Template:UKA Annex (d)(vii): Difference between revisions

{{euaprov|(d)(vii)}} '''{{euaprov|No Encumbrances}}'''<br>

In respect of each delivery of {{euaprov|Allowances}}, {{euaprov|Delivering Party}} shall deliver {{euaprov|Allowances}}, free and clear of all [[Lien|liens]], [[Security interest|security interests]], claims and [[Encumbrance|encumbrances]] or any interest in or to them by any person (the “'''{{euaprov|No Encumbrance Obligation}}'''”).  

Where a party is in breach of the {{euaprov|No Encumbrance Obligation}}, the following shall apply:

:(1) This {{isdaprov|Agreement}} and all other {{euaprov|Transactions}} agreed by the parties under this {{isdaprov|Agreement}} shall continue unaffected.  

:(2) [[Without prejudice]] to any defences available to {{euaprov|Delivering Party}} (including, but not limited to, any defences of [[Statute of limitations|statutes of limitation]] or similar), following written notice of that breach from {{euaprov|Receiving Party}} to {{euaprov|Delivering Party}} (irrespective of how long after the relevant {{euaprov|Delivery Date}} such notice is provided) and subject to Part (d)(vii)(4) below, {{euaprov|Receiving Party}} shall:  

::(A) determine the {{euaprov|Encumbrance Loss Amount}} arising from that breach either on the date such notice is deemed to be received or as soon as reasonably practicable thereafter; and  

::(B) shall notify {{euaprov|Delivering Party}} of such {{euaprov|Encumbrance Loss Amount}} due, including detailed support for its calculation.  

{{euaprov|Receiving Party}} is not required to enter into replacement transactions in order to determine the {{euaprov|Encumbrance Loss Amount}}.  

:(3) By no later than the third (3rd) Business Day after the later of (i) receipt of a valid invoice in connection with such {{euaprov|Encumbrance Loss Amount}} and (ii) receipt of the above-mentioned notice including detailed support of {{euaprov|Receiving Party}}’s calculation of the {{euaprov|Encumbrance Loss Amount}}, {{euaprov|Delivering Party}} shall pay the {{euaprov|Encumbrance Loss Amount}} to {{euaprov|Receiving Party}}, which amount shall bear interest at the {{euaprov|Default Rate}}. Upon payment of the {{euaprov|Encumbrance Loss Amount}} by {{euaprov|Delivering Party}}, the parties shall have no further obligations in respect of that {{euaprov|EU Emissions Allowance Transaction}} and that breach. {{euaprov|Receiving Party}} acknowledges that its exclusive remedies in respect of such breach are those set out in this Part(d)(vii)(No Encumbrances).

:(4) Where a breach of the {{euaprov|No Encumbrances Obligation}} is caused by the transfer of an {{euaprov|Affected Allowance}}, {{euaprov|Delivering Party}} shall be liable for the {{euaprov|Encumbrance Loss Amount}} if, at the date it first acquired, received or purchased such {{euaprov|Affected Allowance}}, it was not acting [[in good faith]]; otherwise, {{euaprov|Delivering Party}} shall only be liable for the {{euaprov|Encumbrance Loss Amount}} (without prejudice to any other defences available to {{euaprov|Delivering Party}} [[including, but not limited to]], any defences of statutes of limitation or similar), if:  

::(A) {{euaprov|Receiving Party}}, whether or not the holder of such {{euaprov|Affected Allowance}}, who is subject to a claim of the {{euaprov|Original Affected Party}}, has, in order to resist or avoid any {{euaprov|Encumbrance Loss Amount}} from arising, used its best endeavours to defend such a claim in respect of that {{euaprov|Affected Allowance}} (including, if available, by relying on Article 40 of the {{euaprov|Registries Regulation}} or any equivalent legal principle under applicable national law) and was unsuccessful (other than for reasons of its own lack of good faith); or  

::(B) {{euaprov|Receiving Party}}, whether or not the holder of such {{euaprov|Affected Allowance}}, who acted in good faith in respect of its purchase of such {{euaprov|Affected Allowance}} and who is subject to a claim of a third party (other than the {{euaprov|Original Affected Party}}) in respect of that {{euaprov|Affected Allowance}}, has used all reasonable endeavours to mitigate the {{euaprov|Encumbrance Loss Amount}}. <br>