FINANCIAL LEASING, FACTORING AND FINANCING COMPANIES LAW
Law No : 6361
Date of ratification : November 21, 2012
Date of Official Gazette : December 13, 2012
PART ONE General Provisions
Purpose, Scope and Definitions Purpose
ARTICLE 1 - (1) The purpose of this Law is to regulate the principles regarding the establishment and operation of financial leasing, factoring and financing companies operating as financial institutions and to regulate the principles and procedures in relation to financial leasing, factoring and financing agreements.
ARTICLE 2 - (1) Financial leasing, factoring and financing companies established in Turkey are subject to the provisions of this Law.
(2) Factoring transactions made by the banks and financial leasing transactions made by participation banks and development and investment banks are subject to the provisions of this Law.
(3) Provisions of this Law related with financial leasing transactions shall not apply to operational lease transactions made by financial leasing companies.
(4) Provisions existing in various laws in relation to the leasing of residences to consumers through financial leasing and in relation to residence financing activities of financing companies are reserved.
(5) Cross-border leasing transactions based on financial lease agreements, for a term of minimum two years, in relation to aircraft, their engines and their parts and accessories, to airlines active in the carriage of passengers and load, by companies, corporations and financial leasing companies authorised to lease these items according to the regulations of their home jurisdiction, shall be considered as financial leasing within the scope of this Law without being subject to the restrictions specified in sub clause (ç) of the first paragraph of Article 3.
(6) For cases where there is no provision in this Law, general provisions shall apply. Definitions
a) Union: means the Union of Financial Leasing, Factoring and Financing Companies, b) Operational lease: means leasing other than financial leasing,
c) Invoice: means invoices and documents that substitute an invoice issued in accordance with the Tax Procedural Law No. 213 dated 04/01/1961.
ç) Financial lease: means, provided that it is based on a financial lease agreement, the lease transaction which fulfils any of the following conditions: with the purpose of providing financing by a lessor authorised by this Law or relevant legislation, transfer of title of a property to lessee at the end of the lease term; granting lessee the right to purchase the property for a price under its actual value at the end of the lease term; for the lease term to cover a period over eighty percent of the economic life of the property or for the aggregate present value of the rental payments to be made according to the lease agreement toconstitute a value over ninety percent of the actual value of the property,
d) Lessor: means participation banks, development and investment banks and financial leasing companies,
e) Lessee: means the party which accepts the financial leasing,
f) Control: means the power to appoint or dismiss the majority of the board members of a legal entity, as required to make a decision, without the requirement to own minimum fifty one percent of the share capital, whether through owning the majority of the capital directly, or through owning the privileged shares without owning the said majority, or through using authority over the majority of the voting rights based on the agreements made with the other shareholders, or by any means,
g) Board: means Banking Regulation and Supervision Board, ğ) Agency: means Banking Regulation and Supervision Agency,
h) Shareholders' Equity: means the balance which is calculated by deducting the sum of the net loss-if any-for the period, accumulated losses and other items to be determined by the Board from the sum of the paid-in capital, capital reserves, profit reserves, the net profit for the period, the previous years' profit and other items to be determined by the Board, and the subordinated debts whose features are to be determined by the Board,
ı) Company: means financial leasing companies, factoring companies and finance companies established in Turkey,
i) Branch: means all kinds of workplaces which constitute a dependent part of the Company and who carry out a portion or all of its activities on its own.
Transactions Subject to Permission SECTION ONE
Permission for establishment
ARTICLE 4 - (1) The establishment of a company in Turkey is permitted through a decision taken by the affirmative votes of minimum five Board members, provided that the conditions stipulated in this Law are fulfilled.
(2) The principles and procedures regarding the applications to be made for permission and granting of the permission shall be determined by a regulation to be issued by the Board.
Conditions of Establishment
ARTICLE 5 - (1) A company to be established in Turkey must fulfil the following conditions;
a) It must be established as a joint stock company and the number of founding partners shall not be less than five,
b) The share certificates shall be issued against cash and all shares shall be registered, c) One of the following expressions shall be present in its commercial title: "Leasing Company", "Factoring Company" or "Finance Company",
ç) The founders shall meet the requirements specified in this Law,
d) The members of the Board of Directors shall possess the qualifications set forth in the corporate governance provisions of this Law, and the professional experience required to carry out the planned activities,
e) Its paid-in capital in cash and free from any collusion shall be at least twenty million Turkish Liras,
f) Its Articles of Incorporation shall be in compliance with the provisions of this Law, g) It shall have a transparent and open partnership structure, not to interfere with the effective auditing of the Agency,
ğ) It shall submit an activity program indicating the business plans regarding the intended fields of activity, projections regarding the financial structure of the company, budget plan for the first three years and its structural organization.
(2) The Board is authorized to increase the minimum paid up capital amount each year, not to exceed the amount required by the annual rate of increase in the producer price index released by the Turkish Statistics Institute.
Qualifications Required for the Founders
ARTICLE 6 - (1) The founding partners of the company must meet the following conditions; a) According to Execution and Bankruptcy Law No. 2004, dated 06/09/1932, or in accordance with the provisions of the relevant legislation, the founder should not be bankrupt, should not have filed for financial protection, an application for restructuring through
conciliation should not have been approved or there should not be a decision taken for the postponement of bankruptcy in relation to the founder,
b) Should not have, directly or indirectly, owned shares of ten percent or more or have the power to control, any of the banks subjected to Article 71 of the Banking Law No. 5411 dated 10/19/2005, or in banks which were transferred to the Savings Deposit Insurance Fund before the subject Law was put into force,
c) Should not have, directly or indirectly, owned shares of ten percent or more or have the to control, any of the bankers who were subjected to liquidation and factoring, leasing, financing and insurance companies whose operating permits have been revoked other than for voluntary liquidation, and institutions active in capital markets.
