EXHIBIT 4.4

    


    


    PAYMENT
AND GUARANTEE AGREEMENT

    


    THIS
PAYMENT AND GUARANTEE AGREEMENT (the “Guarantee”), dated as of
September        , 2009, is executed and
delivered by Banco Santander S.A., a sociedad anónima incorporated under the
laws of the Kingdom of Spain (the “Guarantor”), and will be
executed and accepted by the Issuer (as defined below), as issuer of the
Series 11 Preferred Securities (as defined below) and each Registrar,
Transfer Agent and Paying Agent and Calculation Agent (as defined below) for the
benefit of the Holders (as defined below).

    


    WHEREAS,
the Guarantor desires to cause the Issuer to issue the Series 11 Preferred
Securities and the Guarantor desires to issue this Guarantee for the benefit of
the Holders, as provided herein; and

    


    WHEREAS,
the Guarantor desires hereby irrevocably and unconditionally to agree to pay to
the Holders the Guarantee Payments (as defined below) and to make certain other
payments on the terms and conditions set forth herein.

    


    NOW,
THEREFORE, in consideration of the purchase of Series 11 Preferred
Securities and the Guarantee by each Holder, which the Guarantor hereby agrees
shall benefit the Guarantor, the Guarantor executes and delivers this Guarantee
for the benefit of the Holders.

    


    


    ARTICLE
1

    


    As used
in this Guarantee, the following terms shall, unless the context otherwise
requires, have the following meanings:

    


    “Bank Shares” means the
ordinary shares of the Guarantor.

    


    “Calculation Agent” means The
Bank of New York Mellon in its role as calculation agent together with its
successors and assigns.

    


    “Distributable Profits” means,
for any fiscal year, the reported net profit (calculated in compliance with the
regulations of the Bank of Spain) of the Guarantor, determined after tax and
extraordinary items for such year, as derived from the non-consolidated audited
profit and loss account of the Guarantor, irrespective of whether shareholders’
meeting approval is still pending, prepared in accordance with generally
applicable accounting standards in Spain and Bank of Spain requirements and
guidelines, each as in effect at the time of such preparation. In the event that
on any Distribution payment date, the audit of the non-consolidated profit and
loss account has not been completed, the reference to be used to calculate the
Distributable Profits will be the balance of the unaudited

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    non-consolidated profit and loss account of the Guarantor as reported
in the financial statements delivered to the Bank of Spain in respect of
December 31st of the preceding fiscal year.

    


    “Distributions” means the
amount of accrued non-cumulative cash distributions payable per Series 11
Preferred Security in accordance with the terms thereof.

    


    “Distribution Period” means the
period from and including one Distribution payment date (or, in the case of the
first Distribution Period, the issuance date) to but excluding the next
Distribution payment date.

    


    “Group” means the Guarantor
together with its consolidated subsidiaries.

    


    “Guarantee Payments” means
(without duplication) (i) any accrued but unpaid Distributions for the most
recent Distribution Period; (ii) the Redemption Price payable with respect to
any Series 11 Preferred Securities redeemed by the Issuer thereof; and
(iii) the Liquidation Distributions due on the Liquidation Date, in each case
subject to the limitations contained in Section 2.01 hereof.

    


    “Holder” shall mean any holder
from time to time of any Series 11 Preferred Securities of the Issuer;
provided, however, that in determining whether the Holders of the requisite
percentage of the Series 11 Preferred Securities have given any request,
notice, consent or waiver hereunder, Holder shall not include the Guarantor or
any Subsidiary (as defined below) of the Guarantor (including the
Issuer).

    


    “Issuer” shall mean Santander
Finance Preferred, S.A. Unipersonal, a sociedad anónima incorporated
under the laws of the Kingdom of Spain.

    


    “Liquidation Date” shall mean
the date of final distribution of the assets of the Issuer in the case of a
winding up of the Issuer (whether voluntary or involuntary).

    


    “Liquidation Distributions”
means, with respect to each of the Series 11 Preferred Securities, the
liquidation preference per preferred security as provided by the terms thereof,
plus accrued and unpaid Distributions, if any, to the Liquidation
Date.

