Contract analysis

I. PURPOSE OF MEMORANDUM The purpose of this memorandum is to provide the leadership of Greenfield Agricultural Partners LLC ("GAP") with a comprehensive summary and analysis of the significant ruling entered on August 22, 2022, by the Honorable Patricia Delacroix in the Circuit Court of Cook County, Illinois, in the matter captioned Greenfield Agricultural Partners LLC v. Prairie Basin Grain Co. et al., Case No. 202

II. BACKGROUND SUMMARY To provide context for the Court's ruling, we briefly summarize the procedural history and factual background of this litigation. A. Filing of the Verified Complaint On May 9, 2022, GAP filed a four-count Verified Complaint in the Circuit Court of Cook County, Illinois, against defendants PBGC and Musgrave. The Verified Complaint asserts the following claims: Count I — Breach of Contract (Off-T

III. SUMMARY OF THE AUGUST 22, 2022 RULING The Court's August 22, 2022 Order granted GAP's Motion to Strike in substantial part, eliminating two of the three affirmative defenses with prejudice, while allowing the third to survive. We summarize each ruling below. A. Force Majeure Defense — Stricken with Prejudice The Court agreed with GAP's argument that the force majeure clause contained in Section 9.1 of the Off-Ta

IV. PRACTICAL IMPACT OF THE RULING The August 22, 2022 ruling is a significant and favorable development in this litigation. Its practical impact on the case may be summarized as follows. Elimination of Substantive Defenses. The striking of the force majeure and commercial impracticability defenses eliminates the two most substantive and potentially disruptive defenses that PBGC had asserted. These were the defenses

V. NEXT STEPS We recommend the following course of action in the coming weeks and months. A. Case Management Conference — September 12, 2022 A mandatory Case Management Conference before the Honorable Patricia Delacroix is currently scheduled for September 12, 2022. This conference is a standard procedural event at which the Court and the parties will discuss the status of the case, the issues remaining for resolutio

VI. ACTION ITEMS FOR CLIENT At this time, no immediate action is required from GAP in connection with the August 22, 2022 ruling. However, we ask that GAP attend to the following matters on an ongoing basis:

1. Litigation Hold Compliance. GAP should continue to comply fully with the litigation hold notice issued by Calderwood & Harkness on March 28, 2022. All documents and electronically stored information ("ESI") relating to the Off-Take Agreement, dealings with PBGC and Musgrave, the five invoices at issue, forbearance correspondence, delivery and acceptance records, internal communications regarding PBGC's account, an

2. Document Gathering. Caleb Jennings, as Director of Grain Operations, should be prepared to assist Calderwood & Harkness with gathering documents responsive to any discovery requests that PBGC may serve on GAP. We anticipate that defendants will serve their own written discovery requests in the coming months, and timely and thorough responses will be important to maintaining GAP's credibility and litigation positio

3. Direct Communications from Opposing Parties or Counsel. GAP should promptly advise Calderwood & Harkness of any direct communications received from PBGC, Musgrave, or their counsel at Bartlett, Reyes Linley CPAs LLP & Harkin LLP (200 North LaSalle Street, Suite 2500, Chicago, Illinois 60601; lead partner Douglas M. Harkin; associate Nadia C. Petrov). All communications relating to the litigation or to the underlyi

4. Strategy Discussion. We request that Thomas R. Greenfield or Margaret A. Greenfield-Wu (President and Chief Operating Officer of GAP) contact Francesca Morano at their earliest convenience to discuss GAP's settlement posture and overall litigation strategy in light of the August 22, 2022 ruling. The decisions regarding settlement approach, discovery priorities, and the timing of any summary judgment motion will be

VII. CONCLUSION The August 22, 2022 ruling by the Honorable Patricia Delacroix represents a significant and favorable development in this litigation. Two of PBGC's three affirmative defenses — force majeure and commercial impracticability — have been eliminated with prejudice, leaving only the relatively narrow failure-to-mitigate defense, on which PBGC bears the burden of proof and which, in our assessment, is factu

1. Copy of the Court's August 22, 2022 Order on GAP's Motion to Strike Affirmative Defenses (Hon. Patricia Delacroix, Circuit Court of Cook County, Illinois, Case No. 2022-L-004831) PRIVILEGED AND CONFIDENTIAL — ATTORNEY-CLIENT COMMUNICATION — DO NOT DISTRIBUTE WITHOUT PRIOR AUTHORIZATION OF COUNSEL Invoice No. | Commodity | Quantity | Price per Bushel | Total Amount | Due Date GAP-2021-3187 | #2 Yellow Corn | 150,00