Banco Bilbao Vizcaya Argentaria, S.A 6-K, filed Sep 3, 2026
Banco Bilbao Vizcaya Argentaria, S.A. (BBVA)
About this 6-K
Banco Bilbao Vizcaya Argentaria, S.A filed this 6-K on September 3, 2026.
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 6-K
REPORT OF FOREIGN PRIVATE ISSUER PURSUANT TO RULE 13a-16 OR 15d-16
UNDER THE SECURITIES EXCHANGE ACT OF 1934
For the month of September, 2026
Commission file number: 1-10110
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.
(Exact name of Registrant as specified in its charter)
BANK BILBAO VIZCAYA ARGENTARIA, S.A.
(Translation of Registrant’s name into English)
Calle Azul, 4
28050 Madrid
Spain
(Address of principal executive offices)
Indicate by check mark whether the registrant files or will file annual reports under cover of Form 20-F or Form 40-F:
| Form 20-F x | Form 40-F ¨ |
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.
Explanatory Note
This Report on Form 6-K contains, as exhibits, certain documents listed below relating to the issuance and sale by Banco Bilbao Vizcaya Argentaria, S.A. (the “Issuer”) of U.S.$1,000,000,000 aggregate principal amount of 4.977% Senior Non-Preferred Fixed Rate Notes due 2029 (the “2029 Fixed Rate Notes”), U.S.$1,000,000,000 aggregate principal amount of 5.244% Senior Non-Preferred Fixed Rate Notes due 2031 (the “2031 Fixed Rate Notes”) and U.S.$300,000,000 aggregate principal amount of Senior Non-Preferred Floating Rate Notes due 2029 (the “2029 Floating Rate Notes” and, together with the 2029 Fixed Rate Notes and the 2031 Fixed Rate Notes, the “Notes”). This Report on Form 6-K and the Exhibits hereto are hereby incorporated by reference into the Registration Statement on Form F-3 (No. 333-289121) filed with the Securities and Exchange Commission.
Exhibit Index
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
| BANCO BILBAO VIZCAYA ARGENTARIA, S.A. | ||
| By: | /s/ Ignacio Echevarría Soriano | |
| Name: | Ignacio Echevarría Soriano | |
| Title: | Authorized Representative | |
Date: September 3, 2026
Exhibit 1.1
Pricing Agreement
August 25, 2026
BBVA Securities Inc.
Two Manhattan West
375 Ninth Avenue, 9th Floor
New York, New York 10001
United States of America
BMO Capital Markets Corp.
151 West 42nd Street
New York, New York 10036
United States of America
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
United States of America
RBC Capital Markets, LLC
Brookfield Place
200 Vesey Street, 8th Floor
New York, New York 10281
United States of America
SG Americas Securities, LLC
245 Park Avenue
New York, New York 10167
United States of America
Wells Fargo Securities, LLC
550 South Tryon Street, 5th floor
Charlotte, North Carolina 28202
United States of America
As Representatives of the several
Underwriters named in Schedule I hereto,
Ladies and Gentlemen:
Banco Bilbao Vizcaya Argentaria, S.A. (the “Company”), a sociedad anónima incorporated under the laws of the Kingdom of Spain (“Spain”), proposes, subject to the terms and conditions stated herein and in the Underwriting Agreement, a copy of which is attached hereto (the “Underwriting Agreement”), to issue and sell to the underwriters named in Schedule I hereto (the “Underwriters”) (other than BBVA Securities Inc.) the 4.977% Senior Non-Preferred Fixed Rate Notes due 2029, the 5.244% Senior Non-Preferred Fixed Rate Notes due 2031 and Senior Non-Preferred Floating Rate Notes due 2029 specified in Schedule II hereto (together, the “Designated Securities”).
1
Each of the provisions of the Underwriting Agreement is incorporated herein by reference in its entirety, and shall be deemed to be a part of this Agreement to the same extent as if such provisions had been set forth in full herein; and each of the representations and warranties set forth therein shall be deemed to have been made at and as of the Applicable Time (as set forth in Schedule II hereto), except that each representation and warranty which refers to the Prospectus in Section 2 of the Underwriting Agreement shall be deemed to be a representation or warranty as of the date of the Prospectus (as defined in the Underwriting Agreement), and also a representation and warranty as of the Applicable Time in relation to the Prospectus as amended or supplemented relating to the Designated Securities which are the subject of this Pricing Agreement. Each reference to the Underwriters purchasing Designated Securities in the Underwriting Agreement so incorporated by reference shall be deemed, with respect to BBVA Securities Inc., to instead provide for procuring eligible purchasers on a reasonable best efforts basis. Each reference to the Company issuing and selling Designated Securities to the Underwriters shall be deemed to refer to the Underwriters other than BBVA Securities Inc. Each reference to the Representatives or to the Underwriters in the provisions of the Underwriting Agreement so incorporated by reference shall be deemed to refer to you. Unless otherwise defined herein, terms defined in the Underwriting Agreement are used herein as therein defined. The Representatives designated to act on behalf of each of the Underwriters pursuant to Section 13 of the Underwriting Agreement and their addresses are set forth in Schedule II hereto.
A supplement to the Prospectus relating to the Designated Securities, in the form heretofore delivered to you (the “Prospectus Supplement”), is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and in the Underwriting Agreement incorporated herein by reference, the Company agrees that it will issue and sell to each of the Underwriters (other than BBVA Securities Inc.), and each of the Underwriters (other than BBVA Securities Inc.) agrees, severally and not jointly, to purchase from the Company, at the time and place and at the purchase price to the Underwriters set forth in Schedule II hereto, (i) the principal amount of each series of Designated Securities set forth opposite the name of each such Underwriter in Schedule I hereto and (ii) a pro rata portion of the principal amount of each series of Designated Securities set forth opposite the name of BBVA Securities Inc. in Schedule I hereto which have not been purchased by purchasers procured by BBVA Securities Inc. BBVA Securities Inc. hereby covenants and agrees to use its reasonable best efforts to procure eligible purchasers for the principal amount of each series of Designated Securities set forth opposite its name in Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and return to us one counterpart hereof, and upon acceptance hereof by you this letter and such acceptance hereof, including the provisions of the Underwriting Agreement incorporated herein by reference, shall constitute a binding agreement between the several Underwriters on the one hand and the Company on the other.
It is understood that your acceptance of this letter on behalf of each of the Underwriters is or will be pursuant to the authority set forth in an Agreement among Underwriters.
[signature pages follow]
2
| Very truly yours, | ||
| BANCO BILBAO VIZCAYA ARGENTARIA, S.A. | ||
| By: | /s/ Ignacio Echevarría Soriano | |
| Name: Ignacio Echevarría Soriano | ||
| Title: Head of BBVA Wholesale Funding & Capital Operations | ||
| Accepted as of the date hereof: | ||
| BBVA SecuRITIES INC. | ||
| By: | /s/ Scott D. Whitney | |
| Name:Scott D. Whitney | ||
| Title: Managing Director | ||
| BMO Capital Markets Corp. | ||
| By: | /s/ Zain Leela | |
| Name:Zain Leela | ||
| Title: Managing Director, Head of US FIG DCM | ||
| CITIGROUP GLOBAL MARKETS INC. | ||
| By: | /s/ Adam D. Bordner | |
| Name:Adam D. Bordner | ||
| Title: Managing Director | ||
| RBC Capital Markets, LLC | ||
| By: | /s/ Jay Anderson | |
| Name:Jay Anderson | ||
| Title: Managing Director & Head of US FIG DCM | ||
[Signature Page to Underwriting Agreement]
| SG Americas Securities, LLC | ||
| By: | /s/ Sabina R. Ceddia | |
| Name:Sabina R. Ceddia | ||
| Title: Director | ||
| Wells Fargo Securities, LLC | ||
| By:/ | s/ Carolyn Hurley | |
| Name:Carolyn Hurley | ||
| Title: Managing Director | ||
On behalf of each of the Underwriters
[Signature Page to Underwriting Agreement]
SCHEDULE I
| Underwriter | Principal Amount of 4.977% Senior Non- Preferred Fixed Rate Notes due 2029 to be Purchased | Principal Amount of 5.244% Senior Non- Preferred Fixed Rate Notes due 2031 to be Purchased | Principal Amount of Senior Non- Preferred Floating Rate Notes due 2029 to be Purchased | |||||||||
| BBVA Securities Inc.* | $ | 161,600,000 | $ | 161,600,000 | $ | 48,400,000 | ||||||
| BMO Capital Markets Corp. | $ | 161,600,000 | $ | 161,600,000 | $ | 48,400,000 | ||||||
| Citigroup Global Markets Inc. | $ | 161,600,000 | $ | 161,600,000 | $ | 48,400,000 | ||||||
| RBC Capital Markets, LLC | $ | 161,600,000 | $ | 161,600,000 | $ | 48,400,000 | ||||||
| SG Americas Securities, LLC | $ | 161,600,000 | $ | 161,600,000 | $ | 48,400,000 | ||||||
| Wells Fargo Securities, LLC | $ | 161,600,000 | $ | 161,600,000 | $ | 48,400,000 | ||||||
| Bankinter, S.A. | $ | 7,600,000 | $ | 7,600,000 | $ | 2,400,000 | ||||||
| Nykredit Bank A/S | $ | 7,600,000 | $ | 7,600,000 | $ | 2,400,000 | ||||||
| Rabo Securities USA, Inc. | $ | 7,600,000 | $ | 7,600,000 | $ | 2,400,000 | ||||||
| Unicaja Banco SA | $ | 7,600,000 | $ | 7,600,000 | $ | 2,400,000 | ||||||
| Total | $ | 1,000,000,000 | $ | 1,000,000,000 | $ | 300,000,000 | ||||||
* BBVA Securities Inc. has agreed to use its reasonable best efforts to procure purchasers for the principal amount of each series of Designated Securities set forth opposite its name above.
Schedule I -1
SCHEDULE II
Issuer:
Banco Bilbao Vizcaya Argentaria, S.A.
Titles of Designated Securities:
4.977% Senior Non-Preferred Fixed Rate Notes due 2029
5.244% Senior Non-Preferred Fixed Rate Notes due 2031
Senior Non-Preferred Floating Rate Notes due 2029
Specific Terms of Designated Securities:
See Appendix A for a copy of the Final Term Sheet relating to the Designated Securities
Price to Public:
| 4.977% Senior Non-Preferred Fixed Rate Notes due 2029: | 100.000% plus accrued interest, if any, from September 3, 2026 |
| 5.244% Senior Non-Preferred Fixed Rate Notes due 2031: | 100.000% plus accrued interest, if any, from September 3, 2026 |
| Senior Non-Preferred Floating Rate Notes due 2029: | 100.000% plus accrued interest, if any, from September 3, 2026 |
Purchase Price by Underwriters:
| 4.977% Senior Non-Preferred Fixed Rate Notes due 2029: | 99.800% |
| 5.244% Senior Non-Preferred Fixed Rate Notes due 2031: | 99.700% |
| Senior Non-Preferred Floating Rate Notes due 2029: | 99.800% |
Principal Amount:
| 4.977% Senior Non-Preferred Fixed Rate Notes due 2029: | $1,000,000,000 |
| 5.244% Senior Non-Preferred Fixed Rate Notes due 2031: | $1,000,000,000 |
| Senior Non-Preferred Floating Rate Notes due 2029: | $300,000,000 |
Schedule II -1
Minimum Initial Purchase Amount:
| 4.977% Senior Non-Preferred Fixed Rate Notes due 2029: | $200,000 |
| 5.244% Senior Non-Preferred Fixed Rate Notes due 2031: | $200,000 |
| Senior Non-Preferred Floating Rate Notes due 2029: | $200,000 |
Denominations:
| 4.977% Senior Non-Preferred Fixed Rate Notes due 2029: | A minimum of $200,000 with increments of $200,000 thereafter |
| 5.244% Senior Non-Preferred Fixed Rate Notes due 2031: | A minimum of $200,000 with increments of $200,000 thereafter |
| Senior Non-Preferred Floating Rate Notes due 2029: | A minimum of $200,000 with increments of $200,000 thereafter |
Specified Funds for Payment of Purchase Price:
Federal (same-day) funds
Applicable Time:
5:00 p.m. New York time August 25, 2026
Time of Delivery:
11:00 a.m. New York time September 3, 2026
Closing Location for Delivery of Designated Securities:
New York, New York
Additional Closing Conditions:
| N/A |
Additional Opinions:
Spanish counsel for the Underwriters shall furnish to the Representatives such written opinion or opinions as are specified in Section 8(b) of the Underwriting Agreement
Schedule II -2
Names and Addresses of Underwriters, Including the Representatives:
BBVA Securities Inc.
Two Manhattan West
375 Ninth Avenue, 9th Floor
New York, New York 10001
United States of America
Email: ny.dcmoriginationus.group@bbva.com
BMO Capital Markets Corp.
151 West 42nd St
New York, New York 10036
United States of America
Attention: Legal Department with a copy to Debt Capital Markets
Citigroup Global Markets Inc.
388 Greenwich Street
New York, New York 10013
United States of America
Facsimile: (646) 291-1469
Attention: General Counsel
RBC Capital Markets, LLC
Brookfield Place
200 Vesey Street, 8th Floor
New York, New York 10281
United States of America
Attention: DCM Transaction Management/Scott Primrose
Telephone: (212) 618-7706
Email: TMGUS@rbccm.com
SG Americas Securities, LLC
245 Park Avenue
New York, New York 10167
United States of America
Attention: High Grade Syndicate Desk
Email: list.us-glfi-syn-cap@sgcib.com
Wells Fargo Securities, LLC
550 South Tryon Street, 5th floor
Charlotte, North Carolina 28202
United States of America
Attention: Transaction Management
E-mail: tmgcapitalmarkets@wellsfargo.com
Listing:
New York Stock Exchange
Schedule II -3
Payment of Expenses by the Company and by the Underwriters:
Each Underwriter (other than BBVA Securities Inc.) shall, at the Time of Delivery, pay severally, on a pro rata basis (in the proportion that the aggregate principal amount of the Designated Securities set forth opposite the name of such Underwriter in Schedule I hereto bears to the aggregate principal amount of the Designated Securities set forth opposite all of the names of the Underwriters (other than BBVA Securities Inc.) in Schedule I hereto), the cost of the comfort letters provided by Ernst & Young, S.L., dated as of the Applicable Time and as of the Time of Delivery.
Selling Restrictions:
The Designated Securities are complex financial instruments and are not a suitable or appropriate investment for all investors. In particular, the Designated Securities are not intended to be sold and shall not be sold to retail investors in any jurisdiction, including the United States.
In the United States, the Designated Securities are intended to be sold only to institutional investors.
Prohibition of Sales to European Economic Area (the “EEA”) Retail Investors
The Designated Securities may not be offered, sold or otherwise made available to any retail investor in the EEA. For the purposes of this provision, the expression “retail investor” means a person who is one (or more) of the following:
| (a) | a retail client as defined in point (11) of Article 4(1) of Directive 2014/65/EU, as amended (“MiFID II”); |
| (b) | a customer within the meaning of Directive (EU) 2016/97, as amended, where that customer would not qualify as a professional client as defined in point (10) of Article 4(1) of MiFID II; or |
| (c) | not a qualified investor as defined in Regulation (EU) 2017/1129, as amended (the “Prospectus Regulation”). |
For the purposes of this provision, an “offer” includes the communication in any form and by any means of sufficient information on the terms of the offer and the Designated Securities to be offered so as to enable an investor to decide to purchase or subscribe for the Designated Securities.
Restrictions on Acquisition of Designated Securities by Spanish Residents
The Designated Securities shall not be offered, distributed or sold in Spain in the primary market. However, the Designated Securities may be sold to Spanish resident investors in circumstances that satisfy the requirements set forth in the ruling 1500/04 of the Directorate General for Taxation (Dirección General de Tributos) of July 27, 2004.
Notwithstanding this, the Designated Securities shall not be offered, sold or otherwise made available at any time to any retail investor (as defined above) in Spain and any sales of the Designated Securities in Spain according to the previous paragraph shall be made only to professional clients (clientes profesionales) as defined in Article 194 of Law 6/2023, of March 17, on Securities Markets and Investment Services (Ley 6/2023, de 17 de marzo, de los Mercados de Valores y de los Servicios de Inversión) (the “LMV”) or eligible counterparties (contrapartes elegibles) as defined in Article 196 of the LMV and as further limited by the second paragraph of Article 192 of the LMV.
Schedule II -4
No publicity of any kind as to the Designated Securities shall be made in Spain.
Prohibition of Sales to United Kingdom Retail Investors
The Designated Securities may not be offered, sold, distributed or otherwise made available to any UK retail investor in the United Kingdom. For the purposes of this provision, the expression “UK retail investor” means a person who is not a professional client, as defined in point (8) of Article 2(1) of Regulation (EU) No 600/2014 as it forms part of domestic law in the United Kingdom.
Other Regulatory Restrictions in the United Kingdom
Any invitation or inducement to engage in investment activity (within the meaning of Section 21 of the United Kingdom’s Financial Services and Markets Act 2000, as amended (the “FSMA”)) in connection with the issue or sale of the Designated Securities may only be communicated or caused to be communicated in circumstances in which Section 21(1) of the FSMA would not, if the Company was not an “authorised person”, apply to the Company.
All applicable provisions of the FSMA must be complied with in respect to anything done by any person in relation to the Designated Securities in, from or otherwise involving the United Kingdom.
Japan
The Designated Securities have not been and will not be registered under the Financial Instruments and Exchange Law of Japan (Law No. 25 of 1948, as amended) (the “FIEL”) on the ground that the solicitation for subscription of the Designated Securities falls within the definition of “solicitation to qualified institutional investors” as defined under Article 2, paragraph 3, item 2 (I) of the FIEL. Such solicitation shall be subject to the condition that qualified institutional investors (as defined under the FIEL, “QII”) who acquired the Designated Securities shall enter into an agreement which provides that it shall not transfer such interests to anyone other than another QII. Accordingly, the Designated Securities have not been and will not be offered or sold, directly or indirectly, in Japan or to, or for the account or benefit of, any resident of Japan (which term as used herein means any person resident in Japan, including any corporation or other entity organized under the laws of Japan), or to, or for the account or benefit of, others for re-offering or resale, directly or indirectly, in Japan or to, or for the account or benefit of, any resident of Japan, except for private placement pursuant to an exemption from the registration requirements of, and otherwise in compliance with, the FIEL and any other applicable laws, regulations and ministerial guidelines of Japan.
Schedule II -5
Singapore
The prospectus supplement and the accompanying prospectus have not been and will not be registered as a prospectus under the Securities and Futures Act 2001 (the “SFA”) by the Monetary Authority of Singapore, and the offer of the Designated Securities in Singapore is made primarily pursuant to the exemptions under Sections 274 and 275 of the SFA. Accordingly, the prospectus supplement and the accompanying prospectus and any other document or material in connection with the offer or sale, or invitation for subscription or purchase, of the Designated Securities may not be circulated or distributed, nor may the Designated Securities be offered or sold, or made the subject of an invitation for subscription or purchase, whether directly or indirectly, to any person in Singapore other than (i) to an institutional investor as defined in Section 4A of the SFA (an “Institutional Investor”) pursuant to Section 274 of the SFA, (ii) to an accredited investor as defined in Section 4A of the SFA (an “Accredited Investor”) or other relevant person as defined in Section 275(2) of the SFA (a “Relevant Person”) and pursuant to Section 275(1) of the SFA, or to any person pursuant to an offer referred to in Section 275(1A) of the SFA, and in accordance with the conditions specified in Section 275 of the SFA and (where applicable) Regulation 3 of the Securities and Futures (Classes of Investors) Regulations 2018, or (iii) otherwise pursuant to, and in accordance with, the conditions of any other applicable exemption or provision of the SFA.
It is a condition of the offer that where the Designated Securities are subscribed for or acquired pursuant to an offer made in reliance on Section 275 of the SFA by a Relevant Person which is:
(a) a corporation (which is not an Accredited Investor), the sole business of which is to hold investments and the entire share capital of which is owned by one or more individuals, each of whom is an Accredited Investor; or
(b) a trust (where the trustee is not an Accredited Investor), the sole purpose of which is to hold investments and each beneficiary of the trust is an individual who is an Accredited Investor, then
the securities and securities-based derivatives contracts (each as defined in Section 2(1) of the SFA) of that corporation and the beneficiaries’ rights and interest (howsoever described) in that trust shall not be transferred within six months after that corporation or that trust has subscribed for or acquired the Designated Securities except:
(i) to an Institutional Investor, an Accredited Investor, a Relevant Person, or which arises from an offer referred to in Section 275(1A) of the SFA (in the case of that corporation) or Section 276(4)(c)(ii) of the SFA (in the case of that trust);
(ii) where no consideration is or will be given for the transfer;
(iii) where the transfer is by operation of law; or
(iv) as specified in Section 276(7) of the SFA.
Notification under Section 309B(1)(c) of the Securities and Futures Act 2001
In connection with Section 309B of the SFA and the Securities and Futures (Capital Markets Products) Regulations 2018 of Singapore (the “CMP Regulations 2018”), the Company has determined and hereby notifies all relevant persons (as defined in section 309A(1) of the SFA) of the classification of the Designated Securities to be capital markets products other than prescribed capital markets products (as defined in the CMP Regulations 2018) and Specified Investment Products (as defined in MAS Notice SFA 04-N12: Notice on the Sale of Investment Products and MAS Notice FAA-N16: Notice on Recommendations on Investment Products).
Schedule II -6
Hong Kong
The Designated Securities have not been offered or sold and will not be offered or sold in Hong Kong, by means of any document, other than (i) to “professional investors” as defined in the Securities and Futures Ordinance (Cap. 571 of the Laws of Hong Kong) (the “SFO”) and any rules made thereunder, or (ii) in other circumstances which do not result in the document being a “prospectus” as defined in the Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32 of the Laws of Hong Kong) (the “C(WUMP)O”) or that do not constitute an offer to the public within the meaning of the C(WUMP)O; and no advertisement, invitation or document relating to the Designated Securities has been or will be issued or has been or will be in the possession of any person for the purposes of issue (in each case whether in Hong Kong or elsewhere), which is directed at, or the contents of which are likely to be accessed or read by, the public of Hong Kong (except if permitted to do so under the securities laws of Hong Kong) other than with respect to Designated Securities which are or are intended to be disposed of only to persons outside Hong Kong or only to “professional investors” as defined in the SFO and any rules made thereunder.
Taiwan
The Designated Securities have not been and will not be registered or filed with, or approved by, the Financial Supervisory Commission of Taiwan and/or other regulatory authority or agency of Taiwan pursuant to relevant securities laws and regulations of Taiwan and may not be issued, offered or sold within Taiwan through a public offering or in circumstances which constitute an offer within the meaning of the Securities and Exchange Act of Taiwan or relevant laws and regulations that requires a registration, filing or approval of the Financial Supervisory Commission of Taiwan and/or other regulatory authority or agency of Taiwan. No person or entity in Taiwan has been authorized to offer or sell the Designated Securities in Taiwan.
Republic of Italy
The offering of the Designated Securities has not been registered with the Commissione Nazionale per le Società e la Borsa (“CONSOB”) pursuant to Italian securities legislation and, accordingly, no Designated Securities may be offered, sold or delivered, nor may copies of the prospectus supplement or of any other document relating to the Designated Securities be distributed in the Republic of Italy, except:
| (i) | to qualified investors (investitori qualificati) as defined in Article 2 of the Prospectus Regulation and Article 100 of Legislative Decree No. 58 of February 24, 1998, as amended from time to time (the “Financial Services Act”); or |
| (ii) | in any other circumstances which are exempted from the rules on public offerings pursuant to Article 1 of the Prospectus Regulation and any other applicable Italian laws and regulations. |
Any offer, sale or delivery of the Designated Securities or distribution of copies of the prospectus supplement or any other document relating to the Designated Securities in the Republic of Italy under paragraph (i) or (ii) above must:
Schedule II -7
| (a) | be made by an investment firm, bank or financial intermediary permitted to conduct such activities in the Republic of Italy in accordance with the Financial Services Act, CONSOB Regulation No. 20307 of February 15, 2018 (as amended from time to time) and Legislative Decree No. 385 of September 1, 1993, as amended from time to time (the “Banking Act”), and any other applicable laws or regulations; and |
| (b) | comply with Article 129 of the Banking Act and the implementing guidelines of the Bank of Italy, as amended from time to time, pursuant to which the Bank of Italy may request information on the offering or issue of securities in Italy or by Italian persons outside of Italy; and be made in compliance with any other applicable laws and regulations or requirement imposed by CONSOB, the Bank of Italy and/or any other competent authority. |
Canada
The Designated Securities may be sold in Canada only to purchasers purchasing, or deemed to be purchasing, as principal that are accredited investors, as defined in National Instrument 45-106 Prospectus Exemptions or subsection 73.3(1) of the Securities Act (Ontario), and are permitted clients, as defined in National Instrument 31-103 Registration Requirements, Exemptions and Ongoing Registrant Obligations. Any resale of the Designated Securities must be made in accordance with an exemption from, or in a transaction not subject to, the prospectus requirements of applicable securities laws.
Switzerland
The offering of the Designated Securities in Switzerland is exempt from the requirement to prepare and publish a prospectus under the Swiss Financial Services Act (“FinSA”) because the Designated Securities have a minimum denomination of CHF 100,000 (or equivalent in another currency) or more and the Designated Securities will not be admitted to trading on any trading venue (exchange or multilateral trading facility) in Switzerland. The pricing term sheet, the prospectus supplement and the accompanying prospectus do not constitute a prospectus pursuant to the FinSA, and no such prospectus has been or will be prepared for or in connection with the offering of the Designated Securities.
Other Jurisdictions outside the United States
No action may be taken in any jurisdiction that would permit a public offering of the Designated Securities or the possession, circulation or distribution of the prospectus supplement in any jurisdiction where action for that purpose is required. Accordingly, the Designated Securities may not be offered or sold, directly or indirectly, and neither the prospectus supplement nor any other offering material or advertisements in connection with the Designated Securities may be distributed or published in or from any country or jurisdiction, except under circumstances that will result in compliance with any applicable rules and regulations of any such country or jurisdiction.
Schedule II -8
Other Terms:
“Underwriter Information” shall mean the statements set forth in (i) the last paragraph of the cover page regarding delivery of the Designated Securities, (ii) the names of the Underwriters, (iii) the paragraph in “Underwriting (Conflicts of Interest)” related to short sales and purchases in the open market, and (iv) the paragraph in “Underwriting (Conflicts of Interest)” related to settlement, in each case in the Pricing Prospectus and the Prospectus.
Jurisdictions Specified Pursuant to Section 5(b) of the Underwriting Agreement: None.
Jurisdictions Specified Pursuant to Section 5(d) of the Underwriting Agreement: United States.
Schedule II -9
Appendix A
FINAL TERM SHEET
PRICING TERM SHEET
U.S. $1,000,000,000 4.977% Senior
Non-Preferred Fixed Rate Notes DUE 2029
(the “2029 Fixed Rate Notes”)
U.S. $1,000,000,000 5.244% Senior
Non-Preferred Fixed Rate NOTES DUE 2031
(the “2031 Fixed Rate Notes”)
U.S. $300,000,000 Senior Non-Preferred Floating Rate Notes due 2029 (the “2029 Floating Rate Notes”)
This Free Writing Prospectus relates only to the 2029 Fixed Rate Notes, the 2031 Fixed Rate Notes and the 2029 Floating Rate Notes (collectively, the “Notes”) described below and should only be read together with the preliminary prospectus supplement dated August 25, 2026 (the “Preliminary Prospectus Supplement”) and the accompanying prospectus dated July 31, 2025 relating to these Notes (the “Prospectus”). Terms and expressions used but not defined herein shall have the same meanings as defined in the Preliminary Prospectus Supplement or Prospectus, as applicable.
2029 Fixed Rate Notes and 2031 Fixed Rate Notes
| Issuer: | Banco Bilbao Vizcaya Argentaria, S.A. |
| Expected Issue Ratings: * | Baa1 Moody’s / A- S&P / A- Fitch |
| Issuer Ratings: * | A2 Moody’s / A+ S&P / A Fitch |
| Instrument: | Senior Non-Preferred |
| Principal Amount: |
U.S. $1,000,000,000 (the 2029 Fixed Rate Notes) U.S. $1,000,000,000 (the 2031 Fixed Rate Notes) |
| Form of Issuance: | SEC Registered |
| Pricing Date: | August 25, 2026 |
| Issue Date / Settlement Date: ** | September 3, 2026 (T+7) |
| Stated Maturity Date: |
September 3, 2029 (the 2029 Fixed Rate Notes) September 3, 2031 (the 2031 Fixed Rate Notes) |
| CUSIP / ISIN: |
05946K AY7 / US05946KAY73 (the 2029 Fixed Rate Notes) 05946K AZ4 / US05946KAZ49 (the 2031 Fixed Rate Notes) |
| Benchmark Treasury: |
4.250% due August 15, 2029 (the 2029 Fixed Rate Notes) 4.375% due July 31, 2031 (the 2031 Fixed Rate Notes) |
| Benchmark Treasury Yield: |
4.247% (the 2029 Fixed Rate Notes) 4.344% (the 2031 Fixed Rate Notes) |
| Spread to Benchmark Treasury: |
UST+ 73 bps (the 2029 Fixed Rate Notes) UST+ 90 bps (the 2031 Fixed Rate Notes) |
Appendix A -1
| Re-offer Yield: |
4.977% (the 2029 Fixed Rate Notes) 5.244% (the 2031 Fixed Rate Notes) |
| Coupon: |
Subject to any redemption prior to the relevant Maturity Date, the 2029 Fixed Rate Notes will bear interest from (and including) the Issue Date to (but excluding) the relevant Maturity Date at a fixed rate of 4.977% per annum.
Subject to any redemption prior to the relevant Maturity Date, the 2031 Fixed Rate Notes will bear interest from (and including) the Issue Date to (but excluding) the relevant Maturity Date at a fixed rate of 5.244% per annum.
|
| Interest Payment Dates: | Semi-annually in arrears on March 3 and September 3 of each year, commencing on March 3, 2027 up to (and including) the stated maturity date or any date of earlier redemption of the relevant series of Notes. |
| Price to Public: |
100.000% of the principal amount (the 2029 Fixed Rate Notes) 100.000% of the principal amount (the 2031 Fixed Rate Notes) |
| Underwriting Discount: |
0.200% (the 2029 Fixed Rate Notes) 0.300% (the 2031 Fixed Rate Notes) |
| Aggregate Proceeds to Issuer (Before Expenses): | U.S. $1,995,000,000 (the 2029 Fixed Rate Notes and the 2031 Fixed Rate Notes) |
| Day Count Fraction / Business Day Convention: | 30/360 (following business day, unadjusted) |
| Business Days: | New York City, London and Madrid |
| Minimum Denominations / Multiples: | Minimum denominations of U.S.$200,000 and multiples of U.S.$200,000 in excess thereof |
| Expected Listing: | New York Stock Exchange |
| Trustee, Paying Agent, Transfer Agent and Security Registrar: | The Bank of New York Mellon, acting through its London Branch (except with respect to its role as Security Registrar) |
| Redemption Provisions: |
Tax call: All or part at 100% of principal and accrued but unpaid interest for the relevant series of Notes
Eligible Liabilities Event call: All (but not less than all) at 100% of principal and accrued but unpaid interest for the relevant series of Notes
Clean-up call: In whole but not in part at 100% of principal and accrued but unpaid interest if Notes of a series representing, in the aggregate, 75% or more of the aggregate principal amount of such series of Notes (including, both in the numerator and the denominator, (i) any Notes of such series issued after the Issue Date and (ii) any Notes of such series which have been cancelled by the Trustee following their surrender for cancellation in accordance with the relevant indenture) have been purchased by or on behalf of the Issuer or any member of the Group.
Any such redemption shall be in compliance with Applicable Banking Regulations, then in force, and subject to the prior consent of the Regulator if required pursuant to such regulations. |
Appendix A -2
2029 Floating Rate Notes
| Issuer: | Banco Bilbao Vizcaya Argentaria, S.A. |
| Expected Issue Ratings: * | Baa1 Moody’s / A- S&P / A- Fitch |
| Issuer Ratings: * | A2 Moody’s / A+ S&P / A Fitch |
| Instrument: | Senior Non-Preferred |
| Principal Amount: | U.S. $300,000,000 (the 2029 Floating Rate Notes) |
| Form of Issuance: | SEC Registered |
| Pricing Date: | August 25, 2026 |
| Issue Date / Settlement Date: ** | September 3, 2026 (T+7) |
| Stated Maturity Date: | September 3, 2029 |
| CUSIP / ISIN: | 05946K BA8 / US05946KBA88 |
| Coupon: | Subject to any redemption prior to the relevant Maturity Date, the 2029 Floating Rate Notes will bear interest from (and including) the Issue Date to (but excluding) the relevant Maturity Date at a rate per annum equal to the Compounded SOFR plus a margin of 89 basis points, subject to a minimum interest rate of 0.000%. |
| Compounded SOFR: | “Compounded SOFR” is a compounded average of daily SOFR determined for each quarterly Interest Period in accordance with the specific formula set forth under “Certain Terms of the Notes—Payment of Interest—2029 Floating Rate Notes” in the Preliminary Prospectus Supplement. |
| Observation Period: |
In respect of each Interest Period, the period from, and including, the date five (5) U.S. Government Securities Business Days (as defined below) preceding the first date in such Interest Period to, but excluding, the date five (5) U.S. Government Securities Business Days preceding the 2029 Floating Rate Notes Interest Payment Date for such Interest Period.
“U.S. Government Securities Business Day” means any day except for a Saturday, Sunday or a day on which the Securities Industry and Financial Markets Association (SIFMA) recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in U.S. government securities. |
| Interest Payment Dates and Interest Period: | Quarterly in arrears on March 3, June 3, September 3 and December 3 of each year, commencing on December 3, 2026 up to (and including) the stated maturity date or any date of earlier redemption of the 2029 Floating Rate Notes. Each interest period will begin on (and include) an interest payment date (or, in the case of the first interest period, the Issue Date) and end on (but exclude) the following interest payment date (or, in the case of the final interest period, the relevant Maturity Date). |
Appendix A -3
| Price to Public: | 100.000% of the principal amount |
| Underwriting Discount: | 0.200% |
| Aggregate Proceeds to Issuer (Before Expenses): | U.S. $299,400,000 (the 2029 Floating Rate Notes) |
| Day Count Fraction / Business Day Convention: | Actual/360 (modified following business day, adjusted) |
| Business Days: | New York City, London and Madrid |
| Minimum Denominations / Multiples: | Minimum denominations of U.S.$200,000 and multiples of U.S.$200,000 in excess thereof |
| Expected Listing: | New York Stock Exchange |
| Trustee, Paying Agent, Transfer Agent, Calculation Agent and Security Registrar: | The Bank of New York Mellon, acting through its London Branch (except with respect to its role as Security Registrar) |
| Redemption Provisions: |
Tax call: All or part at 100% of principal and accrued but unpaid interest for the 2029 Floating Rate Notes
Eligible Liabilities Event call: All (but not less than all) at 100% of principal and accrued but unpaid interest for the 2029 Floating Rate Notes
Clean-up call: In whole but not in part at 100% of principal and accrued but unpaid interest if the 2029 Floating Rate Notes representing, in the aggregate, 75% or more of the aggregate principal amount of such 2029 Floating Rate Notes (including, both in the numerator and the denominator, (i) any Notes of such series issued after the Issue Date and (ii) any Notes of such series which have been cancelled by the Trustee following their surrender for cancellation in accordance with the relevant indenture) have been purchased by or on behalf of the Issuer or any member of the Group.
Any such redemption shall be in compliance with Applicable Banking Regulations, then in force, and subject to the prior consent of the Regulator if required pursuant to such regulations. |
The Notes
| Purchases of the Notes: | The Issuer or any member of the Group or any other legal entity acting on behalf of the Issuer may purchase or otherwise acquire any of the outstanding Notes of a series at any price in the open market or otherwise, subject to such purchase being in compliance with Applicable Banking Regulations then in force, and subject to the prior consent of the Regulator if required pursuant to such regulations. Upon their acquisition, such Notes may be held, resold or, at the option of the Issuer, surrendered to the Trustee for cancellation (subject to such holding, resale or cancellation being in compliance with Applicable Banking Regulations). Any such purchased Notes will cease to be deemed “outstanding” under the relevant indenture (i) for so long as such purchased Notes are held by the Issuer or any member of the Group or any other legal entity acting on behalf of the Issuer or (ii) if such purchased Notes have been surrendered to the Trustee for cancellation. |
Appendix A -4
| Governing Law: | New York law, except that the authorization and execution by the Issuer of the relevant indenture and the authorization, issuance and execution by the Issuer of the Notes of each series shall be governed by and construed in accordance with the common laws (derecho común) of Spain. In addition, certain provisions related to the status and ranking of the Notes of each series, the waiver of the right of set-off and the agreement by holders with respect to the exercise and effects of the Spanish Bail-in Power shall be governed by and construed in accordance with the common laws (derecho común) of Spain. See “Certain Terms of the Notes—Governing Law” in the Preliminary Prospectus Supplement. |
| Submission to Jurisdiction: | The Issuer irrevocably submits to the non-exclusive jurisdiction of any U.S. federal or state court in the Borough of Manhattan, the City of New York, New York, in any suit or proceeding arising out of or relating to the relevant Indenture or the Notes and irrevocably waives, to the extent it may effectively do so, any objection which it may have now or hereafter to the laying of the venue of any such suit or proceeding, except that the Spanish courts in the city of Madrid have exclusive jurisdiction in respect of a Bail-in Dispute. See “Certain Terms of the Notes—Submission to Jurisdiction” in the Preliminary Prospectus Supplement. |
| U.S. Federal Tax Considerations: | See the section of the Prospectus entitled “U.S. Federal Tax Considerations” for a discussion of the material U.S. federal income tax consequences of the ownership and disposition of the Notes to the U.S. holders described therein. |
| Spanish Tax Considerations: |
Exemption from Spanish withholding tax applies subject to compliance with certain Spanish tax requirements, including the timely provision by the Paying Agent of a duly executed and completed payment statement (the “Payment Statement”).
If the Paying Agent fails to deliver a duly executed and completed Payment Statement on a timely basis, in respect of an Interest Payment Date or in connection with a redemption of the Notes of a series, then the related Payment Amount (as defined in the Preliminary Prospectus Supplement) will be subject to Spanish withholding tax, currently at the rate of 19%. If this occurs, the Issuer will not pay Additional Amounts and owners of a beneficial interest in such Notes would have to follow the Direct Refund from Spanish Tax Authorities Procedures set forth in the Preliminary Prospectus Supplement in order to apply directly to the Spanish tax authorities for any refund to which they may be entitled. See “Certain Terms of the Notes—Maintenance of Tax Procedures” and “Spanish Tax Considerations” in the Preliminary Prospectus Supplement. |
| Substitution and Modification and Agreement with Respect Thereto: |
If an Eligible Liabilities Event or a Tax Event occurs with respect to the Notes of a series, including as a result of any change in law or regulation or the application or official interpretation thereof, the Issuer may, under certain circumstances and without any requirement for the consent or approval of the Trustee or the holders or beneficial owners of such Notes, substitute all (but not less than all) of such Notes or modify the terms of all (but not less than all) of such Notes, so that such Notes are substituted for, or their terms are modified to become again, or remain, Qualifying Securities (as defined in the Preliminary Prospectus Supplement).
By its acquisition of any Notes or any beneficial interest therein, each holder and beneficial owner of such Note (i) acknowledges, accepts, consents to and agrees to be bound by any substitution of or modification to the terms of the Notes as set forth above and to grant to the Issuer and the Trustee full power and authority to take any action and/or to execute and deliver any document in the name and/or on behalf of such holder or beneficial owner, as the case may be, which is necessary or convenient to complete the substitution of or modification to the terms of the Notes, as applicable; and (ii) to the extent permitted by the Trust Indenture Act, waives any and all claims, in law and/or in equity, against the Trustee and/or the Issuer for, agrees not to initiate a suit against the Trustee and/or the Issuer in respect of, and agrees that neither the Trustee nor the Issuer shall be liable for, any action that the Trustee or the Issuer takes, or abstains from taking, in either case in connection with the substitution of or modification to the terms of the Notes upon the occurrence of an Eligible Liabilities Event or a Tax Event.
See “Certain Terms of the Notes—Substitution and Modification” in the Preliminary Prospectus Supplement. |
Appendix A -5
| Agreement and Acknowledgment with Respect to Exercise of Spanish Bail-In Power: |
By its acquisition of any Notes or any beneficial interest therein, each holder (including, for these purposes, each holder of a beneficial interest in the Notes) acknowledges, accepts, consents to and agrees to be bound by: (i) the exercise and effects of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority, which may be imposed with or without any prior notice with respect to the Notes of any series, and may include and result in any of the following, or some combination thereof: (a) the reduction or cancellation of all, or a portion, of the Amounts Due on such Notes; (b) the conversion of all, or a portion, of the Amounts Due on such Notes into shares, other securities or other obligations of the Issuer or another person (and the issue to or conferral on the holder of any such shares, securities or obligations), including by means of an amendment, modification or variation of the terms of such Notes; (c) the cancellation of such Notes; (d) the amendment or alteration of the maturity of such Notes or amendment of the amount of interest payable on such Notes, or the date on which the interest becomes payable, including by suspending payment for a temporary period; and (ii) the variation of the terms of the Notes of any series, or the rights of the holders thereunder or under the relevant Indenture, as deemed necessary by the Relevant Spanish Resolution Authority, to give effect to the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority.
In addition, no repayment or payment of Amounts Due on the Notes will become due and payable or be paid after the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority if, and to the extent that such amounts have been reduced, converted, cancelled, amended or altered as a result of such exercise.
See “Certain Terms of the Notes—Agreement and Acknowledgment with Respect to the Exercise of the Spanish Bail-in Power” in the Preliminary Prospectus Supplement. |
Appendix A -6
| Status and Ranking: |
The payment obligations of the Issuer under the Notes of each series on account of principal shall be direct, unconditional, unsubordinated and unsecured obligations of the Issuer and, upon the insolvency (concurso de acreedores) of the Issuer, in accordance with and only to the extent permitted by the Insolvency Law and any other applicable laws relating to or affecting the enforcement of creditors’ rights in Spain (including, without limitation, Additional Provision 14 of Law 11/2015), but subject to any other ranking that may apply as a result of any mandatory provision of law (or otherwise), the payment obligations of the Issuer under the Notes with respect to claims for principal (which claims will constitute ordinary claims) will rank: (i) junior to any (a) privileged claims (créditos privilegiados) (which shall include, among other claims, any claims in respect of deposits for the purposes of Additional Provision 14.1 of Law 11/2015), (b) claims against the insolvency estate (créditos contra la masa), and (c) Senior Preferred Obligations; (ii) pari passu without any preference or priority among themselves and with all other Senior Non-Preferred Obligations; and (iii) senior to all subordinated obligations of, or claims against, the Issuer (créditos subordinados), present and future, such that any relevant claim on account of principal in respect of the Notes will be satisfied, as appropriate, only to the extent that all claims ranking senior to it have first been satisfied in full, and then pro rata with any claims ranking pari passu with it, in each case as provided herein.
Moreover, the Issuer’s obligations under the Notes of each series are subject to, and may be limited by, the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority.
See “Certain Terms of the Notes—Status and Ranking of the Notes” in the Preliminary Prospectus Supplement. |
| Event of Default: | Except as set forth under “Certain Terms of the Notes—Event of Default” in the Preliminary Prospectus Supplement, “Event of Default”, wherever used with respect to the Notes of a series, means (whatever the reason for such Event of Default and whether it shall be voluntary 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) that an order shall have been made by any competent court commencing insolvency proceedings (procedimiento concursal) against the Issuer or an order of any competent court or administrative agency shall have been made or a resolution shall have been passed by the Issuer for the dissolution or winding up of the Issuer. There is no other Event of Default under the Notes. |
| Use of Proceeds: | General corporate purposes |
Appendix A -7
| Target Market / PRIIPs / CCI / Retail Restriction: | MiFID II - professionals / ECPs-only / No EEA PRIIPs KID or UK CCI product summary – Manufacturer target market (MiFID II product governance) is eligible counterparties and professional clients only (all distribution channels). No EEA PRIIPs key information document (KID) or product summary under the United Kingdom’s Financial Conduct Authority’s Product Disclosure Sourcebook has been prepared as not available to retail investors in the EEA or in the United Kingdom. No sales to retail clients (as defined in MiFID II and the United Kingdom Financial Conduct Authority’s Conduct of Business Sourcebook (COBS) 3.4) in the EEA or in the United Kingdom. The Notes are incompatible with the knowledge, experience, needs, characteristics and objectives of clients which are retail clients. |
| Joint Bookrunners: |
BBVA Securities Inc.*** BMO Capital Markets Corp. Citigroup Global Markets Inc. RBC Capital Markets, LLC SG Americas Securities, LLC Wells Fargo Securities, LLC |
| Co-Managers: |
Bankinter, S.A. Nykredit Bank A/S Rabo Securities USA, Inc. Unicaja Banco, S.A. |
* Any ratings obtained will reflect only the views of the respective rating agency and should not be considered a recommendation to buy, sell or hold the Notes of any series. The ratings assigned by the rating agencies are subject to revision or withdrawal at any time by such rating agencies in their sole discretion. Each rating should be evaluated independently of any other rating.
