Exhibit 10.7
$5,000,000
LOAN AGREEMENT
BETWEEN
THE GOVERNMENT OF THE STATE OF SARAWAK
AND
SARAWAK MEDICHEM PHARMACEUTICALS INC.
(A USD 5,000,000.00 Loan to Sarawak MediChem Pharmaceuticals Inc. to complete
Phase 1 and part finance Phase II Calanolide A Clinical Trials).
Date:
1
AN AGREEMENT made this 25th day of November 1999 between THE GOVERNMENT OF THE
STATE OF SARAWAK (hereinafter called "the Lender" of the one part and SARAWAK
MEDICHEM PHARMACEUTICALS INC., a Delaware corporation (hereinafter called the
"Borrower") of the other part.
WHEREAS at the request of the Borrower, the Lender has agreed to lend to the
Borrower a sum of money amounting to US DOLLARS FIVE MILLION ONLY (USD
5,000,000.00) (hereinafter called "the Loan") for the purpose specified in Part
I of the Second Schedule (hereinafter called "the Project") upon the terms and
conditions hereinafter appearing.
NOW THEREFORE IT IS HEREBY AGREED AS FOLLOWS:-
1. AMOUNT OF LOAN
Subject to the terms of this Agreement, the amount of Loan shall be US
DOLLARS FIVE MILLION ONLY (USD 5,000,000.00)
2. PURPOSE OF LOAN
2.1 The Loan shall be applied by the Borrower for the purpose stipulated
in Part I of the Second Schedule hereto upon the terms and
conditions hereinafter contained.
2.2 The proceeds of the Loan shall not be applied for any other purpose
without the prior consent in writing of the Lender.
[STAMP]
2
3. RELEASE OF LOAN
3.1 The Loan shall be released by the Lender to the Borrower in the
manner and at the times stipulated in the First Schedule.
3.2 Every request for any release of the Loan shall be made in the Form
prescribed in Part II of the Second Schedule and that Form must be
accompanied by an up to date progress report on the Project which
shall contain, inter alia, a time schedule for the implementation of
the Project and the financial requirement or commitment in respect
of each of the stages of implementation thereof.
3.3 Within seven (7) days after the release of any installment of the
Loan to the Borrower, the Borrower shall deliver to the Lender a
receipt thereof signed by the Borrower or by his duly authorized
representative, in the form set out in Part III of the Second
Schedule hereto.
3.4 Notwithstanding the provisions of sub-clause 3.1, the Lender shall
be entitled to withhold or defer the release of any portion of the
Loan or to cancel or withdraw any part of the Loan which has not
been released to the Borrower upon the occurrence of any of the
events stipulated in clause 5.3 below, or if the Lender is of the
opinion that based on the progress report referred to in clause 3.2,
the implementation of the Project has not been satisfactory.
3
4. INTEREST
4.1 The Loan is subject to interest of 7.75% per annum compounded
annually and calculated on the basis of a 365-day year.
4.2 If the Borrower fails to effect repayment of the Loan punctually on
the date when the same becomes due under clause 5.1 hereto, then,
without prejudice to the rights of the Lender under clause 5.3, the
Borrower shall pay interest at the rate of 7.75% per annum on the
sum of loan plus interest overdue from the date such sum is due for
payment under the Third Schedule until the date of actual payment
thereof and such interest shall be paid by the Borrower to the
Lender on demand.
5. REPAYMENT
5.1 The Borrower shall repay the Loan in one lump sum (principal plus
interest) on the 4th anniversary date from date of first draw down
of the Loan which took place on 19th March, 1999.
5.2. The Borrower shall be entitled, at its option, at the expiration of
not less than thirty (30) days' notice given in writing to the
Lender to repay either the whole or any part principal amount of the
Loan outstanding on the expiration of the said notice.
5.3(1) The Loan shall become due and immediately payable, and the Lender
shall be entitled forthwith to take appropriate action to receive
the same upon the occurrence of any of the following events, viz:-
(a) if the Borrower shall default in the payment of any principal
moneys or interest thereon on the date when the same becomes
due under the Third Schedule whether formally demanded or not;
4
(b) if the Borrower shall default in the performance or observance
of any other covenants, stipulations, conditions or obligations
on the part of the Borrower to be performed or observed under
this Agreement;
(c) if, in the opinion of the Lender, the progress of the Project
is unsatisfactory because of gross negligence by Borrower or
the same has been abandoned or in danger of being abandoned or
has not been satisfactorily completed;
(d) if a distress or execution or other process of a Court of
competent jurisdiction has been levied upon or issued against
the Project or any of the property comprised therein;
5.3(2) When the principal amount of the Loan becomes due and payable and if
Borrower defaults as under 5.3(1)(a) as above provided, the Lender
may at its option, appoint officers generally to take over the
control and management of the Project or the affairs of the Borrower
until such time as the Loan shall be repaid in full to the Lender.
6. REPORTS
6.1 Until the full and final settlement of the Loan, the Borrower shall
furnish to the State Financial Secretary as from the date of this
Agreement and thereafter at quarterly intervals, such reports as may
from time to time be required by the State Financial Secretary
regarding the financial status or position of the Borrower and the
progress of the implementation of the Project, and to notify the
Lender of any event, circumstance or occurrence which may have an
adverse impact on the financial position of the Borrower.
5
6.2 The Borrower shall promptly inform, the Lender of any condition or
circumstance which may interfere or threaten to interfere with the
successful implementation of the Project or with the maintenance of
the service thereof.
7. UNDERTAKINGS
7.1 The Borrower irrevocably and unconditionally represents that it has
taken all the necessary corporate and other actions to authorise the
execution, delivery and performance of this agreement.
7.2 The Borrower hereby undertakes to apply the Loan for the purpose as
set out in Part I of the Second Schedule hereto and not to apply the
same for any other purposes. The breach of this clause shall entitle
the Lender to demand for full repayment of the Loan outstanding at
the date of such breach.
7.3 The Borrower hereby warrants and undertakes that in addition to the
proceeds of the Loan, it has, and will apply, such other funds,
facilities, services and other resources that it has available which
may be required for the successful implementation of the Project as
described in the Second Schedule.
7.4 The Borrower hereby undertakes that the Project Work financed in
part or in whole by the Loan shall be completed speedily and
successfully with all due diligence, efficiency and in conformity
with sound administrative and management practice.
6
7.5 Whenever agents, consultants, and advisers are appointed by the
Borrower for the execution of the Project, such appointment shall
comply with the provisions of the Statutory Bodies (Accounting and
Financial Procedure) Ordinance, 1995.
7.6 The Borrower shall in consultation with the Lender ensure that the
tariffs, rentals and revenue for the use, sale or disposal of the
products, developed or produced through the successful
implementation of the Project are consistent with sound financial
and commercial practices and generate sufficient revenue to cover
operating expenditure including the costs of maintenance and effects
of depreciation.
7.7 The Borrower hereby undertakes to afford or arrange to afford all
reasonable opportunities and facilities to authorised
representatives of the Lender to inspect such financial records of
the Borrower as are required to be kept by the Borrower under the
applicable law, and to observe the progress of the Project, and the
Borrower shall give such assistance as may be required for such
inspection and observation to be carried out.
7.8 This agreement supersedes all previous loan agreement, arrangements,
promises, undertaking or understanding between the parties relating
to the loan.
8. COSTS AND EXPENSES
Each party shall bear and pay its own legal fees incurred in connection
with the preparation and execution of this Agreement. Stamp duties, if any,
incurred in the stamping of this Agreement shall be borne by the Borrower.
7
12. REMEDIES
12.1 No delay in exercising or omission to exercise any right, power or
remedy accruing to the Lender under this Agreement upon any default
by the Borrower shall impair any such right, power or remedy or be
construed to be a waiver thereof or any acquiescence in such
default; nor shall the action of the Lender in respect of any
default of the Borrower or any acquiescence in any default affect or
impair any right, power or remedy of the Lender in respect of any
other or subsequent default.
12.2 The terms and conditions of this Agreement may be amended from time
to time subject to the agreement by the Lender by an exchange of
letter between the Lender and the Borrower.
9
IN WITNESS WHEREOF THE PARTIES HERETO HAVE SET THEIR HANDS AND SEAL AT THE DAY
AND YEAR FIRST ABOVE WRITTEN.
