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EU Emissions Allowance Transaction Annex to the 2005 ISDA Commodity Definitions
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Section (e) in a Nutshell™
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(e) Defined Terms and Interpretation
Administrator Event means the suspension of a Relevant Registry’s, the EUTL’s or an LSTL’s processes under the Registries Regulation by a National Administrator or the Central Administrator:
- (i) where that Relevant Registry is not operated and maintained in accordance applicable law,
- (ii) for scheduled or emergency maintenance,
- (iii) due to a breach of security threatening the integrity of the registries system or its back up facilities; or
- (iv) upon suspension of the mutual recognition of Allowances under a Linking Agreement.
Template:Nutshell EUA Annex AEUA Allowance
Template:Nutshell EUA Annex Affected Allowance
Template:Nutshell EUA Annex Aircraft Operator
Template:Nutshell EUA Annex Allowance
Allowance Forward Transaction means a Transaction specified as such in the related Confirmation.
Allowance Option Transaction means a Transaction identified as such in the Confirmation, which will also count as an “Option Transaction” under the 2006 ISDA Definitions.
Allowances to be Delivered:
- For Allowance Forward Transactions: The Number of Allowances;
- For Allowance Option Transactions: For any Exercise Date the number of exercised Options x Option Entitlement.
Allowance Purchase Price: As set out in the Confirmation.
Template:Nutshell EUA Annex Allowance Shortfall
Allowance Strike Price means the specified price per Allowance in an Allowance Option Transaction.
Allowance Type means AEU Allowance or an EU Allowance, as specified in the Confirmation.
Template:Nutshell EUA Annex Appropriate Source
Buyer will be specified in the Confirmation.
Template:Nutshell EUA Annex Buy-In
Template:Nutshell EUA Annex Buy-In Period
Template:Nutshell EUA Annex Calculation Agent
Template:Nutshell EUA Annex Call
Template:Nutshell EUA Annex Central Administrator
Template:Nutshell EUA Annex Central European Time
Template:Nutshell EUA Annex Close-out Cost of Carry Amount
Template:Nutshell EUA Annex Close-out Cost of Carry Delay
Template:Nutshell EUA Annex Close-out Cost of Carry Rate
Cost of Carry Amount: An EUR amount equal to:
- Allowance Forward Transactions: Cost of Carry Rate x Allowance Purchase Price x N x (Cost of Carry Delay/360).
- Allowance Option Transactions: Cost of Carry Rate x Allowance Strike Price x N x (Cost of Carry Delay/360).
where “N” = Number of Allowances delivered by the Delayed Delivery Date following a Suspension Event.
Cost of Carry Delay: The number of days from the scheduled Payment Date to the Delayed Payment Date.
Cost of Carry Rate: The Floating Rate that would be determined for the Calculation Period from the scheduled Payment Date to the Delayed Payment Date, were the Reset Date the last day of that Calculation Period and the Floating Rate Option “EUR-EONIA-OIS-COMPOUND”.
Template:Nutshell EUA Annex Deadline Shortfall
Template:Nutshell EUA Annex Delayed Delivery Date
Template:Nutshell EUA Annex Delayed Payment Date
Delivering Party means, for a Allowance Forward Transaction or a Call the Seller, and for a Put the Buyer.
Delivering Party’s Delivery Business Day Location will be specified in the Confirmation. If for some reason it isn’t, it will be the place specified in the Emissions Annex and, failing that,
Seller’s address for notices under the Transaction and, failing that, the Delivering Party’s registered office.
Delivering Party’s Replacement Cost means for Receiving Party’s failure to accept delivery of a number of Allowances (the “DPRC Shortfall”) the following amount:
(AP + Cost of Carry - EUAspot x DPRC Shortfall) + Default Interest
Where:
“AP” = relevant Allowance Purchase Price/Allowance Strike Price
“Cost of Carry” = Where the parties’ “Physical Settlement” obligations are terminated following a Suspension Event, the Close-out Cost of Carry Amount.
“EUAspot” = the price per Allowance the Calculation Agent determines Delivering Party, would reasonably receive in an arm’s length spot transaction on the Final Compliance Date for the same number of equivalent Allowances to be delivered on the later of the Final Compliance Date and the normal Delivery Business Day for settlement of Allowances under such a transaction.
“DPRC Shortfall” = as defined above.
“Default Interest” = interest at the Default Rate from the Delivery Date to the termination date per Part (d)(ii)(2)(B)(Failure to Comply Not Remedied) on DPRC Shortfall x any excess of the AP over EUAspot.
Delivery Business Day means a business day in both parties’ specified delivery location.[1]
Delivery Date: Each date so specified in the Confirmation (subject to adjustment for a Suspension Event).
Template:Nutshell EUA Annex Directive
Template:Nutshell EUA Annex DPRC Shortfall
EEP Amount means the amount per Allowance that Receiving Party reasonably determines, in good faith, to be its total losses (not otherwise reflected in its Receiving Party’s Replacement Cost) that result from Delivering Party’s failure to deliver the Shortfall and that relate to:
- (1) Any Excess Emissions Penalty which Receiving Party incurs under the Scheme; or
- (2) if “EEP Equivalent” applies, any amount that Receiving Party must pay to a third party to compensate for any such penalty that third party incurs as a result of Delivering Party’s failure to deliver the Shortfall.
Template:Nutshell EUA Annex EEP Non-delivery
Template:Nutshell EUA Annex EEP Payment
EEP Risk Period: The specified period of time before the next Reconciliation Deadline.
Template:Nutshell EUA Annex Encumbrance Loss Amount
Template:Nutshell EUA Annex End of Phase Reconciliation Deadline
Template:Nutshell EUA Annex EU
EU Allowance: an allowance (other than an AEU Allowance) created under the Directive, including those stemming from emission trading systems linked with the EU ETS under Article 25.
Template:Nutshell EUA Annex EUTL or European Transaction Log
Template:Nutshell EUA Annex Excess Emissions Penalty/EEP
Template:Nutshell EUA Annex Expiration Date
Template:Nutshell EUA Annex Final Compliance Date
Final Delivery Date means the second Delivery Business Day after Receiving Party gives a notice of a Failure to Deliver by Delivering Party or, if earlier, the Reconciliation Deadline on or following the Delivery Date.
Fourth Compliance Period means the period running from 1 January 2021 to 31 December 2030.
Holding Account means a digital record maintained in a Registry (under the Registries Regulation) that records allocations, holdings and transfers of Allowances to be delivered under a Transaction.
Template:Nutshell EUA Annex Indemnifiable EEP
Long-Stop Date: Means, for a Suspension Event relating to an obligation due to be performed:
- (1) Between 1 May 2021 and close of business on 31 December 2022, 1 June 2024;
- (2) Between 1 January 2023 and close of business on 31 December 2024, 1 June 2026;
- (3) Between 1 January 2025 and close of business on 31 December 2026, 1 June 2028;
- (4) Between 1 January 2027 and close of business 31 December 2028, 1 June 2030; and
- (5) Between 1 January 2029 and the twenty-fifth day of the month in which the End of Phase Reconciliation Deadline is scheduled to occur, that twenty-fifth day.
Template:Nutshell EUA Annex Member State
Template:Nutshell EUA Annex Multiple Exercise
Template:Nutshell EUA Annex National Administrator
Template:Nutshell EUA Annex No Encumbrance Obligation
Template:Nutshell EUA Annex Notice of Exercise
Number of Allowances will be specified in the Confirmation.
Template:Nutshell EUA Annex Number of Options
Template:Nutshell EUA Annex Operator
Template:Nutshell EUA Annex Option
Template:Nutshell EUA Annex Option Entitlement
Template:Nutshell EUA Annex Original Affected Party
Payment Date: The date specified in the Confirmation, though if A Suspension Event causes delivery to be delayed the Payment Date will be delayed by reference to the Delayed Delivery Date (the “Delayed Payment Date”).
Template:Nutshell EUA Annex Potential Exercise Date
Premium: The amount specified as such in an Allowance Option Transaction. If expressed as a “Premium per Allowance” the Premium will Premium per Allowance x Number of Options x Option Entitlement.
Template:Nutshell EUA Annex Put
Receiving Party means, for a Allowance Forward Transaction or a Call the Buyer, and for a Put the Seller.
Receiving Party’s Delivery Business Day Location will be specified in the Confirmation. If for some reason it isn’t, it will be the place specified in the Emissions Annex and, failing that, Buyer’s address for notices under the Transaction and, failing that, the Receiving Party’s registered office.
Receiving Party’s Replacement Cost means:
- (1) No Excess Emissions Penalty: If “Excess Emissions Penalty” does not apply or the Delivery Date falls outside the EEP Risk Period, then, for a failure to deliver a number of Allowances (the “RPRC Shortfall”), an amount equal to:
- (A)
- (I) the price (per Allowance) Calculation Agent determines that Receiving Party would pay in a reasonable arm’s length transaction on the Final Delivery Date for an equivalent number of Allowances to be delivered on the Delivery Business Day on which Allowances would be ordinarily be delivered under a spot transaction on the Final Delivery Date; less
- (II) the relevant Allowance Purchase Price/Allowance Strike Price plus, where the termination under “Physical Settlement” follows a Suspension Event, the Close-out Cost of Carry Amount; multiplied by:
- (B) the RPRC Shortfall; plus
- (C) interest at the Default Rate from the Delivery Date to the termination date in accordance with “Failure to Deliver Not Remedied” on the product of the RPRC Shortfall and any excess of the price determined under to paragraph (1)(A)(I) over the relevant Allowance Purchase Price/Allowance Strike Price; or
- (2) Excess Emissions Penalty: If “Excess Emissions Penalty” applies and Delivery Date falls within the relevant EEP Risk Period, then, for a failure to deliver a number of Allowances (the “Undelivered Allowances”), an amount equal to the sum of:
- (A) either:
- (I) if Receiving Party can reasonably purchase a number of Allowances for delivery between the Final Delivery Date and the Reconciliation Deadline immediately following the Delivery Date (the “Buy-In Period”), which for each such individual purchase of Allowances, in aggregate equalling the number of Undelivered Allowances:
- (X)
- (1) the price (per Allowance) at which Receiving Party is able so to purchase the relevant number of Allowances; less
- (2)
- (A) the Allowance Purchase Price or Allowance Strike Price, as applicable, for the Undelivered Allowances set out in the relevant Confirmation plus
- (B) Where the termination of the parties’ obligations under “Physical Settlement” follows a Suspension Event, the Close-out Cost of Carry Amount; multiplied by:
- (Y) the affected number of Allowances; plus
- (Z) interest at the Default Rate from the Delivery Date to the termination date under “Failure to Deliver Not Remedied” on the product of the number of Undelivered Allowances and any excess of the determined price over the relevant Allowance Purchase Price/Allowance Strike Price; or
- (II) if Receiving Party cannot reasonably purchase a number of Allowances for delivery equal to the Undelivered Allowances during the Buy-In Period:
- (X) for the number of Allowances Receiving Party can Buy-In during the Buy-In Period, an amount determined under paragraph (I) above; and
- (Y) for a number equal to the Undelivered Allowances minus the Allowances referred to in (II)(X) above (the “Shortfall”), the sum of:
- (a)
- (I) the price (per Allowance) at which Receiving Party can reasonably buy for delivery after the Reconciliation Deadline a number of equivalent Allowances equal to the Shortfall; less
- (II) the relevant Allowance Purchase Price/Allowance Strike Price for the Undelivered Allowances, where the relevant termination of the parties’ obligations under “Physical Settlement” follows a Suspension Event, the Close-out Cost of Carry Amount; plus
- (III) the EEP Amount; multiplied by:
- (b) the Shortfall; plus
- (c) interest at the Default Rate from the Delivery Date to the date Receiving Party could purchase Allowances under paragraph (II)(Y)(a)(1) on an amount equal to the the number of Undelivered Allowances and any excess of the price determined under paragraph (II)(Y)(a)(1) over the relevant Allowance Purchase Price/Allowance Strike Price; and
- (B) Receiving Party’ reasonable costs as a direct result of Delivering Party’s failure to deliver the Shortfall where those costs and expenses are not reflected in paragraphs (A)(I) or (A)(II) above; or
- (3) Failure to Deliver (Alternative Method): If “Failure to Deliver (Alternative Method)” applies then, for a failure to deliver a number of Allowances (“RPRC Shortfall”), an amount equal to:
- (A)
- (I) the price (per Allowance) the Calculation Agent determines that Receiving Party can reasonably buy a number of equivalent Allowances equal to the RPRC Shortfall for delivery on the first standard Delivery Business Day for settling transactions concluded on the Delivery Date; less
- (II) the relevant specified Allowance Purchase Price/Allowance Strike Price plus, where termination of the parties’ obligations under “Physical Settlement” follows a Suspension Event, the Close-out Cost of Carry Amount; multiplied by:
- (B) the RPRC Shortfall; plus
- (C) interest at the Default Rate from the Delivery Date to the Final Delivery Date on the product of the relevant Allowance Purchase Price/Allowance Strike Price, and the RPRC Shortfall.
