Exhibit 10.5
WAIVER
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This Waiver, made as of May 18, 2000 (this "Waiver"), is by and among NMT
Medical, Inc. (the "Company"), on the one hand, and Whitney Subordinated Debt
Fund, L.P. (the "Purchaser"), on the other hand. Capitalized terms used herein
and not otherwise defined have the meanings assigned to such terms in the
Purchase Agreement (as defined below).
W I T N E S S E T H:
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WHEREAS, the Company and the Purchaser are parties to the Subordinated Note
and Common Stock Purchase Agreement, dated as of July 8, 1998, as amended by (i)
Amendment Xx. 0, xxxxx Xxxxx 00, 0000, (xx) Amendment No. 2, dated September 13,
1999, and (iii) Amendment No. 3, dated as of April 5, 2000, by and among the
Company, the Purchaser, and, for certain purposes, X. X. Xxxxxxx & Co. (as so
amended, the "Purchase Agreement"), regarding the Company's $20,000,000
subordinated notes due September 30, 2003;
WHEREAS, the Company has requested the Purchaser to waive compliance with
certain covenants contained in the Purchase Agreement for the fiscal quarter
ended March 31, 2000.
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
1. The Purchaser hereby waives compliance by the Company with the provisions
of Sections 9.8(a), (b) and (d) of the Purchase Agreement solely with respect to
the fiscal quarter ended March 31, 2000.
2. This Waiver may be signed in counterparts, and by the various parties on
separate counterparts. Each set of counterparts which contains the signature of
each of the parties shall constitute a single instrument with the same effect as
if the signature thereto were upon the same instrument. The parties hereto
agree that each party shall accept facsimile signatures as legally sufficient,
binding and admissible evidence of the execution of this Waiver.
3. Except as expressly modified by this Waiver, all of the terms and
provisions of the Purchase Agreement, by and among the Company and the
Purchaser, and the Notes shall continue in full force and effect and all parties
hereto shall be entitled to the benefits thereof.
4. This Waiver shall be governed by and construed in accordance with the laws
of the State of New York, without regard to the principles of conflict of laws
of such state.
5. IN WITNESS WHEREAS, the parties hereto have caused this Waiver to be
signed by their respective duly authorized officers as of the date first written
above.
NMT MEDICAL, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Vice President-Finance and
Administration and Chief Financial
Officer
WHITNEY SUBORDINATED DEBT FUND, L.P.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
A General Partner
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