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Exhibit
10.45.1
LEASE
CONTRACT
PARTIES AND
ABBREVIATIONS
CLAUSE 1: On the one
hand, the lessor, namely Ankara Teknoloji Gelistirme Bölgesi
Kurucu ve Isletici Anonim Sirketi (The Joint Stock Corporation of
Ankara technology development region founder and operator) with
corporate seat as Cyberpark, Cyberplaza B Block 1 st floor Bilkent/ANKARA (herein after shall
be shortly referred to as Ankara Cyberpark) and on the other,
person or corporations whose corporate seat , number of trade
registration and trade title are as mentioned in the Annex
1herewith, to be referred to herein after as lessee or tenant, have
come to an agreement in the matter of granting by Ankara Cyberpark
of a lease to the tenant within the framework of conditions set
down below of the site/chattel real (hereinafter shall be referred
to in brief as leasehold) whose itemized description is as given in
Annex 1, which is an annex to hereby contract and constitutes an
integral part thereto, and hereby contract has been entered into by
and between the aforesaid parties.
ABBREVIATIONS : Abbreviations
given herein under shall have meaning in the contract as set forth
opposite of each:
Act : Act 4691on technology
development regions
Regulations : Regulations on
implementation of technology development regions
Guidelines : Guidelines dated
21.01.2003 on operation of Ankara technology development
region
Teknopark : Ankara technology
development region set up within campus area of Bilkent University
(Cyberpark)
Management plan : Operational
plan to be determined by Ankara Cyberpark and to be amended then
after time by time
Managing corporation : Ankara
Teknoloji Gelistirme Bölgesi Kurucu Ve Isletici Anonim
Sirketi
Cyberplaza : Two pieces of
building located within Ankara technology development region set up
within the campus area of Bilkent University.
SUBJECT
CLAUSE 2. It is concerned with
the assignment, within the framework of provisions of the pertinent
regulations, of the right to use to Lessee of the freehold whose
corporate seat, characteristics, itemized description and main
differentiating elements are as mentioned in Annex 1 to hereby
Contract to enable this latter to enjoy the said freehold with care
and in keeping with object which hereby Contract
pursues.
LEASE TERM
CLAUSE 3. Lease term is the term
indicated in Annex 1 to start from the date on which the freehold
is handed over to Lessee providing conditions stipulated in the
Annex to Contract are fulfilled in conformity with Contract
provisions and as from date Lessee takes delivery of the
same
LESSEE’S LEGAL AND FINANCIAL
DUTIES AND OBLIGATIONS.
CLAUSE 4.1 All and any
permission, leave, approval, authentication, registration,
certification, licensing, annotation, assignment, recording which
Lessee has to seek, obtain, take, perform by reason of its legal
obligations or as a requirement of Contract,
4.2 from and before public
authorities, governmental departments, governmental and
administrative offices, public entities and institutions, state
economic enterprises, government contribution funds, associations,
fund management and administrations, local authorities,
municipalities, administrative units attached to offices of mayor,
municipal departments, municipal police authorities, gendarmeries,
and other safety institutions and forces, health and social
assistance institutions, employment, work safety , social insurance
institutions, offices of attorney general , justice authorities,
administrative and judicial jurisdiction organs, offices of
bailiff, offices of execution and bankruptcy, registries of trade
records, customs authorities, foreign exchange offices,
professional associations, offices of Notary public, from offices
of land and ship registry In connection with hereby Contract and
with the drawing up, signature, entering into effect of the same,
with its remaining valid and in effect, with implementation,
termination, completion thereof, its becoming null and void,
liquidation, dissolution or depending upon conditions in which the
freehold are, making the same operative, running, using the same,
dissolving lease contract, return and handing over to Lessor of the
freehold and acquittal of Ankara Cyberpark, and extension,
refurbishment, renewal, assignment, correction, amendment,
duplication and authentication of duplicates which need to be made
in respect of the said, making necessary applications for,
pursuance of transactions relevant thereto and bringing such
transactions to an end, drawing up of documents, certificates,
arrangement of files and submission of the same to Ankara Cyberpark
in a way conform to regulations in effect and to Contract shall be
carried out and fulfilled by Lessee, if and when
necessary.
