EXHIBIT 12

1:15-cv-11236-TLL-PTM Doc # 73-13 Filed 02/26/16 Pg 1 of 27 Pg ID 3691
STATE OF MICHIGAN 

IN THE CIRCUIT COURT FOR THE COUNTY OF SAGINAW 

HEMLOCK SEMICONDUCTOR CORPORATION, 

Plaintiff, 

vs. File No. 13-020593-CK-1 

GREEN ENERGY TECHNOLOGY, 

Defendant. 

ORAL OPINION OF THE COURT 

BEFORE THE HONORABLE FRED L. BORCHARD, CIRCUIT JUDGE 

Saginaw, Michigan - April 20, 2015 

APPEARANCES VIA PHONE: 

For Plaintiff: (There was no appearance stated on the 

record.) 

For Defendant: (There was no appearance stated on the 

record.) 

Reported By: TRACY M. STEMLER, CSR-4023 

Official Court Reporter 

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STATE OF MICHIGAN 

IN THE CIRCUIT COURT FOR THE COUNTY OF SAGINAW 

HEMLOCK SEMICONDUCTOR CORPORATION, 

Plaintiff, 

vs. File No. 13-020593-CK-1 

GREEN ENERGY TECHNOLOGY, 

Defendant. 

ORAL OPINION OF THE COURT 

BEFORE THE HONORABLE FRED L. BORCHARD, CIRCUIT JUDGE 

Saginaw, Michigan - April 20, 2015 

APPEARANCES VIA PHONE: 

For Plaintiff: (There was no appearance stated on the 

record.) 

For Defendant: (There was no appearance stated on the 

record.) 

Reported By: TRACY M. STEMLER, CSR-4023 

Official Court Reporter 

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1:15-cv-11236-TLL-PTM Doc # 73-13 Filed 02/26/16 Pg 2 of 27 Pg ID 3692
1 INDEX 

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1 INDEX 

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1:15-cv-11236-TLL-PTM Doc # 73-13 Filed 02/26/16 Pg 3 of 27 Pg ID 3693
Saginaw, Michigan 

April 20, 2015 

(Following took place via phone:) 

THE COURT: If, at any time, you cannot. 

Hear me, please let me know. Court at this 

time will call the matter of Hemlock Semiconductor 

versus Green Energy, Case Number 13-020593-CK. The 

record will reflect this is the day, time, and place 

set for an opinion on Defendants' motion for compelling 

discovery. 

Background on this case indicates the 

defendants, Green Energy Technology, Inc., otherwise 

known as GET, and Tatung Company of America, Inc., 

Tatung having filed a joint motion to compel discovery 

asserting that, notwithstanding objections by the 

plaintiff, Hemlock Semiconductor, HSC, certain 

requested information is relevant and it should be 

provided in the discovery. 

To put the present issue in context, review 

of the pleadings and undisputed facts is helpful in 

this matter. Hemlock Semiconductor's complaint alleges 

that pursuant to a long-term supply amendment dated 

5-4-11 as subsequently amended, the agreement, which 

will be known as -- between HSC's assignor, its 

affiliate, Hemlock Singapore, and both defendants, HSC, 

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Saginaw, Michigan 

April 20, 2015 

(Following took place via phone:) 

THE COURT: If, at any time, you cannot. 

Hear me, please let me know. Court at this 

time will call the matter of Hemlock Semiconductor 

versus Green Energy, Case Number 13-020593-CK. The 

record will reflect this is the day, time, and place 

set for an opinion on Defendants' motion for compelling 

discovery. 

Background on this case indicates the 

defendants, Green Energy Technology, Inc., otherwise 

known as GET, and Tatung Company of America, Inc., 

Tatung having filed a joint motion to compel discovery 

asserting that, notwithstanding objections by the 

plaintiff, Hemlock Semiconductor, HSC, certain 

requested information is relevant and it should be 

provided in the discovery. 

To put the present issue in context, review 

of the pleadings and undisputed facts is helpful in 

this matter. Hemlock Semiconductor's complaint alleges 

that pursuant to a long-term supply amendment dated 

5-4-11 as subsequently amended, the agreement, which 

will be known as -- between HSC's assignor, its 

affiliate, Hemlock Singapore, and both defendants, HSC, 

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1:15-cv-11236-TLL-PTM Doc # 73-13 Filed 02/26/16 Pg 4 of 27 Pg ID 3694
was to manufacture and sell certain polycrystalline 

silicon, known as the product, to the defendants in 

specified quantities pursuant to an annual schedule at 

specific prices for a term extending through December 

31 of 2020. 

The agreement obligated the defendants to, 

quote, absolutely and irrevocably to pay full purchase 

price for the product regardless of whether Defendants 

actually, took delivery, that is, quote, take and pay, 

end quote, contract. Complaint goes on to allege the 

agreement required Defendants to make advance payment 

in several installments. 

It also provided that upon an uncured 

default, HSC could terminate the agreement and recover 

all unpaid advance payment installments, retain any 

advanced payment, recover for all delivered product, 

and recover payment for all remaining product at the 

then effective price. 

It's alleged the defendants failed to pay 

advance payment installments as required and failed to 

take and/or pay for product. HSC also alleges it sent 

notice of termination to the defendants pursuant to the 

agreement and it claims $737,235,429.17 due on,the 

agreement under theories of breach of contract and 

account stated. 

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was to manufacture and sell certain polycrystalline 

silicon, known as the product, to the defendants in 

specified quantities pursuant to an annual schedule at 

specific prices for a term extending through December 

31 of 2020. 

The agreement obligated the defendants to, 

quote, absolutely and irrevocably to pay full purchase 

price for the product regardless of whether Defendants 

actually, took delivery, that is, quote, take and pay, 

end quote, contract. Complaint goes on to allege the 

agreement required Defendants to make advance payment 

in several installments. 

It also provided that upon an uncured 

default, HSC could terminate the agreement and recover 

all unpaid advance payment installments, retain any 

advanced payment, recover for all delivered product, 

and recover payment for all remaining product at the 

then effective price. 

It's alleged the defendants failed to pay 

advance payment installments as required and failed to 

take and/or pay for product. HSC also alleges it sent 

notice of termination to the defendants pursuant to the 

agreement and it claims $737,235,429.17 due on,the 

agreement under theories of breach of contract and 

account stated. 

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1:15-cv-11236-TLL-PTM Doc # 73-13 Filed 02/26/16 Pg 5 of 27 Pg ID 3695
While GET's Answer admits signing the 

agreement including the amendments, Tatung's Answer 

admits signing the amendments to the agreement, and it 

was originally with the defendant; that is, the 

agreement was originally with the defendant Green 

Energy only, and responses to the requests for 

admission, when review of the pleadings, also noted 

advance payment installments by admission were not 

made. The agreement does contain take-or-pay language. 

The agreement contains the liquidated damages 

provision. 

Defendants received notice of default from 

HSC. Both defendants, however, interpose several 

affirmative defenses, including failure to mitigate 

damages. Performance, as argued, was excused by the 

Doctrine of Commercial Impracticability, and 

performance was also excused by the Doctrine of 

Frustration of Purpose. 

It's also alleged affirmatively the requested 

damages were unreasonable, excessive and unenforceable, 

and acted as unenforceable penalty. Now, because of 

these defenses, the defense assert that, over HCS's 

(sic) objections, they are entitled to discovery 

evidence related to Hemlock's financial performance and 

condition before and after execution of the agreement, 

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While GET's Answer admits signing the 

agreement including the amendments, Tatung's Answer 

admits signing the amendments to the agreement, and it 

was originally with the defendant; that is, the 

agreement was originally with the defendant Green 

Energy only, and responses to the requests for 

admission, when review of the pleadings, also noted 

advance payment installments by admission were not 

made. The agreement does contain take-or-pay language. 

The agreement contains the liquidated damages 

provision. 

Defendants received notice of default from 

HSC. Both defendants, however, interpose several 

affirmative defenses, including failure to mitigate 

damages. Performance, as argued, was excused by the 

Doctrine of Commercial Impracticability, and 

performance was also excused by the Doctrine of 

Frustration of Purpose. 

It's also alleged affirmatively the requested 

damages were unreasonable, excessive and unenforceable, 

and acted as unenforceable penalty. Now, because of 

these defenses, the defense assert that, over HCS's 

(sic) objections, they are entitled to discovery 

evidence related to Hemlock's financial performance and 

condition before and after execution of the agreement, 

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1:15-cv-11236-TLL-PTM Doc # 73-13 Filed 02/26/16 Pg 6 of 27 Pg ID 3696
including income statements, balance sheets, sales 

revenue information concerning product inventory, and 

HSC's strategic planning and utilization forecasts on 

the premises, it's argued, that the information will 

demonstrate that HSC's actual damages render the 

liquidated damages provision of the agreement 

unenforceable and unreasonable. 

It's also argued that HSC's agreement to sell 

product to other customers is relevant on the premises 

that HSC agreed to sell product at reduced market rates 

to other customers in recognition of the global decline 

in the solar industry and failed to mitigate damages by 

similarly selling to Defendants at attractive prices 

below the -- that required by the agreement. 

It's finally argued, also, that HSC's 

awareness of market, legal, and government forces 

affecting the market make the request for discovery 

reasonable on the premises that this information will 

relevantly show the frustration of purpose of the 

agreement, impossibility of it, and commercial 

impracticability. 

As to liquidated damages central to this 

present motion, and, really, as the Court looks at it, 

the entire case, is the enforceability of the 

agreement's liquidated damages provision. Liquidated 

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including income statements, balance sheets, sales 

revenue information concerning product inventory, and 

HSC's strategic planning and utilization forecasts on 

the premises, it's argued, that the information will 

demonstrate that HSC's actual damages render the 

liquidated damages provision of the agreement 

unenforceable and unreasonable. 

It's also argued that HSC's agreement to sell 

product to other customers is relevant on the premises 

that HSC agreed to sell product at reduced market rates 

to other customers in recognition of the global decline 

in the solar industry and failed to mitigate damages by 

similarly selling to Defendants at attractive prices 

below the -- that required by the agreement. 

It's finally argued, also, that HSC's 

awareness of market, legal, and government forces 

affecting the market make the request for discovery 

reasonable on the premises that this information will 

relevantly show the frustration of purpose of the 

agreement, impossibility of it, and commercial 

impracticability. 

As to liquidated damages central to this 

present motion, and, really, as the Court looks at it, 

the entire case, is the enforceability of the 

agreement's liquidated damages provision. Liquidated 

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1:15-cv-11236-TLL-PTM Doc # 73-13 Filed 02/26/16 Pg 7 of 27 Pg ID 3697
damages, this Court understands, refers to the sum 

which the parties to a contract have agreed at the time 

of entering into the contract as being payable to 

satisfy any loss or injury flowing from the breach of 

contract. This principle's set forth in 7 Mich Civ 

Jur, Damages Section 146. 

To be enforceable, the liquidated damages 

clause must bear a reasonable relation to the 

anticipated or actual damages. This principle is set 

forth in St. Paul Fire and Marine Insurance Company 

verses Guardian Alarm, 115 Mich App 278, 1982. If 

damages are deemed excessively harsh, too large an 

amount, that is, unreasonable, they could be considered 

punitive rather than compensatory and therefore 

unenforceable. This involves -- or is -- Court, for 

that principle, would cite the case of Watson versus 

Harrison, 324 Mich 16. It's a 1949 case. 

The validity and reasonableness of a 

liquidated damages provision is determined by 

conditions existing at the time the contract is entered 

into, not when the breach occurs, Wilkinson versus 

Lanterman, 314 Mich 568, a 1946 case, and there's other 

cases since that time. 

There are three factors in determining 

reasonableness of liquidated -- of the liquidated 

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damages, this Court understands, refers to the sum 

which the parties to a contract have agreed at the time 

of entering into the contract as being payable to 

satisfy any loss or injury flowing from the breach of 

contract. This principle's set forth in 7 Mich Civ 

Jur, Damages Section 146. 

To be enforceable, the liquidated damages 

clause must bear a reasonable relation to the 

anticipated or actual damages. This principle is set 

forth in St. Paul Fire and Marine Insurance Company 

verses Guardian Alarm, 115 Mich App 278, 1982. If 

damages are deemed excessively harsh, too large an 

amount, that is, unreasonable, they could be considered 

punitive rather than compensatory and therefore 

unenforceable. This involves -- or is -- Court, for 

that principle, would cite the case of Watson versus 

Harrison, 324 Mich 16. It's a 1949 case. 

The validity and reasonableness of a 

liquidated damages provision is determined by 

conditions existing at the time the contract is entered 

into, not when the breach occurs, Wilkinson versus 

Lanterman, 314 Mich 568, a 1946 case, and there's other 

cases since that time. 

There are three factors in determining 

reasonableness of liquidated -- of the liquidated 

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1:15-cv-11236-TLL-PTM Doc # 73-13 Filed 02/26/16 Pg 8 of 27 Pg ID 3698
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damages provision in sale of goods: One, the 

anticipated or actual harm caused by the breach; two, 

the difficulty of proving damages sustained; and, 

three, the inconvenience or nonfeasibility of otherwise 

obtaining an adequate remedy, MCL 440.24718(1) and UCC 

2-718(1). 

As to the anticipated actual harm factor, 

although courts are prone to honor a general freedom of 

contract including allocation of risk, parties cannot 

disregard the principle of just compensation that 

contemplates compensation only for damages actually 

sustained, Curran, C-U-R-R-A-N, versus William, 352 

Mich 278, a 1956 case, but an agreement for damages 

will not be disregarded as an unforcible --

unenforceable penalty unless it is obvious from the 

contract and the whole subject matter that the 

principle compensation has been disregarded, Central 

Trust Company versus Wolf, 255 Mich 8, 1931. 

Before accepting as conclusive an agreement 

as to damages, it should be examined by the Court to 

determine whether the liquidated damages figure is 

really in the nature of an attempted compensation of 

actual damages likely to result or whether it has the 

effect of exacting the penalty from the contract 

breaker. 

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damages provision in sale of goods: One, the 

anticipated or actual harm caused by the breach; two, 

the difficulty of proving damages sustained; and, 

three, the inconvenience or nonfeasibility of otherwise 

obtaining an adequate remedy, MCL 440.24718(1) and UCC 

2-718(1). 

