Template:Nutshell EUA Annex (d)(ii)(3)

(d)(ii)(3) EEP Amount: If “Excess Emissions Penalty” applies and, following Delivering Party’s failure to deliver, Receiving Party becomes liable for an EEP Amount, it must provide, upon Delivering Party’s request, reasonably satisfactory evidence that:

(A) it has incurred an EEP Amount consequent on Delivering Party’s failure; and

(B) the extent to which this results from Delivering Party’s failure; and

(C) that it could not have used other Allowances to which it had title to reduce its liability for the EEP Amount it claims from Delivering Party.

Delivering Party’s obligation to pay any EEP Amount under “Failure to Deliver” is subject to Receiving Party’s having used reasonable endeavours to avoid and mitigate its liability for EEP Amounts and to allocate them pro rata between all its counterparties who have failed to deliver Allowances to it provided, that the onus will be on Delivering Party to show that Receiving Party has failed to do so.