Reconciliation Deadline means 30th April in each calendar year for the preceding calendar year or such later date in prescribed by the Scheme for the surrender of Allowances.
Registries Regulation means the European regulation governing the registries used in the EU Emissions Trading Scheme.
Template:Nutshell EUA Annex Registry
Registry Operation: The establishment and operation of any of:
- (a) The Relevant Registry.
- (b) The EUTL.
- (c) The link between each Relevant Registry and the EUTL.
- (d) The link between the LSTL and the EUTL.
Template:Nutshell EUA Annex Relevant Authority
Relevant Registry: Means the Registry a party nominates for a particuilar EU Emissions Allowance Transaction. If it has specified multiple Specified Holding Accounts, it will identify the Relevant Registry under Part (d)(i)(2)(C).
Template:Nutshell EUA Annex RPRC Shortfall
Scheme: the scheme for transferring Allowances established by the Directive and the Registries Regulation.
Seller will be specified in the Confirmation.
Template:Nutshell EUA Annex Seller Business Day
Settlement Disruption Event: Something beyond the affected party’s control that, having used all reasonable efforts, it cannot overcome and which makes it impossible to perform its obligations to deliver or to accept Allowances under an EU Emissions Allowance Transaction. The following will not count as Settlement Disruption Events if they cause an inability to deliver Allowances in the affected party’s Specified Holding Account:
- (a) the low or non-allocation of Allowances by any state;
- (b) a Member State or Central Administrator not replacing Third Compliance Period Allowances with Fourth Compliance Period Allowances; or
- (c) any party’s failure of a party to procure sufficient Allowances to meet its delivery obligations.
Something which otherwise would be a Settlement Disruption Event and a Suspension Event, will count as a Suspension Event and not a Settlement Disruption Event.
Template:Nutshell EUA Annex Shortfall
Specified Compliance Period means the compliance period specified in the Confirmation.
Specified Holding Account means any Holding Accounts a party specifies in a Confirmation or, if it does not specify any, in Parts (d)(xii)(1)(A) or (2)(A) as modified by Parts (d)(xii)(1)(B) and (2)(B).
Suspension Event: any date a party cannot perform its delivery or acceptance obligations through a Relevant Registry as a result of:
- (i) there being no Registry Operation; or
- (ii) an Administrator Event.
Template:Nutshell EUA Annex Trade Date
Third Compliance Period means the period set out in Article 16 of the Directive running from 1 January 2013 to 31 December 2020.
Unauthorised Transfer: A transfer of any Allowance from an account holder’s Holding Account to another person’s Holding Account that was not initiated by the first account holder or its authorised representatives.
Template:Nutshell EUA Annex Undelivered Allowances
Union Registry means the “Community Registry” described in Article 19(1) of the Directive.
Template:Nutshell EUA Annex VAT
Template:Nutshell EUA Annex VAT Amount
Template:Nutshell EUA Annex VAT Invoice
Template:Nutshell EUA Annex VAT Jurisdiction
Template:Nutshell EUA Annex Written Confirmation
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Full text of Section (e)
(e) Defined Terms and Interpretation
Administrator Event: Means the suspension of some or all of the processes of a Relevant Registry, the EUTL or, if applicable, the LSTL in accordance with the Registries Regulation by the relevant National Administrator or the Central Administrator (as applicable)
- (i) where that Relevant Registry is not operated and maintained in accordance with the provisions of the Registries Regulation, or any other applicable law, or
- (ii) for the purpose of carrying out scheduled or emergency maintenance, or
- (iii) where there has been or following reasonable suspicion of, a breach of security which threatens the integrity of the registries system (including any back up facilities), or
- (iv) where the mutual recognition of Allowances under a relevant Linking Agreement has been suspended in accordance with the terms of such Linking Agreement.
AEUA or AEU Allowance: Means an “allowance” as defined in the Directive and which is issued under Chapter II thereof.
Affected Allowance: Means an Allowance which is or is alleged to have been the subject of an Unauthorised Transfer as confirmed by an Appropriate Source.
Aircraft Operator: Means an “aircraft operator” as defined in the Directive.
Allowance: Means, in respect of an EU Emissions Allowance Transaction, an allowance to emit one tonne of carbon dioxide (CO2) equivalent during a specified period which is valid for meeting emissions related commitment obligations under the Scheme and which is of the specified Allowance Type and relates to the Specified Compliance Period.
Allowance Forward Transaction means an EU Emissions Allowance Transaction identified as an Allowance Forward Transaction in the related Confirmation.
Allowance Option Transaction: Means an EU Emissions Allowance Transaction identified as an Allowance Option Transaction in the related Confirmation. An Allowance Option Transaction shall be an Option Transaction for purposes of the 2006 ISDA Definitions.
Allowances to be Delivered: Means, in respect of an EU Emissions Allowance Transaction that is:
- (1) an Allowance Forward Transaction, a number of Allowances equal to the Number of Allowances; or
- (2) an Allowance Option Transaction and in respect of an Exercise Date, a number of Allowances equal to the number of Options exercised or deemed exercised on that Exercise Date multiplied by the Option Entitlement.
Allowance Purchase Price: Means, in respect of an EU Emissions Allowance Transaction which is an Allowance Forward Transaction, the amount specified or otherwise determined as provided in the related Confirmation.
Allowance Shortfall: Has the meaning given to such term in Part (d)(iii) (Partial Settlement).
Allowance Strike Price: Means, in respect of an EU Emissions Allowance Transaction which is an Allowance Option Transaction, the price per Allowance specified or otherwise determined as provided in the related Confirmation.
Allowance Type: Means, in respect of an EU Emissions Allowance Transaction, an AEU Allowance or an EU Allowance as specified in the related Confirmation.
