Contract analysis

1. The Complaint in this action alleges breach of that certain Master Grain Purchase and Off-Take Agreement dated March 15, 2019, by and between GAP and PBGC (the "Off-Take Agreement"), pursuant to which PBGC agreed to purchase and accept delivery of specified quantities of corn and soybeans from GAP on a recurring basis over a four-year term. The Complaint seeks recovery of Four Million Eight Hundred Seventy Thousan

2. In their Answer filed June 27, 2022, Defendants asserted three affirmative defenses: (a) the First Affirmative Defense of Force Majeure, asserting that a fire at PBGC's grain elevator facility in Macon County, Illinois on October 17, 2021 constituted a force majeure event excusing PBGC's performance under the Off-Take Agreement; (b) the Second Affirmative Defense of Commercial Impracticability, asserting that a co

3. As to Defendants' First Affirmative Defense (Force Majeure): The Court has examined the force majeure provision set forth in Section 9.1 of the Off-Take Agreement, which was attached as Exhibit A to the Complaint and incorporated into the pleadings. Section 9.1 provides, in relevant part, that "[n]either Party shall be liable for any delay or failure to perform its obligations under this Agreement (other than paym

4. As to Defendants' Second Affirmative Defense (Commercial Impracticability): The Court finds that, under well-established Illinois law, the defense of commercial impracticability under 810 ILCS 5/2-615 requires a showing that performance has been rendered objectively impossible or impracticable by the occurrence of a contingency the non-occurrence of which was a basic assumption on which the contract was made. See

5. As to Defendants' Third Affirmative Defense (Failure to Mitigate Damages): The Court finds that Defendants' Third Affirmative Defense is sufficiently pled under Illinois notice pleading standards. Defendants allege with adequate specificity that GAP failed to take reasonable steps to minimize its losses following PBGC's alleged breach, including by failing to resell available grain inventories in a timely manner w

1. Plaintiff Greenfield Agricultural Partners LLC's Motion to Strike Affirmative Defenses is GRANTED IN PART AND DENIED IN PART, as set forth herein.

2. Defendants' First Affirmative Defense (Force Majeure) is hereby STRICKEN with prejudice. Defendants are precluded from re-pleading this defense, as the Court has determined that it is legally insufficient on its face and no amendment could cure the deficiency identified herein.

3. Defendants' Second Affirmative Defense (Commercial Impracticability) is hereby STRICKEN with prejudice. Defendants are precluded from re-pleading this defense, as the Court has determined that it is legally insufficient as a matter of law and no amendment could cure the deficiency identified herein.

4. Defendants' Third Affirmative Defense (Failure to Mitigate Damages) SURVIVES and is not stricken. Plaintiff's Motion to Strike as to this defense is DENIED. Defendants may proceed with this affirmative defense, subject to their burden of proof at trial.

5. This matter shall proceed on Plaintiff's remaining claims and Defendants' surviving Third Affirmative Defense in accordance with the discovery schedule and case management deadlines to be established at the next Case Management Conference, which shall be set by separate order of this Court. ENTERED: Date: ________ ________________________________________ Hon. Patricia Delacroix Judge, Circuit Court of Cook County,