** Pursuant to Rule 15c6-1 under the Exchange Act, trades in the secondary market are generally required to settle in one business day, unless the parties to any such trade expressly agree otherwise. Accordingly, purchasers who wish to trade the Notes of any series prior to the business day prior to the delivery of the Notes will be required to specify alternative settlement arrangements to prevent a failed settlement. Such purchasers should consult their own advisors.
*** BBVA Securities Inc., which is participating in this offering as a Joint Bookrunner, is an indirect wholly-owned subsidiary of BBVA. The offering is being conducted pursuant to FINRA Rule 5121. See “Underwriting (Conflicts of Interest)” in the Preliminary Prospectus Supplement.
The Issuer has filed a registration statement (including the Prospectus) with the U.S. Securities and Exchange Commission (SEC) for this offering. Before you invest, you should read the Preliminary Prospectus Supplement and the Prospectus in that registration statement, and other documents the Issuer has filed with the SEC for more complete information about the Issuer and this offering. You may get these documents for free by searching the SEC online database (EDGAR®) at www.sec.gov. Alternatively, you may obtain a copy of the Prospectus and Preliminary Prospectus Supplement from BBVA Securities Inc. by calling toll-free +1-800-422-8692, BMO Capital Markets Corp. by calling toll-free +1-888-200-0266, Citigroup Global Markets Inc. by calling toll-free +1-800-831-9146, RBC Capital Markets, LLC by calling toll-free +1-866-375-6829, SG Americas Securities, LLC by calling +1-855-881-2108 and Wells Fargo Securities, LLC by calling toll-free +1-800-645-3751.
This pricing term sheet is not a prospectus for the purposes of Regulation (EU) 2017/1129, as amended.
Appendix A -8
Appendix B
Issuer Free Writing Prospectus:
Final Term Sheet dated August 25, 2026 related to Banco Bilbao Vizcaya Argentaria, S.A. 4.977% Senior Non-Preferred Fixed Rate Notes due 2029, 5.244% Senior Non-Preferred Fixed Rate Notes due 2031 and Senior Non-Preferred Floating Rate Notes due 2029
Appendix B -1
Banco Bilbao Vizcaya Argentaria, S.A.
$1,000,000,000 aggregate principal amount of 4.977% Senior Non-Preferred Fixed Rate Notes due 2029
$1,000,000,000 aggregate principal amount of 5.244% Senior Non-Preferred Fixed Rate Notes due 2031
$300,000,000 aggregate principal amount of Senior Non-Preferred Floating Rate Notes due 2029
Underwriting Agreement
August 25, 2026
To the Representatives named from time to time in the applicable Pricing Agreement hereinafter described.
Ladies and Gentlemen:
From time to time Banco Bilbao Vizcaya Argentaria, S.A. (the “Company”), a sociedad anónima incorporated under the laws of the Kingdom of Spain (“Spain”), proposes to enter into one or more Pricing Agreements (each a “Pricing Agreement”) in the form of Annex I hereto, with such additions and deletions as the parties thereto may determine and, subject to the terms and conditions stated herein and therein, the Company proposes to issue and sell to the several firms named in Schedule I to the applicable Pricing Agreement (such firms constituting the “Underwriters” with respect to such Pricing Agreement and the securities specified therein) $1,000,000,000 aggregate principal amount of 4.977% Senior Non-Preferred Fixed Rate Notes due 2029 (the “2029 Fixed Rate Notes”), $1,000,000,000 aggregate principal amount of 5.244% Senior Non-Preferred Fixed Rate Notes due 2031 (the “2031 Fixed Rate Notes”) and $300,000,000 aggregate principal amount of Senior Non-Preferred Floating Rate Notes due 2029 (the “2029 Floating Rate Notes” and, together with the 2029 Fixed Rate Notes and the 2031 Fixed Rate Notes, the “Designated Securities”) specified in Schedule II to such Pricing Agreement. The Indenture (as defined below) will provide for the provision by The Bank of New York Mellon, acting through its London Branch, as the initial paying agent in respect of the Designated Securities (in such capacity, the “Paying Agent”), of a duly executed and completed payment statement in connection with each Payment Amount (as such term is defined in the Base Indenture (as defined herein)) under the Designated Securities, and set forth certain procedures agreed by the Company and the Paying Agent in order to facilitate such process, along with a form of the payment statement to be used by the Paying Agent.
The terms and rights of each series of Designated Securities shall be as specified in the Pricing Agreement relating thereto and in or pursuant to the indenture dated as of July 31, 2025 (the “Base Indenture”), as amended and supplemented by, with respect to the 2029 Fixed Rate Notes, the fifth supplemental indenture to be dated as of or around September 3, 2026, pursuant to which the 2029 Fixed Rate Notes will be issued (the “Fifth Supplemental Indenture”), with respect to the 2031 Fixed Rate Notes, the sixth supplemental indenture to be dated as of or around September 3, 2026, pursuant to which the 2031 Fixed Rate Notes will be issued (the “Sixth Supplemental Indenture”) and with respect to the 2029 Floating Rate Notes, the seventh supplemental indenture to be dated as of or around September 3, 2026, pursuant to which the 2029 Floating Rate Notes will be issued (the “Seventh Supplemental Indenture” and, each of the Fifth Supplemental Indenture, the Sixth Supplemental Indenture and the Seventh Supplemental Indenture, a “Supplemental Indenture”) (the Base Indenture, as so amended and supplemented by the applicable Supplemental Indenture with respect to each series of Designated Securities, the “Indenture”) between the Company and The Bank of New York Mellon (in its capacity as trustee, the “Trustee”). In addition, the Pricing Agreement may contain, if appropriate, the terms and the conditions upon which each series of Designated Securities is to be offered or sold outside the United States and any provisions relating thereto.
1
In this Agreement and in the applicable Pricing Agreement, the following terms shall, unless the context otherwise requires, have the meanings specified as follows:
“Act” means the United States Securities Act of 1933, as amended;
“Applicable Time” means the applicable time specified in the applicable Pricing Agreement;
“Bail-In Legislation” means in relation to a member state of the European Economic Area which has implemented, or which at any time implements, the BRRD, the relevant implementing law, regulation, rule or requirement as described in the EU Bail-in Legislation Schedule from time to time;
“Bail-in Powers” means any Write-down and Conversion Powers as defined in the EU Bail-in Legislation Schedule, in relation to the relevant Bail-in Legislation;
“Base Prospectus” means the prospectus included in the Registration Statement relating to, among other things, the Designated Securities, in the form in which it has most recently been filed with the Commission on or prior to the date of the applicable Pricing Agreement;
“BRRD” means (i) Directive 2014/59/EU of the European Parliament and of the Council of May 15, 2014 establishing a framework for the recovery and resolution of credit institutions and investment firms or (ii), as the case may be, such other directive as may come into effect in place thereof, as implemented into Spanish law by Law 11/2015 (as defined herein) and RD 1012/2015 (as defined herein), as amended, replaced or supplemented from time to time, and including any other relevant implementing or developing regulatory provisions;
“BRRD Liability” means (i) a liability in respect of which the relevant Write Down and Conversion Powers in the applicable Bail-in Legislation may be exercised; or (ii) any liability, commitment, duty,
responsibility, amount payable or contingency or other obligation arising from, or related to, this Agreement or the applicable Pricing Agreement which may be subject to the exercise of the Spanish Bail-in Power (as defined below) by the Relevant Spanish Resolution Authority (as defined below);
“Commission” means the United States Securities and Exchange Commission;
2
“Effective Time” with respect to the Registration Statement means such date and time as of which any part of the Registration Statement filed prior to the execution and delivery of the applicable Pricing Agreement was declared effective by the Commission or has become effective upon filing pursuant to Rule 430B(f)(2) or Rule 462(c) under the Act;
“EU Bail-in Legislation Schedule” means the document described as such, then in effect, and published by the Loan Market Association (or any successor person) from time to time;
“Exchange Act” means the United States Securities Exchange Act of 1934, as amended;
“Final Term Sheet” means the final term sheet containing a description of each series of Designated Securities, prepared and filed pursuant to Section 5(a) hereof, and set forth as an appendix to the applicable Pricing Agreement;
“Law 11/2015” means Spanish Law 11/2015 of June 18, on the recovery and resolution of credit institutions and investment firms (Ley 11/2015 de 18 de junio, de recuperación y resolución de entidades de crédito y empresas de servicios de inversión), as amended, replaced or supplemented from time to time;
“Pricing Prospectus” means the Base Prospectus, as amended and supplemented immediately prior to the Applicable Time, including any document incorporated by reference therein and any prospectus supplement deemed to be a part thereof, provided that, for purposes of this definition, information contained in a form of prospectus that is deemed retroactively to be part of the Registration Statement pursuant to Rule 430B under the Act shall be considered to be included in the Pricing Prospectus as of the actual time that form of prospectus is filed with the Commission pursuant to Rule 424(b) under the Act;
“Prospectus” means the Base Prospectus as proposed to be supplemented by the Prospectus Supplement;
“Prospectus Supplement” means the prospectus supplement relating to the Designated Securities to be filed pursuant to Rule 424 under the Act;
“RD 1012/2015” means Spanish Royal Decree 1012/2015 of November 6, by virtue of which Law 11/2015 is developed and Royal Decree 2606/1996 of December 20, on credit entities’ deposit guarantee funds, is amended (Real Decreto 1012/2015, de 6 de noviembre, por el que se desarrolla la Ley 11/2015, de 18 de junio, de recuperación y resolución de entidades de crédito y empresas de servicios de inversión, y por el que se modifica el Real Decreto 2606/1996, de 20 de diciembre, sobre fondos de garantía de depósitos de entidades de crédito), as amended, replaced or supplemented from time to time;
“Registration Statement” means the registration statement on Form F-3 (File No. 333-289121), including the Prospectus, relating to the Designated Securities filed with the Commission, as amended to the date of the applicable Pricing Agreement;
“Relevant Resolution Authority” means the resolution authority with the ability to exercise any Bail-in Powers in relation to the Underwriters;
3
“Relevant Spanish Resolution Authority” means FROB (Autoridad de Resolución Ejecutiva, formerly known as Spanish Fund for Orderly Bank Restructuring or Fondo de Reestructuración Ordenada Bancaria), the European Single Resolution Board, the Bank of Spain, the Spanish National Securities Market Commission (Comisión Nacional del Mercado de Valores or CNMV) or any other entity with the authority to exercise the Spanish Bail-in Power (as defined herein) from time to time;
“Significant Subsidiaries” shall mean the Company’s “Significant Subsidiaries”, as such term is defined in Rule 1-02 of Regulation S-X;
“Spanish Bail-in Power” means any write-down, conversion, transfer, modification, cancellation or suspension power existing from time to time under: (i) any law, regulation, rule or requirement applicable from time to time in Spain, relating to the transposition or development of the BRRD, including, but not limited to (a) Law 11/2015, (b) RD 1012/2015, and (c) the SRM Regulation (as defined below); or (ii) any other law, regulation, rule or requirement applicable from time to time in Spain pursuant to which (a) obligations or liabilities of banks, investment firms or other financial institutions or their affiliates can be reduced, cancelled, modified, transferred or converted into shares, other securities, or other obligations of such persons or any other person (or suspended for a temporary period or permanently) or (b) any right in a contract governing such obligations may be deemed to have been exercised;
“SRM Regulation” means Regulation (EU) No. 806/2014 of the European Parliament and of the Council of July 15 establishing uniform rules and a uniform procedure for the resolution of credit institutions and certain investment firms in the framework of a Single Resolution Mechanism and a Single Resolution Fund and amending Regulation (EU) No. 1093/2010, as amended, replaced or supplemented from time to time; and
“Underwriter Information” shall have the meaning set forth in the applicable Pricing Agreement.
Any reference herein to the Registration Statement or the Prospectus shall be deemed to refer to and include the documents which were filed under the Act or the Exchange Act on or before the date and time of the applicable Pricing Agreement, and incorporated by reference in the Registration Statement and the Prospectus, excluding any documents or portions of such documents which are deemed under the rules and regulations of the Commission under the Act not to be incorporated by reference, and, in the case of the Registration Statement, including any prospectus supplement filed with the Commission and deemed by virtue of Rule 430B under the Act to be part of the Registration Statement. Any reference herein to the terms “amend”, “amendment” or “supplement” with respect to the Registration Statement or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act deemed to be incorporated therein by reference after the date of the applicable Pricing Agreement.
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1. Particular sales of Designated Securities of any series may be made from time to time by the Company to the Underwriters of such Designated Securities, for whom the firms designated as representatives of the Underwriters of such Designated Securities in the Pricing Agreement relating thereto will act as representatives (the “Representatives”). The term “Representatives” also refers to a single firm acting as sole representative of the Underwriters and to an Underwriter or Underwriters who act without any firm being designated as its or their representatives. This Agreement shall not be construed as an obligation of the Company to sell any of the Designated Securities or as an obligation of any of the Underwriters to purchase the Designated Securities except as set forth in a Pricing Agreement, it being understood that the obligation of the Company to issue and sell any of the Designated Securities and the obligation of any of the Underwriters to purchase any of the Designated Securities shall be evidenced by the applicable Pricing Agreement with respect to the Designated Securities specified therein. Each Pricing Agreement shall specify the aggregate principal amount and interest rate of such Designated Securities, the initial public offering price of such Designated Securities, the purchase price to the Underwriters of such Designated Securities, the names of the Underwriters of such Designated Securities, the names of the Representatives of such Underwriters, the principal amount of such Designated Securities to be purchased, or for which eligible purchasers are to be procured, by each Underwriter and the underwriting discount and/or commission, if any, payable to the Underwriters with respect thereto and shall set forth the date, time and manner of delivery of such Designated Securities and payment therefor. The applicable Pricing Agreement shall also specify (to the extent not set forth in the Registration Statement and Prospectus with respect thereto) the terms of such Designated Securities. A Pricing Agreement shall be in the form of an executed writing (which may be in counterparts), and may be evidenced in accordance with Section 25 hereof. The obligations of the Underwriters under this Agreement and each Pricing Agreement shall be several and not joint, unless otherwise specified therein with respect to BBVA Securities Inc.
2. The Company represents and warrants to, and agrees with, each of the Underwriters that:
(a) The Company meets the requirements for the use of Form F-3, and the Registration Statement, including the Prospectus, has been filed with the Commission in accordance with applicable regulations of the Commission under the Act, and has been declared or has become effective under the Act;
(b) No stop order suspending the effectiveness of the Registration Statement (as amended or supplemented) has been issued and no proceeding for that purpose has been initiated or threatened, and no order preventing or suspending the use of the Prospectus or any “issuer free writing prospectus” as defined in Rule 433 under the Act relating to the Designated Securities (an “Issuer Free Writing Prospectus”) has been issued by the Commission;
(c) At the Effective Time, the Registration Statement and the Prospectus conformed, and any amendments thereof and supplements thereto relating to the Designated Securities will conform in all material respects to the requirements of the Act, the Exchange Act and the rules and regulations of the Commission thereunder; and neither the Registration Statement at the Effective Time nor the Prospectus as of the date thereof and, as amended or supplemented, at the Time of Delivery (as defined below) of the Designated Securities, included or will include any untrue statement of a material fact or omitted or will omit to state any material fact required to be stated therein or necessary to make the statements therein, in the case of the Registration Statement, not misleading, or in the case of the Prospectus, in light of the circumstances in which they were made, not misleading; provided, however, that this representation and warranty shall not apply to (i) any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter of Designated Securities by the Representatives expressly for use in such documents, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the Underwriter Information and (ii) any statements or omissions made in that part of the Registration Statement that constitutes the Statement of Eligibility under the Trust Indenture Act of 1939, as amended, of the Trustee;
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(d) The Pricing Prospectus, as supplemented by the Final Term Sheet together with any other Issuer Free Writing Prospectus listed in an appendix to the applicable Pricing Agreement and any other “free writing prospectus”, as defined in Rule 405 under the Act, that the parties hereto shall hereafter expressly agree in writing to treat as part of the pricing disclosure package (collectively, the “Pricing Disclosure Package”), as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; each Issuer Free Writing Prospectus listed in an appendix to the applicable Pricing Agreement does not conflict with the information contained in the Registration Statement, the Prospectus Supplement or the Prospectus; and each Issuer Free Writing Prospectus and any road show presentation, including any Bloomberg road show presentation, made by or on behalf of the Company, in each case listed in an appendix to the applicable Pricing Agreement, taken together with the Pricing Disclosure Package as of the Applicable Time, did not include any untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter of Designated Securities by the Representatives expressly for use in such documents or the Pricing Disclosure Package, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the Underwriter Information;
(e) Each document incorporated by reference in the Pricing Prospectus or the Prospectus, when it became effective or was filed with the Commission, as the case may be, complied in all material respects with the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder, and none of such documents contained any untrue statement of any material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; any further documents so filed and incorporated by reference in the Pricing Prospectus or the Prospectus or any further amendment or supplement thereto, when such documents become effective or are filed with the Commission, as the case may be, will conform in all material respects to the requirements of the Act or the Exchange Act, as applicable, and the rules and regulations of the Commission thereunder and will not contain any untrue statement of any material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that (i) no such documents were filed with the Commission following the Commission’s close of business on the business day (as defined below) immediately prior to the date of the applicable Pricing Agreement and prior to the execution of the applicable Pricing Agreement, except as set forth on a schedule to the applicable Pricing Agreement; and (ii) this representation and warranty shall not apply to any statements or omissions made in reliance upon and in conformity with information furnished in writing to the Company by or on behalf of any Underwriter of Designated Securities by the Representatives expressly for use in such documents;
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(f) The Indenture will provide for the provision by the Paying Agent of a duly executed and completed payment statement in connection with each Payment Amount (as such term is defined in the Base Indenture) under the Designated Securities, and set forth certain procedures agreed by the Company and the Paying Agent in order to facilitate such process, along with a form of the payment statement to be used by the Paying Agent;
(g) The Company and each of the Significant Subsidiaries have been duly incorporated and are validly existing and in good standing under the laws of their respective jurisdictions of incorporation, with power and authority (corporate and other) to own, lease, license and operate their properties and conduct their business as described in the Registration Statement and the Pricing Prospectus;
(h) Neither the Company nor any of the Significant Subsidiaries is in violation of its respective charter or by-laws or in default (or with the giving of notice or lapse of time would be in default) under any existing obligation, agreement, covenant or condition contained in any indenture, loan agreement, mortgage, lease or other agreement or instrument to which any of them is a party or by which any of them is bound or to which any of the properties of any of them is subject, except such defaults that would not, individually or in the aggregate, result in a material adverse effect on the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and the Company’s subsidiaries, taken as a whole (“Material Adverse Effect”);
(i) The issue and sale of each series of Designated Securities and the execution and delivery by the Company of, and the performance by the Company of its obligations under, as applicable, all of the provisions of such Designated Securities and the Pricing Agreement (including the provisions of this Agreement), and compliance with the terms and provisions thereof, will not (i) result in a breach or violation of any of the terms and provisions of the charter or by-laws (or similar constitutive documents) of the Company, or (ii) result in a breach of any of the terms or provisions of, or constitute a default under, or result in the imposition of any lien, charge or encumbrance upon any property or assets of the Company pursuant to (a) the charter or by-laws (or similar constitutive documents) of the Company, (b) any statute, rule, regulation or order of any governmental agency or body or any court, domestic or foreign, having jurisdiction over the Company or any of its properties, or (c) any agreement or instrument to which the Company is a party or by which the Company is bound or to which any of the properties of the Company is subject, except (in the case of (ii) above only) as would not have a Material Adverse Effect; and the Company has full power and authority (corporate and other) to authorize, issue and sell such Designated Securities and perform its obligations thereunder, in each case as contemplated by the Pricing Agreement (including the provisions of this Agreement), and the Company has taken all necessary corporate actions to authorize, issue and sell such Designated Securities and to perform its obligations thereunder;
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(j) Except as disclosed in the Pricing Disclosure Package, since the end of the period covered by the latest historical financial statements included in the Pricing Disclosure Package (i) there has been no change, nor any development or event involving a prospective change, in the condition (financial or otherwise), results of operations, business, properties or prospects of the Company and the Company’s subsidiaries, taken as a whole, that has resulted, or is likely to result, in a Material Adverse Effect and (ii) there has been no change in the capital stock, short-term indebtedness, long-term indebtedness, net current assets or net assets of the Company and the Company’s subsidiaries, taken as a whole, that has resulted, or is likely to result, in a Material Adverse Effect;
(k) The issued and outstanding share capital of the Company has been duly authorized and validly issued and is fully paid and non-assessable (i.e., will not subject any holder thereof to further calls or to personal liability to the Company or any of its creditors by reason only of being such holder); none of the outstanding shares of the Company was issued in violation of pre-emptive or other similar rights;
(l) The Company has implemented and uses procedures that it reasonably believes are required by applicable regulations, including procedures required by the Bank of Spain and the European Central Bank, to monitor, review, calculate, assess and maintain the sufficiency of its consolidated subsidiaries’ reserves in light of all the circumstances; the Company calculates, reviews, assesses and estimates its regulated consolidated subsidiaries’ regulatory capital requirements, and the Company reasonably believes that its methodology in relation to its risk-based capital position and requirements is, in light of all the circumstances, fair and in accordance with applicable regulations in all material respects;
(m) This Agreement has been duly authorized, executed and delivered by the Company;
(n) The applicable Pricing Agreement (including the provisions of this Agreement) has been duly authorized, executed and delivered by the Company;
(o) All material consents, approvals, authorizations, orders, registrations, clearances and qualifications of or with any court or governmental agency or body or any stock exchange authorities having jurisdiction over the Company required for the issue and sale of the Designated Securities and the performance by the Company of its obligations thereunder and for the execution and delivery by the Company of the applicable Pricing Agreement to be duly and validly authorized, have been obtained or made and are in full force and effect other than the granting of the Issuance Deeds (as defined below);
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(p) Each series of Designated Securities has been duly authorized, and, when executed, authenticated, issued, delivered and paid for pursuant to a Pricing Agreement and the Indenture, such Designated Securities will have been duly executed, authenticated, issued and delivered by the Company in accordance with Spanish law, will be fully paid and non-assessable and will constitute valid and binding obligations of the Company enforceable against the Company in accordance with their terms, subject, as to enforcement, to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and other laws of general applicability relating to or affecting creditors’ rights, to general equity principles and to any exercise of the Spanish Bail-in Power; and no holder thereof will be subject to personal liability by reason only of being such a holder; each series of Designated Securities will not be subject to the pre-emptive rights of any shareholder of the Company and will be consistent with the description thereof contained in the Prospectus and the applicable Prospectus Supplement, and such descriptions will conform to the rights set forth in the instruments defining the same;
(q) Except as provided in the Pricing Prospectus, the payment obligations of the Company under the Designated Securities on account of principal shall be direct, unconditional, unsubordinated and unsecured obligations of the Company and, upon the insolvency (concurso de acreedores) of the Company, in accordance with and only to the extent permitted by the Insolvency Law (as such term is defined in the Pricing Prospectus) and any other applicable laws relating to or affecting the enforcement of creditors’ rights in Spain (including, without limitation, Additional Provision 14 of Law 11/2015), but subject to any other ranking that may apply as a result of any mandatory provision of law (or otherwise), the payment obligations of the Company under the Designated Securities with respect to claims for principal (which claims will constitute ordinary claims (as such term is defined in the Pricing Prospectus)) will rank: (i) junior to any (a) privileged claims (créditos privilegiados) (which shall include, among other claims, any claims in respect of deposits for the purposes of Additional Provision 14.1 of Law 11/2015), (b) claims against the insolvency estate (créditos contra la masa), and (c) Senior Preferred Obligations (as such term is defined in the Pricing Prospectus); (ii) pari passu without any preference or priority among themselves and with all other Senior Non-Preferred Obligations (as such term is defined in the Pricing Prospectus); and (iii) senior to all subordinated obligations of, or claims against, the Company (créditos subordinados), present and future, such that any relevant claim on account of principal in respect of the Designated Securities will be satisfied, as appropriate, only to the extent that all claims ranking senior to it have first been satisfied in full, and then pro rata with any claims ranking pari passu with it, in each case as provided above;
(r) Neither the Company, nor any of its affiliates (as defined in Rule 405 under the Act), nor any person acting on its or their behalf (other than any Underwriter, as to which no representation is made) has taken or will take, directly or indirectly, any action designed to cause or to result in, or that has constituted or which might reasonably be expected to cause or result in, the stabilization in violation of applicable laws or manipulation of the price of any security of the Company to facilitate the sale or resale of each series of Designated Securities;
(s) The Company is not, and after giving effect to the offering and sale of each series of Designated Securities and the application of the proceeds thereof as described in the Prospectus, will not be, required to register as an “investment company” as such term is defined in the U.S. Investment Company Act of 1940, as amended;
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(t) Except as described in the Pricing Prospectus, no stamp or other issuance or transfer taxes or duties or similar fees or charges are payable by or on behalf of the Underwriters to Spain or any political subdivision or taxing authority thereof or therein in connection with (i) the issuance, sale and delivery by the Company of each series of Designated Securities to or for the respective accounts of the Underwriters or (ii) the sale and delivery by the Underwriters of such Designated Securities in accordance with the terms of this Agreement and in the manner contemplated by the Pricing Prospectus and the Registration Statement;
(u) The statements set forth in the Pricing Prospectus and the Registration Statement under the captions “Certain Terms of the Notes” and “Description of the Notes of BBVA” (as amended and supplemented by the statements set forth under the caption “Certain Terms of the Notes” in the Prospectus Supplement), taken together, insofar as they purport to constitute a summary of the terms of each series of Designated Securities, and in the Prospectus Supplement under the captions “Spanish Tax Considerations” and “U.S. Federal Tax Considerations”, insofar as they purport to describe the provisions of the laws referred to therein, in each case when read together with any Final Term Sheet and any other Issuer Free Writing Prospectuses listed in an appendix to the applicable Pricing Agreement, are accurate and complete in all material respects;
(v) Except as described in or contemplated by the Pricing Disclosure Package, none of the Company, any of its Significant Subsidiaries, nor, to the knowledge of the Company, any director, officer or employee of the Company or any of its Significant Subsidiaries, is aware of or has taken any action, directly or indirectly, that could reasonably lead to an action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Significant Subsidiaries in connection with a violation by any such person of any anti-corruption or anti-bribery laws or regulations of any applicable jurisdiction including the United Kingdom’s Bribery Act 2010, as amended, and the U.S. Foreign Corrupt Practices Act, as amended, and the rules and regulations thereunder (the “Anti-Corruption Laws”) which would result in a fine or other sanction which would be material in amount for the Company or the Company and its Significant Subsidiaries, and the Company, each of the Significant Subsidiaries and, to the knowledge of the Company, their respective affiliates have conducted their businesses in compliance in all material respects with the Anti-Corruption Laws (except for any non-compliance which is not material in the context of the issue of the Designated Securities), and have instituted and maintain policies and procedures designed to ensure compliance therewith in all material respects;
(w) The Company and each of its Significant Subsidiaries maintain a system of controls and procedures reasonably designed to ensure that the operations of the Company and each of its Significant Subsidiaries are conducted, where applicable, in compliance in all material respects with applicable financial recordkeeping and reporting requirements of the European Union, Spain, the United States and each State thereof and the United Mexican States, and applicable money laundering statutes and the rules and regulations thereunder (collectively, the “Money Laundering Laws”), and no material action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Significant Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened;
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(x) None of the Company or any of its Significant Subsidiaries is currently the subject of sanctions in a material amount administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) or any similar sanctions administered by the European Union, Spain or the United Mexican States; and the Company maintains a system of controls and procedures reasonably designed to prevent the proceeds raised in connection with the issue of the Designated Securities from being used directly or indirectly in any manner that would contravene any OFAC or any similar European, Spanish or Mexican regulations that may be applicable to them; provided that this Section 2(x) shall only apply, and shall only be sought, to the extent that it does not result in a breach and/or violation of any provision of Council Regulation (EC) No 2271/96 of November 22, 1996, as amended (or any law or regulation implementing such Regulation in any member state of the European Union);
(y) The Company and its subsidiaries maintain a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset accountability; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is taken with respect to any differences; and the Company’s and its subsidiaries’ internal controls over financial reporting are effective and neither the Company nor any of its subsidiaries is aware of any material weakness in its or their internal controls over financial reporting;
(z) The Company and its subsidiaries maintain “disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) under the Exchange Act);
(aa) Except as set forth in or contemplated by the Pricing Disclosure Package, no litigation, prosecution, investigation, arbitration or administrative proceeding involving the Company, any of the Company’s subsidiaries or any of its properties is pending, or, to the knowledge of the Company, threatened, except to the extent that any such litigation, prosecution, investigation, arbitration or proceeding, if resolved unfavorably to the Company, any of the Company’s subsidiaries or any of its respective properties, would not reasonably be expected to result, individually or in the aggregate, in a Material Adverse Effect;
(bb) Except as set forth in the Pricing Disclosure Package, there have been no material changes to the Company’s consolidated capitalization and indebtedness since June 30, 2026;
(cc) Ernst & Young, S.L. is an independent registered public accounting firm in respect of the Company as required by the Act and the applicable rules and regulations of the Commission;
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(dd) So long as certain conditions set forth in Law 10/2014 of June 26, on the organization, supervision and solvency of credit institutions (Ley 10/2014 de 26 de junio, de ordenación, supervisión y solvencia de entidades de crédito), as amended, and the procedures established in Spanish Royal Decree 1065/2007 of July 27, approving the General Regulations governing tax management and inspection acts and procedures and developing the common rules for tax enforcement procedures (Real Decreto 1065/2007, de 27 de julio, por el que se aprueba el Reglamento General de las actuaciones y los procedimientos de gestión e inspección tributaria y de desarrollo de las normas comunes de los procedimientos de aplicación de los tributos), as amended, are complied with, and provided there are no changes to current laws or regulations, any payments in respect of the Designated Securities made by the Company shall be made with no withholding tax in Spain; and
(ee) No event has occurred, nor has any action been taken, which would or could reasonably result in the voluntary or involuntary liquidation, dissolution, winding-up or insolvency of the Company pursuant to the terms of the Insolvency Law (as such term is defined in the Pricing Prospectus). The Company is not subject to an early intervention or resolution process pursuant to the terms of Law 11/2015.
3. Upon the execution of the applicable Pricing Agreement and authorization by the Representatives of the release of each series of Designated Securities, the several Underwriters propose to offer such Designated Securities for sale upon the terms and conditions set forth in the Prospectus as amended or supplemented.
4. Each series of Designated Securities to be purchased, or for which eligible purchasers are to be procured, by each Underwriter pursuant to the applicable Pricing Agreement, in the form specified in such Pricing Agreement, and in such authorized denominations and registered in such names as the Representatives may request upon at least forty-eight hours’ prior notice to the Company, shall be delivered by or on behalf of the Company to the Representatives for the account of such Underwriter, against payment by such Underwriter or on its behalf of the purchase price therefor by wire transfer of Federal (same day) funds to the account specified by the Company in the currency specified in such Pricing Agreement, all in the manner and at the place and time and date specified in such Pricing Agreement or at such other place and time and date as the Representatives and the Company may agree upon in writing, such time and date being herein called the “Time of Delivery” for such Designated Securities.
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5. The Company covenants and agrees with each of the Underwriters:
(a) To prepare the Final Term Sheet in a form approved by the Representatives and to file such Final Term Sheet pursuant to Rule 433(d) under the Act within the time required by such Rule, and to prepare the Prospectus as amended or supplemented in relation to the applicable Designated Securities in a form approved by the Representatives, which approvals shall not be unreasonably withheld, and to file such Prospectus pursuant to Rule 424(b) under the Act no later than the Commission’s close of business on the second business day following the execution and delivery of the applicable Pricing Agreement or, if applicable, such earlier time as may be required by such Rule, and to take such steps as it deems necessary to ascertain promptly whether the Prospectus transmitted for filing under Rule 424(b) was received for filing by the Commission and, in the event that it was not, to promptly file such Prospectus; to make no further amendment or any supplement to the Registration Statement or Prospectus as amended or supplemented after the date of the applicable Pricing Agreement and prior to the Time of Delivery for each series of Designated Securities which shall be reasonably disapproved by the Representatives for such Designated Securities promptly after reasonable notice thereof; to advise the Representatives promptly of any such amendment or supplement after such Time of Delivery and furnish the Representatives with copies thereof; to file promptly all reports required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c) or 15(d) of the Exchange Act for so long as the delivery of a prospectus (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required in connection with the offering or sale of such Designated Securities, and during such same period to advise the Representatives, promptly after it receives notice thereof, (i) of the receipt of any comments from the Commission in respect of the Registration Statement or any prospectus relating to the Designated Securities, (ii) of the time when any amendment to the Registration Statement has been filed or becomes effective or any supplement to the Prospectus or any amended Prospectus has been filed with the Commission, (iii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of any examination pursuant to Section 8(e) of the Act concerning the Registration Statement or of any order preventing or suspending the use of any prospectus relating to the Designated Securities, (iv) of the suspension of the qualification of any series of Designated Securities for offering or sale in any jurisdiction, (v) of the initiation or threatening of any proceeding for any such purpose, or of any request by the Commission for the amending or supplementing of the Registration Statement, the Prospectus or any document incorporated by reference therein or for additional information with respect thereto and of receipt (whether written or oral) by it (or by any of its officers or attorneys) of any comments or other communication from the Commission relating to the Registration Statement, the Pricing Disclosure Package (and, notwithstanding any other provision of this Agreement, if any such request or communication is in writing, the Company shall promptly furnish the Underwriters with a copy thereof) or any document incorporated by reference therein, and, in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any prospectus relating to the Designated Securities or suspending any such qualification, to promptly use its best efforts to obtain the withdrawal of such order, (vi) of the occurrence of any event that could reasonably be expected to cause the Company to withdraw, rescind or terminate the offering of any series of Designated Securities or would permit the Company to exercise any right not to issue any series of Designated Securities other than as set forth in the Pricing Disclosure Package, (vii) of the occurrence of any event, or the discovery of any fact, the occurrence or existence of which would require the making of any change in any of the Pricing Disclosure Package then being used or would cause any representation or warranty contained in this Agreement to be untrue or inaccurate in any material respect or (viii) of any proposal or requirement to make, amend or supplement any of the Pricing Disclosure Package or of any other material information relating to the offering of any series of Designated Securities or this Agreement that any Underwriter may from time to time reasonably request;
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(b) Promptly from time to time to take such action as the Representatives may reasonably request, after consultation with the Company, to qualify each series of Designated Securities for offering and sale under the securities laws of such jurisdictions as the Representatives may reasonably request and as are specified in the applicable Pricing Agreement and to maintain such qualification in effect for not less than one year from the date of the applicable Pricing Agreement; provided, however, that additional such jurisdictions may be reasonably requested by the Representatives, with the prior consent of the Company, subsequent to the date thereof; and provided further that in connection therewith the Company shall not be required to qualify as a foreign corporation or to file a general consent to service of process in any jurisdiction;
(c) To furnish the Underwriters with copies of the Prospectus, as amended or supplemented, in such quantities as the Representatives may reasonably request, and, if the delivery of a prospectus (or in lieu thereof, the notice referred to in Rule 173(a) under the Act) is required under the Act at any time in connection with the offering or sale of the Designated Securities and if at such time any event shall have occurred as a result of which the Prospectus as then amended or supplemented would include any untrue statement of any material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it shall be necessary during such same period to amend or supplement the Prospectus or the Registration Statement or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Act or the Exchange Act, to notify the Representatives and upon their request to file such document and to prepare and furnish, without charge, to each Underwriter and to any dealer in securities as many copies as the Representatives may from time to time reasonably request of an amended Prospectus or a supplement to the Prospectus which will correct such statement or omission or effect such compliance;
(d) During the period beginning from the date of the applicable Pricing Agreement and continuing to and including the later of (i) the completion of the sale of the Designated Securities by the Underwriters (as determined by the Representatives), but not more than 30 calendar days following the Time of Delivery, and (ii) the Time of Delivery for such Designated Securities, not to offer, sell, contract to sell or otherwise dispose of, in the jurisdiction specified in the applicable Pricing Agreement, any U.S. dollar-denominated debt securities issued by the Company (other than the Designated Securities) which mature more than one year after such Time of Delivery and which are substantially similar to such Designated Securities, without the prior written consent of the Representatives;
(e) To timely file or submit such reports pursuant to the Exchange Act as are necessary in order to make generally available to its securityholders an earnings statement complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder, covering a period of twelve months beginning after the effective date of the Registration Statement (as defined in Rule 158(c) under the Act) as soon as is reasonably practicable after the termination of such twelve-month period; provided, however, that the Company will be deemed to have satisfied this obligation by filing with, or submitting to, the Commission a consolidated earnings statement complying with Section 11(a) of the Act and the rules and regulations of the Commission thereunder for the year ended December 31, 2026 as soon as is reasonably practicable after the termination of such twelve-month period;
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(f) To grant the Spanish law governed issuance public deeds (escrituras públicas de emisión) pursuant to Article 407 of the Royal Legislative Decree 1/2010, of July 2, approving the consolidated text of the Spanish Companies Act (Real Decreto Legislativo 1/2010, de 2 de julio, por el que se aprueba el texto refundido de la Ley de Sociedades de Capital) in respect of each series of Designated Securities (the “Issuance Deeds”) before the Time of Delivery and to file them for registration with the Vizcaya Commercial Registry (Registro Mercantil de Vizcaya) within one month from the date on which they are granted, and to use its commercially reasonable best efforts to ensure that the Issuance Deeds are registered;
(g) To use its best efforts to effect, promptly following the Time of Delivery, the authorization of each series of Designated Securities for listing on the New York Stock Exchange, or any other stock exchange on which the Prospectus specifies that the Designated Securities may be listed, and to permit each series of Designated Securities to be eligible, at the Time of Delivery, for clearance and settlement through the facilities of the Depository Trust Corporation (“DTC”), or any other clearance and settlement entity through which the Prospectus specifies that clearance and settlement of each series of Designated Securities may be made;
(h) Without the prior written consent of the Representatives, none of the Company, its affiliates or any person acting on its or their behalf (other than any Underwriter, as to which no representation is made) has given or will give to any prospective purchaser of any series of Designated Securities any written information concerning the offering of such Designated Securities other than materials contained in the Pricing Disclosure Package, the Prospectus or any other offering materials distributed with the prior written consent of the Representatives; and
(i) The Company will comply with Section 10.04 of the Base Indenture (as amended and supplemented by the applicable Supplemental Indenture with respect to each series of Designated Securities) with respect to each series of the Designated Securities.
6.
(a) The Company represents and agrees that (i) without the prior written consent of the Underwriters, other than the Issuer Free Writing Prospectuses listed in an appendix to the applicable Pricing Agreement, it has not made and will not make any offer relating to any series of Designated Securities that (A) would constitute an Issuer Free Writing Prospectus or (B) would otherwise constitute a “free writing prospectus”, as defined in Rule 405 under the Act, required to be filed with the Commission or retained by the Company pursuant to Rule 433 under the Act, (ii) it has complied and will comply with the requirements of Rules 164 and 433 under the Act applicable to any Issuer Free Writing Prospectus, including timely filing with the Commission or retention where required and legending and (iii) it will treat any such free writing prospectus consented to by the Underwriters as an Issuer Free Writing Prospectus.
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(b) Each Underwriter represents and agrees that, without the prior written consent of the Company and the other Underwriters, it has not made and will not make any offer relating to any series of Designated Securities that (i) would constitute an Issuer Free Writing Prospectus, or (ii) would otherwise constitute a “free writing prospectus”, as defined in Rule 405 under the Act, required to be filed with the Commission or retained by the Company pursuant to Rule 433 under the Act; provided, however, that the Company consents to the use by each Underwriter of a “free writing prospectus” not required to be filed with the Commission or retained by the Company pursuant to Rule 433 under the Act that contains only (A) information describing the preliminary terms of each series of Designated Securities or their offering which will not be inconsistent with the Final Term Sheet or the other Issuer Free Writing Prospectuses listed in an appendix to the applicable Pricing Agreement, (B) information that describes the final terms of each series of Designated Securities or their offering and that is included in the Final Term Sheet or any other Issuer Free Writing Prospectuses listed in an appendix to the applicable Pricing Agreement and (C) information that is in any electronic road show related to the Designated Securities and approved in writing as such by the Company.
(c) Any such “free writing prospectus”, as defined in Rule 405 under the Act, the use of which has been consented to by the Company and the Underwriters (including the Final Term Sheet) will be listed in an appendix to the applicable Pricing Agreement.
7. The Company covenants and agrees with the several Underwriters that the Company will pay or cause to be paid all those costs, expenses and disbursements relating or incident to the offering, purchase, sale and delivery of each series of Designated Securities as are set forth in the applicable Pricing Agreement. Each Underwriter, severally and not jointly, covenants and agrees with the Company that the Underwriters will pay or cause to be paid all those costs, expenses and disbursements relating or incident to the offering, purchase, sale and delivery of each series of Designated Securities as are set forth in the applicable Pricing Agreement. All payments made in respect of this Agreement or the applicable Pricing Agreement may be made without withholding or deduction for or on account of any taxes, duties, assessments or charges of whatever nature imposed or levied by or on behalf of Spain or any political sub-division or authority thereof or therein, provided the recipient is (i) resident for tax purposes in Spain; or (ii) resident for tax purposes in a country which has entered into a treaty for the avoidance of double taxation with Spain which provides for a full exemption from Spanish taxes on business profits (a “DTT”), where the taxation of the services rendered under this Agreement and the applicable Pricing Agreement is limited to the country of tax residence of the recipient and timely submits to the Company a valid tax residence certificate duly issued by the tax authorities of its respective country of tax residency evidencing its tax residence in that country for the purposes of the DTT (or the fulfilment of any other formality). Tax residence certificates shall be valid for up to one year from the date of their issuance and should not relate to a tax year other than that in which the relevant payment is due or made (whichever occurs first).
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8. The obligations of the Underwriters of any Designated Securities under the applicable Pricing Agreement shall be subject, in the discretion of the Representatives, to the condition, to be met by the Time of Delivery, that all representations and warranties of the Company in or incorporated by reference in the applicable Pricing Agreement are, at and as of the Time of Delivery for such Designated Securities, true and correct, the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and the following additional conditions:
(a) The Final Term Sheet, together with any other Issuer Free Writing Prospectuses listed in an appendix to the applicable Pricing Agreement and any other “free writing prospectus”, as defined in Rule 405 under the Act, that the parties hereto shall hereafter expressly agree in writing to treat as part of the Pricing Disclosure Package shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433(d) under the Act and the Prospectus as amended or supplemented in relation to such Designated Securities shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; no stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending the use of the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Company, threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with;
(b) U.S. counsel and, if so specified in the applicable Pricing Agreement, Spanish counsel for the Underwriters shall each have furnished to the Representatives such written opinion or opinions, dated the Time of Delivery for such Designated Securities, with respect to the Pricing Agreement (including the provisions of this Agreement), the Designated Securities, the Pricing Disclosure Package, the Prospectus and the Registration Statement (as amended or supplemented at the Time of Delivery for such Designated Securities) and other related matters not exceeding the scope of those covered in the opinions given pursuant to Sections 8(c) and 8(d), respectively, below as the Underwriters may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass on such matters;
(c) U.S. counsel for the Company shall have furnished to the Representatives its written opinion, dated the Time of Delivery for such Designated Securities, reasonably satisfactory to the Underwriters and substantially similar in form and substance to Schedule 8(c) attached hereto;
(d) Spanish counsel for the Company shall have furnished to the Representatives their written opinion, dated the Time of Delivery for such Designated Securities, reasonably satisfactory to the Underwriters and substantially similar in form and substance to Schedule 8(d) attached hereto;
(e) At the Applicable Time and at the Time of Delivery for such Designated Securities, each firm of independent accountants that has certified financial statements of the Company included or incorporated by reference in the Registration Statement shall have furnished to the Underwriters and the directors of the Company a letter or letters, dated each such date, in form and substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus and substantially similar in form and substance to Schedule 8(e) attached hereto;
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(f) Except as contemplated in the Prospectus, as amended or supplemented, since the Applicable Time there shall not have occurred (i) any change or decrease specified in the letter or letters referred to in Section 8(e) or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business, operations, prospects or properties of the Company and the Company’s subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, that, in any case referred to in paragraphs (i) or (ii) above, the Representatives reasonably conclude, after consultation with the Company, impairs the investment quality of each series of the Designated Securities so as to make it impracticable or inadvisable to proceed with the public offering or the delivery of each series of the Designated Securities as contemplated by the Prospectus, and from the Applicable Time to the Time of Delivery (as specified in the Pricing Agreement), no rating of the Company’s long-term senior debt securities shall have been lowered by Moody’s, S&P or Fitch, and other than public announcements made prior to the Applicable Time, none of Moody’s, S&P or Fitch shall have publicly announced that it has under surveillance or review with possible negative implications any rating of the Company’s long-term senior debt securities;
(g) After the Applicable Time there shall not have occurred any of the following: (i) a suspension or material limitation in trading in any securities of the Company by the Spanish National Securities Market Commission (Comisión Nacional del Mercado de Valores or CNMV), the Commission, any Spanish Stock Exchange (which term shall include the Madrid, Barcelona, Valencia and Bilbao Stock Exchanges), the New York Stock Exchange or the London Stock Exchange; (ii) a suspension or material limitation of trading in securities generally on any Spanish Stock Exchange, the New York Stock Exchange, the London Stock Exchange or in the over-the-counter market, or any setting of minimum or maximum prices for trading on such exchange; (iii) a general moratorium on all banking activities declared by any U.S. federal, New York, United Kingdom or Spanish authorities or a material disruption in clearance or settlement systems in the United States, the United Kingdom or Spain; (iv) a change or development involving a prospective change in taxation in Spain affecting such Designated Securities or the imposition of exchange controls by the United States or Spain; (v) a material outbreak or escalation of hostilities involving the United States or Spain or the declaration by the United States or Spain of a national emergency or war; or (vi) the occurrence of any material adverse change in the existing financial, political or economic conditions in the United States or Spain, where the effect of any such event specified in (i) through (vi) above is in the reasonable judgment of the Representatives, after consultation with the Company, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of any series of the Designated Securities on the terms and in the manner contemplated in the Prospectus as amended or supplemented relating to such Designated Securities;
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(h) The Company shall have complied with the provisions of Section 5(c) hereof with respect to the furnishing of copies of the Prospectus on the business day next succeeding the date of the applicable Pricing Agreement;
(i) At the Time of Delivery, each series of the Designated Securities shall have been approved for clearance and settlement through the facilities of DTC, or any other clearance and settlement entity through which the Prospectus specifies that clearance and settlement of each series of the Designated Securities may be made;
(j) The Company shall have furnished or caused to be furnished to the Representatives at the Time of Delivery for the Designated Securities a certificate or certificates of an officer of the Company substantially similar in form and substance to Schedule 8(j) attached hereto, as to the accuracy of the representations and warranties of the Company herein at and as of such Time of Delivery, as to the performance of the Company of all of its obligations hereunder to be performed at or prior to such Time of Delivery and as to the matters set forth in subsections (a) and (f) of this Section; and
(k) If any condition specified in this Section 8 shall not have been fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Representatives by notice to the Company at any time at or prior to the Time of Delivery, and such termination shall be without liability of any party to any other party except that Sections 7, 9, 11, 14, 15, 16, 17, 19, 21, 22 and 23 hereof and any related provisions of the applicable Pricing Agreement shall survive any such termination and remain in full force and effect.