Appropriate Source: Means any “competent authority” (as defined in the Registries Regulation) and/or the Central Administrator, National Administrator or any other authority having power pursuant to the Directive and/or the Registries Regulation to block, suspend, refuse, reject, cancel or otherwise affect the transfer (whether in whole or in part) of Allowances, any recognised law enforcement or tax authorities of a Member State, the European Anti-fraud Office of the European Commission or Europol.
Buyer: Means, in respect of an EU Emissions Allowance Transaction, the party specified as such in the related Confirmation.
Buy-In: Means the purchase of Allowances by Receiving Party in accordance with the procedures described in paragraph (2) of the definition of Receiving Party’s Replacement Cost in this Part (e) (Defined Terms and Interpretation).
Buy-In Period: Has the meaning given to such term in the definition of Receiving Party’s Replacement Cost in this Part (e) (Defined Terms and Interpretation).
Calculation Agent: Means, in respect of an EU Emissions Allowance Transaction, the party specified as such in the related Confirmation.
Call: Means a type of an Allowance Option Transaction entitling, but not obligating, Buyer to purchase Allowances from Seller at the Allowance Strike Price per Allowance.
Central Administrator: Means the person designated by the EU Commission to operate and maintain the EUTL pursuant to Article 20(1) of the Directive.
Central European Time: Means Central European Time, including Central European Winter Time and Central European Summer Time as applicable.
Close-out Cost of Carry Amount: Means an amount in EUR equal to: (a) the Close-out Cost of Carry Rate; multiplied by: (b)(i) in respect of an Allowance Forward Transaction, the Allowance Purchase Price; or (ii) in respect of an Allowance Option Transaction, the Allowance Strike Price; multiplied by: (c) the Close-out Cost of Carry Delay, divided by (d) 360.
Close-out Cost of Carry Delay: Means the number of days in the period from (and including) the scheduled Payment Date to (but excluding) the date that would be the Payment Date if delivery had been made on the Final Delivery Date or Final Compliance Date (as the case may be).
Close-out Cost of Carry Rate: Means a rate equal to the Floating Rate that would be determined for the period from the scheduled Payment Date to the Early Termination Date, if the Reset Date were the date that would be the Payment Date if delivery had been made on the Final Delivery Date or Final Compliance Date (as the case may be) and the applicable Floating Rate Option were “EUR-EONIA-OIS-COMPOUND”.
Cost of Carry Amount: Means an amount in EUR equal to:
- (a) the Cost of Carry Rate multiplied by:
- (b)
- (i) in respect of an Allowance Forward Transaction, the Allowance Purchase Price multiplied by the Number of Allowances delivered on or before the Delayed Delivery Date following the occurrence of a Suspension Event; or
- (ii) in respect of an Allowance Option Transaction, the Allowance Strike Price multiplied by the Number of Allowances delivered on or before the Delayed Delivery Date following the occurrence of a Suspension Event;
- multiplied by:
- (c) the Cost of Carry Delay, divided by 360.[2]
Cost of Carry Delay: Means the number of days in the period from (and including) the scheduled Payment Date to (but excluding) the Delayed Payment Date.
Cost of Carry Rate: Means a rate equal to the Floating Rate that would be determined for a Calculation Period commencing on (and including) the scheduled Payment Date and ending on (but excluding) the Delayed Payment Date, if the Reset Date were the last day of that Calculation Period and the applicable Floating Rate Option were “EUR-EONIA-OIS-COMPOUND”.
Deadline Shortfall: Has the meaning given to such term in Part (d)(xi) (Failure to Deliver (Alternative Method) – EEP Applicable).
Delayed Delivery Date: Has the meaning given to that term in Part (d)(i)(5)(B) (Effect of a Suspension Event).
Delayed Payment Date: Has the meaning given to that term in the definition of Payment Date in this (e) (Defined Terms and Interpretation).
Delivering Party: Means, in respect of an EU Emissions Allowance Transaction that is:
- (1) an Allowance Forward Transaction, the Seller;
- (2) an Allowance Option Transaction which is a Call, the Seller; or
- (3) an Allowance Option Transaction which is a Put, the Buyer.
Delivering Party’s Delivery Business Day Location: Means, in respect of an EU Emissions Allowance Transaction, the place specified as such in the Confirmation for the relevant EU Emissions Allowance Transaction or, if a place is not so specified:
- (i) the place specified in the Annex to this Part [7] as the Delivery Business Day Location for Delivering Party; or
- (ii) if no such place is specified, the place in which Seller’s address for purposes of receiving notices connected with the relevant EU Emissions Allowance Transaction is located; or
- (iii) if no such address has been given, the place in which Delivering Party has its registered office.
Delivering Party’s Replacement Cost: Means in respect of a failure of Receiving Party to accept delivery of a number of Allowances (the “DPRC Shortfall”), an amount equal to:
- (i)
- (1) the Allowance Purchase Price or Allowance Strike Price, as applicable, as set out in the Confirmation for the relevant EU Emissions Allowance Transaction plus, in those circumstances in which the relevant termination of the parties’ obligations under “Physical Settlement” occurs following a Suspension Event, the Close-out Cost of Carry Amount; less
- (2) the price (per Allowance) Delivering Party, acting in a commercially reasonable manner, does or would, in the determination of the Calculation Agent, receive in an arm’s length transaction concluded on the Final Compliance Date for an equivalent number of Allowances of the relevant Allowance Type to be delivered on the Final Compliance Date or, if later, the Delivery Business Day on which Allowances would be delivered in accordance with prevailing market practice under a spot transaction concluded on the Final Compliance Date; multiplied by:
- (ii) the DPRC Shortfall; plus
- (iii) interest at the Default Rate for the period from (and including) the Delivery Date to (but excluding) the date of termination in accordance with Part (d)(ii)(2)(B)(Failure to Comply Not Remedied) on an amount equal to the product of the DPRC Shortfall and an amount equal to the excess, if any, of the Allowance Purchase Price or Allowance Strike Price, as applicable, over the price determined pursuant to paragraph (i)(2) above.
Delivery Business Day: Means, in respect of an EU Emissions Allowance Transaction, any day, which is not a Saturday or Sunday, on which commercial banks are open for general business in both Delivering Party’s Delivery Business Day Location and the Receiving Party’s Delivery Business Day Location.
