Transfer Of Assets Agreement

Transfer Of Assets Agreement

Interest in the transfer of assets Some experts argue that the interest of the transferor and the transferee in the transfer of assets must be greater than the interest of the third party in maintaining the freedom of choice of its contractors. This argument is very controversial. However, an analysis of the different interests involved does not show any particular divergence in the context of securitisation. Without notification, the third party would not acknowledge that the contract has been transferred, as the maintenance remains exactly the same. However, the originator and the securitisation vehicle are clearly interested in the transfer. Similar questions arise with regard to non-assignment clauses. Although a contract may be transferred without the consent of the third party, the third party may have an extraordinary right to terminate the contract. Here too, the right of termination is based on the idea of mitigating the negative consequences, but there are no such consequences in a securitisation context – a simple refinancing of the asset does not have a negative impact on the position of the third party. However, in the case of the securitisation of exposures (including future receivables) and not in the case of entire agreements, account should be taken of the fact that future receivables being assigned are considered to exist with the assignor for a “theoretical second” before being assigned to the assignee (i.e.

the securitisation vehicle). Therefore, the risk of bankruptcy of the originator – as a mediator of claims – is a serious problem. All claims arising from the opening of bankruptcy proceedings with the originator can no longer be assigned to the securitisation vehicle and are instead part of the originator`s estate. Thus, the credit quality and insolvency risk of the originator may influence the creation of future claims. The remote transfer of the insolvency of outgoing and future claims from a Swiss originator to a securitisation vehicle can only be achieved by transferring the respective contracts as a whole and not by simply assigning the resulting claims. The law governs mergers, divisions, corporate restructurings and transfers of assets. Under the relevant provisions of the law, a company or private company registered in the commercial register may transfer all or part of its assets and liabilities to another legal person in a single act, which is called “global succession” and derives from merger law. . . .


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