    


    “Preferred Securities” means
(as the case may be) any preferred securities (participaciones preferentes)
issued under Spanish Law 13/1985, or other securities or instruments equivalent
to preferred securities issued by the Issuer, or by any other Subsidiary of the
Guarantor, which are entitled to the benefit of a guarantee ranking pari passu with the
Guarantor’s obligations under this Guarantee, or any such securities or
instruments issued by the Guarantor and ranking pari passu with the
Guarantor’s obligations under this Guarantee.

    


    


    
      
        
        

      

      
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    “Redemption
Price” shall mean with respect to each Series 11 Preferred Security the
amount required under the terms thereof to be paid to a Holder upon the
redemption of such Series 11 Preferred Security, including any accrued and
unpaid Distributions, if any, to the redemption date.

    


    “Registrar, Transfer Agent and Paying
Agent” means The Bank of New York Mellon in its role as registrar,
transfer agent and paying agent together with its successors and
assigns.

    


    “Series 11 Preferred
Securities” means the Fixed-to-Floating Non- Cumulative Guaranteed
Series 11 Preferred Securities (par value $1,000 per security) of the
Issuer, the Holders of which are entitled to the benefits of this Guarantee as
evidenced by the execution of an acceptance in the form attached
hereto.

    


    “Subsidiary” of the Guarantor
means any entity in which the majority of the voting stock is owned directly or
indirectly (through a Subsidiary) by the Guarantor.

    


    


    ARTICLE
2

    


    Section
2.01(a) Subject to the limitations contained in the following paragraphs of this
Section 2.01, the Guarantor irrevocably and unconditionally agrees to pay in
full to the Holders, the Guarantee Payments (except to the extent paid by the
Issuer), as and when due, regardless of any defense, right of set-off or
counterclaim which the Issuer may have or assert. This Guarantee is continuing,
irrevocable, unconditional and absolute.

    


    (b)
Notwithstanding Section 2.01(a), the Guarantor shall not be obligated to make
any Guarantee Payment in respect of Distributions (including accrued and unpaid
Distributions relating to the Redemption Price or Liquidation Distributions) on
any Series 11 Preferred Securities if the aggregate of such Distribution,
together with (a) any other distributions previously paid during the
then-current fiscal year (defined as the accounting year of the Guarantor) and
(b) any distributions proposed to be paid during the then-current Distribution
Period, in each case on or in respect of Preferred Securities (including the
Series 11 Preferred Securities) would exceed the Distributable Profits of
the immediately preceding fiscal year. Moreover, even if Distributable Profits
are sufficient, the Guarantor shall not be obligated to make any payments
hereunder to the extent that, in accordance with applicable Spanish banking
regulations relating to capital adequacy requirements affecting financial
institutions which fail to meet their required capital ratios on a parent
company only or on a consolidated basis, the Guarantor would be prevented at
such time from making payments on Bank Shares or on Preferred Securities issued
by the Guarantor.

    


    


    
      
        
        

      

      
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    (c) Notwithstanding Section 2.01(a), if, at the time that any Liquidation
Distributions are to be paid pursuant to this Guarantee in respect of each of
the Series 11 Preferred Securities, proceedings are pending or have been
commenced for the voluntary or involuntary liquidation, dissolution or winding
up of the Guarantor or for a reduction in the Guarantor’s shareholders’ equity
pursuant to Article 169 of the Spanish Corporations Act (Ley de Sociedades Anónimas),
then payments for such Liquidation Distributions and any liquidation
distributions payable with respect to all other Preferred Securities, shall not
exceed the liquidation distributions that would have been payable from the
assets of the Guarantor (after payment in full in accordance with Spanish law of
all creditors of the Guarantor, including holders of its subordinated debt, but
excluding holders of any guarantee or other contractual right expressly ranking
equally with or junior to this Guarantee) had all the Preferred Securities been
issued by the Guarantor and ranked (i) junior to all liabilities of the
Guarantor, (ii) pari
passu with the most senior Preferred Securities which could have been
issued by the Guarantor (if any) and (iii) senior to the Bank Shares. In the
event of any such liquidation or winding-up of the Guarantor or a reduction in
its shareholders’ equity pursuant to Article 169 of the Spanish Corporations
Act, the Guarantor will exercise its voting rights in order to wind-up the
Issuer, subject to the prior consent of the Bank of Spain. In any such case,
Holders of Series 11 Preferred Securities right to receive liquidation
distributions will be limited as described above.

