SPAIN Law and Practice Contributed by: Jaime de la Torre and Jaime Juan Rodríguez, Cuatrecasas
4. Laws and Regulations Specifically Relating to Securitisation 4.1 Specific Disclosure Laws or
3.9 Derivatives Interest rate derivatives are the most common type of derivative used in Spanish securitisations to match the interest profile of the assets of the SPE (ie, the loans) and the liabilities of the SPE (ie, the notes). The ISDA standard is the most used documenta - tion package, but in some instances the CMOF standard is also used (specially in fully retained deals). Interest derivatives can be governed by Spanish law or foreign law (English law, French law and Irish law are the most usual foreign leg - islation used in Spain). It should be taken into consideration that using a foreign ISDA will likely involve extra costs for the legal opinion related to the hedging agreement. 3.10 Offering Memoranda As described in 1.2 Structures Relating to Financial Assets , one of the structural deci - sions is choosing between a public and a private transaction. • Prospectus – a prospectus is necessary in the case of public securitisations (ie, when the notes issued by the SPE are listed on a regulated market). This prospectus has to be drawn up according to the Prospectus Regu - lation and must be authorised by the Spanish CNMV. • Information memorandum – no prospectus will be needed if the notes are listed in a mul- tilateral trading facility, but a listing document might be necessary. For instance, in the case of listing the notes in the Spanish MARF, an “information memorandum” should be drawn up in accordance with the minimum require - ments and custom formats of this venue set up in MARF Circular 2/2018.
Regulations Spanish Level Disclosure to the CNMV
The assignment of receivables to an SPE is sub - ject to the following requirements (Article 17 of Law 5/2015): • annual accounts – the assignor must provide its audited annual accounts for the previous two years to the CNMV (unless it has been recently incorporated); • annual reports – the assignor must detail the transactions involving the transfer of credit rights (whether regarding present or future receivables) in its annual reports; • revolving nature – if additional assets are assigned to the SPE (beyond the initial ones), a notification must be sent to the CNMV identifying the assets incorporated and their characteristics, together with a representa - tion stating that such new assets meet all the requirements set out in the SPE’s deed of incorporation; and • formalities – transfers of assets to an SPE must be formalised in a written document. Public information Management companies shall publish the fol - lowing information on their websites, for each of the SPEs they manage (Article 34 of Law 5/2015): • the deed of incorporation and any other sub - sequent deeds; • the prospectus and any supplements thereto, if applicable; and
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