Common use of Remedies for Breach Not Constituting an Event of Default Clause in Contracts

Remedies for Breach Not Constituting an Event of Default. In the event that either Party breaches or fails to perform any commitment or obligation contained herein, under circumstances where such breach or failure does not constitute an Event of Default, and such breach or failure is not excused by this Agreement, including by a Force Majeure condition, the other Party (the “Non-Defaulting Party”) may exercise any remedy or right specified in the Master Agreement or this Agreement in connection with such breach or failure. In addition, and without limiting the foregoing: (a) If (i) Producer at any time owes Cargill $500,000 or more for Corn delivered to the Grain Facility, or (ii) Xxxxxxx’x xxxx-to-market exposure on Corn procured for Producer but not yet delivered exceeds $1,000,000, then Cargill may exercise any one or more of the following remedies: (x) suspend performance of its obligations under this Agreement, including without limitation origination and delivery of Corn to Producer, until Producer is below the dollar thresholds set forth in Section 19(a)(i) and (ii), (y) require Producer to provide an irrevocable letter of credit in a form reasonably acceptable to Cargill as adequate assurance for amounts in excess of $500,000 in the case of subparagraph (i) above or $1,000,000 in the case of subparagraph (ii) above, or (z) with respect to xxxx-to-market exposure on Corn, unwind cash positions to limit Cargill’s exposure on Corn. For purposes of this section, “xxxx-to-market exposure” refers to the difference, in the aggregate, between the actual price Cargill sold the Corn to Producer and the current market price for such Corn (based on Cargill’s daily posted basis or flat price, as applicable, for Corn delivered to the Grain Facility) as adjusted daily; (b) In the event either Party fails to pay any amounts due to the other Party when due, the Non-Defaulting Party shall be entitled to charge and receive interest accrued on the unpaid amount from the date it was due until the date actually paid at the Default Rate; (c) If a Party breaches or fails to perform in any material respect any of its commitments or agreements contained in this Agreement, the defaulting Party shall be liable to the Non-Defaulting Party for Damages arising out of or resulting from such breach as provided in Section 8 of the Master Agreement (subject to the Non-Defaulting Party’s duty to mitigate its Damages). Notwithstanding the foregoing, Cargill’s failure to deliver Producer quantities of Corn within the period set forth in any applicable Sales Confirmation will give rise to a Producer claim for Damages consistent with Rule 28 of the National Grain and Feed Association Grain Trade Rules. (d) If a Party breaches or fails to perform in any material respect any of its commitments or agreements contained in any Principal Document, and such breach or failure is of a continuing nature, the Non-Defaulting Party may (A) request the defaulting Party, as a condition of continuing its performance under this Agreement, to provide adequate assurance of performance of the defaulting Party’s obligations under this Agreement; and/or (B) seek injunctive relief.

Remedies for Breach Not Constituting an Event of Default. In the event that either Party breaches or fails to perform any commitment or obligation contained herein, under circumstances where such breach or failure does not constitute a Cargill Event of Default or a Producer Event of Default (each, as the context requires, an “Event of Default”), and such breach or failure is not excused by this Agreement, including by a Force Majeure condition, the other Party (the “Non-Defaulting Party”) may exercise any remedy or right specified in the Master Agreement or this Agreement in connection with such breach or failure. In addition, and without limiting the foregoing: (a) If (i) Producer at any time owes Cargill $500,000 or more for Corn delivered to the Grain Facility, or (ii) Xxxxxxx’x xxxx-to-market exposure on Corn procured for Producer but not yet delivered exceeds $1,000,000, then Cargill may exercise any one or more of the following remedies: (x) suspend performance of its obligations under this Agreement, including without limitation origination and delivery of Corn to Producer, until Producer is below the dollar thresholds set forth in Section 19(a)(i) and (ii), (y) require Producer to provide an irrevocable letter of credit in a form reasonably acceptable to Cargill as adequate assurance for amounts in excess of $500,000 in the case of subparagraph (i) above or $1,000,000 in the case of subparagraph (ii) above, or (z) with respect to xxxx-to-market exposure on Corn, unwind cash positions to limit Cargill’s exposure on Corn. For purposes of this section, “xxxx-to-market exposure” refers to the difference, in the aggregate, between the actual price Cargill sold the Corn to Producer and the current market price for such Corn (based on Cargill’s daily posted basis or flat price, as applicable, for Corn delivered to the Grain Facility) as adjusted daily; (b) In the event either Party fails to pay any amounts due to the other Party when due, the Non-Defaulting Party shall be entitled to charge and receive interest accrued on the unpaid amount from the date it was due until the date actually paid at the Default Rate; (cii) If if a Party breaches or fails to perform in any material respect any of its commitments or agreements contained in this Agreement, the defaulting Party shall be liable to the Non-Defaulting Party for Damages arising out of or resulting from such breach as provided in Section 8 9 of the Master Agreement (subject to the Non-Defaulting Party’s duty to mitigate its Damages). Notwithstanding ; provided, however, that notwithstanding Section 9(c) of the foregoingMaster Agreement, Cargill’s failure in the event of a breach by Cargill hereunder of its obligation to deliver Producer quantities of Corn within the period set forth purchase or market Ethanol in any applicable Sales Confirmation will give rise to a Producer claim amount, the measure for Damages consistent with Rule 28 arising from a breach shall include the loss of Net Revenues suffered by Producer as a result of such breach. For the avoidance of doubt, the amount of the National Grain and Feed Association Grain Trade Rules.Net Revenues lost shall be calculated by reference to the average price of Ethanol from the Ethanol Facility sold by Cargill to its customers for the 7-day period ending on the date of the breach; and (diii) If if a Party breaches or fails to perform in any material respect any of its commitments or agreements contained in any Principal Document, and such breach or failure is of a continuing nature, the Non-Defaulting Party may (A) request the defaulting Party, as a condition of continuing its performance under this Agreement, to provide adequate assurance of performance of the defaulting Party’s obligations under this Agreement; and/or (B) seek injunctive relief.

Remedies for Breach Not Constituting an Event of Default. In the event that either Party breaches or fails to perform any commitment or obligation contained herein, under circumstances where such breach or failure does not constitute an Event of Default, and such breach or failure is not excused by this Agreement, including by a Force Majeure condition, the other Party (the “Non-Defaulting Party”) may exercise any remedy or right specified in the Master Agreement or this Agreement in connection with such breach or failure. In addition, and without limiting the foregoing: (a) If (i) Producer at any time owes Cargill $500,000 or more for Corn delivered to the Grain Facility, or (ii) Xxxxxxx’x xxxx-to-market exposure on Corn procured for Producer but not yet delivered exceeds $1,000,000, then Cargill may exercise any one or more of the following remedies: (x) suspend performance of its obligations under this Agreement, including without limitation origination and delivery of Corn to Producer, until Producer is below the dollar thresholds set forth in Section 19(a)(i) and (ii), (y) require Producer to provide an irrevocable letter of credit in a form reasonably acceptable to Cargill as adequate assurance for amounts in excess of $500,000 in the case of subparagraph (i) above or $1,000,000 in the case of subparagraph (ii) above, or (z) with respect to xxxx-to-market exposure on Corn, unwind cash positions to limit Cargill’s Xxxxxxx’x exposure on Corn. For purposes of this section, “xxxx-to-market exposure” refers to the difference, in the aggregate, between the actual price Cargill sold the Corn to Producer and the current market price for such Corn (based on Cargill’s Xxxxxxx’x daily posted basis or flat price, as applicable, for Corn delivered to the Grain Facility) as adjusted daily; (b) In the event either Party fails to pay any amounts due to the other Party when due, the Non-Defaulting Party shall be entitled to charge and receive interest accrued on the unpaid amount from the date it was due until the date actually paid at the Default Rate; (c) If a Party breaches or fails to perform in any material respect any of its commitments or agreements contained in this Agreement, the defaulting Party shall be liable to the Non-Defaulting Party for Damages arising out of or resulting from such breach as provided in Section 8 of the Master Agreement (subject to the Non-Defaulting Party’s duty to mitigate its Damages). Notwithstanding the foregoing, Cargill’s Xxxxxxx’x failure to deliver Producer quantities of Corn within the period set forth in any applicable Sales Confirmation will give rise to a Producer claim for Damages consistent with Rule 28 of the National Grain and Feed Association Grain Trade Rules. (d) If a Party breaches or fails to perform in any material respect any of its commitments or agreements contained in any Principal Document, and such breach or failure is of a continuing nature, the Non-Defaulting Party may (A) request the defaulting Party, as a condition of continuing its performance under this Agreement, to provide adequate assurance of performance of the defaulting Party’s obligations under this Agreement; and/or (B) seek injunctive relief.