Template talk:EFET Allowance Annex 8: Difference between revisions

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{{efetaprov|8}} '''{{efetaprov|Remedies for Failure to Transfer or Accept}}'''. For purposes of {{efetaprov|Allowance Transaction}}s, § 8 of the {{efetprov|General Agreement}} is hereby deleted in its entirety and replaced with the following new § {{efetaprov|8}} (''{{efetaprov|Remedies for Failure to Transfer or Accept}}''):<br>

:§ {{efetaprov|8.1}} '''{{efetaprov|Failure to Transfer}}''':

::(a) '''{{efetaprov|Two Business Days Grace Period}}'''. When the {{efetaprov|Seller}} fails to {{efetaprov|Transfer}} to the {{efetaprov|Buyer}} the {{efetaprov|Contract Quantity}}, in whole or in part, on a {{efetaprov|Delivery Date}} as required in accordance with the terms of an {{efetaprov|Allowance Transaction}}, and such failure is not excused by an event of Force Majeure, {{efetaprov|Suspension Event}} or the {{efetaprov|Buyer}}’s non-performance, the {{efetaprov|Seller}} may remedy such failure by Scheduling and Transferring such {{efetaprov|Contract Quantity}} (or undelivered portion thereof) to the {{efetaprov|Buyer}} on the second {{efetaprov|Delivery Business Day}} following the {{efetaprov|Delivery Date}}, provided that such day is not on or after the {{efetaprov|Reconciliation Deadline}} following the relevant {{efetaprov|Delivery Date}}, and further subject to the additional obligation of the {{efetaprov|Seller}} to pay the {{efetaprov|Buyer}}, as compensation for its late Transfer, interest calculated: (i) as follows for the two {{efetaprov|Delivery Business Day}} grace period; and (ii) as set forth in the applicable subpart of this § 8.1 for any longer period the {{efetaprov|Seller}} fails to deliver the {{efetaprov|Allowance}}s thereafter.

::Interest for the two {{efetaprov|Delivery Business Day}} grace period shall accrue at the Interest Rate specified in § {{efetaprov|13}}.5 (''{{efetaprov|Default Interest}}'') for the period from (and including) the {{efetaprov|Delivery Date}} to (but excluding) the second {{efetaprov|Delivery Business Day}} following the {{efetaprov|Delivery Date}} on the {{efetaprov|Total Contract Price}} of the undelivered {{efetaprov|Allowance}}s, such {{efetaprov|Total Contract Price}} calculated as follows: the number of undelivered {{efetaprov|Allowance}}s multiplied by a fraction determined by dividing the {{efetaprov|Total Contract Price}} by the {{efetaprov|Contract Quantity}}.

::(b) '''{{efetaprov|Buyer’s Cover Costs}}'''. In the event that the {{efetaprov|Seller}} fails to {{efetaprov|Transfer}} to the {{efetaprov|Buyer}} all or any portion of a {{efetaprov|Contract Quantity}} as required by § {{efetaprov|8.1}}(a) (''{{efetaprov|Two Business Days Grace Period}}'') in accordance with the terms of an {{efetaprov|Allowance Transaction}} and the {{efetaprov|Buyer}} has not agreed to a {{efetaprov|Deferred Delivery Date}} as provided for in § {{efetaprov|8.1}}(c) (''{{efetaprov|Buyer’s Right to Waive Its Cover Costs}}''), the {{efetaprov|Seller}} shall incur the obligation to pay the {{efetaprov|Buyer}}, as compensation for its failure to Transfer, an amount (hereinafter “'''{{efetaprov|Buyer’s Cover Costs}}'''”) equal to either:

:::(i) if no {{efetaprov|EEP}} or {{efetaprov|EEP Equivalent}} is operative or applicable to the {{efetaprov|Allowance Transaction}}, the sum of:

::::(A) the price, if any, in excess of the portion of the {{efetaprov|Total Contract Price}} applicable to the {{efetaprov|Allowance}}s not Transferred to the {{efetaprov|Buyer}} by the {{efetaprov|Seller}}, which the {{efetaprov|Buyer}}, acting in a commercially reasonable manner either did, or would have been able to, pay to purchase or otherwise acquire in an arm’s length transaction from a third party or parties, a quantity of {{efetaprov|Allowance}}s necessary to replace the {{efetaprov|Allowance}}s not Transferred by the {{efetaprov|Seller}};

