Where would you place Turkey's jurisdiction on the perspective of debtor to creditor-friendly procedure?
According to Turkish law, the collection of debts, bankruptcy and restructuring procedures is regulated primarily by the Law on Execution and Bankruptcy (Law No. 2004) ("EBL") (published in the Official Gazette of 19 June 1932 and numbered 2128). The EBL offers provisions that prefer to equalize creditor and debtor interests.
We can give as instances of such a tendency that while the creditor may conduct an execution proceeding against the debtor without relying his arguments on any paper or judgment of the Court, the debtor may revoke such proceeding simply by providing an objection.
Article 85 of the EBL provides that both parties ' interests must be balanced by the executive.
The EBL lays forth rules aimed at preventing the immoderate breach of the debtor's right to property, such as certain debtor's properties required for the operation of the debtor's company and his house proper for his unattached financial situation.
Does the regulatory structure under your jurisdiction permit unofficial work-outs as well as structured bankruptcy and insolvency proceedings, and to what degree are each actually used?
Financial restructuring can be carried out in an informal manner with a pact between the debtor and his creditors. Such monetary settlement would not be binding with other creditors.
There must be no execution of the contracts to hide assets from other lenders, which will stop them from receiving their receivables and cause them to lose. The debtor who has concluded arrangements with a view to causing damage to his creditors shall be deemed a fraudulent bankruptcy and punished in accordance with the Turkish Criminal Code (Law No. 5237) (published in the Official Gazette of 12 October 2004 and numbered 25611).
In fact both informal work-outs and structured processes for bankruptcy and insolvency are commonly used.
Core issues to remember when the company is in distress
When running a business in financial issues, what duties and potential liabilities should the executives / administrators consider? Is there a particular point where a business is required to enter a phase of bankruptcy or insolvency?
If a business is believed of being in debt, a provisional balance sheet must always be prepared by the management board. Pursuant to Article 179 of the EBL and Article 376 of the Turkish Commercial Code (Law No. 6102) (published in the Official Gazette of 14 February 2011 and numbered 27846)(' TCC'), in the event that the business's obligations exceed its securities and/or it is comprehended from the provisional balance sheet that the corporation is in serious debt, the company's board shall apply to the Commercial Court for liquidation.
In compliance with Article 377 of the TCC, board of directors or a creditor may also apply to the Court for concordat restructuring during the bankruptcy case.
Article 345/a of the EBL provides that in the event that a business's authorized persons fail to apply for bankruptcy, they shall be judged with incarceration for up to three months following a complaint lodged by one of its creditors. The company's board is responsible for damages resulting from such loss.
Which other shareholders can affect the position of the corporation? Is there any limitation on the measures they may take against the business? For instance, are there any different rules or regulations that apply to the laws of your jurisdiction for particular types of unsecured creditors (such as landlords, staff or creditors with protection of title arrangements)? Are moratoriums and stays available on enforcems?
When a joint-stock corporation is suffering losses, reducing its paid-up share capital by two-thirds, the board members is required to call an extraordinary board meeting. The shareholders at this session must either decide to accommodate the business in funds for the cumulative loss or to reduce the corporation's paid-up share capital to one-third of its existing share capital.
If one of these measures is not taken by the stakeholders, the management team is required to submit a bankruptcy lawsuit with the relevant commercial court. See also Issue 4.2. Some creditors, such as landlords, creditors with retention of title arrangements, banks, and creditors with negotiable instruments, have special debt collection procedures available.
There are also specific rules for personnel to conduct an expedited trial.
The creditors may make a stay or suspension arrangement. During the standstill time, lenders will not take action to impose protection, make demands or speed up loans or other debt claims, take legal action against the corporation and likely not exercise set-off rights.
The renegotiation of bankruptcy provisions allowing an insolvent company or individual to prevent declaring bankruptcy when, and to the degree that their financial situation is supportable, Law No. 7101 (published in the Official Gazette of 15 March 2018 and numbered 30361) amending the EBL is abolished.
Based on the precautionary measures that may be taken by the Court, compliance stays can apply.
In what situations are investments conducted by a business at risk of difficulty under financial problems? What are the appropriate remedies?
The duration of the hardening period is a key concept in insolvency and bankruptcy proceedings, provided a transaction made during a hardening period can be considered invalid by a court.
During the debt collection and liquidation cycle, insolvent / bankrupt transactions completed prior to insolvency / bankruptcy, in particular transactions within the duration of the debt collection and liquidation period, may result in the revocation of such trades provided that such trades fall within the scope of Articles 278, 279 and 280 of the EBL, which specify three different hardening periods.
The one-year duration applies to I security interests where such security interest is generated to protect an existing debt and the security collateral provider has not committed to include security interest at the time the debt is incurred, (ii) payments made through instruments other than cash or ordinary payment instruments, (iii) payments made prior to their due date, and (iv) certain annotations.
Such deals should have taken place within one year before the debtor's bankruptcy or the attachment of his assets in order to cancel such deals.
The duration of two years applies to donations or gifts.
The hardening period of five years applies to purchases made by the debtor with one of his creditors in order to endanger his other creditors, provided that the creditor with whom the transactions are made is aware of the debtor's insolvency and purpose at the time of the sale.
To order to cancel the above-mentioned transactions, they should have been concluded within five years before the bankruptcy or execution proceedings are started.
What official rescue methods to restructure the liabilities of distressed businesses are usable in your jurisdiction? Is it possible to exchange debt for equity and pre-packaged sales? To what degree can creditors and/or investors pursue an advantage by blocking these procedures or threatening action (including security enforcement)? Do your practices allow you to limit dissenting shareholders?
Under Turkish law, concord restructuring and out of court restructuring are the major types of restructuring.
Concord restructuring is recommended in conjunction with a plan by the debtor or a creditor to compromise certain obligations. The key goal is to present a possible success through a concordat plan, with no intent to cause creditors any damage or loss. The restructuring can be carried out in three specific ways: as the ordinary concordat; as the concordat in bankruptcy; and as the concordat through the abandonment of resources. Some limitations are imposed on creditors under a limited period and a precise concordat period to enforce their rights over businesses.
No proceedings may be brought against the business during the temporary period and precise concordat period and any proceedings previously initiated shall be terminated. The statute of limitations and prescription limits shall be revoked. There shall be no preliminary injunctions. Foreclosure proceedings, mortgage cases and business commitments may be initiated / continued as long as lenders are unable to take protection measures and the selling of promised assets can not be carried out.
For capital stock businesses and cooperatives, amicable restructuring is applicable. If a business is unable to pay its debts or its receivables are not sufficient to recover its debts or if the corporation is threatened to face these measures, such company may appeal to a Commercial Court for an amicable restructuring petition.
As far as debt-for-equity swaps are concerned, it is understood that the main element of any debt-for-equity swap is a restructuring of a business debtor's balance sheet so that the applicable participating lenders obtain equity interests in a reorganized capital structure in view of the their debt claims against the business.
Joint stock companies and limited liability companies are liable for their debts pursuant to Article 329 and Article 602 of the TCC only by their assets held as a legal body. Because of a business debt as a legal entity, it is not necessary to place an obligation on the stock of an investor. Under Article 133 of the TCC, in equity firms where the lenders have a shareholder receivable, the related creditors are entitled to request that the shares held by the debtor investor be annexed in compliance with the applicable provisions of the EBL relating to mobile assets and to demand that they be sold and converted into money.
The lenders also have the right to obtain their receivables from the debtor shareholder's receivables from the corporation for all businesses, and also to place an obligation on them. Please also note that the above provision does not prevent creditors from applying outside the company to the debtor shareholders ' resources.
With regard to pre-packaged sales, a pre-packaged sale can be made under Turkish law under Article 538 of the TCC. Unless otherwise agreed by the general meeting, pursuant to that Act, the liquidator could negotiate the sale of the company's active properties. If the object of the sale contains a substantial amount of retail, a motion of the annual general meeting is necessary. The sale is then carried out by the liquidators.
With regard to concord settlement, in the event that the Court does not authorize the concord or reverses the concord duration, it will decide instantly on the debtor's bankruptcy on the concord commissar's document. Creditors may apply to the Court for revocation of the concord settlement if it is considered that the debtor has acted in bad faith in accepting the restructuring plan or that the debtor is in violation of the concord provisions.
With regard to out of court restructuring, the debtor will continue operating if the restructuring goal is met. If the business infringes the terms of the friendly settlement, the business must try to reconcile with the lenders and have an adjustment to the restructuring plan accepted by the Court. In the lack of an arrangement, the settlement may be terminated by a lender to the Court. In the event that the Courtdiscovers that the corporation has not met its responsibility resulting from the friendly settlement, it will rule on bankruptcy.
Turkish insolvency legislation does not contain any other cram-down provisions. Concord and friendly agreement may include conditions for lenders to cram together as a whole.
What are the equirements for entry in each restructuring process?
Concord restructuring is governed pursuant to EBL Articles 285–309 aimed at debt liquidation by shielding both the weak financially placed debtor and his creditors. Concord restructuring may be proposed by the debtor, where he / she submits to the Court a concordant preliminary plan along with documents proving his / her financial status, a list of creditors and privileged creditors, a chart comparing the amount to be granted to creditors with a concordant restructuring and the quantity to be received by creditors in the event of bankruptcy.
By appointing a commissioner and taking all required steps to protect the debtor's assets, the Court shall grant a temporary period. The request for agreement will then be announced and creditors can object to the request for agreement within seven days of the official release.
If the Court finds the concord plan to be viable, it can accept it once the concord commissioner has received a tangible study. If necessary, the Court shall grant a precise one-year period of concord with the appointment of a commissioner and a board of creditors. In the event that the Court does not approve the concord or cancels the exact concord period, the bankruptcy will be decided.
For capital stock companies (excluding banks and insurance companies) and cooperatives, restructuring is acceptable. The corporation shall report its restructuring plan that the creditors impacted by the conditions of the plan have already agreed and approved. The creditors who are invited to discuss the restructuring plan, are also deemed to be creditors impacted by the plan's terms. The Court holds a hearing where they can state their case against the creditors. To make the plan active, half of the total number of creditors and a two-thirds majority of creditors who took part in the plan's vote will accept it. The Court must endorse a friendly restructuring plan.
Who is managing every process? Is there any involvement with the court?
As far as concord restructuring is concerned, the concord commissioner is responsible for overseeing the debtor's actions, reporting to the Court and informing the creditors of the concord period (Article 290 EBL). The creditors board oversees the commissioner's acts and is entitled to order from the Court a new appointment of a new commissioner if and when required.
With regard to friendly restructuring, if the Court takes measures to protect the debtor's assets until its judgment on the ratification or denial of an amicable restructuring plan, creditors and debtors–or, if the Court does not agree on one, the Court –may appoint one or more mid-term auditors to be responsible for managing, managing and supervising the debtor's activities from the deadline of the restructuring.
If the plan is ratified by the Court, it may nominate one or more plan supervisors in its ratification decision, who will have the authority to oversee and track the execution of the plan and report to the creditors on the situation (Article 309(p) of the EBL).
What is the impact on existing contracts of each restructuring procedure? Are the parties obliged to fulfill the obligations outstanding? What are the protections for those forced to fulfill their outstanding duties? Will the rules for termination and set-off be upheld?
The terms of contracts that recognize concord claims as a valid legal reason for dismissal are not enforceable. In the absence of such a provision, by referring to concord as a reason for termination, it is legally impossible to terminate a contract.
The debtor may terminate arrangements with perpetual liabilities in the event that such agreements create a risk to the successful completion of the agreement with the Commissioner's positive view and the Court's consent. A set-off carried out with the aim of damaging the creditors ' rights may be subject to objections before a Court and consideration shall be given to the date of the period of time.
The debtor may continue his activities under the supervision of the Commissioner pursuant to Article 297 of the EBL. The Court may decide whether certain transactions are only legitimate with the commissioner's permission or whether the commissioner should perform the existing activity instead of the debtor. The debtor can not use liens, summons, transfers or limitations to suspend free of charge the operation's pending proceedings or partly without the Court's leave from the date of the judgment on the relief. The payments are otherwise invalid. Until issuing its verdict, the Court must take into account the lenders ' and the commissioner's opinions on certain activities. The parties fulfilling their outstanding obligations do not have specific protection.
As far as friendly restructuring is concerned, the terms of the restructuring project will override all commitments made with creditors affected by the project. The following rules will not apply in the negotiations, irrespective of whether the contracts have been concluded with creditors impacted by the project:
- Terms that could lead to the amendment or termination of the agreement.
- Terms providing that a debtor’s use of restructuring is an act of default / breach of the agreement.
How is each process of restructuring funded? Is there any protection given to save the financing?
According to Article 285 of the EBL, the applicant shall deposit the costs and fees of the Court in advance. A fixed fee shall be paid in accordance with Annex 1 of the Law of Charges when applying for a request for concord. Other applicable fees and taxes, such as expert examination costs, announcement expenses, concord commissar expenses and other service expenses, are also to be paid in advance by the applicant.
About Insolvency Procedures in Turkey
What is the main insolvency method for winding up a business?
The types of insolvency proceedings provided by the EBL are: voluntary bankruptcy; and bankruptcy.
For what reasons can a company be placed in each process of winding up?
When a joint-stock firm is suffering losses, increasing its paid-up share capital by two-thirds, the management team is required to call an extraordinary general meeting. The shareholders at this meeting must either decide to compensate the company in cash for the accumulated loss or to reduce the firm's paid-up share capital to one-third of its existing share capital. Otherwise, the management team will be required to file a bankruptcy lawsuit with the relevant First Instance Commercial Court. If a voluntary bankruptcy lawsuit is not filed by the management board, each chairman shall be liable personally, jointly and severally for any and all actual damages incurred by the creditors and shareholders.
Bankruptcy types in Turkey
1. Ordinary Bankruptcy
Ordinary bankruptcy requires a creditor presenting a debtor's bankruptcy proceedings. Bankruptcy may only refer to vendors (i.e. a company or an individual engaged in buying and selling goods for profit) in relation to their unpaid (and due) debts.
2. Special bankruptcy
A creditor holding negotiable instruments (checks, bonds or promissory notes) may bring special insolvency proceedings against the debtor for negotiable instruments.
Direct bankruptcy is inevitable where the liabilities of the debtor are higher than their current assets. Individuals who are allowed to manage and represent these corporations, cooperatives or any of the creditors map apply for bankruptcy of the debtor. The company law provides for a different direct explanation of bankruptcy, which happens when a company's debts are more than its assets.
What handles the cycle of winding up? Is there any involvement with the court?
Following the decision on bankruptcy, the Court notifies the bankruptcy department of such a verdict, which prepares a list of assets, takes the necessary measures and calls for a first meeting of creditors.
The applicants for bankruptcy managers will be notified to the Execution Court at the first meeting of creditors. The Execution Court therefore appoints the bankruptcy managers who constitute the management of the bankruptcy.
The creditors must file with the bankruptcy board within one month of the bankruptcy statement. After the registration period given for the creditors has expired and the bankruptcy management has been appointed, the bankruptcy management is reviewing the registrations and compiling a list of creditors, listing the creditors ' payment demands, sending the applicable list to the bankruptcy office and contacting the creditors..
Upon determining the creditors, the Bankruptcy Administration shall invite the creditors whose claims are approved in whole or in part by the bankruptcy administration and who have filed a suit for inclusion in the ranking schedule and agreed to attend the meeting to the second session.
The powers of the second meeting of creditors are broader than the first session. The second meeting of creditors decides whether or not the bankruptcy administration will continue its operation, ownership claims, whether or not to postpon the litigation, the selling of certain assets by mediation, and the bankruptcy settlement bid.
The property of the debtor shall be sold and distributed by the administrators of the bankruptcy. By submitting a final report, the administration will request the closure of the bankruptcy and the Commercial Court, which started the bankruptcy, will also have to decide on the closure.
How can creditors and/or shareholders influence each process of liquidation? Is there any limitation on the action they can take ( including security enforcement )?
Any proceedings initiated against the debtor for debt recovery before his bankruptcy are suspended at the beginning of the bankruptcy (i.e., the Court's judgment) and terminated at the conclusion of the bankruptcy decision (i.e. after the appeal process has been finalized).
A creditor with a previously perfected pledge / hypothecary has a preferential right to the property's proceeds. The pledged / hypothecated assets will be sold by the bankruptcy administration as soon as possible and the proceeds will be paid to the pledgee / hypothecary without waiting for the liquidation to end.
After the declaration of bankruptcy, the pledgee / mortgagee may begin an execution by way of foreclosure of the pledge / mortgage and/or continue the execution proceedings against the bankruptcy property filed before. If the property pledged / mortgaged is insufficient to forgive the debt, the remaining debtor will be the pledgee.