As to the anticipated actual harm factor, 

although courts are prone to honor a general freedom of 

contract including allocation of risk, parties cannot 

disregard the principle of just compensation that 

contemplates compensation only for damages actually 

sustained, Curran, C-U-R-R-A-N, versus William, 352 

Mich 278, a 1956 case, but an agreement for damages 

will not be disregarded as an unforcible --

unenforceable penalty unless it is obvious from the 

contract and the whole subject matter that the 

principle compensation has been disregarded, Central 

Trust Company versus Wolf, 255 Mich 8, 1931. 

Before accepting as conclusive an agreement 

as to damages, it should be examined by the Court to 

determine whether the liquidated damages figure is 

really in the nature of an attempted compensation of 

actual damages likely to result or whether it has the 

effect of exacting the penalty from the contract 

breaker. 

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1:15-cv-11236-TLL-PTM Doc # 73-13 Filed 02/26/16 Pg 9 of 27 Pg ID 3699
As to the difficulty of proof, liquidated 

damages will be permitted only if actual damages cannot 

be ascertained with certainty at the time of 

contracting, Worley, W-O-R-L-E-Y, versus McCarty, 354 

Mich 599, 1958 case. 

As to the inconvenience or nonfeasibility of 

an adequate remedy, this seems to be substantially 

redundant to the previous factor that damages not be 

readily measurable at the time of contracting. Again, 

this is Trentacosta, Michigan Contract Law, 2d ed, 

Section 6.36, page 260. 

Importantly, the enforceability of liquidated 

damages provisions in Michigan is a question of law, 

Moore versus St. Clair County, 120 Mich App 355. 

Here, the defendants seek to discover HSC's 

financial condition since 2006, that is, before and 

after the execution of the agreement in 2011, on the 

premise the information will demonstrate HSC's actual 

damages render the agreement's liquidated damages 

provision unenforceable and unreasonable. 

While evidence related to HSC's actual and 

anticipated damages may be relevant and discoverable 

and this very information may be necessary to enable 

the Court to determine reasonable -- the reasonableness 

of the liquidated damages provision only, the relevance 

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As to the difficulty of proof, liquidated 

damages will be permitted only if actual damages cannot 

be ascertained with certainty at the time of 

contracting, Worley, W-O-R-L-E-Y, versus McCarty, 354 

Mich 599, 1958 case. 

As to the inconvenience or nonfeasibility of 

an adequate remedy, this seems to be substantially 

redundant to the previous factor that damages not be 

readily measurable at the time of contracting. Again, 

this is Trentacosta, Michigan Contract Law, 2d ed, 

Section 6.36, page 260. 

Importantly, the enforceability of liquidated 

damages provisions in Michigan is a question of law, 

Moore versus St. Clair County, 120 Mich App 355. 

Here, the defendants seek to discover HSC's 

financial condition since 2006, that is, before and 

after the execution of the agreement in 2011, on the 

premise the information will demonstrate HSC's actual 

damages render the agreement's liquidated damages 

provision unenforceable and unreasonable. 

While evidence related to HSC's actual and 

anticipated damages may be relevant and discoverable 

and this very information may be necessary to enable 

the Court to determine reasonable -- the reasonableness 

of the liquidated damages provision only, the relevance 

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1:15-cv-11236-TLL-PTM Doc # 73-13 Filed 02/26/16 Pg 10 of 27 Pg ID 3700
of the defendants' particular discovery request is 

suspect for several reasons: 

First, the defense argues in their supporting 

brief at page four their obligation to pay is 

conditioned on HSC's ability to provide product and, 

therefore, they want to discover whether HSC was even 

financially viable or capable of performing its 

contractual obligations, but nowhere is it claimed, 

either in the defendants' answers, affirmative 

defenses, or otherwise, that HSC is guilty of a 

material breach or even an anticipatory breach of the 

agreement. Rather, the defendants' argument is limited 

to the anecdotal observation that the entire solar 

industry suffered a drastic decline beginning in 2011, 

and Hemlock no longer -- excuse me, Hemlock, no doubt, 

faced the very similar difficulties as other 

participants in the market. 

Second, the defendants seek information 

concerning HSC's financial condition before and after 

the execution of the agreement, but case law indicates 

that the reasonableness of liquidated damages is to be 

determined by conditions existing at the time the 

contract is entered into. That's the Wilkerson case. 

Third, even if limited to HSC's financial 

condition as the agreement's function are the discovery 

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of the defendants' particular discovery request is 

suspect for several reasons: 

First, the defense argues in their supporting 

brief at page four their obligation to pay is 

conditioned on HSC's ability to provide product and, 

therefore, they want to discover whether HSC was even 

financially viable or capable of performing its 

contractual obligations, but nowhere is it claimed, 

either in the defendants' answers, affirmative 

defenses, or otherwise, that HSC is guilty of a 

material breach or even an anticipatory breach of the 

agreement. Rather, the defendants' argument is limited 

to the anecdotal observation that the entire solar 

industry suffered a drastic decline beginning in 2011, 

and Hemlock no longer -- excuse me, Hemlock, no doubt, 

faced the very similar difficulties as other 

participants in the market. 

Second, the defendants seek information 

concerning HSC's financial condition before and after 

the execution of the agreement, but case law indicates 

that the reasonableness of liquidated damages is to be 

determined by conditions existing at the time the 

contract is entered into. That's the Wilkerson case. 

Third, even if limited to HSC's financial 

condition as the agreement's function are the discovery 

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1:15-cv-11236-TLL-PTM Doc # 73-13 Filed 02/26/16 Pg 11 of 27 Pg ID 3701
requests relevant to the inquiry whether the parties' 

calculation of liquidated damages bears a reasonable 

relation to HSC's actual damages anticipated at the 

time? This requires consideration of the proper 

measure of damages in the absence of a liquidated 

damages agreement. 

In this regard, the UCC, at 2-708(1), and MCL 

440.2708(1) provides, in pertinent part: Subject to 

Subsection (2) and the provisions of this article with 

respect to proof of market price, Section 2723, the 

measure of damages for nonacceptance or repudiation by 

the buyer is the difference between the market price at 

the time and place for tender and the unpaid contract 

price together with any incidental damages provided in 

this article, Section 2710, but less expenses saved the 

consequence of the buyer's breach. The contract price 

is the agreement, and the market price does not appear 

to function -- does not appear a function of HSC's 

financial condition. 

Finally, take-or-pay contracts have received 

judicial acceptance elsewhere, including Hemlock 

Semiconductor versus Global Sun Limited, which 

provides, in part, the purpose of the take-or-pay 

clause is to appropriate the risk of production and the 

sales between the buyer and seller. The seller bears 

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requests relevant to the inquiry whether the parties' 

calculation of liquidated damages bears a reasonable 

relation to HSC's actual damages anticipated at the 

time? This requires consideration of the proper 

measure of damages in the absence of a liquidated 

damages agreement. 

In this regard, the UCC, at 2-708(1), and MCL 

440.2708(1) provides, in pertinent part: Subject to 

Subsection (2) and the provisions of this article with 

respect to proof of market price, Section 2723, the 

measure of damages for nonacceptance or repudiation by 

the buyer is the difference between the market price at 

the time and place for tender and the unpaid contract 

price together with any incidental damages provided in 

this article, Section 2710, but less expenses saved the 

consequence of the buyer's breach. The contract price 

is the agreement, and the market price does not appear 

to function -- does not appear a function of HSC's 

financial condition. 

Finally, take-or-pay contracts have received 

judicial acceptance elsewhere, including Hemlock 

Semiconductor versus Global Sun Limited, which 

provides, in part, the purpose of the take-or-pay 

clause is to appropriate the risk of production and the 

sales between the buyer and seller. The seller bears 

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1:15-cv-11236-TLL-PTM Doc # 73-13 Filed 02/26/16 Pg 12 of 27 Pg ID 3702
the risk of production. To compensate seller that 

risk, buyer agrees to take or pay for it -- pay for, if 

not taken, a minimum quantity. The buyer bears the 

risk of market demand. The take-or-pay clause insures 

that if the demand for product goes down, the seller 

will still receive the price for the contract quantity 

delivered each year. 

Under Universal RES Corporation versus 

Panhandle, 813 F2d 77, at page 80, the terms of a 

take-or-pay clause are fully enforceable. The Tenth 

Circuit has emphasized when considering contracts with 

take-or-pay provisions where the buyer is in breach, 

the seller's damages are measured by the obligation to 

pay, the value of which is the contract price in effect 

at the time such deficiency occurred multiplied by the 

difference between the contract quantity and the actual 

quantity of the product purchased for any year buyer 

was in breach. 

This principle is also set forth in Prenaulta 

Corporation versus Colorado Interstate, 944 F2d 677, at 

page 690. The Court would also note in direct -- or in 

the opinion, the matter of Attorney General versus 

Public Service Commission, a Court of Appeals' decision 

found at 171 Mich App 696, a 1988 case. 

In conclusion, the particular discovery 

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the risk of production. To compensate seller that 

risk, buyer agrees to take or pay for it -- pay for, if 

not taken, a minimum quantity. The buyer bears the 

risk of market demand. The take-or-pay clause insures 

that if the demand for product goes down, the seller 

will still receive the price for the contract quantity 

delivered each year. 

Under Universal RES Corporation versus 

Panhandle, 813 F2d 77, at page 80, the terms of a 

take-or-pay clause are fully enforceable. The Tenth 

Circuit has emphasized when considering contracts with 

take-or-pay provisions where the buyer is in breach, 

the seller's damages are measured by the obligation to 

pay, the value of which is the contract price in effect 

at the time such deficiency occurred multiplied by the 

difference between the contract quantity and the actual 

quantity of the product purchased for any year buyer 

was in breach. 

This principle is also set forth in Prenaulta 

Corporation versus Colorado Interstate, 944 F2d 677, at 

page 690. The Court would also note in direct -- or in 

the opinion, the matter of Attorney General versus 

Public Service Commission, a Court of Appeals' decision 

found at 171 Mich App 696, a 1988 case. 

In conclusion, the particular discovery 

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1:15-cv-11236-TLL-PTM Doc # 73-13 Filed 02/26/16 Pg 13 of 27 Pg ID 3703
request related to HSC's financial condition does not 

appear to be relevant to the affirmative defense that 

the liquidated damages provision of the agreement 

constitutes an unreasonable or unenforceable penalty. 

As to mitigation of damages, as part of the 

broader principle of avoidance of consequences, the law 

imposes a duty on a party injured by a breach of 

contract to undertake reasonable efforts to minimize 

resulting damages, Shiffer, S-H-I-F-F-E-R, versus Board 

of Education, 393 Mich 190, at page 197, a 1974 case, 

and there are a number of other cases also cited 

subsequent and as well as prior to that case, but only 

reasonable diligence and ordinary care is required to 

allow full recovery of damages caused by a defendant's 

wrong, Clapman, C-L-A-P-M-A-N, versus Yanga, Y-A-N-G-A, 

102 Mich App 47, a 1980 case, not necessarily the best 

court cause of action or even -- or achieve a measure 

of success. See-- GC Kay Company versus Standard Steel 

Treating, 352 Mich 234. 

Mitigation commonly consists of a seller 

taking steps to reduce expenses or generating revenue 

by selling goods otherwise destined to the defaulting 

buyer. 

The merit of this issue is arguably inverse 

to the enforceability of the liquidated damages 

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request related to HSC's financial condition does not 

appear to be relevant to the affirmative defense that 

the liquidated damages provision of the agreement 

constitutes an unreasonable or unenforceable penalty. 

As to mitigation of damages, as part of the 

broader principle of avoidance of consequences, the law 

imposes a duty on a party injured by a breach of 

contract to undertake reasonable efforts to minimize 

resulting damages, Shiffer, S-H-I-F-F-E-R, versus Board 

of Education, 393 Mich 190, at page 197, a 1974 case, 

and there are a number of other cases also cited 

subsequent and as well as prior to that case, but only 

reasonable diligence and ordinary care is required to 

allow full recovery of damages caused by a defendant's 

wrong, Clapman, C-L-A-P-M-A-N, versus Yanga, Y-A-N-G-A, 

102 Mich App 47, a 1980 case, not necessarily the best 

court cause of action or even -- or achieve a measure 

of success. See-- GC Kay Company versus Standard Steel 

Treating, 352 Mich 234. 

Mitigation commonly consists of a seller 

taking steps to reduce expenses or generating revenue 

by selling goods otherwise destined to the defaulting 

buyer. 

The merit of this issue is arguably inverse 

to the enforceability of the liquidated damages 

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provisions; that is, any mitigation duty would be 

seemingly displaced if the parties' contractual 

obligation for damages is reasonable. 

Here, assuming applicability of the defense, 

the defendants argue in their supporting brief, page 

six, that the duty to mitigate required HSC to allow 

Defendants to continue purchasing product from HSC even 

after the unforeseen and precipitous decline of prices 

in the solar industry beginning in 2011. Because 

product is a fungible commodity, HSC's costs of 

producing the product are identical across customers is 

clearly indicative of whether it could have accepted 

lower prices from the defendants. 

Had HSC allowed such a concession, the 

defendants argue that other -- as other suppliers did, 

Defendants could have continued to purchase product 

from HSC, and HSC could have continued to generate 

revenue from Defendants even if something less than the 

windfall that HSC seeks through the lawsuit as, Court 

again reiterates, Defendants argue in their brief at 

page six. 

It seems an interesting proposition that a 

party's duty to mitigate extends to selling goods under 

contract to that of a breaching party for less than the 

contract price, and, in any event, this proposition 

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provisions; that is, any mitigation duty would be 

seemingly displaced if the parties' contractual 

obligation for damages is reasonable. 

Here, assuming applicability of the defense, 

the defendants argue in their supporting brief, page 

six, that the duty to mitigate required HSC to allow 

Defendants to continue purchasing product from HSC even 

after the unforeseen and precipitous decline of prices 

in the solar industry beginning in 2011. Because 

product is a fungible commodity, HSC's costs of 

producing the product are identical across customers is 

clearly indicative of whether it could have accepted 

lower prices from the defendants. 

