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Home My WebLink About05-6702John W. Purcell, Jr. I.D. 29955 Purcell, Krug & Haller 1719 North Front Street Harrisburg, PA 17102 (717) 234-4178 ipurcell@pkh.com AMERICAN WELDING & TANK TAYLOR-WHARTON GAS EQUIPMENT, DIVISION OF HARSCO CORPORATION, Plaintiff VS. IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PA NO. Q5 76G1 CIVIL ACTION-LAW PRO TANKS LEASING, LLC, UNITED PROPANE GAS, INC. AND LIBERTY PROPANE GAS, LLC, Defendants TO THE PROTHONOTARY PRAECIPE Please issue a Writ of Summons on the Defendants, Pro Tanks Leasing, LLC, United Propane Gas, Inc. and Liberty Propane Gas, LLC, at the address of Box 2450, 4200 Cairo Road, Paducah, Kentucky 42-2-2450. PURCE UG & HALL BY Jo W. Pu ell, Jr. #29955 1719 North Front Street Harrisburg, PA 17102 Date: December 22, 2005 (717) 234-4178 r> C7 a V -xti G1 x `n ?qe} ---.? _ T!U f? C'J fit" 3n'. _ y-si ",? 'C+ ? ? {"^ cn q?J _ ? ?_ iy. ? ???. ? ? ?` C ) 0 Commonwealth of Pennsylvania County of Cumberland WRIT OF SUMMONS AMERICAN WELDING & TANK TAYLOR-WHARTON GAS EQT. DIV OF HARSCO CORP. Court of Common Pleas Plaintiff Vs. No. 05-6702 In CivilAction-Law PRO TANKS LEASING LLC, UNITED PROPANE GAS, INC. AND LIBERTY PROPANE GAS, LLC BOX 2450, 4200 CAIRO ROAD, PADUCAH KY 42-2-2450 Defendant To PRO TANKS LEASING LLC, UNITED PROPANE GAS, INC. & LIBERTY PROPANE GAS, LLC: You are hereby notified that AMERICAN WELDING & TANK et at the Plaintiff has / have commenced an action in Civil Action-Law against you which you are required to defend or a default judgment maybe entered against yo . It (SEAL) '--> CURTIS R. LONG Prothonotary Date DECEMBER 22, 2005 By Attorney: Name: JOHN W PURCEELL JR ESQUIRE Address: 1719 N. FRONT ST. HARRISBURG PA 17102 Attorney for: Plaintiff Telephone: (717) 24-4178 Supreme Court ID No. 29955 Deputy AFFIDAVIT OF SERVICE Commonwealth of Pennsylvania Case Number: 05-6702 County of CUMBERLAND Plaintiff: AMERICAN WELDING & TANK, TAYLOR-WHARTON GAS EOT., DIVISION OF HARSCO CORPORATION vs. Defendant: PRO TANKS LEASING LLC, UNITED PROPANE GAS, INC. AND LIBERTY PROPANE GAS, LLC, For: John W. Purcell Jr. PURCELL, KRUG & HALLER Circuit Court Received by CHOICE PROCESS - TAMPA on the 27th day of December, 2005 at 3:32 pm to be served on PRO TAN LEASING LLC OX 2450, 4200 CAIRO ROAD, PADUCAH, KENTUCKY 42002-2450. I, ?rce being duly sworn, depose and say that on the AV day of c 20 at ?:_51=.m., executed service by delivering a true copy of the WRAF OF SUMMONS in accordance with state statutes in the manner marked below: t PUBLIC AGENCY: By serving pt e within-named agency. tr? as () SUBSTITUTE SERVICE: By serving () CORPORATE SERVICE: By serving () OTHER SERVICE: As described in the Comments below by serving () NON SERVICE: For the reason detailed in the Comments below. COMMENTS: I certify that I have no interest in the above action, am of legal age and have proper authority in the iurisdiction in which this service was made. of as Subscribed and Sworn to before me on the J day o 2QO? by the affiant who is p ona ly kn wn to me. NOTARY f'UBLI PROCESS SERVER # V? C, a Appointed in accordance with State Statutes CHOICE PROCESS - TAMPA P.O. Box 1215 Tampa, FL 33601 (813) 229-1444 Our Job Serial Number: 2005006719 Copyright 01992-20M Drt base Services, Inc. - Process Servers Toolbox V5 5j as as ?? ' l,) ( ? .tip ? ,., C. _t ? -_ L. -r) ? ? (_ ?.,,? ? ( `, 1 AFFIDAVIT OF SERVICE Commonwealth of Pennsylvania County of CUMBERLAND Circuit Court Case Number: 05-6702 Plaintiff: AMERICAN WELDING & TANK, TAYLOR-WHARTON GAS EQT., DIVISION OF HARSCO CORPORATION VS. Defendant: PRO TANKS LEASING LLC, UNITED PROPANE GAS, INC. AND LIBERTY PROPANE GAS, LLC, For: John W. Purcell Jr. PURCELL, KRUG & HALLER Received by CHOICE PROCESS - TAMPA on the 27th day of December, 2005 at 3:32 pm to be served on UNITED PROP{?lE G?qS. INCpRPORATED, BOX 2450, 4200 CAIRO ROAD, PADUC.AH, KENTUCKY 42002- 200 i, ?JQ?ofJ_GUH1d?tiG being duly sworn, depose and say that on the 3A*ay of ,?A20 at executed service by delivering a true copy of the WRIT OF SUMMONS in accordance with state statutes in the manner marked below: '?4UBLIC AGENCY: By serving as of the within-named agency. () SUBSTITUTE SERVICE: By serving as () CORPORATE SERVICE: By serving as () OTHER SERVICE: As described in the Comments below by serving _ as () NON SERVICE: For the reason detailed in the Comments below. COMMENTS: I certify that I have no interest in the above action, am of legal acs. and have proper authority in the jurisdiction in which this service was made. S scribed and Sworn to before me on the day PROCESS SERVER # o t by the affiant who is Appointed in accordance pe nal kno n to me. with State Statutes CHOICE PROCESS - TAMPA NOTARY PUBI.I It, P.O. Box 1215 Tampa, FL 33601 (813) 229-1444 Our Job Serial Number: 2005006720 Copyright 01992-2005 Database Services, Inc. - Process Servers Toolbox VS 51 AFFIDAVIT OF SERVICE Commonwealth of Pennsylvania Case Number: 05-6702 County of CUMBERLAND Plaintiff: AMERICAN WELDING & TANK, TAYLOR-WHARTON GAS EQT., DIVISION OF HARSCO CORPORATION VS. Defendant: PRO TANKS LEASING LLC, UNITED PROPANE GAS, INC. AND LIBERTY PROPANE GAS, LLC, For: John W. Purcell Jr. PURCELL, KRUG & HALLER Circuit Court Received by CHOICE PROCESS - TAMPA on the 27th day of December, 20D5 at 3:32 pm to be served on LIBERTX PROPANE ??A?St LLC, BOX 2450, 4200 CAIRO ROAD, PADUCAH, KENTUCKY 42002-2450. I, t *'? (,?Pr? being duly sworn, depose and say that on the 39" day of `J???? 20Qjc at ID :32?.m., executed service by delivering a true copy of the WRIT OF SUMMONS in accordance with state statutes in the manner marked bel'owI : PUBLIC AGENCY: By serving as of th within-named agency. () SUBSTITUTE SERVICE: By serving () CORPORATE SERVICE: By serving () OTHER SERVICE: As described in the Comments below by serving () NON SERVICE: For the reason detailed in the Comments below. COMMENTS: I certify that I have no interest in the above action, am of legal age and have proper authority in the jurisdiction in which this service was made. Subscribed and Sworn to before me on the day of C 3oD by the affiant who is p ;7AR' lly kno B to me. UBLI as .S. d. PROCESS SERVER # / C Appointed in accordance with State Statutes CHOICE PROCESS - TAMPA P.O. Box 1215, Tampa, FL 33601 (813) 229-1444 Our Job Serial Number: 2005006721 as as Copyright 0 1992-2005 Database Services, Inc. - Process Servers Toolbox V5.51 _._? - :i C _? ?'. C. . ? 1 c.- i ' - t . s S ?? > ._ John W. Purcell, Jr. I.D. 29955 Purcell, Krug & Haller 1719 North Front Street Harrisburg, PA 17102 (717) 234-4178 ipurcellPpkh.com AMERICAN WELDING & TANK TAYLOR-WHARTON GAS EQUIPMENT, DIVISION OF HARSCO CORPORATION Plaintiff vs. PRO TANKS LEASING, LLC, UNITED PROPANE GAS, INC. AND LIBERTY PROPANE GAS, LLC Defendants IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY. PENNSYLVANIA NO. 05-6702 CIVIL ACTION-LAW 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 have been served. To defend against the aforementioned claims, a written appearance stating your defenses and objections must be entered and filed in writing by you, the defendant, or by an attorney. You are warned that if you fail to take action against these claims, the court may proceed without you and a judgement for any money claimed in the complaint or for any other claim required by the plaintiff may be entered against you by the court without further notice. You may lose money, 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 32 S. Bedford Street Carlisle, PA. 17013 -- (717) 249-3166 (800) 990-9108 NOTICIA Le han demandado a usted en Is corte. Si usted quiere defenderse de estas damandas expuastas en las paginas siguientes, usted tiene viente (20) dias de plazo al partir de la fecha de Is, demands y Is notificacion. Usted debe presentar una apariencia escrita o en persona o por abogado y archivar en Is corte en forma escrita sus defensas o sus objeciones a las demandas en contra de su persona. Sea avisado que si usted no se defiende, Is corte tomara medidas y puede entrar una orden contra usted sin previo aviso o notificacion y por cualquier queja o alivio que es pedido en Is peticion de demands. Usted puede perder dinero o sus propiedades o otros derechos importantes pars. usted. LLEVE ESTA DEMANDA A UN ABODAGO IMMEDIATAMENTE. SI NO TIENNE ABOGAD O SI NO TIENE EL DINERO SUFICIENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA O LLAME POR TELEFONE A LA OFICINA CUYA DIRECCION SE ENCUENTRA ESCRIDA ABAJO PARR AVERIGUAR DONDE SE PUEDE CONSEGUIR ASSISTENCIA LEGAL: Cumberland County Bar Association 32 S. Bedford Street Carlisle, PA. 17013 -- (717) 249-3166 (800) 990-9108 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA NO. 05-6702 CIVIL ACTION-LAW COMPLAINT 1. The Plaintiff is American Welding & Tank„ a division of HARSCO AMERICAN WELDING & TANK TAYLOR-WHARTON GAS EQUIPMENT, DIVISION OF HARSCO CORPORATION Plaintiff vs. PRO TANKS LEASING, LLC, UNITED PROPANE GAS, INC. AND LIBERTY PROPANE GAS, LLC Defendants Corporation, a corporation organized and existing under the laws of the state of Delaware, with an address of 4718 Old Gettysburg Road, Mechanicsburg, Cumberland, PA 17055. 2. The Defendant Pro Tanks Leasing, LLC, (hereinafter "Pro Tanks") is a corporation organized and existing under the laws of the State of Kentucky, with an address of P.O. Box 2450, Paducah, Kentucky 42002. 3. The Defendant United Propane Gas, Inc., is a corporation organized and existing under the laws of the State of Kentucky, with an address of Box 2450, 4200 Cairo Road, Paducah, Kentucky 42002-2450. 4. The Defendant Liberty Propane Gas, LLC, is a corporation organized and existing under the laws of the State of Delaware, with an address of P.O. Box 2450, Paducah, Kentucky 42002. 5. At all times relevant herein, Plaintiff believes and therefore avers that Defendant Pro Tanks Leasing LLC is a wholly owned subsidiary of the Defendant Liberty Gas Propane Gas, LLC. COUNTI PLAINTIFF V. DEFENDANT PRO TANKS LEASING, LLC NOTE 1 6. Paragraphs 1 through 5 are hereby incorporated by reference as if set forth at length. 7. On or about March 10. 2005, the Defendant Pro Tanks entered into a Commercial Note pursuant to which it agreed to pay to the Plaintiff the sum of $447,922.15, in 59 consecutive installments of $8,922.32, commencing 30 days from the date of shipment of equipment separately purchased by Defendant until paid in full. A copy of the Note with all the terms is attached hereto and made a part hereof as Exhibit "A". 8. The equipment referenced in the Note was shipped prior to the execution of the note, making the first payment due 30 days after the date of the note. 9. Pursuant to the terms of the note, Defendant Pro Tanks is deemed in default whenever there is a "(a) nonpayment when due of any amount payable under this Note or under any obligation or indebtedness to Company of Borrower... (b) if Borrower or any Obligor has failed to observe or perform any other existing or future agreement with Company of any nature whatsoever." 10. Defendant Pro Tanks is presently in default under its open account as more particularly set forth below in Count III. 11. In the event of default under the Note, "the entire unpaid balance of this Note and all accrued interest shall be immediately due and payable without notice to Borrower or any Obligor, and the Company may, immediately or at any time thereafter, exercise any and all of its rights and remedies hereunder..." 12. There is presently due and owing to the Plaintiff by the Defendant Pro Tanks under the Note the amount of $393,579.43 as of January 25, 2006. 13. Pursuant to the terms of the Note, the Defendant Pro Tanks is responsible for the payment for all costs and expenses, including reasonable attorney's fees and disbursements, which may be incurred by Plaintiff in the collection of the Note or the enforcement of the company's rights and remedies thereunder. 