If the claim of the bankrupt is found by the bankruptcy administration to be needless to pursue, this claim may be transferred to any claimant creditor. If the latter succeeds in such argument, after deducting the expenditures, the sum to be collected will be earned by the respective creditor.
What is the effect on existing contracts of each winding-up procedure? Are the parties obliged to meet the commitments outstanding? Will the conditions for termination and set-off be upheld?
The effect of opening the bankruptcy on the bankrupt's existing contracts is a very comprehensive issue depending on the type and terms of the agreement. Some of the existing agreements may be considered to be terminated after the bankruptcy has been opened. Contracts relating to usufructuary lease, financial lease, mandate, commission, agency, ordinary partnership and current account, for example, could be considered to be revoked inevitably upon bankruptcy. On the other hand, notwithstanding the bankruptcy, some of the existing agreements will not be suspended. For example, sale, barter, donation, ordinary lease, commodatum, mutuum, employment, construction, insurance and security contracts may still be considered not to be revoked despite the bankruptcy launch.
While the business operation for the management of the company can be continued until the bankruptcy decision is made, following the opening of the bankruptcy, since the management will have no disposal and/or representation authority, it is not legally possible for the management to continue the business operation.
The bankruptcy administration will be entitled after bankruptcy to continue executing existing (but not yet executed / performed) agreements, but is not obliged to do so. If the performance of the agreement (efficiency of the obligation of the bankrupt resulting from the contract) is more beneficial to the estate of the bankrupt, the administration of the bankruptcy shall prefer to perform the contract. Otherwise, the contract subject will be converted into money and registered as receivable bankruptcy on the estate of the bankrupt.
What is the ranking of claims in each proceeding, including the expense of the proceeding?
The balance shall be allocated by the Bankruptcy Office in compliance with EBL Articles 206 and 207. The Bankruptcy Office first takes into account receivables from preferred creditors Only after the preferred creditors are fully satisfied will ordinary creditors be paid. In respect to a receivable arising from a contract, please note that such receivable is in theory an ordinary receivable unless it is secured through a promise or loan.
The property's liabilities are determined by a rating system. A ranking schedule shall show the accepted portion and rank of each credit registered to the estate and all claims other than ownership claims.
Once the expenses of the proceedings have been paid, the property pledged / mortgaged is part of the bankruptcy estate and a party with a previously mastered pledge / mortgage has a preferential claim to the proceeds of the property pledged. The pledged / hypothecated property will be sold by the bankruptcy court as soon as possible and the proceeds will be paid to the pledgee / hypothecary without waiting until the liquidation ends.
After the bankruptcy declaration, the pledgee / mortgagee may trigger an execution through foreclosure of the pledge / mortgage against the bankruptcy property.
If the estate pledged / mortgaged is insufficient to cancel the loan, for the rest, the pledgee is an unsecured creditor.
The receivables secured but not covered by a pledge/mortgage, or unsecured receivables are listed in order to be paid in the below priority:
- First priority : Employee's receivables including severance and notice payments resulting from the employment relationship and received for the year prior to the bankruptcy opening along with the severance and notice payments they receive as a result of bankruptcy termination of the employment relationship.
Employers ' debts to the foundations and organizations that were set up to form provident funds or other employee assistance structures and to maintain them. All kinds of family law receivables that had accrued for the year prior to the bankruptcy opening.
- Second priority: Receivables from persons whose property is entrusted to the debtor as a result of parenting and appointed guardianship.
- Third priority: Receivables that were classified as preferential receivables
- Fourth priority: Unfavorable claims
Before paying creditors in the following category, all creditors in a category must be satisfied. If the remaining money is not enough for the unprivileged receivables, it will be allocated in proportion to their receivables among those creditors.
The Bankruptcy Office and Bankruptcy Administration's costs can be deducted from the assets of the bankrupt. Expenses related to the declaration of the judgment on bankruptcy, asset protection, liquidator fees, etc., are some examples of such expenses. Payments relating to property debts take precedence over receivables for bankruptcy.
Is it possible in the future to restart the company?
According to Article 547 of the TCC, if it is decided that the liquidation has not been properly carried out and further liquidation has to be carried out, the competent commercial court may agree to reimburse the company for further liquidation at the request of the board members, lenders, shareholders or liquidation officers. Before the start of the distribution of assets between shareholders, shareholders may cancel a liquidation decision.
