BBVA International Preferred, S.A. Unipersonal Non-cumulative Guaranteed Preferred Securities Irrevocably and Unconditionally Guaranteed, on a Subordinated Basis, by Banco Bilbao Vizcaya Argentaria, S.A. Underwriting Agreement
Exhibit 1.2
BBVA International Preferred, S.A. Unipersonal
Non-cumulative Guaranteed Preferred Securities
Irrevocably and Unconditionally Guaranteed, on a Subordinated Basis, by
Irrevocably and Unconditionally Guaranteed, on a Subordinated Basis, by
[Date]
To the Representatives named from time to time in the
applicable Pricing Agreement hereinafter described.
applicable Pricing Agreement hereinafter described.
Ladies and Gentlemen:
From time to time BBVA International Preferred, S.A. Unipersonal (the “Company”) and Banco
Bilbao Vizcaya Argentaria, S.A. (the “Guarantor”), each a sociedad anónima incorporated under the
laws of the Kingdom of Spain, propose 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) certain of its preferred securities (the “Securities”) specified
in Schedule II to such Pricing Agreement (with respect to such Pricing Agreement, the “Designated
Securities”). Payment of distributions (remuneración) on the Securities, as well as payment of the
redemption price for the Securities upon any redemption thereof and the liquidation distribution on
the Securities upon the dissolution, winding up or liquidation of the Company, will be irrevocably
and unconditionally guaranteed, on a subordinated basis, by the Guarantor (the “Guarantees”), as
described in the Pricing Prospectus (as defined below).
The terms and rights of any particular issuance of Designated Securities and the related
Guarantees shall be as specified in the Pricing Agreement relating thereto. In addition, the
Pricing Agreement may contain, if appropriate, the terms and the conditions upon which the
Designated Securities are to be offered or sold outside the United States and any provisions
relating thereto. The Designated Securities are not to be offered, distributed or sold in Spain in
the primary market and no publicity of any kind relating to the Designated Securities is to be made
in Spain.
In this Agreement and in the 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;
“Base Prospectus” means the prospectus included in the Registration Statement relating to the
Securities and the Guarantees, 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;
“Commission” means the United States Securities and Exchange Commission;
“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;
“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 the Designated
Securities, prepared and filed pursuant to Section 5(a) hereof, and set forth as an appendix to the
applicable Pricing Agreement;
“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
and the related Guarantees to be filed pursuant to Rule 424 under the Act;
“Registration Statement” means the registration statement on Form F-3 (File No. 333-144784),
including the Prospectus, relating to the Securities and the Guarantees filed with the Commission,
as amended to the date of the applicable Pricing Agreement;
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“Significant Subsidiaries” shall mean Compass Bancshares, Inc. and Grupo Financiero BBVA
Bancomer, S.A. de C.V.; 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 may be made from time to time by the Company to
the Underwriters of such Securities, for whom the firms designated as representatives of the
Underwriters of such 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 Underwriting Agreement
shall not be construed as an obligation of the Company to sell any of the Securities or as an
obligation of any of the Underwriters to purchase the 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
Securities and the obligation of any of the Underwriters to purchase any of the Securities shall be
evidenced by the applicable Pricing Agreement with respect to the Designated Securities specified
therein. Each Pricing Agreement shall specify the liquidation preference 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 number of such Designated
Securities to be purchased 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 and the related Guarantees. A Pricing
Agreement shall be in the form of an executed writing (which may be in counterparts), and may be
evidenced by an exchange of telegraphic communications or any other rapid transmission device
designed to produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and each Pricing Agreement shall be several and not joint.
2. Each of the Company and the Guarantor jointly and severally represents and warrants to, and
agrees with, each of the Underwriters that:
(a) The Company and the Guarantor meet 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 and the related Guarantees (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 and the
related Guarantees will conform, in all material respects to
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the requirements of the 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 any statements or omissions made in
reliance upon and in conformity with information furnished in writing to the Company or the
Guarantor 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;
(d) The Pricing Prospectus, as supplemented by 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 (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; and each Issuer Free Writing Prospectus does not
conflict with the information contained in the Registration Statement, the Prospectus
Supplement or the Prospectus, and each Issuer Free Writing Prospectus, as supplemented by and
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 or the Guarantor 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 an untrue
statement of a 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
5
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 an
untrue statement of a 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
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 or the Guarantor by or on behalf of any Underwriter of Designated Securities by
the Representatives expressly for use in such documents;
(f) Each of the Company, the Guarantor and each of the Significant Subsidiaries has been
duly incorporated and is validly existing and in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate and other) to own its
properties and conduct its business as described in the Registration Statement and the Pricing
Prospectus;
(g) Neither the Company, the Guarantor 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 Guarantor and the
Guarantor’s subsidiaries, taken as a whole (“Material Adverse Effect”);
(h) The issue and sale of the Designated Securities and the execution and delivery by the
Company and the Guarantor of, and the performance by the Company and the Guarantor of their
respective obligations under, as applicable, all of the provisions of the Designated
Securities, the related Guarantees and the Pricing Agreement (including the provisions of this
Agreement), and compliance with the terms and provisions thereof will not result in a breach
or violation of any of the terms and 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 or the Guarantor pursuant to, the charter or by-laws of
the Company or the Guarantor, any statute, rule, regulation or order of any governmental
agency or body or any court, domestic or foreign, having jurisdiction over the Company or the
Guarantor or any of their respective properties, or any agreement or instrument to which the
Company or the Guarantor is a party or by which the Company or the Guarantor is bound or to
which any of the properties of the Company or the Guarantor is subject; and
6
the Company has
full power and authority (corporate and other) to authorize, issue and sell the Designated
Securities, and the Guarantor has full power and authority (corporate and other) to authorize
and issue on a subordinated basis the related Guarantees, in each case as contemplated by the
Pricing Agreement (including the provisions of this Agreement);
(i) Except as disclosed in the Pricing Prospectus, since the end of the period covered by
the latest 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
Guarantor and the Guarantor’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 Guarantor and the Guarantor’s subsidiaries, taken as a whole, that has resulted, or is
likely to result, in a Material Adverse Effect;
(j) Each of the Company and the Guarantor has implemented and uses procedures that it
reasonably believes are required by applicable regulations, and, in the case of the Guarantor,
also by the Bank of Spain, to monitor, review, calculate, assess and maintain the sufficiency
of its and, in the case of the Guarantor, its consolidated subsidiaries’ reserves in light of
all the circumstances; each of the Company and the Guarantor calculates, reviews, assesses and
estimates its, and, in the case of the Guarantor, its regulated consolidated subsidiaries’,
regulatory capital requirements, and each of the Company and the Guarantor 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;
(k) The applicable Pricing Agreement (including the provisions of this Agreement) has
been duly authorized, executed and delivered by each of the Company and the Guarantor;
(l) The Company believes that it was not a passive foreign investment company (a “PFIC”)
within the meaning of Section 1297 of the U.S. Internal Revenue Code of 1986, as amended, for
its most recent taxable year and does not expect to be considered a PFIC in the foreseeable
future;
(m) 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 and the Guarantor required for the issue and
sale of the Designated Securities, for the performance by the Guarantor of its obligations
under the related Guarantees, and for the execution and
delivery by the Company and the Guarantor of the applicable Pricing Agreement to be duly
and validly authorized, have been obtained or made and are in full force and effect;
7
(n) The Designated Securities have been duly authorized, and, when issued, delivered and
paid for pursuant to a Pricing Agreement, the Designated Securities will have been duly
executed, authenticated, issued and delivered by the Company and will constitute valid and
binding obligations of the Company enforceable 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 and to general
equity principles;
(o) The Guarantees related to the Designated Securities have been duly authorized, and,
when Designated Securities of the Company are issued, delivered and paid for pursuant to this
Agreement and the Pricing Agreement with respect to such Designated Securities, the Guarantees
will have been duly endorsed thereon and will constitute valid and legally binding obligations
of the Guarantor with respect to such Designated Securities, enforceable in accordance with
their terms, subject as to enforcement to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability relating to or affecting
creditors’ rights and to general equity principles;
(p) Neither the Company nor the Guarantor is, and after giving effect to the offering and
sale of the Designated Securities and the application of the proceeds thereof, will be,
required to register as an “investment company” as such term is defined in the U.S. Investment
Company Act of 1940, as amended;
(q) 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
the Kingdom of Spain or any political subdivision or taxing authority thereof or therein in
connection with (i) the issuance, sale and delivery by the Company of the Designated
Securities or by the Guarantor of the related Guarantees to or for the respective accounts of
the Underwriters or (ii) the sale and delivery by the Underwriters of the Designated
Securities and the related Guarantees in accordance with the terms of this Agreement and in
the manner contemplated by the Pricing Prospectus and the Registration Statement;
(r) The statements set forth in the Pricing Prospectus and the Registration Statement
under the caption “Description of the Preferred Securities” and “Description of the Preferred
Securities Guarantees” insofar as they purport to constitute a summary of the terms of the