Had HSC allowed such a concession, the 

defendants argue that other -- as other suppliers did, 

Defendants could have continued to purchase product 

from HSC, and HSC could have continued to generate 

revenue from Defendants even if something less than the 

windfall that HSC seeks through the lawsuit as, Court 

again reiterates, Defendants argue in their brief at 

page six. 

It seems an interesting proposition that a 

party's duty to mitigate extends to selling goods under 

contract to that of a breaching party for less than the 

contract price, and, in any event, this proposition 

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1:15-cv-11236-TLL-PTM Doc # 73-13 Filed 02/26/16 Pg 15 of 27 Pg ID 3705
would not appear to mitigate the defendants' exposure; 

that is, selling the product at a reduced price would 

end up with the defendants paying the amount and still 

being liable for the deficiency due under the agreement 

rather than mitigating by HSC's generating revenue from 

sale to a third-party buyer and pursuing Defendants on 

the deficiency only. 

Here, rather than discount the defendants' 

contract price to reflect the changing market 

conditions, HSC elected to affirm the agreement and to 

sue for damages, Price versus Long Realty, Inc., 199 

Mich App 461, at page 466. Accordingly, assuming HSC's 

obligation to mitigation damages not extend to selling 

product to the defendants at a price discounted from 

the agreement, the defendants' request for information 

related to HSC's agreements to sell product to other 

customers is based on a false premise. 

As to frustration of purpose, commercial 

impracticability and impossibility, the defendants have 

also interposed the affirmative defenses. Although 

impossibility was not enumerated as an affirmative 

defense by either of the defendants, its applicability 

is asserted in the present joint motion/brief, and the 

Plaintiffs -- the Plaintiff has joined in the issue in 

its response. In any event, the restatement of 

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would not appear to mitigate the defendants' exposure; 

that is, selling the product at a reduced price would 

end up with the defendants paying the amount and still 

being liable for the deficiency due under the agreement 

rather than mitigating by HSC's generating revenue from 

sale to a third-party buyer and pursuing Defendants on 

the deficiency only. 

Here, rather than discount the defendants' 

contract price to reflect the changing market 

conditions, HSC elected to affirm the agreement and to 

sue for damages, Price versus Long Realty, Inc., 199 

Mich App 461, at page 466. Accordingly, assuming HSC's 

obligation to mitigation damages not extend to selling 

product to the defendants at a price discounted from 

the agreement, the defendants' request for information 

related to HSC's agreements to sell product to other 

customers is based on a false premise. 

As to frustration of purpose, commercial 

impracticability and impossibility, the defendants have 

also interposed the affirmative defenses. Although 

impossibility was not enumerated as an affirmative 

defense by either of the defendants, its applicability 

is asserted in the present joint motion/brief, and the 

Plaintiffs -- the Plaintiff has joined in the issue in 

its response. In any event, the restatement of 

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1:15-cv-11236-TLL-PTM Doc # 73-13 Filed 02/26/16 Pg 16 of 27 Pg ID 3706
contracts equates extreme impracticability with 

impossibility. 

Although contracting parties are generally 

obligated to perform or pay damages for failure to 

perform no matter how burdensome the performance, the 

law excuses promisors from performing when an 

unforeseen event makes performance impossible, Dobbs, 

under Laws of Contract, Section 186, page 296. 

Impossibility as a defense is recognized in 

two forms: Original impossibility; that is, unknown 

circumstances exist when the contract is formed that 

render performance impossible, and supervening 

impossibility; that is, occurrence of an event after 

the contract -- I'm sorry, that is, the occurrence of 

an event after contract formation renders performance 

impossible. 

In either event, the key to excusing 

nonperformance is due to impossibility -- due to 

impossibility is the foreseeability of the 

circumstances rendering performance impossible. 

Trentacosta, Michigan Contract Law, 2d ed, Section 

9.65, at page 397. Where there is conflicting evidence 

on the question of impossibility, it is a question of 

fact for the trier of fact to resolve, Roberts versus 

Farmers, Inc., Exchange, 275 Mich at 58, page 74. 

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contracts equates extreme impracticability with 

impossibility. 

Although contracting parties are generally 

obligated to perform or pay damages for failure to 

perform no matter how burdensome the performance, the 

law excuses promisors from performing when an 

unforeseen event makes performance impossible, Dobbs, 

under Laws of Contract, Section 186, page 296. 

Impossibility as a defense is recognized in 

two forms: Original impossibility; that is, unknown 

circumstances exist when the contract is formed that 

render performance impossible, and supervening 

impossibility; that is, occurrence of an event after 

the contract -- I'm sorry, that is, the occurrence of 

an event after contract formation renders performance 

impossible. 

In either event, the key to excusing 

nonperformance is due to impossibility -- due to 

impossibility is the foreseeability of the 

circumstances rendering performance impossible. 

Trentacosta, Michigan Contract Law, 2d ed, Section 

9.65, at page 397. Where there is conflicting evidence 

on the question of impossibility, it is a question of 

fact for the trier of fact to resolve, Roberts versus 

Farmers, Inc., Exchange, 275 Mich at 58, page 74. 

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1:15-cv-11236-TLL-PTM Doc # 73-13 Filed 02/26/16 Pg 17 of 27 Pg ID 3707
The affirmative defense of impracticability 

derives from the restatement of contracts recognition 

that absolute impossibility is not required, but an 

obligor may be excused from performance upon a showing 

of impracticability because of extreme and unreasonable 

difficulty, expense, injury, or loss involved, Bissell 

versus LW Edison Company, 9 Mich App 276, at page 285. 

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The doctrine of frustration of purpose may be 

invoked to excuse performance if, one, the contract is 

at least partially executory, two, the purpose of the 

contract was known to both parties at the time of 

frustration, and, three, the purpose was frustrated by 

an event which is not the fault of the party invoking 

the doctrine not reasonably foreseeable, in other 

words, at the time of the formation, Molnar versus 

Molnar, 110 Mich App, page 622. 

However, here, the affirmative defenses of 

frustration of purpose, impossibility, and 

impracticability are premised on the collapse of the 

product's market. As analyzed in Dobbs under Laws of 

Contract, Section 197, page 215, this premise appears 

legally deficient. 

For impossibility of frustration to operate 

as an excuse, it must be objective rather than 

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The affirmative defense of impracticability 

derives from the restatement of contracts recognition 

that absolute impossibility is not required, but an 

obligor may be excused from performance upon a showing 

of impracticability because of extreme and unreasonable 

difficulty, expense, injury, or loss involved, Bissell 

versus LW Edison Company, 9 Mich App 276, at page 285. 

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The doctrine of frustration of purpose may be 

invoked to excuse performance if, one, the contract is 

at least partially executory, two, the purpose of the 

contract was known to both parties at the time of 

frustration, and, three, the purpose was frustrated by 

an event which is not the fault of the party invoking 

the doctrine not reasonably foreseeable, in other 

words, at the time of the formation, Molnar versus 

Molnar, 110 Mich App, page 622. 

However, here, the affirmative defenses of 

frustration of purpose, impossibility, and 

impracticability are premised on the collapse of the 

product's market. As analyzed in Dobbs under Laws of 

Contract, Section 197, page 215, this premise appears 

legally deficient. 

For impossibility of frustration to operate 

as an excuse, it must be objective rather than 

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1:15-cv-11236-TLL-PTM Doc # 73-13 Filed 02/26/16 Pg 18 of 27 Pg ID 3708
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subjective. It is the difference between the thing 

that cannot be done and I cannot do it. 

The primary application of this distinction, 

Dobbs goes on to note, is in cases where performance is 

impossible because of inability to pay money or render 

any other performance as a result of insolvency or 

other financial problems. Such inability is personal 

to the obligor. It does not excuse performance. It 

is, perhaps, more realistic to state, however, that 

when entering into a contract, each party assumes the 

risk that he will have the financial ability to 

perform, and cases cited by the plaintiff confirm that 

economic hardship does not excuse performance. That 

includes the case of General Motors Corp. versus 

Paramount Metal Products, 90 F Supp 2d 861, Karl Wendt 

Farm Equipment Company versus International Harvester, 

931 F2d 1112, Chainworks, Inc., versus Webco 

Industries, 2000 -- that's cited in 2000 -- or a 2006 

case. 

And, accordingly, the defendants', the court 

would note, discovery request as related to HSC's 

awareness of market, legal, and government forces 

affecting the product marketplace do not appear to be 

relevant to an appropriate application of the 

affirmative defense of impracticability, impossibility, 

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subjective. It is the difference between the thing 

that cannot be done and I cannot do it. 

The primary application of this distinction, 

Dobbs goes on to note, is in cases where performance is 

impossible because of inability to pay money or render 

any other performance as a result of insolvency or 

other financial problems. Such inability is personal 

to the obligor. It does not excuse performance. It 

is, perhaps, more realistic to state, however, that 

when entering into a contract, each party assumes the 

risk that he will have the financial ability to 

perform, and cases cited by the plaintiff confirm that 

economic hardship does not excuse performance. That 

includes the case of General Motors Corp. versus 

Paramount Metal Products, 90 F Supp 2d 861, Karl Wendt 

Farm Equipment Company versus International Harvester, 

931 F2d 1112, Chainworks, Inc., versus Webco 

Industries, 2000 -- that's cited in 2000 -- or a 2006 

case. 

And, accordingly, the defendants', the court 

would note, discovery request as related to HSC's 

awareness of market, legal, and government forces 

affecting the product marketplace do not appear to be 

relevant to an appropriate application of the 

affirmative defense of impracticability, impossibility, 

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and frustration of purpose. Therefore, it is ordered 

that the defendants' motion to compel discovery is 

denied. 

That is the opinion of the Court. I'd ask 

that the appropriate order be entered, and if you can 

submit it within seven days or get it sent out under a 

seven-day notice of presentment, I'd appreciate it. 

Thank you. 

A VOICE: Thank you, your Honor. 

(Proceedings adjourned.) 

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and frustration of purpose. Therefore, it is ordered 

that the defendants' motion to compel discovery is 

denied. 

That is the opinion of the Court. I'd ask 

that the appropriate order be entered, and if you can 

submit it within seven days or get it sent out under a 

seven-day notice of presentment, I'd appreciate it. 

Thank you. 

A VOICE: Thank you, your Honor. 

(Proceedings adjourned.) 

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1:15-cv-11236-TLL-PTM Doc # 73-13 Filed 02/26/16 Pg 20 of 27 Pg ID 3710
STATE OF MICHIGAN ) 

) SS 

COUNTY OF SAGINAW ) 

I certify that this transcript is a complete, true 

and correct transcript of the proceedings and testimony 

taken in this case before the Honorable Fred L. Borchard, 

Circuit Judge, in Saginaw, Michigan. 

Tracy M temler, CSR-4023 

Official Court Reporter 

111 South Michigan Avenue 

Saginaw, MI 48602 

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STATE OF MICHIGAN ) 

) SS 

COUNTY OF SAGINAW ) 

I certify that this transcript is a complete, true 

and correct transcript of the proceedings and testimony 

taken in this case before the Honorable Fred L. Borchard, 

Circuit Judge, in Saginaw, Michigan. 

Tracy M temler, CSR-4023 

Official Court Reporter 

111 South Michigan Avenue 

Saginaw, MI 48602 

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allocation [1] 8/9 

allow [2] 13/14 14/6 

allowed [1] 14/14 

also [11] 4/13 4/21 5/7 5/17 5/19 

6/8 6/15 12/19 12/21 13/11 15/20 

although [3] 8/8 15/20 16/3 

amended [1] 3/23 

amendment [1] 3/22 

amendments [2] 5/2 5/3 

America [1] 3/13 

amount [2] 7/13 15/3 

analyzed [1] 17/21 

and/or [1] 4/21 

anecdotal [1] 10/13 

annual [1] 4/3 

Answer [2] 5/1 5/2 

answers [1] 10/9 

anticipated [5] 7/9 8/2 8/7 9/22 

11/3 

anticipatory [1] 10/11 

any [9] 3/4 4/15 7/4 11/14 12/17 

14/1 14/25 15/25 18/6 

App [7] 7/11 9/14 12/24 13/16 

15/12 17/7 17/17 

App 461 [1] 15/12 

Appeals' [1] 12/23 

appear [5] 11/17 11/18 13/2 15/1 

18/23 

appearance [2] 1/17 1/21 

APPEARANCES [1] 1/15 

appears [1] 17/22 

applicability [2] 14/4 15/22 

application [2] 18/3 18/24 

appreciate [1] 19/7 

appropriate [3] 11/24 18/24 19/5 

April [2] 1/13 3/2 

are [11] 5/23 7/12 7/24 8/8 10/25 

12/10 12/13 13/11 14/11 16/3 17/20 

arguably [1] 13/24 

argue [3] 14/5 14/15 14/20 

argued [4] 5/15 6/4 6/8 6/15 

argues [1] 10/3 

argument [1] 10/12 

article [2] 11/9 11/15 

as [31] 

ascertained [1] 9/3 

ask [1] 19/4 

assert [1] 5/22 

asserted [1] 15/23 

asserting [1] 3/15 

assignor [1] 3/24 

assumes [1] 18/10 

assuming [2] 14/4 15/12 

at [31] 

attempted [1] 8/22 

Attorney [1] 12/22 

attractive [1] 6/13 

Avenue [1] 20/18 

avoidance [1] 13/6 

awareness 121 6/16 18/22 

$737,235,429.17 [11 4/23 5-4-11 as [1] 3/23 

568 [1] 7/22 

58 [1] 16/25 

599 111 9/5 

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111 [1] 20/18 6 

1112 [1] 18/17 

115 [1] 7/11 

120 [1] 9/14 

13-020593-CK [1] 3/7 

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146 [1] 7/6 

16 [1] 7/17 

171 [1] 12/24 

186 [1] 16/8 

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1931 [1] 8/18 

1946 [1] 7/22 

1949 [1] 7/17 

1956 [1] 8/13 

1958 [1] 9/5 

197 [2] 13/10 17/22 

1974 [1] 13/10 

1980 [1] 13/16 

1982 [1] 7/11 

1988 [1] 12/24 

199 111 15/11 

6.36 [1] 9/11 

622 [1] 17/17 

677 [1] 12/20 

690 [1] 12/21 

696 111 12/24 

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708 [1] 11/7 

718 [1] 8/6 

74 [1] 16/25 

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813 [1] 12/9 

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2006 [2] 9/16 18/18 

2011 [3] 9/17 10/14 14/9 

2015 [2] 1/13 3/2 

2020 [1] 4/5 

215 [1] 17/22 

234 [1] 13/19 

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2710 [1] 11/15 

2723 [1] 11/10 

275 [1] 16/25 

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285 [1] 17/7 

296 [1] 16/8 

2d131 9110.16/21 18/15 

ability [2] 10/5 18/11 

absence [1] 11/5 

absolute [1] 17/3 

absolutely [1] 4/7 

acceptance [1] 11/21 

accepted [1] 14/12 

accepting [1] 8/19 

accordingly [2] 15/12 18/20 

account [1] 4/25 

achieve [1] 13/17 

across [1] 14/11 

acted [1] 5/21 

action [1] 13/17 

actual [10] 6/5 7/9 8/2 8/7 8/23 9/2 

9/18 9/21 11/3 12/16 

actually [2] 4/9 8/11 

adequate [2] 8/5 9/7 

adjourned [1] 19/10 

admission [2] 5/7 5/8 

admits [2] 5/1 5/3 

advance [4] 4/11 4/15 4/20 5/8 

advanced [1] 4/16 

affecting [2] 6/17 18/23 

affiliate [1] 3/25 

affirm [1] 15/10 

affirmative [8] 5/14 10/9 13/2 

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affirmatively [1] 5/19 

after [6] 5/25 9/17 10/19 14/8 

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again [2] 9/9 14/20 

agreed [2] 6/10 7/2 

agreement [27] 

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agreements [1] 15/16 

agrees [1] 12/2 

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all [3] 4/15 4/16 4/17 

allege [1] 4/10 

alleged [2] 4/19 5/19 

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balance [1] 6/1 

based [1] 15/17 

be [21] 

bear [1] 7/8 

bears [3] 11/2 11/25 12/3 

because [4] 5/21 14/9 17/5 18/5 

been [1] 8/17 

before [6] 1/12 5/25 8/19 9/16 

5 alleges [2] 3/21 4/21 

allocation [1] 8/9 

allow [2] 13/14 14/6 

allowed [1] 14/14 

also [11] 4/13 4/21 5/7 5/17 5/19 

6/8 6/15 12/19 12/21 13/11 15/20 

although [3] 8/8 15/20 16/3 

amended [1] 3/23 

amendment [1] 3/22 

amendments [2] 5/2 5/3 

America [1] 3/13 

amount [2] 7/13 15/3 

analyzed [1] 17/21 

and/or [1] 4/21 

anecdotal [1] 10/13 

annual [1] 4/3 

Answer [2] 5/1 5/2 

answers [1] 10/9 

anticipated [5] 7/9 8/2 8/7 9/22 

11/3 

anticipatory [1] 10/11 

any [9] 3/4 4/15 7/4 11/14 12/17 

14/1 14/25 15/25 18/6 

App [7] 7/11 9/14 12/24 13/16 

15/12 17/7 17/17 

App 461 [1] 15/12 

Appeals' [1] 12/23 

appear [5] 11/17 11/18 13/2 15/1 

18/23 

appearance [2] 1/17 1/21 

APPEARANCES [1] 1/15 

appears [1] 17/22 

applicability [2] 14/4 15/22 

application [2] 18/3 18/24 

appreciate [1] 19/7 

appropriate [3] 11/24 18/24 19/5 

April [2] 1/13 3/2 

are [11] 5/23 7/12 7/24 8/8 10/25 

12/10 12/13 13/11 14/11 16/3 17/20 

arguably [1] 13/24 

argue [3] 14/5 14/15 14/20 

argued [4] 5/15 6/4 6/8 6/15 

argues [1] 10/3 

argument [1] 10/12 

article [2] 11/9 11/15 

as [31] 

ascertained [1] 9/3 

ask [1] 19/4 

assert [1] 5/22 

asserted [1] 15/23 

asserting [1] 3/15 

assignor [1] 3/24 

assumes [1] 18/10 

assuming [2] 14/4 15/12 

at [31] 

attempted [1] 8/22 

Attorney [1] 12/22 

attractive [1] 6/13 

Avenue [1] 20/18 

avoidance [1] 13/6 

awareness 121 6/16 18/22 

$737,235,429.17 [11 4/23 5-4-11 as [1] 3/23 

568 [1] 7/22 

58 [1] 16/25 

599 111 9/5 

1 

102 [1] 13/16 

110 [1] 17/17 

111 [1] 20/18 6 

1112 [1] 18/17 

115 [1] 7/11 

120 [1] 9/14 

13-020593-CK [1] 3/7 

13-020593-CK-1 [1] 1/6 

146 [1] 7/6 

16 [1] 7/17 

171 [1] 12/24 

186 [1] 16/8 

190 [1] 13/10 

1931 [1] 8/18 

1946 [1] 7/22 

1949 [1] 7/17 

1956 [1] 8/13 

1958 [1] 9/5 

197 [2] 13/10 17/22 

1974 [1] 13/10 

1980 [1] 13/16 

1982 [1] 7/11 

1988 [1] 12/24 

199 111 15/11 

6.36 [1] 9/11 

622 [1] 17/17 

677 [1] 12/20 

690 [1] 12/21 

696 111 12/24 

7 

708 [1] 11/7 

718 [1] 8/6 

74 [1] 16/25 

77 111 12/9 

8 

80 [1] 12/9 

813 [1] 12/9 

861 111 18/15 

9 

9.65 [1] 16/22 

90 [1] 18/15 

931 [1] 18/17 

944 111 12/20 

2 

A 

2-708 [1] 11/7 

2-718 [1] 8/6 

20 [2] 1/13 3/2 

2000 [2] 18/18 18/18 

2006 [2] 9/16 18/18 

2011 [3] 9/17 10/14 14/9 

2015 [2] 1/13 3/2 

2020 [1] 4/5 

215 [1] 17/22 

234 [1] 13/19 

255 [1] 8/18 

260 [1] 9/11 

2710 [1] 11/15 

2723 [1] 11/10 

275 [1] 16/25 

276 [1] 17/7 

278 [2] 7/11 8/13 

285 [1] 17/7 

296 [1] 16/8 

2d131 9110.16/21 18/15 

ability [2] 10/5 18/11 

absence [1] 11/5 

absolute [1] 17/3 

absolutely [1] 4/7 

acceptance [1] 11/21 

accepted [1] 14/12 

accepting [1] 8/19 

accordingly [2] 15/12 18/20 

account [1] 4/25 

achieve [1] 13/17 

across [1] 14/11 

acted [1] 5/21 

action [1] 13/17 

actual [10] 6/5 7/9 8/2 8/7 8/23 9/2 

9/18 9/21 11/3 12/16 

actually [2] 4/9 8/11 

adequate [2] 8/5 9/7 

adjourned [1] 19/10 

admission [2] 5/7 5/8 

admits [2] 5/1 5/3 

advance [4] 4/11 4/15 4/20 5/8 

advanced [1] 4/16 

affecting [2] 6/17 18/23 

affiliate [1] 3/25 

affirm [1] 15/10 

affirmative [8] 5/14 10/9 13/2 

15/20 15/21 17/1 17/18 18/25 

affirmatively [1] 5/19 

after [6] 5/25 9/17 10/19 14/8 

16/13 16/15 

again [2] 9/9 14/20 

agreed [2] 6/10 7/2 

agreement [27] 

agreement's [3] 6/25 9/19 10/25 

agreements [1] 15/16 

agrees [1] 12/2 

Alarm [1] 7/11 

all [3] 4/15 4/16 4/17 

allege [1] 4/10 

alleged [2] 4/19 5/19 

3 

31 [1] 4/5 

314 [1] 7/22 

324 [1] 7/17 

352 [2] 8/12 13/19 

354 [1] 9/4 

355 [1] 9/14 

393 [1] 13/10 

397 111 16/22 

4 B 

4023 [2] 1/25 20/17 

440.24718 [1] 8/5 

440.2708 [1] 11/8 

461 [1] 15/12 

466 [1] 15/12 

47 [1] 13/16 

48602 [1] 20/19 

Background [1] 3/11 

balance [1] 6/1 

based [1] 15/17 

be [21] 

bear [1] 7/8 

bears [3] 11/2 11/25 12/3 

because [4] 5/21 14/9 17/5 18/5 

been [1] 8/17 

before [6] 1/12 5/25 8/19 9/16 

1:15-cv-11236-TLL-PTM Doc # 73-13 Filed 02/26/16 Pg 22 of 27 Pg ID 3712
LZ, 

Bi 

before... [2] 10/19 20/10 

beginning [2] 10/14 14/9 

being [2] 7/3 15/4 

below [1] 6/14 

best [1] 13/16 

between [5] 3/24 11/12 11/25 

12/16 18/1 

Bissell [1] 17/6 

Board [1] 13/9 

BORCHARD [2] 1/12 20/10 

both [3] 3/25 5/13 17/12 

breach [10] 4/24 7/4 7/21 8/2 10/11 

10/11 11/16 12/12 12/18 13/7 

breaching [1] 14/24 

breaker [1] 8/25 

brief [4] 10/4 14/5 14/20 15/23 

broader [1] 13/6 

burdensome [1] 16/5 

but [6] 8/13 10/8 10/20 11/15 13/12 

17/3 

buyer [8] 11/12 11/25 12/2 12/3 

12/12 12/17 13/23 15/6 

buyer's 111 11/16 

C 

C-L-A-P-M-A-N [I] 13/15 

C-U-R-R-A-N [1] 8/12 

calculation [1] 11/2 

call [1] 3/6 

can [1] 19/5 

cannot [5] 3/4 8/9 9/2 18/2 18/2 

capable [1] 10/7 

care [1] 13/13 

case [17] 3/7 3/11 6/24 7/16 7/17 

7/22 8/13 9/5 10/20 10/23 12/24 

13/10 13/12 13/16 18/14 18/19 

20/10 

cases [4] 7/23 13/11 18/4 18/12 

cause [1] 13/17 

caused [2] 8/2 13/14 

central [2] 6/22 8/17 

certain [2] 3/16 4/1 

certainty [1] 9/3 

certify [I] 20/8 

Chainworks [1] 18/17 

changing [1] 15/9 

CIRCUIT [4] 1/2 1/12 12/11 20/11 

circumstances [2] 16/11 16/20 

cite [1] 7/16 

cited [3] 13/11 18/12 18/18 

Civ [1] 7/5 

CK [2] 1/6 3/7 

claimed [1] 10/8 

claims [1] 4/23 

Clair [1] 9/14 

Clapman [1] 13/15 

clause [4] 7/8 11/24 12/4 12/10 

clearly [1] 14/12 

collapse [1] 17/20 

Colorado [1] 12/20 

commercial [3] 5/16 6/20 15/18 

Commission [1] 12/23 

commodity [1] 14/10 

commonly [1] 13/20 

Company [6] 3/13 7/10 8/18 13/18 

17/7 18/16 

compel [2] 3/14 19/2 

compelling [1] 3/9 

compensate [1] 12/1 

compensation [4] 8/10 8/11 8/17 

8/22 

compensatory [1] 7/14 

complaint [2] 3/21 4/10 

complete [1] 20/8 

concerning [2] 6/2 10/19 

concession [1] 14/14 

conclusion [1] 12/25 

conclusive [1] 8/19 

condition [6] 5/25 9/16 10/19 10/25 

11/19 13/1 

conditioned [1] 10/5 

conditions [3] 7/20 10/22 15/10 

confirm [1] 18/12 

conflicting [1] 16/22 

consequence [1] 11/16 

consequences [1] 13/6 

consideration [1] 11/4 

considered [1] 7/13 

considering [1] 12/11 

consists [1] 13/20 

constitutes [1] 13/4 

contain [1] 5/9 

contains [1] 5/10 

contemplates [1] 8/11 

context [1] 3/19 

continue [1] 14/7 

continued [2] 14/16 14/17 

contract [29] 

contracting [3] 9/4 9/9 16/3 

contracts [4] 11/20 12/11 16/1 17/2 

contractual [2] 10/8 14/2 

Corp [1] 18/14 

CORPORATION [3] 1/4 12/8 12/20 

correct [I] 20/9 

costs [I] 14/10 

could [5] 4/14 7/13 14/12 14/16 

14/17 

COUNTY [3] 1/2 9/14 20/3 

court [16] 1/2 1/11 1/25 3/5 6/23 

7/1 7/15 8/20 9/24 12/21 12/23 

13/17 14/19 18/20 19/4 20/18 

courts [1] 8/8 

CSR [2] 1/25 20/17 

CSR-4023 [2] 1/25 20/17 

Curran [1] 8/12 

customers 141 6/9 6/11 14/11 15/17 

D 

damages [46] 

dated [1] 3/22 

day [2] 3/8 19/7 

days [1] 19/6 

December [1] 4/4 

decision [1] 12/23 

decline [3] 6/11 10/14 14/8 

deemed [1] 7/12 

default [2] 4/14 5/12 

defaulting [1] 13/22 

defendant [5] 1/9 1/21 2/6 5/4 5/5 

defendant's [1] 13/14 

defendants [25] 

