SWITZERLAND Law and Practice Contributed by: Johannes Bürgi, Roger Ammann, Lukas Wyss and Maurus Winzap, Walder Wyss Ltd
3.8 Bonds/Notes/Securities The terms and conditions of the notes are typi - cally included in the note trust deed and nor - mally include provisions relating to: • the form and denomination of the notes; • the status and priority of the notes; • limited recourse and non-petition; • covenants of the issuer; • payments on the notes of interest and princi - pal; • redemption of the notes; • priority of payments; • bondholder provisions; and • governing law and jurisdiction. 3.9 Derivatives Depending on the underlying assets, the notes and the particularities of a transaction, Swiss securitisation structures may provide for the use of derivatives (such as swaps) to account for and mitigate, in particular, interest rate and foreign exchange risks. 3.10 Offering Memoranda The prospectus regulations contained in the Swiss Financial Services Act (FinSA) and the Swiss Financial Services Ordinance (FinSO) provide that any person offering securities for sale or subscription in a public offering in Swit - zerland or any person seeking the admission of securities for trading in a trading venue as defined in the Financial Market Infrastructure Act (FinMIA) must first publish a prospectus. There are various exemptions available from the pro - spectus requirement (eg, based on the type of offering) and the prospectus requirements need to be analysed on a case-by-case basis. If a pro - spectus is required, it will need to be approved by a prospectus review body appointed by the Swiss Financial Market Supervisory Authority (FINMA). Whilst the approval will generally need
to be obtained in advance of the public offer - ing, such approval may also be obtained after the public offering has started for certain debt instruments and under certain conditions. The approved prospectus will need to be published in accordance with FinSA.
4. Laws and Regulations Specifically Relating to Securitisation 4.1 Specific Disclosure Laws or Regulations
There is no specific securitisation legislation in Switzerland, but the FinSO contains limited disclosure requirements specifically relating to ABS. These rules provide for the disclosure in the prospectus (in addition to the general dis - closure requirements) of (i) a transaction sum - mary, covering the general characteristics of the structure and a structure overview, risks related to an investment in the ABS, cross-references to the specific sections in the prospectus dealing with such risks, and (ii) a transaction overview, covering key elements of the transaction (ie, structure, parties involved and their role, cash flows and credit enhancement), a description of the assets that back the transaction and related risks, historical key date (three years) relating to the relevant assets, structural risks, legal risks and other significant risks. The limited disclosure requirements outlined above will need to be complied with (in addition to the general prospectus and listing require - ments) when issuing securities to the public capital market in Switzerland. To the extent that Swiss securitisation transactions are placed out - side of Switzerland or become otherwise sub - ject to Regulation (EU) 2017/2402 (the “Secu - ritisation Regulation”), the transactions must be
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