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9.
(a) The Company agrees to indemnify and hold harmless each Underwriter, its directors, officers and employees, and each person, if any, who controls any Underwriter within the meaning of the Act or the Exchange Act against any losses, claims, damages or liabilities or expenses, joint or several, as incurred to which such Underwriter, director, officer, employee or controlling person may become subject, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any preliminary prospectus, any preliminary prospectus supplement, the Registration Statement or the Prospectus, as amended or supplemented, the Pricing Prospectus, the Pricing Disclosure Package, any Issuer Free Writing Prospectus listed in an appendix to the applicable Pricing Agreement, any “issuer information” filed or required to be filed pursuant to Rule 433(d) under the Act or any road show materials listed in an appendix to the applicable Pricing Agreement, in each case, relating to the Designated Securities, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, and will reimburse each Underwriter and each such director, officer, employee or controlling person for any and all expenses (including the fees and disbursements of counsel chosen by such Underwriter, subject to subsection (c) below) as such expenses are incurred by such Underwriter in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action; provided, however, that the foregoing indemnity agreement shall not apply to any loss, claim, damage or liability to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus, any preliminary prospectus supplement, the Registration Statement or the Prospectus, as amended or supplemented, the Pricing Prospectus, the Pricing Disclosure Package, any Issuer Free Writing Prospectus listed in an appendix to the applicable Pricing Agreement or any road show materials listed in an appendix to the applicable Pricing Agreement, in each case, relating to the Designated Securities, or any such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the Underwriter Information.
(b) Each Underwriter severally but not jointly agrees to indemnify and hold harmless the Company and its directors, officers and employees, and each person, if any, who controls the Company within the meaning of the Act or the Exchange Act, against any loss, claim, damage, liability or expense, as incurred, to which each such person may become subject under the Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any preliminary prospectus, any preliminary prospectus supplement, the Registration Statement or the Prospectus, as amended or supplemented, the Pricing Prospectus, the Pricing Disclosure Package or any Issuer Free Writing Prospectus listed in an appendix to the applicable Pricing Agreement, in each case, relating to the Designated Securities, or any amendment or supplement thereto, or arise out of or are based upon the omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in each case to the extent, but only to the extent, arising out of or based upon any untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus, any preliminary prospectus supplement, the Registration Statement or the Prospectus, as amended or supplemented, the Pricing Prospectus, the Pricing Disclosure Package, or any Issuer Free Writing Prospectus listed in an appendix to the applicable Pricing Agreement, in each case, relating to the Designated Securities, or any such amendment or supplement, in reliance upon and in conformity with written information furnished to the Company by any Underwriter of Designated Securities through the Representatives expressly for use therein, it being understood and agreed that the only such information furnished by or on behalf of any Underwriter consists of the Underwriter Information; and will reimburse the Company and each such director, officer, employee or controlling person for any and all expenses (including the fees and disbursements of counsel chosen by the Company, subject to subsection (c) below) as such expenses are incurred by the Company in connection with investigating, defending, settling, compromising or paying any such loss, claim, damage, liability, expense or action.
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(c) Promptly after receipt by an indemnified party under subsection (a) or (b) above of notice of the commencement of any action, such indemnified party shall, if a claim in respect thereof is to be made against the indemnifying party under such subsection, notify the indemnifying party in writing of the commencement thereof; but the omission to so notify the indemnifying party shall not relieve it from any liability which it may have to any indemnified party otherwise than under such subsection. In case any such action shall be brought against any indemnified party and it shall notify the indemnifying party of the commencement thereof, the indemnifying party shall, so far as permitted by any insurance policy of the indemnified party and subject to the indemnifying party agreeing to indemnify the indemnified party against all judgments and other liabilities resulting from such action, be entitled to participate therein and, to the extent that it may elect, jointly with all other indemnifying parties similarly notified, by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof, with counsel satisfactory to such indemnified party; provided that, if the defendants in any such action include both the indemnified party and the indemnifying party, and the indemnified party shall have reasonably concluded that a conflict may arise between the positions of the indemnifying party and the indemnified party in conducting the defense of any such action or that there may be legal defenses available to it and/or other indemnified parties which are different from or additional to those available to the indemnifying party, the indemnified party or parties shall have the right to select separate counsel, to assert such legal defenses and to otherwise participate in the defense of such action on behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to such indemnified party of such indemnifying party’s election so to assume the defense of such action and approval by the indemnified party of counsel, the indemnifying party shall not be liable to such indemnified party under this Section 9 for any legal or other expenses subsequently incurred by such indemnified party in connection with the defense thereof unless (i) the indemnified party shall have employed separate counsel in connection with the assertion of legal defenses in accordance with the proviso to the next preceding sentence (it being understood, however, that the indemnifying party shall not be liable for the expenses of more than one separate counsel (together with local counsel), approved by the representatives representing the indemnified parties who are parties to such action), (ii) the indemnifying party shall not have employed counsel satisfactory to the indemnified party to represent the indemnified party within a reasonable time after notice of commencement of the action or (iii) the indemnifying party has authorized the employment of counsel for the indemnified party at the expense of the indemnifying party; and except that, if clause (i) or (iii) is applicable, such liability shall be only in respect of the counsel referred to in such clause (i) or (iii). An indemnifying party will not, without the prior written consent of each indemnified party, settle or compromise or consent to the entry of any judgment with respect to any pending or threatened claim, action, suit or proceeding in respect of which indemnification or contribution may be sought hereunder (whether or not the indemnified parties are actual or potential parties to such claim or action) unless such settlement, compromise or consent (i) includes an unconditional release of the indemnified party from all liability arising out of such action or claim and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified party. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested that an indemnifying party reimburse the indemnified party for fees and expenses of counsel as contemplated by this Section 9, the indemnifying party shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the indemnifying party of such request and (ii) the indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement.
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(d) If the indemnification provided for in this Section 9 is unavailable to or insufficient to hold harmless an indemnified party under subsection (a) or (b) above in respect of any losses, claims, damages or liabilities (or actions in respect thereof) or expenses referred to therein, then each indemnifying party shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters of the Designated Securities on the other from the offering of the Designated Securities to which such loss, claim, damage or liability (or action in respect thereof) relates. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law or if the indemnified party failed to give the notice required under subsection (c) above, then each indemnifying party shall contribute to such amount paid or payable by such indemnified party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of the Company on the one hand and the Underwriters of the Designated Securities on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities (or actions in respect thereof) or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and such Underwriters on the other shall be deemed to be in the same respective proportions as the total net proceeds from such offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by such Underwriters, in each case as set forth on the cover page of the Prospectus, as amended or supplemented. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company on the one hand or such Underwriters on the other and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this subsection (d) were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation which does not take account of the equitable considerations referred to above in this subsection (d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages or liabilities (or actions in respect thereof) referred to above in this subsection (d) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this subsection (d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Designated Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The obligations of the Underwriters of Designated Securities in this subsection (d) to contribute are several in proportion to their respective underwriting obligations with respect to such Designated Securities and not joint.
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(e) The obligations of the Company under this Section 9 shall be in addition to any liability which the Company may otherwise have and shall extend, upon the same terms and conditions, to each officer, director or employee of each Underwriter and to each person, if any, who controls, is controlled by or is under common control with any Underwriter within the meaning of the Act or the Exchange Act; and the several obligations of the Underwriters under this Section 9 shall be in addition to any liability which the respective Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each officer, director or employee of the Company and to each person, if any, who controls, is controlled by or is under common control with the Company within the meaning of the Act or the Exchange Act.
10.
(a) If any Underwriter shall default in its obligation to purchase the Designated Securities of any series which it has agreed to purchase under the applicable Pricing Agreement, the Representatives may in their discretion, after giving notice to and consulting with the Company, arrange for themselves or another party or other parties to purchase such Designated Securities on the terms contained herein. If within thirty-six hours after such default by any Underwriter the Representatives do not arrange for the purchase of such Designated Securities, then the Company shall be entitled to a further period of thirty-six hours within which to procure another party or other parties satisfactory to the Representatives to purchase such Designated Securities on such terms. In the event that, within the respective prescribed period, the Representatives notify the Company that they have so arranged for the purchase of such Designated Securities, or the Company notifies the Representatives that it has so arranged for the purchase of such Designated Securities, the Representatives or the Company shall have the right to postpone the Time of Delivery for such Designated Securities for a period of not more than seven days, in order to effect whatever changes may thereby be made necessary in the Registration Statement or the Prospectus as amended or supplemented, or in any other documents or arrangements, and the Company agrees to file promptly any amendments or supplements to the Registration Statement or the Prospectus which in the opinion of the Representatives may thereby be made necessary. The term “Underwriter” as used in this Agreement shall include any person substituted under this Section 10 with like effect as if such person had originally been a party to the applicable Pricing Agreement.
(b) If, after giving effect to any arrangements for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representatives or the Company as provided in subsection (a) above, the aggregate principal amount of such Designated Securities which remains unpurchased does not exceed one-eleventh of the aggregate principal amount of the Designated Securities, then the Company shall have the right to require each non-defaulting Underwriter to purchase the principal amount of Designated Securities which such Underwriter agreed to purchase under the applicable Pricing Agreement and, in addition, to require each non-defaulting Underwriter to purchase its pro rata share (based on the principal amount of Designated Securities which such Underwriter agreed to purchase under such Pricing Agreement) of the Designated Securities of such defaulting Underwriter or Underwriters for which such arrangements have not been made; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
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(c) If, after giving effect to any arrangements for the purchase of the Designated Securities of a defaulting Underwriter or Underwriters by the Representatives or the Company as provided in subsection (a) above, the aggregate principal amount of Designated Securities which remains unpurchased exceeds one-eleventh of the aggregate principal amount of such Designated Securities, as referred to in subsection (b) above, or if the Company shall not exercise the right described in subsection (b) above to require non-defaulting Underwriters to purchase such Designated Securities of a defaulting Underwriter or Underwriters, then the applicable Pricing Agreement shall thereupon terminate, without liability on the part of any non-defaulting Underwriter or the Company, except for the expenses to be borne by the Company on the one hand and the Underwriters on the other hand, as provided in Section 7 hereof and the indemnity and contribution agreements in Section 9 hereof; but nothing herein shall relieve a defaulting Underwriter from liability for its default.
Notwithstanding the foregoing, BBVA Securities Inc. will not participate in the terms set out in Section 10 since BBVA Securities Inc. will not purchase any Designated Securities, but instead will procure eligible purchasers for the Designated Securities set forth opposite its name in Schedule I.
11. The respective indemnities, agreements, representations, warranties and other statements of the Company and the several Underwriters, as set forth in this Agreement or made by or on behalf of them, respectively, pursuant to this Agreement, shall remain in full force and effect, regardless of any investigation (or any statement as to the results thereof) made by or on behalf of any Underwriter or any controlling person of any Underwriter, the Company or any officer or director or controlling person of the Underwriters or the Company, and shall survive delivery of and payment for the Designated Securities sold hereunder and any termination of this Agreement.
12. If any Pricing Agreement shall be terminated pursuant to Section 10 hereof, the Company shall not then be under any liability to any Underwriter with respect to the Designated Securities of any series covered by such Pricing Agreement except that Sections 7, 9, 11, 14, 15, 16, 17, 19, 21, 22 and 23 hereof and any related provisions of the applicable Pricing Agreement shall survive any such termination and remain in full force and effect.
13. In all dealings hereunder, the Representatives of the Underwriters of Designated Securities shall act on behalf of each such Underwriter, and the parties hereto shall be entitled to act and rely upon any statement, request, notice or agreement on behalf of any Underwriter made or given by such Representatives jointly or by such of the Representatives, if any, as may be designated for such purpose in the applicable Pricing Agreement.
All statements, requests, notices and agreements hereunder shall be in writing, and if to the Underwriters shall be delivered or sent by mail or electronic transmission to the address of the Representatives as set forth in the applicable Pricing Agreement; and, if to the Company, shall be delivered or sent by mail or electronic transmission to BBVA, Calle Azul 4, 28050 Madrid, Spain, Attention: Daniel Cubero, Email: dangel.cubero@bbva.com; provided, however, that any notice to an Underwriter pursuant to Section 9(c) hereof shall be delivered or sent by mail or electronic transmission to such Underwriter at its address set forth in the applicable Pricing Agreement. Any such statements, requests, notices or agreements shall take effect upon receipt thereof.
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14. This Agreement and each Pricing Agreement shall be binding upon, and inure solely to the benefit of, the Underwriters, the Company and, to the extent provided in Sections 9 and 11 hereof, the officers and directors of the Company and each person who controls the Company or any Underwriter, and their respective heirs, executors, administrators, successors and assigns, and no other person shall acquire or have
any right under or by virtue of this Agreement or any such Pricing Agreement. No purchaser of any Designated Securities from any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
15. The Company waives to the fullest extent permitted by applicable law any claims it may have against the Underwriters arising from an alleged breach of agency, fiduciary or similar duty to the Company in connection with the offering of each series of Designated Securities or the process leading thereto and acknowledges and agrees that each Underwriter is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of each series of Designated Securities (including in connection with determining the terms of the offering contemplated by this Agreement) and not as an agent or fiduciary to the Company or any other person. Additionally, each Underwriter is not advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of such matters, and no Underwriter shall have any responsibility or liability to the Company or any other person with respect to such matters. Any review by an Underwriter of the Company, the transactions contemplated by this Agreement or any other due diligence review by such Underwriter in connection with such transactions will be performed solely for the benefit of such Underwriter and shall not be on behalf of the Company or any other person. This Agreement supersedes all prior agreements and understandings (whether written or oral) between the Company and the Underwriters, or any of them, with respect to the subject matter hereof.
16. The Company irrevocably agrees that any suit, action or proceeding against the Company brought by the Underwriters or by any person who controls the Underwriters, arising out of or based upon this Agreement, the Pricing Agreement or the transactions contemplated hereby may be instituted in any state or federal court in the Borough of Manhattan, The City of New York, New York, and, to the extent permitted by law, irrevocably waives any objection which it may now or hereafter have to the laying of venue of any such suit, action or proceeding, and irrevocably submits to the nonexclusive jurisdiction of such courts in any such suit, action or proceeding. The Company irrevocably appoints Banco Bilbao Vizcaya Argentaria, S.A., New York Branch, as its Authorized Agent (the “Authorized Agent”) upon whom process may be served in any such suit, action or proceeding arising out of or based on this Agreement, the Pricing Agreement or the transactions contemplated hereby or thereby which may be instituted in any state or federal court in the Borough of Manhattan, The City of New York, New York, by an Underwriter or by any person who controls an Underwriter, and the Company expressly consents to the jurisdiction of any such court in respect of any such suit, action or proceeding, and waives any other requirements of or objections to personal jurisdiction with respect thereto. The Company represents and warrants that the Authorized Agent has agreed to act as said agent for service of process, and the Company agrees to take any and all action, including the filing of any and all documents and instruments, that may be necessary to continue such appointment in full force and effect as aforesaid. Service of process upon the Authorized Agent and written notice of such service to the Company shall be deemed, in every respect, effective service of process upon the Company. Notwithstanding the foregoing, any suit, action or proceeding based on this Agreement may be instituted by the Underwriters in any competent court in Spain.
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17. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.
18. In respect of any judgment or order given or made for any amount due hereunder that is expressed and paid in a currency (the “judgment currency”) other than United States dollars, the Company will indemnify each Underwriter against any loss incurred by such Underwriter as a result of any variation as between (i) the rate of exchange at which the United States dollar amount is converted into the judgment currency for the purpose of such judgment or order and (ii) the rate of exchange at which an Underwriter is able to purchase United States dollars with the amount of judgment currency actually received by such Underwriter. The foregoing indemnity shall constitute a separate and independent obligation of the Company and shall continue in full force and effect notwithstanding any such judgment or order as aforesaid. The term “rate of exchange” shall include any premiums and costs of exchange payable in connection with the purchase of or conversion into United States dollars.
19. Time shall be of the essence of each Pricing Agreement. As used herein, “business day” shall mean any day when the Commission’s office in Washington, D.C. is open for business.
20. The invalidity or unenforceability of any section, paragraph or provision of this Agreement shall not affect the validity or enforceability of any other section, paragraph or provision hereof.
21. Except as may be otherwise provided in a Pricing Agreement, this Agreement and each Pricing Agreement and any matters or controversies arising out of or related to any such agreement shall be governed by and construed in accordance with the laws of the State of New York.
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22. Notwithstanding and to the exclusion of any other term of this Agreement, any Pricing Agreement or any other agreements, arrangements, or understandings between the Company and any or all of the Underwriters, each of the Company and each Underwriter acknowledges and accepts that a BRRD Liability arising under this Agreement may be subject to the exercise of (A) the Spanish Bail-in Power by the Relevant Spanish Resolution Authority and/or (B) Bail-in Powers by the Relevant Resolution Authority and acknowledges, accepts, consents to and agrees to be bound by:
(a) the exercise and effects of (A) the Spanish Bail-in Power by the Relevant Spanish Resolution Authority in relation to any BRRD Liability of the Company to such Underwriter and/or (B) Bail-in Powers by the Relevant Resolution Authority in relation to any BRRD Liability of an Underwriter to the Company under this Agreement, which may be imposed with or without any prior notice and (without limitation) may include and result in any of the following, or some combination thereof:
(i) the reduction of all, or a portion, of such BRRD Liability or outstanding amounts due thereon;
(ii) the conversion of all, or a portion, of such BRRD Liability or outstanding amounts due thereon into shares, other securities or other obligations of the Company or any Underwriter, as applicable, or another person, and the issue to or conferral on such Underwriter or the Company, as applicable, of any such shares, securities or obligations, including by means of an amendment, modification or variation of the terms of any BRRD Liability;
(iii) the cancellation of such BRRD Liability or outstanding amounts due thereon; and/or
(iv) the amendment or alteration of any interest or distribution payable, if applicable, on such BRRD Liability or outstanding amounts due thereon, and the maturity or the dates on which any payments on such BRRD Liability or outstanding amounts are due, including by suspending payment for a temporary period; and
(b) the variation of the terms of such BRRD Liability or outstanding amounts due thereon, this Agreement and/or the relevant Pricing Agreement, as deemed necessary by the Relevant Resolution Authority and/or the Relevant Spanish Resolution Authority, to give effect to the exercise of (A) the Bail-in Powers by the Relevant Resolution Authority and/or (B) the Spanish Bail-in Power by the Relevant Spanish Resolution Authority, as applicable.
23.
(a) In the event that any Underwriter that is a Covered Entity becomes subject to a proceeding under a U.S. Special Resolution Regime, the transfer from such Underwriter of this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws of the United States or a state of the United States.
(b) In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States or a state of the United States.
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For purposes of this Section 23, the following terms shall have the following meanings:
“BHC Act Affiliate” has the meaning assigned to the term “affiliate” in, and shall be interpreted in accordance with, 12 U.S.C. § 1841(k).
“Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b);
(ii) a “covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or
(iii) a “covered FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b).
“Default Right” has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as applicable.
“U.S. Special Resolution Regime” means each of (i) the Federal Deposit Insurance Act and the regulations promulgated thereunder and (ii) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated thereunder.
24. Solely for the purposes of the requirements of Article 9(8) of the MiFID Product Governance rules under EU Delegated Directive 2017/593, as amended (the “MiFID Product Governance Rules”), regarding the mutual responsibilities of manufacturers under the MiFID Product Governance Rules:
(a) the Company acknowledges that it understands the responsibilities conferred upon it under the MiFID Product Governance Rules relating to: (i) each of the product approval process, the target market and the proposed distribution channels as applying to the Designated Securities and (ii) the related information set out in the Pricing Prospectus, the Prospectus, the Prospectus Supplement, the Final Term Sheet and any announcements in connection with the Designated Securities; and
(b) each Underwriter notes the application of the MiFID Product Governance Rules and acknowledges the target market and distribution channels identified as applying to the Designated Securities by the Company and the related information set out in the Pricing Prospectus, the Prospectus, the Prospectus Supplement, the Final Term Sheet and any announcements in connection with the Designated Securities.
25. This Agreement and any Pricing Agreement may be executed manually, by facsimile or by electronic signature in any number of counterparts, each of which so executed shall be deemed to be an original, but all such counterparts of this Agreement or a Pricing Agreement, as the case may be, shall together constitute but one and the same instrument. The exchange of copies of this Agreement or any Pricing Agreement and of signature pages by facsimile, email or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) transmission or other electronically-imaged signature (including, without limitation, DocuSign or Adobe Acrobat Sign) or transmission shall constitute effective execution and delivery of such agreement as to the parties hereto or thereto, as the case may be, and may be used in lieu of the original agreement for all purposes. Signatures of the parties hereto or thereto transmitted by facsimile, email or other electronic format (e.g., “pdf,” “tif” or “jpg”) (including, without limitation, DocuSign or Adobe Acrobat Sign) shall be deemed to be their original signatures for all purposes. Unless otherwise provided herein, the words “execute,” “execution,” “signed,” and “signature” and words of similar import used in or related to any document to be signed in connection with this Agreement, any Pricing Agreement or any of the transactions contemplated hereby or thereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic signatures and the keeping of records in electronic form, each of which shall be of the same legal effect, validity and enforceability as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other similar state laws based on the Uniform Electronic Transactions Act.
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Schedule 8(c)
Form of Opinion of U.S. Counsel
in connection with Section 8(c) of the Underwriting Agreement
Sch-8(c)-1
29
Schedule 8(d)
Form of Opinion of Spanish Counsel
in connection with Section 8(d) of the Underwriting Agreement
Sch-8(d)-1
Schedule 8(e)
Forms of Auditors’ Comfort Letter
in connection with Section 8(e) of the Underwriting Agreement
Sch-8(e)-1
Schedule 8(j)
Form of Certificate
in connection with Section 8(j) of the Underwriting Agreement
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.
OFFICER’S CERTIFICATE PURSUANT TO SECTION 8(j)
OF THE UNDERWRITING AGREEMENT
September 3, 2026
The undersigned, [ ], does hereby certify, pursuant to Section 8(j) of the underwriting agreement dated August 25, 2026 (the “Underwriting Agreement”) incorporated by reference in the Pricing Agreement dated August 25, 2026 (the “Pricing Agreement”), between Banco Bilbao Vizcaya Argentaria, S.A., a sociedad anónima incorporated under the laws of the Kingdom of Spain (the “Company”), on the one hand, and the Underwriters named therein (the “Underwriters”), on the other hand, on behalf of the Company and to the best of [his] [her] knowledge, after reasonable investigation, that:
| (i) | attached hereto as Exhibit A are true, complete and correct specimens of the global certificates representing each series of Designated Securities; |
| (ii) | the representations and warranties of the Company in the Underwriting Agreement are accurate at and as of the Time of Delivery; |
| (iii) | the Company has performed all of its obligations under the Underwriting Agreement to be performed at or prior to the Time of Delivery; |
| (iv) | the Final Term Sheet has been filed with the Commission within the applicable time period prescribed for such filing by Rule 433(d) under the Act and the Prospectus as amended or supplemented in relation to such Designated Securities has been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) of the Underwriting Agreement; no stop order suspending the effectiveness of the Registration Statement or any part thereof or suspending the use of the Prospectus or any Issuer Free Writing Prospectus has been issued and no proceeding for that purpose has been initiated or, to the knowledge of the Company, threatened by the Commission; and all requests for additional information on the part of the Commission have been complied with; and |
| (v) | except as contemplated in the Prospectus, as amended or supplemented, since the Applicable Time there has not occurred (i) any change or decrease specified in the letter or letters referred to in Section 8(e) of the Underwriting Agreement or (ii) any change, or any development involving a prospective change, in or affecting the financial condition, earnings, business, operations, prospects or properties of the Company, taken as a whole, whether or not arising from transactions in the ordinary course of business, and at or after the Applicable Time, no rating of the Company’s long-term senior debt securities has been lowered by Moody’s, S&P or Fitch, and other than public announcements made prior to the Applicable Time, none of Moody’s, S&P or Fitch has publicly announced that it has under surveillance or review with possible negative implications any rating of the Company’s long-term senior debt securities. |
Capitalized terms used but not defined herein shall have the meanings assigned to them in the Underwriting Agreement and the Pricing Agreement.
Schedule 8(j)-1
IN WITNESS WHEREOF, I have executed this certificate on behalf of the Company as of the date first written above.
| By: | ||
| Name: | ||
| Title: |
I, [ ], [ ] of the Company, do hereby certify that the signature set forth opposite his name is the true and genuine signature of [ ].
IN WITNESS WHEREOF, I have hereunto signed my name as of the date first written above.
| By: | ||
| Name: | ||
| Title: |
Exhibit 4.6
FIFTH SUPPLEMENTAL INDENTURE
among
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.,
as Issuer,
THE BANK OF NEW YORK MELLON, LONDON BRANCH,
as Trustee, Paying Agent and Transfer Agent
THE BANK OF NEW YORK MELLON,
as Security Registrar
September 3, 2026
$1,000,000,000
4.977% SENIOR NON-PREFERRED FIXED RATE NOTES DUE 2029
TABLE OF CONTENTS
| PAGE | ||
| Article 1 | ||
| Definitions and Other Provisions of General Application | 2 | |
| Section 1.01. | Definitions | 2 |
| Section 1.02. | Conflict with Trust Indenture Act | 3 |
| Section 1.03. | Effect of Headings and Table of Contents | 3 |
| Section 1.04. | Successors and Assigns | 3 |
| Section 1.05. | Separability Clause | 3 |
| Section 1.06. | Benefits of Indenture | 4 |
| Section 1.07. | Governing Law | 4 |
| Section 1.08. | Submission to Jurisdiction | 4 |
| Section 1.09. | Execution in Counterparts | 4 |
| Section 1.10. | Recitals by the Issuer | 4 |
| Section 1.11. | Ratification and Incorporation of Original Indenture | 5 |
| Article 2 | ||
| SNP Securities | 5 | |
| Section 2.01. | Creation of SNP Securities | 5 |
| Section 2.02. | Limitation on Aggregate Principal Amount of SNP Securities | 5 |
| Section 2.03. | Payment of Principal | 5 |
| Section 2.04. | Interest and Interest Rate | 5 |
| Section 2.05. | Denominations, Minimum Purchase Amount | 6 |
| Section 2.06. | Paying Agent | 6 |
| Section 2.07. | Security Certificates | 7 |
| Section 2.08. | Redemption and Purchase | 8 |
| Section 2.09. | Definitive Certificates and Authentication | 8 |
| Section 2.10. | Agreement with Respect to the Exercise of Spanish Bail-in Power | 9 |
| Section 2.11. | Amended Provision of Original Indenture | 10 |
| Section 2.12. | Notices | 11 |
| Section 2.13. | Instructions by Electronic Means | 11 |
| EXHIBIT A | Form of Security Certificate Representing SNP Securities | A-1 |
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THIS FIFTH SUPPLEMENTAL INDENTURE, dated as of September 3, 2026 is among Banco Bilbao Vizcaya Argentaria, S.A., a sociedad anónima incorporated under the laws of the Kingdom of Spain (the “Issuer” or the “Company”), having its principal executive office located at Calle Azul 4, Madrid, 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, currently having its principal corporate trust office located at 240 Greenwich Street, New York, New York 10286, United States, and acting (except with respect to its role as security registrar) through its London Branch currently located at 160 Queen Victoria Street, London EC4V 4LA, United Kingdom, as trustee (the “Trustee”, which term includes any successor Trustee), paying agent (the “Paying Agent”, which term includes any successor Paying Agent), transfer agent (the “Transfer Agent”, which term includes any successor Transfer Agent), and security registrar (the “Security Registrar”, which term includes any successor Security Registrar) (the “Fifth Supplemental Indenture”).
WITNESSETH:
WHEREAS, the Company and the Trustee have executed and delivered a Senior Non-Preferred Debt Securities Indenture, dated as of July 31, 2025 (the “Original Indenture”), to provide for the issuance of the Company’s Securities (as such term is defined therein);
WHEREAS, the Company hereto desires to issue a new series of Securities to be known as the 4.977% Senior Non-Preferred Fixed Rate Notes due 2029 (Bonos Simples No Preferentes Agosto 2026-SEC-15) (the “SNP Securities”);
WHEREAS, the parties hereto desire to establish that the SNP Securities shall be issued in the form of one or more Global Securities substantially in the form of Exhibit A to this Fifth Supplemental Indenture pursuant to Sections 2.01 and 3.01 of the Original Indenture;
WHEREAS, Section 9.01(c) of the Original Indenture permits the Company and the Trustee to enter into a supplemental indenture to establish the form or terms of Securities of any series as permitted under Sections 2.01 and 3.01 of the Original Indenture without the consent of Holders;
WHEREAS, Section 9.01(j) of the Original Indenture permits the Company and the Trustee to delete, amend or supplement any provision of the Original Indenture, subject to certain conditions, without the consent of Holders;
WHEREAS, this Fifth Supplemental Indenture shall amend and supplement the Original Indenture but only with respect to the SNP Securities; to the extent the terms of the Original Indenture (as amended and supplemented by this Fifth Supplemental Indenture) are inconsistent with the provisions of this Fifth Supplemental Indenture, the terms of this Fifth Supplemental Indenture shall control and prevail, but only with respect to the SNP Securities. The Original Indenture, as amended and supplemented by, and together with, this Fifth Supplemental Indenture are hereinafter referred to as the “Indenture;”
WHEREAS, there are no Securities outstanding of any series created prior to the execution of this Fifth Supplemental Indenture that are entitled to the benefit of the provisions set forth herein or that would be adversely affected by such provisions;
WHEREAS, the Issuer has on its own initiative approached The Bank of New York Mellon, London Branch to receive the services described in this Fifth Supplemental Indenture; and
WHEREAS, the Company has requested and does hereby request that the Trustee execute and deliver this Fifth Supplemental Indenture, and whereas all actions required by the Company to be taken in order to make this Fifth Supplemental Indenture a valid, binding and enforceable instrument in accordance with its terms, have been taken and performed, and the execution and delivery of this Fifth Supplemental Indenture have been duly authorized in all respects,
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NOW, THEREFORE, the Company and the Trustee mutually covenant and agree as follows:
Article 1
Definitions and Other Provisions of General Application
Section 1.01. Definitions. For all purposes of this Fifth Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(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) unless the context otherwise requires, any reference to an “Article” or a “Section” means an Article or a Section, as the case may be, of this Fifth Supplemental Indenture;
(d) the words “herein”, “hereof”, “hereto”, and “hereunder” and other words of similar import refer to this Fifth Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision;
(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”);
(f) the term “including” means “including without limitation”;
(g) all terms used but not defined in this Fifth Supplemental Indenture, which are defined in the Original Indenture (as amended and supplemented hereby), shall have the meanings assigned to them in the Original Indenture (as amended and supplemented hereby);
(h) references herein to any act or statute or any provision of any act or statute shall be deemed also to refer to any statutory modification or re-enactment thereof or any statutory instrument, order or regulation made thereunder or under such modification or re-enactment; and
(i) the following terms used in this Fifth Supplemental Indenture shall have the following meanings:
“Business Day” means any day, other than Saturday or Sunday, that is neither a Legal Holiday nor a day on which banking institutions are authorized or required by law, regulation or executive order to close in the City of New York, London or Madrid.
“Client Assets Sourcebook” means the CASS sourcebook as set out in the FCA Rules.
“Client Money Distribution and Transfer Rules” means the client money distribution and transfer rules set out in Chapter 7A of the Client Assets Sourcebook.
“Client Money Rules” means the client money rules set out in Chapter 7 of the Client Assets Sourcebook of the FCA Rules.
“Company” means the Person named as “Company” in the first paragraph of this Fifth Supplemental Indenture until a successor Person shall have become such pursuant to the applicable provisions of the Indenture, and thereafter “Company” shall mean such successor Person, and any other obligor upon the SNP Securities.
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“Depository” and “U.S. Depository” shall have the meanings ascribed to such terms in Section 1.01 of the Original Indenture. The Depository Trust Company (and its successors) is hereby designated as Depository and U.S. Depository with respect to the SNP Securities.
“FCA” means the United Kingdom’s Financial Conduct Authority whose current address is at 12 Endeavour Square, London E20 1JN (and any successor regulatory authority).
“FCA Rules” means the rules promulgated by the FCA under FSMA as amended or replaced from time to time.
“FSMA” means the Financial Services and Markets Act 2000.
“Interest Payment Date” has the meaning ascribed in Section 2.04(b).
“Issue Date” means September 3, 2026.
“Issuer” means the Person named as “Issuer” in the first paragraph of this Fifth Supplemental Indenture until a successor Person shall have become such pursuant to the applicable provisions of the Indenture, and thereafter “Issuer” shall mean such successor Person, and any other obligor upon the SNP Securities.
“Paying Agent” means the Person named as “Paying Agent” in the first paragraph of this Fifth Supplemental Indenture.
“Redemption Date” has the meaning ascribed in Section 2.08.
“Redemption Price” has the meaning ascribed in Section 2.08.
“Regular Record Date” means the 15th calendar day before the applicable Interest Payment Date.
“Stated Maturity Date” means September 3, 2029.
“Transfer Agent” means the Person named as “Transfer Agent” in the first paragraph of this Fifth Supplemental Indenture.
“Trustee” means the Person named as “Trustee” in the first paragraph of this Fifth Supplemental Indenture.
Section 1.02. Conflict with Trust Indenture Act. If any provision hereof 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 the Indenture, the provision of the Trust Indenture Act shall control. If any provision of this Fifth Supplemental Indenture modifies or 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 Fifth Supplemental Indenture as so modified or to be excluded, as the case may be.
Section 1.03. 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 1.04. Successors and Assigns. All covenants and agreements in this Fifth Supplemental Indenture made by the Issuer shall bind its successors and assigns, whether so expressed or not.
Section 1.05. Separability Clause. In case any provision in this Fifth Supplemental Indenture or the SNP Securities 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.
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Section 1.06. Benefits of Indenture. Nothing in the Indenture or the SNP Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders of SNP Securities, any benefit or any legal or equitable right, remedy or claim under the Indenture.
Section 1.07. Governing Law. This Fifth Supplemental Indenture and the SNP Securities (except as set forth herein and therein) shall be governed by and construed in accordance with 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 of this Fifth Supplemental Indenture, the authorization, issuance and execution by the Company of the SNP Securities, Section 2.10 hereof, the SNP Securities to the extent set forth therein and the Original Indenture (as amended and supplemented hereby) to the extent set forth therein shall be governed by and construed in accordance with the common laws (derecho común) of Spain.
Section 1.08. Submission to Jurisdiction. Except as provided in the immediately following two sentences, the Company hereby irrevocably submits to the non-exclusive jurisdiction of any U.S. federal or state court in the Borough of Manhattan, the City of New York, New York in any suit or proceeding arising out of or relating to the SNP Securities or the Indenture, and irrevocably 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 anything to the contrary in the SNP Securities or the Indenture, the Spanish courts in the city of Madrid shall have exclusive jurisdiction in respect of any suit or proceeding arising out of or relating to the SNP Securities or the Indenture arising out of, relating to or in connection with the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority (a “Bail-in Dispute”) and accordingly each of the Company, the Trustee, each Holder and beneficial owner of any SNP Securities and each Agent submits, to the extent it may effectively do so, to the exclusive jurisdiction of such Spanish courts in relation to any Bail-in Dispute. Each of the Company, the Trustee, each Holder and beneficial owner of any SNP Securities and each Agent further irrevocably waives, to the extent it may effectively do so, any objection to the Spanish courts in the city of Madrid on the grounds that they are an inconvenient or inappropriate forum in respect of any Bail-in Dispute.
Section 1.09. Execution in Counterparts. This Fifth Supplemental Indenture may be executed manually, by facsimile or by electronic signature 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. The exchange of copies of this Fifth Supplemental Indenture and of signature pages by email or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) transmission or other electronically-imaged signature (including, without limitation, DocuSign, Signaturit or Adobe Acrobat Sign) or transmission shall constitute effective execution and delivery of this Fifth Supplemental Indenture as to the parties hereto and may be used in lieu of the original Fifth Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by email or other electronic format (e.g., “pdf,” “tif” or “jpg”) (including, without limitation, DocuSign, Signaturit or Adobe Acrobat Sign) shall be deemed to be their original signatures for all purposes. Unless otherwise provided herein or in the SNP Securities, the words “execute,” “execution,” “signed,” and “signature” and words of similar import used in or related to any document to be signed in connection with this Fifth Supplemental Indenture, any SNP Securities or any of the transactions contemplated hereby or thereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic signatures and the keeping of records in electronic form, each of which shall be of the same legal effect, validity and enforceability as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other similar state laws based on the Uniform Electronic Transactions Act.
Section 1.10. Recitals by the Issuer. The recitals in this Fifth Supplemental Indenture are made by the Issuer only and not by the Trustee, and all of the provisions contained in the Original Indenture (as amended and supplemented hereby) in respect of the rights, privileges, immunities, powers and duties of the Trustee shall be applicable in respect of the SNP Securities and of this Fifth Supplemental Indenture as fully and with like effect as if set forth herein in full.
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Section 1.11. Ratification and Incorporation of Original Indenture. As amended and supplemented hereby with respect to the SNP Securities, the Original Indenture is in all respects ratified and confirmed, and the Original Indenture (as so amended and supplemented) and this Fifth Supplemental Indenture shall be read, taken and construed as one and the same instrument. In the event of any conflict between the terms and conditions of the Original Indenture (as amended and supplemented hereby) and the terms and conditions of this Fifth Supplemental Indenture, the terms and conditions of this Fifth Supplemental Indenture shall prevail.
Article 2
SNP Securities
Section 2.01. Creation of SNP Securities. There is hereby created a new series of senior non-preferred debt securities, the SNP Securities, to be issued under the Indenture. The SNP Securities will be issued at 100% of their principal amount by means of the public deed of issuance executed on August 26, 2026 and registered with the Commercial Registry of Vizcaya (Registro Mercantil de Vizcaya) on August 31, 2026.
Section 2.02. Limitation on Aggregate Principal Amount of SNP Securities. The aggregate principal amount of the SNP Securities shall initially be limited to $1,000,000,000 (except as otherwise provided in the Original Indenture (as amended and supplemented hereby)). The Issuer may from time to time, without the consent of the Holders of SNP Securities, create and issue further securities having the same terms and conditions as the previously issued SNP Securities in all respects (or in all respects except for the issue date, the original interest accrual date and/or the issue price), so that such further issue shall be consolidated and form a single series with the Outstanding SNP Securities; provided, however, that any such further issuance will only be made if either such additional securities are issued with no more than de minimis original issue discount for U.S. federal income tax purposes or any such further issuance is a “qualified reopening” as such term is defined under U.S. Treasury Regulations Section 1.1275-2(k)(3) promulgated under the U.S. Internal Revenue Code of 1986, as amended.
Section 2.03. Payment of Principal. The principal of the Outstanding SNP Securities shall be due and payable on the Stated Maturity Date or on such earlier date as the principal thereof may become due and payable in accordance with the provisions hereof.
Section 2.04. Interest and Interest Rate. (a) From (and including) the Issue Date to (but excluding) the Stated Maturity Date or any date of earlier redemption, the SNP Securities will bear interest at a fixed rate of 4.977% per annum.
(b) The Issuer will pay interest in arrears on the SNP Securities semi-annually on March 3 and September 3 of each year (each an “Interest Payment Date”), commencing on March 3, 2027, up to (and including) the Stated Maturity Date or any date of earlier redemption.
(c) Interest on the SNP Securities will be computed on the basis of a 360-day year of twelve 30-day months. Except as described below for the first Interest Payment Date, on each Interest Payment Date, the Issuer will pay interest on the SNP Securities for the period commencing on (and including) the immediately preceding Interest Payment Date and ending on (and including) the day immediately preceding that Interest Payment Date.
(d) On the first Interest Payment Date, the Issuer will pay interest for the period beginning on (and including) the Issue Date to (but excluding) March 3, 2027.
(e) If any Interest Payment Date falls on a day that is not a Business Day, the related interest payment shall be postponed to the next day that is a Business Day, and no interest on such payment shall accrue for the period from and after such Interest Payment Date.
(f) If the Stated Maturity Date or date of earlier redemption of any SNP Security falls on a day that is not a Business Day, payment of principal and interest on the applicable SNP Security will be made on the next succeeding day that is a Business Day, and no interest will accrue for the period from and after such Stated Maturity Date or date of earlier redemption.
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(g) Interest on each SNP Security will be paid only to the Person in whose name such SNP Security was registered at the close of business on the Regular Record Date for the applicable Interest Payment Date.
Section 2.05. Denominations, Minimum Purchase Amount. The SNP Securities may be issued in minimum denominations of $200,000 with increments of $200,000 thereafter.
Section 2.06. Paying Agent. (a) Upon the terms and subject to the conditions contained herein, the Issuer hereby appoints The Bank of New York Mellon, London Branch as the initial Paying Agent under the Indenture for the purpose of performing the functions of the Paying Agent with respect to the SNP Securities, and the Paying Agent hereby accepts such appointment.
(b) The Paying Agent shall exercise due care in performing the functions of the Paying Agent for the SNP Securities.
(c) The Paying Agent accepts its obligations set forth in the Indenture (including Section 6.16 of the Original Indenture), upon the terms and subject to the conditions set forth in the Indenture, including the following, to all of which the Issuer agrees:
(i) The Paying Agent shall be entitled to such compensation as may be agreed in writing with the Issuer for all services rendered by the Paying Agent, and the Issuer promises to pay such compensation and to reimburse the Paying Agent for the reasonable out-of-pocket expenses (including reasonable counsel fees and expenses) incurred by it in connection with the services rendered by it hereunder upon receipt of such invoices as the Issuer shall reasonably require. The Issuer agrees to indemnify the Paying Agent for, and to hold it harmless against, any and all loss, liability, damage, claims or expenses (including the costs and expenses of defending against any claim of liability and excluding taxes based upon, measured by or determined by the income of the Paying Agent) incurred by the Paying Agent that arises out of or in connection with its acting as Paying Agent hereunder, except such as may result from the gross negligence, willful misconduct or bad faith of the Paying Agent or any of its agents or employees. The Paying Agent shall incur no liability and shall be indemnified and held harmless by the Issuer for, or in respect of, any actions taken, omitted to be taken or suffered to be taken in good faith by the Paying Agent in reliance upon (A) the written opinion of counsel satisfactory to it and upon obtaining the prior written consent of the Issuer or (B) written instructions from the Issuer.
The Paying Agent shall notify the Company in writing of the commencement of any action or claim in respect of which indemnification may be sought promptly after any officer of the Trustee becomes aware of such commencement (provided that the failure to make such notification shall not affect the Paying Agent’s rights hereunder) and the Company shall be entitled to participate therein. The Paying Agent shall not be authorized to settle a claim without the written consent of the Company, which consent shall not be unreasonably withheld or delayed.
(ii) In acting under the Indenture and in connection with the SNP Securities, the Paying Agent is acting solely as agent of the Issuer and does not assume any obligations to, or relationship of agency or trust for or with, any of the Holders of such SNP Securities.
(iii) The Paying Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted to be taken or anything suffered by it in reliance upon the terms of the SNP Securities, any notice, direction, certificate, affidavit, statement or other paper, document or communication reasonably believed by it to be genuine and to have been approved or signed by the proper party or parties.
(iv) Unless herein otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Issuer made or given by it under any provision of the Indenture shall be sufficient if signed by an authorized person of the Issuer.
