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 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: i) 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; ii) 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); provided, however, in the event of a material breach by Cargill hereunder of its obligation to purchase or market Ethanol, the measure for Damages arising from such breach shall include the loss of revenues suffered by Producer as a result of such breach, so long as (A) the Damages payable under this proviso in connection with each such breach, on a per occurrence basis, exceed Ten Thousand Dollars ($10,000) and (B) such Damages payable exclude Damages to the extent arising out of breaches by third parties under the rail and truck transportation agreements referred to in Section 6.1. For the avoidance of doubt, the amount of revenues lost shall be calculated by reference to the average price of Ethanol from the Facility sold by Cargill to its customers for the 7-day period ending on the date of the breach; and iii) 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: i(1) 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; ii(2) 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); provided, however, in the event of a material breach by Cargill hereunder of its obligation to purchase or market EthanolDG, the measure for Damages arising from such breach shall include the loss of revenues suffered by Producer as a result of such breach, so long as (A) the Damages payable under this proviso in connection with each such breach, on a per occurrence basis, exceed Ten Thousand Dollars ($10,000) and (B) such Damages payable exclude Damages to the extent arising out of breaches by third parties under the rail and truck transportation agreements referred to in in Section 6.1. For the avoidance of doubt, the amount of revenues lost shall be calculated by reference to the average price of Ethanol DG from the Facility sold by Cargill to its customers for the 7-day period ending on the date of the breach; and iii(3) 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: (i) 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; (ii) 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); provided, however, that notwithstanding Section 9(c) of the Master Agreement, in the event of a material breach by Cargill hereunder of its obligation to purchase or market EthanolDG in any amount, the measure for Damages arising from such a breach shall include the loss of revenues Net Revenues suffered by Producer as a result of such breach, so long as (A) the Damages payable under this proviso in connection with each such breach, on a per occurrence basis, exceed Ten Thousand Dollars ($10,000) and (B) such Damages payable exclude Damages to the extent arising out of breaches by third parties under the rail and truck transportation agreements referred to in Section 6.1. For the avoidance of doubt, the amount of revenues the Net Revenues lost shall be calculated by reference to the average price of Ethanol DG from the Ethanol Facility sold by Cargill to its customers for the 7-day period ending on the date of the breach; and (iii) 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: i) i. 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; ii) . 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); provided, however, that notwithstanding Section 9(c) of the Master Agreement and Section 2(c), in the event Cargill fails to deliver at least ninety-five percent (95%) of the Corn ordered and confirmed pursuant to Section 3(b) for a material breach 24-hour period on three (3) separate occasions within any 30-day period, and Producer gives written notice to Cargill of each such failure, then for each subsequent failure, the Damages payable by Cargill hereunder of its obligation to purchase or market Ethanol, the measure for Damages arising from such breach shall include the loss of revenues Net Revenues suffered by Producer as a result of such breach, so long as (A) the Damages payable under this proviso in connection with each such breachsubsequent failure; provided, on a per occurrence basisfurther, exceed Ten Thousand Dollars ($10,000) and (B) such Damages payable exclude Damages to the extent arising out of breaches by third parties under the rail and truck transportation agreements referred to in Section 6.1. For however, that for the avoidance of doubt, the amount of revenues the 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. iii) . 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. iv. if (A) Cargill fails to deliver at least seventy-five percent (75%) of the Corn ordered and confirmed pursuant to Section 3(b) for a 24-hour period where such breach or failure is not excused by this Agreement, including by a Force Majeure condition, and (B) the events described in clauses (i) and (ii) of Section 10.1(a) have occurred, Producer may by written notice to Cargill, suspend payment of the Purchase Price during the continuance of such default or breach, provided that once Cargill has remedied such default or breach, Producer shall promptly pay Cargill the suspended payments without interest or carrying charge. v. if (A) Producer fails to pay any amount that is due to Cargill under this Agreement that is not excused by this Agreement, (B) the events described in clauses (i) through (iii) of Section 10.2(a) have occurred, and (C) Producer has failed to pay to Cargill such past-due amount (plus amounts payable pursuant to Section 10.3(a)(i), if any) within three (3) days of Producer’s receipt of the confirmation delivered pursuant to Section 10.2(a)(iii), Cargill may by written notice to Producer, Suspend Performance during the continuance of such default or breach, provided that once Producer has remedied such default or breach Cargill shall promptly continue such Corn deliveries and procurement; and vi. if Producer procures or purchases Corn or Alternative Commodity for ethanol production at the Ethanol Facility from a Person other than Cargill where not otherwise permitted to do so by the terms of this Agreement, Cargill shall have the option, exercised in its sole discretion, (i) to not accept delivery of such Corn or Alternative Commodity at the Grain Facility, or (ii) to accept delivery of such Corn or Alternative Commodity at the Grain Facility and charge Producer the Handling Fee and Origination Fee with respect to such Corn. Producer shall be obligated to notify Cargill in writing in the event Producer has actual knowledge of any such procurement or purchase.