THIS INTERCOMPANY AGREEMENT (the ‘‘Intercompany Agreement’’), dated 22 September 2004, is executed and delivered by each of O¨ STERREICHISCHE VOLKSBANKEN-
AKTIENGESELLSCHAFT, incorporated under the laws of Austria (‘‘O¨ VAG’’) and O¨VAG FINANCE (JERSEY) LIMITED, a company incorporated with limited liability under the laws of Jersey (the ‘‘Company’’).
WHEREAS, O¨ VAG desires to cause the Company to issue, and the Company desires to issue, the Preferred Securities (as defined below).
WHEREAS, O¨ VAG and the Company have, for the benefit of the Holders (as defined below), entered into the Support Agreement (as defined below).
NOW, THEREFORE each of O¨ VAG and the Company execute and deliver this Intercompany Agreement to give the Company the benefit of the Support Agreement.
1. As used in this Intercompany Agreement, the following terms shall, unless the context otherwise requires, have the following meanings:
‘‘Preferred Securities’’ means all of the euro Fixed/Floating Rate Non-cumulative Non-voting Preferred Securities of the Company in issue from time to time, whether or not in issue on the date of the Support Agreement, the Holders of which are entitled to the benefits of the Support Agreement as evidenced by the execution of the Support Agreement; and
‘‘Support Agreement’’ means the Support Agreement dated 22 September 2004 entered into by O¨ VAG and the Company.
Any other capitalised terms used in this Agreement shall have the same meaning as in the Support Agreement.
2. O¨ VAG irrevocably and unconditionally agrees to extend all of the obligations assumed by it pursuant to the Support Agreement to and for the benefit of the Company as if the Support Agreement were given by O¨ VAG only and references therein to ‘‘Holders’’ and ‘‘Holder’’ (other than in Clause 2.3 thereof and the second reference to Holders in Clause 7.2 thereof) were references to the ‘‘Company’’ and the words immediately following ‘‘Holders’’ in the second sentence of Clause 7.1 thereof up to the semi-colon therein were deleted.
3. This Intercompany Agreement shall terminate and be of no further force and effect upon full payment of the Optional Redemption Price on, or purchase and cancellation of, all outstanding Preferred Securities or full payment of the Liquidation Distributions and liquidation of the Company, provided however that this Intercompany Agreement will continue to be effective or will be reinstated, as the case may be, if at any time payment of any sums paid under the Preferred Securities or the Support Agreement must be restored by a Holder for any reason whatsoever.
4. This Intercompany Agreement shall take effect as a Deed. O¨ VAG hereby acknowledges and covenants that the obligations binding upon it contained in this Intercompany Agreement are owed to, and shall be for the benefit of, the Company, and that the Company shall be entitled to enforce the said obligations against O¨ VAG.
5. Subject to operations of law, all undertakings and agreements contained in this Intercompany Agreement shall bind the successors, assigns, receivers, trustees and representatives of O¨ VAG and shall inure to the benefit of the Company.
6. Any notice, request or other communication required or permitted to be given hereunder to O¨ VAG shall be given in writing by delivering the same against receipt therefore or by facsimile transmission (confirmed by mail) addressed to O¨ VAG, as follows (and if so given, shall be deemed given upon mailing of confirmation, if given by facsimile transmission), to: O¨ sterreichischen Volksbanken-Aktiengesellschaft
Peregringasse 3 1090 Vienna Austria
Facsimile: +431 05040 04 3125 Attention: Balance Sheet Manager
Any notice, request or other communication required or permitted to be given hereunder to the Company shall be given in writing by delivering the same against receipt therefore or by facsimile transmission (confirmed by mail) addressed to the Company, as follows (and if so given, shall be deemed given upon mailing of confirmation, if given by facsimile
transmission), to:
O¨ VAG Finance (Jersey) Limited 22 Grenville Street
St. Helier Jersey JE4 8PX
Facsimile: +44 1534 609333 Attention: Jersey Corporate 3
Mourant International Finance Administration 7.
7.1 This Intercompany Agreement shall be governed by, and construed in accordance with, English law.
7.2 Each of O¨ VAG and the Company hereby irrevocably agrees for the benefit of each other that the courts of England are to have jurisdiction to settle any disputes which may arise out of or in connection with this Intercompany Agreement and that accordingly any suit, action or proceedings arising out of or in connection therewith (together referred to as
(‘‘Proceedings’’) may be brought in such courts.
Each of O¨ VAG and the Company irrevocably and unconditionally waives and agrees not to raise any objection which it may have now or subsequently to the laying of the venue of any Proceedings in the courts of England or any claim that any Proceedings have been brought in an inconvenient forum and further irrevocably and unconditionally agrees that a final
judgment in any Proceedings brought in the courts of England shall be conclusive and binding upon O¨ VAG and the Company and may be enforced in the courts of any other jurisdiction. Nothing contained in this clause shall limit any right to take Proceedings against O¨ VAG or the Company in any other court of competent jurisdiction, nor shall the taking of Proceedings in one or more jurisdictions preclude the taking of Proceedings in any other competent jurisdictions, whether concurrently or not.
Each of O¨ VAG and the Company hereby irrevocably and unconditionally appoints Clifford Chance Secretaries Limited at 10 Upper Bank Street, London E14 5JJ or at its London office for the time being as its agent for service of process in England in respect of any Proceedings and has undertaken that in the event of its ceasing so to act it will appoint another person as its agent for that purpose.
8. A person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
IN WITNESS WHEREOF this Intercompany Agreement has been executed as a deed and delivered on behalf of each of O¨ VAG and the Company on the date shown below:
Executed as a deed by )
O¨ STERREICHISCHE VOLKSBANKEN-
AKTIENGESELLSCHAFT )
By: By:
acting under the authority of that company in the presence of:
Witness’s Signature: Name:
Address:
Executed as a deed by )
O¨ VAG FINANCE (JERSEY) LIMITED )
By:
acting under the authority of that company in the presence of:
Witness’s Signature: Name:
Address: