The agreement of third parties is not always a problem. For example, in the case of a commercial risk securitization (CMBS), the borrower is accepted as part of the mortgage before the mortgage is transferred from the originator to the securitization vehicle. There are several reasons to get the borrower`s agreement. Although there is usually no consent for the transfer of the loan itself, a borrower can be contacted to confirm that he will comply with the tax assurances and guarantees given under the mortgage loan agreement, even after the conclusion of the securitization, provided that the mortgage is properly structured and the language of transmission is properly drafted. Most Swiss legal experts believe that contracts can be transferred without the consent of third parties. Some invoke the concept of partial total succession, arguing that if the agreement of third parties were necessary, the newly introduced concept of universal succession of transfer of assets under the law would be useless and that the interpretation of the law as a necessity of the consent of third parties would run counter to its spirit. They argue that their objective is to facilitate the transfer of assets so that the parties can freely and easily transfer a set of assets and liabilities; In the absence of universal partial succession before the entry into force of the law, it is considered central to the transfer of assets under the law. Despite this majority opinion, a number of points must be taken into consideration. Outstanding assets to be transferred The transfer contract must contain an inventory indicating the assets and liabilities to be transferred between the parties. The inventory should be as accurate as possible. However, it can relate to a set of assets, for example. B a commercial entity, provided that those assets are easily identifiable.
The inventory may contain only assets that affect the position of the assets on the balance sheet; It is therefore not possible to include elements such as commercial assets or good-business. This condition is relevant, in particular as regards the legal requirement that the transfer of assets and liabilities is only permitted if the inventory shows a surplus of assets, since the inventory thus constituted must show an overall net surplus. Until such a decision confirms the position, it is advisable to act with caution in the transfer of agreements by transfer of assets under the law: abusive transfer of assets The consent of third parties may nevertheless be required if it turns out that the decision to transfer assets was made under the law for invalid reasons. If the purpose of the action is not reflected in the transaction, this is a strong indication that the choice of this form of transaction is considered abusive. This may be the case, for example, where an asset transfer is chosen for the sole purpose of circumventing the third party consent requirement or where there is no economic justification for the transfer of an agreement under the law (e.g. B if only one agreement is transferred). However, in the context of a contract securitisation, there is a clear economic justification: a pool of agreements (and probably other assets, such as cars or other leased assets) must be transferred and the pool of assets to be refinanced is homogeneous. The offeror and the securitisation vehicle will comply with all agreements initially concluded by the offeror with the third party and will fulfil their respective obligations.
The objective of the transfer is not the flight of contractual obligations, but only the refinancing of assets. Therefore, the issue of abuse does not arise. The transfer of assets from the originator to the securitisation vehicle is essential for a number of reasons. The actual sale of assets is often referred to as the core of a securitization transaction. Generally speaking, real sales issues involve issues such as the insolvency remote control and accounting issues, which can usually be addressed by carefully structuring the transfer. However, the third-party agreement (if necessary) can be a significant obstacle to the transfer of agreements in a securitisation, in particular in the case of a portfolio consisting of a large number of agreements that need to be transferred to the securitisation vehicle. . . .