reasonable and customary closing costs, expenses and commissions paid to unrelated parties and less any Indebtedness secured by such asset to be satisfied as a part of such sale or refinance and (ii) from each and every sale, financing, or refinancing of, or transaction which results in the dilution of, the Borrower’s, direct or indirect ownership interest in any of the Related Companies or any Unconsolidated Entity, shall be promptly paid to the Agent for the account of the Lenders after receipt thereof by the Borrower such Related Company or such Unconsolidated Entity as a prepayment of the Loans to the extent of the outstanding balance of the Loans; provided that until such time as no principal indebtedness is outstanding under the Secured Revolving Credit Agreement, only fifty percent (50%) of such proceeds shall be paid to Agent as provided above (and upon payment in full of the principal indebtedness outstanding under the Secured Revolving Credit Agreement, all such proceeds shall be paid to Agent for the account of the

Lenders). The Borrower agrees that the Borrower shall, promptly, upon the Borrower’s belief that such event may occur, provide notice to Agent of any proposed or contemplated event described in this §3.2(c). The provisions of this §3.2(c) shall not apply to any such event occurring with respect to the Mortgaged Properties.”

(e) By inserting the following as §5.3 of the Loan Agreement:

“§5.3 Release of Mortgaged Properties.

The Borrower may request that the Lenders authorize the Agent to release any Mortgaged Property from the lien of the Security Documents, provided that no Default or Event of Default under the Loan Agreement exists or will be created as a result of the release upon a sale of a Mortgaged Property to a Person that is not an affiliate of or related to Borrower or Mortgagors upon: (i) the delivery to Agent of a pro-forma Compliance Certificate reasonably satisfactory to the Agent demonstrating that the requested release, once consummated, will not result in a violation of any of the covenants in Section 9.1 through Section 9.6 of the Loan Agreement (as in effect following such release), and (ii) the payment to Agent for the account of the Lenders of a Release Price in an amount equal to the Minimum Release Amount, which payment shall be applied to reduce the principal balance of the Loans.

For the purposes hereof, the Minimum Release Amount shall be determined as follows: (A) in the event that any principal indebtedness is outstanding under the Secured Revolving Credit Agreement prior to such release, an amount equal to the Net Sales Proceeds available from such sale, after payment of any release price due and payable under the Secured Revolving Credit Agreement; and (B) if no principal indebtedness is outstanding under the Secured Revolving Credit Agreement immediately prior to such release, an amount equal to the greater of (1) the Net Sales Proceeds from such sale and (2) $23,000,000.00 (with respect to the Mortgaged Property commonly known as Chateau Plaza) or $24,000,000.00 (with respect to the Mortgaged Property commonly known as Greenhill Park). Borrower shall pay all reasonable fees and expenses of Agent in connection with any such release.”

(f) By inserting the following as §5.4 of the Loan Agreement:

“§5.4 Chateau Plaza Reserve Account.

The Borrower has caused AmeriVest Chateau Inc. and AmeriVest Greenhill Inc. to establish the Chateau Plaza Reserve Account at KeyBank pursuant to the Second Collateral Account Agreement. Borrower acknowledges that for so long as KeyBank is the Agent hereunder, the Agent shall be deemed to be in control of the Chateau Plaza Reserve

Account as required for perfection of said security interest under Article 9 of the Uniform Commercial Code, subject to the rights of the secured party under the First Collateral Account Agreement. In the event that the Agent is no longer KeyBank, Borrower, Greenhill, Chateau, KeyBank and the successor Agent shall enter into a control agreement for purposes of maintaining such perfection. As of August 30, 2005, the balance of the Chateau Plaza Reserve Account is $2,899,325.36. For so long as Chateau Plaza shall be a Mortgaged Property, Borrower shall cause AmeriVest Chateau Inc. to make monthly deposits on or before the 20th day of each month into the Chateau Plaza Reserve Account equal to the excess of the Net Operating Income from the Mortgaged Property commonly known as Chateau Plaza for the preceding calendar month over the sum of (i) interest for one month on a principal amount of $15,400,000 at the actual average interest rate on the Loans during such preceding month and (ii) $45,125.00 which is an assumed contribution from the Mortgaged Property commonly known as Chateau Plaza toward the regular quarterly dividend on Borrower’s common stock, provided that in the event that the current quarterly dividend rate of 13.0 cents per share is increased or decreased, the monthly sum stated in this clause (ii) shall be proportionately increased or decreased. Such deposits made pursuant to the Secured Revolving Credit Agreement shall satisfy such requirements. On or before the 20th day of each month Borrower shall give to the Agent a written Deposit Certificate in the form of Exhibit F to the Secured Revolving Credit Agreement certifying the information used to compute the amount of each monthly deposit. Any termination fees or other consideration paid in connection with the termination of the current lease of the Dean Foods Premises shall be immediately deposited in the Chateau Plaza Reserve Account. If the existing Lease of the Dean Foods Premises terminates, then so long as Chateau Plaza is a Mortgaged Property and to the extent that the Mortgagor of Chateau Plaza executes Leases of portions of the Dean Foods Premises, Borrower may request periodic disbursements from the Chateau Plaza Reserve Account in amounts needed to pay leasing commissions and costs of tenant finish improvements constructed pursuant to the terms of such Leases, and in the event that the First Collateral Account Agreement is no longer in effect, Agent shall make such disbursements subject to receipt of lien waivers and other documents reasonably requested by the Agent; provided that so long as the First Collateral Account Agreement is in effect, Borrower shall be entitled to disbursements from the Chateau Plaza Reserve Account in accordance with the terms to the First Collateral Account Agreement and the Secured Revolving Credit Agreement. In addition, for so long as Greenhill Park shall be a Mortgaged Property, then to the extent that the Mortgagor of Greenhill Park executes Leases of portions of such Mortgaged Property, Borrower may request periodic disbursements from the Chateau Plaza Reserve Account in amounts needed to pay leasing commissions and costs of tenant improvements constructed pursuant to the

terms of such Leases, and in the event that the First Collateral Account Agreement is no longer in effect, Agent shall make such disbursements subject to receipt of lien waivers and other documents reasonably requested by the Agent; provided that so long as the First Collateral Account Agreement is in effect, Borrower shall be entitled to disbursements from Chateau Plaza Reserve Account in accordance with the terms to the First Collateral Account Agreement and the Secured Revolving Credit Agreement. If an Event of Default has occurred and is continuing, the Agent may, in its sole discretion, apply any or all funds in the Chateau Plaza Reserve Account in the same manner as Collateral proceeds under §12.4.”

(g) By inserting the following as §8.11 of the Loan Agreement:

“§8.11 Employment Contract. Borrower shall not modify or amend in any material respect the Employment Contract, and shall cause the Employment Contract at all times to remain in full force and effect.”

(h) by inserting the following as Section 8.12 of the Loan Agreement:

“§8.12 Sale of Other Assets.

Borrower shall not, and shall not permit any of the Related Companies or any Controlled Unconsolidated Entity to, enter into any contract for the sale or disposition of any of the following described assets, nor sell or otherwise dispose of any of the following described Real Estate Assets if the gross sales price for such asset is less than the amount set forth under the heading ‘Sales Price’ in the separate plan of transfers delivered to Agent contemporaneously herewith.”

[Remainder of Page Intentionally Left Blank]

By deleting §9.5 of the Loan Agreement in its entirety, and inserting in lieu thereof the following:

(i) By deleting §12.1(o) of the Loan Agreement in its entirety, and inserting in lieu thereof the following:

(j) By deleting in its entirety §12.4 of the Loan Agreement, and inserting in lieu thereof the following:

“§12.4 Distribution of Collateral Proceeds. In the event that, during the continuance of any Default or Event of Default, the Agent or any Lender as the case may be, receives any monies in connection with the enforcement of any of the Loan Documents, or otherwise with respect to the realization upon any of the Collateral or any assets of Borrower, such monies shall be distributed for application as follows:

(a) First, to the payment of, or (as the case may be) the reimbursement of the Agent for or in respect of all reasonable costs, expenses, disbursements and losses which shall have been incurred or sustained by the Agent in connection with the collection of such monies by the Agent, for the exercise, protection or enforcement by the Agent of all or any of the rights, remedies, powers and privileges of the Agent or the Lenders under this Agreement or any of the other Loan Documents or in respect of the Collateral or in support of any provision of adequate indemnity to the Agent against any taxes or liens which by law shall have, or may have, priority over the rights of the Agent to such monies;

(b) Second, to all other Obligations in such order or preference as the Majority Lenders may determine; provided, however, that distribution in respect of such Obligations shall be made among the Lenders pro rata in accordance with each Lender’s respective Facility Percentage; and provided, further, that the Agent may in its discretion make proper allowance to take into account any Obligations not then due and payable;

(c) Third, upon payment and satisfaction in full or other provisions for payment in full satisfactory to the Lenders and the Agent of all of the Obligations, and to the payment of any obligations required to be paid pursuant to applicable laws applicable to such enforcement; and

(d) Fourth, the excess, if any, shall be returned to the Borrower or to such other Persons as are legally entitled thereto.”

(k) Notwithstanding anything in the Loan Agreement to the contrary, the Obligations shall be secured by (i) a perfected second priority lien and security interest to be held by the Agent (subject only to Permitted Liens and the liens granted to the “Agent” under the Secured Revolving Credit Agreement) in the Mortgaged Properties, pursuant to the terms of the Security Documents, and (ii) a perfected second priority lien and security interest to be held by the Agent in the Leases and rents from the Mortgaged Properties pursuant to the Assignments of Leases and Rents (subject only to Permitted Liens and the liens granted to the “Agent” under the Secured Revolving Credit Agreement).

(l) For the purposes of §8.4(c) of the Loan Agreement, the Lenders approve of the plan of transfers set forth in the separate plan delivered to Agent contemporaneously herewith, provided that such approval shall not affect Borrower’s obligation pursuant to §8.4(c) of the Loan Agreement to provide a Compliance Certificate with updated calculations prior to any such transfer.

3. 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.

4. Consent of the Borrower. By execution of this Amendment, the Borrower hereby acknowledges represents and agrees that the Loan Documents remain in full force and effect and constitute the valid and legally binding obligations of the Borrower enforceable against the Borrower 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 obligations under the Loan Documents.

5. 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 the Borrower, (ii) have been duly authorized by all necessary proceedings on the part of the 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 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, the Borrower or any of its properties or to which the 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 the Borrower.

(b) Enforceability. The execution and delivery of this Amendment are valid and legally binding obligations of the 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.

6. No Default. By execution hereof, the Borrower certifies that it 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 under the Loan Documents, as amended by this Amendment.

7. Waiver of Claims. The Borrower acknowledges, represents and agrees that it has no 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 the Agent or the Lenders, and the Borrower does hereby expressly waive, release and relinquish any and all such defenses, setoffs, claims, counterclaims and causes of action, if any.

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

9. Effective Date. This Amendment shall be deemed effective and in full force and effect upon (a) the execution and delivery of this Amendment by the Borrower, the Agent and the Lenders, (b) the execution and delivery of the Fifth Amendment to Revolving Credit Agreement by the Borrower, the guarantors under the Secured Revolving Credit Agreement, the

Agent and the lenders a party thereto, (c) the delivery to Agent of the Employment Contract, which shall be in full force and effect, and (d) the delivery to Agent of such other documents as Agent may reasonably require.

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

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

12. Miscellaneous. This Amendment shall be construed and enforced in accordance with the law of State of Georgia (excluding the laws applicable to conflicts of choice of law). 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.

13. Expenses. Borrower shall pay the reasonable fees and expenses of Agent and Lenders in connection with the negotiation, execution and delivery of this Amendment.

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

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., a Maryland corporation

By:	/s/ Charles K. Knight
Name:			Charles K. Knight
Title:		President and CEO

[CORPORATE SEAL]

LENDER:

KEYBANK NATIONAL ASSOCIATION, a national banking association

By:	/s/ Daniel P. Stegemoeller
Name:				Daniel P. Stegemoeller
Title:		Vice President


AGENT:

KEYBANK NATIONAL ASSOCIATION, a national banking association, as Agent

By:	/s/ Daniel P. Stegemoeller
Name:				Daniel P. Stegemoeller
Title:			Vice President

EX-10.3 4 a05-16364_1ex10d3.htm EX-10.3

Exhibit 10.3

FIRST AMENDED AND RESTATED COLLATERAL ACCOUNT AGREEMENT

THIS FIRST AMENDED AND RESTATED COLLATERAL ACCOUNT AGREEMENT (this “Agreement”) is dated as of September 14, 2005 and entered into by and between AmeriVest Chateau Inc., a Texas corporation (“Chateau”), AmeriVest Greenhill Inc., a Texas corporation (“Greenhill”; Chateau and Greenhill are hereinafter referred to collectively as “Pledgors”), KeyBank National Association, a national banking association, as Agent (“Secured Party”), and KeyBank National Association, as depository (“Depository”).

