exv10w20



 






EXHIBIT 10.20




 





LOAN AND SECURITY AGREEMENT




THOMAS WEISEL CAPITAL MANAGEMENT LLC, THOMAS

WEISEL VENTURE PARTNERS LLC, THOMAS WEISEL

HEALTHCARE VENTURE PARTNERS LLC AND

TAILWIND CAPITAL PARTNERS LLC




 






 









 








Table of Contents




	 	 	 	 	 
	 	 	Page	 
	1. ACCOUNTING AND OTHER TERMS
	 	 	1	 
	 
	 	 	 	 
	2. LOAN AND TERMS OF PAYMENT
	 	 	1	 
	2.1 Revolving Advances; Term Amortization; Use of Proceeds
	 	 	1	 
	2.2 Payments
	 	 	1	 
	2.3 Interest Rate, Payments
	 	 	2	 
	2.4 Fees
	 	 	2	 
	 
	 	 	 	 
	3. CONDITIONS OF LOANS
	 	 	2	 
	3.1 Conditions Precedent to Initial Credit Extension
	 	 	2	 
	3.2 Conditions Precedent to all Credit Extensions
	 	 	2	 
	 
	 	 	 	 
	4. CREATION OF SECURITY INTEREST
	 	 	3	 
	4.1 Grant of Security Interest
	 	 	3	 
	4.2 Authorization of File
	 	 	3	 
	 
	 	 	 	 
	5. REPRESENTATIONS AND WARRANTIES
	 	 	3	 
	5.1 Due Organization and Authorization
	 	 	3	 
	5.2 Collateral
	 	 	3	 
	5.3 Litigation
	 	 	3	 
	5.4 No Material Adverse Change in Financial Statements
	 	 	4	 
	5.5 Solvency
	 	 	4	 
	5.6 Regulatory Compliance
	 	 	4	 
	5.7 Investments in Subsidiaries
	 	 	4	 
	5.8 True and Correct Copy of the LLC Agreement
	 	 	4	 
	5.9 Full Disclosure
	 	 	4	 
	 
	 	 	 	 
	6. AFFIRMATIVE COVENANTS
	 	 	4	 
	6.1 Government Compliance
	 	 	5	 
	6.2 Financial Statements, Reports, Certificates
	 	 	5	 
	6.3 Taxes
	 	 	5	 
	6.4 Insurance
	 	 	5	 
	6.5 Primary Accounts
	 	 	6	 
	6.6 Financial Covenant
	 	 	6	 
	6.7 LLC Agreement, Capital Contribution
	 	 	6	 
	 
	 	 	 	 
	7. NEGATIVE COVENANTS
	 	 	6	 
	7.1 Dispositions
	 	 	6	 
	7.2 Changes in Business, Ownership, Management or Locations of Collateral
	 	 	6	 
	7.3 Mergers or Acquisitions
	 	 	6	 
	7.4 Indebtedness
	 	 	6	 
	7.5 Encumbrance
	 	 	7	 
	7.6 Distributions; Investments
	 	 	7	 
	7.7 Transactions with Affiliates
	 	 	7	 
	7.8 Subordinated Debt
	 	 	7	 
	7.9 Compliance
	 	 	7	 
	7.10 LLC Agreement
	 	 	7	 
	 
	 	 	 	 
	8. EVENTS OF DEFAULT
	 	 	7	 
	8.1 Payment Default
	 	 	7	 
	8.2 Covenant Default
	 	 	8	 






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Table of Contents




	 	 	 	 	 	 	 	 	 
	 	 	Page	 	 	 	 	 
	8.3 Material Adverse Change
	 	 	8	 	 	 	 	 
	8.4 Attachment
	 	 	8	 	 	 	 	 
	8.5 Insolvency
	 	 	8	 	 	 	 	 
	8.6 Other Agreements
	 	 	8	 	 	 	 	 
	8.7 Judgments
	 	 	8	 	 	 	 	 
	8.8 Misrepresentations
	 	 	9	 	 	 	 	 
	8.9 Guaranty
	 	 	9	 	 	 	 	 
	8.10 Failure to Receive a Capital Call
	 	 	9	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	9. BANK’S RIGHTS AND REMEDIES
	 	 	9	 	 	 	 	 
	9.1 Rights and Remedies
	 	 	9	 	 	 	 	 
	9.2 Power of Attorney
	 	 	10	 	 	 	 	 
	9.3 Bank Expenses
	 	 	10	 	 	 	 	 
	9.4 Bank’s Liability for Collateral
	 	 	10	 	 	 	 	 
	9.5 Remedies Cumulative
	 	 	10	 	 	 	 	 
	9.6 Demand Waiver
	 	 	10	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	10. NOTICES AND WAIVERS
	 	 	11	 	 	 	 	 
	10.1 Notices
	 	 	11	 	 	 	 	 
	10.2 Subrogation and Similar Rights
	 	 	11	 	 	 	 	 
	10.3 Waivers of Defenses
	 	 	12	 	 	 	 	 
	10.4 Waiver of Subrogation and Other Guarantor Defenses
	 	 	12	 	 	 	 	 
	10.5 Right to Settle, Release
	 	 	12	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	11. CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER
	 	 	12	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	12. GENERAL PROVISIONS
	 	 	13	 	 	 	 	 
	12.1 Successors and Assigns
	 	 	13	 	 	 	 	 
	12.2 Indemnification
	 	 	13	 	 	 	 	 
	12.3 Time of Essence
	 	 	13	 	 	 	 	 
	12.4 Severability of Provision
	 	 	13	 	 	 	 	 
	12.5 Amendments in Writing, Integration
	 	 	13	 	 	 	 	 
	12.6 Counterparts
	 	 	13	 	 	 	 	 
	12.7 Survival
	 	 	13	 	 	 	 	 
	12.8 Confidentiality
	 	 	14	 	 	 	 	 
	12.9 Attorneys’ Fees, Costs and Expenses
	 	 	14	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	13. DEFINITIONS
	 	 	14	 	 	 	 	 
	13.1 Definitions
	 	 	14	 	 	 	 	 







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Exhibit 10.20



This LOAN AND SECURITY AGREEMENT, dated as of June 30, 2004, between SILICON VALLEY BANK
(“Bank”), whose address is 3003 Tasman Drive, Santa Clara, California 95054 with a loan
production office located at 3000 Sand Hill Rd., Ste. 150, Bldg. 3, Menlo Park, California 94025,
and THOMAS WEISEL CAPITAL MANAGEMENT LLC, a Delaware Limited Liability Company (“Capital
Management”), THOMAS WEISEL VENTURE PARTNERS LLC, a Delaware Limited Liability Company
(“Venture Partners”), THOMAS WEISEL HEALTHCARE VENTURE PARTNERS LLC, a Delaware Limited
Liability Company (“Healthcare Partners”), and TAILWIND CAPITAL PARTNERS LLC, a Delaware
Limited Liability Company (“Tailwind”; collectively with Capital Management, Venture
Partners and Healthcare Partners “Borrower” and Capital Management, Venture Partners,
Healthcare Partners and Tailwind, as appropriate, individually and each “Borrower”),
provides the terms on which Bank will lend to Borrower and Borrower will repay Bank. The parties
agree as follows:




1. ACCOUNTING AND OTHER TERMS



Accounting terms not defined in this Agreement will be construed following GAAP. Calculations and
determinations must be made following GAAP. The term “financial statements” includes the notes and
schedules. The terms “including” and “includes” always mean “including (or includes) without
limitation,” in this or any other Loan Document.




2. LOAN AND TERMS OF PAYMENT



2.1 Revolving Advances; Term Amortization; Use of Proceeds.




     (a) Advances. During the Draw Period, Bank will make Advances not exceeding the
Committed Credit Facility. Amounts borrowed under this section may be repaid and reborrowed during
the Draw Period.



     (b) Advance Procedure. To obtain an Advance, Borrower must notify Bank by facsimile
or telephone by 12:00 p.m. Pacific Time on the Business Day the Advance is to be made. Borrower
must promptly confirm the notification by delivering to Bank the Payment/Advance Form attached as
Exhibit B. Bank will credit Advances to Borrower’s deposit account. Bank may make
Advances under this Agreement based on instructions from a Responsible Officer or his or her
designee or without instructions if the Advances are necessary to meet Obligations that have become
due. Bank may rely on any telephone notice given by a person whom Bank believes in good faith is a
Responsible Officer or designee. Borrower will indemnify Bank for any loss Bank suffers due to
such reliance if reasonably made in good faith.



     (c) Use of Advance Proceeds. Borrower shall use Advance proceeds exclusively for the
purpose of funding its capital contribution and co-investment obligations to the Funds.



2.2 Payments.




     (a) Scheduled Payments. Interest on the Advances accrues at the rate described in
Section 2.3(a) and is payable monthly on the                                          day of the month, commencing July ___,
2004. Commencing July                     , 2006, the aggregate Advances outstanding on such date shall be
repayable in 12 equal monthly installments, together with accrued interest, with the first
installment due on such date and each remaining installment due on the corresponding day of the
subsequent calendar months. The Committed Credit Facility principal, plus accrued interest, is due
on the Maturity Date.



     (b) Voluntary Prepayments. Borrower may, from time to time after the Draw Period and
upon five (5) days’ notice to Bank, prepay the Advances principal outstanding in whole or in part.
All principal prepayments shall be accompanied by payment of the accrued interest with respect to
such principal. A prepayment shall be applied to the principal installments in the inverse order
of maturity.



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     (c) Reborrowing Prohibited. When repaid after the Draw Period, an Advance may not be
reborrowed.



2.3 Interest Rate, Payments.




     (a) Interest Rate. Advances accrue interest on the outstanding principal balance at a
per annum rate equal to the greater of (i) one half of one percentage point (0.5%) above the Prime
Rate, and (ii) 4.5%. After an Event of Default, Obligations accrue interest at 5 percent above the
rate effective immediately before the Event of Default. The interest rate increases or decreases
when the Prime Rate changes. Interest is computed on a 360 day year for the actual number of days
elapsed.



     (b) Payments. Bank may debit any of Borrower’s deposit accounts including Account
Number                                          for principal and interest payments owing or any amounts Borrower owes
Bank under the Loan Documents. Bank will promptly notify Borrower when it debits Borrower’s
accounts. These debits are not a set-off. Payments received after 2:00 p.m. Pacific Time are
considered received at the opening of business on the next Business Day. When a payment is due on
a day that is not a Business Day, the payment is due the next Business Day and additional fees or
interest accrue.



2.4 Fees.



Borrower will pay:




     (a) Facility Fee. A fully earned, non-refundable Facility Fee of $18,750, due on the
Closing Date; and



     (b) Bank Expenses. All Bank Expenses (including reasonable attorneys’ fees and
reasonable expenses) incurred after the date of this Agreement, are payable when due.



3. CONDITIONS OF LOANS



3.1 Conditions Precedent to Initial Credit Extension.



Bank’s obligation to make the initial Credit Extension is subject to the condition precedent that
it receives the agreements, documents and fees it reasonably requires, including the Guaranty of
Partners Group.




3.2 Conditions Precedent to all Credit Extensions.



Bank’s obligations to make each Credit Extension, including the initial Credit Extension, is
subject to the following:




     (a) timely receipt of any Payment/Advance Form; and



     (b) the representations and warranties in Section 5 must be materially true on the date of the
Payment/Advance Form and on the date of each Credit Extension (except for such representations and
warranties that specifically refer to an earlier date, in which case such representations and
warranties were true and correct were materially true on such earlier date) and no Event of Default
may have occurred and be continuing, or result from the Credit Extension. Each Credit Extension is
Borrower’s representation and warranty on that date that the representations and warranties of
Section 5 remain materially true (except for such representations and warranties that specifically
refer to an earlier date, in which case each Credit Extension is Borrower’s representation and
warranty that such representations and warranties were materially true on such earlier date).



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4. CREATION OF SECURITY INTEREST



4.1 Grant of Security Interest.



Each Borrower grants Bank a continuing security interest in all presently existing and later
acquired Collateral to secure all Obligations and performance of each of Borrower’s duties under
the Loan Documents. Except for Permitted Liens, Bank’s security interest will be a first priority
security interest in the Collateral. During the continuance of an Event of Default, Bank may place
a “hold” on any deposit account pledged as Collateral. If this Agreement is terminated, Bank’s
lien and security interest in the Collateral will continue until Borrower fully satisfies its
Obligations (other than inchoate indemnity obligations and performance obligations).




4.2 Authorization of File.



Each Borrower authorizes Bank to file financing statements without notice to such Borrower, with
all appropriate jurisdictions, as Bank deems appropriate, in order to perfect or protect Bank’s
interest in the Collateral; provided, however, that Bank shall provide such
Borrower with copies of all such financing statements.




5. REPRESENTATIONS AND WARRANTIES



References to Borrower shall refer to Capital Management, Venture Partners and/or Healthcare
Partners, as applicable. Borrower represents and warrants as follows:




5.1 Due Organization and Authorization.



Borrower is duly existing and in good standing in its state of formation and qualified and licensed
to do business in, and in good standing in, any state in which the conduct of its business or its
ownership of property requires that it be qualified, except where the failure to do so could not
reasonably be expected to cause a Material Adverse Change. Except as disclosed in the Schedule,
Borrower has not changed its state of formation or its organizational structure or type or any
organizational number (if any) assigned by its jurisdiction of formation.



The execution, delivery and performance of the Loan Documents have been duly authorized, and do not
conflict with Borrower’s formation documents, nor constitute an event of default under any material
agreement by which Borrower is bound. Borrower is not in default under any agreement to which or
by which it is bound in which the default could reasonably be expected to cause a Material Adverse
Change.




5.2 Collateral.



Borrower has good title to the Collateral, free of Liens except Permitted Liens or Borrower has
Rights to each asset that is Collateral. Borrower has no other deposit account, other than the
deposit accounts described in the Schedule and the deposit accounts, if any, subsequently disclosed
in writing to Bank. The Accounts are bona fide, existing obligations. The Collateral is not in
the possession of any third party bailee. If Borrower, after the Closing Date, intends to store or
otherwise deliver the Collateral to a bailee, then it will receive the prior written consent of
Bank and such bailee must acknowledge in writing that such bailee is holding such Collateral for
the benefit of Bank.




5.3 Litigation.



Except as shown in the Schedule or disclosed in writing to Bank after the Closing Date, there are
no actions or proceedings pending or, to the knowledge of Borrower’s Responsible Officers,
including its internal legal counsel, threatened by or against Borrower in which a likely adverse
decision could reasonably be expected to cause a Material Adverse Change.





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5.4 No Material Adverse Change in Financial Statements.



All financial statements for Borrower delivered to Bank fairly present in all material respects
Borrower’s financial condition and Borrower’s results of operations. There has not been any
material deterioration in Borrower’s financial condition since the date of the most recent
financial statements submitted to Bank.




5.5 Solvency.



Borrower is able to pay its debts (including trade debts) as they mature.




5.6 Regulatory Compliance.



Borrower is not an “investment company” or a company “controlled” by an “investment company” under
the Investment Company Act of 1940, as amended. Borrower is not engaged as one of its important
activities in extending credit for margin stock (under Regulations T and U of the Federal Reserve
Board of Governors). Borrower has complied in all material respects with the Federal Fair Labor
Standards Act. Borrower has not violated any laws, ordinances or rules, the violation of which
could reasonably be expected to cause a Material Adverse Change. None of Borrower’s properties or
assets has been used by Borrower or, to the best of Borrower’s knowledge, by previous Persons, in
disposing, producing, storing, treating, or transporting any hazardous substance other than
legally. Borrower has timely filed all required tax returns and paid, or made adequate provision
to pay, all material taxes, except those being contested in good faith with adequate reserves under
GAAP. Borrower has obtained all consents, approvals and authorizations of, made all declarations
or filings with, and given all notices to, all government authorities that are necessary to
continue its business as currently conducted, except where the failure to do so could not
reasonably be expected to cause a Material Adverse Change.




5.7 Investments in Subsidiaries.



Borrower does not own any stock, partnership interest or other equity securities except for
Permitted Investments.




5.8 True and Correct Copy of the LLC Agreement.



The LLC Agreement given to Bank is a true and correct copy of the Borrower’s LLC Agreement.




5.9 Full Disclosure.



No written representation, warranty or other statement of Borrower in any certificate or written
statement given to Bank (taken together with all such written certificates and written statements
to Bank) contains any untrue statement of a material fact or omits to state a material fact
necessary to make the statements contained in the certificates or statements not misleading. It
being recognized by Bank that the projections and forecasts provided by Borrower in good faith and
based upon reasonable assumptions are not viewed as facts and that actual results during the period
or periods covered by such projections and forecasts may differ from the projected and forecasted
results.




6. AFFIRMATIVE COVENANTS



References to Borrower shall refer to Capital Management, Venture Partners, Healthcare Partners
and/or Tailwind, as applicable. Borrower will do all of the following for so long as Bank has an
obligation to lend, or there are outstanding Obligations (other than inchoate indemnity and
performance obligations):





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6.1 Government Compliance.



Borrower will maintain its legal existence and good standing in its jurisdiction of formation and
maintain qualification in each jurisdiction in which the failure to so qualify would reasonably be
expected to cause a material adverse effect on Borrower’s business or operations. Borrower will
comply with all laws, ordinances and regulations to which it is subject, noncompliance with which
could have a material adverse effect on Borrower’s business or operations or would reasonably be
expected to cause a Material Adverse Change.




6.2 Financial Statements, Reports, Certificates.




     (a) Bank shall receive: (i) from Borrower, as soon as available, but no later than 60 days
after the last day of each fiscal quarter (except the 4th quarter), a company prepared balance
sheet and income statement covering Borrower’s operations during the period certified by a
Responsible Officer and in a form reasonably acceptable to Bank; provided, however,
that Tailwind shall not have to provide such financial statements prior to December 31, 2004, with
the first financial statements of Tailwind delivered under this clause being with respect to the
first fiscal quarter of 2005; (ii) from Partners Group, as soon as available, but no later than 60
days after the last day of each fiscal quarter (except the 4th quarter), a company prepared
consolidated balance sheet and income statement covering Partners Group’s consolidated operations
during the period certified by a Responsible Officer and in a form reasonably acceptable to Bank;
(iii) from Borrower, as soon as available, but no later than 120 days after the last day of
Borrower’s fiscal year, company prepared balance sheet and income statement covering Borrower’s
operations during such fiscal year certified by a Responsible Officer and in a form reasonably
acceptable to Bank; (iv) from Partners Group, as soon as available, but no later than 120 days
after the last day of Partners Group’s fiscal year, company prepared consolidated balance sheet and
income statement covering Partners Group’s consolidated operations during such fiscal year
certified by a Responsible Officer and in a form reasonably acceptable to Bank; (v) from Borrower,
as soon as available, but no later than 120 days after the last day of the applicable fiscal year,
audited consolidated financial statements prepared under GAAP, consistently applied, for each
Principal Fund evidencing such Principal Fund’s payment to Borrower of the Management Fees,
together with an unqualified opinion on the financial statements from an independent certified
public accounting firm reasonably acceptable to Bank; (vi) from Borrower, a prompt report of any
legal actions pending or threatened against Borrower that could reasonably be expected to result in
damages or costs to Borrower of $100,000 or more; and (vii) from Borrower, budgets, sales
projections, operating plans or other financial information Bank reasonably requests.



     (b) Within 60 days after the last day of each fiscal quarter (except the 4th quarter),
Borrower will deliver to Bank a Compliance Certificate signed by a Responsible Officer in the form
of Exhibit C.



     (c) Allow Bank to audit Borrower’s Collateral at Borrower’s expense. Such audits will be
conducted only when an Event of Default exists.



6.3 Taxes.



Borrower will make timely payment of all material federal, state, and local taxes or assessments,
except those being contested in good faith by appropriate proceedings and for which adequate
reserves have been created and will deliver to Bank, on demand, appropriate certificates attesting
to the payment.




6.4 Insurance.



Borrower will keep its business and the Collateral insured for risks and in amounts, as are
customarily carried by Persons engaged in the same or similar business as Borrower.





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6.5 Primary Accounts.



Borrower will maintain its primary depository and operating accounts with Bank.




6.6 Financial Covenant.



Borrower will receive during each fiscal quarter, as determined on the last day of the fiscal
quarter, Management Fees of not less than 75% of the amount specified below:




	 	 	 	 	 
	 	 	Minimum Management Fees Received During
	Fiscal Quarter	 	Fiscal Quarter
	Fiscal Quarters for 2004 Fiscal Year
	 	$	6,377,230	 
	Fiscal Quarters for 2005 Fiscal Year
	 	$	5,431,849	 
	Fiscal Quarters for 2006 Fiscal Year
	 	$	3,168,973	 
	Fiscal Quarters for 2007 Fiscal Year
	 	$	2,504,411	 






6.7 LLC Agreement, Capital Contribution.



Borrower shall enforce all of its rights under its LLC Agreement in accordance with its past
business practice and in the exercise of its business judgment and will not amend its LLC Agreement
in any way affecting capital contributions under its LLC Agreement or its Obligations under this
Agreement without prior written consent of Bank.




7. NEGATIVE COVENANTS



References to Borrower shall refer to Capital Management, Venture Partners, Healthcare Partners
and/or Tailwind, as applicable. Borrower will not do any of the following without Bank’s prior
written consent (which shall be a matter of its good faith business judgment), for so long as Bank
has an obligation to lend and there are any outstanding Obligations:




7.1 Dispositions.



Convey, sell, lease, transfer or otherwise dispose of all or any part of its business or property
outside the ordinary course of business of Borrower.




7.2 Changes in Business, Ownership, Management or Locations of Collateral.



Engage in any business other than the businesses currently engaged in by Borrower or reasonably
related thereto or have a material change in its ownership of greater than 25% or, in the case of
Capital Management, have a material change of management of greater than 25%. Borrower will not,
without at least 30 days prior written notice, relocate its chief executive office, change its
state of formation (including reincorporation), change its organizational number or name or add any
new offices or business locations in which Borrower stores or maintains over $25,000 in Collateral.




7.3 Mergers or Acquisitions.



Merge or consolidate with any other Person, or, except as authorized in its LLC Agreement, acquire
all or substantially all of the capital stock or property of another Person.




7.4 Indebtedness.



Create, incur, assume, or be liable for any Indebtedness other than Permitted Indebtedness.






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7.5 Encumbrance.



Create, incur, or allow any Lien on any Collateral, or assign or convey any right to receive
income, except for Permitted Liens, or permit any Collateral not to be subject to the first
priority security interest granted hereunder, subject to Permitted Liens, or create, incur, or
allow any Lien on any Fund Interests.




7.6 Distributions; Investments.



Except as authorized by its LLC Agreement, directly or indirectly acquire or own any Person, or
make any Investment in any Person, other than Permitted Investments. Pay any dividends or make any
distribution or payment or redeem, retire or purchase any capital stock except pursuant to and in
accordance with the LLC Agreement.




7.7 Transactions with Affiliates.



Except as authorized by its LLC Agreement, directly or indirectly enter into or permit to exist any
material transaction with any Affiliate of Borrower except for transactions that are in the
ordinary course of Borrower’s business, upon fair and reasonable terms that are no less favorable
to Borrower than would be obtained in an arm’s length transaction with a nonaffiliated Person.




7.8 Subordinated Debt.



Make or permit any payment on any Subordinated Debt, except under the terms of the Subordinated
Debt, or amend any material provision in any document relating to the Subordinated Debt without
Bank’s prior written consent.




7.9 Compliance.



Become an “investment company” or a company controlled by an “investment company,” under the
Investment Company Act of 1940 or undertake as one of its important activities extending credit to
purchase or carry margin stock, or use the proceeds of any Credit Extension for that purpose; fail
to meet the minimum funding requirements of ERISA, permit a Reportable Event or Prohibited
Transaction, as defined in ERISA, to occur; fail to comply with the Federal Fair Labor Standards
Act or violate any other law or regulation, if the violation could reasonably be expected to have a
material adverse effect on Borrower’s business or operations or would reasonably be expected to
cause a Material Adverse Change.




7.10 LLC Agreement.



Except with the prior consent of Bank, Borrower shall not amend, modify or waive any material
provision in its LLC Agreement that diminishes Bank’s rights hereunder or with respect to the
Collateral. Except as authorized by its LLC Agreement, Borrower shall not permit or make any
withdrawals by or distributions to any of its members; and Borrower shall not voluntarily permit
its dissolution or liquidation.




8. EVENTS OF DEFAULT



Any one of the following is an Event of Default:




8.1 Payment Default.



If Borrower fails to pay any of the Obligations consisting of principal or interest within 3
Business Days after their due date of fails to pay any other of the Obligations within 10 days
after their due date (provided that no Credit Extensions will be made during such cure period);





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8.2 Covenant Default.




     (a) If Borrower fails to perform any obligation under Section 6.2 or violates any of the
covenants contained in Article 7 of this Agreement, or



     (b) If Borrower fails or neglects to perform, keep, or observe any other material term,
provision, condition, covenant, or agreement contained in this Agreement, in any of the other Loan
Documents, or in any other present or future agreement between Borrower and Bank and as to any
default under such other term, provision, condition, covenant or agreement that can be cured, has
failed to cure such default within ten (10) days after the occurrence thereof; provided,
however, that if the default cannot by its nature be cured within the ten (10) day period
or cannot after diligent attempts by Borrower be cured within such ten (10) day period, and such
default is likely to be cured within a reasonable time, then Borrower shall have an additional
reasonable period (which shall not in any case exceed thirty (30) days after the occurrence
thereof) to attempt to cure such default, and within such reasonable time period the failure to
have cured such default shall not be deemed an Event of Default (provided that no Credit Extensions
will be made during such cure period);



8.3 Material Adverse Change.



If there (i) occurs a material adverse change in the business, operations, or condition (financial
or otherwise) of the Borrower, or (ii) is a material impairment of the prospect of repayment of any
portion of the Obligations (the foregoing being defined as a “Material Adverse Change”).




8.4 Attachment.



If any material portion of Borrower’s assets is attached, seized, levied on, or comes into
possession of a trustee or receiver and the attachment, seizure or levy is not removed in 10 days,
or if Borrower is enjoined, restrained, or prevented by court order from conducting a material part
of its business or if a judgment or other claim becomes a Lien on a material portion of Borrower’s
assets, or if a notice of lien, levy, or assessment is filed against any of Borrower’s assets by
any government agency and not paid within 10 days after Borrower receives notice. These are not
Events of Default if stayed or if a bond is posted pending contest by Borrower (but no Credit
Extensions will be made during the cure period);




8.5 Insolvency.



If Borrower becomes insolvent or if Borrower begins an Insolvency Proceeding or an Insolvency
Proceeding is begun against Borrower and not dismissed or stayed within 30 days (but no Credit
Extensions will be made before any Insolvency Proceeding is dismissed);




8.6 Other Agreements.



If there is a default that is not waived in any agreement between Borrower and a third party that
gives the third party the right to accelerate any Indebtedness exceeding $500,000 or that could
reasonably be expected to cause a Material Adverse Change;




8.7 Judgments.



If a money judgment(s) is rendered against Borrower in an aggregate amount not covered by insurance
of at least $100,000, and is unsatisfied and unstayed for 10 days (but no Credit Extensions will be
made before the judgment is stayed or satisfied);





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8.8 Misrepresentations.