14. Pursuant to the terms of the Note, Defendant Pro Tanks has consented to the jurisdiction and venue of this case in the Commonwealth of Pennsylvania and the County of Cumberland where Plaintiff's principal place of business resides. WHEREFORE, the Plaintiff requests this Honorable Court to enter judgment in favor of the Plaintiff and against the Defendant Pro Tanks Leasing LLC, in the amount of $393,579.43, plus continuing interest at the contract rate, reasonable attorney's fees and costs of suit. COUNT II PLAINTIFF V. DEFENDANT PRO TANKS LEASING, LLC NOTE 2 15. Paragraphs 1 through 5 are hereby incorporated by reference as if set forth at length. 16. On or about March 18. 2005, the Defendant Pro Tanks entered into a Commercial Note pursuant to which it agreed to pay to the Plaintiff the sum of $27,058.37, in 59 consecutive installments of $538.99, commencing 30 days from the date of shipment of equipment separately purchased by Defendant Pro Tanks until paid in full. A copy of the Note with all the terms is attached hereto and made a part hereof as Exhibit "B". 17. The equipment referenced in the Note was shipped prior to the execution of the note, making the first payment due 30 days after the date of the note. 18. Pursuant to the terms of the note, Defendant Pro Tanks is deemed in default whenever there is a "(a) nonpayment when due of any amount payable under this Note or under any obligation or indebtedness to Company of Borrower... (b) if Borrower or any Obligor has failed to observe or perform any other existing or future agreement with Company of any nature whatsoever." 19. Defendant Pro Tanks is presently in default under its open account as more particularly set forth below in Count III. 20. In the event of default under the Note, "the entire unpaid balance of this Note and all accrued interest shall be immediately due and payable without notice to Borrower or any Obligor, and the Company may, immediately or at any time thereafter, exercise any and all of its rights and remedies hereunder... 21. There is presently due and owing to the Plaintiff by the Defendant Pro Tanks on the Note the amount of $23,741.17 as of January 25, 2006. 22. Pursuant to the terms of the Note, the Defendant Pro Tanks is responsible for the payment for all costs and expenses, including reasonable attorney's fees and disbursements, which may be incurred by Plaintiff in the collection of the Note or the enforcement of the company's rights and remedies thereunder. 23. Pursuant to the terms of the Note, Defendant Pro Tanks has consented to the jurisdiction and venue of this case in the Commonwealth of Pennsylvania and the County of Cumberland where Plaintiff's principal place of business resides. WHEREFORE, the Plaintiff requests this Honorable Court to enter judgment in favor of the Plaintiff and against the Defendant Pro Tanks Leasing LLC, in the amount of $23,741.17, plus continuing interest at the contract rate, reasonable attorney's fees and costs of suit. COUNT III PLAINTIFF V. DEFENDANT PRO TANKS LEASING. LLC. OPEN ACCOUNT 24. Paragraphs 1 through 5 are hereby incorporated by reference as if set forth at length. 25. During the course of the relationship between Plaintiff and Defendant Pro Tanks, various products, including but not limited to propane tanks, were sold to Pro Tanks on an open account., which Pro Tanks agreed to pay for upon shipment and invoice. 6 26. Plaintiff has invoiced Pro Tanks for each and every order shipped in accordance with the parties' agreement. 27. All invoices were payable by Pro Tanks within 90 days of invoice. 28. Plaintiff is in default for failing to make payment on invoices within 90 days. 29. Plaintiff is presently due and owing on all outstanding invoices the sum of $343,921.80. See list of invoices and payments attached as Exhibit "C". 30. Despite demand, Defendant Pro Tanks has failed and/or refused to pay the amount due in accordance with its Agreement with the Plaintiff. WHEREFORE, the Plaintiff requests this Honorable Court to enter judgment in favor of the Plaintiff and against the Defendant Pro Tanks Leasing LLC, in the amount of $343,921.80, plus reasonable attorney's fees and costs of suit. COUNT IV PLAINTIFF V. DEFENDANT LIBERTY PROPANE GAS. LLC GUARANTY 31. Paragraphs 1 through 30 are incorporated by reference as if set forth at length. 7 32. On or about March 18, 1005, the Defendant Liberty Propane Gas, LLC executed a Guaranty Agreement in favor of the Plaintiff, under which it guaranteed the payment of the amounts set forth in Counts I-III as set forth above. A copy of the Guaranty Contract is attached hereto and made a part hereof as Exhibit "D". 33. As a part of the Guaranty Contract, the Defendant Liberty Propane Gas, LLC agreed to reimburse the Plaintiff for the entire amount of any indebtedness owed to the Plaintiff, in addition to costs of suit and attorney's fees and commission for collection. 34. Despite demand, the Defendant Liberty Propane Gas, LLC has failed and/or refused to make payment of the amounts set forth in Count I above. WHEREFORE, Plaintiff requests this Honorable Court to enter judgment in favor of the Plaintiff and against the Defendant Liberty Propane Gas, LLC in the amounts of $761,242.40, plus continuing interest, costs of suit and reasonable attorney's fees. COUNT V PLAINTIFF V. DEFENDANT UNITED PROPANE GAS. INC. GUARANTY 35. Paragraphs 1 through 30 are incorporated by reference as if set forth at length. 8 36. On or about June 12, 2003, the Defendant United Propane Gas, Inc. executed a Guaranty Agreement in favor of the Plaintiff, under which it guaranteed the payment of the amounts set forth in Count I as set forth above. A copy of the Personal Guaranty Contract is attached hereto and made a part hereof as Exhibit "E". 37. As a part of the Guaranty Contract, the Defendant United Propane Gas, Inc. agreed to reimburse the Plaintiff for the entire amount of any indebtedness owed to the Plaintiff, in addition to costs of suit and attorney's fees and commission for collection. 38. Despite demand, the Defendant United Propane Gas, Inc. failed and /or refused to make payment of the amounts set forth in Count I above. WHEREFORE, Plaintiff requests this Honorable Court to enter judgment in favor of the Plaintiff and against the Defendant United Propane Gas, Inc. in the amounts of $761,242.40, plus continuing interest, costs of suit and reasonable attorney's fees. Respectfully submitted, PURCE U z HAL R BY W. Purce 1, Jr. I.D. #29955 1719 North Front Street Harrisburg, PA 17102 (717) 234-4178 EXHIBIT "A" COMMERCIAL NOTE $447,922.15 March 10, 2005 FOR VALUE RECEIVED, each of the undersigned, jointly and severally if more than one (hereinafter collectively referred to as 'Borrower"), promises to pay to the order of HARSCO CORPORATION (the "Company"), at its offices at 4718 Old Gettysburg Road, Suite 300, P. O. Box 8316, Camp Hill, PA 17001-8316, the principal amount of Four Hundred Forty-Seven Thousand, Nine Hundred Twenty- Two and 15/100 DOLLARS, in lawful money of the United States, plus interest, to be paid as follows: said principal plus interest shall be payable in 59 consecutive equal monthly installments of principal and interest, each in the amount of $8,922.32 commencing 30 days from date of shipment of Equipment and on the same day of the month each month thereafter, each of which installments shall be applied first to the payment of accrued and unpaid interest and then to the payment of principal and a final installment in an amount which is necessary to pay in full all of the outstanding principal plus accrued and unpaid interest on this Note on the date of the final payment. Interest shall accrue at the rate of 7.25% per annum. Payments will be applied as aforesaid on the date received. ADDITIONAL TERMS OF THIS NOTE - Each of the following provisions shall apply to this Note, to any extension or modification hereof and to the indebtedness evidenced hereby, except as otherwise expressly stated above or in a separate writing signed by Company and Borrower. INDEBTEDNESS - This Note evidences the indebtedness of Borrower in connection with the sale of Equipment sold by Company to Borrower. INTEREST - Interest shall be calculated on the basis of a 360-day year and shall be charged for the actual number of days elapsed. Accrued interest shall be payable monthly. Accrued interest shall also be payable when the entire principal balance of this Note becomes due and payable (whether by demand, stated maturity or acceleration) or, if earlier, when such principal balance is actually paid to Company. Interest shall accrue from the date shipment of Equipment is made by Company, provided, however, that to the extent this Note represents a replacement, substitution, renewal or refinancing of existing indebtedness, interest shall accrue from the date hereof. Interest shall accrue on the unpaid balance hereof at the rate provided for in this Note until the entire unpaid balance has been paid in full, notwithstanding the entry of any judgment against Borrower. PREPAYMENT - A prepayment of principal (including any principal repayment as a result of acceleration by Company of this Note) shall require immediate payment to Company of a prepayment fee equal to 1.5% of the principal amount being prepaid. Prepayments shall be applied to scheduled installments of principal in the inverse order of their maturity, shall be accompanied by payment of accrued interest on the principal amount being prepaid and, unless this Note has been accelerated by Company shall not be permitted in an amount less than the scheduled principal installment prior to final maturity of the outstanding principal balance. COLLATERAL - This Note and the indebtedness evidenced hereby shall be secured by any lien or security interest evidenced by a writing (whether now existing or hereafter executed) which contains a provision to the effect that such lien or security interest is intended to secure this Note or indebtedness evidenced hereby. EVENTS OF DEFAULT - Each of the following shall be an Event of Default hereunder: (a) the nonpayment when due of any amount payable under this Note or under any obligation or indebtedness to Company of Borrower or any person liable, either absolutely or contingently, for payment of any indebtedness evidenced hereby, including endorsers, guarantors and sureties (each such person is referred to as an "Obligor'); (b) if Borrower or any Obligor has failed to observe or perform any other existing or future agreement with Company of any nature whatsoever; (c) if any representation, warranty, certificate, financial statement or other information made or given by Borrower or any Obligor to Company is materially incorrect or misleading; (d) if Borrower or any Obligor shall become insolvent or make an assignment for the benefit of creditors or if any petition shall be filed by or against Borrower or any Obligor under any bankruptcy or insolvency law; (e) the entry of any judgment against Borrower or any Obligor which remains unsatisfied for 15 days or the issuance of any attachment, tax lien, levy or garnishment against any property of material value in which Borrower or any Obligor has an interest; (f) if any attachment, levy, garnishment or similar legal process is served upon Company as a result of any claim against Borrower or any Obligor or against any property of Borrower or any Obligor; (g) the dissolution, merger, consolidation or change in control (as control is defined in Rule 12b-2 under the Security 3/10/2005 ?'N-'-"-, 1 Exchange Act of 1934), of any Borrower which is a corporation or partner,. ip, or the sale or transfer of any substantial portion of any of Borrower's assets, or if any agreement for such dissolution, merger, or consolidation, change in control, sale or transfer is entered into by Borrower, without the written consent of Company; (h) the death of any Borrower or Obligor who is a natural person; (i) if Company determines reasonably and in good faith that an event has occurred or a condition exists which has had, or is likely to have, a material adverse effect on the financial condition or creditworthiness of Borrower or any Obligor, or on the ability of Borrower or any Obligor to perform its obligation evidenced by this Note; (j) if Borrower shall fail to remit promptly when due to the appropriate government agency or authorized depository, any amount collected or withheld from any employee of Borrower