    


    (d) If the
payments described in Section 2.01(a) are not payable in full due to the
limitations referred to in Section 2.01(b) or (c), such amounts shall be made
pro rata among the
holders of Preferred Securities in the proportion that the amount available for
payment bears to the full amount that would have been payable, had there been no
such limitation.

    


    Section
2.02. The Guarantor
hereby waives notice of acceptance of this Guarantee and of any liability to
which it applies or may apply, presentment, demand for payment, protest, notice
of nonpayment, notice of dishonor, notice of redemption and all other notices
and demands.

    


    Section
2.03. The obligations,
covenants, agreements and duties of the Guarantor under this Guarantee shall in
no way be affected or impaired by reason of the occurrence from time to time of
any of the following:

    


    (a) the
release or waiver, by operation of law or otherwise, of the performance or
observance by the Issuer of any express or implied agreement, covenant, term or
condition relating to the Series 11 Preferred Securities to be performed or
observed by the Issuer;

    


    (b) the
extension of time for the payment by the Issuer of all or any portion of the
Distributions, Redemption Price, Liquidation Distributions or any other sums
payable under the terms of the Series 11 Preferred Securities or the
extension of time for the performance of any other obligation under, arising out
of, or in connection with, such Series 11 Preferred
Securities;

    


    
      
        
        

      

      
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    (c) any failure, omission, delay or lack of diligence on the part of
Holders to enforce, assert or exercise any right, privilege, power or remedy
conferred on the Holders pursuant to the terms of the Series 11 Preferred
Securities, or any action on the part of the Issuer granting indulgence or
extension of any kind;

    


    (d) the
voluntary or involuntary liquidation, dissolution, sale of any collateral,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, arrangement, composition or readjustment of debt of, or other
similar proceedings affecting, the Issuer or any of the assets of the
Issuer;

    


    
      (e)  any
invalidity of, or defect or deficiency in, the Series 11 Preferred
Securities;
or

    

    


    (f) the
settlement or compromise of any obligation guaranteed hereby or hereby
incurred.

    


    There
shall be no obligation of the Holders to give notice to, or obtain consent of,
the Guarantor with respect to the happening of any of the
foregoing.

    


    Section
2.04. This is a
guarantee of payment and not of collection. A Holder may enforce this Guarantee
directly against the Guarantor, and the Guarantor waives any right or remedy to
require that any action be brought against the Issuer or any other person or
entity before proceeding against the Guarantor. Subject to Section 2.05, all
waivers herein contained shall be without prejudice to the Holders’ right at the
Holders’ option to proceed against the Issuer, whether by separate action or by
joinder. The Guarantor agrees that this Guarantee shall not be discharged except
by payment of the Guarantee Payments in full and by complete performance of all
obligations of the Guarantor under this Guarantee.

    


    Section
2.05. The Guarantor
shall be subrogated to all rights of the Holders against the Issuer in respect
of any amounts paid to such Holders by the Guarantor under this Guarantee and
shall have the right to waive payment of any amount of Distributions in respect
of which payment has been made to the Holders by the Guarantor pursuant to
Section 2.01; provided, however that the Guarantor shall not (except to the
extent required by mandatory provisions of law) exercise any rights which it may
acquire by way of subrogation or any indemnity, reimbursement or other
agreement, in all cases as a result of a payment under this Guarantee, if, at
the time of any such payment, any amounts are due and unpaid under this
Guarantee. If any amount on the Series 11 Preferred Securities is paid to
the Guarantor in violation of the preceding sentence, the Guarantor agrees to
pay such amount to the Holders.

    


    Section
2.06. Subject to
applicable law and regulations and the requirements of any stock exchange on
which the Series 11 Preferred Securities may at the time be listed, the
Guarantor, at its sole option, shall be entitled to

    


    
      
        
        

      

      
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    purchase Series 11 Preferred Securities from any Holder, as a
whole but not in part, to the extent that the Issuer may purchase any
Series 11 Preferred Securities.

    


    Section
2.07. The Guarantor
acknowledges that its obligations hereunder are several and independent of the
obligations of the Issuer with respect to the Preferred Securities and that the
Guarantor shall be liable as principal and sole debtor hereunder to make
Guarantee Payments pursuant to the terms of this Guarantee notwithstanding the
occurrence of any event referred to in subsections (a) through (f), inclusive of
Section 2.03 hereof.

    


    Section
2.08. The Guarantor
represents and warrants that, subject to applicable laws, its obligations
hereunder rank and will at all times rank (a) junior to all liabilities of the
Guarantor, including subordinated liabilities (other than any guarantee or
contractual right expressed to rank equally with or junior to this Guarantee),
(b) pari passu with the
most senior Preferred Securities which could have been issued by the Guarantor,
if any, and any obligations of the Guarantor under any guarantee issued by it
relating to any Preferred Securities issued by any Subsidiary and (c) senior to
the Bank Shares.

    


    Each
Holder by its acquisition of Series 11 Preferred Securities will be deemed
to waive all other priorities that Spanish law or regulations may confer at any
time including those arising under articles 92 and 158 of Law 22/2003 of 9 July
2003 (Ley Concursal),
if any.

    


    


    ARTICLE
3

    


    Section
3.01. The Guarantor
agrees not to issue any preferred securities or other securities equivalent to
preferred securities ranking senior to its obligations hereunder and agrees not
to guarantee payments on preferred securities of any direct or indirect
Subsidiary of the Guarantor if that guarantee would rank senior to this
Guarantee (including, without limitation, any guarantee that would provide a
priority of payment with respect to Distributable Profits) unless this Guarantee
is amended to give the Holders of Series 11 Preferred Securities such
rights and entitlements as are contained in or attached to such preferred
securities or securities equivalent to preferred securities or such other
guarantee, so that this Guarantee ranks equally with, and contains substantially
equivalent rights of priority on payment of Distributable Profits if any, as
such preferred securities or securities equivalent to preferred securities or
other guarantee.

    


    Section
3.02. The Guarantor
agrees that if any amount required to be paid pursuant to this Guarantee in
respect of a Distribution payable during the most recent Distribution Period has
not been paid, whether by reason of the limitations of Section 2.01(b) hereof or
otherwise, then (i) no dividends (other than in the form of the Bank Shares or
other shares of the Guarantor ranking junior to obligations of the Guarantor
under this Guarantee) will be declared or paid or set apart for payment, or (ii)
other distribution made, upon the Bank Shares or any

    


    
      
        
        

      

      
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    other shares of the Guarantor ranking junior to the obligations of
the Guarantor under this Guarantee, and (iii) the Guarantor will not redeem,
repurchase or otherwise acquire for any consideration (including any amounts to
be paid or made available for a sinking fund for redemption of any Bank Shares),
Bank Shares or any other shares of the Guarantor ranking junior to the
obligations of the Guarantor under this Guarantee (except by conversion into or
exchange for shares of the Guarantor ranking junior to the obligations of the
Guarantor under this Guarantee), until such time as either the Issuer or the
Guarantor, pursuant to this Guarantee, shall have resumed the payment of, or set
aside payment with respect to, full Distributions on the Series 11
Preferred Securities for four consecutive Distribution Periods.

    


    Section
3.03. The Guarantor
further agrees to maintain ownership of 100% of the ordinary shares of the
Issuer, directly or indirectly, as long as any Series 11 Preferred
Securities are outstanding and not to permit or take any action to cause the
liquidation, dissolution or winding-up of the Issuer except in the event of the
liquidation, dissolution or winding-up of the Bank or of a reduction in the
Bank’s shareholders’ equity pursuant to Article 169 of the Spanish Corporations
Act (Ley de Sociedades
Anónimas).