ç) Even if he is pardoned, with the exception of negligent offenses, should not have been sentenced for heavy imprisonment or imprisonment over five years pursuant to the abolished Turkish Penal Code No. 765 dated 03/01/1926 and other Laws, and should not have been sentenced for imprisonment over three years pursuant to the Turkish Penal Code No. 5237 dated 09/26/2004 or other laws; or should not have been sentenced due to acting against the provisions, which impose imprisonment, of the abolished Banking Law No. 3182 dated 04/25/1985, abolished Banking Law No. 4389 dated 06/18/1999, this Law, Law No. 5411, and Capital Markets Law No. 2499 dated 07/28/1981 and the legislation in relation to lending money, or pursuant to abolished Law No. 765, Law No. 5237 and other laws, due to disgraceful crimes such as simple or qualified embezzlement, embezzlement, extortion, bribery, theft, fraud, forgery, breach of trust, fraudulent bankruptcy and smuggling crimes other than use and consumption smuggling crimes, conspiring to rig bids on official tenders and procurements and sales, the crimes of laundering the proceeds of crime, or crimes against the State and crimes committed against the sovereignty of the State and the dignity of the organs of the State, crimes against government’s security, crimes against the Constitutional order and the functioning of the Constitutional order and crimes against national defence, crime of the disclosure of State secrets and crimes against the State secrets and espionage, crimes against relations with foreign countries, crimes against the Anti-Terror Act No. 3713 dated 04/12/1991, tax evasion offenses or from participation in these crimes,
d) Should have the financial strength and credit to meet the amount of capital undertaken,
e) In case of a legal person, the partnership structure should be transparent and open, f) Must have the integrity and competence required for the work.
Sub-paragraphs (b) and (c) of this paragraph do not apply to the multilateral credit institutions and financial institutions established according to international agreements to which Turkey is party.
(2) Partners who own ten percent or more of the share capital of, or natural and legal persons who are in control with the legal person founding partners of the company must meet the conditions set forth in the first paragraph.
(3) In the event that, the natural or legal persons who own ten percent or more of the shares in the company capital or who are in control of the company, and natural and legal
persons who own ten percent or more of the shares in the capital of, or who are in control of the legal persons who own ten percent or more of the shares in the company capital or who are in control of the company, except for sub-paragraph (d), lose the qualifications stipulated in the first paragraph, then within 6 months they must transfer the shares they own to ensure that their situations comply with the provisions of this article. The Board will determine by whom and how the voting rights in relation to the shares to be transferred within the said period will be used.
ARTICLE 7 - (1) The company which has obtained its establishment license within the framework of Article 4, is in addition required to obtain an operating permit from the Board. Operating permits issued by the Board shall be published in the Official Gazette.
(2) The company’s establishment licenses will be revoked by the Board in case of the occurrence of one of the following situations: In the event that the establishment license has been obtained through untrue statements, the company has not applied for an operating permit within six months of its establishment licence, it declared that the application for the establishment license has been withdrawn, the conditions required to grant license are lost before operation, the operating license has not been obtained then the company’s establishment licenses will be cancelled by the Board.
(3) The company which has obtained an establishment license must meet the following conditions in order to start its operations:
a) Its capital should be paid in cash and should be at a sufficient level to carry out the planned activities,
b) It should submit the receipt proving that the system admission fee in the amount of 5 percent of the minimum capital specified by the founders in Article 5 has been deposited at the relevant accounting divisions of the Ministry of Finance, in order to be recorded as revenue in the general budget,
c) The proper service units and the internal control, accounting, data processing and reporting systems should be established; adequate staff for these units are employed and the personnel’s job descriptions, powers and responsibilities are determined accordingly,
ç) Managers should possess the qualifications specified in this Law.
(4) A financial leasing company with the purpose to lease only one ship may be established without obtaining an establishment licence and operating permit, provided that all its partners will be financial leasing companies established in Turkey. Companies to be established according to this qualification are not subject to the articles of this Law, except for the provisions that are related to agreements.
(5) The procedures and principles in relation to the implementation of this Article shall be determined by the Board.
ARTICLE 8 - (1) The Company opening domestic of foreign branches is subject to permission. The Company may not get organised under any name other than a branch, and it cannot enter into agency agreements.
(2) The qualifications of branches and the principles and procedures subject to permission shall be determined by the Board.
The prohibited activities and operations for the company ARTICLE 9 - (1) the Company;
a) Cannot operate outside its main areas of activity.
b) Cannot grant cash loans, except for the cash loans to be granted within the framework of the agreements entered into with its customers and for the purpose of providing additional financing to its customers as part of the transaction that is carried out, which shall not in aggregate exceed one percent of its paid capital. The Board is authorized to reduce this rate to zero or to increase it up to a rate of five percent of the paid capital or to differentiate it on a per company basis.
c) It may not provide guarantees, sureties or guarantee letters; except for the guarantees and sureties to be provided in a way not to exceed in aggregate twenty percent of its paid capital, and to be within the limits of the transactions in relation to its area of activity, and the guarantees and sureties to be provided to the persons who own more than ten percent of the shares in its capital or who is in control, and to the partnerships whom it owns more than ten percent of the shares in its capital or whom it is in control. The Board is authorized to reduce this rate down to five percent or to increase it up to twenty five percent or to differentiate it on company basis.
ç) It cannot collect any money as deposit or under any name in return for a consideration; except for the issuance of securities in accordance with Law No. 2499, borrowing money from international markets, obtaining funds from partners and associations, banks, money markets and organized markets within the scope of general principles.
(2) The factoring company may not take over or undertake the collection of receivables which are not documented by an invoice arising from the sale of goods or services, and receivables arising based on the sale of goods or services which are not documented according to the procedures and principles as determined by the Board even though they are based on bills of exchange within the framework of the principles and procedures determined by the Board. The total amount of the partial assignments made to more than one factoring company based on the same invoice may not exceed the total amount of the invoice.
(3) In the event of transfer of a bill of exchange to the factoring company by endorsement, the person who has been applied to due to the bill of exchange, cannot claim the exceptions that are based on the direct relationships that existed between him and the issuer or the previous bearer of the bill of exchange, against the factoring company; provided that the factoring company has not deliberately acted to the detriment of the borrower during the acquisition of the bill of exchange.
(4) Without prejudice to the provisions of the legislation in relation to insurance, leasing companies may not be engaged in insurance transactions other than brokering insurance agreements with regard to the products subject to financial lease or operating lease transactions, guarantees that are received in the scope of these transactions and the persons who leased the said products; and on the other hand, financing companies may not be engaged in insurance transactions other than brokering insurance agreements with regard to the products and services where a credit has been granted for their purchase, the guarantees of the credits, and to the works that fall under the scope of its field of activity in a way to include all kinds of insurances that provide coverage for the repayment of credit debts and similar credit elements.
Provisions Related to the Articles of Incorporation Amendments in the Articles of Incorporation
ARTICLE 10 - (1) The Board shall be notified in advance of amendments to be made to the Articles of Incorporation of the Company. If the Board does not provide a negative opinion on the amendments within fifteen business days, then these changes shall be inserted in the agenda of the of the general assembly of the companies and the Board will be informed of the result.
(2) The Company's current Articles of Incorporation shall be published on the website of the company. Articles of Incorporation must be updated within ten business days following the date of amendment.
(3) The Company is under the obligation to inform the Board of address changes within fifteen business days from the date of change.
(4) Principles and procedures in relation the implementation of this Article shall be determined by the Board.
Acquisition and transfer of Shares
ARTICLE 11 - (1) Any acquisition of shares representing ten percent or more of the company capital or the transfer of shares resulting in a change in the control of the company are subject to the approval of the Board.
(2) The issue and transfer of shares granting privilege to nominate a member to the Board of Directors, or the issuance of new preferential shares are subject to the approval of the Board without taking into consideration the proportional limit set forth in the first paragraph.
(3) Share transfers resulting in a change in the legal persons who hold ten percent or more shares in the company capital are subject to the approval of the Board.
(4) For those share transfers which are subject to approval, the persons to take over the shares are required to meet the qualifications required from the founders.
(5) Share transfers that are subject to approval but are performed without obtaining the approval, and share transfers which result in the number of partners to fall below five, may
not be recorded in the stock register. Records in the stock register made contrary to this provision are null and void.
(6) The procedures and principles in relation to the implementation of this Article shall be determined by the Board.
Mergers, Acquisitions, Demergers and Liquidations Mergers, acquisitions, demergers and liquidations
ARTICLE 12 - (1) The Company's merger, acquisition and demerger is subject to general provisions, provided that the permission of the Board is obtained. The procedures and principles in relation to the granting of the permission shall be determined by the Board.
(2) In the event that the company ceases its activities and liquidates upon approval of the Board, then general provisions shall apply. The liquidation process may be supervised by the Board if it is considered necessary.
PART THREE Corporate Governance
SECTION ONE The Directors
Members of the Board of Directors, General Manager and Deputy General Managers ARTICLE 13 - (1) Structures, processes, and principles in relation to corporate governance shall be determined by the Board, by obtaining the opinion of the Union.
(2) The Company's Board of Directors, including the General Manager, may not consist of less than three persons. In the absence of the General Manager, his attorney is a natural member of the Board of Directors. The members of the board of directors, general manager and assistant general managers must meet the requirements specified in Article 6, first paragraph, sub-paragraph (a), (b), (c) and (ç). The professional experience requirement for the general manager sought under this Law is also required for one more than half of the members of the Board of Directors.
(3) The Company's general manager must have minimum seven years of experience, assistant general managers must have minimum five years of experience in the field of business or finance and additionally they must have a Bachelor’s Degree.
(4) Despite the fact that they are employed under different titles, the directors whose powers and duties are equivalent or over an assistant general manager shall also be subject to the provisions of this Law about assistant general managers.
(5) The principles and procedures of appointment and election of members of the board of directors, general manager and assistant general managers shall be determined by the Board.
SECTION TWO Financial Reporting
Internal systems, accounting, reporting and independent auditing
ARTICLE 14 - (1) The Company is obliged to establish and operate an adequate and effective system compatible with its structure of activities, in line with the changing circumstances, to monitor and manage the risks the company is exposed.
(2) The Board is authorized to determine the procedures and principles regarding the functioning of the system and to take all necessary precautions about the companies whose systems are identified inadequate and ineffective.
(3) The Company is obliged to account all its transactions based on their true nature according to the principles and procedures set by the Public Supervision, Accounting and Auditing Standards Board and prepare its financial reports in the form and content to fulfil the information requirements in a clear, reliable, comparable manner and suitable for audit, analysis and comment and in a timely and accurate manner.
(4) The Company is obliged to submit to the Agency the financial statements and statistical information, in the format and scope specified by the Agency, in the period and with the methods requested.
(5) The independent audit of the Company shall be carried out within the framework of the Decree on Organization and Duties of Public Supervision, Accounting and Auditing Standards Agency No. 660 dated 11/02/2011. The independent audit reports issued shall be submitted to the Agency within the framework of the principles and procedures determined by the Board.