defendants' [9] 3/9 10/1 10/9 10/12 

15/1 15/8 15/15 18/20 19/2 

defense [8] 5/22 10/3 13/2 14/4 

15/22 16/9 17/1 18/25 

defenses [5] 5/14 5/22 10/10 15/20 

17/18 

deficiency [3] 12/15 15/4 15/7 

deficient [1] 17/23 

delivered [2] 4/16 12/7 

delivery [1] 4/9 

demand [2] 12/4 12/5 

demonstrate [2] 6/5 9/18 

denied [1] 19/3 

derives [1] 17/2 

destined [1] 13/22 

determine [2] 8/21 9/24 

determined [2] 7/19 10/22 

determining [1] 7/24 

did [1] 14/15 

difference [3] 11/12 12/16 18/1 

difficulties [1] 10/16 

difficulty [3] 8/3 9/1 17/6 

diligence [1] 13/13 

direct [1] 12/21 

discount [1] 15/8 

discounted [1] 15/14 

discover [2] 9/15 10/6 

discoverable [1] 9/22 

discovery [10] 3/10 3/14 3/18 5/23 

6/17 10/1 10/25 12/25 18/21 19/2 

displaced [1] 14/2 

disregard [1] 8/10 

disregarded [2] 8/14 8/17 

distinction [1] 18/3 

do [2] 18/2 18/23 

Dobbs [3] 16/7 17/21 18/4 

doctrine [4] 5/16 5/17 17/9 17/15 

does [6] 5/9 11/17 11/18 13/1 18/8 

18/13 

done [1] 18/2 

doubt [1] 10/15 

down [1] 12/5 

drastic [1] 10/14 

due [4] 4/23 15/4 16/18 16/18 

duty 141 13/7 14/1 14/6 14/23 

E 

each [2] 12/7 18/10 

economic [1] 18/13 

ed [2] 9/10 16/21 

Edison [1] 17/7 

Education [1] 13/10 

effect [2] 8/24 12/14 

effective [1] 4/18 

efforts [1] 13/8 

either [3] 10/9 15/22 16/17 

elected [1] 15/10 

elsewhere [1] 11/21 

emphasized [1] 12/11 

enable [I] 9/23 

end [2] 4/10 15/3 

ENERGY [4] 1/8 3/7 3/12 5/6 

enforceability [3] 6/24 9/12 13/25 

enforceable [2] 7/7 12/10 

entered [3] 7/20 10/23 19/5 

entering [2] 7/3 18/10 

entire [2] 6/24 10/13 

entitled [1] 5/23 

enumerated [1] 15/21 

equates [1] 16/1 

Equipment [1] 18/16 

even [6] 10/6 10/11 10/24 13/17 

14/7 14/18 

event [7] 14/25 15/25 16/7 16/13 

16/15 16/17 17/14 

evidence [3] 5/24 9/21 16/22 

exacting [1] 8/24 

examined [1] 8/20 

excessive [1] 5/20 

excessively [1] 7/12 

Exchange [1] 16/25 

excuse [5] 10/15 17/10 17/25 18/8 

18/13 

LZ, 

Bi 

before... [2] 10/19 20/10 

beginning [2] 10/14 14/9 

being [2] 7/3 15/4 

below [1] 6/14 

best [1] 13/16 

between [5] 3/24 11/12 11/25 

12/16 18/1 

Bissell [1] 17/6 

Board [1] 13/9 

BORCHARD [2] 1/12 20/10 

both [3] 3/25 5/13 17/12 

breach [10] 4/24 7/4 7/21 8/2 10/11 

10/11 11/16 12/12 12/18 13/7 

breaching [1] 14/24 

breaker [1] 8/25 

brief [4] 10/4 14/5 14/20 15/23 

broader [1] 13/6 

burdensome [1] 16/5 

but [6] 8/13 10/8 10/20 11/15 13/12 

17/3 

buyer [8] 11/12 11/25 12/2 12/3 

12/12 12/17 13/23 15/6 

buyer's 111 11/16 

C 

C-L-A-P-M-A-N [I] 13/15 

C-U-R-R-A-N [1] 8/12 

calculation [1] 11/2 

call [1] 3/6 

can [1] 19/5 

cannot [5] 3/4 8/9 9/2 18/2 18/2 

capable [1] 10/7 

care [1] 13/13 

case [17] 3/7 3/11 6/24 7/16 7/17 

7/22 8/13 9/5 10/20 10/23 12/24 

13/10 13/12 13/16 18/14 18/19 

20/10 

cases [4] 7/23 13/11 18/4 18/12 

cause [1] 13/17 

caused [2] 8/2 13/14 

central [2] 6/22 8/17 

certain [2] 3/16 4/1 

certainty [1] 9/3 

certify [I] 20/8 

Chainworks [1] 18/17 

changing [1] 15/9 

CIRCUIT [4] 1/2 1/12 12/11 20/11 

circumstances [2] 16/11 16/20 

cite [1] 7/16 

cited [3] 13/11 18/12 18/18 

Civ [1] 7/5 

CK [2] 1/6 3/7 

claimed [1] 10/8 

claims [1] 4/23 

Clair [1] 9/14 

Clapman [1] 13/15 

clause [4] 7/8 11/24 12/4 12/10 

clearly [1] 14/12 

collapse [1] 17/20 

Colorado [1] 12/20 

commercial [3] 5/16 6/20 15/18 

Commission [1] 12/23 

commodity [1] 14/10 

commonly [1] 13/20 

Company [6] 3/13 7/10 8/18 13/18 

17/7 18/16 

compel [2] 3/14 19/2 

compelling [1] 3/9 

compensate [1] 12/1 

compensation [4] 8/10 8/11 8/17 

8/22 

compensatory [1] 7/14 

complaint [2] 3/21 4/10 

complete [1] 20/8 

concerning [2] 6/2 10/19 

concession [1] 14/14 

conclusion [1] 12/25 

conclusive [1] 8/19 

condition [6] 5/25 9/16 10/19 10/25 

11/19 13/1 

conditioned [1] 10/5 

conditions [3] 7/20 10/22 15/10 

confirm [1] 18/12 

conflicting [1] 16/22 

consequence [1] 11/16 

consequences [1] 13/6 

consideration [1] 11/4 

considered [1] 7/13 

considering [1] 12/11 

consists [1] 13/20 

constitutes [1] 13/4 

contain [1] 5/9 

contains [1] 5/10 

contemplates [1] 8/11 

context [1] 3/19 

continue [1] 14/7 

continued [2] 14/16 14/17 

contract [29] 

contracting [3] 9/4 9/9 16/3 

contracts [4] 11/20 12/11 16/1 17/2 

contractual [2] 10/8 14/2 

Corp [1] 18/14 

CORPORATION [3] 1/4 12/8 12/20 

correct [I] 20/9 

costs [I] 14/10 

could [5] 4/14 7/13 14/12 14/16 

14/17 

COUNTY [3] 1/2 9/14 20/3 

court [16] 1/2 1/11 1/25 3/5 6/23 

7/1 7/15 8/20 9/24 12/21 12/23 

13/17 14/19 18/20 19/4 20/18 

courts [1] 8/8 

CSR [2] 1/25 20/17 

CSR-4023 [2] 1/25 20/17 

Curran [1] 8/12 

customers 141 6/9 6/11 14/11 15/17 

D 

damages [46] 

dated [1] 3/22 

day [2] 3/8 19/7 

days [1] 19/6 

December [1] 4/4 

decision [1] 12/23 

decline [3] 6/11 10/14 14/8 

deemed [1] 7/12 

default [2] 4/14 5/12 

defaulting [1] 13/22 

defendant [5] 1/9 1/21 2/6 5/4 5/5 

defendant's [1] 13/14 

defendants [25] 

defendants' [9] 3/9 10/1 10/9 10/12 

15/1 15/8 15/15 18/20 19/2 

defense [8] 5/22 10/3 13/2 14/4 

15/22 16/9 17/1 18/25 

defenses [5] 5/14 5/22 10/10 15/20 

17/18 

deficiency [3] 12/15 15/4 15/7 

deficient [1] 17/23 

delivered [2] 4/16 12/7 

delivery [1] 4/9 

demand [2] 12/4 12/5 

demonstrate [2] 6/5 9/18 

denied [1] 19/3 

derives [1] 17/2 

destined [1] 13/22 

determine [2] 8/21 9/24 

determined [2] 7/19 10/22 

determining [1] 7/24 

did [1] 14/15 

difference [3] 11/12 12/16 18/1 

difficulties [1] 10/16 

difficulty [3] 8/3 9/1 17/6 

diligence [1] 13/13 

direct [1] 12/21 

discount [1] 15/8 

discounted [1] 15/14 

discover [2] 9/15 10/6 

discoverable [1] 9/22 

discovery [10] 3/10 3/14 3/18 5/23 

6/17 10/1 10/25 12/25 18/21 19/2 

displaced [1] 14/2 

disregard [1] 8/10 

disregarded [2] 8/14 8/17 

distinction [1] 18/3 

do [2] 18/2 18/23 

Dobbs [3] 16/7 17/21 18/4 

doctrine [4] 5/16 5/17 17/9 17/15 

does [6] 5/9 11/17 11/18 13/1 18/8 

18/13 

done [1] 18/2 

doubt [1] 10/15 

down [1] 12/5 

drastic [1] 10/14 

due [4] 4/23 15/4 16/18 16/18 

duty 141 13/7 14/1 14/6 14/23 

E 

each [2] 12/7 18/10 

economic [1] 18/13 

ed [2] 9/10 16/21 

Edison [1] 17/7 

Education [1] 13/10 

effect [2] 8/24 12/14 

effective [1] 4/18 

efforts [1] 13/8 

either [3] 10/9 15/22 16/17 

elected [1] 15/10 

elsewhere [1] 11/21 

emphasized [1] 12/11 

enable [I] 9/23 

end [2] 4/10 15/3 

ENERGY [4] 1/8 3/7 3/12 5/6 

enforceability [3] 6/24 9/12 13/25 

enforceable [2] 7/7 12/10 

entered [3] 7/20 10/23 19/5 

entering [2] 7/3 18/10 

entire [2] 6/24 10/13 

entitled [1] 5/23 

enumerated [1] 15/21 

equates [1] 16/1 

Equipment [1] 18/16 

even [6] 10/6 10/11 10/24 13/17 

14/7 14/18 

event [7] 14/25 15/25 16/7 16/13 

16/15 16/17 17/14 

evidence [3] 5/24 9/21 16/22 

exacting [1] 8/24 

examined [1] 8/20 

excessive [1] 5/20 

excessively [1] 7/12 

Exchange [1] 16/25 

excuse [5] 10/15 17/10 17/25 18/8 

18/13 

1:15-cv-11236-TLL-PTM Doc # 73-13 Filed 02/26/16 Pg 23 of 27 Pg ID 3713
E 

excused [3] 5/15 5/17 17/4 

excuses [1] 16/6 

excusing [1] 16/17 

execution [3] 5/25 9/17 10/20 

executory [1] 17/11 

EXHIBITS [1] 2/10 

exist [1] 16/11 

existing [2] 7/20 10/22 

expense [1] 17/6 

expenses [2] 11/15 13/21 

exposure [1] 15/1 

extend [1] 15/13 

extending [1] 4/4 

extends [1] 14/23 

extreme 121 16/1 17/5 

F 

F2d [3] 12/9 12/20 18/17 

faced [1] 10/16 

fact [2] 16/24 16/24 

factor [2] 8/7 9/8 

factors [1] 7/24 

facts [1] 3/20 

failed [3] 4/19 4/20 6/12 

failure [2] 5/14 16/4 

false [1] 15/17 

Farm [1] 18/16 

Farmers [1] 16/25 

fault [1] 17/14 

figure [1] 8/21 

File [1] 1/6 

filed [1] 3/14 

finally [2] 6/15 11/20 

financial [8] 5/24 9/16 10/19 10/24 

11/19 13/1 18/7 18/11 

financially [1] 10/7 

Fire [1] 7/10 

First [1] 10/3 

flowing [1] 7/4 

Following [1] 3/3 

forces [2] 6/16 18/22 

forecasts [1] 6/3 

foreseeability [1] 16/19 

foreseeable [1] 17/15 

formation [2] 16/15 17/16 

formed [1] 16/11 

forms [1] 16/10 

forth [3] 7/5 7/10 12/19 

found [1] 12/24 

four [1] 10/4 

FRED [2] 1/12 20/10 

freedom [1] 8/8 

frustrated [1] 17/13 

frustration [8] 5/18 6/19 15/18 

17/9 17/13 17/19 17/24 19/1 

full [2] 4/7 13/14 

fully [1] 12/10 

function [3] 10/25 11/18 11/18 

fungible 111 14/10 

G 

GC [1] 13/18 

general [3] 8/8 12/22 18/14 

generally [1] 16/3 

generate [1] 14/17 

generating [2] 13/21 15/5 

get [2] 3/13 19/6 

GET's [1] 5/1 

global [2] 6/11 11/22 

goes [3] 4/10 12/5 18/4 

goods [3] 8/1 13/22 14/23 

government [2] 6/16 18/22 

GREEN [4] 1/8 3/7 3/12 5/5 

Guardian [1] 7/11 

guilty 111 10/10 

H 

Had [1] 14/14 

hardship [1] 18/13 

harm [2] 8/2 8/7 

Harrison [1] 7/17 

harsh [1] 7/12 

Harvester [1] 18/16 

has [4] 8/17 8/23 12/11 15/24 

have [7] 7/2 11/20 14/12 14/16 

14/17 15/19 18/11 

having [1] 3/14 

HCS's [1] 5/22 

he [1] 18/11 

Hear [1] 3/5 

helpful [1] 3/20 

HEMLOCK [8] 1/4 3/6 3/16 3/21 

3/25 10/15 10/15 11/21 

Hemlock's [1] 5/24 

here [4] 9/15 14/4 15/8 17/18 

honor [2] 8/8 19/9 

HONORABLE [2] 1/12 20/10 

how [1] 16/5 

however [3] 5/13 17/18 18/9 

HSC [15] 3/16 3/25 4/14 4/21 5/13 

6/10 10/6 10/10 14/6 14/7 14/14 

14/17 14/17 14/19 15/10 

HSC's [19] 3/24 6/3 6/5 6/8 6/15 

9/15 9/18 9/21 10/5 10/19 10/24 

11/3 11/18 13/1 14/10 15/5 15/12 

15/16 18/21 

I 

I'd [2] 19/4 19/7 

I'm [1] 16/14 

identical [1] 14/11 

if [10] 3/4 7/11 9/2 10/24 12/2 12/5 

14/2 14/18 17/10 19/5 

Importantly [1] 9/12 

imposes [1] 13/7 

impossibility [14] 6/20 15/19 15/21 

16/2 16/9 16/10 16/13 16/18 16/19 

16/23 17/3 17/19 17/24 18/25 

impossible [5] 16/7 16/12 16/16 

16/20 18/5 

impracticability [8] 5/16 6/21 

15/19 16/1 17/1 17/5 17/20 18/25 

in [48] 

inability [2] 18/5 18/7 

Inc [5] 3/12 3/13 15/11 16/25 18/17 

incidental [1] 11/14 

includes [1] 18/14 

including [5] 5/2 5/14 6/1 8/9 11/21 

income [1] 6/1 

inconvenience [2] 8/4 9/6 

indicates [2] 3/11 10/20 

indicative [1] 14/12 

Industries [1] 18/18 

industry [3] 6/12 10/14 14/9 

information [8] 3/17 6/2 6/4 6/18 

9/18 9/23 10/18 15/15 

injured [1] 13/7 

injury [2] 7/4 17/6 

inquiry [1] 11/1 

insolvency [1] 18/6 

installments [4] 4/12 4/15 4/20 5/8 

Insurance [1] 7/10 

joined [1] 15/24 

joint [2] 3/14 15/23 

JUDGE [2] 1/12 20/11 

judicial [1] 11/21 

Jur [1] 7/6 

'lust 111 8/10 

K 

Karl [1] 18/15 

Kay [1] 13/18 

key [1] 16/17 

know [1] 3/5 

known 141 3/13 3/24 4/2 17/12 

language [1] 5/9 

Lanterman [1] 7/22 

large [1] 7/12 

law [6] 9/10 9/13 10/20 13/6 16/6 

16/21 

Laws [2] 16/8 17/21 

lawsuit [1] 14/19 

least [1] 17/11 

legal [2] 6/16 18/22 

legally [1] 17/23 

less [3] 11/15 14/18 14/24 

let [1] 3/5 

liable [1] 15/4 

likely [1] 8/23 

limited [3] 10/12 10/24 11/22 

liquidated [19] 5/10 6/6 6/22 6/25 

6/25 7/7 7/19 7/25 7/25 8/21 9/1 

9/12 9/19 9/25 10/21 11/2 11/5 13/3 

13/25 

long [2] 3/22 15/11 

long-term [1] 3/22 

longer [1] 10/15 

looks [1] 6/23 

loss [2] 7/4 17/6 

lower [1] 14/13 

LW 111 17/7 

M 

made [1] 5/9 

make [2] 4/11 6/17 

makes [1] 16/7 

manufacture [1] 4/1 

Marine [1] 7/10 

MARKED [1] 2/10 

market [11] 6/10 6/16 6/17 10/17 

11/10 11/12 11/17 12/4 15/9 17/21 

3 

insures [1] 12/4 

interesting [1] 14/22 

International [1] 18/16 

interpose [1] 5/13 

interposed [1] 15/20 

Interstate [1] 12/20 

into [4] 7/3 7/21 10/23 18/10 

inventory [1] 6/2 

inverse [1] 13/24 

invoked [1] 17/10 

invoking [1] 17/14 

involved [1] 17/6 

involves [1] 7/15 

irrevocably [1] 4/7 

is [60] 

issue [3] 3/19 13/24 15/24 

it [24] 

it's [6] 4/19 5/19 6/4 6/8 6/15 7/17 

its 141 3/24 10/7 15/22 15/25 

E 

excused [3] 5/15 5/17 17/4 

excuses [1] 16/6 

excusing [1] 16/17 

execution [3] 5/25 9/17 10/20 

executory [1] 17/11 

EXHIBITS [1] 2/10 

exist [1] 16/11 

existing [2] 7/20 10/22 

expense [1] 17/6 

expenses [2] 11/15 13/21 

exposure [1] 15/1 

extend [1] 15/13 

extending [1] 4/4 

extends [1] 14/23 

extreme 121 16/1 17/5 

F 

F2d [3] 12/9 12/20 18/17 

faced [1] 10/16 

fact [2] 16/24 16/24 

factor [2] 8/7 9/8 

factors [1] 7/24 

facts [1] 3/20 

failed [3] 4/19 4/20 6/12 

failure [2] 5/14 16/4 

false [1] 15/17 

Farm [1] 18/16 

Farmers [1] 16/25 

fault [1] 17/14 

figure [1] 8/21 

File [1] 1/6 

filed [1] 3/14 

finally [2] 6/15 11/20 

financial [8] 5/24 9/16 10/19 10/24 

11/19 13/1 18/7 18/11 

financially [1] 10/7 

Fire [1] 7/10 

First [1] 10/3 

flowing [1] 7/4 

Following [1] 3/3 

forces [2] 6/16 18/22 

forecasts [1] 6/3 

foreseeability [1] 16/19 

foreseeable [1] 17/15 

formation [2] 16/15 17/16 

formed [1] 16/11 

forms [1] 16/10 

forth [3] 7/5 7/10 12/19 

found [1] 12/24 

four [1] 10/4 

FRED [2] 1/12 20/10 

freedom [1] 8/8 

frustrated [1] 17/13 

frustration [8] 5/18 6/19 15/18 

17/9 17/13 17/19 17/24 19/1 

full [2] 4/7 13/14 

fully [1] 12/10 

function [3] 10/25 11/18 11/18 

fungible 111 14/10 

G 

GC [1] 13/18 

general [3] 8/8 12/22 18/14 

generally [1] 16/3 

generate [1] 14/17 

generating [2] 13/21 15/5 

get [2] 3/13 19/6 

GET's [1] 5/1 

global [2] 6/11 11/22 

goes [3] 4/10 12/5 18/4 

goods [3] 8/1 13/22 14/23 

government [2] 6/16 18/22 

GREEN [4] 1/8 3/7 3/12 5/5 

Guardian [1] 7/11 

guilty 111 10/10 

H 

Had [1] 14/14 

hardship [1] 18/13 

harm [2] 8/2 8/7 

Harrison [1] 7/17 

harsh [1] 7/12 

Harvester [1] 18/16 

has [4] 8/17 8/23 12/11 15/24 

have [7] 7/2 11/20 14/12 14/16 

14/17 15/19 18/11 

having [1] 3/14 

HCS's [1] 5/22 

he [1] 18/11 

Hear [1] 3/5 

helpful [1] 3/20 

HEMLOCK [8] 1/4 3/6 3/16 3/21 

3/25 10/15 10/15 11/21 

Hemlock's [1] 5/24 

here [4] 9/15 14/4 15/8 17/18 

honor [2] 8/8 19/9 

HONORABLE [2] 1/12 20/10 

how [1] 16/5 

however [3] 5/13 17/18 18/9 

HSC [15] 3/16 3/25 4/14 4/21 5/13 

6/10 10/6 10/10 14/6 14/7 14/14 

14/17 14/17 14/19 15/10 

HSC's [19] 3/24 6/3 6/5 6/8 6/15 

9/15 9/18 9/21 10/5 10/19 10/24 

11/3 11/18 13/1 14/10 15/5 15/12 

15/16 18/21 

I 

I'd [2] 19/4 19/7 

I'm [1] 16/14 

identical [1] 14/11 

if [10] 3/4 7/11 9/2 10/24 12/2 12/5 

14/2 14/18 17/10 19/5 

Importantly [1] 9/12 

imposes [1] 13/7 

impossibility [14] 6/20 15/19 15/21 

16/2 16/9 16/10 16/13 16/18 16/19 

16/23 17/3 17/19 17/24 18/25 

impossible [5] 16/7 16/12 16/16 

16/20 18/5 

impracticability [8] 5/16 6/21 

15/19 16/1 17/1 17/5 17/20 18/25 

in [48] 

inability [2] 18/5 18/7 

Inc [5] 3/12 3/13 15/11 16/25 18/17 

incidental [1] 11/14 

includes [1] 18/14 

including [5] 5/2 5/14 6/1 8/9 11/21 

income [1] 6/1 

inconvenience [2] 8/4 9/6 

indicates [2] 3/11 10/20 

indicative [1] 14/12 

Industries [1] 18/18 

industry [3] 6/12 10/14 14/9 

information [8] 3/17 6/2 6/4 6/18 

9/18 9/23 10/18 15/15 

injured [1] 13/7 

injury [2] 7/4 17/6 

inquiry [1] 11/1 

insolvency [1] 18/6 

installments [4] 4/12 4/15 4/20 5/8 

Insurance [1] 7/10 

joined [1] 15/24 

joint [2] 3/14 15/23 

JUDGE [2] 1/12 20/11 

judicial [1] 11/21 

Jur [1] 7/6 

'lust 111 8/10 

K 

Karl [1] 18/15 

Kay [1] 13/18 

key [1] 16/17 

know [1] 3/5 

known 141 3/13 3/24 4/2 17/12 

language [1] 5/9 

Lanterman [1] 7/22 

large [1] 7/12 

law [6] 9/10 9/13 10/20 13/6 16/6 

16/21 

Laws [2] 16/8 17/21 

lawsuit [1] 14/19 

least [1] 17/11 

legal [2] 6/16 18/22 

legally [1] 17/23 

less [3] 11/15 14/18 14/24 

let [1] 3/5 

liable [1] 15/4 

likely [1] 8/23 

limited [3] 10/12 10/24 11/22 

liquidated [19] 5/10 6/6 6/22 6/25 

6/25 7/7 7/19 7/25 7/25 8/21 9/1 

9/12 9/19 9/25 10/21 11/2 11/5 13/3 

13/25 

long [2] 3/22 15/11 

long-term [1] 3/22 

longer [1] 10/15 

looks [1] 6/23 

loss [2] 7/4 17/6 

lower [1] 14/13 

LW 111 17/7 

M 

made [1] 5/9 

make [2] 4/11 6/17 

makes [1] 16/7 

manufacture [1] 4/1 

Marine [1] 7/10 

MARKED [1] 2/10 

market [11] 6/10 6/16 6/17 10/17 

11/10 11/12 11/17 12/4 15/9 17/21 

3 

insures [1] 12/4 

interesting [1] 14/22 

International [1] 18/16 

interpose [1] 5/13 

interposed [1] 15/20 

Interstate [1] 12/20 

into [4] 7/3 7/21 10/23 18/10 

inventory [1] 6/2 

inverse [1] 13/24 

invoked [1] 17/10 

invoking [1] 17/14 

involved [1] 17/6 

involves [1] 7/15 

irrevocably [1] 4/7 

is [60] 

issue [3] 3/19 13/24 15/24 

it [24] 

it's [6] 4/19 5/19 6/4 6/8 6/15 7/17 

its 141 3/24 10/7 15/22 15/25 

1:15-cv-11236-TLL-PTM Doc # 73-13 Filed 02/26/16 Pg 24 of 27 Pg ID 3714
M 

market... [1] 18/22 

marketplace [1] 18/23 

material [1] 10/11 

matter [5] 3/6 3/21 8/16 12/22 16/5 

may [4] 9/22 9/23 17/4 17/9 

McCarty [1] 9/4 

MCL [2] 8/5 11/7 

me [3] 3/5 3/5 10/15 

measurable [1] 9/9 

measure [3] 11/5 11/11 13/17 

measured [1] 12/13 

merit [1] 13/24 

Metal [1] 18/15 

MI [1] 20/19 

Mich [16] 7/5 7/11 7/17 7/22 8/13 

8/18 9/5 9/14 12/24 13/10 13/16 

13/19 15/12 16/25 17/7 17/17 

MICHIGAN [9] 1/1 1/13 3/1 9/10 

9/13 16/21 20/1 20/11 20/18 

minimize [1] 13/8 

minimum [1] 12/3 

mitigate [5] 5/14 6/12 14/6 14/23 

15/1 

mitigating [1] 15/5 

mitigation [4] 13/5 13/20 14/1 

15/13 

Molnar [2] 17/16 17/17 

money [1] 18/5 

Moore [1] 9/14 

more [1] 18/9 

motion [5] 3/9 3/14 6/23 15/23 

19/2 

motion/brief [1] 15/23 

Motors [1] 18/14 

multiplied [1] 12/15 

must 121 7/8 17/25 

N 

nature [1] 8/22 

necessarily [1] 13/16 

necessary [1] 9/23 

no [6] 1/6 1/17 1/21 10/15 10/15 

16/5 

nonacceptance [1] 11/11 

None [3] 2/3 2/7 2/11 

nonfeasibility [2] 8/4 9/6 

nonperformance [1] 16/18 

not [18] 5/8 7/21 8/14 9/8 11/17 

11/18 12/3 13/1 13/16 15/1 15/13 

15/21 17/3 17/14 17/15 18/8 18/13 

18/23 

note [3] 12/21 18/4 18/21 

noted [1] 5/7 

notice [3] 4/22 5/12 19/7 

notwithstanding [1] 3/15 

Now [1] 5/21 

nowhere [1] 10/8 

number 121 3/7 13/11 

objections [2] 3/15 5/23 

objective [1] 17/25 

obligated [2] 4/6 16/4 

obligation [4] 10/4 12/13 14/3 

15/13 

obligations [1] 10/8 

obligor [2] 17/418/8 

observation [1] 10/13 

obtaining [1] 8/5 

obvious [1] 8/15 

occurred [1] 12/15 

occurrence [2] 16/13 16/14 

occurs [1] 7/21 

Official [2] 1/25 20/18 

on [17] 1/17 1/21 3/9 3/11 4/10 

4/23 6/3 6/9 6/18 9/17 10/5 13/7 

15/6 15/17 16/23 17/20 18/4 

one [2] 8/1 17/10 

only [6] 5/6 8/11 9/2 9/25 13/12 

15/7 

operate [1] 17/24 

opinion [4] 1/11 3/9 12/22 19/4 

or [30] 

ORAL [1] 1/11 

order [1] 19/5 

ordered [1] 19/1 

ordinary [1] 13/13 

Original [1] 16/10 

originally [2] 5/4 5/5 

other [11] 6/9 6/11 7/22 10/16 

13/11 14/15 14/15 15/16 17/15 18/6 

18/7 

otherwise [4] 3/12 8/4 10/10 13/22 

out [1] 19/6 

over 111 5/22 

page [14] 9/11 10/4 12/9 12/21 

13/10 14/5 14/21 15/12 16/8 16/22 

16/25 17/7 17/17 17/22 

Panhandle [1] 12/9 

Paramount [1] 18/15 

part [3] 11/8 11/23 13/5 

partially [1] 17/11 

participants [1] 10/17 

particular [2] 10/1 12/25 

parties [4] 7/2 8/9 16/3 17/12 

parties' [2] 11/1 14/2 

party [5] 13/7 14/24 15/6 17/14 

18/10 

party's [1] 14/23 

Paul [1] 7/10 

pay [16] 4/7 4/9 4/19 4/21 5/9 10/4 

11/20 11/23 12/2 12/2 12/4 12/10 

12/12 12/14 16/4 18/5 

payable [1] 7/3 

paying [1] 15/3 

payment [6] 4/11 4/15 4/16 4/17 

4/20 5/8 

penalty [4] 5/21 8/15 8/24 13/4 

perform [3] 16/4 16/5 18/12 

performance [14] 5/15 5/17 5/24 

16/5 16/7 16/12 16/15 16/20 17/4 

17/10 18/4 18/6 18/8 18/13 

performing [2] 10/7 16/6 

perhaps [1] 18/9 

permitted [1] 9/2 

personal [1] 18/7 

pertinent [1] 11/8 

phone [2] 1/15 3/3 

place [3] 3/3 3/8 11/13 

plaintiff [6] 1/5 1/17 2/2 3/16 15/24 

18/12 

Plaintiffs [1] 15/24 

planning [1] 6/3 

pleadings [2] 3/20 5/7 

please [1] 3/5 

polycrystalline [1] 4/1 

precipitous [1] 14/8 

premise [3] 9/18 15/17 17/22 

premised [1] 17/20 

premises [3] 6/4 6/9 6/18 

Prenaulta [1] 12/19 

present [3] 3/19 6/23 15/23 

presentment [1] 19/7 

previous [1] 9/8 

price [14] 4/8 4/18 11/10 11/12 

11/14 11/16 11/17 12/6 12/14 1-,/25 

15/2 15/9 15/11 15/14 

prices [4] 4/4 6/13 14/8 14/13 

primary [1] 18/3 

principle [6] 7/9 7/16 8/10 8/17 

12/19 13/6 

principle's [1] 7/5 

prior [1] 13/12 

problems [1] 18/7 

proceedings [2] 19/10 20/9 

producing [1] 14/11 

product [19] 4/2 4/8 4/16 4/17 4/21 

6/2 6/9 6/10 10/5 12/5 12/17 14/7 

14/10 14/11 14/16 15/2 15/14 15/16 

18/23 

product's [1] 17/21 

production [2] 11/24 12/1 

Products [1] 18/15 

promisors [1] 16/6 

prone [1] 8/8 

proof [2] 9/1 11/10 

proper [1] 11/4 

proposition [2] 14/22 14/25 

provide [1] 10/5 

provided [3] 3/18 4/13 11/14 

provides [2] 11/8 11/23 

proving [1] 8/3 

provision [8] 5/11 6/6 6/25 7/19 

8/1 9/20 9/25 13/3 

provisions [4] 9/13 11/9 12/12 14/1 

Public [1] 12/23 

punitive [1] 7/14 

purchase [2] 4/714/16 

purchased [1] 12/17 

purchasing [1] 14/7 

purpose [9] 5/18 6/19 11/23 15/18 

17/9 17/11 17/13 17/19 19/1 

pursuant [3] 3/22 4/3 4/22 

pursuing [1] 15/6 

nut 111 3/19 

Q 

quantities [1] 4/3 

quantity [4] 12/3 12/6 12/16 12/17 

question [3] 9/13 16/23 16/23 

auote 131 4/7 4/9 4/10 

R 

rates [1] 6/10 

rather [5] 7/14 10/12 15/5 15/8 

17/25 

RCVD [1] 2/10 

readily [1] 9/9 

realistic [1] 18/9 

really [2] 6/23 8/22 

Realty [1] 15/11 

reasonable [7] 6/18 7/8 9/24 11/2 

13/8 13/13 14/3 

reasonableness [4] 7/18 7/25 9/24 

10/21 

reasonably [1] 17/15 

reasons [1] 10/2 

receive [1] 12/6 

received [2] 5/12 11/20 

recognition [2] 6/11 17/2 

recognized [1] 16/9 

record [3] 1/18 1/21 3/8 

0 

M 

market... [1] 18/22 

marketplace [1] 18/23 

material [1] 10/11 

matter [5] 3/6 3/21 8/16 12/22 16/5 

may [4] 9/22 9/23 17/4 17/9 

McCarty [1] 9/4 

MCL [2] 8/5 11/7 

me [3] 3/5 3/5 10/15 

measurable [1] 9/9 

measure [3] 11/5 11/11 13/17 

measured [1] 12/13 

merit [1] 13/24 

Metal [1] 18/15 

MI [1] 20/19 

Mich [16] 7/5 7/11 7/17 7/22 8/13 

8/18 9/5 9/14 12/24 13/10 13/16 

13/19 15/12 16/25 17/7 17/17 

MICHIGAN [9] 1/1 1/13 3/1 9/10 

9/13 16/21 20/1 20/11 20/18 

minimize [1] 13/8 

minimum [1] 12/3 

mitigate [5] 5/14 6/12 14/6 14/23 

15/1 

mitigating [1] 15/5 

mitigation [4] 13/5 13/20 14/1 

15/13 

Molnar [2] 17/16 17/17 

money [1] 18/5 

Moore [1] 9/14 

more [1] 18/9 

motion [5] 3/9 3/14 6/23 15/23 

19/2 

motion/brief [1] 15/23 

Motors [1] 18/14 

multiplied [1] 12/15 

must 121 7/8 17/25 

N 

nature [1] 8/22 

necessarily [1] 13/16 

necessary [1] 9/23 

no [6] 1/6 1/17 1/21 10/15 10/15 

16/5 

nonacceptance [1] 11/11 

None [3] 2/3 2/7 2/11 

nonfeasibility [2] 8/4 9/6 

nonperformance [1] 16/18 

not [18] 5/8 7/21 8/14 9/8 11/17 

11/18 12/3 13/1 13/16 15/1 15/13 

15/21 17/3 17/14 17/15 18/8 18/13 

18/23 

note [3] 12/21 18/4 18/21 

noted [1] 5/7 

notice [3] 4/22 5/12 19/7 

notwithstanding [1] 3/15 

Now [1] 5/21 

nowhere [1] 10/8 

number 121 3/7 13/11 

objections [2] 3/15 5/23 

objective [1] 17/25 

obligated [2] 4/6 16/4 

obligation [4] 10/4 12/13 14/3 

15/13 

obligations [1] 10/8 

obligor [2] 17/418/8 

observation [1] 10/13 

obtaining [1] 8/5 

obvious [1] 8/15 

occurred [1] 12/15 

occurrence [2] 16/13 16/14 

occurs [1] 7/21 

Official [2] 1/25 20/18 

on [17] 1/17 1/21 3/9 3/11 4/10 

4/23 6/3 6/9 6/18 9/17 10/5 13/7 

15/6 15/17 16/23 17/20 18/4 

one [2] 8/1 17/10 

only [6] 5/6 8/11 9/2 9/25 13/12 

15/7 

operate [1] 17/24 

opinion [4] 1/11 3/9 12/22 19/4 

or [30] 

ORAL [1] 1/11 

order [1] 19/5 

ordered [1] 19/1 

ordinary [1] 13/13 

Original [1] 16/10 

originally [2] 5/4 5/5 

other [11] 6/9 6/11 7/22 10/16 

13/11 14/15 14/15 15/16 17/15 18/6 

18/7 

otherwise [4] 3/12 8/4 10/10 13/22 

out [1] 19/6 

over 111 5/22 

page [14] 9/11 10/4 12/9 12/21 

13/10 14/5 14/21 15/12 16/8 16/22 

16/25 17/7 17/17 17/22 

Panhandle [1] 12/9 

Paramount [1] 18/15 

part [3] 11/8 11/23 13/5 

partially [1] 17/11 

participants [1] 10/17 

particular [2] 10/1 12/25 

parties [4] 7/2 8/9 16/3 17/12 

parties' [2] 11/1 14/2 

party [5] 13/7 14/24 15/6 17/14 

18/10 

party's [1] 14/23 

Paul [1] 7/10 

pay [16] 4/7 4/9 4/19 4/21 5/9 10/4 

11/20 11/23 12/2 12/2 12/4 12/10 

12/12 12/14 16/4 18/5 

payable [1] 7/3 

paying [1] 15/3 

payment [6] 4/11 4/15 4/16 4/17 

4/20 5/8 

penalty [4] 5/21 8/15 8/24 13/4 

perform [3] 16/4 16/5 18/12 

performance [14] 5/15 5/17 5/24 

16/5 16/7 16/12 16/15 16/20 17/4 

17/10 18/4 18/6 18/8 18/13 

performing [2] 10/7 16/6 

perhaps [1] 18/9 

permitted [1] 9/2 

personal [1] 18/7 

pertinent [1] 11/8 

phone [2] 1/15 3/3 

place [3] 3/3 3/8 11/13 

plaintiff [6] 1/5 1/17 2/2 3/16 15/24 

18/12 

Plaintiffs [1] 15/24 

planning [1] 6/3 

pleadings [2] 3/20 5/7 

please [1] 3/5 

polycrystalline [1] 4/1 

precipitous [1] 14/8 

premise [3] 9/18 15/17 17/22 

premised [1] 17/20 

premises [3] 6/4 6/9 6/18 

Prenaulta [1] 12/19 

present [3] 3/19 6/23 15/23 

presentment [1] 19/7 

previous [1] 9/8 

price [14] 4/8 4/18 11/10 11/12 

11/14 11/16 11/17 12/6 12/14 1-,/25 

15/2 15/9 15/11 15/14 

prices [4] 4/4 6/13 14/8 14/13 

primary [1] 18/3 

principle [6] 7/9 7/16 8/10 8/17 

12/19 13/6 

principle's [1] 7/5 

prior [1] 13/12 

problems [1] 18/7 

proceedings [2] 19/10 20/9 

producing [1] 14/11 

product [19] 4/2 4/8 4/16 4/17 4/21 

6/2 6/9 6/10 10/5 12/5 12/17 14/7 

14/10 14/11 14/16 15/2 15/14 15/16 

18/23 

product's [1] 17/21 

production [2] 11/24 12/1 

Products [1] 18/15 

promisors [1] 16/6 

prone [1] 8/8 

proof [2] 9/1 11/10 

proper [1] 11/4 

proposition [2] 14/22 14/25 

provide [1] 10/5 

provided [3] 3/18 4/13 11/14 

provides [2] 11/8 11/23 

proving [1] 8/3 

provision [8] 5/11 6/6 6/25 7/19 

8/1 9/20 9/25 13/3 

provisions [4] 9/13 11/9 12/12 14/1 

Public [1] 12/23 

punitive [1] 7/14 

purchase [2] 4/714/16 

purchased [1] 12/17 

purchasing [1] 14/7 

purpose [9] 5/18 6/19 11/23 15/18 

17/9 17/11 17/13 17/19 19/1 

pursuant [3] 3/22 4/3 4/22 

pursuing [1] 15/6 

nut 111 3/19 

Q 

quantities [1] 4/3 

quantity [4] 12/3 12/6 12/16 12/17 

question [3] 9/13 16/23 16/23 

auote 131 4/7 4/9 4/10 

R 

rates [1] 6/10 

rather [5] 7/14 10/12 15/5 15/8 

17/25 

RCVD [1] 2/10 

readily [1] 9/9 

realistic [1] 18/9 

really [2] 6/23 8/22 

Realty [1] 15/11 

reasonable [7] 6/18 7/8 9/24 11/2 

13/8 13/13 14/3 

reasonableness [4] 7/18 7/25 9/24 

10/21 

reasonably [1] 17/15 

reasons [1] 10/2 

receive [1] 12/6 

received [2] 5/12 11/20 

recognition [2] 6/11 17/2 

recognized [1] 16/9 

record [3] 1/18 1/21 3/8 

0 

1:15-cv-11236-TLL-PTM Doc # 73-13 Filed 02/26/16 Pg 25 of 27 Pg ID 3715
R SEMICONDUCTOR [4] 1/4 3/6 3/16 

11/22 

Semiconductor's [1] 3/21 

sent [2] 4/21 19/6 

Service [1] 12/23 

set [4] 3/9 7/5 7/9 12/19 

seven [2] 19/6 19/7 

seven-day [1] 19/7 

several [3] 4/12 5/13 10/2 

sheets [1] 6/1 

Shiffer [1] 13/9 

should [2] 3/17 8/20 

show [1] 6/19 

showing [1] 17/4 

sic [1] 5/23 

signing [2] 5/1 5/3 

silicon [1] 4/2 

similar [1] 10/16 

similarly [1] 6/13 

since [2] 7/23 9/16 

Singapore [1] 3/25 

six [2] 14/6 14/21 

solar [3] 6/12 10/13 14/9 

something [1] 14/18 

sorry [1] 16/14 

South [1] 20/18 

specific [1] 4/4 

specified [1] 4/3 

SS [1] 20/2 

St [2] 7/10 9/14 

Standard [1] 13/18 

state [3] 1/1 18/9 20/1 

stated [3] 1/17 1/21 4/25 

statements [1] 6/1 

Steel [1] 13/18 

STEMLER [2] 1/25 20/17 

steps [1] 13/21 

still [2] 12/6 15/3 

strategic [1] 6/3 

subject [2] 8/16 11/8 

subjective [1] 18/1 

submit [1] 19/6 

Subsection [1] 11/9 

subsequent [1] 13/12 

subsequently [1] 3/23 

substantially [1] 9/7 

success [1] 13/18 

such [3] 12/15 14/14 18/7 

sue [1] 15/11 

suffered [1] 10/14 

sum [1] 7/1 

Sun [1] 11/22 

supervening [1] 16/12 

Supp [1] 18/15 

suppliers [1] 14/15 

supply [1] 3/22 

supporting [2] 10/3 14/5 

suspect [1] 10/2 

sustained 121 8/3 8/12 

term [2] 3/22 4/4 

terminate [1] 4/14 

termination [1] 4/22 

terms [1] 12/9 

testimony [1] 20/9 

than [6] 7/14 14/18 14/24 15/5 15/8 

17/25 

Thank [2] 19/8 19/9 

that [48] 

that's [2] 10/23 18/18 

their [4] 10/3 10/4 14/5 14/20 

then [1] 4/18 

theories [1] 4/24 

there [5] 1/17 1/21 7/24 13/11 

16/22 

there's [1] 7/22 

therefore [3] 7/14 10/6 19/1 

these [1] 5/22 

they [3] 5/23 7/13 10/6 

thing [1] 18/1 

third [2] 10/24 15/6 

third-party [1] 15/6 

this [24] 

three [3] 7/24 8/4 17/13 

through [2] 4/4 14/19 

time [14] 3/4 3/6 3/8 7/2 7/20 7/23 

9/3 9/9 10/22 11/4 11/13 12/15 

17/12 17/16 

together [1] 11/14 

too [1] 7/12 

took [2] 3/3 4/9 

TRACY [2] 1/25 20/17 

transcript [2] 20/8 20/9 

Treating [1] 13/19 

Trentacosta [2] 9/10 16/21 

trier [1] 16/24 

true [1] 20/8 

Trust [1] 8/18 

two 131 8/2 16/10 17/11 

recover [3] 4/14 4/16 4/17 

recovery [1] 13/14 

reduce [1] 13/21 

reduced [2] 6/10 15/2 

redundant [1] 9/8 

refers [1] 7/1 

reflect [2] 3/8 15/9 

regard [1] 11/7 

regardless [1] 4/8 

reiterates [1] 14/20 

related [5] 5/24 9/21 13/1 15/16 

18/21 

relation [2] 7/8 11/3 

relevance [1] 9/25 

relevant [6] 3/17 6/9 9/22 11/1 

13/2 18/24 

relevantly [1] 6/19 

remaining [1] 4/17 

remedy [2] 8/5 9/7 

render [4] 6/5 9/19 16/12 18/5 

rendering [1] 16/20 

renders [1] 16/15 

Reported [1] 1/25 

Reporter [2] 1/25 20/18 

repudiation [1] 11/11 

request [5] 6/17 10/1 13/1 15/15 

18/21 

requested [2] 3/17 5/19 

requests [2] 5/6 11/1 

required [6] 4/11 4/20 6/14 13/13 

14/6 17/3 

requires [1] 11/4 

RES [1] 12/8 

resolve [1] 16/24 

respect [1] 11/10 

response [1] 15/25 

responses [1] 5/6 

restatement [2] 15/25 17/2 

result [2] 8/23 18/6 

resulting [1] 13/9 

retain [1] 4/15 

revenue [4] 6/2 13/21 14/18 15/5 

review [2] 3/19 5/7 

risk [6] 8/9 11/24 12/1 12/2 12/4 

18/11 

Roberts 111 16/24 

U 

UCC [2] 8/5 11/7 

uncured [1] 4/13 

under [7] 4/24 12/8 14/23 15/4 

16/8 17/21 19/6 

understands [1] 7/1 

undertake [1] 13/8 

undisputed [1] 3/20 

unenforceable [7] 5/20 5/21 6/7 

7/15 8/15 9/20 13/4 

unforcible [1] 8/14 

unforeseen [2] 14/8 16/7 

Universal [1] 12/8 

unknown [1] 16/10 

unless [1] 8/15 

unpaid [2] 4/15 11/13 

unreasonable [6] 5/20 6/7 7/13 

9/20 13/4 17/5 

up [1] 15/3 

upon [2] 4/13 17/4 

utilization 111 6/3 

S 

S-H-I-F-F-E-R [1] 13/9 

SAGINAW [6] 1/2 1/13 3/1 20/3 

20/11 20/19 

sale [2] 8/1 15/6 

sales [2] 6/1 11/25 

satisfy [1] 7/4 

saved [1] 11/15 

schedule [1] 4/3 

Second [1] 10/18 

Section [7] 7/6 9/11 11/10 11/15 

16/8 16/21 17/22 

See [1] 13/18 

seek [2] 9/15 10/18 

seeks [1] 14/19 

seemingly [1] 14/2 

seems [2] 9/7 14/22 

sell [4] 4/1 6/8 6/10 15/16 

seller [5] 11/25 11/25 12/1 12/5 

13/20 

seller's [1] 12/13 

selling [5] 6/13 13/22 14/23 15/2 

15/13 

T 

take [9] 4/9 4/21 5/9 11/20 11/23 

12/2 12/4 12/10 12/12 

take-or-pay [6] 5/9 11/20 11/23 

12/4 12/10 12/12 

taken [2] 12/3 20/10 

taking [1] 13/21 

Tatung [2] 3/13 3/14 

Tatung's [1] 5/2 

TECHNOLOGY [2] 1/8 3/12 

tender [1] 11/13 

Tenth [1] 12/10 

v 

validity [1] 7/18 

value [1] 12/14 

verses [1] 7/11 

versus [21] 

very [2] 9/23 10/16 

via [2] 1/15 3/3 

viable [1] 10/7 

R SEMICONDUCTOR [4] 1/4 3/6 3/16 

11/22 

Semiconductor's [1] 3/21 

sent [2] 4/21 19/6 

Service [1] 12/23 

set [4] 3/9 7/5 7/9 12/19 

seven [2] 19/6 19/7 

seven-day [1] 19/7 

several [3] 4/12 5/13 10/2 

sheets [1] 6/1 

Shiffer [1] 13/9 

should [2] 3/17 8/20 

show [1] 6/19 

showing [1] 17/4 

sic [1] 5/23 

signing [2] 5/1 5/3 

silicon [1] 4/2 

similar [1] 10/16 

similarly [1] 6/13 

since [2] 7/23 9/16 

Singapore [1] 3/25 

six [2] 14/6 14/21 

solar [3] 6/12 10/13 14/9 

something [1] 14/18 

sorry [1] 16/14 

South [1] 20/18 

specific [1] 4/4 

specified [1] 4/3 

SS [1] 20/2 

St [2] 7/10 9/14 

Standard [1] 13/18 

state [3] 1/1 18/9 20/1 

stated [3] 1/17 1/21 4/25 

statements [1] 6/1 

Steel [1] 13/18 

STEMLER [2] 1/25 20/17 

steps [1] 13/21 

still [2] 12/6 15/3 

strategic [1] 6/3 

subject [2] 8/16 11/8 

subjective [1] 18/1 

submit [1] 19/6 

Subsection [1] 11/9 

subsequent [1] 13/12 

subsequently [1] 3/23 

substantially [1] 9/7 

success [1] 13/18 

such [3] 12/15 14/14 18/7 

sue [1] 15/11 

suffered [1] 10/14 

sum [1] 7/1 

Sun [1] 11/22 

supervening [1] 16/12 

Supp [1] 18/15 

suppliers [1] 14/15 

supply [1] 3/22 

supporting [2] 10/3 14/5 

suspect [1] 10/2 

sustained 121 8/3 8/12 

term [2] 3/22 4/4 

terminate [1] 4/14 

termination [1] 4/22 

terms [1] 12/9 

testimony [1] 20/9 

than [6] 7/14 14/18 14/24 15/5 15/8 

17/25 

Thank [2] 19/8 19/9 

that [48] 

that's [2] 10/23 18/18 

their [4] 10/3 10/4 14/5 14/20 

then [1] 4/18 

theories [1] 4/24 

there [5] 1/17 1/21 7/24 13/11 

16/22 

there's [1] 7/22 

therefore [3] 7/14 10/6 19/1 

these [1] 5/22 

they [3] 5/23 7/13 10/6 

thing [1] 18/1 

third [2] 10/24 15/6 

third-party [1] 15/6 

this [24] 

three [3] 7/24 8/4 17/13 

through [2] 4/4 14/19 

time [14] 3/4 3/6 3/8 7/2 7/20 7/23 

9/3 9/9 10/22 11/4 11/13 12/15 

17/12 17/16 

together [1] 11/14 

too [1] 7/12 

took [2] 3/3 4/9 

TRACY [2] 1/25 20/17 

transcript [2] 20/8 20/9 

Treating [1] 13/19 

Trentacosta [2] 9/10 16/21 

trier [1] 16/24 

true [1] 20/8 

Trust [1] 8/18 

two 131 8/2 16/10 17/11 

recover [3] 4/14 4/16 4/17 

recovery [1] 13/14 

reduce [1] 13/21 

reduced [2] 6/10 15/2 

redundant [1] 9/8 

refers [1] 7/1 

reflect [2] 3/8 15/9 

regard [1] 11/7 

regardless [1] 4/8 

reiterates [1] 14/20 

related [5] 5/24 9/21 13/1 15/16 

18/21 

relation [2] 7/8 11/3 

relevance [1] 9/25 

relevant [6] 3/17 6/9 9/22 11/1 

13/2 18/24 

relevantly [1] 6/19 

remaining [1] 4/17 

remedy [2] 8/5 9/7 

render [4] 6/5 9/19 16/12 18/5 

rendering [1] 16/20 

renders [1] 16/15 

Reported [1] 1/25 

Reporter [2] 1/25 20/18 

repudiation [1] 11/11 

request [5] 6/17 10/1 13/1 15/15 

18/21 

requested [2] 3/17 5/19 

requests [2] 5/6 11/1 

required [6] 4/11 4/20 6/14 13/13 

14/6 17/3 

requires [1] 11/4 

RES [1] 12/8 

resolve [1] 16/24 

respect [1] 11/10 

response [1] 15/25 

responses [1] 5/6 

restatement [2] 15/25 17/2 

result [2] 8/23 18/6 

resulting [1] 13/9 

retain [1] 4/15 

revenue [4] 6/2 13/21 14/18 15/5 

review [2] 3/19 5/7 

risk [6] 8/9 11/24 12/1 12/2 12/4 

18/11 

Roberts 111 16/24 

U 

UCC [2] 8/5 11/7 

uncured [1] 4/13 

under [7] 4/24 12/8 14/23 15/4 

16/8 17/21 19/6 

understands [1] 7/1 

undertake [1] 13/8 

undisputed [1] 3/20 

unenforceable [7] 5/20 5/21 6/7 

7/15 8/15 9/20 13/4 

unforcible [1] 8/14 

unforeseen [2] 14/8 16/7 

Universal [1] 12/8 

unknown [1] 16/10 

unless [1] 8/15 

unpaid [2] 4/15 11/13 

unreasonable [6] 5/20 6/7 7/13 

9/20 13/4 17/5 

up [1] 15/3 

upon [2] 4/13 17/4 

utilization 111 6/3 

S 

S-H-I-F-F-E-R [1] 13/9 

SAGINAW [6] 1/2 1/13 3/1 20/3 

20/11 20/19 

sale [2] 8/1 15/6 

sales [2] 6/1 11/25 

satisfy [1] 7/4 

saved [1] 11/15 

schedule [1] 4/3 

Second [1] 10/18 

Section [7] 7/6 9/11 11/10 11/15 

16/8 16/21 17/22 

See [1] 13/18 

seek [2] 9/15 10/18 

seeks [1] 14/19 

seemingly [1] 14/2 

seems [2] 9/7 14/22 

sell [4] 4/1 6/8 6/10 15/16 

seller [5] 11/25 11/25 12/1 12/5 

13/20 

seller's [1] 12/13 

selling [5] 6/13 13/22 14/23 15/2 

15/13 

T 

take [9] 4/9 4/21 5/9 11/20 11/23 

12/2 12/4 12/10 12/12 

take-or-pay [6] 5/9 11/20 11/23 

12/4 12/10 12/12 

taken [2] 12/3 20/10 

taking [1] 13/21 

Tatung [2] 3/13 3/14 

Tatung's [1] 5/2 

TECHNOLOGY [2] 1/8 3/12 

tender [1] 11/13 

Tenth [1] 12/10 

v 

validity [1] 7/18 

value [1] 12/14 

verses [1] 7/11 

versus [21] 

very [2] 9/23 10/16 

via [2] 1/15 3/3 

viable [1] 10/7 

1:15-cv-11236-TLL-PTM Doc # 73-13 Filed 02/26/16 Pg 26 of 27 Pg ID 3716
INT 

want [1] 10/6 

was [12] 1/17 1/21 4/1 5/4 5/5 5/15 

5/17 10/6 12/18 15/21 17/12 17/13 

Watson [1] 7/16 

Webco [1] 18/17 

well [1] 13/12 

Wendt [1] 18/15 

were [2] 5/8 5/20 

when [6] 5/7 7/21 12/11 16/6 16/11 

18/10 

where [3] 12/12 16/22 18/4 

whether [6] 4/8 8/21 8/23 10/6 

11/1 14/12 

which [5] 3/23 7/2 11/22 12/14 

17/14 

While [2] 5/1 9/21 

whole [1] 8/16 

Wilkerson [1] 10/23 

Wilkinson [1] 7/21 

will [10] 3/6 3/8 3/24 6/4 6/18 8/14 

9/2 9/18 12/6 18/11 

William [1] 8/12 

windfall [1] 14/19 

within [1] 19/6 

WITNESSES [2] 2/2 2/6 

Wolf [1] 8/18 

words [1] 17/16 

Worley [1] 9/4 

would [6] 7/16 12/21 14/1 15/1 

15/2 18/21 

wrong 111 13/15 

Y 

Y-A-N-G-A [1] 13/15 

Yanga [1] 13/15 

year [2] 12/7 12/17 

you [4] 3/4 19/5 19/8 19/9 

your [1] 19/9 

INT 

want [1] 10/6 

was [12] 1/17 1/21 4/1 5/4 5/5 5/15 

5/17 10/6 12/18 15/21 17/12 17/13 

Watson [1] 7/16 

Webco [1] 18/17 

well [1] 13/12 

Wendt [1] 18/15 

were [2] 5/8 5/20 

when [6] 5/7 7/21 12/11 16/6 16/11 

18/10 

where [3] 12/12 16/22 18/4 

whether [6] 4/8 8/21 8/23 10/6 

11/1 14/12 

which [5] 3/23 7/2 11/22 12/14 

17/14 

While [2] 5/1 9/21 

whole [1] 8/16 

Wilkerson [1] 10/23 

Wilkinson [1] 7/21 

will [10] 3/6 3/8 3/24 6/4 6/18 8/14 

9/2 9/18 12/6 18/11 

William [1] 8/12 

windfall [1] 14/19 

within [1] 19/6 

WITNESSES [2] 2/2 2/6 

Wolf [1] 8/18 

words [1] 17/16 

Worley [1] 9/4 

would [6] 7/16 12/21 14/1 15/1 

15/2 18/21 

wrong 111 13/15 

Y 

Y-A-N-G-A [1] 13/15 

Yanga [1] 13/15 

year [2] 12/7 12/17 

you [4] 3/4 19/5 19/8 19/9 

your [1] 19/9 

1:15-cv-11236-TLL-PTM Doc # 73-13 Filed 02/26/16 Pg 27 of 27 Pg ID 3717