Designated Securities and the related Guarantees, respectively, and under the caption “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;
(s) Neither the Company, the Guarantor, any of the Significant Subsidiaries nor, to the
knowledge of the Company or the Guarantor, any director, officer, agent or
8
employee of the Company, the Guarantor or any of the Significant Subsidiaries is aware of
or has taken any action, directly or indirectly, that would result in a violation by such
persons of the United States Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder (the “FCPA”), and the Company, the Guarantor, each of the
Significant Subsidiaries and, to the knowledge of the Company and the Guarantor, their
respective affiliates have conducted their businesses in compliance with the FCPA and have
instituted and maintain policies and procedures designed to ensure continued compliance
therewith;
(t) Except as described in the Prospectus, the Company, the Guarantor and each of the
Significant Subsidiaries maintain a system of controls and procedures reasonably designed to
ensure that the operations of the Company, the Guarantor and each of the Significant
Subsidiaries are conducted in compliance in all material respects with applicable financial
recordkeeping and reporting requirements of the European Union, the Kingdom of Spain, the
United States and each State thereof and the United Mexican States and the money laundering
statutes and the rules and regulations thereunder;
(u) Neither the Company, the Guarantor nor any of the Guarantor’s subsidiaries is
currently subject to any sanctions administered by the Office of Foreign Assets Control of the
U.S. Treasury Department (“OFAC”); and neither the Company nor the Guarantor will use the
proceeds of the offering, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity, for the purpose of financing the
activities of any person currently subject to any U.S. sanctions administered by OFAC;
(v) The Company, the Guarantor and each of the Guarantor’s 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 each of the Company’s, the Guarantor’s and each of the Guarantor’s
subsidiaries’ internal controls over financial reporting are effective and neither the
Company, nor the Guarantor nor any of its or their subsidiaries is aware of any material
weakness in its or their internal controls over financial reporting;
(w) Each of the Company, the Guarantor and each of the Guarantor’s subsidiaries maintain
“disclosure controls and procedures” (as such term is defined in Rule 13a-15(e) under the
Exchange Act);
(x) Except as set forth in the Pricing Disclosure Package and the Prospectus (in each
case, exclusive of any amendment or supplement thereto), no litigation,
9
prosecution,
investigation, arbitration or administrative proceeding involving the Company, the Guarantor,
any of the Guarantor’s subsidiaries or any of their respective properties is pending, or, to
the knowledge of the Company or the Guarantor, threatened, except to the
extent that any such litigation, prosecution, investigation, arbitration or proceeding,
if resolved unfavorably to the Company, the Guarantor, any of the Guarantor’s subsidiaries or
any of their respective properties, would not, individually or in the aggregate, have a
Material Adverse Effect; and
(y) Deloitte, S.L., who have certified certain financial statements of the Guarantor, are
independent public accountants in respect of the Guarantor and the Company as required by the
Act and the applicable rules and regulations of the Commission.
3. Upon the execution of the applicable Pricing Agreement and authorization by the
Representatives of the release of the 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. Designated Securities to be purchased 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 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.
5. Each of the Company and the Guarantor jointly and severally 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 they deem 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
10
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 the Designated Securities which shall be reasonably
disapproved by the Representatives for such 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 Company or by the Guarantor, as the case may be, 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, of the receipt of any comments from the Commission in respect of the Registration
Statement or any prospectus relating to the Designated Securities and the related Guarantees,
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, 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 and the related Guarantees, of the
suspension of the qualification of the Designated Securities or the related Guarantees for
offering or sale in any jurisdiction, 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; 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 and the related Guarantees or suspending any such qualification, to promptly use
its best efforts to obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as the Representatives may reasonably
request, after consultation with the Company and the Guarantor, to qualify such 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 and the Guarantor, subsequent to the date thereof; and provided further that in
connection therewith neither the Company nor the Guarantor shall 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
11
the Act) is
required under the Act at any time in connection with the offering or sale of the 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 an 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 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) To make generally available to its security holders as soon as practicable following
the issuance of any Designated Securities, but in any event not later than eighteen months
after the effective date of the Registration Statement (as defined in Rule 158(c) under the
Act), an earning statement of the Guarantor and the Guarantor’s other subsidiaries (which need
not be audited) complying with Section 11(a) of the Act and the rules and regulations of the
Commission thereunder (including, at the option of the Guarantor, Rule 158 under the Act);
(e) 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 Securities by
the Underwriters (as determined by the Representatives), but not more than 30 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(s) specified in the
applicable Pricing Agreement, any securities issued or guaranteed by the Company or the
Guarantor 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;
(f) To use their best efforts to effect, at the Time of Delivery, the authorization of
the Designated Securities for listing on the New York Stock Exchange, Inc., or any other stock
exchange on which the Prospectus specifies that the Designated Securities may be listed,
subject only to official notice of issuance, and to permit the Designated Securities to be
eligible, at the Time of Delivery, for clearance and settlement through the facilities of The
Depository Trust Company (“DTC”), or any other clearance and settlement entity through which
the Prospectus specifies that clearance and settlement of the Designated Securities may be
made;
(g) Without the prior written consent of the Representatives, none of the Company, the
Guarantor, their respective affiliates or any person acting on its or their
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behalf has given
or will give to any prospective purchaser of the Designated Securities any written information
concerning the offering of the 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;
(h) For so long as (i) the Designated Securities are listed on an organized market and
(ii) Law 13/1985 of 25 May, on Investment Ratios, Own Funds and Information Obligations of
Financial Intermediaries (Ley 13/1985, 00 xx xxxx, xx xxxxxxxxxxxx xx inversión, recursos
propios y obligaciones de información de los intermediarios financieros), as amended by Law
19/2003 of 4 July, on Foreign Capital Transfers and Financial Transactions and on Certain
Measures to Prevent Money Laundering (Ley
00/0000, xx 0 Xxxxx, xxxxx xx Xxxxxxx Jurídico de los Movimientos de Capitales y de las
Transacciones Económicas con el Exterior y sobre determinadas medidas del Blanqueo de
Capitales) and Law 23/2005 of November 18, on Certain Tax Measures to Promote Productivity
(Ley 23/2005, de 18 de noviembre, de reformas en materia tributaria para el impulso a la
productividad) (“Law 13/1985”) has the effect that any payments in respect of the Designated
Securities or the related Guarantees made by the Company or the Guarantor to a non-Spanish
resident holder who does not operate with respect to the Designated Securities or the related
Guarantees through a permanent establishment in the Kingdom of Spain are exempt from taxation
in the Kingdom of Spain, neither the Company nor the Guarantor shall withhold tax on such
payments, except that, in the case of payments made to holders who fail to comply with the tax
identification procedures established by the Company and the Guarantor from time to time, such
tax at the rate applicable at the time of such payment shall be withheld;
(i) For so long as the Designated Securities are outstanding, the Guarantor will maintain
100% direct or indirect ownership of the share capital of the Company;
(j) The Company and the Guarantor will use reasonable best efforts to operate the Company
in such a manner that it does not become a PFIC within the meaning of Section 1297 of the
Code; and
(k) If the Company or the Guarantor maintains a paying agent in respect of the Designated
Securities or the related Guarantees in a European Union member state, it will ensure that it
maintains a paying agent in a European Union member state that will not be obliged to withhold
or deduct tax pursuant to the European Council Directive 2003/48/EC or any other directive
implementing the conclusions of the ECOFIN Council meeting of 26/27 November 2000 (each, a
“Directive”) or any law implementing or complying with, or introduced in order to conform to,
such Directive.
6. (a) Each of the Company and the Guarantor jointly and severally 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 the Designated
13
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 or the Guarantor 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.
(b) Each Underwriter represents and agrees that, without the prior written consent of the
Company and the Guarantor and the other Underwriters, it has not made and will not make any
offer relating to the 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 or the Guarantor pursuant to Rule 433 under the
Act; provided, however, that each of the Company and the Guarantor 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 or the Guarantor pursuant to Rule 433 under the Act that contains only
(A) information describing the preliminary terms of the Designated Securities or their
offering which, in their final form, 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 the 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 an electronic road show related to the Designated Securities and approved in writing
as such by the Company or the Guarantor.
(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, the Guarantor and the Underwriters (including the
Final Term Sheet) will be listed in an appendix to the applicable Pricing Agreement.
7. Each of the Company and the Guarantor jointly and severally covenants and agrees with the
several Underwriters that the Company or the Guarantor will pay or cause to be paid all those
costs, expenses and disbursements relating or incident to the offering, purchase, sale and delivery
of Designated Securities as are set forth in the applicable Pricing Agreement.
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 that
all representations and warranties of the Company and the Guarantor 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 each of the Company and the Guarantor shall have
performed all of its respective obligations hereunder theretofore to be performed, and the
following additional conditions:
14
(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 or the Guarantor,
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 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
Guarantees, 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 and the Guarantor 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 and the Guarantor 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 and the Guarantor 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 the Designated Securities,
each firm of independent accountants that has certified financial statements of the Guarantor
included or incorporated by reference in the Registration Statement shall have furnished to
the Underwriters and the directors of the Guarantor a letter or letters, dated each such date,
in form and substance satisfactory to the Representatives, together with signed or reproduced
copies of such letter for each of the other Underwriters,
15
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;
(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 business or properties of the Guarantor and the
Guarantor’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 conclude, in their judgment, impairs the investment quality of the
Designated Securities so as to make it impracticable or inadvisable to proceed with the public
offering or the delivery of the Designated Securities as contemplated by the Prospectus, and
at or after the Applicable Time no rating of the Company’s securities or the Guarantor’s
securities shall have been lowered by Xxxxx’x Investor Services, Inc. (“Moody’s”), or Standard
and Poor’s Ratings Services, a division of the XxXxxx-Xxxx Companies, Inc. (“S&P”), and
neither Moody’s nor S&P shall have
publicly announced that it has under surveillance or review with possible negative
implications any rating of the Company’s securities or the Guarantor’s securities;
(g) At or 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 or the
Guarantor by the Spanish Comisión Nacional del Xxxxxxx de Valores, the Commission, any Spanish
Stock Exchange (which term shall include the Madrid, Barcelona, Valencia and Bilbao Stock
Exchanges), the New York Stock Exchange, Inc. 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, Inc., 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 banking
moratorium 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 the Kingdom of Spain; (iv) a change or development involving a prospective change
in taxation in Spain affecting [the transfer of] the 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 paragraphs (i) through (vi) above is in the judgment of
the Representatives, after consultation with the Guarantor, so material and adverse as to make
it impracticable or inadvisable to proceed with the public offering or the delivery of the
Designated Securities on the terms and in the manner contemplated in the Prospectus as amended
or supplemented relating to the Designated Securities and the related Guarantees;
16
