POWER PURCHASE AGREEMENT

POWER PURCHASE AGREEMENT
EXECUTION VERSION
between
SAGUARO FLATS SOLAR LLC
a Delaware limited liability company
("Seller")
and
MERIDIAN DATACORE SOLUTIONS INC.
a Delaware corporation
("Buyer")
Dated as of September 15, 2025
Project: Saguaro Flats Solar Project Location: Pecos County, Texas
Aggregate Nominal Contract Value: $140,000,000
POWER PURCHASE AGREEMENT
This POWER PURCHASE AGREEMENT (this "Agreement") is made and entered into as of September 15, 2025 (the "Effective Date"), by and between:
SAGUARO FLATS SOLAR LLC, a Delaware limited liability company ("Seller"),
and
MERIDIAN DATACORE SOLUTIONS INC., a Delaware corporation ("Buyer").
Seller and Buyer are each referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, Seller is a Delaware limited liability company (EIN: 93-1284506), a wholly owned subsidiary of Calloway-Briggs Renewables Inc., a Delaware corporation ("CBR" or "Parent"), with its registered agent at Capitol Registered Agents LLC, 850 New Burton Road, Suite 201, Dover, DE 19904;
WHEREAS, Seller is developing a ground-mounted single-axis tracking solar photovoltaic generating facility with a nameplate capacity of 195 MWdc / 150 MWac (DC:AC ratio of approximately 1.30) located on approximately 1,400 acres in Pecos County, Texas, on FM Road 1776, approximately 12 miles southeast of Fort Stockton, TX 79735 (the "Facility" or the "Saguaro Flats Solar Project");
WHEREAS, Buyer is a Delaware corporation (EIN: 47-5918320), a hyperscale and co-location data center operator publicly traded on the Nasdaq Stock Market (ticker: MDCS), with headquarters at 700 Lakeshore Parkway, Building C, Austin, TX 78746;
WHEREAS, Seller desires to sell, and Buyer desires to purchase, the Environmental Attributes and contract settlement amounts associated with the electrical energy output of the Facility for a term of twenty (20) years from the Commercial Operation Date pursuant to a virtual (financial) power purchase agreement structured as a contract for differences ("CfD") settling at the ERCOT West Hub;
WHEREAS, the Facility has received all material development approvals, including Pecos County Conditional Use Permit No. CUP-2025-012 (approved February 10, 2025) and a Large Generation Interconnection Agreement executed May 15, 2025 (ERCOT Queue Position ERCOT-GI-2024-0437) with West Texas Wires LLC as Transmission Service Provider at the Ft. Stockton 345 kV Substation;
WHEREAS, Sunbelt Power Construction LLC will serve as the engineering, procurement, and construction contractor under a fixed-price turnkey EPC contract valued at $142,500,000;
WHEREAS, independent solar resource assessment by Heliograph Energy Consulting LLC estimates P50 annual net generation of 350,000 MWh/yr;
WHEREAS, the Facility's construction and operation will be financed in part by a $108,000,000 senior secured construction-to-term loan facility, with Tralvendo National Bank, N.A. as Administrative Agent, and Seller requires that this Agreement be assignable as collateral security to such lenders; and
WHEREAS, the Parties desire to set forth their respective rights and obligations with respect to the foregoing on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE 1 — DEFINITIONS AND INTERPRETATION
Section 1.1 — Definitions
As used in this Agreement, the following terms shall have the meanings ascribed to them below:
"Affiliate" means, with respect to any Person, any other Person that directly or indirectly controls, is controlled by, or is under common control with such Person. For purposes of this definition, "control" means the direct or indirect ownership of more than fifty percent (50%) of the voting interests of such Person, or the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract, or otherwise.
"Agreement" means this Power Purchase Agreement, including all Exhibits and Schedules hereto, as the same may be amended, modified, or supplemented from time to time in accordance with the terms hereof.
"Availability" means, with respect to any Measurement Period, the ratio of Available Hours to Period Hours in such Measurement Period, expressed as a percentage, calculated as (Available Hours ÷ Period Hours) × 100.
"Availability LD Cap" has the meaning set forth in Section 7.3.
"Availability LD Rate" has the meaning set forth in Section 7.2.
"Availability Liquidated Damages" or "Availability LDs" has the meaning set forth in Section 7.2.
"Available Hours" means the total number of hours in a Measurement Period during which the Facility is capable of generating and delivering energy to the Delivery Point, excluding Excused Hours.
"Business Day" means any day other than a Saturday, Sunday, or any day on which commercial banks in New York, New York, Houston, Texas, or Dallas, Texas, are authorized or required by law to close.
"Buyer" means Meridian DataCore Solutions Inc., a Delaware corporation, and its permitted successors and assigns.
"Buyer Event of Default" has the meaning set forth in Section 11.2.
"Buyer Guarantor" means Meridian DataCore Solutions Inc. in its capacity as guarantor under the Buyer Guaranty.
"Buyer Guaranty" means the corporate guaranty executed by Meridian DataCore Solutions Inc. in favor of Seller, substantially in the form of Exhibit C, guaranteeing all payment and performance obligations of Buyer under this Agreement, with a guaranty cap of Fourteen Million Dollars ($14,000,000).
"Change of Control" has the meaning set forth in Section 14.1(a) (with respect to Seller) and Section 14.2(a) (with respect to Buyer).
"Commercial Operation" means the achievement of all of the conditions set forth in Section 3.2.
"Commercial Operation Date" or "COD" means the date on which the Facility achieves Commercial Operation, as certified by the Independent Engineer and confirmed by Seller's delivery of the COD Notice to Buyer. The expected COD is April 1, 2027.
"COD Notice" means the written notice delivered by Seller to Buyer at least thirty (30) days prior to the anticipated achievement of Commercial Operation, certifying that Seller expects to satisfy all conditions to Commercial Operation set forth in Section 3.2 on or before the date specified therein.
"Contract Price" means the price per MWh payable by Buyer to Seller (or by Seller to Buyer, as applicable) for each MWh of Facility output, as set forth in Section 5.1 and Exhibit B.
"Contract Year" means each twelve (12)-month period commencing on the COD or any anniversary thereof. The first Contract Year shall commence on the COD and end on the day immediately preceding the first anniversary of the COD. Each subsequent Contract Year shall commence on the applicable anniversary of the COD.
"Curtailment" has the meaning set forth in Section 8.1.
"Curtailment Hours" means the hours during which the Facility's energy output is reduced due to a Curtailment event, as described in Article 8.
"Delivery Point" means the ERCOT West Hub, which shall serve as the Settlement Hub for all financial settlement purposes under this Agreement.
"Effective Date" has the meaning set forth in the preamble to this Agreement.
"Environmental Attributes" means any and all credits, benefits, emission reductions, offsets, and allowances, howsoever entitled, attributable to the generation of energy from the Facility, including (a) renewable energy certificates ("RECs"), (b) any reductions in emissions of pollutants to the air, soil, or water, including reductions of carbon dioxide, methane, nitrous oxide, sulfur dioxide, nitrogen oxides, particulate matter, or mercury, (c) any allowances, certificates, offsets, or credits arising from any federal, state, regional, or local program, whether existing or hereafter established, and (d) the reporting rights to these attributes under any applicable program, including Section 1605(b) of the Energy Policy Act of 1992, as amended. Environmental Attributes do not include the Investment Tax Credit or any other federal, state, or local tax credits, deductions, or benefits.
"EPC Contract" means the fixed-price turnkey engineering, procurement, and construction agreement between Seller and Sunbelt Power Construction LLC for the design, engineering, procurement, construction, commissioning, and testing of the Facility, with a contract value of One Hundred Forty-Two Million Five Hundred Thousand Dollars ($142,500,000).
"ERCOT" means the Electric Reliability Council of Texas, or any successor entity performing similar functions.
"Excused Hours" means those hours that are excluded from the Availability calculation pursuant to Section 7.1, comprising (a) Force Majeure Hours, (b) Curtailment Hours (to the extent allocated to Buyer under Article 8), and (c) Scheduled Maintenance Hours up to the Scheduled Maintenance Allowance.
"Expected COD" means April 1, 2027.
"Facility" means the Saguaro Flats Solar Project, a ground-mounted single-axis tracking solar photovoltaic generating facility with a nameplate capacity of 195 MWdc / 150 MWac, located on approximately 1,400 acres in Pecos County, Texas, as more fully described in Exhibit A.
"Financing Documents" means, collectively, the credit agreement, notes, security agreements, mortgages, deeds of trust, guaranties, intercreditor agreements, and all other documents, instruments, and agreements entered into by Seller and/or its Affiliates in connection with the financing of the Facility, including the $108,000,000 senior secured construction-to-term loan facility with Tralvendo National Bank, N.A. as Administrative Agent, and any refinancing, replacement, or amendment thereof.
"Force Majeure" has the meaning set forth in Section 12.1.
"Force Majeure Hours" means the hours during which a Party's performance is excused due to the occurrence and continuance of a Force Majeure event.
"GAAP" means generally accepted accounting principles in the United States as in effect from time to time.
"Guaranteed Availability" means ninety-six percent (96.0%), measured on a rolling twelve (12)-month basis in accordance with Section 7.1.
"Hub Price" means the real-time settlement point price at the ERCOT West Hub (the Settlement Hub) for the applicable settlement interval, as published by ERCOT.
"Independent Engineer" means Gresham Engineering Advisors Inc., or such other independent engineer as may be mutually agreed by the Parties and acceptable to Lender.
"Interconnection Agreement" or "LGIA" means the Large Generation Interconnection Agreement executed May 15, 2025, by and between Seller and West Texas Wires LLC (as Transmission Service Provider), with ERCOT Queue Position ERCOT-GI-2024-0437, providing for the interconnection of the Facility at the Ft. Stockton 345 kV Substation, as the same may be amended from time to time.
"Investment Tax Credit" or "ITC" means the federal investment tax credit available under Section 48 of the Internal Revenue Code of 1986, as amended, and the regulations promulgated thereunder.
"IRC" means the Internal Revenue Code of 1986, as amended.
"Lender" means Tralvendo National Bank, N.A., as Administrative Agent, and the syndicate lenders under the Financing Documents, and their successors and assigns.
"Lender Consent Agreement" means the Consent to Collateral Assignment and Lender Direct Agreement among Seller, Buyer, and Tralvendo National Bank, N.A. as Administrative Agent, substantially in the form of Exhibit F.
"Letter of Credit" or "Seller LC" means the irrevocable standby letter of credit posted by Seller in favor of Buyer, as described in Section 9.2 and substantially in the form of Exhibit D.
"Measurement Period" means a rolling twelve (12)-month period, commencing on the COD and each monthly anniversary thereof.
"Minimum Credit Threshold" means either (a) a tangible net worth of not less than One Hundred Million Dollars ($100,000,000) or (b) an investment-grade credit rating (BBB− or better) from a nationally recognized statistical rating organization, as defined under Section 3(a)(62) of the Securities Exchange Act of 1934, as amended.
"MWh" means megawatt-hour.
"MWac" means megawatts of alternating current capacity.
"MWdc" means megawatts of direct current capacity.
"Outside Date" has the meaning set forth in Section 3.4.
"P50 Estimate" means three hundred fifty thousand (350,000) MWh per year, as estimated by Heliograph Energy Consulting LLC in its independent solar resource assessment for the Facility, representing the median annual energy production estimate on a post-loss basis.
"Party" has the meaning set forth in the preamble to this Agreement.
"Period Hours" means the total number of hours in a Measurement Period.
"Person" means any individual, corporation, partnership, limited liability company, joint venture, trust, unincorporated organization, governmental authority, or any other entity.
"Pinnacle Ratings Group" means the credit rating agency that has assigned credit ratings to Seller's Parent (rated BBB−) and Buyer (rated BBB), or any successor thereto.
"Project Site" means the approximately 1,400 acres of land in Pecos County, Texas, leased from Redrock Mesa Ranch LP under a thirty-five (35)-year ground lease, located on FM Road 1776, approximately twelve (12) miles southeast of Fort Stockton, TX 79735, upon which the Facility is or will be located, as more fully described in Exhibit A.
"RECs" means renewable energy certificates, as defined and tracked by ERCOT or any applicable regional tracking system.
"Scheduled Maintenance Allowance" means two hundred (200) hours per Contract Year.
"Scheduled Maintenance Hours" means those hours during which the Facility is not available for generation due to planned maintenance activities that have been scheduled in advance in accordance with prudent industry practice and communicated to Buyer.
"Seller" means Saguaro Flats Solar LLC, a Delaware limited liability company, and its permitted successors and assigns.
"Seller Event of Default" has the meaning set forth in Section 11.1.
"Seller's Parent" means Calloway-Briggs Renewables Inc., a Delaware corporation.
"Settlement Amount" has the meaning set forth in Section 11.4.
"Settlement Hub" means ERCOT West Hub, or any successor settlement point designated by ERCOT to replace the ERCOT West Hub.
"Term" means the period from the Effective Date through the date that is twenty (20) years after the COD, as further described in Section 4.1.
"Termination Payment" has the meaning set forth in Section 11.4.
"Transmission Service Provider" means West Texas Wires LLC, or any successor transmission owner or operator providing interconnection services to the Facility at the Ft. Stockton 345 kV Substation.
Section 1.2 — Rules of Interpretation
(a) The headings and titles of the Articles, Sections, and Exhibits of this Agreement are for convenience of reference only and shall not affect the meaning or interpretation of this Agreement.
(b) References in this Agreement to any Article, Section, Exhibit, or Schedule shall mean the Article, Section, Exhibit, or Schedule of or to this Agreement, unless the context otherwise requires.
(c) Words importing the singular shall include the plural and vice versa, and words importing a gender shall include all genders.
(d) The word "including" and words of similar import shall mean "including, without limitation" and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.
(e) All references to "$" or "dollars" shall mean the lawful currency of the United States of America.
(f) References to any law, statute, regulation, or ordinance shall include all amendments, modifications, and supplements thereto and any successor legislation or regulations promulgated thereunder.
(g) All accounting terms not specifically defined herein shall be construed in accordance with GAAP.
(h) The term "Business Day" means any day other than a Saturday, Sunday, or any day on which commercial banks in New York, New York, Houston, Texas, or Dallas, Texas, are authorized or required by law to close. If any act, payment, or notice is required to be made or given on a day that is not a Business Day, such act, payment, or notice shall be made or given on the next succeeding Business Day.
(i) Unless the context otherwise requires, references to agreements, instruments, and other documents shall be deemed to include all subsequent amendments, restatements, supplements, and other modifications thereto.
(j) The Parties acknowledge that this Agreement is the product of negotiations between sophisticated parties, each represented by counsel, and that no provision hereof shall be construed against either Party on the grounds that such Party drafted or proposed such provision.
Section 1.3 — Exhibits and Schedules
Exhibits A through F attached hereto are incorporated by reference into and form an integral part of this Agreement. In the event of any conflict between the body of this Agreement and any Exhibit, the body of this Agreement shall control unless the applicable Exhibit expressly provides otherwise.
ARTICLE 2 — EFFECTIVE DATE; CONDITIONS PRECEDENT
Section 2.1 — Effective Date
This Agreement shall become effective upon execution and delivery by both Parties on September 15, 2025 (the "Effective Date"), subject to the satisfaction or waiver of the conditions precedent set forth in Section 2.2.
Section 2.2 — Conditions Precedent to Effectiveness
The effectiveness of this Agreement is conditioned upon the satisfaction or waiver of each of the following conditions precedent on or prior to the Effective Date:
(a) Buyer Guaranty. Execution and delivery by Buyer (in its capacity as Buyer Guarantor) of the Buyer Guaranty, substantially in the form of Exhibit C, guaranteeing all payment and performance obligations of Buyer under this Agreement, with a guaranty cap of Fourteen Million Dollars ($14,000,000).
(b) Seller LC. Delivery by Seller to Buyer of the Seller LC in the initial amount of Seven Million Dollars ($7,000,000), issued by Tralvendo National Bank, N.A., substantially in the form of Exhibit D.
(c) Officer's Certificates. Delivery by each Party of an officer's certificate, executed by a duly authorized officer of such Party, certifying as to (i) the due organization, valid existence, and good standing of such Party, (ii) the authorization of such Party to execute, deliver, and perform this Agreement, (iii) the truth and accuracy of the representations and warranties made by such Party herein, and (iv) the absence of any default or event that, with the giving of notice or the passage of time or both, would constitute a default under this Agreement.
(d) Secretary's/Manager's Certificate. Delivery by Seller of a certificate of the secretary or manager of Seller (or of Calloway-Briggs Renewables Inc., as Manager of Seller) certifying as to (i) the resolutions of the manager authorizing the execution, delivery, and performance of this Agreement and the transactions contemplated hereby, and (ii) the incumbency and specimen signatures of the officers or authorized persons executing this Agreement and any other documents delivered in connection herewith.
(e) Good Standing Certificates. Delivery of certificates of good standing (or equivalent) for Saguaro Flats Solar LLC and Calloway-Briggs Renewables Inc. from the Secretary of State of the State of Delaware, each dated not more than thirty (30) days prior to the Effective Date.
(f) Insurance. Delivery by Seller of evidence of insurance meeting the requirements of Exhibit E, in the form of certificates of insurance issued by the applicable insurance carriers or Seller's insurance broker, Fieldstone Risk Advisors LLC.
(g) Interconnection and Permit Evidence. Delivery by Seller of (i) a true, correct, and complete copy of the LGIA (ERCOT Queue Position ERCOT-GI-2024-0437) executed May 15, 2025, and (ii) a true, correct, and complete copy of Pecos County Conditional Use Permit No. CUP-2025-012, approved February 10, 2025.
(h) Lender Consent Agreement. Execution and delivery by Seller, Buyer, and Tralvendo National Bank, N.A. as Administrative Agent of the Lender Consent Agreement, substantially in the form of Exhibit F.
(i) Legal Opinion. Delivery by Seller's counsel, Calderwood & Harkness LLP, of a legal opinion addressed to Buyer, opining as to (i) the due organization and valid existence of Seller, (ii) the due authorization, execution, and delivery of this Agreement by Seller, (iii) the enforceability of this Agreement against Seller in accordance with its terms (subject to customary qualifications and exceptions), and (iv) the absence of any conflict between the execution and performance of this Agreement and Seller's organizational documents or any material agreements to which Seller is a party.
Each Party acknowledges that, as of the Effective Date, each of the foregoing conditions precedent has been satisfied or waived.
ARTICLE 3 — FACILITY DEVELOPMENT; COMMERCIAL OPERATION DATE
Section 3.1 — Construction and Development
(a) Seller shall design, engineer, procure, construct, commission, and test the Facility in accordance with the terms and conditions of the EPC Contract with Sunbelt Power Construction LLC (contract value: $142,500,000) and all applicable permits, laws, regulations, and prudent industry practice. Seller shall cause the EPC Contractor to perform all work under the EPC Contract in a workmanlike manner and in compliance with all applicable codes, standards, and requirements, including the requirements of ERCOT and the Interconnection Agreement.
(b) Seller shall use commercially reasonable efforts to achieve COD by the Expected COD of April 1, 2027. Seller has targeted issuance of a Notice to Proceed to the EPC Contractor on or about October 15, 2025, and shall diligently pursue the construction schedule necessary to achieve COD by the Expected COD.
(c) Seller shall keep Buyer reasonably informed of construction progress, including providing Buyer with quarterly construction progress reports and promptly notifying Buyer of any material delays, material cost overruns, material change orders, or other events that could reasonably be expected to delay the achievement of COD beyond the Expected COD. Such reports shall include, at a minimum, a summary of construction activities completed during the reporting period, anticipated activities for the upcoming quarter, a revised construction schedule (if applicable), and a description of any material issues or impediments to timely completion.
(d) The total estimated project cost for the Facility is approximately One Hundred Fifty-Four Million Three Hundred Thousand Dollars ($154,300,000), comprising the EPC contract value of $142,500,000, plus approximately Eleven Million Eight Hundred Thousand Dollars ($11,800,000) in soft costs, land-related expenses, interconnection costs, and reserves. The Project is being financed with a $108,000,000 senior secured construction-to-term loan facility (representing approximately 70% of total project costs) provided by the Lender syndicate, and approximately Forty-Six Million Three Hundred Thousand Dollars ($46,300,000) in equity contributions (representing approximately 30% of total project costs) from Seller's Parent, Calloway-Briggs Renewables Inc.
(e) Seller shall be solely responsible for the design, engineering, procurement, construction, and commissioning of the Facility. Buyer shall have no obligation to fund, supervise, or otherwise participate in the construction or development of the Facility, except as expressly set forth herein.
Section 3.2 — Conditions to Commercial Operation Date
Commercial Operation shall be deemed achieved, and the COD shall occur, when all of the following conditions have been satisfied or waived:
(a) Substantial Completion. Substantial completion of the Facility has been achieved under the EPC Contract, as certified by the EPC Contractor and confirmed by the Independent Engineer.
(b) Capacity Test. The Facility is capable of generating and delivering at least ninety percent (90%) of its AC Capacity (i.e., not less than 135 MWac) to the Delivery Point on a sustained basis, as demonstrated by the completion of the performance tests set forth in the EPC Contract.
(c) Permits and Approvals. All required permits, approvals, licenses, and authorizations necessary for the construction, operation, and maintenance of the Facility are in full force and effect, including Pecos County Conditional Use Permit No. CUP-2025-012 and all ERCOT registrations.
(d) Interconnection. The LGIA is in full force and effect, the interconnection facilities at the Ft. Stockton 345 kV Substation have been energized and tested, and the Facility has been synchronized with the ERCOT grid and is capable of exporting energy to the ERCOT market.
(e) Insurance. All required insurance coverages are in place in accordance with Exhibit E, and certificates of insurance have been delivered to Buyer and Lender.
(f) Independent Engineer Certification. The Independent Engineer, Gresham Engineering Advisors Inc., has issued a written certification of substantial completion of the Facility, confirming that the Facility has been constructed in all material respects in accordance with the plans and specifications, the EPC Contract, and applicable law.
(g) COD Notice. Seller has delivered to Buyer a COD Notice at least thirty (30) days prior to the anticipated COD, setting forth the date on which Seller anticipates the foregoing conditions will be satisfied, together with reasonable supporting documentation.
Upon satisfaction of all of the foregoing conditions, Seller shall deliver to Buyer a final written confirmation of Commercial Operation, and the COD shall be deemed to have occurred on the date set forth in such confirmation.
Section 3.3 — Delay Liquidated Damages
(a) If COD is not achieved by the date that is one hundred eighty (180) days after the Expected COD (i.e., September 28, 2027) (the "Delay LD Start Date"), Seller shall pay to Buyer delay liquidated damages in the amount specified in the following sentence for each day of delay commencing on the Delay LD Start Date and continuing until the earlier of (i) the date on which COD is achieved and (ii) the Outside Date. The delay liquidated damages shall be calculated as the Contract Price multiplied by the daily average expected generation (calculated as P50 Estimate divided by 365), which equals approximately $19,178 per day ($20.00/MWh × (350,000 MWh ÷ 365 days) × 1).
(b) Delay liquidated damages shall be payable monthly in arrears within twenty (20) Business Days of invoice.
(c) The Parties acknowledge and agree that the delay liquidated damages set forth in this Section 3.3 represent a genuine pre-estimate of Buyer's damages resulting from the delay in achieving COD and are not intended as a penalty.
(d) If COD is not achieved within three hundred sixty-five (365) days after the Expected COD (i.e., by April 1, 2028), either Party may terminate this Agreement pursuant to Section 3.4.
Section 3.4 — Guaranteed COD; Outside Date
(a) The "Outside Date" for achievement of COD shall be April 1, 2028, which is one (1) year after the Expected COD. The Outside Date shall be subject to extension for Force Majeure events affecting the construction or commissioning of the Facility, but in no event shall the Outside Date be extended by more than an additional one hundred eighty (180) days (i.e., the latest possible Outside Date is September 28, 2028).
(b) If COD has not been achieved by the Outside Date (as the same may be extended pursuant to subsection (a) above), either Party may terminate this Agreement by delivering written notice to the other Party. Upon such termination, (i) Seller shall pay to Buyer all accrued and unpaid delay liquidated damages under Section 3.3, and (ii) no Termination Payment shall be due by either Party solely as a result of the failure to achieve COD by the Outside Date, except that Buyer may draw upon the Seller LC to recover any unpaid delay liquidated damages.
(c) The Parties' rights under this Section 3.4 are in addition to, and not in lieu of, any other rights or remedies available to the Parties under this Agreement or at law or in equity.
ARTICLE 4 — TERM AND TERMINATION
Section 4.1 — Term
The Term of this Agreement shall commence on the Effective Date, September 15, 2025, and, unless earlier terminated in accordance with the provisions hereof, shall continue for a period of twenty (20) years after the COD. Based on the Expected COD of April 1, 2027, the Term is expected to expire on March 31, 2047. The period from the Effective Date through the day immediately preceding the COD is referred to herein as the "Development Period." The period from the COD through the expiration or earlier termination of this Agreement is referred to herein as the "Delivery Term."
Section 4.2 — Early Termination Rights
Each Party's rights to terminate this Agreement prior to the expiration of the Term are set forth in the following provisions, without limitation:
(a) Termination for failure to achieve COD by the Outside Date, pursuant to Section 3.4;
(b) Buyer's termination right for chronic Availability underperformance, pursuant to Section 7.4;
(c) Termination following an Event of Default, pursuant to Article 11;
(d) Termination following an extended Force Majeure event, pursuant to Section 12.4; and
(e) Termination in connection with a Change of Control, pursuant to Article 14.
No termination of this Agreement shall relieve either Party of any obligation or liability accrued prior to the effective date of such termination, including any obligation to make payments then due or to pay Availability LDs, delay liquidated damages, or a Termination Payment.
Section 4.3 — Survival
The following provisions shall survive the expiration or earlier termination of this Agreement for the periods specified therein or, if no period is specified, indefinitely: (a) representations and warranties (Article 10), (b) indemnification obligations (Article 13), (c) confidentiality (Article 18), (d) dispute resolution (Article 20), (e) governing law (Section 20.1), (f) Termination Payment obligations (Section 11.4), (g) all accrued payment obligations, and (h) any other provisions that, by their nature, are intended to survive.
ARTICLE 5 — CONTRACT PRICE AND SETTLEMENT
Section 5.1 — Contract Price
(a) Initial Contract Price. The initial Contract Price shall be Twenty Dollars ($20.00) per MWh, which shall remain fixed and unadjusted for Contract Years 1 through 5 (i.e., the first five (5) years following the COD).
(b) Annual Escalator. Beginning in Contract Year 6 and continuing through the end of the Term, the Contract Price shall increase by one and one-half percent (1.50%) per annum, compounding on the prior Contract Year's Contract Price. By way of illustration:
(i) Contract Year 6: $20.00 × 1.015 = $20.30/MWh
(ii) Contract Year 10: $20.00 × (1.015)^5 ≈ $21.55/MWh
(iii) Contract Year 15: $20.00 × (1.015)^10 ≈ $23.22/MWh
(iv) Contract Year 20: $20.00 × (1.015)^15 ≈ $25.02/MWh
(c) Full Schedule. The complete year-by-year Contract Price schedule is set forth in Exhibit B.
(d) No Other Adjustments. Except as expressly provided in this Section 5.1, the Contract Price shall not be subject to adjustment for any reason, including changes in commodity prices, inflation indices, changes in law, or any other factor.
Section 5.2 — CfD Settlement Mechanics
(a) Virtual PPA; No Physical Delivery. The Parties acknowledge and agree that this Agreement is structured as a virtual (financial) power purchase agreement in the form of a contract for differences. There shall be no physical delivery of energy from Seller to Buyer under this Agreement. Seller shall sell energy generated by the Facility into the ERCOT market and shall receive the Hub Price for such energy.
(b) Settlement Calculation. For each MWh of Facility output metered in each settlement period during the Delivery Term, the following settlement shall apply:
(i) If the Contract Price exceeds the Hub Price for such settlement period, Buyer shall pay Seller an amount equal to (Contract Price minus Hub Price) multiplied by the quantity of MWh generated during such settlement period.
(ii) If the Hub Price exceeds the Contract Price for such settlement period, Seller shall pay Buyer an amount equal to (Hub Price minus Contract Price) multiplied by the quantity of MWh generated during such settlement period.
(iii) If the Contract Price equals the Hub Price for such settlement period, no settlement payment shall be due by either Party for such settlement period.
(c) Net Settlement. The net settlement amount for each calendar month shall be calculated by aggregating the settlement amounts for all settlement periods within such calendar month. The Party owing the net amount shall make payment in accordance with Section 5.4.
(d) Settlement Data. Settlement calculations shall be based on (i) the metered output of the Facility, as reported by the revenue-grade meters installed at the Facility in accordance with Section 6.1, and (ii) the Hub Price as published by ERCOT for the applicable settlement intervals at the ERCOT West Hub.
Section 5.3 — Environmental Attributes
(a) Transfer of Environmental Attributes. All Environmental Attributes, including RECs, generated by the Facility during the Delivery Term shall be transferred to Buyer as part of the consideration for this Agreement. Seller hereby assigns, conveys, and transfers to Buyer, effective as of the generation thereof, all right, title, and interest in and to such Environmental Attributes.
(b) Registration and Transfer. Seller shall register the Facility with the applicable ERCOT or regional tracking system for the creation and tracking of Environmental Attributes and shall take all actions necessary to effectuate the transfer of Environmental Attributes to Buyer (or Buyer's designee) through such tracking system on a timely basis. Seller shall use commercially reasonable efforts to complete each transfer of Environmental Attributes within sixty (60) days of the end of the calendar quarter in which the Environmental Attributes were generated.
(c) No Separate Payment. No separate payment shall be due from Buyer to Seller for Environmental Attributes; the transfer of Environmental Attributes is included in the settlement amounts payable under Section 5.2.
(d) Buyer's Use. Buyer shall have the right to use, hold, bank, retire, sell, or otherwise dispose of Environmental Attributes in its sole discretion, including for purposes of voluntary renewable energy procurement targets, greenhouse gas emission reduction claims, sustainability reporting, or compliance with any mandatory renewable energy or emissions program.
Section 5.4 — Invoicing and Payment
(a) Monthly Invoicing. Within ten (10) Business Days after the end of each calendar month during the Delivery Term, the Party to which the net monthly settlement amount is owed shall deliver to the other Party an invoice setting forth in reasonable detail (i) the metered output of the Facility for such calendar month, (ii) the applicable Hub Prices, (iii) the Contract Price, (iv) the calculation of the net settlement amount, and (v) any Availability LDs or other amounts then due.
(b) Payment Terms. The Party receiving an invoice shall pay the invoiced amount within twenty (20) Business Days of receipt of such invoice. All payments shall be made in U.S. dollars by wire transfer of immediately available funds to the bank account designated in writing by the payee Party.
(c) Late Payment Interest. Any amount not paid when due shall accrue interest from and including the due date through but not including the date of payment at a rate per annum equal to the prime rate as published in The Wall Street Journal on the due date (or, if not published on such date, the most recently published prime rate) plus two percent (2.00%), but in no event exceeding the maximum rate permitted by applicable law.
(d) Invoice Disputes. Either Party may dispute any portion of an invoice by delivering written notice to the other Party within sixty (60) days of receipt of such invoice, specifying in reasonable detail the nature of the dispute and the amount in dispute. The undisputed portion of any invoice shall remain payable when due notwithstanding any pending dispute. If the Parties are unable to resolve any invoice dispute within thirty (30) days of the disputing Party's notice, such dispute shall be resolved in accordance with Article 20.
(e) Adjustments. If any error in an invoice is discovered (whether by audit, meter re-calibration, ERCOT settlement true-up, or otherwise), the Parties shall promptly calculate and pay the corrective adjustment. No adjustment shall be made for any period more than twenty-four (24) months prior to the date on which the error is discovered, except in the case of fraud or intentional misrepresentation.
Section 5.5 — Taxes
(a) General. Each Party shall be responsible for, and shall pay or cause to be paid, all taxes, duties, levies, charges, assessments, and other governmental impositions of whatever nature (including income, franchise, excise, sales, use, value added, gross receipts, and property taxes) imposed on such Party by applicable law in connection with this Agreement and the transactions contemplated hereby.
(b) Pre-Delivery Point Taxes. Seller shall be solely responsible for all taxes, fees, charges, and assessments (other than income taxes of Buyer) arising prior to and including the Delivery Point, including any generation taxes, ad valorem or property taxes on the Facility, and any transmission or distribution charges or fees imposed on the Facility or the energy generated thereby prior to the Delivery Point.
(c) Post-Delivery Point Taxes. Buyer shall be solely responsible for all taxes, fees, charges, and assessments (other than income taxes of Seller) arising at or after the Delivery Point, including any sales or use taxes imposed on the purchase of energy or Environmental Attributes by Buyer.
(d) Cooperation. The Parties shall cooperate in good faith to minimize the overall tax burden on the transactions contemplated by this Agreement, including by providing and executing tax exemption certificates, resale certificates, and other documents reasonably requested by the other Party.
(e) Changes in Tax Law. If any new tax or material change in tax law results in taxes being imposed on a Party that were not contemplated at the time of execution of this Agreement, the Parties shall negotiate in good faith to equitably allocate the burden of such new or changed taxes, but neither Party shall be obligated to agree to any adjustment to the Contract Price.
ARTICLE 6 — METERING AND REPORTING
Section 6.1 — Metering
(a) Revenue-Grade Meters. Seller shall install, own, operate, calibrate, and maintain revenue-grade meters at the Facility in accordance with ERCOT Protocols and applicable regulations. The meters shall be capable of recording the electrical output of the Facility in settlement-interval increments and shall meet the accuracy and performance requirements established by ERCOT.
(b) Calibration. Seller shall cause the meters to be tested and calibrated at least once per Contract Year in accordance with the manufacturer's specifications and ERCOT requirements. Seller shall provide Buyer with reasonable advance notice of each calibration and shall make the results of each test and calibration available to Buyer promptly following completion.
(c) Meter Inaccuracy. If any meter is found to be inaccurate by more than one-half of one percent (0.5%), the Parties shall adjust the metered quantities for the period during which the inaccuracy existed (or, if the period of inaccuracy cannot be determined, for the lesser of (i) the period since the last successful test or calibration and (ii) six (6) months), using the best available data. Seller shall promptly repair or replace any inaccurate meter.
(d) Buyer Audit Rights. Buyer shall have the right, upon reasonable prior written notice to Seller, to audit meter data, inspect meter installations, and observe meter calibrations not more than once per Contract Year, at Buyer's sole cost and expense. Seller shall provide reasonable access and cooperation in connection with any such audit.
Section 6.2 — Reporting
(a) Monthly Reports. Seller shall provide Buyer with monthly generation reports within ten (10) Business Days following the end of each calendar month. Each monthly report shall include, at a minimum, (i) total metered output in MWh, (ii) daily and hourly generation profiles, (iii) Availability metrics, (iv) Curtailment events (including cause, duration, and estimated MWh curtailed), and (v) any material operating events or issues.
(b) Annual Reports. Within sixty (60) days following the end of each Contract Year, Seller shall provide Buyer with an annual report summarizing the Facility's performance during such Contract Year, including (i) total annual generation, (ii) Availability calculations for each rolling twelve (12)-month Measurement Period ending during such Contract Year, (iii) comparison of actual generation to the P50 Estimate, (iv) a summary of all maintenance activities, (v) a summary of all Curtailment events, and (vi) such other information as Buyer may reasonably request.
(c) ERCOT Data. Seller shall provide Buyer with access to relevant ERCOT settlement data for the Facility, to the extent such data is available to Seller, to enable Buyer to verify the settlement calculations under Section 5.2.
ARTICLE 7 — AVAILABILITY GUARANTEE AND LIQUIDATED DAMAGES
Section 7.1 — Guaranteed Availability
(a) Seller hereby guarantees that the Facility shall achieve Availability of not less than ninety-six percent (96.0%) on a rolling twelve (12)-month basis (the "Guaranteed Availability") during each Measurement Period commencing after the COD.
(b) Availability shall be calculated for each Measurement Period in accordance with the following formula:
Availability = (Available Hours ÷ Period Hours) × 100
(c) For purposes of the Availability calculation, the following hours shall be classified as Excused Hours and shall be excluded from both Available Hours and Period Hours:
(i) Force Majeure Hours: Hours during which the Facility is unable to generate and deliver energy as a result of a Force Majeure event, in accordance with Article 12.
(ii) Curtailment Hours: Hours during which the Facility's output is reduced due to Curtailment, but only to the extent Buyer bears curtailment risk under Article 8 (i.e., ERCOT-ordered curtailment and transmission constraint curtailment in excess of 5.0% of annual expected generation, to the extent of Buyer's 50% share, and Buyer-directed curtailment).
(iii) Scheduled Maintenance Hours: Hours during which the Facility is unavailable due to scheduled maintenance, up to the Scheduled Maintenance Allowance of two hundred (200) hours per Contract Year. Scheduled maintenance in excess of the Scheduled Maintenance Allowance shall not be treated as Excused Hours.
(d) Seller shall calculate Availability for each Measurement Period and shall include such calculations in the monthly and annual reports provided to Buyer under Section 6.2. Buyer shall have the right to verify such calculations based on meter data and other available information.
Section 7.2 — Availability Liquidated Damages
(a) For each one percent (1.0%) (or pro rata portion thereof) by which Availability falls below the Guaranteed Availability of 96.0% in any Measurement Period, Seller shall pay Buyer an amount equal to seventy-five one-hundredths of one percent (0.75%) of the revenues received or receivable by Seller under this Agreement during the trailing twelve (12)-month period (the "Availability LD Rate").
(b) By way of illustration and not limitation, at the P50 Estimate of 350,000 MWh per year and the Year 1 Contract Price of $20.00/MWh, the trailing twelve-month revenue would be approximately $7,000,000, and the Availability LD for each 1.0% shortfall below the Guaranteed Availability would be 0.75% × $7,000,000 = $52,500.
(c) Availability LDs shall be invoiced by Buyer and paid by Seller within twenty (20) Business Days of invoice, in accordance with Section 5.4.
(d) The Parties acknowledge and agree that the Availability LDs set forth in this Section 7.2 represent a genuine pre-estimate of Buyer's damages resulting from Seller's failure to maintain the Guaranteed Availability and are not intended as a penalty. The Parties further acknowledge that the actual damages resulting from Availability shortfalls would be difficult or impossible to determine with precision.
Section 7.3 — Availability LD Cap
(a) Seller's aggregate liability for Availability LDs in any single Measurement Period shall not exceed seven and one-half percent (7.5%) of the revenues received or receivable by Seller under this Agreement during the trailing twelve (12)-month period (the "Availability LD Cap").
(b) By way of illustration and not limitation, at the P50 Estimate and Year 1 Contract Price, the Availability LD Cap would be 7.5% × $7,000,000 = $525,000 per Measurement Period.
(c) The Availability LD Cap set forth in this Section 7.3 shall not limit or affect (i) Buyer's termination right under Section 7.4, (ii) Seller's obligation to pay a Termination Payment upon termination pursuant to Section 11.4, or (iii) any other rights or remedies available to Buyer under this Agreement.
Section 7.4 — Buyer Termination Right for Chronic Underperformance
(a) If Availability falls below eighty-seven and one-half percent (87.5%) in any two (2) consecutive twelve (12)-month Measurement Periods, Buyer may deliver written notice to Seller specifying such chronic underperformance and demanding that Seller cure such underperformance.
(b) If Seller fails to cure such underperformance (i.e., fails to achieve Availability of at least 87.5% in a twelve (12)-month Measurement Period ending within one hundred eighty (180) days after receipt of Buyer's written notice), Buyer may terminate this Agreement by delivering a further written notice to Seller, and Seller shall pay Buyer the Termination Payment pursuant to Section 11.4.
(c) For the avoidance of doubt, Buyer's right to terminate under this Section 7.4 is in addition to, and not in lieu of, Buyer's right to collect Availability LDs under Section 7.2 for the applicable Measurement Periods.
Section 7.5 — Availability Bonus
Reserved. No availability bonus has been included in the agreed commercial terms of this Agreement.
ARTICLE 8 — CURTAILMENT
Section 8.1 — Definition of Curtailment
"Curtailment" means any reduction in the Facility's energy output or generation below the level it would otherwise produce, resulting from or attributable to (a) an instruction, dispatch order, or reliability directive issued by ERCOT (including any instruction to reduce output for congestion management, frequency regulation, or emergency operations), (b) transmission constraints or outages on the transmission system operated by the Transmission Service Provider or any other transmission owner, (c) a request by Buyer for Seller to curtail or reduce generation ("Buyer-directed curtailment"), or (d) negative pricing at the Settlement Hub.
Section 8.2 — Curtailment Risk Allocation
The economic risk of Curtailment shall be allocated between the Parties as follows:
(a) ERCOT-Ordered Curtailment and Transmission Constraints. With respect to Curtailment resulting from instructions or dispatch orders by ERCOT (including congestion management) or from transmission constraints or outages, the risk shall be allocated as follows:
(i) Seller shall bear the economic risk of Curtailment for the first five percent (5.0%) of annual expected generation, calculated on the basis of the P50 Estimate (i.e., up to 17,500 MWh per year at the P50 Estimate of 350,000 MWh). During any Contract Year in which the aggregate MWh curtailed due to ERCOT-ordered curtailment and transmission constraints does not exceed such threshold, no Curtailment compensation shall be due from Buyer to Seller.
(ii) For Curtailment in excess of such 5.0% threshold in any Contract Year, the economic risk shall be shared equally (50/50) between Seller and Buyer. The economic impact of such excess Curtailment shall be calculated as the Contract Price multiplied by the curtailed MWh in excess of the threshold, and Buyer shall pay Seller fifty percent (50%) of such amount.
(b) Buyer-Directed Curtailment. If Buyer requests that Seller curtail or reduce the Facility's generation for any reason (including for sustainability reporting, load-matching, or portfolio management purposes), Buyer shall compensate Seller for the lost revenue at the Contract Price for each MWh curtailed at Buyer's direction. Such Buyer-directed Curtailment hours shall be treated as Excused Hours for Availability calculation purposes.
(c) Negative Pricing. If the Hub Price at the ERCOT West Hub is negative for any settlement interval, Seller may, in its sole discretion, curtail or reduce the Facility's generation during such settlement interval. Such hours shall be treated as Excused Hours for Availability calculation purposes, and no settlement payment shall be due by either Party for the MWh curtailed during any negative-pricing settlement interval. For clarity, Seller is not required to curtail during negative pricing intervals but may choose to do so.
Section 8.3 — Curtailment Reporting
Seller shall include in each monthly generation report delivered pursuant to Section 6.2(a) a detailed summary of all Curtailment events occurring during such calendar month, including for each event: (a) the date and time of commencement and conclusion, (b) the duration in hours, (c) the cause of the Curtailment (categorized as ERCOT-ordered, transmission constraint, Buyer-directed, or negative pricing), (d) the estimated MWh curtailed, and (e) the applicable risk allocation under Section 8.2.
ARTICLE 9 — CREDIT SUPPORT
Section 9.1 — Buyer Credit Support
(a) Buyer Guaranty. As a condition to the effectiveness of this Agreement, Buyer has delivered the Buyer Guaranty, executed by Meridian DataCore Solutions Inc. in its capacity as Buyer Guarantor, substantially in the form of Exhibit C, guaranteeing all payment and performance obligations of Buyer under this Agreement. The Buyer Guaranty shall be a continuing, absolute, and unconditional guaranty of payment and performance, capped at Fourteen Million Dollars ($14,000,000), which amount is equal to two (2) years of estimated annual PPA revenues at the P50 Estimate and Year 1 Contract Price.
(b) Term of Buyer Guaranty. The Buyer Guaranty shall remain in full force and effect for the Term of this Agreement and shall not be released until the expiration or earlier termination of this Agreement and the satisfaction of all payment and performance obligations of Buyer hereunder.
(c) Additional Credit Support upon Downgrade. If, at any time during the Term, Buyer's (or the Buyer Guarantor's) credit rating from Pinnacle Ratings Group or any other nationally recognized statistical rating organization falls below BBB−, Buyer shall, within thirty (30) days of Seller's written request, deliver to Seller an irrevocable standby letter of credit in the amount of Seven Million Dollars ($7,000,000), issued by a bank with a long-term unsecured debt rating of A− or better from a nationally recognized rating agency, as additional credit support for Buyer's obligations hereunder. Such letter of credit shall be maintained until such time as Buyer (or the Buyer Guarantor) regains a credit rating of BBB− or better.
Section 9.2 — Seller Credit Support
(a) Seller LC. As a condition to the effectiveness of this Agreement, Seller has delivered to Buyer an irrevocable standby letter of credit in the initial amount of Seven Million Dollars ($7,000,000), issued by Tralvendo National Bank, N.A., substantially in the form of Exhibit D (the "Seller LC"). The initial amount of the Seller LC is equal to one (1) year of estimated PPA revenues at the P50 Estimate and Year 1 Contract Price.
(b) Reduction. The amount of the Seller LC shall be reduced to Three Million Five Hundred Thousand Dollars ($3,500,000) on the fifth (5th) anniversary of the COD, provided that no Seller Event of Default has occurred and is then outstanding or continuing.
(c) Term. The Seller LC shall be maintained for the Term of this Agreement, subject to the reduction provided for in subsection (b) above.
(d) Draw Conditions. Buyer may draw upon the Seller LC upon presentation of a sight draft and a signed statement certifying that (i) a Seller Event of Default has occurred and is continuing and remains uncured beyond any applicable cure period, or (ii) Seller has failed to pay Availability LDs when due under Section 7.2 and such failure has not been cured within ten (10) Business Days of written notice from Buyer.
(e) Evergreen Renewal. The Seller LC shall be issued with an initial term of one (1) year and shall provide for automatic annual renewal (evergreen) unless the issuing bank provides at least sixty (60) days' prior written notice of non-renewal to Buyer. If such non-renewal notice is received, Seller shall deliver a replacement letter of credit meeting the requirements of this Section 9.2 at least thirty (30) days prior to the expiry date of the existing Seller LC.
Section 9.3 — Replacement of Credit Support
(a) Issuing Bank Downgrade. If the issuing bank of any letter of credit posted pursuant to this Article 9 (whether the Seller LC or any letter of credit posted by Buyer pursuant to Section 9.1(c)) has its long-term unsecured debt rating downgraded below A− by any nationally recognized statistical rating organization, the posting Party shall, within thirty (30) days of the other Party's written demand, replace such letter of credit with one issued by a bank with a long-term unsecured debt rating of A− or better.
(b) Cash Collateral. As an alternative to a letter of credit, the posting Party may post cash collateral in the applicable amount, provided that the non-posting Party consents to such alternative in writing (which consent shall not be unreasonably withheld). Cash collateral shall be held in a segregated interest-bearing account at a mutually agreed financial institution, and interest earned thereon shall accrue for the benefit of the posting Party.
(c) Failure to Replace. If a posting Party fails to replace a letter of credit or provide alternative credit support as required by this Section 9.3 within the specified thirty (30)-day period, such failure shall constitute an Event of Default under Article 11 (a Seller Event of Default under Section 11.1(c) or a Buyer Event of Default under Section 11.2(c), as applicable).
ARTICLE 10 — REPRESENTATIONS AND WARRANTIES
Section 10.1 — Seller Representations and Warranties
Seller hereby represents and warrants to Buyer, as of the Effective Date and as of the COD, as follows:
(a) Organization and Good Standing. Seller is a limited liability company duly organized, validly existing, and in good standing under the laws of the State of Delaware, and is duly qualified and authorized to do business in the State of Texas.
(b) Power and Authority. Seller has full limited liability company power and authority to execute, deliver, and perform its obligations under this Agreement and to consummate the transactions contemplated hereby.
(c) Due Authorization. The execution, delivery, and performance of this Agreement by Seller have been duly authorized by all necessary limited liability company action, including the manager resolutions of Calloway-Briggs Renewables Inc. as Manager of Seller, and no further action or approval is required.
(d) Binding Obligation. This Agreement constitutes a legal, valid, and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity.
(e) No Conflict. The execution, delivery, and performance of this Agreement by Seller do not and will not (i) conflict with or violate Seller's certificate of formation, limited liability company agreement, or other organizational documents, (ii) conflict with or violate any applicable law, rule, regulation, order, judgment, or decree binding upon Seller, or (iii) result in a breach of, or default under, any material agreement or instrument to which Seller is a party.
(f) Permits and Approvals. All permits, approvals, consents, and authorizations required for the execution and delivery of this Agreement by Seller have been obtained, including Pecos County Conditional Use Permit No. CUP-2025-012, approved February 10, 2025.
(g) Interconnection Agreement. The LGIA (ERCOT Queue Position ERCOT-GI-2024-0437) is in full force and effect, and Seller is not in default thereunder.
(h) No Litigation. There is no action, suit, proceeding, investigation, or claim pending or, to Seller's knowledge, threatened against Seller before any court, arbitrator, or governmental authority that would materially impair Seller's ability to perform its obligations under this Agreement.
(i) Not an Investment Company. Seller is not, and is not required to be registered as, an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(j) Sole Owner. Seller is the sole owner and operator of the Facility and has good and valid title to (or valid leasehold interests in) all assets necessary for the construction, ownership, and operation of the Facility.
Section 10.2 — Buyer Representations and Warranties
Buyer hereby represents and warrants to Seller, as of the Effective Date, as follows:
(a) Organization and Good Standing. Buyer is a corporation duly organized, validly existing, and in good standing under the laws of the State of Delaware.
(b) Power and Authority. Buyer has full corporate power and authority to execute, deliver, and perform its obligations under this Agreement and to consummate the transactions contemplated hereby.
(c) Due Authorization. The execution, delivery, and performance of this Agreement by Buyer have been duly authorized by all necessary corporate action, including approval by Buyer's board of directors, and no further action or approval is required.
(d) Binding Obligation. This Agreement constitutes a legal, valid, and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, subject to applicable bankruptcy, insolvency, reorganization, moratorium, and similar laws affecting creditors' rights generally and to general principles of equity.
(e) No Conflict. The execution, delivery, and performance of this Agreement by Buyer do not and will not (i) conflict with or violate Buyer's certificate of incorporation, bylaws, or other organizational documents, (ii) conflict with or violate any applicable law, rule, regulation, order, judgment, or decree binding upon Buyer, or (iii) result in a breach of, or default under, any material agreement or instrument to which Buyer is a party.
(f) No Bankruptcy. Buyer is not the subject of any bankruptcy, insolvency, reorganization, receivership, or similar proceeding, and Buyer has not made a general assignment for the benefit of creditors, filed any voluntary petition in bankruptcy, or suffered the filing of any involuntary petition by its creditors.
(g) Credit Rating. Buyer has an investment-grade credit rating of BBB from Pinnacle Ratings Group.
Section 10.3 — Mutual