4.3 All and any taxes, duties,
dues, stamp duties, funds, premiums, commissions, charges, tuition
fees, inspection, control, measurement , determination fees,
damages, haulage costs, notification costs and all payments of
similar nature to be made in connection with the using, running,
working of the freehold, and from use made by Lessee, to the
exception of tax on chattel real and interests, fines for delay,
payment due to arrears, penalties, damages, costs, expenditures,
all debts arising from writs issued or from liabilities followed by
any office of bailiff or becoming in effect as a result of
arbitration award, with interests and costs relevant thereto shall
be payable by Lessee.
4.4 If Lessee fails to fulfill
obligations mentioned in the clause herein in a faultless manner,
the same shall be under obligation to immediately pay damages to
compensate all positive and negative loss and damage to be incurred
by Ankara Cyberpark and it shall fall upon its obligation to make
sure that Ankara Cyberpark gains acquittal. All transactions,
certifications and attachments thereto mentioned in clause herein
shall be under obligation Lessee bears. There shall fall upon
Ankara Cyberpark no obligation, accountability whatsoever under any
title or on grounds of statements, undertakings, operations,
transactions, doings made and carried out by Lessee.
4.5 Lessee shall be obligated to
comply with provisions of all and any act, regulations,
instructions, circular notices and with all legislations to which
Ankara Technology Development Region is subject in all and any
matter concerned.
4.6 Lessee shall be under
obligation to comply with all rules that prevail within campus area
of Bilkent University where the freehold exists.
4.7 Lessee, with the object of
fulfilling obligations taken on by Lessor within the scope of
legislation made mention of above, shall be under obligation to
perform all and any duties that fall upon itself bearing on
determination of legal entities and real persons causing damage to
upper and lower structures of Teknopark and on compensation there
from of such loss and damage.
4.8 Lessee shall further be
obligated to display doings which it pursues in compliance with
object mentioned in the relevant Act and to grant permission for
Ankara Cyberpark to make required inspections originating from
legislation in effect in connection with activities conducted by
itself.
4.9 Lessee, whom shuns away from
abiding by legal obligations to arise from legislation in effect
shall be cautioned by Ankara Cyberpark, and in the event no measure
is taken to amend fault /deficiency indicated or in cases this is
reiterated, then Lessee shall be ordered to move from Teknopark on
the grounds of legislation with which Ankara Cyberpark is
entitled.
STATEMENTS
CLAUSE 5.1 Lessee states,
declares Ankara Cyberpark and undertakes that their firm,
corporation is a body corporate founded, established, incorporated
within the Republic of Turkey in conformity with legislation in
effect at the corporate seat mentioned in the Annex 1, entered into
and recorded into the records of Trade Registry indicated in the
said Annex, acting thereat, that their corporation is entitled to
issue certificate, correspondences, documents, to grant guarantees,
undertakings to be used in transactions having connection to hereby
Contract, to set their hands under such documentary evidences to
execute, draw, confer, arrange such documents, that all
permissions, permits whether legal or private for using such
authorizations have already been taken, that all any certificates
and undertakings given and submitted to public and private
authorities are real and valid ,
5.2 That nothing to prove that
any action of execution started against them faced abortion, that
no assertion of inability was rendered against them, that nothing
existed to prove that a certificate of insolvency was issued
against them in accordance with the provisions of the Code of
Obligations, that no case of insolvency, indebtedness, bankruptcy
or liquidation existed and was not expected to take place in close
future,
5.3 That considering all
potential debts and liabilities, it is within their financial means
and powers to make good such liabilities and obligations to likely
arise from hereby Contract.
5.4 If the declarations of Lesse
in Clauses 5.1 and 5.2 become void by new and/or continuing
situations, Lessor has the right to unilaterally terminate the
lease contract without prior notice, and to ask the Lessee to
release the freehold.
HANDING OVER FREEHOLD TO
LESSEE
CLAUSE 6. Ankara Cyberpark shall
hand over to Lessee within the frame of provisions of hereby
Contract right of using freehold. In the event, certificates and
forms requested from tenant in compliance with legislations in
effect within the term specified in the operational guidelines to
govern Technology development region of Ankara, to be submitted to
Ankara Cyberpark in full and complete and /or obligations mentioned
in hereby Contract and annexes thereto are not fulfilled in full
and complete within sixty days (60) to take inception from
date on which hereby Contract has been drawn up, hereby Contract
shall be invalid to the exception of the provisions regarding
paying damages to Ankara Cyberpark and this latter shall not
deliver freehold to tenant . On occurrence of such a case, all
damage and loss, whether direct or indirect, incurred by Ankara
Cyberpark shall become payable by tenant.
