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HomeMy WebLinkAbout04-1552 In the Court of Common Pleas of Cumberland County, Pennsylvania UGI Energy Services, Inc, d/b/a GasMark plaintiff Civil Action - In Law vs. No, DLt-- 15'5~ ~~~- Mh Dielectrics, Inc. Defendants COMPLAINT NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NQT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP, Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013-3387 (717) 249-3166/ (800) 990-9108 In the Court of Common Pleas of Cumberland County, Pennsylvania UGI Energy Services, Inc. d/b/a GasMark Plaintiff vs, Civil Action - In Law No, 0#- 15.5,l-- Mh Dielectrics, Inco Defendant(s) COMPLAINT 10 This is an action by Plaintiff, UGI Utilities Inc, d/b/a GasMark to recover damages from Defendant arising out of a debt Defendant owes to plaintiff by virtue of natural gas and oil supplied to Defendant, 2. UGI Utilities Inc, d/b/a GasMark is a Pennsylvania corporation duly organized and existing under the laws of the Commonwealth of Pennsylvania with a principal place of business at 1100 Berkshire Boulevard, Suite 305, Wyomissing, PA 196100 30 Defendant, Mh Dielectrics, Inc, is a Pennsylvania corporation doing business at One Mountain Street, PO Box C, Mt, Holly Springs, PA 176050 4. At all times relevant hereto, Plaintiff was engaged in the business of furnishing & supplying natural gas and oil. 5, Plaintiff entered into a contract with Defendant on or about June 27, 2003, Attached as Exhibit A is a copy, 60 Defendant made payments for gas under the terms of agreement, 7. Plaintiff supplied natural gas and oil to One Mountain Street, Mt, Holly Springs, PA 17605 for the benefit of the Defendant, 80 At the present time, Defendant's account is in default and has an outstanding balance due and owing Plaintiff as reflected on the attached Statement of Account which contains information taken directly from Plaintiff's original business records, and which includes the unpaid balance and all appropriate debits, and credits, and which is attached hereto and marked Exhibit B, incorporated herein by reference and made a part hereof, 9, The natural gas and oil which was provided by the Plaintiff to the Defendant aforesaid, was received, accepted, and utilized for the benefit of said Defendant. 100 Defendant is in default of its obligation, having failed to make the payments as they became due. 11, Plaintiff made demand on Defendant to repay the sums then due and owing to Plaintiff, but Defendant has refused and continues to refuse to pay Plaintiff, 12, Despite demands upon Defendant for payment by the Plaintiff, Defendant has failed and refused to pay Plaintiff the balance due and owing on said account(s), 13, Defendant has been unjustly enriched by accepting service without full payment, COUNT TWO QUANTUM MERUIT 140 The allegations contained in paragraphs 1 through 13 are incorporated herein as if fully stated, 15, Defendant received and used during the course of its business, natural gas and oil supplied by the Plaintiff and has not paid for the gas and oil supplied, WHEREFORE, Plaintiff demands judgment against Defendant for damages including costs, prejudgment and post judgment interest and attorney fees as follows: Amount Past Due: Attorney Fees: Court Costs: Service Costs: TOTAL $126,058057 $ 15,000,00 $ 55.50 $ 150000 $167,863,40 By: 1 38 DATED: April 8, 2004 VERIFICATION I, John Pesola, an employee ofUGI Energy Services, Inc, d/b/a GasMark, being authorized to do so, verify that the statements made in the foregoing pleadings are true and correct to the best of my knowledge, information and belief. To the extent any averments therein are inconsistent in fact, I have been unable, after reasonable investigation, to ascertain which are true, but I have knowledge or information sufficient to form a belief that one of them is true. This statement is made subject to the penalties of IS P.A. C.S, Section 4904, relating to unsworn falsification to authorities. UGI Energy Services, Inc. d/b/a GasMark Dated: 4/'8' J 0'1 BY: U O~ J~ Credit Accounting 'JI'IHt"::t-. v- O~U~I~O~U~ r.~O" ~~ 'TICS . 1.1~6;S0,;Ei ."C:;J ~,,"'V: c., S I f nc PI1I 135' - 3365 JUt": H. 200) " ~; ~=:' ~:~ 'I' @ '0/ t'. . , .. ~ ". ""~"'.""'_'" UGt EllerHY ,erv;ces, Inc. Mr. Sam Pick.tlne, MH Dielectrics . BOll C Mounrain S~ MI. Holly Sllri.S'. PA /1066 Vi. POI: (717) .86.5832 De:!r S.",' We lire pluwd to CMlirm fll, rollrrwinl'rr,~er t b: '.rreert VOJ ' .1'\~r8Y S~r'llir.es. me.. dtra Ga~ll,ark 1Il'11! MH Oi~Ia:U'i.cs (''CIt'tClllnef'') Buyer: Mli Oi~CClr~ ScJltr, UCI EJ'\crey Ser'W'ic~~, Inc. 4b1 GUIr-Mk Producr: *6 Heal;nl'Oil Qv.l"lity~ 42,0008'1'0$5' 111100$ Pric:inc: 10.87001 per pIlon, ,lw.U Ipplic'blc IIlJ:r 111 ql \1tod .-1 ""IIC 1'. 2003 - pricing's 5..bj~ N chan.e Demurrage fec: Cu)lOlQ,rr......1l be et!lrgtd $50001\0. '.li{;"8til.IC with I he hour (or IOId.i"sI"nlaad"I~ Term'~ July Og, 200) to July 3 t, 2003 PII)""Mn': N<< 10 dlYl DtliVC"y~ Odiy.atloCUlComer', f;ac;iJjty 'W".I ':Ol'.1m 1 carner. O-li'W'crrd in m....imum incremen~ or 7~ClO pHQD1, Odl'Verlawi.11 be scncd~I"d 2A hour! '" ad. IC\~ tl, Mar:'" G.I.mb., GI!l./uark Supply Oepll'tnICIII .. 610-J7l-1999. E..lension 117 Plcau .1ian bduw -.klW'wlcd&Jft& ~ ..,-c:cmcn: &I. : J'duIT'l inn:ic;Qiuel)'"<I'" r.. \0 4 lO.6:!S..o21&. ,,\~ plH1icJ aaret 1hac tht facsimile 1ball be full'f btnrinf' ,lItd eo, lbtTr..blt.-s it U\e ("cslmi~ were III ol'fgin~1 Skou~ oWl)' .rrfte al!to'W'C~ CIOntr...,.ld yow und,rsl:1 'dins p.lftM' ((/tllac'l me immed,.tdy ~:"-M( lr-> M"kJ.sI'''' . A.clional Salel Ra,c.....t.tiltC UOl el\CfS)" S.~, Inc.. d...~~ AOR!:SO TO" ACCEPTED AV (C...,,,,, ..), o...:ra: i 'J7W~JIM,'V"'tSIIfl't'/r~ 11"'- 1l40'ITI;'1ItS~45.1S ,Qlt9';"'-' 1J.f.~';/I5~.]1fl.i ''''''''''/.tlkjI"11L"1.Ilr;''C'''~ , ' EXHIBIT A >V. '/63 ~I . ~ .4~. ''''~~ I STATEMENT OF ACCOUNT Mh Dielectrics established the following accounts with UGI Utilities Inc. d/b/a GasMark with the following balances and charges: Acct Type Service to: Balance Service Address G / One Mountain St" Mto Holly Springs, PA / $126,058.57 Total Delinquent Balance: $126,058.57 EXHIBIT B ~f -......... ~ -I) --- ~ ,..,.j --J o uJ , \ ~ ";0..0 ~ '\-' cJ 0'1 C5J "^' r-' c.., , . " -, ....., :: .J ~ .~ -- I'J (. ""., (' (0)\ C I /-1 ::;:-.1 '..) SHERIFF'S RETURN - NOT FOUND ," CASE NO: 2004-01552 P COMMONTWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND UGI ENERGY SERVICES INC VS MH DIELECTRICS INC R. Thomas Kline ,Sheriff or Deputy Sheriff, who being duly sworn according to law, says, that he made a diligent search and inquiry for the within named DEFENDANT MH DIELECTRICS INC but was unable to locate Them in his bailiwick, He therefore returns the COMPLAINT & NOTICE , NOT FOUND , as to the within named DEFENDANT , MH DIELECTRICS INC ONE MOUNTAIN STREET MT HOLLY SPRINGS, PA 17065 MH DIELECTRICS INC WENT OUT OF BUSINESS JANUARY 2004. THE BUSINESS AT THAT ADDRESS IS TECHNOLOGIES INC. Sheriff's Costs: Docketing Service Not Found Surcharge 18.00 4014 5.00 10.00 ,00 37014 So ~ "/ ...---" answ~.J:S-' , ,../" ~/:::':.;;-- """""""',, .~~--~~ ' -- .. ~ ---- ..,..- ~~~~~- / R, Thomas Kline Sheriff of Cumberland County ,;..:..;> KRZYWICKI & ASSOC 04/19/2004 Sworn and subscribed to before me this .,i / "u.. day of Ort .lIH) c( A , D . ( ..'t,u. CJ. fh.tU.t-v ~ pr~dhotary I KRZYWICKI & ASSOCIATES Anthony P, Krzywicki, Esquire John 1. Shearburn, Esquire P,o. Box 505 New Hope, PA 18938 (215) 862-4390 Attorney for Plaintiff Attorney JD. 23754/26852 --------------------------------------- UGI Energy Services, Inc, d/b/a GasMark Plaintiff Court of Common Pleas Cumberland County Civil Action Noo 04-1552 vs, Mh Dielectrics, Inco Defendant (13) --------------------------------------- PRAECIPE TO REINSTATE COMPLAINT TO THE PROTHONOTARY: Kindly reinstate the Complaint against the defendant (13) in the above captioned Civil Action for an additional thirty days. KRZYWICKI & ASSOCIATES DATED: May 17, 2004 Anthony Attorne BY: c:. s:-~: , ~~~ -, '" c::..-. = k- ::};: C) .1 .-\ ::r:,j rllp-:-""C -OIT~ -'.'1 e) ~~'~~ ~T::: _}, ~~~ -- N C> -(1 ~ ~ u: ~'",," ,>" ", SHERIFF'S RETURN - REGULAR CASE NO: 2004-01552 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND UGI ENERGY SERVICES INC VS MH DIELECTRICS INC KENNETH GOSSERT , Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MH DIELECTRICS INC the DEFENDANT , at 1500:00 HOURS, on the 7th day of June 2004 at ONE MOUNTAIN STREET MT HOLLY SPRINGS, PA 17065 by handing to LAIRD MURTOFF, ADULT IN CHARGE a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof, Additional Comments MURTOFF DENIED BEING AN OFFICER OF THE COMPANY 0 Sheriff's Costs: Docketing Service Affidavit Surcharge So A;;~~~ 18000 4.14 .00 10000 000 32014 R. Thomas Kline 06/08/2004 KRZYWICKI & ASSOC Sworn and Subscribed to before By: me this 1(, ~ day of Cb- ;levy AoD. n, (2~ ' , ~othonotary'~ In the Court of Common pleas of Cumberland County, Pennsylvania UGI Energy Services, Inc, d/b/a GasMark Plaintiff Civil Action - In Law No. 04-1552 CV vs. Mh Dielectrics, Inco Mh Technologies, LLC Defendants FIRST AMENDED COMPLAINT NOTICE You have been sued in court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty {20l days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing in writing with the court your defenses or objections to the claims set forth against you. You are WARNED THAT IF YOU FAIL TO DO SO THE CASE MAY PROCEED WITHOUT you and a judgment may be entered against you by the court without further notice for any money claimed in the complaint or for any other claim or relief requested by the plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE, IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP, Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013-3387 (717) 249-3166/ (800) 990-9108 In the Court of Common Pleas of Cumberland County, Pennsylvania UGI Energy Services, Inc, d/b/a OasMark Plaintiff Civil Action - In Law No. 04-1552 CV vs, Mh Dielectrics, Inc. Mh Technologies, LLC Defendant( s) FIRST AMENDED COMPLAINT I, This is an action by Plaintiff, UOI Utilities Inc. d/b/a OasMark to recover damages from Defendant arising out of a debt Defendant owes to Plaintiff by virtue of natural gas supplied to Defendant. 2, UGI Energy Services, Inc, d/b/a OasMark (herein "Oa,Mark") is a Pennsylvania corporation duly organized and existing under the laws of the Commonwealth of Pennsylvania with a principal place of business at 1100 Berkshire Boulevard, Suite 305, Wyomissing, PA 19610. 3, Defendant, Mh Dielectrics, Inc, is a Pennsylvania corporation doing business at One Mountain Street, PO Box C, Mt. Holly Springs, PA 17605, 4, Defendant, Mh Technologies, LLC, is a Delaware limited liability company doing business at One Mountain Street, PO Box C, Mt. Holly Springs, P A 17605, 5, At all times relevant hereto, Plaintiff was engaged in the business offurnishing & supplying natural gas. COUNT I GasMark vs. Mh Dielectric. Inc.. 6. Plaintiff entered into a contract with Defendant on or about June 27, 2003. Attached as Exhibit A is a copy. 7. Defendant made payments for gas under the terms of agreement. 8. Plaintiff supplied gas to One Mountain Street, Mt. Holly Springs, P A 17605 for the benefit of the Defendant. 9, At the present time, Defendant's account is in default and has an outstanding balance due and owing Plaintiff as reflected on the attached Statement of Account which contains information taken directly from Plaintiffs original business records, and which includes the unpaid balance and all appropriate debits, and credits, and which is attached hereto and marked Exhibit B, incorporated herein by reference and made a part hereof. 10. The natural gas which was provided by the Plaintiff to the Defendant aforesaid, was received, accepted, and utilized for the benefit of said Defendant. 11. Defendant is in default of its obligation, having failed to make the payments as they became due, 12. Plaintiff made demand on Defendant to repay the swms then due and owing to Plaintiff, but Defendant has refused and continues to refuse to pay Plaintiff. 13. Defendant has been unjustly enriched by accepting service without full payment. WHEREFORE, Plaintiff demands judgment against Defendant for damages including costs, prejudgment and post judgment interest and attorney fees as follows: Amount Past Due: Attorney Fees: Court Costs: Service Costs: TOTAL $148,749.11 $ 17,500.00 $ 55.50 $ 150,00 $166,454.61 COUNT II GasMark vs. Mh Dielectric, InG. Ouantum Meruit 14. The allegations contained in paragraphs 1 through 13 are incorporated herein as if fully stated. 15, Defendant received and used during the course of its business, natural gas and oil supplied by the Plaintiff and has not paid for the gas and oil supplied. WHEREFORE, Plaintiff demands judgment against Defendant for damages including costs, prejudgment and post judgment interest and attorney fees as follows: Amount Past Due: Attorney Fees: Court Costs: Service Costs: TOTAL $148,749.11 $ 17,5100.00 $ 55.50 $ 150000 $166,454.61 COUNT III GasMark vs. Mh Dielectric, Inc. and Mh Technologies LLC Uniust Enrichment/Third Partv Beneficiary 16, The allegations contained in paragraphs 1 through 15 are incorporated herein as if fully stated. 17. Defendant, Mh Technologies LLC, assumed the mortgage and obtained title to One Mountain Street, Mt. Holly Springs, PA from Mh Dielectrics Inc, on or about January 26, 2004. 18, Prior to January 1, 2004, Mh Technologies LLC had active knowledge of the debt for gas services provided to Mh Dielectrics Inc. 19. The sale price was less than it would have been had the debt to Plaintiff been paid. 20, The sale price of One Mountain Street, Mt. Holly Springs, P A was below fair market value. 21. The value of One Mountain Street, Mt. Holly Springs, PA in 1997/1998 was approximately $7 million dollars. 22. The sale of One Mountain Street, Mt. Holly Springs, P A to defendant MH Technologies LLC in January 2004 was approximately $3.5 million dollars. 23, Defendant has been unjustly enriched by accepting title without paying for gas service. WHEREFORE, there is now due and owing from the defendant to the plaintiffthe following sums for which plaintiff demands judgment against the defendant: Amount Past Due: Attorney Fees: Court Costs: Service Costs: TOTAL $148,749.11 $ 17,500.00 $ 55.50 $ 150.00 $166,454.61 COUNT IV blU5r'..Jl:I~kj4 t-'.lld...-Tj Ht-'~-kjl-LUU~ ll;u~ l:IH~I'lHK""" GASMARK MASTER NATURAL GAS SALES AGREEMENT NO. DS-IOIZ50-UGI ("CONTRACT") DATED November 1,1997 The Contract is b.tween UGI Ene"", Services. Inc. (GASMARK), and M. JL Dieleetrie. ("Customer"), also referenced herein IS "Purty" or collectively as "Parties." This Conncl incorporates all transaction-specific Confumation Agreemeot" which shall take the form substantially set forth in Appeodix "A" heroto. 1 N"..... ofT.....adian: CUlltmDet and GASMAJUC respect;""ly agre.IO purcbase and s.U Firm or Firm IbcaD IllItural gas supplies (gos) pursuanl to thclamS of this Coonct and Confismation A~I(S) wbich shall moan that. unl... ..cused hyan """" of fora: majeuR: or (in !he.... of Firm Reoall lIaS only) s Recall c,..nt. Cusromer muslllmrcha.se. and GASMARK must ",11. the Con"..t Quantity specified in Section 3. ReuU Event shall mean Ii period duriolg which th. primary holder of pipeline copacity used by GASMARK 10 deliver ga. to Customer has e....is.d it' right to "'Ie the capacity, 2. Contnct Term an4 Sales Perled(.)! The effective term of thIS Contract shall eommence Wllth the above date. and flhsl1 continue until a party receives u.rinen notice of termimtion from the other Parly specifying a terminalion date that is so earlier 1Ium 90 day. afta the date of !he writton DOli... Notwidlllaftding .uch nolie., however. Ibis Malltor Contraot .haD remain effecti\'e for the duoaUOII of any and all Sale. Period(.) specified in the Conrlrlllation A.gl'ltement(I). 3. Quantity: GASMARK SMU tender for delivery to Cwtomer, and Customer must accept for rt.."Ceipt from GASMARK. the Conlnet Quantity specified in th. Con6rmation Agrecmcnt(.). 4. Con......, Price: For quanti tie. tender.d for deli""'1'. Cll'tomt:1' shall pay GASMARK the CDntracl Pnc. .peeifi.d in the Confirmation ~ent(.), wluch shall reimbura. GASMARK for all applicable t..e. for which the taxahle incident take, pla.cc prior to the Point of Denv=y. In addition.. Customer S'hall bear responsibility for the payment of all taXes appliea.ble to :Jut:h gR::i, incNding but not limited to sales, me, tJ"In3fer, value Or property. gross receipts Of energy t&xes for which the toxlble incident Ilrises upon or after the point of delivery, and any and aU nc;:w taXes which become applicable after the date of this Ma..ter Con_t: ,f Gi\.SMARK IS r<spOllSible for ",u..:tion of such 10'0'0 Custom.r .haIl r.imburs. GASMARK for the full amnunt. 5. Quality, PrrlRlre, and Meuunmeal; Gas tc:nderod for delivery shall meet all quality aod pll~ssure specifications required by Customer',. Transportcr(S) and shDll be measured by Customer's TransporteJ at the Point ofDe.livery 6. Title, P......... and Control: Title tD ll!1ll risk of ,,'.. of all go. tendered for d.livery .haU po.. to Cu.tomer upon receipt al the Point of Dcli~ry. GASMARK warrants that it holds: title to the gas, or has the tight to sell the gas, al the Point of Ddi....'Ct'Y und that the iUS is free from liens and adverse claims of any kind. GASMARK shall indemnify Cuswmcr 118Qinst any liel'l~ and claims arising with respect to thl: ,iUe \0, or its ri~t to sell. alJch gas to Custom-:r. 7 TraDlportatian BaJ.andnc, and 0.(:.....: Any ohorge LmPO~ by a Tl'3.nsporter due to an unexcused imbalance or tailure lo t.cndcr or accept \he ContnlCt QuAntity for deh very shall be paid by the Party cau:nng such :imbalanc;c or failure. A PQrty shaU notifY the od1er P!U1y promptly after becoming 1I.w:lf8lhat Sl1cb an imbalance or failure: has occurred or is llkely to occur, ."d both parues sholl UlIe r.asonahle efforts 10 cure the problem, 8. lliUingan4 p_t: i\JIIUDOIllIIs duehen:llIldcr .hall be paId withm 10 day. ofth. date of the invoice. Customer shall pay GASMARK by WIre tran,fer to the followl1l8 Bank Account: Mellon Bank N A" Pittsburglt, P A; Accounl ~O 16-7425. ABA 11043000261. or by check 10 UOl Utihties.lno, P.O. Box ) 3009. R.ading, PA 19612-3009; AltnAccounts R_ivablo. Any unplid amoant:l shall a~ intcrcSlfrom the due cbteatthe rale whid:a is the loser of 1 1121Vo per month or thl: maKimum lawful rote, Upon 5 days prior written notia:1o CustOtnCl', GASMARK"'"y cur10il deliverie:l if", amOun' due I. not received when due or if GASMARK ha1 a reasonable cano:m that Custam...-r is no lonser creditworthy. Deliveries InIlY not be curtailed 'where Customer proVIdeS written evidc:ncc of a good faith billing dispute and P6ys the undisputed amount 9. Foree Majeqre: EXcepl for Cu.<<omerl s payment obligation, ncitbl:r Party shall be liable for faiJure of performance due tC'I CRuses beyond i19 :n:a:llonablc control (force majeure). such as acts of God, acts of the Otl1e'1. Party, acts of civil or milltory authority, flJ"CS.labor s\tU::cs and dispute!, floods', tTee2ing of wens or lines oipipc. cpidmnie5. war or riot. ~ent offinn IJ1U1SporUtion. i;hangC5 in law. rx olber like OCC\JlR:l'll(".e. A Party claiming inability due to fore!! majeUR must provide !he other Party WIth prompt_co stalillg the....... for its inability, ond musl make .........bl. effortS 10 promptly r..olve .uch inability to pClform. Financial inability to perfonn alone shall not relieve a party of its obligation 10 ]perfonn. Refusal of a pmy to accede to demond. of lobor shall not deny thaI Party ~le benefits of this provision. Ol'l('n-w:;t EXHIBIT A bl\J3738504 P,03/19 HPR-01-2004 11:04 UA"ln,nn.a MASTER NAT\. _.L GAS SALES AGREEMENT NO, DS-l~__.;o-UGI ("CONTRACT") DAnD N.....mber 1.1997 10, FlIi1un t. D.6verlAecepl. Exc:lusi.. Remedy: If for IIlIlllCllCUSed lCiSon cilber party fILii. to portonn iltl obligation h=undcrto tender for deli_ (in the case of GASMARK) or accept gas tendered for delivery (in the ca.,e of CUltomer)o tho olba Party" c:>:clusiw: mnedy shall be a) in tho casc of GASMARK failure. the positive di1ferelloe, if any. betwOCll the price C\lSlAlt11Cl' paid for "'P"~"'l supplies ond the eon..... Price. multiplicd by lbe quantity of gas GASM.J.RK failed 10 deliver. Or b) in lbe.... of CusIOmcr' , failu",. tho p..itivo diffCRncc, if any. between the Contract PriCl! and lbe pricc GASMARK obtained from . I\:plaa:mcnt IIWlcct. multiplied by the q...,tity of I!llS not a..epted by Customer, A party shall act reasonably to minimize its d&ma8C$ which shall ineludo but not be limited ",..onoble efforts to obltl;" replacement aupplies or a replacement morket. where applicable, In the event that such reasonable efforts are \lllllUCCC:ssfuJor only pattly successful, the party liUjing to perform sbaU be responsible for III amount calculated by muhiplying the Contra'ct Price times Ibe quantity of gas for whicb lbe other party failed to obltlin a replacement supply or replacement market, whichever applicable. in addil100 to any amountll c.leulalcd wilb fCSpectto replacement supplies or replacement market(s), GA5f"It=tRK l.!MIT A TlON OF DAMAGES: IN NO INRT ANCE A..'lD FOR NO PURPOSE SHALL GASMARK BE LIABLE TO CUSTOMER FOR ANY SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, REGARDLESS OF WHETHER A CLAIM IS MADE OR REMEDY IS SOUGHT IN CONTRACT, TORT. OR 01HERWISE 11. NoIIce" Noticc(s) rcquircd hcrcundct shall be doaned properly made iftelccopted. delivered personally or sent by ",gular or certified ma.il to the followioB addres..c;es 01 facsimile. CI.IJtumcrJ J Representative: GASMARK', RepreJ'enlative: M.r. Ron Kuntz M. H. Dielectrics 1 Mountain Street P,O, Box C Mt. Holly Sprmg.. PA 17605-0240 UGl Enerl!Y S.,,;oe,. Inc. 1100 Berkshire Blvd. WyomissiDg.PA 19610 J.'.acsimile: (717) 486-5831 Telcphone', (610) l73-7999 800 427-8545 Facsimile: (610) )74-4Z88 Telcpbone: (717) 486-34H 12, MiK:ellaneoul: This Contract shall be oonsuu.ed in aa;ordanc:e with the law~ of the Commonwealth of Pennsylvania wltlKlUt recoW'9C to provisions gO\ieming c:hoic.c of law. Upon wriltcn notice to the:: other Party, Customer or GASMARK may assign this IvIaster Contract o.nd related ConfinnatiOD ~t(8) to Q corporate affiliate or SU[;Ces3or. Any other assignment shall require tile prior written consent of the other Party. AGREED AND ACCEPTED TIllS AGREED AND ACCEPTED TIllS _dayof_, 199_ 19. day of November, 1997 CUSTOMER: M.B, Dielcctria GASMARK By' By: Tide: Title: Y ice President oe/:li-UGI 2 EXHIBIT A APR-01-2004 11:04 MASTER NATl GHSMARK 6103738504 .L GAS SALES AGREEMENT NO. DS-l~._,~O-UGl ("CONTRACT") DATED November 1, 1997 APPENDIX "A" Confirmation Ap-et'lIICIIt No. 1 UGI System, lntenuptible, Market, Customers P,04/19 TIus Confinnalion Agreement is between UGI Energy Services, Inc. ("GASMARK") and M. H. Dielectrics ("Cusiomer") (together, the "Parties"), and is subject to thell:rm5 and conditions of a ce~tain Master Natural Gas Sales Agreement (MNGSA) belween the Parties dared November 1, 1997 (ContraCt No. ))S.10125ll-UCn, If a conm.t existt between tbe pro.mOIlJ of said MNGSA and this ConfirmatioD AgreeDlent, the provisions of tbis ConfirmatioD AgreemeDt shan govern. NATURE OF SERVICE: GASMARK', obligation to deliver and sell. allll Customer's obhgation to accept and purchase, Customer's Full Re<luiremenlS Quantity (FRQ) of natural gas on the UGl Utilities, Inc (UGI) distribution syStem is linn subject to r=ill (Finn Recall) SALES PERIOD: One yearpenod of November I, 1997 to October 31, 1998, TIus sales period shall automatically extend for subsequent one year periodso unless Customer provides written notice of cancellation to GASMARK 90 days prior to the expiration of any such one year period. At the end of any such one year period. should pricing, quantity. period and delivery tcrms not have b<:en established for the subsequent one year penod, GASMARK wJll provide service based on GASMARK's "wren! market rate for natural gas at the time of delivery. CONTRACT QUANTITY: m2 - CuSlomcr's Full Requirements Quantity. CONTRACT PRICE: DUl _ Priced at market !'tie for gas delivcred by GASMARK at the point of delivery. Unless notified by GASMARK. the demand cost of such lIIIRSportation, if any, is charged to Customer by UGI. GASMAllK's and Customer's respective responsibility for the payment oflJlXes is unchanged from that stared under the MNG5A. POINT OF DELIVERY: FRO _ The rccelpt point into Te... Eastem Transmission Corporation or other mterstate pipeUneo as allocaled by UGI or UGI City Gale, NOMINATION AND SCHEDULING: &eh montho GASMARK will provide Customer with a Monthly Nomination RJ>quest Fonn designating the price it will charse for FRQ gas us delivereellO the UGI City Gate. On thIS monthly fonn, GASMARK shall also include an esti~ of the Customer's FRQ. On this monlhly form, GASMARK sh.al1 also include FRQ in both the uuilS ofDth@City Gate and Mcf@Meler (Thousand Cubic Feet measured at the CustOmer's meter). On or before the date specified on the Monthly Nc,mination Request Form. Customer must notify GASMARK. in writing, with ony changes 10 GASMARK'. FRQ. If Customer fails to ~~::i~~ ~:~~MARK Mlh such writteo chao.es in a timelv manner the FRO rcIIectecl on the monthlv fonn 1 GASMAllK ~hall be deemed to have heen :lCcent~ hv r.lllrlnm~r. GAS~IARK shalt schedule and deliver CustOmer's FRQ on a daily, ratable basis over the delivery month (Scheduled Quantity). Customer may makc prospective changes to Customer's Scheduled Quantity if il expc:riences or anucipates a significant or abrupt change in Customer's gas usage, To change Cust.omet's Schedul"d Quantity, Customer must provide GASMARK with timely, written prior notice oflhe revised Scheduled Quanti'ty, Revisions to Scheduled Quantities do not relieve CustOmer of Customer's obligation to accepl and purchase any portion of Customer's os/~;-UG! l EXHlBtT A APR-01-2004 11:~4 GASMRRK 6103738504 _._.._--~ MASTER NA T\. ..L GAS SALES AGREEMENT NO. DS-h ._"O-UGI ("CONTRACT'') DATED November 1. 1997 FRQ volumes properly delivered or tendered for delivery by GASMARJ{, Section 10 of the MNOSA shall determine GASMARK's remedy for Customer's faiI~ to accept FRQ, P,05/19 BALANCING: GASMARK shall cxer\:ise reasonable elIolts to ensure that Customer's UOl delivery service aceo""t does not incur balancing andIor overrun penalties. Reasonable ~Olts shall include but not be lil!1ited to balancmg Customer's usalle levels with the \lSIlge levels of other similarly situated Customers (lbe Pool"), which will enable GASMAltK to balance CUS\O.lICr's gas deliveries witb complementary usage requirOlnents of other customers in the Pool ("Pool Ba\anciogj, CustOlner acknowledges that Pool Balancing "nables GASMARK to rely upon expan<kd balancing tolerances of the Pool. which, under most conditions, will enable GASMARK to avoid balancing andlor CWCITll11 penalties on heba1f of Customer and establish a replaceml:ftt market for gas volumes properly delivered by GASMAltK but not accepted by Customer Pool Balancing is not available to customers wl1icb do not maintain Montllly !'lalancing and Pooling Service. respectively. wilh UOI. INDEMNIFICATION; GASMARK sball indcmoify and otherwise hold harmless Cu,tomer for balancing andlor overrun penalties to the e,tent tbal suob penalty resuIlB from GASMARJ{'. undeIClovOJdelivery of oanmll gas for Cllstomcr's transportation accoWlt with UGlo provided thaI Customer follows the Nomination and Scheduling provisions set forth above, If, despite the exercise of reasonable efforts, CASMARK is unable to maintain Cuslomer's delivery service account within DOl's tarilftoleranee levels, GAS~(AJU{ shall have the ngbt to charge Customer for both COSlS applicable under Section 10 of the MJIIO SA alld any b:lIancing and/or overrun penallies incurred as a result of Customer's failure to plovide timely notice. OTHER CONDITIONS: 1) During tile Sales Period. GASMA.RK sbalI be CuSlomer's sole supplier of natural g'''. 2) UGl will include GASMARK's charges in Customer's monthly billing statcmenllo Customer, unless GASMA.RK provides notice 10 the conrrary. 3) Customer a~thorizes GASMARK to act as Customer's agenl for handling all gas scheduling malters WIth UOl. CUSTOMER: M. H. D;eleclncs GASMARK BY: BY: TITLE; TITLE: Vice President DAT,": DATE: November 19. 1997 os; 97-UCI 4 EXHIBIT A 10103738504 P.0b/19 HPR-01-2004 11:05 GH5~lHRK GASMARK MASTER NATURAL GAS SALES AGREEMENT NO. D5-101150-\1GI ('CONTRACT") DATED November I, 1997 APPENDIX 'A' Confirmalion Agr.em.nt No.2 InltlIllPtible This Confirmation Agreement i< betWeen UGI Energy Services. Inc. ('GASMARK") aJllI M. H. Dielectrics C'CusIOmer") (logether. lIle 'Parries'). aJllI i. subject to lhe ,erms and Conditions of. certain Master NalllIal Gas Sales Asreement (MNGSM belwten tho Partie. dated Novembet I, 1997 (CoDa.c, No. DS.101250-UGI). If a "IIIf1ict exisls betw.... tbe provi.lo... of said MNGSA and this Conf'lI'IIIalion Agreement, Ibe pro..;sio.. Dr this Conllrmation Ag....ment .1In1l govern. 1. NATURE OF SERVICE: G~s obligatioo 10 deliver aJllI sell. and Cusltlmer'. ob1i&ation 10 accep' aDd purchase, C\lStOtner's MOIlIhIy llaJelAld (MBL) ofnalllIi1 gas on the um Unlities. Inc. (UGl) di<tribution system is firm. subject 10 ~ (Finn Recall) only by OGI. GASMARK', obligation 10 deliver aDd ..n. and Customer's obligation 10 accept and pIlItwe. CuSlOmer'slncremellW Contract Quantity (lCQ) on ,b. UGJ di$tribulion system is firm !I1bjet:t to recall (Finn Recall). During uecaU ..ent. GASMARK and CustODier, respectively. ,hall DO' be obligated ltl deliver or accept any volwncs UIIlier thi, agreemClll, bul CuslOll1er .hall remain responsible for an amoUDt calcula"'" putluant to SOCtlOl1 10 of the MNGSA for Customer's failure to ."cept ,11 or any portion of cusromer'. MBL volume. for a particular IIlDnth. Il. SALES PERIOD: November 1.2000 waugh March 31. 2001 Ill. CONTRACT QUANTITY: MBL i ~~:~~r~i:~~;:;'~~v.ry -".~ ~~_!iq \ _... ........._ ."","" _ _ .___..____ 4.__.,__._.____1 I ~c~ber 2000__ 4000 ; , January 2001 \ 4000 ._.._..._ ....__ ......."...._.._ __-1 FdlIuary 200 I I 4000 I Ildar~h2~O;~__= ~~==~_~~~=I- 4000 -~-~I @ _ Cu"ome,'. full requiremeDt! m e.ee" of Cu""mer', ratable MBL. IV. CONTRACT PRICE: !ill!!::; LOOk-~_p~i~:a~~:~.~~_D~li;.q-_i_~~I~L~~~~J I~oai~:~~~<l.~~~~ J~ 2~_L_~!~~:___J L.:.:.-...-.-- I .J Note: Prier = NYMEX + SO.05/dlb. NYMEX Tri"m set f~r November thrt1Ug~1 March ZOOI @ S4.75,- Buy .raps for February rtt 0 SS. 75. ICQ: Priced a' market .... for gO! delivered by GASMARK at tho poin' of delivery. In .ddiliOD, for MBL volwnes. CuSlDDlCr also.lWI reimburse GASMARK for any app!il:able cbarge. incurred amsponlDg gas fro", the Painl of Delivery 10 tl>e UOI Ciry Glle. For MaL and ICQ. unle.. nOlified by GASMARK. !be dealaDd ellS( of I1lCb lransp<llUtiuo. if any, i< obarged '0 CUSlOlOCI by UOI. GASMARK', and Customer's respective responsibility for the payment of taXes is unchanged from Wt .lIlted UDder the MNGSA. V. POINT OF DELIVERY, MBL _ The receip' point in'o T.... Eutem TrlllSIIliAioll Corporation or other interstate pipeline, as allocated by UOI. a''''~UCt E.XHIBIT A 10103738504 P.07/19 -01-2004 11: 05 GHSMRRK ---... HPR MASTER NATURAL GA. _ALES AGREEMENT NO. DS-IOl2SO-UGI \'CO~lTRACT') DATED November 1, 1997 ~ ,The receipl point into Tem Eastern Transmi.sion Corporation or other intersate pipeline, as aUocaled by UGl or UGI Cil)' G.... VI, NOMINATION AND SCHEDULING: E.ch IDOntl1, GASMARK will provide CUstomer wilh a Mombly Nomin.atioa R<:quest Form desicnatin& tho price it will charJe for MBL all(! ICQ gas as delivered co tho UOl City Oate. On this monthly form. GASMARK shall also include In ..Iilm'e of the CUS1:omer'. Full Momhly Requirements Quantity (FRQ) which shall be comprised of the MBL and ICQ volumes On thU monthly form, GASMARK shall also include MBL. ICQ, and FRQ in both the ullits of Dth @ City O;.IC and Mcf @ Meter (Thousand Cubic Fee, measured at !he CUstomer's meter). 011 or before tho date opecitled On the Monthly Nominalion Request Form. Customer must IlOtify GASMARK, in writin&. with InY ch."... to GASMARK's FRQ. If Customer fails to provide GASMARK with auch wriaen chanl!eS in a timely manlier. the FRO rellected on the monthlv form wovided by GASMARK shall be deemed '0 have been a="'" bv Cu~. GASMARK shall schedule snd deli~er Customer', FRQ 0.. a daily. ratable basis over the delivery month (Scheduled Quaotiry). Cwtomer may mal:e prospectivc ching.. to Customer', Scheduled Quantity if il experit:nce. or anticipates a sigDificanr or .brupt change in Customer', gas usage. To change Customer's Scheduled Qullntity. Cuscoll1er must provide GASMARK with timely, _n prior DoUce of the revised Scheduled Quantity. R.visloJl.lto Scheduled Quantities do DOt relieve CuslOmer of Customer', obligatiol1lO accept and pll1'chase any portion of Customer's MB L or ICQ voJUIIles properly delivered or Ielldered for delivery by GASMARK. Section 10 of the MNGSA sh.1l determine GASMARK'. remedy for Customer'. failure to accept FRQ. VII. BALANCING. GASMARK shall ex=ise rC3Sooable effons ro ensure that Customer's UGI delivery ,ervice account does not incur balancing and/or overrun penalties. Reasonable effons shall includ" bU'llOr be Jimi'ed to bal3ncing Cu.tOmer's usage leveb wIth the usage levels of orner .Uztilarly situated CUsrome". ('the Pool'), which wJn enable GASMARK to balance CUstomer's gas deliveries with complementary usage requirements of omi:! c...tomers in the Pool ('Pool Balancing"). CustOmer atlalowledge, that Pool BalaDcing enables GASMARK 10 rely upon expanded balancing IOlerance. of the Pool, which. UDder most conditions, will e"able GASMARK lO .void blllaucing IlDdlor ovemm penalties on behalf of Cusl<lII1er and esublish a replacemenr market for gas volume' properly delivered by GASMARK but not accep'ed by Customer. Pool BalaN:ing i, not.,.i1.ble to customen which do no' maintain Monthly Balancing and Pooling Service, respectively, with UGI. VlII. INDEMNlFlCA nON: GASMARK shall indenmify snd otherwise hold harmless CUStome" for balancing and/or overrun penalties ro the exteal tha, such peaslty re..ll. from GASMARK', underlover-delivery of natura] gas for Customer', transportation accOlbU wirn UGI. provided that CUalOmer follows lIle Nominlllioa snd Scheduling prOVIsions seI forth above. If. despite the exercise of reasooabJe efforts, GASMARK !:s unable to IUintain Cwtomer'. delivery service account within UOI'. rariff Inlerm:e levels, GASMARK shall have the right 10 chsrge Cusromer for both eo'l! applicable under See1ioD 10 of the MNGSA and any ""laucinS IlDdior overrun pCD4l~es incurred as a ttsuU of Customer's faiIW'e to provide: timely notice. IX. OTHER CONDITIONS: A). Duriag the Sales Period. GASMARK ,hall be CusUlmer', ,ole .uppller of naruralgas. BJ. UGJ will include GASMARK', charges in Customer's 1l10lllhIy billing ,ratemem 10 Custome,. unless GASMARK provid.cs notice to the contrary. :.:.:.:.; .:.: ': .:': c). Cusromer authorize. GASMARK In acr as Cusrmner" age.nl for band1ing all gas scheduling manors wirh lIqL::::::::::::::::: ~:. : ~: :: :: :: :::: :: :: :: '.'.............".. MH Dielectrics, Inc. GASMARK ::Sf=i~~er z(l ..... =-, ...~ CUSTOMER.: BY, TITLE: DATE: DATE: October 23,2000 O.,,1-UGX EXHIBIT A 10103738504 HPR-01-2004 11:05 GHSt'lHRk GASMARK MASTER NATURAL GAS SALES AGREEMENT NO. MS.10l1~ll-UGI ('CONTRACT') DATED Noy.......r 1, 1997 APPENDIX 'A' Coallrmalion Agreemenl No.2 Ameudment No.1 Interruptible This Amendment No.1 to ConllrlllJltion Agreement No.:1 is between UGI Energy ServiCIOS. Inc. ("GASMARK") and M. H. Dielectrics ('CUSlOmer') (together. the 'Partie."). and is subJecllo the terms and conditions of a certain Master Natural Gas Sales Agreement (MNGSA) betw_ !be Parties dated November I, 1997 (Contract No. DS, IOI250-UGl). It a confticl exists between Ihe provisions 0' said MNGSA IlIId this Confirmation Agreemeut, the provisions 0' this Confirmation Agreemenl sboll go_no Thi. A..,,,d,,,,"t is ro cOllfi''" ,fh, SG/, 0/ JG"UG/y 100/ G"d th, w,l ''''$G/" 0/ Flb,uGIY 1001 volu"', lIS liSlld bllow. CONTRACT QUANTITY: Base Quanllty: Month January 2001 February 200 1 lltb 0 Cllif (4000) (4000) CONTRACT PRICE: Base Quantity: (S I Oth @ Gulf) Month January 2001 "chroaty 200] Purchas. Prie.. I Dth S5.~O $4..80. Re.sai. Price I Dth ~7 .675 S7.000 Note: C"dit for ,ate of laJ wiJI be .hown 011 inl'Oie. aJ folio....: JIUlUory 2001 F.bnlory 2001 $7,500.00 $8.800.00 C1,;STOMER: MIl Dleledri"" 1De_ GASMARK BY: TITLE: BY: TITLE: Vice President & Ge""ral Manager DATE: DATE: January 29.2001 I,UL.oc:K EXHIBIT A P.08,19 HPR-01-2004 11:010 10103738504 GH5MHRK GASMARK MASTER NATURAL GAS SALES AGREEMENT NO. MS-I0I2So-UGI ('CONTRACT') DATED November 1, 1997 APPENDIX 'A' CoalIrmation Agreement No.1 Amendment No. Z Interruptible P.09/19 This Amendmenl No. Ito Conftrmalion Agreement No. Z is between UGI Energy Services, Inc. ('GASMARK') and M. H. D1eleelries ("Customer') (lO;cIhcr, the 'PartiO$"). aJllI i. subjec' to the terms and conditions of · ccrrain Mas,er N.lllral Gas Sal.. Agreement (MNGSA) betwccn the Parties dated November 1. 1997 (Contracr No. ~ 101:ZSO-UGI). It a coallict exis1s bet_ the provisions 0' said MNGSA and tillS Coafilrmation Ageemenl, the provisions of this ConIlrmalion Agreemenl shall govern. TIlls Amend"..nl is ro eorrjlrn,llte sal. of March ZOOl vol"mB QS listed belDw. CONTRACT QUANTITY: Base Quantity: Month March 2001 CONTRACT PRICE: Base Quan,jty: March 2001 Dlh @ Gu1r (4000) $600.00 Nor" Credllfor sal. of gas will In shown on Mtuf:h 2001 in.oi... CASMARK BY: CUSTOMER: MH Dielectria, Inc. BY: TITLE: DATE: 11m... TITLE: Vice Pr..ident & General Manager DATE: March 28. 2001 EXHIBIT A 6103738504 P.10/19 HPR-01-2004 11:010 GASMARK MASTER NATURAL GAS SALES AGREEMENT NO. MS-I01250-UGI ("CONTRACT") DATED November I, 1997 GHSMARK APPENDIX "A" ConJlrmation Acreemenl No.3 - REVISED Interrupllble Thi, Confirmation Agreement is betWeen UOI EIlOfIlY Services, Ioc. ("CASMARK') aDd MJ!. Dieleolrlcs ("Customer") (toge1her. tho "Parti..'), aDd is subject lO tho term. and condj,ions of a cenoin MaSler Natural Gas Sales Agreement (MNGSA) between the Pettie. dated November 1, 1997 (Contract No. MS-I0USG-UGJ). If a "onlllet....15 between the pro.ilion. or said MNGSA and this Conrlrlllation Agreemenl, tbe provisions of this C.ntlrmallon Agnement shall govern. I. NA TIJRE OF SERVICE: GASMi\.RK'. obligation '0 deliver and sea. aJllI Customer's obliption 10 accept and purchase. Customer's Monthly Base Load (MBL) ofnalUtal gas CD tho UGI Utiliti...lac. (UGI) di,tributionsy.tem is finn. Sllbject '0 reui! (Finn Recall) only by UGI. GASMARK" obligation 10 deli,'er and sell, and Cu.tomer', obligation to accept and purchase. Cu.tomer'. Incremental CootraCt QuanUlJ' (lCQ) 00' the VOl distribution sy,tem is firm subject to recall (Firm Recall). During. recall event. GASMi\.RK and CuslOlr'er. respectively, .balI DOt be obligated '0 deliver or accept any volumes under thi, agreement, bu' CU.lOmer sbaa remain responsible for an amoun! calculated pursuant to Section 10 of the MNGSA for Cuatomets failure to accepl all or any ponion of Custom.er's MBL volumes for a. particular month. Il. SALES PERIOD: November 2001 !brough April 2002 Ill. coNTRACT QU,lNTITY: MBL: ~~;;;ti.~=-.::'=':-'~___~-==,Dtl!j~Giii;--":-j ; Novcmber 200 1 I 6000 . l~-~t2=i~}: lCQ;, Customer's full requiremenlS in excess of Customer's ratable MBL. IV. CONTRACT PRICE, MI!.l : Lock-in Price at Poi~~ of Deli"en' , , November 2001 through April 2002 SlOth @ Gulf $439 lCQ: Priced at market rate for ga' delivered by GASMARK at the point of delivery. In addition, for MBL volumes. Customer also !hall reimbune GASMARK for ,ny applicable charCe. incurred transporting glS from the Point of Delivery to the UOI City Gate. Par MBL IIId ICQ. unl.., notified by GASMARK, lhedemand cost of!l1ch trllIlllponaUon. if lilY. is charged 10 CuslOlllCrby um. GASMARK's and Customer's reapective re'ponsibililJ' for the payment of taX" i. UDCllanged from .that Slated uodet tho MNGSA. V. POINT OF DELIVERY; MBL . The receipt point into Texas Ea5l.eIn Transmission Corporation Of other inlcrsum: pipeliDe. a3 allocated by UGI. reo. The Ieeeipt point into Texas Eastern Transmission Corporation or other interstate pipeliDe. as 3llocated by UGI or UGl CilY Gate. 1111\..Ol:l ~tbS.T A 10103738504 P.11/19 HPR-01-2004 11:010 GH5MHRK GASMARK MASTER NATURAL GAS SALES AGREEMENT NO. MS-I0\1SO.UGI ("CONTRACT") DATED November 1, 1997 VI. NOMINATION AND SCHEDULING: Each month, GASMAllK will provide Cuatomer with a Monthly NomiDllion Request Form des,gnanng the price it will charge for MBL and ICQ gas a' delivered to the UGJ City GlI1<. On this moothly form. GASMARK shall also ioclude an estimate of the Customer', Full Monthly RequiremelUl QuantiI)' (FRQ) wwch ,hall be comprised of the MBL and ICQ VOlWDl". On tIlis monthly form, GASMARK sha1l also include MBL, ICQ. and FRQ in both the unit< of Dth @ Ci''Y Ga.. aDd Mcf @ Meter (Thousand Cubic Feet meuured ., the Customer', meter). On or before the date specified on the Momhly Nomination Request Form. Customer llIUIl notify GASMARK. in writing. with 3lIY cllallges to GASMARK's FRQ. If CustQlOer faili to orovide GASMARK with such written chaD~t, in a timely manner, the FRO reflected on the monthl form Illvided GASMARK ,hall be deemed to have been ace t<:d!lv Cuatomer. GASMARK shall,chedule and deliver Customer'. FRQ on a daily, ratable basi, over the delivery month (Scheduled QuantitY). Customer may mala: prolpCCtive c/wIges to Cultomer's Scheduled Quantity if it eq>erieni:e, or anticipa.., · significant or .bmp' chaDie in Customer', gas u.age. To change CUSlOmer', Schedu1.<! Quantil}', Customer must provide GASMARK with timely. written prior notice of the revi<ed Sch.duled Quantity. RevisiOllS to Scheduled Quantities do DO' relieve Cuatomer of Cu'tome,'. obbgation 10 accepl and purchase any portion of eus,omer's MBL or leQ volumes properly delivered or lend.red for delivery by GASMARK. Section 10 of the MNGSA sIuIll determine GASMARK's remedy for Customer's failure \0 accept FRQ. VII. BALANCING: GASMARK shall exercise rea,ooahle efforu to .nsore that CuslC,mer's UGI delivery .ervice account does not incur balancing and/or overrun penalties. Reasonable effens shall include but not be limited to balancing CuslOmer's usage levels widlllle usage levels of other s,mtlarly situa,ed Cll8tomers (.the Pool"), which will enable GASMARK to balance Customer's gas deliveries with complementary 'l1sage requirements of other cuslOlllCrs in the Pool ("Pool Balancing"). Customer acknowledges that Pool Balan<:ing enables GASMARK lO rely upon expanded balancing tolerartce. of the: Pool. which. under most condition.. will enable G-'SM-'RK 10 .vold balilllCilll and/or overrun penalties on behalf of Customer and ....bllsh a replacc:men, market fa, ea' volwne' properly delivered by GASMA.KK but not accepted by Cu.stomer. Pool Bal.uacing is not ava,i1able to customers which do Dot maintain Monthly Balancing and. Pooling Service. respectively, with UGl. VllJ. INDEMNlFlCA nON: GASMARK shall indemnsfy .nd othorwise bold harmless Customer fer balilllCiag and/or overrun. penalties to the extent that such penalty results ham GASMARKls under/over-delivery of nawral gas for Custoltler's transportation account with UGI. provided that Customer follOW' the Nomination and Scheduling provisions '" forlh above. If. despice tho exercise of r...ooable efforu. GASMARK is UDlble to maintain Customer's deJivery service account: wilbin UGl's tariff tolerance levels, CASMARlt shall have the right to charge CUSlOmer for both co.ts applicable under Section 10 of lilt MNGSA and 3lIY bal",":ing aod/or overrun penalnc' incurred as a result of Customer'! failure to provide timely nonce. IX. oTHER CONDITIONS: A). During the Sales Period. GASMARK sball be Customer's sole supplier of natural gas. B). UGI will include GASMARK's charge$ in Customer's monthly billing Jt2ltement to Customer, unless GASMARK provides notice to tho contrary. C). Customer .uthorizes GASMARK to act as CuslOmer', agen' tor hand1inE all g"" scheduling matters with UGI. BV: GASMARK BV: CUSTOMER: MH Dideetrics, Inc. TITLE: TITLE. Vice PreSIdent &: General Manager DATE: DATE: August 30. 2001 R.y. Dale: Oct"ber 9. 2001 lln\.lldo: " ,--XNlBlT A 10103738504 P.1bd9 ...._. ~ -l- GH5MHRK --- -'--' .- 1'(l.753 D01 (7l7\ 135.-3:165 .~ HPR-01-2004 11:08 . 013/27/2Be3 10: ~J Ju" 27 Cl3 II; 22_ "" ~~.,.I.,A, 1d' ~~ ~~. \t.lJ V' 1.1~6;S~. 3& MH DIE~eCTIC5 · UGI il'lerc" 'S4U"'U: C'I 50. In" J~C' 2S,locn 1; ~={:' i. ~=~ " .l".... ....,""...,.<t> cj) r.......'... ~. '?J / ..,-~........-" . UGI Ener\\y ,ervices. Inc. M,. s.... pi,ke,,", . MH Dielec;ttlCS BOll C ~ount&in S~ MI. Holly Spr"S'. PA 11066 Via hl: (717) 486-5"11 De;rS.m: ",..etn \JCl"nerlD' Sl;IVlceI. Inc.. cftl. Qa~I"ark anJ f(odvLt !ff35.oC = ,. 7ft, j '-, 6(., P zS- ~ K' J' j--- / Wo 'Ire plultd 10 c;MOrm Ibe rolkNIinl 'rrl~cr t b MH Di~lecIf\n (''UastO'net"'') 'BUyer: rwD4 Oilirl.CClrt..:J Sclh:l. lJCl E"c:1'1)' Scrvicc::~, Int. 4ba Qa'lE\ark PfoduCf:"6 Htl.linl'Oil Quantity: 42,000 gross I:l.Uoo!t Pricin.: 50.87001 pC.. pllan. ,1.. .u .ppJic,~Jc .,.. 0' q. ",oil ,.... julie \e, 2003 - pricint Is .ubj... to chal\,e Oern",rag' fe<: C""om" ",II "" ,..rged 5 \0.00 '1\0. . w.i' ,n8 ,,,,,. with I li'ee h..., ror lo.dons/_nload;". T."".' July 08. 200J to July 31. 200l P........." l'IOI 10 daY' Dellv.rr Oeli."..lOOo>!omcr" rac,lily..a COl,m. ,0'''''' 0-1;....<11 in minimum increment>.1 WIO plio... OcIlvcri....11 lit "",.110>'''' 2A hours in 1'1' ,nR '" Mo" Golombo.. o..n..ri< ;,u..ly [lep""""" .. 610_31J-7999. Ex....;.. \37. PkA" ,ien below ..~._lodl>n."'" ...",",en'.." _,. ...",..i...I,.,;. fa..o ."'.62'-llll6. n.. p"".' ......llIlllh. r""imll.mall be full'/ binclnl' ..,d ~.fmCr.hle.. ifill' fac>.iiiilC.....' '" ...l!ilIal S.........y ol.he ._110 ......." to,..., und.,,,, ..!onl pi_ COll''''' m' lmmedill'~Y' ~1l\ct\"cJy, ~~~rp:;'. Rel'on~ Sales Ra,mtmrat1...e UOI en<l"l!Y S.......,l.C. 6"~~ AG~eo 10" ACCEP'ft;n flV (C...... eo): 0....1'1:.: i 111 W... M"",..l,"'f/ rarlo. p, IND' {,utos. 4S.1S ,ilI6l' /.,. r... :IT/Un"., .......I"~..nCI",.,<'. . , \ -- L.AtiiaaT A STATEMENT OF ACCOUNT Mh Dielectrics established the following accounts with UGI Utilities Inc. d/b/a GasMark with the following balances and charges: Acct Type Service to: Balance Service Address G One Mountain St., Mt. Holly Springs, P A / / $126,058.57 Late Fees: Total Delinquent Balan(:e: $ 22,690.54 $148.749.11 EXHIBIT B " n "> c.;';;) t:..'::) -i";'~ ~:.:: ;';t;: o --n =j=! rn;;J1 -r:J!TJ ::00 '.:) I :.j{J ~:~s,~ ,-~5nl ):~ :lJ --< 0', \.! ..- KRZl1f7IC/V & ASSOCIATES All/hollY p. /(r70..... I,' E' . ..It -.nvIC"z, "-squire ohll L. Shearburn, EsqUire PO Box 505 New Hope, PA 18938 (215) 862-4390 Al/orlleJe/or Plaill/iff AI/oriley ID. 23754/26852 ------ ~/GbI/En~;;;-;~;;;;~;--I~;-- a Gasl'1ark ' . Plaintiff ----- ----- l'1h Dielectrics, Inc. Mh TeChnOlogies, LLC ----- Defendant(S) ------ -------- ----- ----- Vs. COurt Of Common Pleas CU~erland COunty C1.V1.l Action lilo. 04-1552 Cv ----- TO THE PROTHOlilOTll!?Y: PRAECIPE To REI" "STATE COl'1PLA.IlilT tbe Kindly reinstate tbe Complaint against the abOVe captioned Civil Act. f 1. On Or an additional By: defendant(S) thirty days. in DATED: JUne 23, 2004 ICKI & ASSOCIATES :~ ~::'~.LL1:tf ~ = .;;- ~- c:: ';;(: N c:> :'::J'" o -n .-1 ::C---, c,"-"-' . \-~ _,-<,I--r'\ -t1C1 :;?\(~) ~'I~, ":./!, '~,f!:~f; ".j ., -,-- .:c~..' .:< -"',,.. 9 c::> en ~ ---- SHERIFF'S RETURN - REGULAR CASE NO: 2004-01552 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND UGI ENERGY SERVICES INC VS MH DIELECTRICS INC GERALD WORTHINGTON Sheriff or Deputy Sheriff of Cumberland County,Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MH DIELECTRICS INC the DEFENDANT , at 1618:00 HOURS, on the 8th day of July , 2004 at ONE MOUNTAIN STREET MT HOLLY SPRINGS, PA 17065 by handing to SAM PICKERING a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Additional Comments --- PICKERING DENIED BEING AN OFFICER. HE WOULD NOT TAKE PAPER. HE WAS TOLD THAT HE WAS SERVED AND PAPER WAS PUT ON COUNTER IN FRONT OF HIM. DEPUTY WAS TOLD TO VACATE PREMISES. Sheriff's Costs: Docketing Service Affidavit Surcharge 18.00 4.44 .00 10.00 .00 32.44 So Answers: ,~ --/' /'}./ _ s J .f~e.:-J -r ~--- j'- R. Thomas Kline 07/09/2004 KRZYWICKI & ASSOC me this loe: day of BY:~J,~. _. {, bt Deputy S iff Sworn and Subscribed to before .:lfJ-o'f A. D. . () ~ ./oAK othonotary . ',7 SHERIFF'S RETURN - REGULAR CASE NO: 2004-01552 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND UGI ENERGY SERVICES INC VS MH DIELECTRICS INC GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, was served upon says, the within COMPLAINT & NOTICE MH TECHNOLOGIES LLC the DEFENDANT , at 1618:00 HOURS, on the 8th day of July , 2004 at ONE MOUNTAIN STREET MT HOLLY SPRINGS, PA 17065 SAM PICKERING by handing to a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Additional Comments --- PICKERING DENIED BEING AN OFFICER. HE WOULD NOT TAKE PAPER, IT WAS PUT ON COUNTER IN FRONT OF HIM AND HE WAS TOLD THAT HE WAS SERVED. DEPUTY WAS TOLD TO VACATE PREMISES. Sheriff's Costs: Docketing Service Affidavit Surcharge 6.00 .00 .00 10.00 .00 16.00 Sworn and Subscribed to before 0:> me this /5'-" day of qu.P. ~l>O'-( A.D. Ckon~ta~ .~ So Answers: -~~~:~e;"f...:,6ii:~..... -r'" . I R. Thomas Kllne 07/09/2004 KRZYWICKI & ASSOC By: A~hJ4~ Deputy She&,(f' NIXON PEABODY LLP Renee F. Bergmann, Esquire Id. No. 85759 1818 Market Street, 11 th Floor Philadelphia, P A 19103 Telephone: (215) 246-3520 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA UGI ENERGY SERVICES, INC. d/b/a GasMark, CIVIL ACTION - LAW Plaintiff. v. Mh DIELECTRICS, INC. Mh TECHNOLOGIES, LLC., Defendant. No. 04-1552 CV DEFENDANT Mh TECHNOLOGmS, LLC'S ANSWER TO PLAINTIFF'S FIRST AMENDED COMPLAINT 1. Denied. The allegations of this paragraph constitute conclusions oflaw for which no response is required and which are deemed denied pursuant to Pennsylvania Rules of Civil Procedure. 2. Denied. Answering Defendant is without suffkient information or knowledge to form a belief as to the truth of the allegations of this paragraph and, therefore, deny such allegations. 3. Denied. Answering Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegations ofthis paragraph and, therefore, deny such allegations. 4. Admitted. R785807.1 - 2 - 5. Denied. Answering Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegations of this paragraph and, therefore, deny such allegations. 6.-13. Paragraphs 6 through 13 are not directed to answering defendant, Mh Technologies and therefore all allegations contained therein ar'~ deemed denied. WHEREFORE, defendant, Mh Technologies, LLC demands judgment against Plaintiff, along with an award of attorneys fees and costs. COUNT II 14. The allegations contained in paragraphs 1 through 13 are incorporated as if more fully stated at length herein. 15. Paragraph 15 is not directed toward Answering Defendant, Mh Technologies and therefore no response is required. WHEREFORE, defendant, Mh Technologies, LLC demands judgment against Plaintiff, along with an award of attorneys fees and costs. COUNT III 16. The allegations contained in paragraphs 1 through 15 are incorporated as if more fully stated at length herein. 17. Denied. Mh Technologies entered into a new mortgage for the purchase of the property in question. 18. Denied. Mh Technologies is unsure how to interpret the Plaintiffs term "active knowledge"; however, Mh Technologies was not aware of Plaintiffs alleged claim. - 3 - 19. Denied. Answering Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegations ofthis paragraph and, therefore, deny such allegations. 20. Denied. The sale price paid was market value for the property in question. By way of further response, Mh Technologies acquired the property in question at a foreclosure sale and pursuant to 12 Pa.C.S.g 5103(6) reasonably equivalent value is presumed to be paid by the buyer, such as Mh Technologies, at such a sale. 21. Denied. Answering Defendant is without suffieient information or knowledge to form a belief as to the truth ofthe allegations of this paragraph and, therefore, deny such allegations. 22. Denied as stated. The sale price was approximately 3.5 million dollars. 23. It is unclear whether the allegations contained in paragraph 23 are directed to Answering Defendant, however, in the event this paragraph is directed toward Mh Technologies, the allegations of this paragraph constitute conclusions oflaw for which no response is required and which are deemed denied pursuant to Pennsylvania Rules of Civil Procedure. WHEREFORE, Mh Technologies demands judgment in its favor and against Plaintiff, along with an award of attorneys fees and costs. COUNT IV 24. Paragraphs I through 23 are incorporated herein by reference and made part thereof as if more fully set forth at length herein. 25. Denied. The allegations of this paragraph constitute conclusions oflaw for which no response is required and which are deemed denied pursuant to Pennsylvania Rules of Civil Procedure. -4 - 26. Denied. The allegations ofthis paragraph constitute conclusions oflaw for which no response is required and which are deemed denied pursuant to Pennsylvania Rules of Civil Procedure. 27. Denied. The allegations ofthis paragraph constitute conclusions oflaw for which no response is required and which are deemed denied pursuanll to Pennsylvania Rules of Civil Procedure. WHEREFORE, defendant, Mh Technologies, LLC demands judgment against Plaintiff, along with an award of attorneys fees and costs. AFFIRMATIVE DEFENSES BY WAY OF FURTHER ANSWER. Mh Technologies, LLC states the following affirmative defenses: 1. Plaintiff's Complaint fails to state a claim upon which relief can be granted against Answering Defendant. 2. Plaintiff's claim is barred due to failure of consideration. 3. Plaintiff's claim is barred by the Statute of Frauds. 4. Plaintiff's claims should be denied in that any damages that may have occurred were caused by the conduct of a third party outside Mh Technologies, LLC's control and for which Mh Technologies, LLC was not legally responsible. 5. Plaintiff has failed to mitigate its damages. 6. Plaintiff's claim is barred by the doctrine ofratJification. 7. Mh Technologies, LLC asserts the affirmative defense that reasonably equivalent value was conclusively paid for the property in question pursuant to 12 Pa.C.S. ~ 5103 (2004). - 5 - 8. The parties have not conducted any discovery. Accordingly, Mh Technologies, LLC reserves the right to enumerate additional affirmative defenses as they become evident in the discovery process. WHEREFORE, defendant, Mh Technologies, LLC respectfully requests that this Court: A. Dismiss the Plaintiffs Complaint; B. Award Mh Technologies, LLC its attorneys' fees and costs; and C. Grant such further relief as is just and appropriate. DATE: 7/2o/at NIXON ~gABg V,LI:P" ) Peter N. Tamposi, Esq. Nixon Peabody LLP 889 Elm St. Manchester, NH 0310 I Attorneys for Defendant, Mh Technologies, LLC " 6 " CERTIFICATE OF SERVICE I, Renee F. Bergmann, hereby certify that on this ZU'~y of July, 2004, I caused a true and correct copy of the defendant Mh Technologies, LLC's Answer to Complaint to be served upon opposing counsel, via U.S. First Class mail, postage prepaid, at the addresses listed below. Anthony P. Krzywicki, Esquire Krzywicki and Associates P.O. Box 505'C".--".--,c::.-.-..-~ New Hope, P A VERIFICATION RENEE' F. BERGMANN, hereby states that she is a Associate of the firm of NIXON PEABODY, LLC, attorneys for the defendant, Mh Technologies, LLC, in the above-referenced matter; that Mh Techologies, LLC, is outside the jurisdiction of this court and verification by one of its officers or its employees cannot be obtained within the time allowed for serving Defendant's Answer to Complaint; that she has read the foregoing Answer and Affirmative Defenses and that the facts set forth are true and correct to the best of her knowledge. information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. DATE: 7/6(tJV ( I / NIX_QllI~~Qf)J"~ _ . \7/;/' " ","-", J ( ~--~-- ,~ Attorney for Ddendant, Mh Technologies, LLC R782919,1 Q c g: "1:)G} rY1F"1 t~ i}': Z ]'. {n, -< ",' r-'1.-:1 <~.~ ~g:C; ;"',...(-, c ~_ ,PC- Z =< "" = C::l ...- ~ ~ [TIp ~~ :1.=1=i r)o ~fT\ S-~ ~ -< ~ r- f',' OJ -0 :x <P. '" w Krzywicki & Associates Anthony P. Krzywicki Identification #23754 P.O, Box 505 New Hope, PA 18938 (215) 862-4390 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA UGI Energy Services, Inc. d/b/a GasMark Plaintiff CIVIL ACTION NO. 04-1552 CV vs. Mh Dielectrics, Inc. Mh Technologies LLC Defendant( s) ORDER DENYING DEFENDANT MH TECHNOLOGIES, LLC'S MOTION FOR SUMMARY JUDGMENT AND NOW, this , day of 2004 after response of the Plaintiff and any argument thereupon, it is hereby ORDERED that Defendant Mh Technologies, LLC's Motion for Summary Judgment is hereby DENIED. BY THE COURT J. IN THE COURT OF COMMON PLES OF CUMBERLAND COUNTY PENNSYVLANIA UGI Energy Services, Inc. d/b/a GasMark Plaintiff vs. Civil Action ~ In Law No, 04~1552 CV Mh Dielectrics, Inc. Mh Technologies, LLC Defendant( s) PLAINTIFF'S KEPL Y TO DEFENDANT Mh TECHNOLOGIES' MOTION FOR SUMMARY JUDGMENT NOW COMES the Plaintiff, GasMark by and through its counsel Krzywicki and Associates, and respectfully requests that Defendant's Summary Judgment Motion be denied. In the alternative, Plaintiff requests additional time to conduct discovery and to amend the complaint. In support of this Reply GasMark would show this Court as follows: I. INTRODUCTION AND STATEMENT OF FACTS This lawsuit is brought pursuant three alternative causes of action, 12 P A C.S. ~51 04 (2004) known as the Pennsylvania Unifonn Fraudulent Transfer Act, Unjust Enrichment, and ( a Third Party Beneficiary. Plaintiff, GasMark during 2003 sold and delivered under written contract natural gas Defendant, Mh Dielectrics, Inc. at its place of business at One Mountain Street, Holly Sprir Pennsylvania. The unpaid balance for natural gas provided is $126,058.57. The Plaintiff alleges that Defendant, Mh Technologies, LLC purchased real estate as One Mountain Street, Mt Holly Springs, P A from Defendant, Mh Dielectrics, Inc on January 26,2004 for below fair market value and upon information and belief that the transfer was in fraud of creditors. It was further alleged in the First Amended Complaint that upon information and belief One Mountain Street in 1997/98 was valued at approximately $7 million dollars and that Defendant, Mh Technologies purchased the property for approximately $3.5 million on or about January 26,2004. As an aid to this Court in determining this summary judgment motion, GasMark offers the following chronology and outline of information contained from public records, un- controverted averments, admissions against interest, and answers to requests for admissions. 1. This is an action by Plaintiff, UGI Utilities Inc. d/b/a GasMark to recover damages from Defendant, Mh Technologies arising out of a debt Defendant, Mh Dielectrics owed to Plaintiff for natural gas and oil supplied to Defendant, Mh Dielectrics at One Mountain Street, Mt Holly Springs, Pennsylvania during 2003. See First Amended Complaint. Attached as Exhibit "A" 2. UGI Energy Services, Inc. d/b/a GasMark (herein "GasMark") is a Pennsylvania corporation duly organized and existing under the laws of the Commonwealth of Pennsylvania with a principal place of business at 11010 Berkshire Boulevard, Suite 305, Wyomissing, PA 19610. See First Amended Complaint. Attached as Exhibit "A" 3. November 22.1985. Mh Dielectrics, was incorporatt:d in Pennsylvania and at all relevant times conducted business at One Mountain Street, PO Box C, Mt. Holly Springs, P A 17605 ,Judicial Notice of Public Records filed with the Pennsylvania Department of Commerce. Attached as Exhibit "B" 4. Defendant, Mh Technologies, LLC, is a Delaware limited liability company doing business at One Mountain Street, PO Box C, Mount Holly Springs, P A 17605. See answer to paragraph no. 4 of the First Amended Complaint. 5. January 10. 1986. Mh Dielectrics, Inc on January 10, 1986 purchased One Mountain Street, Holly Springs, PA for $135,000 from Kimberly-Clark Corporation. Judicial Notice Cumberland County Deed Book Volume R31 Page 510. Attached as Exhibit "c" 6. Mav 10. 1996. Market value of One Mountain Street using the direct sales approach was $1,428,500. The Market value using the Cost Approach was $1,800,000. See Page 2 of an Appraisal conducted for Mh Dielectrics and obtained during discovery. Attached as Exhibit "D" 2 7. January 26. 2004, One Mountain Street was purchased by Defendant, Mh Technologies for $1,200,000 eight years after the property was first appraised at $1,800,000. See Mh Technologies' Answer to Interrogatory No.6 & 9, undated as October 2004. Attached as Exhibit "E" 8. AU2ust 30. 2001. Plaintiff entered into a contract with Defendant, Mh Dielectrics to supply natural gas at One Mountain Street, Mount Holly Springs, P A. See Exhibits attached to the First Amended Complaint. 9. AU2ust 30. 2001. Mh Dielectrics used as its main phone number 717-486-3434 and fax number 717-486-5832. Judicial Notice of Public telephone records. 10. AU2ust 30.2001 to January. 2003. Mh Dielectrics made payments for natural gas. See First Amended Complaint. 11. January 2003 to Julv 18. 2003. Plaintiff supplied natural gas and oil to One Mountain Street, Holly Springs, P A 17605 for which it has not been paid. See First Amended Complaint. 12. January 26. 2004. Mh Technologies purchased One Mountain Street at a private sale from the Debtor "...the real estate was purchased from the Debtor for $1,200,000." See Mh Technologies' answer to interrogatory no. 6 & 9, undated as October 2004. 13. January 26. 2004. Mh Technologies believed that the value of One Mountain Street was $1,900,000. See Mh Technologies answers to request for admission, no. 2 and 3, dated 7/26/04. Attached as Exhibit "F" 14. January 26. 2004. A private sale of substantially all of Mh Dielectrics assets occurred for $3,574,906.46 to Mh Technologies. Which sale did not include One Mountain Drive. The real estate was purchased directly from the Debtor. See First page of the Bill of Sale that was produced during discovery (Attached as Exhibit "G") and See Mh Technologies answer to interrogatories no. 6 (b) and 9 (c). 15. A representative of Mh Technologies verified under 18 Pa.C.S. S 4904 that".. .Mh Technologies acquired the property in question at a foreclosure sale..." See Answer to paragraph no. 20 of the First Amended Complaint. Attached as Exhibit "H" 16. Julv 22. 2004. Defendant's counsel in a Dragonetti Act letter dated July 22,2004 addressed to counsel for Plaintiff stated in paragraph No.2. "Because my client purchased these assets through a non-collusive foreclosure sale, reasonably equivalent valued is deemed to have been paid pursuant to 12 Pa. C.S. S 5103(6) (2004)." See letter dated July 22, 2004. Attached as Exhibit "I" 17. One Mountain Street, Mount Holly Springs, P A 17065 was not purchased through the efforts of a realtor or real estate agent in Pennsylvania. See Plaintiffs Second Set of Request for Admissions, No. 23, propounded on October 13,2004 but not answered 3 as of this date. This fact should be deemed admitted. Attached as Exhibit "J" 18. One Mountain Street, Mount Holly Springs, P A 17065 was not listed for sale with a realtor in any state of the United States during 2004. See Plaintiffs Second Set of Request for Admissions, No. 24, propounded on October 13,2004 but not answered as of this date. This fact should be deemed admitted. Attached as Exhibit "J" 19. Mh Technologies, LLC through its agents, officers, members, promoters or employees had knowledge that Mh Dielectrics, Inc. could not pay its debt to Ameriserve Financial Bank in January 2004. See Plaintiffs Second Set of Request for Admissions, no. 28, propounded on October 13,2004 but not answered as of this date. This fact should be deemed admitted. Attached as Exhibit "J" 20. Mh Technologies purchased substantially all of the assets ofMh Dielectrics and never received a list ofMh Dielectric's creditors. See Answer to interrogatory no. 9 (1). 21. Mh Technologies believed that as of January 26,2004 that the value of the real estate was 1.9 million dollars. Mh Technologies used as its guide the County tax assessment. See Defendant, Mh Technologies answers to request for admissions no. 2,3, dated 7/26/04. 22. After purchasing substantially all assets of Mh Dielectrics, Mh Technologies began to sell and manufacture dielectric paper products. See Mh Technologies answer to interrogatory no. 14. 23. At all relevant times before or after the purchase. \1h Technologies did not obtain an appraisal of the value of One Mountain Street. See Mh Technologies answers to request for admissions No.2, 3, and 4, dated 7/27/04. 24. "All the employees ofMh Dielectrics stayed on to work with the new company Mh Technologies and a few new ones have been hired." See Admission by Frank Riccio employee ofMh Technologies as appeared in The Sentinel on June 13,2004 and admissions of other employees in The Sentinel on February 19, 2004. Attached as Exhibit "K" 25. More than 90% of the employees ofMh Technologies, LLC during January 2004 were former employees of Mh Dielectrics, Inc. See Plaintiffs Second Set of Request for Admissions, No. 13, propounded on October 13,2004 but not answered as of this date. This fact should be deemed admitted. 26. November 2. 2004. Mh Technology uses as its main phone number 717-486-3434 which is the same number used by Mh Dielectrics. See Public telephone records. 27. November 2.2004. Mh Technology uses as its fax phone number 717-486-5832 which is the same number used by Mh Dielectrics. See Public telephone records. II. 4 SUMMARY JUDGMENT STANDARD Summary judgment may be granted in whole or in part, whenever there is no genuine issue of material fact as to a necessary element of the ca.use of action which has been or could be established by additional discovery. Pennsylvania Ruh~s of Civil Procedure, Pa. R.c.P. No. 1035.2(1). Summary judgment may be entered prior to completion of discovery where additional discovery would not aid in the establishment of a mat,erial fact. Gatling v. Easton Corp., 807 A.2d 283, 286 (Pa.Super.2002) (citing Manzetti v. Mercy Hosp. of Pittsburgh, 565 Pa. 471, 776 A.2d 938, 951 (2001). The corollary being that Summary judgment should not be entered prior to completion of discovery where additional discovery would aid in the establishment of a material fact. In such review to determine whether summary judgment should be granted the facts must be viewed most favorably to the non-moving party. Oral testimony alone of the moving party for summary judgment, even if uncontroverted, is insufficient to establish the absence of a genuine issue of material fact. Commonwealth Department of Transportation v. UTP Corp., 847 A.2d 801 (Pa. Comwlth.2004); Penn Center House, Inc. v. Hoffman, 520 Pa. 171,553 A.2d 900 (1989). 5 III. ESSENTIAL ELEMENTS UNDER THE PENNSYL VANIA UNIFORM FRAUDULANT TRANSFER ACT Under P A C.S.A. 5104(a), transfers are fraudulent as to present and future creditors ifthe transfer was made by the debtor: 1. with actual intent to hinder, delay or defraud any creditor of the debtor; or 2. without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor: i. was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonab(v small in relation to the business or transaction; or ii. intended to incur, or believed or reasonably should have believed that the debtor would incur, debts beyond the debtor's ability to pay as they became due. Under 95104, there are two alternative tests for identifying when a transfer is fraudulent as to present and future creditors. The first test under 951 04( a) (1) is that of an intent to hinder or delay or to defraud any creditor. Proof as to the intent to hinder or defraud creditors is the single test ofa fraudulent transfer under 95104(a) (1). The statue offers guidance as to evidence of intent to hinder or delay or defraud a creditor. In determining intent under subsection 951 04(a) (1), consideration may be given to whether; -before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit; -the transfer was of substantially all the debtor's assets; -the value of the consideration received by the debtor was reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred; -the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred. 6 After the moving party offers sufficient evidence to prove an intent to hinder or delay or defraud a creditor under 95104(a) (1), the transaction may be rescinded or an obligation imposed upon the transferee/purchaser. The presumption shifts to the transferee/purchaser that the fraudulent conveyance was entered into in good faith and for a reasonably equivalent value. 9 5108 states in part". , . a transfer or obligation is not fraudulent under section 5104 (a) (1) (relating to transfers fraudulent as to present and future creditors) against a person who took in good faith and for a reasonably equivalent value. " Good faith on the part of the transferee/purchaser should be established in accordance with the purposes of the Pennsylvania Fraudulent Transfer Act. According to the Committee Comments (1993) concerning the Pennsylvania Fraudulent Transfer Act, the purpose of this chapter is to protect the estate of a debtor for the benefit of the lmsecured creditors. The second prong under 95108 is evidence submitted by the transferee that the transfer was for reasonably equivalent value. The statute describes reasonably equivalent value as a process by which the sale occurred rather than a dollar amount. A transfer is deemed to be for reasonably equivalent value when the transferee purchases".. .an interest of the debtor in an asset pursuant to a regularly conducted, noncollusive foreclosure sale or the exercise of a power of sale for the acquisition or disposition of the interest of the debtor upon default under a mortgage, deed of trust or security agreement or pursuant to a regularly conducted, noncollusive execution sale." 12 PA c.s. 95103 (b). According to the Committee Comments the intention ofthe statue was to make the test "purely objective." However, even if the sale is conducted under the process identified under S5103 (b), it will not be deemed a sale for a reasonably equivalent value if the process was tainted by collusion or when the sale was not part of a regularly conducted execution sale. 7 The second test under ~5104(a) is under ~5104(a) (2) and it is independent of proving intent. The proof required of the moving party is objective and it is to show that the transfer was not for a reasonably equivalent value plus under ~51 04(a) (2) (ii) that the debtor did not have sufficient assets to conduct business. IV. ESSENTIAL ELEMENTS UNDER UNJUST ENRICHMENT Material elements of unjust enrichment are: . . . benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits, under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value. . .. Where unjust enrichment is found, the law implies a contract,. .. which requires that the defendant pay to plaintiff the value of the benefit conferred. Schenck v. K.E. David. Ltd. 446 Pa. Super. 94, 97-8,666 A. 2nd 327,328-9 (1995). V. SUMMARY OF THE ARGUMENTS A. Fraudulent Transfer The essential elements of a prima facia case of a Fraudulent Transfer has been shown: I. The sale and purchase of substantially all of d,ebtor's assets occurred on January 26,2004. This included all real estate and substantially all other assets. See Mh Technologies answer to Interrogatory No.9 (a). The amount of assets purchased were so significant and substantial that the purchaser was able to conduct the same business as was conducted by Mh Dielectrics at the same location with the same employees and even the same telephone number and fax number. 8 2. Reasonably equivalent value as defined as a process did not occur because there was a private sale of the real estate. One Mountain Street was purchased directly from the Debtor and not as part of "regularly conducted, noncollusive foreclosure sale or exercise of a power of sale for the acquisition or disposition the interest. .. upon default under a mortgage, deed oftrust or security agreement or pursuant to a regularly conducted, noncollusive execution sale." 12 P A C.S. S5103 Mh Technologies purchased One Mountain Street at a private sale from the Debtor See Mh Technologies' Answer to Interrogatory No.6 & 9, undated as October 2004. 3. The sale of substantially all assets of the Debtor was collusive and in bad faith. The actions of the Debtor and Mh Technologies are suspect and may be the basis for a trier of fact to conclude that the transaction was collusive. The real estate was not sold at a public sale. The property was not held out for sale through any real estate agent in the United States. The property was not sold for even the appraised value let alone the market value established in 1996. All of this occurred with full knowledge by the transferee that the Debtor was insolvent. Knowing that the debtor was insolvent gave Defendant constructive notice that creditors would need to be paid out of the equity from the sale of its assets. The Debtor walked away from its debts to the unsecured creditors with $1,200,000 from the sale of the real estate. The transferee obtained an operating business, $700,000 less than the county assessed value. See Defendant Answer to Interrogatory No.9 dated as October 2004. Mh Technologies believed that the value of the real estate was $1,900,000. See Mh Technologies, Answers to Request for Admissions No.2, 3, dated 7/26/04, 9 4. The Debtor was insolvent and discontinued his business operations after the sale. 5. The Debtor intended to hinder and delay Plaintiff from the collection of its lawful debt. The following actions were part of the intended consequences of the transfer which are circumstances identified in ~51 04(a) (1), as proof of an intention to hinder the payment of debts to unsecured creditors: -before the transfer was made or obligation was incurred, the debtor had been sued or threatened with suit; -the transfer was of substantially all the debtor's assets; -the value of the consideration received by the debtor was not reasonably equivalent to the value of the asset transferred or the amount of the obligation incurred; -the debtor was insolvent or became insolvent shortly after the transfer was made or the obligation was incurred. 6. Defendant has made inconsistent statements during the discovery process which inconsistencies should be presented to the trier of fact as evidence of credibility. In answer to paragraph No. 20 of the First Amended Complaint, Defendant Mh Technologies states that it"... acquired the property in question at a foreclosure sale..." While in answers to Interrogatory No. 6 & 9 Defendant, Technologies answers, "the real estate was purchased from the Debtor for $1,200,000." 7. The presumption has shifted to Defendant to show good faith and an affidavit (that the Defendant did not intend to defraud or hinder the creditors) or oral testimony ofthe moving party is insufficient to establish the absence of a genuine issue of material fact. Commonwealth Department of Transportation v. UTP Corp., 847 A.2d 801 (Pa. Comwlth.2004); Penn Center House, Inc. v. Hoffinan, 520 Pa. 171,553 A.2d 900 (1989). 10 8. Plaintiff on the other hand has presented facts sufficient to establish bad faith on the part of the Defendant/Transferee: a. Through the contrary statements made by the defendant as to a material issue in this case namely, as to whether the real estate was sold at a foreclosure sale or a private sale; b. Purchasing the real estate for $700,000 less than the appraised value; c. Purchasing the real estate for significantly less than the appraised market value of 1996; d. Constructively purchasing Debtors business for $700,000 less than the assessed value; 1. by purchasing substantially all of the assets of the debtor, ii. by hiring in January 2004 more than 90% of Debtors employees, while knowing that the Debtor was insolvent, 111. by manufacturing and selling the same products as Debtor, iv. by conducting the same business as Debtor with the same phone and fax numbers, v. by hiring all employees of Debtor, vi. by knowing that the assessed value of the real estate was $700,000 more than the sale price and not requesting information about the creditors. In summary the facts outlined in this Reply would enable a trial judge to find as a matter of fact that reasonably equivalent value was not deemed transferred between the parties, after which finding the court may consider whether fair consideration was paid. When a creditor establishes that the debtor is insolvent the burden shifts to the transferee to establish that the debtor received fair consideration for the conveyance. Coscia v. Hendrie, 629 A.2nd 1024, 427 Pa.Super. 585, Super. 1993, appeal withdrawn 644 A.2nd 1199, 537 Pa. 662. Fair consideration is a material issue under the facts outlined and it is consistent with the purpose of the Pennsylvania Uniform Fraudulent Transfer Act to protect the estate of a debtor for the 11 benefit of the unsecured creditors. Facts have been outlined which viewed most favorably on behalf of the non-moving party establish as a matter of fact that One Mountain Street was sold for less than fair consideration. The real estate was transferred to Defendant, Mh Technologies in January 2004 for $1,200,000 which is $625,000 less than the appraised value of eight (8) years earlier and $700,000 less than the assessed value determined the county tax assessor. B. Uniust Enrichment The essential elements of a prima facia case of Unjust Enrichment has been shown: 1. A benefit was conferred upon the defendant by plaintiff. The price paid for One Mountain Street would have been higher if the debt to Plaintiff would have been paid or provision for its payment would have been made. 2. The Defendant appreciated the benefit. The defendant knew that the Debtor was insolvent and could not pay its bills other than from the sale of its assets. 3. It would be inequitable for the defendant to retain the benefit of purchasing real estate in January 2004 for $1,200,000 which was assessed by the county for $1,900,000 and whose market value in 1996 was $1,428,500. This court is asked to take judicial notice of the significant escalation in real estate values since 1996 at which time the property was appraised at a minimum of $1 ,428,500. VI. CONCLUSION Based upon undisputed facts, GasMark submits to this Court that Plaintiff has presented facts to support the material elements of its claim under, 12 PA C.S. S5104 (2004) known as the Pennsylvania Uniform Fraudulent Transfer Act and Unjust Enrichment. 12 WHEREFORE, PREMISES CONSIDERED, Plaintiff, GasMark respectfully requests that Defendant's Motion for Summary Judgment be set for hearing and that following such hearing this Court sign an Order denying summary judgment. GasMark also requests such other and further relief to which it may show itself justly entitled, both at law and equity including but not limited to additional time for discovery and to amend the complaint. RespectfulJ'y submitted, KRZYWICKI & ASSOCIATES 13 EXHIBIT A In the Court of Common Pleas of Cumberland County, Pennsylvania UGI Energy Services, Inc. d/b/a GasMark Plaintiff vs. Civil Action - In Law No. 04-1552 CV Mh Dielectrics, Inc. Mh Technologies, LLC Defendants FIRST AMENDED COMPLAINT NOTICE You have been sued In court. If you wish to defend against the claims set forth in the following pages, you must take action within twenty (20) days after this complaint and notice are served, by entering a written appearance personally or by attorney and filing In writing with the court your defenses or objections to the claims set forth agalnst you. You are WARNED TP~T IF YOU FAIL TO DO SO ~HE CASE ~~Y PROCEED WITHOUT you and a judgment may be entered agalnst you by the court without furtjer :1otice for any mo:;e): clalmed in ~he compl.aint c:- :o~ a:-:y o:..he~ clalrr. Cr rellef requested by the plal:1::::.f:. You may lose m8~e)r or properry or o:..her rigt:s i~p8r~ant to you. YOU SHO:';LD T1-_,:E THIS PAPER TO YOUR ::..J-,';YER .~T ONCE, IF YOU DO NOT HAVE A LAWYER OR CJlJ-..TNCT A?FOR::; ONE, GC TO OR TELEPHCNE THE OFFICE SET FORTH BE~OW TC FIN~ OUT WHERE YOU CAN GET LEGAL HELP. Cumberland County Bar Association 2 Liberty Avenue Carlisle, PA 17013-3387 (717) 249-3166/ (800) 990-9~08 In the Court of Common Pleas of Cumberland County, Pennsylvania UGI Energy Services, lnc, d/b/a GasMark Plaintiff vs. Civil Action - In Law No. 04-1552 CV Mh Dielectrics, Inc. Mh Technologies. LLC Defendant(s) FIRST AMENDED COMPLAINT 1. This is an action by Plaintiff. UGI Utilities Inc. d/b/a GasMark to recover damages from Defendant arising out of a debt Defendant owes to Plaintiff by virtue of natural gas supplied to Defendant. .., UGI Energy Services. Inc. d/b/a GasMark (herein '"GasMark") is a Pennsylvania corporation duly organized and existing under the laws of the Commonwealth of Pennsylvania with a principal place of business at ] JOO Berkshire Boulevard. Suite 305. V'/yomissing. PA 196] O. 3. DefendanL 1\1h Dielectrics.. Inc. is a Pennsyl\'ania corporation doing husiness at One Mountain Street. PO Box C. Mt. Holly Springs. P A 17605. 4. Defendant. Mh Technologies. LLC. is a Delaware limited liability company doing business at One Mountain Street. PO Box C. Mt. Holly Springs. P A 17605. 5, At all times relevant hereto. Plaintiff was engaged in the business of furnishing & supplying natural gas. COUNT I GasMark YS. Mh Dielectric. Inc. 6. Plaintiff entered into a contract with Defendant on or about June 27. 2003. Attached as Exhibit A is a copy. 7. Defendant made payments for gas under the terms of agreement. 8. Plaintiff supplied gas to One Mountain Street. Mt. Hol',y Springs, P A 17605 for the benefit of the Defendant. 9. At the present time. Defendant's account is in default and has an outstanding balance due and owing Plaintiff as reflected on the attached Statement of Account which contains information taken directly from Plaintiffs original business records. and which includes the unpaid balance and all appropriate debits. and credits. and which is attached hereto and marked Exhibit B, incorporated herein by reference and made a part hereof. 10. The natural gas \\'hich \\'as pro\'ided by the Plaintiff to the Defendant aforesaid. was received. accepted. and utilized for the benefit of said Defendant. ] ] . Defendant is in default of its obligation. ha\'ing failed to make the payments as they became due. ] 2. Plaintiff made demand on Defendant to repay the sums then due and owing to Plaintiff. but Defendant has refused and continues to refuse to pay Plaintiff. 13. Defendant has been unjustly enriched by accepting service without full payment. WHEREFORE, Plaintiff demands judgment against Defendant for damages including costs, prejudgment and post judgment interest and attorney fees as follows: Amount Past Due: Attorney Fees: Court Costs: Service Costs: TOTAL $148.749.11 $ 17.500.00 $ 55.50 $ 150.00 $166,454.61 COUNT II GasMark VS. Mh Dielectric. Inc. Quantum Meruit 14. The allegations contained in paragraphs 1 through 13 are incorporated herein as if fully stated. 15. Defendant recei\'ed and used during the course of its business. natura! gas and oil supplied by the Plaintiff and has not paid for the gas and oil supplied. WHEREFORE. Plaintiff demands judgment against Defendant for damages including costs. prejudgment and post judgment interest and attorney fees as follows: Amount Past Due: Attorney Fees: Court Costs: Service Costs: TOTAL $148,749.11 $ 17,500.00 $ 55.50 $ 150.00 $166.454.61 GasMark vs. Mh Technologies Third Party Beneficiary to a Fraudulent Transfer (12 Pa. C.S.A. sec 51 04} 24. Paragraphs 1 through 23 are incorporated herein by reference and made part thereof. 25. Upon information and belief the transfer was in fraud of creditors. 26. Title to One Mountain Street. Mt. Holly Springs. P A was transferred to Mh Technologies to hinder and delay Plaintiff a creditor of Defendant, Mh Dielectrics Inc. 27 Mh Technologies LLC benefited from the fraudulent scheme. WHEREFORE, there is now due and owing from the defendants to the plaintiff the following sums for which plaintiff demands judgment against the defendants: Amount Past Due: Attornev Fees: Court Costs: Service Costs: TOTAL $148.749.11 $ 17.500.00 $ 55.50 $ 150.00 $166454.61 Respectfully submitted, Krzywicki and Associates DATED: June 9. 2004 By: Anthony P. Krzywicki POB 505. New Hope, PA 18938 215-862-4390 Attorney for Plaintiff Attorney I.D. 23754 VERIFICA TION I. John Pesola. an employee ofUGI Energy Services. Inc. d/b/a GasMark. being authorized to do so. verify that the statements made in the foregoing pleadings are true and correct to the best of my knowledge, information and belief. To the extent any averments therein are inconsistent in fact. I have been unable. after reasonable investigation. to ascertain \vhich are true. but I have knowledge or information sufficient to form a belief that one of them is true. This statement is made subject to the penalties of 18 P./\.. C.S. Section 4904. relating to unswom falsifi~ation to authorities. UGI Energ) Services. Inc. d/b/a GasMark " (. I ./ Dated: 0: I ( Ie L. BY: ,~ // -?? ~--- , . J n Pesola Credit Acco1l11ling HI~-U~-~~U~ l~'L~ UH~ '1'""1r-::r t).l 0__ r -,d=.,Ll~ GASMARK MASTER NATURAL GAS SALES AGREEMENT NO. D5-101250-UGI ("'CONTRACT'') DATED November 1, 1997 Tne Contract is between UGI Energy Services, Inc. (CASMARIQ, and M.IL Dideetric. ("Customer"). also referenced herein IlS "Pun.y' or collectively as "Puties' This Coctnsct mcorponltes all tramnction-s;:JCCific Confirmation Agreements, which shall take the fonn &ubsJantially set forth in Appendix . A" hereto I ~alure or Tnmsac:tion: CUlltom:l" lU1d CASMARK respectively agree to purchase and sell Firm or Firm Recan naturlll gas supplies (gas) pursuant to the ternS oflhls ConlTaot and Confinnauon Agreement(s) whic,h shall mean that, unless excused hy an =t of force majeure or (in the CllSe of Finn Recall gAS only) a Recall Event, Customer must purcha!e, and GASMARK musl scll, the; Conlnlct QuantJty specified in Section J. RecaU Event shall mean II period during whie:h the primary holder of pipeline CllpllClty used by GASMARK to deliver gal> to Customer has eXefelsed its right to USe: the cnpacity. 2 Contne! Term and Sllles Period(i)! The effecuve term of thIS Contract shall commence with the above date, and shall continue until a Party receives \~rine:: notice of temUrL1l1on from \he other Party specifying II ternllnlllion date that is BO CArtier than 90 days a1tC' lhe da1.t of the written notice Notwithltanding such notice, howner, thi. Master Contract .haD remain effecti'Ve for the duratioa of any and .11 Sales Perind(s) specified in the ConflnllariOll: Agreement(s). 3 Quanti!)'; GASMARK shAll tender ior delivery' to Customer, and Customer must acc<;pt for r:.:ce:pt from GASMARK, the Conlrllct Quantil)' specified in the Confirmation Agreemcnt(J) 4. Contract Price: For qua...tJllcs te-ndered for delivery. Customer s.hall pay CASMARK the Contr1l.Ct Pnee specified In th~ C::mfumauon Agreement(s), which shall !'l:imbUfBe GASMARK for all applicable taxes for wluch the taxable IDCldent takes place prior to the Point of Dcliv::ry. In addlllon, CuStomer shall bear responsibIlity ior the payment 0; alllAXcs applicnble to such gll$. Ulcluding but not l.uruled to sales, use., ':Tm3fer. value or property, g;ross receipts or cn:::rgy taxe5 for whIch the tAxable Ulc:dentllnses upon or after the point of dellvc:ry. and any and all neW taXes which :,ccon:,c applicable after the date oftlu~ Maslc' Cont:'aCt. IfGASMARK IS resporunble for collection of such taxes, Cuetomer shall reImburse GASMARK for the full amnunt 5 QualiIJ, Prruure., and M.eastlnllDL.td; Gas tJ:nde:-t.J for delivery shall meet All quality find pressure specificatIOns required by Cu.:;tomcr' s Tran"portcr\il and shall be meascred hy Customer's Tnmsporter at the ?cmt ofDe;1Vef}' 6 Title. Ponell'sion and Control: Tille to ar.::! nak of itlSS of all glls tendered for deb'ery sh.i:.ll pass Ie Cust.omer upon receIpt at the Fomt of Delivery GASMARK W;\rrants that It holds tItle lo the gas. or has the nght to sell the gas, :It the Poml 0: D.:li\'ery ane! thut the tl-Us IS fr~ from hens and ad\':::rsc claims of any kind. GASMARK sllallmdcmnif)' Cuswmer agall11<' un]' lien, ;md claIms an SIng WIth respec: to the liUc to. or :t.> n~t to sel!, such gas Ie Custllml.-r. 7 Tnuupomtion ~ and (hcrruu; Any cha:-ge tm~sed hy a Tr.ms?orter due 10 an unexcmed Imoalance or !ilijurc tu u:nder or Ucccp1 the Conlr:l.ct Qwlnllty for dehvery shall be ?lud by th:; Party causmg suc.'J Imbalance or fliilun:. A Ptl~ shall noufy the othe;- PllI'ly ?T=ptly after becorrung Bw:J..'"e that such an 1mbHlllnt:<: or fllilurc bas occurred or IS likely to acct::, !l!1d both pnrtJes shall U~e reasonahle efforu (0 Ct.:.T'! the problem 8 Billinl!; and Pa~rs'It; All amounts d~ h....'"l"t:UIldc:- shall be ptud wlthl.n 1 () days of the datI: of the l:lVOlce. Customer snai: )"lBY GASl'tIARK by wIre tTansfc:- to the follOWIng Bunk AccO\:%lt: Mellon Bank N A., Plltsburgh, P A, Aecounl #016-7425. ABA #043000261. or by check 10 UOI Utilttles.Inc. P.O 30x : 3009. Readmg. PA 1 9tS 1:-3009; Atm Accounts Recci,'able .Au1y urrpnid a.'1lOWlts shall acc:--x int:rest from tile due d:Jte at the rate which is the iesser of 1 112% per month or thl: maximum Illv..full'llte. Upon 5 days prior wnttcl nooo:: 10 Customer. GASM-\RK muy cUI1ail dehvcnes if 4IJ amount due IS not received when dUt: or IfGASMARK has a re2lsonBolr =-= that Cuslornl.:r is no lonser creditworthy. Dehvenes may not be curtailed \\nerc Customer proVIdes \'VTlUen evident:<: of a good faith billUlg dispute and PllYS the undIsputed amount 9 Force Majcl.Jre: Exce;"t for Cl1-~tomer' s pa}1nenL obligation. neither ?my shall be liablc [or [aiJU1c of performance due t.."\ Ci\\l~CS beyond Its NaSonnble control (force tn2.Je~), such as acts oi God, acts of the olhr Party, lIets of CIvil or milil.llry :JuIhority, fV-:S,lllbor slrikes :and disput~, flood!, free:zlDg of wells or lines of pipe. cpidcnucs. Wllr or riot. Cwtllilmen! of firm Lnln:Ipor1Ution, ehl.lngc:l in law, or other like occurrence. A Pany claiming rnability due to force majeur-c must proVide the other Party WIth prompt nollce statmg the IUSOO for it! inability, and mu:;t make l"ClI8onAble effon.$ LC promptly resolve such inability to perform. rmaneillllnablhty to pcrlonn alone shall not relieve a Party of its obligation I" perfonn. Refusal of a Pllrty to accede to demands of labor shall not deny that Party the benefits of tlus provision. o~/(n-l,(';r EXH'.IBiT A~ ,- . L':- ~_ H!'-f'-Ol-.::~U...j 11:8.... l.JH::'J'J""'1~t-, b.l. G-.-: f -.Jd:,u"'; ua.:t!T.Lnn.n. MASTER NATl _"L GAS SALES AGREEMENT NO, DS-l"-_.:iO-VGI ("CONTRACT") DATED November 1, 1997 10. FIIilun: tv DelinrlAccepC . E:sc:IuJive Remedy: If for an unexcused reason either ?arty fails to pcrfonn its obligation hereunder-to Imder for deliver (in Ihe case of GASMARK) or accept gas tendered for delivery (in the case of CU3tomcr). the olba- Party's c:elusi,,'C remedy shall be II) in the case of GASMARK failure. the positive difference. if any. between the price Customer paid for replacement supplies Md the Conlrllct Price, multiplied b}' the qUlUltlty of gas GASMARK failed to deliver; or b) in the case:: ofCusLOmc:r' ~ Cailun:, the pOllitive di1I'crenee, if any, between the COntrllCl Price aud the price GASMARK obtAined from II n:placcman market, multiplic:d by the quantity of gas not accepted by Cust()mer. A Party shall acl n:asonably to mimmize its damages which :Jhall include but not be limited reasonnble efforts to obtain replacement supplies or a replacementmlll'kct. where applic:nblc. In the event that SUl:h reasonable efforts are unsuca:S5ful or only puTtly successful, the Party failing to peri'orm shall be responsible for ll!l amount calculated by muhiplying the Cantrad. Price times the quanti!}. of gn.~ for which thc other Fnrty failed to obtain a replacement supply or replacement marl:e~ whichever applicable. in addillon to llny amounts clllculaled with regpcct to replacement supplies or replacement market(s). l.lMIT^TION OF DA..\.1AGES: IN NO n-:STANCE A."l.D FOR NO PURPOSE SHAJ..L GASMARK BE LIABLE TO CUSTOfvIER FOR PNi SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, REGARDLESS OF WHETHER A CLAIM IS MADE OR REMEDY IS SOUGHT IN CO}"'"ffiACT, TORT. OR 01HERWISE 11. Notice,; Noticc(s) rcqwr.:d hereunder shall be ci:cmcd prop~l>' made iftclecoplcd. delivered pe:-sonally or sent by regular or certified mail to the follClwlnB llddresses or fncslmile CUJwmer' ! ReprexentatiH:: GASMARK'. Reprexentatin Mr. Ron Kunt7. M E ;)jclcctncs 1 Mountain SlIcet P.O. Box C Mt. Holly Spring,. PA 1760)-(J:~O UGl Energy Ser.,ces, Tnc II DO Berkshire Blvd Wyom..issmg, P A J 961 0 Telephone' (71 i) 486-).B4 Teic?honc. (610) 373-7949 800 ';27-85015 r:wsimlle (610) 374.42&8 Facsimile (717) 4F.6-S&32 12. Miscrllaneoux: nus ContTllct;;haJJ be COIl5l!"lla:l m a=rdance wiL'J the laws of the Co:n:nonwealth cf?ennsvlnma wlthoul recourse to provisions gm;c:m:ng chOIce of lay. Upun wnllcn notice to the otncr Pa....ty. Customer or GASMARK rrny as<;lgrJ llus lI-1a.ster Con::acllllld r::lal.Cd Confirm.:lllOO ~en!(b) to u corporate affihat.e or ~':Jccessor Any other It.'lslgJL-nc:nl shall requIre tlle prior written consent of the other Par.\' AGREED ?-J.m ACCEPTED THIS AGREED AND ACCEPTED THIS _dayof_, 199_ 19U, day ofNoVf:mber. 1997 CUSTOMER: M.H. Dielectric! GASMARK .B.Y~ B,-: Title: Title: Viee PreSident OE!9'-UGI 2 EXH.JSI'Y A r.G-J ...._ H~?-O~-200~ l::U~ G,-6"1':"F.:f-.. DIL(:;7~d:J8~ MASTER NA TI. . J, GAS SALES AGRLEMENT NO. DS-h, __.>O-UGI ("CONTRAcr~ DATED November I. 1997 FRQ volumes properly delivered or tendered [OT dclivery by GASMARK. Section 10 oftbe l'viNGSA shall determine GASMARK's remedy for Customer's failure to accept FRQ. BALANCING: GASMARK sball cxe~ise reasonable efforts to ensure that Custclmer'& UGI delivery sefV1ce account does not incur balancing andlor overrun penalties. Reasonable efforts shall include but not be limited to balancmg Customer's usage levels with thc usage levels of other &inUlarly situated Customers ('the Pool"), whic.h will enable GASMARK to balance Customer's gas deliveries with comph:mcnwy USllge requirements of other customers ill the Pool ("Pool Balancing'). Customer acknowledges that Pool Balancing enables GASMARK to rely upon e.-panded balancing tolerances of the Pool, which, under most conditions, will enable GASMARK to avoid balancing andlor overrun penalties 011 behalf of Customer and establish a replacement market for gas volumes properly delivered by GASMARK bur no~ accepted by Customer Pool Balancing is not available 10 customers winch do nOI maintain MontllJy ~alancmg and Pooling Servic~. respectively. with UGI. INDEMNIFICATION: GASMARK shall indemnify and otherwise hold harmlcss Customer for balancing Ilndlor overrun penaltIes to the extent thal such penalty results from GASMARK's under/overdelivery of natmal gas for Customer's transportation account wIth l.;GI. provided chat Customer follows the Nominatlon and Scheduling provisions set forth above. If. despite the exercIse of reasDnable efforts, CASMARK IS unable to maintain Customer's delivel]' semcc accoun~ wiuun UGI's tariff tolerance levels. GASMARK shall ha've the nght to charge Customer for both costs applicable under SectJon lOaf the MNGSA lUld any balancing and/or overrun penalties incurred as a result of Customer's failure to provlde timely notice OTHER CONDITIONS: 1) During the Sales Period. GASMARK shall be Customer's sole supplier of natural gas 2) UGI will include GASMARJ('s charges in Customer's monthly bIlling statement to Customer. unless GASMARK prOVIdes nOlice to the contrary 3) CUSlomcr a1,lthorizes GASMARK to act as Customer's agent for handling all gilS scheduling matters WIth UGl. CUSTOMER: M, H. Dielectrics GASMARK BY: BY: TITLE: TITLE: Vlce President DATE: DATE: November 19. 199-' 0S/97-UCI EXH.1BiT A~ F-.u::.~ :~ ~~~-0~-2aJ~ ~~:C~ GrlS-'l-tr::r-... 618'::;730:;8.. MASTER NATl .L GAS SALES AGREEMENT NO. DS-lb.......O-UGI ('"CONTRACT'') DATED November 1, 1997 APPENDIX "A" Confirmation Agreement No. 1 VGI System, Interruptible, Markel, Customers This Confirmation Agreement is between UGI Energy Services, Inc. ("GASMARK") and M. H. DiclectriC8 ("Customer") (together. tbe "Parties"), and is subjc::t to the tenus and conditions of a certain Master NatUral Gas Sales Agreement (MNGSA) between the Panics dated November 1. 1997 (Contracl No. DS-I0125O-UGn. H a conflict exists between tbe provisioDS of said MNGSA and this Confirmation Agreement, the provisiol1s of this Confinnatiol1 AgrecmeDt sball ~overn, NA TURE OF SERVICE: GASMARK's obligalJon to debver and sell. and CustJJmer's Obligation to accept and purchase. Customer's Full Requir:ments Quantity (FRQ) of natural gas on the UGI Utilities, Inc (VGl) distribution s)''Stem IS finn subject to recall (Finn Recall) SALES PERIOD: One year period of November 1. 1997 to October 31, 1998. TI::is sales penod shall uulomatlcall)' extend for subsequent one yw periods. unless Customer provides wri~ notice of canceUation to GAS MARK 90 days prior to !.he expiration of any such one year penod. At the end of any such one year period. should pricing. Quantity, period and de Ii \'el)' terms not have been established for tIle subsequent one year penod, GASMARK WIll prOVide seMc::: based on GASMARK's current market rate for n:lIural gas at tht: time of delivery. CONTR.4,CT QUA.N'TITY: :E.B..Q - Customer's Full Requirements Qu,mut)' CO!\'TRACT PRICE; rRQ . Priced at markel rale for gas delivered 0,' GASMARK at the point of delivery Unless notified by GAS MARK. the demand cosl of such tIansportation. if llny. IS charged to Customer by UGl GASMA..RK' 5 and Customer 5 fespectlve responSibIlity for the payment of L<tXes IS unchanged from that staled under the MNGSA. POINT OF DELIVERY: FRO - The re:elpt pOinllnto Tex:ls Eastem Trans.rrussion CorporatJon or otll::~ mterstate pipeline. as aIlo::ated by UGI or UGI City Gat::: NOMINATION AND SCHEDULING: Each month, GASMARK will prOVIde Cuslomer with.a Montilly Nommlltion Request Form deSignating the price It will charge for FRQ gas as delivered to the UGI City Gale. On thiS monthly fonn. GASMARK shall also include an esUlTh1te of the Customer's FRQ On 1h.is monthly form. GAS MARK shall also include FRQ in both the UllilS ofDth(~City Gate and Mcf@Meter (Thousand Cubic Feet measured at the Customer's meter) On or befor~ the date specIfied on the Monthly Nomination Request Form. Customer must noufy GASMARK. in ....Tiung. WIUl any chaagcs to GASMARK s FRQ. If Customer fails to prOVIde GASMARK WIth ~llch wnlten cbane:cs in n timely manner the FRO reflected on the month Iv funn pro.'ided bv GAS.MARK shall be deemed to h~vc been acccoted bv Customer. GASMARK shall schedule and deliver Customer's FRQ on a daily, ratable basis over the delivery month (Scheduled Quantity) Customer may make prospectJVc changes to Customer's Scheduled Quantity If It expc:nenccs or anuclpates a significant or abrupl change In Customer's gns usage. To change Customer's Scheduled Quantity, Customer must provide GASMARK with timely, written prior notice oflhe r~'ised Scheduled Quanllty. RCVlSioDS to ScheduJed Quanliues do not relieve Customer of Customer's obligation to accept and purChase any portIOn of Customer's 0S/07-UG: 3 'EXHI.BIT A F. [1.. ~ ~~R-a~ -~'J0.J .... .-..c _ ~ . L._' G~sr'l~~j." 61<3'::';":::;85121.. GASMARK MASTER NATURAL GAS SALES AGREEMENT NO, DS-IOI250-UGl (.CONTRACT") DATED November I, 1997 APPENDLX "Aft Confirmation Agreement No, 2 Inremlptible This Coniirmation Agreement is between UGI Energy Services, Inc. ("GASMARK") am! ;\-1. n. Dielectrics C'CUstomer") (together. the "parnes"), and is subject to the terms lllld conditioDS of a certain Master Natural Gas Sales Agreement (MNGSA) between !he Parties daled November I, 1997 (CODtract No. DS-101250-UGI). J1 a cont1ict exists between the provisions of said ~GSA and this Canr1l'111ation Agreemem, the provisions of Chis Confirmation Agreement shall govern. 1. NA'l1JR.E OF SERVICE: G-ASMARK's obligation to deliver aud sell. and Customer's obligation 10 acc..-pl and purchase. Cu!tomer's MoD1hly Base Load (MEL) of natunl ps on the UGI Uauries" Inc. (UGI) distribution system is firm. subject to recall (Finn Rec;ill) only by VGL GASMARK's obligation to :ieljve: and sell, and Cuslomer's obligation 10 accept and purc:!l.ase, Customers lncremeclAl Contrac[ Quantity (lCQ) on the UGI distribution system is firm subject to recall (F:nn Recall). During a recall event, GASMARK and Customer, respec:lvely. sh.all Dot be obligated [0 ~liver or accept any yolw:ces under this agreement. but Customer shall remain responsible for an amount C21culated pursuant to SecU01l 10 of the MNGSA for Customer's failure to accept all or any poruon of CustOmer's MBL volmne$ for! particular mond:. II SALES PERIOD: November 1. 2DOO through March 31. 2001 III. COi"lTIlACT QUANTl11': MBL i Qu~tjt-;-a~Poj;~r DeUvery 1- Dtb @ G:irl I - --- -.. --. "'-" "- ------------.-----: I ~ove~~:_ ~OO~_ . _ ___. .___ _...__.. ~Q.OQ.___ __, I December 2000 4000 .-.-----.----- Ja:1~~_2~9L 4OCO Fe bflliiI)' 200 I I 4000 : : M~~b 2~O~.~-.~.-_- ~~~=--_ _~~ -_~_. 1- _4000--] K.Q - Customer's full requireme::lt:; In excess of Customer's rauble MBL IV CONTRACTPRlCE: i\l BL: -- "-- - ---- Lock-In Price at Point of Delivery lVffiL i . . __ .___. . _'.___0-0__ n._L~~ptE @. G~~f).J November 2000 ilirougb J1UIl.W"f 2001 J 55.800 ' :~~~~~~oC--~ -----.-. -- ;'---S~~--- '~j Note: Price '= NYME:X + SO.OS/dlJz. NYMEX Triggers set for November through March :Z001 @ $4.75, Buy stops fo,. February set @ $5.75, ICQ: Priced at market rate for gas delivered by GASMARK at the point of delivery. In addItioD. for MBL volumes, Customer also shall reimburse GASMARK for allY applicable charges incurred tI'aIlSportiDg gas frOto the POiDf of Delivery to We UGI Ciry Gale. For MBL and ICQ, unless notified by GASMARK, the demand eost of svch a-ansporution. if any, is charged to Customer by UGL GASMARK's and Customer's respective responsibiliry for the payment of taXes is unchanged from Ihat stated under the MNGSA. Y. POINT OF DELIVERY; MBL - The receipt point into Tell.13 Eanem Transmission Corporation or other inte:rstate pipeline. as allocated by UGI. 0."'-\.11;1 EXNJ.BJT A ~..J6 :5 OTHER CONDITIONS: A). During the Sale3 Period, GASMt\RK. shall b.: Cus\Cmen sole supplier of natural g.!s. B). UGI will include GASMARK's charges in CUSlomer's monthly billing statement 10 Customer. unless . . . . . . . . GASMARK pro\'iQes notice to the eonua.ry. : .: . . . . . . ' . . . ' . . . ' . C). CUstomer authorizes GASMARK to act as CuslOlDer's agent for llaodling all gas scheduling matlers with U~~: :: :::::::::::: ~: ~-: , . ., ..... . . .. .' . . . . . . . . . . . . . . . . . . - . . . . . . . . . . bl J:;7::8:)0~ - ~~=~~R~ .-~0' -"a04 \<:C-. :..In-' ------ f-<~- ~-~~ASTER NATURAL GA_ _ALES AGREEMENT NO. DS-IOI250-VGl \"CONTRAcr") DATED November 1, 1997 .!fQ _ The receipt point into Texas Eastern Transmission Corporation or other intemate pipelIne, M allocated by UGI or UGI City Gate. VI. NOMINA nON AND SCHEDULING: Each moDth, GASMARK \\'ill proviae Customer with a MomhJy Nomination Request Form desi~ting the price it will charge for MBL an<f (CQ gas as delivered to the UGI City Gate. On Ws monthly form, CASMARK shall also include 1m ~lima\e of \hI: Customer's Full Momhly Requirements Quantity (FRQ) wbich shall be comprised of the MBL ~d ICQ volUIJIIeS On this monthly form, GASMARK shall also include MBL, ICQ. and fRQ in both the units of Dlh @ City Gate and Md @ MeIer (Thousand CUbic Feet measured at the CUstomer's meter). On or before the darj~ specified on the Monthly Nomination Request Form, Customer mUJl nOlify GASMARK, in writ~, with any changes to GASMARK's FRQ. [f Customer fails to orovide GASMARK with such written chanltes in a rimelv manner, the FRQ reflected on the monthly form Provided by GASMARK shall be deemed to have been accepted bv CustOmer. GASMARK shall schedule and delbrer Customer's FRQ on a daily, ratable basis over !he delivery llloIUh (Sch..'"t\u1ed Quanti!)'). Customer may make prospective changes to Cusromer', Scheduled Quantity if it e:cpe:"iences or anucipales a significanr or abrupt cltange in ClI$tomer's gas uSBEe. To change Customer's Scheduled Quantity, Customer must provide GASMARK with timely. wrin.cn prior notic: of the revised Sc!1eduled Quanti.)'. Revisions to Scheduled Quantities do nOI relieve CUsUlmer of CUstomer'. obhgauOD to accept and. purchase any portion of Customers MBL or lCQ volumes properly delivered or tendered for delivery by GASMARK. Section 10 of the MNGSA shall determine GASMARK's remedy for Customer's failure to acce-pt FRQ. VII. BALANCING: GASMARK shall exe....cise reasooable effons to eo.sure that Customes UGI delivery !emce account does not incur balilDc:ing and/or overrun penalties. Reasonable effortS shall include but not be limited 10 balancing Customer'S' usage levels with the usage levc:.ls of other si:nilarly situated CUStomers ("I.':e Pool"), which will enable GASMARK to balance Customer's gas deliveries with complementary uSllge requlr:menrs of other eus-romers in \he Pool ("Pool Bai:m::ing"). Customer acknowledges that Pool Ealao=ing enables GASMARK to rely upon expanded balan::ing tolerances of the Poo!, wbicb, under mosr COOOJl:ions, will enable GASMARK to avoid balancWg lIDdJor overrun penalues on b:!alf oi CUstom::r aod establish a. ~lac.."Tl1em :-r:.ul::e~ fur gas volumes properly delivered by GASMARK but not accepted by Customer. Pool Bala:1Ci~ is nOl 8.va.ilaole to customen wl1Jch do not maintain Monthly BaJar.cing and Pooling Service, respectively, with UGI VIII. INDEMNIF1CA nON: GASMARK shall indemnify a....d otherwise hold ha.rn1Iess Cuswmer for b3.\a.-:cing and/or overr.m penalties ro the exlent that such pen3lry t"erults from GASMARK'6 under/over-delivery of natural gas for Customer's IranSpOlUtioD account with UGJ. ?rovid::d that Cuslomer follows the Nomination and Scheduling provisions set forth above. If, despite the exercise of reasonable efforts, GASMARK is unable to maintain Customer's delivery service ac::ount wilhiD. UGI's tariff tolerance levelt. GASMARK sb.a.I, have :he right \0 charge Customer for both costs appli::able under Section 10 of the ~NGSA and ~y bal.'UJci.:1g 2lnClOr O\'tmlll penaltJes lncurr::d as a result of CUslOmer's failure to provid.: timely Douce. IX. CUSTOMER: MH Dielectrics, [DC. GASMARK ::~~~, BY; TITLE: DATE: DATE: Oaober 23, 2OCO ll!!l-UGI EXH.iBiT A ;:;.J~ .:::. =Ct ",Ill. ==, - ...tf. Hpp-~:--=-J0~ GH~, 't-1~" ~l t:.t:~7:8:l0~ \.. 'r".'::: Jo..J,.' t,....~. GASMARK MASTER NATL'lUL GAS SALES AGREEMENT NO, MS-101250-UG;1 ("CONTRACT") DATr.D November 1, 1997 APPENDIX "A" Confirmation Agreement No.2 Amendment No.1 Interruptible This Amendment No.1 to Conl\rmation Agreement No.2 is between UGI Energy Services, Inc. ("GASMARK") and M. H. Dielectrics ("Customer") (together. the "Partiesn), and is SUb)eCllO the lelms and conditions of a cenain Master Natural Gas Sales Agreement (MNGSA) betw~n the Panies dated November 1, 1997 (Contract No. DS- lOlZ50-UGI). If 8 conniet exists between the provisions 01 said MNGSA ud this Confirmation Agreement,"th; provisions or this Confirmation Agreement shall govern, This Am~nd,"ent is to CDlrji,," tht! salt! tJf Jalfullry 2001 and the SIlle / fe-sale of FebruafY 2001 volume as listed below. CONTRACT QVANTITY: Base Quantltv: Month January 1001 February 2001 nth @ Gulf (4000) (4000) CO~CT PRICE; Base Quantitv: ($ I DLi @ Gulf) Month J Muary 2001 February 200 ] Purchase Price / Dth 55.80 54.80 Re.Sale Price I Dth $7.675 $7.000 Note; Crfdit for sale of gaJ WIll be sho...'n on invoice as follows: January 2001 February 2001 $7,500.00 $8.800.00 Ct:STOMER: MH Dieleclric;, Ine. GASMARK BY: BY: TITLE: TITLE: Vice President'\: General Manager DATE: DATE: January 29,2001 I.IUlM;k EXH':BI.T A F-.uS __ HFR-Ol-~0~~ :1:26 tol2J::;7:::;Ei5u4 GHSI'<1";~~, GASMARK MASTER NATURAL GAS SALES AGREEMENT NO, MS-I012So-UGI (MCONTltACT") DATED November 1,1997 APPENDIX "A. Confirmation Agreement No.2 Amendment No. Z Interruptible This Amendment No, Z to Contlrmation Agreement No.2 IS between UGJ Energy Services, Inc. (MGASMARK") and M. H. Dielectries ("Customer") (tog:ther, the .Partles"), and is subject to the terms and conditiollb of a certain Master Natural Gas Sales Agreement (MNGSA) between the Parocs dated November 1, 1997 (Contract No. DS- lOl%SO-UGl). H a conniet exists between the provisions or said MNGSA and this Confirmation Agreement, the provisions of this Conlkmation Agreement shall govern, This A",~"d",ent ;s ro c/u,jlrm the sale of March 1001 volume as listed below. CO~'TR.ACT QUAl'oTITY: Base Quantity: Month March 2001 Dth @ Gulf (4000) CO/'.'TRACT PRICE: Base Quanlllv: March 2001 S600.00 Nou: Credit for saie of:flS will be shown on March 2001 inyoice. CUSTOMER: MH Dielectrics. Inc. GASMARK BY: BY: TITLE: TITI..E: Vice President .& Gener.Ll Manager DATE: DATE: March 28,2001 l&nlAotL EXH.IBiT A F-.u,:,- .:.~ HPR-01-~aa~ ll:0S GHS:1H~~ o12C7:;S584 GASMARK MASTER ~ATURAL GAS SALES AGREEMENT NO. MS-I01250-UGI (.CmtTRACTj DAn:D November 1,1997 APPENDIX . A. Confirmation Agreemeat No.3 - REVISED Interruptible This Confirmation Agreement is berween UG! Energy Services, Inc. ("GASMARK") and M, H. Dielectrks ("CUSlOmer") (lOgether. the "Panies"), and IS subject to the l:rms and conditions of a cenam Ma&u:r Natural Gas Sales Agreement (MNGSA) bcrwcen the Panics dal:d November 1, 1997 (Contract No. MS-I012So-UGl), If. conmet exists between the provisions or said MNGSA and this Conrzrmation Agreement, the prot"isions of rhis Cuntirmalion Agreement shall govern. I. NA TURE OF SERVICE: GASMARK's obhgatlon [0 deliver and sell, and C\LStomer's obligation to accept and purchase, Customer's Monthly Base Load (MBL) ofnamraI gas on the UGI Utililies, In::. (UGl) distributlOnsyslem is firm. subject to recall (Firm Re::4l1) only by VGI. GASMARK'g obligation I') deliver and sell, and CuslOmer's obligation to accept and purchase, Customer's Incremental Contract Quantity OCQ) on the UGf distribution system is firm subject to recall (Firm Rec31l), During a recall event, GAStylARK and Cuswml:r, r:spectively, sball not be obligated to deliver or accept any volumes under thil agreement, bUt Customer shall remain responsible for an amount calculated pursuant to Section 10 of the MNGSA for Customer's failure to accept all or any portion of Cusmmer's MBL volum.:s for a particular month. II. SALES PERIOD: November 200l through April 2002 m. CONTRACT QUA!\TITY: MBL: Mo_n~_ __., .. _ _ _____ __ Dt~.@. GuJ~__ . _No~cmb~r 2~!. 6000, , December 200J -- --;. . -nu-6000' ------1 ;..~:;~2~B~ .'__'~.. -~-~---~'~='_-"~~~--~~-~~.~ March 2002 6000 i-A'iil'ioo2 .... .---.-6000---------- _ _p_... noon _._ __ __.. _. _ ____ ___ . _...__ .__ ._... .. ICQ: Customer's full rr:qui=ems in excess oi Cusm::1er's ratable MBL !v. COr\TRACT PRICE: MBL: lAck-in Price lit Point of Deli-'ery Noy::mber 2001 waugh APril 2002 SlOth @ Gulf 5439 ICQ: Priced at market rare for gas deIjyc:t!d b} GASMARK at !he point of :!elivery In addition, for MBL volumes. Customer also shall reimburse GASMARK for any applicable charg~' incurred transponing gas from the POLOt of Deilye!"', [0 the UGI City Gate. For MBl and [CQ, unless notified by GAS:\.1ARK, !he demllIld COSI of such tral1spor..1uon. if any, is charged 10 Customer by L'GI. GASMARK'sllIld Cuslomer's respective responsibility for the paymem of taxes is WlcllAnled from that suted under tht: MNGSA. v. POI7'.T OF DELIVERY; MBL - The: receipt pain! into Texas Eastern Transmission Corporanon or other iQlerstllt: pipeline, a.s allocated by VGl. reo. The receipt point into Texas EaSl:fD Transmission Corponltion or other Interstate pipeline. as allocated by UGI or UGI City Gal:. Il1llAcl ~XHJS.;T A P.1D:" HPR-01-~aa~ 11:06 GrlS~l'::';::" b1;:::;7:830..: GASMARK MASTER NATURAL GAS SALES AGREEMENT NO. M5-101::S0-UGI ("CONTRACT-) DATED ~ovember 1.1997 VI. NOMINATION AND SCHEDULING: Each month, GASMAIlK will ~rovide Customer with a Monthly Nomination Request. Forro dCIgmnng the price it will cbarge for MBL aDd ICQ gas as delivered to the UGI City Gale. On this monthly form. GASMARK shall wo include an estimate e,f The CUStOmer's Full Mon\hly RequiremclUS Quamity (FRQ) which shall be eompri&ed of the MBL and ICQ volumes. On this monthly form. GASMARK shall also IIlClude ~mL. ICQ, and FRQ in both \he units of Dth @ City Gate and Mef @ Meter (Thousand Cubic Fee! measured :1t the Customer's meter). On or before the dale specified on the Momhly Nomination Request Form, CuStomer must notify CASMAR.K, in writing, wil:h any cba.nges to GASMAR.K'a FRQ, If Customer fails to oroVlde GASMARK with such written chanj!es in a timely manner, the FRQ reflected on the monthlv form provided bv GASMARK shall be deemed to have been accc1)tt:d bv Customer. GASMARK shall schedule and deliver Customer's FRQ on a daily. ratable basis over the deli\'ery month (Scheduled Quantity) CUSLOmer may make: pro!pecuve changes to Cuitomer's Scheduled Quantity if it experiences or anticipates a significant or abrupt chans.e in Customer's gas usage. To change Customer's Schedulerl Quantity. CUSlomer must provide GASMARK with timely. wriuen prior nOlice of the revised Scheduled Quanlity. Revisions to Scheduled Quantincs do DOl relieve Customer of Customer'! obbgatlOD to accept and purcha!le any portion of Customer's MBL or ICQ volumes properly delivered or tendered for delivery by GASMARK. Section 10 of thc MNGSA shall detemllne GASMAR.K's remedy for Customer's failure to accept FRQ. vn. BALANCING: GASMARK shall exercise reasonable efforts to ensure that Customer's UGI delivery service account does not incur balancing and/or overrnn penalties. Reasonable effortS :ihall include but nol be limiJed to balancing Customer's usage levels with the usage lcvels of other Similarly sir.Jatc:d Cus10mers ("the Pool'). which Wll! enable GASMARK to balance Customer's gas deliveries with complementary usage requirements of other ::ustomers in the Pool ("Pool Balancing") Customer ackl'lowlcdg::s that Pool Balancing er.abl:s GASMARK ro rely upon expanded balancing tolerances of the Pool. whlch, under most condillons. w1l1 c:nablt: GASMA.RK to avoid balancing and/or overrun penalties 00 behalf of Cll5lomer and es~blish ~ replacement market for gas "olwnc~ properly delivered by GASMARK bul not ~ccC?ted by Customer. Pool BaJanc;mg IS no: available to customers wIu::h do Dot maintam Monlhly Balancing and Pooling Servu;e, respectively, with TJGL VIlJ INDEMNIFlCA 1101\: GASMARK shall iOl:krr.rufy and otherwise hold ha..'TI1l::ss Customer for balancing and/or overrun penalties to the ext.em tha: such penalty resulu from GASMARK's und.er/over-celivcry o~ Illltufal gas ior Customer's u-anspor..ation account with VGI, provided that Customer follows the Norr.ination and Scheduling ;Jtovisions set fonh above. If. despite the exercise of reasonable :ffor..s. GASMARK is unable to maintain Customer's delivery service accoUDt wallin UGI's 13nff tolerance levels, GAS\oL~RK shalll-..1ve the right to charge CusLOmer for both costs applicable under Section 10 of :he MNGSA and any b<ll:wcing and/or overrun pcnaJucs ltlcum:d as a n:suh of Customds ixilurr 10 ptovide timely notice. IX. OTHER CO!l.1)ITIOJl;S: A). Durin~ the Sales Period, GASMARK shall be Customer's sole su?plier oi natural gas. B) VGl Will mcludc GASMARK's charges in Customer's monthly billing stalcmem to Customer. unlesf GAS MARK provides notice to thc cooU'alj'. C). Customer authorizes GASMARK to act as CU&tomef's agent for handling all gas scheduling man.ers with UGl. CUSTOMER: MIl Dielectrics, lnc, GASMARK BY: BY; TITLE: TITLE: Vice Pn:sldent & General Manager DATE: DATE: August 30, 200] Rey. Date' October 9. 2001 hll!JLlr 10 E;.XH1BI.T j\, ~.11 .:::; HFP-01 - ~'8d~ 11 : 08 --~ ---I' GH5/'I'::';::" 610=:;73850"': F,16<S !'1H :>IELECilCS ., 1d165~5e. 36 ucr Ener;~ S~rv:c.~. l"c. (7 (71 /'oV. 763 ~1 135~ - 3365 . L. e6/27/2Be3 l8:a3 JUI'" 27 03 11:2<!a ~ 6'~~~A. 1d' ~"" ~'v- \'- LJ V' We "r~ plusrd.o ~(jrm llle follCllllJni '~J~I:." t b ...een Uc;l . nergy 5cr"u:e~. UK. db1. Ga""..rk ."J MH D'rla:1ries ("CIIII""'","") , .:113'. c~. = f rc.dvL- I ;) June 2S. .zoo 3 Mr. S.." Pickerang _ MH Dielectrics . 80. C Mountain Su.t Ml Holly SpriJIg5, PA /1066 Oe;r Sam' Suyer: ~ DlclCClri..:! ~:.~ 'I' UGI Energy ,erVlces, Inc. cJ) ~. '1.J / r ... , ~ .. ''''. -..._...._.. > Vi~ Fu: (7j7) 486.5.:U Scller UCI Cni:T'CY Sc:rvic~s, lnc dtM (j;Ultlark Product: 116 Her.lIl11!,Oil Qva"llty. ':2.000 gro~> g~llor.~ Pricing, $0.87001 pcr pilon. pllP "II apphe.bJe IJJI,r 'n Ql :>tod '1 Julie !<i, 2003 - prtcing Is subjt:t:'ll'O change T .nn,' July 08.2003 10 July 3/. 2003 Dem'-lrrage fee. C\l~tcmet "";1: be et\lrgecl SIO OQ":to. '"'u('''Sr".,cwilh J D-~hour fa< load'''sf..nloadi".: ?1l)'lTl~t: ~el 10 day\ Delivery OelivGrd to c.utomo=r's (~Clltty v,. cO:-.Im 1 an '0:/ D-Iivcn:d in min,~um i(1crc:men~ of 7~()() Il:.alloll~ Dcl\yerl~ ",ill II( st:hecl..l~d 24 hcur~ In .d' Il\~ I" Mar... G.lomb... G~~"".rk SUllDI" [)CpII'tTll,'\I ~\ 610-373-1999. utenSton \)] Plea,. >1m bel,,'" .'!<lloo-lcDJt'''1 'fOUJ agrcemclI:..... .dol n i",,"c<li..~I)' vi;, fall \0) 410.6:'~-O:!36 n,o partin 1.;1""- that the facsimile ~311 bl: full', binr inl' .Irld eo' rorer-ble "5 If ttle f2C51mtlc ~rc Ul Ol"lg)1lal $ltoul<l Uly ohj,,~ above b. <Ontrary le:r....: undt'"'' .","! ;>Jru<' C<ltl,an lilt lIr1l1'ledlateJy ~,nctrcJ" ~?::'.rp Region6l Sales RaplillCCIlCative VOL en~GY Se~CllS, lllc. AGREED TOil ACCEPTED AY (CIlS1nn' eo): OA. TE: 6;&&~~ i 1/7 Wt'll M,lt1cfl51~1 / ~or..,.... 174011 ".~/M.J 45.15 ,Qle;p7 7." 1,),( :ii;,5-1.)11; j ."".""-,,,!:,..nL'J~"','t'.., L^H:&.~.:r A ~~. '~,.., ....,.,; " 7f0> '6 & F' 2 ~ f' J~j-I STATEMENT OF ACCOUNT Mh Dielectrics established the following accounts with UGI Utilit.ies Inc. d/b/a GasMark with the following balances and charges: Acct Type Service to: Balance Service Address G One Mountain St., Mt. Holly Springs. P A / $126.058.57 Late Fees: Total Delinquent Balance: $ 22.690.54 $148.749.11 EXHIBIT B EXHIBIT B Corporate Records Application :iZ.m!~ ENNSYLVANIA epartment of State "~:i1~~~;J~p",::; DOS HomepaQe Request · New Requ~~ Free Search · Gen~aLll~me ~ear:c_h · OldJ'tame_Search · 9IR..han S~?lrch .. Entity Details Basic Entity Information Entity Type WITHDRAWN INCORPORATED BUSINESS Entity Name MH DIELECTRICS, INC. Entity No. 892667 Filing Date 11/22/1985 Letter of Consent No Address ONE MOUNTAIN STREET MT. HOLLY SPRINGS Pennsylvania USA 17065 Cumberland Jurisdiction County Page 1 of2 ~ ~"'l""J.rJt'-=-,-ri""'~ii Purpose Limited Authority No BROAD-MANUFACTURING & MILLING OF PAPER PRODUCTS Corporate Officers Updated Date 11/22/1985 President LEROY G BREAM Secretary RICHARD D WIMER RONALD D KUNTZ JAMES V ROBBINS Instrument History Doc Type M' 1""1 # Micro# Micro# Filing Icro rl m Start End Date ARTICLES MERGER/CONSOLIDATION -ALL 9645 1063 1068 06/28/1996 1YPES ARTICLES OF AMENDMENT- BUSINESS 9042 246 248 09/05/1990 ARTICLES OF INCORPORATION- BUSINESS 8584 1116 1117 11/22/1985 C Back https://www.dos.beta.state.pa. Us/CorpsApp/Corpswe b/Search/wfEmity DetaiIs.aspx ?Entity... 11/3/2004 Treasurer Vice-President Home I Site Map' I View as Text ani)! EXHIBIT C I07-011D-Q,,11 (1.1.. AlL.STAll LlGAL lu"''-v COfllr. tJldArchS"I'h.a.o.,pt\l..fJ..I.101 AOOHI/51 .i~ JlA~~ :.i >J ~ _l!ade the day of January ,in the year tenth .\"inetcen hlmdred and ei ghty six I&hueen KIMBERLY-CLARK CORPORATION, a Delaware Corporation, as Grantor', and MH DIELECTRICS, INC., a Pennsylvania Corporation, as Grantee, COMMONWeALTH OF PENNSYLVANIA :: JErARTME~lr OF REVEN:JE ::= - r-;;---.. r;----~ ::: wEt.lIY --() -;~J.?\ :: :~~N\H~ JAHlm ~iI' 70 O. 0 0 ~ 1!~.Il", L_ ___J := CO/.\MON'WEALilt Of PENNSYLVANit, :-:: ~!~~~IMeNT m ~~~:~(JtB g ,n.NIHR JAHIJ'Sa ~~ 6 5 O. 0 0 ::: f,\X ... n '_ r.C.lll'" .___ _ :~ ~ilnelul.cH~ That in con.qideration. of One Hundred Thi rty-Five Thousand and no/lOa ($!35,OnO,QO)------------------------------------------------Dollars, in hand paid, the receipt whereof is hereby ack/lowledl!ecl., the ,aid ~rantor do hereby release and {.}uit-l..'laim tv the ,aid tran.tee ~ll those certain tracts and parcels of land situa~ed in the Borough of Mt. Holly Springs, Cumberland County, Pennsylvania, all as more particularly described on Exhibit "A", attached hereto and made a part hereof F.:. to..... " ~.:., f. ~ i: ~ "':~ . - :~: :::: ~-' ;,;" r~ ' . f,:'. ~~. ':3 :~. ,..., "~r. ..-.~ .1 ,t!1.t.j(~!!-:z.i;r'" Cumbo c.., P., ..-:;tx. R.ct .",.... T,en"., r.. D()6 ..'.~l.Jr-I.~ '.' '.7...).-- (J .VJ~'~ H t/cJ-c.- c_~ c., O;~t. C.I, A.~ /1;>' ........ (' ~ I~: c:;. u..: I~:' ~ tr~ ""., '01, _J '4 r-l)~' Sc.ool 01", Cumb C' , . 0., P.. -~1.. R..' It"t. 11""_' r -/ .. 0... I.... ] -% "7 cr. 0 -s:.ya.i.~z::.t. h:''''' ~.ft'" c.. D'... c:.&. .-- ~ ~~ B::K tz3i f;.:C 510 .:r..~.;..1.:.;.r:;..:s._~~T.~':~::......::AM'ft"'Q~4;:_...:.....(;,:_~~..,,,.~ ;<p - - -A.. "~''''U!'''u..~ " f / / I I 1 .. ~ j I i ; t I j I \ ~ 1 i "" l 1 ~ I \ / , '0' ,: .,.. , , I. EXHIBIT D An Appraisal Report of: MH Dielectrics, Inc. Improved Industrial Tract on 16.46 acres with Excess Acreage Totaling 24.82 acres Requested By: Robert Berezansky, Vice President US Bank Main and Franklin Streets Johnstown, PA 15901 PREP ARED BY: ROBERT HAGERICH JR. I MAl 337 STONYCREEK STREET JOHNSTOWN, PA 15901 Summary of Salient Facts and Conclusion Property Identification: Manufacturing, warehousing, and land of MH Dielectrics, Inc. The operation is located at One Mountain Hoad, Mount Holly Springs Borough, Cumberland County. Effective Date of Value: May 10, 1996 May 10, 1996 Date of Inspection; Interest Appraised: Fee Simple Estate Site: An industrial site in Mount Holly Springs Borough including 16.46 acres. Excess acreage in Mount Holly Springs Borough including 24.82 acres. Buildings: A total of nine detached buildings and structures of various constructions. All nine buildings and structures contain 137,819 square feet. However, only 124,455 square feet make a direct contribution to the value of the subject. The difference is considered incidental to the main operation. Highest and Best Use as Vacant: Site Only Excess Acreage Industrial site. limited Residential. Highest und Best Use as Improved: Industrial- manufacturing. INDICATIONS OF MARKET VALUE Estimated value of the industrial site and buildings by: Cost Approach to Value:......................................$1,800,000.00 Direct Sales Comparison Approach to Value:.......... $1,400,000.00 Final Estimate of Market Value:............................. __......... $1,400,000,00 Estimated value of the excess acreage by: Direct Sales Comparison Approach to Value:................$28,500.00 Final Estimate of Market Value:........................................ $1,425/000.00 Estimated Marketing Period: The subject is assumed to have a normal marketing period of one year. - 2- HAGERICH & SON REAL ESTATE EXHIBIT E IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA UGI Energy Services, Inc. d/b/a GasMark, Plaintiff ) ) ) ) ) ) ) ) ) Civil Action No. 04-1552 CV v. Mh Dielectrics, Inc. Mh Technologies, LLC Defendants DEFENDANT, MH TECHNOLOGIES. LLC'S RESPONSES TO PLAINTIFF'S INTERROGATORIES AND FIRST REQUEST FOR PRODlJCTION Mh Technologies, LLC ("MhT") responds to the Plaintiffs Interrogatories and First Request for Documents pursuant to Pennsylvania Rules of Civil Procedure as follows: GENERAL OBJECTIONS The General Objections set forth below are applicable to the requests in their entirety, as well as to each individual request. By reference, MhT, incorporates each general objection into their objections to each of the individual request. While specific objections are cited in response to specific requests, the failure to include a general objection in response to specific requests is not a waiver of that general objection. 1. MhT objects generally to Plaintiffs requests to the extent they are overly broad, vague, ambiguous, and to the extent they require an oppressive, unduly burdensome and prohibitively expensive search. 2. MhT objects to each request to the extent it seeks infi)rmation that is protected from disclosure by the attorney-client privilege, the work-product doctrine, or any other applicable privilege or immunity. 3. MhT objects to each request to the extent it is not reasonably tailored to the relevant time period or subject matter of this litigation. M1l4327.1 - 2 - 4. MhT objects to each request to the extent that it seeks disclosure of infonnation and/or documents not relevant to the issues raised in this lawsuit and not reasonably calculated to lead to the discovery of admissible evidence. 5. MhT objects to each definition, instruction, and request to the extent it seeks to impose discovery obligations that exceed those set forth by applicable Rules of Civil Proceedure. M114327.1 - 3 - INTERROGA TORIES 1. As to the person answering these interrogatories, state your: a. Full name; b. Residence address; c. Business address; d. Date of birth; e. Place of birth; and f Social Security Number. RESPONSE: John Allard Allard Ventures Group 124 Joliette Street Manchester, NH 03102 MhT objects to the balance of this Interrogatory as the requested information is not reasonably calculated to lead to the discovery of admissible evidence. M114327.1 - 4 - 2. Is there an organizational chart for Mh Technologies, LLC? If yes, state: a. The name and address of the custodian of such chart; and b. Please attach a copy to your answers. RESPONSE: No. M1l4327.1 - 5 - 3. State whether or not Mh Technologies, LLC owes any sums of money to Mh Dielecrics, Inc. or to any of present or past Mh Dielectrics' board members, officers, or shareholders. RESPONSE: None. M114327.1 - 6 - 4. If your answer to Interrogatory No.3 is in the affinnative: a. The names of the parties who owe such sums of money; and b. the amount of money owed. RESPONSE: NI A M1I4327.1 M1I4327.1 - 7 - 5. State the basis for the debt, identified in answer to Interrogatory NO.3 and No.4. RESPONSE: N/A - 8 - 6. If Defendant Mh Technologies, LLC entered into a purchase or sales agreement for the purchase ofMh Dielectrics' business or real estate, please state: a. the address of any such business; b. the amount agreed to be paid for any such business; c. the amounts owed, if any, by Mh Technologies., LLC for the above mentioned business or transfer; and d. the terms of any such business transfer between the Judgment Debtor and the Defendant Purchaser. RESPONSE: a. MhT is a Delaware LLC with an address of 124 Joliette Street, Manchester, NH 03105. b. MhT did not buy any "business," but only purchased Mh Dielectric's ("Debtor") real estate and personal property. MhT purchased Debtor's personal property from its bank, Ameriserve Financial Bank ("AFB") for the sum of $3,574,906.46. MhT bought Debtor's real property for $1,200,000. c. None. d. There was no business transfer, only a purchase of assets. M114327.1 - 9 - 7. State the amount of any payments made by Mh Technologies, LLC to Mh Dielectrics, Inc. in connection with answer to Interrogatory No.6. RESPONSE: See response to Interrogatory No.6. M114327.1 - ] 0 - 8. Did Mh Technologies, LLC, execute or deliver to Mh Dielectrics, Inc. or to any of its shareholders, officers or members of the board a promissory note or payment of any kind from July 2003 to the present state: a. the date of the promissory note or payment; b. the amount of the promissory note or payment; and c. the terms of the promissory note or payment. RESPONSE: No. Ml14327.1 - 11 - 9. With respect to the purchase in 2004 of substantially all of the assets ofMh Dielectrics, Inc. to Mh Technologies, LLC: a. State the assets or assets sold to Mh Technologies, LLC; b. State the consideration !:,riven by Mh Technologies, LLC; c. State the name and address of each person who was paid any of such consideration, the amount thereof and the date paid; d. Identify by title, date and the number of pages I;;,:very document by which such sale or sales were effected; e. State the name of each person who executed ea.ch such document; f. State the name, address and title of each person who has possession, custody or control of a copy of each document; g. State the name, address and title of each person who received a copy of each such document; h. State the name and address of each federal, state and local government authority, department, agency and commission with which any document describing or reflecting such sale or sales were filed; i. Identify by title, date and number of pages each document so filed; .i. State the name, address and title of each person who has possession, custody of or a copy of each document that was filed; k. State the name, address and title of each person or entity who received a copy of each document so filed; 1. State whether in connection with the sale a list of creditors of Mh Dielectrics, Inc. was performed and state whether defendant has in its possessl;on, custody or control such 11st or a copy thereof m. State whether in connection with the sale a schedule of assets sold sufficient to identify them was prepared and state whether defendant has in its possession, custody or control such schedule or a copy thereof; n. State whether any document giving notice to the creditors of Mh Dielectrics of the sale of such assets was prepared and state whether defendant has in its possession, custody or control such notice or a copy thereof. RESPONSE: a. MhT purchased substantially all of the Debtor's real and personal property. b. The combined sale price was $4,774,906. c. $3,574,906.46 was paid to AFB, $1,200,000 was paid to the Debtor. d. The sale was effected by a Transfer Statement and Bill of Sale and a Sale Agreement, both dated January 26, 2004, e. The Sale Agreement was executed by Mitchell D. Edwards for AFB, John W. Allard for MhT; Alan Nadeau for Debtor and Allan Nadeau and Judith Nadeau as guarantors. f. Debtor, MhT, AFB and their respective professionals. g. MhT is unaware of the individuals who received a copy of these documents. h. MhT is without sufficient information to respond to this Interrogatory. 1. MhT is without sufficient information to respond to this Interrogatory. J. MhT is without sufficient information to respond to this Interrogatory. k. MhT is without sufficient information to respond to this Interrogatory. 1. No. m. Yes. n. MhT is without sufficient information to respond to this Interrogatory. M1l4327.\ - 12 - 10. Was Mh Technologies, LLC or any of its shareholders a creditor of Mh Dielectrics, Inc. during the period from January I, 2000 and theneafter? RESPONSE: No. M1J4327.1 - 13 - 11. If the answer to Interrogatory No. 10 is in the affilmative, state with respect to each claim or indebtedness, the amount and the date incurred, and identify every document which evidences, sets forth or reflects such claim or indebtedness. RESPONSE: N/ A. M114327.1 - 14 - 12. With respect to each claim or indebtedness referred to in the answer to Interrogatory No. 10, state the date it was, in whole or in part, pa.id or otherwise liquidated, the amount paid or liquidated, and identify each document which evidences, sets forth or reflects such payment or liquidation. nSPONSE: -N/ A. MI14327J - 15 - 13. State the name, address and title of each person and identify each document (other than persons and documents previously identified in the answers to the Interrogatories herein or copies of which are attached to such answers), who have knowledge of facts relating to the issues raised in the Complaint and the Answer thereto. RESPONSE: Witnesses John Allard 124 Joliette Street Manchester, NH Frank Riccio One Mountain Street Holly Springs, P A Sharon Seldstrom One Mountain Street Holly Springs, PA Documents: Anv documents related to the sale of Debtor" s assets M114327.1 - 16 - 14. Please identify the products sold and or manufactured by Mh Technologies, LLC , from the date of if s formation in 2004 to the present RESPONSE: Dielectric paper products. Ml14327.1 - 17 - 15. Please identify the number of all full time and part time employees of Mh Technologies, LLC in January 2004 as well as their names and addresses. RESPONSE: MhT objects to this Interrogatory as irrelevant and unlikely to lead to the production of admissible evidence. M1l4327.l - 18 - 16. Please identify the number of all full time and part time employees ofMh Technologies, LLC in February 2004 as well as their names and addresses. RESPONSE: MhT objects to this Interrogatory as irrelevant and unlikely to lead to the production of admissible evidence. M114327.! - 19 - 17. Please identify the number of all full time and part time employees ofMh Technologies, LLC in March 2004 as well as their names and addresses. RESPONSE: MhT objects to this Interrogatory as irrelevant and unlikely to lead to the production of admissible evidence. M114327.1 - 20- 18. Please identify the number of all full time and part time employees of Mh Technologies, LLC in April 2004 as well as their names and addresses. RESPONSE: MhT objects to this Interrogatory as irrelevant and unlikely to lead to the production of admissible evidence. M114327.1 - 21 - 19. Please identify the number of all full time and part time employees ofMh Technologies, LLC in May 2004 as well as their names and addresses. RESPONSE: MhT objects to this Interrogatory as irrelevant and unlikely to lead to the production of admissible evidence. M1I4327.1 ~ - 22- 20. Please identify the number of all full time and pa.rt time employees ofMh Technologies, LLC in June 2004 as well as their names and addresses. RESPONSE: MhT objects to this Interrogatory as irrelevant and unlikely to lead to the production of admissible evidence. M114327.1 - 23 - 21. Please identify the number of all full time and part time employees of Mh Technologies, LLC in July 2004 as well as their names and addresses. RESPONSE: MhT objects to this Interrogatory as irrele:vant and unlikely to lead to the production of admissible evidence. M114327.1 - 24- 22. Please identify the number of all full time and part time employees of Mh Technologies, LLC in August 2004 as well as their names and addresses. RESPONSE: MhT objects to this Interrogatory as irrelevant and unlikely to lead to the production of admissible evidence. M1l4327.1 - 25 - 23. Please identify the number of all full time and part time employees of Mh Technologies, LLC in September 2004 as well as their names and addresses. RESPONSE: MhT objects to this Interrogatory as irrele:vant and unlikely to lead to the production of admissible evidence. M114327.1 - 26- 24. Please identify the number of all full time and part time employees ofMh Technologies, LLC in October 2004 as well as their names and addresses. RESPONSE: MhT objects to this Interrogatory as irrelevant and unlikely to lead to the production of admissible evidence. M1I4327.1 - 27- 25. Please identify the number of all full time and part time employees ofMh Technologies, LLC in November 2004 as well as their names and addresses. RESPONSE: MhT objects to this Interrogatory as irrelevant and unlikely to lead to the production of admissible evidence. M114327.1 - 28- 26. Please identify the name, address and phone numbers of any and all accountants, CP As, advisors, lawyers, or counselors who have participated in any way with the preparation of Federal, State or Local tax returns ofMh Technologies, LLC. RESPONSE: MhT objects to this Interrogatory as irrelevant and unlikely to lead to the production of admissible evidence. M114327.1 - 29- 27. Please identify the name, address and phone numbers of any and all vendors to whom Mh Technologies, LLC made purchases by COD or otherwise from December 2003 to the present. RESPONSE: MhT objects to this Interrogatory as irrelevant and unlikely to lead to the production of admissible evidence. MI14327.1 - 30- 28. IdentifY the Assets owned by Mh Technologies, LLC from the date it began to conduct business to the present. RESPONSE: MhT objects to this Interrogatory as irrelevant and unlikely to lead to the production of admissible evidence. Ml14327.l - 31 - 29. Identify the name, address and phone number of every person or business entity that was a pre-incorporation promoter of Mh Technologies, LLC. RESPONSE: John Allard Allard Ventures Group 124 Joliette Street Manchester, NH 03102 M114327.1 - 32- 30. Identify the name, address and phone numbers of all vendors to whom Mh Technologies, LLC made payment in January and February 2004. RESPONSE: MhT objects to this Interrogatory as irrelevant and unlikely to lead to the production of admissible evidence. M114327.1 - 33 - 31. Please identify the name of the computer software program which Mh Technologies, LLC used at any time to maintain its accounting and bookkeeping records. RESPONSE: MhT objects to this Interrogatory as irrelevant and unlikely to lead to the production of admissible evidence. M1l4327.! - 34- 32. Identify the name, address and phone number of the person or entity that maintained the bookkeeping records and accounts payable for 1v1h Technologies, LLC from its inception to the present. RESPONSE: MhT objects to this Interrogatory as irrelevant and unlikely to lead to the production of admissible evidence. M114327.1 - 36 - 34. IdentifY the amount at which Mh Technologies, LLC was capitalized at the date of its formation. RESPONSE: MhT objects to this Interrogatory as irrelevant and unlikely to lead to the production of admissible evidence. M114327.1 - 37- 35. Were any Members ofMh Technologies, LLC creditors ofMh Dielectrics, Inc., during the period from January 1, 2000 to present? RESPONSE: No. MJl4327.\ - 38 - 36. Please identify by name, address and phone number of the Members ofMh Technologies, LLC from the date of its formation to present. RESPONSE: MhT objects to this Interrogatory as irrelevant and unlikely to lead to the production of admissible evidence. By way of further answer, MhT states that no shareholder, employee, officer or director ofMh Dielectrics, Inc. is or was a promoter or member ofMhT. M1l4327.1 - 39- 37. In answer to Interrogatory No. 36, please identify by name, address and phone number the members of the LLC who were at any time officers, directors or shareholders ofMh Dielectrics, Inc. RESPONSE: None. MI14327.! - 40- Respectfully submitted, Mh Technologies, LLC October _,2004 " ----- By its attorD.-.,L-,,-.-_.:' " _~J.i "~"-.J}'" __. - . j NIXONP , ODY r,.tP )1 ' ir I.. / _____ BlR~: '-B~~5759) 181,8 Market Street, 11 th Floor Philadelphia, p).. 19103 I / Peter N.Jamposi 889 Elm Street Manchester, NH 03101 VERIFICA TION l, John Allard of Mh Technologies, LLC, state and affirm that, to the best of my knowledge, infonnation and belief, the avennents in the forgoing Responses to Plaintiffs Request for Admissions are true and correct. I understand that any false statements made in these Responses are subject to the penalties of 18 Pa. Con. Stat. Section 4904 (relating to unworn falsifications to authorities). CERTIFICA TE OF SERVICE M1l4327.1 I hereby certify that on this date a copy of the foregoing Res~psesm Defendant, Mh Technologies, LLC to Plaintiffs First Request for Admissions,.wer~ronyatdedvi:a.first-class mail to Anthony p, Krzywicki, Esq., counsel for the Plaintiff. ".\-..../ " -=;-::: (~ L ~//J 'U: ,'. -?l~"r'" / .! .... Rend:., Bergm;pm. ''\----------., /~'>.?-/ ) . -.-....--- ----- l -"-- --~-- -- October -' 2004 M1I4327.! EXHIBIT F IN THE UNITED STATES BANKRUPTCY COURT FOR TIlE COUNTY OF CillABERLAND PENNSYL VANIA Plaintiff ) ) ) ) ) ) ) ) ) Civil Action No. 04-1552 CV UGI Energy Services, Inc. d/b/a GasMark, v. Mh Dielectrics, Inc. Mh Technologies, LLC Defendants DEFE1'l"DANT. MH TECHNOLOGIES. LLC'S RESPONSES TO PLAINTIFF'S REQUEST FOR ADMISSIONS Mh Technologies, LLC responds to the Plaintiff's Request for Admissions pursuant to Pennsylvania Rules of Civil Procedure as follows: REQUEST FOR AD!vIISSION NO I: On or about January 26, 2004, Mh Technologies, LLC pur.chased real estate known as One Mountain Street, Mt. Holly Springs, P A. RESPONSE: Admit. REQUEST FOR ADMISSION NO 2: Mh Technologies, LLC did not obtain an appraisal of the value of One Mountain Street, Mt. Holly Springs, P A. RESPONSE Admit. REQUEST FOR ADMISSION NO 3: NTh Technologies, LLC was not provided with a copy of an appraisal of the value of One Mountain Street, Mt. Holly Springs, P A before purchasing the real estate. RESPONSE: MlI2923.! -2- Deny. By way of further answer, Defendant, 1vfH Technologies, LLC was provided with tax assessments demonstrating a value for the real estate of approximately $1. 9mm. See Exhibit A. REQUEST FOR ADMISSION NO 4: Mh Technologies, LLC purchased real estate known as One Mountain Street, Mt. Holly Springs, P A knowing that the seller did not conduct an appraisal of the property within twenty four (24) months of the purchase. RESPONSE: Deny. By way of further answer, Defendant Mh T echnoiogies, LLC is unaware if Mh Dielectrics, Inc. obtained an appraisal. REQUEST FOR ADMISSION NO 5: Mh Technologies, Inc., LLC has knowledge that the value of One Mountain Street, Mt. Holly Springs, PA in approximately 1997/1998 was approximately ($7,000,000) Seven Million Dollars. RESPONSE: Deny. REQUEST FOR ADMISSION NO 6: Mh Technologies, LLC purchased real estate known as One Mountain Street, Mt. Holly Springs, PA for less than ($7,000,000) Seven Million Dollars. RESPONSE: Admit. REQUEST FOR ADMISSION NO 7: The former Comptroller ofIv1h Dielectrics, Inc. was an employee ofl\.1h Technologies, LLC on the date when it purchased real estate known as One Mountain Street, Mt. Holly Springs, PA RESPONSE: Deny. By way of further answer, Mh Technologies, LLC had not hired any Mh Dielectrics, LLC employees prior to the purchase of assets in question. / Ml \2923 \ .3- REQUEST FOR ADMISSION NO 8: The former Treasurer of1vfh Dielectric, Inc. was an employee ofMh Technologies, LLC on the date when it purchased real estate known as One Mountain Street, Mt. Holly Springs, P A. RESPONSE: Deny. Respectfully submitted, Mh Technologies, LLC August'7J., 2004 '-..',", / I , / /' _.,;-r"" L~_Peter N. Tarnposi 889 Elm Street Manchester, 1\rH 03101 ~// VERIFICA nON I,~ of'Mb. Technologies, LLC, state and affirm that, to the best of my knowledge, information and belief, the averments in the forgoing Responses to Plaintiffs Request for Admissions are true and correct. I understand that any false statements made in these Responses are subject to the penalties of 18 Pa. Con. Stat. Section 4904 (relating to unworn falsifications to authorities). Mh TeChnOI~ ~. M1l2923.1 - 4 - CERTlFICA TE OF SERVICE I hereby certify that on this date a copy of the foregoing Responses of Defendant, Mh Technologies, LLC to Plaintiffs First Request for Admiss. /: forwaed via first-class mail to Anthony P. Krzywicki, Esq., counsel for the Plaintiff.~ August 2$, 2004 MIIZ923I MI129"..3.1 / .I ! . -"-._~ A Rug 19 04 04:46p MH Teohnologies LLC CUMBERLAND COUNTY TAX Cl.AJM BUREAU l'LEASe I'R!JSENT THI~ NOTICE WilEN MAKING P^ YM!:r<.n' AUl)RESS ^ LL. COMMUNICATIONS TO: CUMBERl.AND C'O{JN'ry ('AX ('''AIM UURJ.::AU ONE COURTUOOSE SQUARE CARLISLE. PA 17013-33SQ IlllSINESS s:ClCl AM '/'C) ,l:.\o I'M 1I0URS: MONO.... Y THRlll'K1UA Y PH()NF.; (717) 240.6~66 /'ll''',W cllJllacl Y(l\.or IllClftj:ay,r 1~("nJ',"ly il'ynur lOIXl"i ilTC: paid lrom 3/\ escrow acC(lWlt. 'IDe mongag.. holderd0C5 not receive l' ce>py oflhis notice. I'I'RMS OF SAt.l:; n.~h (I( (',,,/l :111(1 ('/ll'Ck nn a local bank payable 10 Tax Claim llurCl.lu lit the time I the property is stt\lek duwn. PA't'IoQ;N'T$ PfUOR TO SALE: c-to. ttIO'W1 order M ~ chKJc p.wyalM to "To: ~ D..-" I The tOI:l1 above reprc$l:nU 1I11 delillnueot tax""' relurned 10 Ihil< otliee on your pt\lpmy JlIIL~ CO!;t~ ~ I ,.rllle ,I;ltc "f~:ole, If you "'ilke pilYllll-n1 in July or ^ ugusI, the amount <.I~e "'ill blllcss. Plea.~e cont:lC1 oUT offiee f(lr Ihl' exacl amount due before m.~kj"l: :IIlY p.'1ym'''\b, WARNING .YOUR PROPERTY 1$ ABOUT TO BE SOLO WITHOUT YOUR CONSENT FOR DEUNQUENT TAXES. YOUR PROPERlY MAY BE SOLD FOR A SMALL FRAC'nON OF ITS FAIR MARKET VALUE. IF YOU HAVE ANY QUESnONS AS TO WHAT YOU MUST DO IN OROER TO SAVE YOUR PROPERTY, PLEASE CALL YOUR ATTORNeY L.THE TAX ClAIM BUREAU A I THE FOLLOWING TELEPHONE NUMBER 240-6366 OA 532-7286 OR 532-7286 OR THE COUNTY LAWYER REFERRAL SERVICe. .. 717 - 486 - 5832 p.5 DATE 7/23/2004 4590 0146 4889 CON1'ROL NUMBER OP.J>ROPT!ltTY ......, '.':'""'" . ... ACRES - . ..,.... 2~ 6.2ll0 MAl' NO Z;\-:l;l. I 942-0 I () ^SSI.:SSHl VALtJE- I 440JO Commcr\wll - OI1ic~ ~ llAt.'/'lMOIW AVEN1Jl~ "" ((rCI( Ill' 'TIIU 1lJ>"'J\N OF 01 ~ JNQC 1/!N1' '( AXI~~ ."(JAIN~" lIS rMOI'/ik IV flY TI II': V AXIOIIS r Ml.INH ,'ISTRI( TS ANO'llIli INrJ(VI.lt'TAX <.'1,^1M'~~f1!xON,IIA.~ 'I/!HN 1I1':J(IITOJlOIt1!GIV~N At'(':llIWINHT() r.....w, "NO ....11: l'IiR/11l1 Of Illilll;MmON llA VlNO DIlJiN IiXPIItI'Jl, SilJD a.AIM HAS NOW IUiCOMI( A,I:I/i()Ltrre. TIUS ~LII WIl.I. liT; fIl'JAL, t>IVESTD-lO YOUR TTTUl TOTHF. J'ltOl'EllTY. nm I'U1lKlSI! O"THIS YLl,l;; nDNO TO 1'11.OVl01I fOR THF ('OLLrcnON or Till; A"'(}tINT 01' TAXI!S OWlN(1 ON ~^'Cl ~()rt,lI.l'Y. NotJee of Sale will be J)\IbIt.hed once In the EwoenJng SentInel, the Harrl~urg Patriot News and the Guide News mad once 1rl11he CurnIMINnd lAw "'~ beginnIng the week of: JUL'V 19. 2004 .trf.""f '~'?'1~ ~ 0 '.$ . :.....~."(r. . .~fL~tr.~... MI r DIHL/icrRICS INCORI'ORATEt) 124 JOLJE"rf/::'; STRr:~T MANCHESTE~ NH 03102 THFl AI'I'n.OXIMA'ru upsrrr pn.ICE FOR WllICII TIW, 1'I<oP~lnY SIIALl. Ill: :>OLD 1$: $6,244.46 TilE SUM I'ORTAXES I'KIOI( '1'0 21103 W11lCH WILL Rf.MOVE TlUi PKOPERTY FROM THE SALE IS: S2.!nS.4S TO: All Owners of property dcscribod in this o.~ticc, and all pcniCIn.~ h:lving J iCtlS. judgc:mcnl\ or municip;llllt olher clnim\ :If.ain.~t ~\lCh p.'llpcrtiCli. Noticc i~ hc:reby given by the TAX Ct.AtM BUR~U in llJ1d lor the CowlIy ofCumberlancl u>l(ICl" Ihe acl (\f 1947 P.L. 13611 a\ amended. thai the said BUREAU will expose at Public Sale in th(' CUMOERLANO COUNTY COURTHOUSE. Carli.\le, PA:lt 2:00 PM SI::l'T~MBER 2.1, 2004u( any day ([) wl,,~h tl... ,<;ile may hi: :1dj(l\lJ'lled. remljllumed Or conlin\ll:<:I, Ill' the purpose or cuU.x:linr. WlI);,itllaxl"s. mWllC'PI.1 el:lints am! Ill' eosts incidenl1ld thm:to. the a.bove described 112) e.o;tI>tc for ~t 1t:;\S1 the upset rriel; in thr amQWlt hl;fcinabove approximately set fotlh. The ....le (.i'lllis propCTly IlI~Y. "lllle Ol"f/ON orlhc BURIiAU, bcstaycu i(thc Ow.>.". Ihcrl'Ol'urany lie II eredilor of the Owner, 00 or before: the date (If :<I'le, c:tltcr:s inlO an aSJl'Clllc:nt with the BUR~U to pay taXes, c1aim~ and eosts in installmcnl$ in the m..'I1lncr provid<:<l by said ^et. and the aFJ'Ccrnent to be entered i!ll(). .... Au~ 19 04 04:46p MH CUMBERLAND COUNTY TAX ClAIM BUREAU ?I..EASf,: PRESENT THIS NOTICE WHEN MAKING PA YMEN'" ADDRlt<;S Al.L COMMUNICATIONS TO: Cl)MB~RL^ND COl)N'fV TAX Cl.A1M lJURll^U ONECOURTIIOUSESQUARE CARLISLE.I'A 17013.3389 BUSINESS x:OO AM T04:JO "M HOURS: MONnA Y TIIRU FRIDA V PHONP.; (7]7) 240-{l)66 \.k...." clmt"C! your ,\l"tlg,,\tC cump:lIIY if~(I\lJ' t"xes :VC pOliti from ;ut escrOW account. The mortgage ho ltler doC5 I)()t ro::$i ve a copy of this notice. 'n~RMS Of' !\Al.li: C;'.,h or C:"~h iIllld Check Im:l local hanl( payable to Till( Claim Bureau at the time thc property is 5tr\lck down. ... \'MOlTS PRIOR TO SAl.E; CaMo. ......,. ordw' Of' ~ chec:k~'" to "'fa ClaIm ~. Thc total above rl:(lf'csCtlts all delinQuent tlXC$ rct\ll'llcd \<l this otlkl; on YlIut pmpc:ny pIllS Co~ls a.~ of tile l!;lIe of 5:11.:. If YI>U make p;>)'m(2lt ill SuI)' or AlIt:u.~t. lhe am(l\lllt duc will be leot$, Plea.sc conlJlCt our olliee for thc el(aCL amount dllc ~fon:: malcing IIrIY Jl3YIl\CIlt.~. WARNING -YOUR PROPER'TY IS ABOUT TO BE SOLO WITHOUT YOUR CONSENT FOR OEUNQUEN'T TAXES. YOUR PROPERlY MAY BE SOLD FOR A SMALL FRAC"nON OF ITS FAIR MARKET VALUE. IF YOU HAVE ANY QUESTIONS AS TO WHAT YOU MUST DO IN ORDER TO SAVE YOUR PROP~ PLEASE CALL YOUR AlTORNc:y c..THE TAX Cl..AJM BUReAU Ii. I lltE FOLlOWING TELEPHONE NUMBER 240-6366 OR 532-7286 OR 532-7286 OR'11iE COUNTY LAWYER REFERRAL SERVICE. If p.6 DATE 7/2312004 23 ~~~~".~t:.:.":'""",,.',~, ..'1IlM/llr.i ACRE..'> - 18-000 7 MAl' NO 23-12.()340-0011 MiS I!SS ED V ALUll - 14400 t'"mmen:i:ll . V..c.'Ult Lnnd to I'll'll: STIWl!!' NI rnC:U OF TIlE 1l1!1\1I1N OF Dl'J.INO\ll~..r'rNCr,l' ^C,^IN~I"mL~ I'ltnj"ik'IV 11'1' nIl< V^~I(}II,~ 'I'MIINlJ 1)IST~l('tli ANIl nll~ IW'I'KY 01' 'rAil (:'AIM TUI!JlON.Il^S ""tiN Illtkl!'l'Ornlll< (jlVliN A('CIlKUINli TO V. W. ANU nil, 1'1'klOO (It' JU:DnMP't1ON IlAVINO DIl1'l'lI!Xl'lIlF.O, SAJI>Cl..AIM HAl; NOW MCOMll^ll~O\.VIE. nlls SAn: WllJ.. DE F1Nhl.. D1VESTlNC VOVIl. TITt.Ii TO nlE 1'It0001(TY. TIll! l'(/Rl'(lSF. OF TIllS S^l.~: IlF.lN(l TO I'l\OYll>1< ~'l)R TIm CO/J.U -nr}N OF nm "'MIlUI'lT Of TAXru; OWIN<I tIN :"'-10 ~K(lPJ.:KTV. NotIc:>e of S8Ie wUl t. P\.Ibl.hed one:. '" the Evening Sentinel, the ttourisburg PatrIot ~ and the Guide News andl once In 1M CuMbertand Law Joul'r1al boglnnlJ\g the WeM or: JULY 19. 2004 M H DlllLECTR.ICS INeORl'ORA TED l24 JOLlI:::TTE STREET MANCHESTER NH 03102 ......... iii,. . ".~ ./.....~...'r".....'_.;.,' ':' '..1'.......,...~:!.>).. .iA:'P..m9~t~~~4g~~m~~o:: 'I'IW APPROXIMATE UPSr.T P/<ICt! FOR WllIClI TIlI'.I'ROI'EKTV SHALl. Ul: S01.D IS: $757.48 TilE SUM FOR TAXES PRIOR TO 200) WmCli WIl.1.. REMOVtTHE PRO?cRiY FROM THE SALE 1$: :!i398,63 TO: All Own= of property described ill this notice. and i1l1 pen;on. baving licm.~. judgcl)'lcnts or mllllicill31 at otha- cll1im.<: ~gainst .uch flI'OpcttiC5. NOliCe is hereby given by the TAX CLAIM BUREAU in and for tlll~ COWlty of Cumbc:rJand under the acL of 1947 P,L. 136&115 amended. that th~: said BUREAU will e)(pu~ Ilt Public Sale in thl; CUMBEIU.AND COUNTY COlJRTHOUS~. C'.3I'1i._lc. "^ lit 2:00 PM SEPTEMDER 23. 2004,,, any tloty tl> Which lh~ ll-'llc inl\Y be lldjoUnlCld, rClJLljoumctl or cominuod, I'll' t.h" Pwpolic of c<>ll\'.Cung W1pl>id tallc:., mWlIciPAJ I;laitnS;\I1d all cn$ts incidcnlod thetCIO. thc abovc describoo real c'tate for al leasL the upset pricc in the amount hcn::iJlllbove apprOlcim:llcly set forth, The s.~lc (lfUli, prop..'rty 1ll;IY. ..Lthe Ol'rlON "j"tbe UUIU;^U. be Maycu .1'111(' ()wn...,.I.h""..~lf (II' ;lIly lien creditor orlhe Owner. on Orbel't>rc thc .:late of sale, QltCtS inw an agtl:em\)lll with the BUREAU to pay t3xes, claim. and costs in in!<tallmcnl.S "' the maJlnet provided by said Act, and the ~groemenl t(l be I:fILa1:d In\(), '" Au: 19 04 04:47F -RL.ANO COUHTY . CLAIM BUREAU I'U,-^Sl! "RIiSENT TfIl$ NOTICE WHEN MAKING PA YMliNT ..DDRes5 AU. COMMUNICATIONS 10: CUMOEru.AND COUNTY TAX CLAIM BUREAU ONEOOURTHOUSESQUARE CAl{l.lSLI,;. rA 17013-~~l\Y . BUSlNESS 8:00 AM TO 4:30 I'M . HOORS: MONDAY llJRU FRJDA Y PHONF.: (7t7) Z4<I..(,166 Plc=c con~t your mortpgc eomp;&n)' i(~ laltC!; tire paid fl'Oll\ all cscrnw account. The motig.:lge holder 00es Illlt rcccivc 0 copy ,,!"this notice. TERMS Of SALfi: Cash ex ea.J1 ;and Cho::k on il locaIbGnk payable to Tax Oaim Bureau llt the time the propetty is strUCK down, MH Teohnolo:ies LLC 717 - 486 - 5832 F.7 :','~~:;;ii4~;,~~i.?d~QTIE~Q~j.~,~;~y.Ci?::~~~l:;{::~:~;':'~<"<;;;.' DATE 7/23/2004 CERTIFIED MAIL NO. !\'.2O.l.~' ,. >:itl\":....~;i..~j;,M'*'''t+tI.)F.SCR!P:t'fON:OP'.PROPER:F'l-:r;-:;~,..;;;..;.~ r:c .":'. CONTROl. NIJMBF.k 23 41,)5 ACRf,S- 7107 O~49 45~O 014b 4797 , :~ .~.:::;,'.. '~;.:~~.~\..<:..'~~""::.,:,'~~~'<': t.7!lO MAPNO 23-32-2336-278 ASSESSF.J> VAL.UE. 35600 P^~CHL. 5 Commercial - Vacanl Land 202 E PINE STREET N(1fJCli C1P nil! KtmlItNOPlJl<l)roQUGrrTi\XES "G.I\.tNSI'THIS I'IUlI'DTY DY nm v AKlOUS TAXI)l(1 nISTlUCTS ANI) 1lIE I!NTKY OFTAX etAlM 1HIlItON, WA,S DIiIlN ~IEllI.-roFOlU! GIVEN ....O:::,olU)jN(J TO lAW. AND nm POllOD OF~)I,\VING wmNCU'llllO, SJlJDCLAIM Hi\..~ NOW DUCOMf ....osoLtnr. nus SAW wru. 0Il1'1N^1.. OIVr.STINO VWK. nn.n '1'0 nw ""'O/'{!KTY. TIIf( 1'\JlU'()!(I! ()I' TillS st.U! 1U;lN(l TO rlt(lV10C!'01l TIll' COI.l.I.:cnON 01' TIre AMOum OPTAXt!S OWINO ON SAil' l'>\oI'liltTY. j' PA'iIIBI13 PRIOR TO SAt..e c..b, ~ -- "'~~~.'4~'l~i.l.T'; orCM1lftod dlBCk ~to '"1'_ CIa'-"'-- ~'l.~R!~~~.."", ....~ ,"'.., ,.hn.... ~<'1't!I all rlt:!i"",'('!\r I....... NotIce 01' Sale." be publlldMld once In 1Iw &.1Ing SerrlII\eI. ~. HattlAurg PoIItIOt ..... ..... 1M GuIde ...... ~ GfM>> .... the cu.?'t...-'Joncf lAw .Journal ~n1ng .,.. WMIC Of: JULY 19. 2004 .~".f,~.':.:.i~.(:~~:'.,:'..'~:'.',i:,:,::;,:.~;.~.:,' .'ij-f;-.A. 'P.:p.-, 'RoxiMATEjU.PSET.:I:iAIC"'~':~' . ",~,"__J... .. , .. '., _', ~. .. ...... < . ~. f\.1wncd 1.() IbIS oil ice an yOV' JltOPCI1y pi"" co:;\.-; lIS TlI~ APPROX1MA 1'6 UPS~r "RICE FuR of the dalcofsalc.lfyou make payment in July or MH DlliLEcrRlCS lNCORPORA TED WllleH TIiE PROPEJITY SHAU. BE SOLD IS: i AuY.J1."t, the amount due win be le:ss. Please eonlllCl 124 JOLlf:.TIE STREET I OUT o(lice {or the exncl :IItlOWlI due hc:forc making MANClIESTER NH 03\02 $1,654.98 .my pay_~. WARNING THE SUM FOR TAXES PJUOR TO 2003 , WHICH WILL REMOVE THE PROPERTY I FROM TilE SALE IS: I "YOUR PROPERTY IS ABOUT TO BE SOLD wmfOUl'YOUR $797.32 I CONSENT FOR DEUNQUarr I TAXES. YOUR PROPERTY MAV TO: All OWl>cn of PfOI'My <lcseribctJ in Ihis nolil:'~, und 1111 f'O'SO"' havinr. liQls. judgetncnls or 1 BE SOLD FOR A SMALL l>>\II'Iicip;11 or other clilim.~ IIgl1instlo'UCh Jll'Operlics. ! FRAC'nON OF rrs FAIR MARKET VAWE. IF YOU HAVE ANY NotiGeis hcr'cby gi-. by t~TAX CLAIM BUREAU itl and for\beC'.wnty ofCl.Irnberland UI'lderthcact QUESl10NS AS TO WHAT YOU of 1947 ".I~ 1'611llll amcndl:d. tIuJt thc ~d DUREAIJ will CXIJOl'C III P\lblic S4Jc i" the CUMnel-tl.AND I MUST DO IN ORDER TO SAVE COUNlYCOURTnOuSE.ClIt1islc:. PAllt 2:00 I>M SEPTEMBER 23, 2004 or any day to wbicb the I, YOUR PROPERTY PLEASE CALl. Ilale may be lldjouml:d, !adjourned. 01' continued, (O~ the purpose of eoll<!lcting unpaid tlIXC!I, mlltlieipoI YOUR A1TORN~TTHE TAX claims lIl1d all COllG i~ideIllai IbCl"e<<>. the abtwc described 1'\2\ estate fbT allCllSt lhe u~ price in the J CLAIII BUREAU" 1'HE am(ll.lII1 hCl'Cinabovc approltimarc1y ~ct forth. FOLLOWING TELEPHONE ~ NUMBER 2AO-6366 OR 532--7286 The Soak: of this propetly milY. at tile Or'J10N of the BUREAU, be stnycd if the Owner lhCl'C:)f or any liCl\ . OR 532-72~R THE COUNTY credilor of the Owner. on or before the dale of sale. l:J>tl:r'l into an agrt:cfY)eI)\ with the: J3UREAlJ 10 pAy · AW'YER R RRAL SERVICE. · 1;l.1ICl:'. claims and cost. in in~..llmcnt~ in !he Ib:umcr provided by :!laId Act. lInd !he IIfIC'Cl't'CI\110 be etltCl'Cd into. L EXHIBIT G vU.J. _L- ~.. . .*" - :- .... ..1 ~ J ." . :I~' : ~< . .,~~;. ':1'\- . . -to:' ,''''t~ ,;.rr~;', ... ..... .:/' -''':~r'O . " :..... . ~ 'J:R..4..NS~RS~~l\JT ~~D...L Ql SAtE ~ . nns L {; 'd; of Jauuary~ 2.004, puxsuant to P p~. C.S.A. S~6l9 of the " P(:tlt3SylVaci.a. U:aifoxm: Comme:reia! Cod~ A..~ERV mrA..~CIAl. BAl"t'X, ("Secured Parif). a federally-c~~ b~ im':itutian, havio.g s addrc:'S :aI P.O. Box 5"20. Johc.stoW!1, pcuDSYlvaaia l.S907 ~ sets tb:rth. as follows: 1. MII DDtLEC11UCS, lNC'7 \DcbtQfj ha.vmg a ma.iling a~ of -Box C, 1 Mounn:!n Street, Mt. Boily Springs. P~lva:Ua 17065. det2ulted on its obligations due uo.de-r a $4,500.000.00 Tc:m Loan made by Secured p;ny to Debtor W:b.ich is :s~ed by jnter 114,a.. .< ~' ~ p~ prope:rty of the Debt:04 ("Collaten...') which is idcnti:5.ed. U:t Exhibit "'At' .r.' ! ~ heretO and made a p.axt hereof. 2. Sec-..%rCd Patt'J. Us l':Xe:cised its pO$t..QdaWt re:x:tledi~ with respect to th~ ., .. ~. Co~ in accordance ~ 13 Pa..C-S.A. 99610, and by reason c.f the ecc:rci$e. b.as acquired <; ( .. ~\bc ri.ibts of The Debtor :i:a lhc C,lWcr3l. Secwed Pa..'I'ty b.e:eby sells th.e CoUa:te:al oy priVate ~~ to MEr l'Ece'OLOGIES. !.Le. a DeIa.ware li:cited Liability Company ('''Transf(:t~e''), . ~ an &eidxess of 124 Jolierre Sltee;, Ma.o.chester. New HaD:lrp~ 03102, for omd in 'on of the sw:n of Three Million Five RUllfirc<l Seventy-Pour Thoqs:LO.d NiI4e Six:U1d. :md 4.GI100ths lXIl!2.n (S3.~74..'O~.~ ), the receipt ofwbic::il Secured. P:u'ty I, I; ,! q I, :1 ~ I j/ " ~ ,1 :1 p.~ to 13 'Pa..C.S.A.. ~96'19. and. tilis Taosfer St~r~ m<!. Bill o~ Sale, is <=ntitiec. :0 the ~ of recotC. Qf zJl the rights of the Dc:~;:or in tt<: CoilzIeral i:l. Exbioi:: "A," in any ofEc.ial filing. recortiing,. regis:rati.on or certific3.te.of.tit!c: , i' r l I ;\.. , .f EXHIBIT H NIXON PEABODY LLP Renee F. Bergmann, Esquire Id. No. 85759 1818 Market Street, 11 th Floor Philadelphia, P A 19103 Telephone: (215) 246-3520 fN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA UGI ENERGY SERVICES, fNe. d/b/a GasMark, CIVIL ACTION - LAW Plaintiff, v. Mh DIELECTRICS, INe. Mh TECHNOLOGIES, LLC. , Defendant. No. 04-1552 CV DEFENDANT Mh TECHNOLOGIES, LLC'S ANS\VER TO PLAINTIFF'S FIRST AMENDED COMPLAINT I. Denied. The allegations of this paragraph constitute conclusions oflaw for which no response is required and which are deemed denied pursuant to Pennsylvania Rules of Civil Procedure. 2. Denied. Answering Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegations of this paragraph and, therefore, deny such allegations. 3. Denied. Answering Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegations of this paragraph and, therefore, deny such allegations. 4. Admitted. R785807.1 - 2 - 5. Denied. Answering Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegations of this paragraph and, therefore, deny such allegations. 6.-13. Paragraphs 6 through 13 are not directed to answering defendant, Mh Technologies and therefore all allegations contained therein are deemed denied. WHEREFORE, defendant, Mh Technologies, LLC demands judgment against Plaintiff, along with an award of attorneys fees and costs. COUNT II 14. The allegations contained in paragraphs 1 through 13 are incorporated as if more fully stated at length herein. 15. Parab'Taph 15 is not directed toward Answering Defendant, Mh Technologies and therefore no response is required. WHEREFORE, defendant, Mh Teclmologies, LLC demands judgment against Plaintiff, along with an award of attorneys fees and costs. COUNT III 16. The allegations contained in paragraphs I through 15 are incorporated as if more fully stated at length herein. 1 7. Denied. Mh Technologies entered into a new mortgage for the purchase of the property in question. 18. Denied. Mh Technologies is unsure how to interpret the Plaintiffs term "active knowledge"; however, Mh Technologies was not aware of Plaintiffs alleged claim. ., - _1 - 19. Denied. Answering Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegations of this paragraph and, therefore, deny such allegations. 20. Denied. The sale price paid was market value for the property in question. By way of further response, Mh Technologies acquired the property in question at a foreclosure sale and pursuant to 12 Pa.C.S.g 51 03( 6) reasonably equivalent value is presumed to be paid by the buyer, such as Mh Technologies, at such a sale. 21. Denied. Answering Defendant is without sufficient information or knowledge to form a belief as to the truth of the allegations of this paragraph and, therefore, deny such allegations. 22. Denied as stated. The sale price was approximately 3.5 million dollars. 23. It is unclear whether the allegations contained in para!:,'Taph 23 are directed to Answering Defendant, however, in the event this paragraph is directed toward Mh Technologies, the allegations of this paragraph constitute conclusions of la\v for which no response is required and which are deemed denied pursuant to Pennsylvania Rules of Civil Procedure. WHEREFORE, Mh Technologies demands judgment in its favor and against Plaintiff, along with an award of attorneys fees and costs. COUNT IV 24. Paragraphs 1 through 23 are incorporated herein by reference and made part thereof as if more fully set forth at length herein. 25. Denied. The allegations of this paragraph constitute conclusions oflaw for which no response is required and which are deemed denied pursuant to Pennsylvania Rules of Civil Procedure. - 4 - 26. Denied. The allegations of this paragraph constitute conclusions of law for which no response is required and which are deemed denied pursuant to Pennsylvania Rules of Civil Procedure. 27. Denied. The allegations of this paragraph constitute conclusions of law for which no response is required and which are deemed denied pursuant to Pennsylvania Rules of Civil Procedure. WHEREFORE, defendant, Mh Technologies, LLC demands judgment against Plaintiff, along with an award of attorneys fees and costs. AFFIRMATIVE DEFENSES BY WAY OF FURTHER ANSWER, Mh Technologies, LLC states the following affirmative defenses: 1. Plaintiffs Complaint fails to state a claim upon which relief can be granted against Answering Defendant. 2. Plaintiffs claim is barred due to failure of consideration. 3. Plaintiffs claim is barred by the Statute of Frauds. 4. Plaintiffs claims should be denied in that any damages that may have occurred were caused by the conduct of a third party outside Mh Technologies, LLC's control and for which Mh Technologies, LLC was not legally responsible. 5. Plaintiff has failed to mitigate its damages. 6. Plaintiffs claim is barred by the doctrine ofratlfication. 7. Mh Technologies, LLC asserts the affirmative defense that reasonably equivalent value was conclusively paid for the prope11y in question pursuant to 12 Pa.C.S. ~ 5103 (2004). - 5 - 8. The parties have not conducted any discovery. Accordingly, Mh Technologies, LLC reserves the right to enumerate additional affirmative defenses as they become evident in the discovery process. WHEREFORE, defendant, Mh Technologies, LLC respectfully requests that this Court: A. Dismiss the Plaintiffs Complaint; B. Award Mh Technologies, LLC its attorneys' fees and costs; and C. Grant such further relief as is just and appropriate. DA TE: 7/2&1(');/ l ( , NIXON PEABODY, LLP ') ~--'- - ._-- - BY-~ Ren~e F. Bergma sqUIre )8!@ ~ark.~t Street 11th Floor - PhIlarretp1ml,.EA--19 1 03 . _(~15}246::j:)24 \ Peter N. Tamposi, Esq. Nixon Peabody LLP 889 Elm St. Manchester.. NH 03 1 0 1 Attorneys for Defendant, Mh Technologies, LLC - 6 .. CERTIFICA TE OF SERVICE I, Renee F. Bergmann, hereby certify that on this 1 u 1ay of July, 2004, I caused a true and correct copy of the defendant Mh Technologies, LLC's Answer to Complaint to be served upon opposing counsel, via U.S. First Class mail, postage prepaid, at the addresses listed below. Anthony P. Krzywicki, Esquire Krzywicki and Associates P.O. Box 505 "-', ~ New Hope, P A., L8938:&~ /)~...~' .,~ -' f '" / C ~~l~~}-~) // ,.- , /1 / , 1/ :;.......,./ \""----__-../'. ..-~,./ I ./ ,_.- ( ''/ ." .-"" \._~, --.,- ~ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA UGI Energy Services, Inc. d/b/a GasMark, Plaintiff ) ) ) ) ) ) ) ) ) Civil Action No. 04-1552 CV v. Mh Dielectrics, Inc. Mh Technologies, LLC Defendants SUBSTITUTION OF VERIFICATION Kindly suhstitute the attached original Verification of John Alland, CEO for Mh Technologies. LLC, for the Verification of Renee F. Bergmann. Esquire. attached to Defendants' Ans\'.;cr to First Amended Complaint. Dated: October 7,2004 Attorneys for Defendants Mh Dielectric. Inc. ,~ll1d Mh Technologies, LLC Rc-',{\: ~~--o j IN THE COURT OF COMMON PLEAS OF Cillv1BERLAND COUNTY, PENNSYL VANIA Plaintiff ) ) ) ) ) ) ) ) ) Civil Action No. 04-1552 CV UGI Energy Services, Inc. dIb/ a GasMark, v, Mh Dielectrics, Inc. Mh Technologies, LLC Defendants SUBSTITUTION OF VERIFICATION I;....ihn /Jibl-i.kfMh Technologies, LLC, state and affirm that, to the best of my knowledge, information and belief, the averments in the Answer are true and correct. I understand that any false statements made in the Answer are subject to penalties of 18 Pa. Con. Stat. Section 4904 (relating to unworn falsifications to authorities). Mh Technologies, LLC O"".l 'L t~1 ..A/ . "1/ ,..../. ~...,,~. By: ./ (~') .r/ 7. G. /~ MII.I7:.. I VERIFICATION RENEE' F. BERGMANN, hereby states that she is a Associate of the firm of NIXON PEABODY, LLC, attorneys for the defendant, Mh Technologies, LLC, in the above-referenced matter; that Mh Techologies, LLC, is outside the jurisdiction of this court and verification by one of its officers or its employees cannot be obtained within the time all owed for serving Defendant's Answer to Complaint; that she has read the foregoing Answer and Affirmative Defenses and that the facts set forth are true and correct to the best of her knowledge, information and belief. The undersigned understands that the statements therein are made subject to the penalties of 18 Pa.C.S. Section 4904 relating to unsworn falsification to authorities. DATE: i/20/ey ( ( / NIXON PEABOW; LLf - . I ~ C. -- '/ \ .,/ -\'" ; . I "- ' / \-. '1.' '----- . ,,' / -_._---:~~/ . . BY' . ../:Jt '-"7" 't.. .. ../' ---- ./ '~".)'/h-""{'~~ Renee V Berginann, Esquire ______ 1818 Market Str~et, 11 th Floor _____ Philadelphia, P Ii 19103 (2\1"5) 246-3S24 c_ Attorney for Defendant, Mh Technologies, LLC R7829191 EXHIBIT I -.;;, ~~ - C~lt"- III ... NIXON PEABODY LLP ATTORNEYS AT LAW BB9 Elm Street Manchester, NH 03101 (603) 62B-4000 Fax: (603) 62B-4040 Direct Dial: (603) 628-4014 E-Mail: ptamposi@nixonpeabody.com July 22,2004 VIA FACSIMILE (215) 862-4393 AND FIRST CLASS MAIL Anthony P. Krzywicki P.O. Box 505 New Hope, P A ] 8738 RE: UGI Energy Services, Inc. d/b/a GasMark v. Mh Dielectrics, Inc. and Mh Technologies, LLC Dear Mr. Krzywicki: This firm represents Mh Technologies, LLC, (the "Defendant") in the above-referenced action. After a thorough re\'iew of the Complaint filed on behalf of your client, UGI Energy Services, Inc. d/b/a Gas Mark, ('"Plaintiff"), as well as review of the facts of the transaction in question, I have determined that your Complaint is without merit and was without merit when it was filed. The contract at issue is between Plaintiff and defendant Mh Dielectrics, lnc" (the "Debtor"), not the Defendant. As you may know, my client purchased some of the Debtor's assets through a secured party sale by the Debtor's secured creditor, Ameriserv Financial Bank ("Ameriserv"). I attach for your review a copy of the Transfer Statement and Bill of Sale. Because my client purchased these assets through a non-collusive foreclosure sale, reasonably equivalent value is deemed to have been paid pursuant to 12 Pa.C.S. 9 5103(6)(2004). Therefore, your client does not have a valid cause of action for fraudulent transfer. Additionally, your client is presumed to have known this before it filed its complaint, as the attached Transfer Statement and Bill of Sale is a matter of public record. Similarly, your allegation that my client was unjustly enriched lacks merit. My client received none of your client's product in this sale and was not enriched or benefited in any way by the Debtor's receipt of your client's product. Your client's claims against the Defendant lack merit and appear to have been made with the purpose to harass and cause the Defendant to incur unnecessary litigation costs and expenses. I therefore believe that your Complaint violates the Pennsylvania Dragonetti Act, 42 Pa. C.S.A. M112627.1 ALBANY. "y . BOSTON ,\1A. BUFFALO. NY . CARDEN CITY. NY . HARTFORrJ. CT . \1A'CHESTER. NH . MtlfA". VA ~E\V YORK, '.;~ . ORANGE COU:\TY, CA. PHILADElPHIA, Pr\ . PROVIOENC~_, RI . ROCH[("TER,......Y. ':>~:--.. FRA\'.:CISCO, CA. W>\SHI\'.:GTO;\;, D{ NIXON PEABODY LLP Anthony P. Krzywicki July 22, 2004 Page 2 ~8351-8355, as well as Pennsylvania Rule of Civil Procedure 1023.1 governing the signing of pleadings and representations to the Court. I therefore ask that you dismiss. with prejudice, Plaintiffs claims against the Defendant in this litigation. If you continue to pursue this matter, upon conclusion, which I believe will occur through dispositive motion, Defendant will institute an action under the Dragonetti Act as a result of your actions in filing a Complaint that lacks probable cause and that was filed for an improper purpose. This letter also provides notice, pursuant to Pennsylvania Rule of Civil Procedure 1023.2(L), of 'lll-: Defenuant"s ii'llt;nt to seek sanoiol1s if :,our client UU(;S not immediately withdraw the Complaint asserted by it. Very truly yours., ~~ Peter N. Tamposi - cc: Renee Bergmann. Esq. Daniel W. Sklar. Esq. Frank A. Riccio. .lr. Mh Technologies. LLC John Allard M1J2627.1 EXHIBIT J Krzywicki & Associates Anthony P. Krzywicki Identification #23754 P.O. Box 505 New Hope, PA 18938 (215) 862-4390 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA UGI Energy Services, Inc. d/b/a GasMark Plaintiff CIVIL ACTION NO. 04-1552 CV vs. Mh Dielectrics, Inc. Mh Teclmologies LLC Defendant( s) PLAINTIFF'S SECOND SET OF REQUEST FOR ADMISSIONS DIRECTED TO MH TECHNOLOGIES, LLC Pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiff hereby serves the following set of requests for admissions to be answered separately by the defendant. Definitions 1. The words "you" and "your" mean each defendant or person(s) acting or purporting to act on his or its behalf. 2. The words "person" and "persons" mean aJI entities, but not limiting the generality of the foregoing all individuals, associations, companies, partnerships, joint ventures, corporations, trusts, estates, public agencies, departments, bureaus, and boards. 3. The words "identity" and "identity," when used with respect to an individual. mean to state the full name and present or last known address of each person, the present or last known position and business affiliation and all positions and business affiliates at all times during the period of this request. When used with respect to a corporation, "identify" or "identity" mean to state the corporation's full name, date and state of incorporation, and the address of its principal place of business. When used with respect to an individual, "identify" or "identity" mean to state full name and last known address. Instructions 1. All information is to be divulged which is in the possession of the defendant, his/her attorney or former attorneys, investigators, agents, employees, or other representative of the plaintiff or her attorneys. 2. These requests are intended as continuing reqUITIng that they be supplemented within 30 days with such information within their scope as may be acquired following your original answers by you, your agents, attorneys, or representatives. 3. Pursuant to Rules 4014 & 4019 of the Pennsylvania Rules of Civil Procedure, plaintiff hereby requests that defendant admit or deny, for the purposes of this action only, the truth of the following matters. If you df:ny any of the matters set forth below, you shall set forth in detail the reasons why you cmmot fully admit the matter. If, in good faith, you qualify any answer or deny any part of a matter of which an admission is requested, you shall specify so much of it as is true and qualify or deny the remainder. Pursuant to Pa. R.c.P. 4014(b), verified answers must be served on the plaintiff within thirty (30) days after service hereof or the matters contained herein shall be deemed admitted. Requests 1. John Allard's business and personal residence is 124 Joliette Street, Manchester, NH. 2. MhT, LLC was not been registered with the Sec:retary of the Commonwealth of Pennsylvania to conduct business in the Commonwealth of Pennsylvania in January 2004. 3. Mh Technologies, LLC did not make any payments during any time between July 2003 to the present to Mh Dielectrics. Inc or to any of its shareholders, officers or members of its board. 4. The companies identified from time to time in Interrogatories and Answers to Interrogatories as MhT & Mh Technologies, LLC are one in the same company. 5. The registered name of the company identified in Request No.4 is Mh Technologies, LLC. 6. Mh Technologies, LLC was formed in January 2004 and began business in January 2004. 7. Mh Technologies, LLC began business in January 2004 and began at that time to manufacture and sell Dielectric paper products. 8. Mh Technologies, LLC prior to January 2004 never had employees within the Commonwealth of Pennsylvania. 9. Mh Technologies, LLC during January 2004 employed on a full time and part time basis at least 40 individuals at One Mountain Street, Mount Holly Springs, PA 17065. 10. Mh Technologies, LLC during January 2004 made sales of Dielectric paper products to customers. 11. Mh Technologies, LLC during February 2004 employed on a full time and part time basis at least 40 individuals at One Mountain Street, Mount Holly Springs, P A 17065. 12. Mh Technologies, LLC during February 2004 made sales of Dielectric paper products to customers. 13. More than 90% of the employees ofMh Technologies. LLC during January 2004 were former employees of Mh Dielectrics. Inc. 14. Mh Technologies. LLC in January 2004 employed the fomler bookkeeper of Mh Dielectrics, Inc. ] 5. The business telephone number in January 2004 ofMh Technologies. LLC was the same telephone number used by Mh Technologies, Inc. 16. More than 90% of the product manufactures by Mh Technologies. LLC is the same type of product manufactured by Mh Dielectrics. Inc. 17. Mh Technologies, LLC during February 2004 made sales of Dielectric paper products to customers. 18. More than 90% of the employees ofMh Technologies, LLC during February 2004 were former employees of Mh Dielectrics, Inc. 19. As of October 2004 more than 90% of the employees ofMh Technologies, LLC were former employees of Mh Dielectrics, Inc. 20. The market value of One Mountain Street, Mount Holly Springs, P A 17065 in January 2004 was $1,900,000.00. 21. The assessed value of One Mountain Street, Mount Holly Springs, P A 17065 was $1,900,000.00. 22. The amount paid by Mh Technologies, LLC for One Mountain Street, Mount Holly Springs, P A 17065 in January 2004 was $1,200,000.00. 23. One Mountain Street, Mount Holly Springs, PA 17065 was not purchased through the efforts of a realtor or real estate agent in Pennsylvania. 24. One Mountain Street, Mount Holly Springs, P A 17065 was not listed for sale with a realtor in any state of the United States during 2004. 25. Mh Technologies, LLC became aware that One Mountain Street, Mount Holly Springs, P A 17065 was for sale through its relationship with Mh Dielectrics, Inc. 26. Mh Technologies, LLC purchased more than 90% of the assets of Mh Dielectrics, Inc. 27. Ameriserve Financial Bank made representations to Mh Technologies, LLC that it would not be responsible for any of the debt owned by Mh Dielectrics. Inc. if it purchased the assets of Mh Dielectrics, Inc. from the Bank. 28. Mh Technologies, LLC through its agents, officers, members, promoters or employees had knowledge that Mh Dielectrics, Inc. could not pay its debt to Ameriserve Financial Bank in January 2004. 29. Mh Technologies, LLC through its agents, officers, members, promoters or employees had knowledge that Mh Dielectrics, Inc. was in default of its obligations with Ameriserve Financial Bank in January 2004. KRZYWICKI & ASSOCIATES Dated: October 13,2004 BY: Anthony P. Krzywicki, Esq. Attorneys for Plaintiff CERTIFICATE OF SERVICE I certify that on this date I served a copy of the foregoing Requests for Admissions by depositing copies thereof in the United States mail, prepaid, addressed as follows: Peter N. Tamposi, Esq. Nixon Peabody LLP 889 Elm Street Manchester, NH 0310 I Renee F. Bergmann, Esq. Nixon Peabody LLP 1818 Market Street, 11 Ih Floor Philadelphia, P A 19103 KRZYWICKI & ASSOCIATES Dated: October 13,2004 BY: Anthony P. KrzywickL Esq. Attomeys for Plaintiff EXHIBIT K The Sentinel Online - Archived Story Page 1 of 3 Friday, October 15. 2004 www.cumberlink.com contact us I forms I subscribe I ; The Sentinel CARLISLE SHIPPENSBURG PERRY COUNTY oG jObS non: PHOTO GALLERY Nilws, Sports &: More I editorial I obituaries I classifieds I features I sections f~~~~~~i~g Sped!ls Online rl!]~d~~~a~~~I~~""nt,sa~'e! CUSTOMER CP Contilet us Subs:: home I news I sports I business archives archives I $1 This aerial photo shows the MH Technologies complex at the north end of the Holly Gap. That's Mountain StrE!et to the right. East Pine Street is visible at the very top of the photo. Bringing in the jobs By John Hilton, June 13, 2004 Frank Riccio has traveled the world for 35 years as an executive in the paper industry, When he learned that the historic former MH Dielectrics manufacturing plant in Ml. Holly Springs was for sale, his New Jersey-based investment group jumped at the opportunity to invest in Cumberland County and start a new company - MH Technologies. Riccio, the resident of the new company. says he was impressed by the location and the employees. "The facility is capable of producing extremely unique and valuable products for the global marketplace. As we worked on the deal, it also became clear that the work ethic and professional commitment of the employees at the Mt. Holly plant was unprecedented." Documents filed with the county recorder of deeds office show the Mountain Street plant was sold in January for $1.2 million. All of the employees stayed on to work with the new company and a few new ones have been hired, Riccio says. MH Technologies produces electrical papers from high-purity raw materials and specially pretreated deionized water. http://www.cumberlink.comlarticles/2004/06/13/business/busiOl.txt 10/15/2004 The Sentinel Online - Archived Story Page 2 of3 These papers are used in capacitors, condensers, power cables, transformers and other electrical and specialty applications. Volume has doubled in four months, Riccio says, adding: "We're right on course with relation to our business plan." County economic development officials cite their relationship with MH Technologies as an example of how the county can help businesses thrive and grow. MH Technologies representatives recently spent three hours with county Economic Development Director Doug Wendt and Joy Newcomer, a newly hired outreach specialist. "Doug and Joy came and immediately began brainstorming with us about how to make this company a success - from helping us with local government cooperation, to making referrals for manufacturing process and quality consulting, to support for our factory's computer network," says Sharon Medlar, chief financial officer for MH Technologies. "We know that this is just the beginning of a long and positive relationship with the county's team." The mill site beside Mountain Creek at the entrance to the Holly Gap has produced paper off and on since the 19th century. The plant has been manufacturing capacitor paper since it was purchased by the Peter J, Schweitzer family of New Jersey in 1941. In 1986, 34 employees bought the mill when its corporate owners decided to close up shop and leave town. Ten years later, after four years of negotiations, the employees sold the pl,ant to Allan Nadeau of Kennebunkport, Maine, and James Chalfin of Northampton, Mass., for $4.5 million. The plelnt operated as MH Dielectrics until this year. Riccio and his investment team want to "turn the tables" on the global economy by manufacturing products for export from Pennsylvania to world markets. "Certainly the location in Cumberland County is conducive to distributing goods very effectively throughout the U.S., the Americas and abroad," Riccio says. "Although Holly would not seem to be well-positioned, it really is." Courting businesses County officials sat down with Riccio and Medlar under a program created I:>y former Gov. Tom Ridge and then known as the Team Pennsylvania Business Calling Program, The program encourages economic development personnel to get out of the office and into the business community by directly meeting with the executives and owners of area companies, Now renamed the Business Retention and Expansion Program under Gov, Ed Rendell, the state program recently received a five-year renewal under the condition that the volume of visits and the "return on investment" from those visits both increase significantly in the coming years. "We're ready to meet and exceed the new standards," Wendt says. "The commissioners have asked us to demonstrate a clear return and reach for higher objectives within the constraints of our cLlrrent budget. A greater emphasis on the business visits represents just the first element in that overall effort." Wendt is preparing a performance management plan for commissioners that will tie each aspect of the office's activities directly to the impact in the business community. The Business Retention and Expansion Program standards call for each site visit to involve a one-on-one interview with the executive or owner. The participants are to discuss the company's experiences with issues ranging from taxes to Internet access and from equipment financing to site selection, In addition, a "customer action plan" can be created for follow-up on one to three issues of interest to the company's executives. "Some of our site visits have resulted in up to 15 specific follow-up items," NElwcomer says. "And each item involves a specific way in which we can bring free, or low-cost services or programs to bear that can help the companies we meet with grow." Flurry of activity Nineteen site visits were done over a one-week period recently, says Jennifer Sigler, an administrative coordinator hired in April by both the economic development office and the county planning commission http://www.cumberlink.comlarticles/2004/06/13/business/busiOl.txt 10/1512004 The Sentinel Online - Archived Story Page 3 of3 Although the visits were scheduled to last an average of 20 minutes, most took upwards of two hours, "Once we sit down and introduce ourselves and why we are meeting with them, the companies just start sharing stories, asking questions and coming up with new ideas on ways in which we can help - which is exactly what we want to do," Sigler says, The three county chambers of commerce - the West Shore, Greater Carlisle and Shippensburg Area - also participate and make business visits to ensure wide coverage for the program. With the addition of Newcomer and Kari Pet yak, a second outreach specialist, the office of economic development expects to streamline the follow-up process, Wendt explains. "We recognized early on that with the complexity and sophistication of each company's needs, it was important to have a tag-team approach where we could manage each case independently and get the job done as efficiently as possible," Wendt says, The economic development office plans to further develop the program this summer and into the fall, targeting companies in manufacturing, transportationllogistics, tourism, health and the technology sector. State Sen. Hal Mowery, R-31, recently published a four-page brochure just listing the programs and services available for manufacturers alone, The new outreach specialists are trained to assist firms in selecting the right programs to meet their needs. For more information on the programs, call the office of economic development's outreach team directly at 240-5382 or email outreach@edccpa.net. E-mail this story The Sentine~L MORE NEWS fOR YOU { '"'' ..,,~ ~~-"-'- , ~:' Suhscrihe ' ~ere_n~J Print Version Return to Archives Related Advertising Links Capacitors Quality Since 1934 Products for Science and Industry www herbach.com $250 An Hour Job Make money filling out surveys Positions available worldwide. Aft www.survey-platinum.net 2004 The Sentinel, Carlisle, Pa, unless otherwise noted. Reprinting, reposting, or other use of the material on this site is forbidden. http://www.cumberlink.comlarticles/2004/061l3IbusinesslbusiO 1. txt 10/15/2004 The Sentinel Online - Archived Story Friday, October '15.2004 Page 1 of2 www.cumberlink.com contact us I forms I subscribe I ; The Sentinel CARLISLE SHIPPENSBURG PERRY COUNTY ..~,;:i,';~ , U",.>~<"Ul jobs ,1: ; #jom "': <i" PHOTO GALLERY News, Sparts &: Mere I editorial I obituaries I classifieds I features I sections fO~~~~~~i~q SpecialS Online t\o 5~d~r~~aff~~I~~'rint.Sa,.e! CUSTOMER C~ Contact U~. Subllc home I news I sports I business archives archives I 51 -.. ~ :i i j\ , , , I~~ ~ ~lt~L.' 1\ The mill looked like this today from a point near East Pine Street. (Wally Shank/The Sentinel) ~- ~-~~",~~.;J ) l ~,.... Paper mill's sale could lead to more jobs By Ella McComas, February 19, 2004 MH Dielectrics in Mt. Holly Springs has changed hands. Plant manager Tim Sullivan says American companies named Danforth Group and Allard Ventures purchased the mill have "commenced operation under the name MH Technologies." Documents filed this month with the Cumberland County recorder of deeds shows MH Technologies, a limited liability company, is licensed in Delaware. The documents say the Mountain Street plant was sold for $1.2 million, about $700,000 below the "fair market value" used by the county for assessment purposes. A "special warranty deed" is dated Jan. 26. Work force may grow Sullivan says the new company will ensure growth of the mill, which produces capacitor paper, Not just a drug store! , A ''The transition will ensure a very stable and healthy future for MH Technologies.," he says. "It will be a seamless http://www.cumberlink.com/artic les/2004/02/22/business/busi 05. txt 10/15/2004 .lHt: ~entmel Online - Archived Story Page 2 of2 transition for our customers." Sullivan does not anticipate many changes among management. "The key personnel (lineup) from the former company remains intact, complemented by a management group (Danforth and Allard) with over 100 years of combined experience in this business sector," he says. He says the jobs of the 43 mill employees are safe, "The company is operating effectively through the efforts and dedication of an outstanding production staff," he says. "(The company) is the same, but we will grow significantly." Sullivan says the growth will create a need to hire more employees. "It could be extensive," he says of the hiring potential. The paper produced at the mill is used as an insulator between the foil in electrodes in capacitors, which store energy. Sullivan explains capacitors are used "everywhere in electrical components." Other manufacturers are in Japan and Germany. Mill has long history The mill site beside Mountain Creek at the entrance to the Holly Gap has produced paper off and on since the 19th century. The plant has been manufacturing capacitor paper since it was purchased by the Peter J. Schweitzer family of New Jersey in 1941. In 1986, 34 employees bought the mill when its corporate owners decided to close up shop and leave town. Ten years later, after four years of negotiations, the employees sold the plant to Allan Nadeau of Kennebunkport, Maine, and James Chalfin of Northampton, Mass., for $4.5 million. E-mail this story The Sentinel MORE NEWS FOR YOU <,- b.. ; "> ~, , '" ' , 1'" ,....~ 'l. i ~:' SUbSCli.bc : ~;;~ . J ,ere~,.Jr Print Version Return to Archives Related Advertising Links N. Carolina Foreclosures Search for 1000s of Bank & Government Properties Now for Free! www.foreclosurefreesearch.com Fenstermacher & Assoc. Central Pennsylvania law firm Personal Injury, Family, Estate law www.fenstermacherandassociates.com 2004 The Sentinel, Carlisle, Pa. unless otherwise noted. Reprinting, reposting, or other use of the material on this site is forbidden. tp:/ /www.cumberlink.com/articIes/2004/02/22/business/busi05 . txt 10/1512004 0 "'-> 0 ,= c.-.: c.:::> ,I .-C- :;1;1'": --, "," C., ffl r< - ~ ;..., I L) (Jl '., ) ,1.) f , "-T . !:: , .. C} -"'., . -, ) - I ,. ; I -',.. \. s-;> .., ::3 -, 1...0 PRAECIPE FOR LISTING CASE FOR ARGUMENT (Must be typewritten and subnitted in duplicate) TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argunent Court. --------------------------------------------------------.------------------------------- CAPTION OF CASE (entire caption must be stated in full) UGI ENERGY SERVICES, INC. d/b/a GAS MARK ( Plaintiff) vs. Mh DIELECTRICS, INC. Mh TECHNOLOGIES, LLC ( Defendant) No. 04-1552 Civil 19 2004 1. State matter to be argued (Le., plaintiff's lrotion for new trial. defendant's demurrer to canplaint. etc.): Defendant's Motion for 'Summary Judgment 2. Identify counsel who will argue case: (a) for plaintiff: Anthony P. Krzywicki, Esquire h:3dress: Kr~ywicki & Associates P.O. Box 505 New Hope, PA 18938 (b) for defendant: Renee' F. Bergmann, Esquire ~s: Nixon Peabody lLP 1818 Market Street, 11th Fl. philadelphia, PA 19103 3. I will notify all parties in writing within 'No days that this case has been listed for argunent. 4. ArgLrnent Court Date: echnologies, LLC IEted: n ~;; ~\J ~;~,. C~l ~'i\.; -!:~;;, . ~~::: r~.: t_ "-- ~~:.~ 7' :::::l -< r-:> = = .r.- %. o ..::: I (.J1 -tJ :J: N .. c.n c:t::J o -., ~:1 ::L-n l'l1p "on'" ......)0 (''j tt~ ::~:~~"\ ~~..~ C'~) fn IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA UGI Energy Services Inc. d/b/a d/b/a GasMark Plaintiff Civil Action - In Law No. 04-1552-CV vs. Mh Dielectrics, Inc. Mh Technologies, LLC Defendant( s) PRAECIPE FOR JUDGMENT AGAINST DEFENDANT FOR FAILURE TO PLEAD To The Prothonotary: COUNT 1 UGI Energy Services Inc. d/b/a GasMark vs. Mh Dielectrics, Inc. Kindly enter default judgment in favor of Plaintiff, UGI Energy Services Inc. d/b/a GasMark, and against Defendant, Mh Dielectrics, Inc., for failure to plead to Plaintiffs Amended Complaint as follows: Amount Past Due: TOTAL $166,749.11 $166,749.11 together with interest thereon from the date of judgment forward and all costs of this action. I hereby certify to the best of my knowledge and belief as follows: 1. The true and correct address of the Plaintiff, UGI Energy Services Inc. d/b/a GasMark, is 1100 Berkshire Blvd., Suite 305, Wyomissing, PA 19610. 2. The true and correct address of the Defendant, Mh Dielectrics, Inc., is One Spring Street, Mt. Holly Springs, PA 17605. BY: DATED: October 6, 2004 SHERIFF'S RETuRN - REGULAR 3i06'-0fY1 ~ASE NO: 2004-01552 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND UGI ENERGY SERVICES INC VS MH DIELECTRICS INC GERALD WORTHINGTON , Sheriff or Deputy Sheriff of Cumberland County, Pennsylvania, who being duly sworn according to law, says, the within COMPLAINT & NOTICE was served upon MH DIELECTRICS INC the DEFENDANT , at 1618:00 HOURS, on the 8th day of July 2004 at ONE MOUNTAIN STREET MT HOLLY SPRINGS, PA 17065 by handing to SAM PICKERING a true and attested copy of COMPLAINT & NOTICE together with and at the same time directing His attention to the contents thereof. Additional Comments PICKERING DENIED BEING AN OFFICER. HE WOULD NOT TAKE PAPER. HE WAS TOLD THAT HE WAS SERVED AND PAPER WAS PUT ON COUNTER IN FRONT OF HIM. DEPUTY WAS TOLD TO VACATE PREMISES. Sheriff's Costs: Docketing Service Affidavit Surcharge So Answers: 18.00 4.44 .00 10.00 .00 32.44 /,,' r(/~:.j/-' <.' ,." ~'1~ ,..-' ,':-'"":~, J'~ - . --'~ <;......~ . , ...."".,.7 ;::'~ ,..-~,' ,.- ~~..... ~. R. Thomas Kline 07/09/2004 KRZYWICKI & ASSOC Sworn and Subscribed to before me this day of By : 'f ,.'.! r . , '/ I ' I-I ~. __ _..:;..y....;/.,~..,..{ /;<iJ;o.'~-~.-(I" .......~ , Deputy S~iff A.D. Prothonotary G IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA UGI Energy Services, Inc. d/b/a GasMark Plaintiff Civil Action - In Law No. 04-1552-CV vs. Mh Dielectrics, Inc. Mh Technologies, LLC Defendant( s) NOTICE TO: Mh Dielectrics, Inc. c/o Mh Technologies, LLC One Spring Street PO Box C Mt. Holly Springs, P A 17605 Attn: Sam Pickering DATE: September 21, 2004 You are in default because you have failed to enter a written appearance personally or by an attorney and file in writing with the court your defenses or objections to the claims set forth against you. Unless you act within ten (10) days from the date of this notice, a judgment may be entered against you without a hearing and you may lose your property or other important rights. YOU SHOULD TAKE THIS NOTICE TO A LAWYER AT ONCE. If you do not have a lawyer or cannot afford one, go to or telephone the following office to find out where you can get legal help: Cumberland County Bar Association 2 Liberty Avenue Carlisle, PAl 70 13 (717) 249-3166/(800) 990-9108 Krzywicki & Associates BY: /~/ Anthony P. Krzywicki PO Box 505 New Hope, PA 18938 215-862-4390 Attorney LD. 23754 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA UGI Energy Services Inc. d/b/a GasMark Plaintiff Civil Action - In Law VS. Mh Dielectrics, Inc. Mh Technologies, LLC Defendant(s) No. 04-1552 CV AFFIDAVIT OF SERVICE STATE OF NEW JERSEY SS. COUNTY OF HUNTERDON I, Anthony P. Krzywicki, Attorney for Plaintiff, served a true and correct copy of the Notice of Intention to Take Default pursuant to Pa. R.C.P. 237.1 on Defendant, by first class mail on September 21, 2004. SWORN TO AND SUBSCRIBED BEFORE ME THIS ~ DAY OF oekl.e. , Zoo'-/. Ii;fd/i I:?$- ~t~ry Public / UJCHELlE PYATT NOTARY PUBLIC OF NEW JEASEY MY COMMISSION EXPIAES JULY 9. 200l IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA UGI Energy Services, Inc. d/b/a GasMark Plaintiff Civil Action - In Law No. 04-1552-CV vs. Mh Dielectrics Inc. Mh Technologies LLC Defendant( s) The undersigned hereby certifies that written notice of intention to file a praecipe for entry of judgment by default against the defendant, Mh Dielectrics Inc., in this matter was mailed to the defendant after the default occurred and at least ten days prior to the filing of the praecipe for entry of judgment pursuant to Pa.R.C.P. 237.1 True and correct copies of that notice is attached hereto and made a part of this certification. BY: DATED: October 6, 2004 " . - ~ A.J P ~ it:. '[ :-C 0 r--.,) ~:: c::"..'> 0 = 8 ....- -11 ~ ...". --,I '- 4Il"~1,... I ~ I C::J :I" ~ - ;"1 < rllf;;:;; ~ W ("r:{ ~~: I -om ...0 f! CD ~.1'jC) ).J l - ' (") , ~ ~ -r~., ~~~~ ~ - V '. - , r: ( , .-1[,;" ';,;0 c: Cf? :jril :;~:: --I ~ ::< Cl :c~ :n \..0 -< J:- IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA Plaintiff ) ) ) ) ) ) ) ) ) Civil Action No. 04-1552 CV UGI Energy Services, Inc. d/b/a GasMark, v. Mh Dielectrics, Inc. Mh Technologies, LLC, Defendants DEFENDANT'S MOTION FOR PROTECTIVE ORDER NOW COMES the Defendant Mh Technologies, LLC ("MhT"), by and through its counsel, Nixon Peabody LLP, and respectfully moves this Court for a protective order with respect to Plaintiff's over burdensome and harassing discovery practice, and in support here states as follows: 1. This is an action by the Plaintiff UGI Energy Services, Inc. d/b/a GasMark ("Plaintiff') to recover funds from MhT under a theory of fraudulent transfer and unjust enrichment. 2. MhT believes that Plaintiff's claims are completely without merit and that Plaintiff is pursuing this action against MhT merely as a "shakedown" to wring some settlement amount from the Defendant. 3. MhT has notified Plaintiff of its intent to recover attorneys' fees and costs for this frivolous action, and has filed a Motion for Summary Judgment on all counts with this Court. 4. In apparent substitution for a meritorious case, the Plaintiffs are attempting to batter MhT into submission by overburdening it with discovery. Specifically, on or about September 13,2004 the Plaintiff issued multipart interrogatories totaling approximately sixty MJI55341 - 2 - (60) separate subparts. A copy of those interrogatories is attached as Exhibit A. MhT has dutifully responded to these interrogatories. 5. The Plaintiff also served eight requests for admissions on MhT. A copy of those requests is attached as Exhibit B. MhT has dutifully responded to those requests. 6. On or about October 13,2004, the Plaintiff issued an additional set of requests for admission to be answered by MhT, totaling 29 questions. A copy of these Requests are attached as Exhibit C. Those requests are currently pending. 7. On October 21, 2004, the Plaintiff subpoenaed six individuals, a number of which are not residents of Pennsylvania, and beyond this Court's jurisdiction. 8. Although MhT believes it will prevail on summary judgment and recover all of its attorneys' fees in this case, MhT is reluctant to spend the significant resources required to respond to Plaintiff s pending discovery, especially when most of the discovery does not appear reasonably calculated to lead to the production of admissible evidence. The Court will note this is a simple case of fraudulent transfer, with relatively narrow issues. The Plaintiffs discovery is calculated to harass rather than to collect legitimate discovery. 9. Moreover, none of the discovery requested by the Plaintiff would be responded to in time to provide any support for an objection by Plaintiff to MhT's Motion for Summary Judgment. Therefore, the Plaintiff may not argue that it requires responses to object to the pending Motion for Summary Judgment. 10. As there are no discovery deadlines or trial dates scheduled in this matter, the Plaintiff would not be prejudice by a stay of discovery pending the resolution by this Court on MhT's Motion for Summary Judgment. In fact, if MhT prevails on its Motion for Summary Judgment, this stay would only serve to minimize attorneys' fees collectible by MhT. Ml155341 - 3 - 11. MhT requests that it be allowed to attend any hearing on this matter via telephone. 12. The Plaintiffs counsel does not assent to reliefrequested herein. WHEREFORE, the Defendant MhT respectfully moves and prays that this Court: A. Issue an order in the form attached hereto as Exhibit D; and B. Grant such further relief as is just and appropriate. Respectfully submitted, Mh Technologies, LLC ,/ D ---------, October 28, 2004 Pe . Tamposi 889 Elm Street Manchester, NH 03101 (603) 628-4014 (Telephone) CERTIFICATE OF SERVICE I hereby certify that on this date a copy of the foregoing Motion was forwarded via first-class mail to Anthony P. Krzywicki, Esq., counsel for the Plaintiff. ~ - October 28, 2004 ---------- M115534.1 EXHIBIT A . ;::7':; ,. -{;.-/,J! .f ,t"''1,,"..,,) Krzywicki & Associates Anthony P. Krzywicki Identification #23754 Po. Box 505 New Hope, FA 18938 (215) 862-4390 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA UGI Energy Services, Inc. d/b/a GasMark Plaintiff v. CIVIL ACTION NO. 04-1552 CV Mh Dielectrics, Inc. Mh Technologies, LLC Defendant(s) INTERROGATORIES AND FIRST REQUEST FOR DOCUMENTS DIRECTED TO MH TECHNOLOGIES. LLC Pursuant to the Permsylvania Rules of Civil Procedure, Plaintiff hereby serves on Defendant the following set of intenogatories and first request for documents, to be answered separately by Mh Technologies, LLC. Definitions 1. The words "you" and "your" mean the defendant, or persons acting or purporting to act his/her or on its behalf. ? The words "person" and "persons" mean all entities, but not limiting the generality of the foregoing all individuals, associations, companies, partnerships, joint ventures, corporations, trusts, estates, public agencies, departments, bureaus, and boards. 3. The words "identity" and "identity," when used with respect to an individual, mean to state the full name and present or last known address of each person, the present or last known position and business affiliation and all positions and business affiliates at all times during the period of these intenogatories. When used with respect to a corporation, "identify" or "identity" mean to state the corporation's full name, date and state of incorporatlon, and the address of its principal place of business. When used with respect to an individual, "identify" or !'identity" mean to state full name and last known address. " Instructions 1. All infomlation is to be divulged which is in the possession of the plaintiff, hisiher attorney or former attorneys, investigators, agents, employees, or other representative of the plaintiff or hisiher attomeys. 2. These interrogatories are intended as continuing requiring that they be supplemented within 30 days with such information within their scope as may be acquired following your original answers by you, your agents, attomeys, or representatives. Interrogatories 1. As to the person answering these intelTogatories, state your: a. Full Name; b. Residence address; c. Business address; d. Date of birth; e. Place of birth; and f. Social Security number; 2. Is there an organizational chart for Mh Technologies, LLC? If yes, state: a. The name and address of the custodian of such chart; b. Please attach a copy to your answers. 3. State whether or not Mh Technologies, LLC owes any sums of money to Mh Dielectrics, Inc. or to any of present or past Mh Dielectrics' board members, officers, or shareholders. 4. If your answer to Interrogatory 3 is in the affirmative; a. the names of the parties who owe such sums of money; and b. the amount of money owed. 5. State the basis for the debt, identified in answer to Interrogatory No.3 and No.4. 6. If Defendant Mh Technologies, LLC entered into a purchase or sales agreement for the purchase ofMh Dielectrics' business or real estate, please state: a. the address of any such business; b. the amount agreed to be paid for any such business; c. the amounts owed, if any, by Mh Technologies, LLC for the above mentioned business or transfer; and d. the tem1S of any such business transfer between the Judgment Debtor and Defendant Purchaser. 7. State the amount of any payments made by Mh Technologies, LLC to Mh Dielectrics, Inc. in connection with answer to Interrogatory No.6. 8. Did Mh Technologies, LLC, execute or deliver to Mh Dielectrics, Inc. or to any of its shareholders, officers or members of the board a promissory note or payment of any kind from July 2003 to the present, state: a. The date of the promissory note or payment; b. The amount of the promissory note or payment; and c. The tern1S of the promissory note or payment. 9. With respect to purchase in 2004 of substantially all the assets ofMh Dielectrics, Inc. to Mh Technologies, LLC: a. State the asset or assets sold to Mh Technologies, LLC: b. State the consideration given by Mh Technologies, LLC for such asset or assets and the amount thereof; c. State the name and address of each person who was paid any of such consideration, the amount thereof and the date paid; d. Identify by title, date and the number of pages every document by which such sale or sales were effected; e. State the name of each person who executed each such document; f. State the name, address and title of each person who has possession, custody or control of a copy of each docwnent; g. State the name, address and title of each person who received a copy of each such document; h. State the name and address of each federal, state and local government authority, department, agency and commission with which any document describing or reflecting such sale or sales were filed" ' , 1. Identify by title, date and number of pages each document so fil~d; J. State the name, address and title of each person who has possession, custody or control of a copy of each document that was filed; k. State the name, address and title of each person or entity who. received a copy of each document so filed; 1. State whether in connection with the sale a list of creditors of Mh Dielectrics, Inc. was prepared and state whether defendant has in its possession, custody or control such list or a copy thereof; m. State whether in connection with the sale a schedule of assets sold sufIicient to identify them was prepared and state whether defendant has in its possession, custody or control such schedule or a copy thereof; 11. State whether any document giving notice to the creditors ofMh Dielectrics of the sale of such assets was prepared and state whether defendant has in its possession, custody or control such notice or a copy thereof 10. Was Mh Technologies, LLC or any of its Shareholders a creditor ofMh Dielectrics, Inc. during the period from January 1, 2000 and thereafter? 11. If the answer to Interrogatory No.1 0 is in the affirmative, state with respect to each claim or indebtedness, the amount and the date incurred, and identify every document which evidences, sets forth or reflects such claim or indebtedness. 12. With respect to each claim or indebtedness referred to in the answer to Interrogatory 10, state the date it was, in whole or in part, paid or otheIWise liquidated, the amount paid or liquidated, and identify each document which evidences, sets forth or reflects such payment or liquidation. 13. State the name, address and title of each person and identify each document (other than persons and documents previously identified in the answers to the Interrogatories herein or copies of which are attached to such answers), who have knowledge of facts relating to the issues raised in the Complaint and the Answer thereto. 14. Please identify the products sold and or manufactured by Mh Technologies, LLC, from the date of it's formation in 2004 to the present 15. Please identify the number of all full time and part time employees of Mh Technologies, LLC in January 2004 as well as their names and addresses. 16. Please identify the number of all full time and part time employees of Mh Technologies, LLC in February 2004 as well as their names and addresses. 17. Please identify the number of all full time and part time employees ofMh Technologies, LLC in March 2004 as well as their names and addresses. 18. Please identify the number of all full time and part time employees ofMh Teclmologies, LLC in April 2004 as well as their names and addresses. 19. Please identify the number of all full time and part time employees ofMh Technologies, LLC in May 2004 as well as their names and addresses. 20. Please identify the number of all full time and part time employees ofMh Technologies, LLC in June 2004 as well as their names and addresses. 21. Please identify the number of all full time and part time employees of Mh Technologies, LLC in July 2004 as well as their names and addresses. 22. Please identify the number of all full time and part time employees of Mh Technologies, LLC in August 2004 as well as their names and addresses. 23. Please identify the number of all full time and part time employees ofMh Technologies, LLC in September 2004 as well as their names and addresses. 24. Please identify the number of all full time and part time employees of Mh Technologies, LLC in October 2004 as well as their names and addresses. 25. Identify the number, names and addresses of all independent contractors ofMh Teclmologies, LLC in January, February, March, April, May, June, July, August, September, and October 2004. 26. Please identify the name, address and phone numbers of any and all a accountants, CPA's, advisors, lawyers, or counselors who have participated in any way with the preparation of Federal, State or Local tax returns of Mh Technologies, LLC. 27. Please identify the name, address and phone numbers of any and all vendors to whom Mh Technologies, LLC made purchases by COD or otherwise from December 2003 to the present. 28. Identify the Assets owned by Mh Technologies, LLC from the date it began to conduct business to the present. 29. Identify the name, address and phone number of every person or busin~ss entity that was a pre-incorporation promoter ofMh Technologies, LLC. 30. Identify the name, address and phone numbers of all vendors to whom Mh Technologies, LLC made payment in January and February 2004. 31. Please identify the name of the computer software program which Mh Teclmologies, LLC used at any time to maintain its accounting and bookkeeping records. 32. Identify the name, address and phone number ofthe person or entity that maintained the bookkeeping records and accounts payable for Mh Technologies, LLC from its inception to the present. 33. Identify the name, address and phone number of the person or entity that prepared any Trial Balance reports for Mh Technologies, LLC from its inception to the present. 34. Identify the amount at which Mh Technologies, LLC was capitalized at the date of its formation. 35. Were any Members ofMh Technologies, LLC creditors ofMh Dielectrics, Inc., during the period from January I, 2000 to present 36. Please identify by name, address and phone number of the Members ofMh Technologies, LLC from the date of its formation to the present. 'j7. In answer to Interrogatory No. 36 please identity by name, address and phone number, the Members of the LLC who were at any t.ime officers, directors or shareholders of Mh Dielectrics, Inc. /~ KRZYWI9X1 & ASSOCIATES Dated: September 13,2004 By: Anthonyp; ~Ji Att~y-eY for PlaintiL../.. ./,c/' L,/" CERTIFICATE OF SERVICE 1 certify that on this date I served a copy of the foregoing Interrogatories by depositing copies thereof in the United States mail, prepaid, addressed as follows: Renee F. Bergmann, Esq. Nixon Peabody LLP 1818 Market Street, 11 th Fl. Philadelphia, P A 19103 Peter Tamposi, Esq. Nixon Peabody LLP 889 Elm Street Manchester, NH 03101 KRZYWICKI & ~OCIA TES /f / .. / . / ~/ ~ Dated: September 13,2004 .,;' Ant~0~; P. .' ~~~ Esq. Attome for PlaintiffL BY: EXHIBIT B Krzywicki & Associates Anthony P. Krzywicld Identification #23754 P.O. Box 505 New Hope, PA 18938 (215) 862-4390 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA UGr Energy Services, Inc. dfb/a GasMark Plaintiff CIVIL ACTION NO. 04-1552 CV vs. Mh Dielectrics, Inc. Mh Technologies LLC Defendant( s) PLAINTIFF'S FIRST REQUEST FOR ADMISSIONS DIRECTED TO MH DIELECTRICS. INC. AND MH TECHNOLOGIES, LLC Pursuant to the PelUlSylvania Rules of Civil Procedure, Plaintiff hereby serves the following set of requests for admissions to be answered separately by the defendant. Defmitions 1. The words "you" and If your " mean each defendant or person(s) acting or purporting to act on his or its behalf. 2. The words "person" and "persons" mean all entltles, but not limiting the generality of the foregoing all individuals, associations, companies, partnerships, joint ventures, corporations, trusts, estates, public agencies, departments, bureaus, and boards. 3. The words "identity" and "identity," when used with respect to an individual, mean to state the full name and present or last known address of each person, the present or last known position and business affiliation and all positions and business affiliates at all times during the period of this request. When used with respect to a corporation, "identify" or "identity" mean to state the corporation's full name, date and state of incorporation, and the address of its principal place of business. When used with respect to an individual, "identify" or "identity" mean to state full name and last known address. Instructions 1. All information is to be divulged which is in the possession of the defendant, his/her attorney or former attorneys, investigators, agents, employees, or other representative of the plaintiff or her attorneys. 2. These requests are intended as continuing requiring that they be supplemented within 30 days with such information within their scope as may be acquired following your original answers by you, your agents, attorneys, or representatives. 3. Pursuant to Rules 4014 & 4019 of the Pennsylvania Rules of Civil Procedure, plaintiff hereby requests that defendant admit or deny, for the purposes of this action only, the truth of the following matters. If you deny any of the matters set forth below, you shall set forth in detail the reasons why you cannot fully admit the matter. If, in good faith, you qualify any answer or deny any part of a matter of which an admission is requested, you shall specify so much of it as is trUe and qualify or deny the remainder. Pursuant to Pa. R.C.P. 4014(b), verified answers must be served on the plaintiff within thirty (30) days after service hereof or the matters contained herein shall be deemed admitted. Requests 1. On or about January 26, 2004, Mh Technologies, LLC purchased real estate known as One Mountain Street, Mt Holly Springs, PA. 2. Mh Technologies, LLC did not obtain an appraisal of the value of One Mountain Street, Mt Holly Springs, P A before purchasing the real estate. 3. Mh Technologies, LLC was not provided with a copy of an appraisal of the value of One Mountain Street, Mt Holly Springs, PA before purchasing the real estate. 4. Mh Technologies, LLC purchased real estate known as One Mountain Street, Mt Holly Springs, P A knowing that the seller did not conduct an appraisal of the property within twenty four (24) months of the purchase. 5. Mh Technologies, LLC has knowledge that the value of One Mountain Street, Mt Holly Springs, PA in approximately 1997/1998 was approximately ($7,000,000) Seven Million Dollars. 6. Mh Technologies, LLC purchased real estate known as One Mountain Street, Mt Holly Springs, PA for less than ($7,000,000) Seven Million Dollars. 7. The former Comptroller of Mh Dielectric,Inc. was an employee of Mh Technologies, LLC on the date when it purchased real estate known as One Mountain Street, Mt Holly Springs, PA. 8. The former Treasurer of Mh Dielectric,Inc. was an employee of Mh Technologies, LLC on the date when it purchased real estate known as One Mountain Street, Mt Holly Springs, PA. Dated: July 26, 2004 BY: KRZYWICKI & ASSOCIATES 7 / ," "- CERTIFICATE OF SERVICE I certify that on this date I served a copy of the foregoing Requests for Admissions by depositing copies thereof in the United States mailt prepaid, addressed as follows: Peter N. Tamposi, Esq. Nixon Peabody LIP 889 Elm Street Manchester, NH 03101 Dated: July 26,2004 BY: SSOCIA TES "- EXHIBIT C t. ',' Krzywicki & Associates Anthony P. Krzywicki Identification #23754 P.O. Box 505 New Hope, PA 18938 (215) 862-4390 IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA UGI Energy Services, Inc. d/b/a GasMark Plaintiff CIVIL ACTION NO. 04-1552 CV vs. Mh Dielectrics, Inc. Mh Technologies LLC Defendant( s) PLAINTIFF'S SECOND SET OF REQUEST FOR ADMISSIONS DIRECTED TO MH TECHNOLOGIES. LLC Pursuant to the Pennsylvania Rules of Civil Procedure, Plaintiff hereby serves the following set of requests for admissions to be answered separately by the defendant. Definitions 1. The words "you" and "your" mean each defendant or person(s) acting or purporting to act on his or its behalf. 2. The words "person" and "persons" mean all entities, but not limiting the generality of the foregoing all individuals, associations, companies, partnerships, joint ventures, corporations, trusts, estates, public agencies, departments, bureaus, and boards. 3. The words "identity" and "identity," when used with respect to an individual, mean to state the full name and present or last known address of each person, the present or last known position and business affiliation and all positions and business affiliates at all times during the period of this request. When used with respect to a corporation, "identify" or "identity" mean to state the corporation's full name, date and state of incorporation, and the address of its principal place of business. When used with respect to an individual, "identify" or "identity" mean to state full name and last known address. . . ., Instructions 1. All information is to be divulged which is in the possession of the defendant, his/her attorney or former attorneys, investigators, agents, employees, or other representative of the plaintiff or her attorneys. 2. These requests are intended as continuing requmng that they be supplemented within 30 days with such information within their scope as may be acquired following your original answers by you, your agents, attorneys, or representatives. 3. Pursuant to Rules 4014 & 4019 of the Pennsylvania Rules of Civil Procedure, plaintiff hereby requests that defendant admit or deny, for the purposes of this action only, the truth of the following matters. If you deny any of the matters set forth below, you shall set forth in detail the reasons why you cannot fully admit the matter. If, in good faith, you qualify any answer or deny any part of a matter of which an admission is requested, you shall specify so much of it as is true and qualify or deny the remainder. Pursuant to Pa. R.C.P. 4014(b), verified answers must be served on the plaintiff within thirty (30) days after service hereof or the matters contained herein shall be deemed admitted. Requests 1. John Allard's business and personal residence is 124 Joliette Street, Manchester, NH. 2. MhT, LLC was not been registered with the Secretary of the Commonwealth of Pennsylvania to conduct business in the Commonwealth of Pennsylvania in January 2004. 3. Mh Technologies, LLC did not make any payments during any time between July 2003 to the present to Mh Dielectrics, Inc or to any of its shareholders, officers or members of its board. 4. The companies identified from time to time in Interrogatories and Answers to Interrogatories as MhT & Mh Technologies, LLC are one in the same company. 5. The registered name ofthe company identified in Request No.4 is Mh Technologies, LLC. 6. Mh Technologies, LLC was formed in January 2004 and began business in January 2004. 7. Mh Technologies, LLC began business in January 2004 and began at that time to manufacture and sell Dielectric paper products. , 8. Mh Technologies, LLC prior to January 2004 never had employees within the Commonwealth of Permsylvania. 9. Mh Technologies, LLC during January 2004 employed on a full time and part time basis at least 40 individuals at One Mountain Street, Mount Holly Springs, PA 17065. 10. Mh Technologies, LLC during January 2004 made sales of Dielectric paper products to customers. 11. Mh Technologies, LLC during February 2004 employed on a full time and part time basis at least 40 individuals at One Mountain Street, Mount Holly Springs, PA 17065. 12. Mh Technologies, LLC during February 2004 made sales of Dielectric paper products to customers. 13. More than 90% of the employees of Mh Technologies, LLC during January 2004 were former employees of Mh Dielectrics, Inc. 14. Mh Technologies, LLC in January 2004 employed the former bookkeeper of Mh Dielectrics, Inc. 15. The business telephone number in January 2004 ofMh Technologies, LLC was the same telephone number used by Mh Technologies, Inc. 16. More than 90% of the product manufactures by Mh Technologies, LLC is the same type of product manufactured by Mh Dielectrics, Inc. 17. Mh Technologies, LLC during February 2004 made sales of Dielectric paper products to customers. 18. More than 90% of the employees ofMh Technologies, LLC during February 2004 were former employees ofMh Dielectrics, Inc. 19. As of October 2004 more than 90% ofthe employees of Mh Technologies, LLC were former employees ofMh Dielectrics, Inc. 20. The market value of One Mountain Street, Mount Holly Springs, P A 17065 in January 2004 was $1,900,000.00. 21. The assessed value of One Mountain Street, Mount Holly Springs, P A 17065 was $1,900,000.00. 22. The amount paid by Mh Technologies, LLC for One Mountain Street, Mount Holly Springs, PA 17065 in January 2004 was $1,200,000.00. 23. One Mountain Street, Mount Holly Springs, PA 17065 was not purchased through the efforts of a realtor or real estate agent in Pennsylvania. 24. One Mountain Street, Mount Holly Springs, P A 17065 was not listed for sale with a realtor in any state of the United States during 2004. 25. Mh Technologies, LLC became aware that One Mountain Street, Mount Holly Springs, P A 17065 was for sale through its relationship with Mh Dielectrics, Inc. 26. Mh Technologies, LLC purchased more than 90% of the assets ofMh Dielectrics, Inc. 27. Ameriserve Financial Bank made representations to Mh Technologies, LLC that it would not be responsible for any of the debt owned by Mh Dielectrics, Inc. if it purchased the assets of Mh Dielectrics, Inc. from the Bank.. 28. Mh Technologies, LLC through its agents, officers, members, promoters or employees had knowledge that Mh Dielectrics, Inc. could not pay its debt to Ameriserve Financial Bank in January 2004. 29. Mh Technologies, LLC through its agents, officers, members, promoters or employees had knowledge that Mh Dielectrics, Inc. was in default of its obligations with Ameriserve Financial Bank in January 2004. BY: KRZYW Dated: October 13, 2004 CERTIFICATE OF SERVICE I certify that on this date I served a copy of the foregoing Requests for Admissions by depositing copies thereof in the United States mail, prepaid, addressed as follows: Peter N. T amposi, Esq. Nixon Peabody LLP 889 Elm Street Manchester, NH 03101 Renee F. Bergmann, Esq. Nixon Peabody LLP 1818 Market Street, 11 th Floor Philadelphia, P A 19103 KRZYWICKI & ASSOCIATES Dated: October 13, 2004 BY: Anthony P. Krzywicki, Esq. Attorneys for Plaintiff EXHIBIT D IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY PENNSYLVANIA UGI Energy Services, Inc. d/b/a GasMark, Plaintiff ) ) ) ) ) ) ) ) ) Civil Action No. 04-1552 CV v. Mh Dielectrics, Inc. Mh Technologies, LLC, Defendants ORDER ON DEFENDANT'S MOTION FOR PROTECTIVE ORDER This matter coming before the Court on the Defendant's Motion for Protective Order (the "Motion"); the Court having reviewed the Motion and the Court having determined that the legal and factual bases set forth in the Motion establishes just cause for the relief granted herein. IT IS HEREBY ORDERED THAT: 1. The Motion is GRANTED; 2. Counsel for the Defendant is allowed to attend any hearings on this matter via telephone; and 2. All discovery in this action, including outstanding subpoenas, is stayed pending an order by this Court on Defendant's Motion for Summary Judgment. Dated: , 2004 Judge Ml15546.1 ~ (.' I '~ )." ;:- :<:-; -::: o c ,'I' ~ ~ , ..: r--.J ("' .:;) ~":;::.',) J:'- C) Cj --1 f"'"" I.D o -q '-4 :-:C -n f!1..:.- r-- -., rTl -':) C..] ( ! I t;);,~i -'. ( ) (~)I'n '--1 ),"- ,:;0 -< ~"""I .. . --II".. ~~5 C'I UGI ENERGY SERVICES, INC. d/b/a GASMARK, PLAINTIFF v. Mh DIELECTRICS, INC. Mh TECHNOLOGIES, LLC., DEFENDANTS : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : 04-1552 CIVIL TERM IN RE: MOTION OF DEFENDANT. Mh TECHNOLOGIES. LLC. FOR SUMMARY JUDGMENT BEFORE BAYLEY. J. AND GUIDO. J. ORDER OF COURT AND NOW, this ~ day of December, 2004, the within motion for summary judgment being prematurely listed before the record is complete, the motion IS DISMISSED. ~thony P. Krzywicki, Esquire KRZYWICKI & ASSOCIATES P.O. Box 505 New Hope, PA 18938 For Plaintiff ~enee F. Bergmann, Esquire NIXON PEABODY, LLP 1818 Market Street, 11 th Floor Philadelphia, PA 19103 For Defendants :sal / By the Court, ~ / / , / (r/<"- ~' Edgar B. Bayley, J. I J \: ;.\': ./':, ~ , r, , -I' ,\l:\~r"~\" " ':,'....::-.;J S I :iJ Hd () - 'PO "Imp ti v~ uuc" ;\t'ii\J;\{~);~_:J)c~: 3:-11 ;;0 3~)Lj~CJ-Q:}lLj ~ UGI ENERGY SERVICES, INC., d/b/a GASMARK, Plaintiff vs. MH DIELECTRICS, INC., MH TECHNOLOGIES, LLC, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 04-1552 CIVIL IN RE: DEFENDANT'S MOTION FOR PROTECTIVE ORDER ORDER ~J. AND NOW, this I day of December, 2004, a brief argument on the within motion of defendant Mh Technologies, LLC for a protectivE: order is set for Thursday, February 3, 2005, at 2:30 p.m. in Courtroom Number 4, Cumberland County Courthouse, Carlisle, P A. Lfillthony P. Krzywicki, Esquire For the Plaintiff .."'~' ~ee F. Bergmann, Esquire v!.:~e: N. Tamposi, Esquire F or the Defendants ~ :rlm BY THE COURT, ~~,dJ 7' Hess, J A~~ v\' \0/ O L,~ \ 1).:10' Lt' _ (_2 (_'-, H:::~~_ () (~) (1.,[.< CD 0.- "'-.!LU l_L-r:: ~ tL () """ cO C>") .,__ w.... 0") I ." ') 1:::1 o _-r c.:~ c.=:> c-l '. . :'j ( ., NIXON PEABODY LLP Renee F. Bergmann, Esquire Id. No. 85759 1818 Market Street, 11 th Floor Philadelphia, PA 19103 (215) 246-3520 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA UGI ENERGY SERVICES, INC. d/b/a GasMark, CIVIL ACTION - LAW Plaintiff, VI. Mh DIELECTRICS, INC. Mh TECHNOLOGIES, LLC., No. 04-1552 CV Defendant. MOTION FOR STATUS ORDER OF DEFENDANT Mh TECHNOLOGIES LLC NOW COMES Defendant Mh Technologies LLC ("Mh T') by and through its counsel, Nixon Peabody LLP, and files this Motion for Status Order (the "Motion"), and in support thereof avers the following: 1. UGI Energy Services, Inc. d/b/a GasMark ("Plaintiff') filed the Complaint in the above-captioned action on April 12, 2004. 2. On June 16,2004, Plaintiff tiled its First Amended Complaint (the "Complaint"). 3. Since filing its Answer to the Complaint, Mh T has responded to over 90 Requests for Admissions (including sub-parts), numerous Interrogatories and Request for Production of Documents, propounded by Plaintiff. 4. The pleadings in this matter are closed. 5. On November 8, 2004, Plaintiff filed a Praecipe for the Entry of Default Judgment, against co-Defendant Mh Dielectrics, Inc. ("Mh Dielectrics"), and the Clerk of this Court then entered judgment against Mh Dielectrics for the sum of$166,749.11, in favor of the Plaintiff. 6. Counsel for Mh T requests that this Motion be heard via telephone. 7. Counsel for Mh T attempted to confer with counsel for Plaintiff regarding this Motion. No response was received. WHEREFORE, the Defendant Mh Technologies, requests that this Court impose a discovery cut-off date as well as pre-trial filing deadlines and a trial date for the above-captioned case and that counsel for Mh T be permitted to appear via telephone. Respectfully submitted, DATE: December 28, 2004 /' f ~ ' " P~';;:'POSi, Esquire L~89 Elm Street Manchester, NH 03101 (603) 628-4014 Attorneys for Defendant, Mh Technologies, LLC CERTIFICATE OF SERVICE I, Renee F. Bergmann, hereby certify that on December 29, 2004, I caused a true and correct copy of Defendant Mh Technologies, LLC's Motion for Status Order to be served, via first class mail, upon the following: Anthony P. Krzywicki, Esquire Krzywicki & Associates P.O. Box 505 New Hope, PA 18938 Counsel to Plaintiff U ;:;.~-~ (/ .,/ 8 "> ~ ~ c::::. -olE .c- o 5! [11 fC , "., rn21 .~"'~-I C'") r- ~~~:.. /'\.) -om \0 -ocr ~C-~ <..'Jo ::::.::1- ., ;r.:.. - '- :[1 S:c.) ::r.: 0--- '"'-. (-. -;"0 Pc: C3 c5 In 2:: -., ":> -:1 /'\.) ~ -, I'\) -'" IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA UGI Energy Services, Inc. d/b/a GasMark Plaintiff vs. Civil Action - In Law No. 04-1552 CV Mh Dielectrics, Inc. Mh Technologies, LLC Defendant( s) PLAINTIFF'S REPLY TO DEFENHANT'S MOTION FOR PROTECTIVE OIIDER 1. Admitted. 2. Admitted. By way of further answer Plaintiff has plead and has uncovered facts through the discovery process which establishes the essential elements of Fraudulent Transfer under 12 PA C.S.A. 5104. Defendant Mh Technologies purchased substantially all assets of Defendant Mh Dielectrics on or about January 26, 2004 of which the Real Estate was purchased at a private sale for $900,000 less than the assessed value and $600,000 less than the appraised value of 1996. Under 12 PA C.S.A. ~ 5108 Defendant Mh Technologies did not purchase the real estate: for reasonably equivalent value thereby making the transaction a fraudulent transfer. 3. Admitted. By way of further answer Defendant has made contradictory statements as to an essential element of Fraudulent Transfer. These contradictions cast doubt as to Defendant's Mh Technologies credibility and good faith. Defendant Mh Technologies verified in answers to Interrogatory No.6 & 9 undated as October 2004 that"... the real estate was purchased from the Debtor for $1,200,000." While in answer to the First Amended Complaint on October 7,2004, John A!llard the CEO ofMh Technologies verified paragraph No. 20 that, ".. .Mh Techno!logies acquired the property in question at a foreclosure sale and pursuant to 12 Pa.C.S.A. sec 5103(6) reasonably equivalent value was presumed to be paid by the buyer. . ." 4. Denied. By way of further answer real estate was transferred in fraud of creditors when Defendant, Mh Technologies paid less then Tt~asonably equivalent value for the real estate from Defendant Mh Dielectrics. 5. Admitted. 6. Admitted. 7. Admitted. 8. Denied as stated. The summary judgment motion was denied as premature until discovery is completed. Attached as Exhibit "I" is a copy of Judges Bayley and Guido's Order of December 8, 2004. 9. Denied. 10. Denied. 11. Denied. Oral argument in Cumberland County is requested. 12. Admitted. Wherefore, the Plaintiff respectfull y requests that this Court dismiss Defendant's Motion for Protective Order and require that the Defendant answer without objection all discovery within 30 days ofthis order and produce all witnesses to appear at depositions within 90 days ofthis Order. DATED: December 16, 2004 KRZYWICKI & ASSOCIATES Respectfully ~itted, I CERTIFICATE OF SERVICI~ I hereby certify that on this date a copy of the foregoing Pleading was forwarded via first-class mail to the following: Renee F. Bergmann, Esq. Nixon Peabody LLP 1818 Market Street, 11 th Floor Philadelphia, PA 19103 Dated: December 16, 2004 EXHIBIT 1 -3 10)' ~i'--I UGI ENERGY SERVICES, INC. d/b/a GAS MARK, PLAINTIFF IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. Mh DIELECTRICS, INC. Mh TECHNOLOGIES, LLC., DEFENDANTS 04-1552 CIVIL TERM IN RE: MOTION OF DEFENDANT, Mh TECHNOLOGIES, LLC, FOR SUMMARY JUDGMENlT BEFORE SA YLEY, J. AND GUIDO, J. ORDER OF COURT AND NOW, this ~ day of DecembE!r, 2004, the within motion for summary judgment being prematurely listed before the record is complete, the motion IS DISMISSED. . - BYtheco~. rt, / // (. << . I> /. . /l ~V l/{I\v" ~~. Edgar B. Bayley, J. J Anthony P. Krzywicki, Esquire KRZYWICKI & ASSOCIATES P.O. Box 505 New Hope, PA 18938 For Plaintiff Renee F. Bergmann, Esquire NIXON PEABODY, LLP 1818 Market Street, 11 th Floor Philadelphia, PA 19103 For Defendants :sal () 1"--' ~:- ,") p I I r:-1 ' .,:1 I , , C J I I 1 " . "1 i i 1 I C) " 'c --r'\ ~ -l " ( ~ Cl \ , -, I i Ct'''! ....: UGI ENERGY SERVICES. INC., d/b/a GASMARK, Plaintiff Ys. MH DIELECTRICS, INC., MH TECHNOLOGIES, LLC. Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 04-1552 CIVIL IN RE: DEFENDANT'S MOTION FOR STATUS ORDER ORDER AND NOW, this 1/' day of January, 2005, the defendant's motion for status order shall be heard on Thursday, February 3. 2005. at 2:30 p.m. by telephone conference. .,AJlthony P. Krzywicki, Esquire For the Plaintiff ~ee F. Bergmann, Esquire ) ./Peter N. Tamposi. Esquire For the Defendants :r1m BY THE COURT. ~. /1 J- .'....- I,~;;- Z""C J'" lJUJ lid ":" ", C' J SHERIFF'S RETURN -OUT OF COUNTY CASE NO: 2004-01552 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND UCI ENERGY SERVICES INC VS MH DIELECTRICS INC R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named WITNESS , to wit: NADEAU ALLAN J but was unable to locate Him in his bailiwick. He therefore deputized the sheriff of YORK County, Pennsylvania, to serve the within SUBPOENA On May 13th , 2005 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing Out of County Surcharge Dep York County Postage 18.00 9.00 10.00 46.63 .37 84.00 05/13/2005 KRZYWICKI & So answers.:. ':--, .~..~----? - ~) ~.' . ....... ..-....-... ---~' > ..... ------- -. .::...~.--- c.....-.-- ?- -- - L.-. /..... ..' '~../ -:'_./~ R. Thomas Kline Sheriff of Cumberland County ASSOCIATES Sworn and subscribed to before me this If I::: day of .~ ;)t<;~ A.D. ....., ( }7/p~o(d'on~'# SHERIFF'S RETURN - ,OUT OF COUNTY CASE NO: 2004-01552 P COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND UGI ENERGY SERVICES INC VS MH DIELECTRICS INC R. Thomas Kline , Sheriff or Deputy Sheriff who being duly sworn according to law, says, that he made a diligent search and and inquiry for the within named WITNESS , to wit: NADEAU JUDITH A but was unable to locate Her in his bailiwick. He therefore deputized the sheriff of YORK County, Pennsylvania, to serve the within SUBPOENA On May 13th , 2005 , this office was in receipt of the attached return from YORK Sheriff's Costs: Docketing Out of County Surcharge 6.00 .00 10.00 .00 .00 16.00 05/13/2005 KRZYWICKI & -, So answexJ3c;'- / /' .' / /../_<:'-::~-~-')r__,__,c--___m;'--- _ _ _ _ ___../;:------ '"~,------- /;/~?~~C_~ R. Thomas Kline Sheriff of Cumberland County ASSOCIATES Sworn and subscribed to before me this Jfe day of 'I ~ <j / xlltJ :, A. D . ~ L" () YJu/I$_) #' II 'Prothonotary , COUNTY OF YORK /([ ~ OFFICE OF THE SHERIFF SERVICE CALL (717) 771-96\1I 45 N. GEORGE ST., YORK, PA 17401 UGI Energy Services Inc INSTRUCTIONS PLEASE TYPE ON. Y LINE 1 THRU 12 DO NOT DETACH ANY COPES 2 COURT NUM~ CI, 04-1552" '- v 4. TYPE OF WRIT COMPLAINT SHERIFF SERVICE PROCESS RECEIPT and AFFIDAVIT OF RETURN 1 PLAINTIFF/51 3 OEFENQANTI$I SERVE .. Mh Dielectrics Inc et al Subpoena .0. r':,,,""" 1/.',35 ('15. 5 NAME OF INDIVIDUAL, COMPANY. CORPORATION, ETe TO SERVE OR DESCRIPTION OF PROPERlY TO BE LEVIED. ATTACHED, OR SOLO ( Judith A. Nadeau { AT 6 ADDRESS (STREET OR RFO VIJITH BOX NUMBER, APT NO. CITY. BORD. TWP. STATE AND liP CODE) 20 S. Alydar Blvd Dillsburg, PA 17019 o PERSONAL lJ PERSON IN CHARGE U DEPUTIZE cXk15~t- :fA~d lJ 1 S1 CLASS MAIL U POSTED U OTHER March 23 , 20-2~ I, SHERIFF OF ~ COUNTY, PA, dg hereby deputlze}l1e sheriff of York. COUNTY to execute t f"<"I>l!:~~rn t 14!Yedt'~SWdlng This depulization being made at the request and risk of the plainliff ;:t:!2..... -, :;:.:e-.A , . SHERIFF OF COUNTY 7 INDICATE SERVICE NOW to law. 8_ SPECIAL INSTRUCTIONS OR OTHER IN FORMA TION THAT WIll ASSIST IN EXPEDITING SERVICE Please mail return of service to Cmlberland County ,\DVL\.[JC.:': FE1~ PD BY SHI:rtIFF Cumberland OUT OF COUNTY CmmE\1Lt.lH) Sheriff. Thank you. NOTE: ONLY APPLICABLE ON WRIT OF EXECUTION: N.B. WAIVER OF WATCHMAN. Any deputy shenff levying upon Of attactllng any property under withm W(lt may leave same witnDut it. watchman. in custody of whome~er is foonQ in possession. after notIfying per~n aileV)' or anachmenl. withOut liability on the part of such deputy or the sheriff to any plainliff hetein IOf any loss. destrudlOn. or removal of any property before sheriffs sale thereof 9. TYPE NAME and ADDRESS 01 A TIORNEY ( ORIGlNA TOR and SIGNATURE 10. TElEPHONE NUMBER n DATE FllED .:^'~:ri'=IU:f'! ;:.~ZY;n~C::I "'0 'co:: 505 ~:[~~J I~OP;~th ~)^ 1 r0.?f"I, C11 Cl_,,( ^"_! ~ctl ').~"1-0~' 12 SEND NOTICE OF SERVICE COpy TO NAME AND ADDRESS BelOW (thIS area must be completed If notice IS 10 be mailed) CUtl~::~:~:':L/>~~D CO =~;:~:~I'?7 13 I acknowtedge receipt of the writ or complaml as indicated above SPACE BELOW FOR USE OF nE SHERFF - DO NOT WRITE BELOW lMS LIE 1.. DATE RECEIVED ." .",~:I::~US 3~7(~05 15. Expiration/Hearing Date 1,.-;1.0-05 16. HOW SERVED 17 18 RESIOENC~ POSTED ( PDEI ) SHERIFF'S OffiCE ( ) OTHER I SEE REMARKS BElOW q,' c/ ~~ .1-\ " eun eck N( "0 Costs Due or Refund .1, AFFIRMED and subscribed to before me thiS .2, day ot tVlAY ,20 05"3 9TH 44. SIgnature of Oep. Sherin 46 Signature of York County Sherift lJILLli'u\'i I-'i HOSE, SHERIFF 48 Slgnalufe of foreign County Shen" ETURN SIGNATURE lE 47 PROT f NOTARY 5/9/05 49 DATE ~-T'E RECE\\iEO J / 1. 'AtiITE _ ISSUIng Authority 2. PINK - Attorney 3. CANARY - Stlecift's OffICe 4. BLUE - Shenft's Oftlce ~~ OFFICE OF THE SHERIFF COUNJY OF YORK SERVICE CALL (717) 771-9601 45 N. GEORGE ST., YORK, PA 17401 SHERIFF SERVICE PROCESS RECEIPT and AFFIDAVIT OF RETURN INSTRUCTIONS PLEASE TYPE ONLY LINE 1 THRU 12 DO NOT DETACH ANY COPES 2 C'bU4'~ r~~~ER, . - _ C V 4. TYPE OF VVRIT OR COMPLAINT , PLAINTIFF/S! UGI Energy Services Inc 3 DEFENDANT/$! SERVE .. AT Mh Dielectrics Inc et al subpoena:Jc c:h('cJ:,;;1'11~~)3:J ~)15. O( 5 NAME OF INDIVIDUAL, COMPANY, CORPORATION, ErG TO SERVE OR DESCRIPTION OF PROPERTY 1"0 BE lEVIED. ATTACHED. OR SOLO { Allan J. Nadeau 6 ADDRESS (STREET OR RFO WITH BOX NUMBER, APT NO, CITY, BORD. TWP. STATE AND ZIP CODE) 20 S. Alydar Blvd Dillsburq, PA 17019 o PERSONAL lJ PERSON IN CHARGE U DEPUTIZE U ERr MAIL March 23 LJ 1 ST CLASS MAIL U POSTED U OTHER 7 INDICATE SERVICE NOW ,20_ I, SHERIFF OF COUNTY, PA, York COUNTY to execute t This deputization being made at the request and nsk of the plaintiff. OUT 1W~'blffilfy CUl'lDE:1L.\ND to law. 8. SPECIAL INSTRUCTIONS OR OTHER INFORMATION THAT VV1ll ASSIST IN EXPEDITING SERVICE Please mail return of service to CUmberland County Sheriff. Thank you. I\T~" f'lJ(''f' Ti'Fl:' pn :;,"'1 ~F~~l:T':;":;' NotE: OHL Y APPLICABLE ON WRIT OF eXECUTION: N.D. WAIVER OF WATCHMAN. Any deputy shenff levying upon Of attaching any property under within wnt may leave same withOut a watchman, in custody of wtlomever is found in posstission. after no\\f'1ing person of levy or attachment WIthout liability on me part 01 such deputy or the shenff to any plaintiff herein for any toss, destnJdion. or removal of any property before sheriffs sale thereof 9, TYPE NAME and ADDRESS of ATTORNEY I ORIGINATOR and SIGNATURE 10. TElEPHONE NUMBER 11 DATE fl\..'E.D .:JIT:;Oi!Y ::~~~,~~T\l2:C:-:I 21~-~~,2-(390 3-71-05 12. SEND NOTICE OF SERVICE COpy TO NAME AND ADDRESS BELOW (This area must be completed if notice is 10 be mailed) CU~:~,;~.-:L'.L;;-) CU :~~=;=~T~-;';' 13. I acknowtedge receipt of the wrd or complaint as indicated above SPACE BELOW FOR USE OF TtE SHERFF - DO NOT WRITE BELOW TtIS LI\IE 14, DATE RECEIVED 3-2/i-0:-; n h. .i\.r;:~~[.J~) 15 EXpiration/Hearmg Date 4-z0-05 16 HOW SERVED PERSONAL ( 17 ,. RESIDENCE ( POSTED ( POE( ) SHERIFF'S OFFICE ( ) OTHER SEE REMARKS BelOW \ 22 REMARKS '1 < ,;.. AJA l 7/Q),MtL ~"'-', v 23 Advance Costs 33 Costs Due Of Refund Check No 40. Costs Due or Refund 41. AFFIRMED and. subscnt)ed to ,before me this '2 day 01 L'lAY ,20 0543 PROT 44. Signature of Oep, Sherin 46 Signature of York CountySheritl HILLIAl1 l1 HOSE, 48. Signature 01 Foreign County Shenfl SIGNATURE 45 '? "/(.3!o [ 47 ATE - HERIFF~~~ 5/9/05 49 DATE FE RECEIVED / , 1, V\lHITE -Issuang Authority 2. PINK - Attorney 3 CANARY - Sheriffs Office 4. BLUE - Sheon'sOffice