Loan Agreement Legal Review

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D A T E D * * t h O c t o b e r * * * * ( * ) Y A S A R K A R A B Đ B E R ( * ) M U S T A F A E R G Ü V E N C O L L E C T I V E L Y A S “ L E N D E R ” ( * ) A L Đ K E M A L O Ğ L U A S “ B O R R O W E R ” L O A N A G R E E M E N T R E F E R E N C E : C L - * * * / * / Y M / L O A N A G R E E M E N T P A G E * THIS AGREEMENT is made on the [ 20th] day of [October], * B E T W E E N (*) Yaşar Karabiber and Mustafa Ergüven residing at Atatürk Bulvarı No:*/* Çankaya- Ankara/Turkey (collectively “the Lender”); and (*) Ali Kemaloğlu having its residing at Refik Belendir Sok. No:*/* Y.Ayrancı – Çankaya- Ankara/Turkey (“the Lender”) W H E R E A S A the Borrower has requested the Lender to provide to the Borrower a loan in the amount of USD *.*.* (OnemillionfivehundredthousandAmericanDollars) for the purpose of enabling the Borrower to subscribe for *.*.* shares of USD *.* each in the Company; and, B the Lender has agreed to extend such a loan to the Borrower upon the terms and subject to the conditions hereinafter mentioned. NOW THEREFORE it is agreed as follows: * I N T E R P R E T A T I O N *.* In this Agreement: “Bank Account” means the following bank account details to which loan payment shall be made Account Holder : Ayhan Kemaloğlu Bank : GarantiBank International N.V. IBAN : NL29UGBI8263224071 “Company” means * A Construction A.Ş., a joint stock company to be formed by the Lender and the Borrower until * December * under Turkish law; “Event of Default” means the occurrence of any of the events described in Clause * hereof; “Final Payment Date” means the date which falls 120 months after the date hereof; P A G E * “Interest Period” in relation to the Loan or any Unpaid Sum means any period determined in accordance with Clause *.* hereof. “Loan” means the principal amount of USD *.*.* advanced by the Lender to the Borrower hereunder (as from time to time reduced by repayment); “Payment Date” in relation to the Loan means the day on which an instalment of principal is due to be repaid as provided in Clause * hereof; “Unpaid Sum” means the balance from time to time outstanding of any sum due and payable by the Borrower hereunder which is not paid on the due date in accordance with the provisions hereof. *.* Any reference to this Agreement to: (a) an “encumbrance” shall be construed as a reference to a mortgage, charge, pledge, lien or other encumbrance securing any obligation of any person; (b) “indebtedness” shall be construed so as to include any obligation (whether incurred as principal or as surety) for the payment or repayment of money, whether present or future, actual or contingent; (c) a “month” is a reference to a period starting on one day in a Gregorian calendar month and ending on the numerically corresponding day in the next calendar month (and references to “months” shall be construed accordingly) save that, where any such period would otherwise end on a day which is not a business day, it shall end on the next business day unless that day falls in the calendar month succeeding that in which it would otherwise have ended, in which case it shall end on the preceding business day Provided that if a period starts on the last business day in a calendar month or if there is no numerically corresponding day in the month in which that period ends, that period shall end on the last business day in that later month; (d) a “person” shall be construed as a reference to any person, firm, company, corporation, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) of two or more of the foregoing; (e) “tax” shall be construed so as to include any tax, levy, impost, duty or other charge of a similar nature (including, without limitation, any penalty payable in connection with any failure to file any required returns or failure to pay or delay in paying any of the same); and (f) the bankruptcy of a person shall be construed so as to include any equivalent or analogous proceedings under the law of the jurisdiction in which such person is resident or carries on business. P A G E * *.* “USD” denote the lawful currency of United States of America. *.* Clause headings are for ease of reference only. * T H E L O A N The Lender hereby agrees to advance the Loan to the Borrower upon the terms and subject to the conditions herein contained. * I N T E R E S T *.* The Loan shall not be interest-bearing unless and until an Event of Default shall occur and the first Interest Period shall commence upon the occurrence of such Event of Default. *.* In the event that interest becomes chargeable, the duration of each Interest Period shall be one month. *.* Subject to Clauses *.* and *.* the Borrower shall pay accrued interest on the Loan on the last day of each Interest Period. *.* The rate of interest applicable to the Loan during each Interest Period relating thereto shall be seven percent (*%) of the Loan per annum. * R E P A Y M E N T *.* The Borrower shall repay the Loan if the envisaged Company shall not be established until * December *. *.* If the envisaged Company shall be established until * December *, the loan shall be paid after the reduction of the capital contribution already provided by the Borrower. * I N C R E A S E D C O S T S If by reason of (a) any change of law or in its interpretation or administration and/or (b) compliance with any request from or requirement of any central bank or other fiscal, monetary or other authority (whether or not having the force of law) (i) the Lender incurs a cost as a result of its having entered into and/or performing its obligations under this Agreement and/or as a result of there being any amount outstanding hereunder, (ii) there is any increase in the cost to the Lender of making, funding or maintaining the Loan or (iii) the Lender becomes liable to make any payment (not being a payment of tax on its overall net income) on or calculated by reference to the amount of the Loan then the Borrower shall on demand pay to the Lender an amount sufficient to indemnify it against, as the case may be, (i) such cost, (ii) such increased cost (or such portion of such increased cost as is in the opinion of the Lender attributable to its making, funding or maintaining the Loan) or (iii) such liability. P A G E * * R E P R E S E N T A T I O N S The Borrower represents that: *.* all action required to authorise its execution of this Agreement and its performance of its obligations hereunder has been duly taken; *.* it is not in breach of or default under any agreement to which it is a party or which is binding on it or any of its assets to an extent or in a manner which might have a material adverse effect on its financial condition; *.* no action or administrative proceeding of or before any court or agency which might have a material adverse effect on its financial condition has been started or threatened; *.* its execution of this Agreement and its exercise of its rights and performance of its obligations hereunder do not constitute and will not result in any breach of any agreement, law or treaty; *.* under the laws of Turkey in force at the date hereof, it will not be required to make any deduction or withholding from any payment which it may make hereunder; *.* under the laws of Turkey in force at the date hereof, its indebtedness under this Agreement will rank at least pari passu with all its other unsecured indebtedness with the exception of that which, without notarisation, registration or any other act, is preferred by operation of law; *.* all acts, conditions and things required to be done, fulfilled and performed in order (a) to enable it lawfully to enter into, exercise its rights under and perform the obligations expressed to be assumed by it in this Agreement and (b) to ensure that the obligations expressed to be assumed by it in this Agreement are legal, valid and binding have been done, fulfilled and performed; and *.* the obligations expressed to be assumed by it in this Agreement are legal and valid obligations binding on it and its successors in accordance with their terms. * C O V E N A N T S The Borrower shall: *.* apply all amounts borrowed hereunder in or towards the subscription for *.*.* Shares of USD * each in the Company. *.* obtain, comply with the terms of and do all that is necessary to maintain in full force and effect all authorisations, approvals, licences and consents required in or by the laws and regulations of Turkey to enable it lawfully to enter into and perform its obligations under this Agreement and to ensure the legality, validity, enforceability or admissibility in evidence in Turkey of this Agreement; and *.* promptly inform the Lender of the occurrence of any event which is or may become (with the passage of time or the giving of notice or both) one of those events mentioned in P A G E * Clause *.* and, upon receipt of a written request to that effect from the Lender, confirm to the Lender that save as previously notified to the Lender no such event has occurred. * D E M A N D R E P A Y M E N T *.* If: (a) the Borrower fails to pay any sum due from it hereunder at the time, in the currency and in the manner specified herein; or (b) any representation or statement made by the Borrower in this Agreement or in any notice or other document, certificate or statement delivered by it pursuant hereto is or proves to have been incorrect or misleading in any material respect when made; or (c) the Borrower fails duly to perform any of the obligations expressed to be assumed by it in Clause *; or (d) the Borrower fails duly to perform any other obligation expressed to be assumed by it in this Agreement and such default is not remedied within thirty days after the Lender has given notice thereof to the Borrower; or (e) at any time the indebtedness of