    


    


    ARTICLE
4

    


    This
Guarantee shall terminate and be of no further force and effect upon payment in
full of the Redemption Price of all outstanding Series 11 Preferred
Securities, upon purchase and cancellation of all Series 11 Preferred
Securities, or upon payment of the Liquidation Distributions and liquidation of
the Issuer; provided, however, that this Guarantee shall continue to be
effective or shall be reinstated (as the case may be) if at any time a Holder of
a Series 11 Preferred Securities is required to restore payment of any sums
paid on such Series 11 Preferred Securities or under this
Guarantee.

    


    


    ARTICLE
5

    


    Section
5.01. All guarantees
and agreements contained in this Guarantee shall bind the successors, assigns,
receivers, trustees and representatives of the Guarantor and shall inure to the
benefit of the Holders. The Guarantor shall not assign its obligations hereunder
without the prior approval of the Holders of not less than two-thirds in
liquidation preference of the outstanding Series 11 Preferred Securities or
by resolution adopted at a special general meeting of holders (Junta General Especial de
Partícipes) and approved by Holders of at least two-thirds of the
liquidation preference of the outstanding Series 11 Preferred Securities;
provided, however, that the foregoing shall not preclude the Guarantor from
merging or consolidating with, or transferring or otherwise assigning all or
substantially all of its assets to, a banking organization or any

    


    
      
        
        

      

      
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    other entity permitted by applicable laws without obtaining any
approval of such Holders.

    


    Section
5.02. Except for those
changes (a) required by Section 3.01 hereof, (b) which do not adversely affect
the rights of Holders or (c) necessary or desirable to give effect to any one or
more transactions referred to in the proviso to Section 5.01 (in any of which
cases no vote will be required), this Guarantee shall be changed only by
agreement in writing signed by the Guarantor with the prior approval of the
Holders of not less than two-thirds in liquidation preference of the
Series 11 Preferred Securities, or by a resolution adopted at a special
general meeting of holders (Junta General Especial de
Partícipes) and approved by Holders of not less than two-thirds in
liquidation preference of the outstanding Series 11 Preferred
Securities.

    


    Section
5.03. Any notice,
request or other communication required or permitted to be given hereunder to
the Guarantor shall be given in writing by delivering the same against receipt
therefor or by telex or facsimile transmission (confirmed by mail) addressed to
the Guarantor, as follows (and if so given, shall be deemed given upon receipt
of an answer back, if sent by telex, or upon mailing of confirmation, if given
by facsimile transmission):

    


    Banco
Santander, S.A. 

    Ciudad
Grupo Santander 

    Avenida
de Cantabria 

    28660
Boadilla del Monte 

    Madrid,
Spain 

    Facsimile:
+34 91-257-14-73

    


    Attention:  Emisiones
Corporativas

    


    The
address of the Guarantor may be changed at any time and from time to time and
shall be the most recent such address furnished in writing by the Guarantor to
the Registrar, Transfer Agent and Paying Agent.

    


    Any
notice, request or other communication required or permitted to be given
hereunder to the Holders shall be given by the Guarantor in the same manner as
notices sent by the Issuer to Holders of the Series 11 Preferred
Securities.

    


    Section
5.04. This Guarantee is
solely for the benefit of the Holders and is not separately transferable from
the Series 11 Preferred Securities. The Issuer may include on the share
certificates representing Series 11 Preferred Securities a legend in
substantially the following form:

    


    THE
HOLDER OF THIS SECURITY IS ENTITLED TO THE BENEFITS, AND IS SUBJECT TO THE
LIMITATIONS, OF THE PAYMENT AND GUARANTEE AGREEMENT, DATED AS
OF                       
   , 2009
(THE

    


    
      
        
        

      

      
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    “GUARANTEE”), EXECUTED AND DELIVERED BY BANCO SANTANDER, S.A. (THE
“GUARANTOR”) FOR THE BENEFIT OF THE HOLDERS FROM TIME TO TIME OF THIS SECURITY.
COPIES OF THE GUARANTEE ARE AVAILABLE UPON WRITTEN REQUEST TO THE SECRETARY OF
SANTANDER FINANCE PREFERRED, S.A. UNIPERSONAL (THE “ISSUER”).

    


    Section
5.05. The Guarantor
will furnish any Holder, upon request of such Holder, with a copy of its annual
report, and any interim reports, made generally available by the Guarantor to
holders of the Bank Shares.

    


    Section
5.06. This Guarantee
shall be governed by, and construed in accordance with, the laws of the State of
New York except for matters related to the ranking of this Guarantee, which
shall be governed by Spanish Law.

    


    Section
5.07. The Guarantor
agrees that any legal suit, action or proceeding brought by any Holder arising
out of or based upon this Guarantee may be instituted in any state or federal
court in the City and State of New York, and waives any objection that it may
now or hereafter have to the laying of venue of any such proceeding, and
irrevocably submits to the non-exclusive jurisdiction of such courts in any such
suit, action or proceeding. The Guarantor has appointed its New York Branch,
located at 45 East 53rd Street, New York, New York 10022, as its authorized
agent (the “Authorized
Agent”) upon which process may be served in any action based on this
Guarantee that may be instituted in any state or federal court in the City and
State of New York by any Holder, and expressly accepts the jurisdiction of any
such court, but only in respect of claims arising out of or based upon this
Guarantee. The Guarantor represents and warrants that its New York Branch has
agreed to act as said agent for service of process and agrees to take any and
all action, including the filing of any and all documentation and instruments,
that may be necessary to continue such appointment in full force and effect as
aforesaid. If said agent shall cease to act in such capacity, the Guarantor will
appoint without delay another such agent. Notwithstanding the foregoing, any
action based on this Guarantee may be instituted by any Holder in any competent
court in Spain.

    


    


    


    


    
      
        
        

      

      
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    THIS GUARANTEE is executed as of the day and year first above
written.

    
 

    
      
        	 
    	
                
                  BANCO
      SANTANDER, S.A.

                

              
	 
    	 
    	 
    	 
    	 
    
	 
    	 
    	 
    	 
    	 
    
	 
    	
                By:

              	 
    	 
    
	 
    	 
    	
                Name:

              	
                 

              	 
    
	 
    	 
    	
                Title:

              	
                 

              	 
    


      

       

      
        


        
          	 
    	
                  By:

                	 
    	 
    
	 
    	 
    	
                  Name:

                	
                   

                	 
    
	 
    	 
    	
                  Title:

                	
                  
                     

                  

                	 
    


        

         

      

    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
 

    The undersigned hereby agrees that the Series 11 Preferred
Securities are entitled to the benefits of this Payment and Guarantee Agreement
dated as of September  
, 2009.

    


    


    


    


    
      	 
    	
              SANTANDER
      FINANCE PREFERRED,

              S.A.
      UNIPERSONAL

              (Issuer)

            
	 
    	 
    	 
    	 
    	 
    
	 
    	 
    	 
    	 
    	 
    
	 
    	
              By:

            	 
    	 
    
	 
    	 
    	
              Name:

            	
               

            	 
    
	 
    	 
    	
              Title:

            	
              Authorized
      Signatory

            	 
    


    

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    
 

    Dated as of:  September      ,
2009

    


    The
undersigned hereby agrees to act as Registrar, Transfer and Paying Agent and
Calculation Agent with respect to the Series 11 Preferred Securities and is
not otherwise a party to the Payment and Guarantee Agreement and shall have no
duties other than those of Registrar, Transfer and Paying Agent and Calculation
Agent with respect to the Series 11 Preferred Securities.

    


    


    


    
      	 
    	
              THE
      BANK OF NEW YORK MELLON as Registrar, Transfer and Paying Agent and
      Calculation Agent

               

            
	 
    	 
    	 
    	 
    	 
    
	 
    	 
    	 
    	 
    	 
    
	 
    	
              By:

            	 
    	 
    
	 
    	 
    	
              Name:

            	 
    	 
    
	 
    	 
    	
              Title:

            	 
    	 
    


    

    


    This
acceptance may be executed in counterparts