SPAIN Law and Practice Contributed by: Jaime de la Torre and Jaime Juan Rodríguez, Cuatrecasas
2.4 Underwriters and Placement Agents The role of a placement agent is key in Spanish securitisations, but the role of an underwriter is practically non-existent. The role and responsibilities of placement agents are as follows. • Regulated activity – the placement activity is regulated under Article 38 of the Spanish Securities Market Law, so those entities act - ing as placement agents must be registered with the relevant registers of the CNMV or the Bank of Spain. • Lead manager – the common title used by placement entities is “lead manager”, either as “sole lead manager” or as “joint lead manager”. The tasks under this title cover the placement of the notes, controlling the status and evolution of the investors’ demand, and executing the pricing of the notes. • Arranger – at least one of the placement enti - ties acts as arranger of the transaction. This role is related not to the placement of the notes, but to the structuring of the transac - tion. However, the arranger of a transaction usually holds a key position in the settlement of the notes as billing and delivery agent, although several structures are possible in this regard. • Prospectus – under Article 38 of the Spanish Securities Markets Law, an arranger assumes responsibility for certain sections of the prospectus (or the information memorandum) that are prepared based on the information provided by the originator. • Placement agreement – the originator, the SPE, the lead managers and the arrangers execute a placement agreement upon clos - ing, setting the terms of the placement of the notes. This agreement is usually governed by Spanish law.
2.5 Servicers The servicer’s main functions are as follows. • Contractual delegation – the SPE’s man - agement company delegates a number of functions related to the administration of the underlying assets in accordance with the terms of the SPE’s deed of incorporation and the servicing agreement. • Payments and collateral – the servicer is usually bound by some sort of sweep pro - cess related to the bank accounts where the debtors pay the underlying assets. • Reporting – under the servicing obligations, the servicer usually has to deliver periodic reports on the underlying assets’ behaviour. • Enforcement – one of the key functions of the servicer is to manage the defaulted assets. An enforcement policy is usually agreed in the servicing agreement, setting out the scenari - os for out-of-court renegotiations or forbear - ance, and also for court enforcements. The features of the servicing activities in the context of a securitisation transaction are further discussed in 3.5 Principal Servicing Provisions . 2.6 Investors The role of investors is to subscribe the notes issued by SPEs and pay the purchase price of the notes. Depending on the type of transac - tion, the following responsibilities will apply to investors. • Subscription agreement – in some trans - actions, some or all investors execute a subscription agreement in order to allocate subscription tickets. • Regulatory obligations – some types of investors are subject to special regulatory obligations, due to their legal status. Moreo - ver, investors in securitisation transactions
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