for payroll taxed, Social Security payments or similar payroll deductions; (k) if any Obligor shall attempt to terminate or disclaim such Obligor's liability for the indebtedness evidenced by this Note; (1) if Company shall reasonably and in good faith determine and notify Borrower that any collateral for this Note or for the indebtedness evidenced hereby is insufficient as to quality or quantity; (m) if Borrower shall fail to pay when due any material indebtedness for borrowed money other than to Company; of (n) if Borrower shall be notified of the failure of Borrower or any Obligor to provide financial and other information promptly when reasonably requested by Company. COMPANY'S REMEDIES - Upon the occurrence of one or more Events of Default, unless Company elects otherwise, the entire unpaid balance of this Note and all accrued interest shall be immediately due and payable without notice to Borrower or any Obligor, and Company may, immediately or at any time thereafter, exercise any or all of its rights and remedies hereunder or under any agreement or otherwise under applicable law against Borrower, any Obligor and any collateral. Company may exercise its rights and remedies in any order and may, at its option, delay in or refrain from exercising some or all of its rights and remedies without prejudice thereto. If Borrower fails to make any payment when due hereunder, Borrower shall pay company a service charge of five percent (5%) of such delinquent amount plus interest thereon from the due date thereof until paid at the rate set forth above. NOTICE TO BORROWER -Any notice required to be given by Company under the provisions of this Note shall be effective as to each Borrower and each Obligor when addressed to Borrower and deposited in the mail, postage prepaid, for delivery by first class mail at Borrower's mailing address as it appears on Company's records. PAYMENTS -All payments due under this Note are to be made in immediately available funds. If Company accepts payment in any other form, such payment shall not be deemed to have been made until the funds comprising such payment have actually been received by or made available to Company. PAYMENT OF COSTS - In addition to the principal and interest payable hereunder, Borrower agrees to pay Company, on demand, all costs and expenses (including reasonable attorney's fees and disbursements) which may be incurred by Company in the collection of this Note or the enforcement of Company's rights and remedied hereunder. REPRESENTATIONS BY BORROWER - If Borrower is a corporation or a general or limited partnership, Borrower represents and warrants that it is validly existing and in good standing in the jurisdiction under whose laws it was organized. If Borrower is a corporation, Borrower represents and warrants that the execution, delivery and performance of this Note are within Borrower's corporate powers, have been duly authorized by all necessary action by Borrower's Board of Directors, and are not in contravention of the terms of Borrower's charter, by-laws, or any resolution of its Board of Directors. If Borrower is a general or limited partnership, Borrower represents and warrants that the execution, delivery and performance of this Note have been duly authorized and are not in conflict with any provision of Borrower's partnership agreement or certificate of limited partnership. Borrower further represents and warrants that this Note has been validly executed and is enforceable in accordance with its terms, that the execution, delivery and performance by Borrower of this Note are not in contravention of law and do not conflict with any indenture, agreement or undertaking to which Borrower is a party or is otherwise bound, and that no consent or approval of any governmental authority or any third party is required in connection with the execution, delivery and performance of this Note. WAIVER, ETC. - Borrower and each Obligor waive presentment, dishonor, notice of dishonor, protest and notice of protest. Neither the failure nor any delay on the part of Company to exercise any right, remedy, power or privilege hereunder shall operate as a waiver or modification thereof. No consent, waiver or modification of the terms of this Note shall be effective unless set forth in a writing signed by company. All rights and remedies of Company are cumulative and concurrent and no single or partial exercise of any power or privilege shall preclude any other or further exercise of any right, power or privilege. 3/10/2005 h?t 1-1\ MISCELLANEOUS - This Note is the unconditional obligation of Borrower, and Borrower agrees that Company shall not be required to exercise any of its rights or remedies against any collateral in which it holds a lien or security interest or against which it has a right of setoff or against any particular Obligor. All representation, warranties and agreements herein are made jointly and severally by each Borrower. If any provision of this Note shall be held invalid or unenforceable, such invalidity of unenforceability shall not affect any other provision hereof. To the extent that this Note represents a replacement, substitution, renewal or refinancing of a pre-existing note or other evidence of indebtedness, the indebtedness represented by such pre-existing note or other instrument shall not be deemed to have been extinguished hereby. This Note has been delivered in and shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to the law conflicts. This Note shall be binding upon each Borrower and each Obligor and upon their personal representatives, heirs, successors and assigns, and shall benefit Company and its successors and assigns. ASSIGNMENT BY COMPANY - Company may assign or transfer, and Borrower hereby consents to the assignment or transfer, of Company's interest in this Note without notice to Borrower. Borrower agrees that the liability of Borrower to any assignee of Company or any subsequent assignee of such assignee, shall be absolute and unconditional. CONSENT TO JURISDICTION AND VENUE - IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY, EACH UNDERSIGNED PARTY HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA WHERE COMPANY MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. EACH UNDERSIGNED PARTY AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON IT BY MAILING A COPY THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO EACH UNDERSIGNED PARTY. WAIVER OF JURY TRIAL - EACH UNDERSIGNED PARTY HEREBY WAIVES AND COMPANY BY ITS ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO, ACCEPT OR RELY UPON THIS NOTE. IN WITNESS WHEREOF, Borrower, intending this to be a sealed instrument and intending to be legally bound hereby, has executed and delivered this Note as of the day and year first above written. Corporation or Partnership: Pro Tanks Leasing, LLC By: <l I - Q-c Eric Small, President 3/10/2005 A?I -, EXHIBIT "B" COMMERCIAL NOTE $27,058.37 March 18, 2005 FOR VALUE RECEIVED, each of the undersigned, jointly and severally if more than one (hereinafter collectively referred to as "Borrower"), promises to pay to the order of HARSCO CORPORATION (the "Company"), at its offices at 4718 Old Gettysburg Road, Suite 300, P. O. Box 8316, Camp Hill, PA 17001-8316, the principal amount of Twenty-Seven Thousand Fifty-Eight and 37/100 DOLLARS, in lawful money of the United States, plus interest, to be paid as follows: said principal plus interest shall be payable in 59 consecutive equal monthly installments of principal and interest, each in the amount of $538.99 commencing 30 days from date of shipment of Equipment and on the same day of the month each month thereafter, each of which installments shall be applied first to the payment of accrued and unpaid interest and then to the payment of principal and a final installment in an amount which is necessary to pay in full all of the outstanding principal plus accrued and unpaid interest on this Note on the date of the final payment. Interest shall accrue at the rate of 7.25% per annum. Payments will be applied as aforesaid on the date received. ADDITIONAL TERMS OF THIS NOTE - Each of the following provisions shall apply to this Note, to any extension or modification hereof and to the indebtedness evidenced hereby, except as otherwise expressly stated above or in a separate writing signed by Company and Borrower. INDEBTEDNESS - This Note evidences the indebtedness of Borrower in connection with the sale of Equipment sold by Company to Borrower. INTEREST - Interest shall be calculated on the basis of a 360-day year and shall be charged for the actual number of days elapsed. Accrued interest shall be payable monthly. Accrued interest shall also be payable when the entire principal balance of this Note becomes due and payable (whether by demand, stated maturity or acceleration) or, if earlier, when such principal balance is actually paid to Company. Interest shall accrue from the date shipment of Equipment is made by Company, provided, however, that to the extent this Note represents a replacement, substitution, renewal or refinancing of existing indebtedness, interest shall accrue from the date hereof. Interest shall accrue on the unpaid balance hereof at the rate provided for in this Note until the entire unpaid balance has been paid in full, notwithstanding the entry of any judgment against Borrower. PREPAYMENT - A prepayment of principal (including any principal repayment as a result of acceleration by Company of this Note) shall require immediate payment to Company of a prepayment fee equal to 1.5% of the principal amount being prepaid. Prepayments shall be applied to scheduled installments of principal in the inverse order of their maturity, shall be accompanied by payment of accrued interest on the principal amount being prepaid and, unless this Note has been accelerated by Company shall not be permitted in an amount less than the scheduled principal installment prior to final maturity of the outstanding principal balance. COLLATERAL - This Note and the indebtedness evidenced hereby shall be secured by any lien or security interest evidenced by a writing (whether now existing or hereafter executed) which contains a provision to the effect that such lien or security interest is intended to secure this Note or indebtedness evidenced hereby. EVENTS OF DEFAULT - Each of the following shall be an Event of Default hereunder: (a) the nonpayment when due of any amount payable under this Note or under any obligation or indebtedness to Company of Borrower or any person liable, either absolutely or contingently, for payment of any indebtedness evidenced hereby, including endorsers, guarantors and sureties (each such person is referred to as an "Obligor"); (b) if Borrower or any Obligor has failed to observe or perform any other existing or future agreement with Company of any nature whatsoever; (c) if any representation, warranty, certificate, financial statement or other information made or given by Borrower or any Obligor to Company is materially incorrect or misleading; (d) if Borrower or any Obligor shall become insolvent or make an assignment for the benefit of creditors or if any petition shall be filed by or against Borrower or any Obligor under any bankruptcy or insolvency law; (e) the entry of any judgment against Borrower or any Obligor which remains unsatisfied for 15 days or the issuance of any attachment, tax lien, levy or garnishment against any property of material value in which Borrower or any Obligor has an interest; (f) if any attachment, levy, garnishment or similar legal process is served upon Company as a result of any claim against Borrower or any Obligor or against any property of Borrower or any Obligor; (g) the dissolution, merger, consolidation or change in control (as control is defined in Rule 12b-2 under the Security 3118/2005 ')`S'--) Exchange Act of 1934), of any Borrower which is a corporation or partnership, or the sale or transfer of any substantial portion of any of Borrower's assets, or if any agreement for such dissolution, merger, or consolidation, change in control, sale or transfer is entered into by Borrower, without the written consent of