Template:DRVF 12
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- 12(1) The following sub-Clauses (2) to (5) shall apply only to the extent that the appropriate spaces below have been marked with a cross or completed.
- 12(2) [ ] In Clause 3 sub-Clause (3) the words under the same Transaction are substituted for the words under the Agreement.
- 12(3) [ ] The interest surcharge provided for in Clause 3(4) shall be [ ]%.
- 12(4) After Clause 8(2), sentence 1 the following sentence is inserted:
- either
- [ ] This shall, without prejudice to 12(5)(C)(a), apply only if, in relation to at least one Transaction, the Party Entitled to Damages (i) has finally and incontestably received all payments or other performances owed by the other party and (ii) would still have unconditional or conditional payment or other obligations itself if the Agreement were to continue,
- or
- [ ] This shall, without prejudice to Clause 12(5)(C)(a), apply only if the Party Entitled to Damages (i) has finally and incontestably received, in relation to all Transactions, all payments or other performances owed by the other party and (ii) would still have unconditional or conditional payment or other obligations itself if the Agreement were to continue.
- 12(5) [ ] International transactions
- 12(5)(a) If a party is or will be obliged to deduct or withhold a tax amount or other fiscal charge from a payment which it is to make, it shall pay to the other party such additional amounts as are necessary to ensure that the other party receives the full amount to which it would have been entitled at the time of such payment if no deduction or withholding had been required. This shall not apply if the tax or fiscal charge concerned is imposed or levied by the home state of the payee or by a tax authority located in such state. Home state means the state in which the payee has its domicile or is considered to be located or in which the office of the payee through which it is acting for the relevant Transaction is located.
- 12(5)(b) If, as a result of any change in law, or in the application or official interpretation thereof, which occurs after the trade date of a Transaction
- (a) it is to be anticipated that, on the next Due Date, either party will have to pay additional amounts pursuant to the preceding sub-Clause (A) with regard to a payment which it is required to make, other than with regard to interest payable pursuant to Clause 3(4), or
- (b) either party is no longer permitted to perform the Agreement,
- (a) it is to be anticipated that, on the next Due Date, either party will have to pay additional amounts pursuant to the preceding sub-Clause (A) with regard to a payment which it is required to make, other than with regard to interest payable pursuant to Clause 3(4), or
- such party (hereinafter called the Affected Party), and in the case of (b) also the other party (hereinafter called the Non-affected Party), may, by giving at least two weeks' notice, terminate the Transaction affected by such change with effect as from a date to be designated by it, provided that such date may not be earlier than one month before the date on which such change becomes effective. In the event of such termination, Clause 7(3) shall apply only with respect to the Transaction(s) concerned. However, the Non-affected Party or, in the event of the termination notice being given by the Non-affected Party, the Affected Party may, within one week after receipt of the notice of termination, decide, by a declaration to that effect addressed to the party having given the notice of termination, that the Agreement as a whole is terminated. For the form of the notice of termination and the declaration pursuant to sentence 3, Clause 7(1), sentence 3 shall apply.
- 12(5)(c) In the event of a termination notice being given on the basis of any of the grounds for termination mentioned in sub-Clause (B), Clause 8 shall apply subject to the following:
- (a) The Non-affected Party shall be regarded as the Party Entitled to Damages. Clause 12(4), where agreed, shall not apply.
- (b) If both parties are Affected Parties and either of them suffers damage, the party which obtains an overall benefit from the termination or which suffers the least damage shall pay to the other party a sum amounting to half the difference between such benefit and such damage, or between the higher and the lower damage, as the case may be. The payment of such sum shall also be due if the notice of termination in accordance with sub-Clause (B), sentence 1, letter (b) or the declaration in accordance with sub-Clause (B), sentence 3 is made by the Non-affected Party.
- (c) For the purpose of calculating its own benefit or damage, each party shall, in the case of (b) above, be considered to be a Party Entitled to Damages.
- (c) For the purpose of calculating its own benefit or damage, each party shall, in the case of (b) above, be considered to be a Party Entitled to Damages.
- 12(5)(a) If a party is or will be obliged to deduct or withhold a tax amount or other fiscal charge from a payment which it is to make, it shall pay to the other party such additional amounts as are necessary to ensure that the other party receives the full amount to which it would have been entitled at the time of such payment if no deduction or withholding had been required. This shall not apply if the tax or fiscal charge concerned is imposed or levied by the home state of the payee or by a tax authority located in such state. Home state means the state in which the payee has its domicile or is considered to be located or in which the office of the payee through which it is acting for the relevant Transaction is located.
- 12(6) For any legal dispute or other proceedings before German courts, the Counterparty hereby appoints as authorised agent for service of process the person specified for such purpose below or the person, if any, specified for such purpose in relation to at least one Transaction.
- 12(7) Each party hereby irrevocably undertakes not to claim, and hereby irrevocably waives, with respect to any proceedings regarding itself or its assets, any immunity based on sovereignty or similar rights from legal action, judgment, execution, attachment (whether before or after judgment) or any other proceedings.
- 12(8) Address of the person authorised to accept service of process in the Federal Republic of Germany: