EX-4.5






Exhibit 4.5




 

 





BBVA U.S. SENIOR, S.A. UNIPERSONAL

as Company


BANCO
BILBAO VIZCAYA ARGENTARIA, S.A.,

as Guarantor


to


THE
BANK OF NEW YORK MELLON,

as Trustee

 




INDENTURE

 




Dated
as of July 18, 2008


Senior Debt Securities



 

 






 









 












Reconciliation and tie between

Trust Indenture Act of 1939 (the “Trust Indenture Act”)

and Indenture




	 	 	 	 	 
	 	 	Trust Indenture Act Section	 	Indenture Section
	§310
	 	(a)(1)	 	6.08
	 
	 	(a)(2)	 	6.08
	 
	 	(a)(5)	 	6.08
	 
	 	(b)	 	6.09
	 
	 	 	 	 
	§311
	 	(a)	 	6.12
	 
	 	(b)	 	6.12
	 
	 	(c)	 	6.12
	 
	 	 	 	 
	§312
	 	(a)	 	7.01, 7.02
	 
	 	(b)	 	7.02
	 
	 	(c)	 	7.02
	 
	 	 	 	 
	§313
	 	(a)	 	7.03
	 
	 	(b)	 	7.03
	 
	 	(c)	 	7.03
	 
	 	(d)	 	7.03
	 
	 	 	 	 
	§314
	 	(a)	 	7.04, 10.05
	 
	 	(c)(1)	 	1.02
	 
	 	(c)(2)	 	1.02
	 
	 	(e)	 	1.02
	 
	 	 	 	 
	§315
	 	(a)	 	6.01, 6.02
	 
	 	(b)	 	6.03
	 
	 	(c)	 	6.01, 6.02
	 
	 	(d)	 	6.01, 6.02
	 
	 	(e)	 	5.15
	 
	 	 	 	 
	§316
	 	(a)(last sentence)	 	1.01 (“Outstanding”)
	 
	 	(a)(1)(A)	 	5.12
	 
	 	(a)(1)(B)	 	5.13
	 
	 	(b)	 	5.08
	 
	 	(c)	 	1.04
	 
	 	 	 	 
	§317
	 	(a)(1)	 	5.03
	 
	 	(a)(2)	 	5.04
	 
	 	(b)	 	10.03






i









 






	 	 	 	 	 
	 	 	Trust Indenture Act Section	 	Indenture Section
	 
	 	 	 	 
	§318
	 	(a)	 	1.08








 




			
	     Note:	 	This reconciliation and tie shall not, for any purpose, be deemed to be part of the
Indenture.





     Attention should also be directed to Section 318(c) of the Trust Indenture Act, which provides
that the provisions of Sections 310 to and including 317 are a part of and govern every qualified
indenture, whether or not physically contained therein.



ii









 






TABLE OF CONTENTS




 







	 	 	 	 	 	 	 
	 
	 	 	 	Page
	
ARTICLE 1
	Definitions and Other Provisions of General Application

	 
	 	 	 	 	 	 
	Section 1.01.
	 	Definitions	 	 	2	 
	Section 1.02.
	 	Compliance Certificates and Opinions	 	 	12	 
	Section 1.03.
	 	Form of Documents Delivered to Trustee	 	 	12	 
	Section 1.04.
	 	Acts of Holders	 	 	13	 
	Section 1.05.
	 	Notices, etc., to Trustee, Company and Guarantor	 	 	14	 
	Section 1.06.
	 	Notice to Holders of Securities; Waiver	 	 	15	 
	Section 1.07.
	 	Language of Notices	 	 	15	 
	Section 1.08.
	 	Conflict with Trust Indenture Act	 	 	15	 
	Section 1.09.
	 	Effect of Headings and Table of Contents	 	 	16	 
	Section 1.10.
	 	Successors and Assigns	 	 	16	 
	Section 1.11.
	 	Separability Clause	 	 	16	 
	Section 1.12.
	 	Benefits of Indenture	 	 	16	 
	Section 1.13.
	 	Governing Law	 	 	16	 
	Section 1.14.
	 	Legal Holidays	 	 	16	 
	Section 1.15.
	 	Counterparts	 	 	17	 
	Section 1.16.
	 	Appointment of Agent for Service	 	 	17	 
	Section 1.17.
	 	Establishment of Syndicate and Appointment of Commissioner	 	 	17	 
	Section 1.18.
	 	Meetings of the Syndicate	 	 	18	 
	 
	 	 	 	 	 	 
	ARTICLE 2

	Securities Forms

	 
	 	 	 	 	 	 
	Section 2.01.
	 	Forms Generally	 	 	18	 
	Section 2.02.
	 	Form of Trustee’s Certificate of Authentication	 	 	19	 
	Section 2.03.
	 	Securities in Global Form	 	 	19	 
	Section 2.04.
	 	Forms of Legends for Global Securities	 	 	20	 
	Section 2.05.
	 	Form of Guarantee	 	 	20	 
	 
	 	 	 	 	 	 
	ARTICLE 3

	The Securities

	 
	 	 	 	 	 	 
	Section 3.01.
	 	Amount Unlimited; Issuable in Series	 	 	25	 
	Section 3.02.
	 	Currency; Denominations	 	 	29	 
	Section 3.03.
	 	Execution, Authentication, Delivery and Dating	 	 	29	 






iii









 






	 	 	 	 	 	 	 
	 
	 	 	 	Page
	 
	Section 3.04.
	 	Execution of Spanish Deed of Issuance and Form of Regulations	 	 	31	 
	Section 3.05.
	 	Temporary Securities	 	 	31	 
	Section 3.06.
	 	Registration, Transfer and Exchange	 	 	32	 
	Section 3.07.
	 	Mutilated, Destroyed, Lost and Stolen Securities	 	 	35	 
	Section 3.08.
	 	Payment of Interest and Certain Additional Amounts; Rights	 	 	 	 
	 
	 	to Interest and Certain Additional Amounts Preserved	 	 	35	 
	Section 3.09.
	 	Persons Deemed Owners	 	 	37	 
	Section 3.10.
	 	Cancellation	 	 	38	 
	Section 3.11.
	 	Computation of Interest	 	 	38	 
	 
	 	 	 	 	 	 
	ARTICLE 4

	Satisfaction and Discharge of Indenture

	 
	 	 	 	 	 	 
	Section 4.01.
	 	Satisfaction and Discharge	 	 	38	 
	Section 4.02.
	 	Defeasance and Covenant Defeasance	 	 	40	 
	Section 4.03.
	 	Application of Trust Money	 	 	44	 
	Section 4.04.
	 	Prescription	 	 	45	 
	Section 4.05.
	 	Reinstatement	 	 	45	 
	 
	 	 	 	 	 	 
	ARTICLE 5

	Remedies

	 
	 	 	 	 	 	 
	Section 5.01.
	 	Events of Default	 	 	45	 
	Section 5.02.
	 	Acceleration of Maturity; Rescission and Annulment	 	 	48	 
	Section 5.03.
	 	Collection of Indebtedness and Suits for Enforcement by Trustee	 	 	49	 
	Section 5.04.
	 	Trustee May File Proofs of Claim	 	 	50	 
	Section 5.05.
	 	Trustee May Enforce Claims Without Possession of Securities	 	 	51	 
	Section 5.06.
	 	Application of Money Collected	 	 	51	 
	Section 5.07.
	 	Limitations on Suits	 	 	52	 
	Section 5.08.
	 	Unconditional Right of Holders to Receive Principal and any	 	 	 	 
	 
	 	Premium, Interest and Additional Amounts	 	 	52	 
	Section 5.09.
	 	Restoration of Rights and Remedies	 	 	53	 
	Section 5.10.
	 	Rights and Remedies Cumulative	 	 	53	 
	Section 5.11.
	 	Delay or Omission Not Waiver	 	 	53	 
	Section 5.12.
	 	Control by Holders of Securities	 	 	53	 
	Section 5.13.
	 	Waiver of Past Defaults	 	 	54	 
	Section 5.14.
	 	Waiver of Stay or Extension Laws	 	 	54	 
	Section 5.15.
	 	Undertaking for Costs	 	 	54	 
	 
	 	 	 	 	 	 
	ARTICLE 6

	The Trustee

	 
	 	 	 	 	 	 
	Section 6.01.
	 	Certain Duties and Responsibilities	 	 	55	 
	Section 6.02.
	 	Certain Rights of Trustee	 	 	55	 
	Section 6.03.
	 	Notice of Defaults	 	 	57	 






iv









 






	 	 	 	 	 	 	 
	 
	 	 	 	Page
	 
	Section 6.04.
	 	Not Responsible for Recitals or Issuance of Securities	 	 	57	 
	Section 6.05.
	 	May Hold Securities	 	 	57	 
	Section 6.06.
	 	Money Held in Trust	 	 	58	 
	Section 6.07.
	 	Compensation and Reimbursement	 	 	58	 
	Section 6.08.
	 	Corporate Trustee Required; Eligibility	 	 	59	 
	Section 6.09.
	 	Resignation and Removal; Appointment of Successor	 	 	59	 
	Section 6.10.
	 	Acceptance of Appointment by Successor	 	 	61	 
	Section 6.11.
	 	Merger, Conversion, Consolidation or Succession to Business	 	 	62	 
	Section 6.12.
	 	Preferential Collection of Claims Against Company	 	 	63	 
	Section 6.13.
	 	Appointment of Authenticating Agent	 	 	63	 
	Section 6.14.
	 	Disqualification; Conflicting Interests	 	 	65	 
	 
	 	 	 	 	 	 
	ARTICLE 7

	Holder’s Lists and Reports by Trustee, Company and Guarantor

	 
	 	 	 	 	 	 
	Section 7.01.
	 	Company to Furnish Trustee Names and Addresses of Holders	 	 	65	 
	Section 7.02.
	 	Preservation of Information; Communications to Holders	 	 	65	 
	Section 7.03.
	 	Reports by Trustee	 	 	66	 
	Section 7.04.
	 	Reports by Company and Guarantor	 	 	66	 
	 
	 	 	 	 	 	 
	ARTICLE 8

	 
	 	Consolidation, Merger and Sales	 	 	 	 
	 
	 	 	 	 	 	 
	Section 8.01.
	 	Company or Guarantor May Consolidate, etc	 	 	67	 
	Section 8.02.
	 	Successor Person Substituted	 	 	67	 
	Section 8.03.
	 	Assumption of Company’s
Obligations by Guarantor or Controlled Subsidiary	 	 	67	 
	 
	 	 	 	 	 	 
	ARTICLE 9

	 
	 	Supplemental Indentures	 	 	 	 
	 
	 	 	 	 	 	 
	Section 9.01.
	 	Supplemental Indentures Without Consent of Holders	 	 	68	 
	Section 9.02.
	 	Supplemental Indentures with Consent of Holders	 	 	69	 
	Section 9.03.
	 	Execution of Supplemental Indentures	 	 	71	 
	Section 9.04.
	 	Effect of Supplemental Indentures	 	 	71	 
	Section 9.05.
	 	Reference in Securities to Supplemental Indentures	 	 	71	 
	Section 9.06.
	 	Conformity with Trust Indenture Act	 	 	71	 
	 
	 	 	 	 	 	 
	ARTICLE 10

	Covenants

	 
	 	 	 	 	 	 
	Section 10.01.
	 	Payment of Principal and Any
Premium, Interest and Additional Amounts	 	 	72	 
	Section 10.02.
	 	Maintenance of Office or Agency	 	 	72	 
	Section 10.03.
	 	Money for Securities Payments to be Held in Trust	 	 	72	 
	Section 10.04.
	 	Additional Amounts	 	 	74	 
	Section 10.05.
	 	Statement by Officers as to Default	 	 	76	 






v









 






	 	 	 	 	 	 	 
	 
	 	 	 	Page
	 
	Section 10.06.
	 	Corporate Existence	 	 	76	 
	Section 10.07.
	 	Waiver of Certain Covenants	 	 	76	 
	 
	 	 	 	 	 	 
	ARTICLE 11

	Redemption of Securities

	 
	 	 	 	 	 	 
	Section 11.01.
	 	Applicability of Article	 	 	77	 
	Section 11.02.
	 	Election to Redeem; Notice to Trustee	 	 	77	 
	Section 11.03.
	 	Selection by Trustee of Securities to be Redeemed	 	 	77	 
	Section 11.04.
	 	Notice of Redemption	 	 	78	 
	Section 11.05.
	 	Deposit of Redemption Price	 	 	79	 
	Section 11.06.
	 	Securities Payable on Redemption Date	 	 	79	 
	Section 11.07.
	 	Securities Redeemed in Part	 	 	79	 
	Section 11.08.
	 	Optional Redemption due to Changes in Tax Treatment	 	 	80	 
	 
	 	 	 	 	 	 
	ARTICLE 12

	Sinking Funds

	 
	 	 	 	 	 	 
	Section 12.01.
	 	Applicability of Article	 	 	81	 
	Section 12.02.
	 	Satisfaction of Sinking Fund Payments with Securities	 	 	81	 
	Section 12.03.
	 	Redemption of Securities for Sinking Fund	 	 	82	 
	 
	 	 	 	 	 	 
	ARTICLE 13

	Repayment at the Option of Holders

	 
	 	 	 	 	 	 
	Section 13.01.
	 	Applicability of Article	 	 	82	 
	 
	 	 	 	 	 	 
	ARTICLE 14

	Securities in Foreign Currencies

	 
	 	 	 	 	 	 
	Section 14.01.
	 	Applicability of Article	 	 	83	 
	 
	 	 	 	 	 	 
	ARTICLE 15

	Guarantees

	 
	 	 	 	 	 	 
	Section 15.01.
	 	Guarantees	 	 	83	 
	Section 15.02.
	 	Execution and Delivery of Guarantees	 	 	83	 
	Annex A
	 	 	 	 	A-1	 







vi











 





     INDENTURE,
dated as of July 18, 2008 (the “Indenture”), among BBVA U.S. Senior, S.A.
Unipersonal, a sociedad anónima organized under the laws of the Kingdom of Spain (hereinafter
called the “Company”), having its principal executive office located at Gran Vía, 1, 48005 Bilbao,
Spain, Banco Bilbao Vizcaya Argentaria, S.A., a sociedad anónima organized under the laws of the
Kingdom of Spain (hereinafter called the “Guarantor”), having its principal executive office
located at Plaza de San Nicolás 4, Bilbao, Spain, and The Bank of New York Mellon, a New York
banking corporation duly organized and existing under the laws of the State of New York
(hereinafter called the “Trustee”), having its Corporate Trust Office located at 101 Barclay
Street, New York, NY 10286.



RECITALS




     The Company has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of its senior unsecured debentures, notes or other evidences of
indebtedness (hereinafter called the “Securities”), unlimited as to principal amount, to bear such
rates of interest, to mature at such time or times, to be issued in one or more series and to have
such other provisions as shall be fixed as hereinafter provided.



     The Guarantor desires to make the Guarantee provided for herein in respect of the Securities.
The Guarantor has duly authorized the execution and delivery of this Indenture. All things
necessary to make this Indenture a valid agreement of the Company and the Guarantor, in accordance
with its terms, have been done.



     This Indenture is subject to the provisions of the Trust Indenture Act of 1939, as amended,
and the rules and regulations of the Securities and Exchange Commission promulgated thereunder that
are required to be part of this Indenture and, to the extent applicable, shall be governed by such
provisions.



     NOW, THEREFORE, THIS INDENTURE WITNESSETH:



     For and in consideration of the premises and the purchase of the Securities by the Holders (as
herein defined) thereof, it is mutually covenanted and agreed, for the equal and proportionate
benefit of all Holders of the Securities or of any series thereof (as herein defined) as follows:



1









 





ARTICLE 1

Definitions and Other Provisions of General Application




     Section 1.01.
Definitions. Except as otherwise expressly provided in or pursuant to this Indenture or unless the context
otherwise requires, for all purposes of this Indenture:



     (a) the terms defined in this Article have the meanings assigned to them in this Article, and
include the plural as well as the singular;



     (b) all other terms used herein which are defined in the Trust Indenture Act, either directly
or by reference therein, have the meanings assigned to them therein;



     (c) all accounting terms not otherwise defined herein have the meanings assigned to them in
accordance with International Financial Reporting Standards as issued by the International
Accounting Standards Board;



     (d) the words “herein”, “hereof”, “hereto” and “hereunder” and other words of similar import
refer to this Indenture as a whole and not to any particular Article, Section or other subdivision;
and



     (e) the word “or” is always used inclusively (for example, the phrase “A or B” means “A or B
or both”, not “either A or B but not both”).



     Certain terms used principally in certain Articles hereof are defined in those Articles.



     “Act”, when used with respect to any Holders, has the meaning specified in Section 1.04.



     “Additional Amounts” means any additional amounts which are required hereby or by any
Security, under circumstances specified herein or therein, to be paid by the Company or the
Guarantor in respect of certain taxes imposed on Holders specified therein and which are owing to
such Holders.



     “Affiliate” of any specified Person means any other Person directly or indirectly controlling
or controlled by or under direct or indirect common control with such specified Person. For the
purposes of this definition, “control”, when used with respect to any specified Person means the
power to direct the management and policies of such Person, directly or indirectly, whether through
the ownership of voting securities, by contract or otherwise; and the terms “controlling” and
“controlled” have the meanings correlative to the foregoing.



2









 





     “Authenticating Agent” means any Person authorized by the Trustee pursuant to Section 6.13 to
act on behalf of the Trustee to authenticate Securities of one or more series.



     “Authorized Newspaper” means a newspaper, in an official language of the place of publication
or in the English language, customarily published on each day that is a Business Day in the place
of publication, whether or not published on days that are Legal Holidays in the place of
publication, and of general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications are required to be
made in Authorized Newspapers, the successive publications may be made in the same or in
different newspapers in the same city meeting the foregoing requirements and in each case on any
day that is a Business Day in the place of publication.




     “Board of Directors” means the board of directors of the Company or the Guarantor, as the case
may be, or any committee or Person of that board duly authorized to act generally or in any
particular respect for the Company or the Guarantor hereunder.



     “Board Resolution” means a copy of one or more resolutions, certified by the Secretary or an
Assistant Secretary or any Person duly authorized of the Company or the Guarantor, as the case may
be, to have been duly adopted by the relevant Board of Directors and to be in full force and effect
on the date of such certification, delivered to the Trustee.



     “Business Day”, with respect to any Place of Payment or other location, means each Monday,
Tuesday, Wednesday, Thursday and Friday that is not a Legal Holiday in such Place of Payment or
other location, except as may otherwise be provided in the form of Securities of any particular
series pursuant to the provisions of this Indenture.



3









 





     “Capital Markets Indebtedness” means any borrowing or other Indebtedness of any person (other
than Project Finance Indebtedness) which is in the form of or represented by any bonds, notes,
depositary receipts or other securities for the time being quoted or listed, with the agreement of
the Company and/or the Guarantor, on any stock exchange.



     “Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Securities Exchange Act of 1934, as amended, or, if at any time after the
execution of this Indenture such Commission is not existing and performing the duties now assigned
to it under the Trust Indenture Act, then the body performing such duties at such time.



     “Commissioner” means the commissioner (comisario) of the Syndicate related to Securities of a
particular series, as provided in the Regulations applicable to Securities of such series and
Section 303 of the Spanish Corporations Law (Ley de
Sociedades Anónimas), and shall initially be The Bank of
New York Mellon with respect to each such series.



     “Company” means the Person named as the “Company” in the first paragraph of this instrument
until a successor Person shall have become such pursuant to the applicable provisions of this
Indenture, and thereafter “Company” shall mean such successor Person, and any other obligor upon
the Securities.



     “Company Request” and “Company Order” mean, respectively, a written request or order, as the
case may be, signed in the name of the Company by any member of the Board of Directors, the
President, a Vice President, a representative of the Company empowered to do so by Board
Resolution, the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary, of the
Company, and delivered to the Trustee.



     “Controlled Subsidiary” means a corporation more than 80% of the outstanding shares of Voting
Stock of which are owned directly or indirectly by the Guarantor.



     “Conversion Event” means the cessation of use of (i) a Foreign Currency both by the government
of the country which issued such Currency and for the settlement of transactions by a central bank
or other public institutions of or within the international banking community, or (ii) the euro
both within the European monetary system and for the settlement of transactions by public
institutions of or within the European Union.



4









 





     “Corporate Trust Office” means the principal corporate trust office of the Trustee at which,
at any particular time, its corporate trust business shall be administered, which office at the
date hereof is located at 101 Barclay Street, New York, NY 10286.



     “Corporation” includes corporations and, except for purposes of Article 8, associations,
companies and business trusts.



     “Currency”, with respect to any payment, deposit or other transfer in respect of the principal
of or any premium or interest on or any Additional Amounts with respect to any Security, means
Dollars, unless otherwise expressly provided.



     “Defaulted Interest” has the meaning specified in Section 3.08.



     “Dollars” or “$” means a dollar or other equivalent unit of legal tender for payment of public
or private debts in the United States of America.



     “Event of Default” has the meaning specified in Section 5.01.



     “Foreign Currency” means any currency, currency unit or composite currency, including, without
limitation, the euro, issued by the government of one or more countries other than the United
States or by any confederation or association of such governments.



     “Global Security” means a Security evidencing all or part of the Securities of a series,
bearing the legend set forth in Section 2.04 (or such legend as may be specified as contemplated in
Section 3.01 for such Securities), authenticated and delivered to the Holder and registered in the
name of the Holder or its nominee.



     “Guarantees” means the guarantees to be entered into by the Guarantor in respect of each
series of Securities as provided in Section 15.01 and in substantially the form set forth in
Section 2.05.



     “Guarantor” means the Person named as the “Guarantor” in the first paragraph of this
instrument until a successor Person shall have become such pursuant to the applicable provisions of
this Indenture, and thereafter “Guarantor” shall mean such successor Person, and any other
guarantor of the Securities.



     “Holder” means the Person in whose name such Security is registered in the Security Register.



     “Indebtedness”, with respect to any Person, means Indebtedness for Borrowed Money or for the
unpaid purchase price of real or personal property of, or guaranteed by, such Person.



5









 





     “Indebtedness for Borrowed Money” means any moneys borrowed, liabilities in respect of any
acceptance credit, note or bill discounting facility, liabilities under any bonds, notes,
debentures, loan stock, securities or other indebtedness by way of loan capital and which have a
stated maturity of or which by their terms are capable of being extended for a period of more than
one year.



     “Indenture” means this instrument as it may from time to time be supplemented or amended by
one or more indentures supplemental hereto entered into pursuant to the applicable provisions
hereof and, with respect to any Security, by the terms and provisions of such Security established
pursuant to Section 3.01 (as such terms and provisions may be amended pursuant to the applicable
provisions hereof).



     “Independent Public Accountants” means accountants or a firm of accountants that, with respect
to the Company and any other obligor under the
Securities, are independent public accountants within the meaning of the Securities Act of
1933, as amended, and the rules and regulations promulgated by the Commission thereunder, who may
be the independent public accountants regularly retained by the Company or who may be other
independent public accountants. Such accountants or firm shall be entitled to rely upon any
Opinion of Counsel as to the interpretation of any legal matters relating to this Indenture or
certificates required to be provided hereunder.



     “Indexed Security” means a Security the terms of which provide that the principal amount
thereof payable at Stated Maturity may be more or less than the principal face amount thereof at
original issuance.



     “Interest”, with respect to any Original Issue Discount Security which by its terms bears
interest only after maturity, means interest payable after Maturity. All references in this
Indenture to “interest” payable or to be paid in respect of any series of Securities, except as
otherwise expressly provided or where the context otherwise requires, shall be deemed to include
any Additional Amounts payable in respect of such series of Securities.



     “Interest Payment Date”, with respect to any Security, means the Stated Maturity of an
installment of interest on such Security.



     “Legal Holiday”, with respect to any Place of Payment or other location, means a Saturday, a
Sunday or a day on which banking institutions in such Place of Payment or other location are not
authorized or obligated to be open.



     “Maturity”, with respect to any Security, means the date on which the principal of such
Security or an installment of principal becomes due and payable as provided in or pursuant to this
Indenture, whether at the Stated Maturity or by



6









 







declaration of acceleration, notice of redemption
or repurchase, notice of option to elect repayment or otherwise, and includes the Redemption Date.



     “Office” or “Agency”, with respect to any Securities, means an office or agency of the Company
maintained or designated in a Place of Payment for such Securities pursuant to Section 10.02 or any
other office or agency of the Company maintained or designated for such Securities pursuant to
Section 10.02 or, to the extent designated or required by Section 10.02 in lieu of such office or
agency, the Corporate Trust Office of the Trustee.



     “Officers’ Certificate” means a certificate signed by the Chairman of the Board of Directors,
a Vice Chairman, the President, a Vice President, the Treasurer, an Assistant Treasurer, the
Secretary or an Assistant Secretary or any Person duly authorized of the Company, that complies
with the requirements of Section 314(e) of the Trust Indenture Act and is delivered to the Trustee.



     “Opinion of Counsel” means a written opinion of counsel, who may be an employee of or counsel
for the Company or Guarantor or other counsel who
shall be reasonably acceptable to the Trustee, that, if required by the Trust Indenture Act,
complies with the requirements of Section 314(e) of the Trust Indenture Act.



     “Original Issue Discount Security” means a Security issued pursuant to this Indenture which
provides for declaration of an amount less than the principal face amount thereof to be due and
payable upon acceleration pursuant to Section 5.02.



     “Outstanding”, when used with respect to any Securities, means, as of the date of
determination, all such Securities theretofore authenticated and delivered under this Indenture,
except:




     (i) any such Security theretofore cancelled by the Trustee or the Security Registrar
or delivered to the Trustee or the Security Registrar for cancellation;




     (ii) any such Security for whose payment at the Maturity thereof money in the
necessary amount has been theretofore deposited pursuant hereto with the Trustee or any
Paying Agent (other than the Company or the Guarantor), in trust or set aside and
segregated in trust by the Company or the Guarantor (if the Company or the Guarantor shall
act as its own Paying Agent) for the Holders of such Securities, provided that, if such
Securities are to be redeemed, notice of such redemption has been duly given pursuant to
this Indenture or provision therefor satisfactory to the Trustee has been made;



7









 






     (iii) any such Security with respect to which the Company has effected defeasance
pursuant to the terms hereof, except to the extent provided in Section 4.02; and




     (iv) any such Security which has been paid pursuant to Section 3.07 or in exchange
for or in lieu of which other Securities have been authenticated and delivered pursuant to
this Indenture, unless there shall have been presented to the Trustee proof satisfactory
to it that such Security is held by a protected purchaser in whose hands such Security is
a valid obligation of the Company or the Guarantor;


provided, however, that in determining whether the Holders of the requisite principal amount of
Outstanding Securities have given any request, demand, authorization, direction, notice, consent or
waiver hereunder or are present at a meeting of the Syndicate for quorum purposes, (i) the
principal amount of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall be equal to the
amount of the principal thereof that pursuant to the terms of such Original Issue Discount Security
would be declared (or shall have been declared to be) due and payable upon a declaration of
acceleration thereof pursuant to
Section 5.02 at the time of such determination, (ii) the principal amount of any Indexed Security
that may be counted in making such determination and that shall be deemed Outstanding for such
purposes shall be equal to the principal face amount of such Indexed Security at original issuance,
unless otherwise provided in or pursuant to this Indenture, (iii) the principal amount of a
Security denominated in a Foreign Currency shall be the Dollar equivalent, determined on the date
of original issuance of such Security, of the principal amount (or, in the case of an Original
Issue Discount Security, the Dollar equivalent on the date of original issuance of such Security of
the amount determined in (i) above) of such Security, and (iv) Securities owned by the Company, the
Guarantor or any other obligor upon the Securities or any Affiliate of the Company, the Guarantor
or such other obligor, shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making any such determination or relying upon
any such request, demand, authorization, direction, notice, consent or waiver, only Securities
which a Responsible Officer of the Trustee knows to be so owned shall be so disregarded.
Securities so owned which shall have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee (A) the pledgee’s right so to act with
respect to such Securities and (B) that the pledgee is not the Company, the Guarantor or any other
obligor upon the Securities or an Affiliate of the Company, the Guarantor or such other obligor.




     “Paying Agent” means any Person authorized by the Company to pay the principal of, or any
premium or interest on, or any Additional Amounts with respect to, any Security on behalf of the
Company.



8









 





     “Person” means any individual, Corporation, limited liability company, partnership, joint
venture, joint-stock company, trust, unincorporated organization or government or any agency or
political subdivision thereof.



     “Place of Payment”, with respect to any Security, means the place or places where the
principal of, or any premium or interest on, or any Additional Amounts with respect to such
Security are payable as provided in or pursuant to this Indenture.



     “Predecessor Security” of any particular Security means every previous Security evidencing all
or a portion of the same indebtedness as that evidenced by such particular Security; and, for the
purposes of this definition, any Security authenticated and delivered under Section 3.07 in
exchange for or in lieu of a lost, destroyed, mutilated or stolen Security shall be deemed to
evidence the same indebtedness as the lost, destroyed, mutilated or stolen Security.



     “Procedimientos Concursales” means, collectively, any proceedings relating to the bankruptcy
(concurso), dissolution or winding up of the Guarantor or any other proceeding which requires the
application of the priorities provided by the Spanish Bankruptcy Law (Ley Concursal), the Spanish
Commercial Code
(Código de Comercio), the Spanish Civil Code (Código Civil) and any other applicable Spanish
laws.



     “Project Finance Indebtedness” means any present or future Indebtedness incurred to finance
the ownership, acquisition, development and/or operation of an asset, whether or not an asset of
the Company or the Guarantor, in respect of which the person or persons to whom any such
Indebtedness is or may be owed by the relevant borrower (whether or not the Company or the
Guarantor) is entitled to have recourse solely to such asset and revenues generated by the
operation of, or loss or damage to, such asset.



     “Redemption Date”, with respect to any Security or portion thereof to be redeemed, means the
date fixed for such redemption by or pursuant to this Indenture.



     “Redemption Price”, with respect to any Security or portion thereof to be redeemed, means the
price at which it is to be redeemed as determined by or pursuant to this Indenture.



     “Regular Record Date” for the interest payable on any Security on any Interest Payment Date
therefor means the date, if any, specified in or pursuant to this Indenture as the “Regular Record
Date”.



     “Regulations” mean the rules attached to the Spanish public deed of issuance (escritura de
emisión) for a series of Securities governing the taking of



9









 







Acts by the Syndicate of Holders of
Securities of such series and the relationship between such Syndicate
and the Company and the Commissioner.



     “Responsible Officer” means any officer of the Trustee in its Corporate Trust Office having
direct responsibility for the administration of this Indenture and also means, with respect to a
particular corporate trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject.



     “Security” or “Securities” means any note or notes, bond or bonds, debenture or debentures, or
any other evidences of indebtedness, as the case may be, authenticated and delivered under this
Indenture; provided, however, that, if at any time there is more than one Person acting as Trustee
under this Indenture, “Securities”, with respect to any such Person, shall mean Securities
authenticated and delivered under this Indenture, exclusive, however, of Securities of any series
as to which such Person is not Trustee.



     “Security Register” and “Security Registrar” have the respective meanings specified in Section
3.06.



     “Special Record Date” for the payment of any Defaulted Interest on any Security means a date
fixed by the Trustee pursuant to Section 3.08.



     “Stated Maturity”, with respect to any Security or any installment of principal thereof or
interest thereon or any Additional Amounts with respect thereto, means the date established by or
pursuant to this Indenture as the fixed date on which the principal of such Security or such
installment of principal or interest is, or such Additional Amounts are, due and payable.



     “Subsidiary” means any Corporation of which at the time of determination the Guarantor, the
Company or one or more Subsidiaries owns or controls directly or indirectly more than 50% of the
shares of such Corporation’s Voting Stock.



     “Syndicate” means the syndicate (sindicato) constituted of all Holders of Securities of a
particular series at any particular time, as provided in and governed by the Regulations applicable
to Securities of such series and Chapter X, Section 4 of the Spanish Corporations Law (Ley de
Sociedades Anónimas).



     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, and any reference
herein to the Trust Indenture Act or a particular provision thereof shall mean such Act or
provision, as the case may be, as amended or replaced from time to time or as supplemented from
time to time by rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.



10









 





     “Trustee” means the Person named as the “Trustee” in the first paragraph of this instrument
until a successor Trustee shall have become such with respect to one or more series of Securities
pursuant to the applicable provisions of this Indenture, and thereafter “Trustee” shall mean each
Person who is then a Trustee hereunder; provided, however, that if at any time there is more than
one such Person, “Trustee” shall mean each such Person and as used with respect to the Securities
of any series shall mean the Trustee with respect to the Securities of such series, provided that
the Trustee shall not be the Company, the Guarantor or any other obligor upon the Securities or any
Affiliate of the Company, the Guarantor or such other obligor.



     “United States”, except as otherwise provided herein or in any Security, means the United
States of America (including the states thereof and the District of Columbia), and its possessions
(including Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern
Mariana Islands).



     “U.S. Depository” or “Depository” means, with respect to any Security issuable or issued in
the form of one or more Global Securities, the Person designated as U.S. Depository or Depository
by the Company in or pursuant to this Indenture, which Person must be, to the extent required by
applicable law or regulation, a clearing agency registered under the Securities Exchange Act of
1934, as amended, and, if so provided with respect to any Security, any successor to such Person.
If at any time there is more than one such Person, “U.S.
Depository” or “Depository” shall mean, with respect to any Securities, the qualifying entity
which has been appointed with respect to such Securities.



     “U.S. Government Obligations” means securities which are (i) direct obligations of the United
States of America in which the principal of or any premium or interest on such Security or any
Additional Amounts in respect thereof shall be payable, in each case where the payment or payments
thereunder are supported by the full faith and credit of the United States of America or (ii)
obligations of a Person controlled or supervised by and acting as an agency or instrumentality of
the United States of America where the timely payment or payments thereunder are unconditionally
guaranteed as a full faith and credit obligation by the United States of America, which, in the
case of (i) or (ii), are not callable or redeemable at the option of the issuer or issuers thereof,
and shall also include a depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligation or a specific payment of interest on or principal of
or other amount with respect to any such U.S. Government Obligation held by such custodian for the
account of the holder of a depository receipt, provided that (except as required by law) such
custodian is not authorized to make any deduction from the amount payable to the holder of such
depository receipt from any amount received by the custodian in respect of the U.S. Government
Obligation or the specific payment of interest on or principal of or



11









 







other amount with respect to
the U.S. Government Obligation evidenced by such depository receipt.



     “Vice President” when used with respect to the Company or the Trustee, means any vice
president or similar officer, whether or not designated by a number or a word or words added before
or after the title “Vice President”.



     “Voting Stock” means stock or shares of a Corporation of the class or classes having general
voting power under ordinary circumstances to elect at least a majority of the board of directors,
managers or trustees of such Corporation provided that, for the purposes hereof, stock or shares
which carry only the right to vote conditionally on the happening of an event shall not be
considered voting stock whether or not such event shall have happened.



     Section 1.02. Compliance Certificates and Opinions. Except as otherwise expressly provided
in this Indenture, upon any application or request by the Company or the Guarantor to the Trustee
to take any action under any provision of this Indenture, the Company or the Guarantor shall
furnish to the Trustee an Officers’ Certificate stating that all conditions precedent, if any,
provided for in this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that, in the opinion of such counsel, all such conditions precedent, if
any, have been complied with, except that in the case of any such application or request as to
which the furnishing of such documents or any of them is specifically required by any provision of
this Indenture relating to such particular application or request, no additional certificate or
opinion need be
furnished. Each Officer’s Certificate and Opinion of Counsel shall comply with the
requirements of Section 314(e) under the Trust Indenture Act.



     Section 1.03. Form of Documents Delivered to Trustee. In any case where several matters are
required to be certified by, or covered by an opinion of, any specified Person, it is not necessary
that all such matters be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to other matters, and
any such Person may certify or give an opinion as to such matters in one or several documents.



     Any certificate or opinion of an officer of the Company or the Guarantor may be based, insofar
as it relates to legal matters, upon an Opinion of Counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion with respect to the matters, upon which
his certificate or opinion is based are erroneous. Any such Opinion of Counsel may be based,
insofar as it relates to factual matters, upon a certificate or opinion of, or representations by,
an officer or officers of the Company or the Guarantor stating that the information with respect to
such factual matters is in the possession of the Company or the



12









 







Guarantor, unless such counsel
knows, or in the exercise of reasonable care should know, that the certificate or opinion or
representations with respect to such matters are erroneous.



     Where any Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this Indenture or any
Security, they may, but need not, be consolidated and form one instrument.



     Section 1.04. Acts of Holders. (a) Except as otherwise provided under this Indenture, the
Regulations of the Syndicate of Holders of Securities of a series or the Trust Indenture Act, any
request, demand, authorization, direction, notice, consent, waiver or other action provided by or
pursuant to this Indenture to be given or taken by Holders of Securities of such series shall be
given or taken only by resolution duly adopted in accordance with this Indenture and the
Regulations of the Syndicate of Holders of Securities of such series at a meeting of such Syndicate
duly called and held in accordance with such Regulations, which resolution as so adopted is herein
referred to as the “Act” of the Holders. Any such Act will be embodied in the record of such
meeting and will become effective when such record is delivered to the Trustee pursuant to the
Regulations of such Syndicate and, where it is expressly required, to the Company or the Guarantor.
Proof of the record of any meeting of a Syndicate as specified in the Regulations with respect to
such Syndicate shall be sufficient for any purpose of this Indenture and (subject to Section 315 of
the Trust Indenture Act) conclusive in favor of the Trustee, the Company and the Guarantor and any
agent of the Trustee or the Company or the Guarantor, if made in the manner provided in the
Regulations related to such Syndicate.



     (b) The ownership, principal amount and serial numbers of Securities held by any Person, and
the date of the commencement and the date of the termination of holding the same, shall be proved
by the Security Register.



     (c) If the Company wishes to solicit from the Holders of any Securities any Act, the Company
shall give notice to the Trustee to request that the Commissioner call a meeting of the Syndicate
or Syndicates of Holders of the affected series of Securities in accordance with the relevant
Regulations, which notice shall include the substance of the matter or matters proposed to be
considered at such meeting, and the Trustee shall request that the Commissioner give notice of any
such meeting, together with the substance of the matter or matters proposed to be considered at
such meeting, in accordance with the relevant Regulations within 14 days of receipt of such notice
from the Company.



     (d) For the purpose of determining the Holders of Outstanding Securities of a series entitled
to give, make or take any Act provided or permitted by this Indenture, only the Holders of
Securities Outstanding at the close of



13









 







business on any record date established by the Commissioner
in accordance with the Regulations of the Syndicate of Holders of Securities of such series, as
shown in the Security Register, shall be deemed to be Holders of such Securities for the purpose of
determining whether the Holders of the requisite proportion of Outstanding Securities have
authorized or agreed or consented to such Act.



     (e) Any request, demand, authorization, direction, notice, consent or waiver by the Holder of
any Security shall bind every future Holder of the same Security and the Holder of every Security
issued upon the registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done or suffered to be done by the Trustee, any Security Registrar, any Paying
Agent, the Company or the Guarantor in reliance thereon, whether or not notation of such request,
demand, authorization, direction, notice, consent or waiver is made upon such Security.



     Section 1.05. Notices, etc., to Trustee, Company and Guarantor. (a) Any request, demand,
direction, notice, or record of an Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with, the Trustee by any Holder, or any
request, demand, authorization, direction, notice, consent or waiver by the Company or the
Guarantor, shall be sufficient for every purpose hereunder if made, given, furnished or filed in
writing to or with the Trustee at its Corporate Trust Office.



     (b) Any record of an Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with, the Guarantor by the Trustee or any Holder
shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Guarantor addressed to the attention of
Financial Department at Paseo de la Castellana, 81, 18th Floor, 28046, Madrid, Spain
(Facsimile number: +34 91 537 40 11), or at any other address previously furnished in writing
to the Trustee by the Guarantor.



     (c) Any record of an Act of Holders or other document provided or permitted by this Indenture
to be made upon, given or furnished to, or filed with, the Company by the Trustee or any Holder
shall be sufficient for every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, to the Company addressed to the attention of
Financial Department at Paseo de la Castellana, 81, 18th Floor, 28046, Madrid, Spain
(Facsimile number: +34 91 537 40 11), or at any other address previously furnished in writing to
the Trustee by the Company.



     (d) Any request, demand, direction or notice of the Trustee provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with, the Commissioner, shall be
sufficient for every purpose hereunder if made, given, furnished or filed in writing to or with the
Commissioner at the Corporate Trust



14









 







Office or at any other address previously furnished in writing
to the Trustee by the Commissioner.



     Section 1.06. Notice to Holders of Securities; Waiver. (a) Except as otherwise expressly
provided in or pursuant to this Indenture, where this Indenture provides for notice to Holders of
Securities of any event, such notice shall be sufficiently given to Holders of Securities if in
writing and mailed, first-class postage prepaid, to each Holder of a Security affected by such
event, at his address as it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such Notice. In addition to the
foregoing, notice of any meeting of Holders of Securities of a given series shall be given in
accordance with Section 1.04(c) and the Regulations of the Syndicate of Holders of Securities of
such series.



     (b) Any notice which is given in the manner provided in this Section 1.06 and the applicable
Regulations shall be conclusively presumed to have been duly given or provided. Without limiting
the generality of the foregoing, in any case where notice to Holders of Securities is given by mail
as provided by this Section 1.06, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder of a Security shall affect the sufficiency of such
notice with respect to other Holders of Securities. In the case by reason of the suspension of
regular mail service or by reason of any other cause it shall be impracticable to give such notice
by mail, then such notification as shall be made with the approval of the Trustee, in addition to
any notice required to be made under the applicable Regulations, shall constitute a sufficient
notification for every purpose hereunder.



     (c) Where this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after the event, and such
waiver shall be the equivalent of such notice. Waivers of notice by Holders of Securities shall be
filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action taken in reliance
upon such waiver.



     Section 1.07. Language of Notices. Any request, demand, authorization, direction, notice,
consent, election or waiver required or permitted under this Indenture shall be in the English
language, except that, if the Company so elects, any published notice may be in an official
language of the country of publication.



     Section 1.08. Conflict with Trust Indenture Act. If any provision hereof or of the
Regulations of the Syndicate of Holders of Securities of a given series limits, qualifies or
conflicts with a provision of the Trust Indenture Act that is required under such Act to be a part
of and govern this Indenture, the provision of the Trust Indenture Act shall control. If any
provision hereof or of the Regulations of the Syndicate of Holders of Securities of a given series
modifies or



15









 







excludes any provision of the Trust Indenture Act that may be so modified or excluded,
the provision of the Trust Indenture Act shall be deemed to apply to this Indenture and the
relevant Regulations as so modified or to be excluded, as the case may be.



     Nothing in the Regulations of the Syndicate of Holders of Securities
of any series or duties of the Commissioner of such Syndicate will limit
or restrict the ability of the Trustee to perform its duties as
Trustee under the Indenture and, in the event of conflict, this
Indenture and the obligations of the Trustee hereunder will control and
prevail.


     Section 1.09. Effect of Headings and Table of Contents. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect the construction
hereof.



     Section 1.10. Successors and Assigns. All covenants and agreements in this Indenture by the
Company or the Guarantor shall bind its successors and assigns, whether so expressed or not.



     Section 1.11.
Separability Clause. In case any provision in this Indenture or any Security
shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or impaired thereby.



     Section 1.12.
Benefits of Indenture. Nothing in this Indenture or any Security, express or
implied, shall give to any Person, other than the parties hereto, any Security Registrar, any
Paying Agent and their successors hereunder and the Holders of Securities, any benefit, any legal
or equitable right, remedy or claim under this Indenture.



     Section 1.13. Governing Law. This Indenture and the Securities shall be governed by and
construed under the laws of the State of New York applicable to agreements made or instruments
entered into and, in each case, performed in said state, except that the authorization and
execution by the Company and the Guarantor of this Indenture and the
Securities, the Securities as set forth therein, Section 1.17,
Section 1.18 and Section 15.02 shall be governed by and construed in accordance with Spanish law.
Any Guarantees entered into pursuant to Section 15.01 shall be governed by and construed in
accordance with Spanish law. The Regulations of each Syndicate and
the duties of and all other matters relating to the Commissioner shall be governed by and construed
in accordance with Spanish law.



     Section 1.14. Legal Holidays. In any case where any Interest Payment Date, Stated Maturity
or Maturity of any Security, or the last date on which a Holder has the right to convert Securities
of a series that are convertible, shall be a Legal Holiday at any Place of Payment, then
(notwithstanding any other provision of this Indenture, any Security other than a provision in any
Security that specifically states that such provision shall apply in lieu hereof) payment need not
be made at such Place of Payment on such date, and such Securities need not be converted on such
date but such payment may be made, and such Securities may be converted, on the next succeeding day
that is a Business Day at such Place of Payment with the same force and effect as if made on the
Interest Payment Date or at the Stated Maturity or Maturity, or on such last day for conversion and
no



16









 







interest shall accrue on the amount payable on such date or at such time for the period from and
after such Interest Payment Date, Stated Maturity or Maturity, as the case may be.



     Section 1.15. Counterparts. This Indenture may be executed in several counterparts, each of
which shall be an original and all of which shall constitute but one and the same instrument.



     Section 1.16. Appointment of Agent for Service. Each of the Company and the Guarantor has
designated and appointed Banco Bilbao Vizcaya Argentaria, S.A., New York Branch, 1345 Avenue of the
Americas, 45th Floor, New York, New York 10105 as its authorized agent (the “Authorized
Agent”) upon which process may be served in any suit or proceeding in any U.S. federal or state
court in the Borough of Manhattan, The City of New York arising out of or relating to the
Securities, the Guarantee or this Indenture, but for that purpose only, and agrees that service of
process upon said Authorized Agent shall be deemed in every respect effective service of process
upon it in any such suit or proceeding in any U.S. federal or state court in the Borough of
Manhattan, The City of New York, New York. Such appointment shall be irrevocable so long as any of
the Securities remain Outstanding until the appointment of a successor by the Company or the
Guarantor, as the case may be, and such successor’s acceptance of such appointment. Upon such
acceptance, the Company or the Guarantor, as the case may be, shall notify the Trustee of the name
and address of such successor. Each of the Company and the Guarantor further agrees to take any
and all action, including the execution and filing of any and all such documents and instruments,
as may be necessary to continue such designation and appointment of said Authorized Agent in full
force and effect so long as any of the Securities shall be Outstanding. The Trustee shall not be
obligated and shall have no responsibility with respect to any failure by the Company or the
Guarantor to take any such action. Each of the Company and the Guarantor hereby submits (for the
purpose of any such suit or proceeding) to the jurisdiction of any such court in which any such
suit or proceeding is so instituted, and waives, to the extent it may effectively do so, any
objection it may have now or hereafter to the laying of the venue of any such suit or proceeding.
Notwithstanding the foregoing, any suit or
proceeding arising out of or relating to the Guarantee may also be brought in the courts of
Madrid, Spain.



     Section 1.17. Establishment of Syndicate and Appointment of Commissioner. For each series of
Securities issued hereunder, the Company shall establish a Syndicate in respect of the Securities
of that series in accordance with the Spanish Corporations Law (Ley de Sociedades Anónimas). The
Company shall designate and appoint, in the Spanish deed of issuance (escritura de emisión) related
to the Securities of that series, The Bank of New York Mellon, or any other Person named as Trustee
hereunder in respect of Securities of such series, as Commissioner of such Syndicate. The Bank of
New York Mellon, or any other



17









 







Person named as Trustee hereunder in respect of Securities of such
series, as the case may be, shall serve as Commissioner (i) until The Bank of New York Mellon or such other Trustee resigns or is removed
as Trustee by the Company, the Guarantor or an Act of Holders of Outstanding Securities of a series or otherwise pursuant to Article 6 and a successor Trustee or any other Person shall have become Commissioner with respect to
Securities of such series pursuant to the Regulations of the Syndicate of Holders of Securities of such series or (ii) until such Commissioner is
removed by the Company, the Guarantor or an Act of Holders of Outstanding
Securities of such series. Thereafter “Commissioner” in respect of Securities of such series shall
mean each Person designated by the Syndicate of Holders of Securities of such series as the successor
Commissioner with respect to Securities of such series. Every Holder of
Securities of such series will be deemed to have agreed to membership in the Syndicate in respect
of Securities of such series and to have granted full power and
authority to the Trustee with respect to Securities of such series to
act as
its proxy to vote at the first meeting of the Syndicate of Holders of Securities of such series in
favor of ratifying the Regulations in respect of such Syndicate, the designation and appointment of such
Trustee as Commissioner of such Syndicate and the actions of the Commissioner of such Syndicate
performed prior to such first meeting of such Syndicate.



     Section 1.18. Meetings of the Syndicate. The Trustee shall request that the Commissioner
call meetings of each Syndicate of Holders of Securities of the affected series as provided herein.



ARTICLE 2

Securities Forms




     Section 2.01. Forms Generally. Each Security issued pursuant to this Indenture shall be in
the form established by or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, shall have such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by or pursuant to this Indenture or any indenture supplemental hereto and
may have such letters, numbers or other marks of identification and such legends or endorsements
placed thereon as may, consistently herewith, be determined by the officers executing such Security
as evidenced by their execution of such Security.



     Unless otherwise provided in or pursuant to this Indenture, the Securities shall be issuable
in registered form without coupons and shall not be issuable upon the exercise of warrants.



     Definitive Securities shall be printed, lithographed or engraved or produced by any
combination of these methods on a steel engraved border or steel engraved borders or may be
produced in any other manner, all as determined by the officers of the Company executing such
Securities, as evidenced by their execution of such Securities.



18









 





     Section 2.02. Form of Trustee’s Certificate of Authentication. Subject to Section 6.13, the
Trustee’s certificate of authentication shall be in substantially the following form:



     This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.



	 	 	 	 	 
	 	The Bank of New York Mellon,

   as Trustee

 	 
	 	By:  	 	 
	 	 	Authorized Officer 	 
	 




     Section 2.03. Securities in Global Form. The Securities may be issuable in global form. If
Securities of a series shall be issuable in global form, any such Security may provide that it or
any number of such Securities shall represent the aggregate amount of all Outstanding Securities of
such series (or such lesser amount as is permitted by the terms thereof) from time to time endorsed
thereon and may also provide that the aggregate amount of Outstanding Securities represented
thereby may from time to time be increased or reduced to reflect exchanges of interests in the
Global Security for Securities issued in definitive form. Any endorsement of any Global Security
to reflect the amount, or any increase or decrease in the amount, or changes in the rights of
Holders, of Outstanding Securities represented thereby shall be made in such manner and by such
Person or Persons as shall be specified therein or in the Company Order to be delivered pursuant to
Section 3.03 or Section 3.05 with respect thereto. Subject to the provisions of Section 3.03 and,
if applicable, Section 3.05, the Trustee shall deliver and redeliver any Global Security in
permanent form in the manner and upon instructions given by the Person specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 3.03 or Section 3.05 has been, or
simultaneously is, delivered, any instructions by the Company with respect to a Global Security
shall be in writing but need not be accompanied by or contained in an Officers’ Certificate and
need not be accompanied by an Opinion of Counsel.



     Notwithstanding the provisions of Section 3.08, unless otherwise specified as contemplated by
Section 3.01, payment of principal of and any premium and interest on any Global Security in
permanent form shall be made to the Person or Persons specified in the Global Security.



     Notwithstanding the provisions of Section 3.09 and except as provided in the preceding
paragraph, the Company, the Trustee and any agent of the Company and the Trustee shall treat as the
Holder of such principal amount of Outstanding



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Securities represented by a permanent Global
Security in registered form, the Holder of such permanent Global Security in registered form.



     Section 2.04. Forms of Legends for Global Securities. Unless otherwise specified as
contemplated by Section 3.01 for the Securities evidenced thereby, every Global Security
authenticated and delivered hereunder shall bear legends in substantially the following form:


THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED
IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART
MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF,
EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.



     This Security may not be offered
or sold in the Kingdom of Spain by means of a public offer (as defined and construed by Spanish law) and may only be offered
or sold in the Kingdom of Spain in compliance with the requirements of Law 24/1988 of July 28, 1988 (as amended from time to time)
on the Spanish Securities Market and Royal Decree 1310/2005 of November 4, 2005 on listing in secondary markets, public offers
and the prospectus required for those purposes.



     Section 2.05. Form of Guarantee. The Guarantee to be endorsed on the Securities of each
series of Securities shall be in substantially the following form:



GUARANTEE




     THIS GUARANTEE is made on                     , 20      by Banco Bilbao Vizcaya Argentaria, S.A. (the
“Guarantor”, which term includes any successor corporation under the Indenture referred to in the
Security upon which this Guarantee is endorsed) in favor of the Holder of the Security upon which
this Guarantee is endorsed (“this Security”). This Guarantee is issued subject to the provisions
of the Indenture dated July 18, 2008 among BBVA U.S. Senior, S.A.
Unipersonal, the Guarantor and The Bank of
New York Mellon, as Trustee, as supplemented from time to time
(the “Indenture”), and each Holder of this Security, by accepting the
same, agrees to and shall be bound by such provisions. Terms not otherwise defined herein shall
have the meanings assigned to them in the Indenture.



     (a) Guarantee. The Guarantor irrevocably and unconditionally guarantees to each Holder of
this Security, and to the Trustee on behalf of each such Holder, that, if for any reason, the
Company does not pay any sum payable by it to such Holder in respect of this Security as specified
in this Security (including any principal of (and premium, if any) and interest on this Security,
payments to sinking funds (if applicable), Additional Amounts or any other
amounts of whatever nature which may become payable under any of the foregoing or under the
Indenture) as and when the same shall become due under any of the foregoing, the Guarantor will pay
to such Holder, or to the Trustee for the account of such Holder, on demand the amount payable by
the Company to such Holder.




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     (b) Guarantor as Principal Debtor. Without affecting the Company’s obligations, the Guarantor
will be liable under this Guarantee as if it were the sole principal debtor and not merely a
surety. Accordingly, it will not be discharged, nor will its liability be affected, by anything
which would not discharge it or affect its liability if it were the sole principal debtor
(including (i) any time, indulgence, waiver or consent at any time given to the Company or any
other person, (ii) any amendment to any of the Security, the Indenture or to any security or other
guarantee or indemnity, (iii) the making or absence of any demand on the Company or any other
person for payment, (iv) the enforcement or absence of enforcement of any of the Security, the
Indenture or of any security or other guarantee or indemnity, (v) the release of any such security,
guarantee or indemnity, (vi) the dissolution, amalgamation, reconstruction, merger or
reorganization of the Company or any other Person, (vii) the sale or conveyance of the property of
the Company or the Guarantor as an entirety or substantially as an entirety to any other Person or
(viii) the illegality, invalidity or unenforceability of or any defect in any provision of any of
the Security or the Indenture or any of the Company’s obligations under any of them).



     (c) Guarantor’s Obligations Continuing. The Guarantor’s obligations under this Guarantee are
and will remain in full force and effect by way of continuing security until no sum remains payable
under any Security or the Indenture. Furthermore, these obligations of the Guarantor are
complementary to, and not instead of, any security or other guarantee or indemnity at any time
existing in favor of a Holder, whether from the Guarantor or otherwise. The Guarantor irrevocably
waives all notices and demands whatsoever, as well as diligence, presentment, demand of payment,
filing of claims with a court in the event of merger of bankruptcy of the Company, protest and any
right to require a proceeding first against the Company.



     (d) Repayment to the Company. If any payment received by a Holder is, on the subsequent
liquidation or insolvency of the Company, avoided under any laws relating to liquidation or
insolvency, such payment will not be considered as having discharged or diminished the liability of
the Guarantor and this Guarantee will continue to apply as if such payment had at all times
remained owing by the Company.



     (e) Indemnity. As a separate and alternative stipulation, the Guarantor unconditionally and
irrevocably agrees that any sum expressed to be payable by the Company under this Security or the
Indenture but which is for any reason (whether or not now known or becoming known to the Company,
the Guarantor or any Holder) not recoverable from the Guarantor on the basis of a guarantee will
nevertheless be recoverable from it as if it were the sole principal debtor and will be paid by it
to the Holder on demand. This indemnity constitutes a separate and independent obligation from the
other obligations in this Guarantee, gives rise to a



21









 





     separate and independent cause of action and will apply irrespective of any indulgence granted by any Holder.



     (f) Status of Guarantee. The payment obligations of the Guarantor under this Guarantee
constitute direct, unconditional and unsecured obligations of the
Guarantor and will at all times rank
pari passu among themselves and pari passu with all other unsecured and unsubordinated obligations of the Guarantor.



     (g) Withholding or Deduction. All payments by the Guarantor under this Guarantee shall be
made without withholding or deduction for, or on account of, any present or future taxes, duties,
assessments or governmental charges of whatever nature (“Taxes”) imposed or levied by or on behalf
of the Kingdom of Spain, or any political sub-division thereof or any authority therein or thereof
having power to tax, unless the withholding or deduction of the Taxes is required by law. In that
event, the Guarantor will pay such Additional Amounts as may be necessary in order that the net
amounts received by each Holder after such withholding or deduction shall equal the respective
amounts which would have been received by them in the absence of the withholding or deduction;
except that no additional amounts shall be payable with respect to any Security:




(i) to, or to a third party on behalf of, a Holder who is liable for such Taxes
by reason of such Holder (or the beneficial owner of the Security for whose
benefit such Holder holds such Security) having some connection with the Kingdom
of Spain other than the mere holding of the Security or the mere crediting of the
Security to its securities account with the relevant Depository; or




(ii) in the case of a Security presented for payment (where presentation is
required) more than 30 days after the Relevant Date (as defined below) except to
the extent that a Holder would have been entitled to additional amounts on
presenting the same for payment on such thirtieth day assuming that day to have
been a business day in such place of presentment; or




(iii) to, or to a third party on behalf of, a Holder in respect of whom the
Company or the Guarantor (or the Paying Agent on its behalf) has not received all
details concerning such holder’s identity and tax residence as it requires in
order to comply with Spanish Law 13/1985 of 25 May 1985, as amended, by Law
19/2003, of 4th July and Law 23/2005, of 18th November) and
any implementing legislation or regulation, no later than 10.00 a.m. (CET) on the
10th calendar day of the month following the relevant date upon which the payment
was due (or if such date is not a day on which commercial banks are open for
general business in Spain, the immediately preceding such date); or



22









 






(iv) where such withholding or deduction is imposed on a payment to an individual
and is required to be made pursuant to European Council Directive 2003/48/EC or
any other Directive implementing the conclusions of the ECOFIN Council meeting of
26-27 November 2000 on the taxation of savings or any law implementing or
complying with, or introduced in order to conform to, such Directive or law; or




(v) in respect of any Security presented for payment (where presentation is
required) by or on behalf of a Holder who would have been able to avoid such
withholding or deduction by presenting the relevant Security to another Paying
Agent in a Member State of the European Union.


Additional amounts will also not be paid with respect to any payment to a Holder who is a
fiduciary, a partnership, a limited liability company or other than the sole beneficial owner of
that payment, to the extent that payment would be required by the laws of Spain (or any political
subdivision thereof) to be included in the income, for Spanish tax purposes, of a beneficiary or
settlor with respect to the fiduciary, a member of that partnership, an interest holder in that
limited liability company or a beneficial owner who would not have been entitled to the additional
amounts had it been the Holder.



For the purposes of (ii) above, the “Relevant Date” means, in respect of any payment, the date on
which such payment first becomes due and payable, but if the full amount of the moneys payable has
not been received by the Paying Agent on or prior to such due date, it means the first date on
which the full amount of such moneys having been so received and being available for payment to
Holders, notice to that effect shall have been duly given to the Holders in accordance with this
Indenture.




     (h) Power to Execute. The Guarantor hereby warrants, represents and covenants with the Holder
of this Security that it has all corporate power, and has taken all necessary corporate or other
steps, to enable it to execute, deliver and perform this Guarantee, and that this Guarantee
constitutes a legal, valid and binding obligation of the Guarantor enforceable in accordance with
its terms.



     (i) Subrogation. The Guarantor shall be subrogated to all rights of the Holder of this
Security against the Company in respect of any amounts paid to such Holder by the Guarantor
pursuant to the provisions of this Guarantee; provided, however, that the Guarantor shall not be
entitled to enforce, or to receive any payments arising out of or based upon, such right of
subrogation until the principal of, any premium and interest on (including Additional Amounts, if
any, on) and all other amounts which may be payable under this Security shall have been paid in
full.



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     (j) Governing Law and Submission to Jurisdiction. This Guarantee is governed by, and shall be
construed in accordance with, Spanish law.



     The Guarantor irrevocably agrees for the benefit of each Holder that the courts of Madrid,
Spain, are to have non-exclusive jurisdiction to settle any disputes which may arise out of or in connection with this Guarantee and that accordingly any suit,
action or proceedings arising out of or in connection with this Guarantee (together referred to as
“Proceedings”) may be brought in the courts of Madrid, Spain. Notwithstanding the foregoing, any
Proceeding may also be brought in any U.S. federal or state court in the Borough of Manhattan, The
City of New York, New York.



     The Guarantor irrevocably waives any objection which it may have now or hereafter to the
laying of the venue of any Proceedings in the courts of Madrid, Spain, and irrevocably agrees that
a final judgment in any Proceedings brought in the courts of Madrid, Spain, shall be conclusive and
binding upon the Guarantor and may be enforced in the courts of any other jurisdiction. Nothing
contained in this Clause shall limit any right to take Proceedings against the Guarantor in any
other court of competent jurisdiction, nor shall the taking of Proceedings in one or more
jurisdictions preclude the taking of Proceedings in any other jurisdiction, whether concurrently or
not.



     IN WITNESS WHEREOF, this Guarantee has been manually executed on behalf of the Guarantor.



	 	 	 	 	 
	 	BANCO BILBAO VIZCAYA ARGENTARIA, S.A.

 	 
	 	By:  	[                                       ]
 	 
	 	 	Name:  	 	 
	 	 	Address:


Date: 	 



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ARTICLE 3

The Securities





     Section 3.01. Amount Unlimited; Issuable in Series. The aggregate principal amount of
Securities which may be authenticated and delivered under this Indenture is unlimited. The
Securities may be issued in one or more series.



     With respect to any Securities to be authenticated and delivered hereunder, there shall be
established or issued in or pursuant to a Board Resolution and set forth in an Officer’s
Certificate, or established in one or more indentures supplemental hereto, prior to the issuance of
any Securities of a series,



     (a) the title of such Securities and series in which such Securities shall be included;



     (b) any limit on the aggregate principal amount of the Securities of such title or the
Securities of such series which may be authenticated and delivered under this Indenture (except for
Securities authenticated and delivered upon registration or transfer of, or in exchange for, or in
lieu of, other Securities of such series pursuant to Sections 3.05, 3.06, 3.07, 9.05 or 11.07 or
the terms of such Securities and except for any Securities that, pursuant to Section 3.03, are
deemed never to have been authenticated and delivered hereunder);



     (c) the price or prices (expressed as a percentage of the aggregate principal amount thereof)
at which such Securities will be issued;



     (d) if any of such Securities are to be issuable in global form, when any of such Securities
are to be issuable in global form and (i) whether beneficial owners of interests in any such Global
Security may exchange such interests for Securities of the same series and of like tenor and of any
authorized form and denomination, and the circumstances under which any such exchanges may occur,
if other than in the manner specified in Section 3.06, (ii) the name of the Depository or the U.S.
Depository, as the case may be, with respect to any Global Security and (iii) the form of any
legend or legends that shall be borne by any such Global Security in addition to or in lieu of that
set forth in Section 2.04;



     (e) the date or dates, or the method or methods, if any, by which such date or dates shall be
determined, on which the principal, or any portion of the principal amount, of such Securities is
payable and, if other than the full principal amount thereof, the portion, or the method or methods
by which such portion is determined, of the principal amount of such Securities payable on such
date or dates;



25









 





     (f) the rate or rates (which may be fixed or variable) at which such Securities will bear
interest, if any, or the method or methods, if any, by which such rate or rates are to be
determined, the date or dates, if any, from which such
interest shall accrue or the method or methods, if any, by which such date or dates are to be
determined, the Interest Payment Dates, if any, on which such interest shall be payable and the
Regular Record Date, if any, for the interest payable on Securities on any Interest Payment Date,
whether and under what circumstances Additional Amounts on such Securities or any of them shall be
payable, the notice, if any, to Holders regarding the determination of interest on a floating rate
Security and the manner of giving such notice, and the basis upon which interest shall be
calculated if other than that of a 360-day year of twelve 30-day months;



     (g) the date or dates, if any, on or after which, or the period or periods, if any, within
which, and the price or prices at which the Securities will, pursuant to any mandatory sinking fund
provisions, or may, pursuant to any optional sinking fund or to any purchase fund provisions, be
redeemed by the Company, and the other terms and provisions of such sinking and/or purchase funds;



     (h) if in addition to or other than the Borough of Manhattan, The City of New York, the place
or places where the principal of, any premium and interest on or any Additional Amounts with
respect to such Securities shall be payable, any of such Securities that are Securities may be
surrendered for registration of transfer, any of such Securities may be surrendered for exchange
and notices or demands to or upon the Company in respect of such Securities and this Indenture may
be served; the extent to which, or the manner in which, any interest payment on a Global Security
on an Interest Payment Date will be paid and the manner in which any principal of or premium, if
any, on any Global Security will be paid;



     (i) whether any of such Securities are to be redeemable at the option of the Company or of the
Holder thereof and, if so, the period or periods within which, the price or prices at which and the
other terms and conditions upon which such Securities may be redeemed, in whole or in part, at the
option of the Company or of the Holder thereof and the terms and provisions of such optional
redemption;



     (j) whether the Company is obligated to redeem or purchase any of such Securities pursuant to
any sinking fund or analogous provision or at the option of any Holder thereof and, if so, the
period or periods within which, the price or prices at which and the other terms and conditions
upon which such Securities shall be redeemed or purchased, in whole or in part, pursuant to such
obligation, and any provisions for the remarketing of such Securities so redeemed or purchased;



     (k) the denominations in which any of such Securities shall be issuable;



26









 





     (l) whether any of the Securities will be issued as Original Issue Discount Securities;



     (m) if other than the principal amount thereof, the portion of the principal amount of any of
such Securities that shall be payable upon declaration
of acceleration of the Maturity thereof pursuant to Section 5.02 or the method by which such
portion is to be determined;



     (n) if other than Dollars, the Foreign Currency in which payment of the principal of, any
premium or interest on or any Additional Amounts with respect to any of such Securities shall be
payable and the manner of determining the equivalent thereof in Dollars for any purpose, including
for purposes of the definition of “Outstanding” in Section 1.01;



     (o) if the principal of, any premium or interest on or any Additional Amounts with respect to,
any of such Securities are to be payable, at the election of the Company or a Holder thereof or
otherwise, in a Currency other than that in which such Securities are stated to be payable, the
period or periods within which, and the other terms and conditions upon which, such election may be
made, and the time and manner of determining the exchange rate between the Currency in which such
Securities are denominated or stated to be payable and the Currency in which such Securities or any
of them are to be so payable;



     (p) whether the amount of payments of principal of, any premium or interest on or any
Additional Amounts with respect to, such Securities may be determined with reference to an index,
formula or other method or methods (which index, formula or method or methods may be based, without
limitation, on one or more Currencies, commodities, equity indices or other indices), and, if so,
the terms and conditions upon which and the manner in which such amounts shall be determined and
paid or payable;



     (q) whether the Person in whose name a Security is registered at the close of business on the
Regular Record Date for payment of interest shall be entitled to designate some other person as the
recipient of such interest payment;



     (r) any deletions from, modifications of or additions to the Events of Default or covenants of
the Company or the Guarantor with respect to any of such Securities, whether or not such Events of
Default or covenants are consistent with the Events of Default or covenants set forth herein and
any change in the right of the Trustee or the requisite Holders of such Securities to declare the
principal amount thereof due and payable pursuant to Section 5.02;



     (s) the applicability, if any, of Section 4.02 to any of such Securities and any provisions in
modification of, in addition to or in lieu of any of the provisions of Section 4.02;



27









 





     (t) if any of such Securities are to be issuable upon the exercise of warrants, the time,
manner and place for such Securities to be authenticated and delivered;



     (u) if any of such Securities are to be issuable in global form and are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and terms of such certificates, documents or
conditions;



     (v) if there is more than one Trustee, the identity of the Trustee and, if not the Trustee,
the identity of each Security Registrar, Paying Agent or Authenticating Agent with respect to such
Securities;



     (w) the “Stated Intervals” and the “Record Date” for purposes of Sections 312(a) (in the case
of non-interest bearing Securities) and 316(c), respectively, of the Trust Indenture Act;



     (x) any material U.S. federal or Spanish income tax considerations applicable to such
Securities and related Guarantees;



     (y) any other terms of such Securities which the Company may establish in accordance with
Section 9.02;



     (z) the deed of issuance (escritura de emisión), which shall be in the Spanish language,
related to that series of Securities, and the Regulations related to such series of Securities,
which shall be in the Spanish language and accompanied by a non-official English translation
thereof; and



     (aa) any provisions in addition to any of the provisions of Section 10.04.



     All Securities of any one series shall be substantially identical except as to denomination
and except as may otherwise be provided in or pursuant to such Board Resolution or in any indenture
supplemental hereto pertaining to such Securities. The terms of the Securities of any series may
provide, without limitation, that the Securities shall be authenticated and delivered by the
Trustee on original issue from time to time upon written order of persons designated in the
Officers’ Certificate or supplemental indenture and that such persons are authorized to determine,
consistent with such Officers’ Certificate or any applicable supplemental indenture, such terms and
conditions of the Securities of such series as are specified in such Officers’ Certificate or
supplemental indenture. All Securities of any one series need not be issued at the same time and,
unless otherwise so provided by the Company, a series may be reopened for issuances of additional
Securities of such series or to establish additional terms of such series of Securities.



28









 





     If any of the terms of the Securities of any series shall be established by action taken by or
pursuant to a Board Resolution, the Board Resolution shall be delivered to the Trustee at or prior
to the delivery of the Officers’ Certificate setting forth the terms of such series.



     Section 3.02. Currency; Denominations. Unless otherwise provided in or pursuant to this
Indenture, the principal of, any premium and interest on and any Additional Amounts with respect to
the Securities shall be payable in Dollars. Unless otherwise provided in or pursuant to this
Indenture, Securities denominated in Dollars shall be issuable in registered form without coupons.
Securities shall be issuable in such denominations as are established with respect to such
Securities in or pursuant to this Indenture.



     Section 3.03. Execution, Authentication, Delivery and Dating. Securities shall be executed
on behalf of the Company by one of the representatives of the Company entitled to do so by Board
Resolution or by any member of the Board of Directors. The signature of any of these officers on
the Securities may be manual or facsimile.



     Securities bearing the manual or facsimile signatures of individuals who were at any time the
proper officers of the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.



     At any time and from time to time after the execution and delivery of this Indenture, the
Company may deliver Securities, executed by the Company and having Guarantees endorsed thereon by
the Guarantor, to the Trustee for authentication and, provided that the Board Resolution and
Officers’ Certificate or supplemental indenture or indentures with respect to such Securities
referred to in Section 3.01 and a Company Order for the authentication and delivery of such
Securities have been delivered to the Trustee, the Trustee in accordance with the Company Order and
subject to the provisions hereof and of such Securities shall authenticate and deliver such
Securities. In authenticating such Securities, and accepting the additional responsibilities under
this Indenture in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to Sections 315(a) through 315(d) of the Trust Indenture Act) shall be fully protected in
relying upon,



     (a) an Opinion of Counsel to the effect that:




     (i) the form or forms and terms of such Securities, if any, have been established in
conformity with the provisions of this Indenture;



29









 






     (ii) all conditions precedent to the authentication and delivery of such Securities
have been complied with and that such Securities, when completed by appropriate insertion
and executed and delivered by the Company to the Trustee for authentication pursuant to
this Indenture and authenticated and delivered by the Trustee and issued by the Company in
the manner and subject to any conditions specified in such Opinion of Counsel, will
constitute valid and legally binding obligations of the Company, enforceable against the
Company in accordance with their
terms, subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent
transfer or other similar laws affecting the enforcement of creditors’ rights generally,
and subject to general principles of equity (regardless of whether enforcement is sought
in a proceeding in equity or at law) and will entitle the Holders thereof to the benefits
of this Indenture; such Opinion of Counsel need express no opinion as to the availability
of equitable remedies;




     (iii) all laws and requirements in respect of the execution and delivery by the
Company of such Securities, if any, have been complied with; and




     (iv) this Indenture has been qualified under the Trust Indenture Act; and



     (b) an Officers’ Certificate stating that, to the best knowledge of the Persons executing such
certificate, no event which is, or after notice or lapse of time would become, an Event of Default
with respect to any of the Securities shall have occurred and be continuing.



     If all the Securities of any series are not to be issued at one time, it shall not be
necessary to deliver an Opinion of Counsel and an Officers’ Certificate at the time of issuance of
each Security, but such opinion and certificate, with appropriate modifications, shall be delivered
at or before the time of issuance of the first Security of such series. After any such first
delivery, any separate request by the Company that the Trustee authenticate Securities of such
series for original issue will be deemed to be a certification by the Company that all conditions
precedent provided for in this Indenture relating to authentication and delivery of such Securities
continue to have been complied with.



     The Trustee shall not be required to authenticate or to cause an Authenticating Agent to
authenticate any Securities if the issue of such Securities pursuant to this Indenture will affect
the Trustee’s own rights, duties or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee or if the Trustee, being advised by
counsel, determines that such action may not lawfully be taken.



30









 





     Each Security shall be dated the date of its authentication.



     No Security shall be entitled to any benefit under this Indenture or be valid or obligatory
for any purpose, unless there appears on such Security a certificate of authentication
substantially in the form provided for in Section 2.02 or 6.13 executed by or on behalf of the
Trustee by the manual signature of one of its authorized officers or by the Authenticating Agent.
Such certificate upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder.



     Notwithstanding the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall deliver such Security to
the Trustee for cancellation as provided in Section 3.10, for all purposes of this Indenture such
Security shall be deemed never to have been authenticated and delivered hereunder and shall never
be entitled to the benefits of this Indenture.



     Section 3.04. Execution of Spanish Deed of Issuance and Form of Regulations. The Trustee,
who shall initially serve as Commissioner of the Syndicate for each series of Securities issued
hereunder, shall sign the Spanish deed of issuance (escritura de emisión) related to each such
series of Securities. Each such Spanish deed of issuance (escritura de emisión) shall be filed
with the Mercantile Registry of Vizcaya and shall include the Regulations in respect of such
Syndicate. An unofficial translation of the form of Regulations for the Syndicate of Holders of Securities of each series is set forth in Annex A hereto.



     Section 3.05. Temporary Securities. Pending the preparation of definitive Securities, the
Company may execute and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 3.03, temporary Securities in lieu
thereof which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities in lieu of which
they are issued, in registered form. Such temporary Securities may be in global form.



     Except in the case of temporary Global Securities, which shall be exchanged in accordance with
the provisions thereof, if temporary Securities are issued, the Company shall cause definitive
Securities to be prepared without unreasonable delay. After the preparation of definitive
Securities of the same series and containing terms and provisions that are identical to those of
any temporary Securities, such temporary Securities shall be exchangeable for such definitive
Securities upon surrender of such temporary Securities at an Office or Agency for such Securities,
without charge to any Holder thereof. Upon surrender for cancellation of any one or more temporary
Securities, the Company



31









 




shall execute, the Guarantor shall endorse the Guarantee on, and the
Trustee shall authenticate and deliver in exchange therefor a like principal amount of definitive
Securities of authorized denominations of the same series and containing identical terms and
provisions. Unless otherwise provided in or pursuant to this Indenture with respect to a temporary
Global Security, until so exchanged the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of such series.




     Section 3.06. Registration, Transfer and Exchange. (a) The Company shall cause to be kept a
register (each such register being herein sometimes referred to as the “Security Register”) at an
Office or Agency for such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall
provide for the registration of the Securities of such series and of transfers of the
Securities of such series. Such Office or Agency shall be the “Security Registrar” for that series
of Securities. In the event that the Trustee shall not be the Security Registrar, it shall have
the right to examine the Security Register at all reasonable times. The Trustee is hereby
initially appointed as Security Registrar for each series of Securities. In the event that the
Trustee shall cease to be Security Registrar with respect to a series of Securities, it shall have
the right to examine the Security Register for such series at all reasonable times. Unless
otherwise provided with respect to a particular series of Securities, there shall be only one
Security Register for each series of Securities.



     (b) Upon surrender for registration of transfer of any Security of any series at any Office or
Agency for such series, the Company shall execute, the Guarantor shall endorse the Guarantee on,
and the Trustee shall authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of the same series denominated as authorized in or pursuant
to this Indenture, of a like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions.



     (c) At the option of the Holder, Securities of any series may be exchanged for other
Securities of the same series containing identical terms and provisions, in any authorized
denominations, and of a like aggregate principal amount, upon surrender of the Securities to be
exchanged at any Office or Agency for such series. Whenever any Securities are so surrendered for
exchange, the Company shall execute, the Guarantor shall endorse the Guarantee on, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to
receive.



     (d) Each Global Security authenticated under this Indenture shall be registered in the name of
the Depository designated for such Global Security or a nominee thereof and delivered to such
Depository or a nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture. Notwithstanding any other
provision



32









 







of this Section, unless and until it is exchanged in whole or in part for definitive
registered securities, a Global Security may not be transferred except as a whole by the Depository
to a nominee of such Depository or by a nominee of such Depository to such Depository or by such
Depository. Except as otherwise provided in or pursuant to this Indenture, any Global Security
shall be exchangeable for definitive Securities only if (i) the Depository is at any time
unwilling, unable or ineligible to continue as Depository or has ceased to be a clearing agency
registered under the Exchange Act and a successor depository is not appointed by the Company within
60 days of the date the Company is so informed in writing, (ii) the Company executes and delivers
to the Trustee a Company Order to the effect that such Global Security shall be so exchangeable,
(iii) an Event of Default has occurred and is continuing with respect to the Securities, or (iv)
there shall exist such circumstances, if any, in addition to or in lieu of the foregoing as have
been specified for this purpose as contemplated by
Section 3.01. If the beneficial owners of interests in a Global Security are entitled to
exchange such interests for definitive Securities, then without unnecessary delay but in any event
not later than the earliest date on which such interests may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in such form and denominations as are required by or
pursuant to this Indenture, and of the same series, containing identical terms and in aggregate
principal amount equal to the principal amount of such Global Security, executed by the Company and
with the Guarantee endorsed thereon by the Guarantor. On or after the earliest date on which such
interests may be so exchanged, such Global Security shall be surrendered from time to time by the
U.S. Depository or such other Depository as shall be specified in the Company Order with respect
thereto, and in accordance with instructions given to the Trustee and the U.S. Depository or such
other Depository, as the case may be (which instructions shall be in writing but need not be
contained in or accompanied by an Officers’ Certificate or be accompanied by an Opinion of
Counsel), as shall be specified in the Company Order with respect thereto to the Trustee, as the
Company’s agent for such purpose, to be exchanged, in whole or in part, for definitive Securities
as described above without charge. The Trustee shall authenticate and make available for delivery,
in exchange for each portion of such surrendered Global Security, a like aggregate principal amount
of definitive Securities of the same series of authorized denominations and of like tenor as the
portion of such Global Security to be exchanged, as shall be specified by the beneficial owner
thereof; provided, however, that no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities of the same series to be redeemed
and ending on the relevant Redemption Date. Promptly following any such exchange in part, such
Global Security shall be returned by the Trustee to such Depository or the U.S. Depository, as the
case may be, or such other Depository or U.S. Depository referred to above in accordance with the
instructions of the Company referred to above. If a Security is issued in exchange for any portion
of a Global Security after the close of business at the Office or



33









 







Agency for such Security where
such exchange occurs on or after (i) any Regular Record Date for such Security and before the
opening of business at such Office or Agency on the next Interest Payment Date, or (ii) any Special
Record Date for such Security and before the opening of business at such Office or Agency on the
related proposed date for payment of interest or Defaulted Interest, as the case may be, interest
shall not be payable on such Interest Payment Date or proposed date for payment, as the case may
be, in respect of such Security, but shall be payable on such Interest Payment Date or proposed
date for payment, as the case may be, only to the Person to whom interest in respect of such
portion of such Global Security shall be payable in accordance with the provisions of this
Indenture.



     (e) All Securities issued upon any registration of transfer or exchange of Securities shall be
the valid obligations of the Company and the Guarantor evidencing the same debt and entitling the
Holders thereof to the same benefits
under this Indenture as the Securities surrendered upon such registration of transfer or
exchange.



     (f) Every Security presented or surrendered for registration of transfer or for exchange or
redemption shall (if so required by the Company or the Security Registrar for such Security) be
duly endorsed, or be accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar for such Security duly executed by the Holder thereof or his
attorney duly authorized in writing.



     (g) No service charge shall be made for any registration of transfer or exchange, or
redemption of Securities, but the Company may require payment of a sum sufficient to cover any tax
or other governmental charge and any other expenses (including the fees and expenses of the
Trustee) that may be imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.05, 9.05 or 11.07 not involving any
transfer.



     (h) Except as otherwise provided in or pursuant to this Indenture, the Company shall not be
required (i) to issue, register the transfer of or exchange any Securities during a period
beginning at the opening of business 15 days before the day of the selection for redemption of
Securities of like tenor and the same series under Section 11.03 and ending at the close of
business on the day of such selection, or (ii) to register the transfer of or exchange any Security
so selected for redemption in whole or in part, except in the case of any Security to be redeemed
in part, the portion thereof not to be redeemed or (iii) to issue, register the transfer of or
exchange any Security which, in accordance with its terms, has been surrendered for repayment at
the option of the Holder, except the portion, if any, of such Security not to be so repaid.



34









 





     Section 3.07. Mutilated, Destroyed, Lost and Stolen Securities. (a) If any mutilated
Security is surrendered to the Trustee, subject to the provisions of this Section 3.07, the Company
shall execute, the Guarantor shall endorse the Guarantee on, and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series containing identical terms and of
like principal amount and bearing a number not contemporaneously outstanding, appertaining to the
surrendered Security.



     (b) If there be delivered to the Company and to the Trustee (i) evidence to their satisfaction
of the destruction, loss or theft of any Security, and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been acquired by a protected
purchaser, the Company shall execute, the Guarantor shall endorse the Guarantee on, and, upon the
Company’s request the Trustee shall authenticate and deliver, in exchange for or in lieu of any
such mutilated, destroyed, lost or stolen Security, a new Security of the same series containing
identical terms and of like principal amount and bearing a number not contemporaneously
outstanding.



     (c) Notwithstanding the foregoing provisions of this Section 3.07, in case any mutilated,
destroyed, lost or stolen Security has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security, pay such Security.



     (d) Upon the issuance of any new Security under this Section, the Company may require the
payment of a sum sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto and any other expenses (including the fees and expenses of the Trustee) connected
therewith.



     (e) Every new Security, issued pursuant to this Section in lieu of any destroyed, lost or
stolen Security, shall constitute a separate obligation of the Company, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with any and all other
Securities of such series, if any, duly issued hereunder.



     (f) The provisions of this Section, as amended or supplemented pursuant to this Indenture with
respect to particular Securities or generally, shall be exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities.



     Section 3.08. Payment of Interest and Certain Additional Amounts; Rights to Interest and
Certain Additional Amounts Preserved. (a) Unless otherwise provided in or pursuant to this
Indenture, any interest on and any Additional



35









 







Amounts with respect to any Security which shall be
payable, and are punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name such Security (or one or more Predecessor Securities) is registered as
of the close of business on the Regular Record Date for such interest.



     The
Company shall, before 10:00 a.m. (New York time) on each due date of the principal or (and
premium, if any) or interest or any other amounts due on any Securities, deposit with a Paying
Agent a sum in immediately available funds sufficient to pay the principal (and premium, if any) or
interest or any other amounts due or so becoming due, such sum to be held in trust by the Paying Agent
for the benefit of the Persons entitled to such principal, premium or interest or any other amounts
due and (unless such Paying Agent is the Trustee) the Company will promptly notify the Trustee and
the Paying Agent of its action or failure so to act. Subject to actual receipt of such funds as
provided by this Section by the designated Paying Agent, such Paying Agent shall make payments on
the Securities in accordance with the provisions of this Indenture.



     (b) Unless otherwise provided in or pursuant to this Indenture, any interest on and any
Additional Amounts with respect to any Security which shall be payable, but shall not be punctually
paid or duly provided for, on any Interest Payment Date for such Security (herein called “Defaulted
Interest”) shall
forthwith cease to be payable to the Holder thereof on the relevant Regular Record Date by
virtue of having been such Holder; and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (i) or (ii) below:




     (i) The Company may elect to make payment of any Defaulted Interest to the Person in
whose name such Security (or a Predecessor Security thereof) shall be registered at the
close of business on a Special Record Date for the payment of such Defaulted Interest,
which shall be fixed in the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on such Security and the
date of the proposed payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be paid in respect of
such Defaulted Interest or shall make arrangements satisfactory to the Trustee for such
deposit on or prior to the date of the proposed payment, such money when so deposited to
be held in trust for the benefit of the Person entitled to such Defaulted Interest as in
this Clause provided. Thereupon, the Trustee shall fix a Special Record Date for the
payment of such Defaulted Interest which shall be not more than 15 days and not less than
ten days prior to the date of the proposed payment and not less than ten days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the



36









 







proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first class postage prepaid, to the Holder of
such Security (or a Predecessor Security thereof) at his address as it appears in the
Security Register not less than ten days prior to such Special Record Date. The Trustee
shall, at the instruction of the Company, in the name and at the expense of the Company,
cause a similar notice to be published at least once in an Authorized Newspaper of general
circulation in the Borough of Manhattan, The City of New York, but such publication shall
not be a condition precedent to the establishment of such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall be paid to the Person in
whose name such Security (or a Predecessor Security thereof) shall be registered at the
close of business on such Special Record Date and shall no longer be payable pursuant to
the following Clause (ii).




     (ii) The Company may make payment of any Defaulted Interest in any other lawful
manner not inconsistent with the requirements of any securities exchange on which such
Security may be listed, and upon such notice as may be required by such exchange, if,
after notice given by the Company to the Trustee of the proposed payment pursuant to this
Clause, such payment shall be deemed practicable by the Trustee.



     (c) Unless otherwise provided in the form of Securities of any particular series pursuant to
the provisions of this Indenture, at the option of the Company, interest on Securities that bear
interest may be paid by mailing a check to the address of the Person entitled thereto as such
address shall appear in the Security Register or by transfer to an account maintained by the payee
with a bank located in the United States.



     (d) Subject to the foregoing provisions of this Section and Section 3.06, each Security
delivered under this Indenture upon registration of transfer of or in exchange for or in lieu of
any other Security shall carry the rights to interest accrued and unpaid, and to accrue, which were
carried by such other Security.



     Section 3.09. Persons Deemed Owners. (a) Prior to due presentment of a Security for
registration of transfer, the Company, the Trustee and any agent of the Company or the Trustee may
treat the Person in whose name such Security is registered in the Security Register as the owner of
such Security for the purpose of receiving payment of principal of, any premium and (subject to
Section 3.08) interest on and any Additional Amounts with respect to such Security and for all
other purposes whatsoever, whether or not any payment with respect to such Security shall be
overdue, and neither the Company nor the Trustee or any agent of the Company or the Trustee shall
be affected by notice to the contrary.



37









 





     (b) No holder of any beneficial interest in any Global Security held on its behalf by a
Depository shall have any rights under this Indenture with respect to such Global Security, and
such Depository may be treated by the Company, the Trustee, and any agent of the Company or the
Trustee as the owner of such Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall impair, as between the Depository and such holders of beneficial
interests, the operation of customary practices governing the exercise of the rights of the
Depository as Holder of any Security. None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of a Global Security or for
maintaining, supervising or reviewing any records relating to such beneficial ownership interests.



     Section 3.10. Cancellation. All Securities surrendered for payment, redemption, registration
of transfer or exchange or for credit against any sinking fund payment shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee, and any such Securities, as well as
Securities surrendered directly to the Trustee for any such purpose, shall be cancelled promptly by
the Trustee. The Company or the Guarantor may at any time deliver to the Trustee for cancellation
any Securities previously authenticated and delivered hereunder which the Company or the Guarantor
may have acquired in any manner whatsoever, and may deliver to the Trustee (or to any other Person
for delivery to the Trustee) for cancellation any Securities previously authenticated hereunder
that the Company has not issued and sold, and all Securities so delivered shall be cancelled
promptly by the Trustee. No Securities shall be authenticated in lieu of
or in exchange for any Securities cancelled as provided in this Section, except as expressly
permitted by or pursuant to this Indenture. All cancelled Securities held by the Trustee shall be
cancelled by the Trustee in accordance with its customary practice, unless by a Company Order the
Company directs their return to it.



     Section 3.11. Computation of Interest. Except as otherwise provided in or pursuant to this
Indenture, interest on the Securities shall be computed on the basis of a 360-day year of twelve
30-day months.



ARTICLE 4

Satisfaction and Discharge of Indenture




     Section 4.01. Satisfaction and Discharge. (a) Upon the direction of the Company by a Company
Order, this Indenture shall cease to be of further effect with respect to any series of Securities
specified in such Company Order (except as to any surviving rights of registration of transfer or
exchange or conversion of Securities of such series herein expressly provided for and any right to
receive Additional Amounts), and the Trustee, on receipt of a Company Order, at the



38









 







expense of the
Company, shall execute proper instruments acknowledging satisfaction and discharge of this
Indenture as to such series, when




     (i) either




     (A) all Securities of such series theretofore authenticated and delivered
(other than (y) Securities of such series which have been destroyed, lost or
stolen and which have been replaced or paid as provided in Section 3.07 and (z)
Securities of such series for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 10.03) have
been delivered to the Trustee for cancellation; or




     (B) all Securities of such series and, in the case of (1) or (2) below, not
theretofore delivered to the Trustee for cancellation




     (1) have become due and payable, or




     (2) will become due and payable at their Stated Maturity within
one year, or




     (3) if redeemable at the option of the Company, are to be called
for redemption within one year under arrangements satisfactory to the
Trustee for the
giving of notice of redemption by the Trustee in the name, and at
the expense, of the Company,


and the Company, in the case of (1), (2) or (3) above, has deposited or caused to be deposited with
the Trustee as trust funds in trust for such purpose, money in an amount sufficient to pay and
discharge the entire indebtedness on such Securities not theretofore delivered to the Trustee for
cancellation, including the principal of, any premium and interest on, and any Additional Amounts
with respect to such Securities, to the date of such deposit (in the case of Securities which have
become due and payable) or to the Maturity thereof, as the case may be;





     (ii) the Company or the Guarantor has paid or caused to be paid all other sums
payable hereunder by the Company with respect to the Outstanding Securities of such
series; and




     (iii) the Company has delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions



39









 







precedent herein provided for
relating to the satisfaction and discharge of this Indenture as to such series have been
complied with.



     (b) In the event there are Securities of two or more series hereunder, the Trustee shall be
required to execute an instrument acknowledging satisfaction and discharge of this Indenture only
if requested to do so with respect to Securities of such series as to which it is Trustee and if
the other conditions thereto are met.



     (c) Notwithstanding the satisfaction and discharge of this Indenture with respect to any
series of Securities, the obligations of the Company to the Trustee under Sections 6.06 and 6.07
and, if money shall have been deposited with the Trustee pursuant to subclause (B) of clause (i) of
this Section, the obligations of the Trustee under Sections 3.06, 3.07, 4.03 and the last paragraph
of Section 10.03 shall survive.



     Section 4.02. Defeasance and Covenant Defeasance. (a) If, pursuant to Section 3.01,
provision is made for either or both of (i) defeasance of the Securities of or within a series
under subsection (b) of this Section 4.02 or (ii) covenant defeasance of the Securities of or
within a series under subsection (c) of this Section 4.02, then such provisions, together with the
other provisions of this Section 4.02 (with such modifications thereto as may be specified pursuant
to Section 3.01 with respect to any Securities), shall be applicable to such Securities, and the
Company or the Guarantor may at its option by Company Order, at any time, with respect to such
Securities, and the Guarantees thereof, elect to have Section 4.02(b) (if applicable) or Section
4.02(c) (if applicable) be applied to such Outstanding Securities upon compliance with the
conditions set forth below in this Section 4.02.



     (b) Upon the Company’s or the Guarantor’s exercise of the above option applicable to this
Section 4.02(b) with respect to any Securities of or within a series and the Guarantees thereof, the Company shall be deemed to have been
discharged from its obligations with respect to such Outstanding Securities and the Guarantor shall
be deemed to have been discharged from its obligations with respect to the related Guarantees on
the date the conditions set forth in subsection (d) of this Section 4.02 are satisfied
(hereinafter, “defeasance”). For this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such Outstanding
Securities and the Guarantor shall be deemed to have satisfied all its obligations under this
Indenture and with respect to the Guarantees relating to such Securities, and such Securities shall
thereafter be deemed to be “Outstanding” only for the purposes of subsection (e) of this Section
4.02 and the other Sections of this Indenture referred to in clauses (i) and (ii) below, and each
of the Company and the Guarantor shall be deemed to have satisfied all of its other obligations
under such Securities, the Guarantees thereof and this Indenture insofar as such Securities and the
Guarantees thereof are concerned (and the Trustee, at the



40









 







expense of the Company and the Guarantor,
shall execute proper instruments acknowledging the same), except for the following which shall
survive until otherwise terminated or discharged hereunder: (i) the rights of Holders of such
Outstanding Securities to receive, solely from the trust fund described in subsection (d) of this
Section 4.02 and as more fully set forth in such Section, payments in respect of the principal of
(and premium, if any) and interest, if any, on such Securities when such payments are due, (ii) the
Company’s and the Guarantor’s obligations with respect to such Securities under Sections 3.06,
3.07, 10.02 and 10.03 and with respect to the payment of Additional Amounts, if any, on such
Securities as contemplated by Section 10.04, (iii) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (iv) this Section 4.02. The Company or the Guarantor may
exercise its option under this Section 4.02(b) notwithstanding the prior exercise of its option
under subsection (c) of this Section 4.02 with respect to such Securities.



     (c) Upon the Company’s or the Guarantor’s exercise of the above option applicable to this
Section 4.02(c) with respect to any Securities of or within a series, the Company and the Guarantor
shall be released from, if specified pursuant to Section 3.01, their obligations under any other
covenant, with respect to such Outstanding Securities and the Guarantees thereof on and after the
date the conditions set forth in subsection (d) of this Section 4.02 are satisfied (hereinafter,
"covenant defeasance”), and such Securities shall thereafter be deemed to be not “Outstanding” for
the purposes of any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with such other covenant, but shall continue to be
deemed “Outstanding” for all other purposes hereunder. For this purpose, such covenant defeasance
means that, with respect to such Outstanding Securities, the Company and the Guarantor may omit to
comply with and shall have no liability in respect of any term, condition or limitation set forth
in any such Section or such other covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such Section or such other covenant or by reason of reference in
any such Section or such other covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a default or an Event of Default, as the case may be,
but, except as specified above, the remainder of this Indenture and such Securities and the
Guarantee thereof shall be unaffected thereby.



     (d) The following shall be the conditions to application of subsection (b) or (c) of this
Section 4.02 to any Outstanding Securities of or within a series:




     (i) The Company or the Guarantor shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of Section 6.08
who shall agree to comply with the provisions of this Section 4.02 applicable to it) as
trust funds in trust for the purpose of making the following payments, specifically
pledged as



41









 







security for, and dedicated solely to, the benefit of the Holders of such
Securities, (A) an amount in Dollars or in such Foreign Currency in which such Securities
are then specified as payable at Stated Maturity, or (B) U.S. Government Obligations
applicable to such Securities (determined on the basis of the Currency in which such
Securities are then specified as payable at Stated Maturity) which through the scheduled
payment of principal and interest in respect thereof in accordance with their terms will
provide, not later than one day before the due date of any payment of principal of (and
premium, if any) and interest, if any, on such Securities, money in an amount, or (C) a
combination thereof, in any case, in an amount, sufficient, without consideration of any
reinvestment of such principal and interest, in the opinion of a nationally recognized
firm of Independent Public Accountants expressed in a written certification thereof
delivered to the Trustee, to pay and discharge, and which shall be applied by the Trustee
(or other qualifying trustee) to pay and discharge, (y) the principal of (and premium, if
any) and interest, if any, on such outstanding Securities on the Stated Maturity of such
principal or installment of principal or interest and (z) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding Securities on the day on
which such payments are due and payable in accordance with the terms of this Indenture and
of such Securities.




     (ii) Such defeasance or covenant defeasance shall not result in a breach or violation
of, or constitute a default under, this Indenture or any other material agreement or
instrument to which the Company or the Guarantor is a party or by which it is bound.




     (iii) No Event of Default or event which with notice or lapse of time or both would
become an Event of Default with respect to such Securities shall have occurred and be
continuing on the date of such deposit and, with respect to defeasance only, at any time
during the period ending on the 91st day after the date of such deposit (it being
understood that this condition shall not be deemed satisfied until the expiration of such
period).




     (iv) In the case of an election under subsection (b) of this Section 4.02, the
Company or the Guarantor shall have delivered to the Trustee an opinion of counsel of
internationally recognized standing stating that (A) the Company has received from the
Internal Revenue Service a letter ruling, or there has been published by the Internal
Revenue Service a Revenue Ruling, or (B) since the date of execution of this Indenture,
there has been a change in the applicable U.S. federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the Holders of such
Outstanding Securities will not recognize income, gain or loss for U.S. federal income tax
purposes as a



42









 







result of such defeasance and will be subject to U.S. federal income tax on
the same amounts, in the same manner and at the same times as would have been the case if
such defeasance had not occurred.




     (v) In the case of an election under subsection (c) of this Section 4.02, the Company
or the Guarantor shall have delivered to the Trustee an opinion of counsel of recognized
standing to the effect that the Holders of such Outstanding Securities will not recognize
income, gain or loss for U.S. federal income tax purposes as a result of such covenant
defeasance and will be subject to U.S. federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if such covenant defeasance had
not occurred.




     (vi) The Company or the Guarantor shall have delivered to the Trustee an Officers’
Certificate and an Opinion of Counsel, each stating that all conditions precedent to the
defeasance or covenant defeasance under subsection (b) or (c) of this Section 4.02 (as the
case may be) have been complied with.




     (vii) Such defeasance or covenant defeasance shall not cause the Trustee to have a
conflicting interest within the meaning of the Trust Indenture Act (assuming all
Securities are in default within the meaning of such Act).




     (viii) Such defeasance or covenant defeasance shall not result in the trust arising
from such deposit constituting an investment company within the meaning of the Investment
Company Act of 1940, as amended and rules and regulations adopted by
the Commission thereunder, unless such trust shall be registered
under such Act or
exempt from registration thereunder.




     (ix) Notwithstanding any other provisions of this Section 4.02(d), such defeasance or
covenant defeasance shall be effected in compliance with any additional or substitute
terms, conditions or
limitations which may be imposed on the Company in connection therewith pursuant to
Section 3.01.



     (e) Subject to the provisions of the last paragraph of Section 10.03, all money and U.S.
Government Obligations (or other property as may be provided pursuant to Section 3.01) (including
the proceeds thereof) deposited with the Trustee (or other qualifying trustee, collectively for
purposes of this Section 4.02(e), the “Trustee”) pursuant to subsection (d) of Section 4.02 in
respect of any Outstanding Securities of any series shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the



43









 







Holders of such Securities of all sums due and to become due
thereon in respect of principal (and premium, if any) and interest and Additional Amounts, if any,
but such money need not be segregated from other funds except to the extent required by law.



     (f) Unless otherwise specified with respect to any Security pursuant to Section 3.01, if,
after a deposit referred to in Section 4.02(d)(i) has been made, (i) the Holder of a Security in
respect of which such deposit was made is entitled to, and does, elect pursuant to Section 3.01 or
the terms of such Security to receive payment in a Currency other than that in which the deposit
pursuant to Section 4.02(d)(i) has been made in respect of such Security, or (ii) a Conversion
Event occurs in respect of the Foreign Currency in which the deposit pursuant to Section 4.02(d)(i)
has been made, the indebtedness represented by such Security and the Guarantee thereof shall be
deemed to have been, and will be, fully discharged and satisfied through the payment of the
principal of (and premium, if any), and interest, if any, on such Security as the same becomes due
out of the proceeds yielded by converting (from time to time as specified below in the case of any
such election) the amount or other property deposited in respect of such Security into the Currency
in which such Security becomes payable as a result of such election or Conversion Event based on
the applicable market exchange rate for such Currency in effect on the second Business Day prior to
each payment date, except, with respect to a Conversion Event, for such Foreign Currency in effect
(as nearly as feasible) at the time of the Conversion Event.



     (g) Anything in this Section 4.02 to the contrary notwithstanding, the Trustee shall deliver
or pay to the Company or the Guarantor from time to time upon Company Request any money or U.S.
Government Obligations (or other property and any proceeds therefrom) held by it as provided in
subsection (d) of this Section 4.02 which, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be deposited to effect
a defeasance or covenant defeasance, as applicable, in accordance with this Section 4.02.



     Section 4.03. Application of Trust Money. Subject to the provisions of the last paragraph of
Section 10.03, all money and U.S. Government Obligations deposited with the Trustee pursuant to
Section 4.01 or 4.02 shall be held in trust and applied by it, in accordance with the provisions of
the Securities and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent), to the Persons entitled thereto, of the
principal, premium, interest and Additional Amounts for whose payment such money has or U.S.
Government Obligations have been deposited with or received by the Trustee; but such money and U.S.
Government Obligations need not be segregated from other funds except to the extent required by
law.




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     The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section 4.02 or the
principal and interest received in respect thereof other than any such tax, fee or other charge
which by law is for the account of the Holders of Outstanding Securities.



     Anything in this Article to the contrary notwithstanding, the Trustee shall deliver or pay to
the Company from time to time upon Order of the Company any money or U.S. Government Obligations
held by it as provided in Section 3.02 with respect to any Securities which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a written certification
thereof delivered to the Trustee, are in excess of the amount thereof which would then be required
to be deposited to effect the defeasance or covenant defeasance, as the case may be, with respect
to such Securities.



     Section 4.04. Prescription. All claims made against the Company or the Guarantor for payment
of principal of, or interest (including Additional Amounts) on, or in respect of, the Securities
shall become void unless made within ten years (in the case of principal) and five years (in the
case of interest (including Additional Amounts)) from the later of (i) the date on which such payment first became due and (ii) if
the full amount payable has not been received by the applicable Trustee in New York City on or
prior to such due date, the date on which the full amount is so received.



     Section 4.05. Reinstatement. If the Trustee or any Paying Agent is unable to apply any money
or U.S. Government Obligations in accordance with this Article 4 by reason of any legal proceeding
or by reason of any order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, the obligations of the Company and the Guarantor under
this Indenture, the Securities and the Guarantees shall be revived and reinstated as though no
deposit had occurred pursuant to this Article 4 until such time as the Trustee or such Paying Agent
is permitted to apply all such money or U.S. Government Obligations in accordance with this Article
4; provided, however, that, if the Company or the Guarantor has made any payment of principal of or
interest on any Securities because of the reinstatement of its obligations, the Company and the
Guarantor shall be subrogated to the rights of the Holders of such Securities to receive such
payment from the money or U.S. Government Obligations held by the Trustee or such Paying Agent.



ARTICLE 5

Remedies




     Section 5.01.
Events of Default. “Event of Default”, wherever used herein with respect to
Securities of any series, means any one of the following events (whatever the reason for such Event
of Default and whether it shall be voluntary



45









 







or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any administrative or
governmental
body), unless such event is specifically deleted or modified in or pursuant to the
supplemental indenture or Board Resolution creating a particular series of Securities or in the
Officers’ Certificate for such series:



     (a) default by the Company, or the Guarantor pursuant to the Guarantee in the payment of the
principal of any Security of such series when due and payable at its Maturity and such default is
not remedied within 14 days; or



     (b) default by the Company, or the Guarantor pursuant to the Guarantee in the payment of any
interest on or any Additional Amounts payable in respect of any Security of such series when such
interest becomes or such Additional Amounts become due and payable, and continuance of such default
for a period of 21 days; or



     (c) default by the Company, or the Guarantor pursuant to the Guarantee in the payment of any
premium or deposit of any sinking fund payment, when and as due by the terms of a Security of such
series and such default is not remedied in 30 days; or



     (d) default in the performance, or breach, of any covenant or warranty of (i) the Company in
this Indenture or the Securities or (ii) the Guarantor in this Indenture or the Guarantee (other
than a covenant or warranty default in the performance or breach of which is elsewhere in this
Section specifically dealt with or which has been expressly included in this Indenture solely for
the benefit of a series of Securities other than such series), and continuance of such breach or
default for a period of 30 days after there has been given, by registered or certified mail, to the
Company and the Guarantor by the Trustee or to the Company, the Guarantor and the Trustee by any
Holder or the Holders of any Outstanding Securities of such series a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice is a “Notice of
Default” hereunder; or



     (e) any Capital Markets Indebtedness of either the Company or the Guarantor individually where
the principal amount of such Capital Markets Indebtedness is in any case in excess of
U.S.$50,000,000 (or its equivalent in another currency or other currencies) or any guarantee by the
Company or the Guarantor of any Capital Markets Indebtedness of any other person is not (in the
case of Capital Markets Indebtedness) paid when due (after whichever is the longer of 30 days after
the due date and any applicable grace period therefor) or becomes prematurely due and payable
following a default on the part of the Company or the Guarantor or otherwise in respect of such
Capital Markets Indebtedness, or (in the case of a guarantee) is not honored when due (after



46









 







whichever is the longer of 30 days after the due date and any applicable grace period therefor);



     (f) an order of any competent court or administrative agency is made or any resolution is
passed by the Company for the winding-up or dissolution of the
Company (other than for the purpose of an amalgamation, merger or reconstruction approved by
Act of the Holders relating to such series); or



     (g) an order is made by any competent court commencing insolvency proceedings (procedimientos
concursales) against the Guarantor or an order is made or a resolution is passed for the
dissolution or winding up of the Guarantor (except (i) in any such case for the purpose of a
reconstruction or a merger or amalgamation which has been approved by Act of the Holders relating
to such series or (ii) where the entity resulting from any such reconstruction or merger or
amalgamation is a Financial Institution (entidad de crédito according to article 1-2 of Real
Decreto Legislativo 1298/1986 dated 28 June 1986, as amended and restated) and will have a rating
for long-term senior debt assigned by Standard & Poor’s Rating Services, Moody’s Investors Services
or Fitch Ratings Ltd equivalent to or higher than the rating for long-term senior debt of the
Guarantor immediately prior to such reconstruction or merger or amalgamation); or



     (h) the Company or the Guarantor is adjudicated or found bankrupt or insolvent, or any order
of any competent court or administrative agency is made for, or any resolution is passed by the
Company or the Guarantor to apply for, judicial composition proceedings with its creditors or for
the appointment of a receiver or trustee or other similar official in insolvency proceedings in
relation to the Company or the Guarantor or of a substantial part of the assets of either of them
(unless in the case of an order for a temporary appointment, such appointment is discharged within
30 days); or



     (i) the Company or the Guarantor stops payment of its debts generally; or



     (j) the Company (except for the purpose of an amalgamation, merger or reconstruction approved
by Act of the Holders relating to such series) or the Guarantor (except (i) for the purpose of an
amalgamation, merger or reconstruction approved by Act of the Holders relating to such series or
(ii) where the entity resulting from any such amalgamation, merger or reconstruction will have a
rating for long-term senior debt assigned by Standard & Poor’s Rating Services, Moody’s Investor
Services or Fitch Ratings Ltd equivalent to or higher than the rating for long-term senior debt of
the Guarantor immediately prior to such amalgamation, merger or reconstruction) ceases or threatens
to cease to carry on the whole or substantially the whole of its business; or



47









 





     (k) a holder of a security interest takes possession of the whole or any substantial part of
the assets or business of the Company or the Guarantor or an application is made for the
appointment of an administrative or other receiver, manager, administrator or similar official in
relation to the Company or the Guarantor or in relation to the whole or any substantial part of the
business or assets of the Company or the Guarantor, or a distress or execution is levied or
enforced upon or sued out against any substantial part of the business or assets of the Company or
the Guarantor and is not discharged within 30 days; or



     (l) the Guarantee with respect to Securities of such series ceases to be, or is claimed by the
Guarantor not to be, in full force and effect.



     For the purpose of Paragraphs (h), (j) and (k) a report by the external auditors from time to
time of the Company or the Guarantor, as the case may be, as to whether any part of the business or
assets of the Company or the Guarantor is “substantial” shall, in the absence of manifest error, be
conclusive.



     Section 5.02. Acceleration of Maturity; Rescission and Annulment. (a) If an Event of Default
with respect to Securities of any series at the time Outstanding occurs and is continuing, then the
Trustee, acting pursuant to an Act of the Holders of the Securities of the relevant series, with
respect to all Outstanding Securities of such series, or the Holder of any Outstanding Security of
the relevant series, with respect to such Security held by such Holder, may declare the principal,
or such lesser amount as may be provided for in the Securities of such series, of such Securities
or Security, as the case may be, to be due and payable immediately by giving written notice to the
Company, and upon receipt of any such declaration such principal or such lesser amount shall become
immediately due and payable.



     (b) At any time after such a declaration of acceleration with respect to Securities or
Security, as the case may be, of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter in this Article provided,
the Holders of not less than a majority in principal amount of the Outstanding Securities of such
series, may by Act, rescind and annul such declaration and its consequences if




     (i) the Company or the Guarantor has paid or deposited with the Trustee a sum of
money sufficient to pay




     (A) all overdue installments of any interest on and Additional Amounts with
respect to all Securities of such series,




     (B) the principal of and any premium on any Securities of such series which
have become due otherwise than by such declaration of acceleration and interest
thereon and any



48









 







Additional Amounts with respect thereto at the rate or rates
borne by or provided for in such Securities,




     (C) to the extent that payment of such interest or Additional Amounts is
lawful, interest upon overdue installments of any interest and Additional
Amounts at the rate or rates borne by or provided for in such Securities, and




     (D) all sums paid or advanced by the Trustee hereunder and the reasonable
compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel and all
other amounts due the Trustee under Section 6.07; and




     (ii) all Events of Default with respect to Securities of such series, other than the
non-payment of the principal of and any premium and interest on, and any Additional
Amounts with respect to Securities of such series which shall have become due solely by
such declaration of acceleration, shall have been cured or waived as provided in Section
5.13.



     (c) No such rescission shall affect any subsequent default or impair any right consequent
thereon.



     Section 5.03. Collection of Indebtedness and Suits for Enforcement by Trustee. (a) The
Company and the Guarantor covenant that if




     (i) default is made in the payment of any installment of interest on or any
Additional Amounts with respect to any Security when such interest or Additional Amounts
shall have become due and payable and such default continues for a period of 21 days, or




     (ii) default is made in the payment of the principal of or any premium on any
Security at its Maturity and such default is not remedied within 14 days,


the Company or the Guarantor shall, upon demand of the Trustee, pay to the Trustee, for the benefit
of the Holders of such Securities, the whole amount of money then due and payable with respect to
such Securities, with interest upon the overdue principal, any premium and, to the extent that
payment of such interest shall be legally enforceable, upon any overdue installments of interest
and Additional Amounts at the rate or rates borne by or provided for in such Securities, and, in
addition thereto, such further amount of money as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel and all other amounts due to the Trustee under Section 6.07.




49









 








     (b) If the Company or the Guarantor fails to pay the money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee, the Trustee, acting
upon an Act of the Holders of Securities of such series or in its own name and as trustee of an
express trust, may institute a judicial proceeding for the collection of the money so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce the same
against the Company, the Guarantor or any other obligor upon such Securities, and the Guarantee and
collect the monies adjudged or decreed to be payable in the manner provided by law out of the
property of the Company, the Guarantor or any other obligor upon such Securities and the Guarantee,
wherever situated.



     (c) If an Event of Default with respect to Securities of any series occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities of such series by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the specific enforcement of
any covenant or agreement in this Indenture or such Securities or the Guarantee or in aid of the
exercise of any power granted herein or therein, or to enforce any other proper remedy.



     Section 5.04. Trustee May File Proofs of Claim. (a) In case of the pendency of any
receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company, the Guarantor or any other
obligor upon the Securities or the property of the Company, the Guarantor or such other obligor or
their creditors, the Trustee (irrespective of whether the principal of the Securities shall then be
due and payable as therein expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company or the Guarantor for the payment of any overdue
principal, premium, interest or Additional Amounts) shall be entitled and empowered, by
intervention in such proceeding or otherwise,




     (i) to file and prove a claim for the whole amount, or such lesser amount as may be
provided for in the Securities of such series, of the principal and any premium, interest
and Additional Amounts owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents or counsel and of the Holders of Securities)
allowed in such judicial proceeding, and




     (ii) to collect and receive any monies or other property payable or deliverable on
any such claims and to distribute the same;



50









 







and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder of Securities to make such
payments to the Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders of Securities, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and
counsel and any other amounts due the Trustee under Section 6.07.



     (b) Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent
to or accept or adopt on behalf of any Holder of a Security any plan of reorganization,
arrangement, adjustment or composition affecting the Securities or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any Holder of a Security in
any such proceeding.



     Section 5.05. Trustee May Enforce Claims Without Possession of Securities. All rights of
action and claims under this Indenture or any of the Securities may be prosecuted and enforced by
the Trustee without the possession of any of the Securities or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery or judgment, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, shall be for the ratable benefit of each and every Holder of a Security in
respect of which such judgment has been recovered.



     Section 5.06. Application of Money Collected. Any money collected by the Trustee pursuant to
this Article shall be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal, or any premium, interest or
Additional Amounts, upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:



     FIRST: To the payment of all amounts due to the Trustee and any predecessor Trustee under
Section 6.07;



     SECOND: To the payment of the amounts then due and unpaid upon the Securities for principal
and any premium, interest and Additional Amounts in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority of any kind, according to
the aggregate amounts due and payable on such Securities for principal and any premium, interest
and Additional Amounts, respectively;



     THIRD: The balance, if any, to the Person or Persons entitled thereto.



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     Section 5.07. Limitations on Suits. No Holder of any Security of any series shall have any
right to institute any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder, unless




     (i) such Holder has previously given written notice to the Trustee of a continuing
Event of Default with respect to the Securities of such series;




     (ii) the Holders of not less than 25% in principal amount of the Outstanding
Securities of such series shall have made written request to the Trustee to institute
proceedings in respect of such Event of Default in its own name as Trustee hereunder and
such Holder or Holders have offered to the Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred in compliance with such request;




     (iii) the Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute any such proceeding; and




     (iv) no direction inconsistent with such written request has been given to the
Trustee during such 60-day period by the Holders of a majority in principal amount of the
Outstanding Securities of such series;


it being understood and intended that no one or more of such Holders shall have any right in any
manner whatever by virtue of, or by availing of, any provision of this Indenture or any Security to
affect, disturb or prejudice the rights of any other such Holders or Holders of Securities of any
other series, or to obtain or to seek to obtain priority or preference over any other Holders or to
enforce any right under this Indenture, except in the manner herein provided and for the equal and
ratable benefit of all such Holders.




     Section 5.08. Unconditional Right of Holders to Receive Principal and any Premium, Interest
and Additional Amounts. Notwithstanding any other provision in this Indenture and in any Security,
the Holder of any Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of, any premium and (subject to Section 3.08) interest on, and any
Additional Amounts with respect to, such Security on or after the respective Stated Maturity or
Maturities therefor specified in such Security (or, in the case of redemption, on or after the
Redemption Date or, in the case of repayment at the option of such Holder if provided in or
pursuant to this Indenture, on or after the date such repayment is due) and to institute suit for
the enforcement of any such payment, and such right shall not be impaired or affected without the
consent of such Holder, except that Holders of not less than 75% in principal amount of Outstanding
Securities of a series may consent by Act, on behalf of the Holders of



52









 







all Outstanding Securities
of such series, to the postponement of the Stated Maturity of any installment of interest for a
period not exceeding three years from the original Stated Maturity of such installment (which
original Stated Maturity shall have been fixed, for the avoidance of doubt, prior to any previous
postponements of such installment).



     Section 5.09. Restoration of Rights and Remedies. If the Trustee or any Holder of a Security
has instituted any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the Guarantor, the Trustee
and each such Holder shall, subject to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder, and thereafter all rights and remedies of the
Trustee and each such Holder shall continue as though no such proceeding had been instituted.



     Section 5.10. Rights and Remedies Cumulative. Except as otherwise provided with respect to
the replacement or payment of mutilated, destroyed, lost
or stolen Securities in the last paragraph of Section 3.07, no right or remedy herein
conferred upon or reserved to the Trustee or to each and every Holder of a Security is intended to
be exclusive of any other right or remedy, and every right and remedy, to the extent permitted by
law, shall be cumulative and in addition to every other right and remedy given hereunder or now or
hereafter existing at law or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any
other appropriate right or remedy.



     Section 5.11. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any
Holder of any Security to exercise any right or remedy accruing upon any Event of Default shall
impair any such right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law to the Trustee or to
any Holder of a Security may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by such Holder, as the case may be.



     Section 5.12. Control by Holders of Securities. The Holders of a majority in principal
amount of the Outstanding Securities of the relevant series, by Act, shall have the right to direct
the time, method and place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee with respect to the Securities of such
series, provided that




     (i) such direction shall not be in conflict with any rule of law or with this
Indenture or with the Securities of any series,



53









 






     (ii) the Trustee may take any other action deemed proper by the Trustee which is not
inconsistent with such direction, and




     (iii) such direction is not unduly prejudicial to the rights of the other Holders of
Securities of such series not joining in such action.



     Section 5.13. Waiver of Past Defaults. (a) Subject to Section 5.02(b)(i)(D), the Holders of
not less than a majority in principal amount of the Outstanding Securities of any series on behalf
of the Holders of all the Securities of such series may, by Act, waive any past default hereunder
with respect to such series and its consequences, except a default




     (i) in the payment of the principal of or any premium, or interest on, or any
Additional Amounts with respect to, any Security of such series, or




     (ii) in respect of a covenant or provision hereof which under Article 9 cannot be
modified or amended without the consent of the Holder of each Outstanding Security of such
series affected.



     (b) Upon any such waiver, such default shall cease to exist, and any Event of Default arising
therefrom shall be deemed to have been cured, for every purpose of this Indenture; but no such
waiver shall extend to any subsequent or other default or impair any right consequent thereon.



     Section 5.14. Waiver of Stay or Extension Laws. The Company and the Guarantor each covenants
that (to the extent that it may lawfully do so) it will not at any time insist upon, or plead, or
in any manner whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company and the Guarantor each expressly waives (to the
extent that it may lawfully do so) all benefit or advantage of any such law and covenant that it
will not hinder, delay or impede the execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no such law had been enacted.



     Section 5.15. Undertaking for Costs. In any suit for the enforcement of any right or remedy
under this Indenture, or in any suit against the Trustee for any action taken, suffered or omitted
by it as Trustee, a court may require any party litigant in such suit to file an undertaking to pay
the costs of such suit, and may assess reasonable costs against any such party litigant, in the
manner and to the extent provided in the Trust Indenture Act; provided that neither this Section
nor the Trust Indenture Act shall be deemed to authorize any court to require such an undertaking
or to make such an assessment in any suit instituted by the Company.



54









 





ARTICLE 6

The Trustee




     Section 6.01. Certain Duties and Responsibilities. The duties and responsibilities of the
Trustee shall be as specifically set forth in this Indenture and the Trust Indenture Act and no
implied covenants nor obligations shall be read into this Indenture against the Trustee, except as
otherwise required by the Trust Indenture Act. Whether or not herein or therein expressly so
provided, every provision of this Indenture relating to the conduct or affecting the liability of
or affording protection to the Trustee shall be subject to the provisions of this Section.



     Section 6.02. Certain Rights of Trustee. Except as set forth in this Article, no provision
of this Indenture shall be construed to relieve the Trustee from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct.



     Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:



     (a) the Trustee may rely and shall be protected in acting or refraining from acting upon any
resolution, certificate, statement, instrument, opinion,
report, notice, request, direction, consent, order, bond, debenture, note, or other paper or
document reasonably believed by it to be genuine and to have been signed or presented by the proper
party or parties;



     (b) any request or direction of the Company or the Guarantor mentioned herein shall be
sufficiently evidenced by a Company Request or a Company Order (in each case, other than delivery
of any Security, to the Trustee for authentication and delivery pursuant to Section 3.03 which
shall be sufficiently evidenced as provided therein) and any resolution of the Board of Directors
of the Company or the Guarantor may be sufficiently evidenced by a Board Resolution;



     (c) whenever in the administration of this Indenture the Trustee shall deem it desirable that
a matter be proved or established prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence shall be herein specifically prescribed) may, in the absence of bad
faith on its part, rely upon an Officers’ Certificate;



     (d) the Trustee may consult with counsel and the written advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;



     (e) the Trustee shall be under no obligation to exercise any of the rights or powers vested in
it by or pursuant to this Indenture at the request or direction of



55









 







any of the Holders of Securities
of any series pursuant to this Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;



     (f) the
Trustee shall not be bound to make any investigation or inquiry into
(i) the performance of the Company of any
of its covenants set forth in this Indenture and (ii) the facts or matters stated
in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to
examine, during business hours and upon reasonable notice, the books, records and premises of the
Company or the Guarantor, personally or by agent or attorney;



     (g) the Trustee shall not be charged with knowledge of the occurrence of any default or an Event of Default
(other than an Event of Default included in Section 5.01(a), Section 5.01(b) and Section 5.01(c) hereof), and such
knowledge shall not be imparted to the Trustee, unless a Responsible Officer of the Trustee has received written notice of such
default or Event of Default from the Company or any Holder of an
Outstanding Security of the relevant
series and such notice references the specific default or Event of
Default under the Securities of such series and this Indenture, and is given in the manner required by Section 1.05 hereof;



     (h) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys
and the Trustee shall not be responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder;



     (i) no provision of this Indenture shall require the Trustee to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its duties hereunder, or
the exercise of any of its rights or powers, if it shall have reasonable grounds for believing that
repayment of such funds or adequate indemnity against such risk or liability is not reasonably
assured to it;



     (j) the rights, privileges, protections, immunities and benefits given to the Trustee pursuant
to this Indenture, including, without limitation, the indemnification of the Trustee pursuant to
Section 6.07(a)(iii), are extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, and to each agent, custodian and other Person employed to act hereunder;



     (k) under no circumstances will the Trustee be liable to the Company for any consequential
loss (being loss of business, goodwill, opportunity or profit) even if advised of the possibility
of such loss or damage;



     (l) the Trustee may request that the Company or the Guarantors deliver an Officers’
Certificate setting forth the names of individuals and/or titles of



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officers authorized at such
time to take specified actions pursuant to this Indenture;



     (m) the permissive rights of the Trustee enumerated herein shall not be construed as duties;



     (n) the Trustee will not be liable if prevented or delayed in performing any of its obligations by
reason of any present or future law applicable to it, by any governmental or regulatory authority
or by any circumstance beyond its control;


     (o) in no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of, or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God; it being understood that the Trustee shall use reasonable best efforts which are consistent
with accepted practices in the banking industry to resume performance as soon as practicable under
the circumstances; and


     (p) following the occurrence of an Event of Default, the Trustee shall be entitled to require all
agents (including the Paying Agent) to act pursuant to its instruction.


     Section 6.03. Notice of Defaults. Within 90 days after the occurrence of any default
hereunder known to the Trustee with respect to the Securities of any series, the Trustee shall
transmit by mail to all Holders of Securities of such series entitled to receive reports pursuant
to Section 7.03(c), notice of such default hereunder, unless such default shall have been cured or
waived; provided, however, that except in the case of a default in the payment of the principal of
(or premium, if any), or interest, if any, on, or Additional Amounts with respect to, any Security
of such series, the Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee or a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determine that the withholding of such notice is in the best
interest of the Holders of Securities of such series. For the purpose of this Section, the term
"default” means any event which is, or after notice or lapse of time or both would become, an Event
of Default with respect to Securities of such series.



     Section 6.04. Not Responsible for Recitals or Issuance of Securities. The recitals contained
herein and in the Securities, except the Trustee’s certificate of authentication, shall be taken as
the statements of the Company and the Guarantor and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no representations as to
the validity or
sufficiency of this Indenture or of the Securities or the Guarantee, except that the Trustee
represents that it is duly authorized to execute and deliver this Indenture, authenticate the
Securities and perform its obligations hereunder and that the statements made by it in a Statement
of Eligibility and Qualification on Form T-1 supplied to the Company are true and accurate, subject
to the qualifications set forth therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of the Securities or the proceeds thereof.



     Section 6.05. May Hold Securities. The Trustee, any Authenticating Agent, any Paying Agent,
any Security Registrar or any other Person that may be an agent of the Trustee or the Company or
the Guarantor, in its individual or any other capacity, may become the owner or pledgee of
Securities and, subject to Sections 310(b) and 311 of the Trust Indenture Act, may otherwise deal
with the Company or the Guarantor with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Security Registrar or such other Person.



57









 





     Section 6.06. Money Held in Trust. Except as provided in Section 4.03 and Section 10.03,
money held by the Trustee in trust hereunder need not be segregated from other funds except to the
extent required by law and shall be held uninvested. The Trustee shall be under no liability for
interest on any money received by it hereunder.



     Section 6.07. Compensation and Reimbursement. (a) The Company and the Guarantor jointly and
severally agree:




     (i) to pay to the Trustee from time to time reasonable compensation for all services
rendered by the Trustee hereunder as agreed between the Company, the Guarantor and the
Trustee (which compensation shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);




     (ii) except as otherwise expressly provided herein, to reimburse the Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to the Trustee’s negligence or bad
faith; and




     (iii) to indemnify the Trustee for, and to hold it harmless against, any loss,
liability or expense incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of the trust or trusts hereunder,
including the costs and
expenses of defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder, except to the extent
that any such loss, liability or expense may be attributable to its negligence or bad
faith.



     (b) As security for the performance of the obligations of the Company and the Guarantor under
this Section, the Trustee shall have a lien prior to the Securities of any series upon all property
and funds held or collected by the Trustee as such, except funds held in trust for the payment of
principal of, and premium or interest on or any Additional Amounts with respect to Securities.



     (c) Any compensation or expense incurred by the Trustee after a default specified by Section
5.01 is intended to constitute an expense of administration under any then applicable bankruptcy or
insolvency law. “Trustee” for purposes of this Section 6.07 shall include any predecessor Trustee
but the negligence or bad faith of any Trustee shall not affect the rights of any other Trustee
under this



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Section 6.07. The provisions of this Section 6.07 shall survive the resignation or
removal of the Trustee and the satisfaction, discharge or termination of this Indenture.



     Section 6.08. Corporate Trustee Required; Eligibility. There shall at all times be a Trustee
hereunder that is a Corporation, organized and doing business under the laws of the United States
or of any state or territory or of the District of Columbia (or a corporation or other person
permitted to act as Trustee by the Commission), eligible under Sections 310(a)(1), 310(a)(5) and
310(b) of the Trust Indenture Act to act as trustee under an indenture qualified under the Trust
Indenture Act and that has a combined capital and surplus (computed in accordance with Section
310(a)(2) of the Trust Indenture Act) of at least $50,000,000 subject to supervision or examination
by U.S. federal or state authority. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.



     Section 6.09. Resignation and Removal; Appointment of Successor. (a) No resignation or
removal of the Trustee and no appointment of a successor Trustee pursuant to this Article shall
become effective until the acceptance of appointment by the successor Trustee pursuant to Section
6.10.



     (b) The Trustee may resign at any time with respect to the Securities of one or more series by
giving written notice thereof to the Company. If the instrument of acceptance by a successor
Trustee required by Section 6.10 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to such series.



     (c) The Trustee may be removed at any time with respect to the Securities of any series by Act
of the Holders of a majority in principal amount of Outstanding Securities of such series.



     (d) If at any time:




     (i) the Trustee shall fail to comply with the obligations imposed upon it under
Section 310(b) of the Trust Indenture Act with respect to Securities of any series after
written request therefor by the Company, the Guarantor or any Holder of a Security of such
series who has been a bona fide Holder of a Security of such series for at least six
months, or




     (ii) the Trustee shall cease to be eligible under Section 6.08 and shall fail to
resign after written request therefor by the Company, the Guarantor or any such Holder, or



59









 






     (iii) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,


then, in any such case, (A) the Company or the Guarantor, by or pursuant to a Company Order, may
remove the Trustee with respect to all Securities or the Securities of such series, or (B) subject
to Section 315(e) of the Trust Indenture Act, any Holder of a Security who has been a bona fide
Holder of a Security of such series for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the removal of the
Trustee with respect to all Securities of such series and the appointment of a successor Trustee or
Trustees. In the case of any such removal, the Trustee will thereupon cease to serve as the
Commissioner of the Syndicate established with respect to such series of Securities.




     (e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, with respect to the Securities of one or more
series, the Company or the Guarantor, by or pursuant to a Company Order, shall promptly appoint a
successor Trustee or Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the Securities of one
or more or all of such series and that at any time there shall be only one Trustee with respect to
the Securities of any particular series) and shall comply with the applicable requirements of
Section 6.10. If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the Outstanding Securities
of such series, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment in accordance with the applicable requirements of Section 6.10,
become the successor Trustee and Commissioner with respect to the Securities of such series and to
that extent supersede the successor Trustee appointed by the Company and the Guarantor. If no
successor Trustee with respect to the Securities of any series shall have been so appointed by the
Company, the Guarantor or the Holders of Securities and accepted appointment in the manner required
by Section 6.10, any Holder of a Security who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor Trustee with
respect to the Securities of such series.



     (f) The Company or the Guarantor shall give notice of each resignation and each removal of the
Trustee with respect to the Securities of any series and each appointment of a successor Trustee
with respect to the Securities of any



60









 







series by instructing such successor Trustee to mail written
notice of such event by first class mail, postage prepaid, to the Holders of Securities, if any, of
such series as their names and addresses appear in the Security Register. Each notice shall
include the name of the successor Trustee with respect to the Securities of such series and the
address of its Corporate Trust Office.



     Section 6.10. Acceptance of Appointment by Successor.



     (a) Upon the appointment hereunder of any successor Trustee with respect to all Securities,
such successor Trustee so appointed shall execute, acknowledge and deliver to the Company, the
Guarantor and the retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the rights, powers,
trusts and duties hereunder of the retiring Trustee but, on the request of the Company, the
Guarantor or such successor Trustee, such retiring Trustee, upon payment of its charges, shall
execute and deliver an instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and, subject to Section 10.03, shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring Trustee hereunder,
subject nevertheless to its claim, if any, provided for in Section 6.07.



     (b) Upon the appointment hereunder of any successor Trustee with respect to the Securities of
one or more (but not all) series, the Company, the Guarantor, the retiring Trustee and such
successor Trustee shall execute and deliver an indenture supplemental hereto wherein each successor
Trustee shall accept such appointment and which (i) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, such successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates, (ii) if the retiring
Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (iii) shall add to or change any of the provisions of
this Indenture as shall be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust, that each such Trustee
shall be trustee of a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee and that no Trustee shall be responsible for any
notice given to, or received by, or any act or failure to act on the part of any other Trustee
hereunder, and, upon the execution and delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee



61









 







shall become effective to the extent provided therein, such
retiring Trustee shall have no further responsibility for the exercise of rights and powers or for
the performance of the duties and obligations vested in the Trustee under this Indenture with
respect to the Securities of that or those series to which the appointment of such successor
Trustee relates other than as hereinafter expressly set forth, and such successor Trustee, without
any further act, deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company, the Guarantor or
such successor Trustee, such retiring Trustee, upon payment of its charges with respect to the
Securities of that or those series to which the appointment of such successor relates and subject
to Section 10.03 shall duly assign, transfer and deliver to such successor Trustee, to the extent
contemplated by such supplemental indenture, the property and money held by such retiring Trustee
hereunder with respect to the Securities of that or those series to which the appointment of such
successor Trustee relates, subject to its claim, if any, provided for in Section 6.07.



     (c) Upon request of any Person appointed hereunder as a successor Trustee, the Company and the
Guarantor shall execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred to in paragraph
(a) or (b) of this Section, as the case may be.



     (d) No Person shall accept its appointment hereunder as a successor Trustee with respect to
the Securities of a series unless at the time of such acceptance such successor Trustee shall be
qualified and eligible under this Article and, except if a Person other than the retiring Trustee
is the Commissioner of such Syndicate, agree to accept appointment as Commissioner of the Syndicate
of Holders of Securities of such series upon approval of such appointment by the Holders of Securities of such series in accordance with
the Regulations applicable to such Syndicate.



     Section 6.11. Merger, Conversion, Consolidation or Succession to Business. Any Corporation
into which the Trustee may be merged or converted or with which it may be consolidated, or any
Corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or any Corporation
succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided such Corporation shall be otherwise qualified and
eligible under this Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto other than the provision of written notice to the Company and the
Guarantor. In case any Securities shall have been authenticated but not delivered by the Trustee
then in office, any successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities so authenticated with the same effect as
if such successor Trustee had itself authenticated such Securities.




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     Section 6.12. Preferential Collection of Claims Against Company. If and when the Trustee
shall be or become a creditor of the Company (or any other obligor upon the Securities), the
Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of
claims against the Company (or any such other obligor).



     Section 6.13. Appointment of Authenticating Agent. (a) The Trustee may appoint one or more
Authenticating Agents acceptable to the Company and the Guarantor with respect to one or more
series of Securities which shall be authorized to act on behalf of the Trustee to authenticate
Securities of that or those series issued upon original issue, exchange, registration of transfer,
partial redemption or pursuant to Section 3.07, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee’s certificate of
authentication, such reference shall be deemed to include authentication and delivery on behalf of
the Trustee by an Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent.



     (b) Each Authenticating Agent shall be acceptable to the Company and the Guarantor and, except
as provided in or pursuant to this Indenture, shall at all times be a corporation that would be
permitted by the Trust Indenture Act to act as trustee under an indenture qualified under the Trust
Indenture Act, is authorized under applicable law and by its charter to act as an Authenticating
Agent and has a combined capital and surplus (computed in accordance with Section 310(a)(2) of the
Trust Indenture Act) of at least $50,000,000. If at any time an Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect specified in this Section.



     (c) Any Corporation into which an Authenticating Agent may be merged or converted or with
which it may be consolidated, or any Corporation resulting from any merger, conversion or
consolidation to which such Authenticating Agent shall be a party, or any Corporation succeeding to
the corporate agency, corporate trust or  business of an Authenticating Agent, shall be the
successor of such Authenticating Agent hereunder, provided such Corporation shall be otherwise
eligible under this Section, without the execution or filing of any paper or any further act on the
part of the Trustee or the Authenticating Agent.



     (d) An Authenticating Agent may resign at any time by giving written notice thereof to the
Trustee, the Company and the Guarantor. The Trustee may at any time terminate the agency of an
Authenticating Agent by giving written notice thereof to such Authenticating Agent, the Company and
the Guarantor.



63









 




Upon receiving such a notice of resignation or upon such a termination, or in case
at any time such Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, the Trustee may appoint a successor Authenticating Agent
which shall be acceptable to the Company and the Guarantor and shall mail written notice of such
appointment by first-class mail, postage prepaid, to all Holders of Securities, if any, of the
series with respect to which such Authenticating Agent shall serve, as their names and addresses
appear in the Security Register. Any successor Authenticating Agent, upon acceptance of its
appointment hereunder, shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the provisions of this
Section.




     (e) The Company and the Guarantor agree to pay each Authenticating Agent from time to time
reasonable compensation for its services under this Section.



     (f) The provisions of Sections 3.09, 6.04 and 6.05 shall be applicable to each Authenticating
Agent.



     (g) If an Authenticating Agent is appointed with respect to one or more series of Securities
pursuant to this Section, the Securities of such series may have endorsed thereon, in addition to
or in lieu of the Trustee’s certificate of authentication, an alternate certificate of
authentication in the following form:



     This is one of the Securities of the series designated herein referred to in the
within-mentioned Indenture.



	 	 	 	 	 
	 	The Bank of New York Mellon, As Trustee

 	 
	 	By:  	 	 
	 	 	As Authenticating Agent 	 
	 	 	 	 
	 
	 	 	 
	 	By:  	 	 
	 	 	Authorized Officer 	 
	 	 	 	 
	 




     If all of the Securities of any series may not be originally issued at one time, and if the
Trustee does not have an office capable of authenticating Securities upon original issuance located
in a Place of Payment where the Company wishes to have Securities of such series authenticated upon
original



64









 




issuance, the Trustee, if so requested in writing (which writing need not be accompanied
by or contained in an Officers’ Certificate by the Company), shall appoint in accordance with this
Section an Authenticating Agent having an office
in a Place of Payment designated by the Company with respect to such series of Securities.




     Section 6.14. Disqualification; Conflicting Interests. If the Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by, and subject to the
provisions of, the Trust Indenture Act and this Indenture. To the extent permitted by the Trust
Indenture Act the Trustee shall not be deemed to have a conflicting interest by virtue of being a
trustee under this Indenture with respect to Securities of more than one series.



ARTICLE 7

Holder’s Lists and Reports by Trustee, Company and Guarantor




     Section 7.01. Company to Furnish Trustee Names and Addresses of Holders. In accordance with
Section 312(a) of the Trust Indenture Act, the Company shall furnish or cause to be furnished to
the Trustee:



     (a) semi-annually with respect to Securities of each series on May 15 and November 15 of the
year or upon such other dates as are set forth in or pursuant to the Board Resolution or indenture
supplemental hereto authorizing such series, a list, in each case in such form as the Trustee may
reasonably require, of the names and addresses of Holders as of the applicable date, and



     (b) at such other times as the Trustee may request in writing, within 30 days after the
receipt by the Company of any such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished, provided, however, that so long as the
Trustee is the Security Registrar no such list shall be required to be furnished.



     Section 7.02. Preservation of Information; Communications to Holders. (a) The Trustee shall
comply with the obligations imposed upon it pursuant to Section 312 of the Trust Indenture Act.



     (b) Every Holder of Securities, by receiving and holding the same, agrees with the Company and
the Trustee that neither the Company, the Guarantor, the Trustee, any Paying Agent or any Security
Registrar shall be held accountable by reason of the disclosure of any such information as to the
names and addresses of the Holders of Securities in accordance with Section 312(c) of the Trust
Indenture Act, regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of



65









 




mailing any material pursuant to a request made under Section 312(b) of the Trust Indenture Act.




     Section 7.03. Reports by Trustee. (a) Within 60 days after May 15 of each year commencing
with the first May 15 following the first issuance of Securities
pursuant to Section 3.01, if required by Section 313(a) of the Trust Indenture Act, the
Trustee shall transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief report dated
as of such May 15 with respect to any of the events specified in said Section 313(a) which may have
occurred since the later of the immediately preceding May 15 and the date of this Indenture.



     (b) The Trustee shall transmit the reports required by Section 313(b) of the Trust Indenture
Act at the times specified therein.



     (c) Reports pursuant to this Section shall be transmitted in the manner and to the Persons
required by Sections 313(c) and 313(d) of the Trust Indenture Act.



     Section 7.04. Reports by Company and Guarantor. The Company and the Guarantor, pursuant to
Section 314(a) of the Trust Indenture Act, shall for so long as any Securities of any series are
Outstanding:



     (a) file with the Trustee, within 15 days after the Company or the Guarantor files the same
with the Commission, copies of the annual reports and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the Commission may from time to time
by rules and regulations prescribe) which the Company or the Guarantor may be required to file with
the Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934;



     (b) file with the Trustee and the Commission, in accordance with rules and regulations
prescribed from time to time by the Commission, such additional information, documents and reports
with respect to compliance by the Company or the Guarantor, or both, as the case may be, with the
conditions and covenants of this Indenture as may be required from time to time by such rules and
regulations; and



     (c) transmit within 30 days after the filing thereof with the Trustee, in the manner and to
the extent provided in Section 313(c) of the Trust Indenture Act, such summaries of any
information, documents and reports required to be filed by the Company or the Guarantor pursuant to
paragraphs (a) and (b) of this Section as may be required by rules and regulations prescribed from
time to time by the Commission.



66









 





     Delivery of reports, information and documents to the Trustee pursuant to this Section is for
informational purposes only and the Trustee’s receipt of such shall not constitute constructive
notice of any information contained therein, including compliance by the Company or the Guarantor
with any of their respective covenants hereunder, as to which the Trustee is entitled to rely
exclusively on Officer’s Certificates.



ARTICLE 8

Consolidation, Merger and Sales




     Section 8.01. Company or Guarantor May Consolidate, etc. Subject to Section 5.01, nothing
contained in this Indenture or in any of the Securities shall prevent any consolidation or merger
of the Company or the Guarantor with or into any other Person or Persons (whether or not affiliated
with the Company or the Guarantor), or successive consolidations or mergers in which the Company or
the Guarantor or the successor or successors of either of them shall be a party or parties, or
shall prevent any sale or conveyance of the property of the Company or the Guarantor as an entirety
or substantially as an entirety, to any other Person (whether or not affiliated with the Company or
the Guarantor).



     Section 8.02. Successor Person Substituted. In the event of any merger, consolidation, sale,
conveyance permitted by Section 8.01 and Section 5.01 above, Additional Amounts under the
Securities will thereafter be payable in respect of taxes imposed by the acquiring corporation’s,
or the resulting corporation’s, jurisdiction of incorporation (subject to exceptions equivalent to
those that apply to the obligation to pay Additional Amounts pursuant to Section 10.04 or the
Guarantee, as the case may be, in respect of taxes imposed by the laws of the Kingdom of Spain)
rather than taxes imposed by the Kingdom of Spain. Additional Amounts with respect to payments of
interest or principal due prior to the date of such merger, consolidation, sale, conveyance or
lease will be payable only in respect of taxes imposed by the Kingdom of Spain. The acquiring or
resulting corporation, as the case may be, will also be entitled to redeem the Securities in the
circumstances described in Section 11.08 with respect to any change or amendment to, or change in
the application or official interpretation of the laws or regulations of such jurisdiction which
change or amendment occurs subsequent to the date of any merger, consolidation, sale, conveyance or
lease permitted by Section 8.01 and Section 5.01. In the event of assumption of the Company’s or
Guarantor’s obligations in connection with a merger, consolidation, sale or conveyance of
substantially all of its assets, the Company or the Guarantor shall be released from all
obligations and covenants under this Indenture, the Securities or the Guarantee, as the case may
be.



     Section 8.03. Assumption of Company’s Obligations by Guarantor or Controlled Subsidiary. The
Guarantor or any Controlled Subsidiary of the



67









 




Guarantor may assume the obligations of the Company
under the Securities without the consent of the Holders of such Securities. Any Securities so
assumed, except if assumed by the Guarantor, will have the benefit of the Guarantee. In the event
of any assumption, Additional Amounts under the Securities will be payable in respect of taxes
imposed by the assuming corporation’s jurisdiction of incorporation (subject to exceptions
equivalent to those that apply to the obligation to pay Additional Amounts pursuant to Section
10.04 or the Guarantee, as the case may be, in respect of taxes imposed by the laws of the Kingdom
of Spain). Additional Amounts with respect to payments of interest or principal due prior to the
date of such assumption will be payable only in respect of taxes
imposed by the Kingdom of Spain. The Guarantor or the Controlled Subsidiary thereof that
assumes the obligations of the Company in such cases will also be entitled to redeem the Securities
in the circumstances described in Section 11.08 with respect to any change or amendment to, or
change in the application or official interpretation of the laws or regulations of such
jurisdiction which change or amendment occurs subsequent to the date of any such assumption. In
the event of any such assumption, all obligations of the Company under the Securities shall
immediately be discharged.




ARTICLE 9

Supplemental Indentures




     Section 9.01. Supplemental Indentures Without Consent of Holders. Without the consent of any
Holders of Securities, the Company, the Guarantor (in each case, when authorized by or pursuant to
a Board Resolution) and the Trustee, at any time and from time to time, may enter into one or more
indentures supplemental hereto, in form satisfactory to the Trustee, for any of the following
purposes:



     (a) to evidence the succession of another Person to the Company or the Guarantor, and the
assumption by any such successor of the covenants of the Company or the Guarantor herein and in the
Securities or Guarantee; or



     (b) to add to the covenants of the Company or the Guarantor for the benefit of the Holders of
all or any series of Securities (as shall be specified in such supplemental indenture or
indentures) or to surrender any right or power herein conferred upon the Company or the Guarantor;
or



     (c) to establish the form or terms of Securities of any series as permitted by Sections 2.01
and 3.01; or



     (d) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee
with respect to the Securities of one or more series and to add to or change any of the provisions
of this Indenture as shall be



68









 




necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, pursuant to the requirements of Section 6.10; or




     (e) to cure any ambiguity or to correct or supplement any provision herein which may be
defective or inconsistent with any other provision herein, or to make any other provisions with
respect to matters or questions arising under this Indenture which shall not adversely affect the
interests of the Holders of Securities of any series in any material respect; or



     (f) to add to, delete from or revise the conditions, limitations and restrictions on the
authorized amount, terms or purposes of issue, authentication and delivery of Securities, as herein
set forth; or



     (g) to supplement any of the provisions of this Indenture to such extent as shall be necessary
to permit or facilitate the defeasance and discharge of any series of Securities pursuant to
Article 4; provided that any such action shall not adversely affect the interests of any Holder of
a Security of such series or any other Security in any material respect; or



     (h) to add any additional Events of Default for the benefit of the Holders of all or any
series of Securities; or



     (i) to secure the Securities; or



     (j) to amend or supplement any provision contained herein or in any supplemental indenture,
provided that no such amendment or supplement shall materially adversely affect the interests of
the Holders of any Securities then Outstanding.



     Section 9.02. Supplemental Indentures with Consent of Holders. (a) With the consent, as
evidenced in an Act or Acts, as the case may be, of the Holders of not less than a majority in
principal amount of the Outstanding Securities of each such series affected by such supplemental
indenture voting as a class, the Company, the Guarantor (in each case, when authorized by or
pursuant to a Board Resolution), and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture and of waiving future compliance with
respect to the Indenture, such Securities and the Guarantee; provided, however, that no such
supplemental indenture, without the consent of the Holder of each Outstanding Security affected
thereby, shall




     (i) change the Stated Maturity of the principal of, or any premium or installment of
interest on or any Additional Amounts with



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respect to, any Security, or reduce the
principal amount thereof or the rate of interest thereon (except that Holders of not less
than 75% in principal amount of Outstanding Securities of a series may consent by Act, on
behalf of the Holders of all of the Outstanding Securities of such series, to the
postponement of the Stated Maturity of any installment of interest for a period not
exceeding three years from the original Stated Maturity of such installment (which
original Stated Maturity shall have been fixed, for the avoidance of doubt, prior to any
previous postponements of such installment)) or any Additional Amounts with respect
thereto, or any premium payable upon the redemption thereof or otherwise, or change the
obligation of the Company to pay Additional Amounts pursuant to Section 10.04 (except as
contemplated by Section 3.08 and permitted by Section 8.03 and Section 9.01(a)), or reduce
the amount of the principal of an Original Issue Discount Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to Section
5.02
or the amount thereof provable in bankruptcy pursuant to Section 5.04, or change the
redemption provisions or adversely affect the right of repayment at the option of any
Holder as contemplated by Article 13, or change the Place of Payment, Currency in which
the principal of, any premium or interest on, or any Additional Amounts with respect to
any Security is payable, or impair the right to institute suit for the enforcement of any
such payment on or with respect to any Security on or after the Stated Maturity thereof
(or, in the case of redemption, on or after the Redemption Date or, in the case of
repayment at the option of the Holder, on or after the date for repayment), or




     (ii) reduce the percentage in principal amount of the Outstanding Securities of any
series, the consent of whose Holders is required for any such supplemental indenture, or
the consent of whose Holders is required for any waiver (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or reduce the requirements for a quorum or voting, or




     (iii) modify any of the provisions of this Section or Section 5.13, except to
increase any such percentage or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each Outstanding
Security affected thereby, or




     (iv) change in any manner adverse to the interests of the Holders of Outstanding
Securities of any series the terms and conditions of the obligations of the Company or the Guarantor in
respect of the due and punctual payment of the principal thereof (and premium, if any) and
interest, if any, thereon or any sinking fund payments, if any, provided for in respect



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thereof (including in each case Additional Amounts payable under the Guarantee).



     (b) A supplemental indenture which changes or eliminates any covenant or other provision of
this Indenture which shall have been included expressly and solely for the benefit of one or more
particular series of Securities, or which modifies the rights of the Holders of Securities of such
series with respect to such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.



     (c) It shall not be necessary for any Act of Holders of Securities under this Section to
approve the particular form of any proposed supplemental indenture, but it shall be sufficient if
such Act shall approve the substance thereof.



     Section 9.03. Execution of Supplemental Indentures. As a condition to executing, or
accepting the additional trusts created by, any supplemental indenture permitted by this Article or
the modifications thereby of the trust
created by this Indenture, the Trustee shall be entitled to receive, in addition to the
documents required by Section 1.02, and (subject to Section 315 of the Trust Indenture Act) shall
be fully protected in relying upon, an Opinion of Counsel and Officer’s Certificate, each stating
that the execution of such supplemental indenture is authorized or permitted by this Indenture.
The Trustee may, but shall not be obligated to, enter into any such supplemental indenture which
affects the Trustee’s own rights, duties or immunities under this Indenture or otherwise.



     Section 9.04. Effect of Supplemental Indentures. Upon the execution of any supplemental
indenture under this Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes; and every Holder of a
Security theretofore or thereafter authenticated and delivered hereunder shall be bound thereby.



     Section 9.05. Reference in Securities to Supplemental Indentures. Securities of any series
authenticated and delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form approved by the Trustee
as to any matter provided for in such supplemental indenture. If the Company and the Guarantor
shall so determine, new Securities of any series so modified as to conform, in the opinion of the
Trustee, the Company and the Guarantor, to any such supplemental indenture may be prepared and
executed by the Company, the Guarantee thereon may be executed by the Guarantor and such Securities
may be authenticated and delivered by the Trustee in exchange for outstanding Securities of such
series.



     Section 9.06. Conformity with Trust Indenture Act. Every supplemental indenture executed
pursuant to this Article shall conform to the requirements of the Trust Indenture Act as then in
effect.



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ARTICLE 10

Covenants




     Section 10.01. Payment of Principal and Any Premium, Interest and Additional Amounts. The
Company covenants and agrees for the benefit of the Holders of the Securities of each series that
it will duly and punctually pay the principal of, any premium and interest on and any Additional
Amounts with respect to, the Securities of such series in accordance with the terms thereof and
this Indenture.



     Section 10.02. Maintenance of Office or Agency. The Company and the Guarantor shall maintain
in each Place of Payment for any series of Securities an Office or Agency where Securities of such
series may be presented or surrendered for payment, where Securities of such series may be
surrendered for registration of transfer or exchange, and where notices and demands to or upon the
Company and the Guarantor in respect of the Securities of such series relating thereto, the
Guarantees and this Indenture may be served.



     The Company may also from time to time designate one or more other Offices or Agencies where
the Securities of one or more series may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of their obligation to maintain an Office or
Agency in each Place of Payment for Securities of any series for such purposes. The Company shall
give prompt written notice to the Trustee of any such designation or rescission and of any change
in the location of any such other Office or Agency. Unless otherwise provided in or pursuant to
this Indenture, the Company hereby designates as the Place of Payment for each series the Borough
of Manhattan, The City of New York, and initially appoints the Office or Agency of the Corporate
Trust Office of the Trustee for such purpose. Pursuant to Section 3.01(h), the Company may
subsequently appoint a place or places in the Borough of Manhattan, The City of New York where such
Securities may be payable.



     Unless otherwise specified with respect to any Securities pursuant to Section 3.01, if and so
long as the Securities of any series (i) are denominated in a Foreign Currency or (ii) may be
payable in a Foreign Currency, or so long as it is required under any other provision of this
Indenture, then the Company will maintain with respect to each such series of Securities, or as so
required, at least one exchange rate agent.



     Section 10.03. Money for Securities Payments to be Held in Trust. If the Company or the
Guarantor shall at any time act as the Company’s Paying Agent with respect to any series of
Securities, it shall, on or before each due date of the principal of, any premium or interest on or
Additional Amounts with respect to, any of the Securities of such series, segregate and hold in
trust for the benefit of



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the Persons entitled thereto a sum in the currency or currencies, currency
unit or units or composite currency or currencies in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 3.01 for the Securities of such series)
sufficient to pay the principal or any premium, interest or Additional Amounts so becoming due
until such sums shall be paid to such Persons or otherwise disposed of as herein provided, and
shall promptly notify the Trustee of its action or failure so to act.




     Whenever the Company shall have one or more Paying Agents for any series of Securities, it
shall, on or prior to each due date of the principal of, any premium or interest on or any
Additional Amounts with respect to, any Securities of such series, deposit with any Paying Agent a
sum (in the currency or currencies, currency unit or units or composite currency or currencies
described in the preceding paragraph) sufficient to pay the principal or any premium, interest or
Additional Amounts so becoming due, such sum to be held in trust for the benefit of the Persons
entitled thereto, and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of its action or failure so to act.



     The Company shall cause each Paying Agent for any series of Securities other than the Trustee
to execute and deliver to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee, subject to the provisions of this Section, that such Paying Agent shall:




     (i) hold all sums held by it for the payment of the principal of, any premium or
interest on or any Additional Amounts with respect to, Securities of such series in trust
for the benefit of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as provided in or pursuant to this Indenture;




     (ii) give the Trustee notice of any default by the Company (or any other obligor upon
the Securities of such series) in the making of any payment of principal, any premium or
interest on or any Additional Amounts with respect to the Securities of such series; and




     (iii) at any time during the continuance of any such default, upon the written
request of the Trustee, forthwith pay to the Trustee all sums so held in trust by such
Paying Agent.



     The Company may at any time, for the purpose of obtaining the satisfaction and discharge of
this Indenture or for any other purpose, pay, or by Company Order direct any Paying Agent to pay,
to the Trustee all sums held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same terms as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the



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Trustee, such Paying Agent shall be
released from all further liability with respect to such sums.




     Except as otherwise provided herein or pursuant hereto, any money deposited with the Trustee
or any Paying Agent, or then held by the Company or the Guarantor, in trust for the payment of the
principal of, any premium or interest on or any Additional Amounts with respect to, any Security of
any series and remaining unclaimed for two years after such principal or any such premium or
interest or any such Additional Amounts shall have become due and payable shall be paid to the
Company or the Guarantor, as the case may be, on Company Request, or (if then held by the Company
or the Guarantor) shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company or the Guarantor for payment
thereof, and all liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company or the Guarantor as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company cause to be published once, in a newspaper published
in the English language, customarily published on each Business Day and of general circulation in
the Borough of Manhattan, The City of New York, New York, notice that such money remains unclaimed
and that, after a date specified therein, which shall not
be less than 30 days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.



     Section 10.04. Additional Amounts. The Company hereby further agrees that any amounts to be
paid by the Company with respect to each Security shall be paid without deduction or withholding
for or on account of any and all present or future taxes or duties of whatever nature imposed or
levied by or on behalf of the Kingdom of Spain (the “Taxing Jurisdiction”) or any political
subdivision or authority thereof or therein having the power to tax unless such withholding or
deduction is required by law. In that event, the Company will pay to the Holder such Additional
Amounts in respect of principal, premium, if any, interest, if any, and sinking fund payments, if
any, as may be necessary in order that the net amount paid to the Holder of such Security or to the
Trustee or any Paying Agent, as the case may be, under this Indenture, after such deduction or
withholding, shall equal the respective amounts of principal, premium, if any, interest, if any,
and sinking fund payments, if any, as specified in the Security to which such Holder or the Trustee
would be entitled if no such deduction or withholding had been made; provided, however, that the
foregoing obligation to pay Additional Amounts will not apply:



     (a) to, or to a third party on behalf of, a Holder who is liable for such Taxes by reason of
such Holder (or the beneficial owner of the Security for whose benefit such Holder holds such
Security) having some connection with the



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Kingdom of Spain other than the mere holding of the
Security or the mere crediting of the Security to its securities account with the relevant
Depository;




     (b) in the case of a Security presented for payment (where presentation is required) more than
30 days after the Relevant Date (as defined below) except to the extent that a Holder would have
been entitled to Additional Amounts on presenting the same for payment on such thirtieth day
assuming that day to have been a business day in such place of presentment;



     (c) to, or to a third party on behalf of, a Holder in respect of whom the Company or the
Guarantor (or the Paying Agent on its behalf) has not received all details concerning such holder’s
identity and tax residence as it requires in order to comply with Spanish Law 13/1985 of 25 May (as
amended by Spanish Law 19/2003 of 4 July and Law 23/2005 of 18 November) and any implementing
legislation or regulation no later than 10.00 a.m. (CET) on the 10th calendar day of the
month following the Relevant Date upon which the payment was due (or if such date is not a day on
which commercial banks are open for general business in Spain, the day immediately preceding such
date);



     (d) where such withholding or deduction is imposed on a payment to an individual and is
required to be made pursuant to European Council Directive 2003/48/EC or any other Directive
implementing the conclusions of the ECOFIN Council meeting of 26-27 November 2000 on the taxation
of savings or any law
implementing or complying with, or introduced in order to conform to, such Directive or law;
or



     (e) in respect of any Security presented for payment by or on behalf of a Holder who would
have been able to avoid such withholding or deduction by presenting the relevant Security to
another Paying Agent in a Member State of the European Union.


Nor shall Additional Amounts be paid with respect to any payment on any Security to any Holder who
is a fiduciary, partnership, limited liability company or other than the sole beneficial owner of
such payment to the extent such payment would be required by the laws of the Kingdom of Spain (or
any political subdivision thereof) to be included in the income for tax purposes of a beneficiary
or settlor with respect to such fiduciary, member of such partnership, interest holder in that
limited liability company or beneficial owner who would not have been entitled to such Additional
Amounts had it been a Holder of such Security.




     For the purposes of (b) above, the “Relevant Date” means, in respect of any payment, the date
on which such payment first becomes due and payable, but if the full amount of the moneys payable
has not been received by the Paying Agent on or prior to such due date, it means the first date on
which the full amount of such moneys having been so received and being available for payment



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to Holders, notice to that effect shall have been duly given to the Holders in accordance with this
Indenture.




     Whenever in this Indenture there is mentioned, in any context, the payment of the principal of
or any premium or interest on, or in respect of, any Security of any series or the net proceeds
received on the sale or exchange of any Security of any series, such mention shall be deemed to
include mention of the payment of Additional Amounts provided by the terms of such series
established hereby or pursuant hereto to the extent that, in such context, Additional Amounts are,
were or would be payable in respect thereof pursuant to such terms, and express mention of the
payment of Additional Amounts (if applicable) in any provision hereof shall not be construed as
excluding Additional Amounts in those provisions hereof where such express mention is not made.



     Section 10.05. Statement by Officers as to Default. Each of the Company and the Guarantor
will deliver to the Trustee, within 120 days after the end of their respective fiscal years ending
after the date hereof, a brief certificate, complying with Section 314(e) of the Trust Indenture
Act, from the principal executive, financial or accounting officer of each of the Company and the
Guarantor, stating whether or not to the best knowledge of the signer or signers thereof the
Company or the Guarantor, as the case may be, is in default in the performance and observance of
any of the terms, provisions, covenants or conditions of this Indenture (such compliance to be
determined without regard to any period of grace or requirement of notice provided hereunder).



     Section 10.06. Corporate Existence. Subject to Article 8, each of the Company and the
Guarantor shall do or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence; provided, however, that the foregoing shall not obligate the
Company or the Guarantor to preserve any such right or franchise if the Company or the Guarantor
shall determine that the preservation thereof is no longer desirable in the conduct of its business
and that the loss thereof is not disadvantageous in any material respect to any Holder.



     Section 10.07. Waiver of Certain Covenants. Except as otherwise specified as contemplated by
Section 3.01 for Securities of such series, the Company may, with respect to the Securities of any
series, omit in any particular instance to comply with any term, provision or condition set forth
in any covenant provided pursuant to Section 9.01(b) or Section 9.01(c) for the benefit of the
Holders of Securities of such series or any term, provision or condition set forth in an indenture
supplemental hereto, if before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities of such series shall, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or condition



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except to the extent so expressly waived, and, until such waiver shall become effective, the obligations of
the Company and the duties of the Trustee in respect of any such term, provision or condition shall
remain in full force and effect.




ARTICLE 11

Redemption of Securities




     Section 11.01. Applicability of Article. Redemption of Securities of any series at the
option of the Company as permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided herein or pursuant
hereto) this Article.



     Section 11.02. Election to Redeem; Notice to Trustee. The election of the Company to redeem
any Securities shall be evidenced by or pursuant to a Board Resolution. In case of any redemption
at the election of the Company of (a) less than all of the Securities of any series or (b) all of
the Securities of any series, with the same interest rate, Stated Maturity and other terms, the
Company shall, at least 30 days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee of such Redemption Date and of the
principal amount (or in the case of Original Issue Discount Security, the original issue amount) of
Securities of such series to be redeemed. In the case of any redemption of Securities prior to the
expiration of any restrictions on redemption provided in the terms of such Securities or elsewhere
in this Indenture, the Company shall furnish the Trustee with an Officer’s Certificate evidencing
compliance with such restriction.



     Section 11.03. Selection by Trustee of Securities to be Redeemed. If less than all of the
Securities of any series with the same interest rate, Stated Maturity and other terms are to be
redeemed, the particular Securities to be redeemed shall be selected not more than 45 days prior to
the Redemption Date by the Trustee from the Outstanding Securities of such series not previously
called for redemption, by lot and may provide for the selection for redemption of portions of the
principal amount (or in the case of an Original Issue Discount Security, the original issue amount)
of Securities of such series; provided, however, that no such partial redemption shall reduce the
portion of the principal amount (or in the case of an Original Issue Discount Security, the
original issue amount) of a Security of such series not redeemed to less than the minimum
denomination for a Security of such series established herein or pursuant hereto.



     The Trustee shall promptly notify the Company and the Security Registrar (if other than
itself) in writing of the Securities selected for redemption and, in the case of any Securities
selected for partial redemption, the principal amount thereof to be redeemed.



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     For all purposes of this Indenture, unless the context otherwise requires, all provisions
relating to the redemption of Securities shall relate, in the case of any Securities redeemed or to
be redeemed only in part, to the portion of the principal of such Securities which has been or is
to be redeemed.



     Section 11.04. Notice of Redemption. Notice of redemption shall be given in the manner
provided in Section 1.06, not less than 30 nor more than 60 days prior to the Redemption Date,
unless a shorter period is specified in the Securities to be redeemed, to the Holders of Securities
to be redeemed. Failure to give notice by mailing in the manner herein provided to the Holder of
any Securities designated for redemption as a whole or in part, or any defect in the notice to any
such Holder, shall not affect the validity of the proceedings for the redemption of any other
Securities or portion thereof.



     Any notice that is mailed to the Holder of any Securities in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not such Holder receives the notice.



     All notices of redemption shall state:




     (i) the Redemption Date,




     (ii) the Redemption Price,




     (iii) if less than all Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the principal amount (or in the
case of an Original Issue Discount Security, the original issue amount)) of the particular
Security or Securities to be redeemed,




     (iv) in case any Security is to be redeemed in part only, the notice which relates to
such Security shall state that on and after the Redemption Date, upon surrender of such
Security, the Holder of such Security will receive, without charge, a new Security or
Securities of authorized denominations for the principal amount thereof remaining
unredeemed,




     (v) that, on the Redemption Date, the Redemption Price shall become due and payable
upon each such Security or portion thereof to be redeemed, and, if applicable, that
interest thereon shall cease to accrue on and after said date,




     (vi) the place or places where such Securities maturing after the Redemption Date,
are to be surrendered for payment of the Redemption Price and any accrued interest and
Additional Amounts pertaining thereto,



78









 






     (vii) that the redemption is for a sinking fund, if such is the case, and




     (viii) the CUSIP number or the Euroclear and Cedel reference number of such
Securities, if any (or any other numbers used by a Depository to identify such
Securities).