Company; (h) the death of any Borrower or Obligor who is a natural person, (i) if Company determines reasonably and in good faith that an event has occurred or a condition exists which has had, or is likely to have, a material adverse effect on the financial condition or creditworthiness of Borrower or any Obligor, or on the ability of Borrower or any Obligor to perform its obligation evidenced by this Note; 0) if Borrower shall fail to remit promptly when due to the appropriate government agency or authorized depository, any amount collected or withheld from any employee of Borrower for payroll taxed, Social Security payments or similar payroll deductions; (k) if any Obligor shall attempt to terminate or disclaim such Obligor's liability for the indebtedness evidenced by this Note; (1) if Company shall reasonably and in good faith determine and notify Borrower that any collateral for this Note or for the indebtedness evidenced hereby is insufficient as to quality or quantity; (m) if Borrower shall fail to pay when due any material indebtedness for borrowed money other than to Company; of (n) if Borrower shall be notified of the failure of Borrower or any Obligor to provide financial and other information promptly when reasonably requested by Company. COMPANY'S REMEDIES • Upon the occurrence of one or more Events of Default, unless Company elects otherwise, the entire unpaid balance of this Note and all accrued interest shall be immediately due and payable without notice to Borrower or any Obligor, and Company may, immediately or at any time thereafter, exercise any or all of its rights and remedies hereunder or under any agreement or otherwise under applicable law against Borrower, any Obligor and any collateral. Company may exercise its rights and remedies in any order and may, at its option, delay in or refrain from exercising some or all of its rights and remedies without prejudice thereto. If Borrower fails to make any payment when due hereunder, Borrower shall pay company a service charge of five percent (5%) of such delinquent amount plus interest thereon from the due date thereof until paid at the rate set forth above. NOTICE To BORROWER -Any notice required to be given by Company under the provisions of this Note shall be effective as to each Borrower and each Obligor when addressed to Borrower and deposited in the mail, postage prepaid, for delivery by first class mail at Borrower's mailing address as it appears on Company's records. PAYMENTS - All payments due under this Note are to be made in immediately available funds. If Company accepts payment in any other form, such payment shall not be deemed to have been made until the funds comprising such payment have actually been received by or made available to Company. PAYMENT OF COSTS - In addition to the principal and interest payable hereunder, Borrower agrees to pay Company, on demand, all costs and expenses (including reasonable attorney's fees and disbursements) which may be incurred by Company in the collection of this Note or the enforcement of Company's rights and remedied hereunder. REPRESENTATIONS BY BORROWER - If Borrower is a corporation or a general or limited partnership, Borrower represents and warrants that it is validly existing and in good standing in the jurisdiction under whose laws it was organized. If Borrower is a corporation, Borrower represents and warrants that the execution, delivery and performance of this Note are within Borrower's corporate powers, have been duly authorized by all necessary action by Borrower's Board of Directors, and are not in contravention of the terms of Borrower's charter, by-laws, or any resolution of its Board of Directors. If Borrower is a general or limited partnership, Borrower represents and warrants that the execution, delivery and performance of this Note have been duly authorized and are not in conflict with any provision of Borrower's partnership agreement or certificate of limited partnership. Borrower further represents and warrants that this Note has been validly executed and is enforceable in accordance with its terms, that the execution, delivery and performance by Borrower of this Note are not in contravention of law and do not conflict with any indenture, agreement or undertaking to which Borrower is a party or is otherwise bound, and that no consent or approval of any governmental authority or any third party is required in connection with the execution, delivery and performance of this Note. WAIVER, ETC. - Borrower and each Obligor waive presentment, dishonor, notice of dishonor, protest and notice of protest. Neither the failure nor any delay on the part of Company to exercise any right, remedy, power or privilege hereunder shall operate as a waiver or modification thereof. No consent, waiver or modification of the terms of this Note shall be effective unless set forth in a writing signed by company. All rights and remedies of Company are cumulative and concurrent and no single or partial exercise of any power or privilege shall preclude any other or further exercise of any right, power or privilege. 3/ 18/2005 - ? ) -A___, 2 MISCELLANEOUS - This Note is the unconditional obligation of Borrower, and Borrower agrees that Company shall not be required to exercise any of its rights or remedies against any collateral in which it holds a lien or security interest or against which it has a right of setoff or against any particular Obligor. All representation, warranties and agreements herein are made jointly and severally by each Borrower. If any provision of this Note shall be held invalid or unenforceable, such invalidity of unenforceability shall not affect any other provision hereof. To the extent that this Note represents a replacement, substitution, renewal or refinancing of a pre-existing note or other evidence of indebtedness, the indebtedness represented by such pre-existing note or other instrument shall not be deemed to have been extinguished hereby. This Note has been delivered in and shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without regard to the law conflicts. This Note shall be binding upon each Borrower and each Obligor and upon their personal representatives, heirs, successors and assigns, and shall benefit Company and its successors and assigns. ASSIGNMENT BY COMPANY - Company may assign or transfer, and Borrower hereby consents to the assignment or transfer, of Company's interest in this Note without notice to Borrower. Borrower agrees that the liability of Borrower to any assignee of Company or any subsequent assignee of such assignee, shall be absolute and unconditional. CONSENT TO JURISDICTION AND VENUE - IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY, EACH UNDERSIGNED PARTY HEREBY IRREVOCABLY SUBMITS TO THE NONEXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT LOCATED IN ANY COUNTY OF THE COMMONWEALTH OF PENNSYLVANIA WHERE COMPANY MAINTAINS AN OFFICE AND AGREES NOT TO RAISE ANY OBJECTION TO SUCH JURISDICTION OR TO THE LAYING OR MAINTAINING OF THE VENUE OF ANY SUCH PROCEEDING IN SUCH COUNTY. EACH UNDERSIGNED PARTY AGREES THAT SERVICE OF PROCESS IN ANY SUCH PROCEEDING MAY BE DULY EFFECTED UPON IT BY MAILING A COPY THEREOF, BY REGISTERED MAIL, POSTAGE PREPAID, TO EACH UNDERSIGNED PARTY. WAIVER OF JURY TRIAL - EACH UNDERSIGNED PARTY HEREBY WAIVES AND COMPANY BY ITS ACCEPTANCE HEREOF THEREBY WAIVES, TRIAL BY JURY IN ANY LEGAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF OR RELATED TO THIS NOTE OR THE RELATIONSHIP EVIDENCED HEREBY. THIS PROVISION IS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO, ACCEPT OR RELY UPON THIS NOTE. IN WITNESS WHEREOF, Borrower, intending this to be a sealed instrument and intending to be legally bound hereby, has executed and delivered this Note as of the day and year first above written. Corporation or Partnership: Pro Tanks Leasing, LLC By: C2? J . Eric Small, President 3/18/2005 j ; 1 EXHIBIT "C" AWr -A/R Aging for _- Pro Tanks 330660, 330715,310698 221160, 280795 as of 1123/06 ?.- - _ _ - Inv ice Due I ic O ver Ov er over Over voice nvo e o -. _ # Date Date Cur rent 1 30 Days 60 Day s 90 Days Total CM 1000264 2/3/2005. 2/3/2005 $ - $ - $ - $ - $ 468.50 1 $ 468.50 IN 1100332 3/2212004 6120/2004 $ $ $ - $ $ 2,478.48 CM 1100332 7/15/2004 7/15/2004 $ $ _ $ _ _ _ $_ - _ $ _- (1,646M _ CR - 1100332 -8/16/2004 8/16/200 $ $ - ?$ (2,478.48)1$(1,646.80) IN CM 1100687' 4/8/2004 7/7/2004 $ 1100687 7/15/2004 7/15/2 $ $ $ $ $ $ $ $ _9696.80 (596.16)) _ 10 88/16/2004 8/16/2004 $ - (7 597 36) CR R _ 1 06 04 . , 72 0 C 9/13/2004 $ 1100687 9/13/20 $ $ $ $ (453.56) $ 1, 49. IN__ 1100712 418/2004 7/7/2004 $ - - - - -t$ $ 1049.72_ -- - CM 1100712 7/15/2004 7/15/2004 $ _ $ -_$ $ (453.56) _ CR 1100712 8/16/2004 8/16/2004 $ $ $ $ $ (1049.72) $ (453.56) IN 11010 40 4/28/20041 7/27/2004 $ - $ - $ $ $ 11,938.84 CR-t _ _ - 1101040, 8/16/2004811612004 $ _ - $ $ - $ $ (10,746.52)1 $ 1,192.32 IN 1101306 _5/13/2004 6/12/20041 $ 6 0 - $ - - $ ? - $ _- ? $ 3,056.20 4 20 ) CR 8/6/2004; $ 110130 8/6/20 $ $ $ $ (2,590.00 66. $ IN _ 11016471 6/3/2004 _9/1/2004 $ ' - - $ --? $ - - $ - J - -- $ - _2,166.60 _ 19 32 ) CR $ 110164719/17/2004 9117/2004 ; $ - $ $ $ 1, (974.28 2. CM I 1102914 5/23/2005 5/2312005 2 2 $ - $ $ (335.12) $ (335.12) IN 1103823 9/13/2004 12/12/2004 $ 3 $ _ $ $ _ $ 6 817.59__ CM _ 9/24/2004. 9/24/2004 $ 110382 1103823112/30/2004 12/30/2004 $ $ - $ $ _ $ _ $ 830 03 (6,817.59) _ CR 1103823112/30/2004 12/30/2004 $ - $ - $ - $ ?$ (59571) $ 234.32 IN ' 1104502, 9/30/2004 12/29/20041 $ - $ - - - $ -- - - -$_ $ ? 3,456.36 2 CR 1104502 2/1412005, 2!1412005.. $ - $ $ $ - $ (2,980.12) $ 476. 4 I N 1104505 9/30/2004]12/29/2004 $ $ $ $ $ 7,706.78 CR _ 1104505 2/3/2005 _ 2/3/2005f $ I 1. _T$ _ $ $ _ $ (7 080 81)1 $ 625.97 -2 83 3 IN 1/2/2005 $ 104 9 14/2004 1 /1 1 $ $ 8 4.0 CR 3 0/2005 311012005 $ 1104589 - $ - $ - $ - $(21 ,033.38) $ 50.00 IN 1105328 10/26/20041 1/24/2005 $ _ _$_ - $ _ 4$ _ $ 23 094.06_ CR IN _ 1105328 4/19/2005 4/19/2005 $ 1106375 1 1 /2 20041 $ $ $ $ - $ $ t$ (21 792 32) $ 1,301.74 3084.97._ _ _ CR _ 1106375 7/14/20051 7/14/2005 $ - $ - $ - ?$ - $ (3,034.97), $ 50.00 IN 2253470 5/13/2002 8/11/2002 $ - $ $ $ _ - $ 10163.24_ CR 10/30/200 10/30/2002 $ 2253470 $ $ (8 424.44) _ CR? _ _ 2253470 3/11/2003 311112003 - $ 7 - _ $ $ $$ - (453.56) 6 ' CR 22534701 9/13/2004 9/13/2004 $ $ - $ - $ ! $ 8 (453.56) $ 831. INS 2258498 211412003' 5!1512003 $ $ - $ $ $ 7,584.48 CR 2258498 8/28/2003 8/28/2003 $ - $ -- - $ - $ $ (6,988.32)1 $ 596.16 INL_ 2262049 1012/2003! 12/3112003 $ $ $_ 1,504.20 CR 2262049 1/13/20041/13/2004 $ $ $ $ $ (36.00) (1,540.20 IN T 2262104' 10/6/2003 1/4/2004 $ - - $ - - - $ -- _ -_]_$__ _ $ 1,788.48 - -_- - --- -- CR 2262104 2/11/2004, 2/11/2004 $ $ - $ - $ - $ 596 (1,192.32$ .16 )x IN L_- 2262492 10/24/2003 _ 1/22/2004 $ --- - - $ - -- - $ _ -_ - - $ $ 16,352.08 -- CR I 2262492 3/8/2004, 3/8/2004 $ $ - 's - $ (15,301.44) $ 1,050.64 IN _ 2263130'_11/14/2003 2/12/2004_$ $ $ 6339.72 ? - - AJ 2263130 8/31/2004 8/31/2004 $ $ $ $ $ (5,743.56), $ 596.16 IN 3/3/2004 $ 2263959 1 - $ -- ' $ 21,769.04 6/7/2004 6/7!2004 $ 2263656 $ - $ - $ - $ (21,390.92). $ 378.12 IN 22655291 2/18/2004 5/18/2004' $ - $ - $ - $ - $ 9,226.68 AWT - A/R Aging for Pro Tank s 330660, 330 715,310698, 221160, 0,280795 as of 1/23/06 _ _ - - - - - - - - Invoice - + Invoice ~ - Due Over Over Over Over Invoice_ T l 6 ? # Date Date Cur rent 1 30 Days 60 Days 9 ota Days CR 1 22655291 7/16/20041 7/16/20041 $ - Is - ! $ - $ - $ (8,176.04) $ 1,050.64 IN 2265530 2/18/2004 5/18120041 $ _ - $ A$ $ _ - $ 6,997.52 _ 1 CR 2265530 7/16/2004 7/16/2004 $ $ - $ $ - $ 9.40) $ 378.12 (6,6 IN 2267884811011812004 1/16/2005 $ - $ - $ - $ - $ 5,409.00 CM - 22678481 10/27/2004 10/27/2004 $ $ $ - $ -- $ (942.39), $ 4,466.61 IN 9930059 2/18/2000 - - 9/15/2000 $ - A.- $ $ $ 861.16 8 96 CM 9930059 3/14/2005 3/14/2005 $ - $ $ $ (21.20 $ 39. TR_ 9934003 _2/28/2002 _2/28/20021$ $ - $ 1 $ _ $ _ (540.96) IN 9934845 _ 12!7/2600 1 /21 /2001 $ $ $ _ $ _ 270 48? 9 8 CR 9937636 9!13/2004 9/13/2004 $ $ $ $ 1,192.32 $ 21. 