Signed by the State Financial )
Secretary for and on behalf of )
the GOVERNMENT OF THE ) /s/ Datuk Wan Ali Tuanku Yubi
STATE OF SARAWAK (the Lender) ) -----------------------------
in the presence of:
Witness:
/s/ Xxxxx Xxxxx
-----------------------------
XXXXX XXXXX
PEJABAT SETIAUSAHA KEWANGAN NEGERI
PENGARAH PEROLEHAN
The Common Seal of )
SARAWAK MEDICHEM )
PHARMACEUTICALS INC. )
(the Borrower) was hereunto ) /s/ Xxxxxxx X. Xxxxxx
affixed in the presence Of ) ----------------------------
XXXXXXX X. XXXXXX
PRESIDENT
Witness:
/s/ Xxxx X. Xxxxx
-----------------
10
FIRST SCHEDULE
RELEASE OF LOAN
DATE OF RELEASE AMOUNT OF RELEASE PROGRESSIVE TOTAL
--------------- ----------------- -----------------
(US Dollars) (US Dollars)
1. 19th March 1999 500,000 500,000
2. 23rd April 1999 600,000 1,100,000
3. 11th May1999 500,000 1,600,000
4. 07th June 1999 400,000 2,000,000
5. 26th July 1999 500,000 2,500,000
6. 23rd August 1999 500,000 3,000,000
7. 17th September 1999 1,000,000 4,000,000
8. 22nd September 1999 1,000,000 5,000,000
11
SECOND SCHEDULE
PART I
THE PROJECT
The whole US DOLLARS FIVE MILLION ONLY (USD 5,000,000.00) shall be used to
complete Phase 1 Clinical Trials and part finance Calanolide A Clinical Trials
Phase II.
12
SECOND SCHEDULE
PART III
RECEIPT OF LOAN
Lo
an Agreement No. : Date:
Amount of Loan :
Date of Payment to Borrower :
1 hereby acknowledge receipt of the sum of US Dollars 3,000,000
8/31/99 /s/ Xxxxxxx X. Xxxxxx
--------------- ---------------------------
Date of Receipt Signature of Borrower
14
THIRD SCHEDULE
REPAYMENT SCHEDULE
1. Loan Amount : US$5,000,000.00
2. Project : Sarawak MediChem Pharmaceuticals Inc.
3. Loan Period : 48 Months
4. Repayment Date : 19.03.2003
5. Interest Rate : 7.75% per annum
(compounded annually and calculated on the
basis of a 365-day year)
DETAILS OF RELEASE
Release No. Effective Date of Loan Amount Released Aggregate Amount
----------- ---------------------- --------------- ----------------
(USD)
1. 19.03.1999 500,000.00 500,000.00
2. 23.04.1999 600,000.00 1,100,000.00
3. 11.05.1999 500,000.00 1,600,000.00
4. 07.06.1999 400,000.00 2,000,000.00
5. 26.07.1999 500,000.00 2,500,000.00
6. 23.08.1999 500,000.00 3,000,000.00
7. 17.09.1999 1,000,000.00 4,000,000.00
8. 22.09.1999 1,000,000.00 5,000,000.00
Compounded
No. Repayment Date Interest Principal Total
-------------------------------------------------------------------------
USD USD USD
1 19.03.2003 1,586,248.14 5,000,000.00 6,586,248.14
---------------
Repayment in one lump sum: US$6,586,248.14
/s/ Datuk Wan Ali Tuanku Yubi /s/ Xxxxxxx X. Xxxxxx
------------------------------ -------------------------
Lender Signature Borrower Signature
Datuk Wan Ali Tuanku Yubi XXXXXXX X. XXXXXX
------------------------- -------------------------
Name Name
State Financial Secretary PRESIDENT
------------------------- -------------------------
Designation Designation
25th November 1999 8/31/99
------------------------- -------------------------
Date Date
15
LO
AN AGREEMENT
BETWEEN
THE GOVERNMENT OF THE STATE OF SARAWAK
AND
SARAWAK MEDICHEM PHARMACEUTICALS INC.
(A USD2,000,000.00 Loan to Sarawak MediChem Pharmaceuticals Inc. to part finance
the costs of Phase I/II Safety & Efficacy Confirmation Study, Phase I/II
Drug-Drug Interaction Study and Pilot Phase II Study covering period from
October 2000 to March 2001)
Date:
AN AGREEMENT made this day of 2000 between THE GOVERNMENT
OF THE STATE OF SARAWAK (hereinafter called "the Lender") of the one part and
SARAWAK MEDICHEM PHARMACEUTICALS INC., a Delaware corporation (hereinafter
called the "Borrower") of the other part.
WHEREAS the Borrower has requested and the Lender has agreed to lend to the
Borrower a sum of money amounting to US DOLLARS TWO MILLION ONLY (USD
2,000,000.00) (hereinafter called "the Loan") for the purpose specified in Part
I of the Second Schedule (hereinafter called "the Project") upon the terms and
conditions hereinafter appearing.
NOW THEREFORE IT IS HEREBY AGREED AS FOLLOWS:-
1. AMOUNT OF LOAN
Subject to the terms of this Agreement, the amount of Loan shall be US
DOLLARS TWO MILLION ONLY (USD 2,000,000.00)
2. PURPOSE OF LOAN
2.1 The Loan shall be applied by the Borrower for the purpose stipulated
in Part I of the Second Schedule hereto upon the terms and
conditions hereinafter contained.
2.2 The proceeds of the Loan shall not be applied for any other purpose
without the prior consent in writing of the Lender.
1
3. RELEASE OF LOAN
3.1 The Loan shall be released by the Lender to the Borrower in the
manner and at the times stipulated in the First Schedule.
3.2 Every request for any release of the Loan shall be made in the Form
prescribed in Part II of the Second Schedule and that Form must be
accompanied by an up to date progress report on the Project which
shall contain, inter alia, a time schedule for the implementation of
the Project and the financial requirement or commitment in respect
of each of the stages of implementation thereof.
3.3 Within SEVEN (7) days after the release of any installment of the
Loan to the Borrower, the Borrower shall deliver to the Lender a
receipt thereof signed by the Borrower or by his duly authorized
representative, in the form set out in Part III of the Second
Schedule hereto.
3.4 Notwithstanding the provisions of sub-clause 3.1, the Lender shall
be entitled to withhold or defer the release of any portion of the
Loan or to cancel or withdraw any part of the Loan which has not
been released to the Borrower upon the occurrence of any of the
events stipulated in clause 5.3 below, or if the Lender is of the
opinion that based on the progress report referred to in clause 3.2,
the implementation of the Project has not been satisfactory.
2
4. INTEREST
4.1 The Loan is subject to interest of 7.75% per annum compounded
annually and calculated on the basis of a 365 - day year.
4.2 If the Borrower fails to effect repayment of the Loan punctually on
the date when the same becomes due under clause 5.1 hereto, then,
without prejudice to the rights of the Lender under clause 5.3, the
Borrower shall pay interest at the rate of 7.75% per annum on the
sum of loan plus interest overdue from the date such sum is due for
payment under the Third Schedule until the date of actual payment
thereof and such interest shall be paid by the Borrower to the
Lender on demand.
5. REPAYMENT
5.1 The Borrower shall repay the Loan in one lump sum (principal plus
interest) on the 4th anniversary date from date of first draw down
of the Loan.
5.2. The Borrower shall be entitled, at its option, at the expiration of
not less than THIRTY (30) days' notice given in writing to the
Lender to repay either the whole or any part principal amount of the
Loan outstanding on the expiration of the said notice.
5.3(1) The Loan shall become due and immediately payable, and the Lender
shall be entitled forthwith to take appropriate action
3
to receive the same upon the occurrence of any of the following
events, viz:-
(a) if the Borrower shall default in the payment of any principal
moneys or interest thereon on the date when the same becomes
due under the Third Schedule whether formally demanded or not;
(b) if the Borrower shall default in the performance or observance
of any other covenants, stipulations, conditions or obligations
on the part of the Borrower to be performed or observed under
this Agreement;
(c) if, in the opinion of the Lender, the progress of the Project
is unsatisfactory because of gross negligence by the Borrower
or the same has been abandoned or in danger of being abandoned
or has not been satisfactorily completed;
(d) if a distress or execution or other process of a Court of
competent jurisdiction has been levied upon or issued against
the Project or any of the property comprised therein;
5.3(2) When the principal amount of the Loan becomes due and payable as
above provided, the Lender may at its option, appoint officers
generally to take over the control and management of the Project or
the affairs of the Borrower until such time as the Loan shall be
repaid in full to the Lender.
4
6. REPORTS
6.1 Until the full and final settlement of the Loan, the Borrower shall
furnish to the State Financial Secretary as from the date of this
Agreement and thereafter at quarterly intervals, such reports as may
from time to time be required by the State Financial Secretary
regarding the financial status or position of the Borrower and the
progress of the implementation of the Project, and to notify the
Lender of any event, circumstance or occurrence which may have an
adverse impact on the financial position of the Borrower.
6.2 The Borrower shall promptly inform, the Lender of any condition or
circumstance which may interfere or threaten to interfere with the
successful implementation of the Project or with the maintenance of
the service thereof.
7. UNDERTAKINGS
7.1 The Borrower irrevocably and unconditionally represents that it has
taken all the necessary corporate and other actions to authorise the
execution, delivery and performance of this Agreement.
7.2 The Borrower hereby undertakes to apply the Loan for the purpose as
set out in Part I of the Second Schedule hereto and not to apply the
same for any other purposes. The breach of this clause shall entitle
the Lender to demand for full repayment of the Loan outstanding at
the date of such breach.
5
7.3 The Borrower hereby warrants and undertakes that in addition to the
proceeds of the Loan, it has, and will apply, such other funds,
facilities, services and other resources that it has available which
may be required for the successful implementation of the Project.
7.4 The Borrower hereby undertakes that the Project financed in part or
in whole by the Loan shall be completed speedily and successfully
with all due diligence, efficiency and in conformity with sound
administrative and management practice.
7.5 Whenever agents, consultants, and advisers are appointed by the
Borrower for the execution of the Project, such appointment shall
comply with the provisions of the Statutory Bodies (Accounting and
Financial Procedure) Ordinance, 1995.
7.6 The Borrower shall in consultation with the Lender ensure that the
tariffs, rentals and revenue for the use, sale or disposal of the
products, developed or produced through the successful
implementation of the Project are consistent with sound financial
and commercial practices and generate sufficient revenue to cover
operating expenditure including the costs of maintenance and effects
of depreciation.
6
7.7 The Borrower hereby undertakes to afford or arrange to afford all
reasonable opportunities and facilities to authorised
representatives of the Lender to inspect such financial records of
the Borrower as are required to be kept by the Borrower under the
applicable law, and to observe the progress of the Project, and the
Borrower shall give such assistance as may be required for such
inspection and observation to be carried out.
7.8 This Agreement supersedes all previous agreements arrangements,
promises, undertakings or understandings between the parties
relating to the Loan.
8. COSTS AND EXPENSES
Each party shall bear and pay its own legal fees incurred in connection
with the preparation and execution of this Agreement. Stamp duties, if any,
incurred in the stamping of this Agreement shall be borne by the Borrower.
9. ARBITRATION
If any dispute shall arise between the Lender and the Borrower as to the
meaning or otherwise in connection with any matter arising out of this
Agreement, the same shall be referred to a single Arbitrator to be agreed
upon between the Lender and Borrower and the provisions of the Arbitration
Act, 1952 (Revised - 1972) (Act 93) of Malaysia with such statutory
modifications or re-enactments thereof for the time being in force shall
apply to such reference.
7
10. NOTICE
Any notice to be given to the Lender under this Agreement shall be deemed
to be duly given if delivered or addressed by prepaid registered post to
the STATE FINANCIAL SECRETARY AT HIS OFFICE IN KUCHING, and any notice to
be given to the Borrower shall be deemed to have been duly given if
delivered or addressed by prepaid registered post to THE PRESIDENT, SARAWAK
MEDICHEM PHARMACEUTICALS INC. 00000 X. XXX XXXXXX, XXXXX X, XXXXXX, XX
00000 XXX and a notice so addressed shall be deemed to have been given at
the time at which it would have been delivered in the ordinary course of
post.
11. TIME
Time wherever mentioned herein shall be of the essence of this Agreement.
12. REMEDIES
12.1 No delay in exercising or omission to exercise any right, power or
remedy accruing to the Lender under this Agreement upon any default
by the Borrower shall impair any such right, power or remedy or be
construed to be a waiver thereof or any acquiescence in such
default; nor shall the action of the Lender in respect of any
default of the Borrower or any acquiescence in any default affect or
impair any right, power or remedy of the Lender in respect of any
other or subsequent default.
8
12.2 The terms and conditions of this Agreement may be amended from time
to time, subject to the agreement of the Lender, by exchange of
letters between the Lender and the Borrower.
[THE REST OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY]
9
IN WITNESS WHEREOF THE PARTIES HERETO HAVE SET THEIR HANDS AND SEAL THE DAY AND
YEAR FIRST ABOVE WRITTEN.
Signed by the state Financial )
Secretary for and on behalf of )
THE GOVERNMENT OF THE ) ---------------------------
STATE OF SARAWAK (the lender) )
in the presence of:
Witness:
----------------------------
Name
----------------------------
Address
----------------------------
Occupation
The common seal of )
SARAWAK MEDICHEM )
PHARMACEUTICALS INC. ) /s/ Xxxxxxx X. Xxxxxx
(the Borrower) was hereunto ) ---------------------------
affixed in the presence Of ) XXXXXXX X. XXXXXX
PRESIDENT
Witness:
/s/ Xxxxxxxx X. Gryyb
----------------------------
Name
0000 Xxxxxxxxxx
Xxxxxxxxx, XX 00000
----------------------------
Address
Admin Assistant
----------------------------
Occupation
10
FIRST SCHEDULE
RELEASE OF LOAN
DATE OF RELEASE AMOUNT OF RELEASE PROGRESSIVE TOTAL
--------------- ----------------- -----------------
(US Dollars) (US Dollars)
October 2000 400,000.00 400,000.00
November 2000 400,000.00 800,000.00
December 2000 300,000.00 1,100,000.00
January 2001 300,000.00 1,400,000.00
February 2001 300,000.00 1,700,000.00
March 2001 300,000.00 2,000,000.00
11
SECOND SCHEDULE
PART I
THE PROJECT
The whole US DOLLARS TWO MILLION ONLY (USD 2,000,000.00) shall be used to part
finance the costs of Phase I/II safety & Efficacy confirmation study, Phase I/II
Drug-Drug interaction study and Pilot Phase II Study covering period from
October 2000 to March 2001.
12
SECOND SCHEDULE
PART III
RECEIPT OF LOAN
Lo
an Agreement No. : Date: 2/25/2001
Amount of Loan :
Date of Payment to Borrower :
I hereby acknowledge receipt of the sum of US Dollars 600,000
2/25/2001 /s/ Xxxxxxx X. Xxxxxx
--------------- -----------------------------
Date of Receipt Signature of Borrower
13
SECOND SCHEDULE
PART II
REQUEST FOR RELEASE OF LOAN
Ref:
Date:
To:
Setiausaha Kewangan Negeri Sarawak
Pejabat Setiausaha Kewangan Negeri
Tingkat 17-18, Wisma Bapa Malaysia
93502 Petra Jaya, KUCHING
Dear Sir,
Agreement Number : --------------------------------------------------------
Agreement Date : --------------------------------------------------------
Approved Loan : --------------------------------------------------------
Name of Project : --------------------------------------------------------
With reference to the above agreement, I would be most grateful if you could
kindly approve the release of US Dollars 600,000 on MARCH, 2001
2. I hereby certify that:-
(i) Total expenditure for the above
project as at FEBRUARY 15, 2001 = USD 1,400,000
-----------
(ii) Total loan releases that have been
received as at FEBRUARY 25, 2001 = USD 1,400,000
-----------
(iii) Amount of release requested through
this notice = USD 600,000
-----------
(iv) Balance of loan after the release in
para (iii) above = USD -0-
-----------
3. A progress report on the subject is attached.
/s/ Xxxxxxx X. Xxxxxx
-------------------------
Signature of Borrower
(CEO/GM of Borrower)
14
SECOND SCHEDULE
PART II
REQUEST FOR RELEASE OF LOAN
Ref:
Date:
To:
Setiausaha Kewangan Negeri Sarawak
Pejabat Setiausaha Kewangan Negeri
Tingkat 17-18, Wisma Bapa Malaysia
93502 Petra Jaya, KUCHING
Dear Sir,
Agreement Number : --------------------------------------------------------
Agreement Date : --------------------------------------------------------
Approved Loan : --------------------------------------------------------
Name of Project : --------------------------------------------------------
With reference to the above agreement, I would be most grateful if you could
kindly approve the release of us Dollars 600,000 on JANUARY 16, 2001
2. I hereby certify that:-
(i) Total expenditure for the above
project as at JANUARY 15, 2001 = USD 1,400,000
-----------
(ii) Total loan releases that have been
received as at DECEMBER 15, 2000 = USD 800,000
-----------
(iii) Amount of release requested through
this notice = USD 600,000
-----------
(iv) Balance of loan after the release in
para (iii) above = USD 600,000
-----------
3. A progress report on the subject is attached.
/s/ Xxxxxxx X. Xxxxxx
-------------------------
Signature of Borrower
(CEO/GM of Borrower)
15
THIRD SCHEDULE
LOAN REPAYMENT
1. Loan Amount : US$2,000,000.00
2. Project : Sarawak MediChem Pharmaceuticals Inc.
3. Loan Period : 48 months
4. Repayment Date :
5. Interest Rate : 7.75% per annum
(Compounded annually and calculated on
the basis of a 365-day year)
6. Penalty interest : 7.75% per annum
DETAILS OF RELEASE
RELEASE NO DATE OF RELEASE AMOUNT RELEASED AGGREGATE AMOUNT
---------- --------------- --------------- ----------------
(USD) (USD)
No Repayment Date Interest Principal Total
--------------------------------------------------------------------------------------------
US$ US$ US$
Repayment in one lump sum
/s/ Xxxxxxx X. Xxxxxx
------------------------ ------------------------
Lender Signature Borrower Signature
------------------------ ------------------------
Name Name
------------------------ ------------------------
Designation Designation
------------------------ ------------------------
Date Date
16
LO
AN AGREEMENT
BETWEEN
THE GOVERNMENT OF THE STATE OF SARAWAK
AND
SARAWAK MEDICHEM PHARMACEUTICALS INC.
