Project finance has been one of the most widely used financing methods in Spain in recent years. The main reasons for the widespread use of this financing method in Spain are the 'passion' over the past decade for renewable energies and the construction of infrastructure 'megaprojects' (mainly highways, railways and airports) under concessional regimes.
II THE YEAR IN REVIEW
There has been a lot of activity in the Spanish infrastructure and energy markets. In terms of public investment, the amount devoted to infrastructure by the government in the 2018 General State Budget increased by 12.7 per cent compared to 2017, reaching a total of €8.487 billion. Of this, €3.737 billion will be devoted to the highway network and €2.078 billion to railways. The remainder will be spent primarily on ports, airports, hydraulics, and the coast and environment.
Additionally, the Ministry of Development is commissioning the Extraordinary Highways Investment Plan (PIC), which will involve the tender for several highway concessions, in the hope of attracting fresh investment into the infrastructure network. The auction value of the highway concessions contemplated in the PIC is expected to be around €5 billion. All the auctions foreseen by the PIC are expected to take place between 2018 and 2019. As part of this auction process, the Ministry of Development also plans to retender several bankrupt highways, including Madrid's radial motorways, namely the R-3 and R-5. Other notable transactions in the infrastructure sector this year include the joint bid from ACS and Atlantia to take over the highway concessionaire Abertis, for a total sum of €18,579,550,000; and the sale of OHL Concesiones from OHL to IFM Investors for an amount of €2.755 billion.
There has also been heightened activity in the renewable energy market. Following restructurings of renewable assets conducted as a result of the new regime on feed-in tariffs approved by the government, we are starting to see new projects being taken over and prepared to compete in free market conditions. Most of them are smaller solar energy initiatives that endeavour to proceed without public assistance or subsidies. However, there are also examples of larger renewable energy projects that also intend to do this such as the Talasol Project, consisting in a 10-year PPA, in connection with a 300MW photovoltaic plant that will be installed in the municipality of Talaván (Cáceres). Initiatives like this one are generating enthusiasm to create similar projects nationwide.
On 17 May 2017, the Ministry of Energy, Tourism and Digital Agenda awarded 3GW tendered capacity to wind developers. Moreover, a subsequent auction in July 2017 brought notable improvement to a previously narrow field of investment. The original offer of a 3GW capacity was renegotiated and augmented owing to high levels of interest from local and international potential investors. The revised capacity of 8GW, shared throughout a diversified field of renewable energy sources, illustrates the intense interest and breadth of opportunity that remains in this industry. It seems clear that auctions are the best way to ensure market competition.
In addition, according to the estimate of the Spanish Photovoltaic Union, investment in photovoltaic energy will reach between €4 billion and €5 billion before 2020.
Some of the most noteworthy transactions in the renewable energy sector this year include the sale between Abengoa and Algonquin Power & Utilities Corp of a 25 per cent share of the capital of Atlantica Yield for US$607.56 million; and the purchase of Aqualia by IFM Global Infrastructure Fund for €1.024 billion.
Finally, the new Public Sector Contracts Law entered into force on 9 March 2018. This regulation introduces some major changes with respect to the regulation of public concessions in order to align Spanish domestic law with European Union directives.
III DOCUMENTS AND TRANSACTIONAL STRUCTURES
i Transactional structures
Financing a project in Spain under a project finance structure is generally made through a newly incorporated special purpose vehicle with private or public-to-private share capital.
In the case of projects under concession regimes (mainly for highway construction and exploitation), Spanish authorities have opted for the build-operate-transfer or build-own-operate methodologies. In Spain, highways have often been financed either through tolls paid directly by the users or by 'shadow tolls' in which the remuneration is set depending on the amount of traffic and is paid directly by the Spanish authorities to the concessionaire.
Occasionally, more innovative formulas such as build-lease-transfer have been implemented, particularly for financing of prisons and healthcare construction projects. Under this formula, the private sponsor leases the facility to the authority in exchange for a fee or a periodic rent to be paid throughout the asset's exploitation period.
The suite of documents under a project finance structure in Spain comprises project agreements and financial agreements.
Project agreements include all the non-financial agreements signed by the sponsor and the project company with third parties for the construction, supply of materials, commissioning, operation and maintenance of the project. Lenders are not often party to such agreements. These agreements are generally drafted by the sponsor (and its legal advisers, if applicable) and audited by the lenders' independent (legal, technical-environmental and insurance) advisers, who may propose certain amendments thereto.
