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Agreements
Before the TCC entered into force in July, 2012, within the context
of an asset deal, all agreements of a target company must have been
assigned to the buyer with the consent of the other party of such
agreements, since there was no special provision regarding the transfer
of business through one single transaction. Upon TCC coming into
force, the transfer of agreements within an asset deal became contro-
versial for Turkish scholars. Although TCC Art. 11/3 sets forth that a
commercial enterprise
can be transferred as a whole without requiring
separate transactions for the transfer of each asset, as a basic argument,
some scholars accept agreements as being assets of such business,
since they create obligations and receivables; whereas some scholars
argue that due to the change of party provisions under the TCO, the
agreements of a business shall still be assigned separately. With respect
to the transfer of the lease agreement of a business place, Art. 323 TCO
regulates that the lessor cannot refrain from providing the approval
without just cause
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. In practice, in order to be on the safe side, it is rec-
ommended to draft special provisions under the sale and purchase
agreement for receipt of the approvals by the relevant counter parties.
Within the context of a share deal, agreements of a target compa-
ny will continue to be valid and enforceable with the same terms, with-
out the need for a separate assignment. In this respect, some of the
agreements may contain change of control clauses that may entitle the
counter-parties of such agreements to terminate the relevant agreement
in the event of a share transfer in the target company. Therefore, simi-
lar to the suggestion with respect to an asset deal, it is essential to draft
a condition precedent in the sale and purchase agreement of a share
deal to obtain the necessary approvals from the counter-parties of those
relevant agreements.
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NEWSLETTER 2014
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According to Temporary Art. 2 of the Law No.6217 dated 31 March 2011 amended with the
Law No. 6353 dated 4 July 2012; should the lessee be a merchant according to TCC, a public
law or private law legal entity, Art. 323, 325, 331, 340, 342, 343, 344, 346 and 354 shall not be
applied for a period of 8 years as of 1 July 2012. In such a case, the relevant articles of the agree-
ment or the provisions of the abrogated Turkish Code of Obligations.