OBLIGATION OF TENANT TO PAY LEASE
RENT
CLAUSE 7. Tenant shall pay Ankara
Cyberpark lease rents mentioned in Annex 1 to hereby Contract.
Tenant cannot avoid making payment of rent, cannot make late or
deficient payment on the grounds of fault, delay and /or similar
events to hinder in full or in part tenant using of and enjoying
from freehold due to omission, neglect , ill will displayed by
itself.
Tenant, by leaning on presence of cases
such as deficiency, fault, breakdown, delay and /or alike cases
which impede either partial or in full its taking advantage from
freehold shall not decline from making payment on time of rent, nor
shall not be allowed to make late or deficient payment.
INHIBITION OF MAKING SWAP AND
SETOFF
CLAUSE 8. Tenant shall not be
allowed to make swap and setoff on and over lease rents which it is
obligated to pay against its deferred and in arrears credits. Even
if tenant makes a request for damages on the assertion that Ankara
Cyberpark failed to comply with contract provisions, it shall be
able to raise subject request for damages on the proviso that it
provides concrete evidence of its having paid as appropriate rents
in conformity with hereby Contract provisions.
OBLIGATION BY TENANT TO COMPENSATE
ALL COSTS INCURRED BY ANKARA CYBERPARK IN CASE OF
ARREARS
CLAUSE 9. If tenant falls in
arrears in payment of lease rent, in addition to default interest
mentioned in clause 33, the same shall be under obligation of
making immediate payment on presentation by Ankara Cyberpark of
certificates giving evidence that this latter has made payment of
notary public fees which this latter had made by reason of deed of
protest issued on occurrence of non-payment , duties, taxes, dues,
stamp duties and costs of postal services paid in connection with
such non-payment, all costs incurred by reason of communications
and haulage incurred to collect rents.
GUIDELINES TO GOVERN TENANT USING
FREEHOLD
CLAUSE 10.1 Within the frame of
provisions and guidelines mentioned in hereby contract and annexes
herewith, the freehold has been handed over to the Tenant in full
operational order.
10.2 Tenant accepts, states,
declares and undertakes that, within the frame of provisions and
guidelines mentioned in hereby contract and annexes herewith, it
shall not use for illegal purposes or beyond purpose set forth in
hereby contract the freehold, or shall use it with utmost attention
and care.
10.3 Tenant shall further accept,
agree, declare and take on that it shall make no modification,
alteration or change of any sort on leasehold without seeking
beforehand approval in writing of Ankara Cyberpark , that it shall
not attempt connecting subject leasehold, in a way whether
transient or permanent, with any premises whatsoever, that even if
such a connection with any premises was made, it shall not be
deemed to constitute a complementary part to leasehold and such a
connection shall be deemed transient and not complementary to
chattel real, even if a permit in this direction had been formerly
issued by Cyberpark to tenant.
10.4 In the course of lease term,
tenant shall be held accountable for preservation of leasehold in a
safe and secure way under full liability of its own, for taking all
steps required for protection against all risks inclusive of
accident, danger, fire, theft of all and any sort and for making
good all demands for compensation arising from taking deficient and
insufficient measures or from taking no measures at all.
10.5 Tenant shall accept, declare
and undertake that it shall comply with all instructions issued by
Ankara Cyberpark in association with leasehold, that it shall abide
by as is provisions of the management plan.
PAYMENT OF JOINT COSTS IN CONNECTION
WITH USING LEASEHOLD
CLAUSE 11.1 Lightning, power,
power for air-conditioning, water supply and telephone costs
incurred in connection with leasehold shall be borne by lessee and
costs of subscription relevant to such utilities shall be settled
in line with system to be determined by Lessor. Such costs do not
enclose joint use costs mentioned in Annex-1 and share contribution
to management costs. If there exists payments to be made by reason
of gauges to be read off , these shall be payable by tenant to
Ankara Cyberpark in line with system to be determined by Ankara
Cyberpark and until date of final payment. Tenant shall bear
accountability for safety and cleaning of leasehold.