4 IN 9939468 10/26/2001 12110!2001 $ $ $ - $ - $ _ 724.04 _ CR 9939468 _ 12/20/2001, 12/20/2001, $ - $ - - 1 $ _ _ _ $ - $ (270.48) $ 45156 CR 9036539 1012312001 10/2312001 1 - $ - $ - $ - $ (596.16) $ (596.16) CM 9037157 3/26/2004' 3/26/20041 $ $ $ $ $ 596.16 $ 596.16 CR 9942265 3/2/2004 3/2/2004 $ $ $ $ $ (596.16)' $ (596.16) IN 9942319 4/18/2002L 7117/2002 $ - $ - 1 $ $ - $ 1065.48 CR 9942319 10/8/2002 10/8/2002 $ - I $ I $ is -- - $ _ _ (795.00)1 $ 270.48 IN 9942346 4/22/2002 7/21/2002 $ $ $ $ -- - - - $ - 3,889.76 CR --- 9942346 10/8/2002. - 10/8/2002 $ - $ - $ - $ - $ (2,839.12) $ 1,050.64 CM 9944141 8/2/2004 8/2/2004 $ - $ - $ - $ - $ (453.56)' $ (453.56) IN 9944993 10/1112002 1/9/2003 $ - l $ - $ - $ _ _$ 6,192.52 ) ---- - CM 99449931 12/9/2002 1219/2002. $ $ - 4$ $_ (32977 CR 9944993 31312003 _ 3/3/2003_ $ - _ - $ _ - $ $ $ (6,19252), $ (329.77) I N 11/1812002' 9945985 2116120031 $ !_ - _ $ - $ - - $ 2,384.64 __ - _ _ CR 1 9945985 - 4/12003 4/1/2003 $ - $ _ $ -? $ - f $ (1,788.48) $ 596.16 IN 9947599 316/2003 6/4/20031 $ - $ - ! $ $ 4,200.72 CR 99475991 _ 8/28/2003, 8/28/2003 $ - $ _ - $ - $ - _ $ (3,151.00) $ 1,049.72 IN 9947668 3/13/2003 6/11/2003 $ $ - $ - $ $ 4,262.36 1 I - CR -9947668 _ 8/28/2003, _ 8/28/2003 $ _ $ - $ $ $ $ 1 ,087.52)1 ,174.84 (3 CR 9948558 3/2/2004 3/2/2004 $ - $ - $ - $ - $ (11192.32)1 $(1,192.32) ? 1 0 9 - - CR- -- 9948760 11 V12t2-00-3 2/2003 $ 1 /1 -- $ _ - $ - - I $ - $ $ 453.56 (1,050.64)' IN - - _ 9949403 7/3112003 1 7129!2003 $ $ - $ - _$ _ -_ I $ 907.12.1 CR 9949403 11/12/2003 11/12/2003 $ - $ - $ - - $ $ (453.56) $ 453.56 IN - 9950704 - ,_ 101612003 _ 1/4/2004 $, $ - $ - $ _ - $ 2,696.52 ) CR 9950704 2/11/2004; 2/11/2004 $ - ! $ $ - $ - $ 1,049.72 (1,646.80 IN 9952217' 12/10/2003 - _ 3/9/2004 _$_ - $ - $ _ $_ - _$ 5,249.52 CR 1 9952217 6/7/2004 6/7/2004, $ - $ $ $ - $ (4,653.36) $ 596.16 IN _ - - - - 9953418 - -- - - - 1 2/20/2004 - 5/20/2004 - $ $ - _!_$ _!$ _1,788.48 ) CRT 995341 8 4/29/2005 ? 4/29/2005 $ $ $ - $ $ $ 1,192.32 (596.16 IN 99505 2/29/20041 3/30/20N $ $ 4,632.20 - - - CM CR-- + 9953525 - 9953525 3!92004 1620 3!9!2004 $ $ $ ?$ -- $ $_ ? $ - 1 (877 .68) -o o (4)+--- -- 9 CM 9953525 8125/2004T 8/25/2004! 1 $ $ $ - $ $ (2779 )1 $ (893.41) IN 1101795 6/101200 9/8/200 $ $ - $ - $ - $ 1,19232 IN ? 2257824 1/8!2003 _ 4/8120031 $_ $ _ $ - $ _ $_ 100.00 IN IN -- - 994895? - 9951395 6/27/200?3 10/31/20031 ?9/25/2003$__ 1/29/20041 $ $ --$ $_ - -? $ - - $ $ $ 596.1 453.56 --- _ - N _.-- 9953200 --. 1 2/5/2004 -- 5/5 5/2004, $ - $ _ - ? $ $ - - $ 7 -4.67T AWT - A/R Aging for J_ _ _ I j Pro Tanks 330660, 221160,280795 as of 1/23/06 - Invoice Invoice4 Due 1 Over Over Over Over Invoice -- _- # - I Date Date Current 1 30 Days 60 Days 90 Days Total IN 9953746' 3/16/20041 4/15/2004__ - $ $ -L$ _ $$ 67830 IN 1104112 9/22120041-2121/2004 $ 476.24 _ $ $ $ $ -.- $ - $ - -1 1045-65T 16141260-4 IN 1105705 - $_ $_ 1233.58 _-- IN 2267708 CM 2267708 102/7/2004 1/2/200_ ?$ - $ 2711 _ - 102 005 $ (46877) _ _ J IN - 226832811/8/20042/6/2005. $ _ $ - $ _ $ 738.64 12/6/2004 3/6/2005 $ $ 4,431 .84 1N?_ 2268529 12/20/2004 3/20_/2005 $ $ $_ 5 157.27 I N _ 2268530 12/20/20041 3/20/2005 $ $$ _ $ $ - $ _ 14 070.64 _ 268562 12/23/2004 3/23/2005 $_- $ $ _ T$ 13 017.40 IN J 2Z6-85-62j-1-2/23d0-0-4' IN _ 22685633_/2004 3/23/2005 8 433 00 _ IN 9955429 12/2.3/2004 3/23/2005 $ - ?$ $_ $ $ 6,296.68 IN 6955430 12/23/2004 3/2312005 $ 995543112/ -_ IN I N - ---- 9955432 9955433 112/23 2002/23/2004 4 _ 3 3!231/2320052005 - $ $ $ _ ?_ $ - $ $ -- I $ 15,8105.80-_ IN -- -6-955434-1 3/23/200 $ $ $ --$. 2 342.50 IN _ 99554351 12/23/2004 3/23/2005 $ $ _ $ $ 2 ,811 00 IN 9955436 12/2312004 312312005 $ $ $ 17,183.84 IN 9955437 12/23/2004 3/2312005 $ _ $ _ $__ $ _ $ 4,216.56 IN 9955438 1212312004 3/23/2005 $ $ $ - $ $ 9,319.70 -- - - - - IN 9955439 12/23/2004 _3/23/20051 $ $ _ $ $ _ $ 14934.80_ - IN 9955455 12/29/2004 3/29/2005 $_ - _$ _$ $ _ $_ $ 5 733 58_ IN 9955456 12/29/2004 3/29/2005 $ ?$ _ _$ $ _ $_ 15,176.79 IN _ 99_55486 1/4/2005 4/4/2005_ $_ - $ $__ _ $ I $ 2,215.92 IN $_. 99554871 1/4/2005 4/4/2005 $ $ -$_ $_ $ 5179628 I N _ 9955488 1 /4_/_20051 4/4/20051__$_ - -r$ $ $ 2 603 48 IN 9955489 1/4/2005 414/2005 $ $ -$_- $ $ 4,296.45 IN T _ - 9955490 1 1/4/200.4/4/2005- -- -$ _ $ - ?$ -_- $ 2 954 56 _ _ IN 9955491 1/4/2005 _4!4!2005 $ t $_ _ $ 1,30134 $ $ 2,603.48 IN 9955492 1/4/2005 4/4/2005 $ $ $ _ ?_ - IN ?- - _ 9955493 1!4!20051-- 44!2005 $ 17,727.36 IN T _ _ 2268723 1/ 10/20054/10/2005 $ $ $ $ $ 25,299.00 IN 2268724 1110/20051 4!1012005 $_ $_5,904 56 _ IN 22688821 1/21/2005 4/21/2005 $ $ $_- $ _ ?$ 90.58 _ IN 9955711 202005 $ $ __ 4 $ 211.84 _ _ IN _ 11081_45 2/8/2005 5/9/20$ $_ ?$ ?$ _ $ 596.16 IN 11081472/8/2005 5/9/2005.$ $ $__. $ 596.16 IN 1108226 2/11/20051 5/12/20051$ ?$ $ _ ?$ I$ _5590.02 1N 11082271 2/11/2005 5/12/20051 $ _ $ - ?$ $ $ 11,62908 IN 1108228 2/11 /2005 5/12/20051 I.$__ $_-_$ 468 50 IN IN I 11 1108229 08229 2/11/2005 5/12/2005 $ _$ - $ - $ $_ 3,716 02 _ IN 1108232' 2/11/20 05 5/12/200$ $ ?$ 7t_: 468 50 2111/2005 5/12/2005 $ - $ $ f $ 5,872M IN i- _ 1108319 2/17/20051 5/18/2005 $ $ _ $_ $ ,. $2 603.48 _ IN _ 1108323 2/17/2005/18/2005 $ - ?_$ _ $ $ 2,342.50 IN 1108375 2/22/2005 5123120051 $ $_ $ $ 2 342.50 IN _ _ 1108579 _3/7/2005 _ 6/5/20051 $ ?$ $ _ $ _ $ 1 945 78 _ 11086071 3!8!2005 6/6/200? $ $ $ $ $_ 1 769.10 } IN ---1108845; 3/21/26051 -_$_-- $- - _-$ - i $ 2,766.731- - AWT - A/R Aging for _-? - Pro Tanks 330660, 330715,310698,. 221160, 280795 as of 1/23/06 1 -- - - ?- - -- _ Invoice_ Invoice Due Over Over Over Over Invoice - - - - 1 # Date Date Current 1 30 Days t0 Days 90 Days Total IN 11088461 3/21/2005 6/19/2005 $ $ $ - $ _ $_2,031.0,6 - $ 1,1 97.82 lN- -1169-847 -3/2112005 IN _ 1108849 3/21/2005 6/19/200 $$_ $ 869.05 - 05 IN 1108850 3/21/2005 6/19/2005 $ _-$ $ 2301.20 _ IN _ 1108851 3/21/2005 _6/19/2005 $ $ $ - $_ - 1 738.10 - _ I N 1108852 3121/2005 6/19/2005 _$ _$ $ $ $ 869 OS - IN -110-88531-1/2 1/2005 6/19/2005 $ - $ T$ $ _ $ 869.05 IN _ 1108854/21/20059/2005{ $ $ _$ $ _ $ _ 2301 20 869.05 J _ IN-T 1108855 3/21/2005 _ 6/19/2005 $- $ $ $ $ $_ $ $ _ 3 73335 IN 1108857 33/21/2005 6/19/2005 $ $ IN ?_- 1108856 /21/20019/20- n,5 z ?_$ IN _ 1108858f 312112005 6/19/2005 $ $ $ - _ $ 869.05 IN 11088591 3/21/20056/19/2005 $ $ $ _ - $_ $ 869 05 IN 1108860 3121!2005 _ 611912005 $ _ $ $ - $ _ $ 6 903 60 _ IN _ 1108861 3/21/2005 _ 6/19/2005 $. _$ $ _ $ - _$ - 1 432 15 IN L 11066621 3!21!20051 6/1912005 $ $ $ _ $ IN 2,86430 IN 11088631 3/21/2005 6/19/2005 $ 1,432.15 _ L2_864.30 -- - ? -_ 3/21/2005 6/19/2005$ _- --$_- $ - $ IN 1108664 3121/2005 6A9/2005_ $ $ - $ - $ _ $ 1,432.15 IN 1-10966-5 IN _ 11088663/21120051 6/19/2005 $__ $ _ $ _ $ - - $_1 432 15.1 IN i_ 1.108903 3/22/20056/20/2005 $__ $ _$ $ $ _ 809.33 - - IN 1109234 4/12/2005 7/11/2005 $ - $ ?$ _?$ $ 72036 IN 110923 4/12/2007/11/2005 $ _ $ _ $ $___ 5 1 192 32 ?_ _.... IN 1109236 4/12/2005 7/11/2005 $ ?$_ _$ $ $ __434424 IN 1109237) 4/12/2005 7/11/2005 $_ $. _ $ 3151 92- -- IN 1109238_4/12/2005 7/11 /20051 $ _ 1 $ $ ?$ $ 1 192 32 IN 1109414I 4/2012005 ? 7/19/20055$_ $ - $ $ _ 453 56 C412257040 2039113 t 12/20/20051 12/20/20051 $ $_ _$_ -- -$ - (378.12)1 CM _2263437-2039115f 12/22/2005 1212212005 $ _ $ j$ $ (378.12) _ CM 2265086 203911-6 12/22/2005112/22/2005$ $_ $ $ -I, 378j?) Cm 8723-20391`17 11044 Cm 1044-74 16601 2 ?2T2 M 1104484100051 2/22/2005, 12/22120651 -+$ _- ?$ - $ (.03)1 C CM ?1?104502 1000514 12/22/2005 12/22/2005 _ $ _ $ $ $_ _ $ _ (397 CM ,11108837 1000515 12/22/20052/2005 $ _ (468 50) CM 1108843 1000516 12/23/20051 12/23/20051I $ $__- $ $ $ (468 50) _ $ $ $ $ - ?343,921.80 EXHIBIT "D" GUARANTEE AGREEMENT Made as of March 18, 2005 by Liberty Propane Gas. LLC (Name) P.O. Box 2450 Paducah McCracken KY 42002 (Street and number) (City) (County) (State) (Zip) ("Guarantor"), a limited liability company, said address being Guarantor's principal place of business. 1.1 Definitions. As used in this Guarantee, the following terms, unless the context otherwise requires, will have the meanings indicated: 1.1.1 "Debtor" means Pro Tanks Leasing, LLC a limited liability company, having its principal place of business at P.O. Box 2450, Paducah, KY 42002. 1.1.2 "Seller" means American Welding & Tank Division of Harsco Corporation, a Delaware corporation. 1.1.3 "Obligations" means all indebtedness, obligations and liabilities of any kind of Debtor to Seller, now existing or hereafter arising, and whether direct or indirect, acquired outright, conditionally or as a collateral security from another, absolute or contingent, joint or several, secured or unsecured, due or to become due, contractual or tortious, liquidated or unliquidated, or arising by operation of law or otherwise, and including without limitation all sums owed under any promissory notes of Debtor payable to Seller. 2.1 Guarantee. Intending to be legally bound, and to induce Seller to grant credit or continue to grant credit or otherwise extend financial accommodation to Debtor, Guarantor hereby unconditionally and absolutely guarantees to Seller the due performance and full payment of all Obligations together with all expenses of obtaining or endeavoring to obtain performance or payment of the Obligations, or enforcing this Guarantee, including court costs and reasonable attorneys' fees and expenses. This Guarantee is a continuing one and will be effective and binding on Guarantor regardless of how long before or after the date hereof any of the Obligations were or are incurred, except that upon receipt by Seller of a notice that Guarantor will not be liable for future Obligations, Guarantor will not be liable for such of the Obligations as are incurred after such receipt unless such Obligations are renewals, extensions or modifications of Obligations theretofore existing or unless Seller is bound by agreement entered into before receipt of such notice to permit such Obligations to be incurred. 3.1 Amount of Liability. This Guarantee will be unlimited in amount. 4.1 Unconditional Liability. The liability of Guarantor under this Guarantee is continuing, absolute and unconditional and will not be affected in any way by reason of: 3/18/2005 1 4.1.1 Any failure to retain or preserve, or the lack of prior enforcement of, any rights against any person or persons (including Debtor and Guarantor) or in any property; 4.1.2 The invalidity of any such rights which may be attempted to be obtained; 4.1.3 Any delay in enforcing or failing to enforce any such rights even if such rights are thereby lost; or 4.1.4 Any delay in making demand on Guarantor for performance or payment. 4.2 Guarantor's Claims and Defenses. The liability of Guarantor under this Guarantee will not be subject to any counterclaim, setoff, deduction or defense based upon any claim the Guarantor may have against Seller or Debtor. 5.1 Consents and Waivers. The Guarantor hereby consents to the taking of, or failure to take, from time to time without notice to the Guarantor, any action of any nature whatsoever with respect to the Obligations and with respect to any rights against any person or persons (including Debtor and Guarantor) or in any property, including but not being limited to any renewals, extensions, modifications, postponements, compromises, indulgences, waivers, surrenders, exchanges and releases, and Guarantor will remain fully liable in this Guarantee notwithstanding any of the foregoing. Guarantor hereby waives the benefit of all laws now or hereafter in effect in any way limiting or restricting the liability of Guarantor hereunder except the defense of payments made on account of the Obligations and Guarantor's liability under this Guarantee. Guarantor hereby waives all notices of any character whatsoever with respect to this Guarantee and the Obligations, including, without limitation, notice: 5.1.1 Of the acceptance of and reliance on this Guarantee; 5.1.2 Of the present existence or future incurring of any of the Obligations; 5.13 Of the amount, terms and conditions thereof; and 5.1.4 Of any defaults thereon. 6.1 Acceleration. Upon the occurrence of any event of default under any agreement between Debtor and Seller, or if any of the Obligations are not duly performed, including the prompt payment when due of any amount payable thereon, all the Obligations will at Seller's option be deemed to be immediately due and payable for the purposes of this Guarantee and the liability of Guarantor. 7.1 No Subrogation. So long as the Obligations have not been paid in full, no payment by Guarantor, pursuant to the provisions hereof, will entitle Guarantor, by subrogation to the rights of Seller or otherwise, to any payment by Debtor or out of the property of Debtor. 8.1 Subsequent Guarantees. A subsequent guarantee by Guarantor or any other guarantor of the Obligations will not be deemed to be in lieu of or to supersede or terminate this Guarantee but will be construed as an additional or supplementary guarantee unless otherwise expressly provided therein; and in the event Guarantor or any other guarantor have given to Seller a previous guarantee or guarantees, this Guarantee will be construed to be an additional 3/18/2005 '\ 2 or supplementary guarantee, and not be in lieu thereof or to terminate such previous guarantee or guarantees. 9.1 Joint and Several Liability. If more than one person is designated as Guarantor herein the obligations of each such person will be joint and several, and any reference to the "Guarantor" will be deemed to refer to and be applicable to each one separately, as well as to all. If there is more than one Guarantor, Seller may take any action whatsoever with respect to one Guarantor, without in any way affecting the obligations of any other Guarantor. 10.1 Waiver. Any waiver by Seller of any provisions hereof or of the full and timely performance by Guarantor of its obligations will be in writing and will be effective only in the specific instance and only for the purpose for which given. No failure or delay on the part of Seller in exercising any right, power or privilege under this Guarantee will operate as a waiver thereof, nor will any single or partial exercise of any right, power or remedy by Seller preclude any other or further exercise thereof or the exercise of any other right, power or remedy under this Guarantee. The remedies provided herein are cumulative and not exclusive of any remedies provided by law. 11.1 Notices. All notices, demands and other communications which are required to be given to or made by Guarantor or Seller to the other in connection with this Guarantee will be in writing and will be deemed to have been given when mailed by certified or registered mail or telegraphed or delivered by hand to the applicable party at the following address (or at such other address as is designated in a written notice given in conformity with this section). - If to Seiler: Vice President-Controller, Harsco Corporation, P. O. Box 8316, Camp Hill, PA 17001- 8316; if to Guarantor Eric Small, President, P.O. Box 2450, Paducah, KY 42002. 12.1 Successors and Assigns. This Guarantee and all of the terms and conditions hereof will be binding upon the personal representatives, successors and assigns of Guarantor and will inure to the benefit of the successors and assigns of Seller but will confer no rights on third persons. 13.1 Governing Law. This Guarantee will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania where Seller maintains its principal divisional offices. IN WITNESS WHEREOF, the undersigned have executed this Guarantee Agreement as of the date first set forth above. (SIGNATURE OF OFFICER) (SEAL) (NAME OF CO PORA ION OR PARTNERSHIP) By? (TITLE) 1 3/18/2005 EXHIBIT "E" GUARANTEE AGREEMENT Made as of aAwe 12. , 200} by "1417C 0 M PA bl A3 GA-c M4 c. (Name) %,+150 qJ2:sa CAiffA A% An PAIN 11...-CAAcKQh l? 4ZOaz (Street and number) (City) (County) (St e) (Zip) ("Guarantor"), a(n) corporation/partnership/individual (cross out two), said address being Guarantor's principal place of business. 1.1 Definitions. As used in this Guarantee, the following terms, unless the context otherwise requires, will have the meanings indicated: 1.1.1 "Debtor means l202rA14Aaf n) corporation/ Am 'IM11,50i9diviel-I (cross out two), having its principal place of business at pwo.ttA N . K y 1.1.2 "Seller" means Taylor-Wharton Gas Equipment Division of Harsco Corporation, a Delaware corporation. 1.1.3 "Obligations" means all indebtedness, obligations and liabilities of any kind of Debtor to Seller, now existing or hereafter arising, and whether direct or indirect, acquired outright, conditionally or as a collateral security from another, absolute or contingent, joint or several, secured or unsecured, due or to become due, contractual or tortious, liquidated or unliquidated, or arising by operation of law or otherwise, and including without limitation all sums owed under any promissory notes of Debtor payable to Seller. 2.1 Guarantee. Intending to be legally bound, and to induce Seller to grant credit or continue to grant credit or otherwise extend financial accommodation to Debtor, Guarantor hereby unconditionally and absolutely guarantees to Seller the due performance and full payment or all Obligations together with ail expenses of obtaining or endeavoring to obtain performance or payment of the Obligations, or enforcing this Guarantee, including court costs and reasonable attorneys' fees and expenses. This Guarantee is a continuing one and will be effective and binding on Guarantor regardless of how long before or after the date hereof any of the Obligations were or are incurred, except that upon receipt by Seller of a notice that Guarantor will not be liable for future Obligations, Guarantor will not be liable for such of the Obligations as are incurred after such receipt unless such Obligations are renewals, extensions or modifications of Obligations theretofore existing or unless Seller is bound by agreement entered into before receipt of such notice to permit such Obligations to be incurred. 3.1 Amount of Liabilitv. This Guarantee will be unlimited in amount. 4.1 Unconditional Liabilitv. The liability of Guarantor under this Guarantee is continuing, absolute and unconditional and will not be affected in any way by reason of: 4.1.1 Any failure to retain or preserve, or the lack of prior enforcement of, any rights against any person or persons (including Debtor and Guarantor) or in any property; 4.1.2 The invalidity of any such rights which may be attempted to be obtained; 4.1.3 Any delay in enforcing or failing to enforce any such rights even if such rights are thereby lost; or 4.1.4 Any delay in making demand on Guarantor for performance or payment. 4.2 Guarantor's Claims and Defenses. The liability of Guarantor under this Guarantee will not be subject to any counterclaim, setoff, deduction or defense based upon any claim the Guarantor may have against Seller or Debtor. 5.1 Consents and Waivers. The Guarantor hereby consents to the taking of, or failure to take, from time to time without notice to the Guarantor, any action of any nature whatsoever with respect to the Obligations and with respect to any rights against any person or persons (including Debtor and Guarantor) or in any property, including but not being limited to any renewals, extensions, modifications, postponements, compromises, indulgences, waivers, surrenders, exchanges and releases, and Guarantor will remain fully liable in this Guarantee notwithstanding any of the foregoing. Guarantor hereby waives the benefit of all laws now or hereafter in effect in any way limiting or restricting the liability of Guarantor hereunder except the defense of payments made on account of the Obligations and Guarantor's liability under this Guarantee. Guarantor hereby waives all notices of any character whatsoever with respect to this Guarantee and the Obligations, including, without limitation, notice: 5.1.1 Of the acceptance of and reliance on this Guarantee; 5.1.2 Of the present existence or future incurring of any of the Obligations; 5.1.3 Of the amount, terms and conditions thereof; and 5.1.4 Of any defaults thereon. 6.1 Acceleration. Upon the occurrence of any event of default under any agreement between Debtor and Seller, or if any of the Obligations are not duly performed, including the prompt payment when due of any amount payable thereon, all the Obligations will at Seller's option be deemed to be immediately due and payable for the purposes of this Guarantee and the liability of Guarantor. 7.1 No Subrogation. So long as the Obligations have not been paid in full, no payment by Guarantor, pursuant to the provisions hereof, will entitle Guarantor, by subrogation to the rights of Seller or otherwise, to any payment by Debtor or out of the property of Debtor. 8.1 Subsequent Guarantees. A subsequent guarantee by Guarantor or any other guarantor of the Obligations will not be deemed to be in lieu of or to supersede or terminate this Guarantee but will be construed as an additional or supplementary guarantee unless otherwise expressly provided therein; and in the event Guarantor or any other guarantor have given to Seller a previous guarantee or guarantees, this Guarantee will be construed to be an additional or supplementary guarantee, and not be in lieu thereof or to terminate such previous guarantee or guarantees. 9.1 Joint and Several Liability. If more than one person is designated as Guarantor herein the obligations of each such person will be joint and several, and any reference to the "Guarantor" will be deemed to refer to and be applicable to each one separately, as well as to all. If there is more than one Guarantor, Seller may take any action whatsoever with respect to one Guarantor, without in any way affecting the obligations of any other Guarantor. 10.1 Waiver. Any waiver by Seller of any provisions hereof or of the full and timely performance by Guarantor of its obligations will be in writing and will be effective only in the specific instance and only for the purpose for which given. No failure or delay on the part of Seller in exercising any right, power or privilege under this Guarantee will operate as a waiver thereof, nor will any single or partial exercise of any right, power or remedy by Seller preclude any other or further exercise thereof or the exercise of any other right, power or remedy under this Guarantee. The remedies provided herein are cumulative and not exclusive of any remedies provided by law. 11.1 Notices. All notices, demands and other communications which are required to be given to or made by Guarantor or Seller to the other in connection with this Guarantee will be in writing and will be deemed to have been given when mailed by certified or registered mail or telegraphed or delivered by hand to the applicable party at the following address (or at such other address as is designated in a written notice given in conformity with this section). - If to Seller: Vice President-Controller, Harsco Corporation, P. O. Box 8316, 4718 Old Gettysburg Rd., Camp Hill, PA 17001; if to Guarantor 12.1 Successors and Assigns. This Guarantee and all of the terms and conditions hereof will be binding upon the personal representatives, successors and assigns of Guarantor and will inure to the benefit of the successors and assigns of Seller but will confer no rights on third persons. 13.1 Governing Law. This Guarantee will be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania where Seller maintains its principal divisional offices. IN WITNESS WHEREOF, the undersigned have executed this Guarantee Agreement as of the date first set forth above. X4"? J ka1TeD PnsPANE GM ma C. (signature of officer- (Name of corporation or partnership) (SEAL) By: P.t...r , .zr- (Title) J VERIFICATION COMPANY NAME: AMERICAN WELDING & TANK GROUP, A DIVISION OF HARSCO CORPORATION I verify that the statements made in the foregoing Complaint are true and correct. I understand that false statements herein are made subject to the penalties of 18 PA C.S. § 4904 relating to unsworn falsification to authorities. Dated: 1 f 36 /ZO -6 Title 1/P -r CooG??/ I- I 7 1 ? f` y i- n L, i R. James Reynolds, Jr., Esquire PA Supreme Court I.D. No. 10252 Email: ireynolds(@ttanlaw.com Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 Post Office Box 9500 Harrisburg, Pennsylvania 17108-9500 Telephone: (717) 255-7604 FAX: (717) 236-8278 Attorney for Defendants Pro Tanks Leasing, LLC, United Propane Gas, Inc. and Liberty Propane Gas, LLC COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY AMERICAN WELDING & TANK TAYLOR-WHARTON GAS EQUIPMENT, DIVISION OF HARSCO CORPORATION, Plaintiff V. PRO TANKS LEASING, LLC, UNITED PROPANE GAS, INC. and LIBERTY PROPANE GAS, LLC, Defendants No. 2005 - 6702 CIVIL ACTION - LAW PRAECIPE FOR ENTRY OF APPEARANCE To the Prothonotary: Enter my appearance on behalf of Defendants Pro Tanks Leasing, LLC, United Propane Gas, Inc., and Liberty Propane Gas, LLC in the above-captioned matter. Papers may be served at the address set forth below. Date: April 11, 2006 R. Jam eynolds, Attorney 1. D. #10252 Email - irevnolds(d)ttanlaw.com Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 Post Office Box 9500 Harrisburg, PA 17108-9500 (717) 255-7604 / FAX (717) 236-8278 Attorney for Defendants Pro Tanks Leasing, LLC, United Propane Gas, Inc. and Liberty Propane Gas, LLC CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing Praecipe for Entry of Appearance on Plaintiff by placing the same in the United States Mail at Harrisburg, Pennsylvania, first-class postage prepaid, on the 11th day of April, 2006, addressed as follows: John W. Purcell, Jr., Esquire Purcell, Krug & Haller 1719 North Front Street Harrisburg, Pennsylvania 17102 (Attorney for Plaintiff) Thomas, Thomas, Armstrong & Niesen By: ><' z ? Sharon Dell-Gallagher, Secretary . -. , , ; ,. -. - _ _, ,-? ??? ?. r- . ' ? , IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA AMERICAN WELDING & TANK TAYLOR-WHARTON GAS EQUIPMENT, DIVISION OF HARSCO CORPORATION, Plaintiff No. 2005 - 6702 V. CIVIL ACTION - LAW PRO TANKS LEASING, LLC, UNITED PROPANE GAS, INC. and LIBERTY PROPANE GAS, LLC, Defendants NOTICE TO PLEAD TO: American Welding & Tank Taylor-Wharton Gas Equipment, Division of Harsco Corporation, Plaintiff c/o John W. Purcell, Jr., Esquire Purcell, Krug & Haller 1719 North Front Street Harrisburg, Pennsylvania 17102, its attorney YOU ARE HEREBY NOTIFIED to file a written response to the enclosed New Matterand Counterclaim of Defendants Pro Tanks Leasing, LLC, United Propane Gas, Inc. and Liberty Propane Gas, LLC, within twenty (20) days from service hereof, or a default judgment may be entered against you. Date: May 1, 2006 A?_ R. Ja Reynol s, Attorneyl.D.#10252r. Email - jreynoldsettanlaw.com Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 Post Office Box 9500 Harrisburg, PA 17108-9500 (717) 255-7604 / FAX (717) 236-8278 Attorneyfor Defendants Pro Tanks Leasing, LLC, United Propane Gas, Inc. and Liberty Propane Gas, LLC R. James Reynolds, Jr., Esquire PA Supreme Court I.D. No. 10252 Email: ireynoldsC@ttanlaw.com Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 Post Office Box 9500 Harrisburg, Pennsylvania 17108-9500 Telephone: (717) 255-7604 FAX: (717) 236-8278 Attorney for Defendants Pro Tanks Leasing, LLC United Propane Gas, Inc. and Liberty Propane Gas, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA AMERICAN WELDING & TANK TAYLOR-WHARTON GAS EQUIPMENT, DIVISION OF HARSCO CORPORATION, Plaintiff V. PRO TANKS LEASING, LLC, UNITED PROPANE GAS, INC. and LIBERTY PROPANE GAS, LLC, Defendants No. 2005 - 6702 CIVIL ACTION - LAW DEFENDANTS' ANSWER TO PLAINTIFF'S COMPLAINT WITH NEW MATTER AND COUNTERCLAIM AND NOW, come Defendants Pro Tanks Leasing, LLC ("Pro Tanks"), United Propane Gas, Inc. ("United Propane"), and Liberty Propane Gas, LLC ("Liberty Propane") (at times hereinafter Pro Tanks, United Propane and Liberty Propane are collectively referred to as "Defendants") and file this Answer to the Complaint of Plaintiff American Welding & Tank Taylor-Wharton Gas Equipment, Division of Harsco Corporation ("Plaintiff'), with New Matter and Counterclaim. ANSWER 1. Denied. After reasonable investigation, Defendants are without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and therefore they are denied. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. Count I Plaintiff v. Defendant Pro Tanks Leasing LLC Note 1 6. The answers to paragraphs 1 through 5 inclusive hereof are incorporated by reference herein as if set forth in their entirety. 7. Admitted in part and denied in part. It is admitted that the president of Pro Tanks signed a document titled "COMMERCIAL NOTE" dated March 10, 2005 in the principal amount of $447,922.15 and that a copy of the Note is attached to the Complaint as Exhibit A. The remaining averments of this paragraph are denied since the Note, being in writing, speaks for itself. 8. Denied. After reasonable investigation, Pro Tanks is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph regarding when the equipment covered by the Note was shipped by Plaintiff to Pro Tanks, and therefore they are denied. By way of further answer, the Note, being in writing, speaks for itself and therefore the averment regarding the due date of the first payment is denied. -2- 9. Denied. The Note, being in writing, speaks for itself and therefore the averments of this paragraph are denied. 10. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Pro Tanks is in default with respect to any account that it has with Plaintiff. 11. Denied. The Note, being in writing, speaks for itself and therefore the averments of this paragraph are denied. By way of further answer, to the extent the averments of this paragraph imply that Pro Tanks is in default under the Note, they are specifically denied because, infer alia, they state conclusions of law to which no response is required. 12. Denied. After reasonable investigation, Pro Tanks is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and therefore they are denied. Byway of further answer, Pro Tanks avers that it is current with respect to payments due under the Note at this time and as of January 25, 2006. 13. Denied. The Note, being in writing, speaks for itself and therefore the averments of this paragraph are denied. 14. Denied. The Note, being in writing, speaks for itself and therefore the averments of this paragraph are denied. By way of further answer, the averments of this paragraph state a conclusion of law to which no response is required. WHEREFORE, Defendant Pro Tanks Leasing, LLC demands that Plaintiff's claim in Count I of the Complaint be dismissed and that judgment be entered in favor of Defendant Pro Tanks Leasing, LLC and against Plaintiff, with costs assessed to Plaintiff. -3- Count II Plaintiff v. Defendant Pro Tanks Leasing, LLC Note 2 15. The answers to paragraphs 1 through 5 inclusive hereof are incorporated by reference herein as if set forth in their entirety. 16. Admitted in part and denied in part. It is admitted that the president of Pro Tanks signed a document titled "Commercial Note" dated March 18, 2005 in the principal amount of $27,058.37 and that a copy of the Note is attached to the Complaint as Exhibit B. The remaining averments of this paragraph are denied since the Note, being in writing, speaks for itself. 17. Denied. After reasonable investigation, Pro Tanks is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph regarding when the equipment covered by the Note was shipped by Plaintiff to Pro Tanks, and therefore they are denied. Byway of further answer, the Note, being in writing, speaks for itself and therefore the averment regarding the due date of the first payment is denied. 18. Denied. The Note, being in writing, speaks for itself and therefore the averments of this paragraph are denied. 19. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that Pro Tanks is in default with respect to any account that it has with Plaintiff. 20. Denied. The Note, being in writing, speaks for itself and therefore the averments of this paragraph are denied. By way of further answer, to the extent the averments of this paragraph imply that Pro Tanks is in default under the Note, they are -4- specifically denied because, inter alia, they state conclusions of law to which no response is required. 21. Denied. After reasonable investigation, Pro Tanks is without knowledge or information sufficient to form a belief as to the truth of the averments of this paragraph and therefore they are denied. By way of further answer, Pro Tanks avers that it is current with respect to payments due under the Note at this time and as of January 25, 2006. 22. Denied. The Note, being in writing, speaks for itself and therefore the averments of this paragraph are denied. 23. Denied. The Note, being in writing, speaks for itself and therefore the averments of this paragraph are denied. By way of further answer, the averments of this paragraph state a conclusion of law to which no response is required. WHEREFORE, Defendant Pro Tanks Leasing, LLC demands that Plaintiffs claim in Count II of the Complaint be dismissed and that judgment be entered in favor of Defendant Pro Tanks Leasing, LLC and against Plaintiff, with costs assessed to Plaintiff. Count III Plaintiff v. Defendant Pro Tanks Leasing LLC Open Account 24. The answers to paragraphs 1 through 5 inclusive hereof are incorporated by reference herein as if set forth in their entirety. 25. Admitted in part and denied in part. It is admitted that over a period of time, Plaintiff delivered to Pro Tanks various products, including propane tanks ("tanks"), on a consignment basis, to be invoiced to Pro Tanks at prices agreed upon by Plaintiff and Pro Tanks upon the sale or lease of those products by Pro Tanks to third parties. By way of -5- further answer, the averments of this paragraph relating to invoices from Plaintiff to Pro Tanks are denied since the invoices, being in writing, speak for themselves. To the extent the remaining averments of this paragraph are inconsistent with the foregoing, they are denied. 26. Admitted in part and denied in part. It is admitted that Plaintiff submitted invoices to Pro Tanks for certain of the products shipped by Plaintiff and delivered to Pro Tanks. It is specifically denied that all of the invoices were submitted by Plaintiff to Pro Tanks in accordance with the agreement between, and the understanding of, the parties. 27. Denied. The invoices, being in writing, speak for themselves and therefore the averments of this paragraph are denied. By way of further answer, it is specifically denied that all of the invoices were submitted by Plaintiff to Pro Tanks in accordance with the agreement between, and the understanding of, the parties. 28. Denied. The averments of this paragraph state a conclusion of law to which no response is required. By way of further answer, it is specifically denied that all of the invoices were submitted by Plaintiff to Pro Tanks in accordance with the agreement between, and the understanding of, the parties. Further, it is specifically denied that Pro Tanks is in default with respect to any account that it has with Plaintiff. 29. Admitted in part and denied in part. It is admitted that a copy of a document titled "AWT - A/R Aging for Pro Tanks 330660, 330715, 310698, 221160, 280795 as of 1/23/06" is attached to Plaintiff's Complaint as Exhibit C. It is specifically denied that the amount of $343,921.80 is due and owing to Plaintiff by Pro Tanks. After reasonable investigation, Pro Tanks is without knowledge or information sufficient to form a belief as to what amount, if any, is due and owing by Pro Tanks to Plaintiff. -6- 30. Denied. It is specifically denied that Pro Tanks has failed and/or refused to pay any amount that Plaintiff has proven is due and owing by Pro Tanks to Plaintiff in accordance with the agreement between, and the understanding of, the parties. By way of further answer, it is specifically denied Pro Tanks has breached any agreement with Plaintiff with respect to the payment for products shipped by and delivered to Pro Tanks by Plaintiff. WHEREFORE, Defendant Pro Tanks Leasing, LLC demands that Plaintiff's claim in Count III of the Complaint be dismissed and that judgment be entered in favor of Defendant Pro Tanks Leasing, LLC and against Plaintiff, with costs assessed to Plaintiff. Count IV Plaintiff v. Defendant Liberty Propane Gas LLC Guaranty 31. The answers to paragraphs 1 through 30 inclusive hereof are incorporated by reference herein as if set forth in their entirety. 