the Borrower under this Agreement does not rank at least pari passu with all its other unsecured indebtedness with the exception of that which, without notarisation, registration or any other act, is preferred by operation of law; or (f) any indebtedness of the Borrower is not paid within fourteen days of the same falling due, any indebtedness of the Borrower is declared to be or otherwise becomes due and payable prior to its specified maturity or any creditor of the Borrower becomes entitled to declare any indebtedness of the Borrower due and payable prior to its specified maturity; or (g) the Borrower is unable to pay its debts as they fall due, commences negotiations with any one or more of its creditors with a view to the general readjustment or rescheduling of its indebtedness or makes a general assignment for the benefit of or a composition with its creditors; or (h) the Borrower takes any action or other steps are taken or legal proceedings are started for its bankruptcy or for the appointment of a receiver, trustee, liquidator, judicial administrator or similar officer of any or all of its revenues and assets; or (i) the Borrower defaults in any of its obligations under the Constitutive Contract or the Shareholders Agreement entered into between the Lender and the Borrower in respect of the Company; or (j) at any time any act, condition or thing required to be done, fulfilled or performed in order (i) to enable the Borrower lawfully to enter into, exercise its rights under and perform the obligations expressed to be assumed by it in this Agreement or (ii) P A G E * to ensure that the obligations expressed to be assumed by the Borrower in this Agreement are legal, valid and binding is not done, fulfilled or performed; or (k) the Borrower repudiates this Agreement or does or causes to be done any act or thing evidencing an intention to repudiate this Agreement; or (l) the Company becomes insolvent or dissolved voluntarily or pursuant to a Court order or a petition for the appointment of a receiver or judicial administrator is filed against it; or (m) if the Borrower transfers or attempts to its shares in the Company. then and in any such case and at any time thereafter the Lender may by written notice to the Borrower declare the Loan to be immediately due and payable together with any accrued interest thereon and any other sums then owed by the Borrower hereunder or declare the Loan to be due and payable on demand of the Lender. *.* If, pursuant to Clause *.*, the Lender declares the Loan to be due and payable on demand of the Lender, then, and at any time thereafter, the Lender may by written notice to the Borrower: (a) call for repayment of the Loan on such date as it may specify in such notice (whereupon the same shall become due and payable on such date together with accrued interest thereon and any other sums then owed by the Borrower hereunder) or withdraw its declaration with effect from such date as it may specify in such notice; and/or (b) select as the duration of any Interest Period which begins whilst such declaration remains in effect a period of six months or less. * D E F A U L T I N T E R E S T A N D I N D E M N I T Y *.* Each Unpaid Sum shall bear interest calculated by reference to successive Interest Periods relating thereto each of which (other than the first) shall start on the last day of the preceding such Interest Period and the duration of each of which shall be selected by the Lender Provided that the first Interest Period relating to an Unpaid Sum which is all or all part of an amount which became due and payable otherwise than on the last day of an Interest Period relating to that amount shall be of a duration equal to the unexpired portion of that Interest Period relating to that amount. *.* The rate of interest applicable to an Unpaid Sum during an Interest Period relating thereto (both before and after judgement) shall be the percentage rate per annum which exceeds by two percent the rate which would have been applicable thereto had it been the Loan with a corresponding Interest Period. *.* Interest on an Unpaid Sum accrued under Clause *.* shall be due and payable and shall be paid by the Borrower at the end of each Interest Period relating thereto or on such other date as the Lender may specify by written notice to the Borrower. *.* The Borrower undertakes to hold harmless and indemnify the Lender on demand from and against any liability, loss or expense (including legal fees) which it may sustain or incur P A G E * as a consequence of any default by the Borrower in the due performance of any of the obligations expressed to be assumed by it in this Agreement. * * C A L C U L A T I O N S A N D E V I D E N C E O F D E B T *.* Interest shall accrue from day to day and shall be calculated on the basis of a year of 360 days and the actual number of days elapsed. *.