Template:EFET Allowance Annex 8.1: Difference between revisions

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:::(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:  
:::(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}}”);  
::::(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}};  
::::(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}};  
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:::::'''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;  
:::::'''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  
::::(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);  
::::(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 “'''{{efetaprov|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.  
::::(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.  
::::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.  
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::(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}}.  
::(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).  
:::(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:  
:::(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:  
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