IETA Wikitext: Difference between revisions

{{ietaprov|16.1}} Prohibition of Assignment. Subject to Clause {{ietaprov|16.2}} (Assignment of {{ietaprov|Termination Payment}}s), neither Party may assign or transfer to any person any of its rights or obligations in respect of this {{ietaprov|Agreement}} without the written consent of the other Party (which consent shall not be unreasonably withheld or delayed). For these purposes, it shall be unreasonable to withhold consent to an assignment or transfer of all, but not part only, of a Party’s rights and obligations in the case of an assignee or transferee that (a) is demonstrably capable of fulfilling the obligations of the assignor or transferor under this {{ietaprov|Agreement}}; (b) has a financial standing no worse than that of the assignor or transferor at the date such person becomes a party to this {{ietaprov|Agreement}} and as of the date it entered into the relevant Transactions; (c) is demonstrably capable of continuing to provide security and/or performance assurance at least equal to that provided (or required to be provided) by the assignor or transferor; (d) has its registered office in the same jurisdiction as that of the assignor or transferor; and (e) only if reasonably requested by the other Party, cooperates with and provides the necessary documentation to fulfill any know your customer or anti-money laundering requirements of the other Party.<br>

{{ietaprov|16.2}} Assignment of {{ietaprov|Termination Payment}}s. A Party may assign all or any part of its interest in any {{ietaprov|Termination Payment}} payable to it under Clause {{ietaprov|14.6}} ({{ietaprov|Termination Payment}}s) together with any amounts payable on or with respect to that interest pursuant to Clauses 9.5 (Interest) and 10 (Euros) without the consent of the other Party.<br>

{{ietaprov|17.1}} No Consequential Loss. Except to the extent included in any payment made in accordance with Clauses 5.3 (No Encumbrances), 12.1 (Failure to Transfer), 12.2 (Failure to Accept), 13.2 ({{ietaprov|Force Majeure}} {{ietaprov|Termination Payment}}), 14.6 ({{ietaprov|Termination Payment}}s) or 14.7 (Illegality), neither Party is liable to the other, whether in contract, tort (including negligence and breach of duty) or otherwise at law, for any business interruption or loss of use, profits, contracts, production, or revenue or for any consequential or indirect loss or damage of any kind however arising.<br>

{{ietaprov|17.4}} Reasonable Pre-estimate and Maximum Liability. Each Party acknowledges that the payment obligations in Clauses 12.1 (Failure to Transfer), 13 ({{ietaprov|Force Majeure}} and {{ietaprov|Suspension Event}}) and 14 (Termination) are reasonable in the light of the anticipated harm and the difficulty of estimation or calculation of actual damages. Each Party waives the right to contest those payments as an unreasonable penalty. Each Party further acknowledges that the payment obligation in Clause {{ietaprov|14}} (Termination) shall constitute the maximum liability in the event of termination of this {{ietaprov|Agreement}}.<br>

{{ietaprov|18.5}} Notices. Any notice or other written communication to be given or made in respect of this {{ietaprov|Agreement}} by one Party to the other is to be given or made in writing to the other at the address or contact number or in accordance with the electronic messaging system or e-mail details provided pursuant to {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’). A written notice is deemed to have been received:<br>

{{ietaprov|18.7}} Applicable Law. The Agreement is governed by and is to be construed in accordance with English law, unless otherwise specified in {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’). Subject to the express referral of any matter to the {{ietaprov|Expert}} under this {{ietaprov|Agreement}} and subject to Clause {{ietaprov|18.8}} (Arbitration) (if it applies), the Parties submit to the non-exclusive jurisdiction of the English courts, unless otherwise specified in {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’), for the purposes of any dispute under or in connection with this {{ietaprov|Agreement}} and any non-contractual obligations arising out of or in connection with it.<br>

{{ietaprov|18.8}} Arbitration. If this Clause {{ietaprov|18.8}} is specified as applying in {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’), save for those disputes that are expressed under this {{ietaprov|Agreement}} to be subject to expert determination in accordance with Clause {{ietaprov|18.9}} ({{ietaprov|Expert}} Determination), the Parties agree that any difference or dispute arising under, out of or in connection with this {{ietaprov|Agreement}} that the Parties are unable to settle between themselves is to be resolved by arbitration in accordance with the rules of arbitration, the number of arbitrators and at the place specified in {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’). The language of arbitration is English. The appointing authority is the Secretary-General of the Permanent Court of Arbitration unless the rules chosen in {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’) specify otherwise. Unless indicated otherwise in {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’), the number of arbitrators is one.<br>