Insolvency Procedure and Tax in Turkey
What are the tax risks that may relate to a system of restructuring or insolvency?
The liquidation procedure regulated by Article 17 of the Corporate Income Tax Code (the "CIT Code") (Law No. 5520) (published in the Official Gazette on 21 June 2006 and numbered 26205) shall apply to a bankrupt company. Instead of the fiscal period, the liquidation period is considered.
According to subparagraph (a) of Article 17(1) of the CIT Code, on the date of registration of the General Assembly, the liquidation process starts resolving that the company is going into liquidation and that process is completed on the date of registration of the liquidation resolution.
For situations where liquidation is closed with loss, the outcome of the liquidation will be applied to the previous liquidation periods and the taxes overpaid in the subsequent periods will be reimbursed.
If the liquidation process begins and ends within the same calendar year, the liquidation tax return is sent to the associated tax office within 30 days from the date the liquidation is completed. If these are found in different calendar years, the liquidation tax return shall be sent to the tax office for each liquidation date from the first day until the evening of the 25th day of the fourth month after the month in which the liquidation period is ended.
Under Article 17(4) of the CIT Code, the liquidation income shall be the tax base of a company entering the liquidation. The profit from liquidation is the positive difference between the value of the assets at the conclusion of the liquidation period and the value of the assets as at the start of the same period.
Similar provisions of the CIT Code concerning deductible expenses, loss deduction, other deductions and non-deductible expenses are taken into account during the calculation of the liquidation profit. Upon calculation of the net liquidation profit, the corporate income tax at the rate of 20% shall be declared and paid in respect of that profit.
Without setting aside a provision pursuant to Article 207 of the EBL relating to I taxes already levied on behalf of the company, (ii) taxes calculated on the basis of liquidation tax returns, and (iii) other disputed tax assessments, liquidation officers can not pay to the creditors referred to in Article 206 of the EBL and can not distribute to the shareholders.
Those relating to the pre-liquidation period shall be imposed on behalf of one of the liquidator officers and those relating to the liquidation period shall be imposed on behalf of the legal representative of any and all types of tax assessments and tax penalties imposed by companies that have already been liquidated and the legal personality of which has been cancelled from the trade registry.
Shareholders of limited companies shall be held liable for public receivables related to the pre-liquidation period, limited to the proportion of the share capital they have invested in the company. The liability of the liquidation officer for the amount distributed as a result of the liquidation is limited.
Employees and the procedure
In all procedures, the first rank of unsecured credits is determined to be credits resulting from the compensation to be paid by employers in respect of the employment agreements. Please see our response to question 4.6 as well.
Employees may claim employee receivables including severance and notice payments arising from the job and accrued for the year prior to the bankruptcy opening together with the severance and notice payments arising from the termination of their job. In the event of bankruptcy, employees ' receivables are accepted at first rank as privileged receivables.
Cross-border Effects during an Insolvency Procedure in Turkey
Could businesses elsewhere in your jurisdiction use bankruptcy procedures or participate in insolvency proceedings?
Article 154 of the EBL specifies that the competence of the Commercial Court at the place where the business center of the debtor is situated applies to the matter of public order and is exclusive. At the location where the debtor's business center is located, the Commercial Court has jurisdiction over requests for concord restructuring and agreeable restructuring. Consequently, insolvency proceedings in Turkey can not be initiated by the businesses incorporated abroad.
Is there room to be accepted elsewhere in your jurisdiction for a bankruptcy or insolvency process?
Turkish authorities do not accept or execute judgments of bankruptcy from other jurisdictions issued to a Turkish entity. Following the enforcement and recognition process, a decision given to a foreign person may be enforced in Turkey.
Should corporations restructure and enter insolvency proceedings in other jurisdictions that are registered in your jurisdiction? Is this practice common?
Since the jurisdiction of the Turkish courts in the bankruptcy and restructuring proceedings relates to the matter of public order, the Turkish authorities do not recognize or execute insolvency proceedings or insolvency judgments of other jurisdictions granted to Turkish entities.
Therefore, entering into insolvency or restructuring proceedings in other jurisdictions is not a common practice for Turkish companies.
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