(A USD2,000,000.00 Loan to Sarawak MediChem Pharmaceuticals Inc. to enable Phase
II Clinical Trials to proceed and in particular to ensure the completion of the
21-day Phase I/II safety and efficacy confirmation study, including the pilot
Phase II study)
Date:
COPY
AN AGREEMENT made this day of 2000 between THE GOVERNMENT
OF THE STATE OF SARAWAK (hereinafter called "the Lender") of the one part and
SARAWAK MEDICHEM PHARMACEUTICALS INC., a Delaware corporation (hereinafter
called the "Borrower") of the other part.
WHEREAS pursuant to
an agreement dated the 25th day of November, 1999 executed
between the Borrower and the Lender, at the request of the Borrower, the Lender
has lent to the Borrower USD 5,000,000 (US Dollars Five Million Only) for the
purpose and upon the terms and conditions stated therein.
WHEREAS the Borrower has requested and the Lender has agreed to lend to the
Borrower an additional sum of money amounting to US DOLLARS TWO MILLION ONLY
(USD 2,000,000.00) (hereinafter called "the Loan") for the purpose specified in
Part I of the Second Schedule (hereinafter called "the Project") upon the terms
and conditions hereinafter appearing.
NOW THEREFORE IT IS HEREBY AGREED AS FOLLOWS:-
1. AMOUNT OF LOAN
Subject to the terms of this Agreement, the amount of Loan shall be US
DOLLARS TWO MILLION ONLY (USD 2,000,000.00)
2. PURPOSE OF LOAN
2.1 The Loan shall be applied by the Borrower for the purpose stipulated
in Part I of the Second Schedule hereto upon the terms and
conditions hereinafter contained.
1
2.2 The proceeds of the Loan shall not be applied for any other purpose
without the prior consent in writing of the Lender.
3. RELEASE OF LOAN
3.1 The Loan shall be released by the Lender to the Borrower in the
manner and at the times stipulated in the First Schedule.
3.2 Every request for any release of the Loan shall be made in the Form
prescribed in Part II of the Second Schedule and that Form must be
accompanied by an up to date progress report on the Project which
shall contain, inter alia, a time schedule for the implementation of
the Project and the financial requirement or commitment in respect
of each of the stages of implementation thereof.
3.3 Within SEVEN (7) days after the release of any installment of the
Loan to the Borrower, the Borrower shall deliver to the Lender a
receipt thereof signed by the Borrower or by his duly authorized
representative, in the form set out in Part III of the Second
Schedule hereto.
3.4 Notwithstanding the provisions of sub-clause 3.1, the Lender shall
be entitled to withhold or defer the release of any portion of the
Loan or to cancel or withdraw any part of the Loan which has not
been released to the Borrower upon the occurrence of any of the
events stipulated in clause 5.3 below, or if the Lender is of the
opinion that based on the progress report referred to in clause 3.2,
the implementation of the Project has not been satisfactory.
2
4. INTEREST
4.1 The Loan is subject to interest of 7.75% per annum compounded
annually and calculated on the basis of a 365 - day year.
4.2 If the Borrower fails to effect repayment of the Loan punctually on
the date when the same becomes due under clause 5.1 hereto, then,
without prejudice to the rights of the Lender under clause 5.3, the
Borrower shall pay interest at the rate of 7.75% per annum on the
sum of loan plus interest overdue from the date such sum is due for
payment under the Third Schedule until the date of actual payment
thereof and such interest shall be paid by the Borrower to the
Lender on demand.
5. REPAYMENT
5.1 The Borrower shall repay the Loan in one lump sum (principal plus
interest) on the 4th anniversary date from date of first draw down
of the Loan which took place on 10th February 2000.
5.2. The Borrower shall be entitled, at its option, at the expiration of
not less than THIRTY (30) days' notice given in writing to the
Lender to repay either the whole or any part principal amount of the
Loan outstanding on the expiration of the said notice.
3
5.3(1) The Loan shall become due and immediately payable, and the Lender
shall be entitled forthwith to take appropriate action to receive
the same upon the occurrence of any of the following events, viz:-
(a) if the Borrower shall default in the payment of any principal
moneys or interest thereon on the date when the same becomes
due under the Third Schedule whether formally demanded or not;
(b) if the Borrower shall default in the performance or observance
of any other covenants, stipulations, conditions or obligations
on the part of the Borrower to be performed or observed under
this Agreement;
(c) if, in the opinion of the Lender, the progress of the Project
is unsatisfactory because of gross negligence by the Borrower
or the same has been abandoned or in danger of being abandoned
or has not been satisfactorily completed;
(d) if a distress or execution or other process of a Court of
competent jurisdiction has been levied upon or issued against
the Project or any of the property comprised therein;
5.3(2) When the principal amount of the Loan becomes due and payable as
above provided, the Lender may at its option, appoint officers
generally to take over the control and management of the Project or
the affairs of the Borrower
4
until such time as the Loan shall be repaid in full to the Lender.
6. REPORTS
6.1 Until the full and final settlement of the Loan, the Borrower shall
furnish to the State Financial Secretary as from the date of this
Agreement and thereafter at quarterly intervals, such reports as may
from time to time be required by the State Financial Secretary
regarding the financial status or position of the Borrower and the
progress of the implementation of the Project, and to notify the
Lender of any event, circumstance or occurrence which may have an
adverse impact on the financial position of the Borrower.
6.2 The Borrower shall promptly inform, the Lender of any condition or
circumstance which may interfere or threaten to interfere with the
successful implementation of the project or with the maintenance of
the service thereof.
7. UNDERTAKINGS
7.1 The Borrower irrevocably and unconditionally represents that it has
taken all the necessary corporate and other actions to authorise the
execution, delivery and performance of this Agreement.
7.2 The Borrower hereby undertakes to apply the Loan for the purpose as
set out in Part I of the Second Schedule hereto and not to apply the
same for any other purposes. The breach of
5
this clause shall entitle the Lender to demand for full repayment of
the Loan outstanding at the date of such breach.
7.3 The Borrower hereby warrants and undertakes that in addition to the
proceeds of the Loan, it has, and will apply, such other funds,
facilities, services and other resources that it has available which
may be required for the successful implementation of the Project.
7.4 The Borrower hereby undertakes that the Project financed in part or
in whole by the Loan shall be completed speedily and successfully
with all due diligence, efficiency and in conformity with sound
administrative and management practice.
7.5 Whenever agents, consultants, and advisers are appointed by the
Borrower for the execution of the Project, such appointment shall
comply with the provisions of the Statutory Bodies (Accounting and
Financial Procedure) Ordinance, 1995.
7.6 The Borrower shall in consultation with the Lender ensure that the
tariffs, rentals and revenue for the use, sale or disposal of the
products, developed or produced through the successful
implementation of the Project are consistent with sound financial
and commercial practices and generate sufficient revenue to cover
operating expenditure including the costs of maintenance and effects
of depreciation.
6
7.7 The Borrower hereby undertakes to afford or arrange to afford all
reasonable opportunities and facilities to authorised
representatives of the Lender to inspect such financial records of
the Borrower as are required to be kept by the Borrower under the
applicable law, and to observe the progress of the Project, and the
Borrower shall give such assistance as may be required for such
inspection and observation to be carried out.
7.8 This Agreement supersedes all previous agreements arrangements,
promises, undertakings or understandings between the parties
relating to the Loan.
8. COSTS AND EXPENSES
Each party shall bear and pay its own legal fees incurred in connection
with the preparation and execution of this Agreement. Stamp duties, if any,
incurred in the stamping of this Agreement shall be borne by the Borrower.
9. ARBITRATION
If any dispute shall arise between the Lender and the Borrower as to the
meaning or otherwise in connection with any matter arising out of this
Agreement, the same shall be referred to a single Arbitrator to be agreed
upon between the Lender and Borrower and the provisions of the Arbitration
Act, 1952 (Revised - 1972) (Act 93) of Malaysia with such statutory
modifications or re-enactments thereof for the time being in force shall
apply to such reference.