RECITALS

A. Pursuant to that certain Revolving Credit Agreement, dated as of November 12, 2002 (as extended, renewed, supplemented or modified from time to time, the “Credit Agreement”), Secured Party and the lenders from time to time party to the Credit Agreement have made a loan to the Pledgors’ parent corporation, AmeriVest Properties Inc., a Maryland corporation (“Borrower”);

B. Chateau owns certain real property known as Chateau Plaza located at 2515 McKinney Avenue, Dallas, Texas (the “Chateau Property”) and has granted a Deed of Trust for the benefit of Secured Party, as assigned to Secured Party from Fleet National Bank, as Agent, as security for Chateau’s Guaranty of the Loan;

C. Pursuant to §5.6 of the Credit Agreement Chateau has established the Collateral Account (which is called the “Chateau Plaza Reserve Account” in the Credit Agreement) with Depository subject to a first priority lien in favor of Secured Party and Borrower has agreed to cause the Chateau Property’s net operating income, subject to certain deductions, to be deposited therein monthly; and

D. Chateau and Fleet National Bank, as predecessor to Secured Party, entered into that certain Collateral Account Agreement dated as of November 25, 2002, as modified by that certain Amendment of Collateral Account Agreement dated October 4, 2004 (as amended, the “Original Collateral Account Agreement”);

E. Greenhill owns certain real property known as Greenhill Park located in Addison, Texas (the “Greenhill Property”) and has granted a Deed of Trust for the benefit of Secured Party, as security for Greenhill’s Guaranty of the Loan;

F. Borrower has requested that Secured Party and the lenders that are a party to the Credit Agreement modify the Credit Agreement, and as a condition thereto, Secured Party has required that Greenhill be given an undivided interest in the funds in the Chateau Plaza Reserve Account which are subject to a lien in favor of Secured Party to be used for the purposes set forth herein and in the Credit Agreement; and

G. The parties hereto desire to amend and restate the Original Collateral Account Agreement in its entirety.

NOW, THEREFORE, in consideration of the premises and in order to induce Secured Party and the Lenders to amend the Credit Agreement, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, Pledgors, Secured Party and Depository hereby amend and restate the Original Credit Agreement in its entirety and agree as follows:

SECTION 1. Certain Definitions. Terms used herein that are not otherwise defined herein shall have the meanings set forth in the Credit Agreement. The following terms used in this Agreement shall have the following meanings:

“Cash Equivalents” means, as at any date of determination, (i) marketable securities issued or directly and unconditionally guaranteed by the United States Government or issued by any agency thereof and backed by the full faith and credit of the United States of America, in each case maturing within thirty (30) days from such date; (ii) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within thirty (30) days from such date and, at the time of acquisition thereof, having the highest rating obtainable from either S&P or Moody’s; (iii) commercial paper maturing no more than thirty (30) days from such date and, at the time of acquisition thereof, having the highest rating obtainable from either S&P or Moody’s; or (iv) certificates of deposit or bankers’ acceptances maturing within thirty (30) days from such date issued by any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia having combined capital and surplus of not less than $250,000,000.

“Collateral” means (i) the Collateral Account, (ii) all amounts on deposit and investment property from time to time in the Collateral Account, (iii) all interest, cash, instruments, securities and other property from time to time received, receivable or otherwise distributed in respect of or in exchange for any or all of the Collateral, (iv) all rights to Distributions and (v) to the extent not covered by clauses (i) through (iv) above, all proceeds of any or all of the foregoing Collateral.

“Collateral Account” means, collectively, all accounts established and maintained by Secured Party at Depository pursuant to Section 2(a).

“Investments” means those investments, if any, made by Secured Party pursuant to Section 5.

“Loans” shall have the meaning set forth in the Credit Agreement.

“Secured Obligations” means collectively all Obligations as defined in the Guaranty from Chateau to Secured Party and the Lenders, and as defined in the Guaranty from Greenhill to Secured Party and the Lenders.

SECTION 2. Establishment and Operation of Collateral Account.

(a) Secured Party is hereby authorized to establish and maintain at Depository at its office at 127 Public Square, Cleveland, Ohio 44114-1306 as a blocked account in the name of Secured Party and under the sole dominion and control of Secured Party, a restricted deposit account and/or one or more custody accounts, each designated as “KeyBank as Agent under Revolving Credit Agreement and Unsecured Revolving Credit Agreement in trust for AmeriVest Chateau Inc. and AmeriVest Greenhill Inc. Collateral Account”. The parties hereto acknowledge that Depository has been acting as depository pursuant to the Original Collateral Account Agreement, and that the parties hereto are clarifying such roles in this Agreement in connection with the granting by Pledgors of a subordinate lien in the Collateral Account.

(b) The Collateral Account shall be operated in accordance with the terms of this Agreement. The Collateral Account shall be assigned the tax identification number of Pledgors which is 84-1240264. The Collateral Account shall not be evidenced by a certificate of deposit, passbook or other instrument. The Collateral Account shall be an interest bearing account. Any interest which may accrue on the amounts on deposit in the Collateral Account shall be added to and shall become a part of the balance of the Collateral Account.

(c) By execution hereof, Chateau transfers to Greenhill an undivided interest in all amounts at any time held in the Collateral Account. All amounts at any time held in the Collateral Account shall, subject to the terms hereof, be beneficially owned by Pledgors but shall be held by Secured Party (through Depository) hereunder, as collateral security for the Secured Obligations upon the terms and conditions set forth herein. Greenhill acknowledges that the funds in the Collateral Account at all times prior to the date hereof have been subject to the lien of the Secured Party under the Original Collateral Account Agreement, and that the funds of Greenhill in the Collateral Account continue to be subject to such lien. Pledgors shall have no right to withdraw, transfer or, otherwise receive any funds deposited into the Collateral Account except as expressly approved by Secured Party pursuant to §5.6 of the Credit Agreement.

(d) Anything contained herein to the contrary notwithstanding, the Collateral Account shall be subject to such applicable laws, and such applicable regulations of the Board of Governors of the Federal Reserve System and of any other appropriate banking or governmental authority, as may now or hereafter be in effect.

SECTION 3. Deposits and Disbursements of Cash Collateral.