Construction agreements are always negotiated between the parties on a 'turnkey' basis (engineering-procurement-construction (EPC) agreements). Operation and maintenance agreements are often signed at the beginning of the construction period, but they come into force once the project has been commissioned. The underlying agreement might be a supply or a sales agreement entered into by the project company with a private party (e.g., sale of electricity) or even with a public administration (administrative concessions, leasing, etc.). Insurance agreements also need to be signed by the project company with a reputable and creditworthy insurer subject to the insurance independent adviser's approval.
Financial agreements include all those entered into by the project company and the sponsor with the lenders. The lender's legal counsel, in contrast, takes the lead on the drafting of such agreements. There is an increasing trend in Spain to conform financing agreements to international deal-financing standards governed by the legal system of the United Kingdom or the United States. As a result, legal counsel often suggest that direct agreements with project counterparties or accounts agreements be considered part of the suite of finance documents.
The intercreditor agreement is particularly important if the EIB acts as a lender along with a commercial bank syndicate in the same transaction. In addition, the intercreditor agreement is a core agreement for transactions being financed under a project bonds scheme or by a variety of creditors (subordinated creditors, mezzanine creditors, etc.).
Insurance agreements signed with export credit agencies are also customary for transactions with an international component. In the event that an export credit agency is involved, a thorough review of the financial documents should be carried out by legal counsel alongside the mandated lead arranger regarding the compliance of the financing with the OECD Arrangement on Officially Supported Export Credits and the insurance agreements.
What sets Spain apart from common international practice is that financial agreements have to be executed before a Spanish public notary by means of a public deed. This means that every financial agreement must be signed simultaneously in Spain by all the parties, and that each party, or their representative, must be present at the signing. Therefore, foreign counterparties will very likely have to grant powers of attorney, notarised and apostilled (if the country of residence of the foreign counterparty is a member of the 1961 Hague Convention) or legalised, as applicable, prior to the financial closing. They will also have to apply for a tax identification number for foreign entities as a requirement for notarisation of any document. There are also certain new requirements on anti-money laundering and terrorism financing that will have to be fulfilled. Compliance with such formalities may be time-consuming so it is advisable to work on them from the very beginning of the transaction. Notarial fees will also be considered a transaction cost that has to be borne by the sponsors or the project company.
iii Delivery methods and standard forms
The standard delivery method is very often based on a turnkey structure. It is very unlikely that lenders will accept delivery methods based on a design-bid-build structure. The most important characteristics of construction agreements in Spain are fixed price and term, application of penalties as a result of delays, shortfalls in profits for the project company and termination events that would eventually require the contractor to reimburse the full amount of the price paid by the project company. The last of these might not be a standard in other jurisdictions, but Spanish lenders will be reluctant to accept an alternative in the event of termination due to a fault of the contractor.
Standard construction agreements (e.g., those sponsored by the International Federation of Engineers) are not currently in use in Spain unless there is a Spanish version available, but rather the sponsor or the contractor proposes the contract form that has to be audited by the lenders' independent (legal, technical-environmental and insurance) advisers, who may in turn suggest amendments.
IV RISK ALLOCATION AND MANAGEMENT
i Management of risks
The main risks associated with project financing in Spain are those also common in other jurisdictions.
Credit risk attached to sponsors relates to contingent funding obligations in addition to base equity contributions to the project company to comply with the required gearing ratio.
Contractors, operators, insurance companies and suppliers are generally assessed in terms of their creditworthiness to make required payments under the relevant project agreement. In addition, an assessment should also be made with respect to offtakers and their creditworthiness to comply with their payment obligations during the life of the project.
Credit risk related to public bodies had been mitigated during the early years of the rise of project finance in Spain by means of insurances provided by monoline international insurance companies. These companies have, however, been some of those most affected by the international financial and economic crisis. As a result, most projects originally backed by such guarantees have been restructured to set those insurances aside. No guarantee mechanisms have been implemented as a replacement, other than those provided by corporations themselves or a third financial party (i.e., bank guarantees).
Construction and start-up risk
This type of risk relates to delays in the commissioning and start-up of the project. They would imply an increase in the financial cost and, eventually, the project company's lack of funds to fulfil its payment obligations under the financing.
As a general rule, lenders do not assume any risk pertaining to the project's construction period. Mitigating measures are often implemented by lenders to avoid such risk to the extent possible. In addition, corrective measures are usually demanded under the turnkey agreement (i.e., by means of the regulation of 'completion tests' audited by the independent technical adviser), under the financial agreements (i.e., by means of completion guarantees granted by the sponsors, which might eventually be required to reimburse all outstanding debt under the project financing) and, finally, under the insurance agreements (i.e., in the case of a force majeure event). Lenders may also require the funding of special reserve accounts by the project company for different purposes. These accounts might be funded against project cash flows, contributions made by the sponsors or utilisations under the project financing.
Market and operating risk (project risk)
This risk relies on the project's ability to honour commitments forecasted under the financial model. This risk will generally be borne by the lenders from the expiration date of the guarantee periods under the EPC agreement (i.e., those guarantees will normally lapse around 24 months after the commissioning of the project).
This risk relates to interest rate (and exchange rate, if applicable) fluctuations inherent to the project financing.
This risk is normally covered by lenders by means of financial derivatives (e.g., swaps, caps, collars, floors) to be entered into by the project company.
Political, administrative and regulatory risk
In the past, lenders used to feel comfortable with this risk and, as a result, they did not request sponsors to contribute funds or to provide bank guarantees as cover. However, recurrent political interference in recent years to change the feed-in regime applicable to renewable energies has very much undermined lenders' trust. As a result, most lenders have been demanding sponsors put enhancements in place until project completion.
Lenders normally make use of (and sometimes even abuse) the sponsor's and the contractor's financial condition to cover project-associated risks, and it is often categorised as an enhancement in project finance deals in Spain. This (more efficient) reallocation of risks among the parties involved in the project may be a consequence of the lack of development of contractual structures, which, in contrast to Spain, are common in other jurisdictions.
ii Limitation of liability
No compulsory provision constrains the liabilities borne by the parties under a project financing. It is customary, however, to agree on a maximum liability to be borne by the contractor, supplier or operator limited to the full price (annual price for the operator) under the relevant project agreement. Penalties and liquidated damages are normally based on the financial model.
Indirect or consequential loss is a category not recognised by the Spanish legal system. Therefore, it is not advisable to make a reference to them in the project agreements.
Force majeure in project agreements generally exempts the parties from fulfilling their obligations thereunder. Parties usually agree that after an initial suspension period either party is allowed to terminate the agreement after a period of roughly 180 days. In addition to that, adverse consequences arising from force majeure events should be insured by the insurance policies. Other adverse consequences not covered by insurance policies are often borne by the contractor or the operator (as the case may be) and the project company proportionally.
iii Political risks
As previously mentioned, political risk has not been a concern for lenders until recent years in Spain. Nevertheless, ongoing regulatory changes in the past few years (in the electricity sector, mainly) have probably undermined the Spanish state's credibility in this regard. We hope the enactment of the new – and hopefully definitive – regulation on the renewable energy sector will help to improve the view that market players have of Spanish authorities.
V SECURITY AND COLLATERAL
The security package normally required by the lenders for project financing in Spain includes the following:
- pledges over the project company's shares;
- pledges over all the bank accounts related to the project (including the operating and the special purpose reserve accounts);
- pledges over project agreements (construction agreements, operating and maintenance agreements, insurance, supply, energy sales agreements, agreements regarding real estate, etc.); and
- mortgages over real estate or concessions only in exceptional circumstances (this security is often required by lenders when the asset to be mortgaged is essential in terms of cash generation (e.g., mining or motorway concessions)); but rather it is customary for the project company to undertake to grant security over project assets.
Pledges are typically taken with transfer of possession, thus (1) they do not incur stamp duty in Spain, (2) they do not need to be registered at any public registry, and (3) they become perfected by means of the transfer of possession of the asset under the security and the execution of a public deed before a Spanish notary public.
Mortgages must be registered with the Land Registry and will incur stamp duty. In Spain, applicable stamp duty rate varies; depending on the region in which the security is registered, it will range from 0.5 per cent to 1.5 per cent of the maximum amount secured by the mortgage. As a result, it is customary that lenders agree to defer its creation until the occurrence of certain events (e.g., the occurrence of an event of default or breach of financial covenant).
Sponsors' contributions to the project company are often made by means of share capital and debt subordinated to the project finance (senior) debt, subject to compliance of a subordinated debt-to-equity ratio.
Step-in rights are generally allowed in project finance under Spanish law, but are not advisable. Under Spanish insolvency law, there is a risk that enforcement by the lenders of those rights might eventually lead to them being considered shadow directors, resulting in the subordination of their credits against the project company.
VI BONDS AND INSURANCE
The guarantees normally required under construction agreements are the advance payment and performance guarantees, both for an amount in the range of 10 to 15 per cent over the agreement's price. Both guarantees may be formalised by means of bank guarantees or surety bonds, with certain minimum ratings often required by the lenders. The advance payment guarantee will be returned to the contractor on the project's provisional acceptance date, upon delivery at the same time of the performance guarantee; while the performance guarantee is returned to the contractor on the project's final acceptance date.
Bonds and insurance are not contemplated by lenders as actual enhancements to guarantee project completion. On the contrary, lenders rely on the creditworthiness of the sponsors and contractor alike; we note that this is not standard in other jurisdictions.
VII ENFORCEMENT OF SECURITY AND BANKRUPTCY PROCEEDINGS
Apart from insolvency implications that may arise, lenders may enforce their rights as secured parties by filing the corresponding claim before the competent court in Spain. It is essential for that purpose that (1) all financing agreements (including any assignment agreements in connection therewith) are executed as public documents before a Spanish notary public, and (2) all parties (in particular, any debtor) appoint the agent bank as the calculation agent for all applicable purposes (such calculations to be prima facie accurate). If these requirements (among others specified in the Spanish Civil Procedure Law) are fulfilled, lenders will benefit from an accelerated enforcement procedure against Spanish debtors.
There are also special procedures available for lenders to enforce security created in Spain, provided that certain specifications are complied with. Lenders may also benefit from an auction procedure organised by a public notary to sell pledged assets to third parties. There is also an enforcement procedure pursuant to Royal Decree-Law 5/2005 with respect to certain assets.
In insolvency proceedings, the general applicable rule is that a secured lender has privilege over the security. However, if the asset subject to the security is considered necessary for the debtor's professional or business activity (excluding shares of companies owning a specific asset, and related liabilities, provided that the enforcement of security does not result in the termination of agreements related to exploitation of the asset), the security may not normally be enforced until one year has elapsed from the bankruptcy declaration.
Spanish insolvency law contemplates a two-year clawback period prior to the bankruptcy declaration. All transactions carried out within this period that are detrimental to the debtor's assets can be rescinded, irrespective of the fact that there is no fraudulent intention. The law provides a list of transactions that are presumed to cause damage and that may not be rebutted by evidence to the contrary (e.g., transactions that extinguish non-secured obligations maturing after the bankruptcy declaration) and other transactions in which damage is presumed, unless evidence is provided to the contrary (e.g., creation of security over pre-existing obligations, as well as transactions that extinguish obligations secured by security maturing after the bankruptcy declaration). Spanish insolvency legislation also provides the refinancing arrangement and the court scheme of arrangement as instruments to drag along minority (blocking) lenders in the context of a refinancing.
Spanish insolvency law also provides a category of credits that benefits from a general qualification in terms of reimbursement (credits related to employees' salaries, tax credits and social security credits), provided, however, that such credits will not affect the special privileged nature of secured ones.
Loans provided by persons with any special relationship with the debtor will be subordinated (e.g., loans granted by shareholders who, at the time the credit arises, held at least 10 per cent of the share capital in the project company, or companies within its group of companies).
Other credits not categorised under Spanish insolvency law as qualified or subordinated will be considered ordinary.
Entities pertaining to the state's territorial organisation, public bodies and other public corporations cannot be declared insolvent pursuant to Spanish insolvency law.
Spanish insolvency law contemplates certain pre-insolvency arrangements that will very likely be relevant in the context of current refinancing processes resulting from the renewable energy sector reform. As a result of the implementation of those arrangements, a minority of creditors might eventually be compelled to accept terms imposed by certain majorities provided that some thresholds are reached and that the refinancing agreement is approved by courts.
VIII SOCIO-ENVIRONMENTAL ISSUES
i Licensing and permits
Construction of assets
The permits, licences and authorisations most commonly applied for in Spain for the construction of assets under a project financing are the following.
Administrative authorisation and approval of the construction plans
Construction of installations that fall under the regulations of regulated sectors (e.g., the energy sector) is normally subject to first obtaining an administrative authorisation, which is granted by the relevant authority of the autonomous community in Spain where the building or installations are to be located. The construction plans for the building or installations must also be approved by the same authority.
Declaration of public utility
This may be applied for at the same time as the administrative authorisation or the approval of the construction plans. Although it is not compulsory, the declaration of public utility implies the 'need of occupation' of the properties affected by the project and the 'need to acquire' the affected rights, which would enable the sponsor to implement expropriation procedures, if necessary.
Local licences to be issued by the relevant city council include works licences, first occupancy licences, activities licences and operating licences. The construction of a building or installations generally requires a works licence and an activities licence, to be obtained in advance. A first occupancy licence may also be necessary when the works are finished, to verify that the conditions established in the works licence have been complied with.
Declaration of environmental impact
Buildings and installations may be subject to first obtaining an environmental decision authorising their construction. This authorisation is governed in the relevant environmental rules and regulations for each autonomous community, and usually consists of a declaration of environmental impact (however, in the case of relatively new installations, a unified or comprehensive environmental authorisation may be issued).
In any case, the declaration of environmental impact or unified or comprehensive environmental authorisation, as the case may be, must be granted prior to the relevant municipal licence.
Operation of assets
The permits, licences, authorisations and registrations usually required for the operation of assets under a project financing in Spain are the following.
This certificate may be obtained once the construction has been completed in accordance with the approval of the construction plans.
First occupancy and operating licences
These licences may also be necessary for the operation of installations.
However, depending on the type of premises or installations and their planned operation, other permits, authorisations and licences may be required. For example, renewable energy installations have to be recorded at an administrative registry to take advantage of the special remuneration applicable to such installations.
ii Equator Principles
A few financial entities in the Spanish market require, as a condition precedent to financial close, the delivery of a report rating the project under the Equator Principles.
iii Responsibility of financial institutions
One of the main risks borne in Spain by lenders is that of being characterised ultimately as shadow directors of the project company. If characterised as such, they would bear as legal entities the same liabilities as ordinary managers, and their claims with regard to the company would be subordinated by virtue of law.
IX PPP AND OTHER PUBLIC PROCUREMENT METHODS
The most common public-private partnership structures for the construction of infrastructure in Spain are the following:
- payments made by the public administration to the private company: these payments may be made directly during the construction or the exploitation period (e.g., shadow tolls);
- construction carried out by the project company supported by private financing and subsequent transfer of the installations to the public administration: the public administration authorises the project company to develop the project in a public area, so that the project company can carry out the construction of the infrastructure. As from the date on which the infrastructure is erected, the public administration pays the project company a rent in consideration for the use of the installations by it;
- creation of public-private capital companies for the development of projects; and
- financing granted by public administrations (e.g., by means of subordinated loans to the project company), which will be reimbursed to the public administrations as debt subordinated to the full reimbursement of amounts owed to the lenders.
Law 9/2017 (the Law on Public Sector Contracts) governs the private financing of the concession of public works agreements in Spain. This law expressly foresees 'collaboration agreements' between the public and the private sector. In such agreements a public administration or a public entity contracts a private entity, for a specific period, to provide a global and comprehensive service that, in addition to including the financing of the intangible investments, works or supplies necessary to fulfil certain public service, also comprises some of the following services:
- the construction, installation or transformation of works, equipment, systems and products or complex goods, as well as their maintenance, updating or renewal, exploitation or management;
- the comprehensive management of the maintenance of complex installations;
- the manufacture of goods and the rendering of services incorporating specifically developed technology, for the purpose of providing the most advanced and most economically advantageous solutions, compared with those currently existing in the market; and
- other services associated with the fulfilment by the public administration of the public service or general interest objectives entrusted to them.
The consideration to be received by the contractor will consist of a price to be paid while the agreement remains in force, which may be dependent upon the fulfilment of certain performance objectives.
