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Exhibit 10.1
WAIVER
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Waiver, made as of August 17, 2000 (this "Waiver"), by and among NMT
Medical, Inc. (the "Company") and Whitney Subordinated Debt Fund, L.P. (the
"Purchaser"). 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 by and among the
Company, the Purchaser, and, for certain purposes, Whitney & Co., formerly known
as J.H. Whitney & Co. ("Whitney"), as amended by Amendment No. 1 dated April 14,
1999, Amendment No. 2 dated September 13, 1999 and Amendment No. 3 dated as of
April 5, 2000 (as so amended, the "Purchase Agreement"), regarding the Company's
$20,000,000 subordinated notes due September 30, 2003;
WHEREAS, the Company has requested Purchaser to waive compliance with
certain covenants contained in the Purchase Agreement for the fiscal quarter
ended June 30, 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. Purchaser hereby waives compliance by the Company with the provisions of
Section 9.8 of the Purchase Agreement solely with respect to the fiscal quarter
ended June 30, 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 Whitney, and the Notes shall continue in full force and effect and all
parties hereto shall be entitled to the benefits thereof.
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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.
IN WITNESS WHEREOF, 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/ Randall W. Davis
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Name: Randall W. Davis
Title: Acting President
WHITNEY SUBORDINATED DEBT FUND, L.P.
By:/s/ James A. Fordyce
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Name: James A. Fordyce
A General Partner