7
10. NOTICE
Any notice to be given to the Lender under this Agreement shall be deemed
to be duly given if delivered or addressed by prepaid registered post to
the STATE FINANCIAL SECRETARY AT HIS OFFICE IN KUCHING, and any notice to
be given to the Borrower shall be deemed to have been duly given if
delivered or addressed by prepaid registered post to THE PRESIDENT, SARAWAK
MEDICHEM PHARMACEUTICALS INC. 00000 X. XXX XXXXXX, XXXXX X, XXXXXX, XX
00000 XXX and a notice so addressed shall be deemed to have been given at
the time at which it would have been delivered in the ordinary course of
post.
11. TIME
Time wherever mentioned herein shall be of the essence of this Agreement.
12. REMEDIES
12.1 No delay in exercising or omission to exercise any right, power or
remedy accruing to the Lender under this Agreement upon any default
by the Borrower shall impair any such right, power or remedy or be
construed to be a waiver thereof or any acquiescence in such
default; nor shall the action of the Lender in respect of any
default of the Borrower or any acquiescence in any default affect or
impair any right, power or remedy of the Lender in respect of any
other or subsequent default.
8
12.2 The terms and conditions of this Agreement may be amended from time
to time, subject to the agreement of the Lender, by exchange of
letters between the Lender and the Borrower.
[THE REST OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY]
9
IN WITNESS WHEREOF THE PARTIES HERETO HAVE SET THEIR HANDS AND SEAL THE DAY AND
YEAR FIRST ABOVE WRITTEN.
Signed by the State Financial )
Secretary for and on behalf of )
the GOVERNMENT OF THE ) -----------------------------
STATE OF SARAWAK (the Lender) )
in the presence of:
Witness:
------------------------------
Name
------------------------------
Address
------------------------------
Occupation
The Common Seal of )
SARAWAK MEDICHEM )
PHARMACEUTICALS INC. )
(the Borrower) was hereunto ) /s/ Xxxxxxx X. Xxxxxx
affixed in the presence Of ) -----------------------------
XXXXXXX X. XXXXXX
PRESIDENT
Witness:
/s/ [ILLEGIBLE]
------------------------------
Name
0000 Xxxxxxxxxx, Xxxxxxxxx, XX
------------------------------
Address
Admin Assistant
------------------------------
Occupation
10
FIRST SCHEDULE
RELEASE OF LOAN
DATE OF RELEASE AMOUNT OF RELEASE PROGRESSIVE TOTAL
--------------- ----------------- -----------------
(US Dollars) (US Dollars)
10.02.2000 1,000,000.00 1,000,000.00
04.04.2000 1,000,000.00 2,000,000.00
11
SECOND SCHEDULE
PART I
THE PROJECT
The whole US DOLLARS TWO MILLION ONLY (USD 2,000,000.00) shall be used to enable
Phase II Clinical Trials to proceed and in particular to ensure the completion
of the 21-day Phase I/II safety and efficacy confirmation study, including the
pilot Phase II study.
12
SECOND SCHEDULE
PART II
REQUEST FOR RELEASE OF LOAN
Ref:
Date:
To:
Setiausaha Kewangan Negeri Sarawak
Pejabat Setiausaha Kewangan Negeri
Tingkat 17-18, Wisma Bapa Malaysia
93502 Petra Jaya, KUCHING
Dear Sir,
Agreement Number : ------------------------------------------------------
Agreement Date : ------------------------------------------------------
Approved Loan : ------------------------------------------------------
Name of Project : ------------------------------------------------------
With reference to the above agreement, I would be most grateful if you could
kindly approve the release of US Dollars _______________on ______________
2. I hereby certify that:-
(i) Total expenditure for the above
project as at_______________________ = USD ______________
(ii) Total loan releases that have been
received as at______________________ = USD ______________
(iii) Amount of release requested through
this notice = USD ______________
(iv) Balance of loan after the release in
para (iii) above = USD ______________
3. A progress report on the subject is attached.
/s/ Xxxxxxx X. Xxxxxx, President
--------------------------------
Signature of Borrower
(CEO/CM of Borrower)
13
SECOND SCHEDULE
PART III
RECEIPT OF LOAN
Loan Agreement No. : Date:
Amount of Loan :
Date of Payment to Borrower :
I hereby acknowledge receipt of the sum of US Dollars______________
/s/ Xxxxxxx X. Xxxxxx, President
--------------- ---------------------------------
Date of Receipt Signature of Borrower
14
THIRD SCHEDULE
LOAN REPAYMENT
1. Loan Amount : US$2,000,000.00
2. project : Sarawak MediChem Pharmaceuticals Inc.
3. Loan Period : 48 months
4. Repayment Date : 10.02.2004
5. Interest Rate : 7.75% per annum
(Compounded annually and calculated on
the basis of a 365-day year)
6. Penalty Interest : 7.75% per annum
DETAILS OF RELEASE
RELEASE NO DATE OF RELEASE AMOUNT RELEASED AGGREGATE AMOUNT
---------- --------------- --------------- ----------------
(USD) (USD)
1. 10.02.2000 1,000,000.00 1,000,000.00
2. 04.04.2000 1,000,000.00 2,000,000.00
NO Repayment Date Interest Principal Total
-----------------------------------------------------------------------
US$ US$ US$
1 10.02.2004 USD683,139.96 USD2,000,000.00 USD2,683,139.96
Repayment in one lump sum USD2,683,139.96
/s/ Xxxxxxx X. Xxxxxx
--------------------- ------------------------
Lender Signature Borrower Signature
/s/ Xxxxxxx X. Xxxxxx
--------------------- ------------------------
Name Name
--------------------- ------------------------
Designation Designation
--------------------- ------------------------
Date Date
15
LOAN AGREEMENT
BETWEEN
THE GOVERNMENT OF THE STATE OF SARAWAK
AND
SARAWAK MEDICHEM PHARMACEUTICALS INC.
(A USD500,000.00 Loan to Sarawak MediChem Pharmaceuticals Inc. to fund the
Calanolide Work Plan until the end of 2001, including completion of Phase I/II
Clinical Studies and gathering expert opinion regarding scientific and
commercial prospects for Calanolide A)
Date:
AN AGREEMENT made this day of 2001 between THE
GOVERNMENT OF THE STATE OF SARAWAK (hereinafter called "the Lender") of the one
part and SARAWAK MEDICHEM PHARMACEUTICALS INC., a Delaware corporation
(hereinafter called the "Borrower") of the other part.
WHEREAS pursuant to an agreement dated the 25th day of November, 1999 executed
between the Borrower and the Lender, at the request of the Borrower, the Lender
has lent to the Borrower USD 5,000,000 (US DOLLARS FIVE MILLION ONLY) for the
purpose and upon the terms and conditions stated therein.
WHEREAS pursuant to a subsequent agreement dated the 27th day of November, 2000
executed between the Borrower and the Lender, at the request of the Borrower,
the Lender has further lent to the Borrower USD 2,000,000.00 (US DOLLARS TWO
MILLION ONLY) for the purpose and upon the terms and conditions stated therein.
WHEREAS pursuant to a further agreement dated 20th day of January, 2001 executed
between the Borrower and the Lender, at the request of the Borrower, the Lender
has also lent to the Borrower USD2,000,000.00 (US DOLLARS TWO MILLION ONLY) for
the purpose and upon the terms and conditions stated therein.
WHEREAS the Borrower has now requested and the Lender has agreed to lend to the
Borrower an additional sum of money amounting to US DOLLARS FIVE HUNDRED
THOUSAND ONLY (USD500,000.00) (Hereinafter called "the Loan") for the purpose
specified in Part I of the Second Schedule (hereinafter called "the Project")
upon the terms and conditions hereinafter appearing.
1
1. AMOUNT OF LOAN
Subject to the terms of this Agreement, the amount of Loan shall be US
DOLLARS FIVE HUNDRED THOUSAND ONLY (USD500,000.00).
2. PURPOSE OF LOAN
2.1 The Loan shall be applied by the Borrower for the purpose
stipulated in Part I of the Second Schedule hereto upon the terms
and conditions hereinafter contained.
2.2 The proceeds of the Loan shall not be applied for any other
purpose without the prior consent in writing of the Lender.
3. RELEASE OF LOAN
3.1 The Loan shall be released by the Lender to the Borrower in the
manner and at the times stipulated in the First Schedule.
3.2 Every request for any release of the Loan shall be made in the
Form prescribed in Part II of the Second Schedule and that Form
must be accompanied by an up to date progress report on the
Project which shall contain, inter alia, a time schedule for the
implementation of the Project and the financial requirement or
commitment in respect of each of the stages of implementation
thereof.
3.3 Within SEVEN (7) days after the release of any installment of the
Loan to the Borrower, the Borrower shall deliver to the
2
Lender a receipt thereof signed by the Borrower or by his duly
authorized representative, in the form set out in Part III of the
Second Schedule hereto.