Delivery Date: Means, in respect of an EU Emissions Allowance Transaction, the date or dates specified as such in the related Confirmation (subject to any adjustment in accordance with Part (d)(i)(5) (Suspension Event)).
Directive: Means Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, as amended from time to time.
DPRC Shortfall: Has the meaning given to such term in the definition of Delivering Party’s Replacement Cost in this Part (e) (Defined Terms and Interpretation).
EEP Amount: Means an amount (expressed as an amount per Allowance) that Receiving Party determines, acting in good faith and using commercially reasonable procedures, to be its total losses and costs which result from Delivering Party’s failure to deliver the Shortfall to the extent that those losses and costs are not reflected elsewhere in the definition of Receiving Party’s Replacement Cost and to the extent that those losses and costs relate to:
- (1) any Excess Emission Penalty which Receiving Party must pay to the Relevant Authority in accordance with the terms of the Scheme; and/or
- (2) if “EEP Equivalent” is specified to be applicable in the Annex to this Part [7] or the Confirmation for the relevant EU Emissions Allowance Transaction, any amount which Receiving Party must pay to a third party in respect of any such penalty payable to any other party (including a Relevant Authority) by that third party as a result of Delivering Party’s failure to deliver the Shortfall.
EEP Non-delivery: Has the meaning given to such term in Part (d)(xi) (Failure to Deliver (Alternative Method) – EEP Applicable).
EEP Payment: Has the meaning given to such term in Part (d)(xi) (Failure to Deliver (Alternative Method) – EEP Applicable).
EEP Risk Period: Means, in respect of an EU Emissions Allowance Transaction and any Delivery Date, a period of time prior to the first succeeding Reconciliation Deadline, as specified in the related Confirmation.
Encumbrance Loss Amount: An amount reasonably determined by Receiving Party in good faith to be its total losses and costs in connection with an EU Emissions Allowance Transaction including, but not limited to, any loss of bargain, cost of funding or, at the election of Receiving Party but without duplication, loss or costs incurred as a result of its terminating, liquidating, obtaining or re-establishing any hedge or related trading position. Such amount includes losses and costs in respect of any payment already made under an EU Emissions Allowance Transaction prior to the delivery of the written notice by Receiving Party and Receiving Party’s legal fees and out-of-pocket expenses but does not include Excess Emissions Penalty or any amount which Receiving Party must pay to a third party in respect of any such penalty payable to any other party (or Relevant Authority) by that third party. The parties agree that in circumstances where there was a breach of the No Encumbrances Obligation by Delivering Party caused by the transfer of an Affected Allowance, Receiving Party shall be entitled to include in such amount any losses arising out of or in connection with any claim, demand, action or proceeding brought against Receiving Party by a third party consequent upon the transfer by Receiving Party of an Affected Allowance transferred to it by Delivering Party under an EU Emissions Allowance Transaction.
End of Phase Reconciliation Deadline: Means, in respect of an EU Emissions Allowance Transaction, the Reconciliation Deadline scheduled to fall in April 2031.
EU: Means the European Community as it exists from time to time.
EU Allowance: Means an allowance, other than an AEUA or AEU Allowance, created pursuant to the Directive, including allowances stemming from emission trading systems that are linked with the EU ETS pursuant to Article 25 of the Directive.
EUTL or European Transaction Log: Means the independent transaction log provided for in Article 20(1) of the Directive, the operation of which is further detailed in Article 6 of the Registries Regulation.
Excess Emissions Penalty/EEP: Has the meaning given to it in the Directive.
Expiration Date: Means, in respect of an EU Emissions Allowance Transaction which is an Allowance Option Transaction, the date specified as such in the related Confirmation (or determined pursuant to a method specified for such purpose) or, if that date is not a Business Day, the next following day that is a Business Day.
Final Compliance Date: Means, the date that is the second Delivery Business Day after notice is given under Part (d)(ii)(2) (Failure to Comply byReceiving Party) requiring Receiving Party to comply with Part (d)(vi) (Requirements under the Scheme) or, if earlier, the Reconciliation Deadline on or immediately following the relevant Delivery Date.
Final Delivery Date: Means, the date that is the second Delivery Business Day after notice is given under Part (d)(ii)(1) (Failure to Deliver by Delivering Party) requiring Delivering Party to remedy a failure to deliver or, if earlier, the Reconciliation Deadline on or immediately following the relevant Delivery Date.
Fourth Compliance Period: Means, in respect of EU Allowances and AEU Allowances, the period starting 1 January 2021 to 31 December 2030.
Holding Account: Means a form of digital record maintained in a Registry (pursuant to and in accordance with the Registries Regulation) that is able to be used to record the allocation (if applicable), holding and transfer of Allowances of the Allowance Type that is to be delivered under the relevant EU Emissions Allowance Transaction pursuant to and in accordance with the Scheme.
Indemnifiable EEP: Has the meaning given to such term in Part (d)(xi) (Failure to Deliver (Alternative Method) – EEP Applicable).
Long-Stop Date: Means, in respect of a Suspension Event that occurs with respect to a delivery or acceptance obligation that would otherwise be required to be performed within the period:
- (1) from (and including) 1 May 2021 to (and including) 31 December 2022, 1 June 2024;
- (2) from (and including) 1 January 2023 to (and including) 31 December 2024, 1 June 2026;
- (3) from (and including) 1 January 2025 to (and including) 31 December 2026, 1 June 2028 ;
- (4) from (and including) 1 January 2027 to (and including) 31 December 2028, it shall be 1 June 2030; and
- (5) from (and including) 1 January 2029 to (and including) the twenty-fifth (25th) calendar day of the month in which the End of Phase Reconciliation Deadline is scheduled to occur, the twenty-fifth (25th) calendar day of the month in which the End of Phase Reconciliation Deadline is scheduled to occur.
LSTL: Means a transaction log of a non-Member State that is linked to the EUTL under the terms of a relevant Linking Agreement.
Member State: Means any one of the signatories of the European Union from time to time.
Multiple Exercise: Means:
- (1) If “Multiple Exercise” is specified to be applicable to an EU Emissions Allowance Transaction which is an American Allowance Option Transaction or a Bermuda Allowance Option Transaction, Buyer may exercise all or less than all the unexercised Options on one or more Business Days during the Exercise Period but (except as set forth below) on any such Business Day may not exercise less than the Minimum Number of Options or more than the Maximum Number of Options and, if a number is specified as “Integral Multiple” in the related Confirmation, the number of exercised Options must be equal to, or be an integral multiple of, the number so specified. Except as set forth below, any attempt to exercise on any such Business Day:
- (A) more than the Maximum Number of Options will be deemed to be an exercise of the Maximum Number of Options (the number of Options exceeding the Maximum Number of Options being deemed to remain unexercised);
- (B) less than the Minimum Number of Options will be ineffective; and
- (C) an amount of Options not equal to or an integral multiple of the Integral Multiple will be deemed to be an exercise of a number of Options equal to the next lowest integral multiple of the Integral Multiple (the number of Options exceeding that number being deemed to remain unexercised).
- (2) Notwithstanding the foregoing, on any such Business Day, Buyer may exercise any number of Options that does not exceed the Maximum Number of Options if it exercises all the Options remaining unexercised. On the Expiration Date, Buyer may exercise any number of Options remaining unexercised.
- (3) “Minimum Number of Options” means, in respect of an Allowance Option Transaction to which Multiple Exercise is applicable, the number specified as such in the related Confirmation.
- (4) “Maximum Number of Options” means, in respect of an Allowance Option Transaction to which Multiple Exercise is applicable, the number specified as such in the related Confirmation.
National Administrator: Means (i) the entity responsible for managing, on behalf of a Member State, a set of user accounts under the jurisdiction of a Member State in the Union Registry as designated in accordance with Article 7 of the Registries Regulation, or (ii) the entity identified as an administrator in respect of an LSTL.
No Encumbrance Obligation: Has the meaning given to such term in Part (d)(vii) (No Encumbrances).
Notice of Exercise: Means, in respect of an EU Emissions Allowance Transaction which is an Allowance Option Transaction, an Option notice given by Buyer to Seller (which may be given orally (including by telephone) unless the parties specify otherwise in the related Confirmation) of its exercise of the right or rights granted pursuant to the Allowance Option Transaction during the hours specified in the relevant Confirmation on a Seller Business Day during the Exercise Period, which shall be irrevocable once effective. If the Notice of Exercise is received on any Seller Business Day after the latest time so specified, the Notice of Exercise will be deemed to have been received on the next following Seller Business Day, if any, in the Exercise Period. Buyer may exercise the right or rights granted pursuant to the Allowance Option Transaction only by giving a Notice of Exercise.
Number of Allowances: Means, in respect of an EU Emissions Allowance Transaction, the number specified as such in the related Confirmation.
Number of Options: Means, in respect of an EU Emissions Allowance Transaction which is an Allowance Option Transaction, the number specified as such in the related Confirmation, being the number of Options comprised in the relevant Allowance Option Transaction.
Operator: Means an “operator” as defined in the Directive.
Option: Means, in respect of an Allowance Option Transaction, each unit into which the Option Transaction is divided for purposes of exercise or settlement.
Option Entitlement: Means, in respect of an EU Emissions Allowance Transaction which is an Allowance Option Transaction, the number of Allowances per Option specified as such in the related Confirmation. In the event that no Option Entitlement is specified in the related Confirmation, the Option Entitlement in respect of any Allowance Option Transaction shall be one Allowance per Option.
Original Affected Party: Means the person from whose account the Unauthorised Transfer of the Affected Allowance occurred.
Payment Date: Means, in respect of an EU Emissions Allowance Transaction, the date specified as such or otherwise determined pursuant to a method specified in the related Confirmation, provided that, in the case of delayed delivery pursuant to Part(d)(i)(5)(Suspension Event), the Payment Date shall be determined accordingly from the Delayed Delivery Date (such Payment Date being the “Delayed Payment Date”).
Potential Exercise Date: Means, in respect of an EU Emissions Allowance Transaction which is a Bermuda Allowance Option Transaction, each date specified as such in the related Confirmation or, if that date is not a Business Day, the next following day that is a Business Day.
Premium: Means, in respect of an EU Emissions Allowance Transaction which is an Allowance Option Transaction, the amount specified or otherwise determined as provided in the related Confirmation. If a Premium per Allowance is specified in the related Confirmation, the Premium shall be the product of the Premium per Allowance, the Number of Options and the Option Entitlement.
Put: Means a type of Allowance Option Transaction entitling, but not obligating, the Buyer to sell Allowances to Seller at the Allowance Strike Price per Allowance.
Receiving Party: Means, in respect of an EU Emissions Allowance Transaction that is:
- (1) an Allowance Forward Transaction, the Buyer;
- (2) an Allowance Option Transaction which is a Call, the Buyer; or
- (3) an Allowance Option Transaction which is a Put, the Seller.
Receiving Party’s Delivery Business Day Location: Means, in respect of an EU Emissions Allowance Transaction, the place specified as such in the Confirmation for the relevant EU Emissions Allowance Transaction or, if a place is not so specified:
- (i) the place specified in the Annex to this Part as the Delivery Business Day Location for Receiving Party; or
- (ii) if no such place is specified, the place in which Receiving Party’s address for purposes of receiving notices connected with the relevant EU Emissions Allowance Transaction is located; or
- (iii) if no such address has been given, the place in which Receiving Party has its registered office.
Receiving Party’s Replacement Cost means:
- (1) if “Excess Emissions Penalty” is specified not to be applicable in the Annex to this Part or the Confirmation for the relevant EU Emissions Allowance Transaction, or if “Excess Emissions Penalty” is specified to be applicable and if an EEP Risk Period is specified in the Annex to this Part or in the Confirmation for the relevant EU Emissions Allowance Transaction but the Delivery Date falls outside the EEP Risk Period then, in respect of a failure to deliver a number of Allowances (the “RPRC Shortfall”), an amount equal to:
- (A)
- (I) the price (per Allowance) that Receiving Party, acting in a commercially reasonable manner, does or would, in the determination of the Calculation Agent, pay in an arm’s length transaction concluded on the Final Delivery Date for an equivalent number of Allowances to be delivered on the Final Delivery Date or, if later, the Delivery Business Day on which Allowances would be delivered in accordance with prevailing market practice under a spot transaction concluded on the Final Delivery Date; less
- (II) the Allowance Purchase Price or Allowance Strike Price, as applicable, as set out in the Confirmation for the relevant EU Emissions Allowance Transaction plus, in those circumstances in which the relevant termination of the parties’ obligations under “Physical Settlement” occurs following a Suspension Event, the Close-out Cost of Carry Amount; multiplied by:
- (B) the RPRC Shortfall; plus
- (C) interest at the Default Rate for the period from (and including) the Delivery Date to (but excluding) the date of termination in accordance with Part [7](d)(ii)(1)(B)(Failure to Deliver Not Remedied) on an amount equal to the product of the RPRC Shortfall and an amount equal to the excess, if any, of the price determined pursuant to paragraph (1)(A)(I) above over the Allowance Purchase Price or the Allowance Strike Price, as applicable; or
- (2) if “Excess Emissions Penalty” is specified to be applicable in the Annex to this Part or the Confirmation for an EU Emissions Allowance Transaction and, if an EEP Risk Period is specified in the Annex to this Part or in the Confirmation for the relevant EU Emissions Allowance Transaction, the Delivery Date falls within the EEP Risk Period for the relevant EU Emissions Allowance Transaction, then, in respect of a failure to deliver a number of Allowances (the “Undelivered Allowances”), an amount equal to the sum of:
- (A) either:
- (I) if in one or more arm’s length transactions Receiving Party is able, using its reasonable endeavours, to purchase a number of Allowances to be delivered during the period from (but excluding) the Final Delivery Date to (and including) the Reconciliation Deadline on or immediately following the Delivery Date (the “Buy-In Period”), which in respect of each such individual purchase of Allowances, when aggregated with other such purchases, amounts to a purchase of a number of Allowances equal to the number of Undelivered Allowances:
- (X)
- (1) the price (per Allowance) at which Receiving Party is able so to purchase the relevant number of Allowances; less
- (2) (A) the Allowance Purchase Price or Allowance Strike Price, as applicable, for the Undelivered Allowances set out in the relevant Confirmation plus, (B) in those circumstances in which the relevant termination of the parties’ obligations under “Physical Settlement” occurs following a Suspension Event, the Close-out Cost of Carry Amount; multiplied by:
- (Y) the number of Allowances to which such purchase relates; plus
- (Z) interest at the Default Rate for the period from (and including) the Delivery Date to (but excluding) the date of termination in accordance with Part [7](d)(ii)(1)(B)(Failure to Deliver Not Remedied) on an amount equal to the product of the number of Undelivered Allowances and an amount equal to the excess, if any, of the price determined pursuant to paragraph (2)(A)(I)(X)(1) above over the Allowance Purchase Price or Allowance Strike Price, as applicable; or
- (II) if in one or more arm’s length transactions Receiving Party, using its reasonable efforts, is unable to purchase a number of Allowances equivalent to the Undelivered Allowances to be delivered during the Buy-In Period:
- (X) in respect of the number of Allowances for which Receiving Party is able to effect a Buy-In during the Buy-In Period, an amount for such Allowances calculated in accordance with paragraph (I) above; and
- (Y) in respect of a number of Allowances equal to the number of Undelivered Allowances minus the number of Allowances referred to in (II)(X) above (the “Shortfall”), the sum of:
- (a)
- (I) the price (per Allowance) at which Receiving Party, using its reasonable efforts and in an arm’s length transaction, is able to purchase as soon as reasonably possible for delivery after the Reconciliation Deadline a number of Allowances (such Allowances also being of the same Allowance Type equal to the Shortfall; less
- (II) the Allowance Purchase Price or Allowance Strike Price, as applicable, for the Undelivered Allowances set out in the relevant Confirmation plus, in those circumstances in which the relevant termination of the parties’ obligations under “Physical Settlement” occurs following a Suspension Event, the Close-out Cost of Carry Amount; plus
- (III) the EEP Amount; multiplied by:
- (b) the Shortfall; plus
- (c) onterest at the Default Rate for the period from (and including) the Delivery Date to (but excluding) the date Receiving Party is or would be able to purchase Allowances in accordance with paragraph (II)(Y)(a)(1) above on an amount equal to the product of the number of Undelivered Allowances and an amount equal to the excess, if any, of the price determined pursuant to paragraph (II)(Y)(a)(1) above over the Allowance Purchase Price or the Allowance Strike Price, as applicable; and
- (B) such reasonable costs and expenses which Receiving Party incurs as a direct result of Delivering Party’s failure to deliver the Shortfall to the extent that those costs and expenses are not reflected in paragraphs (A)(I) or (A)(II) above; or
- (3) if “Failure to Deliver (Alternative Method)” is specified to be applicable in the Annex to this Part or the Confirmation for an EU Emissions Allowance Transaction, then, in respect of a failure to deliver a number of Allowances (the number of Allowances not so delivered being the “RPRC Shortfall”), an amount equal to:
- (A)
- (I) the price (per Allowance) Receiving Party, acting in a commercially reasonable manner, does or would, in the determination of the Calculation Agent, pay in an arm’s length transaction concluded in accordance with prevailing market practice on the Final Delivery Date to purchase a number of Allowances equivalent to the RPRC Shortfall for delivery on the first Delivery Business Day on which transactions concluded on the Delivery Date would be settled in accordance with prevailing market practice; less
- (II) the Allowance Purchase Price or Allowance Strike Price, as applicable, as set out in the Confirmation for such EU Emissions Allowance Transaction plus, in those circumstances in which the relevant termination of the parties’ obligations under “Physical Settlement” occurs following a Suspension Event, the Close-out Cost of Carry Amount; multiplied by:
- (B) the RPRC Shortfall; plus
- (C) interest at the Default Rate for the period from (and including) the Delivery Date to (but excluding) the Final Delivery Date on an amount equal to the product of the Allowance Purchase Price or the Allowance Strike Price, as applicable, and the RPRC Shortfall.
Reconciliation Deadline: Means, in respect of an EU Emissions Allowance Transaction, 30th April in each calendar year in respect of the preceding calendar year or such later date in each year as may be determined in accordance with the Scheme for the surrender of Allowances pursuant to the Scheme.