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(v) The Paying Agent may, upon obtaining the prior written consent of the Issuer, perform any duties hereunder either directly or by or through agents or attorneys, and, except as otherwise provided in the Indenture, the Paying Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
(vi) All money held for the Issuer is held by the Paying Agent as banker and not as a trustee under the Client Money Rules. If the Paying Agent fails, the Client Money Distribution and Transfer Rules will not apply to such money and so the Issuer will not be entitled to share in any distribution under the Client Money Distribution and Transfer Rules.
(d) (i) The Paying Agent may at any time resign as Paying Agent by giving written notice to the Issuer of such intention on its part, specifying the date on which its desired resignation shall become effective; provided, however, that such date shall not be earlier than 60 days after the receipt of such notice by the Issuer, unless the Issuer agrees in writing to accept less notice. The Paying Agent may be removed by the Issuer (with or without cause) at any time by the filing with it of any instrument in writing signed on behalf of the Issuer by an authorized person thereof and specifying such removal and the date when it is intended to become effective, subject to the Company providing a copy of such notice to the Trustee. Such resignation or removal shall take effect only upon the date of the appointment by the Issuer, as hereinafter provided, of a successor Paying Agent. If within 60 days after notice of resignation or removal has been given, a successor Paying Agent has not been appointed, the Paying Agent may petition a court of competent jurisdiction to appoint a successor Paying Agent. A successor Paying Agent shall be appointed by the Issuer by an instrument in writing signed on behalf of the Issuer by an authorized person thereof and the successor Paying Agent. Upon the appointment of a successor Paying Agent and acceptance by it of such appointment, the Paying Agent so superseded shall cease to be such Paying Agent hereunder. Upon its resignation or removal, the Paying Agent shall be entitled to the payment by the Issuer of its compensation, if any is owed to it, for services rendered hereunder and to the reimbursement of all reasonable out-of-pocket expenses incurred in connection with the services rendered by it hereunder.
(ii) Any successor Paying Agent appointed hereunder shall execute and deliver to its predecessor and to the Issuer an instrument accepting such appointment hereunder, and thereupon such successor Paying Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally named as such Paying Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become obliged to transfer and deliver, and such successor Paying Agent shall be entitled to receive, copies of any relevant records maintained by such predecessor Paying Agent.
(iii) Any Person into which the Paying Agent may be merged or converted or with which the Paying Agent may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Paying Agent shall be a party, or any Person succeeding to all or substantially all of the assets and business of the Paying Agent, or all or substantially all of the corporate trust business of the Paying Agent shall, to the extent permitted by applicable law, be the successor Paying Agent under the Indenture without the execution or filing of any paper or any further act on the part of any of the parties hereto. Notice of any such merger, conversion, consolidation or sale shall forthwith be given to the Issuer within 30 days of such merger, conversion, consolidation or sale.
Section 2.07. Security Certificates. (a) The SNP Securities shall initially be represented by one or more global certificates (the “Global Certificates”) substantially in the form of Exhibit A (attached hereto), which shall be deposited with a custodian for the Depository and the SNP Securities represented thereby will be registered in the name of a nominee of the Depository (initially Cede & Co.), for the accounts of participants in the Depository.
(b) SNP Securities represented by a Global Certificate may be transferred, in whole and not in part, only: (i) by the Depository to a nominee of the Depository, (ii) by a nominee of the Depository to the Depository or to another nominee of the Depository, or (iii) by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.
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(c) Beneficial interests in any SNP Securities represented by a Global Certificate will be exchangeable for SNP Securities represented by definitive certificates (“Definitive Certificates”) only if: (i) the Depository notifies the Issuer in writing that it is unwilling, unable or ineligible to continue to act as Depository or that it has ceased to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, and, in either case, a successor Depository is not appointed by the Issuer within 60 days after the date of such notice from the Depository, (ii) the Issuer notifies the Trustee in writing that it has reasonably elected to cause the issuance of SNP Securities represented by Definitive Certificates or (iii) there shall have occurred and be continuing an Event of Default with respect to the SNP Securities.
(d) Upon the occurrence of any of the events specified in Section 2.07(c)(i), (ii) or (iii) above, SNP Securities represented by Definitive Certificates shall be (i) delivered by the Trustee in exchange for beneficial interest in SNP Securities represented by Global Certificates and (ii) registered in such names, and issued in such authorized denominations, as shall be requested by or on behalf of the Depository in accordance with its customary procedures.
Section 2.08. Redemption and Purchase. (a) The provisions of Article 11 of the Original Indenture (as amended and supplemented hereby), except for Section 11.10 thereof, will apply to the SNP Securities. Any such redemption or purchase shall be in compliance with Applicable Banking Regulations then in force and subject to the prior consent of the Regulator, if required pursuant to such regulations. The “Redemption Price” means, with respect to any SNP Securities to be redeemed pursuant to Article 11 of the Original Indenture (as amended and supplemented hereby), an amount equal to 100% of their principal amount, together with accrued but unpaid interest, if any, thereon to (but excluding) the Redemption Date. The “Redemption Date” of any SNP Securities to be redeemed will be any day fixed by the Issuer for redemption of such SNP Securities and specified in the applicable notice of redemption provided by the Issuer pursuant to Section 11.04 of the Original Indenture; provided, however, that in any case where the Redemption Date shall not be a Business Day, then the SNP Securities will not become due and payable and deposit of the Redemption Price will not be made on such Redemption Date, but the SNP Securities will become due and payable and deposit of the Redemption Price will be made on the next succeeding day that is a Business Day with the same force and effect as if the SNP Securities had become due and payable and the deposit of the Redemption Price had been made on the Redemption Date, and no interest shall accrue on the amount payable on such Redemption Date or at such time for the period from and after such Redemption Date.
(b) All or part only of the SNP Securities may be redeemed at the Redemption Price in accordance with the terms of Article 11 of the Original Indenture (as amended and supplemented hereby) at the option of the Issuer if a Tax Event occurs on or after the Issue Date of the SNP Securities.
(c) All (but not less than all) of the SNP Securities may be redeemed at the Redemption Price in accordance with the terms of Article 11 of the Original Indenture (as amended and supplemented hereby) at the option of the Issuer if an Eligible Liabilities Event occurs on or after the Issue Date of the SNP Securities.
(d) All (but not less than all) of the SNP Securities may be redeemed at the Redemption Price in accordance with the terms of Article 11 of the Original Indenture (as amended and supplemented hereby) at the option of the Issuer if, on or after the Issue Date, SNP Securities representing, in the aggregate, 75% or more of the aggregate principal amount of the SNP Securities (including, both in the numerator and the denominator, (i) any SNP Securities issued after the Issue Date, and (ii) any SNP Securities which have been cancelled by the Trustee following their surrender for cancellation in accordance with Section 11.12 of the Original Indenture) have been purchased by or on behalf of the Issuer or any member of the Group.
Section 2.09. Definitive Certificates and Authentication. Any Definitive Certificates issued in exchange for beneficial interests in the SNP Securities represented by Global Certificates pursuant to Section 2.07 of this Fifth Supplemental Indenture or Section 2.03 of the Original Indenture shall be issued in the State of New York. Notwithstanding any other provision in the Indenture or the SNP Securities, the SNP Securities, irrespective of whether they are represented by Global Certificates or Definitive Certificates, shall be issued and authenticated in New York.
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Section 2.10. Agreement with Respect to the Exercise of Spanish Bail-in Power. (a) Notwithstanding any other term of the SNP Securities, the Indenture or any other agreements, arrangements, or understandings between the Company and any Holder, by its acquisition of the SNP Securities or any beneficial interest therein, each Holder (which, for the purposes of this Section 2.10, includes each holder of a beneficial interest in the SNP Securities) acknowledges, accepts, consents to and agrees to be bound by: (i) the exercise and effects of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority, which may be imposed with or without any prior notice with respect to the SNP Securities, and may include and result in any of the following, or some combination thereof: (1) the reduction or cancellation of all, or a portion, of the Amounts Due on the SNP Securities; (2) the conversion of all, or a portion, of the Amounts Due on the SNP Securities into shares, other securities or other obligations of the Company or another Person (and the issue to or conferral on the Holder of any such shares, securities or obligations), including by means of an amendment, modification or variation of the terms of the SNP Securities; (3) the cancellation of the SNP Securities; (4) the amendment or alteration of the maturity of the SNP Securities or amendment of the amount of interest payable on the SNP Securities, or the date on which the interest becomes payable, including by suspending payment for a temporary period; and (ii) the variation of the terms of the SNP Securities or the rights of Holders thereunder or under the Indenture, as deemed necessary by the Relevant Spanish Resolution Authority, to give effect to the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority.
(b) By its acquisition of the SNP Securities or any beneficial interest therein, each Holder acknowledges and agrees that neither a reduction or cancellation, in part or in full, of the Amounts Due on the SNP Securities or the conversion thereof into another security or obligation of the Company or another Person, in each case as a result of the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the Company, nor the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities shall: (i) give rise to a default or event of default for purposes of Section 315(b) (Notice of Defaults) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act; or (ii) be a default or an Event of Default with respect to the SNP Securities or under the Indenture. By its acquisition of the SNP Securities or any beneficial interest therein, each Holder further acknowledges and agrees that no repayment or payment of Amounts Due on the SNP Securities shall become due and payable or be paid after the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority if, and to the extent that, such amounts have been reduced, converted, cancelled, amended or altered as a result of such exercise.
(c) By its acquisition of the SNP Securities or any beneficial interest therein, each Holder, to the extent permitted by the Trust Indenture Act, waives any and all claims, in law and/or in equity, against the Trustee for, agrees not to initiate a suit against the Trustee in respect of, and agrees that the Trustee shall not be liable for, any action that the Trustee takes, or abstains from taking, in either case in accordance with the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities. Additionally, by its acquisition of the SNP Securities or any beneficial interest therein, each Holder acknowledges and agrees that, upon the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities: (i) the Trustee shall not be required to take any further directions from the Holders with respect to any portion of the SNP Securities that is written down, converted to equity and/or cancelled under Section 5.12 of the Original Indenture; and (ii) the Indenture shall not impose any duties upon the Trustee whatsoever with respect to the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority; provided, however, that notwithstanding the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities, so long as any SNP Securities remain Outstanding, there shall at all times be a trustee for the SNP Securities in accordance with the Indenture, and the resignation and/or removal of the Trustee and the appointment of a successor trustee shall continue to be governed by the Indenture, including to the extent no additional supplemental indenture or amendment is agreed upon in the event the SNP Securities remain Outstanding following the completion of the exercise of the Spanish Bail-in Power.
(d) By its acquisition of the SNP Securities or any beneficial interest therein, each Holder shall be deemed to have authorized, directed and requested the Depository and any direct participant therein or other intermediary through which it holds such SNP Securities to take any and all necessary actions, if required, to implement the exercise of the Spanish Bail-in Power with respect to the SNP Securities as it may be imposed, without any further action or direction on the part of such Holder.
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(e) Upon the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities, the Company or the Relevant Spanish Resolution Authority (as the case may be) shall provide a written notice to the Depository as soon as practicable regarding such exercise of the Spanish Bail-in Power for purposes of notifying the Holders of such SNP Securities. The Company shall also deliver a copy of such notice to the Trustee for information purposes. No failure or delay by the Company to deliver a notice shall affect the validity or enforceability of the exercise of the Spanish Bail-in Power.
(f) If the Issuer has elected to redeem the SNP Securities but prior to the payment of the Redemption Price to Holders the Relevant Spanish Resolution Authority exercises its Spanish Bail-in Power with respect to the SNP Securities the relevant redemption notice shall be automatically rescinded and shall be of no force and effect, there shall be no redemption and consequently no payment of the Redemption Price (or any accrued interest and Additional Amounts payable under Article 11 of the Original Indenture (as amended and supplemented hereby)) will be due and payable.
(g) Upon the exercise of the Spanish Bail-in Power with respect to the SNP Securities which results in the redemption, cancellation, or the conversion into other securities, of all the Amounts Due on the SNP Securities or such SNP Securities otherwise ceasing to be outstanding, the Indenture shall be deemed satisfied and discharged as to such series of SNP Securities and such SNP Securities shall thereafter be deemed to be not “Outstanding”.
(h) Each Holder that acquires SNP Securities in the secondary market or otherwise shall be deemed to acknowledge and agree to be bound by and consent to the same provisions specified in the Indenture to the same extent as the Holders that acquire the SNP Securities upon their initial issuance, including, without limitation, with respect to this Section 2.10.
Section 2.11. Amended Provision of Original Indenture.
(a) The definition of “Qualifying Securities” set forth in Section 1.01 of the Original Indenture shall be deleted with respect to the SNP Securities only and shall not apply to the SNP Securities and shall, with respect to the SNP Securities only, be replaced, by the following definition:
““Qualifying Securities” means, with respect to the Securities of a series which is subject to any substitution or modification pursuant to Section 8.04, at any time, any securities issued by the Company (including any Securities so modified so as to remain Qualifying Securities) that:
| (i) | contain terms which comply with the then-current requirements for inclusion in the Eligible Liabilities Amount as provided under Applicable Banking Regulations, as applicable; |
| (ii) | have the same denomination and aggregate outstanding principal amount, the same currency in which payments shall be payable, the same rate of interest and terms for the determination of any applicable rate of interest, the same date of maturity and the same dates for payment of interest as such series of Securities immediately prior to any substitution or modification pursuant to Section 8.04; |
| (iii) | have the same or higher ranking as is applicable to such series of Securities on the issue date of such series of Securities pursuant to Article 13; |
| (iv) | preserve any existing rights under the Securities to any accrued interest which has not been paid in respect of the period from (and including) the Interest Payment Date last preceding the date of any substitution or modification pursuant to Section 8.04; |
| (v) | are listed or admitted to trading on any stock exchange as selected by the Company, if such series of Securities were listed or admitted to trading on a stock exchange immediately prior to the relevant substitution or modification pursuant to Section 8.04; and |
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| (vi) | are not, immediately following the relevant substitution or modification, subject to an Eligible Liabilities Event or a Tax Event.” |
(b) The second paragraph of Section 3.07(a) of the Original Indenture shall be deleted with respect to the SNP Securities only and shall not apply to the SNP Securities and shall, with respect to the SNP Securities only, be replaced, by the following:
The Company shall, before 10:00 a.m. (New York time) on each due date of the principal (and premium, if any) or interest or any other amounts due on any Securities (and, in any event, unless agreed by the relevant Paying Agent, no earlier than 10:00 a.m. local time of the place where such Paying Agent has its registered office five business days in such location before the relevant due date), 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.
Section 2.12. Notices. Any notice, communication or other document required to be given to any person hereunder shall be given in accordance with Section 1.05 or Section 1.06 (as the case may be) of the Original Indenture. Any notice hereunder given by telephone, telecopy, letter or email shall be deemed to be received when in the ordinary course of transmission or post, as the case may be, it would be received.
Section 2.13. Instructions by Electronic Means. All of the provisions contained in the Original Indenture in respect of Instructions delivered pursuant to Electronic Means shall be applicable in respect of the SNP Securities and of this Fifth Supplemental Indenture as fully and with like effect as if set forth herein in full.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Fifth Supplemental Indenture to be duly executed on its behalf as of the date first above written.
| BANCO BILBAO VIZCAYA ARGENTARIA, S.A., as Issuer | ||
| By: | /s/ Ignacio Echevarría Soriano | |
| Name: Ignacio Echevarría Soriano | ||
| Title: Authorized Representative | ||
| THE BANK OF NEW YORK MELLON, LONDON BRANCH as Trustee, Paying Agent and Transfer Agent | ||
| By: | /s/ Nathan A. Hodd | |
| Name: Nathan A. Hodd | ||
| Title: Agent | ||
| THE BANK OF NEW YORK MELLON, as Security Registrar | ||
| By: | /s/ Nathan A. Hodd | |
| Name: Nathan A. Hodd | ||
| Title: Agent | ||
[Signature Page to Fifth Supplemental Indenture]
EXHIBIT A
FORM OF SECURITY CERTIFICATE REPRESENTING SECURITIES
No. [•]
CUSIP NO. 05946K AY7
ISIN NO. US05946KAY73
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY (THE “DEPOSITORY”) TO A NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.
GLOBAL SECURITY
representing up to $[•]
4.977% Senior Non-Preferred Fixed Rate Notes due 2029
BANCO BILBAO VIZCAYA ARGENTARIA, S.A., a sociedad anónima organized under the laws of the Kingdom of Spain and having its registered office in the Kingdom of Spain (together with its successors and permitted assigns under the Indenture referred to on the reverse hereof, the “Company”), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of $[•] on September 3, 2029 or on such earlier date as the principal hereof may become due and payable in accordance with the provisions hereof.
The Company further unconditionally promises, subject to the Terms and Conditions of the SNP Securities endorsed on the reverse hereof, to pay interest semi-annually in arrears on March 3 and September 3 of each year (each an “Interest Payment Date”), commencing March 3, 2027, up to (and including) the date of maturity or any date of earlier redemption, on said principal sum at a fixed rate of 4.977% per annum. The SNP Securities will bear interest from (and including) the issue date to (but excluding) the date of maturity or any date of earlier redemption. Interest shall accrue from (and including) the most recent Interest Payment Date or, with respect to the first Interest Payment Date, from (and including) the date of issuance, until the principal hereof is paid or made available for payment. The interest payable on any such Interest Payment Date will, subject to certain conditions set forth in the Indenture referred to on the reverse hereof, be paid to the Holder in whose name this SNP Security is registered as of the close of business on the 15th calendar day (whether or not such day is a Business Day) immediately preceding such Interest Payment Date.
Payment of the principal amount of, and any interest on, this SNP Security will be made by wire transfer of immediately available funds in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. Such payment shall be made to the Holder including through a paying agent of the Company for collection by the Holder.
A-1
Notwithstanding any other term of this SNP Security, the Indenture or any other agreements, arrangements, or understandings between the Company and any Holder, by its acquisition of this SNP Security or any beneficial interest therein, each Holder (including, for purposes of this paragraph, each holder of a beneficial interest in the SNP Security) acknowledges, accepts, consents to and agrees to be bound by: (i) the exercise and effects of the Spanish Bail-in Power (as defined on the reverse hereof) by the Relevant Spanish Resolution Authority (as defined on the reverse hereof), which may be imposed with or without any prior notice with respect to the SNP Security, and may include and result in any of the following, or some combination thereof: (1) the reduction or cancellation of all, or a portion, of the Amounts Due (as defined on the reverse hereof) on this SNP Security; (2) the conversion of all, or a portion, of the Amounts Due on this SNP Security into shares, other securities or other obligations of the Company or another person (and the issue to or conferral on the Holder of any such shares, securities or obligations), including by means of an amendment, modification or variation of the terms of this SNP Security; (3) the cancellation of this SNP Security; (4) the amendment or alteration of the maturity of this SNP Security or amendment of the amount of interest payable on this SNP Security, or the date on which the interest becomes payable, including by suspending payment for a temporary period; and (ii) the variation of the terms of this SNP Security or the rights of the Holders thereunder or under the Indenture, as deemed necessary by the Relevant Spanish Resolution Authority, to give effect to the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority. The Holder shall not have any claim against the Company in connection with or arising out of any such exercise or variation.
Reference is made to the further provisions set forth under the Terms and Conditions of the SNP Securities endorsed on the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.
This SNP Security shall not be valid or obligatory for any purpose until the certificate of authentication of this SNP Security shall have been executed manually, by facsimile or by electronic signature by or on behalf of the Trustee under the Indenture.
[Remainder of the page left intentionally blank]
A-2
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
| BANCO BILBAO VIZCAYA ARGENTARIA, S.A. | ||
| By: | ||
| Name: | ||
| Title: | ||
A-3
Certificate of Authentication
This is the Global Security of a series designated herein referred to in the within-mentioned Indenture.
Dated:
Authenticated in New York
| The Bank of New York Mellon, London Branch, as Trustee | ||
| By: | ||
| Authorized Signatory | ||
A-4
[REVERSE OF SECURITY]
TERMS AND CONDITIONS OF THE SECURITIES
1. General. This security is one of a duly authorized issue of a series of senior non-preferred debt securities of the Company, designated as its 4.977% Senior Non-Preferred Fixed Rate Notes due 2029 (Bonos Simples No Preferentes Agosto 2026 - SEC - 15) (referred to as the “SNP Securities”), limited to the aggregate principal amount of $1,000,000,000 (except as otherwise provided in Section 2.02 of the Fifth Supplemental Indenture (as defined below)) and issued or to be issued pursuant to an Indenture (the “Base Indenture”) dated as of July 31, 2025 among the Company and The Bank of New York Mellon, London Branch, as trustee (together with any successor Trustee under the Indenture (as defined herein), the “Trustee”), transfer agent (together with any successor Transfer Agent under the Indenture, the “Transfer Agent”) and paying agent (together with any successor Paying Agent under the Indenture, the “Paying Agent”) and The Bank of New York Mellon, as security registrar (together with any successor Security Registrar under the Indenture, the “Security Registrar”), as amended and supplemented prior to the issuance and authentication hereof by a supplemental indenture dated as of September 3, 2026 among the Company, The Bank of New York Mellon, London Branch, as Trustee, Paying Agent and Transfer Agent, and The Bank of New York Mellon, as Security Registrar (the “Fifth Supplemental Indenture” and, together with the Base Indenture (as amended and supplemented by the Fifth Supplemental Indenture), the “Indenture”). The SNP Securities are subject to the terms and conditions of the Indenture, and such terms and conditions shall have effect as if incorporated herein. All capitalized terms used in this SNP Security but not otherwise defined herein are used as defined in the Indenture and shall have the meanings assigned to them in the Indenture. References herein to any particular Article, Section or other subdivision of the Base Indenture shall refer to any such Article, Section or other subdivision of the Base Indenture as amended and supplemented by the Fifth Supplemental Indenture. The holders of the SNP Securities (each a “Holder”) will be entitled to the benefits of, be bound by, and be deemed to have notice of, all of the provisions of the Indenture and reference is made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the SNP Securities and of the terms upon which the SNP Securities are, and are to be, authenticated and delivered. A copy of the Indenture is on file and may be inspected at the Corporate Trust Office of the Trustee. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this SNP Security and the terms of the Indenture, the terms of the Indenture will control.
The SNP Securities will initially be issued in the form of one or more global certificates representing the securities of this series in fully registered form without interest coupons (each a “Global Security”) deposited with The Bank of New York Mellon as custodian for the Depository. The SNP Securities will not be issued in bearer form. The SNP Securities, and transfers thereof, shall be registered as provided in Section 3.05 of the Base Indenture. Any person in whose name a SNP Security shall be registered may (to the fullest extent permitted by applicable law) be treated at all times, and for all purposes, by the Company and the Trustee as the absolute owner of such SNP Security, regardless of any notice of ownership, theft or loss or of any writing thereon.
2. Principal and Interest. (a) The principal of the Outstanding SNP Securities shall be due and payable on September 3, 2029 (the “Stated Maturity Date”) or on such earlier date as the principal thereof may become due and payable in accordance with the provisions hereof.
(b) From (and including) the Issue Date to (but excluding) the Stated Maturity Date or any date of earlier redemption, the SNP Securities will bear interest at a fixed rate of 4.977% per annum.
The Company will pay interest in arrears on the SNP Securities semi-annually on each Interest Payment Date, up to (and including) the Stated Maturity Date or any date of earlier redemption.
Interest on the SNP Securities will be calculated on the basis of a 360-day year of twelve 30-day months.
(c) Except as described below for the first Interest Payment Date, on each Interest Payment Date, the Company will pay interest on the SNP Securities for the period commencing on (and including) the immediately preceding Interest Payment Date and ending on (and including) the day immediately preceding that Interest Payment Date.
On the first Interest Payment Date, the Company will pay interest for the period beginning on (and including) the Issue Date to (but excluding) March 3, 2027.
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If any Interest Payment Date falls on a day that is not a Business Day, the related interest payment shall be postponed to the next day that is a Business Day, and no interest on such payment shall accrue for the period from and after such Interest Payment Date.
“Business Day” means any day, other than Saturday or Sunday, that is neither a Legal Holiday nor a day on which banking institutions are authorized or required by law, regulation or executive order to close in the City of New York, London or Madrid.
If the Stated Maturity Date or date of earlier redemption of any SNP Security falls on a day that is not a Business Day, payment of principal and interest on the applicable SNP Security will be made on the next
succeeding day that is a Business Day, and no interest will accrue for the period from and after such Stated Maturity Date or date of earlier redemption.
Interest on each SNP Security will be paid only to the Person in whose name such SNP Security was registered at the close of business on the Regular Record Date for the applicable Interest Payment Date.
3. Additional Amounts. Any amounts to be paid by the Company with respect to each SNP Security shall be paid without withholding or deduction for or on account of any and all present or future taxes or duties of whatever nature (“Taxes”) unless such withholding or deduction is required by law. In the event any such withholding or deduction is imposed or levied in respect of payment of interest (but not principal or premium (if any)) by or on behalf of Spain or any political subdivision or authority thereof or therein having the power to tax, the Company will pay to the Holder such Additional Amounts as may be necessary in order that the net amount received by the Holder of such SNP Security under the Indenture, after such withholding or deduction, shall equal the amount of interest, if any, which would have been receivable by such Holder in the absence of such withholding or deduction; 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 SNP Security for whose benefit such Holder holds such SNP Security) having some connection with Spain other than the mere holding of the SNP Security (or such beneficial interest) or the mere crediting of the SNP Security to its securities account with the relevant Depository;
(b) in the case of a SNP Security presented for payment (where presentation is required) more than 30 days after the Relevant Date, except to the extent that the 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) in respect of any Tax, assessment or other governmental charge that would not have been imposed but for the failure by the Holder or beneficial owner of the SNP Security to comply with any certification, information or other reporting requirements concerning the nationality, residence, identity or connection with the taxing jurisdiction of the Holder or beneficial owner of that SNP Security, if compliance is required by statute, regulation or administrative practice of Spain or of any political subdivision or taxing authority thereof or therein as a precondition to reduction of or relief or exemption from the Tax, assessment or other governmental charge; or
(d) to, or to a third party on behalf of, a Holder if the Company does not receive any relevant information as may be required by Spanish tax laws and regulations (including any binding rulings), including a duly executed and completed Payment Statement from the Paying Agent.
Additional Amounts will also not be paid with respect to any payment on any SNP Security to any Holder who is a fiduciary, partnership, limited liability company or Person other than the sole beneficial owner of such payment to the extent such 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 such fiduciary, member of such partnership, interest holder in that limited liability company or a beneficial owner who would not have been entitled to such Additional Amounts had it been a Holder of such SNP Security.
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No Additional Amounts will be paid by the Company, the Trustee or any paying agent on account of any withholding or deduction from a payment on, or in respect of, the SNP Securities where such withholding or deduction is imposed pursuant to any agreement with the U.S. Internal Revenue Service in connection with Sections 1471-1474 of the U.S. Internal Revenue Code and the U.S. Treasury regulations thereunder (“FATCA”), any intergovernmental agreement between the United States and Spain or any other jurisdiction with respect to FATCA, or any law, regulation or other official guidance enacted or issued in any jurisdiction implementing, or relating to, FATCA or any intergovernmental agreement.
4. Redemption upon a Tax Event; Redemption upon an Eligible Liabilities Event; Clean-up Call. Any redemption of the SNP Securities shall be made in accordance with the terms of Article 11 of the Base Indenture and be in compliance with Applicable Banking Regulations then in force and subject to the prior consent of the Regulator, if required pursuant to such regulations.
(a) Redemption upon a Tax Event. All or part only of the SNP Securities may be redeemed at the Redemption Price at the option of the Company if a Tax Event occurs on or after the Issue Date of the SNP Securities; provided that, if the Tax Event consists of the event described in prong (i) of the definition of “Tax Event”, no such notice to the Trustee of the redemption shall be given earlier than 90 days prior to the earliest date on which the Company would be obligated to deduct or withhold tax or pay Additional Amounts were a payment in respect of the SNP Securities then due.
Prior to any notice of redemption of the SNP Securities pursuant to this paragraph 4(a), the Company shall provide the Trustee with (i) an Officer’s Certificate of the Company stating that the Company 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 to redeem such SNP Securities pursuant to this paragraph 4(a) have been satisfied; and (ii) an Opinion of Counsel to the effect that any of the circumstances referred to in paragraph 4(a) prevail.
(b) Redemption upon an Eligible Liabilities Event. All (but not less than all) of the SNP Securities may be redeemed at the Redemption Price at the option of the Company if an Eligible Liabilities Event occurs, on or after the Issue Date of the SNP Securities.
Prior to any notice of redemption of the SNP Securities pursuant to this paragraph 4(b), the Company shall provide the Trustee with (i) an Officer’s Certificate of the Company stating that the Company 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 to redeem such SNP Securities pursuant to this paragraph 4(b) have been satisfied; and (ii) an Opinion of Counsel to the effect that the circumstances referred to in paragraph 4(b) prevail.
(c) Clean-up Call. All (but not less than all) of the SNP Securities may be redeemed at the Redemption Price at the option of the Company if, on or after the Issue Date, SNP Securities representing, in the aggregate, 75% or more of the aggregate principal amount of the SNP Securities (including, both in the numerator and the denominator, (i) any SNP Securities issued after the Issue Date, and (ii) any SNP Securities which have been cancelled by the Trustee following their surrender for cancellation in accordance with the Indenture) have been purchased by or on behalf of the Company or any member of the Group.
5. Event of Default. “Event of Default”, wherever used herein with respect to this SNP Security, means (whatever the reason for such Event of Default and whether it shall be voluntary 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) that, except as set forth in the immediately succeeding paragraph, an order shall have been made by any competent court commencing insolvency proceedings (procedimiento concursal) against the Company or an order of any competent court or administrative agency shall have been made or a resolution shall have been passed by the Company for the dissolution or winding up of the Company (except (i) in the case of a reconstruction, consolidation, amalgamation or merger carried out in compliance with the requirements set forth in Section 8.01 of the Base Indenture (in this case, even without being approved by an Act of the Holders of the SNP Securities) or (ii) in any such case for the purpose of a reconstruction or a consolidation or an amalgamation or a merger which has been approved by an Act of the Holders of the SNP Securities).
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Notwithstanding any other provision in these terms or the Indenture, any Resolution or Early Intervention with respect to the Company shall not, in and of itself and without regard to any other fact or circumstance, constitute a default or an Event of Default under the immediately preceding paragraph or under any other provision in these terms or the Indenture with respect to the SNP Securities. In addition, neither (i) a reduction or cancellation, in part or in full, of the Amounts Due (as defined below) on the SNP Securities or the conversion thereof into another security or obligation of the Company or another Person, in each case as a result of the exercise of the Spanish Bail-in Power (as defined below) by the Relevant Spanish Resolution Authority (as defined below) with respect to the Company, nor (ii) the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities, shall constitute an Event of Default or default under the Indenture or the SNP Securities or otherwise constitute non-performance of a contractual obligation, or entitle the Holders of the SNP Securities to any remedies, which are hereby expressly waived. In addition, no repayment or payment of Amounts Due on the SNP Securities shall become due and payable or be paid after the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority if, and to the extent that, such amounts have been reduced, converted, cancelled, amended or altered as a result of such exercise.
For the avoidance of doubt, only an Event of Default (rather than any breach or default under the Indenture or the SNP Security) may give rise to a declaration of acceleration referred to in Section 5.02 of the Base Indenture.
6. Substitution and Modification. Each Holder and beneficial owner of the SNP Securities shall, by virtue of its acquisition of the SNP Securities or any beneficial interest therein, be deemed to acknowledge, accept, consent to and agree to be bound by any substitution of or modification to the terms of the SNP Securities as set forth in Section 8.04 of the Base Indenture and to grant to the Company and the Trustee full power and authority to take any action and/or to execute and deliver any document in the name and/or on behalf of such Holder or beneficial owner, as the case may be, which is necessary or convenient to complete the substitution of or modification to the terms of the SNP Securities, as applicable. Each Holder and beneficial owner of the SNP Securities, by virtue of its acquisition of the SNP Securities or any beneficial interest therein, to the extent permitted by the Trust Indenture Act, waives any and all claims, in law and/or in equity, against the Trustee and/or the Company for, agrees not to initiate a suit against the Trustee and/or the Company in respect of, and agrees that neither the Trustee nor the Company shall be liable for, any action that the Trustee or the Company takes, or abstains from taking, in either case in connection with the substitution of or modification to the terms of the SNP Securities upon the occurrence of an Eligible Liabilities Event or a Tax Event.
7. Enforcement. No Holder of any SNP Security (which, for the purposes of this paragraph 7, includes each holder of a beneficial interest in any such SNP Security) shall have any right by virtue of or by availing itself of any provision of the Indenture or of these terms to institute any proceeding, judicial or otherwise, with respect to the Indenture or the SNP Securities or for the appointment of a receiver or trustee, or for any other remedy thereunder, unless (a) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the SNP Securities, specifying such Event of Default and stating that such notice is a “Notice of Event of Default” under the Indenture, (b) the Holders of not less than 25% in aggregate principal amount of the SNP Securities then Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee thereunder and such Holder or Holders have offered to the Trustee reasonable indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request, (c) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding, and (d) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by Holders of a majority in aggregate principal amount of the Outstanding SNP Securities.
8. Status and Ranking. (a) The payment obligations of the Company under the SNP Securities on account of principal are direct, unconditional, unsubordinated and unsecured obligations of the Company and, upon the insolvency (concurso de acreedores) of the Company, in accordance with and only to the extent permitted by the Insolvency Law and any other applicable laws relating to or affecting the enforcement of creditors’ rights in Spain (including, without limitation, Additional Provision 14 of Law 11/2015), but subject to any other ranking that may apply as a result of any mandatory provision of law (or otherwise), the payment obligations of the Company under the SNP Securities with respect to claims for principal (which claims will constitute ordinary claims) will rank:
| (i) | junior to any (a) privileged claims (créditos privilegiados) (which shall include, among other claims, any claims in respect of deposits for the purposes of Additional Provision 14.1 of Law 11/2015), (b) claims against the insolvency estate (créditos contra la masa), and (c) Senior Preferred Obligations; |
| (ii) | pari passu without any preference or priority among themselves and with all other Senior Non-Preferred Obligations; and |
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| (iii) | senior to all subordinated obligations of, or claims against, the Company (créditos subordinados), present and future, |
such that any relevant claim on account of principal in respect of the SNP Securities will be satisfied, as appropriate, only to the extent that all claims ranking senior to it have first been satisfied in full, and then pro rata with any claims ranking pari passu with it, in each case as provided above.
Upon the insolvency (concurso de acreedores) of the Company, in accordance with and to the extent permitted by the Insolvency Law and other applicable laws relating to or affecting the enforcement of creditors’ rights in Spain, but subject to any other ranking that may apply as a result of any mandatory provision of law (or otherwise), the payment obligations of the Company under the SNP Securities with respect to claims for accrued but unpaid interest on the SNP Securities shall constitute subordinated claims (créditos subordinados) against the Company ranking in accordance with the provisions of the Insolvency Law. No further interest on the SNP Securities shall accrue from the date of declaration of the insolvency of the Company. Claims in respect of Additional Amounts shall also constitute subordinated claims (créditos subordinados) against the Company.
“Insolvency Law” means the restated text of the Insolvency Law, as approved by Spanish Royal Legislative Decree 1/2020 of May 5 (Real Decreto Legislativo 1/2020, de 5 de mayo, por el que se aprueba el texto refundido de la Ley Concursal), as amended, replaced or supplemented from time to time.
“ordinary claims” means the class of claims with respect to unsecured, non-privileged and unsubordinated obligations (créditos ordinarios) of the Company which, upon the insolvency (concurso de acreedores) of the Company and pursuant to the Insolvency Law and other applicable laws relating to or affecting the enforcement of creditors’ rights in Spain, rank (i) junior to privileged claims (créditos privilegiados) (which shall include, among other claims, any claims in respect of deposits for the purposes of Additional Provision 14.1 of Law 11/2015 and any secured claims), and claims against the insolvency estate (créditos contra la masa) and (ii) senior to subordinated claims (créditos subordinados).
“Senior Non-Preferred Obligations” (créditos ordinarios no preferentes) means the obligations of the Company with respect to (i) the payment of principal under the SNP Securities and (ii) all other ordinary claims, present and future, which, upon the insolvency (concurso de acreedores) of the Company, are expressed to rank within the ordinary claims but junior to Senior Preferred Obligations.
“Senior Preferred Obligations” means the obligations of the Company with respect to all ordinary claims, present and future, other than Senior Non-Preferred Obligations.
(b) Each Holder and beneficial owner of this SNP Security, by his or her acquisition thereof, agrees to the ranking of the SNP Security as described in this paragraph 8 and, to the extent permitted by Spanish law, authorizes and directs the Trustee on his or her behalf to take such action as may be necessary or appropriate to effectuate the ranking of the SNP Securities provided in this paragraph 8 and appoints the Trustee his or her attorney-in-fact for any and all such purposes, including, if required, to grant any private or public documents on such Holder’s or beneficial owner’s behalf. Further, each such Holder and beneficial owner irrevocably waives his or her rights of priority which would otherwise be accorded to him or her under the laws of Spain, to the extent necessary to effectuate the ranking provisions of this SNP Security and to the extent permitted by Spanish law.
9. Certain Undertakings and Agreements by Holders. (a) Notwithstanding any other term of this SNP Security, the Indenture or any other agreements, arrangements, or understandings between the Company and any Holder, by its acquisition of this SNP Security or any beneficial interest therein, each Holder (which, for the purposes of this paragraph 9, includes each holder of a beneficial interest in the SNP Security) acknowledges, accepts, consents to and agrees to be bound by: (i) the exercise and effects of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority, which may be imposed with or without any prior notice with respect to the SNP Security, and may include and result in any of the following, or some combination thereof: (1) the reduction or cancellation of all, or a portion, of the Amounts Due on the SNP Securities; (2) the conversion of all, or a portion, of the Amounts Due on the SNP Securities into shares, other securities or other obligations of the Company or another Person (and the issue to or conferral on the Holder of any such shares, securities or obligations), including by means of an amendment, modification or variation of the terms of the SNP Securities; (3) the cancellation of the SNP Securities; (4) the amendment or alteration of the maturity of the SNP Securities or amendment of the amount of interest payable on the SNP Securities, or the date on which the interest becomes payable, including by suspending payment for a temporary period; and (ii) the variation of the terms of the SNP Securities or the rights of the Holders thereunder or under the Indenture, as deemed necessary by the Relevant Spanish Resolution Authority, to give effect to the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority.
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(b) By its acquisition of this SNP Security or any beneficial interest therein, each Holder acknowledges and agrees that neither a reduction or cancellation, in part or in full, of the Amounts Due on the SNP Securities or the conversion thereof into another security or obligation of the Company or another person, in each case as a result of the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the Company, nor the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities shall: (i) give rise to a default or event of default for purposes of Section 315(b) (Notice of Defaults) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act; or (ii) be a default or an Event of Default with respect to the SNP Securities or under the Indenture. By its acquisition of this SNP Security or any beneficial interest therein, each Holder further acknowledges and agrees that no repayment or payment of Amounts Due on the SNP Securities shall become due and payable or be paid after the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority if, and to the extent that, such amounts have been reduced, converted, cancelled, amended or altered as a result of such exercise.
(c) By its acquisition of this SNP Security or any beneficial interest therein, each Holder, to the extent permitted by the Trust Indenture Act, waives any and all claims, in law and/or in equity, against the Trustee for, agrees not to initiate a suit against the Trustee in respect of, and agrees that the Trustee shall not be liable for, any action that the Trustee takes, or abstains from taking, in either case in accordance with the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities. Additionally, by its acquisition of this SNP Security or any beneficial interest therein, each Holder acknowledges and agrees that, upon the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities: (i) the Trustee shall not be required to take any further directions from the Holders with respect to any portion of the SNP Securities that is written down, converted to equity and/or cancelled under Section 5.12 of the Base Indenture; and (ii) the Indenture shall not impose any duties upon the Trustee whatsoever with respect to the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority; provided, however, that notwithstanding the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities, so long as any SNP Securities remain Outstanding, there shall at all times be a trustee for the SNP Securities in accordance with the Indenture, and the resignation and/or removal of the Trustee and the appointment of a successor trustee shall continue to be governed by the Indenture, including to the extent no additional supplemental indenture or amendment is agreed upon in the event the SNP Securities remain Outstanding following the completion of the exercise of the Spanish Bail-in Power.
(d) By its acquisition of this SNP Security or any beneficial interest therein, each Holder shall be deemed to have authorized, directed and requested the Depository and any direct participant in the Depository or other intermediary through which it holds such SNP Security to take any and all necessary actions, if required, to implement the exercise of the Spanish Bail-in Power with respect to the SNP Security as it may be imposed, without any further action or direction on the part of such Holder.
(e) Upon the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities, the Company or the Relevant Spanish Resolution Authority (as the case may be) shall provide a written notice to the Depository as soon as practicable regarding such exercise of the Spanish Bail-in Power for purposes of notifying the Holders of such SNP Securities. The Company shall also deliver a copy of such notice to the Trustee for information purposes. No failure or delay by the Company to deliver a notice shall affect the validity or enforceability of the exercise of the Spanish Bail-in Power.
(f) If the Company has elected to redeem the SNP Securities but prior to the payment of the Redemption Price to Holders the Relevant Spanish Resolution Authority exercises its Spanish Bail-in Power with respect to the SNP Securities, the relevant redemption notice shall be automatically rescinded and shall be of no force and effect, there shall be no redemption and consequently no payment of the Redemption Price (or any accrued interest and Additional Amounts payable under Article 11 of the Base Indenture) will be due and payable.
(g) Upon the exercise of the Spanish Bail-in Power with respect to the SNP Securities which results in the redemption, cancellation, or the conversion into other securities, of all the Amounts Due on the SNP Securities or such SNP Securities otherwise ceasing to be outstanding, the Indenture shall be deemed satisfied and discharged as to such series of SNP Securities and such SNP Securities shall thereafter be deemed to be not “Outstanding”.
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(h) Each Holder that acquires this SNP Security in the secondary market or otherwise shall be deemed to acknowledge and agree to be bound by and consent to the same provisions specified herein and in the Indenture to the same extent as the Holders that acquire the SNP Securities upon their initial issuance, including, without limitation, with respect to this paragraph 9.
“Amounts Due”, with respect to a SNP Security, means the aggregate outstanding principal amount, together with any accrued but unpaid interest, Additional Amounts and premium (if any), due on such SNP Security. References to such amounts will include amounts that have become due and payable, but which have not been paid, prior to the exercise of the Spanish Bail-in Power (as defined below) by the Relevant Spanish Resolution Authority. References to such amounts will also include amounts held in trust by the Company, any Paying Agent or the Trustee pursuant to Section 10.03 of the Base Indenture.
“Spanish Bail-in Power” means any write-down, conversion, transfer, modification, cancellation or suspension power existing from time to time under: (i) any law, regulation, rule or requirement applicable from time to time in Spain, relating to the transposition or development of the BRRD, including, but not limited to (a) Law 11/2015, (b) RD 1012/2015 and (c) the SRM Regulation; or (ii) any other law, regulation, rule or requirement applicable from time to time in Spain pursuant to which (a) obligations or liabilities of banks, investment firms or other financial institutions or their affiliates can be reduced, cancelled, modified, transferred or converted into shares, other securities, or other obligations of such Persons or any other Person (or suspended for a temporary period or permanently) or (b) any right in a contract governing such obligations may be deemed to have been exercised.
10. Governing Law. This SNP Security shall be governed by and construed in accordance with 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, issuance and execution by the Company of the SNP Securities and paragraphs 8(a) and 9 shall be governed by and construed in accordance with the common laws (derecho común) of Spain.
11. Additional Terms. Additional terms of the SNP Securities, including but not limited to terms related to payment of defaulted interest; amendments to the Indenture and waiver of past defaults; replacement, exchange and transfer of the SNP Securities; the duties, immunities and rights of the Trustee, the Paying Agent, the Transfer Agent and the Security Registrar; notices; limitation on claims; submission to jurisdiction; and service of process, are set forth in the Indenture and shall have effect as if incorporated herein.
