Exhibit 10.1
AMENDMENT NO. 3 TO SUBORDINATED NOTE AND COMMON STOCK PURCHASE AGREEMENT
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Amendment No. 3 to Subordinated Note and Common Stock Purchase Agreement
dated as of April 5, 2000 by and among ▇.▇. ▇▇▇▇▇▇▇ & Co. ("JHW"), Whitney
Subordinated Debt Fund, L.P. ("WSDF" and, together with JHW, "Whitney") and NMT
Medical, Inc. ("NMT").
Reference is made to that certain Subordinated Note and Common Stock
Purchase Agreement, dated as of July 8, 1998 (the "Whitney Purchase Agreement"),
by and among WSDF, NMT and, for certain purposes, JHW, as amended by that
certain Amendment No. 1 dated April 14, 1999 ("Amendment No. 1") and as further
amended by that certain Amendment No. 2 dated September 13, 1999 ("Amendment No.
2") (the Whitney Purchase Agreement as so amended, the "Amended Whitney
Purchase Agreement");
Reference is further made to that certain Waiver and Consent Agreement
dated as of March 20, 2000 (the "Waiver Agreement"), by and among ▇▇▇▇▇ Brothers
▇▇▇▇▇▇▇▇ & Co. ("BBH"), NMT, certain other subsidiaries of NMT, and Whitney.
WHEREAS, the Waiver Agreement provides, inter alia, that upon the reduction
of the principal amount outstanding under NMT's credit agreement with BBH (the
"U.S. Credit Agreement") to $2,000,000, the amount of permitted Senior
Indebtedness (as defined in the Amended Whitney Purchase Agreement) shall be
reduced to $2,000,000;
WHEREAS, upon the closing of the Sale Transactions (as defined in the
Waiver Agreement) on April 5, 2000, the principal amount outstanding under the
U.S. Credit Agreement was reduced to $2,000,000; and
WHEREAS, the parties now wish to memorialize the reduction of permitted
Senior Indebtedness as contemplated by the Waiver Agreement.
NOW, THEREFORE, in consideration of the foregoing and the promises and
agreements set forth herein, the parties agree as follows:
1. The maximum aggregate principal amount of permitted Senior
Indebtedness (as defined in the Amended Whitney Purchase Agreement) is hereby
reduced from $13,000,000 to $2,000,000.
2. Except for the foregoing, all of the terms and conditions of the
Amended Whitney Purchase Agreement (as affected by the Waiver Agreement and that
certain Release of Security Interest Agreement dated as of March 20, 2000 by and
among Whitney, BBH, NMT and NMT's domestic subsidiaries) remain in full force
and effect.
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WHEREFORE, the parties have executed this agreement as a document under
seal as of the date first written above.
WHITNEY SUBORDINATED DEBT FUND, L.P.
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: General Partner
▇.▇. ▇▇▇▇▇▇▇ & CO.
By: /s/ ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Title: General Partner
NMT MEDICAL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President - Finance and Administration
and Chief Financial Officer