[X.08] Future receivables security has been widely used in project finance operations to simplify the structure and documentation of transactions and reduce execution costs. In particular, in the case of certain transactions where post-financing claims are to be expected, it is essential for creditors that those future claims guarantee the obligations arising from the financing from the outset. (ii) The object of the privilege must be “movable property”: according to Article 335 of the CCC, movable property is “which may be the subject of credit …”. The concept of appropriation has been interpreted by most researchers as property or a possibility of trade. It is generally accepted that claims under Spanish law can be considered movable property.[5] (2) the proceeds of such receivables held by the Company in its account with the Bank. [X.11] The effects of the insolvency of the secured creditor following the enforcement of a lien on future claims are not expressly regulated by Spanish law. However, it is quite common to think that claims from contracts entered into before the declaration of insolvency are automatically pledged when they arise (even if this is the case after the declaration of insolvency), while claims arising from agreements executed after the declaration of insolvency are not considered pledged. These claims are therefore part of the insolvency estate and can be used to satisfy the claims of other creditors[10]. [18] In this context, the insolvency law requires that the pledge of claims be formalized in a public document (and, in the case of non-displacement liens, that they be registered in the Movable Property Registry). In addition to the preference given to the satisfaction of their credit over the assets concerned, preferential creditors enjoy in particular other rights in an insolvency scenario, such as, inter alia, (i) the right to be placed on the list of creditors without having to inform the insolvency administrators, (ii) the right to information, (iii) the right to attend the meeting of creditors and to participate in and vote at the meeting of creditors (junta de acreedores), and (iv) the right not to remain bound by the creditors` agreement (convenio de acreedores) if the particularly privileged creditor has not voted or has not complied with the creditors` agreement. As a general rule, creditors will seek control of the company in the event of default by exercising the political rights of quota shares (e.B. voting rights), which requires an explicit provision in the articles of association in this regard. Creditors will therefore normally require that the articles of association provide that the exercise of all voting rights and economic rights attached to the shares corresponds to the pledge from the date on which a case of default was declared, even before the lien is formally enforced.
Although creditors generally require that this right be granted to them, in practice they tend to be very reluctant to exercise it and to be entitled to voting rights in order to avoid being considered de facto directors in an insolvency scenario. In this general legal context, several researchers were inclined to interpret the pledge of claims as a “limited assignment of receivables for security purposes”. This would not give the beneficiary a right in rem in the assigned claims, but a right in personam. However, other scholars have advanced a more flexible interpretation of the “subject to possession” requirement, which was based primarily on Article 1868 CC, according to which, if the pledge bears interest, the creditor is entitled to offset that interest against the interest (or, otherwise, the principal) accrued on the secured obligation. This led the researchers to conclude that a credit right or claim (as a right that can generate interest) can be pledged. Such a pledge would in fact give rise to a right in rem in the right or claim of credit, like any other privilege under Article 1864 of the CC. [X.22] Under Article 1865 of the CC, the enforceability of an “ordinary” pledge of claims against third parties is not obtained by any kind of publicity in a register or similar act. but by proving the date of performance of the privilege in accordance with a public document (instrumento público). Therefore, privileges are usually enforced or formalized in a public deed (escritura pública or póliza intervenida) before a Spanish notary in order to be effective vis-à-vis third parties[17]. In terms of corporate interest, while simply creating a privilege does not bring any direct benefit to a business, it can be essential in the context of a financing transaction that can help the business achieve its goals. Whether or not a financing transaction is in the interest of the company is a factual test to be carried out by the directors of the company concerned.
It is always advisable that the Directors of the Company expressly approve the transaction or even that their approval be confirmed by a shareholder resolution (especially in the case of high-volume transactions or where the benefits to the Company are not obvious)[15]. (i) where the undertaking is managed by a single director or by one or more joint and multiple directors, they could execute the formation of securities individually on behalf of the undertaking; and [X.12] A similar but different category is the promise of pledge (promesa de prenda) expressly set out in Article 1861 cc, which allows the beneficiary of the undertaking to require the other party to create a pledge in the future. . . .