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Exhibit 4.7
SIXTH SUPPLEMENTAL INDENTURE
among
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.,
as Issuer,
THE BANK OF NEW YORK MELLON, LONDON BRANCH,
as Trustee, Paying Agent and Transfer Agent
THE BANK OF NEW YORK MELLON,
as Security Registrar
September 3, 2026
$1,000,000,000
5.244% SENIOR NON-PREFERRED FIXED RATE NOTES DUE 2031
TABLE OF CONTENTS
| Page | ||
| Article 1 | ||
| Definitions and Other Provisions of General Application | 2 | |
| Section 1.01. | Definitions | 2 |
| Section 1.02. | Conflict with Trust Indenture Act | 3 |
| Section 1.03. | Effect of Headings and Table of Contents | 3 |
| Section 1.04. | Successors and Assigns | 3 |
| Section 1.05. | Separability Clause | 3 |
| Section 1.06. | Benefits of Indenture | 4 |
| Section 1.07. | Governing Law | 4 |
| Section 1.08. | Submission to Jurisdiction | 4 |
| Section 1.09. | Execution in Counterparts | 4 |
| Section 1.10. | Recitals by the Issuer | 4 |
| Section 1.11. | Ratification and Incorporation of Original Indenture | 5 |
| Article 2 | ||
| SNP Securities | 5 | |
| Section 2.01. | Creation of SNP Securities | 5 |
| Section 2.02. | Limitation on Aggregate Principal Amount of SNP Securities | 5 |
| Section 2.03. | Payment of Principal | 5 |
| Section 2.04. | Interest and Interest Rate | 5 |
| Section 2.05. | Denominations, Minimum Purchase Amount | 6 |
| Section 2.06. | Paying Agent | 6 |
| Section 2.07. | Security Certificates | 7 |
| Section 2.08. | Redemption and Purchase | 8 |
| Section 2.09. | Definitive Certificates and Authentication | 8 |
| Section 2.10. | Agreement with Respect to the Exercise of Spanish Bail-in Power | 9 |
| Section 2.11. | Amended Provision of Original Indenture | 10 |
| Section 2.12. | Notices | 11 |
| Section 2.13. | Instructions by Electronic Means | 11 |
| EXHIBIT A | Form of Security Certificate Representing SNP Securities | A-1 |
i
THIS SIXTH SUPPLEMENTAL INDENTURE, dated as of September 3, 2026 is among Banco Bilbao Vizcaya Argentaria, S.A., a sociedad anónima incorporated under the laws of the Kingdom of Spain (the “Issuer” or the “Company”), having its principal executive office located at Calle Azul 4, Madrid, 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, currently having its principal corporate trust office located at 240 Greenwich Street, New York, New York 10286, United States, and acting (except with respect to its role as security registrar) through its London Branch currently located at 160 Queen Victoria Street, London EC4V 4LA, United Kingdom, as trustee (the “Trustee”, which term includes any successor Trustee), paying agent (the “Paying Agent”, which term includes any successor Paying Agent), transfer agent (the “Transfer Agent”, which term includes any successor Transfer Agent), and security registrar (the “Security Registrar”, which term includes any successor Security Registrar) (the “Sixth Supplemental Indenture”).
WITNESSETH:
WHEREAS, the Company and the Trustee have executed and delivered a Senior Non-Preferred Debt Securities Indenture, dated as of July 31, 2025 (the “Original Indenture”), to provide for the issuance of the Company’s Securities (as such term is defined therein);
WHEREAS, the Company hereto desires to issue a new series of Securities to be known as the 5.244% Senior Non-Preferred Fixed Rate Notes due 2031 (Bonos Simples No Preferentes Agosto 2026-SEC-16) (the “SNP Securities”);
WHEREAS, the parties hereto desire to establish that the SNP Securities shall be issued in the form of one or more Global Securities substantially in the form of Exhibit A to this Sixth Supplemental Indenture pursuant to Sections 2.01 and 3.01 of the Original Indenture;
WHEREAS, Section 9.01(c) of the Original Indenture permits the Company and the Trustee to enter into a supplemental indenture to establish the form or terms of Securities of any series as permitted under Sections 2.01 and 3.01 of the Original Indenture without the consent of Holders;
WHEREAS, Section 9.01(j) of the Original Indenture permits the Company and the Trustee to delete, amend or supplement any provision of the Original Indenture, subject to certain conditions, without the consent of Holders;
WHEREAS, this Sixth Supplemental Indenture shall amend and supplement the Original Indenture but only with respect to the SNP Securities; to the extent the terms of the Original Indenture (as amended and supplemented by this Sixth Supplemental Indenture) are inconsistent with the provisions of this Sixth Supplemental Indenture, the terms of this Sixth Supplemental Indenture shall control and prevail, but only with respect to the SNP Securities. The Original Indenture, as amended and supplemented by, and together with, this Sixth Supplemental Indenture are hereinafter referred to as the “Indenture;”
WHEREAS, there are no Securities outstanding of any series created prior to the execution of this Sixth Supplemental Indenture that are entitled to the benefit of the provisions set forth herein or that would be adversely affected by such provisions;
WHEREAS, the Issuer has on its own initiative approached The Bank of New York Mellon, London Branch to receive the services described in this Sixth Supplemental Indenture; and
WHEREAS, the Company has requested and does hereby request that the Trustee execute and deliver this Sixth Supplemental Indenture, and whereas all actions required by the Company to be taken in order to make this Sixth Supplemental Indenture a valid, binding and enforceable instrument in accordance with its terms, have been taken and performed, and the execution and delivery of this Sixth Supplemental Indenture have been duly authorized in all respects,
1
NOW, THEREFORE, the Company and the Trustee mutually covenant and agree as follows:
Article 1
Definitions and Other Provisions of General Application
Section 1.01. Definitions. For all purposes of this Sixth Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(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) unless the context otherwise requires, any reference to an “Article” or a “Section” means an Article or a Section, as the case may be, of this Sixth Supplemental Indenture;
(d) the words “herein”, “hereof”, “hereto”, and “hereunder” and other words of similar import refer to this Sixth Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision;
(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”);
(f) the term “including” means “including without limitation”;
(g) all terms used but not defined in this Sixth Supplemental Indenture, which are defined in the Original Indenture (as amended and supplemented hereby), shall have the meanings assigned to them in the Original Indenture (as amended and supplemented hereby);
(h) references herein to any act or statute or any provision of any act or statute shall be deemed also to refer to any statutory modification or re-enactment thereof or any statutory instrument, order or regulation made thereunder or under such modification or re-enactment; and
(i) the following terms used in this Sixth Supplemental Indenture shall have the following meanings:
“Business Day” means any day, other than Saturday or Sunday, that is neither a Legal Holiday nor a day on which banking institutions are authorized or required by law, regulation or executive order to close in the City of New York, London or Madrid.
“Client Assets Sourcebook” means the CASS sourcebook as set out in the FCA Rules.
“Client Money Distribution and Transfer Rules” means the client money distribution and transfer rules set out in Chapter 7A of the Client Assets Sourcebook.
“Client Money Rules” means the client money rules set out in Chapter 7 of the Client Assets Sourcebook of the FCA Rules.
“Company” means the Person named as “Company” in the first paragraph of this Sixth Supplemental Indenture until a successor Person shall have become such pursuant to the applicable provisions of the Indenture, and thereafter “Company” shall mean such successor Person, and any other obligor upon the SNP Securities.
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“Depository” and “U.S. Depository” shall have the meanings ascribed to such terms in Section 1.01 of the Original Indenture. The Depository Trust Company (and its successors) is hereby designated as Depository and U.S. Depository with respect to the SNP Securities.
“FCA” means the United Kingdom’s Financial Conduct Authority whose current address is at 12 Endeavour Square, London E20 1JN (and any successor regulatory authority).
“FCA Rules” means the rules promulgated by the FCA under FSMA as amended or replaced from time to time.
“FSMA” means the Financial Services and Markets Act 2000.
“Interest Payment Date” has the meaning ascribed in Section 2.04(b).
“Issue Date” means September 3, 2026.
“Issuer” means the Person named as “Issuer” in the first paragraph of this Sixth Supplemental Indenture until a successor Person shall have become such pursuant to the applicable provisions of the Indenture, and thereafter “Issuer” shall mean such successor Person, and any other obligor upon the SNP Securities.
“Paying Agent” means the Person named as “Paying Agent” in the first paragraph of this Sixth Supplemental Indenture.
“Redemption Date” has the meaning ascribed in Section 2.08.
“Redemption Price” has the meaning ascribed in Section 2.08.
“Regular Record Date” means the 15th calendar day before the applicable Interest Payment Date.
“Stated Maturity Date” means September 3, 2031.
“Transfer Agent” means the Person named as “Transfer Agent” in the first paragraph of this Sixth Supplemental Indenture.
“Trustee” means the Person named as “Trustee” in the first paragraph of this Sixth Supplemental Indenture.
Section 1.02. Conflict with Trust Indenture Act. If any provision hereof 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 the Indenture, the provision of the Trust Indenture Act shall control. If any provision of this Sixth Supplemental Indenture modifies or 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 Sixth Supplemental Indenture as so modified or to be excluded, as the case may be.
Section 1.03. 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 1.04. Successors and Assigns. All covenants and agreements in this Sixth Supplemental Indenture made by the Issuer shall bind its successors and assigns, whether so expressed or not.
Section 1.05. Separability Clause. In case any provision in this Sixth Supplemental Indenture or the SNP Securities 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.
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Section 1.06. Benefits of Indenture. Nothing in the Indenture or the SNP Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders of SNP Securities, any benefit or any legal or equitable right, remedy or claim under the Indenture.
Section 1.07. Governing Law. This Sixth Supplemental Indenture and the SNP Securities (except as set forth herein and therein) shall be governed by and construed in accordance with 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 of this Sixth Supplemental Indenture, the authorization, issuance and execution by the Company of the SNP Securities, Section 2.10 hereof, the SNP Securities to the extent set forth therein and the Original Indenture (as amended and supplemented hereby) to the extent set forth therein shall be governed by and construed in accordance with the common laws (derecho común) of Spain.
Section 1.08. Submission to Jurisdiction. Except as provided in the immediately following two sentences, the Company hereby irrevocably submits to the non-exclusive jurisdiction of any U.S. federal or state court in the Borough of Manhattan, the City of New York, New York in any suit or proceeding arising out of or relating to the SNP Securities or the Indenture, and irrevocably 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 anything to the contrary in the SNP Securities or the Indenture, the Spanish courts in the city of Madrid shall have exclusive jurisdiction in respect of any suit or proceeding arising out of or relating to the SNP Securities or the Indenture arising out of, relating to or in connection with the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority (a “Bail-in Dispute”) and accordingly each of the Company, the Trustee, each Holder and beneficial owner of any SNP Securities and each Agent submits, to the extent it may effectively do so, to the exclusive jurisdiction of such Spanish courts in relation to any Bail-in Dispute. Each of the Company, the Trustee, each Holder and beneficial owner of any SNP Securities and each Agent further irrevocably waives, to the extent it may effectively do so, any objection to the Spanish courts in the city of Madrid on the grounds that they are an inconvenient or inappropriate forum in respect of any Bail-in Dispute.
Section 1.09. Execution in Counterparts. This Sixth Supplemental Indenture may be executed manually, by facsimile or by electronic signature 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. The exchange of copies of this Sixth Supplemental Indenture and of signature pages by email or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) transmission or other electronically-imaged signature (including, without limitation, DocuSign, Signaturit or Adobe Acrobat Sign) or transmission shall constitute effective execution and delivery of this Sixth Supplemental Indenture as to the parties hereto and may be used in lieu of the original Sixth Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by email or other electronic format (e.g., “pdf,” “tif” or “jpg”) (including, without limitation, DocuSign, Signaturit or Adobe Acrobat Sign) shall be deemed to be their original signatures for all purposes. Unless otherwise provided herein or in the SNP Securities, the words “execute,” “execution,” “signed,” and “signature” and words of similar import used in or related to any document to be signed in connection with this Sixth Supplemental Indenture, any SNP Securities or any of the transactions contemplated hereby or thereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic signatures and the keeping of records in electronic form, each of which shall be of the same legal effect, validity and enforceability as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other similar state laws based on the Uniform Electronic Transactions Act.
Section 1.10. Recitals by the Issuer. The recitals in this Sixth Supplemental Indenture are made by the Issuer only and not by the Trustee, and all of the provisions contained in the Original Indenture (as amended and supplemented hereby) in respect of the rights, privileges, immunities, powers and duties of the Trustee shall be applicable in respect of the SNP Securities and of this Sixth Supplemental Indenture as fully and with like effect as if set forth herein in full.
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Section 1.11. Ratification and Incorporation of Original Indenture. As amended and supplemented hereby with respect to the SNP Securities, the Original Indenture is in all respects ratified and confirmed, and the Original Indenture (as so amended and supplemented) and this Sixth Supplemental Indenture shall be read, taken and construed as one and the same instrument. In the event of any conflict between the terms and conditions of the Original Indenture (as amended and supplemented hereby) and the terms and conditions of this Sixth Supplemental Indenture, the terms and conditions of this Sixth Supplemental Indenture shall prevail.
Article 2
SNP Securities
Section 2.01. Creation of SNP Securities. There is hereby created a new series of senior non-preferred debt securities, the SNP Securities, to be issued under the Indenture. The SNP Securities will be issued at 100% of their principal amount by means of the public deed of issuance executed on August 26, 2026 and registered with the Commercial Registry of Vizcaya (Registro Mercantil de Vizcaya) on August 31, 2026.
Section 2.02. Limitation on Aggregate Principal Amount of SNP Securities. The aggregate principal amount of the SNP Securities shall initially be limited to $1,000,000,000 (except as otherwise provided in the Original Indenture (as amended and supplemented hereby)). The Issuer may from time to time, without the consent of the Holders of SNP Securities, create and issue further securities having the same terms and conditions as the previously issued SNP Securities in all respects (or in all respects except for the issue date, the original interest accrual date and/or the issue price), so that such further issue shall be consolidated and form a single series with the Outstanding SNP Securities; provided, however, that any such further issuance will only be made if either such additional securities are issued with no more than de minimis original issue discount for U.S. federal income tax purposes or any such further issuance is a “qualified reopening” as such term is defined under U.S. Treasury Regulations Section 1.1275-2(k)(3) promulgated under the U.S. Internal Revenue Code of 1986, as amended.
Section 2.03. Payment of Principal. The principal of the Outstanding SNP Securities shall be due and payable on the Stated Maturity Date or on such earlier date as the principal thereof may become due and payable in accordance with the provisions hereof.
Section 2.04. Interest and Interest Rate. (a) From (and including) the Issue Date to (but excluding) the Stated Maturity Date or any date of earlier redemption, the SNP Securities will bear interest at a fixed rate of 5.244% per annum.
(b) The Issuer will pay interest in arrears on the SNP Securities semi-annually on March 3 and September 3 of each year (each an “Interest Payment Date”), commencing on March 3, 2027, up to (and including) the Stated Maturity Date or any date of earlier redemption.
(c) Interest on the SNP Securities will be computed on the basis of a 360-day year of twelve 30-day months. Except as described below for the first Interest Payment Date, on each Interest Payment Date, the Issuer will pay interest on the SNP Securities for the period commencing on (and including) the immediately preceding Interest Payment Date and ending on (and including) the day immediately preceding that Interest Payment Date.
(d) On the first Interest Payment Date, the Issuer will pay interest for the period beginning on (and including) the Issue Date to (but excluding) March 3, 2027.
(e) If any Interest Payment Date falls on a day that is not a Business Day, the related interest payment shall be postponed to the next day that is a Business Day, and no interest on such payment shall accrue for the period from and after such Interest Payment Date.
(f) If the Stated Maturity Date or date of earlier redemption of any SNP Security falls on a day that is not a Business Day, payment of principal and interest on the applicable SNP Security will be made on the next succeeding day that is a Business Day, and no interest will accrue for the period from and after such Stated Maturity Date or date of earlier redemption.
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(g) Interest on each SNP Security will be paid only to the Person in whose name such SNP Security was registered at the close of business on the Regular Record Date for the applicable Interest Payment Date.
Section 2.05. Denominations, Minimum Purchase Amount. The SNP Securities may be issued in minimum denominations of $200,000 with increments of $200,000 thereafter.
Section 2.06. Paying Agent. (a) Upon the terms and subject to the conditions contained herein, the Issuer hereby appoints The Bank of New York Mellon, London Branch as the initial Paying Agent under the Indenture for the purpose of performing the functions of the Paying Agent with respect to the SNP Securities, and the Paying Agent hereby accepts such appointment.
(b) The Paying Agent shall exercise due care in performing the functions of the Paying Agent for the SNP Securities.
(c) The Paying Agent accepts its obligations set forth in the Indenture (including Section 6.16 of the Original Indenture), upon the terms and subject to the conditions set forth in the Indenture, including the following, to all of which the Issuer agrees:
(i) The Paying Agent shall be entitled to such compensation as may be agreed in writing with the Issuer for all services rendered by the Paying Agent, and the Issuer promises to pay such compensation and to reimburse the Paying Agent for the reasonable out-of-pocket expenses (including reasonable counsel fees and expenses) incurred by it in connection with the services rendered by it hereunder upon receipt of such invoices as the Issuer shall reasonably require. The Issuer agrees to indemnify the Paying Agent for, and to hold it harmless against, any and all loss, liability, damage, claims or expenses (including the costs and expenses of defending against any claim of liability and excluding taxes based upon, measured by or determined by the income of the Paying Agent) incurred by the Paying Agent that arises out of or in connection with its acting as Paying Agent hereunder, except such as may result from the gross negligence, willful misconduct or bad faith of the Paying Agent or any of its agents or employees. The Paying Agent shall incur no liability and shall be indemnified and held harmless by the Issuer for, or in respect of, any actions taken, omitted to be taken or suffered to be taken in good faith by the Paying Agent in reliance upon (A) the written opinion of counsel satisfactory to it and upon obtaining the prior written consent of the Issuer or (B) written instructions from the Issuer.
The Paying Agent shall notify the Company in writing of the commencement of any action or claim in respect of which indemnification may be sought promptly after any officer of the Trustee becomes aware of such commencement (provided that the failure to make such notification shall not affect the Paying Agent’s rights hereunder) and the Company shall be entitled to participate therein. The Paying Agent shall not be authorized to settle a claim without the written consent of the Company, which consent shall not be unreasonably withheld or delayed.
(ii) In acting under the Indenture and in connection with the SNP Securities, the Paying Agent is acting solely as agent of the Issuer and does not assume any obligations to, or relationship of agency or trust for or with, any of the Holders of such SNP Securities.
(iii) The Paying Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted to be taken or anything suffered by it in reliance upon the terms of the SNP Securities, any notice, direction, certificate, affidavit, statement or other paper, document or communication reasonably believed by it to be genuine and to have been approved or signed by the proper party or parties.
(iv) Unless herein otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Issuer made or given by it under any provision of the Indenture shall be sufficient if signed by an authorized person of the Issuer.
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(v) The Paying Agent may, upon obtaining the prior written consent of the Issuer, perform any duties hereunder either directly or by or through agents or attorneys, and, except as otherwise provided in the Indenture, the Paying Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
(vi) All money held for the Issuer is held by the Paying Agent as banker and not as a trustee under the Client Money Rules. If the Paying Agent fails, the Client Money Distribution and Transfer Rules will not apply to such money and so the Issuer will not be entitled to share in any distribution under the Client Money Distribution and Transfer Rules.
(d) (i) The Paying Agent may at any time resign as Paying Agent by giving written notice to the Issuer of such intention on its part, specifying the date on which its desired resignation shall become effective; provided, however, that such date shall not be earlier than 60 days after the receipt of such notice by the Issuer, unless the Issuer agrees in writing to accept less notice. The Paying Agent may be removed by the Issuer (with or without cause) at any time by the filing with it of any instrument in writing signed on behalf of the Issuer by an authorized person thereof and specifying such removal and the date when it is intended to become effective, subject to the Company providing a copy of such notice to the Trustee. Such resignation or removal shall take effect only upon the date of the appointment by the Issuer, as hereinafter provided, of a successor Paying Agent. If within 60 days after notice of resignation or removal has been given, a successor Paying Agent has not been appointed, the Paying Agent may petition a court of competent jurisdiction to appoint a successor Paying Agent. A successor Paying Agent shall be appointed by the Issuer by an instrument in writing signed on behalf of the Issuer by an authorized person thereof and the successor Paying Agent. Upon the appointment of a successor Paying Agent and acceptance by it of such appointment, the Paying Agent so superseded shall cease to be such Paying Agent hereunder. Upon its resignation or removal, the Paying Agent shall be entitled to the payment by the Issuer of its compensation, if any is owed to it, for services rendered hereunder and to the reimbursement of all reasonable out-of-pocket expenses incurred in connection with the services rendered by it hereunder.
(ii) Any successor Paying Agent appointed hereunder shall execute and deliver to its predecessor and to the Issuer an instrument accepting such appointment hereunder, and thereupon such successor Paying Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally named as such Paying Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become obliged to transfer and deliver, and such successor Paying Agent shall be entitled to receive, copies of any relevant records maintained by such predecessor Paying Agent.
(iii) Any Person into which the Paying Agent may be merged or converted or with which the Paying Agent may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Paying Agent shall be a party, or any Person succeeding to all or substantially all of the assets and business of the Paying Agent, or all or substantially all of the corporate trust business of the Paying Agent shall, to the extent permitted by applicable law, be the successor Paying Agent under the Indenture without the execution or filing of any paper or any further act on the part of any of the parties hereto. Notice of any such merger, conversion, consolidation or sale shall forthwith be given to the Issuer within 30 days of such merger, conversion, consolidation or sale.
Section 2.07. Security Certificates. (a) The SNP Securities shall initially be represented by one or more global certificates (the “Global Certificates”) substantially in the form of Exhibit A (attached hereto), which shall be deposited with a custodian for the Depository and the SNP Securities represented thereby will be registered in the name of a nominee of the Depository (initially Cede & Co.), for the accounts of participants in the Depository.
(b) SNP Securities represented by a Global Certificate may be transferred, in whole and not in part, only: (i) by the Depository to a nominee of the Depository, (ii) by a nominee of the Depository to the Depository or to another nominee of the Depository, or (iii) by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.
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(c) Beneficial interests in any SNP Securities represented by a Global Certificate will be exchangeable for SNP Securities represented by definitive certificates (“Definitive Certificates”) only if: (i) the Depository notifies the Issuer in writing that it is unwilling, unable or ineligible to continue to act as Depository or that it has ceased to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, and, in either case, a successor Depository is not appointed by the Issuer within 60 days after the date of such notice from the Depository, (ii) the Issuer notifies the Trustee in writing that it has reasonably elected to cause the issuance of SNP Securities represented by Definitive Certificates or (iii) there shall have occurred and be continuing an Event of Default with respect to the SNP Securities.
(d) Upon the occurrence of any of the events specified in Section 2.07(c)(i), (ii) or (iii) above, SNP Securities represented by Definitive Certificates shall be (i) delivered by the Trustee in exchange for beneficial interest in SNP Securities represented by Global Certificates and (ii) registered in such names, and issued in such authorized denominations, as shall be requested by or on behalf of the Depository in accordance with its customary procedures.
Section 2.08. Redemption and Purchase. (a) The provisions of Article 11 of the Original Indenture (as amended and supplemented hereby), except for Section 11.10 thereof, will apply to the SNP Securities. Any such redemption or purchase shall be in compliance with Applicable Banking Regulations then in force and subject to the prior consent of the Regulator, if required pursuant to such regulations. The “Redemption Price” means, with respect to any SNP Securities to be redeemed pursuant to Article 11 of the Original Indenture (as amended and supplemented hereby), an amount equal to 100% of their principal amount, together with accrued but unpaid interest, if any, thereon to (but excluding) the Redemption Date. The “Redemption Date” of any SNP Securities to be redeemed will be any day fixed by the Issuer for redemption of such SNP Securities and specified in the applicable notice of redemption provided by the Issuer pursuant to Section 11.04 of the Original Indenture; provided, however, that in any case where the Redemption Date shall not be a Business Day, then the SNP Securities will not become due and payable and deposit of the Redemption Price will not be made on such Redemption Date, but the SNP Securities will become due and payable and deposit of the Redemption Price will be made on the next succeeding day that is a Business Day with the same force and effect as if the SNP Securities had become due and payable and the deposit of the Redemption Price had been made on the Redemption Date, and no interest shall accrue on the amount payable on such Redemption Date or at such time for the period from and after such Redemption Date.
(b) All or part only of the SNP Securities may be redeemed at the Redemption Price in accordance with the terms of Article 11 of the Original Indenture (as amended and supplemented hereby) at the option of the Issuer if a Tax Event occurs on or after the Issue Date of the SNP Securities.
(c) All (but not less than all) of the SNP Securities may be redeemed at the Redemption Price in accordance with the terms of Article 11 of the Original Indenture (as amended and supplemented hereby) at the option of the Issuer if an Eligible Liabilities Event occurs on or after the Issue Date of the SNP Securities.
(d) All (but not less than all) of the SNP Securities may be redeemed at the Redemption Price in accordance with the terms of Article 11 of the Original Indenture (as amended and supplemented hereby) at the option of the Issuer if, on or after the Issue Date, SNP Securities representing, in the aggregate, 75% or more of the aggregate principal amount of the SNP Securities (including, both in the numerator and the denominator, (i) any SNP Securities issued after the Issue Date, and (ii) any SNP Securities which have been cancelled by the Trustee following their surrender for cancellation in accordance with Section 11.12 of the Original Indenture) have been purchased by or on behalf of the Issuer or any member of the Group.
Section 2.09. Definitive Certificates and Authentication. Any Definitive Certificates issued in exchange for beneficial interests in the SNP Securities represented by Global Certificates pursuant to Section 2.07 of this Sixth Supplemental Indenture or Section 2.03 of the Original Indenture shall be issued in the State of New York. Notwithstanding any other provision in the Indenture or the SNP Securities, the SNP Securities, irrespective of whether they are represented by Global Certificates or Definitive Certificates, shall be issued and authenticated in New York.
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Section 2.10. Agreement with Respect to the Exercise of Spanish Bail-in Power. (a) Notwithstanding any other term of the SNP Securities, the Indenture or any other agreements, arrangements, or understandings between the Company and any Holder, by its acquisition of the SNP Securities or any beneficial interest therein, each Holder (which, for the purposes of this Section 2.10, includes each holder of a beneficial interest in the SNP Securities) acknowledges, accepts, consents to and agrees to be bound by: (i) the exercise and effects of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority, which may be imposed with or without any prior notice with respect to the SNP Securities, and may include and result in any of the following, or some combination thereof: (1) the reduction or cancellation of all, or a portion, of the Amounts Due on the SNP Securities; (2) the conversion of all, or a portion, of the Amounts Due on the SNP Securities into shares, other securities or other obligations of the Company or another Person (and the issue to or conferral on the Holder of any such shares, securities or obligations), including by means of an amendment, modification or variation of the terms of the SNP Securities; (3) the cancellation of the SNP Securities; (4) the amendment or alteration of the maturity of the SNP Securities or amendment of the amount of interest payable on the SNP Securities, or the date on which the interest becomes payable, including by suspending payment for a temporary period; and (ii) the variation of the terms of the SNP Securities or the rights of Holders thereunder or under the Indenture, as deemed necessary by the Relevant Spanish Resolution Authority, to give effect to the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority.
(b) By its acquisition of the SNP Securities or any beneficial interest therein, each Holder acknowledges and agrees that neither a reduction or cancellation, in part or in full, of the Amounts Due on the SNP Securities or the conversion thereof into another security or obligation of the Company or another Person, in each case as a result of the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the Company, nor the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities shall: (i) give rise to a default or event of default for purposes of Section 315(b) (Notice of Defaults) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act; or (ii) be a default or an Event of Default with respect to the SNP Securities or under the Indenture. By its acquisition of the SNP Securities or any beneficial interest therein, each Holder further acknowledges and agrees that no repayment or payment of Amounts Due on the SNP Securities shall become due and payable or be paid after the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority if, and to the extent that, such amounts have been reduced, converted, cancelled, amended or altered as a result of such exercise.
(c) By its acquisition of the SNP Securities or any beneficial interest therein, each Holder, to the extent permitted by the Trust Indenture Act, waives any and all claims, in law and/or in equity, against the Trustee for, agrees not to initiate a suit against the Trustee in respect of, and agrees that the Trustee shall not be liable for, any action that the Trustee takes, or abstains from taking, in either case in accordance with the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities. Additionally, by its acquisition of the SNP Securities or any beneficial interest therein, each Holder acknowledges and agrees that, upon the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities: (i) the Trustee shall not be required to take any further directions from the Holders with respect to any portion of the SNP Securities that is written down, converted to equity and/or cancelled under Section 5.12 of the Original Indenture; and (ii) the Indenture shall not impose any duties upon the Trustee whatsoever with respect to the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority; provided, however, that notwithstanding the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities, so long as any SNP Securities remain Outstanding, there shall at all times be a trustee for the SNP Securities in accordance with the Indenture, and the resignation and/or removal of the Trustee and the appointment of a successor trustee shall continue to be governed by the Indenture, including to the extent no additional supplemental indenture or amendment is agreed upon in the event the SNP Securities remain Outstanding following the completion of the exercise of the Spanish Bail-in Power.
(d) By its acquisition of the SNP Securities or any beneficial interest therein, each Holder shall be deemed to have authorized, directed and requested the Depository and any direct participant therein or other intermediary through which it holds such SNP Securities to take any and all necessary actions, if required, to implement the exercise of the Spanish Bail-in Power with respect to the SNP Securities as it may be imposed, without any further action or direction on the part of such Holder.
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(e) Upon the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities, the Company or the Relevant Spanish Resolution Authority (as the case may be) shall provide a written notice to the Depository as soon as practicable regarding such exercise of the Spanish Bail-in Power for purposes of notifying the Holders of such SNP Securities. The Company shall also deliver a copy of such notice to the Trustee for information purposes. No failure or delay by the Company to deliver a notice shall affect the validity or enforceability of the exercise of the Spanish Bail-in Power.
(f) If the Issuer has elected to redeem the SNP Securities but prior to the payment of the Redemption Price to Holders the Relevant Spanish Resolution Authority exercises its Spanish Bail-in Power with respect to the SNP Securities the relevant redemption notice shall be automatically rescinded and shall be of no force and effect, there shall be no redemption and consequently no payment of the Redemption Price (or any accrued interest and Additional Amounts payable under Article 11 of the Original Indenture (as amended and supplemented hereby)) will be due and payable.
(g) Upon the exercise of the Spanish Bail-in Power with respect to the SNP Securities which results in the redemption, cancellation, or the conversion into other securities, of all the Amounts Due on the SNP Securities or such SNP Securities otherwise ceasing to be outstanding, the Indenture shall be deemed satisfied and discharged as to such series of SNP Securities and such SNP Securities shall thereafter be deemed to be not “Outstanding”.
(h) Each Holder that acquires SNP Securities in the secondary market or otherwise shall be deemed to acknowledge and agree to be bound by and consent to the same provisions specified in the Indenture to the same extent as the Holders that acquire the SNP Securities upon their initial issuance, including, without limitation, with respect to this Section 2.10.
Section 2.11. Amended Provision of Original Indenture.
(a) The definition of “Qualifying Securities” set forth in Section 1.01 of the Original Indenture shall be deleted with respect to the SNP Securities only and shall not apply to the SNP Securities and shall, with respect to the SNP Securities only, be replaced, by the following definition:
““Qualifying Securities” means, with respect to the Securities of a series which is subject to any substitution or modification pursuant to Section 8.04, at any time, any securities issued by the Company (including any Securities so modified so as to remain Qualifying Securities) that:
| (i) | contain terms which comply with the then-current requirements for inclusion in the Eligible Liabilities Amount as provided under Applicable Banking Regulations, as applicable; |
| (ii) | have the same denomination and aggregate outstanding principal amount, the same currency in which payments shall be payable, the same rate of interest and terms for the determination of any applicable rate of interest, the same date of maturity and the same dates for payment of interest as such series of Securities immediately prior to any substitution or modification pursuant to Section 8.04; |
| (iii) | have the same or higher ranking as is applicable to such series of Securities on the issue date of such series of Securities pursuant to Article 13; |
| (iv) | preserve any existing rights under the Securities to any accrued interest which has not been paid in respect of the period from (and including) the Interest Payment Date last preceding the date of any substitution or modification pursuant to Section 8.04; |
| (v) | are listed or admitted to trading on any stock exchange as selected by the Company, if such series of Securities were listed or admitted to trading on a stock exchange immediately prior to the relevant substitution or modification pursuant to Section 8.04; and |
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| (vi) | are not, immediately following the relevant substitution or modification, subject to an Eligible Liabilities Event or a Tax Event.” |
(b) The second paragraph of Section 3.07(a) of the Original Indenture shall be deleted with respect to the SNP Securities only and shall not apply to the SNP Securities and shall, with respect to the SNP Securities only, be replaced, by the following:
The Company shall, before 10:00 a.m. (New York time) on each due date of the principal (and premium, if any) or interest or any other amounts due on any Securities (and, in any event, unless agreed by the relevant Paying Agent, no earlier than 10:00 a.m. local time of the place where such Paying Agent has its registered office five business days in such location before the relevant due date), 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.
Section 2.12. Notices. Any notice, communication or other document required to be given to any person hereunder shall be given in accordance with Section 1.05 or Section 1.06 (as the case may be) of the Original Indenture. Any notice hereunder given by telephone, telecopy, letter or email shall be deemed to be received when in the ordinary course of transmission or post, as the case may be, it would be received.
Section 2.13. Instructions by Electronic Means. All of the provisions contained in the Original Indenture in respect of Instructions delivered pursuant to Electronic Means shall be applicable in respect of the SNP Securities and of this Sixth Supplemental Indenture as fully and with like effect as if set forth herein in full.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Sixth Supplemental Indenture to be duly executed on its behalf as of the date first above written.
| BANCO BILBAO VIZCAYA ARGENTARIA, S.A., | ||
| as Issuer | ||
| By: | /s/ Ignacio Echevarría Soriano | |
| Name: Ignacio Echevarría Soriano | ||
| Title: Authorized Representative | ||
| THE BANK OF NEW YORK MELLON, LONDON BRANCH | ||
| as Trustee, Paying Agent and Transfer Agent | ||
| By: | /s/ Nathan A. Hodd | |
| Name: Nathan A. Hodd | ||
| Title: Agent | ||
| THE BANK OF NEW YORK MELLON, | ||
| as Security Registrar | ||
| By: | /s/ Nathan A. Hodd | |
| Name: Nathan A. Hodd | ||
| Title: Agent | ||
[Signature Page to Sixth Supplemental Indenture]
EXHIBIT A
FORM OF SECURITY CERTIFICATE REPRESENTING SECURITIES
No.
[·]
CUSIP NO. 05946K AZ4
ISIN NO. US05946KAZ49
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY (THE “DEPOSITORY”) TO A NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.
GLOBAL SECURITY
representing up to $[·]
5.244% Senior Non-Preferred Fixed Rate Notes due 2031
BANCO BILBAO VIZCAYA ARGENTARIA, S.A., a sociedad anónima organized under the laws of the Kingdom of Spain and having its registered office in the Kingdom of Spain (together with its successors and permitted assigns under the Indenture referred to on the reverse hereof, the “Company”), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of $[·] on September 3, 2031 or on such earlier date as the principal hereof may become due and payable in accordance with the provisions hereof.
The Company further unconditionally promises, subject to the Terms and Conditions of the SNP Securities endorsed on the reverse hereof, to pay interest semi-annually in arrears on March 3 and September 3 of each year (each an “Interest Payment Date”), commencing March 3, 2027, up to (and including) the date of maturity or any date of earlier redemption, on said principal sum at a fixed rate of 5.244% per annum. The SNP Securities will bear interest from (and including) the issue date to (but excluding) the date of maturity or any date of earlier redemption. Interest shall accrue from (and including) the most recent Interest Payment Date or, with respect to the first Interest Payment Date, from (and including) the date of issuance, until the principal hereof is paid or made available for payment. The interest payable on any such Interest Payment Date will, subject to certain conditions set forth in the Indenture referred to on the reverse hereof, be paid to the Holder in whose name this SNP Security is registered as of the close of business on the 15th calendar day (whether or not such day is a Business Day) immediately preceding such Interest Payment Date.
Payment of the principal amount of, and any interest on, this SNP Security will be made by wire transfer of immediately available funds in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. Such payment shall be made to the Holder including through a paying agent of the Company for collection by the Holder.
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Notwithstanding any other term of this SNP Security, the Indenture or any other agreements, arrangements, or understandings between the Company and any Holder, by its acquisition of this SNP Security or any beneficial interest therein, each Holder (including, for purposes of this paragraph, each holder of a beneficial interest in the SNP Security) acknowledges, accepts, consents to and agrees to be bound by: (i) the exercise and effects of the Spanish Bail-in Power (as defined on the reverse hereof) by the Relevant Spanish Resolution Authority (as defined on the reverse hereof), which may be imposed with or without any prior notice with respect to the SNP Security, and may include and result in any of the following, or some combination thereof: (1) the reduction or cancellation of all, or a portion, of the Amounts Due (as defined on the reverse hereof) on this SNP Security; (2) the conversion of all, or a portion, of the Amounts Due on this SNP Security into shares, other securities or other obligations of the Company or another person (and the issue to or conferral on the Holder of any such shares, securities or obligations), including by means of an amendment, modification or variation of the terms of this SNP Security; (3) the cancellation of this SNP Security; (4) the amendment or alteration of the maturity of this SNP Security or amendment of the amount of interest payable on this SNP Security, or the date on which the interest becomes payable, including by suspending payment for a temporary period; and (ii) the variation of the terms of this SNP Security or the rights of the Holders thereunder or under the Indenture, as deemed necessary by the Relevant Spanish Resolution Authority, to give effect to the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority. The Holder shall not have any claim against the Company in connection with or arising out of any such exercise or variation.
Reference is made to the further provisions set forth under the Terms and Conditions of the SNP Securities endorsed on the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.
This SNP Security shall not be valid or obligatory for any purpose until the certificate of authentication of this SNP Security shall have been executed manually, by facsimile or by electronic signature by or on behalf of the Trustee under the Indenture.
[Remainder of the page left intentionally blank]
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
| BANCO BILBAO VIZCAYA ARGENTARIA, S.A. | ||
| By: | ||
| Name: | ||
| Title: | ||
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Certificate of Authentication
This is the Global Security of a series designated herein referred to in the within-mentioned Indenture.
Dated:
Authenticated in New York
| The Bank of New York Mellon, London Branch, | ||
| as Trustee | ||
| By: | ||
| Authorized Signatory | ||
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[REVERSE OF SECURITY]
TERMS AND CONDITIONS OF THE SECURITIES
1. General. This security is one of a duly authorized issue of a series of senior non-preferred debt securities of the Company, designated as its 5.244% Senior Non-Preferred Fixed Rate Notes due 2031 (Bonos Simples No Preferentes Agosto 2026 - SEC - 16) (referred to as the “SNP Securities”), limited to the aggregate principal amount of $1,000,000,000 (except as otherwise provided in Section 2.02 of the Sixth Supplemental Indenture (as defined below)) and issued or to be issued pursuant to an Indenture (the “Base Indenture”) dated as of July 31, 2025 among the Company and The Bank of New York Mellon, London Branch, as trustee (together with any successor Trustee under the Indenture (as defined herein), the “Trustee”), transfer agent (together with any successor Transfer Agent under the Indenture, the “Transfer Agent”) and paying agent (together with any successor Paying Agent under the Indenture, the “Paying Agent”) and The Bank of New York Mellon, as security registrar (together with any successor Security Registrar under the Indenture, the “Security Registrar”), as amended and supplemented prior to the issuance and authentication hereof by a supplemental indenture dated as of September 3, 2026 among the Company, The Bank of New York Mellon, London Branch, as Trustee, Paying Agent and Transfer Agent, and The Bank of New York Mellon, as Security Registrar (the “Sixth Supplemental Indenture” and, together with the Base Indenture (as amended and supplemented by the Sixth Supplemental Indenture), the “Indenture”). The SNP Securities are subject to the terms and conditions of the Indenture, and such terms and conditions shall have effect as if incorporated herein. All capitalized terms used in this SNP Security but not otherwise defined herein are used as defined in the Indenture and shall have the meanings assigned to them in the Indenture. References herein to any particular Article, Section or other subdivision of the Base Indenture shall refer to any such Article, Section or other subdivision of the Base Indenture as amended and supplemented by the Sixth Supplemental Indenture. The holders of the SNP Securities (each a “Holder”) will be entitled to the benefits of, be bound by, and be deemed to have notice of, all of the provisions of the Indenture and reference is made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the SNP Securities and of the terms upon which the SNP Securities are, and are to be, authenticated and delivered. A copy of the Indenture is on file and may be inspected at the Corporate Trust Office of the Trustee. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this SNP Security and the terms of the Indenture, the terms of the Indenture will control.
The SNP Securities will initially be issued in the form of one or more global certificates representing the securities of this series in fully registered form without interest coupons (each a “Global Security”) deposited with The Bank of New York Mellon as custodian for the Depository. The SNP Securities will not be issued in bearer form. The SNP Securities, and transfers thereof, shall be registered as provided in Section 3.05 of the Base Indenture. Any person in whose name a SNP Security shall be registered may (to the fullest extent permitted by applicable law) be treated at all times, and for all purposes, by the Company and the Trustee as the absolute owner of such SNP Security, regardless of any notice of ownership, theft or loss or of any writing thereon.
2. Principal and Interest. (a) The principal of the Outstanding SNP Securities shall be due and payable on September 3, 2031 (the “Stated Maturity Date”) or on such earlier date as the principal thereof may become due and payable in accordance with the provisions hereof.
(b) From (and including) the Issue Date to (but excluding) the Stated Maturity Date or any date of earlier redemption, the SNP Securities will bear interest at a fixed rate of 5.244% per annum.
The Company will pay interest in arrears on the SNP Securities semi-annually on each Interest Payment Date, up to (and including) the Stated Maturity Date or any date of earlier redemption.
Interest on the SNP Securities will be calculated on the basis of a 360-day year of twelve 30-day months.
(c) Except as described below for the first Interest Payment Date, on each Interest Payment Date, the Company will pay interest on the SNP Securities for the period commencing on (and including) the immediately preceding Interest Payment Date and ending on (and including) the day immediately preceding that Interest Payment Date.
On the first Interest Payment Date, the Company will pay interest for the period beginning on (and including) the Issue Date to (but excluding) March 3, 2027.
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If any Interest Payment Date falls on a day that is not a Business Day, the related interest payment shall be postponed to the next day that is a Business Day, and no interest on such payment shall accrue for the period from and after such Interest Payment Date.
“Business Day” means any day, other than Saturday or Sunday, that is neither a Legal Holiday nor a day on which banking institutions are authorized or required by law, regulation or executive order to close in the City of New York, London or Madrid.
If the Stated Maturity Date or date of earlier redemption of any SNP Security falls on a day that is not a Business Day, payment of principal and interest on the applicable SNP Security will be made on the next succeeding day that is a Business Day, and no interest will accrue for the period from and after such Stated Maturity Date or date of earlier redemption.
Interest on each SNP Security will be paid only to the Person in whose name such SNP Security was registered at the close of business on the Regular Record Date for the applicable Interest Payment Date.
3. Additional Amounts. Any amounts to be paid by the Company with respect to each SNP Security shall be paid without withholding or deduction for or on account of any and all present or future taxes or duties of whatever nature (“Taxes”) unless such withholding or deduction is required by law. In the event any such withholding or deduction is imposed or levied in respect of payment of interest (but not principal or premium (if any)) by or on behalf of Spain or any political subdivision or authority thereof or therein having the power to tax, the Company will pay to the Holder such Additional Amounts as may be necessary in order that the net amount received by the Holder of such SNP Security under the Indenture, after such withholding or deduction, shall equal the amount of interest, if any, which would have been receivable by such Holder in the absence of such withholding or deduction; 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 SNP Security for whose benefit such Holder holds such SNP Security) having some connection with Spain other than the mere holding of the SNP Security (or such beneficial interest) or the mere crediting of the SNP Security to its securities account with the relevant Depository;
(b) in the case of a SNP Security presented for payment (where presentation is required) more than 30 days after the Relevant Date, except to the extent that the 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) in respect of any Tax, assessment or other governmental charge that would not have been imposed but for the failure by the Holder or beneficial owner of the SNP Security to comply with any certification, information or other reporting requirements concerning the nationality, residence, identity or connection with the taxing jurisdiction of the Holder or beneficial owner of that SNP Security, if compliance is required by statute, regulation or administrative practice of Spain or of any political subdivision or taxing authority thereof or therein as a precondition to reduction of or relief or exemption from the Tax, assessment or other governmental charge; or
(d) to, or to a third party on behalf of, a Holder if the Company does not receive any relevant information as may be required by Spanish tax laws and regulations (including any binding rulings), including a duly executed and completed Payment Statement from the Paying Agent.
Additional Amounts will also not be paid with respect to any payment on any SNP Security to any Holder who is a fiduciary, partnership, limited liability company or Person other than the sole beneficial owner of such payment to the extent such 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 such fiduciary, member of such partnership, interest holder in that limited liability company or a beneficial owner who would not have been entitled to such Additional Amounts had it been a Holder of such SNP Security.
No Additional Amounts will be paid by the Company, the Trustee or any paying agent on account of any withholding or deduction from a payment on, or in respect of, the SNP Securities where such withholding or deduction is imposed pursuant to any agreement with the U.S. Internal Revenue Service in connection with Sections 1471-1474 of the U.S. Internal Revenue Code and the U.S. Treasury regulations thereunder (“FATCA”), any intergovernmental agreement between the United States and Spain or any other jurisdiction with respect to FATCA, or any law, regulation or other official guidance enacted or issued in any jurisdiction implementing, or relating to, FATCA or any intergovernmental agreement.
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4. Redemption upon a Tax Event; Redemption upon an Eligible Liabilities Event; Clean-up Call. Any redemption of the SNP Securities shall be made in accordance with the terms of Article 11 of the Base Indenture and be in compliance with Applicable Banking Regulations then in force and subject to the prior consent of the Regulator, if required pursuant to such regulations.
(a) Redemption upon a Tax Event. All or part only of the SNP Securities may be redeemed at the Redemption Price at the option of the Company if a Tax Event occurs on or after the Issue Date of the SNP Securities; provided that, if the Tax Event consists of the event described in prong (i) of the definition of “Tax Event”, no such notice to the Trustee of the redemption shall be given earlier than 90 days prior to the earliest date on which the Company would be obligated to deduct or withhold tax or pay Additional Amounts were a payment in respect of the SNP Securities then due.