::::(B) such reasonable additional incidental costs as the {{efetaprov|Buyer}} incurred in attempting to make or making such replacement purchase of {{efetaprov|Allowance}}s to the extent those costs and expenses are not recovered in § 8.1(b)(i)(A) above; and

::::(C) interest accrued during the two {{efetaprov|Delivery Business Day}} grace period as provided in §8.1(a); plus interest, at the Interest Rate specified in § 13.5 (Default Interest), accrued from (and including) the Delivery Business Date following the {{efetaprov|Delivery Date}}, to (but excluding) the receipt by the {{efetaprov|Buyer}} of damages for the {{efetaprov|Seller}}’s failure to Transfer, such amount calculated using the following formula:

::::''Amount on which interest accrues = UA x [(RP – CP)] ''

::::where:

:::::'''UA''' means undelivered {{efetaprov|Allowance}}s, the total number of {{efetaprov|Allowance}}s the {{efetaprov|Seller}} failed to deliver;

:::::'''RP''' means replacement price, the price the {{efetaprov|Buyer}} paid (or, if it could have procured replacement {{efetaprov|Allowance}}s but did not do so, the first price which the {{efetaprov|Buyer}} would have been able to pay) for each replacement Allowance in the UA; and

:::::'''CP''' means the aggregate {{efetaprov|Contract Price}} that the {{efetaprov|Buyer}} would have been required to pay to the {{efetaprov|Seller}} for all undelivered {{efetaprov|Allowance}}s comprising the UA had the {{efetaprov|Seller}} not defaulted on its delivery obligation; or

:::(ii) if an {{efetaprov|EEP}} or {{efetaprov|EEP Equivalent}} has been made applicable to the {{efetaprov|Allowance Transaction}} and has arisen, and further subject to the fulfillment of all applicable requirements imposed in § {{efetaprov|8.3}} (''EEP and EEP Equivalent''), the amount calculated using the following formula:

::::(A) the price at which the {{efetaprov|Buyer}}, using reasonable endeavours and in (an) arm’s length transaction(s), is or would be able to purchase, as soon as reasonably possible following the {{efetaprov|Reconciliation Deadline}}, replacement {{efetaprov|Allowance}}s in the quantity of those not delivered to it by the {{efetaprov|Seller}} (such quantity reduced, if applicable, by the number of {{efetaprov|Allowance}}s the {{efetaprov|Buyer}} was able to purchase prior to the {{efetaprov|Reconciliation Deadline}} as contemplated by § {{efetaprov|8.1}}(b)(i), damages for the cost of which being recoverable pursuant to element (G) of this formula, herein below)(the net resulting number of {{efetaprov|Allowance}}s corresponding to the, as applicable, {{efetaprov|EEP}} or {{efetaprov|EEP Equivalent}}, being referred to hereinafter as the “{{efetaprov|Undelivered EEP Amount}}” or “{{efetaprov|UEA}}”);

::::(B) minus the price that the {{efetaprov|Buyer}} would have been required to pay the {{efetaprov|Seller}} for those {{efetaprov|Allowance}}s comprising the {{efetaprov|UEA}}, had the {{efetaprov|Seller}} delivered those {{efetaprov|Allowance}}s to the {{efetaprov|Buyer}} in accordance with the terms of the {{efetaprov|Allowance Transaction}};

::::(C) plus the amount of, as applicable, the {{efetaprov|EEP}} or {{efetaprov|EEP Equivalent}} on the {{efetaprov|UEA}};

::::(D) plus interest accrued during the two {{efetaprov|Delivery Business Day}} grace period, calculated as provided in § {{efetaprov|8.1}}(a);

::::(E) plus interest, at the Interest Rate specified in § 13.5 (Default Interest), accrued from (and including) the first date on which the {{efetaprov|Buyer}} would be able to purchase, following the {{efetaprov|Reconciliation Deadline}}, the {{efetaprov|UEA}} of next {{efetaprov|Compliance Year}} replacement {{efetaprov|Allowance}}s, to (but excluding) the date of the {{efetaprov|Buyer}}’s receipt of damages for the {{efetaprov|Seller}}’s failure to Transfer, on the amount determined using the following formula:

::::Amount on which interest accrues = {{efetaprov|UEA}} x (REP – CP)

::::where:

:::::'''{{efetaprov|UEA}}''' has the meaning set forth above;

:::::'''REP''' means the Replacement EEP Price, which shall be the (per Allowance) price of next {{efetaprov|Compliance Year}} {{efetaprov|Allowance}}s calculated pursuant to § 8.1(b)(ii)(A), above; and

:::::'''CP''' means the per {{efetaprov|Allowance Contract Price}} that the {{efetaprov|Buyer}} would have been required to pay to the {{efetaprov|Seller}} for each undelivered {{efetaprov|Allowance}}s comprising the {{efetaprov|UEA}} had the {{efetaprov|Seller}} not defaulted on its delivery obligation;

::::(F) plus such reasonable additional incidental costs as the {{efetaprov|Buyer}} incurred in, as applicable, both attempting unsuccessfully to make purchase of replacement {{efetaprov|Allowance}}s in order to avoid the accrual of an {{efetaprov|EEP}} or {{efetaprov|EEP Equivalent}}, and in making replacement purchase(s) of next {{efetaprov|Compliance Year}} {{efetaprov|Allowance}}s as described in § 8.1(b)(ii)(A), above; to the extent those costs and expenses are not recovered via § 8.1(b)(i)(A) above (which additional incidental damages, for the avoidance of doubt, may also include interest accrued at the Interest Rate specified in § 13.5 (Default Interest), from (and including) the date on which an {{efetaprov|EEP}} or {{efetaprov|EEP Equivalent}} is paid, to (but excluding) the receipt by the {{efetaprov|Buyer}} of damages for the {{efetaprov|Seller}}’s failure to Transfer); and

::::(G) plus, if applicable, the {{efetaprov|Buyer’s Cover Costs}} incurred in replacing that portion of {{efetaprov|Allowance}}s not Transferred to the {{efetaprov|Buyer}} by the {{efetaprov|Seller}} for which the {{efetaprov|Buyer}} did not incur an {{efetaprov|EEP}} or {{efetaprov|EEP Equivalent}} (and thus not comprising the {{efetaprov|UEA}}) (such portion of {{efetaprov|Allowance}}s not Transferred being hereinafter referred to as the “Non-UEA”), calculated in accordance with the methodology set forth in § 8.1(b)(i), which methodology shall apply equally to this § 8(b)(ii)(G);

::::(H) plus interest accrued on the value of the Non-UEA calculated in accordance with the methodology set forth in § 8.1(b)(i)(C), but in this context calculated on the amount of the Non-UEA, rather than the amount of the UA.

::::provided, always, that in the event that the number calculated through application of elements (A) through (H) of the formula set forth immediately above in this § 8.1(b)(ii) results in a negative number, such number shall be deemed to be zero and no damages will be owed in respect of such elements of this damages formula.

::(c) '''{{efetaprov|Buyer’s Right to Waive Its Cover Costs}}'''. The {{efetaprov|Buyer}} shall be entitled to invoice the {{efetaprov|Seller}} for damages payable pursuant to § {{efetaprov|8.1}}(b)(i) (''{{efetaprov|Buyer’s Cover Costs}}'') in accordance with the requirements of Payment Cycle B as defined in § 13.2 (Payment). However, the {{efetaprov|Buyer}} may alternatively, but shall be under no obligation to, defer the due date on the payment of such damages for a reasonable period of time (but in no event beyond the applicable {{efetaprov|Reconciliation Deadline}}) if the {{efetaprov|Seller}} has indicated to the {{efetaprov|Buyer}} an intent to attempt to cure its {{efetaprov|Transfer}} default within a period of time acceptable to the {{efetaprov|Buyer}}.

:::(i) At any time prior to the due date applicable to the payment of damages due to the {{efetaprov|Buyer}} under §{{efetaprov|8.1}}(b), the {{efetaprov|Seller}} may offer to {{efetaprov|Transfer}} to the {{efetaprov|Buyer}} replacement {{efetaprov|Allowance}}s on a new {{efetaprov|Delivery Date}} (the “{{efetaprov|Deferred Delivery Date}}”) for those it originally failed to Transfer. The {{efetaprov|Buyer}} may, but is not required to, agree to accept such {{efetaprov|Transfer}} of replacement {{efetaprov|Allowance}}s in lieu of the damages it is entitled to recover under § 8.1(b), provided that in such case the {{efetaprov|Buyer}} shall be entitled to invoice the {{efetaprov|Seller}} for interest for the intervening period calculated as the sum of interest accrued during the two {{efetaprov|Delivery Business Day}} grace period as provided in § 8.1(a); plus interest, at the Interest Rate specified in § 13.5 (Default Interest), from (and including) the first {{efetaprov|Delivery Business Day}} following the {{efetaprov|Delivery Date}}, to (but excluding) the date of actual {{efetaprov|Transfer}} of the previously undelivered Allowance(s), accrued on the amount calculated in accordance with the formula set forth in § {{efetaprov|8.1}}(b)(i)(C).

:::(ii) If the {{efetaprov|Buyer}} agrees to accept the {{efetaprov|Seller}}’s offer for {{efetaprov|Transfer}} of replacement {{efetaprov|Allowance}}s on a {{efetaprov|Deferred Delivery Date}} as provided above in subparagraph (i), but the {{efetaprov|Seller}} again defaults on its deferred {{efetaprov|Transfer}} obligation, the {{efetaprov|Buyer}} shall be entitled to invoice the {{efetaprov|Seller}} for an amount calculated in accordance with § 8.1(b) ({{efetaprov|Buyer’s Cover Costs}}) save that the amount it may so invoice the {{efetaprov|Seller}} shall account for both:

::::(A) interest, (1) in the event that the {{efetaprov|Buyer}} is subsequently able to make a replacement purchase of {{efetaprov|Allowance}}s, calculated as provided in § 8.1(b)(i)(C); or (2) in the event the {{efetaprov|Buyer}} is unable to make a replacement purchase of {{efetaprov|Allowance}}s before the {{efetaprov|Reconciliation Deadline}} for the relevant {{efetaprov|Compliance Period}}, calculated as provided in §8.1(b)(ii)(D); and

::::(B) any increase in the {{efetaprov|Buyer’s Cover Costs}} reflecting higher market prices pertaining to replacement {{efetaprov|Allowance}}s on the {{efetaprov|Deferred Delivery Date}} when compared to those available in the market on the original {{efetaprov|Delivery Date}}.

§ {{efetaprov|8.2}} '''{{efetaprov|Failure to Accept}}''':

:(a) '''{{efetaprov|Two Business Days Grace Period}}'''. When the {{efetaprov|Buyer}} fails to accept {{efetaprov|Transfer}} of a {{efetaprov|Contract Quantity}} in whole or in part on a {{efetaprov|Delivery Date}} as required in accordance with the terms of an {{efetaprov|Allowance Transaction}}, and such failure is not excused by an event of Force Majeure, {{efetaprov|Suspension Event}} or the {{efetaprov|Seller}}’s non-performance, the {{efetaprov|Seller}} shall afford the {{efetaprov|Buyer}} an opportunity to remedy its failure by again attempting to Schedule and {{efetaprov|Transfer}} such {{efetaprov|Contract Quantity}} (or undelivered portion thereof) to the {{efetaprov|Buyer}} on the second {{efetaprov|Delivery Business Day}} following the {{efetaprov|Delivery Date}}, provided that such day is not on or after the {{efetaprov|Reconciliation Deadline}} applicable to the undelivered Allowance(s), and further subject to the additional obligation of the {{efetaprov|Buyer}} to pay the {{efetaprov|Seller}}, as compensation for its failure to accept {{efetaprov|Transfer}} of the {{efetaprov|Allowance}}s, interest calculated: (i) as follows for the two {{efetaprov|Delivery Business Day}} grace period; and (ii) as set forth in the applicable subpart of this § {{efetaprov|8.2}} for any longer period the {{efetaprov|Buyer}} fails to accept the {{efetaprov|Allowance}}s thereafter.