Registries Regulation: Means the Commission Regulation (EU) no. 389/2013 of 2 May 2013 establishing a Union Registry pursuant to the Directive 2003/87/EC of the European Parliament and of the Council, Decisions No.280/2004/EC and No. 406/2009/EC of the European Parliament and of the Council and repealing Commission Regulation (EU) No. 920/2010 and No. 1193/2011, as amended from time to time.
Registry: Means the registry established by a Member State, a non-Member State or the EU, in accordance with the International Rules, in order to ensure the accurate accounting of the issue, holding, transfer, acquisition, surrender, cancellation and replacement of Allowances. For the avoidance of doubt, references to a Registry shall include the Union Registry and the Holding Accounts within the Union Registry that are under the jurisdiction of a single National Administrator designated by a Member State and will together be deemed, for the purpose of this Part, to be a Registry for that Member State.
Registry Operation: Means, other than by reason of the occurrence of an Administrator Event:
- (a) the establishment of and continuing functioning of the Relevant Registry;
- (b) the establishment of and continuing functioning of the EUTL;
- (c) the establishment of and continuing functioning of the link between each of the Relevant Registry and the EUTL; and/or
- (d) the continued functioning of the link between each of the LSTL and the EUTL.
Relevant Authority: Means any authority having power pursuant to the Directive and/or the Registries Regulation to administer the Scheme, including the Central Administrator and each National Administrator as those terms are defined in the Registries Regulation.
Relevant Registry: Means the Registry through which a party is obliged to perform a delivery or acceptance obligation under and in accordance with an EU Emissions Allowance Transaction. Where a party has specified more than one Specified Holding Account for delivery or acceptance purposes, the Relevant Registry shall be identified in accordance with Part (d)(i)(2)(C).
RPRC Shortfall: Has the meaning given to such term in the definition of Receiving Party’s Replacement Cost in this Part (e) (Defined Terms and Interpretation).
Scheme: Means the scheme for transferring Allowances established pursuant to the Directive and the Registries Regulation, and as implemented by the national laws of Member States.
Seller: Means, in respect of an EU Emissions Allowance Transaction, the party specified as such in the related Confirmation.
Seller Business Day: Means, in respect of an EU Emissions Allowance Transaction which is an Allowance Option Transaction, any day on which commercial banks are open for business (including dealings in foreign exchange and foreign currency deposits) in the city in which Seller is located for purposes of receiving notices.
Settlement Disruption Event: Means an event or circumstance beyond the control of the party affected that cannot, after the use of all reasonable efforts, be overcome and which makes it impossible for that party to perform its obligations either to deliver or to accept Allowances in accordance with the terms of an EU Emissions Allowance Transaction.
For the avoidance of doubt, the inability of a party to deliver Allowances as a result of insufficient Allowances in the relevant Specified Holding Account, whether caused by the low or non-allocation of Allowances by a Member State or any other state, the delay or failure of a Member State or Central Administrator to replace Allowances of the Third Compliance Period with Allowances for the Fourth Compliance Period, or the failure of a party to procure sufficient Allowances to meet its delivery obligations, shall not constitute a Settlement Disruption Event. This is not an exhaustive list of events which will not constitute a Settlement Disruption Event and is provided for the avoidance of doubt only.
If an event or circumstance which would otherwise constitute or give rise to a Settlement Disruption Event also constitutes a Suspension Event, it will be treated as a Suspension Event and will not constitute a Settlement Disruption Event.
Shortfall: Has the meaning given to such term in the definition of Receiving Party’s Replacement Cost in this Part (e) (Defined Terms and Interpretation).
Specified Compliance Period: Means, in respect of an Allowance and an EU Emissions Allowance Transaction, the period as specified in the Confirmation for the relevant EU Emissions Allowance Transaction.
Specified Holding Account: Means, in respect of a party and an EU Emissions Allowance Transaction, the Holding Accounts (if any) specified as such in respect of such party (i) in the Confirmation for the relevant EU Emissions Allowance Transaction; or (ii) where no such accounts are specified in accordance with (i), in the Annex to this Part; in either case in accordance with Part (d)(xii)(1)(A) or Part (d)(xii)(2)(A) (as applicable) and subject to modification in accordance with Part (d)(xii)(1)(B) and Part (d)(xii)(2)(B).
Suspension Event: Means any date a party to the Agreement is unable to perform its delivery or acceptance obligations under and in accordance with an EU Emissions Allowance Transaction and the Scheme through a Relevant Registry as a result of the occurrence of any of the following events:
- (i) absence of Registry Operation; or
- (ii) the occurrence of an Administrator Event.
Trade Date: Means, in respect of an EU Emissions Allowance Transaction, the date specified in the related Confirmation.
Third Compliance Period: Means, in respect of EU Allowances and AEU Allowances, the period referred to in Article 16 of the Directive 2009/29/EC starting 1 January 2013 to 31 December 2020.
Unauthorised Transfer: Means the transfer by debiting of any Allowance from an account holder’s Holding Account and the crediting of a Holding Account of another person, where such transfer is not initiated by the relevant authorised representative or additional authorised representative (as referred to in the Registries Regulation) of the first account holder.
Undelivered Allowances: Has the meaning given to such term in the definition of Receiving Party’s Replacement Cost in this Part (e) (Defined Terms and Interpretation).
Union Registry: Means the Registry referred to as the “Community Registry” in Article 19(1) of the Directive.
VAT: Has the meaning given to such term in Part (d)(viii) (Value Added Taxes).
VAT Amount: Has the meaning given to such term in Part (d)(viii) (Value Added Taxes).
VAT Invoice: Has the meaning given to such term in Part (d)(v) (Invoicing).
VAT Jurisdiction: Means, in respect of a party and an EU Emissions Allowance Transaction, the place specified as such in the related Confirmation or, if a place is not so specified, the place specified in the Annex to this Part as the VAT Jurisdiction for such party.
Written Confirmation: Means, in respect of a party and an EU Emissions Allowance Transaction which is an Allowance Option Transaction, if “ Written Confirmation” is specified to be applicable or if demanded by Seller (which demand, notwithstanding any provisions regarding notice applicable to the Allowance Option Transaction, may be given orally (including by telephone)), Buyer shall execute a written confirmation (including by facsimile transmission) confirming the substance of the Notice of Exercise and deliver the same to Seller. Buyer shall cause such executed written confirmation to be received by Seller within one Seller Business Day following the date that the Notice of Exercise or Seller’s demand, as the case may be, becomes effective.
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