11.2 Lessee shall be accountable
for paying amount to be found by multiplication of cost per unit
square meter to be reckoned according to overheads for running and
costs for using joint areas in the building where subject leasehold
is situated by surface area in sqm of leasehold, (such costs to
include water supply, power generation, heating costs, parking
lots, cleaning of roads and environment, safety, garbage disposal,
application of pesticides to areas of joint usage). Lessee shall
pay Ankara Cyberpark monthly amount falling to its share from
subject costs. In the
event payments regarding jointly payable
costs are made late, then the provisions of the management plan
shall become applicable. If no mention as to costs of management
and joint usage has been made in Annex-1, this is taken into
account.
LEASEHOLD FACING DAMAGE DUE TO A
FAULT ATTRIBUTABLE TO TENANT
CLAUSE 12. In the event leasehold
suffer damage owing to faulty manner adopted by lessee or to ill
will by itself to comply with or non-conformance to provisions set
forth in hereby Contract and in annex thereto, lessee shall accept,
consent to and undertakes to make good damage incurred, to
compensate immediately and all at once all and any damages incurred
by Ankara Cyberpark falling outside the scope of insurance coverage
, inclusive of depreciation suffered by leasehold.
AUTHORIZATION OF ANKARA CYBERPARK TO
CONTROL LEASEHOLD
CLAUSE 13. Lessee accepts,
consents to, declares and undertakes that Ankara Cyberpark, in the
course of lease term , within the frame of duties and
responsibilities imposed upon itself with the Regulations on
technology development regions implementation and also within legal
confines, has been entrusted with the authorization to check,
investigate, control leasehold either personally or by means of and
through persons to be commissioned by itself and to caution tenants
for these to correct their faulty manner observed committed either
by lessee itself or by third parties and to take measures requisite
and necessary for stopping reiteration of such manners , that it
lies upon Ankara Cyberpark’ s discretion to use such
authorizations delegated to itself, that lessee shall grant ,
confer permit, permissions to itself while this former intends
using such discretions and shall use its best endeavors to ease
what Cyberpark intends doing . In the event a request for
investigation or control is raised by Ankara Cyberpark, the
question shall be made known at least one day prior to day on which
such an investigation is intended to Lessee. In case Lessee chooses
to adopt a behavior that would cause prevention of using such
authorizations, makes a bid to intervene in or attempts to make
ineffective such an investigation, then Lessor shall keep reserved
its right to terminate Contract in line with the provisions of the
Clause 38 herein after.
OTHER OBLIGATIONS BY
LESSEE
CLAUSE 14.1 If Lessee intends
doing a constructive change, modification in and on leasehold, then
the same shall be obligated to seek approval in writing from Lessor
under any and all conditions whatsoever by showing Lessor
architectural, electrical and mechanical projects indicating
changes on freehold this latter intends performing before
implementation takes effect. Lessee, after obtaining consent in
writing of Lessor shall start legal formalities to obtain
permission for construction works from relevant
authorities.
14.2 Lessee shall not make any
attempt to exceed electric power assigned, allocated for its use
and shall not further make any modification, addition or
cancellation in mechanical sections of freehold without seeking
beforehand permission for from and by Lessor.
14.3 Lessee may perform and shall
be allowed to perform any decorative works, ornamentation,
modification and repair which the former deems requisite and
necessary to accomplish object which it intends to perform by
hiring leasehold, providing a notification in writing is made to
Ankara Cyberpark fifteen days prior to and providing further all
costs to be incurred in association with such ornamentation,
modification and repair are to be borne by itself and no damage to
bearing columns of leasehold is inflicted .
However, if constructive works Lessee
intends doing requires obtaining a separate license of
construction, then Lessee shall be entitled to seek such a license
and to pursue formalities after obtaining approval in writing by
Lessor. Costs to be incurred on account of damage and breakdowns
caused by such modifications shall be borne by and become payable
by Lessee.
14. 4 Keys requisite and
necessary for use of all doors and gates in the course of lease
term of leasehold shall be handed over to Lessee. This latter shall
be entitled to change all locks and keys and to add safety locks to
gates and doors with costs thereof borne by itself.
14.5 It is imperative and
requisite that a permission in writing from Ankara Cyberpark to
effectuate arrangement and modification affecting outer front of
leasehold or the front facing the main corridor of the same is
sought beforehand.
