SPAIN Law and Practice Contributed by: Jaime de la Torre and Jaime Juan Rodríguez, Cuatrecasas
Cuatrecasas Calle de Almagro, 9 28010 Madrid Spain Tel: +34 915 247 100 Email: madrid@cuatrecasas.com Web: www.cuatrecasas.com
1. Specific Financial Asset Types 1.1 Common Financial Assets The Spanish securitisation market is dynamic and closely linked to the country’s economic conditions. Consumer loans and auto loans are the most commonly securitised assets in Spain, based on the number of transactions. The remaining transactions involved trade receivables, corpo - rate loans, residential mortgage loans and non- performing loans. 1.2 Structures Relating to Financial Assets There are no significant structure differences for different asset types. Spanish securitisations necessarily pivot on a special purpose vehicle known as a fondo de titulización (“securitisation fund”), as explained in 6.2 SPEs . A securitisation transaction in Spain may use one of the following options: • public or private special purpose entity (SPE) – depending on whether the notes are listed in a regulated market (eg, AIAF – in which case it will be considered a public fund) or in a multilateral trading facility or without listing (a private fund);
• opt out from the Securitisation Regulation – since securitisation is regulated at both the EU level and the domestic level, a securiti - sation transaction may be structured under national law outside the scope of the Secu - ritisation Regulation’s definition of securitisa - tion, although several implications should be carefully addressed by a specialist legal team; • closed-ended or open-ended – Spanish SPEs can be structured with open or closed assets and liabilities, or any combination of both; • sale documentation – if the underlying assets comprise mortgages and the seller is a credit institution, the sale transaction to the SPE will be documented under a special regulation contained in Royal Decree-Law 24/2021; • risk retention modality – how the risk retention requirement set forth in Article 6 of the Secu - ritisation Regulation is met (see 4.3 Credit Risk Retention ); • waterfall – Spanish SPEs should feature at least one ordinary waterfall and a post- enforcement waterfall; additional waterfalls are optional; • initial costs – the initial costs are typically funded by the originator, either through a spe - cific note tranche or by means of a subordi - nated loan; and • meeting of creditors – if a meeting of credi - tors is considered, the numbers required for
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