SPAIN Law and Practice Contributed by: Ángel Pérez López, Luis Jiménez and Rodrigo del Saz, Uría Menéndez
6.3 Requirement for Guarantee Fees Guarantee fees are not required under Span- ish law. In any case, the guarantee should not be considered granted “for no consideration” if it is given in the interest of the group (eg, the resources and support from the borrower and the rest of the group also benefit the company providing the guarantee). 7. Lender Liability 7.1 Equitable Subordination Rules According to the Insolvency Law, in the event that a Spanish company becomes insolvent ( concurso de acreedores ), its claims will be divided into separate categories or classes. The last category to be paid (after unsecured claims are fully discharged) is subordinated claims. The list of subordinated claims is a numerus clausus pursuant to the Spanish Insolvency Law. Among the various circumstances that lead to subordination is the granting of credit to “spe- cially related” parties. Additionally, subordinated credits include, but are not limited to, those for surcharges and interest (except when secured by in rem securities, up to the value of the col- lateral), credits for fines and penalties, and those subordinated by contractual agreement. 7.2 Claw-Back Risk Under the Insolvency Law, as amended by Law 16/2022, if the debtor becomes insolvent, any action carried out or agreement entered into by the debtor within the two years preceding the filing of the insolvency petition, as well as those carried out since the filing until the declaration of insolvency, may be clawed back by the court if the receiver can prove that the action or agree- ment was “detrimental to the insolvency estate” , even in the absence of fraudulent intent (in the
The guarantee is an agreement that is ancillary to the main obligation. Therefore, under Span- ish law, the extinction of the main obligation (ie, the obligations assumed by the borrowers under any facilities agreements) leads to the automatic termination of the guarantee. Furthermore, the guarantee may be terminated due to any of the general causes of termination of contractual obligations, in which case the main obligation will survive. Specific agreements between the lender and the borrower or amendments of the main obli - gation release the guarantor from its duties. For instance, if the creditor extends the term of pay- ment in favour of the debtor without the guaran- tor’s consent, the guarantee will be terminated pursuant to Article 1,851 of the Spanish Civil Code. Therefore, it is advisable that any amend- ments to the senior, second lien or mezzanine facilities agreements (including a refinancing thereof) entail a ratification of the guarantees by the relevant guarantors. First-demand guarantees, which are not regu- lated by law, are abstract and independent from the main obligation, creating a primary liability for the guarantor. These guarantees are not affected by the particulars of the main obligation between the creditor and the debtor, and, therefore, are not subject to any beneficio de excusión . Lend- ers usually request that all personal guarantees created under the finance documents be first- demand guarantees. 6.2 Restrictions See 5.4 Restrictions on Upstream Security , 5.5 Financial Assistance and 5.6 Other Restric- tions .
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