SPAIN Law and Practice Contributed by: Jaime de la Torre and Jaime Juan Rodríguez, Cuatrecasas
6.2 SPEs Structural Aspects of the SPE
• the assets of the SPE may include deposits in credit institutions and/or fixed income securi - ties traded in official secondary markets. In addition to the Securitisation Regulation and Law 5/2015, Spanish synthetic securitisations are also regulated at a European level, through CRR II and Regulation EU 2021/557, which establish the requirements for a synthetic secu - ritisation to achieve an STS label. 6. Structurally Embedded Laws of General Application 6.1 Insolvency Laws Insolvency regulations affect Spanish securitisa - tions in the following ways. • Transfer – claw-back risk is the classical chal - lenge when transferring assets, in this case from the seller to the SPE. As explained in 3.1 Bankruptcy-Remote Transfer of Financial Assets , the transfer of receivables to an SPE shall not be subject to severe claw-back pro - visions in the event of the seller’s insolvency. • Insolvency of the SPE – as described in 6.5 Bankruptcy-Remote SPE , the Spanish SPE is excluded from insolvency proceedings by legal design. The Spanish Securitisation Law establishes certain procedures for the early liquidation of the SPE in an orderly manner. • Insolvency of the SPE management company – Article 33 of the Spanish Securitisation Law provides for the compulsory replacement of the management company upon its insol - vency. Moreover, money belonging to the SPE would not be deemed part of the bankruptcy assets of the management company. See 6.2 SPEs for more information on the legal struc - ture of the SPE.
As described in 4.10 SPEs or Other Entities , securitisations made in Spain are regulated under the Spanish Securitisation Law, without a wide margin of discretion. A special type of SPE has to be incorporated as an ad hoc special purpose fund, with the following features: • orphan in nature, with separate estate and zero equity, organised in a single or sev - eral compartments (which are independent among them); • devoid of legal personality, administered by a special type of management company (see 2.7 Bond/Note Trustees ); • the suffix “ • fondo de titulización ” or “F.T.” is used, which means “securitisation fund”; • the fund is incorporated at closing of the securitisation transaction by means of the notarisation of a deed of incorporation, which is the equivalent of the by-laws of a company; • the activities carried out by an SPE are restricted to those described in the prospec - tus (and the deed of incorporation) – those activities usually cover the issuance of notes and the acquisition of underlying assets, as well as the ancillary ongoing obligations in terms of disclosure obligations, waterfall administration, etc; and • ownership and security of assets – the SPE is the owner of the transferred assets, in addition to any ancillary rights, such as the security attached to each asset. Substantive Consolidation The general doctrine on substantive consolida - tion is irrelevant in the context of Spanish secu - ritisation. The bankruptcy-remote nature of the SPE is not affected by this doctrine, given that
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