If Borrower or any officer of Borrower makes any material misrepresentation or material
misstatement now or later in any warranty or representation in this Agreement or any other Loan
Document or in any writing delivered to Bank or to induce Bank to enter this Agreement or any other
Loan Document; or




8.9 Guaranty.



Any guaranty of any Obligations ceases for any reason to be in full force or any Guarantor does not
perform any obligation under any guaranty of the Obligations within ten (10) days of the date such
performance was due, or any material misrepresentation or material misstatement exists now or later
in any warranty or representation in any guaranty of the Obligations or in any certificate
delivered to Bank in connection with the guaranty, or any circumstance described in Sections 8.3,
8.4, 8.5 or 8.7 occurs to any Guarantor.




8.10 Failure to Receive a Capital Call.



If a Principal Fund fails to receive 95% of its Capital Contributions from its General Partners and
Limited Partners when requested within forty-five (45) days of the date requested;
provided, however, that (i) an Event of Default shall not occur if a General
Partner or Limited Partner purchases the partnership interest of the defaulting General Partner or
Limited Partner and the purchaser makes the required Capital Contribution of the defaulting partner
within ninety (90) days of the date that the Capital Contributions were requested, and (ii) an
Event of Default under this Section shall be automatically cured if, prior to Bank accelerating the
Obligations, a General Partner or Limited Partner purchases the partnership interest of the
defaulting General Partner or Limited Partner and the purchaser makes the required Capital
Contribution of the defaulting partner.




9. BANK’S RIGHTS AND REMEDIES



9.1 Rights and Remedies.



When an Event of Default occurs and continues Bank may, without notice or demand, do any or all of
the following:




     (a) Declare all Obligations immediately due and payable (but if an Event of Default described
in Section 8.5 occurs, all Obligations are immediately due and payable without any action by Bank);



     (b) Stop advancing money or extending credit for Borrower’s benefit under this Agreement or
under any other agreement between Borrower and Bank;



     (c) Settle or adjust disputes and claims directly with account debtors under the Accounts for
amounts, on terms and in any order that Bank considers advisable; notify any Person owing Borrower
money of Bank’s security interest in the funds and verify the amount of the Account. Borrower must
collect all payments in trust for Bank and, if requested by Bank, immediately deliver the payments
to Bank in the form received from the account debtor, with proper endorsements for deposit;



     (d) Make any payments and do any acts it considers necessary or reasonable to protect its
security interest in the Collateral. Borrower will assemble the Collateral if Bank requires and
make it available as Bank designates. Bank may enter premises where the Collateral is located,
take and maintain possession of any part of the Collateral, and pay, purchase, contest, or
compromise any Lien which appears to be prior or superior to its security interest and pay all
expenses incurred. Borrower grants Bank a license to enter and occupy any of its premises (subject
to the rights of any landlord), without charge, to exercise any of Bank’s rights or remedies;



- 9 -









 





     (e) Apply to the Obligations any (i) balances and deposits of Borrower it holds, or (ii) any
amount held by Bank owing to or for the credit or the account of Borrower;



     (f) Ship, reclaim, recover, store, finish, maintain, repair, prepare for sale, advertise for
sale, and sell the Collateral; and



     (g) Dispose of the Collateral according to the Code.



9.2 Power of Attorney.



Effective only when an Event of Default exists, Borrower irrevocably appoints Bank as its lawful
attorney to: (i) endorse Borrower’s name on any checks or other forms of payment or security; (ii)
sign Borrower’s name on any invoice or bill of lading for any Account or drafts against account
debtors, (iii) make, settle, and adjust all claims under Borrower’s insurance policies; (iv) settle
and adjust disputes and claims about the Accounts directly with account debtors, for amounts and on
terms Bank determines reasonable; and (v) transfer the Collateral into the name of Bank or a third
party as the Code permits. Bank may exercise the power of attorney to sign Borrower’s name on any
documents necessary to perfect or continue the perfection of any security interest regardless of
whether an Event of Default has occurred. Bank’s appointment as Borrower’s attorney in fact, and
all of Bank’s rights and powers, coupled with an interest, are irrevocable until all Obligations
have been fully repaid and performed.




9.3 Bank Expenses.



If Borrower fails to pay any amount or furnish any required proof of payment to third persons that
is required hereunder, Bank may make all or part of the payment. Any amounts paid by Bank are Bank
Expenses and immediately due and payable, bearing interest at the then applicable rate and secured
by the Collateral. No payments by Bank are deemed an agreement to make similar payments in the
future or Bank’s waiver of any Event of Default.




9.4 Bank’s Liability for Collateral.



If Bank complies with reasonable banking practices and Section 9207 of the Code, it is not liable
for: (a) the safekeeping of the Collateral; (b) any loss or damage to the Collateral; (c) any
diminution in the value of the Collateral; or (d) any act or default of any carrier, warehouseman,
bailee, or other Person. Except as provided above, Borrower bears all risk of loss, damage or
destruction of the Collateral.




9.5 Remedies Cumulative.



Bank’s rights and remedies under this Agreement, the other Loan Documents, and all other agreements
are cumulative. Bank has all rights and remedies provided under the Code, by law, or in equity.
Bank’s exercise of one right or remedy is not an election, and Bank’s waiver of any Event of
Default is not a continuing waiver. Bank’s delay is not a waiver, election, or acquiescence. No
waiver is effective unless signed by Bank and then is only effective for the specific instance and
purpose for which it was given.




9.6 Demand Waiver.



Except as specifically provided otherwise herein or in any other Loan Document, Borrower waives
demand, notice of default or dishonor, notice of payment and nonpayment, notice of any default,
nonpayment at maturity, release, compromise, settlement, extension, or renewal of accounts,
documents, instruments, chattel paper, and guarantees held by Bank on which Borrower is liable.





- 10 -









 








10. NOTICES AND WAIVERS



10.1 Notices.



Unless otherwise provided in this Agreement, all notices or demands by any party relating to this
Agreement or any other agreement entered into in connection herewith shall be in writing and
(except for financial statements and other informational documents which may be sent by first-class
mail, postage prepaid) shall be personally delivered or sent by a recognized overnight delivery
service, certified United States mail, postage prepaid, return receipt requested, or by
telefacsimile to Borrower or to Bank, as the case may be, at its addresses set forth below:




	 	 	 	 	 
	 

	 	If to Borrower
	 	Thomas Weisel Capital Management LLC
	 

	 	 	 	One Montgomery Street
	 

	 	 	 	San Francisco, CA 94104
	 

	 	 	 	Attn: Mr. Robert West
	 

	 	 	 	FAX: 415-364-5961
	 
	 	 	 	 
	 

	 	and to
	 	Thomas Weisel Venture Partners LLC
	 

	 	 	 	One Montgomery Street
	 

	 	 	 	San Francisco, CA 94104
	 

	 	 	 	Attn: Mr. Robert West
	 

	 	 	 	FAX: 415-364-5961
	 
	 	 	 	 
	 

	 	and to
	 	Thomas Weisel Healthcare Venture Partners LLC
	 

	 	 	 	One Montgomery Street
	 

	 	 	 	San Francisco, CA 94104
	 

	 	 	 	Attn: Mr. Robert West
	 

	 	 	 	FAX: 415-364-5961
	 
	 	 	 	 
	 

	 	and to
	 	Tailwind Capital Partners LLC
	 

	 	 	 	One Montgomery Street
	 

	 	 	 	San Francisco, CA 94104
	 

	 	 	 	Attn: Mr. Robert West
	 

	 	 	 	FAX: 415-364-5961
	 
	 	 	 	 
	 

	 	If to Bank
	 	Silicon Valley Bank
	 

	 	 	 	3000 Sand Hill Rd., Ste. 150, Bldg. 3
	 

	 	 	 	Menlo Park, CA 94025
	 

	 	 	 	Attn: Doug Hamilton
	 

	 	 	 	FAX: 650-233-9061






10.2 Subrogation and Similar Rights.



Notwithstanding any other provision of this Agreement or any other Loan Document, until the
Obligations have been full and finally paid (other than inchoate indemnity and performance
obligations), each Borrower irrevocably waives all rights that it may have at law or in equity
(including any law subrogating the Borrower to the rights of Bank under the Loan Documents) to seek
contribution, indemnification, or any other form of reimbursement from any other Borrower, or any
other Person now or hereafter primarily or secondarily liable for any of the Obligations, for any
payment made by the Borrower with respect to the Obligations in connection with the Loan Documents
or otherwise and all rights that it might have to benefit from, or to participate in, any security
for the Obligations as a result of any payment made by the Borrower with respect to the Obligations
in connection with the Loan Documents or otherwise. Any agreement providing for indemnification,
reimbursement or any other arrangement prohibited under this Section 10.2 shall be null and void.
If any payment is made to a Borrower in contravention of this Section 10.2, such Borrower shall
hold such payment in trust for Bank and such




- 11 -









 







payment shall be promptly delivered to Bank for application to the Obligations, whether matured or
unmatured.




10.3 Waivers of Defenses.



Each Borrower, to the extent that it is a guarantor of the Obligations, waives any defense arising
from any defense of any other Borrower, or by reason of the cessation from any cause whatsoever of
the liability of any other Borrower. Bank’s failure at any time to require strict performance by a
Borrower of any provision of the Loan Documents shall not waive, alter or diminish any right of
Bank thereafter to demand strict compliance and performance therewith. Nothing contained herein
shall prevent Bank from foreclosing on the Lien of any security instrument, or exercising any
rights available thereunder, and the exercise of any such rights shall not constitute a legal or
equitable discharge of either Borrower. Each Borrower, to the extent that it is a guarantor of the
Obligations, also waives any defense arising from any act or omission of Bank that changes the
scope of the Borrower’s risks hereunder. Each Borrower, to the extent that it is a guarantor of
the Obligations, waives any right to assert against Bank any defense (legal or equitable), setoff,
counterclaim, or claims that such Borrower individually may now or hereafter have against any other
Borrower or any other Person liable to Borrower with respect to the Obligations in any manner or
whatsoever. Each Borrower assumes the responsibility for being and keeping itself informed of any
other Borrower’s financial condition and of all other circumstances bearing on the risk of
nonpayment of the Obligations and that Bank shall have no duty to advise it of information that
Bank has regarding the foregoing.




10.4 Waiver of Subrogation and Other Guarantor Defenses.



Each Borrower, to the extent that it is a guarantor of the Obligations and to the extent permitted
by law, waives any defense based on impairment or destruction of its subrogation or other rights
against any other Borrower and waives all benefits which might otherwise be available to it under
California Civil Code Sections 2809, 2810, 2819, 2839, 2845, 2847, 2848, 2849, 2850, 2899 and 3433
and California Code of Civil Procedure Sections 580a, 580b, 580d and 726, as those statutory
provisions are now in effect and hereafter amended, and under any other similar statutes now and
hereafter in effect.




10.5 Right to Settle, Release.




     (a) Each Borrower’s liability hereunder shall not be diminished by (i) any agreement,
understanding or representation that any of the Obligations is or was to be guaranteed by another
Person or secured by other property, or (ii) any release or unenforceability, whether partial or
total, or rights, if any, which Borrower may now or hereafter have against any other Person,
including any other Borrower, or property with respect to any of the Obligations.



     (b) Without notice to any other Borrower and without affecting the liability of any other
Borrower hereunder, Bank may (i) compromise, settle, renew, extend the time for payment, change the
manner or terms of payment, discharge the performance of, decline to enforce, or release all or any
of the Obligations with respect to another Borrower, (ii) grant other indulgences to another
Borrower in respect of the Obligations, (iii) modify in any manner any documents, relating to the
Obligations with respect to another Borrower, (iv) release, surrender or exchange any deposits or
other property securing the Obligations whether pledged by another Borrower or any other Person, or
(v) compromise, settle renew, or extend the time for payment, discharge the performance of, decline
to enforce, or release all or any obligations of any guarantor, endorser or other Person who is now
or may hereafter be liable with respect to any of the Obligations.



11. CHOICE OF LAW, VENUE AND JURY TRIAL WAIVER



California law governs the Loan Documents without regard to principles of conflicts of law.
Borrower and Bank each submit to the exclusive jurisdiction of the State and Federal courts in
Santa Clara County, California.




- 12 -









 







BORROWER AND BANK EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING
OUT OF ANY OF THE LOAN DOCUMENTS OR ANY CONTEMPLATED TRANSACTION THEREUNDER, INCLUDING CONTRACT,
TORT, BREACH OF DUTY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES
TO ENTER INTO THIS AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.




12. GENERAL PROVISIONS



12.1 Successors and Assigns.



This Agreement binds and is for the benefit of the successors and permitted assigns of each party.
Borrower may not assign this Agreement or any rights under it without Bank’s prior written consent,
which may be granted or withheld in Bank’s discretion. Bank has the right, without the consent of
or notice to Borrower, to sell, transfer, negotiate, or grant participation in all or any part of,
or any interest in, Bank’s obligations, rights and benefits under this Agreement.




12.2 Indemnification.



Borrower will indemnify, defend and hold harmless Bank and its officers, employees, and agents
against: (a) all obligations, demands, claims, and liabilities asserted by any other party in
connection with the transactions contemplated by the Loan Documents; and (b) all losses or Bank
Expenses incurred, or paid by Bank from, following, or consequential to transactions between Bank
and Borrower under the Loan Documents (including reasonable attorneys fees and expenses), except
for losses caused by Bank’s gross negligence or willful misconduct.




12.3 Time of Essence.



Time is of the essence for the performance of all obligations in this Agreement.




12.4 Severability of Provision.



Each provision of this Agreement is severable from every other provision in determining the
enforceability of any provision.




12.5 Amendments in Writing, Integration.



All amendments to this Agreement must be in writing and signed by Borrower and Bank. This
Agreement represents the entire agreement about this subject matter, and supersedes prior
negotiations or agreements. All prior agreements, understandings, representations, warranties, and
negotiations between the parties about the subject matter of this Agreement merge into this
Agreement and the Loan Documents.




12.6 Counterparts.



This Agreement may be executed in any number of counterparts and by different parties on separate
counterparts, each of which, when executed and delivered, are an original, and all taken together,
constitute one agreement.




12.7 Survival.



All covenants, representations and warranties made in this Agreement continue in full force while
any Obligations remain outstanding. The obligations of Borrower in Section 12.2 to indemnify Bank
will survive until all statutes of limitations for actions that may be brought against Bank have
run.





- 13 -









 








12.8 Confidentiality.



In handling any confidential information, Bank will exercise the same degree of care that it
exercises for its own proprietary information, but disclosure of information may be made (i) to
Bank’s subsidiaries or affiliates in connection with their business with Borrower, as long as such
subsidiaries and affiliates honor the Bank’s obligations under this section, (ii) to prospective
transferees or purchasers of any interest in the loans (provided, however, Bank shall use
commercially reasonable efforts in obtaining such prospective transferee or purchasers agreement of
the terms of this provision), (iii) as required by law, regulation, subpoena, or other order, (iv)
as required in connection with Bank’s examination or audit and (v) as Bank considers appropriate
exercising remedies under this Agreement. Confidential information does not include information
that either: (a) is in the public domain or in Bank’s possession when disclosed to Bank, or becomes
part of the public domain after disclosure to Bank; or (b) is disclosed to Bank by a third party,
if Bank does not know that the third party is prohibited from disclosing the information.




12.9 Attorneys’ Fees, Costs and Expenses.



In any action or proceeding between Borrower and Bank arising out of the Loan Documents, the
prevailing party will be entitled to recover its reasonable attorneys’ fees and other reasonable
costs and expenses incurred, in addition to any other relief to which it may be entitled.




13. DEFINITIONS



13.1 Definitions.



In this Agreement:



“Advance” or “Advances” is a loan advance (or advances) under the Committed Credit
Facility.



“Affiliate” of a Person is a Person that owns or controls directly or indirectly the
Person, any Person that controls or is controlled by or is under common control with the Person,
and each of that Person’s senior executive officers, directors, partners and, for any Person that
is a limited liability company, that Person’s managers and members.



“Bank Expenses” are all reasonable out of pocket audit fees and expenses (subject to
Section 6.2(c)’s limitations on Bank’s audit rights) and all reasonable out of pocket costs and
expenses (including reasonable attorneys’ fees and expenses) for preparing, negotiating,
administering, defending and enforcing the Loan Documents (including appeals or Insolvency
Proceedings).



“Business Day” is any day that is not a Saturday, Sunday or a day on which the Bank is
closed.



“Capital Contribution(s)” means for any Limited Partners and General Partners of a Fund,
the sum of the cash and other property required to be contributed to the Fund’s capital in
connection with a capital call, when requested.



“Closing Date” is the date of this Agreement.



“Code” is the California Uniform Commercial Code, as applicable.



“Committed Credit Facility” is the collective Advances of up to $5,000,000.



“Collateral” is the property described on Exhibit A.



“Contingent Obligation” is, for any Person, any direct or indirect liability, contingent or
not, of that Person for (i) any indebtedness, lease, dividend, letter of credit or other obligation
of another such as




- 14 -









 







an obligation directly or indirectly guaranteed, endorsed, co-made, discounted or sold with
recourse by that Person, or for which that Person is directly or indirectly liable; (ii) any
obligations for undrawn letters of credit for the account of that Person; and (iii) all obligations
from any interest rate, currency or commodity swap agreement, interest rate cap or collar
agreement, or other agreement or arrangement designated to protect a Person against fluctuation in
interest rates, currency exchange rates or commodity prices; but “Contingent Obligation” does not
include endorsements in the ordinary course of business. The amount of a Contingent Obligation is
the stated or determined amount of the primary obligation for which the Contingent Obligation is
made or, if not determinable, the maximum reasonably anticipated liability for it determined by the
Person in good faith; but the amount may not exceed the maximum of the obligations under the
guarantee or other support arrangement.



“Credit Extension” is each Advance or any other extension of credit by Bank for Borrower’s
benefit.



“Draw Period” is the period commencing on the Closing Date and terminating on the second
anniversary of the Closing Date.



“Closing Date” is the date Bank executes this Agreement.



“ERISA” is the Employment Retirement Income Security Act of 1974, and its regulations.



“Fund Interests” means Borrower’s partnership interests in the Funds.



“Funds” means the limited partnerships for which a Borrower is the general partner and/or
management company, including, as of the Closing Date, Thomas Weisel Capital Management, L.P.,
Thomas Weisel Strategic Opportunities Partners, L.P., Tailwind Capital Management, L.P., Thomas
Weisel Venture Partners, L.P., Thomas Weisel Healthcare Venture Partners, L.P., TWP CEO Founders
Circle (QP), L.P., TWP CEO Founders Circle (Al), L.P., Thomas Weisel Capital Partners Employee Fund
L.P., Thomas Weisel Capital Partners (Dutch) LLC.



“GAAP” is generally accepted accounting principles.



“General Partner(s)” means those individuals or entities denominated general partners of a
Fund under or by reason of the Fund’s Partnership Agreement.



“Guarantor” is any present or future guarantor of the Obligations, including Partners
Group.



“Indebtedness” is (a) indebtedness for borrowed money or the deferred price of property or
services, such as reimbursement and other obligations for surety bonds and letters of credit, (b)
obligations evidenced by notes, bonds, debentures or similar instruments, (c) capital lease
obligations and (d) Contingent Obligations.



“Insolvency Proceeding” is a proceeding by or against any Person under the United States
Bankruptcy Code, or any other bankruptcy or insolvency law, including assignments for the benefit
of creditors, compositions, extensions generally with its creditors, or proceedings seeking
reorganization, arrangement, or other relief.