* The Lender shall maintain accounts evidencing the amounts from time to time lent by and owing to it hereunder. *.* In any legal action or proceedings arising out of or in connection with this Agreement, the entries made in the accounts maintained pursuant to Clause *.* shall, in the absence of manifest error, be prima facie evidence of the existence and extent of the obligations of the Borrower therein recorded. * * P A Y M E N T S *.* The parties hereto acknowledge and agree that as at the date hereof the Lender has advanced the Loan to the Borrower and that the Shares have been fully subscribed. *.* On each date on which an amount is due from the Borrower hereunder, the Borrower shall make the same available to the Lender not later than *:* a.m. (İstanbul time) by payment in American Dollars and in same day funds to the account which the Lender has specified for this purpose. *.* All payments made by the Borrower hereunder shall be made free and clear of and without deduction for or on account of any set-off or counterclaim. * * P A R T I A L I N V A L I D I T Y If at any time any provision hereof is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions hereof nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired thereby. * * N O T I C E S *.* Each communication to be made hereunder shall be made in writing but, unless otherwise stated, may be made by telecopier or letter. *.* Any communication or document to be made or delivered by one person to the other pursuant to this Agreement shall (unless that other person has by fifteen days’ notice specified another address) be made or delivered to that other person at the address identified with its signature below and shall be deemed to have been made or delivered (in the case of any communication made by telecopier) when the sender receives verification of an error free transmission from the sender’s telefacsimile machine or (in the case of any P A G E * communication made by letter) when left at that address or (as the case may be) seven days after being deposited in the post postage prepaid in an envelope addressed to it at that address Provided that any communication or document to be made or delivered by the Borrower to the Lender shall be effective only when received by the Lender. *.* Each communication and document made or delivered by one party to another pursuant to this Agreement shall be in the English language or accompanied by a translation into English certified (by an officer of the person making or delivering the same) as being a true and accurate translation. * * B E N E F I T O F A G R E E M E N T *.* This Agreement shall be binding upon and enure to the benefit of each party hereto and its successors and assigns. *.* The Borrower may not assign or transfer all or any of its rights, benefits and obligations hereunder. *.* The Lender may at any time assign to any one or more banks or other lending institutions all or any part of its rights and benefits hereunder and in that event this Agreement shall thereafter be read and construed and shall have effect as if the assignee were a party hereto to the intent that the assignee shall have the same rights against the Borrower as it would have had if it had been a party hereto. *.* The Lender may disclose to a potential assignee or to any person who may otherwise enter into contractual relations with it in relation to this Agreement such information about the Borrower and this Agreement as the Lender shall consider appropriate. * C O S T S A N D E X *.* The Borrower shall from time to time on demand reimburse the Lender for all costs and expenses (including legal fees) incurred by it in or in connection with the preservation and/or enforcement of any of its rights under this Agreement. *.* The Borrower shall pay all stamp, registration or other taxes to which this Agreement or any judgement or order given or made in connection therewith is or at any time may be subject and shall from time to time on demand indemnify the Lender against any liabilities, losses, costs, claims and expenses resulting from any failure to pay or any delay in paying any such tax. * * L A W This Agreement shall be governed by and construed in accordance with the laws of the Turkey. * * J U R I S D I C T I O N *.* Each of the parties hereto irrevocably agrees for the benefit of the Lender that the Courts of İstanbul, Turkey shall have jurisdiction to hear and determine any suit, action or P A G E * proceeding, and to settle any disputes, which may arise out of or in connection with this Agreement and for such purposes irrevocably submits to the jurisdiction of such courts. IN WITNESS WHEREOF the duly authorised representatives of the parties hereto have caused the execution of this Agreement as of the day and year first before written. The Borrower Ali Kemaloğlu ____________ The Lender Yaşar Karabiber Mustafa Ergüven _____________ _____________

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