(h) Each of the Company and the Guarantor shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of prospectuses on the Business Day next
succeeding the date of the applicable Pricing Agreement;
(i) At the Time of Delivery, the Designated Securities shall have been duly authorized
for listing on the New York Stock Exchange, Inc., or any other stock exchange on which the
Prospectus specifies that the Designated Securities may be listed, subject only to official
notice of issuance, and 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 the Designated Securities may be made;
(j) Each of the Company and the Guarantor 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 each of the Company and the Guarantor substantially similar in
form and substance to Schedules 8(j)(1) and 8(j)(2) attached hereto, as to the accuracy of the
representations and warranties of the Company and the Guarantor herein at and as of such Time
of Delivery, as to the performance each of the Company and the Guarantor 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;
(k) The notarial deed relating to the issuance of the Designated Securities and the
related Guarantees shall have been duly granted and registered with the Commercial Registry of
Vizcaya and the publication in the Spanish Commercial Registry Official Gazette (Boletín
Oficial del Registro Mercantil) regarding the issue of the Designated Securities shall have
been duly made; and
(l) 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 and the Guarantor 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 and 17 hereof and any related provisions of the applicable Pricing Agreement
shall survive any such termination and remain in full force and effect.
9. (a) The Company and the Guarantor jointly and severally agree to indemnify and hold
harmless each Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter 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 an untrue statement or alleged untrue statement of a material fact contained in
any preliminary prospectus, any preliminary prospectus supplement, the Registration Statement
or the Prospectus, as amended or supplemented, the Pricing Prospectus, any Issuer Free Writing
Prospectus or any “issuer information”
17
filed or required to be filed pursuant to Rule 433(d)
under the Act, in each case, relating to the Designated Securities and the related Guarantees,
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 for any
legal or other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are incurred; provided,
however, that the Company and the Guarantor shall not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an 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 or any Issuer Free Writing
Prospectus, in each case, relating to the Designated Securities and the related Guarantees, or
any such amendment or supplement in reliance upon and in conformity with written information
furnished to the Company or the Guarantor 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 will indemnify and hold harmless the
Company and the Guarantor against any losses, claims, damages or liabilities to which the
Company or the Guarantor, as the case may be, 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 an untrue statement
or alleged untrue statement of a material fact contained in any preliminary prospectus, any
preliminary prospectus supplement, the Registration Statement or the Prospectus, as amended or
supplemented, the Pricing Prospectus or any Issuer Free Writing Prospectus, in each case,
relating to the Designated Securities and the related Guarantees, 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 only with reference to written information
relating to such Underwriter furnished to the Company or the Guarantor by or on behalf of such
Underwriter through the Representatives specifically for inclusion in the documents referred
to in the foregoing indemnity; and will reimburse the Company and the Guarantor for any legal
or other expenses reasonably incurred by the Company or the Guarantor in connection with
investigating or defending any such action or claim as such expenses are incurred. The
Company and the Guarantor acknowledge and agree that the Underwriter Information constitutes
the only information furnished in writing by or on behalf of the several Underwriters for
inclusion in the Pricing Prospectus, the Prospectus or any Issuer Free Writing Prospectus.
(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
18
subsection, notify the
indemnifying party in writing of the commencement thereof; but the omission so to 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 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 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 its 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, 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, the indemnifying party shall be liable for any settlement of any
proceeding effected without its written consent if (i) such settlement is entered into
19
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.
(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) 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 and the Guarantor 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 and the Guarantor 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), as well as any other relevant equitable considerations (including, without
limitation, any failure by a party, promptly after its receipt of notice of the commencement
of any action in respect of which contribution may be sought under this subsection (d), to
notify the other party in writing of the commencement of such action). The relative benefits
received by the Company and the Guarantor on the one hand and such Underwriters on the other
shall be deemed to be in the same proportion as the total net proceeds from such offering
(before deducting expenses) received by the
Company and the Guarantor 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 or the Guarantor 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, the Guarantor 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
20
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 applicable 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 Securities and
not joint.
(e) The joint and several obligations of the Company and the Guarantor under this Section
9 shall be in addition to any liability which the Company and the Guarantor may otherwise have
and shall extend, upon the same terms and conditions, to each officer and director 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 and director of the Company or the Guarantor and to each
person, if any, who controls the Company or the Guarantor 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 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 and the Guarantor, 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 and the Guarantor 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 and the Guarantor that they have so arranged for the purchase of such
Designated Securities, or the Company and the Guarantor notify 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 each of the Company
and the Guarantor 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
21
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 number of such Designated Securities which
remains unpurchased does not exceed one-eleventh of the aggregate number of the Designated
Securities, then the Company shall have the right to require each non-defaulting Underwriter
to purchase the number 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 number 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.
