Transactional issuesSPV forms
Which forms can special purpose vehicles take in a securitisation transaction?
In Spanish securitisation transactions, the special purpose vehicle can only be a securitisation fund, which is considered a separate set of assets and liabilities, lacking legal personality, whose fair value is zero, and has to be represented by a management company.SPV formation process
What is involved in forming the different types of SPVs in your jurisdiction?
The period of time necessary to incorporate a Spanish securitisation fund and its cost depends on the type of FT (ie, public or private).
Public FTs require the approval and authorisation of the CNMV, a four-week process from submitting the written authorisation request to the CNMV, together with a draft of the prospectus. The CNMV’s fees will be a variable fee of 0.01 per cent of the nominal amount of the bonds, with a cap of €60,600. If, for any reason, the bonds are not admitted to trading, there will be a fixed fee of €5,050. Additional costs from, among others, the Spanish regulated market, rating agencies (if applicable), auditors, legal counsels and notaries, have to be taken into consideration.
Private FTs require the approval of the draft of the deed of incorporation by CNMV and, in case of the securitisation bonds, will be listed in a MTF and the admission of the securitisation bonds on the relevant MTF. The CNMV process should take at least two to three weeks following submission of the authorised written request.
In both cases, the cut-off date of the final portfolio included in the prospectus (or in the information memorandum) and the date of the registration with the CNMV cannot exceed 30 calendar days. Additionally, disbursement cannot exceed 10 calendar days from registering the prospectus with the CNMV. Constitutional documents include the prospectus (or, in the case of private FTs, the information memorandum), the deed of incorporation and the transaction agreements, which usually include:
- a management, placement and subscription agreement;
- a servicing agreement;
- payment agency agreement;
- a guaranteed reinvestment agreement by virtue of the FT’s bank accounts being opened; and
- a subordinated loan agreement for initial expenses.
Is it possible to stipulate which jurisdiction’s law applies to the assignment of receivables to the SPV?
Yes. The parties may, pursuant to article 3 of Regulation (EC) No. 593/2008 (Rome I Regulation), choose the law applicable to the assignment agreement of the receivables between the originator as assignor and the issuer (the FT) as assignee, which does not have to be the same as the law governing the underlying contract under which the receivables derive. Furthermore, the Rome I Regulation enables the possibility to choose different laws for different parts of the contract, and the possibility to change the applicable law during the contract’s validity if this does not affect the third parties’ rights.
However, the above-mentioned freedom of choice has certain restrictions, mainly because of overriding mandatory provisions (ie, those provisions that a country considers essential for safeguarding its public interest, such as its political, social or economic organisation).
In this regard, the Spanish courts may refuse the application of the chosen law if the relevant provisions are clearly contrary to Spanish public policy. In this situation, the relevant Spanish court would apply the relevant provisions under Spanish law instead of those applicable under the chosen foreign law.
Alternatively, the principle of party autonomy may be limited when the chosen law is the law of a non-EU member state and all the relevant elements in the contract are located in one or more EU member state. In this regard, the choice of the parties regarding the applicable law may not prejudice the application of mandatory provisions under EU law.Asset acquisition and transfer
May an SPV acquire new assets or transfer its assets after issuance of its securities? Under what conditions?
Yes. It is possible in an open FT during the revolving period in which the fund is opened for the acquisition of additional receivables that meet the eligibility criteria or in a closed FT, during a four-month ramp-up period if such an option is included in the deed of incorporation.
The eligibility criteria would include requirements such as:
- the assignor is the owner of the loans that are not subject, in whole or in part, to any change, amendment, modification, pledge, security or waive of any kind which in any material way adversely affects the enforceability or collectability of all or a material portion of the receivables being assigned;
- all loans exist, are valid, binding and enforceable in accordance with Spanish law;
- the assignor has no knowledge that any obligor is insolvent;
- on the date of the assignment of the receivables to the fund there are no arrears more than 30 days;
- all loans or credit assigned to the fund are denominated and payable in euros; and
- each obligor has made at least one scheduled payment under the relevant loan.
Consumer loans, auto-loans, credit card receivables and backed FTs would typically be incorporated as open funds in order to allow for a longer maturity of the fund.Registration
What are the registration requirements for a securitisation?
Pursuant to article 22 of Law No. 5/2015, the incorporation of an FT is subject to the prior compliance of the following requirements:
- written authorisation request to the CNMV;
- approval and registration by the CNMV of:
- a draft of the incorporation deed;
- supporting documentation on the assets to be assigned to the FT; and
- any other supporting documentation required by CNMV;
- an audit report on the securitised assets shall be issued either by the managing company or by an external audit. As stated in question 8, this requirement may be waived depending on the structure and circumstances of the transaction; and
- approval and registration by the CNMV of a prospectus. The prospectus will not be required if:
- the securitisation bonds are not intended to be listed in the Spanish official secondary markets; and
- are exclusively addressed to qualified investors (ie, when it is a private FT).
FT registration in the commercial registry is voluntary, although its annual accounts should be deposited with the CNMV.
According to current legislation set out in Law No. 5/2015, the granting of a credit rating to securitisation bonds with respect to a public FT has ceased to be a requirement in order to incorporate the FT.Obligor notification
Must obligors be informed of the securitisation? How is notification effected?
Notice is not a requirement to perfect a valid transfer of a receivable in a securitisation transaction, unless otherwise agreed by the parties of the original contract. However, an obligor will be deemed to have validly discharged its obligations under a receivable if it has made the payment to the original creditor before it is notified, or it becomes aware of, the transfer. An obligor may also set off its obligations under a receivable against the original creditor until it is notified of the transfer. In both cases, the new creditor will have no legal case against the obligor to claim the amount paid (or set off); it would only be entitled to claim from the original creditor the amount received by it from the obligor, or (as applicable) the amount set off. In Spanish securitisations, it is not customary to serve notice to the obligors ab initio. However, the originator will typically grant the management company powers so that it may, on behalf of the FT, notify the obligors of the assignment at the time it deems appropriate. In addition, in the event of insolvency, liquidation or replacement of the originator as servicer, or because the management company considers it to be reasonably justified, the management company may request the servicer to notify the obligors of the transfer of the outstanding receivables to the FT and that payments deriving from it will only be released if made into the account opened in the name of the FT.
What confidentiality and data protection measures are required to protect obligors in a securitisation? Is waiver of confidentiality possible?
Regulation (EU) 2016/679, of 27 April 2016, on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation or GDPR) and the Spanish Organic Law 3/2018, of 4 December 2018, on the Personal Data and digital rights protection (Organic Law 3/2018), in force as from 7 December 2018, sets out restrictions on the processing and transfer of personal data (understood as any information relating to an identified or identifiable natural person (the data subject), therefore affecting obligors who are individuals (consumer obligors and sole traders)).
In general, data subjects’ personal data can only be processed if the following two requirements are met:
- information regarding the data processing is provided; and
- the controller has a legitimate legal ground to process the personal data. Among others, these legitimate legal grounds can be:
- the data subjects’ express and informed consent;
- the processing is necessary for the performance of a contract;
- the processing is necessary for compliance with a legal obligation; or
- the processing is necessary for the purposes of the legitimate interests pursued by the controller, or the party to whom the personal data is transferred, provided that such interest is not overridden by the data subject’s interests or fundamental rights and freedoms.
To transfer personal data to a third party, the data controller (ie, any natural or legal person, whether public or private, or administrative body that determines the purposes and means of the processing of personal data) must have previously informed the data subject of the transfer, identifying the data recipients and specifying the purpose of the transfer. In addition, the data controller must have a legal ground to transfer the personal data.
The requirements above do not apply when the data recipient acts as the data processor, processing the personal data exclusively on behalf of the data controller and under its written instructions to render a service to the data controller. In this case, the data processing must be regulated in a contract specifying the conditions established under article 28 of GDPR.