(a) Chateau agrees to make the monthly deposits in the Collateral Account in the amount required by §5.6 of the Credit Agreement. All deposits of funds in the Collateral Account shall be made by wire transfer (or, if applicable, by intra-bank transfer from another account of Pledgors) of immediately available funds, in each case addressed as follows:

Bank Name:	KeyBank National Association
	1675 Broadway
	Denver, Colorado 80202
Account No.:	7696811018156
ABA No.:	307-070-267

Account Title:	KeyBank as Agent under Revolving Credit Agreement and Unsecured Revolving Credit Agreement in trust for Chateau Plaza and Greenhill Park
Reference:	AmeriVest Chateau Inc. and AmeriVest Greenhill Inc.

Pledgors shall, promptly after initiating a transfer of funds to the Collateral Account, give notice to Secured Party by telefacsimile of the date, amount and method of delivery of such deposit.

(b) Provided no Event of Default under the Credit Agreement has occurred and is continuing, funds may be disbursed from the Collateral Account pursuant to Borrower’s requests approved by Secured Party as provided in §5.6 of the Credit Agreement. Upon the occurrence and during the continuance of any Event of Default under the Credit Agreement Secured Party may, in its sole discretion, apply the amount then on deposit in the Collateral Account in the same manner as Collateral proceeds under §12.4 of the Credit Agreement.

SECTION 4. Pledge of Security for Secured Obligations. Each Pledgor hereby pledges and assigns to Secured Party, and hereby grants to Secured Party a security interest in, all of such Pledgor’s right, title and interest in and to the Collateral as collateral security for the prompt payment or performance in full when due of all Secured Obligations.

SECTION 5. Investment of Amounts in the Collateral Account, Interest on Amounts in the Collateral Account.

(a) Funds held by Secured Party (through Depository) in the Collateral Account shall not be invested or reinvested except as provided in this Section 5.

(b) Any funds on deposit in the Collateral Account shall be invested by Secured Party (through Depository) in its own name and in its sole discretion in (i) interest bearing deposit accounts at KeyBank National Association, (ii) money market funds or fixed income investments administered by KeyBank National Association or any of its affiliates, or (iii) Cash Equivalents; provided that any amounts received by Secured Party (through Depository) after the applicable cut-off time for such investments may be held until the next Business Day in a non-interest bearing account. Interest bearing deposit accounts at KeyBank National Association shall be subject to all of the fees, rules and regulations applicable thereto, including, without limitation any maximum number of transactions per month.

(c) Secured Party (through Depository) is hereby authorized to sell, and shall sell, all or any designated part of the securities constituting part of the Collateral if such sale is necessary to permit Secured Party (through Depository) to perform its duties hereunder. Subject to Section 11, Secured Party and Depository shall have no responsibility for any loss resulting from a fluctuation in interest rates, the sale or other disposition of any Cash Equivalent prior to its maturity date or otherwise.

(d) Subject to Secured Party’s rights under Section 12, any interest received in respect of securities constituting part of the Collateral, any interest earned on cash deposits and the net proceeds of the sale or payment of any such securities shall be deposited directly in and

held in the Collateral Account by Depository pending investment thereof pursuant to Section 5(b).

SECTION 6. Representations and Warranties. Each Pledgor represents and warrants as follows:

(a) Ownership of Collateral. Such Pledgor is (or at the time of transfer thereof to Secured Party will be) the legal and beneficial owner of the Collateral from time to time transferred by such Pledgor to Secured Party, free and clear of any Lien except for the security interest created by this Agreement and the subordinate lien granted to KeyBank National Association, as Agent, by Pledgors pursuant to that certain Second Collateral Account Agreement dated of even date herewith.

(b) Governmental Authorizations. No authorization, approval or other action by, and no notice to or filing with, any governmental authority or regulatory body is required for either (i) the grant by Pledgors of the security interest granted hereby, (ii) the execution, delivery or performance of this Agreement by Pledgors; or (iii) the perfection of or the exercise by Secured Party of its rights and remedies hereunder (except as may have been taken by or at the direction of Pledgors).

(c) Perfection. The pledge and assignment of the Collateral pursuant to this Agreement creates a valid and perfected first priority security interest in the Collateral, securing the payment of the Secured Obligations.

(d) Other Information. All information heretofore, herein or hereafter supplied to Secured Party by or on behalf of Pledgors with respect to the Collateral is accurate and complete in all material respects as of the date supplied.

SECTION 7. Further Assurances. Pledgors agree that from time to time, at the expense of Pledgors, Pledgors will promptly execute and deliver all further instruments and documents, and take all further action, that may be necessary, or that Secured Party may reasonably request, in order to perfect and protect any security interest granted or purported to be granted hereby or to enable Secured Party to exercise and enforce its rights and remedies hereunder with respect to any Collateral. Without limiting the generality of the foregoing, Pledgors will: (a) execute and/or authorize Secured Party to file such financing or continuation statements, or amendments thereto, and such other instruments or notices, as may be necessary, or as Secured Party may reasonably request, in order to perfect and preserve the security interests granted or purported to be granted hereby and (b) at Secured Party’s request, appear in and defend any action or proceeding that may adversely affect Pledgors’ beneficial title to or Secured Party’s security interest in all or any part of the Collateral.

SECTION 8. Transfers and other Liens. Each Pledgor agrees that it will not (a) sell, assign (by operation of law or otherwise) or otherwise dispose of any of the Collateral or (b) create or suffer to exist any Lien upon or with respect to any of the Collateral except for the security interest under this Agreement or the other Loan Documents and the subordinate lien granted to KeyBank National Association, as Agent, by Pledgors pursuant to that certain Second Collateral Account Agreement dated of even date herewith.

SECTION 9. Secured Party Appointed Attorney-in-Fact. Each Pledgor hereby irrevocably appoints Secured Party, such appointment being coupled with an interest, as such Pledgor’s attorney-in-fact, with full authority in the place and stead of such Pledgor and in the name of such Pledgor, Secured Party or otherwise, from time to time in Secured Party’s discretion to take any action and to execute any instrument that Secured Party may reasonably deem necessary to accomplish the purposes of this Agreement, including, without limitation, to file one or more financing or continuation statements, or amendments thereto, relative to all or any part of the Collateral without the signature of such Pledgor. Secured Party shall not exercise its rights under this Section in a manner contrary to the terms of this Agreement and the Credit Agreement. Secured Party is authorized to file such financing statements as Secured Party deems necessary to perfect the security interests created hereby.

SECTION 10. Secured Party May Perform. If a Pledgor fails to perform any agreement contained herein as provided herein, Secured Party may itself perform, or cause performance of, such agreement, and the reasonable expenses of Secured Party incurred in connection therewith shall be payable by Pledgors under Section 13.

