EXHIBIT 10.1
BANK CREDIT FACILITY CONTRACT
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Translated From Japanese
May 16, 2007
K.K. Sumitomo Mitsui Banking Corporation, Nakano-Branch
BORROWER
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ADDRESS:
Nishi-Shinjuku Showa Xxxx. X00X 0-00-00, Xxxxx-Xxxxxxxx, Xxxxxxxx-xx, Xxxxx
XX Partners K.K.
NAME:
Representative Director Xxxxxx Xxxx
GUARANTOR
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ADDRESS:
Shinjuku Island Xxxx. 0X, 0-0-0 Xxxxx Xxxxxxxx, Xxxxxxxx-xx, Xxxxx
NAME:
Tokyo Guarantee Association
The borrower, upon agreement with the bank's credit facility of K.K. Sumitomo
Mitsui Banking Corporation, will transact bank over-drafts based on the
guidelines below.
1. Loan Amount: YEN 50,000,000
2. Purpose: Working Capital
3. Borrowing Date: May 16, 2007
4. Expiration Date: April 30, 2014
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5. Repayment of Principal: Between December 31, 2007 and April 30, 2014,
repayment to be made at the end of month for amount of 640,000 JPY. Final
payment of loan for 720,000 JPY.
6. Borrowing Interest Rate: The stated base rate in 7 below and additionally the
spread rate of 8 below.
7. Basic Interest Rate: Short Term Prime rate
8. Spread: 2.375% p.a.
9. Transaction Fee: The Borrower shall pay the amount of YEN 2,750,625 to
the Tokyo Guarantee Association for acting as sole guarantor of the loan.
10. Default Interest Rate: 14.00% p.a. based on the principal amount
11. Calculation of Interest: Interest will be calculated on 365 days in a year.
The period of borrowing will include the day after the payment of interest up to
the next interest payment date.
13. Treatment of Bank Holidays: If the date required for repayment of principal
or interest falls on a non-working day then the following working day shall be
used as the repayment date.
14. Designated Account:
Branch Name Saving Type Account Number
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Nakano Normal Account
Account Name: Global Hotline K.K.
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MITSUI SUMITOMO BANK STANDARD LOAN TERMS AND CONDITIONS
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Translated From Japanese
1. Changing Interest rate
(1) The Borrower shall agree that the Bank will change interest
rate in calculation term depending on money market.
(2) In case standard interest rate is cancelled or changed,
interest rate will be issued by the Bank.
(3) After the Bank changing interest rate, the Bank shall charge
the previous amount. After a while the Bank shall charge the
difference from the Borrower's specified bank account.
2. Automatic Deduction Repayment and Interest Rate
(1) The Bank shall take the amount of repayment and interest rate
out from the Borrower's specified bank account without any
notice.
(2) In the event the Borrower fails to repay the loan due to not
enough money in the bank account, the Bank has the right to
implement the payment delay compensation in stead of deducting
the payment.
(3) About above, the Borrower agree if there is another bank
account or any way to make payment, the Bank shall chose the
way to make payment or the order.
3. Cancellation before Starting Loan
The Borrower shall confirm interest rate will be determined by the Bank
on the day the Borrower apply for the loan or two days before interest
payment day. The Borrower can not cancel the loan after entering into
contract, even if it is before starting loan.
4. Cancellation Penalty Fee before Starting Loan
(1) If any trouble shall occur due to unavoidable circumstance the
Borrower may cancel the loan with agreement by the bank. The
Borrower has to pay penalty.
(2) Before starting loan if the reason on Article9 occurred, the
loan will be cancelled. The Borrower has to pay the penalty.
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5. Changing Loan Conditions
(1) The Borrower can not change any loan conditions after entering
into this contract. ( included before starting loan)
(2) If there is any unavoidable circumstance, the Borrower can
change the loan conditions with the Bank's agreement. The
Borrower has to notify the changing 1 month before the day
Borrower expects to change. The Borrower has to pay any
related fee to change the conditions.
6. Prepayment
(1) The Borrower can not change method of repayment under this
contract without agreement with the Bank.
(2) The Borrower has to notify any prepayment 1 month before the
day the Borrower expects to execute with agreement with the
Bank. If the Borrower can not get agreement by the bank, it
will not be executed.
(3) The bank determines the date of prepayment and the Borrower
has to pay repayment, unpaid interest rate and penalty fee.
7. Penalty of Prepayment and Loss of Profit in Term
Just pay penalty.
8. Provide and Dispose Collateral
(1) When there is a reason for which Bank needs to preserve the
collateral given to Bank such as it gets damaged, extinct or
its value decreases for a reason not attributable to Bank or
when the credibility of Client or its guarantor decreases,
Clients shall provide Bank with a collateral or a guarantor
approved by Bank or add collateral or a guarantor.
(2) When Clients defaults on payment, Bank can dispose the
collateral not in a legal procedure but in a generally
accepted way, timing and price. Bank can deduct the fees from
the acquired amount and allot it to discharge Client's debt.
When it does not discharge all of Client's debt, Client shall
pay the rest immediately. If it is more than Client's debt,
Bank will return the rest to whom the collateral belongs.
(3) When Clients defaults on payment, bank can do same as above to
client's occupied estate, handprints, and other securities.
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9. Loss of Profit in Term
(1) If at least one of the following occurs to the bank, without
any bank peremptory notice from the borrower, the bank will
lose all of its profit due to the liability, immediate
settlement to the liability is required.
A) In the case of the following statements, bank
suspension, bankruptcy, civil rehabilitation
proceedings, corporate reorganization proceedings,
initiation of company reorganization or special
liquidation.
B) When received a suspension of xxxx clearinghouse.
C) When a client or his deposit guarantor and other
tentative garnishments, to send a writ and
notification of protective garnishment and
garnishment
D) In addition client deposit guarantor and other
tentative garnishments which bank provide approved
collateral, or client noticed to bank in writing
promptly that come up with a guarantor,
(2) And if bank admits a profit in term as before, bank notices to
client that in writing.
A) When the notification what bank send to client
returns, if client is not in.
B) If at least only one case of following items will
come into, by the demand of bank, client will lose
all profits and immediately to perform of Client's
debt.
C) When the Client is not to be late for discharging to
the bank even in a part of Client's debt. When to be
a garnishment or to start an auction procedure for
subject matters of collateral.
D) When client will violate an agreement between bank
and client. Guarantor correspond to any of the
previous articles and these every item.
E) When the case will be considerable causes to need the
previous articles and other approved collateral.
(3) In previous article, if the invoice from bank will arrive late
or not arrive, the reason why client by the client
responsibility, which client will not notice of removal, or
the invoices will not be delivered, the profit in term will
lose scheduled time.
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10. Calculation in Case of Off-set by the Bank
(1) If the bank has to fulfill the liability against the borrower,
due to arrival of the due date, loss of profit upon due date,
occurrence of discounted discharge, compensation discharge, or
due to other reasons, the borrower can off-set the liability
of the bank deposit, and any other liabilities regardless of
the liability due-dates at any time.
(2) As to the bank deposit and other liabilities, the advance
notice and prescribed procedure can be omitted, refunded,
cancelled, and with the income the discharge to the liability
is said to be made.
(3) Upon the calculation in case of off-set stated in the
preceding section, the calculation of interest due to
liability discharge, discounted fare, loss amount and balance
amount are based up until the date of the off-set calculation.
The interest rate and price rate are to be set by the
borrower, and as to the foreign exchange the rate is applied
at the time of calculation.
11. Calculation in Case of Off-set by the Borrower
(1) The bank can offset the borrower's bank deposit and other
liability that are in the period of discharge, before the
liability due date.
(2) If the bank off-sets the discount xxxx before the expiration
date in accordance to the preceding section, the bank can
off-set by paying the redemption discharge stated on the xxxx
(3) If the off-set is approved through the preceding two sections,
the off-set notice should be on paper, and the off-set
deposit, and other liability right certification, book, should
be submitted immediately to the borrower.
(4) In the case of off-set, the liability discharge, discounted
fare, loss amount and balance amount are based upon until the
date of off-set notice receipt. Moreover, as to interest,
price rate, and such, unless there is a fixed rule between the
bank and the borrower the borrower can set a rule. As to the
foreign exchange the rate is applied at the time of
calculation. Will there be a special rule for the service
charge for the before-deadline discharge, it is set according
to the rule.
(5) In the case of off-set from the bank to the borrower, due to
accidents requiring insurance stated by the deposit insurance
law, the borrower can follow the deposit regulations and trust
contract set by the borrower, according to the first section
in this article and/or preceding sections. However, should
there be a difference in regulations between the first section
in this article and the deposit regulation and trust contract
set by the borrower, the latter is applied.
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12. Assignment of the Appropriation by the Bank
(1) In the case of off-set calculation by the settlement or
article 10, if there is not enough to defunct the whole
liability from the bank to the borrower, the borrower is
acknowledged to be appropriated, and the bank does not object
to the appropriation. In this case, the borrower will notify
the appropriation results to the bank in writing.
13. Assignment of the Appropriation by the Borrower
(1) In the case of bank off-setting by article 11, if there is not
enough to defunct the whole liability from the bank to the
borrower, the bank is able to appropriate according to the
one-by-one manner assigned by the paper from the bank to the
borrower.
(2) If the bank has not assigned the preceding section, the
borrower is able to appropriate according to the opportune
one-by-one manner, and the bank does not object to the
appropriation. In this case, the borrower will notify the
appropriation results to the bank in paper.