:Interest for the two {{efetaprov|Delivery Business Day}} grace period shall accrue at the Interest Rate specified in § {{efetaprov|13.5}} (''{{efetaprov|Default Interest}}'') for the period from (and including) the {{efetaprov|Delivery Date}} to (but excluding) the second {{efetaprov|Delivery Business Day}} following the {{efetaprov|Delivery Date}} on the {{efetaprov|Total Contract Price}} of the {{efetaprov|Allowance}}s not accepted by the {{efetaprov|Buyer}}, such {{efetaprov|Total Contract Price}} calculated as follows: the number of {{efetaprov|Allowance}}s not accepted by the {{efetaprov|Buyer}} multiplied by a fraction determined by dividing the {{efetaprov|Total Contract Price}} by the {{efetaprov|Contract Quantity}}.

:(b) '''{{efetaprov|Seller’s Cover Costs}}'''. In the event that the {{efetaprov|Buyer}} fails to accept {{efetaprov|Transfer}} of all or any portion of a {{efetaprov|Contract Quantity}} as required by § 8.2(a) ({{efetaprov|Two Business Days Grace Period}}) in accordance with the terms of an {{efetaprov|Allowance Transaction}} and the {{efetaprov|Seller}} has not agreed to a Deferred Acceptance Date as provided for in § 8.2(c) (''{{efetaprov|Seller’s Right to Waive Its Cover Costs}}''), the {{efetaprov|Buyer}} shall incur the obligation to pay the {{efetaprov|Seller}}, as compensation for its failure to accept {{efetaprov|Transfer}} of the {{efetaprov|Allowance}}s, an amount (hereinafter “'''{{efetaprov|Seller’s Cover Costs}}'''”) equal to the sum of:

::(i) the price, if any, less than the portion of the {{efetaprov|Total Contract Price}} applicable to the {{efetaprov|Allowance}}s not accepted by the {{efetaprov|Buyer}}, which the {{efetaprov|Seller}}, acting in a commercially reasonable manner either did, or would have been able to, receive, in an arm’s length transaction with a third party or parties, from the resale of the {{efetaprov|Allowance}}s not accepted by the {{efetaprov|Buyer}};

::(ii) such reasonable additional incidental costs as the {{efetaprov|Seller}} incurred in attempting to make or making such resale of the {{efetaprov|Allowance}}s; and

::(iii) interest accrued during the two {{efetaprov|Delivery Business Day}} grace period as provided in § 8.2(a); plus interest, at the {{efetaprov|Interest Rate}} specified in § {{efetaprov|13.5}} (''{{efetaprov|Default Interest}}''), accrued from (and including) the first Delivery Business Date following the {{efetaprov|Delivery Date}}, to (but excluding) the date of receipt by the {{efetaprov|Seller}} of damages for the {{efetaprov|Buyer}}’s failure to accept, such amount calculated using the following formula:

::''Amount on which interest accrues = ANA x CP''

::Where:

:::'''ANA''' means {{efetaprov|Allowance}}s not accepted, the total number of {{efetaprov|Allowance}}s the {{efetaprov|Buyer}} failed to accept; and

:::'''CP''' means the aggregate {{efetaprov|Contract Price}} that the {{efetaprov|Buyer}} would have been required to pay to the {{efetaprov|Seller}} for all {{efetaprov|Allowance}}s not accepted by it.

:(c) '''{{efetaprov|Seller’s Right to Waive Its Cover Costs}}'''. The {{efetaprov|Seller}} shall be entitled to invoice the {{efetaprov|Buyer}} for damages payable pursuant to § {{efetaprov|8.2}}(b) (''{{efetaprov|Seller’s Cover Costs}}'') in accordance with the requirements of Payment Cycle B as defined in § {{efetaprov|13.2}} (''Payment''). However, the {{efetaprov|Seller}} may alternatively, but shall be under no obligation to, defer the due date on the payment of such damages for a reasonable period of time (but in no event beyond the applicable {{efetaprov|Reconciliation Deadline}}) if the {{efetaprov|Buyer}} has indicated to the {{efetaprov|Seller}} its intent to attempt to cure its acceptance default within a period of time acceptable to the {{efetaprov|Seller}}.

::(i) At any time prior to the due date applicable to the payment of damages due to the {{efetaprov|Seller}} under §8.2(b), the {{efetaprov|Buyer}} may offer to accept {{efetaprov|Transfer}} from the {{efetaprov|Seller}} on a new {{efetaprov|Delivery Date}} (the “'''{{efetaprov|Deferred Acceptance Date}}'''”) of the {{efetaprov|Allowance}}s it failed to accept {{efetaprov|Transfer}} of on the original {{efetaprov|Delivery Date}}. The {{efetaprov|Seller}} may, but is not required to, agree to attempt to again {{efetaprov|Transfer}} such replacement {{efetaprov|Allowance}}s to the {{efetaprov|Buyer}} on the Deferred Acceptance Date. If it so agrees, the {{efetaprov|Seller}}, in lieu of the damages it is entitled to recover under § {{efetaprov|8.2}}(b), shall be entitled to both {{efetaprov|Transfer}} and receive payment of the {{efetaprov|Contract Price}} for the {{efetaprov|Allowance}}s on the Deferred Acceptance Date and to further invoice the {{efetaprov|Buyer}} for interest for the intervening period calculated as the sum of the interest accrued during the two {{efetaprov|Delivery Business Day}} grace period as provided in § {{efetaprov|8.2}}(a) plus interest at the Interest Rate specified in § {{efetaprov|13.5}} (''{{efetaprov|Default Interest}}''), from (and including) the second {{efetaprov|Delivery Business Day}} following the {{efetaprov|Delivery Date}} to (but excluding) the date of actual acceptance of {{efetaprov|Transfer}} of the Allowance(s) previously not accepted, accrued on the amount calculated in accordance with the formula set forth in § {{efetaprov|8.2}}(b)(iii).

::(ii) If the {{efetaprov|Seller}} agrees to the {{efetaprov|Buyer}}’s offer to accept {{efetaprov|Transfer}} of the {{efetaprov|Allowance}}s on a Deferred Acceptance Date as provided above in subparagraph (i), but the {{efetaprov|Buyer}} again defaults on its acceptance of {{efetaprov|Transfer}} obligation, the {{efetaprov|Seller}} shall be entitled to invoice the {{efetaprov|Buyer}} for an amount calculated in accordance with § {{efetaprov|8.2}}(b) (''{{efetaprov|Seller’s Cover Costs}}) save that the amount it may so invoice the {{efetaprov|Buyer}} shall account for both:

:::(A) interest, calculated as provided in § {{efetaprov|8.2}}(b)(iii); and

:::(B) any depreciation in the {{efetaprov|Seller’s Cover Costs}} reflecting lower prevailing market prices available for the resale of {{efetaprov|Allowance}}s on the Deferred Acceptance Date when compared to those available in the market on the original {{efetaprov|Delivery Date}}.

§ {{efetaprov|8.3}} '''{{efetaprov|Excess Emissions Penalty (“EEP”) and EEP Equivalent}}''':

:(a) '''Applicability'''. The Parties to any {{efetaprov|Allowance Transaction}}s desiring to make {{efetaprov|EEP}} or {{efetaprov|EEP Equivalent}} inapplicable and inoperative to the calculation of the {{efetaprov|Buyer’s Cover Costs}} for any {{efetaprov|Allowance Transaction}}s between them may do so either globally by specifying {{efetaprov|EEP}} or {{efetaprov|EEP Equivalent}} as not applying in Part II of this {{efetaprov|Allowances Appendix}}, or specifically, with respect to a particular {{efetaprov|Allowance Transaction}}, by so agreeing in the terms of that {{efetaprov|Allowance Transaction}} itself.

:(b) '''{{efetaprov|Excess Emissions Penalty}}'''. If {{efetaprov|EEP}} is applicable, the {{efetaprov|Buyer}} may invoice the {{efetaprov|Seller}} in the amount of an {{efetaprov|EEP}} it incurs as the result of the {{efetaprov|Seller}}’s failure to {{efetaprov|Transfer}} to it {{efetaprov|Allowance}}s when required pursuant to the terms of an {{efetaprov|Allowance Transaction}}.

:(c) '''{{efetaprov|Excess Emissions Penalty Equivalent}}'''. If {{efetaprov|EEP Equivalent}} is applicable, the {{efetaprov|Buyer}} may invoice the {{efetaprov|Seller}} for an {{efetaprov|EEP Equivalent}} it incurs as the result of the {{efetaprov|Seller}}’s failure to {{efetaprov|Transfer}} to it {{efetaprov|Allowance}}s when required pursuant to the terms of an {{efetaprov|Allowance Transaction}}.

:(d) '''{{efetaprov|Duty to Mitigate}}'''. The {{efetaprov|Seller}}’s obligation to pay the {{efetaprov|EEP}} or the {{efetaprov|EEP Equivalent}} is subject always to the {{efetaprov|Buyer}}’s overriding obligation to use commercially reasonable endeavours (including, without limitation, making use of any excess {{efetaprov|Allowance}}s it may have available to it at the time, and/or procuring such {{efetaprov|Allowance}}s as are available in the market) to satisfy its obligation to surrender the required number of {{efetaprov|Allowance}}s necessary to avoid or otherwise mitigate its {{efetaprov|EEP}} or {{efetaprov|EEP Equivalent}} liability. For the avoidance of doubt, the {{efetaprov|Buyer}}’s duty to mitigate its {{efetaprov|EEP}} or {{efetaprov|EEP Equivalent}} exposure is limited to management of its Allowance portfolio and shall not impose upon it any further obligation regarding its operation of any installation with an obligation to surrender {{efetaprov|Allowance}}s to a {{efetaprov|Relevant Authority}}.

:(e) '''{{efetaprov|Evidence of Commercially Reasonable Efforts}}'''. Upon request, the {{efetaprov|Buyer}} shall confirm to the {{efetaprov|Seller}}:

::(i) that it has incurred {{efetaprov|EEP}} or {{efetaprov|EEP Equivalent}} consequent upon the {{efetaprov|Seller}}’s failure to {{efetaprov|Transfer}} {{efetaprov|Allowance}}s to it;

::(ii) the extent to which the requirement for the {{efetaprov|Buyer}} to pay the {{efetaprov|EEP}} or the {{efetaprov|EEP Equivalent}} results from the {{efetaprov|Seller}}’s failure to make such a Transfer;

::(iii) that it was unable to mitigate its {{efetaprov|EEP}} or {{efetaprov|EEP Equivalent}} exposure,

:and shall provide the {{efetaprov|Seller}} with evidence: (A) that the {{efetaprov|EEP}} or {{efetaprov|EEP Equivalent}}, as applicable, was incurred by it; (B) that such {{efetaprov|EEP}} or {{efetaprov|EEP Equivalent}} was incurred as a result of the {{efetaprov|Seller}}’s failure to perform its {{efetaprov|Transfer}} obligation; and (C) of its commercially reasonable endeavours to mitigate its exposure to such {{efetaprov|EEP}} or {{efetaprov|EEP Equivalent}} as it has invoiced to the {{efetaprov|Seller}}; provided, however, that should the {{efetaprov|Seller}} elect to challenge the {{efetaprov|Buyer}} in respect of any of the above matters, then the burden for demonstrating: (A) that such {{efetaprov|EEP}} or {{efetaprov|EEP Equivalent}} was not actually incurred by the {{efetaprov|Buyer}}; (B) that such {{efetaprov|EEP}} or {{efetaprov|EEP Equivalent}} was not incurred by the {{efetaprov|Buyer}} as a result of the {{efetaprov|Seller}}’s non-performance; and/or (C) the insufficiency, lack of thoroughness or unreasonableness of such endeavours shall be on the {{efetaprov|Seller}} and, if § 22.3 (Expert Determination) is specified as applying in Part II of this {{efetaprov|Allowances Appendix}} the process by which such challenge will be determined shall be in accordance with the procedures set forth in § {{efetaprov|22.3}} (''{{efetaprov|Expert Determination}}'').