“Investment” is any beneficial ownership of (including stock, partnership interest or other
securities) any Person, or any loan, advance or capital contribution to any Person.



“Lien” is a mortgage, lien, deed of trust, charge, pledge, security interest or other
encumbrance.



“Limited Partner(s)” means those individuals or entities denominated limited partners of a
Fund under or by reason of the Fund’s Partnership Agreement.




- 15 -









 








“LLC Agreement” means the limited liability company agreement and other organizing and
governing documents of each Borrower.



“Loan Documents” are, collectively, this Agreement, any note, or notes or guaranties
executed by Borrower or Guarantor, and any other present or future agreement between Borrower
and/or for the benefit of Bank in connection with this Agreement, all as amended, extended or
restated.



“Management Fees” means the management fees that are payable to Borrower by the Funds.



“Material Adverse Change” is defined in Section 8.3.



“Maturity Date” is the third anniversary of the Closing Date.



“Obligations” are debts, principal, interest, Bank Expenses and other amounts Borrower owes
Bank now or later, including cash management services, letters of credit and foreign exchange
contracts, if any and including interest accruing after Insolvency Proceedings begin and debts,
liabilities, or obligations of Borrower assigned to Bank.



“Partner” means any General Partner or Limited Partner.



“Partners Group” means Thomas Weisel Partners Group LLC, a Delaware Limited Liability
Company.



“Partnership Agreement” means the partnership agreement and other organizing and governing
documents of each Fund.



“Permitted Indebtedness” is:




     (a) Borrower’s indebtedness to Bank under this Agreement or any other Loan Document;



     (b) Indebtedness existing on the Closing Date and shown on the Schedule;



     (c) Subordinated Debt;



     (d) Indebtedness to trade creditors incurred in the ordinary course of business;



     (e) Indebtedness secured by Permitted Liens;



     (f) Indebtedness incurred by refinancing of Indebtedness described in clause (b) of this
definition.



“Permitted Investments” are:



     (a) Investments shown on the Schedule and existing on the Closing Date;




     (b) (i) marketable direct obligations issued or unconditionally guaranteed by the United
States or its agency or any State maturing within 1 year from its acquisition, (ii) commercial
paper maturing no more than 1 year after its creation and having the highest rating from either
Standard & Poor’s Corporation or Moody’s Investors Service, Inc., and (iii) Bank’s certificates of
deposit issued maturing no more than 1 year after issue;



     (c) Investments in accordance with Borrower’s investment practices from time to time,
including capital contributions and co-investment obligations to the Funds, as described in the
Funds’ partnership agreements;



- 16 -









 





     (d) Loan advances to officers, directors and employees of Borrower for travel, entertainment,
relocation and analogous ordinary business purposes;



     (e) Investments in Partners Group; and



     (f) In the case of Capital Management, investments in the other Borrowers.


“Permitted Liens” are:




     (a) Liens existing on the Closing Date and shown on the Schedule or arising under this
Agreement or other Loan Documents;



     (b) Liens for taxes, fees, assessments or other government charges or levies, either not
delinquent or being contested in good faith and for which Borrower maintains adequate reserves on
its Books, if they have no priority over any of Bank’s security interests;



     (c) Licenses or sublicenses granted in the ordinary course of Borrower’s business and any
interest or title of a licensor or under any license or sublicense, if the licenses and sublicenses
permit granting Bank a security interest;



     (d) Leases or subleases granted in the ordinary course of Borrower’s business, including in
connection with Borrower’s leased premises or leased property;



     (e) carriers’, warehousemen’s, materialmen’s and mechanics’ and other similar liens imposed by
law arising in the ordinary course of business which are not delinquent or which are being
contested in good faith and by appropriate proceedings for which adequate reserves are being
maintained;



     (f) Liens incurred or deposits made in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other types of social security legislation and
other Liens to secure the performance and return of money bonds and other similar obligations
(exclusive of obligations for the payment of borrowed money) incurred in the ordinary course of
business, whether pursuant to statutory requirements, common law or consensual arrangements;



     (g) any interest or title of a lessor under any lease entered into by Borrower and covering
only the assets so leased;



     (h) Purchase money Liens on equipment, furniture and fixtures acquired, leased or held by
Borrower, which Liens are incurred for financing the acquisition of the equipment, furniture and
fixtures, if the Lien is confined to the property and improvements and the proceeds of the
equipment, furniture and fixtures, to the extent that the aggregate principal amount of such
indebtedness incurred does not exceed $1,000,000; and



     (i) Liens incurred in the extension, renewal or refinancing of the indebtedness secured by
Liens described in (a), (c) and (h), but any extension, renewal or replacement Lien must be limited
to the property encumbered by the existing Lien and the principal amount of the indebtedness may
not increase.


“Person” is any individual, sole proprietorship, partnership, limited liability company,
joint venture, company association, trust, unincorporated organization, association, corporation,
institution, public benefit corporation, firm, joint stock company, estate, entity or government
agency.



“Prime Rate” is Bank’s most recently announced “prime rate,” even if it is not Bank’s
lowest rate.



“Principal Funds” means Thomas Weisel Capital Management, L.P., Thomas Weisel Venture
Partners, L.P., and Thomas Weisel Healthcare Venture Partners, L.P.




- 17 -









 







“Responsible Officer” is the Chief Financial Officer, Chief Executive Officer or General
Counsel of each of the managing members of Borrower and Partners Group, as applicable.



“Schedule” is any attached schedule of exceptions.




- 18 -









 







“Subordinated Debt” is debt incurred by Borrower subordinated to Borrower’s indebtedness
owed to Bank and which is reflected in a written agreement in a manner and form reasonably
acceptable to Bank and approved by Bank in writing.




BORROWER:




THOMAS WEISEL CAPITAL MANAGEMENT LLC




	 	 	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert West
	 	 
	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	Robert West	 	 	 	 
	 

	 	Title:
	 	Chief Financial Officer	 	 	 	 






THOMAS WEISEL VENTURE PARTNERS LLC




	 	 	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert West
	 	 
	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	Robert West	 	 	 	 
	 

	 	Title:
	 	Chief Financial Officer	 	 	 	 






THOMAS WEISEL HEALTHCARE VENTURE PARTNERS LLC




	 	 	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert West
	 	 
	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	Robert West	 	 	 	 
	 

	 	Title:
	 	Chief Financial Officer	 	 	 	 






TAILWIND CAPITAL PARTNERS LLC




	 	 	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Robert West
	 	 
	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	Name:
	 	Robert West	 	 	 	 
	 

	 	Title:
	 	Chief Financial Officer	 	 	 	 






BANK:




SILICON VALLEY BANK




	 	 	 	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Julie Schneider
	 	 
	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	Title:
	 	Vice President	 	 	 	 







- 19 -