Exhibit 10.4
May 19, 2000
NMT Medical, Inc.
00 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Re: Waiver of Compliance with Certain Covenants
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Ladies and Gentlemen:
Reference is made to (i) that certain Credit Agreement, dated as of
September 13, 1999, as amended (the "Credit Agreement"), by and among NMT
Medical, Inc. ("NMT") and its domestic subsidiaries (together with NMT, the
"Borrowers") and Xxxxx Brothers Xxxxxxxx & Co. (the "Lender") and (ii) that
certain letter agreement regarding the post-closing delivery of certain
documentation and the satisfaction of certain conditions, dated September 13,
1999 (the "Letter Agreement"). Capitalized terms used herein and not defined
shall have the meanings ascribed to such terms in the Credit Agreement.
The Borrowers have delivered to the Lender in connection herewith
calculations regarding compliance with the financial covenants set forth in
Section 6.09 of the Credit Agreement for the first quarter of 2000 (the
"Calculations"). Based on the Calculations, the Borrowers were not in
compliance with the financial covenants set forth in Sections 6.09(a), (b) and
(d) of the Credit Agreement. The Lender hereby waives the Borrowers' compliance
with the financial covenants set forth in the Credit Agreement, but only to the
extent of the deviations from the relevant financial covenants set forth in the
Calculations and the Borrowers' failure to comply with such covenants for the
first quarter of 2000.
In addition, as of the date hereof, the Borrowers have not delivered the
pledge of the stock of Image Technology Corp. (together with related stock
powers executed in blank), which items are required to be delivered to the
Lender on or before May 31, 2000 in accordance with the terms of the Letter
Agreement, as modified by that certain Waiver and Consent Agreement, dated as of
March 20, 2000 (the "Waiver and Consent"), by and among the Lender, Whitney
Subordinated Debt Fund, L.P. ("Whitney"), X.X. Xxxxxxx & Co. ("JHW") and the
Borrowers. The Lender hereby agrees to extend the date of delivery for the
remaining documentation under the Letter Agreement to on or before July 31,
2000. The Borrowers acknowledge and agree that if all of the documentation
required to be delivered under the Letter Agreement and all of the conditions
required to be satisfied as set forth therein are not so delivered and satisfied
on or before July 31, 2000, it shall constitute an immediate Event of Default
under the Credit Agreement.
This waiver applies only with respect to the Borrowers' non-compliance with
the provisions of the Credit Agreement described herein, and nothing contained
herein or in any other communication between any Borrower and the Lender shall
constitute a consent to any other deviation from the terms of the Credit
Agreement. Nothing contained in this waiver shall be deemed to modify or amend
the Credit Agreement, which remains in full force and effect, or constitute a
course of dealing among the Borrowers and the Lender.
By their acknowledgment in the spaces provided below, (i) the Borrowers
hereby confirm to the Lender that the representations and warranties of the
Borrowers set forth in Article III of the Credit Agreement are true and correct
as of the date hereof as if set forth herein in full, except to the extent that
such representations and warranties are no longer true and correct as a result
solely of the consummation of the Sale Transactions (as defined in the Waiver
and Consent), and (ii) the Borrowers hereby certify that, after giving effect to
this waiver, no Default exists under the Credit Agreement.
This waiver is conditioned upon, and shall be effective only
contemporaneous with, the granting and effectiveness of a waiver by Whitney
under that certain Subordinated Note and Stock Purchase Agreement, dated as of
July 8, 1998, by and among NMT, Whitney and, for limited purposes, JHW, as
amended (the "Whitney Agreement"), with respect to NMT's failure to comply with
the financial covenants set forth in Sections 9.8(a), (b) and (d) of the Whitney
Agreement.
[Remainder of Page Intentionally Left Blank]
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Very truly yours,
XXXXX BROTHERS XXXXXXXX & CO.
By: /s/ Xxxxxx X. Xxxxxxxx
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Name: Xxxxxx X. Xxxxxxxx
Title: Senior Vice President
ACKNOWLEDGED AND AGREED:
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
NMT HEART, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Treasurer and Secretary
NMT INVESTMENTS CORP.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Treasurer and Clerk
NMT NEUROSCIENCES
(INTERNATIONAL), INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Treasurer and Secretary
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NMT NEUROSCIENCES (US), INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Treasurer and Secretary
NMT NEUROSCIENCES (IP), INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Treasurer and Secretary
NMT NEUROSCIENCES
INNOVASIVE SYSTEMS, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Treasurer and Secretary
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