3.4 Notwithstanding the provisions of sub-clause 3.1, the Lender shall
be entitled to withhold or defer the release of any portion of the
Loan or to cancel or withdraw any part of the Loan which has not
been released to the Borrower upon the occurrence of any of the
events stipulated in clause 5.3 below, or if the Lender is of the
opinion that based on the progress report referred to in clause
3.2, the implementation of the Project has not been satisfactory.
4. INTEREST
4.1 The Loan is subject to interest of 7.75% per annum compounded
annually and calculated on the basis of a 365 - day year.
4.2 If the Borrower fails to effect repayment of the Loan punctually
on the date when the same becomes due under clause 5.1 hereto,
then, without prejudice to the rights of the Lender under clause
5.3, the Borrower shall pay interest at the rate of 7.75% per
annum on the sum of loan plus interest overdue from the date such
sum is due for payment under the Third Schedule until the date of
actual payment thereof and such interest shall be paid by the
Borrower to the Lender on demand.
3
5. REPAYMENT
5.1 The Borrower shall repay the Loan in one lump sum (principal plus
interest) on the 4th anniversary date from date of first draw down
of the Loan.
5.2. The Borrower shall be entitled, at its option, at the expiration
of not less than THIRTY (30) days' notice given in writing to the
Lender to repay either the whole or any part principal amount of
the Loan outstanding on the expiration of the said notice.
5.3(1) The Loan shall become due and immediately payable, and the Lender
shall be entitled forthwith to take appropriate action to receive
the same upon the occurrence of any of the following events, viz:-
(a) if the Borrower shall default in the payment of any
principal moneys or interest thereon on the date when the
same becomes due under the Third Schedule whether formally
demanded or not;
(b) if the Borrower shall default in the performance or
observance of any other covenants, stipulations, conditions
or obligations on the part of the Borrower to be performed
or observed under this Agreement;
(c) if, in the opinion of the Lender, the progress of the
Project is unsatisfactory because of gross negligence by the
Borrower or the same has been abandoned or in
4
danger of being abandoned or has not been satisfactorily
completed;
(d) if a distress or execution or other process of a Court of
competent jurisdiction has been levied upon or issued
against the Project or any of the property comprised
therein;
5.3(2) When the principal amount of the Loan becomes due and payable as
above provided, the Lender may at its option, appoint officers
generally to take over the control and management of the Project
or the affairs of the Borrower until such time as the Loan shall
be repaid in full to the Lender.
6. REPORTS
6.1 Until the full and final settlement of the Loan, the Borrower
shall furnish to the State Financial Secretary as from the date of
this Agreement and thereafter at quarterly intervals, such reports
as may from time to time be required by the State Financial
Secretary regarding the financial status or position of the
Borrower and the progress of the implementation of the Project,
and to notify the Lender of any event, circumstance or occurrence
which may have an adverse impact on the financial position of the
Borrower.
5
6.2 The Borrower shall promptly inform, the Lender of any condition or
circumstance which may interfere or threaten to interfere with the
successful implementation of the Project or with the maintenance
of the service thereof.
7. UNDERTAKINGS
7.1 The Borrower irrevocably and unconditionally represents that it
has taken all the necessary corporate and other actions to
authorise the execution, delivery and performance of this
Agreement.
7.2 The Borrower hereby undertakes to apply the Loan for the purpose
as set out in Part I of the Second Schedule hereto and not to
apply the same for any other purposes. The breach of this clause
shall entitle the Lender to demand for full repayment of the Loan
outstanding at the date of such breach.
7.3 The Borrower hereby warrants and undertakes that in addition to
the proceeds of the Loan, it has, and will apply, such other
funds, facilities, services and other resources that it has
available which may be required for the successful implementation
of the Project.
7.4 The Borrower hereby undertakes that the Project financed in part
or in whole by the Loan shall be completed speedily and
successfully with all due diligence, efficiency and in
6
conformity with sound administrative and management practice.
7.5 Whenever agents, consultants, and advisers are appointed by the
Borrower for the execution of the Project, such appointment shall
comply with the provisions of the Statutory Bodies (Accounting and
Financial Procedure) Ordinance, 1995.
7.6 The Borrower shall in consultation with the Lender ensure that the
tariffs, rentals and revenue for the use, sale or disposal of the
products, developed or produced through the successful
implementation of the Project are consistent with sound financial
and commercial practices and generate sufficient revenue to cover
operating expenditure including the costs of maintenance and
effects of depreciation.
7.7 The Borrower hereby undertakes to afford or arrange to afford all
reasonable opportunities and facilities to authorised
representatives of the Lender to inspect such financial records of
the Borrower as are required to be kept by the Borrower under the
applicable law, and to observe the progress of the Project, and
the Borrower shall give such assistance as may be required for
such inspection and observation to be carried out.
7.8 This Agreement supersedes all previous agreements arrangements,
promises, undertakings or understandings between the parties
relating to the Loan.
7
8. COSTS AND EXPENSES
Each party shall bear and pay its own legal fees incurred in connection
with the preparation and execution of this Agreement. Stamp duties, if any,
incurred in the stamping of this Agreement shall be borne by the Borrower.
9. ARBITRATION
If any dispute shall arise between the Lender and the Borrower as to the
meaning or otherwise in connection with any matter arising out of this
Agreement, the same shall be referred to a single Arbitrator to be agreed
upon between the Lender and Borrower and the provisions of the Arbitration
Act, 1952 (Revised - 1972) (Act 93) of Malaysia with such statutory
modifications or re-enactments thereof for the time being in force shall
apply to such reference.
10. NOTICE
Any notice to be given to the Lender under this Agreement shall be deemed
to be duly given if delivered or addressed by prepaid registered post to
the STATE FINANCIAL SECRETARY AT HIS OFFICE IN KUCHING, and any notice to
be given to the Borrower shall be deemed to have been duly given if
delivered or addressed by prepaid registered post to THE PRESIDENT, SARAWAK
MEDICHEM PHARMACEUTICALS INC. 00000 X. XXX XXXXXX, XXXXX X, XXXXXX, XX
00000 XXX and a notice so addressed shall be deemed to have been given at
the time at which it would have been delivered in the ordinary course of
post.
8
11. TIME
Time wherever mentioned herein shall be of the essence of this Agreement.
12. REMEDIES
12.1 No delay in exercising or omission to exercise any right, power or
remedy accruing to the Lender under this Agreement upon any
default by the Borrower shall impair any such right, power or
remedy or be construed to be a waiver thereof or any acquiescence
in such default; nor shall the action of the Lender in respect of
any default of the Borrower or any acquiescence in any default
affect or impair any right, power or remedy of the Lender in
respect of any other or subsequent default.
12.2 The terms and conditions of this Agreement may be amended from
time to time, subject to the agreement of the Lender, by exchange
of letters between the Lender and the Borrower.
[THE REST OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY]
9
IN WITNESS WHEREOF THE PARTIES HERETO HAVE SET THEIR HANDS AND SEAL THE DAY AND
YEAR FIRST ABOVE WRITTEN.
Signed by the State Financial )
Secretary for and on behalf of )
the GOVERNMENT OF THE ) __________________________
STATE OF SARAWAK (the Lender) )
in the presence of:
Witness:
-----------------------------
Name
-----------------------------
Address
-----------------------------
Occupation
The Common Seal of )
SARAWAK MEDICHEM )
PHARMACEUTICALS INC. )
(the Borrower) was hereunto )
affixed in the presence Of ) /s/ Xxxxxxx X. Xxxxxx
--------------------------
XXXXXXX X. XXXXXX
PRESIDENT
Witness:
/s/ [ILLEGIBLE]
-----------------------------
Name
0000 Xxxxxxxxxx
Xxxxxxxxx, XX 00000
-----------------------------
Address
Admin Assistant
-----------------------------
Occupation
10
FIRST SCHEDULE
RELEASE OF LOAN
DATE OF RELEASE AMOUNT OF RELEASE PROGRESSIVE TOTAL
--------------- ----------------- -----------------
(US Dollars) (US Dollars)
2001 500,000.00 500,000.00
11
SECOND SCHEDULE
PART I
THE PROJECT
The whole US DOLLARS FIVE HUNDRED THOUSAND ONLY (USD500,000.00) shall be used to
fund the Calanolide Work Plan until the end of 2001, including completion of
Phase I/II Clinical Studies and gathering expert opinion regarding scientific
and commercial prospects for Calanolide A.