Prior to any notice of redemption of the SNP Securities pursuant to this paragraph 4(a), the Company shall provide the Trustee with (i) an Officer’s Certificate of the Company stating that the Company 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 to redeem such SNP Securities pursuant to this paragraph 4(a) have been satisfied; and (ii) an Opinion of Counsel to the effect that any of the circumstances referred to in paragraph 4(a) prevail.
(b) Redemption upon an Eligible Liabilities Event. All (but not less than all) of the SNP Securities may be redeemed at the Redemption Price at the option of the Company if an Eligible Liabilities Event occurs, on or after the Issue Date of the SNP Securities.
Prior to any notice of redemption of the SNP Securities pursuant to this paragraph 4(b), the Company shall provide the Trustee with (i) an Officer’s Certificate of the Company stating that the Company 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 to redeem such SNP Securities pursuant to this paragraph 4(b) have been satisfied; and (ii) an Opinion of Counsel to the effect that the circumstances referred to in paragraph 4(b) prevail.
(c) Clean-up Call. All (but not less than all) of the SNP Securities may be redeemed at the Redemption Price at the option of the Company if, on or after the Issue Date, SNP Securities representing, in the aggregate, 75% or more of the aggregate principal amount of the SNP Securities (including, both in the numerator and the denominator, (i) any SNP Securities issued after the Issue Date, and (ii) any SNP Securities which have been cancelled by the Trustee following their surrender for cancellation in accordance with the Indenture) have been purchased by or on behalf of the Company or any member of the Group.
5. Event of Default. “Event of Default”, wherever used herein with respect to this SNP Security, means (whatever the reason for such Event of Default and whether it shall be voluntary 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) that, except as set forth in the immediately succeeding paragraph, an order shall have been made by any competent court commencing insolvency proceedings (procedimiento concursal) against the Company or an order of any competent court or administrative agency shall have been made or a resolution shall have been passed by the Company for the dissolution or winding up of the Company (except (i) in the case of a reconstruction, consolidation, amalgamation or merger carried out in compliance with the requirements set forth in Section 8.01 of the Base Indenture (in this case, even without being approved by an Act of the Holders of the SNP Securities) or (ii) in any such case for the purpose of a reconstruction or a consolidation or an amalgamation or a merger which has been approved by an Act of the Holders of the SNP Securities).
Notwithstanding any other provision in these terms or the Indenture, any Resolution or Early Intervention with respect to the Company shall not, in and of itself and without regard to any other fact or circumstance, constitute a default or an Event of Default under the immediately preceding paragraph or under any other provision in these terms or the Indenture with respect to the SNP Securities. In addition, neither (i) a reduction or cancellation, in part or in full, of the Amounts Due (as defined below) on the SNP Securities or the conversion thereof into another security or obligation of the Company or another Person, in each case as a result of the exercise of the Spanish Bail-in Power (as defined below) by the Relevant Spanish Resolution Authority (as defined below) with respect to the Company, nor (ii) the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities, shall constitute an Event of Default or default under the Indenture or the SNP Securities or otherwise constitute non-performance of a contractual obligation, or entitle the Holders of the SNP Securities to any remedies, which are hereby expressly waived. In addition, no repayment or payment of Amounts Due on the SNP Securities shall become due and payable or be paid after the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority if, and to the extent that, such amounts have been reduced, converted, cancelled, amended or altered as a result of such exercise.
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For the avoidance of doubt, only an Event of Default (rather than any breach or default under the Indenture or the SNP Security) may give rise to a declaration of acceleration referred to in Section 5.02 of the Base Indenture.
6. Substitution and Modification. Each Holder and beneficial owner of the SNP Securities shall, by virtue of its acquisition of the SNP Securities or any beneficial interest therein, be deemed to acknowledge, accept, consent to and agree to be bound by any substitution of or modification to the terms of the SNP Securities as set forth in Section 8.04 of the Base Indenture and to grant to the Company and the Trustee full power and authority to take any action and/or to execute and deliver any document in the name and/or on behalf of such Holder or beneficial owner, as the case may be, which is necessary or convenient to complete the substitution of or modification to the terms of the SNP Securities, as applicable. Each Holder and beneficial owner of the SNP Securities, by virtue of its acquisition of the SNP Securities or any beneficial interest therein, to the extent permitted by the Trust Indenture Act, waives any and all claims, in law and/or in equity, against the Trustee and/or the Company for, agrees not to initiate a suit against the Trustee and/or the Company in respect of, and agrees that neither the Trustee nor the Company shall be liable for, any action that the Trustee or the Company takes, or abstains from taking, in either case in connection with the substitution of or modification to the terms of the SNP Securities upon the occurrence of an Eligible Liabilities Event or a Tax Event.
7. Enforcement. No Holder of any SNP Security (which, for the purposes of this paragraph 7, includes each holder of a beneficial interest in any such SNP Security) shall have any right by virtue of or by availing itself of any provision of the Indenture or of these terms to institute any proceeding, judicial or otherwise, with respect to the Indenture or the SNP Securities or for the appointment of a receiver or trustee, or for any other remedy thereunder, unless (a) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the SNP Securities, specifying such Event of Default and stating that such notice is a “Notice of Event of Default” under the Indenture, (b) the Holders of not less than 25% in aggregate principal amount of the SNP Securities then Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee thereunder and such Holder or Holders have offered to the Trustee reasonable indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request, (c) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding, and (d) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by Holders of a majority in aggregate principal amount of the Outstanding SNP Securities.
8. Status and Ranking. (a) The payment obligations of the Company under the SNP Securities on account of principal are direct, unconditional, unsubordinated and unsecured obligations of the Company and, upon the insolvency (concurso de acreedores) of the Company, in accordance with and only to the extent permitted by the Insolvency Law and any other applicable laws relating to or affecting the enforcement of creditors’ rights in Spain (including, without limitation, Additional Provision 14 of Law 11/2015), but subject to any other ranking that may apply as a result of any mandatory provision of law (or otherwise), the payment obligations of the Company under the SNP Securities with respect to claims for principal (which claims will constitute ordinary claims) will rank:
| (i) | junior to any (a) privileged claims (créditos privilegiados) (which shall include, among other claims, any claims in respect of deposits for the purposes of Additional Provision 14.1 of Law 11/2015), (b) claims against the insolvency estate (créditos contra la masa), and (c) Senior Preferred Obligations; |
| (ii) | pari passu without any preference or priority among themselves and with all other Senior Non-Preferred Obligations; and |
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| (iii) | senior to all subordinated obligations of, or claims against, the Company (créditos subordinados), present and future, |
such that any relevant claim on account of principal in respect of the SNP Securities will be satisfied, as appropriate, only to the extent that all claims ranking senior to it have first been satisfied in full, and then pro rata with any claims ranking pari passu with it, in each case as provided above.
Upon the insolvency (concurso de acreedores) of the Company, in accordance with and to the extent permitted by the Insolvency Law and other applicable laws relating to or affecting the enforcement of creditors’ rights in Spain, but subject to any other ranking that may apply as a result of any mandatory provision of law (or otherwise), the payment obligations of the Company under the SNP Securities with respect to claims for accrued but unpaid interest on the SNP Securities shall constitute subordinated claims (créditos subordinados) against the Company ranking in accordance with the provisions of the Insolvency Law. No further interest on the SNP Securities shall accrue from the date of declaration of the insolvency of the Company. Claims in respect of Additional Amounts shall also constitute subordinated claims (créditos subordinados) against the Company.
“Insolvency Law” means the restated text of the Insolvency Law, as approved by Spanish Royal Legislative Decree 1/2020 of May 5 (Real Decreto Legislativo 1/2020, de 5 de mayo, por el que se aprueba el texto refundido de la Ley Concursal), as amended, replaced or supplemented from time to time.
“ordinary claims” means the class of claims with respect to unsecured, non-privileged and unsubordinated obligations (créditos ordinarios) of the Company which, upon the insolvency (concurso de acreedores) of the Company and pursuant to the Insolvency Law and other applicable laws relating to or affecting the enforcement of creditors’ rights in Spain, rank (i) junior to privileged claims (créditos privilegiados) (which shall include, among other claims, any claims in respect of deposits for the purposes of Additional Provision 14.1 of Law 11/2015 and any secured claims), and claims against the insolvency estate (créditos contra la masa) and (ii) senior to subordinated claims (créditos subordinados).
“Senior Non-Preferred Obligations” (créditos ordinarios no preferentes) means the obligations of the Company with respect to (i) the payment of principal under the SNP Securities and (ii) all other ordinary claims, present and future, which, upon the insolvency (concurso de acreedores) of the Company, are expressed to rank within the ordinary claims but junior to Senior Preferred Obligations.
“Senior Preferred Obligations” means the obligations of the Company with respect to all ordinary claims, present and future, other than Senior Non-Preferred Obligations.
(b) Each Holder and beneficial owner of this SNP Security, by his or her acquisition thereof, agrees to the ranking of the SNP Security as described in this paragraph 8 and, to the extent permitted by Spanish law, authorizes and directs the Trustee on his or her behalf to take such action as may be necessary or appropriate to effectuate the ranking of the SNP Securities provided in this paragraph 8 and appoints the Trustee his or her attorney-in-fact for any and all such purposes, including, if required, to grant any private or public documents on such Holder’s or beneficial owner’s behalf. Further, each such Holder and beneficial owner irrevocably waives his or her rights of priority which would otherwise be accorded to him or her under the laws of Spain, to the extent necessary to effectuate the ranking provisions of this SNP Security and to the extent permitted by Spanish law.
9. Certain Undertakings and Agreements by Holders. (a) Notwithstanding any other term of this SNP Security, the Indenture or any other agreements, arrangements, or understandings between the Company and any Holder, by its acquisition of this SNP Security or any beneficial interest therein, each Holder (which, for the purposes of this paragraph 9, includes each holder of a beneficial interest in the SNP Security) acknowledges, accepts, consents to and agrees to be bound by: (i) the exercise and effects of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority, which may be imposed with or without any prior notice with respect to the SNP Security, and may include and result in any of the following, or some combination thereof: (1) the reduction or cancellation of all, or a portion, of the Amounts Due on the SNP Securities; (2) the conversion of all, or a portion, of the Amounts Due on the SNP Securities into shares, other securities or other obligations of the Company or another Person (and the issue to or conferral on the Holder of any such shares, securities or obligations), including by means of an amendment, modification or variation of the terms of the SNP Securities; (3) the cancellation of the SNP Securities; (4) the amendment or alteration of the maturity of the SNP Securities or amendment of the amount of interest payable on the SNP Securities, or the date on which the interest becomes payable, including by suspending payment for a temporary period; and (ii) the variation of the terms of the SNP Securities or the rights of the Holders thereunder or under the Indenture, as deemed necessary by the Relevant Spanish Resolution Authority, to give effect to the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority.
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(b) By its acquisition of this SNP Security or any beneficial interest therein, each Holder acknowledges and agrees that neither a reduction or cancellation, in part or in full, of the Amounts Due on the SNP Securities or the conversion thereof into another security or obligation of the Company or another person, in each case as a result of the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the Company, nor the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities shall: (i) give rise to a default or event of default for purposes of Section 315(b) (Notice of Defaults) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act; or (ii) be a default or an Event of Default with respect to the SNP Securities or under the Indenture. By its acquisition of this SNP Security or any beneficial interest therein, each Holder further acknowledges and agrees that no repayment or payment of Amounts Due on the SNP Securities shall become due and payable or be paid after the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority if, and to the extent that, such amounts have been reduced, converted, cancelled, amended or altered as a result of such exercise.
(c) By its acquisition of this SNP Security or any beneficial interest therein, each Holder, to the extent permitted by the Trust Indenture Act, waives any and all claims, in law and/or in equity, against the Trustee for, agrees not to initiate a suit against the Trustee in respect of, and agrees that the Trustee shall not be liable for, any action that the Trustee takes, or abstains from taking, in either case in accordance with the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities. Additionally, by its acquisition of this SNP Security or any beneficial interest therein, each Holder acknowledges and agrees that, upon the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities: (i) the Trustee shall not be required to take any further directions from the Holders with respect to any portion of the SNP Securities that is written down, converted to equity and/or cancelled under Section 5.12 of the Base Indenture; and (ii) the Indenture shall not impose any duties upon the Trustee whatsoever with respect to the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority; provided, however, that notwithstanding the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities, so long as any SNP Securities remain Outstanding, there shall at all times be a trustee for the SNP Securities in accordance with the Indenture, and the resignation and/or removal of the Trustee and the appointment of a successor trustee shall continue to be governed by the Indenture, including to the extent no additional supplemental indenture or amendment is agreed upon in the event the SNP Securities remain Outstanding following the completion of the exercise of the Spanish Bail-in Power.
(d) By its acquisition of this SNP Security or any beneficial interest therein, each Holder shall be deemed to have authorized, directed and requested the Depository and any direct participant in the Depository or other intermediary through which it holds such SNP Security to take any and all necessary actions, if required, to implement the exercise of the Spanish Bail-in Power with respect to the SNP Security as it may be imposed, without any further action or direction on the part of such Holder.
(e) Upon the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities, the Company or the Relevant Spanish Resolution Authority (as the case may be) shall provide a written notice to the Depository as soon as practicable regarding such exercise of the Spanish Bail-in Power for purposes of notifying the Holders of such SNP Securities. The Company shall also deliver a copy of such notice to the Trustee for information purposes. No failure or delay by the Company to deliver a notice shall affect the validity or enforceability of the exercise of the Spanish Bail-in Power.
(f) If the Company has elected to redeem the SNP Securities but prior to the payment of the Redemption Price to Holders the Relevant Spanish Resolution Authority exercises its Spanish Bail-in Power with respect to the SNP Securities, the relevant redemption notice shall be automatically rescinded and shall be of no force and effect, there shall be no redemption and consequently no payment of the Redemption Price (or any accrued interest and Additional Amounts payable under Article 11 of the Base Indenture) will be due and payable.
(g) Upon the exercise of the Spanish Bail-in Power with respect to the SNP Securities which results in the redemption, cancellation, or the conversion into other securities, of all the Amounts Due on the SNP Securities or such SNP Securities otherwise ceasing to be outstanding, the Indenture shall be deemed satisfied and discharged as to such series of SNP Securities and such SNP Securities shall thereafter be deemed to be not “Outstanding”.
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(h) Each Holder that acquires this SNP Security in the secondary market or otherwise shall be deemed to acknowledge and agree to be bound by and consent to the same provisions specified herein and in the Indenture to the same extent as the Holders that acquire the SNP Securities upon their initial issuance, including, without limitation, with respect to this paragraph 9.
“Amounts Due”, with respect to a SNP Security, means the aggregate outstanding principal amount, together with any accrued but unpaid interest, Additional Amounts and premium (if any), due on such SNP Security. References to such amounts will include amounts that have become due and payable, but which have not been paid, prior to the exercise of the Spanish Bail-in Power (as defined below) by the Relevant Spanish Resolution Authority. References to such amounts will also include amounts held in trust by the Company, any Paying Agent or the Trustee pursuant to Section 10.03 of the Base Indenture.
“Spanish Bail-in Power” means any write-down, conversion, transfer, modification, cancellation or suspension power existing from time to time under: (i) any law, regulation, rule or requirement applicable from time to time in Spain, relating to the transposition or development of the BRRD, including, but not limited to (a) Law 11/2015, (b) RD 1012/2015 and (c) the SRM Regulation; or (ii) any other law, regulation, rule or requirement applicable from time to time in Spain pursuant to which (a) obligations or liabilities of banks, investment firms or other financial institutions or their affiliates can be reduced, cancelled, modified, transferred or converted into shares, other securities, or other obligations of such Persons or any other Person (or suspended for a temporary period or permanently) or (b) any right in a contract governing such obligations may be deemed to have been exercised.
10. Governing Law. This SNP Security shall be governed by and construed in accordance with 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, issuance and execution by the Company of the SNP Securities and paragraphs 8(a) and 9 shall be governed by and construed in accordance with the common laws (derecho común) of Spain.
11. Additional Terms. Additional terms of the SNP Securities, including but not limited to terms related to payment of defaulted interest; amendments to the Indenture and waiver of past defaults; replacement, exchange and transfer of the SNP Securities; the duties, immunities and rights of the Trustee, the Paying Agent, the Transfer Agent and the Security Registrar; notices; limitation on claims; submission to jurisdiction; and service of process, are set forth in the Indenture and shall have effect as if incorporated herein.
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Exhibit 4.8
SEVENTH SUPPLEMENTAL INDENTURE
among
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.,
as Issuer,
THE BANK OF NEW YORK MELLON, LONDON BRANCH,
as Trustee, Paying Agent, Transfer Agent and Calculation Agent
THE BANK OF NEW YORK MELLON,
as Security Registrar
September 3, 2026
$300,000,000
SENIOR NON-PREFERRED FLOATING RATE NOTES DUE 2029
TABLE OF CONTENTS
Page
| Article 1 | ||
| Definitions and Other Provisions of General Application | 2 | |
| Section 1.01. | Definitions | 2 |
| Section 1.02. | Conflict with Trust Indenture Act | 7 |
| Section 1.03. | Effect of Headings and Table of Contents | 7 |
| Section 1.04. | Successors and Assigns | 7 |
| Section 1.05. | Separability Clause | 7 |
| Section 1.06. | Benefits of Indenture | 7 |
| Section 1.07. | Governing Law | 7 |
| Section 1.08. | Submission to Jurisdiction | 7 |
| Section 1.09. | Execution in Counterparts | 8 |
| Section 1.10. | Recitals by the Issuer | 8 |
| Section 1.11. | Ratification and Incorporation of Original Indenture. | 8 |
| Article 2 | ||
| SNP Securities | 8 | |
| Section 2.01. | Creation of SNP Securities | 8 |
| Section 2.02. | Limitation on Aggregate Principal Amount of SNP Securities | 8 |
| Section 2.03. | Payment of Principal | 9 |
| Section 2.04. | Interest and Interest Rate | 9 |
| Section 2.05. | Denominations, Minimum Purchase Amount | 10 |
| Section 2.06. | Calculation Agent | 10 |
| Section 2.07. | Paying Agent | 13 |
| Section 2.08. | Security Certificates | 14 |
| Section 2.09. | Redemption and Purchase | 15 |
| Section 2.10. | Definitive Certificates and Authentication | 15 |
| Section 2.11. | Agreement with Respect to the Exercise of Spanish Bail-in Power | 16 |
| Section 2.12. | Amended Provision of Original Indenture | 17 |
| Section 2.13. | Notices | 18 |
| Section 2.14. | Instructions by Electronic Means | 18 |
| EXHIBIT A | Form of Security Certificate Representing SNP Securities | A-1 |
i
THIS SEVENTH SUPPLEMENTAL INDENTURE, dated as of September 3, 2026 is among Banco Bilbao Vizcaya Argentaria, S.A., a sociedad anónima incorporated under the laws of the Kingdom of Spain (the “Issuer” or the “Company”), having its principal executive office located at Calle Azul 4, Madrid, 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, currently having its principal corporate trust office located at 240 Greenwich Street, New York, New York 10286, United States, and acting (except with respect to its role as security registrar) through its London Branch currently located at 160 Queen Victoria Street, London EC4V 4LA, United Kingdom, as trustee (the “Trustee”, which term includes any successor Trustee), paying agent (the “Paying Agent”, which term includes any successor Paying Agent), transfer agent (the “Transfer Agent”, which term includes any successor Transfer Agent), calculation agent (the “Calculation Agent”, which term includes any successor Calculation Agent) and security registrar (the “Security Registrar”, which term includes any successor Security Registrar) (the “Seventh Supplemental Indenture”).
WITNESSETH:
WHEREAS, the Company and the Trustee have executed and delivered a Senior Non-Preferred Debt Securities Indenture, dated as of July 31, 2025 (the “Original Indenture”), to provide for the issuance of the Company’s Securities (as such term is defined therein);
WHEREAS, the Company hereto desires to issue a new series of Securities to be known as the Senior Non-Preferred Floating Rate Notes due 2029 (Bonos Simples No Preferentes Agosto 2026 – SEC – 17) (the “SNP Securities”);
WHEREAS, the parties hereto desire to establish that the SNP Securities shall be issued in the form of one or more Global Securities substantially in the form of Exhibit A to this Seventh Supplemental Indenture pursuant to Sections 2.01 and 3.01 of the Original Indenture;
WHEREAS, Section 9.01(c) of the Original Indenture permits the Company and the Trustee to enter into a supplemental indenture to establish the form or terms of Securities of any series as permitted under Sections 2.01 and 3.01 of the Original Indenture without the consent of Holders;
WHEREAS, Section 9.01(j) of the Original Indenture permits the Company and the Trustee to delete, amend or supplement any provision of the Original Indenture, subject to certain conditions, without the consent of Holders;
WHEREAS, this Seventh Supplemental Indenture shall amend and supplement the Original Indenture but only with respect to the SNP Securities; to the extent the terms of the Original Indenture (as amended and supplemented by this Seventh Supplemental Indenture) are inconsistent with the provisions of this Seventh Supplemental Indenture, the terms of this Seventh Supplemental Indenture shall control and prevail, but only with respect to the SNP Securities. The Original Indenture, as amended and supplemented by, and together with, this Seventh Supplemental Indenture are hereinafter referred to as the “Indenture;”
WHEREAS, there are no Securities outstanding of any series created prior to the execution of this Seventh Supplemental Indenture that are entitled to the benefit of the provisions set forth herein or that would be adversely affected by such provisions;
WHEREAS, the Issuer has on its own initiative approached The Bank of New York Mellon, London Branch to receive the services described in this Seventh Supplemental Indenture; and
WHEREAS, the Company has requested and does hereby request that the Trustee execute and deliver this Seventh Supplemental Indenture, and whereas all actions required by the Company to be taken in order to make this Seventh Supplemental Indenture a valid, binding and enforceable instrument in accordance with its terms, have been taken and performed, and the execution and delivery of this Seventh Supplemental Indenture have been duly authorized in all respects,
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NOW, THEREFORE, the Company and the Trustee mutually covenant and agree as follows:
Article 1
Definitions and Other Provisions of General Application
Section 1.01. Definitions. For all purposes of this Seventh Supplemental Indenture, except as otherwise expressly provided or unless the context otherwise requires:
(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) unless the context otherwise requires, any reference to an “Article” or a “Section” means an Article or a Section, as the case may be, of this Seventh Supplemental Indenture;
(d) the words “herein”, “hereof”, “hereto”, and “hereunder” and other words of similar import refer to this Seventh Supplemental Indenture as a whole and not to any particular Article, Section or other subdivision;
(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”);
(f) the term “including” means “including without limitation”;
(g) all terms used but not defined in this Seventh Supplemental Indenture, which are defined in the Original Indenture (as amended and supplemented hereby), shall have the meanings assigned to them in the Original Indenture (as amended and supplemented hereby);
(h) references herein to any act or statute or any provision of any act or statute shall be deemed also to refer to any statutory modification or re-enactment thereof or any statutory instrument, order or regulation made thereunder or under such modification or re-enactment; and
(i) the following terms used in this Seventh Supplemental Indenture shall have the following meanings:
“Benchmark” means, initially, Compounded SOFR, as such term is defined below; provided that if the Company or its designee determines on or prior to the Reference Time that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to
Compounded SOFR (or the published daily SOFR used in the calculation thereof) or the then-current Benchmark, then “Benchmark” means the applicable Benchmark Replacement.
“Benchmark Replacement” means the first alternative set forth in the order below that can be determined by the Company or its designee as of the Benchmark Replacement Date:
| (1) | the sum of: (a) the alternate rate of interest that has been selected or recommended by the Relevant Governmental Body as the replacement for the then-current Benchmark for the applicable Corresponding Tenor and (b) the Benchmark Replacement Adjustment; |
| (2) | the sum of: (a) the ISDA Fallback Rate and (b) the Benchmark Replacement Adjustment; or |
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| (3) | the sum of: (a) the alternate rate of interest that has been selected by the Company or its designee as the replacement for the then-current Benchmark for the applicable Corresponding Tenor giving due consideration to any industry-accepted rate of interest as a replacement for the then-current Benchmark for U.S. dollar denominated floating rate notes at such time and (b) the Benchmark Replacement Adjustment. |
“Benchmark Replacement Adjustment” means the first alternative set forth in the order below that can be determined by the Company or its designee as of the Benchmark Replacement Date:
| (1) | the spread adjustment, or method for calculating or determining such spread adjustment (which may be a positive or negative value or zero) that has been selected or recommended by the Relevant Governmental Body for the applicable Unadjusted Benchmark Replacement; |
| (2) | if the applicable Unadjusted Benchmark Replacement is equivalent to the ISDA Fallback Rate, then the ISDA Fallback Adjustment; or |
| (3) | the spread adjustment (which may be a positive or negative value or zero) that has been selected by the Company or its designee giving due consideration to any industry-accepted spread adjustment, or method for calculating or determining such spread adjustment, for the replacement of the then-current Benchmark with the applicable Unadjusted Benchmark Replacement for U.S. dollar denominated floating rate notes at such time. |
For the avoidance of doubt, the Benchmark Replacement Adjustment for the applicable Benchmark Replacement Date may be selected, recommended or determined on a day other than such Benchmark Replacement Date.
“Benchmark Replacement Conforming Changes” means, with respect to any Benchmark Replacement, any technical, administrative or operational changes (including changes to the definitions of “Interest Period” and “Observation Period”, timing and frequency of determining rates and making payments of interest, rounding of amounts or tenors, and other administrative matters) that the Company or its designee decides may be appropriate to reflect the adoption of such Benchmark Replacement in a manner substantially consistent with market practice (or, if the Company or its designee decides that adoption of any portion of such market practice is not administratively feasible or if the Company or its designee determines that no market practice for use of the Benchmark Replacement exists, in such other manner as the Company or its designee determines is reasonably necessary).
“Benchmark Replacement Date” means the earliest to occur of the following events with respect to the then-current Benchmark (including the daily published component used in the calculation thereof):
| (1) | in the case of clause (1) or (2) of the definition of “Benchmark Transition Event,” the later of (a) the date of the public statement or publication of information referenced therein and (b) the date on which the administrator of the Benchmark permanently or indefinitely ceases to provide the Benchmark (or such component); or |
| (2) | in the case of clause (3) of the definition of “Benchmark Transition Event,” the date of the public statement or publication of information referenced therein. |
For the avoidance of doubt, if the event giving rise to the Benchmark Replacement Date occurs on the same day as, but earlier than, the Reference Time in respect of any determination, the Benchmark Replacement Date will be deemed to have occurred prior to the Reference Time for such determination.
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“Benchmark Transition Event” means the occurrence of one or more of the following events with respect to the then-current Benchmark (including the daily published component used in the calculation thereof):
| (1) | a public statement or publication of information by or on behalf of the administrator of the Benchmark (or such component) announcing that such administrator has ceased or will cease to provide the Benchmark (or such component), permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark (or such component); |
| (2) | a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark (or such component), the central bank for the currency of the Benchmark (or such component), an insolvency official with jurisdiction over the administrator for the Benchmark (or such component), a resolution authority with jurisdiction over the administrator for the Benchmark (or such component) or a court or an entity with similar insolvency or resolution authority over the administrator for the Benchmark (or such component), which states that the administrator of the Benchmark (or such component) has ceased or will cease to provide the Benchmark (or such component) permanently or indefinitely, provided that, at the time of such statement or publication, there is no successor administrator that will continue to provide the Benchmark (or such component); or |
| (3) | a public statement or publication of information by the regulatory supervisor for the administrator of the Benchmark announcing that the Benchmark is no longer representative. |
“Business Day” means any day, other than Saturday or Sunday, that is neither a Legal Holiday nor a day on which banking institutions are authorized or required by law, regulation or executive order to close in the City of New York, London or Madrid.
“Calculation Agent” means the Person named as “Calculation Agent” in the first paragraph of this Seventh Supplemental Indenture.
“Client Assets Sourcebook” means the CASS sourcebook as set out in the FCA Rules.
“Client Money Distribution and Transfer Rules” means the client money distribution and transfer rules set out in Chapter 7A of the Client Assets Sourcebook.
“Client Money Rules” means the client money rules set out in Chapter 7 of the Client Assets Sourcebook of the FCA Rules.
“Company” means the Person named as “Company” in the first paragraph of this Seventh Supplemental Indenture until a successor Person shall have become such pursuant to the applicable provisions of the Indenture, and thereafter “Company” shall mean such successor Person, and any other obligor upon the SNP Securities.
“Compounded SOFR” means a compounded average of daily SOFR, that will be determined by the Calculation Agent in respect of any Interest Period in accordance with the following formula, with the resulting percentage being rounded, if necessary, to the fifth decimal place, with 0.000005 being rounded upwards:
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where:
“d” means, in respect of the relevant Observation Period, the number of calendar days in such Observation Period;
“d0” means, in respect of any Observation Period, the number of U.S. Government Securities Business Days in the relevant Observation Period;
“i” means a series of whole numbers from one to d0, each representing the relevant U.S. Government Securities Business Days in chronological order from, and including, the first U.S. Government Securities Business Day in the relevant Observation Period;
“ni” means, in respect of any U.S. Government Securities Business Dayi, in the relevant Observation Period the number of calendar days from, and including, such U.S. Government Securities Business Dayi up to, but excluding, the following U.S. Government Securities Business Day; and
“SOFRi” means, in respect of any U.S. Government Securities Business Dayi in the relevant Observation Period, the SOFR in respect of such U.S. Government Securities Business Day.
“Corresponding Tenor” with respect to a Benchmark Replacement means a tenor (including overnight) having approximately the same length (disregarding business day adjustment) as the applicable tenor for the then-current Benchmark.
“Depository” and “U.S. Depository” shall have the meanings ascribed to such terms in Section 1.01 of the Original Indenture. The Depository Trust Company (and its successors) is hereby designated as Depository and U.S. Depository with respect to the SNP Securities.
“FCA” means the United Kingdom’s Financial Conduct Authority whose current address is at 12 Endeavour Square, London E20 1JN (and any successor regulatory authority).
“FCA Rules” means the rules promulgated by the FCA under FSMA as amended or replaced from time to time.
“Floating Interest Rate” has the meaning ascribed in Section 2.04(a).
“FSMA” means the Financial Services and Markets Act 2000.
“Interest Payment Date” has the meaning ascribed in Section 2.04(b).
“Interest Period” has the meaning ascribed in Section 2.04(c).
“ISDA Definitions” means the 2006 ISDA Definitions published by the International Swaps and Derivatives Association, Inc. or any successor thereto, as amended or supplemented from time to time, or any successor definitional booklet for interest rate derivatives published from time to time.
“ISDA Fallback Adjustment” means the spread adjustment, which may be a positive or negative value or zero, that would apply for derivatives transactions referencing the ISDA Definitions to be determined upon the occurrence of an index cessation event with respect to the Benchmark for the applicable tenor.
“ISDA Fallback Rate” means the rate that would apply for derivatives transactions referencing the ISDA Definitions to be effective upon the occurrence of an index cessation date with respect to the Benchmark for the applicable tenor excluding the applicable ISDA Fallback Adjustment.
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“Issue Date” means September 3, 2026, being the date of the initial issue of the SNP Securities.
“Issuer” means the Person named as “Issuer” in the first paragraph of this Seventh Supplemental Indenture until a successor Person shall have become such pursuant to the applicable provisions of the Indenture, and thereafter “Issuer” shall mean such successor Person, and any other obligor upon the SNP Securities.
“Observation Period” means, in respect of an Interest Period, the period from, and including, the date falling the number of Observation Shift Days prior to the first day of such Interest Period and ending on, but excluding, the date that is the number of Observation Shift Days prior to the Interest Payment Date for such Interest Period.
“Observation Shift Days” means five U.S. Government Securities Business Days.
“Paying Agent” means the Person named as “Paying Agent” in the first paragraph of this Seventh Supplemental Indenture.
“Redemption Date” has the meaning ascribed in Section 2.09.
“Redemption Price” has the meaning ascribed in Section 2.09.
“Reference Time” with respect to any determination of the Benchmark means (1) if the Benchmark is Compounded SOFR, the SOFR Determination Time, and (2) if the Benchmark is not Compounded SOFR, the time determined by the Company or its designee in accordance with the Benchmark Replacement Conforming Changes.
“Regular Record Date” means the 15th calendar day before the applicable Interest Payment Date.
“Relevant Governmental Body” means the Federal Reserve Board and/or the Federal Reserve Bank of New York, or a committee officially endorsed or convened by the Federal Reserve Board and/or the Federal Reserve Bank of New York or any successor thereto.
“SOFR” means the rate determined by the Calculation Agent in respect of a U.S. Government Securities Business Day, in accordance with the following provisions:
| (i) | the Secured Overnight Financing Rate published for such U.S. Government Securities Business Day as such rate appears on the SOFR Administrator’s Website at 3:00 p.m. (New York time) on the immediately following U.S. Government Securities Business Day (the “SOFR Determination Time”); |
| (ii) | if the rate specified in (i) above does not so appear, the Secured Overnight Financing Rate as published in respect of the first preceding U.S. Government Securities Business Day for which the Secured Overnight Financing Rate was published on the SOFR Administrator’s Website; |
where:
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the Secured Overnight Financing Rate); and
“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, or any successor source.
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“Stated Maturity Date” means September 3, 2029.
“Transfer Agent” means the Person named as “Transfer Agent” in the first paragraph of this Seventh Supplemental Indenture.
“Trustee” means the Person named as “Trustee” in the first paragraph of this Seventh Supplemental Indenture.
“U.S. Government Securities Business Day” means any day except for a Saturday, Sunday or a day on which the Securities Industry and Financial Markets Association (SIFMA) recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in U.S. government securities.
“Unadjusted Benchmark Replacement” means the Benchmark Replacement excluding the Benchmark Replacement Adjustment.
Section 1.02. Conflict with Trust Indenture Act. If any provision hereof 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 the Indenture, the provision of the Trust Indenture Act shall control. If any provision of this Seventh Supplemental Indenture modifies or 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 Seventh Supplemental Indenture as so modified or to be excluded, as the case may be.
Section 1.03. 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 1.04. Successors and Assigns. All covenants and agreements in this Seventh Supplemental Indenture made by the Issuer shall bind its successors and assigns, whether so expressed or not.
Section 1.05. Separability Clause. In case any provision in this Seventh Supplemental Indenture or the SNP Securities 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 1.06. Benefits of Indenture. Nothing in the Indenture or the SNP Securities, express or implied, shall give to any Person, other than the parties hereto and their successors hereunder and the Holders of SNP Securities, any benefit or any legal or equitable right, remedy or claim under the Indenture.
Section 1.07. Governing Law. This Seventh Supplemental Indenture and the SNP Securities (except as set forth herein and therein) shall be governed by and construed in accordance with 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 of this Seventh Supplemental Indenture, the authorization, issuance and execution by the Company of the SNP Securities, Section 2.11 hereof, the SNP Securities to the extent set forth therein and the Original Indenture (as amended and supplemented hereby) to the extent set forth therein shall be governed by and construed in accordance with the common laws (derecho común) of Spain.
Section 1.08. Submission to Jurisdiction. Except as provided in the immediately following two sentences, the Company hereby irrevocably submits to the non-exclusive jurisdiction of any U.S. federal or state court in the Borough of Manhattan, the City of New York, New York in any suit or proceeding arising out of or relating to the SNP Securities or the Indenture, and irrevocably 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 anything to the contrary in the SNP Securities or the Indenture, the Spanish courts in the city of Madrid shall have exclusive jurisdiction in respect of any suit or proceeding arising out of or relating to the SNP Securities or the Indenture arising out of, relating to or in connection with the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority (a “Bail-in Dispute”) and accordingly each of the Company, the Trustee, each Holder and beneficial owner of any SNP Securities and each Agent submits, to the extent it may effectively do so, to the exclusive jurisdiction of such Spanish courts in relation to any Bail-in Dispute. Each of the Company, the Trustee, each Holder and beneficial owner of any SNP Securities and each Agent further irrevocably waives, to the extent it may effectively do so, any objection to the Spanish courts in the city of Madrid on the grounds that they are an inconvenient or inappropriate forum in respect of any Bail-in Dispute.
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Section 1.09. Execution in Counterparts. This Seventh Supplemental Indenture may be executed manually, by facsimile or by electronic signature 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. The exchange of copies of this Seventh Supplemental Indenture and of signature pages by email or other electronic format (including, without limitation, “pdf,” “tif” or “jpg”) transmission or other electronically-imaged signature (including, without limitation, DocuSign, Signaturit or Adobe Acrobat Sign) or transmission shall constitute effective execution and delivery of this Seventh Supplemental Indenture as to the parties hereto and may be used in lieu of the original Seventh Supplemental Indenture for all purposes. Signatures of the parties hereto transmitted by email or other electronic format (e.g., “pdf,” “tif” or “jpg”) (including, without limitation, DocuSign, Signaturit or Adobe Acrobat Sign) shall be deemed to be their original signatures for all purposes. Unless otherwise provided herein or in the SNP Securities, the words “execute,” “execution,” “signed,” and “signature” and words of similar import used in or related to any document to be signed in connection with this Seventh Supplemental Indenture, any SNP Securities or any of the transactions contemplated hereby or thereby (including amendments, waivers, consents and other modifications) shall be deemed to include electronic signatures and the keeping of records in electronic form, each of which shall be of the same legal effect, validity and enforceability as a manually executed signature in ink or the use of a paper-based recordkeeping system, as applicable, to the fullest extent as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, and any other similar state laws based on the Uniform Electronic Transactions Act.
Section 1.10. Recitals by the Issuer. The recitals in this Seventh Supplemental Indenture are made by the Issuer only and not by the Trustee, and all of the provisions contained in the Original Indenture (as amended and supplemented hereby) in respect of the rights, privileges, immunities, powers and duties of the Trustee shall be applicable in respect of the SNP Securities and of this Seventh Supplemental Indenture as fully and with like effect as if set forth herein in full.
Section 1.11. Ratification and Incorporation of Original Indenture. As amended and supplemented hereby with respect to the SNP Securities, the Original Indenture is in all respects ratified and confirmed, and the Original Indenture (as so amended and supplemented) and this Seventh Supplemental Indenture shall be read, taken and construed as one and the same instrument. In the event of any conflict between the terms and conditions of the Original Indenture (as amended and supplemented hereby) and the terms and conditions of this Seventh Supplemental Indenture, the terms and conditions of this Seventh Supplemental Indenture shall prevail.
Article 2
SNP Securities
Section 2.01. Creation of SNP Securities. There is hereby created a new series of senior non-preferred debt securities, the SNP Securities, to be issued under the Indenture. The SNP Securities will be issued at 100% of their principal amount by means of the public deed of issuance executed on August 26, 2026 and registered with the Commercial Registry of Vizcaya (Registro Mercantil de Vizcaya) on August 31, 2026.
Section 2.02. Limitation on Aggregate Principal Amount of SNP Securities. The aggregate principal amount of the SNP Securities shall initially be limited to $300,000,000 (except as otherwise provided in the Original Indenture (as amended and supplemented hereby)). The Issuer may from time to time, without the consent of the Holders of SNP Securities, create and issue further securities having the same terms and conditions as the previously issued SNP Securities in all respects (or in all respects except for the issue date, the original interest accrual date and/or the issue price), so that such further issue shall be consolidated and form a single series with the Outstanding SNP Securities; provided, however, that any such further issuance will only be made if either such additional securities are issued with no more than de minimis original issue discount for U.S. federal income tax purposes or any such further issuance is a “qualified reopening” as such term is defined under U.S. Treasury Regulations Section 1.1275-2(k)(3) promulgated under the U.S. Internal Revenue Code of 1986, as amended.
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Section 2.03. Payment of Principal. The principal of the Outstanding SNP Securities shall be due and payable on the Stated Maturity Date or on such earlier date as the principal thereof may become due and payable in accordance with the provisions hereof.
Section 2.04. Interest and Interest Rate. (a) The SNP Securities will bear interest from (and including) the Issue Date to (but excluding) the Stated Maturity Date or any date of earlier redemption at a rate per annum equal to the Compounded SOFR plus a margin of 89 basis points (the “Floating Interest Rate”), subject to a minimum interest rate of 0.000%. Interest on the SNP Securities shall be determined five U.S. Government Securities Business Days before each Interest Payment Date.
(b) The Issuer will pay interest in arrears on the SNP Securities quarterly on March 3, June 3, September 3 and December 3 of each year (each an “Interest Payment Date”), commencing on December 3, 2026, up to (and including) the Stated Maturity Date or any date of earlier redemption; provided that if any scheduled Interest Payment Date, other than the scheduled Stated Maturity Date or date of earlier redemption, falls on a day that is not a Business Day, then such Interest Payment Date will be postponed to the next succeeding Business Day, except that if that Business Day falls in the next succeeding calendar month, the Interest Payment Date will be the immediately preceding Business Day. If the scheduled final Interest Payment Date (i.e., the Stated Maturity Date or date of earlier redemption) falls on a day that is not a Business Day, the Issuer will pay any interest and principal and/or any amount payable upon redemption of the SNP Securities, as applicable, on the next succeeding Business Day, but the final Interest Payment Date will not be postponed and interest on that payment will not accrue during the period from and after the scheduled final Interest Payment Date.
(c) Each interest period on the SNP Securities will begin on (and include) an Interest Payment Date (or, in the case of the first interest period, the Issue Date) and end on (but exclude) the following Interest Payment Date (or, in the case of the final interest period, the Stated Maturity Date or date of earlier redemption) (each such interest period, an “Interest Period”). The amount of interest accrued and payable on the SNP Securities for each Interest Period will be equal to the product of (i) the outstanding principal amount of the SNP Securities multiplied by (ii) the product of (a) the Floating Interest Rate for the relevant Interest Period multiplied by (b) the quotient of the actual number of calendar days in such Interest Period divided by 360.
(d) Interest on each SNP Security will be paid only to the Person in whose name such SNP Security was registered at the close of business on the Regular Record Date for the applicable Interest Payment Date.
(e) If the Issuer or its designee determines on or prior to the relevant SOFR Determination Time that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to Compounded SOFR, then the provisions set forth in Section 2.04(f) below will thereafter apply to all determinations of the rate of interest payable on the SNP Securities. For the avoidance of doubt, in accordance with such benchmark replacement provisions, after a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the interest payable for each Interest Period on the SNP Securities will be an annual rate equal to the sum of the Benchmark Replacement and the applicable margin.
(f) If the Issuer or its designee determines on or prior to the relevant Reference Time that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred in respect of the then-current Benchmark, the Benchmark Replacement will replace the then-current Benchmark for all purposes relating to the SNP Securities in respect of all determinations on such date and all determinations on all subsequent dates.
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In connection with the implementation of a Benchmark Replacement, the Issuer or its designee will have the right to make Benchmark Replacement Conforming Changes from time to time. No such change shall affect the Trustee’s or the Calculation Agent’s own rights, duties or immunities under the Indenture or otherwise without their consent.
Any determination, decision, election or calculation that may be made by the Issuer or its designee pursuant to the provisions set forth in this section, including any determination with respect to a rate or adjustment or of the occurrence or non-occurrence of an event, circumstance or date and any decision to take or refrain from taking any action or any selection, will be conclusive and binding absent manifest error, will be made in the Issuer’s or its designee’s sole discretion, and, notwithstanding anything to the contrary in the documentation relating to the SNP Securities, shall become effective without consent from the holders of the SNP Securities or any other party, including the beneficial owners of such SNP Securities.
In no event shall the Calculation Agent, the Trustee or the Paying Agent be responsible for making any such determination, decision, election or calculation; or have any responsibility to determine whether any manifest error has occurred, and, in the absence of notice from the Issuer, may conclusively assume that no manifest error exists and shall suffer no liability in so assuming.
None of the Trustee, the Paying Agent or the Calculation Agent (unless the Issuer is acting in such capacity) shall be under any obligation to: (i) monitor, determine or verify the unavailability or cessation of Compounded SOFR or SOFR, or whether or when there has occurred, or to give notice to any other transaction party of the occurrence of, any Benchmark Transition Event or related Benchmark Replacement Date, (ii) select, determine or designate any Benchmark Replacement, or other successor or replacement benchmark index, or whether any conditions to the designation of such a rate or index have been satisfied, (iii) select, determine or designate any Benchmark Replacement Adjustment, or other modifier to any replacement or successor index, or (iv) determine whether or what Benchmark Replacement Conforming Changes are necessary or advisable, if any, in connection with any of the foregoing, including, but not limited to, adjustments as to any alternative spread thereon, the business day convention, interest determination dates or any other relevant methodology applicable to such substitute or successor benchmark.
For the avoidance of doubt, in no event shall the Trustee, the Paying Agent or the Calculation Agent be required to act as the Issuer’s designee for the purposes of determining if any Benchmark Transition Event has occurred, selecting any Benchmark Replacement or determining any Benchmark Replacement Adjustment unless such Trustee, Paying Agent or Calculation Agent agrees to such appointment in writing.
In connection with the foregoing, each of the Trustee, the Paying Agent and the Calculation Agent shall be entitled to rely conclusively on any determinations made by the Issuer or its designee without independent investigation, and none will have any liability for actions taken at the Issuer’s direction in connection therewith.
None of the Trustee, the Paying Agent or the Calculation Agent shall be liable for any inability, failure or delay on its part to perform any of its duties set forth in this Seventh Supplemental Indenture as a result of the unavailability of SOFR, Compounded SOFR or other applicable Benchmark Replacement, including as a result of any failure, inability, delay, error or inaccuracy on the part of any other transaction party in providing any direction, instruction, notice or information required or contemplated by the terms of this Seventh Supplemental Indenture and reasonably required for the performance of such duties. None of the Trustee, the Paying Agent or the Calculation Agent shall be responsible or liable for the Issuer’s actions or omissions or for those of the Issuer’s designee, or for any failure or delay in the performance by the Issuer or its designee, nor shall any of the Trustee, the Paying Agent or the Calculation Agent be under any obligation to oversee or monitor the Issuer’s performance or that of the Issuer’s designee. For the avoidance of doubt, nothing in this paragraph shall be construed to limit the liability of the designee for its actions or omissions if such designee is the same legal person as, or a related party to, the Trustee, the Paying Agent or the Calculation Agent.
Section 2.05. Denominations, Minimum Purchase Amount. The SNP Securities may be issued in minimum denominations of $200,000 with increments of $200,000 thereafter.
Section 2.06. Calculation Agent. (a) Upon the terms and subject to the conditions contained herein, the Issuer hereby appoints The Bank of New York Mellon, London Branch as its initial Calculation Agent under the Indenture for the purpose of calculating the interest rates on the SNP Securities in the manner and at the times provided in Section 2.04 of this Seventh Supplemental Indenture, and the Calculation Agent hereby accepts such appointment as the Issuer’s agent. No amendment to the provisions of the SNP Securities relating to the duties or obligations of the Calculation Agent hereunder may become effective without the prior written consent of the Calculation Agent, which consent shall not be unreasonably withheld.
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(b) The Calculation Agent shall exercise due care to determine the interest rates on the SNP Securities and shall communicate the same to the Issuer, the Trustee, the Depository, the Paying Agent and any other paying agent identified to it in writing as soon as practicable after each determination. The Calculation Agent will, upon the request of the Holder of any SNP Security, provide the interest rate then in effect with respect to such SNP Security.
(c) The Calculation Agent accepts its obligations set forth herein, upon the terms and subject to the conditions hereof, including the following, to all of which the Issuer agrees:
(i) The Calculation Agent shall be entitled to such compensation as may be agreed upon in writing with the Issuer for all services rendered by the Calculation Agent, and the Issuer promises to pay such compensation and to reimburse the Calculation Agent for the reasonable out-of-pocket expenses (including reasonable attorneys’ and other professionals’ fees and expenses) incurred by it in connection with the services rendered by it hereunder upon receipt of such invoices as the Issuer shall reasonably require. The Issuer also agrees to indemnify the Calculation Agent for, and to hold it harmless against, any and all loss, liability, damage, claim or expense (including the costs and expenses of defending against any claim (regardless of who asserts such claim) of liability and excluding taxes based upon, measured by or determined by the income of the Calculation Agent) incurred by the Calculation Agent that arises out of or in connection with its accepting appointment as, or acting as, Calculation Agent hereunder, except such as may result from the gross negligence, willful misconduct or bad faith of the Calculation Agent or any of its agents or employees. The Calculation Agent shall incur no liability and shall be indemnified and held harmless by the Issuer for, or in respect of, any actions taken, omitted to be taken or suffered to be taken in good faith by the Calculation Agent in reliance upon (1) the written opinion or advice of non-legal professional advisors reasonably satisfactory to it and upon obtaining the prior written consent of the Issuer or (2) written instructions from the Issuer. The Calculation Agent shall not be liable for any error resulting from the use of or reliance on a source of information used in good faith and with due care to calculate any interest rate hereunder. The provisions of this section shall survive the resignation or removal of the Calculation Agent and the termination of this Seventh Supplemental Indenture.
(ii) In acting under this Seventh Supplemental Indenture and in connection with the SNP Securities, the Calculation Agent is acting solely as agent of the Issuer and does not assume any obligations to, or relationship of agency or trust for or with, any of the owners or Holders of the SNP Securities.
(iii) The Calculation Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted to be taken or anything suffered by it in reliance upon the terms of the SNP Securities, any notice, direction, certificate, affidavit, statement or other paper, document or communication reasonably believed by it to be genuine and to have been approved or signed by the proper party or parties.
(iv) The Calculation Agent, its officers, directors, employees and shareholders may become the owners of, or acquire any interest in, any SNP Securities, with the same rights that it or they would have if it were not the Calculation Agent, and may engage or be interested in any financial or other transaction with the Issuer as freely as if it were not the Calculation Agent.
(v) Neither the Calculation Agent nor its officers, directors, employees, agents or attorneys shall be liable to the Issuer for any act or omission hereunder, or for any error of judgment made in good faith by it or them, except in the case of its or their gross negligence or willful misconduct.
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(vi) The Calculation Agent may consult with counsel of its selection and the 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.
(vii) The Calculation Agent shall be obligated to perform such duties and only such duties as are herein specifically set forth, and no implied duties or obligations shall be read into this Seventh Supplemental Indenture against the Calculation Agent.
(viii) Unless herein otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Issuer made or given by it under any provision of this Seventh Supplemental Indenture shall be sufficient if signed by any authorized person of the Issuer.
(ix) The Calculation Agent may perform any duties hereunder either directly or by or through agents or attorneys, and the Calculation Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; provided that the Calculation Agent shall remain liable for the performance of its duties hereunder.
(x) In no event shall the Calculation Agent be responsible or liable for special, indirect, punitive or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Calculation Agent has been advised of the likelihood of such loss or damage and regardless of the form of action.
(xi) In no event shall the Calculation Agent be responsible or liable for any failure or delay in the performance of its obligations under this Seventh Supplemental Indenture arising out of or caused by, directly or indirectly, forces beyond its reasonable 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, and interruptions, loss or malfunctions of utilities, communications or computer (software or hardware) services.
(d) The Calculation Agent may at any time resign as Calculation Agent by giving written notice to the Issuer of such intention on its part, specifying the date on which its desired resignation shall become effective; provided, however, that such date shall not be earlier than 30 days after the receipt of such notice by the Issuer, unless the Issuer agrees to accept less notice. The Calculation Agent may be removed by the Issuer (with or without cause) at any time by the filing with it of any instrument in writing signed on behalf of the Issuer and specifying such removal and the date when it is intended to become effective. Such resignation or removal shall take effect upon the date of the appointment by the Issuer, as hereinafter provided, of a successor Calculation Agent. If within 30 days after notice of resignation or removal has been given, a successor Calculation Agent has not been appointed, the Calculation Agent may, at the expense of the Issuer, petition a court of competent jurisdiction to appoint a successor Calculation Agent. A successor Calculation Agent shall be appointed by the Issuer by an instrument in writing signed on behalf of the Issuer and the successor Calculation Agent. Upon the appointment of a successor Calculation Agent and acceptance by it of such appointment, the Calculation Agent so succeeded shall cease to be such Calculation Agent hereunder. Upon its resignation or removal, the Calculation Agent shall be entitled to the payment by the Issuer of its compensation, if any is owed to it, for services rendered hereunder and to the reimbursement of all reasonable out-of-pocket expenses incurred in connection with the services rendered by it hereunder and to the payment of all other amounts owed to it hereunder.
(e) Any successor Calculation Agent appointed hereunder shall execute and deliver to its predecessor and to the Issuer an instrument accepting such appointment hereunder, and thereupon such successor Calculation Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally named as such Calculation Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become obliged to transfer and deliver, and such successor Calculation Agent shall be entitled to receive, copies of any relevant records maintained by such predecessor Calculation Agent.
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(f) Any Person into which the Calculation Agent may be merged, or any corporation with which the Calculation Agent may be consolidated, or any corporation resulting from any merger or consolidation or to which the Calculation Agent shall sell or otherwise transfer all or substantially all of its corporate trust assets or business shall, to the extent permitted by applicable law, be the successor Calculation Agent under this Seventh Supplemental Indenture without the execution or filing of any paper or any further act on the part of any of the parties hereto. Notice of any such merger, consolidation or sale shall forthwith be given to the Issuer and the Trustee.
(g) In the event of any conflict relating to the rights or obligations of the Calculation Agent in connection with the calculation of the interest rate on the SNP Securities, the relevant terms of this Seventh Supplemental Indenture shall govern such rights and obligations.
Section 2.07. Paying Agent. (a) Upon the terms and subject to the conditions contained herein, the Issuer hereby appoints The Bank of New York Mellon, London Branch as the initial Paying Agent under the Indenture for the purpose of performing the functions of the Paying Agent with respect to the SNP Securities, and the Paying Agent hereby accepts such appointment.
(b) The Paying Agent shall exercise due care in performing the functions of the Paying Agent for the SNP Securities.
(c) The Paying Agent accepts its obligations set forth in the Indenture (including Section 6.16 of the Original Indenture), upon the terms and subject to the conditions set forth in the Indenture, including the following, to all of which the Issuer agrees:
(i) The Paying Agent shall be entitled to such compensation as may be agreed in writing with the Issuer for all services rendered by the Paying Agent, and the Issuer promises to pay such compensation and to reimburse the Paying Agent for the reasonable out-of-pocket expenses (including reasonable counsel fees and expenses) incurred by it in connection with the services rendered by it hereunder upon receipt of such invoices as the Issuer shall reasonably require. The Issuer agrees to indemnify the Paying Agent for, and to hold it harmless against, any and all loss, liability, damage, claims or expenses (including the costs and expenses of defending against any claim of liability and excluding taxes based upon, measured by or determined by the income of the Paying Agent) incurred by the Paying Agent that arises out of or in connection with its acting as Paying Agent hereunder, except such as may result from the gross negligence, willful misconduct or bad faith of the Paying Agent or any of its agents or employees. The Paying Agent shall incur no liability and shall be indemnified and held harmless by the Issuer for, or in respect of, any actions taken, omitted to be taken or suffered to be taken in good faith by the Paying Agent in reliance upon (A) the written opinion of counsel satisfactory to it and upon obtaining the prior written consent of the Issuer or (B) written instructions from the Issuer.
The Paying Agent shall notify the Company in writing of the commencement of any action or claim in respect of which indemnification may be sought promptly after any officer of the Trustee becomes aware of such commencement (provided that the failure to make such notification shall not affect the Paying Agent’s rights hereunder) and the Company shall be entitled to participate therein. The Paying Agent shall not be authorized to settle a claim without the written consent of the Company, which consent shall not be unreasonably withheld or delayed.
(ii) In acting under the Indenture and in connection with the SNP Securities, the Paying Agent is acting solely as agent of the Issuer and does not assume any obligations to, or relationship of agency or trust for or with, any of the Holders of such SNP Securities.
(iii) The Paying Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted to be taken or anything suffered by it in reliance upon the terms of the SNP Securities, any notice, direction, certificate, affidavit, statement or other paper, document or communication reasonably believed by it to be genuine and to have been approved or signed by the proper party or parties.
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(iv) Unless herein otherwise specifically provided, any order, certificate, notice, request, direction or other communication from the Issuer made or given by it under any provision of the Indenture shall be sufficient if signed by an authorized person of the Issuer.
(v) The Paying Agent may, upon obtaining the prior written consent of the Issuer, perform any duties hereunder either directly or by or through agents or attorneys, and, except as otherwise provided in the Indenture, the Paying Agent shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder.
(vi) All money held for the Issuer is held by the Paying Agent as banker and not as a trustee under the Client Money Rules. If the Paying Agent fails, the Client Money Distribution and Transfer Rules will not apply to such money and so the Issuer will not be entitled to share in any distribution under the Client Money Distribution and Transfer Rules.
(d) (i) The Paying Agent may at any time resign as Paying Agent by giving written notice to the Issuer of such intention on its part, specifying the date on which its desired resignation shall become effective; provided, however, that such date shall not be earlier than 60 days after the receipt of such notice by the Issuer, unless the Issuer agrees in writing to accept less notice. The Paying Agent may be removed by the Issuer (with or without cause) at any time by the filing with it of any instrument in writing signed on behalf of the Issuer by an authorized person thereof and specifying such removal and the date when it is intended to become effective, subject to the Company providing a copy of such notice to the Trustee. Such resignation or removal shall take effect only upon the date of the appointment by the Issuer, as hereinafter provided, of a successor Paying Agent. If within 60 days after notice of resignation or removal has been given, a successor Paying Agent has not been appointed, the Paying Agent may petition a court of competent jurisdiction to appoint a successor Paying Agent. A successor Paying Agent shall be appointed by the Issuer by an instrument in writing signed on behalf of the Issuer by an authorized person thereof and the successor Paying Agent. Upon the appointment of a successor Paying Agent and acceptance by it of such appointment, the Paying Agent so superseded shall cease to be such Paying Agent hereunder. Upon its resignation or removal, the Paying Agent shall be entitled to the payment by the Issuer of its compensation, if any is owed to it, for services rendered hereunder and to the reimbursement of all reasonable out-of-pocket expenses incurred in connection with the services rendered by it hereunder.
(ii) Any successor Paying Agent appointed hereunder shall execute and deliver to its predecessor and to the Issuer an instrument accepting such appointment hereunder, and thereupon such successor Paying Agent, without any further act, deed or conveyance, shall become vested with all the authority, rights, powers, trusts, immunities, duties and obligations of such predecessor with like effect as if originally named as such Paying Agent hereunder, and such predecessor, upon payment of its charges and disbursements then unpaid, shall thereupon become obliged to transfer and deliver, and such successor Paying Agent shall be entitled to receive, copies of any relevant records maintained by such predecessor Paying Agent.
(iii) Any Person into which the Paying Agent may be merged or converted or with which the Paying Agent may be consolidated, or any Person resulting from any merger, conversion or consolidation to which the Paying Agent shall be a party, or any Person succeeding to all or substantially all of the assets and business of the Paying Agent, or all or substantially all of the corporate trust business of the Paying Agent shall, to the extent permitted by applicable law, be the successor Paying Agent under the Indenture without the execution or filing of any paper or any further act on the part of any of the parties hereto. Notice of any such merger, conversion, consolidation or sale shall forthwith be given to the Issuer within 30 days of such merger, conversion, consolidation or sale.
Section 2.08. Security Certificates. (a) The SNP Securities shall initially be represented by one or more global certificates (the “Global Certificates”) substantially in the form of Exhibit A (attached hereto), which shall be deposited with a custodian for the Depository and the SNP Securities represented thereby will be registered in the name of a nominee of the Depository (initially Cede & Co.), for the accounts of participants in the Depository.
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(b) SNP Securities represented by a Global Certificate may be transferred, in whole and not in part, only: (i) by the Depository to a nominee of the Depository, (ii) by a nominee of the Depository to the Depository or to another nominee of the Depository, or (iii) by the Depository or any such nominee to a successor Depository or a nominee of such successor Depository.
(c) Beneficial interests in any SNP Securities represented by a Global Certificate will be exchangeable for SNP Securities represented by definitive certificates (“Definitive Certificates”) only if: (i) the Depository notifies the Issuer in writing that it is unwilling, unable or ineligible to continue to act as Depository or that it has ceased to be a clearing agency registered under the Securities Exchange Act of 1934, as amended, and, in either case, a successor Depository is not appointed by the Issuer within 60 days after the date of such notice from the Depository, (ii) the Issuer notifies the Trustee in writing that it has reasonably elected to cause the issuance of SNP Securities represented by Definitive Certificates or (iii) there shall have occurred and be continuing an Event of Default with respect to the SNP Securities.
(d) Upon the occurrence of any of the events specified in Section 2.08(c)(i), (ii) or (iii) above, SNP Securities represented by Definitive Certificates shall be (i) delivered by the Trustee in exchange for beneficial interest in SNP Securities represented by Global Certificates and (ii) registered in such names, and issued in such authorized denominations, as shall be requested by or on behalf of the Depository in accordance with its customary procedures.
Section 2.09. Redemption and Purchase. (a) The provisions of Article 11 of the Original Indenture (as amended and supplemented hereby), except for Section 11.10 thereof, will apply to the SNP Securities. Any such redemption or purchase shall be in compliance with Applicable Banking Regulations then in force and subject to the prior consent of the Regulator, if required pursuant to such regulations. The “Redemption Price” means, with respect to any SNP Securities to be redeemed pursuant to Article 11 of the Original Indenture (as amended and supplemented hereby), an amount equal to 100% of their principal amount, together with accrued but unpaid interest, if any, thereon to (but excluding) the Redemption Date. The “Redemption Date” of any SNP Securities to be redeemed will be any day fixed by the Issuer for redemption of such SNP Securities and specified in the applicable notice of redemption provided by the Issuer pursuant to Section 11.04 of the Original Indenture; provided, however, that in any case where the Redemption Date shall not be a Business Day, then the SNP Securities will not become due and payable and deposit of the Redemption Price will not be made on such Redemption Date, but the SNP Securities will become due and payable and deposit of the Redemption Price will be made on the next succeeding day that is a Business Day with the same force and effect as if the SNP Securities had become due and payable and the deposit of the Redemption Price had been made on the Redemption Date, and no interest shall accrue on the amount payable on such Redemption Date or at such time for the period from and after such Redemption Date.
(b) All or part only of the SNP Securities may be redeemed at the Redemption Price in accordance with the terms of Article 11 of the Original Indenture (as amended and supplemented hereby) at the option of the Issuer if a Tax Event occurs on or after the Issue Date of the SNP Securities.
(c) All (but not less than all) of the SNP Securities may be redeemed at the Redemption Price in accordance with the terms of Article 11 of the Original Indenture (as amended and supplemented hereby) at the option of the Issuer if an Eligible Liabilities Event occurs on or after the Issue Date of the SNP Securities.
(d) All (but not less than all) of the SNP Securities may be redeemed at the Redemption Price in accordance with the terms of Article 11 of the Original Indenture (as amended and supplemented hereby) at the option of the Issuer if, on or after the Issue Date, SNP Securities representing, in the aggregate, 75% or more of the aggregate principal amount of the SNP Securities (including, both in the numerator and the denominator, (i) any SNP Securities issued after the Issue Date, and (ii) any SNP Securities which have been cancelled by the Trustee following their surrender for cancellation in accordance with Section 11.12 of the Original Indenture) have been purchased by or on behalf of the Issuer or any member of the Group.
Section 2.10. Definitive Certificates and Authentication. Any Definitive Certificates issued in exchange for beneficial interests in the SNP Securities represented by Global Certificates pursuant to Section 2.08 of this Seventh Supplemental Indenture or Section 2.03 of the Original Indenture shall be issued in the State of New York. Notwithstanding any other provision in the Indenture or the SNP Securities, the SNP Securities, irrespective of whether they are represented by Global Certificates or Definitive Certificates, shall be issued and authenticated in New York.
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Section 2.11. Agreement with Respect to the Exercise of Spanish Bail-in Power. (a) Notwithstanding any other term of the SNP Securities, the Indenture or any other agreements, arrangements, or understandings between the Company and any Holder, by its acquisition of the SNP Securities or any beneficial interest therein, each Holder (which, for the purposes of this Section 2.11, includes each holder of a beneficial interest in the SNP Securities) acknowledges, accepts, consents to and agrees to be bound by: (i) the exercise and effects of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority, which may be imposed with or without any prior notice with respect to the SNP Securities, and may include and result in any of the following, or some combination thereof: (1) the reduction or cancellation of all, or a portion, of the Amounts Due on the SNP Securities; (2) the conversion of all, or a portion, of the Amounts Due on the SNP Securities into shares, other securities or other obligations of the Company or another Person (and the issue to or conferral on the Holder of any such shares, securities or obligations), including by means of an amendment, modification or variation of the terms of the SNP Securities; (3) the cancellation of the SNP Securities; (4) the amendment or alteration of the maturity of the SNP Securities or amendment of the amount of interest payable on the SNP Securities, or the date on which the interest becomes payable, including by suspending payment for a temporary period; and (ii) the variation of the terms of the SNP Securities or the rights of Holders thereunder or under the Indenture, as deemed necessary by the Relevant Spanish Resolution Authority, to give effect to the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority.
(b) By its acquisition of the SNP Securities or any beneficial interest therein, each Holder acknowledges and agrees that neither a reduction or cancellation, in part or in full, of the Amounts Due on the SNP Securities or the conversion thereof into another security or obligation of the Company or another Person, in each case as a result of the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the Company, nor the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities shall: (i) give rise to a default or event of default for purposes of Section 315(b) (Notice of Defaults) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act; or (ii) be a default or an Event of Default with respect to the SNP Securities or under the Indenture. By its acquisition of the SNP Securities or any beneficial interest therein, each Holder further acknowledges and agrees that no repayment or payment of Amounts Due on the SNP Securities shall become due and payable or be paid after the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority if, and to the extent that, such amounts have been reduced, converted, cancelled, amended or altered as a result of such exercise.
(c) By its acquisition of the SNP Securities or any beneficial interest therein, each Holder, to the extent permitted by the Trust Indenture Act, waives any and all claims, in law and/or in equity, against the Trustee for, agrees not to initiate a suit against the Trustee in respect of, and agrees that the Trustee shall not be liable for, any action that the Trustee takes, or abstains from taking, in either case in accordance with the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities. Additionally, by its acquisition of the SNP Securities or any beneficial interest therein, each Holder acknowledges and agrees that, upon the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities: (i) the Trustee shall not be required to take any further directions from the Holders with respect to any portion of the SNP Securities that is written down, converted to equity and/or cancelled under Section 5.12 of the Original Indenture; and (ii) the Indenture shall not impose any duties upon the Trustee whatsoever with respect to the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority; provided, however, that notwithstanding the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities, so long as any SNP Securities remain Outstanding, there shall at all times be a trustee for the SNP Securities in accordance with the Indenture, and the resignation and/or removal of the Trustee and the appointment of a successor trustee shall continue to be governed by the Indenture, including to the extent no additional supplemental indenture or amendment is agreed upon in the event the SNP Securities remain Outstanding following the completion of the exercise of the Spanish Bail-in Power.
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(d) By its acquisition of the SNP Securities or any beneficial interest therein, each Holder shall be deemed to have authorized, directed and requested the Depository and any direct participant therein or other intermediary through which it holds such SNP Securities to take any and all necessary actions, if required, to implement the exercise of the Spanish Bail-in Power with respect to the SNP Securities as it may be imposed, without any further action or direction on the part of such Holder.
(e) Upon the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities, the Company or the Relevant Spanish Resolution Authority (as the case may be) shall provide a written notice to the Depository as soon as practicable regarding such exercise of the Spanish Bail-in Power for purposes of notifying the Holders of such SNP Securities. The Company shall also deliver a copy of such notice to the Trustee for information purposes. No failure or delay by the Company to deliver a notice shall affect the validity or enforceability of the exercise of the Spanish Bail-in Power.
(f) If the Issuer has elected to redeem the SNP Securities but prior to the payment of the Redemption Price to Holders the Relevant Spanish Resolution Authority exercises its Spanish Bail-in Power with respect to the SNP Securities the relevant redemption notice shall be automatically rescinded and shall be of no force and effect, there shall be no redemption and consequently no payment of the Redemption Price (or any accrued interest and Additional Amounts payable under Article 11 of the Original Indenture (as amended and supplemented hereby)) will be due and payable.
(g) Upon the exercise of the Spanish Bail-in Power with respect to the SNP Securities which results in the redemption, cancellation, or the conversion into other securities, of all the Amounts Due on the SNP Securities or such SNP Securities otherwise ceasing to be outstanding, the Indenture shall be deemed satisfied and discharged as to such series of SNP Securities and such SNP Securities shall thereafter be deemed to be not “Outstanding”.
(h) Each Holder that acquires SNP Securities in the secondary market or otherwise shall be deemed to acknowledge and agree to be bound by and consent to the same provisions specified in the Indenture to the same extent as the Holders that acquire the SNP Securities upon their initial issuance, including, without limitation, with respect to this Section 2.11.
Section 2.12. Amended Provision of Original Indenture.
(a) The definition of “Qualifying Securities” set forth in Section 1.01 of the Original Indenture shall be deleted with respect to the SNP Securities only and shall not apply to the SNP Securities and shall, with respect to the SNP Securities only, be replaced, by the following definition:
““Qualifying Securities” means, with respect to the Securities of a series which is subject to any substitution or modification pursuant to Section 8.04, at any time, any securities issued by the Company (including any Securities so modified so as to remain Qualifying Securities) that:
| (i) | contain terms which comply with the then-current requirements for inclusion in the Eligible Liabilities Amount as provided under Applicable Banking Regulations, as applicable; |
| (ii) | have the same denomination and aggregate outstanding principal amount, the same currency in which payments shall be payable, the same rate of interest and terms for the determination of any applicable rate of interest, the same date of maturity and the same dates for payment of interest as such series of Securities immediately prior to any substitution or modification pursuant to Section 8.04; |
| (iii) | have the same or higher ranking as is applicable to such series of Securities on the issue date of such series of Securities pursuant to Article 13; |
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| (iv) | preserve any existing rights under the Securities to any accrued interest which has not been paid in respect of the period from (and including) the Interest Payment Date last preceding the date of any substitution or modification pursuant to Section 8.04; |
| (v) | are listed or admitted to trading on any stock exchange as selected by the Company, if such series of Securities were listed or admitted to trading on a stock exchange immediately prior to the relevant substitution or modification pursuant to Section 8.04; and |
| (vi) | are not, immediately following the relevant substitution or modification, subject to an Eligible Liabilities Event or a Tax Event.” |
(b) The second paragraph of Section 3.07(a) of the Original Indenture shall be deleted with respect to the SNP Securities only and shall not apply to the SNP Securities and shall, with respect to the SNP Securities only, be replaced, by the following:
The Company shall, before 10:00 a.m. (New York time) on each due date of the principal (and premium, if any) or interest or any other amounts due on any Securities (and, in any event, unless agreed by the relevant Paying Agent, no earlier than 10:00 a.m. local time of the place where such Paying Agent has its registered office five business days in such location before the relevant due date), 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.
Section 2.13. Notices. Any notice, communication or other document required to be given to any person hereunder shall be given in accordance with Section 1.05 or Section 1.06 (as the case may be) of the Original Indenture. Any notice hereunder given by telephone, telecopy, letter or email shall be deemed to be received when in the ordinary course of transmission or post, as the case may be, it would be received.
Section 2.14. Instructions by Electronic Means. All of the provisions contained in the Original Indenture in respect of Instructions delivered pursuant to Electronic Means shall be applicable in respect of the SNP Securities and of this Seventh Supplemental Indenture as fully and with like effect as if set forth herein in full.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Seventh Supplemental Indenture to be duly executed on its behalf as of the date first above written.
| BANCO BILBAO VIZCAYA ARGENTARIA, S.A., as Issuer | ||
| By: | /s/ Ignacio Echevarría Soriano | |
| Name: Ignacio Echevarría Soriano | ||
| Title: Authorized Representative | ||
| THE BANK OF NEW YORK MELLON, LONDON BRANCH as Trustee, Paying Agent, Transfer Agent and Calculation Agent | ||
| By: | /s/ Nathan A. Hodd | |
| Name: Nathan A. Hodd | ||
| Title: Agent | ||
| THE BANK OF NEW YORK MELLON, as Security Registrar | ||
| By: | /s/ Nathan A. Hodd | |
| Name: Nathan A. Hodd | ||
| Title: Agent | ||
[Signature Page to Seventh Supplemental Indenture]
EXHIBIT A
FORM OF SECURITY CERTIFICATE REPRESENTING SECURITIES
No. [•]
CUSIP NO. 05946K BA8
ISIN NO. US05946KBA88
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TRUST COMPANY (THE “DEPOSITORY”) TO A NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS GLOBAL SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
BANCO BILBAO VIZCAYA ARGENTARIA, S.A.
GLOBAL SECURITY
representing up to $[·]
Senior Non-Preferred Floating Rate Notes due 2029
BANCO BILBAO VIZCAYA ARGENTARIA, S.A., a sociedad anónima organized under the laws of the Kingdom of Spain and having its registered office in the Kingdom of Spain (together with its successors and permitted assigns under the Indenture referred to on the reverse hereof, the “Company”), for value received, hereby promises to pay to Cede & Co., or registered assigns, the principal sum of $[•] on September 3, 2029 (the “Stated Maturity Date”) or on such earlier date as the principal hereof may become due and payable in accordance with the provisions hereof.
The Company further unconditionally promises, subject to the Terms and Conditions of the SNP Securities endorsed on the reverse hereof, to pay interest accrued on the SNP Securities. The SNP Securities will bear interest from (and including) the Issue Date to (but excluding) the Stated Maturity Date or any date of earlier redemption at a rate per annum equal to the Compounded SOFR plus a margin of 89 basis points (the “Floating Interest Rate”), subject to a minimum interest rate of 0.000%. Interest on the SNP Securities shall be determined five U.S. Government Securities Business Days before each Interest Payment Date. The Company will pay interest in arrears on the SNP Securities quarterly on March 3, June 3, September 3 and December 3 of each year (each an “Interest Payment Date”), commencing on December 3, 2026, up to (and including) the Stated Maturity Date or any date of earlier redemption; provided that if any scheduled Interest Payment Date, other than the scheduled Stated Maturity Date or date of earlier redemption, falls on a day that is not a Business Day, then such Interest Payment Date will be postponed to the next succeeding Business Day, except that if that Business Day falls in the next succeeding calendar month, the Interest Payment Date will be the immediately preceding Business Day. If the scheduled final Interest Payment Date (i.e., the Stated Maturity Date or date of earlier redemption) falls on a day that is not a Business Day, the Company will pay any interest and principal and/or any amount payable upon redemption of the SNP Securities, as applicable, on the next succeeding Business Day, but the final Interest Payment Date will not be postponed and interest on that payment will not accrue during the period from and after the scheduled final Interest Payment Date.
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The interest payable on any such Interest Payment Date will, subject to certain conditions set forth in the Indenture referred to on the reverse hereof, be paid to the Holder in whose name this SNP Security is registered as of the close of business on the 15th calendar day (whether or not such day is a Business Day) immediately preceding such Interest Payment Date.
Payment of the principal amount of, and any interest on, this SNP Security will be made by wire transfer of immediately available funds in such coin or currency of the United States of America as at the time of payment is legal tender for payment of public and private debts. Such payment shall be made to the Holder including through a paying agent of the Company for collection by the Holder.
Notwithstanding any other term of this SNP Security, the Indenture or any other agreements, arrangements, or understandings between the Company and any Holder, by its acquisition of this SNP Security or any beneficial interest therein, each Holder (including, for purposes of this paragraph, each holder of a beneficial interest in the SNP Security) acknowledges, accepts, consents to and agrees to be bound by: (i) the exercise and effects of the Spanish Bail-in Power (as defined on the reverse hereof) by the Relevant Spanish Resolution Authority (as defined on the reverse hereof), which may be imposed with or without any prior notice with respect to the SNP Security, and may include and result in any of the following, or some combination thereof: (1) the reduction or cancellation of all, or a portion, of the Amounts Due (as defined on the reverse hereof) on this SNP Security; (2) the conversion of all, or a portion, of the Amounts Due on this SNP Security into shares, other securities or other obligations of the Company or another person (and the issue to or conferral on the Holder of any such shares, securities or obligations), including by means of an amendment, modification or variation of the terms of this SNP Security; (3) the cancellation of this SNP Security; (4) the amendment or alteration of the maturity of this SNP Security or amendment of the amount of interest payable on this SNP Security, or the date on which the interest becomes payable, including by suspending payment for a temporary period; and (ii) the variation of the terms of this SNP Security or the rights of the Holders thereunder or under the Indenture, as deemed necessary by the Relevant Spanish Resolution Authority, to give effect to the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority. The Holder shall not have any claim against the Company in connection with or arising out of any such exercise or variation.
Reference is made to the further provisions set forth under the Terms and Conditions of the SNP Securities endorsed on the reverse hereof. Such further provisions shall for all purposes have the same effect as though fully set forth at this place.
This SNP Security shall not be valid or obligatory for any purpose until the certificate of authentication of this SNP Security shall have been executed manually, by facsimile or by electronic signature by or on behalf of the Trustee under the Indenture.
[Remainder of the page left intentionally blank]
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed.
Dated:
| BANCO BILBAO VIZCAYA ARGENTARIA, S.A. | ||
| By: | ||
| Name: | ||
| Title: | ||
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Certificate of Authentication
This is the Global Security of a series designated herein referred to in the within-mentioned Indenture.
Dated:
Authenticated in New York
| The Bank of New York Mellon, London Branch, as Trustee | ||
| By: | ||
| Authorized Signatory | ||
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[REVERSE OF SECURITY]
TERMS AND CONDITIONS OF THE SECURITIES
1. General. This security is one of a duly authorized issue of a series of senior non-preferred debt securities of the Company, designated as its Senior Non-Preferred Floating Rate Notes due 2029 (Bonos Simples No Preferentes Agosto 2026 - SEC - 17) (referred to as the “SNP Securities”), limited to the aggregate principal amount of $300,000,000 (except as otherwise provided in Section 2.02 of the Seventh Supplemental Indenture (as defined below)) and issued or to be issued pursuant to an Indenture (the “Base Indenture”) dated as of July 31, 2025 among the Company and The Bank of New York Mellon, London Branch, as trustee (together with any successor Trustee under the Indenture (as defined herein), the “Trustee”), transfer agent (together with any successor Transfer Agent under the Indenture, the “Transfer Agent”) and paying agent (together with any successor Paying Agent under the Indenture, the “Paying Agent”) and The Bank of New York Mellon, as security registrar (together with any successor Security Registrar under the Indenture, the “Security Registrar”), as amended and supplemented prior to the issuance and authentication hereof by a supplemental indenture dated as of September 3, 2026 among the Company, The Bank of New York Mellon, London Branch, as Trustee, Paying Agent, Transfer Agent and calculation agent (together with any successor Calculation Agent under the Indenture, the “Calculation Agent”), and The Bank of New York Mellon, as Security Registrar (the “Seventh Supplemental Indenture” and, together with the Base Indenture (as amended and supplemented by the Seventh Supplemental Indenture), the “Indenture”). The SNP Securities are subject to the terms and conditions of the Indenture, and such terms and conditions shall have effect as if incorporated herein. All capitalized terms used in this SNP Security but not otherwise defined herein are used as defined in the Indenture and shall have the meanings assigned to them in the Indenture. References herein to any particular Article, Section or other subdivision of the Base Indenture shall refer to any such Article, Section or other subdivision of the Base Indenture as amended and supplemented by the Seventh Supplemental Indenture. The holders of the SNP Securities (each a “Holder”) will be entitled to the benefits of, be bound by, and be deemed to have notice of, all of the provisions of the Indenture and reference is made to the Indenture for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Trustee and the Holders of the SNP Securities and of the terms upon which the SNP Securities are, and are to be, authenticated and delivered. A copy of the Indenture is on file and may be inspected at the Corporate Trust Office of the Trustee. To the extent permitted by applicable law, in the event of any inconsistency between the terms of this SNP Security and the terms of the Indenture, the terms of the Indenture will control.
The SNP Securities will initially be issued in the form of one or more global certificates representing the securities of this series in fully registered form without interest coupons (each a “Global Security”) deposited with The Bank of New York Mellon as custodian for the Depository. The SNP Securities will not be issued in bearer form. The SNP Securities, and transfers thereof, shall be registered as provided in Section 3.05 of the Base Indenture. Any person in whose name a SNP Security shall be registered may (to the fullest extent permitted by applicable law) be treated at all times, and for all purposes, by the Company and the Trustee as the absolute owner of such SNP Security, regardless of any notice of ownership, theft or loss or of any writing thereon.
2. Principal and Interest. (a) The principal of the Outstanding SNP Securities shall be due and payable on the Stated Maturity Date or on such earlier date as the principal thereof may become due and payable in accordance with the provisions hereof.
(b) The SNP Securities will bear interest from (and including) the Issue Date to (but excluding) the Stated Maturity Date or any date of earlier redemption. For each Interest Period, the SNP Securities will bear interest at the Floating Interest Rate. Interest on the SNP Securities shall be determined five U.S. Government Securities Business Days before each Interest Payment Date.
With respect to any Interest Period, “Compounded SOFR” means a compounded average of daily SOFR, that will be determined by the Calculation Agent in respect of any Interest Period in accordance with the following formula, with the resulting percentage being rounded, if necessary, to the fifth decimal place, with 0.000005 being rounded upwards:
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where:
“d” means, in respect of the relevant Observation Period, the number of calendar days in such Observation Period;
“d0” means, in respect of any Observation Period, the number of U.S. Government Securities Business Days in the relevant Observation Period;
“i” means a series of whole numbers from one to d0, each representing the relevant U.S. Government Securities Business Days in chronological order from (and including) the first U.S. Government Securities Business Day in the relevant Observation Period;
“ni” means, in respect of any U.S. Government Securities Business Dayi, in the relevant Observation Period the number of calendar days from, and including, such U.S. Government Securities Business Dayi up to, but excluding, the following U.S. Government Securities Business Day; and
“SOFRi” means, in respect of any U.S. Government Securities Business Dayi in the relevant Observation Period, the SOFR in respect of such U.S. Government Securities Business Day.
“Observation Period” means, in respect of an Interest Period, the period from, and including, the date falling the number of Observation Shift Days prior to the first day of such Interest Period and ending on, but excluding, the date that is the number of Observation Shift Days prior to the Interest Payment Date for such Interest Period.
“Observation Shift Days” means five U.S. Government Securities Business Days.
“SOFR” means the rate determined by the Calculation Agent in respect of a U.S. Government Securities Business Day, in accordance with the following provisions:
| (i) | the Secured Overnight Financing Rate published for such U.S. Government Securities Business Day as such rate appears on the SOFR Administrator’s Website at 3:00 p.m. (New York time) on the immediately following U.S. Government Securities Business Day (the “SOFR Determination Time”); |
| (ii) | if the rate specified in (i) above does not so appear, the Secured Overnight Financing Rate as published in respect of the first preceding U.S. Government Securities Business Day for which the Secured Overnight Financing Rate was published on the SOFR Administrator’s Website; |
where:
“SOFR Administrator” means the Federal Reserve Bank of New York (or a successor administrator of the Secured Overnight Financing Rate); and
“SOFR Administrator’s Website” means the website of the Federal Reserve Bank of New York, or any successor source.
“U.S. Government Securities Business Day” means any day except for a Saturday, Sunday or a day on which the Securities Industry and Financial Markets Association (SIFMA) recommends that the fixed income departments of its members be closed for the entire day for purposes of trading in U.S. government securities.
(c) Each interest period on the SNP Securities will begin on (and include) an Interest Payment Date (or, in the case of the first interest period, September 3, 2026) and end on (but exclude) the following Interest Payment Date (or, in the case of the final interest period, the Stated Maturity Date or date of earlier redemption) (each such interest period, an “Interest Period”). The amount of interest accrued and payable on the SNP Securities for each Interest Period will be equal to the product of (i) the outstanding principal amount of the SNP Securities multiplied by (ii) the product of (a) the Floating Interest Rate for the relevant Interest Period multiplied by (b) the quotient of the actual number of calendar days in such Interest Period divided by 360.
(d) If the Company or its designee determines on or prior to the relevant SOFR Determination Time that a Benchmark Transition Event and its related Benchmark Replacement Date have occurred with respect to Compounded SOFR, then the provisions set forth in Section 2.04(f) of the Seventh Supplemental Indenture will thereafter apply to all determinations of the rate of interest payable on the SNP Securities. For the avoidance of doubt, in accordance with such benchmark replacement provisions, after a Benchmark Transition Event and its related Benchmark Replacement Date have occurred, the interest payable for each Interest Period on the SNP Securities will be an annual rate equal to the sum of the Benchmark Replacement and the applicable margin.
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3. Additional Amounts. Any amounts to be paid by the Company with respect to each SNP Security shall be paid without withholding or deduction for or on account of any and all present or future taxes or duties of whatever nature (“Taxes”) unless such withholding or deduction is required by law. In the event any such withholding or deduction is imposed or levied in respect of payment of interest (but not principal or premium (if any)) by or on behalf of Spain or any political subdivision or authority thereof or therein having the power to tax, the Company will pay to the Holder such Additional Amounts as may be necessary in order that the net amount received by the Holder of such SNP Security under the Indenture, after such withholding or deduction, shall equal the amount of interest, if any, which would have been receivable by such Holder in the absence of such withholding or deduction; 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 SNP Security for whose benefit such Holder holds such SNP Security) having some connection with Spain other than the mere holding of the SNP Security (or such beneficial interest) or the mere crediting of the SNP Security to its securities account with the relevant Depository;
(b) in the case of a SNP Security presented for payment (where presentation is required) more than 30 days after the Relevant Date, except to the extent that the 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) in respect of any Tax, assessment or other governmental charge that would not have been imposed but for the failure by the Holder or beneficial owner of the SNP Security to comply with any certification, information or other reporting requirements concerning the nationality, residence, identity or connection with the taxing jurisdiction of the Holder or beneficial owner of that SNP Security, if compliance is required by statute, regulation or administrative practice of Spain or of any political subdivision or taxing authority thereof or therein as a precondition to reduction of or relief or exemption from the Tax, assessment or other governmental charge; or
(d) to, or to a third party on behalf of, a Holder if the Company does not receive any relevant information as may be required by Spanish tax laws and regulations (including any binding rulings), including a duly executed and completed Payment Statement from the Paying Agent.
Additional Amounts will also not be paid with respect to any payment on any SNP Security to any Holder who is a fiduciary, partnership, limited liability company or Person other than the sole beneficial owner of such payment to the extent such 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 such fiduciary, member of such partnership, interest holder in that limited liability company or a beneficial owner who would not have been entitled to such Additional Amounts had it been a Holder of such SNP Security.
No Additional Amounts will be paid by the Company, the Trustee or any paying agent on account of any withholding or deduction from a payment on, or in respect of, the SNP Securities where such withholding or deduction is imposed pursuant to any agreement with the U.S. Internal Revenue Service in connection with Sections 1471-1474 of the U.S. Internal Revenue Code and the U.S. Treasury regulations thereunder (“FATCA”), any intergovernmental agreement between the United States and Spain or any other jurisdiction with respect to FATCA, or any law, regulation or other official guidance enacted or issued in any jurisdiction implementing, or relating to, FATCA or any intergovernmental agreement.
4. Redemption upon a Tax Event; Redemption upon an Eligible Liabilities Event; Clean-up Call. Any redemption of the SNP Securities shall be made in accordance with the terms of Article 11 of the Base Indenture and be in compliance with Applicable Banking Regulations then in force and subject to the prior consent of the Regulator, if required pursuant to such regulations.
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(a) Redemption upon a Tax Event. All or part only of the SNP Securities may be redeemed at the Redemption Price at the option of the Company if a Tax Event occurs on or after the Issue Date of the SNP Securities; provided that, if the Tax Event consists of the event described in prong (i) of the definition of “Tax Event”, no such notice to the Trustee of the redemption shall be given earlier than the number of days which is equal to the aggregate of the number of days falling within the then-current Interest Period plus 60 days prior to the earliest date on which the Company would be obligated to deduct or withhold tax or pay Additional Amounts were a payment in respect of the SNP Securities then due.
Prior to any notice of redemption of the SNP Securities pursuant to this paragraph 4(a), the Company shall provide the Trustee with (i) an Officer’s Certificate of the Company stating that the Company 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 to redeem such SNP Securities pursuant to this paragraph 4(a) have been satisfied; and (ii) an Opinion of Counsel to the effect that any of the circumstances referred to in paragraph 4(a) prevail.
(b) Redemption upon an Eligible Liabilities Event. All (but not less than all) of the SNP Securities may be redeemed at the Redemption Price at the option of the Company if an Eligible Liabilities Event occurs, on or after the Issue Date of the SNP Securities.
Prior to any notice of redemption of the SNP Securities pursuant to this paragraph 4(b), the Company shall provide the Trustee with (i) an Officer’s Certificate of the Company stating that the Company 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 to redeem such SNP Securities pursuant to this paragraph 4(b) have been satisfied; and (ii) an Opinion of Counsel to the effect that the circumstances referred to in paragraph 4(b) prevail.
(c) Clean-up Call. All (but not less than all) of the SNP Securities may be redeemed at the Redemption Price at the option of the Company if, on or after the Issue Date, SNP Securities representing, in the aggregate, 75% or more of the aggregate principal amount of the SNP Securities (including, both in the numerator and the denominator, (i) any SNP Securities issued after the Issue Date, and (ii) any SNP Securities which have been cancelled by the Trustee following their surrender for cancellation in accordance with the Indenture) have been purchased by or on behalf of the Company or any member of the Group.
5. Event of Default. “Event of Default”, wherever used herein with respect to this SNP Security, means (whatever the reason for such Event of Default and whether it shall be voluntary 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) that, except as set forth in the immediately succeeding paragraph, an order shall have been made by any competent court commencing insolvency proceedings (procedimiento concursal) against the Company or an order of any competent court or administrative agency shall have been made or a resolution shall have been passed by the Company for the dissolution or winding up of the Company (except (i) in the case of a reconstruction, consolidation, amalgamation or merger carried out in compliance with the requirements set forth in Section 8.01 of the Base Indenture (in this case, even without being approved by an Act of the Holders of the SNP Securities) or (ii) in any such case for the purpose of a reconstruction or a consolidation or an amalgamation or a merger which has been approved by an Act of the Holders of the SNP Securities).