(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 number of Designated Securities which
remains unpurchased exceeds one-eleventh of the aggregate number of the 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
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, the Company or the Guarantor, except for the expenses to be borne by the
Guarantor and 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.
11. The respective indemnities, agreements, representations, warranties and other statements
of the Company, the Guarantor 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, the Guarantor
or any officer or director or controlling person of the Underwriters, the Company or the Guarantor,
and shall survive delivery of and payment for the Securities.
12. If any Pricing Agreement shall be terminated pursuant to Section 10 hereof, the Company
and the Guarantor shall not then be under any liability to any Underwriter with respect to the
Designated Securities covered by such Pricing Agreement except that Sections 7, 9, 11, 14, 15, 16
and 17 hereof and any related provisions of the applicable Pricing Agreement shall survive any such
termination and remain in full force and effect.
22
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, telex or facsimile transmission to the address of
the Representatives as set forth in the applicable Pricing Agreement; and, if to the Company or the
Guarantor, shall be delivered or sent by mail, telex or facsimile transmission to BBVA, Castellana
81, 28046, Madrid, Attention: Xxxxx Ma Xxxxxxx Xxxx and Xxx Xxxxxxxxx Xxxxxxxx;
Facsimile No. x00 00 000 0000; provided, however, that any notice to an Underwriter pursuant to
Section 9(c) hereof shall be delivered or sent by mail, telex or facsimile transmission to such
Underwriter at its address set forth in its Underwriters’ Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company and the Guarantor by the
Representatives upon request. Any such statements, requests, notices or agreements shall take
effect upon receipt thereof.
14. This Agreement and each Pricing Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, the Guarantor and, to the extent provided in Sections 9
and 11 hereof, the officers and directors of the Company or the Guarantor and each person who
controls the Company, the Guarantor 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 Securities from
any Underwriter shall be deemed a successor or assign by reason merely of such purchase.
15. Each of the Company and the Guarantor 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 or the Guarantor in connection with the offering of the
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 and the Guarantor with respect to the offering of the 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, the Guarantor or any other person. Additionally, each
Underwriter is not advising the Company, the Guarantor or any other person as to any legal, tax,
investment, accounting or regulatory matters in any jurisdiction. The Company and the Guarantor
shall consult with their own advisors concerning such matters and shall be responsible for making
their own independent investigation and appraisal of such matters, and no Underwriter shall have
any responsibility or liability to the Company, the Guarantor or any other person with respect to
such matters. Any review by an Underwriter of the Company, the Guarantor, the transactions
contemplated by this Agreement or any other due diligence review by such Underwriter in connection
with such transactions will be performed
23
solely for the benefit of such Underwriter and shall not
be on behalf of the Company, the Guarantor or any other person.
16. Each of the Company and the Guarantor jointly and severally irrevocably agrees that any
suit, action or proceeding against the Company or the Guarantor brought by 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. Each of the Company and the Guarantor 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 each of
the Company and the Guarantor 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. Each of the Company and the Guarantor represents and
warrants that the Authorized Agent has agreed to act as said agent for service of process, and each
of the Company and the Guarantor 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 or the Guarantor, as the case
may be, shall be deemed, in every respect, effective service of process upon the Company or the
Guarantor, as the case may be. Notwithstanding the foregoing, any suit, action or proceeding based
on this Agreement may be instituted by the Underwriters in any competent court in the Kingdom of
Spain.
17. 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 and the Guarantor will jointly and severally 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
the Guarantor 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.
24
18. 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.
19. Except as may be otherwise provided in a Pricing Agreement, this Agreement and each
Pricing Agreement shall be governed by and construed in accordance with the laws of the State of
New York.
25
ANNEX I
Pricing Agreement
[Date]
[Name(s) of (Co-)Representative(s)]
As Representative(s) of the several
Underwriters named in Schedule I hereto,
[Address]
As Representative(s) of the several
Underwriters named in Schedule I hereto,
[Address]
Ladies and Gentlemen:
BBVA International Preferred, S.A. Unipersonal, a sociedad anónima incorporated under the laws
of the Kingdom of Spain (the “Company”), 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”)
the Securities specified in Schedule II hereto (the “Designated Securities”). Payment of
distributions (remuneración) on the Designated Securities, as well as payment of the redemption
price for the Designated Securities upon any redemption thereof and the liquidation distribution of
the Securities upon the dissolution, winding up or liquidation of the Company, will be irrevocably
and unconditionally guaranteed, on a subordinated basis, (the “Guarantees”) by Banco Bilbao Vizcaya
Argentaria, S.A, a sociedad anónima incorporated under the laws of the Kingdom of Spain (the
“Guarantor”), as described in the Pricing Prospectus (as defined in the Underwriting Agreement).