12
SECOND SCHEDULE
PART II
REQUEST FOR RELEASE OF LOAN
Ref:
Date:
TO:
Setiausaha Kewangan Negeri Sarawak
Pejabat Setiausaha Kewangan Negeri
Tingkat 17-18, Wisma Bapa Malaysia
93502 Petra Jaya, KUCHING
Dear Sir,
Agreement Number :
----------------------------------------
Agreement Date :
----------------------------------------
Approved Loan :
----------------------------------------
Name of Project :
----------------------------------------
With reference to the above agreement, I would be most grateful if you could
kindly approve the release of US Dollars_________________on_________________
2. I hereby certify that:-
(i) Total expenditure for the above
project as at............................ = USD___________
(ii) Total loan releases that have been
received as at........................... = USD$500,000
(iii) Amount of release requested through
this notice = USD___________
(iv) Balance of loan after the release in
para (iii) above = USD___________
3. A progress report on the project is attached.
/s/ Xxxxxxx X. Xxxxxx
------------------------------
Signature of Borrower
(CEO/GM of Borrower)
13
SECOND SCHEDULE
PART III
RECEIPT OF LOAN
Loan Agreement No. : Date: 9/28/01
Amount of Loan : $500,000.00
Date of Payment to Borrower :
I hereby acknowledge receipt of the sum of US Dollars $500,000
9/28/01
--------------- ------------------------------
Date of Receipt Signature of Borrower
14
THIRD SCHEDULE
LOAN REPAYMENT
1. Loan Amount : US$500,000.00
2. Project : Sarawak MediChem Pharmaceuticals Inc.
3. Loan Period : 48 months
4. Repayment Date :
5. Interest Rate : 7.75% per annum
(Compounded annually and calculated on
the basis of a 365-day year)
6. Penalty Interest : 7.75% per annum
DETAILS OF RELEASE
RELEASE NO DATE OF RELEASE AMOUNT RELEASED AGGREGATE AMOUNT
---------- --------------- --------------- ----------------
(USD) (USD)
No Repayment Date Interest Principal Total
--------------------------------------------------------------------
US$ US$ US$
Repayment in one lump sum
/s/ Xxxxxxx X. Xxxxxx
--------------------- ------------------------
Lender Signature Borrower signature
--------------------- ------------------------
Name Name
--------------------- ------------------------
Designation Designation
--------------------- ------------------------
Date Date
15
LOAN AGREEMENT
BETWEEN
THE GOVERNMENT OF THE STATE OF SARAWAK
AND
SARAWAK MEDICHEM PHARMACEUTICALS INC.
(A USD2,500,000.00 Loan to Sarawak MediChem Pharmaceuticals Inc. to maintain and
complete the 12-month clinical development of Calanolide A and to pursue efforts
to negotiate and close a deal with a pharmaceutical company or other third
party)
Date:
STATE FINANCIAL SECRETARY'S OFFICE
AGREEMENT NO: SMP/2001/03
DATE: 29.10.01
LOAN AGREEMENT
BETWEEN
THE GOVERNMENT OF THE STATE OF SARAWAK
AND
SARAWAK MEDICHEM PHARMACEUTICALS INC.
(A USD2,500,000.00 Loan to Sarawak MediChem Pharmaceuticals Inc. to maintain and
complete the 12-month clinical development of Calanolide A and to pursue efforts
to negotiate and close a deal with a pharmaceutical company or other third
party)
Date: 29.10.01
AN AGREEMENT made this 29th day of October 2001 between THE GOVERNMENT OF THE
STATE OF SARAWAK (hereinafter called "the Lender") of the one part and SARAWAK
MEDICHEM PHARMACEUTICALS INC., a Delaware corporation (hereinafter called the
"Borrower") of the other part.
WHEREAS pursuant to an agreement dated the 25th day of November, 1999 executed
between the Borrower and the Lender, at the request of the Borrower, the Lender
has lent to the Borrower USD 5,000,000.00 (US DOLLARS FIVE MILLION ONLY) for the
purpose and upon the terms and conditions stated therein.
WHEREAS pursuant to a subsequent agreement dated the 27th day of November, 2000
executed between the Borrower and the Lender, at the request of the Borrower,
the Lender has further lent to the Borrower USD2,000,000.00 (US DOLLARS TWO
MILLION ONLY) for the purpose and upon the terms and conditions stated therein.
WHEREAS pursuant to a further agreement dated 20th day of January, 2001 executed
between the Borrower and the Lender, at the request of the Borrower, the Lender
has also lent to the Borrower USD2,000,000.00 (US DOLLARS TWO MILLION ONLY) for
the purpose and upon the terms and conditions stated therein.
WHEREAS pursuant to another further agreement dated 4th day of September 2001
executed between the Borrower and the Lender at the request of the Borrower, the
Lender has further also lent to the Borrower USD500,000.00 (US DOLLARS FIVE
HUNDRED THOUSAND ONLY) for the purpose and upon the terms and conditions stated
therein.
[SEAL]
1
WHEREAS the Borrower has now requested and the Lender has agreed to lend to the
Borrower an additional sum of money amounting to US DOLLARS TWO MILLION AND FIVE
HUNDRED THOUSAND ONLY (USD2,500,000.00) (hereinafter called "the Loan") for the
purpose specified in Part I of the Second Schedule (hereinafter called "the
Project") upon the terms and conditions hereinafter appearing.
NOW THEREFORE IT IS HEREBY AGREED AS FOLLOWS:-
1. AMOUNT OF LOAN
Subject to the terms of this Agreement, the amount of Loan shall be US
DOLLARS TWO MILLION AND FIVE HUNDRED THOUSAND ONLY
(USD2,500,000.00).
2. PURPOSE OF LOAN
2.1 The Loan shall be applied by the Borrower for the purpose
stipulated in Part I of the Second Schedule hereto upon the terms
and conditions hereinafter contained.
2.2 The proceeds of the Loan shall not be applied for any other purpose
without the prior consent in writing of the Lender.
3. RELEASE OF LOAN
3.1 The Loan shall be released by the Lender to the Borrower in the
manner and at the times stipulated in the First Schedule.
2
4.2 If the Borrower fails to effect repayment of the Loan punctually on
the date when the same becomes due under clause 5.1 hereto, then,
without prejudice to the rights of the Lender under clause 5.3, the
Borrower shall pay interest at the rate of 7.75% per annum on the
sum of loan plus interest overdue from the date such sum is due for
payment under the Third Schedule until the date of actual payment
thereof and such interest shall be paid by the Borrower to the
Lender on demand.
5. REPAYMENT
5.1 The Borrower shall repay the Loan in one lump sum (principal plus
interest) on the 4th anniversary date from date of first draw down
of the Loan.
5.2. The Borrower shall be entitled, at its option, at the expiration of
not less than THIRTY (30) days' notice given in writing to the
Lender to repay either the whole or any part principal amount of
the Loan outstanding on the expiration of the said notice.
5.3(1) The Loan shall become due and immediately payable, and the Lender
shall be entitled forthwith to take appropriate action to receive
the same upon the occurrence of any of the following events, viz:-
(a) if the Borrower shall default in the payment of any principal
moneys or interest thereon on the date when the same becomes
due under the Third Schedule whether formally demanded or not;
4
(b) if the Borrower shall default in the performance or observance
of any other covenants, stipulations, conditions or
obligations on the part of the Borrower to be performed or
observed under this Agreement;
(c) if, in the opinion of the Lender, the progress of the Project
is unsatisfactory because of gross negligence by the Borrower
or the same has been abandoned or in danger of being abandoned
or has not been satisfactorily completed;
(d) if a distress or execution or other process of a Court of
competent jurisdiction has been levied upon or issued against
the Project or any of the property comprised therein;
5.3(2) When the principal amount of the Loan becomes due and payable as
above provided, the Lender may at its option, appoint officers
generally to take over the control and management of the Project or
the affairs of the Borrower until such time as the Loan shall be
repaid in full to the Lender.
6. REPORTS
6.1 Until the full and final settlement of the Loan, the Borrower shall
furnish to the State Financial Secretary as from the date of this
Agreement and thereafter at quarterly intervals, such reports as
may from time to time be required by the State
5
Financial Secretary regarding the financial status or position of
the Borrower and the progress of the implementation of the Project,
and to notify the Lender of any event, circumstance or occurrence
which may have an adverse impact on the financial position of the
Borrower.
6.2 The Borrower shall promptly inform the Lender of any condition or
circumstance which may interfere or threaten to interfere with the
successful implementation of the Project or with the maintenance of
the service thereof.
7. UNDERTAKINGS
7.1 The Borrower irrevocably and unconditionally represents that it has
taken all the necessary corporate and other actions to authorise
the execution, delivery and performance of this Agreement.
7.2 The Borrower hereby undertakes to apply the Loan for the purpose as
set out in Part I of the Second Schedule hereto and not to apply
the same for any other purposes. The breach of this clause shall
entitle the Lender to demand for full repayment of the Loan
outstanding at the date of such breach.
7.3 The Borrower hereby warrants and undertakes that in addition to the
proceeds of the Loan, it has, and will apply, such other funds,
facilities, services and other resources that it has available
which may be required for the successful implementation of the
Project.
6
7.4 The Borrower hereby undertakes that the Project financed in part or
in whole by the Loan shall be completed speedily and successfully
with all due diligence, efficiency and in conformity with sound
administrative and management practice.
7.5 Whenever agents, consultants, and advisers are appointed by the
Borrower for the execution of the Project, such appointment shall
comply with the provisions of the Statutory Bodies (Accounting and
Financial Procedure) Ordinance, 1995.
7.6 The Borrower shall in consultation with the Lender ensure that the
tariffs, rentals and revenue for the use, sale or disposal of the
products, developed or produced through the successful
implementation of the Project are consistent with sound financial
and commercial practices and generate sufficient revenue to cover
operating expenditure including the costs of maintenance and
effects of depreciation.
7.7 The Borrower hereby undertakes to afford or arrange to afford all
reasonable opportunities and facilities to authorised
representatives of the Lender to inspect such financial records of
the Borrower as are required to be kept by the Borrower under the
applicable law, and to observe the progress of the Project, and the
Borrower shall give such assistance as may be required for such
inspection and observation to be carried out.
7
7.8 This Agreement supersedes all previous agreements arrangements,
promises, undertakings or understandings between the parties
relating to the Loan.
8. COSTS AND EXPENSES
Each party shall bear and pay its own legal fees incurred in connection
with the preparation and execution of this Agreement. Stamp duties, if any,
incurred in the stamping of this Agreement shall be borne by the Borrower.
9. ARBITRATION
If any dispute shall arise between the Lender and the Borrower as to the
meaning or otherwise in connection with any matter arising out of this
Agreement, the same shall be referred to a single Arbitrator to be agreed
upon between the Lender and Borrower and the provisions of the Arbitration
Act, 1952 (Revised - 1972) (Act 93) of Malaysia with such statutory
modifications or re-enactments thereof for the time being in force shall
apply to such reference.
10. NOTICE
Any notice to be given to the Lender under this Agreement shall be deemed
to be duly given if delivered or addressed by prepaid registered post to
the STATE FINANCIAL SECRETARY AT HIS OFFICE IN KUCHING, and any notice to
be given to the Borrower shall be deemed to have been duly given if
delivered or addressed by prepaid registered post to THE PRESIDENT, SARAWAK
MEDICHEM PHARMACEUTICALS INC. 00000 X. XXX XXXXXX, XXXXX X, XXXXXX, XX
8
60439 USA and a notice so addressed shall be deemed to have been given at
the time at which it would have been delivered in the ordinary course of
post.
11. TIME
Time wherever mentioned herein shall be of the essence of this Agreement.
12. REMEDIES
12.1 No delay in exercising or omission to exercise any right, power or
remedy accruing to the Lender under this Agreement upon any default
by the Borrower shall impair any such right, power or remedy or be
construed to be a waiver thereof or any acquiescence in such
default; nor shall the action of the Lender in respect of any
default of the Borrower or any acquiescence in any default affect
or impair any right, power or remedy of the Lender in respect of
any other or subsequent default.
12.2 The terms and conditions of this Agreement may be amended from time
to time, subject to the agreement of the Lender, by exchange of
letters between the Lender and the Borrower.
[THE REST OF THIS PAGE HAS BEEN LEFT BLANK INTENTIONALLY]
9
IN WITNESS WHEREOF THE PARTIES HERETO HAVE SET THEIR HANDS AND SEAL THE DAY AND
YEAR FIRST ABOVE WRITTEN.
Signed by the State Financial ) /s/ Chin Jew Xxx
Secretary for and on behalf of ) --------------------
the GOVERNMENT OF THE ) CHIN JEW XXX
STATE OF SARAWAK (the Lender) ) State Financial Secretary
in the presence of:
Witness:
/s/ Than Kui Nyit
Than Kui Nyit
---------------------------------------
Name
State Financial Secretary's Office
---------------------------------------
Address
Principal Assistant Secretary
---------------------------------------
(Finance)
Occupation
The Common Seal of )
SARAWAK MEDICHEM )
PHARMACEUTICALS INC. )
(the Borrower) was hereunto ) /s/ Xxxxxxx X. Xxxxxx
affixed in the presence Of ) ------------------------
XXXXXXX X. XXXXXX
PRESIDENT
Witness:
/s/ Xxxxxxxx X. Gryyb
---------------------------------------
Name
0000 Xxxxxxxxxx Xxx
Xxxxxxxxx, XX 00000
---------------------------------------
Address
Admin Assistant
---------------------------------------
Occupation
10
FIRST SCHEDULE
RELEASE OF LOAN
DATE OF RELEASE AMOUNT OF RELEASE PROGRESSIVE TOTAL
--------------- ----------------- -----------------
(US Dollars) (US Dollars)
1. Nov 2001 500,000 500,000
2. Jan 2002 500,000 1,000,000
3. March 2002 500,000 1,500,000
4. May 2002 500,000 2,000,000
5. July 2002 500,000 2,500,000
11
SECOND SCHEDULE
PART I
THE PROJECT
The whole of US DOLLARS TWO MILLION AND FIVE HUNDRED THOUSAND ONLY
(USD2,500,000.00) shall be used to maintain and complete the 12-month clinical
development of Calanolide A and to pursue efforts to negotiate and close a deal
with a pharmaceutical company or other third party as per details below :-
(a) CRO COSTS US$600,000
Estimated costs for consultants and contract research organizations
(CROs) which have been hired for clinical monitoring services; data
management; and biostatistics.
(b) PROJECT MANAGEMENT US$310,000
Estimated CRO costs for project management related to the on-going clinical
development of Calanolide A.
(c) PRINCIPAL INVESTIGATOR COSTS US$240,000
Estimated for physicians and their hospitals to screen, recruit, and treat
HIV patients enrolled onto the clinical on-going studies.
(d) ANALYTICAL COSTS US$400,000
Estimated costs for the blood plasma and other human sample analyses that
will be needed during the experimental analysis of Sarawak MediChem's
clinical studies.
12
(e) PATIENT MEDICATION US$380,000
Estimated costs to provide the patients who have been enrolled onto the
clinical studies with follow-on anti-HIV medication for 6 months after they
have participated in the studies.
(f) CONSULTANCY FEES US$230,000
Estimated costs for consultants providing HIV/AIDS expertise, and expertise
in business, marketing and licensing.
(g) ADMINISTRATION US$170,000
(h) PATENT & LEGAL FEES US$170,000
13
SECOND SCHEDULE
PART II
REQUEST FOR RELEASE OF LOAN
Ref:
Date:
To:
Setiausaha Kewangan Negeri Sarawak
Pejabat Setiausaha Kewangan Negeri
Tingkat 17-18, Wisma Bapa Malaysia
93502 Petra Jaya, KUCHING
Dear Sir,
Agreement Number : __________________________________________________
Agreement Date : __________________________________________________
Approved Loan : __________________________________________________
Name of Project : __________________________________________________
With reference to the above agreement, I would be most grateful if you could
kindly.approve the release of US Dollars 5 on ___________
2. I hereby certify that:-
(i) Total expenditure for the above
project as at_______________________ = USD___________
(ii) Total loan releases that have been
received as at______________________ = USD___________
(iii) Amount of release requested through
this notice = USD___________
(iv) Balance of loan after the release in
para (iii) above = USD___________
3. A progress report on the project is attached.
/s/ Xxxxxxx X. Xxxxxx
------------------------------
Signature of Borrower
(CEO/GM of Borrower)
14
SECOND SCHEDULE
PART III
RECEIPT OF LOAN
Loan Agreement No. : Date:
Amount of Loan :
Date of Payment to Borrower :
I hereby acknowledge receipt of the sum of US Dollars________________
/s/ Xxxxxxx X. Xxxxxx
------------- ---------------------------
Date of Receipt Signature of Borrower
15
THIRD SCHEDULE
LOAN REPAYMENT
1. Loan Amount : US$2,500,000.00
2. Project : Sarawak MediChem Pharmaceuticals Inc.
3. Loan Period : 48 months
4. Repayment Date :
5. Interest Rate : 7.75% per annum
(Compounded annually and calculated on
the basis of a 365-day year)
6. Penalty Interest : 7.75% per annum
DETAILS OF RELEASE
RELEASE NO DATE OF RELEASE AMOUNT RELEASED AGGREGATE AMOUNT
---------- --------------- --------------- ----------------
(USD) (USD)
No Repayment Date Interest Principal Total
--------------------------------------------------------------------
US$ US$ US$
Repayment In one lump sum
/s/ Xxxxxxx X. Xxxxxx
--------------------- ------------------------
Lender Signature Borrower Signature
--------------------- ------------------------
Name Name
--------------------- ------------------------
Designation Designation
--------------------- ------------------------
Date Date
16