(3) If there is a possibility for the liability convention of the
borrower to be obstructed, by considering the assignment of
the first section, pledge, possession of the certification,
importance, difficulty of the disposal, length of liquidation
period, settlement expectation for the discount bills, it is
possible to appropriate according to the assignment by the
borrower. In this case, the borrower will notify the
appropriation results to the bank in paper.
(4) If the borrower appropriates through the preceding 2 sections,
unexpired liability for the bank will be considered as
expired, and liability redemption will be applied to the
discount bills prior to expiration. For the payment
acceptance, compensation claim debt in advance will be
considered to have been paid by the bank, and the borrower is
able to assign the one-by-one method.
14. Risk of Loss and Exemption Clauses
(1) The Bank will make document and debt paper and so on, when the
Borrower loses due to natural disaster. The Borrower has to
deal with any loss and damage.
(2) Damage of Collateral will be dealt with by Borrower
(3) Loss and damage by forged signature will be dealt by the
Borrower
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15. Bearing Expense and Commission
(1) The Borrower bear the expense of loan plan commission, revenue
stamp, registration fee, notarization, reimbursement and any
penalty fee for prepayment, relevant to this loan Agreement or
relevant to the guaranty under this Loan Agreement.
(2) At a rule the Borrower will not have loan plan commission
refund.
16. Automatic Deduction Expense
(1) The Bank shall take any fee and penalty out from the
Borrower's specified bank account without any notice.
(2) Under this contract the Borrower need neither filling out a
check nor preparing forms to make payment.
17. Assignment
(1) Borrower shall allow the Bank to transfer all or part of the
loan debt based on this contract to other banks in the future.
Borrowers should confirm that the banking transaction rules
and any articles under this contract will be applied
continuously after transferring the debt.
(2) Borrower agrees that Bank shall manage and collect debt as a
representative during the transfer period.
18. Special terms and conditions for Joint Guarantor
(1) Joint guarantor and Borrower shall be jointly liable for the
loan.
(2) Joint guarantor shall not use the Borrower's saving or another
loan to offset the payment.
(3) Joint guarantor shall not clam exemption clauses, even if the
Bank change or terminate collateral or another guarantee.
(4) When Joint guarantor performs a guarantee obligation, joint
guarantor shall not use the right that the Bank provides
during agreement between Borrower and Bank. Also if the Bank
ask joint guarantor for assign the right, joint guarantor has
to provide it.
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(5) If joint guarantor guarantee another debt between the Borrower
and the Bank, it will not be changed by this guarantee
contract. In case the guarantor guarantees another limited
debt, it will be added this amount of debt.
(6) If joint guarantor guarantees another agreement between the
Borrower and the Bank in the future, it will the same as
above.
18.2 Notification of Guardian
Guardian's name and any other need has to be notified to the bank in
writing.
19. Reconsidering Contract Conditions
(1) In the case of following statements during the term of this
contract Bank shall ask borrower for consultation of changing
interest rate for loan or Spread. Borrower shall accept the
consultation.
A) Interest coverage ratio under 1
It will be examined based on statement of profits and
losses.
Method of calculation (sales profit + interest
income)/interest expenses
B) Operating at a loss for successive 2 years.
It will be examined based on statement of profits and
losses after settling accounts. It will be also
considered that borrower operates at a loss over
three years.
C) Dept exceeds assets
To be based on the examined balance sheet after
settling accounts.
D) In the event that Bank for whatever reason should
consider changing the contract conditions occurs.
(2) Borrower can not avoid the rule about recalling loan under
this contract, even when Borrower is in the situations above.
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20. Updated Corporate Information
(1) Client should report any change in the seal, name, trade name,
representative, address, and any other reported particulars,
immediately in writing.
(2) Failing to practice the preceding, or not receiving notices
from the borrower, and if the notice or the documents sent by
the borrower are delayed or do not reach, they will be
considered as reached on schedule.
21. Report and Research
(1) Client should submit balance sheet, statement of profits and
losses, and copies of documents acknowledged by the bank such
as research on the client's property, management and updates.
(2) Client should submit other documents as requested by bank in a
timely manner related to ongoing performance of the company.
(3) Client should report any material matter to the bank in a
timely manner.
(4) If the client is an individual, he/she is to report any
information related to family court issues in a timely manner.
22. Agreement of usage purpose of information and providing information to the
third party.
23. Changing Laws
24. Notarized Document
Whenever the bank ask the Borrower for preparing notarized document,
the borrower has to start prepare it.
25. Ruling Laws, Jurisdiction
This contract and this ruling law and any transactions between the
client and the bank based on this contract are carried out under
Japanese laws.
If it is necessary to proceed to a the court case about transactions
based on this contract, local courts in Osaka Prefecture and Tokyo, or
the courts which have jurisdiction (over) each location of
correspondents shall hold jurisdiction.
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