ARTICLE 15 - (1) The Board is authorized to make the necessary arrangements and to take all necessary precautions to determine risks of exposure, analysis, monitoring, measurement and evaluation of the companies, by determining the limitations and standard ratios between company activities and the shareholders' equity. The Company is obliged to comply with the regulations, to calculate, to retain, to maintain the specified limitations and standard ratios and to take and implement the measures required by the Board within the periods specified.
(2) In the event that thresholds related to the limitations and standard ratios determined according to this Law are reached or exceeded, then the related company must notify the Agency immediately.
(3) In the event the limitations and rates associated with a certain ratio of the equity are exceeded due to decreases in equity, and if required by conditions, these excesses must be rectified within the period specified by the Agency. During the period specified for rectification of the excesses, the provisions of this Law related to administrative fines shall not apply.
ARTICLE 16 - (1) The Company is obliged to reserve provisions within the principles and procedures determined by the Board in order to cover unspecified losses arising or expected to arise from receivables of the transactions.
ARTICLE 17 - (1) The supervision and control of the Company under this Law shall be carried out by the Agency.
(2) The Agency is authorized to request from the Company, its shareholders, subsidiaries under control of the company and its branches, and other related natural and legal persons, all information, even if treated confidential, considered to be in relation with the provisions of this Law, and to inspect all books, records and documents including their tax-related records, and the persons requested to provide information shall be under the obligation to provide the requested information, to keep the books, records and documents available for review, to open all data processing systems to the professional on-site audit staff of the Agency in accordance with the audit purposes, to maintain data security, and to submit the records kept in microfishe, microfilm, magnetic tapes, diskettes and similar media regarding all books, documents and report cards required to be maintained and information required to be provided and to submit and operate for inspection the entire system and the passwords for access to such records or required to make them readable.
(3) Public institutions and organizations, without prejudice to the provisions on circumstances which will cause severe consequences against State security and basic international benefits, and professional secrets, privacy of the family life and right to defend, without regard to prohibitive and restrictive provisions of special laws even though confidential, limited with the tasks given by the Agency within the scope of this Law, must provide all information and documents requested in due time and media, continuously or severally.
(4) On-site audit of the company’s activities are to be carried out by the authorized professional on-site audit staff of the Agency. The company, its shareholders, subsidiaries and other related companies controlled by the company, natural or legal persons must provide all kinds of information and documents requested by the on-site audit authorized professional staff of the Agency and submit books and documents and keep them ready for the inspection.
Provisions Related to Agreements SECTION ONE
Financial Leasing Financial Lease Agreement
ARTICLE 18 - (1) Financial lease agreement is the agreement which prescribes that lessor, upon request and selection of lessee, shall leave, in return for rent, to enjoy all rights, the possession of a property purchased from a third party or the lessee or acquired otherwise and title of which is vested upon it.
Subject of the agreement
ARTICLE 19 - (1) The subject of the agreement may be movables and immovables. Intellectual and industrial rights, such as patents cannot be subject to this agreement except for replicated copies of computer software.
(2) Regardless of its nature as an integral part or accessory, goods preserving their essential natures may be subject to a lease agreement separately.
Finance lease price
ARTICLE 20 - (1) Financial lease price and payment terms shall be determined by the parties. Provided that it is expressly stated in the agreement, in the event that goods, subject of the agreement, are not yet manufactured or delivered to lessee, the rent may still be collected starting from the date of the agreement. Unless otherwise stated in the agreement, the goods which are the subject of the agreement must be delivered to lessee within two years from the date of the agreement.
Cross-border financial leases
ARTICLE 21 - (1) Cross-border financial lease agreements shall be registered by the Union. (2) The procedures and principles related to cross-border finance leases shall be determined by the Union upon the approval of the Board.
The form and the registration of the agreement
ARTICLE 22 - (1) The agreement shall be made in writing. Agreements related to immovables shall be registered and annotated in the annotations section of the title register where the immovable is located; agreements related to movables, which have special registers, shall be registered and annotated at the registry where the immovable is registered and in addition shall be reported to the Union by the lessor.
(2) Agreements related to movables which do not have special registers shall be registered in a special registry to be maintained by the Union.
(3) The special register to be maintained by the Union is open to the public. No one may claim to be uninformed about a record in the registry.
(4) The procedures and principles in relation to the registration of the agreements to the special registry to be maintained by the Union shall be determined by the Union upon approval of the Board.
(5) Upon registration and annotation, real right acquisitions of third persons over the property which is the subject of financial leasing, may not be claimed against lessor.
(6) In the implementation of Article 940 of the Turkish Commercial Code No. 6102 dated 01/13/2011, lessee shall be evaluated as the owner of the vessel.
(7) In the implementation of Article 49 of the Civil Aviation Law No. 2920 dated 10/14/1983, lessee shall be evaluated as the owner of the aircraft.
Purchase of the property subject of financial lease
ARTICLE 23 - (1) Title of the leased goods shall belong to the lessor. However parties may decide in the agreement that lessee shall have the right to purchase title of the good upon expiry of the lease term.
In the event that lessee does not use its purchase option in relation to the moveable property which is the subject of the financial lease and subject to registration within thirty days of such right arising and if the property is not returned to lessor pursuant to Article 32 of
this Law, provided that this matter is agreed amongst the parties in the agreement and that a notice is served upon lessee regarding this matter or that the notice is not served because lessee has left its address, lessor may unilaterally perform all transactions to enable transfer of the leased property to lessee. Within this framework, unilateral requests of lessor related to transfer of title shall be performed by the related registry.
Rights and obligations of the parties
ARTICLE 24 - (1) Lessee shall hold possession of the good which is the subject of the lease, for the lease term and shall have the right to enjoy all benefits in accordance with the purpose of the agreement.
(2) Lessee must use the leased goods with due care, in accordance with the terms and conditions stipulated in the agreement.
(3) Unless otherwise stated in the agreement, lessee shall be responsible for all maintenance and protection of the property, and maintenance and repair costs shall be borne by the lessee.
(4) Leased property must be insured. The party which will insure the property shall be indicated in the agreement. Insurance premiums shall be paid by lessee.
(5) Lessee shall be responsible for damage and loss to the property during the lease term. This responsibility is limited to the amount exceeding the insurance proceeds paid, and the excess amount must be paid by lessee.
(6) Lessor shall not be held liable for the defective property obtained from third persons upon selection and request of lessee. The same provision shall apply in case the property is obtained directly from the lessee.
Non-delivery of the property to lessee
ARTICLE 25 - (1) In the event that the property which is the subject of the financial lease is not delivered to lessee due to failure of lessor to conclude a contract in due time with the manufacturer or seller of the property or due to failure to make the required payment or due to fault or negligence of lessor, then the provisions of Articles 123, 125 and 126 of the Turkish Code of Obligations No. 6098 dated 01/11/2011 shall apply.
Transfer of possession and title of lessee
ARTICLE 26 - (1) Lessee may transfer its “title of lessee” or rights or obligations arising from the agreement by obtaining the written permission of lessor. The change in lessee made in the financial lease agreement based on this transfer shall be registered or annotated according to Article 21 or 22, as appropriate.
(2) Lessee may transfer the possession of the leased property to another person, provided that the lessor shall be informed in financial lease agreements made for residence finance, and for other financial lease transactions provided that there is a provision in the agreement.
Transfer of title
ARTICLE 27 - (1) Unless otherwise stated in the agreement, lessor may not transfer title of the property to a third person. If such authority is granted in the agreement, transfer may only
be made to another lessor. The transferee shall be obliged to comply with the provisions of the agreement. Such transfer will be effective upon lessee subject to notification to the lessee. Bankruptcy of or initiation of execution proceedings against lessee
ARTICLE 28 - (1) In the event of bankruptcy of the lessee the trustee in bankruptcy shall decide to segregate the properties which are the subject of the financial lease, before establishment of the office according to the first paragraph of Article 221 of Law No. 2004. Decision of the trustee in bankruptcy may be objected to within seven days.
(2) In the event that execution proceedings are initiated against lessee, the trustee in bankruptcy shall decide to exclude the properties which are the subject of the financial lease from the scope of the proceedings. Decision of the trustee in bankruptcy may be objected to within seven days.
(3) Such objections shall be resolved by the court of execution within a maximum period of one month.
Bankruptcy of or initiation of execution proceedings against lessor
ARTICLE 29 - (1) In the event of bankruptcy of the lessor, the agreement shall continue to be effective against the office until the end of the agreed term.
(2) In the event that execution proceedings are initiated against lessor, the properties which are the subject of the financial lease may not be seized during the term of the agreement.
Termination of the agreement
ARTICLE 30 - (1) Unless otherwise agreed in the agreement, the agreement shall automatically terminate upon expiry of the lease term, or upon bankruptcy, death or loss of capacity of the lessee.
(2) In the event that lessee enters liquidation or liquidates the business to which the property which is the subject of the financial lease is allocated, then upon request of lessee and provided that nothing to the contrary is indicated in the agreement, the agreement may be terminated before the expiry of its term.
(3) Any party to the agreement may request the extension of the agreement with current or new conditions provided that three months prior notice shall be served before the expiry of the term. Extension of the agreement shall be conditional to the agreement of the parties.
Breach of agreement
ARTICLE 31 - (1) In the event of default of lessee in paying rent, lessor may terminate the agreement, if the outstanding amount is not paid during the thirty days period granted to lessee. However if it is agreed in the agreement that title shall pass to lessee at the end of the lease term, this period may not be less than sixty days. Lessor may terminate agreements entered into with lessees who become subject to notices due to their failure to pay rent under the lease agreement three times or twice consecutively in one year.
(2) The agreement may be terminated in cases where either party breaches the agreement and where the other party cannot be expected to continue to the agreement due to this breach.
(3) In the event of any dispute between lessee and lessor relating to the financial lease agreement, if the court rules with a temporary injunction order to leave the property which is the subject of the financial leasing to lessor or any third person, then lessor may dispose of the property by depositing the actual value as security to the court. However if it is judged that termination of the agreement was unfair, then lessor is obliged to indemnify lessee for damages.
Results of expiry of the agreement
ARTICLE 32 - (1) Upon expiry of the agreement, lessee who has not used its purchase option arising from the agreement or who does not have that right, shall be liable to immediately return the property which is the subject of the financial lease.
Results of termination of the agreement
ARTICLE 33 - (1) Upon termination of the agreement by lessor, and upon termination by lessee pursuant to the second paragraph of Article 30, then lessee shall be obliged to return the property. In the event the returned property is sold to third parties, unless a value is otherwise agreed in the agreement, if the sale price is below the total of the undue financial lease amount, and if any, the total loss of lessor exceeding that amount, then the difference shall be paid by lessee to lessor. Unless a value is otherwise agreed in the agreement, if the sale price is over the total of the undue financial lease amount, and if available, the total loss of lessor exceeding that amount, then the difference shall be paid by lessor to lessee. Similar principles shall apply in cases where the returned property is leased to third parties by way of financial leasing.
(2) If the agreement is terminated by the lessee, lessee shall return the property and may claim indemnification for its losses from the lessor.
(3) The provisions of Article 150/ı of Law No. 2004 apply in the enforcement of mortgages received as security for the debt arising from the agreement.
(4) Regarding the termination notices sent by the lessor to the lessee via notary public due to the failure of lessee in making payments on time, the provisions of Article 68/b of Law No. 2004 shall apply.
Non-Applicable provisions ARTICLE 34 - (1)
Articles 764, 765, 766 of the Turkish Civil Code No. 4721 dated 11/22/2001, and provisions related to "Sales with Partial Payment" indicated in part two, section one, division four of, and provisions related to "The Residential and Roofed Commercial Leases” indicated in part two, section four, division two of the Turkish Obligations Code No. 6098 shall not apply.
ARTICLE 35 - (1) In case investments are totally or partially made by financial leasing, lessor will have the right to the incentives provided in case the products which are the subject of the financial leasing are purchased. The responsibility of the financial lease company with regard to the incentive certificate is limited with the portion transferred to it.
Provisions related with customs
ARTICLE 36 - (1) With regard to customs duties and additional financial obligations in respect of the properties imported according to the agreement concluded between the foreign company and the lessee, the following provisions shall apply:
a) In the import of the products to Turkey on the basis of an agreement which does not provide a purchase option, or the products, even though such option is granted, are not prescribed to benefit from a customs duty exemption, except for the term limitations in custom rules, provisions in relation to the temporary import regime of Customs Law No. 4458 dated 10/27/1999 shall apply, depending on the duration of the agreement. At the end of the lease term, if permanent import is not made and the properties which are the subject of the lease agreement are intended to be imported to be returned to the lessor, the security received shall be released according to the provisions of Law No. 4458.
b) In the event that the properties which are the subject of the financial lease agreement are permanently imported at the end of the lease term, customs duties and additional financial liabilities shall be accrued and charged based on the value to be determined by using the exchange rate on the date of commencement of customs liabilities and according to the provisions of Law No. 4458 in relation to the customs value of the product.
Exceptions and determination of the tax ratio
ARTICLE 37 - (1) Financial leasing agreements and documents in relation to the transfer and amendment of these agreements, and documents issued as their security are exempt from stamp duty; and the transactions related to these documents are exempt from fees.
(2) Registration of immovables in the name of lessee at the end of the lease term which are leased to lessee according to a lease agreement made using the sale and lease back method are exempt from title fees.
SECTION TWO Factoring and Finance Factoring agreement
ARTICLE 38 - (1) Factoring agreement is the agreement which covers, in addition to collecting, keeping the borrower and customer records as provided by the factoring company to its customer by taking transfer of the receivables arising from the sale of products or services evidenced by invoices and receivables arising based on the sale of products and services evidenced according to the procedures and principles determined by the Board, and any one or all finance or factoring guarantee functions.
ARTICLE 39 - (1) Finance agreement is the agreement which prescribes the provision of a loan for the purchase of any products or services, by making a payment directly to the seller in the name and account of the real or legal person who has purchased the product or the service, upon supply or delivery of the product or the service. The loan repayments shall be made to the finance companies by the persons to whom the loan is provided.
(2) Finance companies are obliged to make written general agreements with the sellers who supply the product or service for which the loan will be provided.
(3) Finance agreements must be prepared in writing. PART FIVE
Union SECTION ONE
Union of Financial Leasing, Factoring and Finance Companies
ARTICLE 40 - (1) Within six months starting from the date on which this Law enters into force, a Union of Financial Leasing, Factoring and Finance Companies shall be established as a legal entity with the qualification of a public institute.
(2) The companies must become a member of the Union within one month following the date of obtaining their operating permit.
The duties and powers of the Union
ARTICLE 41 - (1) The Union has the following duties and powers;
a) To ensure the development of the profession, develop the unity and solidarity of members, and carry out educational, promotional and research activities,
b) By defining the ethical rules of the profession, to ensure the functioning of the members in accordance with the discipline required by the profession and in accordance with the requirements of the economy,
c) To determine the professional principles and standards to be followed by its members,
ç) To announce to its members the decisions taken according to the related rules and the measures required by the Board,
d) To take and apply all necessary measures in order to prevent unfair competition among its members,
e) To determine the principles and conditions to be abided by the members in their announcements and advertisements, in terms of their form, quality and quantity,
f) To file lawsuits in matters affecting the interests of the members, based on the decision of the Board of Directors,
g) To ensure cooperation among its members in relation to joint projects, ğ) To fulfil other duties mentioned in this Act.
Organs and the statute
ARTICLE 42 - (1) Elections of the organs of the Union shall be carried by ballot and under judicial supervision of the judiciary according to the principles prescribed in this Law. The list which specifies the members who will participate in the elections together with a letter specifying the matters related to the agenda, place, date, time of the meeting and the second meeting to be held in case the quorum cannot be established shall be delivered in three originals to the judge acting as the chairman of the election board, at least fifteen days prior to the General Assembly Meeting during which the election shall take place. The judge shall review and approve the list and the other matters; shall appoint a chairman and two members of the ballot box board and reserve members for each of these posts. The voting process shall be carried out according to ballot and open counting principles. At the end of the election, the election results shall be recorded in a minutes and signed by the chairman and members of the ballot box board. Objections to the elections to be made within two days following the issue of the minutes shall be reviewed by the judge and a definite judgement shall be given on the same day.
(2) The changes to be made in the structure of the Union shall be put into force by the decision of the Council of Ministers upon recommendation of the Board after the opinion of the Union is taken. The members are obliged to comply with the statute of the Union and with the decisions and measures to be taken by the Union. Members are obliged to pay their contribution portion of the expenses within the period specified in the statutes. In the event the expense contribution portions are not paid on time, then these will be collected by the Union through execution. Resolutions related to the payment of expense contribution portions shall qualify as official documents as indicated in Article 68 of Law No. 2004.
(3) Members who do not fully and timely comply with the general or special resolutions taken by the Union shall be imposed by the board of directors of the Union to an administrative fine between one thousand Turkish Liras and up to ten thousand Turkish Liras. Central invoice registry
ARTICLE 43 - (1) The banks and factoring companies shall put together at the Risk Center or in a manner deemed appropriate by the Union, the information in relation to the receivables transferred, including the information related to invoices. The principles and procedures in relation to the sharing of information are determined by the Union.
PART SIX Penal Provisions SECTION ONE Administrative Fines Administrative fines
ARTICLE 44 - (1) With the decision of the Board and by stating its reason, administrative fines shall be imposed in the amount:
a) from three thousand Turkish Liras to ten thousand Turkish Liras, in case of breach of Article 8,
b) up to ten times the amount which constitutes the breach, not to be less than ten thousand Turkish Liras, in case of breach of Article 9, first paragraph, subparagraph (b) or (c), c) up to five times the amount which constitutes the breach, not to be less than ten thousand Turkish Liras, in case of breach of the second paragraph of Article 9,
ç) from one thousand Turkish Liras to three thousand Turkish Liras, in case of breach of the second or fifth paragraphs of Article 11,
d) in case of an appointment in breach of Article 13, from two thousand Turkish Lira up to eight thousand Turkish Liras and in the event the breach is not remedied within ten business days following service of the penalty notice, for each day after the end of this term, 10 percent of the fine imposed,
e) from two thousand Turkish Liras up to five thousand Turkish Liras, in case of breach of first paragraph of Article 14,
f) In the event of applications which have a material effect in the financial size of the company or without having such an effect which are applied continuously, in breach of the third paragraph of Article 14, from two thousand Turkish Liras up to five thousand Turkish Liras,
g), from two thousand Turkish Liras up to five thousand Turkish Liras, in case of breach the fourth or fifth paragraphs of Article 14,
ğ) in case of breach of the limitations indicated in the regulations issued based on Article 15, up to one percent of the amount which constitutes the breach, not to be less than ten thousand Turkish Liras,
h) in case of failure to serve the notification prescribed in the second paragraph of Article 15, from one thousand Turkish Liras, up to three thousand Turkish Liras,
ı) in case of failure to provide the reserves required by Article 16, up to two per thousand of the required reserves, not to be less than one thousand Turkish Liras; in case the breach is not remedied within the time period granted by the Board not to be less than 3 months, at the rate of three percent of the reserve that was not provided,
i) from two thousand Turkish Liras, up to five thousand Turkish Liras in case of breach of the second or fourth paragraph of Article 17,
j) from one thousand Turkish Liras, up to five thousand Turkish Liras in case of breach of the first paragraph of Article 19, first or second paragraphs of Article 22, second paragraph of Article 38 and second and third paragraphs of Article 39.
(2) With the decision of the Board and by stating its reason, administrative fines shall be imposed to real or legal persons in the amount:
a) from five thousand Turkish Liras up to fifteen thousand Turkish Liras, in case of breach of the third paragraph of Article 6,
b) from one thousand Turkish Liras up to three thousand Turkish Liras, in case of breach of the first, second or third paragraph of Article 11,
c) from two thousand Turkish Liras up to five thousand Turkish Liras, in case of breach of the second or fourth paragraph of Article 11.
(3) With the decision of the Board and by stating its reason, administrative fines shall be imposed to real or legal persons in the amount from five thousand Turkish Liras up to ten thousand Turkish Liras in case of not acting in compliance with the resolutions, the regulations and communiqués issued by the Board or the Agency based on this law, and other regulations and instructions issued by the Agency.
The right of defence and the decision to close
ARTICLE 45 - (1) The decision on whether the Administrative penalties shall be imposed or not shall be given after hearing the defence of the person in concern. The right to a defence shall be deemed to have been waived if no defence is given within one month following the service of the notice on requesting a defence.
(2) With respect to domestic branches established contrary to the provisions of Article 8 of this Law, the provisions of sub-paragraph (a) of the first paragraph of Article 44 shall apply, however, these will be temporarily or permanently closed by the district governorships upon the request of the Agency.
SECTION TWO Crimes Operating without a Permit
ARTICLE 46 - (1) Persons carrying out leasing, factoring and finance activities without obtaining the permissions required by this Law shall be penalized with imprisonment from two to five years and an administrative fine of up to five thousand days. The security measures specific for legal persons shall be judged for legal person in favour of whom this crime is committed. Furthermore, in the event that the crime is committed in a business place, these business places may be judged to be closed from one month up to a year, and permanently in case of recurrence.
(2) Persons who use words and phrases which imply that they operate as a company in their trade names, all kinds of documents, notices and advertisements or in their public declarations without obtaining the permission required by this Law shall be penalized with imprisonment from three months to 1 year and an administrative fine of up to one thousand days. Furthermore, these business places may be judged to be closed from one month up to a year, and permanently in case of recurrence.
(3) In case of breach of the first and second paragraphs, if a lawsuit is filed by the judge of the criminal court of peace upon the request of the Chief Prosecutor, the activities and advertisements of the businesses are temporarily stopped, and their notices are seized. These precautions continue until they are lifted by the order of a judge. These judgements may be appealed.
Failure to provide the information and documents requested by the authorities and auditors and preventing them to perform their duties.
ARTICLE 47 - (1) Persons who fail to provide the information and documents requested by the authorities and auditors authorized by this Law shall be penalized with imprisonment from one to three years and an administrative fine from five hundred days to five thousand days.
(2) Persons who prevent the authorities and auditors authorized by this Law to perform their duties shall be penalized with imprisonment from two to five years.
ARTICLE 48 - (1) Based on the untrue statements present in the documents submitted to the authorities and auditors authorised by this Law and the courts, or issued by the Company, the persons who have signed these and the all other documents used for the issue of these shall be penalized with imprisonment from one to three years and with an administrative fine not to be less than one thousand five hundred days.