These collaboration agreements are foreseen in the Planning for Infrastructures, Transportation and Dwelling for the years 2012–2024, published by the government, with investment as a key instrument in the coming years because of the expected decrease in the budget allocated by the government for investing in infrastructure. Particular mention is made of the intention to apply this methodology to other sectors as well as to provide a stable and tax-efficient legal framework that promotes agreement of this kind.
In addition, public-private capital companies are authorised by the Public Sector Contracts Law to raise funds as a result of capital increases procedures and to securitise credit rights with regard to the Spanish authorities under the relevant public sector contract, provided that certain conditions are fulfilled.
ii Public procurement
The Public Sector Contracts Law governs the awarding of agreements to third-party entities.
The main aim of this law is to regulate the contracting of the public sector, with the purposes of (1) ensuring that public sector agreements uphold the principles of freedom of access to tenders, publicity and transparency of the procedures, and non-discrimination and equality of treatment among the candidates; and (2) regarding the budgetary stability and spending controls objectives, to ensure the efficient utilisation of the funds allocated to the execution of works, the acquisition of goods and the contracting of services, based on the prior definition of needs to be met, the safeguarding of competition and the selection of the most economically advantageous offer.
Public sector agreements established in the Public Sector Contracts Law are works agreements, public works concessions, agreements for the management of public services, supplies, other services and collaboration schemes between the public and the private sector.
X FOREIGN INVESTMENT AND CROSS-BORDER ISSUES
In Spain, there are no general restrictions on foreign investment in relation to project finance deals.
In order to register securities in Spain, foreign lenders must first have obtained a Spanish tax identification number.
i Repatriation of profit and investments
There are no specific restrictions regarding the repatriation of profit earned by foreign investors or lenders, except for the usual tax implications deriving from double taxation on income. Thus, a case-by-case basis analysis must be carried out on those countries with which Spain has signed treaties to avoid any double taxation.
The countries considered by the Spanish tax authorities to be 'tax havens' are listed in Royal Decree-Law 1080/1991, as amended.
XI DISPUTE RESOLUTION
i Special jurisdiction
There are no specialised courts in Spain to which disputes under project finance or construction agreements may be submitted.
It is customary that disputes relating to financial documents will be subject to the jurisdiction of the courts of Madrid or Barcelona. In contrast, disputes under project agreements will be submitted to arbitration.
ii Arbitration and ADR
The submission to arbitration is common practice in project agreements and this is also often required by lenders to speed up dispute resolution.
The Madrid Civil and Mercantile Arbitration Court, the International Chamber of Commerce and the arbitration courts dependent on regional chambers of commerce, industry and navigation are the courts usually designated by parties.
There are no restrictions in Spain to submit disputes to arbitration, provided that this submission is expressly stated. Spain is a signatory state to the ICSID Convention, as well as to the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Arbitration in Spain is domestically regulated by Law 60/2003 on Arbitration, which aims to accommodate 1958 New York Convention rules to national principles and facilitate international arbitration. As Spain has not enforced the reciprocity reservation in Article 1.3 of the New York Convention, the Convention is applicable to any arbitral award rendered in a foreign country, even if it is not a party to the New York Convention. In addition, as Spain has not enforced the 'commercial reservation' in Article 13 of the New York Convention either, the New York Convention is also applicable to any kind of award, regardless of the subject it rules on.
According to the Arbitration Law, competence for the recognition of foreign awards is attributed to regional High Courts and competence for their enforcement is attributed to the first instance courts.
Usual restrictions in other jurisdictions may eventually apply to restrict the recognition in Spain of arbitral rulings such as breaches of public policy (including economic public policy) applicable in Spain.
XII OUTLOOK AND CONCLUSIONS
The number of project finance transactions in Spain is expected to increase in 2018 and 2019 as a result of factors outlined in this chapter. Additionally, as a result of the new regime on feed-in tariffs approved by the government, the number of projects prepared to compete in free market conditions will increase. Traditional banking and long-term financing will presumably be progressively replaced by other innovative structures brought in by new participants in the market, including insurance companies,2 pension funds and foreign investment funds.
1 José Guardo is a partner, José María Barrios is a senior associate and Juan Ignacio Guillén is an associate at Clifford Chance.
2 As a result of, among other things, relevant amendments to project assets in their portfolios that have been implemented very recently through the Solvency II Directive (2009/138/EC).