EXHIBIT 10.3
CONFIDENTIAL TREATMENT
EPIX Medical, Inc. has requested that the marked portions of this document be
accorded confidential
treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934.
Final Version
LOAN AGREEMENT
By and Between
EPIX MEDICAL, INC.
AND
SCHERING AKTIENGESELLSCHAFT
dated as of May 26, 2003
TABLE OF CONTENTS
1.
DEFINITIONS
1.1
DEFINED TERMS
1.2
OTHER DEFINITIONAL PROVISIONS
2.
THE LOANS; PAYMENT OF PRINCIPAL AND INTEREST; RELATED MATTERS
2.1
MAXIMUM PRINCIPAL AMOUNT OF LOANS; OTHER PROVISIONS RE: THE LOANS
2.2
PROCEDURES FOR DISBURSEMENTS OF FUNDS
2.3
INTEREST CALCULATIONS
2.4
PAYMENT OF PRINCIPAL AND INTEREST
2.5
OTHER PROVISIONS
2.6
PAYMENTS BY EPIX
2.7
TERMINATION
3.
CONDITIONS PRECEDENT
3.1
CONDITIONS PRECEDENT TO THE INITIAL LOAN
3.2
CONDITIONS PRECEDENT TO ALL LOANS
4.
REPRESENTATIONS AND WARRANTIES
4.1
ORGANIZATION AND QUALIFICATION
4.2
DUE AUTHORIZATION
4.3
NO DEFAULT; COMPLIANCE WITH LAWS
4.4
NO REQUIRED GOVERNMENTAL AUTHORIZATIONS
4.5
COMMISSION FILINGS; NASDAQ LISTING
4.6
INTELLECTUAL PROPERTY
4.7
NO MATERIAL ADVERSE EFFECT
4.8
PERFECTED FIRST PRIORITY LIENS
4.9
TITLE; ABSENCE OF LIENS
4.10
COMPLIANCE WITH LAWS
4.11
NO PROCEEDINGS
4.12
DELIVERY OF DOCUMENTS
4.13
NO VIOLATIONS; TAXES AND ASSESSMENTS
4.14
ENVIRONMENTAL MATTERS
4.15
OTHER REPRESENTATIONS
4.16
REPRESENTATIONS AND WARRANTIES APPLICABLE TO SUBSIDIARIES
4.17
REAFFIRMATION
5.
AFFIRMATIVE COVENANTS
5.1
MAINTENANCE
5.2
CONDITION OF COLLATERAL; NO LIENS; MAINTENANCE OF CERTAIN COLLATERAL
5.3
COMPLIANCE WITH LAWS
5.4
AFFIRMATIVE FINANCIAL COVENANTS
5.5
NASDAQ LISTING
1
5.6
NOTICE OF ADVERSE EVENTS
5.7
FINANCIAL STATEMENTS AND OTHER INFORMATION
5.8
OTHER PROVISIONS
6.
NEGATIVE COVENANTS
6.1
AMENDMENTS OF DOCUMENTS
6.2
CONSOLIDATION, MERGER, OR ACQUISITIONS; LIQUIDATION
6.3
OTHER LIENS
6.4
DISPOSITION OF ASSETS OR COLLATERAL
6.5
OTHER LIABILITIES
6.6
LOANS OR INVESTMENTS
6.7
GUARANTIES; CONTINGENT LIABILITIES
6.8
DIVIDENDS AND OTHER DISTRIBUTIONS
6.9
TRANSACTIONS WITH AFFILIATES
6.10
OTHER COVENANTS
6.11
SUBSIDIARIES
7.
EVENTS OF DEFAULT
7.1
FAILURE TO PAY
7.2
FAILURE TO PERFORM OR OBSERVE COVENANTS
7.3
SECURITY
7.4
TRANSACTION DOCUMENTS
7.5
FALSE REPRESENTATION OR WARRANTY
7.6
TERMINATION OF THE RESEARCH AGREEMENT
7.7
DEFAULT ON OTHER DEBT
7.8
CESSATION OF BUSINESS
7.9
NON-APPROVABLE LETTER FOR MS-325
7.10
INABILITY TO PAY DEBTS; BANKRUPTCY OR INSOLVENCY
7.11
CERTAIN JUDGMENTS
7.12
CHANGE OF CONTROL
8.
REMEDIES
8.1
RIGHTS UNDER TRANSACTION DOCUMENTS
8.2
RIGHTS IN GENERAL
8.3
SETOFF RIGHTS
8.4
ADDITIONAL RIGHTS TO TERMINATE THIS AGREEMENT
8.5
CUMULATIVE REMEDIES; NO WAIVER BY SCHERING
8.6
WAIVERS AND CONSENTS RELATING TO REMEDIES
8.7
POWERS OF ATTORNEY
9.
COSTS, EXPENSES AND TAXES; INDEMNIFICATION; LIMITATIONS ON SCHERING'S LIABILITY
9.1
COSTS AND EXPENSES
9.2
INDEMNIFICATION BY EPIX
9.3
LIMITATIONS ON SCHERING'S LIABILITY
2
10.
OTHER PROVISIONS
10.1
ENTIRE AGREEMENT; AMENDMENTS; SCHERING'S CONSENT
10.2
SPECIFIC PERFORMANCE
10.3
NOTICES
10.4
NO THIRD PARTY BENEFICIARIES
10.5
JOINT EFFORTS
10.6
GOVERNING LAW
10.7
OTHER PROVISIONS
10.8
NO AGENCY RELATIONSHIP
10.9
FURTHER ACKNOWLEDGMENTS AND AGREEMENTS OF EPIX AND SCHERING
3
EXHIBITS
Exhibit A
Research Agreement
Exhibit B
Note
Exhibit C
Security Agreement
Exhibit D
Epix Investment Policy and Guidelines
SCHEDULES
Schedule
4.5
Material Contingent Liabilities
Schedule
A
Loans
4
LOAN AGREEMENT
This Loan Agreement (this "Agreement") is made as of May 26,