Additionally, when the data is transferred to a country whose level of protection has not been declared adequate by the relevant authorities (any country outside the European Economic Area, or in relation to which the Commission has not issued an adequacy decision), a controller or a processor may transfer the personal data only if appropriate safeguards have been implemented and on condition that enforceable data subject rights and effective legal remedies for data subjects are available. Additionally, article 49 of the GDPR establishes specific exceptions where a transfer can take place, for instance, when the data subject has explicitly given consent to the data transfer after having been informed of the possible risks; when the transfer is necessary for the performance or conclusion of a contract between the data subject and the data controller; to adopt precontractual measures at the data subject’s request; for important reasons of public interest; or for issuing legal claims.
Under article 34.1 of Organic Law 3/2018, credit institutions and investment firms are obliged to appoint a Data Protection Officer within its organisation, that can be an external firm or an in-house employer (ie, a person that ensures that the organisation processes the personal data in compliance with the applicable data protection rules and cooperates with the data protection authority).
Although these rules only apply to individuals’ personal data, other regulations (eg, banking secrecy) may also impose restrictions on the use and dissemination of sole traders and enterprises’ data.Credit rating agencies
Are there any rules regulating the relationship between credit rating agencies and issuers? What factors do ratings agencies focus on when rating securitised issuances?
Spanish law, particularly Law No. 5/2015, does not foresee any specific provision applicable to the relationship between credit rating agencies and FTs, which is subject to the EU regulation, in this regard: Regulation (EU) No. 462/2013 and Directive 2013/14/EU (formally known as CRA III).
As stated in question 19, the granting of a credit rating to the securitisation bonds is not a requirement to incorporate the FT in accordance with Law No. 5/2015. However, rating securitisation bonds issued by public FT is still common practice in Spain. In rating the securitisation bonds, the credit rating agencies follow their own methodology described in their Legal Criteria and are usually updated annually.Directors’ and officers’ duties
What are the chief duties of directors and officers of SPVs? Must they be independent of the originator and owner of the SPV?
As stated in question 2, the issuers (FTs) are special purpose vehicles with no legal personality that have to be represented by a management company that has the duty to safeguard the interests of the FT’s bondholders and the other creditors. Therefore, the FT itself has no directors or officers other than the ones belonging to the management company.
The management company shall have a board of directors consisting of at least three members, all of whom shall be persons of recognised commercial and professional reputation and must have, at least most of them, expertise and experience appropriate to exercise its functions. The reputation, expertise and experience must also apply to the general managers, or assimilated, managers of the entity. Such requirements shall be considered in the provisions set out in the Collective Investment Institutions Act (Law No. 35/2003).Risk exposure
Are there regulations requiring originators and arrangers to retain some exposure to risk in a securitisation?
Spanish law, particularly Law No. 5/2015, does not foresee any specific risk retention obligation for Spanish securitisation transactions. However, since Spain is a EU member, any EU regulation is directly applicable.
Regulation (EU) No. 575/2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No. 648/2012 (CRR), Directive 2013/36EU (CRD IV), Regulation (EU) No. 231/2013 supplementing Directive 2011/61/EU of Alternative Investment Fund Managers (AIFMR) and Regulation (EU) No. 2015/35 supplementing Directive 2009/138/EC on the taking-up and pursuit of the business of insurance and reinsurance (Solvency II Regulation) set forth the obligation of the originator to retain a material net economic interest of not less than 5 per cent of the nominal value of the securitisation on an ongoing basis until the final maturity of the bonds.
Article 405 of the CRR establishes five risk retention options to retain the material net economic interest. These are retention:
- of no less than 5 per cent of the nominal value of each of the tranches sold;
- of the originator’s interest of no less than 5 per cent of the nominal value of the securitised exposures (for revolving exposures);
- of randomly selected exposures, equivalent to no less than 5 per cent of the nominal value of the securitised exposures, where such exposures would otherwise have been securitised in the securitisation, provided that the number of potentially securitised exposures is no less than 100 at origination;
- of the first loss tranche and, if necessary, other tranches having the same or a more severe risk profile than those transferred or sold to investors and not maturing any earlier than those transferred or sold to investors, so that the retention equals in total no less than 5 per cent of the nominal value of the securitised exposures; and
- of a first loss exposure not less than 5 per cent of every securitised exposure in the securitisation.