Waiver Agreement between NMT Medical, Inc. and Whitney Subordinated Debt Fund, L.P. (August 17, 2000)

Summary

NMT Medical, Inc. and Whitney Subordinated Debt Fund, L.P. have agreed that Whitney will waive the Company's obligation to comply with a specific covenant (Section 9.8) in their existing Subordinated Note and Common Stock Purchase Agreement for the fiscal quarter ending June 30, 2000. All other terms of the original agreement remain unchanged. This waiver is limited to the specified quarter and does not affect future obligations under the agreement.

EX-10.1 2 0002.txt EXHIBIT 10.1 - WAIVER Exhibit 10.1 WAIVER ------ 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: -------------------- 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. 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 -------------------------------------- Name: Randall W. Davis Title: Acting President WHITNEY SUBORDINATED DEBT FUND, L.P. By:/s/ James A. Fordyce -------------------------------------- Name: James A. Fordyce A General Partner