Exhibit 10.4
CONSENT AND WAIVER
CONSENT AND WAIVER (this "Consent"), dated as of March 22, 2000,
among VANTAS INCORPORATED, a corporation organized and existing under the laws
of the State of Nevada (the "Borrower"), the financial institutions party to
the Credit Agreement referred to below (the "Banks"), and PARIBAS, as agent
(the "Agent").
W I T N E S S E T H:
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WHEREAS, the Borrower, the Banks and the Agent are parties to an
Amended and Restated Credit Agreement, dated as of January 16, 1997, amended
and restated as of November 6, 1998, further amended and restated as of August
3, 1999, and amended as of January 19, 2000 and further amended as of February
22, 2000 (as amended, modified and supplemented to the date hereof, the
"Credit Agreement");
WHEREAS, the Borrower wishes to withdraw cash from the Cash
Collateral Account in order to pay the Scheduled Repayments due on March 31,
2000 and June 30, 2000 and the interest payments due under the Credit
Agreement on March 31, 2000 and April 10, 2000;
WHEREAS, the Borrower wishes to make both such Scheduled Repayments
and both such interest payments on March 31, 2000; and
WHEREAS, the Banks and the Agent wish to waive certain provisions of
the Credit Agreement and the Cash Collateral Agreement to permit the
foregoing;
NOW, THEREFORE, IT IS AGREED:
Section 1. Defined Terms. Capitalized terms used herein and
not otherwise defined herein shall have the respective meanings given to them
in the Credit Agreement.
Section 2. Consent.
2.01 Withdrawal. The undersigned hereby consent to the
Borrower withdrawing cash from the Cash Collateral Account in an amount not
greater than the aggregate amount of the Scheduled Repayments due on March 31,
2000 and June 30, 2000 and the interest payments due under the Credit
Agreement on March 31, 2000 and April 10, 2000, notwithstanding Section
6.08(a) of the Credit Agreement (Use of Proceeds) and Section 3.01 of the Cash
Collateral Agreement (Withdrawals by Assignor), which are hereby waived with
respect to such withdrawal; provided, that the cash withdrawn is used solely
to pay the Scheduled Repayments due on March 31, 2000 and June 30, 2000 and
the interest payments due under the Credit Agreement on March 31, 2000 and
April 10, 2000 and that both such Scheduled Repayments and both such interest
payments are paid on March 31, 2000.
2.02 Prepayment. The undersigned hereby consent to the
Borrower prepaying on March 31, 2000 (a) the Scheduled Repayment otherwise due
on June 30, 2000 and (b) the interest payment under the Credit Agreement
otherwise due on April 10, 2000, notwithstanding Section 1.08(d) of the Credit
Agreement (Interest) and Section 3.01(a) of the Credit Agreement (Voluntary
Prepayments) which are hereby waived with respect to such prepayment.
Section 3. General
3.01 Confirmation. In order to induce the Agent and the
Banks to enter into this Consent, the Borrower hereby represents and warrants
that on the Consent Effective Date, both before and after giving effect to
this Consent and the transactions contemplated hereby, (i) no Default or Event
of Default shall exist and (ii) all of the representations and warranties
contained in the Credit Agreement shall be true and correct in all material
respects, with the same effect as though such representations and warranties
had been made on and as of the Consent Effective Date.
3.02 Consent Effective Date. This Consent shall become
effective on the date (the "Consent Effective Date") when each of the
following conditions have been met:
(i) The Borrower and the Required Banks shall have executed
a copy hereof (whether the same or different copies) and shall have delivered
the same to the Agent and
(ii) The Borrower shall have paid to the Agent all cost and
expenses (including reasonable legal fees and expenses) then due and payable.
3.03 Conflicts. This Consent is limited as specified and
shall not constitute a modification, acceptance or waiver of any other
provision of the Credit Agreement.
3.04 Counterpart. This Consent may be executed in any number
of counterparts and by different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but
all of which shall together constitute one and the same instrument. A complete
set of counterparts shall be lodged with the Borrower and the Agent.
3.05 Governing Law. THIS CONSENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Consent as of the date first above
written.
VANTAS INCORPORATED
(formerly known as Alliance National
Incorporated)
By: /s/ Xxxxx Xxxxxx
-------------------------
Name: Xxxxx Xxxxxx
Title: President and
Chief Operating Officer
PARIBAS, Individually and as Agent
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
Title: Director
By: /s/ XX xx Xxxxxxxx
-----------------------------
Name: XX xx Xxxxxxxx
Title: Managing Director
FIRST SOURCE FINANCIAL LLP
By: First Source Financial, Inc.,
its Agent/Manager
By: /s/ Xxxxx X. Xxxxxx
------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
IBJ WHITEHALL BANK & TRUST
COMPANY
(formerly, IBJ Xxxxxxxx Bank & Trust
Company)
By: /s/ Xxxxx Xxxxxx Xxxxxxx
-------------------------------
Name: Xxxxx Xxxxxx Xxxxxxx
Title: Associate
PILGRIM PRIME RATE TRUST
By: Pilgrim Investments, Inc.,
as its investment manager
By: /s/ Xxxx X. Xxxx
------------------------------
Name: Xxxx X. Xxxx
Title: Assistant Vice President
PARIBAS CAPITAL FUNDING LLC
By: /s/
--------------------------
Name:
Title:
EUROPEAN AMERICAN BANK
By: /s/
----------------------------
Name:
Title:
BHF (USA) CAPITAL CORPORATION
By: /s/
----------------------------
Name:
Title:
By: /s/
----------------------------
Name:
Title:
BANK AUSTRIA CREDITANSTALT
CORPORATE FINANCE INC.
By: /s/
----------------------------
Name:
Title:
By: /s/
----------------------------
Name:
Title:
XXXXXX-FINANCIAL, INC.
By: /s/ Xxxxx X. Xxxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
BALANCED HIGH-YIELD FUND II
LIMITED
By: BHF (USA) Capital Corporation,
as attorney-in-fact
By: /s/
-------------------------------
Name:
Title:
By: /s/
-------------------------------
Name:
Title:
SRF TRADING, INC.
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
KZH ING-2 LLC
By: /s/ Xxxxx Xxx
-------------------------
Name: Xxxxx Len
Title: Authorized Agent
THE ING CAPITAL SENIOR SECURED HIGH
INCOME FUND, L.P.
By: ING Capital Advisors LLC
as Investment Advisor
By: /s/ Xxxxxxx X. Xxxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Managing Director
PACIFICA PARTNERS I, L.P.
By: Imperial Credit Management, Inc.
as Investment Manager
By: /s/ Xxxx X. Xxxxxx
---------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXX XXX & XXXXXXX CLO I, LTD.
By: Xxxxx Xxx & Farnham Incorporated
as Portfolio Manager
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
PROVIDENT BANK
By: /s/
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Name:
Title:
