COMPANY DECLARE THE PAYABLE AND
ALL INTEREST ACCRUED THEREON TO BE IMMEDIATELY DUE AND PAYABLE.
SECTION 4.03.
WAIVER.
NO FAILURE BY CARGILL TO EXERCISE ANY RIGHT OR REMEDY
CONSEQUENT UPON A BREACH OF THIS AGREEMENT SHALL CONSTITUTE A WAIVER OF ANY SUCH
BREACH.
4
ARTICLE V
CLAWBACK
SECTION 5.01.
CLAWBACK.
IN THE EVENT THAT ANY PAYMENT (OR PORTION OF ANY
PAYMENT) MADE BY THE COMPANY WITH RESPECT TO THE PAYABLE IS RECOVERED FROM
CARGILL, IN WHOLE OR IN PART, AS A RESULT OF ANY COURT ORDER IN BANKRUPTCY,
INSOLVENCY OR SIMILAR PROCEEDING (WHETHER CONSIDERED IN EQUITY OR AT LAW)
INSTITUTED BY OR AGAINST THE COMPANY OR ANY OF ITS AFFILIATES, THE ENTIRE UNPAID
AMOUNT OF THE PAYABLE, PLUS THE AMOUNT OF ANY PAYMENT SO RECOVERED FROM CARGILL
AND ANY AMOUNTS PREVIOUSLY FORGIVEN PURSUANT TO SECTION 2.01(A) OR 2.01(B) OF
THIS AGREEMENT, SHALL BE DUE AND PAYABLE TO CARGILL.
ARTICLE VI
COVENANTS
SECTION 6.01.
DISTRIBUTIONS.
THE COMPANY SHALL USE ITS COMMERCIALLY REASONABLE
EFFORTS, SUBJECT TO ITS PRUDENT BUSINESS JUDGMENT, TO CAUSE ITS OPERATING
SUBSIDIARIES TO DISTRIBUTE ON A QUARTERLY BASIS ALL AMOUNTS PERMITTED TO BE
DISTRIBUTED TO IT UNDER THE SUBSIDIARIES' CREDIT FACILITIES.
SECTION 6.02.
OTHER AGREEMENTS.
THE COMPANY AND CARGILL AGREE TO ENGAGE
PROMPTLY IN GOOD FAITH NEGOTIATIONS WITH RESPECT TO A MUTUALLY AGREEABLE
RESTRUCTURING OF THE OUTSTANDING SILO LEASES AND CORN SUPPLY AGREEMENTS BETWEEN
THE TWO PARTIES.
DURING NEGOTIATIONS, THE FOLLOWING MATTERS WILL BE CONSIDERED
BY THE PARTIES: (I) CARGILL'S REPAYMENT OF THE COMPANY'S AND ITS SUBSIDIARIES'
INVESTMENT IN THE SILOS, (II) A REDUCTION IN THE COMPANY'S AND ITS SUBSIDIARIES'
NEED FOR WORKING CAPITAL IN RETURN FOR A HIGHER PER BUSHEL OF CORN FEE PAYABLE
TO CARGILL AND (III) A SHARING AGREEMENT TO COVER PROFITABILITY IN CARGILL'S
CORN PURCHASE EFFORT FOR THE COMPANY.
IT IS THE INTENTION OF THE PARTIES THAT
THE COMPANY WILL BE, EVEN ON A WORST CASE BASIS, NO WORSE OFF ON AN OPERATING
CASH FLOW BASIS IF THE CONTEMPLATED RESTRUCTURING OCCURS.
SECTION 6.03.
INSPECTION OF BOOKS AND RECORDS.
CARGILL SHALL HAVE THE RIGHT,
UPON REASONABLE WRITTEN NOTICE AND DURING NORMAL BUSINESS HOURS, AT ITS OWN
EXPENSE TO EXAMINE THE FINANCIAL BOOKS AND RECORDS OF THE COMPANY SOLELY TO THE
EXTENT REASONABLY NECESSARY TO CONFIRM THE COMPANY'S COMPLIANCE WITH THIS
AGREEMENT, PROVIDED, HOWEVER, THAT SUCH ACCESS SHALL NOT APPLY TO ANY BOOKS AND
RECORDS OF THE COMPANY THAT IS ATTORNEY WORK-PRODUCT OR PROTECTED BY THE
ATTORNEY-CLIENT PRIVILEGE AND SUCH ACCESS SHALL NOT UNREASONABLY DISRUPT THE
NORMAL OPERATIONS OF THE COMPANY.
ALL INFORMATION OBTAINED DURING THE COURSE OF
SUCH EXAMINATION SHALL BE KEPT CONFIDENTIAL AND SHALL NOT BE DISCLOSED BY
CARGILL.
5
ARTICLE VII
MISCELLANEOUS
SECTION 7.01.
REPRESENTATIONS.
EACH PARTY HEREBY REPRESENTS AND WARRANTS TO
THE OTHER PARTY THAT (I) SUCH PARTY HAS FULL POWER AND AUTHORITY TO EXECUTE THIS
AGREEMENT, (II) THE EXECUTION AND DELIVERY BY SUCH PARTY OF THIS AGREEMENT HAS
BEEN DULY AUTHORIZED BY ALL NECESSARY ACTION AND NO OTHER PROCEEDINGS ON THE
PART OF SUCH PARTY ARE NECESSARY TO APPROVE THIS