14.6 Lessee shall be liable to
effect small repairs to be carried out within leasehold. With the
object of preserving and protecting with due care Leasehold and
common facilities attached thereto, Lessee shall be obligated to
repair, by taking on costs, material and equipment such as doors,
gates, sanitary installations, illumination elements, glass panels,
heating and air-conditioning installations existing and available
in Leasehold and fixtures handed over to itself within the frame of
provisions of Annex-1 herewith and to have maintenance work
performed as long as hereby lease contract remains valid and in
effect.
14.7 Lessee shall be under
obligation of advising Lessor of any damage of significance that
occurred inside freehold in writing within one day to follow date
on which such a damage took place.
14.8 It is incumbent upon Lessee
to ensure in line with safety measures in application in the
freehold safety of customers, staff and all third parties having
relations with freehold. Lessee shall be personally and
individually accountable for any and all events, incidents to take
place inside freehold within the meaning of provisions of hereby
clause.
14.9 It shall be deemed
prohibited to grant permission by Lessee for storage inside
leasehold of illegal explosives and of similar chemical materials
and items or to cause haulage of the same by means of vehicles
owned by Lessee. The same prohibition shall be deemed valid and in
effect for materials deemed environmentally insecure.
14.10 Lessor by giving notice to
Lessee may have constructive modifications performed required for
change, maintenance, repair in freehold undertaken for prevention
of risks and dangers affecting security or for removal of risks
likely to cause threat to freehold. Lessee shall bear material and
moral inconveniences such as noise, dust, soil to arise in
connection with such works to be undertaken within the scope of
hereby clause.
14.11 Lessee shall put its
informative label at the place and standard determined by Lessor.
Other than this, the Lessee shall not put any ad, poster, panel, or
label at any place within Cyberpark without prior approval of
Lessor. Lessee shall not use the logos and titles related to Lessor
or Bilkent University in any of the Lessee’s advirtisement
material without permission.
14.12 Lessee is responsible for
the safety and security of its own usage area. Also, it shall
conform to the building security and other safety measures taken by
Lessor. Lessee shall cooperate with Lessor during safety and
security inspections, the confidentiality of Lessee’s
business material being respected.
In case Lessee violates the above
provisions, Lessor has the right to unilaterally terminate the
lease contract without prior notice, and to ask the Lessee to
release the freehold.
OBLIGATION OF LESSEE NOT TO HIRE
LEASEHOLD TO THIRD PARTIES
CLAUSE 15. Lessee shall not hire
leasehold to third parties as well as shall not leave leasehold to
third parties for these latter to avail themselves of its use
without seeking approval for in writing from Ankara Cyberpark.
Practice to the contrary shall be left to the discretion and
approval in writing of Ankara Cyberpark. Lessee is not entitled to
make any statement or to take on any obligation as to putting a
personal or in kind limitation whatsoever on leasehold. Lessee
cannot displace, convey, carry fixtures mentioned in Annex-1 to
hereby Contract and parts and pieces of leasehold to any other
place outside of location described as freehold site and cannot
displace the same without seeking approval in writing of Ankara
Cyberpark.
CLAUSE 16. Following signature
and delivery of hereby Contract by and between the parties, Lessee
shall have leasehold insured for the duration of lease term with an
insurance company deemed reputable by the Office of the President
for the Board of insurance assessment of the Office of the Under
Secretary to Treasury of the Office of Prime Minister of the
Republic of Turkey, under conditions and clauses to be imposed by
Lessor on and over insurance value this latter shall indicate.
Lessor shall not be held accountable for non coverage of any risk
falling outside of coverage of insurance contracts entered into by
and between Lessee and subject insurance company. It is incumbent
upon Lessee to have, to cover lease term, in connection with lease
hold, insurances of tenant financial liability and of neighboring
financial liability executed .Lessee shall be deemed obligated to
perform in complete and without defect whatsoever all liabilities
to arise from the afore-mentioned insurance policies. Obligations
of paying premium, of paying interests for delay in payment of
premiums in arrears, of giving insurer information requisite and
necessary for conclusion of contract, notification to insurer of
occurrence of relevant danger or risk, notification of enhancement
of risks involved to insurer shall personally and individually lie
with Lessee. Lessor shall be named as beneficiary in insurance
policies to be submitted to Lessee by insurer. In this connection,
the insured Lessor
shall avail itself of all and any right
to arise from the said insurance policies and Lessor shall be the
only one beneficiary of the subject insurance policies. Lessee
shall be charged wi
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