If the project is short of its annual quantity in a delivery and the project has RECs in excess of its annual quantity in the next delivery year, can I use those excess RECs to “cure” the shortfall of the prior year?

We address your question in two parts. First, under the terms of the REC Contract, it is an event of default if (a) Seller fails to meet the delivery year requirement in 3 or more delivery years and (b) the Shortfall Amount equals or exceeds the annual quantity. If you cannot meet the delivery year requirement in a delivery year, then this will count as a year in which you have failed to meet the delivery year requirement regardless of whether or not you have RECs in excess of your delivery year requirement in a subsequent year. Please see Section 3(g) of the Cover Sheet and Section 5.1(b) of the Master REC Agreement as modified in the Cover Sheet for more information.

Second, while a Seller cannot deliver RECs in excess of the Delivery Year Requirement in a given delivery year, the REC Contract provides for an exception in the last Delivery Year. In the last Delivery Year, the Seller may deliver excess RECs from prior years for payment provided that cumulatively the quantity does not exceed the Maximum Contract Quantity under the REC Contract. Please see Section 3(i) of the Cover Sheet and Section 2.2 of the Master REC Agreement as modified in the Cover Sheet for more information.

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W&S-121: If the project is short of its annual quantity in a delivery and the project has RECs in excess of its annual quantity in the next delivery year, can I use those excess RECs to “cure” the shortfall of the prior year?