     Except as otherwise provided herein, notice of redemption published as contemplated by Section
1.06 need not identify particular Securities to be redeemed.



     Notice of redemption of Securities to be redeemed at the election of the Company shall be
given by the Company or, at the Company’s request, by the Trustee in the name and at the expense of
the Company.



     Section 11.05. Deposit of Redemption Price. On any Redemption Date, the Company shall
deposit with the Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 10.03) an amount of money sufficient to
pay the Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date)
any accrued interest on and Additional Amounts with respect thereto, all the Securities or portions
thereof which are to be redeemed on that date.



     Section 11.06. Securities Payable on Redemption Date. Notice of redemption having been given
as aforesaid, the Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date (unless the Company
shall default in the payment of the Redemption Price and accrued interest) such Securities shall
cease to bear interest. Upon surrender of any such Security for redemption in accordance with said
notice, maturing after the Redemption Date, such Security shall be paid by the Company at the
Redemption Price, together with any accrued interest and Additional Amounts to the Redemption Date;
provided, however, that
installments of interest on Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the Regular Record Dates therefor according to their
terms and the provisions of Section 3.08.



     If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and any premium, until paid, shall bear interest from the Redemption Date
at the rate prescribed therefor in the Security.



     Section 11.07. Securities Redeemed in Part. Any Security which is to be redeemed only in
part shall be surrendered at any Office or Agency for such Security (with, if the Company or the
Trustee so requires, due endorsement by, or



79









 




a written instrument of transfer in form satisfactory
to the Company and the Trustee duly executed by, the Holder thereof or his attorney duly authorized
in writing) and the Company shall execute, the Guarantor shall endorse the Guarantee on, and the
Trustee shall authenticate and deliver to the Holder of such Security without service charge, a new
Security or Securities of the same series, containing identical terms and provisions, of any
authorized denomination as requested by such Holder in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so surrendered. If a Global
Security is so surrendered, the Company shall execute, the Guarantor shall endorse the Guarantee
on, and the Trustee shall authenticate and deliver to the U.S. Depository or other Depository for
such Global Security as shall be specified in the Company Order with respect thereto to the
Trustee, without service charge, a new Global Security in a denomination equal to and in exchange
for the unredeemed portion of the principal of the Global Security so surrendered.




     Section 11.08. Optional Redemption due to Changes in Tax Treatment. Unless otherwise
provided in the Securities of any series, all (but not less than all) of the Securities of any
series may be redeemed in accordance with the terms of this Article 11 at the option of the Company
if, as the result of any change in or any amendment to the laws and regulations of the Kingdom of
Spain (including any treaty to which Spain is a party) or any political subdivision or any
authority thereof or therein having power to tax, or any change in the application or official
interpretation of such laws or regulations, which change, amendment, application or interpretation
becomes effective on or after the date of the applicable Prospectus Supplement relating to such
series, either (i) it is determined by the Company or the Guarantor that in making payment under
the Securities or the Guarantee, the Company or the Guarantor, as the case may be, would become
obligated to pay Additional Amounts with respect thereto as a result of any taxes, levies, imposts
or other governmental charges imposed (whether by way of withholding or deduction or otherwise) by
or for the account of the Kingdom of Spain and which obligation cannot be avoided by the Company or
the Guarantor taking measures available to it without unreasonable cost or expense, or (ii) the
Guarantor is or would be required to deduct or withhold tax on any payment to the issuer to enable
the issuer to make any payment of principal or interest in
respect of the Securities and such deduction or withholding cannot be avoided by the Guarantor
taking measures available to it without unreasonable cost or expense (excluding the assumption of
the Company’s obligations under the Securities by the Guarantor or a Subsidiary of the Guarantor);
provided that no such notice to the Trustee of the redemption shall be given earlier than 60 days
prior to the earliest date on which the Company or the Guarantor, as the case may be, would be
obligated to deduct or withhold or pay such Additional Amounts were a payment in respect of the
Securities or the Guarantee then due.



     Prior to any notice of redemption of such Securities pursuant to Section



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11.04, the Company or the Guarantor shall provide the Trustee with an Officer’s Certificate of the Guarantor stating that
the Company or the Guarantor is entitled to effect such redemption and setting forth in reasonable
detail a statement of circumstances showing that the conditions precedent to the right of the
Company or the Guarantor to redeem such Securities pursuant to this Section have been satisfied and
an Opinion of Counsel to the effect that the Company or the Guarantor, as the case may be, has or
will become obliged to make such withholding or deduction or to pay such Additional Amounts as a
result of such change or amendment.




ARTICLE 12

Sinking Funds




     Section 12.01. Applicability of Article. The provisions of this Article shall be applicable
to any sinking fund for the retirement of Securities of a series, except as otherwise permitted or
required by any form of Security of such series issued pursuant to this Indenture.



     The minimum amount of any sinking fund payment provided for by the terms of Securities of any
series is herein referred to as a “mandatory sinking fund payment”, and any payment in excess of
such minimum amount provided for by the terms of Securities of such series is herein referred to as
an “optional sinking fund payment”. If provided for by the terms of Securities of any series, the
cash amount of any sinking fund payment may be subject to reduction as provided in Section 12.02.
Each sinking fund payment shall be applied to the redemption of Securities of any series as
provided for by the terms of Securities of such series.



     Section 12.02. Satisfaction of Sinking Fund Payments with Securities. The Company may, in
satisfaction of all or any part of any sinking fund payment with respect to the Securities of any
series to be made pursuant to the terms of such Securities (i) deliver to the Trustee for
cancellation Outstanding Securities of such series (other than any of such Securities previously
called for redemption or any of such Securities in respect of which cash shall have been released
to the Company) and (ii) apply as a credit Securities of such series which have been redeemed
either at the election of the Company pursuant to the terms of such series of Securities or through
the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, provided that such series of Securities
have not been previously so credited. Such Securities shall be received and credited for such
purpose by the Trustee at the face amount specified in such Securities for redemption through
operation of the sinking fund and the amount of such sinking fund payment shall be reduced
accordingly. If as a result of the delivery or credit of Securities of any series in lieu of cash
payments pursuant to this Section 12.02, the principal amount of Securities of such series to be
redeemed in order to exhaust the aforesaid cash payment shall be less than



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$100,000, the Trustee need not call Securities of such series for redemption, except upon Company Request, and such cash
payment shall be held by the Trustee or a Paying Agent and applied to the next succeeding sinking
fund payment, provided, however, that the Trustee or such Paying Agent shall at the request of the
Company from time to time pay over and deliver to the Company any cash payment so being held by the
Trustee or such Paying Agent upon delivery by the Company to the Trustee of Securities of that
series purchased by the Company having an unpaid principal amount equal to the cash payment
requested to be released to the Company.




     Section 12.03. Redemption of Securities for Sinking Fund. Not less than 60 days prior to
each sinking fund payment date for any series of Securities, the Company shall deliver to the
Trustee an Officers’ Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion thereof, if any, which is
to be satisfied by payment of cash and the portion thereof, if any, which is to be satisfied by
delivering and crediting of Securities of that series pursuant to Section 12.02, and the optional
amount, if any, to be added in cash to the next ensuing mandatory sinking fund payment, and will
also deliver to the Trustee any Securities to be so credited and not theretofore delivered. If
such Officers’ Certificate shall specify an optional amount to be added in cash to the next ensuing
mandatory sinking fund payment, the Company shall thereupon be obligated to pay the amount therein
specified. Not less than 30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the manner specified in
Section 11.03 and cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 11.04. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the manner stated in
Sections 11.06 and 11.07.



ARTICLE 13

Repayment at the Option of Holders




     Section 13.01. Applicability of Article. Securities of any series which are repayable at the
option of the Holders thereof before their Stated Maturity shall be repaid in accordance with the
terms of the Securities of such series. The repayment of any principal amount of Securities
pursuant to such option of the Holder to require repayment of Securities before their Stated
Maturity, for
purposes of Section 4.01, shall not operate as a payment, redemption or satisfaction of the
indebtedness represented by such Securities unless and until the Company, at its option, shall
deliver or surrender the same to the Trustee with a directive that such Securities be cancelled.
Notwithstanding anything to the contrary contained in this Section 13.01, in connection with any
repayment of



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Securities, the Company may arrange for the purchase of any Securities by an agreement
with one or more investment bankers or other purchasers to purchase such Securities by paying to
the Holders of such Securities on or before the close of business on the repayment date an amount
not less than the repayment price payable by the Company on repayment of such Securities, and the
obligation of the Company to pay the repayment price of such Securities shall be satisfied and
discharged to the extent such payment is so paid by such purchasers, it being understood that the
foregoing shall not affect the right of the Guarantor or the Company to purchase any Security of
any series at such price or prices or such time or times as may be agreed.




ARTICLE 14

Securities in Foreign Currencies




     Section 14.01. Applicability of Article. Whenever this Indenture provides for (i) any action
by, or the determination of any of the rights of, Holders of Securities of any series in which not
all of such Securities are denominated in the same Currency, or (ii) any distribution to Holders of
Securities, in the absence of any provision to the contrary in the form of Security of any
particular series, any amount in respect of any Security denominated in a currency other than
Dollars shall be treated for any such action or distribution as that amount of Dollars that could
be obtained for such amount on such reasonable basis of exchange and as of the record date with
respect to Securities of such series (if any) for such action, determination of rights or
distribution (or, if there shall be no applicable record date, such other date reasonably proximate
to the date of such action, determination of rights or distribution) as the Company may specify in
a written notice to the Trustee.



ARTICLE 15

Guarantees




     Section 15.01. Guarantees. The Guarantor by its execution of this Indenture hereby agrees
with each Holder of a Security of each series authenticated and delivered by the Trustee and with
the Trustee on behalf of such Holder, to enter into a guarantee in respect of each such series of
Securities in substantially the form set forth in Section 2.05.



     Section 15.02. Execution and Delivery of Guarantees. To evidence its guarantees
substantially in the form set forth in Section 2.05, the Guarantor hereby agrees to execute the
Guarantees manually, or by facsimile in the form
established pursuant hereto, to be endorsed on each Security issued by the Company and
authenticated and delivered by the Trustee. Each such Guarantee



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shall be executed on behalf of the Guarantor by an Executive Officer or any other officer of the Guarantor so authorized by a Board
Resolution. Guarantees so executed on Securities authenticated and delivered by the Trustee shall
be valid and binding obligations of the Guarantor under Spanish law enforceable in accordance with
their terms.




     Guarantees bearing the manual or facsimile signature of any individual who was at any time an
Executive Officer or another officer authorized by a Board Resolution to execute such Guarantee
shall bind the Guarantor, notwithstanding that such individual shall have ceased to be an Executive
Officer or such other authorized officer prior to the authentication and delivery of the Securities
upon which such Guarantees are endorsed or was not an Executive Officer or such other authorized
officer at the date of authentication of such Securities.



     The Delivery of any Security by the Trustee, after the authentication thereof hereunder, shall
constitute due delivery of the Guarantee endorsed thereon on behalf of the Guarantor.



*  *  *


     This instrument may be executed in any number of counterparts, each of which so executed shall
be deemed to be an original, but all such counterparts shall together constitute but one and the
same instrument.



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     IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed all as
of the day and year first above written.



	 	 	 	 	 
	 	BBVA U.S. SENIOR, S.A. UNIPERSONAL

as Company

 	 
	 	By:  	/s/
Ana
Fernández Manrique 	 
	 	 	Name:  	Ana
Fernández Manrique 	 
	 	 	Title:  	Director 	 
	 
	 	BANCO BILBAO VIZCAYA ARGENTARIA, S.A.,

as Guarantor

 	 
	 	By:  	/s/
Pedro Ma Urresti 	 
	 	 	Name:  	Pedro Ma Urresti 	 
	 	 	Title:  	Deputy CFO 	 
	 
	 	THE BANK OF NEW YORK MELLON,

as Trustee

 	 
	 	By:  	/s/
Paul Cattermole   Andrea Myers	 
	 	 	Name:  	Paul Cattermole   Andrea Myers	 
	 	 	Title:  	Assistant Vice President   Assistant Vice President	 
	 




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Annex A



SYNDICATE REGULATIONS

(Unofficial English Translation)




     THESE REGULATIONS GOVERN THE SYNDICATE constituted of all Holders of the Series                                          %
Senior Guaranteed Notes due                      (the “Series ___ Securities”) issued under an Indenture dated
[•], 2008 between BBVA U.S. Senior, S.A. Unipersonal, Banco Bilbao Vizcaya Argentaria, S.A., as
Guarantor, and The Bank of New York Mellon, as Trustee, as supplemented and amended on [•] and [•]
(the “Indenture”) and the Spanish deed of issuance (escritura de emisión) dated [•]. Terms not
otherwise defined in these Regulations have the meanings assigned to them in the Indenture.



Part I




Constitution, Object, Domicile and Duration




     Article I. Constitution. This syndicate is constituted of all Holders of the Series ___
Securities at any particular time.



     Article II. Object. The objective of the Syndicate is to protect the rights and interests of
the Holders of Series ___ Securities under any applicable laws and regulations.



     Article III. Domicile. The Syndicate shall be domiciled at the address of the principal
executive office of the Commissioner or at the address of the principal executive office of a
successor Commissioner, if applicable.



     Article IV. Duration. The Syndicate shall exist until the Issuer has satisfied and
discharged the Indenture with respect to the Series ___ Securities.



Part II




The Syndicate




     Article V. Deemed Membership in Syndicate; Ratification. Every Holder of Series ___
Securities will be deemed to have agreed to membership in the Syndicate and every Holder of Series
___ Securities as of the record date set for the first meeting of the Syndicate shall be deemed to
have granted full power and authority to the Trustee with respect to
the Series ___ Securities to act as its proxy to vote at the
first meeting of the Syndicate in favor of these Regulations.



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Part III




The Commissioner




     Article VI. Designation and Powers; Ratification. Every Holder of Series ___ Securities as
of the record date set for the first meeting of the Syndicate shall
be deemed to have granted full power and authority to the
Trustee with respect to the Series ___ Securities to act as its proxy to vote in the first meeting of the
Syndicate in favor of the ratification of the designation and appointment of the Bank of New York
Mellon as the initial Commissioner of the Syndicate and the
ratification of the actions of the Commissioner performed prior to
such first meeting of the Syndicate. The Bank of New York Mellon, as the initial
Trustee appointed under the Indenture, or any other Person named as Trustee in the Indenture with
respect to the Series ___ Securities, as the case may be, shall serve as Commissioner of the
Syndicate until (a) The Bank of New York Mellon or such other Trustee, as the case may be, resigns
or is removed by the Company, the Guarantor or an Act of Holders of Outstanding Series ___ Securities or otherwise and a
successor Trustee or any other person shall have become Commissioner with respect to the Series ___
Securities pursuant to these regulations; or (b) until the Commissioner is removed by
an Act of Holders of Outstanding Series ___ Securities. Thereafter, the Commissioner shall be the
Person designated by this Syndicate as the successor Commissioner with respect to the Series ___
Securities. The Commissioner shall represent the Syndicate and act as a
liaison between the Company and the Syndicate and have such powers as may be established under
Spanish law from time to time, these Regulations, the Spanish deed of issuance (escritura de
emisión) with respect to the Series ___
Securities and the Articles of Association of the Company.



Part IV




Meetings of the Syndicate




     Article VII. Calling of Meetings and Purpose. The Commissioner, acting on behalf of the
Syndicate or at the request of the Trustee, the Company (pursuant to a Company Order communicated
to it by the Trustee) or the Holders of at least one-twentieth in principal amount of the Series
___ Securities Outstanding as of the date of such request, which request shall include the
location of such meeting and the substance of the matter or matters proposed to be considered at such meeting, shall call a meeting
of the Syndicate at any time and from time to time pursuant to these Regulations to make, give or
take any request, demand, authorization, direction, notice, consent or waiver provided by the
Indenture or these Regulations to be made, given or taken by the Holders of Outstanding Series ___
Securities by causing notice thereof to the Holders of Series ___ Securities Outstanding on the
record date fixed pursuant to Article X of these Regulations to be made within 14 days of



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receipt
of such request from the Trustee, the Company (through the Trustee) or such Holders, as the case
may be.




     Article VIII. Notice. Notice of the time and place of and the substance of the matter or
matters proposed to be considered at every meeting of the Syndicate at which the Holders of
Outstanding Series ___ Securities are requested to modify in any manner their rights as Holders of
the Series ___ Securities under the Indenture or, in the discretion of the Commissioner, resolve as
to matters of similar importance, shall be sufficiently given to the Holders of Series ___
Securities Outstanding on the record date if (a) published in an Authorized Newspaper of general
circulation in the Borough of Manhattan, The City of New York and the Official Gazette of the
Register of Companies (Boletín Oficial del Registro Mercantil) not more than 60 days and not less
than 30 days prior to the date fixed for the meeting of the Syndicate and (b) in writing and
mailed, first-class postage prepaid, to each Holder of Series ___ Securities at his address as it
appears in the Security Register on such record date, not more than 60 days and not less than ten
days prior to the date fixed for the meeting of the Syndicate. Notice of the time and place of and
the substance of the matter or matters proposed to be considered at every other meeting of the
Syndicate shall be sufficiently given to Holders of Series ___ Securities Outstanding on the record
date if in writing and mailed, first-class postage prepaid, to each Holder of Series ___ Securities
at his address as it appears in the Security Register on such record date, not more than 60 days
and not less than ten days prior to the date fixed for the meeting of the Syndicate.



     Notwithstanding
the above, notice shall be deemed to have been sufficiently given and
the meeting will be validly convened and held if all
Holders of Series ___ Securities are present at a meeting of the Syndicate and unanimously agree
that such meeting should be convened.



     Article IX. Quorum; Action. The Persons entitled to vote (as determined pursuant to Article
X) two-thirds in principal amount of the Outstanding Series ___ Securities shall constitute a
quorum for a meeting of the Syndicate, and if such a quorum is met by
Holders of Series ___ Securities Outstanding, either present
or duly represented, all matters set forth in
the relevant notice shall be voted on at such meeting and resolutions may be adopted and decisions may be taken only by the
affirmative vote of Holders present or duly represented at such meeting representing a majority of principal amount of the Series ___
Securities Outstanding on the applicable record date. In the absence of a quorum, the meeting
shall be adjourned for a period of not less than 30 days. Notice of the reconvening of an
adjourned meeting shall be given as provided in Article VIII of these Regulations. The Persons
entitled to vote a majority in principal amount of the Outstanding Series ___ Securities shall
constitute a quorum for any such reconvened meeting of the Syndicate, and if such a quorum is
present, all matters set forth in the relevant notice shall be voted on at such meeting



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and resolutions may be adopted and decisions
may be taken only by the affirmative vote of Holders present or duly represented at such meeting representing a majority of principal amount of
the Series ___ Securities
Outstanding on the applicable record date. Voting shall be by written ballot. Any resolution
duly adopted or decision duly taken in accordance with these Regulations at any meeting of the
Syndicate duly held in accordance with these Regulations shall be binding on all Holders of Series
___ Securities, whether or not such Holders were present or represented at such meeting.




     Notwithstanding the above, any resolution with respect to any request, demand, authorization,
direction, notice, consent or waiver which the Indenture or the Trust Indenture Act expressly
provides must be made, given or taken by the Holders of a specified percentage in principal amount
of the Outstanding Series ___ Securities, or by each Holder of Outstanding Series ___ Securities,
as the case may be, may be adopted only by the affirmative vote of the Holders of such specified
percentage in principal amount of the Outstanding Series ___ Securities, or each Holder of
Outstanding Series ___ Securities, as the case may be.



     Furthermore, notwithstanding any other provision of these Regulations, nothing in these
Regulations shall limit any Holder’s right to make any request, demand, authorization, direction,
notice, consent or waiver individually or collectively outside the Syndicate where the Indenture or
the Trust Indenture Act expressly provides that such request, demand, authorization, direction,
notice, consent or waiver may be made, given or taken individually or collectively outside the
Syndicate, as the case may be, by Holders of the Series ___ Securities.



     Article X. Persons Entitled to Vote at Meetings; Proxies. To be entitled to vote at any
meeting of the Syndicate, a Person shall be (a) a Holder of one or more Series ___ Securities
Outstanding on the record date, or (b) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Series ___ Securities by such Holder or Holders.
The fact and date of the execution by any Person of any such instrument in writing may be proved in
any reasonable manner which the Commissioner deems sufficient and in accordance with such
reasonable rules as the Commissioner may determine. At any meeting, each Holder of a Series ___
Security Outstanding as of the record date, or proxy therefor, shall be entitled to vote the
principal amount of such Series ___Security or Securities held or represented by him.



     The Commissioner shall fix a record date not more than five days prior to a meeting of the
Syndicate for the purpose of determining the Holders who are eligible to vote at such meeting and
the principal amount of Series ___ Securities Outstanding at such time. Only the Holders of Series
___ Securities Outstanding at the close of business on such record date, as shown in the Security
Register, shall be entitled to vote at such meeting and only those Series ___ Securities



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Outstanding at the close of business on such record date shall be deemed Outstanding for the
purposes of the quorum and voting thresholds set forth in Article IX.




     The only Persons who shall be entitled to be present or to speak at any meeting of Holders of
Series ___ Securities shall be the Persons entitled to vote at
such meeting, either acting on its own behalf or representing a
Holder by virtue of the relevant proxy, and their counsel, any representatives of the Commissioner and its counsel and any
representative of the Company and its counsel.



     Article XI. Chairmanship. The Commissioner or its representative shall act as the chairman
of the meeting, and such chairman shall appoint a secretary for the meeting. Such secretary need
not be a Holder of the Series ___ Securities.



     Article XII. Recording Action of Meetings. A record of the proceedings of each meeting of
the Syndicate, including any Act adopted thereat, shall be prepared by the secretary of the meeting
and such record shall be signed and verified and any certificate of
the resolutions adopted in such meeting of a Syndicate, issued by the
Commissioner, by the chairman and secretary of the meeting. A copy
of such record shall be delivered to the Company and another to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the meeting. Any record so
signed and verified shall be conclusive evidence of the matters therein stated.



Part V Expenses




     Article XIII. Reimbursement of Expenses. The Company will reimburse the Commissioner for
(i) its reasonable annual fee and expenses incurred in calling
and holding meetings of the Syndicate and (ii) any other
reasonable expenses it incurs in its management of the Syndicate and
the performance of its role and obligations as Commissioner, up to an annual maximum aggregate amount in respect of (i) and (ii) of not more than 2% of the aggregate interest accruing on the Outstanding Series ___ Securities in that year.



Part VI Amendment




     Article XIV. Amendment of Regulations. These Regulations may be amended by an Act of Holders
of Outstanding Series ___ Securities and as provided for
in Chapter VI and Article 300 of the Spanish Corporations
Law (Ley de Sociedades Anónimas) and Article 313 of the Reglamento Registro Mercantil, provided,
however, that no such amendment will have any force or effect if it would result in these
Regulations or any part hereof to conflict with any provision of the Indenture, the Trust Indenture
Act or the Spanish Corporations Law (Ley de Sociedades Anónimas). A copy of any such amendment
shall be delivered to the Company and another to the Trustee to be preserved by the Trustee, the
latter to have attached thereto the ballots voted in respect of such amendment. Any such amendment
signed and verified by the chairman and the secretary of the meeting



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at which it is adopted shall
be conclusive evidence of the adoption of such amendment.




Part VII Other




     Article XV.
By-laws of the Company. For those matters not covered in these Regulations or
under applicable law or regulation, the Indenture or any other documents governing the issuance of
the Series ___ Securities, reference should be made to the by-laws of the Company.




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