:{{ietaprov|18.9(a)}} If any matter specified in {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’) (pursuant to Clause {{ietaprov|9.4(b)}} (Disputed Payments)) as subject to expert determination is referred to an independent expert (the “'''{{ietaprov|Expert}}'''”), the {{ietaprov|Expert}} is to be appointed by agreement between the Parties. If the Parties fail to agree upon that appointment within ten (10) {{ietaprov|Banking Day}}s of a Party notifying the other Party of its decision to refer the matter to an {{ietaprov|Expert}}, the President of the International Emissions Trading Association may appoint the {{ietaprov|Expert}} on the application of either Party.<br>

{{ietaprov|18.10}} Party Preparing this {{ietaprov|Agreement}}. The Party (the “Relevant Party”) who has prepared copies of this {{ietaprov|Agreement}} for execution (as indicated in item 14.10 of {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’)) warrants and undertakes to the other Party that no changes have been made to the standard form Emissions Trading Master Agreement For The {{ietaprov|EU ETS}} (Version 4.0 2019) posted by the International Emission Trading Association on its website on 20 June 2019, except (a) the elections as set out in Part 1 of {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’) and (b) any revisions specifically agreed in Part 2 of {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’).<br>

“'''{{ietaprov|Automatic Exercise}}'''” has the meaning given to it in Clause {{ietaprov|7.5}} ({{ietaprov|Option Transaction}}s). <br>

“'''{{ietaprov|Banking Day}}'''” means, in relation to a Transaction, any day (other than a Saturday or Sunday) on which commercial banks are open for general business in, if not otherwise specified in {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’) or the {{ietaprov|Confirmation}} to a Transaction, the places in which both Parties have their registered offices.<br>

“'''{{ietaprov|Confirmation}}'''” means a completed written confirmation substantially in the form set out in {{ietaprov|Schedule 3A}} (''{{ietaprov|Form of Confirmation for Spot/ForwardTransactions}}'') or 3B (Form of {{ietaprov|Confirmation}} for {{ietaprov|Option Transaction}}s), as applicable or in a form otherwise agreed between the Parties.<br>

“'''{{ietaprov|Control and Profit Transfer Agreement}}'''” means, unless otherwise specified in {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’), an agreement in form and substance satisfactory to one of the Parties executed by the other Party’s {{ietaprov|Controlling Party}} with respect to the maintenance of control of that other Party by the {{ietaprov|Controlling Party}} and of the capitalization, the creditworthiness and the ability to perform obligations under this {{ietaprov|Agreement}} of the other Party.<br>

“'''{{ietaprov|Controlling Party}}'''” means, where “'''{{ietaprov|Controlling Party}}'''” is specified in {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’) as applying to a Party, the {{ietaprov|Entity}} named as the {{ietaprov|Controlling Party}} with respect to that Party (being the {{ietaprov|Entity}} who is a party to a {{ietaprov|Control and Profit Transfer Agreement}} with that Party and where that Party is, in relation to such {{ietaprov|Entity}}, its subsidiary over which such {{ietaprov|Entity}} has control).<br>

“'''{{ietaprov|Credit Support Document}}'''” means, for a Party, any agreement or instrument that is specified as such in {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’) in relation to that Party.<br>

“'''{{ietaprov|Credit Support Provider}}'''” has the meaning given to it in {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’).<br>

“'''{{ietaprov|Cross default threshold}}'''” means, for a party, the amount specified in {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’) in the Termination Currency.<br>

“'''{{ietaprov|Delayed Delivery Date}}'''” has the meaning given to it in Clause {{ietaprov|13.4(a)}} ({{ietaprov|Suspension Event}}).<br>

“'''{{ietaprov|Delivering Party’s Delivery Banking Day Location}}'''” means, in relation to a Transaction, the place specified as such in the {{ietaprov|Confirmation}} for the relevant Transaction, or, if a place is not so specified: (i) the place specified as such in {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’); or (ii) if no such place is specified, the place in which the {{ietaprov|Delivering Party}}’s address for the purposes of receiving notices connected with the relevant {{ietaprov|Transaction}} is located; or (iii) if no such address is given, the place in which the {{ietaprov|Delivering Party}} has its registered office.<br>

“'''{{ietaprov|Delivery Date}}'''” means, in relation to a Transaction, and subject to adjustment in accordance with Clause {{ietaprov|13.4}} ({{ietaprov|Suspension Event}}), the {{ietaprov|Delivery Banking Day}} agreed between the Parties as the delivery date (that is to say, the date by which the relevant {{ietaprov|Transfer}} is to be completed) at the time of entering into the Transaction.<br>

(b) if this sub-paragraph (b) is specified in {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’) as applying, any amount which the {{ietaprov|Receiving Party}} must pay to a third party in respect of any such penalty payable to any other party (including a {{ietaprov|Relevant Authority}}) by that third party as a result of the {{ietaprov|Delivering Party}}’s failure to deliver the {{ietaprov|Shortfall}}.<br>

“'''{{ietaprov|EEP Status}}'''” means whether or not the Parties have elected in {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’) (or the {{ietaprov|Confirmation}} for the relevant Transaction) that {{ietaprov|Excess Emissions Penalty}} applies to the relevant {{ietaprov|Period Traded Allowance}}s.<br>

“'''{{ietaprov|Expert}}'''” has the meaning given to it in Clause {{ietaprov|18.9(a)}} ({{ietaprov|Expert}} Determination). <br>

“'''{{ietaprov|FM Affected Party}}'''” has the meaning given to it in Clause {{ietaprov|13.1}} ({{ietaprov|Force Majeure}}).<br>

“'''{{ietaprov|FM Affected Transaction}}'''” has the meaning given to it in Clause {{ietaprov|13.1}} ({{ietaprov|Force Majeure}}).<br>

“'''{{ietaprov|Illegality Affected Party}}'''” has the meaning given to it in Clause {{ietaprov|14.6}} ({{ietaprov|Termination Payment}}s).<br>

(a) for the purposes of Clause {{ietaprov|13.2(c)}} (Two-way Loss {{ietaprov|Termination Payment}}), an amount that each Party reasonably determines in good faith to be its total losses and costs (or gain, in which case expressed as a negative number) in connection with the termination of the {{ietaprov|FM Affected Transaction}}(s) or any uncompleted portions of them, including any {{ietaprov|EEP Amount}} (if applicable, in which case Clauses 12.1(b)(ii) through 12.1(b)(iv) (Failure to Transfer) shall apply equally to the determination of such amount), any loss of bargain, cost of funding (based on the actual costs of such Party whether or not greater than market costs) or, without duplication, loss or cost incurred as a result of its terminating, liquidating, obtaining or re-establishing any related trading position (or any gain resulting from any of them). {{ietaprov|Loss}} does not include legal fees or out-of-pocket expenses. Each Party may (but need not) determine its {{ietaprov|Loss}} by reference to quotations of average relevant rates or prices from two or more leading brokers in the {{ietaprov|Allowance}}s trading market who are independent of the Parties; or<br>

(b) for the purposes of Clause {{ietaprov|14.6}} ({{ietaprov|Termination Payment}}s), an amount that the {{ietaprov|Non-Defaulting Party}} reasonably determines in good faith to be its total losses and costs (or gain, in which case expressed as a negative number) in connection with the termination of all Transactions or any uncompleted portions of them, including any {{ietaprov|EEP Amount}}, if applicable, in which case Clauses 12.1(b)(ii) through 12.1(b)(iv) (Failure to Transfer) shall apply equally to the determination of such amount), any loss of bargain, cost of funding (based on the actual costs of the Non- {{ietaprov|Defaulting Party}} whether or not greater than market costs) or, at the election of the Non- {{ietaprov|Defaulting Party}} but without duplication, loss or cost incurred as a result of its terminating, liquidating, obtaining or re-establishing any related trading position (or any gain resulting from any of them). {{ietaprov|Loss}} includes losses and costs (or gains) in respect of any payment required to have been made which has not been made or non-compliance with Clauses 5 (Allowance Transfers) or 6 (Effecting Transfers) (whether or not as a result of the suspension of the obligation to pay or comply with those sub-clauses under Clauses 14.3 (Suspension following {{ietaprov|Event of Default}}) or 14.5 ({{ietaprov|Early Termination Date}})) on or before the {{ietaprov|Early Termination Date}}. {{ietaprov|Loss}} does not include the {{ietaprov|Non-Defaulting Party}}’s legal fees or out-of-pocket expenses. The {{ietaprov|Non-Defaulting Party}} may (but need not) determine its {{ietaprov|Loss}} by reference to quotations of average relevant rates or prices from two or more leading brokers in the {{ietaprov|Allowance}}s trading market who are independent of the Parties; or<br>

(i) if there is only one {{ietaprov|Illegality Affected Party}}, as per the definition for the purposes of Clause {{ietaprov|14.6}} ({{ietaprov|Termination Payment}}s) as set forth above; or<br>