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 attached 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 and the related Guarantees which are the subject
of this Pricing Agreement. 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.
Al-1
A supplement to the Prospectus relating to the Designated Securities and the related
Guarantees, 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, each of the Company and the Guarantor jointly and severally
agrees that the Company will issue and sell to each of the Underwriters, and each of the
Underwriters 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, the number of
Designated Securities with related Guarantees set forth opposite the name of such Underwriter in
Schedule I hereto.
If the foregoing is in accordance with your understanding, please sign and return to us [six]
counterparts 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 and
the Guarantor 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.
| Very truly yours, BBVA INTERNATIONAL PREFERRED, S.A. UNIPERSONAL |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| BANCO BILBAO VIZCAYA ARGENTARIA, S.A |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Accepted as of the date hereof:
[Insert name(s) of Representative(s)]
Al-2
By: |
||||||
| Title: | ||||||
| On behalf of each of the Underwriters | ||||||
Al-3
SCHEDULE I
| Number of | ||||
| Designated | ||||
| Securities | ||||
| to be | ||||
| Underwriter | Purchased | |||
[Insert name(s) of Representative(s)] |
||||
[Insert names of other Underwriters, if any] |
||||
Total |
||||
Al-4
SCHEDULE II
Issuer:
[BBVA International Preferred, S.A. Unipersonal].
Title of Designated Securities:
[Preferred Securities].
Specific Terms of Designated Securities:
See Appendix A for a copy of the Final Term Sheet relating to the Designated Securities.
Price to Public:
___% [plus accrued distributions, if any, from ].
Purchase Price by Underwriters:
[ ]
Liquidation Preference
[ ]
Specified Funds for Payment of Purchase Price:
[Federal (same-day) funds].
Applicable Time:
[ ]
Time of Delivery:
[ ]
Closing Location for Delivery of Designated Securities:
[New York, New York].
Additional Closing Conditions:
[In addition to the conditions set forth in Section 8 of the Underwriting Agreement, the
following condition(s) shall apply:
| (m) | the Financial Industry Regulatory Authority shall have issued an opinion of no objection with respect to the fairness and reasonableness of the underwriting terms and arrangements; | ||
| (n) | the Personal Information Non-Disclosure and Safeguarding Agreement, dated [ ] (the “Non-Disclosure Agreement”), between the Company and the Guarantor, on the one hand, and the Underwriters, on the other hand, shall have been duly authorized, executed and delivered by each of the Company and the Guarantor; and |
Al-5
(o)
[ ].]
Additional Opinions:
[ ]
Names and Addresses of Underwriters, Including the Representatives:
[ ]
Listing:
[ ]
Payment of Expenses by Company and Guarantor:
[ ]
Selling Restrictions:
[Specify applicable additional selling restrictions, if any.]
Other Terms:
“Underwriter Information” shall mean the statements set forth in [(i) the last paragraph of
the cover page regarding delivery of the Securities, and under the heading “Plan of
Distribution”, (ii) the names of the Underwriters, (iii) the sentences related to
concessions and reallowances and (iv) the paragraph related to stabilization, syndicate
covering transactions and penalty bids] in the Pricing Prospectus and the Prospectus.
Jurisdictions Specified Pursuant to Section 5(b) of the Underwriting Agreement: [None]
[Specify].
Jurisdictions Specified Pursuant to Section 5(e) of the Underwriting Agreement: [United
States] [Other Jurisdictions].
[The information that is an electronic roadshow related to the Designated Securities[, a
copy of which is attached hereto,] is hereby approved pursuant to Section 6(b)(C) of the
Underwriting Agreement.]
[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.]
Al-6
Appendix A
[Insert final term sheet relating to the Designated Securities.]
Appendix B
Issuer Free Writing Prospectus(es):
Final Term Sheet dated [ ]
Schedule 8(c)
Form of Opinion of U.S. Counsel
in connection with Section 8(c) of the Underwriting Agreement
in connection with Section 8(c) of the Underwriting Agreement
[Insert form of opinion of Xxxxx Xxxx]
Schedule 8(d)
Form of Opinion of Spanish Counsel
in connection with Section 8(d) of the Underwriting Agreement
in connection with Section 8(d) of the Underwriting Agreement
[Insert form of opinion of Garrigues]
Schedule 8(e)
Form of Auditors’ Comfort Letter
in connection with Section 8(e) of the Underwriting Agreement
in connection with Section 8(e) of the Underwriting Agreement
[Insert form of comfort letter]
Schedule 8(j)(1)
Form of Certificate
in connection with Section 8(j) of the Underwriting Agreement
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
OFFICER’S CERTIFICATE PURSUANT TO SECTION 8(j)
OF THE UNDERWRITING AGREEMENT
[Date]
The undersigned, [ ], does hereby certify, pursuant to Section 8(j) of the
underwriting agreement dated [ ], 20[ ] (the “Underwriting Agreement”) incorporated by
reference in the Pricing Agreement dated [ ], 20[ ] (the “Pricing Agreement”), between Banco
Bilbao Vizcaya Argentaria, S.A., a sociedad anónima incorporated under the laws of the Kingdom of
Spain (the “Guarantor”) and BBVA International Preferred, S.A. Unipersonal, 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 Guarantor and
to the best of [his] [her] knowledge, after reasonable investigation, that:
| (i) | the representations and warranties of the Guarantor in the Underwriting Agreement are accurate at and as of [the Time of Delivery]; |
| (ii) | the Guarantor has performed all of its obligations under the Underwriting Agreement to be performed at or prior to [the Time of Delivery]; |
| (iii) | the Final Term Sheet[, together with [list any other Issuer Free Writing Prospectuses listed in an appendix to the Pricing Agreement] and [list any other “free writing prospectus”, as defined in Rule 405 under the Act, that the parties to the Underwriting Agreement have expressly agreed in writing to treat as part of the Pricing Disclosure Package],] 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 Guarantor, threatened by the Commission; and all requests for additional information on the part of the Commission have been complied with; and |
| (iv) | 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 business or properties of the Guarantor and the Guarantor’s subsidiaries, 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 Guarantor’s securities has been lowered by Xxxxx’x or S&P, and neither Xxxxx’x nor S&P has publicly announced that it has under surveillance or review with possible negative implications any rating of the Guarantor’s securities. |
Capitalized terms used but not defined herein shall have the meanings assigned to them in the
Underwriting Agreement and the Pricing Agreement.
IN WITNESS WHEREOF, I have executed this certificate on behalf of the Guarantor as of the date
first written above.
| By: | ||||
| Name: | ||||
| Title: | ||||
I, [ ], the Vice-Secretary of the Board of Directors of the Guarantor, do hereby
certify that [ ] is the duly elected or appointed, qualified and acting [ ] of the
Guarantor as of the date hereof and that the signature set forth opposite [his] [her] name is [his]
[her] true and genuine signature.
IN WITNESS WHEREOF, I have hereunto signed my name as of the date first written above.
| By: | ||||
| Name: | ||||
| Title: | ||||
Schedule 8(j)(2)
Form of Certificate
in connection with Section 8(j) of the Underwriting Agreement
in connection with Section 8(j) of the Underwriting Agreement
BBVA INTERNATIONAL PREFERRED, S.A. UNIPERSONAL
OFFICER’S CERTIFICATE PURSUANT TO SECTION 8(j)
OF THE UNDERWRITING AGREEMENT
OFFICER’S CERTIFICATE PURSUANT TO SECTION 8(j)
OF THE UNDERWRITING AGREEMENT
[Date]
The undersigned, [ ], does hereby certify, pursuant to Section 8(j) of the
underwriting agreement dated [ ], 20[ ] (the “Underwriting Agreement”) incorporated by
reference in the Pricing Agreement dated [ ], 20[ ] (the “Pricing Agreement”), between Banco
Bilbao Vizcaya Argentaria, S.A., a sociedad anónima incorporated under the laws of the Kingdom of
Spain (the “Guarantor”) and BBVA International Preferred, S.A. Unipersonal, 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) | the representations and warranties of the Company in the Underwriting Agreement are accurate at and as of [the Time of Delivery]; |
| (ii) | the Company has performed all of its obligations under the Underwriting Agreement to be performed at or prior to [the Time of Delivery]; |
| (iii) | the Final Term Sheet[, together with [list any other Issuer Free Writing Prospectuses listed in an appendix to the Pricing Agreement] and [list any other “free writing prospectus”, as defined in Rule 405 under the Act, that the parties to the Underwriting Agreement have expressly agreed in writing to treat as part of the Pricing Disclosure Package],] 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 |
| (iv) | 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 business or properties of the Guarantor and the Guarantor’s subsidiaries, 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 securities has been lowered by Xxxxx’x or S&P, and neither Xxxxx’x nor S&P has publicly announced that it has under surveillance or review with possible negative implications any rating of the Company’s securities. |
Capitalized terms used but not defined herein shall have the meanings assigned to them in the
Underwriting Agreement and the Pricing Agreement.
IN WITNESS WHEREOF, I have executed this certificate on behalf of the Company as of the date
first written above.
| By: | ||||
| Name: | ||||
| Title: | ||||
I, [ ], the [ ] of the Company, do hereby certify that [ ] is the
duly elected or appointed, qualified and acting [ ] of the Company as of the date hereof
and that the signature set forth opposite [his] [her] name is [his] [her] true and genuine
signature.
IN WITNESS WHEREOF, I have hereunto signed my name as of the date first written above.
| By: | ||||
| Name: | ||||
| Title: | ||||