Notwithstanding any other provision in these terms or the Indenture, any Resolution or Early Intervention with respect to the Company shall not, in and of itself and without regard to any other fact or circumstance, constitute a default or an Event of Default under the immediately preceding paragraph or under any other provision in these terms or the Indenture with respect to the SNP Securities. In addition, neither (i) a reduction or cancellation, in part or in full, of the Amounts Due (as defined below) on the SNP Securities or the conversion thereof into another security or obligation of the Company or another Person, in each case as a result of the exercise of the Spanish Bail-in Power (as defined below) by the Relevant Spanish Resolution Authority (as defined below) with respect to the Company, nor (ii) the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities, shall constitute an Event of Default or default under the Indenture or the SNP Securities or otherwise constitute non-performance of a contractual obligation, or entitle the Holders of the SNP Securities to any remedies, which are hereby expressly waived. In addition, no repayment or payment of Amounts Due on the SNP Securities shall become due and payable or be paid after the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority if, and to the extent that, such amounts have been reduced, converted, cancelled, amended or altered as a result of such exercise.
A-8
For the avoidance of doubt, only an Event of Default (rather than any breach or default under the Indenture or the SNP Security) may give rise to a declaration of acceleration referred to in Section 5.02 of the Base Indenture.
6. Substitution and Modification. Each Holder and beneficial owner of the SNP Securities shall, by virtue of its acquisition of the SNP Securities or any beneficial interest therein, be deemed to acknowledge, accept, consent to and agree to be bound by any substitution of or modification to the terms of the SNP Securities as set forth in Section 8.04 of the Base Indenture and to grant to the Company and the Trustee full power and authority to take any action and/or to execute and deliver any document in the name and/or on behalf of such Holder or beneficial owner, as the case may be, which is necessary or convenient to complete the substitution of or modification to the terms of the SNP Securities, as applicable. Each Holder and beneficial owner of the SNP Securities, by virtue of its acquisition of the SNP Securities or any beneficial interest therein, to the extent permitted by the Trust Indenture Act, waives any and all claims, in law and/or in equity, against the Trustee and/or the Company for, agrees not to initiate a suit against the Trustee and/or the Company in respect of, and agrees that neither the Trustee nor the Company shall be liable for, any action that the Trustee or the Company takes, or abstains from taking, in either case in connection with the substitution of or modification to the terms of the SNP Securities upon the occurrence of an Eligible Liabilities Event or a Tax Event.
7. Enforcement. No Holder of any SNP Security (which, for the purposes of this paragraph 7, includes each holder of a beneficial interest in any such SNP Security) shall have any right by virtue of or by availing itself of any provision of the Indenture or of these terms to institute any proceeding, judicial or otherwise, with respect to the Indenture or the SNP Securities or for the appointment of a receiver or trustee, or for any other remedy thereunder, unless (a) such Holder has previously given written notice to the Trustee of a continuing Event of Default with respect to the SNP Securities, specifying such Event of Default and stating that such notice is a “Notice of Event of Default” under the Indenture, (b) the Holders of not less than 25% in aggregate principal amount of the SNP Securities then Outstanding shall have made written request to the Trustee to institute proceedings in respect of such Event of Default in its own name as Trustee thereunder and such Holder or Holders have offered to the Trustee reasonable indemnity satisfactory to the Trustee against the costs, expenses and liabilities to be incurred in compliance with such request, (c) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed to institute any such proceeding, and (d) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by Holders of a majority in aggregate principal amount of the Outstanding SNP Securities.
8. Status and Ranking. (a) The payment obligations of the Company under the SNP Securities on account of principal are direct, unconditional, unsubordinated and unsecured obligations of the Company and, upon the insolvency (concurso de acreedores) of the Company, in accordance with and only to the extent permitted by the Insolvency Law and any other applicable laws relating to or affecting the enforcement of creditors’ rights in Spain (including, without limitation, Additional Provision 14 of Law 11/2015), but subject to any other ranking that may apply as a result of any mandatory provision of law (or otherwise), the payment obligations of the Company under the SNP Securities with respect to claims for principal (which claims will constitute ordinary claims) will rank:
| (i) | junior to any (a) privileged claims (créditos privilegiados) (which shall include, among other claims, any claims in respect of deposits for the purposes of Additional Provision 14.1 of Law 11/2015), (b) claims against the insolvency estate (créditos contra la masa), and (c) Senior Preferred Obligations; |
| (ii) | pari passu without any preference or priority among themselves and with all other Senior Non-Preferred Obligations; and |
| (iii) | senior to all subordinated obligations of, or claims against, the Company (créditos subordinados), present and future, |
such that any relevant claim on account of principal in respect of the SNP Securities will be satisfied, as appropriate, only to the extent that all claims ranking senior to it have first been satisfied in full, and then pro rata with any claims ranking pari passu with it, in each case as provided above.
Upon the insolvency (concurso de acreedores) of the Company, in accordance with and to the extent permitted by the Insolvency Law and other applicable laws relating to or affecting the enforcement of creditors’ rights in Spain, but subject to any other ranking that may apply as a result of any mandatory provision of law (or otherwise), the payment obligations of the Company under the SNP Securities with respect to claims for accrued but unpaid interest on the SNP Securities shall constitute subordinated claims (créditos subordinados) against the Company ranking in accordance with the provisions of the Insolvency Law. No further interest on the SNP Securities shall accrue from the date of declaration of the insolvency of the Company. Claims in respect of Additional Amounts shall also constitute subordinated claims (créditos subordinados) against the Company.
A-9
“Insolvency Law” means the restated text of the Insolvency Law, as approved by Spanish Royal Legislative Decree 1/2020 of May 5 (Real Decreto Legislativo 1/2020, de 5 de mayo, por el que se aprueba el texto refundido de la Ley Concursal), as amended, replaced or supplemented from time to time.
“ordinary claims” means the class of claims with respect to unsecured, non-privileged and unsubordinated obligations (créditos ordinarios) of the Company which, upon the insolvency (concurso de acreedores) of the Company and pursuant to the Insolvency Law and other applicable laws relating to or affecting the enforcement of creditors’ rights in Spain, rank (i) junior to privileged claims (créditos privilegiados) (which shall include, among other claims, any claims in respect of deposits for the purposes of Additional Provision 14.1 of Law 11/2015 and any secured claims), and claims against the insolvency estate (créditos contra la masa) and (ii) senior to subordinated claims (créditos subordinados).
“Senior Non-Preferred Obligations” (créditos ordinarios no preferentes) means the obligations of the Company with respect to (i) the payment of principal under the SNP Securities and (ii) all other ordinary claims, present and future, which, upon the insolvency (concurso de acreedores) of the Company, are expressed to rank within the ordinary claims but junior to Senior Preferred Obligations.
“Senior Preferred Obligations” means the obligations of the Company with respect to all ordinary claims, present and future, other than Senior Non-Preferred Obligations.
(b) Each Holder and beneficial owner of this SNP Security, by his or her acquisition thereof, agrees to the ranking of the SNP Security as described in this paragraph 8 and, to the extent permitted by Spanish law, authorizes and directs the Trustee on his or her behalf to take such action as may be necessary or appropriate to effectuate the ranking of the SNP Securities provided in this paragraph 8 and appoints the Trustee his or her attorney-in-fact for any and all such purposes, including, if required, to grant any private or public documents on such Holder’s or beneficial owner’s behalf. Further, each such Holder and beneficial owner irrevocably waives his or her rights of priority which would otherwise be accorded to him or her under the laws of Spain, to the extent necessary to effectuate the ranking provisions of this SNP Security and to the extent permitted by Spanish law.
9. Certain Undertakings and Agreements by Holders. (a) Notwithstanding any other term of this SNP Security, the Indenture or any other agreements, arrangements, or understandings between the Company and any Holder, by its acquisition of this SNP Security or any beneficial interest therein, each Holder (which, for the purposes of this paragraph 9, includes each holder of a beneficial interest in the SNP Security) acknowledges, accepts, consents to and agrees to be bound by: (i) the exercise and effects of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority, which may be imposed with or without any prior notice with respect to the SNP Security, and may include and result in any of the following, or some combination thereof: (1) the reduction or cancellation of all, or a portion, of the Amounts Due on the SNP Securities; (2) the conversion of all, or a portion, of the Amounts Due on the SNP Securities into shares, other securities or other obligations of the Company or another Person (and the issue to or conferral on the Holder of any such shares, securities or obligations), including by means of an amendment, modification or variation of the terms of the SNP Securities; (3) the cancellation of the SNP Securities; (4) the amendment or alteration of the maturity of the SNP Securities or amendment of the amount of interest payable on the SNP Securities, or the date on which the interest becomes payable, including by suspending payment for a temporary period; and (ii) the variation of the terms of the SNP Securities or the rights of the Holders thereunder or under the Indenture, as deemed necessary by the Relevant Spanish Resolution Authority, to give effect to the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority.
(b) By its acquisition of this SNP Security or any beneficial interest therein, each Holder acknowledges and agrees that neither a reduction or cancellation, in part or in full, of the Amounts Due on the SNP Securities or the conversion thereof into another security or obligation of the Company or another person, in each case as a result of the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the Company, nor the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities shall: (i) give rise to a default or event of default for purposes of Section 315(b) (Notice of Defaults) and Section 315(c) (Duties of the Trustee in Case of Default) of the Trust Indenture Act; or (ii) be a default or an Event of Default with respect to the SNP Securities or under the Indenture. By its acquisition of this SNP Security or any beneficial interest therein, each Holder further acknowledges and agrees that no repayment or payment of Amounts Due on the SNP Securities shall become due and payable or be paid after the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority if, and to the extent that, such amounts have been reduced, converted, cancelled, amended or altered as a result of such exercise.
A-10
(c) By its acquisition of this SNP Security or any beneficial interest therein, each Holder, to the extent permitted by the Trust Indenture Act, waives any and all claims, in law and/or in equity, against the Trustee for, agrees not to initiate a suit against the Trustee in respect of, and agrees that the Trustee shall not be liable for, any action that the Trustee takes, or abstains from taking, in either case in accordance with the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities. Additionally, by its acquisition of this SNP Security or any beneficial interest therein, each Holder acknowledges and agrees that, upon the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities: (i) the Trustee shall not be required to take any further directions from the Holders with respect to any portion of the SNP Securities that is written down, converted to equity and/or cancelled under Section 5.12 of the Base Indenture; and (ii) the Indenture shall not impose any duties upon the Trustee whatsoever with respect to the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority; provided, however, that notwithstanding the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities, so long as any SNP Securities remain Outstanding, there shall at all times be a trustee for the SNP Securities in accordance with the Indenture, and the resignation and/or removal of the Trustee and the appointment of a successor trustee shall continue to be governed by the Indenture, including to the extent no additional supplemental indenture or amendment is agreed upon in the event the SNP Securities remain Outstanding following the completion of the exercise of the Spanish Bail-in Power.
(d) By its acquisition of this SNP Security or any beneficial interest therein, each Holder shall be deemed to have authorized, directed and requested the Depository and any direct participant in the Depository or other intermediary through which it holds such SNP Security to take any and all necessary actions, if required, to implement the exercise of the Spanish Bail-in Power with respect to the SNP Security as it may be imposed, without any further action or direction on the part of such Holder.
(e) Upon the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority with respect to the SNP Securities, the Company or the Relevant Spanish Resolution Authority (as the case may be) shall provide a written notice to the Depository as soon as practicable regarding such exercise of the Spanish Bail-in Power for purposes of notifying the Holders of such SNP Securities. The Company shall also deliver a copy of such notice to the Trustee for information purposes. No failure or delay by the Company to deliver a notice shall affect the validity or enforceability of the exercise of the Spanish Bail-in Power.
(f) If the Company has elected to redeem the SNP Securities but prior to the payment of the Redemption Price to Holders the Relevant Spanish Resolution Authority exercises its Spanish Bail-in Power with respect to the SNP Securities, the relevant redemption notice shall be automatically rescinded and shall be of no force and effect, there shall be no redemption and consequently no payment of the Redemption Price (or any accrued interest and Additional Amounts payable under Article 11 of the Base Indenture) will be due and payable.
(g) Upon the exercise of the Spanish Bail-in Power with respect to the SNP Securities which results in the redemption, cancellation, or the conversion into other securities, of all the Amounts Due on the SNP Securities or such SNP Securities otherwise ceasing to be outstanding, the Indenture shall be deemed satisfied and discharged as to such series of SNP Securities and such SNP Securities shall thereafter be deemed to be not “Outstanding”.
(h) Each Holder that acquires this SNP Security in the secondary market or otherwise shall be deemed to acknowledge and agree to be bound by and consent to the same provisions specified herein and in the Indenture to the same extent as the Holders that acquire the SNP Securities upon their initial issuance, including, without limitation, with respect to this paragraph 9.
A-11
“Amounts Due”, with respect to a SNP Security, means the aggregate outstanding principal amount, together with any accrued but unpaid interest, Additional Amounts and premium (if any), due on such SNP Security. References to such amounts will include amounts that have become due and payable, but which have not been paid, prior to the exercise of the Spanish Bail-in Power (as defined below) by the Relevant Spanish Resolution Authority. References to such amounts will also include amounts held in trust by the Company, any Paying Agent or the Trustee pursuant to Section 10.03 of the Base Indenture.
“Spanish Bail-in Power” means any write-down, conversion, transfer, modification, cancellation or suspension power existing from time to time under: (i) any law, regulation, rule or requirement applicable from time to time in Spain, relating to the transposition or development of the BRRD, including, but not limited to (a) Law 11/2015, (b) RD 1012/2015 and (c) the SRM Regulation; or (ii) any other law, regulation, rule or requirement applicable from time to time in Spain pursuant to which (a) obligations or liabilities of banks, investment firms or other financial institutions or their affiliates can be reduced, cancelled, modified, transferred or converted into shares, other securities, or other obligations of such Persons or any other Person (or suspended for a temporary period or permanently) or (b) any right in a contract governing such obligations may be deemed to have been exercised.
10. Governing Law. This SNP Security shall be governed by and construed in accordance with 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, issuance and execution by the Company of the SNP Securities and paragraphs 8(a) and 9 shall be governed by and construed in accordance with the common laws (derecho común) of Spain.
11. Additional Terms. Additional terms of the SNP Securities, including but not limited to terms related to payment of defaulted interest; amendments to the Indenture and waiver of past defaults; replacement, exchange and transfer of the SNP Securities; the duties, immunities and rights of the Trustee, the Paying Agent, the Transfer Agent, the Calculation Agent and the Security Registrar; notices; limitation on claims; submission to jurisdiction; and service of process, are set forth in the Indenture and shall have effect as if incorporated herein.
A-12
Exhibit 5.1
|
Davis Polk & Wardwell llp Paseo
de la Castellana, 41 davispolk.com |
|
September 3, 2026
Banco
Bilbao Vizcaya Argentaria, S.A.
Calle Azul, 4
28050 Madrid
Spain
Ladies and Gentlemen:
Banco Bilbao Vizcaya Argentaria, S.A., a sociedad anónima organized under the laws of the Kingdom of Spain (the “Company”), filed with the Securities and Exchange Commission a Registration Statement on Form F-3 (File No. 333-289121) (the “Registration Statement”), and the related Prospectus (the “Prospectus”) for the purpose of registering under the Securities Act of 1933, as amended (the “Securities Act”), certain securities, including $1,000,000,000 aggregate principal amount of the Company’s 4.977% senior non-preferred fixed rate notes due 2029 (the “2029 Fixed Rate Notes”), $1,000,000,000 aggregate principal amount of the Company’s 5.244% senior non-preferred fixed rate notes due 2031 ( the “2031 Fixed Rate Notes”) and $300,000,000 aggregate principal amount of the Company’s senior non-preferred floating rate notes due 2029 (the “2029 Floating Rate Notes” and each of the 2029 Fixed Rate Notes, the 2031 Fixed Rate Notes and the 2029 Floating Rate Notes a “series of Securities” and together the “Securities”).
Each series of Securities is to be issued pursuant to the provisions of the Senior Non-Preferred Debt Securities Indenture dated as of July 31, 2025 (the “Base Indenture”) between the Company and The Bank of New York Mellon, acting (except with respect to its role as security registrar) through its London Branch, as trustee, security registrar, transfer agent and paying agent, as amended and supplemented, with respect to the 2029 Fixed Rate Notes, by the fifth supplemental indenture dated as of September 3, 2026 (the “2029 Fixed Rate Notes Supplemental Indenture”), with respect to the 2031 Fixed Rate Notes, by the sixth supplemental indenture dated as of September 3, 2026 (the “2031 Fixed Rate Notes Supplemental Indenture”), and with respect to the 2029 Floating Rate Notes, by the seventh supplemental indenture dated as of September 3, 2026 (the “2029 Floating Rate Notes Supplemental Indenture”, and each of the 2029 Fixed Rate Notes Supplemental Indenture, the 2031 Fixed Rate Notes Supplemental Indenture and the 2029 Floating Rate Notes Supplemental Indenture, a “Supplemental Indenture”), under which The Bank of New York Mellon, acting through its London Branch, has also agreed to act as calculation agent. The Base Indenture, as so amended and supplemented by the applicable Supplemental Indenture with respect to the relevant series of Securities, is hereinafter referred to as an “Indenture.” The Securities are to be sold pursuant to the Underwriting Agreement (the “Underwriting Agreement”) incorporated by reference in the Pricing Agreement dated August 25, 2026 (together with the Underwriting Agreement, the “Pricing Agreement”) among the Company and the several underwriters named therein (the “Underwriters”).
We, as your special U.S. counsel, have examined originals or copies of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary or advisable for the purpose of rendering this opinion.
In rendering the opinion expressed herein, we have, without independent inquiry or investigation, assumed that (i) all documents submitted to us as originals are authentic and complete, (ii) all documents submitted to us as copies conform to authentic, complete originals, (iii) all documents filed with or submitted to the Securities and Exchange Commission through its Electronic Data Gathering, Analysis and Retrieval (“EDGAR”) system (except for required EDGAR formatting changes) conform to the versions of such documents reviewed by us prior to such formatting (iv) all signatures on all documents that we reviewed are genuine, (v) all natural persons executing documents had and have the legal capacity to do so, (vi) all statements in certificates of public officials and officers of the Company that we reviewed were and are accurate and (vii) all representations made by the Company as to matters of fact in the documents that we reviewed were and are accurate.
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Banco Bilbao Vizcaya Argentaria, S.A.
|
Based upon the foregoing, and subject to the additional assumptions and qualifications set forth below, we advise you that, in our opinion, assuming that the Securities have been duly executed and authenticated in accordance with the provisions of the relevant Indenture and delivered to and paid for by the Underwriters pursuant to the Pricing Agreement, the Securities (other than the terms thereof expressed to be governed by Spanish law, as to which we express no opinion) will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness and equitable principles of general applicability, and subject to possible judicial or regulatory actions giving effect to governmental actions or foreign laws affecting creditors’ rights, provided that we express no opinion as to the validity, legally binding effect or enforceability of any provision that permits holders to collect any portion of stated principal amount upon acceleration of the Securities to the extent determined to constitute unearned interest.
In connection with the opinion expressed above, we have assumed that the Company is validly existing as a corporation under the laws of the Kingdom of Spain. In addition, we have assumed that the Indentures and the Securities (collectively, the “Documents”) are valid, binding and enforceable agreements of each party thereto. We have also assumed that the execution, delivery and performance by each party to each Document to which it is a party (a) are within its corporate powers, (b) do not contravene, or constitute a default under, the bylaws or other constitutive documents of such party, (c) require no action by or in respect of, or filing with, any governmental body, agency or official and (d) do not contravene, or constitute a default under, any provision of applicable law, regulation or public policy or any judgment, injunction, order or decree or any agreement or other instrument binding upon such party.
We express no opinion as to (i) any provisions in the Indentures that purport to waive objections to venue, claims that a particular jurisdiction is an inconvenient forum or the like, (ii) whether a United States federal court would have subject-matter or personal jurisdiction over a controversy arising under the Indentures or the Securities or (iii) the effectiveness of any service of process made other than in accordance with applicable law.
We express no opinion as to (i) whether a New York State or United States federal court would render or enforce a judgment in a currency other than U.S. Dollars or enforce the exclusivity of the jurisdiction of the Spanish courts in the city of Madrid or waivers of holders and owners of Securities provided for in the Indentures and the Securities for the purposes described therein or (ii) the exchange rate that such a court would use in rendering a judgment in U.S. Dollars in respect of an obligation in any other currency. Further, we express no opinion as to the effect of fraudulent conveyance, fraudulent transfer or similar provisions of applicable law on the opinions expressed above.
We note that the choice-of-law provisions of the Indentures and the Securities, as applicable, are expressed to select Spanish law as the governing law for certain matters related to the Indentures and the Securities, including the authorization and execution of the Indentures, the authorization, issuance and execution of the Securities and certain provisions of the Indentures and the Securities related to the status and ranking of the Securities, the waiver of rights of set-off and the Spanish Bail-in Power (as such term is defined therein). We also note that the submission-to-jurisdiction provisions of the Indentures and the Securities, as applicable, are expressed to provide that the Spanish courts in the city of Madrid shall have exclusive jurisdiction in respect of any suit or proceeding arising out of or relating to the Securities or the Indentures arising out of, relating to or in connection with the exercise of the Spanish Bail-in Power by the Relevant Spanish Resolution Authority (as such terms are defined therein).
We also express no opinion with respect to Section 8.04 of the Base Indenture, the Section entitled “Substitution and Modification” of each series of Securities or any provision of the Indentures or the Securities relating to the Spanish Bail-in Power (as such term is defined therein).
| September 3, 2026 | 2 |
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Banco Bilbao Vizcaya Argentaria, S.A.
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We are members of the Bar of the State of New York and the foregoing opinion is limited to the laws of the State of New York and the federal laws of the United States of America, except that we express no opinion as to (i) any law, rule or regulation that is applicable to the Company or the Documents or the transactions contemplated thereby solely because such law, rule or regulation is part of a regulatory regime applicable to any party to any of the Documents or any of its affiliates due to the specific assets or business of such party or such affiliate or (ii) any law, rule or regulation relating to national security. Insofar as the foregoing opinion involves matters governed by the laws of the Kingdom of Spain, we have relied, without independent inquiry or investigation, on the opinion of J&A Garrigues, S.L.P., Spanish legal counsel for the Company, dated as of September 3, 2026, to be filed as an exhibit to a report on Form 6-K to be filed by the Company on the date hereof, and our opinion is subject to the qualifications, assumptions and limitations set forth therein.
We hereby consent to the filing of this opinion as an exhibit to a report on Form 6-K to be filed by the Company on the date hereof and its incorporation by reference into the Registration Statement and further consent to the reference to our name under the caption “Validity of the Securities” in the prospectus supplement which is a part of the Registration Statement. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Davis Polk & Wardwell LLP
| September 3, 2026 | 3 |
Exhibit 5.2
J&A Garrigues, S.L.P. Reg. Merc. Madrid: Tomo 17.456, Folio 186, Sección 8ª, Hoja M-190538. Domicilio social: Plaza de Colón, 2 - 28046 Madrid. NIF: B81709081
September 3, 2026
To:
Banco Bilbao Vizcaya Argentaria, S.A.
Calle Azul 4, 28050
Madrid, España
Re: Banco Bilbao Vizcaya Argentaria, S.A. issue of 4.977% Senior Non-Preferred Fixed Rate Notes due 2029 (the “SNP 2029 Notes”), 5.244% Senior Non-Preferred Fixed Rate Notes due 2031 (the “SNP 2031 Notes”) and Senior Non-Preferred Floating Rate Notes due 2029 (the “SNP Floating Rate Notes” and, jointly with the SNP 2029 Notes and the SNP 2031 Notes, the “Notes”)
We have acted as Spanish legal counsel for Banco Bilbao Vizcaya Argentaria, S.A. (hereinafter, “BBVA” or the “Issuer”) in connection with the issuance of the above referred to Notes pursuant to the Issuer’s registration statement on Form F-3 (File No. 333-289121) filed on July 31, 2025, with the United States Securities and Exchange Commission (the “Commission”) under the United States Securities Act of 1933 (the “Securities Act”), as amended (the “Registration Statement”).
| 1. | Scope |
| 1.1 | Documents examined |
For the purposes of issuing this legal opinion, we have reviewed and examined originals or copies, certified or otherwise identified to our satisfaction, of such records of the Issuer and such other documents and made such inquiries with officers of BBVA as we have deemed necessary as a basis for the opinions hereinafter expressed. In particular, we have reviewed and examined copies of the following documents:
| (i) | a copy of the executed senior non-preferred debt securities indenture dated as of July 31, 2025 between BBVA, as issuer, and The Bank of New York Mellon, acting (except with respect to its role as security registrar) through its London branch, as trustee (the “Trustee”), transfer agent, paying agent (the “Paying Agent”) and security registrar (the “Base Indenture”, as so amended and supplemented by the Supplemental Indentures -as defined below- with respect to each series of Notes, is referred to as the “Indenture”); |
| (ii) | a copy of the executed fifth supplemental indenture to the Base Indenture with respect to the SNP 2029 Notes (the “Fifth Supplemental Indenture”); |
| (iii) | a copy of the executed sixth supplemental indenture to the Base Indenture with respect to the SNP 2031 Notes (the “Sixth Supplemental Indenture”); |
| (iv) | a copy of the executed seventh supplemental indenture to the Base Indenture with respect to the SNP Floating Rate Notes (the “Seventh Supplemental Indenture”, and collectively the Fifth Supplemental Indenture, the Sixth Supplemental Indenture and the Seventh Supplemental Indenture, the “Supplemental Indentures” and each one, indistinctly, a “Supplemental Indenture”); |
| (v) | a copy of the executed underwriting agreement dated August 25, 2026, entered into among the Issuer and the underwriters named therein (jointly, the “Underwriters”) (the “Underwriting Agreement”); |
| (vi) | a copy of the executed pricing agreement dated August 25, 2026 (together with the Underwriting Agreement, the “Pricing Agreement” and the Pricing Agreement together with the Indenture, the “Agreements”); |
| (vii) | a copy of the Registration Statement and the related prospectus (including the documents incorporated by reference therein) dated July 31, 2025 (hereinafter referred to as the “Base Prospectus”); |
| (viii) | a copy of the preliminary prospectus supplement relating to the Notes filed with the Commission on August 25, 2026 (including the documents incorporated by reference therein) (the “Preliminary Prospectus Supplement”); |
| (ix) | a copy of the final prospectus supplement relating to the Notes filed with the Commission on August 26, 2026 (including the documents incorporated by reference therein) (the “Final Prospectus Supplement” and, together with the Base Prospectus, the “Prospectus”); |
| (x) | a copy of the free-writing prospectus set forth in Appendix B to the Pricing Agreement (the “Pricing Term Sheet” and together with the Base Prospectus and the Preliminary Prospectus Supplement, the “Disclosure Package”); |
| (xi) | a copy of the public deed (escritura pública) of issuance of the SNP 2029 Notes, granted on August 26, 2026, before the Notary Public of Bilbao Ms. Raquel Ruiz Torres, with number 2,646 of her public records (the “SNP 2029 Public Deed”) and its registration with the Commercial Registry of Vizcaya (Registro Mercantil de Vizcaya) on August 31, 2026 with record number 5,102 of the corporate sheet of the Issuer open at the said commercial registry; |
| (xii) | a copy of the public deed (escritura pública) of issuance of the SNP 2031 Notes, granted on August 26, 2026, before the Notary Public of Bilbao Ms. Raquel Ruiz Torres, with number 2,647 of her public records (the “SNP 2031 Public Deed”) and its registration with the Commercial Registry of Vizcaya (Registro Mercantil de Vizcaya) on August 31, 2026 with record number 5,103 of the corporate sheet of the Issuer open at the said commercial registry; |
| (xiii) | a copy of the public deed (escritura pública) of issuance of the SNP Floating Rate Notes, granted on August 26, 2026, before the Notary Public of Bilbao Ms. Raquel Ruiz Torres, with number 2,648 of her public records (the “SNP Floating Rate Public Deed” and, jointly with the SNP 2029 Public Deed and the SNP 2031 Public Deed, the “Public Deeds”) and its registration with the Commercial Registry of Vizcaya (Registro Mercantil de Vizcaya) on August 31, 2026 with record number 5,104 of the corporate sheet of the Issuer open at the said commercial registry; |
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| (xiv) | a copy of the executed Notes; |
| (xv) | a copy of the deed of incorporation of the Issuer granted on October 1, 1988, before the Notary Public of Bilbao Mr. José María Arriola Arana with the number 4,350 of his public records; |
| (xvi) | a copy of the merger deed granted on January 25, 2000, before the Notary Public of Bilbao Mr. José María Arriola y Arana, registered at the Commercial Registry of Vizcaya (Registro Mercantil de Vizcaya) in Volume 3858, Sheet 1, Entry 1035 and Page BI-17 A of the corporate sheet of the Issuer open at such commercial registry; |
| (xvii) | a copy of the by-laws of the Issuer (the “By-Laws”) available on the Issuer’s corporate webpage as of the date hereof (www.bbva.com); |
| (xviii) | a copy of the certification (certificación) issued by Mr. Domingo Armengol Calvo, the Secretary of the Board of Directors of the Issuer as of the date of such certificate, as to the resolutions passed by the Board of Directors of the Issuer on November 29, 2023; |
| (xix) | a copy of the public deed granted on November 21, 2022, before the Notary Public of Madrid Mr. Rodrigo Tena Arregui, under number 2,462 of his public records, under which BBVA granted general powers of attorney in favor of Mr. José María Caballero Cobacho, such deed being duly registered with the Commercial Registry of Vizcaya (Registro Mercantil de Vizcaya) on November 25, 2022, under Volume 6,084, Sheet 200, Entry 4,446, Page BI-17-A of the corporate sheet of the Issuer open at such commercial registry; |
| (xx) | a copy of the public deed granted on December 18, 2015, before the Notary Public of Madrid Mr. Rodrigo Tena Arregui, under number 3,357 of his public records, under which BBVA granted general powers of attorney in favor of Mr. Ignacio Echevarría Soriano, such deed being duly registered with the Commercial Registry of Vizcaya (Registro Mercantil de Vizcaya) on December 21, 2015, under Volume 5,539, Sheet 156, Entry 3,376, Page BI-17-A of the corporate sheet of the Issuer open at such commercial registry; |
| (xxi) | a copy of the public deed granted on October 10, 2023, before the Notary Public of Madrid Mr. Rodrigo Tena Arregui, under number 1,642 of his public records, under which BBVA granted powers of attorney in favor of Ms. María Luisa Gómez Bravo, such deed being duly registered with the Commercial Registry of Vizcaya (Registro Mercantil de Vizcaya) under Volume 6,177 Sheet 135, Entry 4,569, Page BI-17-A of the corporate sheet of the Issuer open at such commercial registry; |
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| (xxii) | an online excerpt (nota simple telemática) of the data of the Issuer issued by the Commercial Registry of Vizcaya (Registro Mercantil de Vizcaya) on the date hereof; and |
| (xxiii) | search results on the date hereof for the Issuer on the website of the registers of the Bank of Spain, on the CNMV website and on the online Public Register of Insolvency Decisions (www.publicidadconcursal.es). |
| 2. | Assumptions underlying the opinion |
On issuing this opinion we assume that:
| (i) | the documents we have consulted and reviewed to issue this opinion and the signatures, stamps and seals attached thereto are accurate, genuine, and complete and have not been modified or rendered null and void by any documents other than those provided by, or publicly available in, the consulted and reviewed sources; |
| (ii) | the copies of the documents provided to us in order to issue this opinion are true and complete copies of their originals; |
| (iii) | the signatures and seals appearing in the executed documents submitted to us are authentic; |
| (iv) | the Issuer has submitted to us all its relevant corporate records and proceedings, that such records and proceedings are truthful transcriptions of the resolutions passed, that they are validly executed, convened and held; |
| (v) | the By-Laws are in force on the date of this legal opinion; |
| (vi) | all information regarding matters of fact rendered to us by the Issuer as well as (when appropriate) by governmental officials or public registries, is accurate, complete, and up to date; and the information held at the Commercial Registry of Vizcaya (Registro Mercantil de Vizcaya) is assumed to be correct and valid pursuant to article 7 of the Commercial Registry Regulations (Reglamento del Registro Mercantil); |
| (vii) | there is nothing under any law (other than the laws of Spain) that affects our opinion; in particular, we assume all necessary compliance with applicable laws of the United States of America and the several States thereof; |
| (viii) | the Underwriters, the Paying Agent, the Trustee and any other party different from the Issuer are duly incorporated and validly exist under the laws of their country of incorporation at the time of execution of each Agreement they are party to have the corporate power and authority to enter into and perform as provided for under the Agreements and have taken all respective and necessary corporate action to authorize the execution, delivery and performance of the Agreements and the Notes they are party to, thereby becoming legal and valid obligations binding on the parties thereto (except for the Issuer) (and are not subject to avoidance by any person) under all applicable laws and in all applicable jurisdictions (other than the laws of the Kingdom of Spain (“Spain”)) and insofar as any of such Agreements and other documents is to be performed in any jurisdiction other than Spain, its performance will not be illegal or ineffective by virtue of the laws of that jurisdiction; |
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| (ix) | the individuals that execute the Agreements on behalf of the parties thereto (except for the Issuer), as the case may be, have the power, and have been authorized by all necessary corporate action, to execute and deliver the Agreements; |
| (x) | all deeds, instruments, agreements and other documents in relation to the matters contemplated by the Agreements are within the capacity and powers of, have been validly authorized, executed and delivered by the parties thereto (except for the Issuer); |
| (xi) | the absence of fraud and the presence of good faith on the part of the Issuer; |
| (xii) | the representations and warranties (other than any representations and warranties as to which we are expressing an opinion herein) given by each of the parties to the Agreements are in each case true, accurate and complete in all respects; |
| (xiii) | without having made any investigation, that any provisions of the Agreements which are governed by the laws of the State of New York or any other applicable laws other than the laws of Spain constitute legal, valid, binding and enforceable obligations of the respective parties thereto under such laws; |
| (xiv) | there are no contractual or similar restrictions binding on any person which would affect the conclusions of this opinion resulting from any agreement or arrangement not being a document specifically examined by us for the purposes of this opinion and there are no arrangements between any of the parties to the documents which modify or supersede any of the terms thereof (it being understood that we are not aware of the existence of any such agreement or arrangement); |
| (xv) | insofar as any obligation under the documents examined is to be performed in, or is otherwise subject to, any jurisdiction other than Spain, their performance will not be illegal or ineffective by virtue of any law of, or contrary to public policy in, that jurisdiction; and |
| (xvi) | the Registration Statement, the Base Prospectus, the Preliminary Prospectus Supplement, the Final Prospectus Supplement and the Pricing Term Sheet have each been filed with the Commission. |
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| 3. | Scope of the opinion |
This opinion refers solely and exclusively to legal matters and is issued solely with respect to Spanish law in force on the date hereof.
| 4. | Opinion |
| (i) | The Issuer is a limited liability company (sociedad anónima) duly incorporated and validly existing under the laws of Spain. The Issuer is not in liquidation, dissolution, insolvency or similar proceedings, and no liquidator, administrator or receiver or analogous person under the laws of Spain has been appointed over all or any of the Issuer’s assets. To the best of our knowledge and based on the information available at the online Public Register of Insolvency Decisions (www.publicidadconcursal.es), no notice of commencement of insolvency proceedings has been filed in respect of the Issuer. |
| (ii) | The Issuer has all requisite power, capacity and authority to conduct its businesses as described in the Disclosure Package and the Prospectus, to enter into and perform its obligations under the Agreements and the Public Deeds, to issue the Notes and to undertake and perform its obligations established thereunder. |
| (iii) | The Issuer has taken all necessary actions to approve and authorize the execution and delivery of the Agreements and the Public Deeds and the issuance of the Notes and the performance of its obligations thereunder. |
| (iv) | The execution and delivery of the Agreements, the Public Deeds and the Notes and the consummation of the transactions therein contemplated and compliance with the terms thereof do not conflict with or result in a breach of: |
| (a) | any provision of the By-Laws; |
| (b) | any present law or regulation in force in Spain; |
| (c) | any judicial or administrative order binding on the Issuer or its assets of which we are aware taking into account that no review or investigation on this subject has been performed; or |
| (d) | the principles of public policy (orden público) as these are construed in Spain as of the date of this opinion. |
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| 5. | Qualifications |
This opinion is subject to the following qualifications:
| (i) | We do not give any opinion with respect to any laws other than the laws of the Spanish legal system in force as of the present date. J&A Garrigues, S.L.P. acts as a Spanish law firm and does not deliver opinions in respect of any law other than Spanish law. Accordingly, this opinion is confined to Spanish law only as currently in force and as construed in Spain. |
| (ii) | Our opinion is subject to the effect of any applicable bankruptcy, temporary receivership, insolvency, reorganization, administration, moratorium or similar laws (including but not limited to eventual fraudulent transactions and the preference of creditors) and other Spanish law provisions generally affecting the rights of creditors (including the application of a claw-back period), as well as to any principles of public policy (orden público). |
It should be noted that according to Articles 12.3 (related to the non-application of foreign laws contrary to public policy) and 12.4 of Royal Decree of 24 July 1889 publishing the Civil Code (Real Decreto de 24 de julio de 1889 por el que se publica el Código Civil) (the “Spanish Civil Code”) (whereby fraud of law will be considered when a conflict of law rule is used for the purpose of avoiding the application of a mandatory Spanish law) and related legislation, the laws other than those of Spain would not be applied by Spanish courts if submission to such laws is deemed to have been made in order to avoid the application of mandatory Spanish laws, or to be contrary to public policy.
| (iii) | The term “enforceable” means that the obligations assumed by the relevant party under the Agreements, the Public Deeds and the Notes are of a type that the Spanish courts would enforce and it does not mean that those obligations will be necessarily enforced in all circumstances in accordance with their terms. |
| a. | Enforceability may be qualified by having regard to the general principle of good faith. In connection to this, the Spanish courts may not accept the enforcement of a contractual obligation if they hold that a certain right has not been exercised in good faith or has been exercised as an abuse of the law (abuso de derecho). Likewise, in conformity with Article 6.4 of the Spanish Civil Code, acts performed pursuant to the wording of a provision and pursuing a result prohibited by or contrary to the law will be deemed to have been performed in circumvention of law (fraude de ley) and will not prevent the application of the provision sought to be avoided. Accordingly, Spanish courts may refuse to uphold the termination of an agreement based on an unreasonable, inequitable or bad faith interpretation of one of its events of default. |
| b. | Spanish law precludes an agreement from being terminated based on the breach of obligations, undertakings or covenants which are merely ancillary or supplementary to the main undertakings of the relevant agreements and allows Spanish courts not to enforce any such termination. |
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| c. | Spanish law rules out any contractual obligations whose validity is left at the discretion of one of the contracting parties. Therefore, Spanish courts may refuse to uphold and enforce terms and conditions of an agreement giving discretionary authority to one of the contracting parties. |
| d. | A Spanish court may issue an award of damages where specific performance is deemed impracticable. |
| e. | Spanish law limits the enforcement of fixed-penalty provisions contained in agreements, allowing Spanish courts to reduce the amount of the penalty payable when the main obligation has been partially or irregularly performed by the obligor. |
| f. | The exercise of the rights arising from the relevant document and the enforcement thereof is limited by the applicable statute of limitations. |
| g. | A counterparty can oppose to the enforcement of any right in rem before the relevant courts and obtain a suspension, a different enforcement procedure to the ones agreed upon in the relevant agreement or even a dismissal of the enforcement action. |
| h. | In order for certain legal rights to be enforced in Spain, certain formalities must be met (e.g. notarization of the document providing for such legal rights and the apostille of the 1961 Hague Convention). |
| i. | A certified translation into Spanish by a sworn translator of any document not executed in Spanish will be required to make such document admissible in evidence in Spain. |
| j. | Private documents provide full evidence in trial of the terms set forth therein provided that their authenticity is not contested by the party which may be harmed by them. Where the authenticity of a private document is contested, the party submitting such document may seek an expert’s authentication of handwriting or any other means of proof. |
| k. | In accordance with the general principles of Law 1/2000, of January 7, on Civil Procedure (Ley 1/2000, de 7 de enero, de Enjuiciamiento Civil), the rules of evidence in any judicial proceeding cannot be modified by agreement of the parties. Accordingly, provisions in an agreement in which determinations by a party are to be deemed to be conclusive may not be upheld by a Spanish court. A determination, designation, calculation or certificate of one party as to any matter provided in an agreement might, in certain circumstances, be held by a Spanish court not to be final, conclusive and binding, if it could be shown to have an unreasonable or arbitrary basis or in the event of manifest error despite any provision in the relevant agreement to the contrary. |
| (iv) | Where obligations are to be performed in a jurisdiction outside Spain, they may not be enforceable in Spain to the extent that performance would be illegal under the laws of the applicable jurisdiction. |
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| (v) | According to Article 3.2 of Law 29/2015, the Spanish Government may establish that the Spanish authorities will not cooperate with another state's authorities when there has been a reiterated refusal of cooperation or there exists a legal prohibition precluding such cooperation by such other state's authorities. |
| (vi) | Spanish law does not allow leaving the validity and performance of contractual obligations at the discretion of one of the contracting parties. Therefore, a Spanish court may not uphold or enforce terms and conditions in the Agreements, the Notes and the Public Deeds giving discretionary authority to one of the parties. |
| (vii) | Except where otherwise expressly stated in this opinion, we have not made any independent verification of any factual matters disclosed to us in the course of our examination for the purposes of rendering this opinion. We have relied as to factual matters on the documents and the information furnished to us by BBVA. It should be understood that we have not been responsible for investigating or verifying the accuracy of facts or statements of foreign law, or the reasonableness of any statements of opinion, expectation, intention or belief contained in or represented by or in connection to the Issuer in the Registration Statement and the Disclosure Package insofar as they are not related to Spanish law or taxation or that no material facts have been omitted therefrom or the existence of any omission to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, insofar as they are not related to Spanish law or taxation. |
| (viii) | No opinion is expressed as to the financial or economic ability of the Issuer or out of or in connection with its obligations under the Notes and/or the Agreements. |
| (ix) | A Spanish court might not enforce any provision of the Agreements, the Public Deeds and/or the Notes which requires any party thereto to pay any amounts on the grounds that such provision is a penalty within the meaning of Articles 1,152 et seq. of the Spanish Civil Code, as the court could consider said amounts evidently excessive as a pre-estimate of damages, in case of partial or non-regular compliance of the debtor. In this event, the Court may reduce the amount of damages, pursuant to Article 1,154 of the Spanish Civil Code. |
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| (x) | Spanish courts have exclusive jurisdiction, inter alia, with respect to matters relating to the incorporation, validity, nullity and dissolution of companies or legal entities domiciled in the Spanish territory, and to any decisions and resolutions of their corporate bodies, as well as with respect to the validity or nullity of any recordings with a Spanish register, and the recognition and enforcement in Spain of any judgment or arbitration award obtained in a foreign country. |
| (xi) | Claims may be or become subject to defenses of set-off or counter-claim. |
| (xii) | A waiver of all defenses to any proceedings may not be enforceable. |
| (xiii) | The ability of terminating an agreement is subject to judicial review and the Spanish courts may provide for a different remedy for the non-defaulting party. |
| (xiv) | Under the Royal Legislative Decree 1/2020 of May 5, which approves the recast text of the insolvency law (Real Decreto Legislativo 1/2020, de 5 de mayo, por el que se aprueba el texto refundido de la Ley Concursal), as amended from time to time, the declaration of insolvency of a debtor does not by itself affect the effectiveness of contracts with reciprocal outstanding obligations. Any outstanding obligations arising from said contracts, which the insolvency judge does not terminate, shall be paid from the insolvency estate (masa activa). |
| (xv) | Contract provisions that grant a party the right to terminate a contract in the event of insolvency are void. |
| (xvi) | Enforcement of clauses providing for specific performance of an obligation may be replaced by Spanish courts with a monetary compensation. |
| (xvii) | The fact that the powers of the Trustee to act on behalf of the holders result from the Indenture may cause certain delays in the process of enforcement of the Notes before the Spanish courts. Spain has not ratified the 1985 Hague Convention regarding trusts and their recognition as legal institutions and, therefore, there is a risk that (i) the Trustee may have to be assigned all of the rights of the holders in order to claim in Spain the entirety of the amounts due on their behalf or (ii) the Spanish court may consider the powers of attorney of the Trustee under the trust instrument are not sufficiently evidenced to the court and may require additional evidence of the empowerment, such as a sworn translation of the Indenture or other documents related to the granting of powers under New York law, which may result in a delay of the enforcement process. |
| (xviii) | Some of the legal concepts are described in English terms and not in their original terms. Such concepts may not be exactly similar to the concepts described in English terms. This opinion may, therefore, only be relied upon the express condition that any issues of interpretation of Spanish legal concepts arising thereunder will be governed by Spanish law. |
Without prejudice to the foregoing, for the purposes of the opinions in 4 above, we have considered that the terms (i) “validly issued” means that (x) the Issuer is validly existing under the laws of Spain, and the Notes are duly authorized; (y) the actions required by Spanish corporation law to approve the issuance of the Notes have been taken; and (z) the Notes have been or will be issued in compliance with the requirements of Spanish law, the By-Laws and the resolutions approving the issuance of the Notes; and (ii) “duly authorized” means that the Issuer, under applicable law and the By-Laws, has the power to issue the Notes and has taken all corporate actions necessary to create that power.
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This opinion is being furnished by us, as Spanish counsel to the Issuer, to you as a supporting document in connection with the above referenced Registration Statement.
We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the references to us under the caption “Validity of the Securities” contained in the Prospectus Supplement and in the Prospectus included in the Registration Statement. By so consenting, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
Yours faithfully,
/s/ J&A Garrigues S.L.P.
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