EXHIBIT 10.7
AMENDMENT
TO
WAIVER NO. 1
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This Amendment, made as of May 12, 1999 (this "Amendment"), to Waiver No. 1
is by and between Nitinol Medical Technologies, 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, as amended by
Amendment No. 1, dated April 14, 1999, by and among the Company, the Purchaser,
and, for certain purposes, X.X. Xxxxxxx & Co. (the "Purchase Agreement"),
regarding the Company's $20,000,000 subordinated notes due September 30, 2003;
WHEREAS, pursuant to Waiver No. 1, made as of April 14, 1999, by and among
the Company and the Purchaser ("Waiver No. 1"), the Purchaser waived compliance
with certain covenants contained in the Purchase Agreement for the fiscal
quarter ended March 31, 1999;
WHEREAS, by memorandum, dated May 7, 1999, addressed to Xxxx Xxxxxxxx of
X.X. Xxxxxxx & Co., the Company has requested the Purchaser to amend Waiver No.
1 in order to include a waiver of the total leverage covenant contained in the
Purchase Agreement for the fiscal quarter ended March 31, 1999.
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. Waiver No. 1 is hereby amended by replacing the reference to "Section
9.8(e)" appearing in paragraph 1 thereof with a reference to "Sections 9.8(b)
and 9.8(e)."
2. This Amendment 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 Amendment.
3. Except as expressly modified by this Amendment, all of the terms and
provisions of Waiver No. 1 shall continue in full force and effect and all
parties hereto shall be entitled to the benefits thereof.
4. This Amendment 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 WHEREAS, the parties hereto have caused this Amendment to be
signed by their respective duly authorized officers as of the date first written
above.
NITINOL MEDICAL TECHNOLOGIES, INC.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer
WHITNEY SUBORDINATED DEBT FUND, L.P.
By: /s/ Xxxxx X. Xxxxxxx
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Name: Xxxxx X. Xxxxxxx
A General Partner