:(f) '''{{efetaprov|Later Mitigation of Recovered EEP or EEP Equivalent}}'''. To the extent an initially assessed and recovered {{efetaprov|EEP}} is later reduced and/or fully or partly returned or credited to the {{efetaprov|Buyer}} by a {{efetaprov|Relevant Authority}} for any reason whatsoever, only such reduced and finally assessed {{efetaprov|EEP}} shall apply. {{efetaprov|EEP}} recovered by the {{efetaprov|Buyer}} in the form of damages under this § 8 which are later reduced or returned to such {{efetaprov|Buyer}} shall be returned upon demand to the {{efetaprov|Seller}} who paid such damages, and the {{efetaprov|Buyer}} shall provide the {{efetaprov|Seller}} with prompt notification of any such reduction or return. Similarly, in the event the {{efetaprov|Seller}} has made the {{efetaprov|Buyer}} whole for an {{efetaprov|EEP Equivalent}}, and all or any portion of the underlying {{efetaprov|EEP}} or {{efetaprov|EEP Equivalent}} upon which the {{efetaprov|Seller}}’s {{efetaprov|EEP Equivalent}} payment was based is later returned to the {{efetaprov|Buyer}} by its resale customer, the {{efetaprov|Buyer}} shall return an equivalent amount of its own {{efetaprov|EEP Equivalent}} payment to the {{efetaprov|Seller}}.

§ {{efetaprov|8.4}} '''{{efetaprov|Amounts Payable}}'''. Amounts that are due according to this § {{efetaprov|8}} shall be invoiced and paid in accordance with Payment Cycle B as defined in § {{efetaprov|13.2}} (''Payment''). <br>

§ {{euaprov|8.5}} '''{{efetaprov|Remedies for Failure to Transfer or Accept after Cessation of Suspension Event}}'''.

:(a) Where the {{efetaprov|Buyer}} fails to accept {{efetaprov|Transfer}} from the {{efetaprov|Seller}} of the {{efetaprov|Contract Quantity}} in whole or in part on a {{efetaprov|Delayed Delivery Date}} and such failure is not excused by an event of {{euaprov|Force Majeure}}, another {{efetaprov|Suspension Event}} or the {{efetaprov|Seller}}’s non-performance, the {{efetaprov|Seller’s Cover Costs}} shall consist of the sum of the following elements:

::(i) the {{efetaprov|Seller’s Cover Costs}} as provided in § {{euaprov|8.2}}(b) of this {{efetaprov|Allowances Appendix}};

::(ii) an amount (the “'''{{efetaprov|Default Cost of Carry Amount}}'''”) calculated at the {{efetaprov|Default Cost of Carry Rate}} for the {{efetaprov|Default Cost of Carry Calculation Period}} multiplied by the product of the {{efetaprov|Contract Price}} and the number of {{efetaprov|Allowance}}s not {{euaprov|Transferred}} or accepted for the relevant {{efetaprov|Allowance Transaction}}, divided by three hundred and sixty (360). Such {{efetaprov|Default Cost of Carry Amount}} shall be identified in the relevant invoice; and

::(iii) interest on the {{efetaprov|Default Cost of Carry Amount}} accrued from (and including) the {{efetaprov|Delivery Business Day}} following the {{efetaprov|Default Cost of Carry Calculation Period}}, to (but excluding) the receipt by the {{efetaprov|Seller}} of damages for the {{efetaprov|Buyer}}’s failure to accept Transfer, calculated at the Interest Rate specified in § 13.5 (Default Interest) of the Agreement.

:(b) Where {{efetaprov|Seller}} fails to {{efetaprov|Transfer}} to the {{efetaprov|Buyer}} the {{efetaprov|Contract Quantity}} in whole or in part on a {{efetaprov|Delayed Delivery Date}} and such failure is not excused by an event of {{euaprov|Force Majeure}}, another {{efetaprov|Suspension Event}} or the {{efetaprov|Buyer}}’s non-performance, {{efetaprov|Buyer’s Cover Costs}} shall consist of the aggregate of the following elements:

::(i) {{efetaprov|Buyer’s Cover Costs}}, as provided in either:

:::(a) § {{euaprov|8.1}}(b)(i) of this {{efetaprov|Allowances Appendix}}; or,

:::(b) where an {{efetaprov|EEP}} or {{efetaprov|EEP Equivalent}} has been made applicable to an {{efetaprov|Allowance Transaction}} and has arisen, § {{euaprov|8.1}}(b)(ii) of this Allowance Appendix;

::in either case, reduced by

::(ii) the {{efetaprov|Default Cost of Carry Amount}};

provided, always, that in the event that the number resulting from application of the applicable formula set forth immediately above in either § {{euaprov|8.5}}(a) or § {{euaprov|8.5}}(b) results in a negative number, such number shall be deemed to be zero and no damages will be owed. <br>

Template talk:EFET Allowance Annex 8: Difference between revisions

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