“'''{{ietaprov|Market Amount}}'''” means the sum (whether positive or negative) of (i) the {{ietaprov|Market Quotation}} for the Transactions if a {{ietaprov|Market Quotation}} is determined and (ii) losses and costs (or gains) in respect of any payment required to have been made and not made or non-compliance with Clauses 5 (Allowance Transfers) or 6 (Effecting Transfers) on or before the {{ietaprov|Early Termination Date}} or as a result of suspension under Clause {{ietaprov|14.3}} (Suspension following {{ietaprov|Event of Default}}); or, for the purposes of Clause {{ietaprov|14.6}} ({{ietaprov|Termination Payment}}s), the {{ietaprov|Non-Defaulting Party}}’s {{ietaprov|Loss}} (whether positive or negative) for the Transactions if a {{ietaprov|Market Quotation}} cannot be determined or would not (in the reasonable belief of the {{ietaprov|Non-Defaulting Party}}) produce a commercially reasonable result.<br>

“'''{{ietaprov|Material Adverse Change}}'''” has the meaning given to it in Clause {{ietaprov|14.2(h)}} ({{ietaprov|Material Adverse Change}}).<br>

“'''{{ietaprov|Monthly Billing Cycle}}'''” means that payments fall due in accordance with the first elective in item 9.1 of Part 1 of {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’).<br>

“'''{{ietaprov|Payment Due Date}}'''” means either the date specified in the {{ietaprov|Confirmation}} or, if none is so specified, the relevant elective specified in {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’) and, if no election is made there, the fifth (5th) {{ietaprov|Banking Day}} after the later of (a) the {{ietaprov|Delivery Date}} and (b) the date on which the {{ietaprov|Statement}}is delivered to the {{ietaprov|Receiving Party}} in accordance with Clause {{ietaprov|9.2}} (Statement), subject to the provisions of Clause {{ietaprov|12}} (Transfer or Acceptance Failure) and Clause {{ietaprov|13.4}} ({{ietaprov|Suspension Event}}) in which case the {{ietaprov|Payment Due Date}} shall be measured accordingly from the {{ietaprov|Delayed Delivery Date}} (such {{ietaprov|Payment Due Date}} being the “'''{{ietaprov|Delayed {{ietaprov|Payment Due Date}} }}'''”).<br>

“'''{{ietaprov|Positive Mark to Market Amount}}'''” has the meaning given to it in Clause {{ietaprov|7.6}} ({{ietaprov|Option Transaction}}s).<br>

“'''{{ietaprov|Receiving Party’s Delivery Banking Day Location}}'''” means, in relation to a Transaction, the place specified as such in this {{ietaprov|Confirmation}} for the relevant Transaction, or, if a place is not so specified: (i) the place specified as such in {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’); or (ii) if no such place is specified, the place in which the {{ietaprov|Receiving Party}}’s address for the purposes of receiving notices connected with the relevant {{ietaprov|Transaction}} is located; or (iii) if no such address is given, the place in which the {{ietaprov|Receiving Party}} has its registered office.<br>

“'''{{ietaprov|Registry Pair}}'''” means a pair of Registries identified by the Parties in {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’) or in a {{ietaprov|Confirmation}} with respect to which physical netting of deliveries pursuant to Clause {{ietaprov|9.7}} (Physical Netting of Deliveries) may be affected.<br>

“'''{{ietaprov|Relevant Entity}}'''” has the meaning given to it in Clause {{ietaprov|14.2(h)(i)}} ({{ietaprov|Credit Rating}}).<br>

“'''{{ietaprov|Specified Transaction}}'''” means any transaction (including an agreement with respect to the transaction) existing at the date of this {{ietaprov|Agreement}} or after that date entered into between one Party (or any {{ietaprov|Credit Support Provider}} of that Party) and the other Party (or any {{ietaprov|Credit Support Provider}} of that other Party) that is a commodity forward or future, commodity option, commodity swap or other commodity transaction, including any contract for differences or transaction, or any other similar transaction relating to commodities, unless otherwise specified in {{ietaprov|Schedule 2}} (‘‘{{ietaprov|Elections}}’’) in relation to a Party, insofar as the transaction relates to the commodity or commodities so specified in relation to that Party.<br>

{{ietaprov|Termination Payment Date}}'''” has the meaning given to it in Clause {{ietaprov|14.6(d)}} ({{ietaprov|Termination Payment}}s).<br>

“'''{{ietaprov|Termination Payment}}'''” has the meaning given to it in Clause {{ietaprov|14.6(a)}} ({{ietaprov|Termination Payment}}s).<br>

(a) any amount that became payable to that Party prior to the first day of the period for which the obligations of the Parties are suspended under Clause {{ietaprov|13}} ({{ietaprov|Force Majeure}} and {{ietaprov|Suspension Event}}) which remains unpaid; or<br>