SECTION 11. Standard of Care. The powers conferred on Secured Party hereunder are solely to protect its interest in the Collateral and shall not impose any duty upon it to exercise any such powers. Except for the exercise of reasonable care in the custody of any Collateral in possession of Secured Party or Depository and the accounting for interest earned on and moneys actually received by it hereunder, neither Secured Party nor Depository shall have any duty as to any Collateral, it being understood that neither Secured Party nor Depository shall have any responsibility for (a) taking any necessary steps (other than steps taken in accordance with the standard of care set forth above to maintain possession of the Collateral) to preserve rights against any parties with respect to any Collateral or (b) taking any necessary steps to collect or realize upon the Secured Obligations or any guarantee therefor, or any part thereof, or any of the Collateral. Secured Party and Depository shall be deemed to have exercised reasonable care in the custody and preservation of Collateral in its possession if such Collateral is accorded treatment substantially equal to that which Secured Party or Depository, as applicable, accords its own property of like kind and Secured Party’s or Depository’s, as applicable, actions do not constitute gross negligence or willful misconduct.

SECTION 12. Remedies. Upon the occurrence and during the continuance of an Event of Default, Secured Party may exercise in respect of the Collateral, in addition to all other rights and remedies otherwise available to it, all the rights and remedies of a secured party on default under the Uniform Commercial Code as in effect in the State of Texas (the “Code”).

SECTION 13. Indemnity and Expenses.

(a) Pledgors agree to indemnify Secured Party and Depository from and against any and all claims, losses and liabilities in any way relating to, growing out of or resulting from this Agreement and the transactions contemplated hereby (including, without limitation, enforcement of this Agreement), except to the extent such claims, losses or liabilities result primarily from Secured Party’s or Depository’s, as applicable, gross negligence or willful misconduct as finally determined by a court of competent jurisdiction.

(b) Pledgors shall pay to Secured Party and Depository upon demand the amount of any and all reasonable costs and expenses, including the reasonable fees and expenses of its counsel and of any experts and agents, that Secured Party or Depository may incur in connection with (i) the amendment or modification of, or any waiver or consent under, this Agreement, (ii) the custody, preservation, use or operation of, release of or addition to, the perfection of any security interest in, or the sale of, collection from, or other realization upon, any of the Collateral, (iii) the exercise or enforcement of any of the rights of Secured Party or Depository hereunder, or (iv) the failure by Pledgors to perform or observe any of the provisions hereof.

SECTION 14. Continuing Security Interest; Transfer of Loans. This Agreement shall create a continuing security interest in the Collateral and shall (a) remain in full force and effect until the payment in full of the Secured Obligations, (b) be binding upon Pledgors, their successors and assigns, and (c) inure, together with the rights and remedies of Secured Party and Depository hereunder, to the benefit of Secured Party, and Depository and their respective successors, transferees and assigns. Upon the payment in full of all Secured Obligations, the security interest granted hereby shall terminate and all rights to the Collateral shall revert to the applicable Pledgors without the necessity of further action or documentation. Upon any such termination Secured Party shall, at Pledgors’ expense, execute and deliver to Pledgors such documents as Pledgors shall reasonably request to evidence such termination and Pledgors shall be entitled to close the Collateral Account and to the return, upon its request and at its expense, of such of the collateral as shall not have been otherwise applied pursuant to the terms hereof.

SECTION 15. Notices. Unless otherwise specifically provided herein, any notice or other communication herein required or permitted to be given shall be in writing and shall be given in the manner set forth in §19 of the Credit Agreement.

SECTION 16. Failure or Indulgence Not Waiver; Remedies Cumulative. No failure or delay on the part of the Secured Party or Depository in the exercise of any power, right or privilege hereunder shall impair such power, right or privilege or be construed to be a waiver of any default or acquiescence therein, nor shall any single or partial exercise of any such power, right or privilege preclude any other or further exercise thereof or of any other power, right or privilege. All rights and remedies existing under this Agreement are cumulative to, and not excusive of, any rights or remedies otherwise available.

SECTION 17. Severability. In case any provision in or obligation under this Agreement shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability of the remaining provisions or obligations, or of such provision or obligation in any other jurisdiction, shall not in any way be affected or impaired thereby.

SECTION 18. Headings. Section and subsection headings in this Agreement are included herein for convenience of reference only and shall not constitute a part of this Agreement for any other purpose or be given any substantive effect.

SECTION 19. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL

LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. Unless otherwise defined herein or in the Credit Agreement, terms used in Articles 8 and 9 of the Uniform Commercial Code in the State of Texas are used herein as therein defined.

SECTION 20. Consent to Jurisdiction and Service of Process. PLEDGORS AGREE THAT ANY SUIT BY IT FOR THE ENFORCEMENT OF THIS AGREEMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF TEXAS OR ANY FEDERAL COURT SITTING THEREIN AND PLEDGORS CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT FOR ANY SUIT BY SECURED PARTY OR DEPOSITORY AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON PLEDGORS BY MAIL AT THE ADDRESS SPECIFIED IN THE CREDIT AGREEMENT. PLEDGORS HEREBY WAIVE ANY OBJECTION THAT EITHER OF THEM MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT. IN ADDITION TO THE COURTS OF TEXAS OR ANY FEDERAL COURT SITTING THEREIN, THE SECURED PARTY OR DEPOSITORY MAY BRING ACTION(S) FOR ENFORCEMENT ON A NONEXCLUSIVE BASIS WHERE ANY COLLATERAL EXISTS AND PLEDGORS CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON PLEDGORS BY MAIL AT THE ADDRESS SPECIFIED IN THE CREDIT AGREEMENT. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST PLEDGORS ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF TEXAS, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT PLEDGORS ACCEPT FOR THEMSELVES AND IN CONNECTION WITH THEIR PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVE ANY DEFENSE OF FORUM NON CONVENIENS AND IRREVOCABLY AGREE TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. Pledgors hereby agree that service of all process in any such proceeding in any such court may be made by registered or certified mail, return receipt requested, to Pledgors at their address provided in Section 15, such service being hereby acknowledged by Pledgors to be sufficient for personal jurisdiction in any action against Pledgors in any such court and to be otherwise effective and binding service in every respect. Nothing herein shall affect the right to serve process in any other manner permitted by law or shall limit the right of Secured Party or Depository to bring proceeding against Pledgors in the courts of any other jurisdiction.

SECTION 21. Waiver of Jury Trial. EACH PLEDGOR, HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY, INCLUDING, WITHOUT LIMITATION, ANY COURSE OF CONDUCT, COURSE OF DEALINGS, STATEMENTS OR ACTIONS OF AGENT RELATING TO THE ADMINISTRATION OF THE COLLATERAL ACCOUNT OR ENFORCEMENT HEREOF, AND AGREES THAT NO PARTY WILL SEEK TO CONSOLIDATE ANY SUCH ACTION

WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED.

SECTION 22. Control of Account. Pledgors acknowledge that Depository is the bank with which the Collateral Account is maintained pursuant to Section 9-104(a) of the Uniform Commercial Code and that Secured Party has control of the Collateral Account and Depository shall comply with the instructions originated by Secured Party directing the disposition of funds in the Collateral Account and any entitlement orders from Secured Party without further consent by the Pledgors. Secured Party is authorized to give instructions and entitlement orders to Depository as Secured Party deems necessary to effectuate this Agreement. Texas shall be deemed to be the location and jurisdiction (within the meaning of Section 9 304 of the Uniform Commercial Code) of Depository and the Collateral Account.

SECTION 23. Counterparts. This Agreement may be executed in any number of counterparts which shall together constitute but one and the same agreement.

[SIGNATURES ON NEXT PAGE]

IN WITNESS WHEREOF, Pledgors, Secured Party and Depository have caused this Agreement to be duly executed and delivered as of the date first written above.

PLEDGORS:

AMERIVEST CHATEAU INC., a Texas corporation

By:	/s/ Charles K. Knight
Name:				Charles K. Knight
Title:		President and CEO


AMERIVEST GREENHILL INC., a Texas corporation

By:	/s/ Charles K. Knight
Name:				Charles K. Knight
Title:			President and CEO


SECURED PARTY:

KEYBANK NATIONAL ASSOCIATION, as Agent

By:	/s/ Daniel P. Stegemoeller
Name:				Daniel P. Stegemoeller
Title:			Vice President

DEPOSITORY:

KEYBANK NATIONAL ASSOCIATION

By:	/s/ Daniel P. Stegemoeller
Name:				Daniel P. Stegemoeller
Title:		Vice President

EX-10.4 5 a05-16364_1ex10d4.htm EX-10.4

Exhibit 10.4

SECOND COLLATERAL ACCOUNT AGREEMENT

THIS SECOND COLLATERAL ACCOUNT AGREEMENT (this “Agreement”) is dated as of September 14, 2005 and entered into by and between AmeriVest Chateau Inc., a Texas corporation (“Chateau”), AmeriVest Greenhill Inc., a Texas corporation (“Greenhill”; Chateau and Greenhill are hereinafter referred to collectively as “Pledgors”), KeyBank National Association, a national banking association, as Agent (“Secured Party”) and KeyBank National Association, as depository (“Depository”).

RECITALS

A. Pursuant to that certain First Amended and Restated Unsecured Revolving Credit Agreement, dated as of October 20, 2004 (as extended, renewed, supplemented or modified from time to time, the “Credit Agreement”), Secured Party and the lenders from time to time party to the Credit Agreement have made a loan to the Pledgors’ parent corporation, AmeriVest Properties Inc., a Maryland corporation (“Borrower”);

B. Chateau owns certain real property known as Chateau Plaza located at 2515 McKinney Avenue, Dallas, Texas (the “Chateau Property”) and has granted a Second Deed of Trust for the benefit of Secured Party, as security for the Loan;

C. Greenhill owns certain real property known as Greenhill Park located in Addison, Texas (the “Greenhill Property”) and has granted a Second Deed of Trust for the benefit of Secured Party, as security for the Loan;

D. Pursuant to §5.6 of the Secured Revolving Credit Agreement Chateau and Greenhill have established the Collateral Account (which is called the “Chateau Plaza Reserve Account” in the Secured Revolving Credit Agreement); and

E. Borrower has requested that Secured Party and the lenders that are a party to the Credit Agreement modify the Credit Agreement, and as a condition thereto, Secured Party has required that Greenhill be given an undivided interest in the funds in the Chateau Plaza Reserve Account, and that Secured Party be granted a second priority lien on the Collateral Account.

credit of the United States of America, in each case maturing within thirty (30) days from such date; (ii) marketable direct obligations issued by any state of the United States of America or any political subdivision of any such state or any public instrumentality thereof maturing within thirty (30) days from such date and, at the time of acquisition thereof, having the highest rating obtainable from either S&P or Moody’s; (iii) commercial paper maturing no more than thirty (30) days from such date and, at the time of acquisition thereof, having the highest rating obtainable from either S&P or Moody’s; or (iv) certificates of deposit or bankers’ acceptances maturing within thirty (30) days from such date issued by any commercial bank organized under the laws of the United States of America or any state thereof or the District of Columbia having combined capital and surplus of not less than $250,000,000.

“Collateral Account” means, collectively, all accounts established and maintained by Secured Party at Depository pursuant to Section 2(a).

“Investments” means those investments, if any, made by Secured Party pursuant to Section 5.

“Loans” shall have the meaning set forth in the Credit Agreement.

“Secured Obligations” means collectively all Secured Obligations as defined in the Security Deed from Chateau to Secured Party and the Lenders, and as defined in the Security Deed from Greenhill to Secured Party and the Lenders.

SECTION 2. Establishment and Operation of Collateral Account.

(a) Secured Party is hereby authorized to establish and maintain at Depository at its office at 127 Public Square, Cleveland, Ohio 44114-1306 as a blocked account in the name of Secured Party and, subject to the rights of the secured party under the First Collateral Account Agreement, under the sole dominion and control of Secured Party, a restricted deposit account and/or one or more custody accounts, each designated as “KeyBank as Agent Under Revolving Credit Agreement and Unsecured Revolving Credit Agreement in trust for AmeriVest Chateau Inc. and AmeriVest Greenhill Inc. Collateral Account”.

account. Any interest which may accrue on the amounts on deposit in the Collateral Account shall be added to and shall become a part of the balance of the Collateral Account.

(c) By execution hereof, Chateau transfers to Greenhill an undivided interest in all amounts at any time held in the Collateral Account. All amounts at any time held in the Collateral Account shall, subject to the terms hereof, be beneficially owned by Pledgors but shall be held by Secured Party (through Depository) hereunder, as collateral security for the Secured Obligations upon the terms and conditions set forth herein, subject to the rights of the secured party under the First Collateral Account Agreement. Greenhill acknowledges that the funds in the Collateral Account at all times prior to the date hereof have been subject to the lien of the secured party under the First Collateral Account Agreement, and that the funds of Greenhill in the Collateral Account continue to be subject to such lien. Pledgors shall have no right to withdraw, transfer or, otherwise receive any funds deposited into the Collateral Account except as expressly approved by Secured Party pursuant to §5.4 of the Credit Agreement and as provided in the Secured Revolving Credit Agreement and the First Collateral Account Agreement.

SECTION 3. Deposits and Disbursements of Cash Collateral.

(a) Chateau agrees to make the monthly deposits in the Collateral Account in the amount required by §5.4 of the Credit Agreement. All deposits of funds in the Collateral Account shall be made by wire transfer (or, if applicable, by intra-bank transfer from another account of Pledgors) of immediately available funds, in each case addressed as follows:

Bank Name:		KeyBank National Association
		1675 Broadway
		Denver, Colorado 80202
Account No.:		7696811018156
ABA No.:		307-070-267
Account Title:		KeyBank as Agent under Revolving Credit Agreement and Unsecured Revolving Credit Agreement in trust for Chateau Plaza and Greenhill Park
Reference:		AmeriVest Chateau Inc. and AmeriVest Greenhill Inc.

Pledgors shall, promptly after initiating a transfer of funds to the Collateral Account, give notice to Secured Party by telefacsimile of the date, amount and method of delivery of such deposit.

(b) For so long as the First Collateral Account Agreement is in effect, funds may be disbursed from the Collateral Account pursuant to Borrower’s request only as provided in the Secured Revolving Credit Agreement and the First Collateral Account Agreement. At such time as the First Collateral Account Agreement is no longer in effect, then provided no

Event of Default under the Credit Agreement has occurred and is continuing, funds may be disbursed from the Collateral Account pursuant to Borrower’s requests approved by Secured Party as provided in §5.4 of the Credit Agreement. Upon the occurrence and during the continuance of any Event of Default under the Credit Agreement Secured Party may, in its sole discretion, apply the amount then on deposit in the Collateral Account in the same manner as Collateral proceeds under §12.4 of the Credit Agreement.

SECTION 5. Investment of Amounts in the Collateral Account, Interest on Amounts in the Collateral Account.

(a) Funds held by Secured Party (through Depository) in the Collateral Account shall not be invested or reinvested except as provided in this Section 5.

(b) Any funds on deposit in the Collateral Account shall, subject to the rights of the secured party under the First Collateral Account Agreement, be invested by Secured Party (through Depository) in its own name and in its sole discretion in (i) interest bearing deposit accounts at KeyBank National Association, (ii) money market funds or fixed income investments administered by KeyBank National Association or any of its affiliates, or (iii) Cash Equivalents; provided that any amounts received by Secured Party (through Depository) after the applicable cut-off time for such investments may be held until the next Business Day in a non-interest bearing account. Interest bearing deposit accounts at KeyBank National Association shall be subject to all of the fees, rules and regulations applicable thereto, including, without limitation any maximum number of transactions per month.

(c) Secured Party (through Depository)is hereby authorized to sell, and shall sell, all or any designated part of the securities constituting part of the Collateral if such sale is necessary to permit Secured Party (through Depository) to perform its duties hereunder. Subject to Section 11, Secured Party and Depository shall have no responsibility for any loss resulting from a fluctuation in interest rates, the sale or other disposition of any Cash Equivalent prior to its maturity date or otherwise.

SECTION 6. Representations and Warranties. Each Pledgor represents and warrants as follows:

(a) Ownership of Collateral. Such Pledgor is (or at the time of transfer thereof to Secured Party will be) the legal and beneficial owner of the Collateral from time to

time transferred by such Pledgor to Secured Party, free and clear of any Lien except for the security interest created by this Agreement and by the First Collateral Account Agreement.

(c) Perfection. The pledge and assignment of the Collateral pursuant to this Agreement creates a valid and perfected second priority security interest in the Collateral (subject only to the First Collateral Account Agreement), securing the payment of the Secured Obligations.

any part of the Collateral without the signature of such Pledgor. Secured Party shall not exercise its rights under this Section in a manner contrary to the terms of this Agreement and the Credit Agreement. Secured Party is authorized to file such financing statements as Secured Party deems necessary to perfect the security interests created hereby.

SECTION 11. Standard of Care. The powers conferred on Secured Party hereunder are solely to protect its interest in the Collateral and shall not impose any duty upon it to exercise any such powers. Except for the exercise of reasonable care in the custody of any Collateral in the possession of Secured Party and Depository and the accounting for interest earned on and moneys actually received by it hereunder, neither Secured Party nor Depository shall have any duty as to any Collateral, it being understood that neither Secured Party nor Depository shall have any responsibility for (a) taking any necessary steps (other than steps taken in accordance with the standard of care set forth above to maintain possession of the Collateral) to preserve rights against any parties with respect to any Collateral or (b) taking any necessary steps to collect or realize upon the Secured Obligations or any guarantee therefor, or any part thereof, or any of the Collateral. Secured Party and Depository shall be deemed to have exercised reasonable care in the custody and preservation of Collateral in its possession if such Collateral is accorded treatment substantially equal to that which Secured Party or Depository, as applicable, accords its own property of like kind and Secured Party’s or Depository’s, as applicable, actions do not constitute gross negligence or willful misconduct.

SECTION 13. Indemnity and Expenses.

(a) Pledgors agree to indemnify Secured Party and Depository from and against any and all claims, losses and liabilities in any way relating to, growing out of or resulting from this Agreement and the transactions contemplated hereby (including, without limitation, enforcement of this Agreement), except to the extent such claims, losses or liabilities result primarily from Secured Party’s and Depository’s, as applicable, gross negligence or willful misconduct as finally determined by a court of competent jurisdiction.

Depository hereunder, or (iv) the failure by Pledgors to perform or observe any of the provisions hereof.

SECTION 14. Continuing Security Interest; Transfer of Loans. This Agreement shall create a continuing security interest in the Collateral and shall (a) remain in full force and effect until the payment in full of the Secured Obligations, (b) be binding upon Pledgors, their successors and assigns, and (c) inure, together with the rights and remedies of Secured Party and Depository hereunder, to the benefit of Secured Party and Depository and their successors, transferees and assigns. Upon the payment in full of all Secured Obligations, the security interest granted hereby shall terminate and all rights to the Collateral shall revert to the applicable Pledgors without the necessity of further action or documentation. Upon any such termination Secured Party shall, at Pledgors’ expense, execute and deliver to Pledgors such documents as Pledgors shall reasonably request to evidence such termination and Pledgors shall be entitled to close the Collateral Account and to the return, upon its request and at its expense, of such of the collateral as shall not have been otherwise applied pursuant to the terms hereof.

SECTION 19. Governing Law. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES. Unless otherwise defined herein or in the Credit Agreement, terms used in Articles 8 and 9 of the Uniform Commercial Code in the State of Texas are used herein as therein defined.

SECTION 20. Consent to Jurisdiction and Service of Process. PLEDGORS AGREE THAT ANY SUIT BY IT FOR THE ENFORCEMENT OF THIS AGREEMENT MAY BE

BROUGHT IN THE COURTS OF THE STATE OF TEXAS OR ANY FEDERAL COURT SITTING THEREIN AND PLEDGORS CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT FOR ANY SUIT BY SECURED PARTY OR DEPOSITORY AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON PLEDGORS BY MAIL AT THE ADDRESS SPECIFIED IN THE CREDIT AGREEMENT. PLEDGORS HEREBY WAIVE ANY OBJECTION THAT EITHER OF THEM MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT COURT. IN ADDITION TO THE COURTS OF TEXAS OR ANY FEDERAL COURT SITTING THEREIN, THE SECURED PARTY OR DEPOSITORY MAY BRING ACTION(S) FOR ENFORCEMENT ON A NONEXCLUSIVE BASIS WHERE ANY COLLATERAL EXISTS AND PLEDGORS CONSENT TO THE NONEXCLUSIVE JURISDICTION OF SUCH COURT AND THE SERVICE OF PROCESS IN ANY SUCH SUIT BEING MADE UPON PLEDGORS BY MAIL AT THE ADDRESS SPECIFIED IN THE CREDIT AGREEMENT. ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST PLEDGORS ARISING OUT OF OR RELATING TO THIS AGREEMENT MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN THE STATE OF TEXAS, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT PLEDGORS ACCEPT FOR THEMSELVES AND IN CONNECTION WITH THEIR PROPERTIES, GENERALLY AND UNCONDITIONALLY, THE NONEXCLUSIVE JURISDICTION OF THE AFORESAID COURTS AND WAIVE ANY DEFENSE OF FORUM NON CONVENIENS AND IRREVOCABLY AGREE TO BE BOUND BY ANY JUDGMENT RENDERED THEREBY IN CONNECTION WITH THIS AGREEMENT. Pledgors hereby agree that service of all process in any such proceeding in any such court may be made by registered or certified mail, return receipt requested, to Pledgors at their address provided in Section 15, such service being hereby acknowledged by Pledgors to be sufficient for personal jurisdiction in any action against Pledgors in any such court and to be otherwise effective and binding service in every respect. Nothing herein shall affect the right to serve process in any other manner permitted by law or shall limit the right of Secured Party or Depository to bring proceeding against Pledgors in the courts of any other jurisdiction.

in the Collateral Account and any entitlement orders from Secured Party without further consent by the Pledgors. Secured Party is authorized to give instructions and entitlement orders to Depository as Secured Party deems necessary to effectuate this Agreement. Texas shall be deemed to be the location and jurisdiction (within the meaning of Section 9 304 of the Uniform Commercial Code) of Depository and the Collateral Account.

SECTION 23. Counterparts. This Agreement may be executed in any number of counterparts which shall together constitute but one and the same agreement.

[Signatures On Next Page]

IN WITNESS WHEREOF, Pledgors, Secured Party and Depository have caused this Agreement to be duly executed and delivered as of the date first written above.

PLEDGORS:

AMERIVEST CHATEAU INC., a Texas corporation

By:	/s/ Charles K. Knight
Name:					Charles K. Knight
Title:		President and CEO


AMERIVEST GREENHILL INC., a Texas corporation

By:	/s/ Charles K. Knight
Name:					Charles K. Knight
Title:			President and CEO


SECURED PARTY:

KEYBANK NATIONAL ASSOCIATION, as Agent

By:	/s/ Daniel P. Stegemoeller
Name:					Daniel P. Stegemoeller
Title:			Vice President


DEPOSITORY:

KEYBANK NATIONAL ASSOCIATION,

By:	/s/ Daniel P. Stegemoeller
Name:					Daniel P. Stegemoeller
Title:				Vice President

EX-10.5 6 a05-16364_1ex10d5.htm EX-10.5

Exhibit 10.5

September 14, 2005

KeyBank National Association, as Lender and Agent

127 Public Square

Cleveland, Ohio 44114-1306

Attention: Real Estate - Capital Services

KeyBank National Association, as Lender and Agent

1200 Abernathy Road, N.E.

Suite 1550

Atlanta, Georgia 30328

Attn: Dan Stegemoeller

Re: Secured Revolving Loan (the “Secured Revolving Loan”) from KeyBank National Association (“KeyBank”), both individually and as Agent for various lenders (collectively, “Secured Revolver Lender”), to AmeriVest Properties Inc., a Maryland corporation (“Borrower”); and Unsecured Revolving Loan (the “Unsecured Revolving Loan”) from KeyBank, both individually and as Agent for various lenders (collectively, “Unsecured Revolver Lender”), to Borrower

Ladies and Gentlemen:

Pursuant to Sections 8.4(c) of the Loan Agreement, as amended, for the referenced Secured Revolving Loan and the Loan Agreement, as amended, for the referenced Unsecured Revolving Loan, attached is the Plan of Transfer referenced in Paragraph 2(k) of the Fifth Amendment to Revolving Credit Agreement for the Secured Revolving Loan and referenced in Paragraph 2(m) of the Second Amendment to the Amended and Restated Unsecured Revolving Credit Agreement. The amounts set forth under the heading “Sales Price” in the Plan of Transfer shall also be the minimum gross sales price for each asset for purposes of Section 8.12 of the Loan Agreement, as amended, for the Unsecured Revolving Loan.

Please sign and return a copy of this letter to the undersigned to indicate your receipt of the Plan of Transfers.

AMERIVEST PROPERTIES INC.,
a Maryland corporation

By:	/s/ Charles K. Knight
Name:			Charles K. Knight
Title:		President and CEO

****The confidential portion of this Agreement has been omitted and filed separately with the Securities and Exchange Commission

Received this day of September, 2005:

KEYBANK NATIONAL ASSOCIATION,
a national banking association, as Lender and Agent

By:	/s/ Daniel P. Stegemoeller
Name:			Daniel P. Stegemoeller
Title:		Vice President

Plan of Transfer

Asset	Location	Sales Price

[[	[]	[]

****The confidential portion of this Agreement has been omitted and filed separately with the Securities and Exchange Commission

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