Agency’s obligation to denounce
ARTICLE 49 - (1) In the event that elements of any crime indicated in this Law are determined by the Agency, then denouncement shall be made to the Public Prosecutor.
Cancellation of the Operating Permit Cancellation of the Operating Permit
ARTICLE 50 - (1) A company's operating permit may be cancelled by the affirmative votes of a minimum of five members of the members of the Board in the event of one of the following situations;
a) Failure to start operation within one year of receipt of the operating permit,
b) Failure to become a member of the Union within one month of the date of receipt of the operating permit and failure to comply with this obligation within one week following warning of the Agency.,
c) Failure to notify the Agency about change of address within the required period and not being present at the address despite the service of a legal notification,
ç) Suspension of operations constantly for a period of one year,
d) Being involved in activities forbidden under subparagraphs (a) and (d) of the first paragraph of Article 9,
i) Ceasing activities.
(2) Decisions about the cancellation of operating permit shall be served upon the company and be published in the Official Gazette. Publication of the cancellation decision in the Official Gazette shall serve as service of notice to the related parties.
(3) The company whose operating permit is cancelled must cease its activities immediately and within three months starting from the date of cancellation, must hold a general assembly meeting and take decisions to change the company name and field of activity or to start liquidation procedures.
PART SEVEN Final Provisions Amended provisions
ARTICLE 51 - (1) The following sub paragraph is added in the twentieth clause of the section named “I-Title transactions” of tariff No. (4) with the header Fees to be charged in the land registry and cadastre transactions of the Fees Act No. 492 dated 07/02/1964.
“g) 3.96 per thousand from the transferor, at the sale to the lessee of the real estates which were leased with the condition of being taken back at the end of the term of the agreement by the lessee in the scope of the lease agreements made with the sale and lease-back method (in case it is determined that the real estate has not been taken lease-back by the lessee in any way, the fee which corresponds to the difference between the rate specified in sub-paragraph (a) and this sub-sub-paragraph plus default interest shall be collected from the related persons in accordance with the provisions of the Law No. 213)”
(2) The Council of Ministers is authorized to determine the maximum interest rates applicable to the money lending transactions of the financial leasing, factoring and financing companies and their branches established in Turkey and the qualifications, maximum amount or rates of other benefits, and set these partially or wholly free. The Council of Ministers may transfer these powers to the Central Bank of Turkey.
ARTICLE 52 - (1) Financial Leasing Law No. 3226, dated 06/10/1985 and Decree on Money Lending Transactions dated No. 90 dated 09/30/1983 and its supplements and amendments have been repealed.
(2) References in other laws made to Law No. 3226 and Decree No. 90 shall be construed as made to the relevant provisions of this Law.
Implementation of existing regulations
PROVISIONAL ARTICLE 1 - (1) Until the regulations based on this Law are put into effect, the provisions of the regulations which are based on the repealed provisions and which are not contrary to this Law continue to apply.
(2) The regulations provided for in this Law shall be put into effect within one year.
PROVISIONAL ARTICLE 2 - (1) The companies must adapt their situations to comply within 3 years with sub clause (f) of the first paragraph of Article 5, and within 6 months to the second paragraph of Article 13 and first paragraph of Article 8. In the case of force majeure and if these are deemed appropriate by the Board, these periods may be extended for a period not to exceed one year.
(2) The provisions of the first paragraph shall apply for those who have applied to the Agency for operating and establishment permits before 04/30/2012.
Obligations with respect to the Union
PROVISIONAL ARTICLE 3 - (1) The statute which covers the Union organs, representation of the companies in the Union organs, Union’s operating principles and scope of activities, to be prepared by the Financial Leasing Association, Factoring Association and Association of Consumer Finance Companies after taking the opinion of the Board, shall be put into effect by the decision of the Council of Ministers upon recommendation of the Agency.
(2) Companies active before the entry into force date of this Law must become members of the Union within one month from the date the Union starts its operations.
(3) Regarding the registration of agreements to be registered before the special registry maintained by the Union pursuant to the provisions of this Law, provisions of repealed Law No. 3226 related to registration shall continue to apply until the procedures and principles in relation to registration are determined pursuant to Article 22.
(4) Until the establishment of the Union, the relevant provision of Law No. 3226 which has been repealed by this Law shall continue to be in effect for the registration of leasing agreements to be made in accordance with Article 21.
(5) The transactions prescribed in the first paragraph of Article 43 of this Law shall be performed within one year following the date of establishment of the Union.
Existing financial lease agreements
PROVISIONAL ARTICLE 4 - (1) The provisions of Law No. 3226, which has been repealed by this Law, related to periods shall continue to apply for the financial lease agreements executed before the enactment of this Law.
Provisions related to loan lenders
PROVISIONAL ARTICLE 5 - (1) Those performing loan lending activities based on the power granted by Decree No. 90 may apply to the Agency for the purpose of performing one of the activities stipulated in this Law within six months of the enactment of this Law. Within this period, they cannot perform any loan lending activities other than transactions related to the collection of their receivables arising from existing agreements. The loan lenders who applied to the Agency may continue their activities as factoring, financial lease or finance companies upon obtaining the required permits from the Board. The companies to be established shall be obliged to fulfil the capital requirements indicated in sub paragraph (e) of the first paragraph of Article 5 of this Law within three years. The loan lending permits of those who have not applied to the Agency or who could not obtain the necessary permits from the Board shall automatically cease without any additional procedure.
ARTICLE 53 - (1) This Law shall enter into force on the date of its publication. Implementation
ARTICLE 54 - (1) This Law shall be implemented by the Council of Ministers.