32. Admitted in part and denied in part. It is admitted that the president of Liberty Propane signed a document titled "GUARANTEE AGREEMENT" made as of March 18, 2005, and that a copy of the Agreement is attached to Plaintiff's Complaint as Exhibit D. The remaining averments of this paragraph are denied since the Agreement, being in writing, speaks for itself. 33. Denied. The Agreement, being in writing, speaks for itself and therefore the averments of this paragraph are denied. 7- 34. Admitted in part and denied in part. It is admitted that Liberty Propane has not made any payments to Plaintiff. It is specifically denied that Liberty Propane has any obligation to make payments to Plaintiff. WHEREFORE, Defendant Liberty Propane Gas, LLC demandsthat Plaintiffs claim in Count IV of the Complaint be dismissed and that judgment be entered in favor of Defendant Liberty Propane Gas, LLC and against Plaintiff, with costs assessed to Plaintiff. Count V Plaintiff v. Defendant United Propane Gas Inc Guaranty 35. The answers to paragraphs 1 through 30 inclusive hereof are incorporated by reference herein as if set forth in their entirety. 36. Admitted in part and denied in part. It is admitted that the president of United Propane signed a document titled "GUARANTEE AGREEMENT" made as of June 12, 2003, and that a copy of the Agreement is attached to Plaintiffs Complaint as Exhibit E. The remaining averments of this paragraph are denied since the Agreement, being in writing, speaks for itself. 37. Denied. The Agreement, being in writing, speaks for itself and therefore the averments of this paragraph are denied. 38. Admitted in part and denied in part. It is admitted that United Propane has not made any payments to Plaintiff. It is specifically denied that United Propane has any obligation to make payments to Plaintiff. s- WHEREFORE, Defendant United Propane Gas, Inc. demands that Plaintiffs claim in Count V of the Complaint be dismissed and that judgment be entered in favor of Defendant United Propane Gas, Inc. and against Plaintiff, with costs assessed to Plaintiff. NEW MATTER 39. Plaintiff has failed to state a claim for which relief can be granted against Pro Tanks in Counts I, II, and III of the Complaint. 40. Plaintiff has failed to state a claim for which relief can be granted against Liberty Propane in Count IV of the Complaint. 41. Plaintiff has failed to state a claim for which relief can be granted against United Propane in Count V of the Complaint. 42. Plaintiffs claims are barred by the statute of limitations. 43. Plaintiffs claims are barred by the doctrines of waiver and estoppel. 44. Plaintiff's claims are barred because any damages suffered by Plaintiff resulted from its own actions or inactions. 45. At all times, Defendants properly performed in accordance with, and mettheir obligations under, any and all agreements between Defendants and Plaintiff, including without limitation the Notes and Guarantee Agreements attached to the Complaint as Exhibits A, B, D, and E. 46. Upon information and belief, Defendants aver that Plaintiff is improperly seeking double recovery against Defendants for certain tanks under both the Notes and the open account. s- 47. Pursuant to Plaintiff's rebate program agreed to by Plaintiff and Pro Tanks in consideration for, inter alia, the purchase of tanks by Pro Tanks from Plaintiff, Pro Tanks is entitled to rebates for tanks shipped by Plaintiff to Pro Tanks based upon the total net sales for a given period. The rebates were to be credited against Pro Tanks' open account balance. Upon information and belief, Defendants aver that certain rebates to which Pro Tanks is entitled were not credited against Pro Tanks' open account balance, and therefore the balance should be reduced by the amount of the rebates to which Pro Tanks is entitled. 48. Plaintiff is improperly making a claim against Defendants for certain tanks that were never delivered to Pro Tanks, but nevertheless were invoiced by Plaintiff to Pro Tanks. 49. Certain tanks delivered by Plaintiff to Pro Tanks were defective in breach of Plaintiff's agreement to ship and deliver non-defective tanks to Pro Tanks. After Plaintiff failed to replace or repair the tanks as requested by Pro Tanks, Pro Tanks made repairs to the tanks at its own expense. Plaintiff has improperly not given Pro Tanks a credit for the cost of the repairs. WHEREFORE, Defendants Pro Tanks Leasing, LLC, United Propane Gas, Inc. and Liberty Propane Gas, LLC demand that Plaintiffs Complaint be dismissed and that judgment be entered in favor of Defendants and against Plaintiff, with costs assessed to Plaintiff. 1o- COUNTERCLAIM Defendants Pro Tanks Leasing, LLC, United Propane Gas, Inc. and Liberty Propane Gas. LLC v. Plaintiff Defendants Pro Tanks Leasing, LLC, United Propane Gas, Inc. and Liberty Propane Gas, LLC assert the following counterclaim against Plaintiff: 50. The averments of paragraphs 1 through 49 inclusive hereof are incorporated by reference herein as if set forth in their entirety. 51. As averred in paragraph 47 hereof, upon information and belief, Pro Tanks is entitled to rebates from Plaintiff pursuant to Plaintiffs rebate program agreed to by Plaintiff and Pro Tanks. 52. In breach of the agreement, Plaintiff has failed and refused to give Pro Tanks a credit or to make payment to Pro Tanks for the rebates notwithstanding the demand of Pro Tanks. 53. As a result of Plaintiffs breach of the agreement, Pro Tanks has incurred damages in the nature of rebates for which it has not been given a credit or received payment. 54. As averred in paragraph 49 hereof, certain of the tanks shipped and delivered by Plaintiff to Pro Tanks were defective in breach of Plaintiff's agreement to provide to Pro Tanks non-defective tanks. 55. Plaintiff has failed and refused to repair and/or replace the defective tanks in breach of the agreement, notwithstanding Pro Tanks' demand that it do so. 56. As a result of Plaintiffs breach of the agreement, Pro Tanks was required to make repairs to the tanks at its own expense, and therefore Pro Tanks has incurred damages in the nature of repair costs. 11- 57. As a result of Plaintiffs breaches of the agreements with respect to rebates and repair costs, Pro Tanks has incurred damages in an amount in excess of $35,000, for which Plaintiff is liable to Pro Tanks. WHEREFORE, Defendant Pro Tanks Leasing, LLC demands that judgment be entered in its favor and against Plaintiff in an amount in excess of $35,000, the jurisdictional amount required for referral to arbitration, plus interest and costs, or in the event judgment is entered against Defendant Pro Tanks Leasing, LLC, United Propane Gas, Inc., and/or Liberty Propane Gas, LLC on Plaintiff's causes of action, that Plaintiffs judgment be set off to the extent Plaintiffs judgment exceeds Defendants' recovery on this Counterclaim. Date: May 1, 2006 It dl,?We R. a s Reyi Ids, Attorney I.D. #10252 Email - ireynolds(cttanlaw.com Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 Post Office Box 9500 Harrisburg, PA 17108-9500 (717) 255-7604 / FAX (717) 236-8278 Attorney for Defendants Pro Tanks Leasing, LLC, United Propane Gas, Inc. and Liberty Propane Gas, LLC 12- VERIFICATION I, Eric Small, President of Defendants, depose and say, subject to the penalties of 18 Pa. C.S. § 4904, relating to unswom falsification to authorities, that the facts set forth in the foregoing Defendants' Answer to Plaintiffs Complaint With New Matter and Counterclaim are true and correct to the best of my knowledge, information and belief. Date Eric Small F CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing Defendants' Answer to Plaintiff's Complaint with New Matter and Counterclaim on Plaintiff by placing the same in the United States Mail at Harrisburg, Pennsylvania, first-class postage prepaid, on the 1 st day of May, 2006, addressed as follows: John W. Purcell, Jr., Esquire Purcell, Krug & Haller 1719 North Front Street Harrisburg, Pennsylvania 17102 (Attorney for Plaintiff) Thomas, Thomas, Armstrong & Niesen By: J i y` ,CJ?.?ek , $aron Dell-Gallagher, S`eccrre-talry T' 1 {l? ?? ? .? T -n ?r?,_ ?? -, N ''fi ^. x `r'? a I' I COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY AMERICAN WELDING & TANK TAYLOR-WHARTON GAS EQUIPMENT, DIVISION OF HARSCO CORPORATION, Plaintiff No. 2005 - 6702 V. CIVIL ACTION - LAW PRO TANKS LEASING, LLC, UNITED PROPANE GAS, INC. and LIBERTY PROPANE GAS, LLC, Defendants PRAECIPE TO SUBSTITUTE VERIFICATION To the Prothonotary: Please substitute the attached Verification of Eric Small for the copy of the Verification attached to Defendants' Answer to Plaintiff's Complaint with New Matter and Counterclaim filed with the Court on May 2, 2006. Date: May 8, 2006 1?at-rk Ft. es R nold r. Attorney I.D. #10252 Email - ireynolds(@ttanlaw.com Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 Post Office Box 9500 Harrisburg, PA 17108-9500 (717) 255-7604 / FAX (717) 236-8278 Attorneyfor Defendants Pro Tanks Leasing, LLC, United Propane Gas, Inc. and Liberty Propane Gas, LLC VERIFICATION I, Eric Small, President of Defendants, depose and say, subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities, that the facts set forth in the foregoing Defendants' Answer to Plaintiffs Complaint with New Matter and Counterclaim are true and correct to the best of my knowledge, information and belief. +-Z6 -4001- Date Eric Small CERTIFICATE OF SERVICE I hereby certify that I have served a true and correct copy of the foregoing Praecipe to Substitute Verification on all parties by placing the same in the United States Mail at Harrisburg, Pennsylvania, first-class postage prepaid, on the 8th day of May, 2006, addressed as follows: John W. Purcell, Jr., Esquire Purcell, Krug & Haller 1719 North Front Street Harrisburg, Pennsylvania 17102 (Attorney for Plaintiff) Thomas, Thomas, Armstrong & Niesen SSl aron Dell-Gallagher, S cretary C1 a T 7? K7 rat. -p C7? ?Pl C: ;?.,1 t John W. Purcell, Jr. I.D. 29955 Purcell, Krug & Haller 1719 North Front Street Harrisburg, PA 17102 (717) 234-4178 iaurcell(a), kh.com AMERICAN WELDING & TANK TAYLOR-WHARTON GAS EQUIPMENT, DIVISION OF HARSCO CORPORATION, Plaintiff vs. PRO TANKS LEASING, LLC, UNITED PROPANE GAS, INC. AND LIBERTY PROPANE GAS, LLC, Defendants 39. Denied as a conclusion of law. 40. Denied as a conclusion of law. 41. Denied as a conclusion of law. IN THE COURT OF CUMBERLAND CC NO. 2005-6702 CIVIL ACTION-LAW ,PA PLEAS 10 42. Denied as a conclusion of law. 43. Denied as a conclusion of law. 44. Denied as a conclusion of law, and for the reasons previously set forth in the Plaintiff's Complaint. 45. Denied. To the contrary, as more fully set forth in Plaintiffs Complaint, Defendants have not properly performed in accordance with their obligations and r the appropriate agreements between the parties. 46. Denied. Plaintiff has no knowledge of any double billing despite requests to Defendants for proof of same. Therefore, after reasonable investigation , Plaintiff is without knowledge or information sufficient to form a belief as to the truth of the averment and strict proof thereof is demanded at trial. 47. Denied. Any rebates that the Defendants were entitled to have been given. Rebates that were based on prompt payment and/or performance were properly withheld, as Defendant has been in default under its Agreements as more fully set in Plaintiff's Complaint. 48. Denied. Tanks were delivered to Defendants' possessio* on consignment prior to billing. Payment for the tanks would not be required until after Defe? dants obtained the serial numbers for the tanks in their possession, and notified Plaintiff that t?ey were to be invoiced for the same. Under this system, it would be difficult, if not impossible, for any invoice to involve tanks not delivered to the Defendants. In further reply, when notified of billing questions by Defendants, Plaintiff addressed all concerns that were brought to its all concerns were resolved. 49. Denied. In the normal course of business, defective tanks discovered. Based on the procedures of the parties, if Plaintiff is collected from the Defendants or their customer, repaired, and/or credits for appropriate expenses, depending on appropriate any repair invoices from the Defendants, that were not appropriately COUNTERCLAIM 50. No response required. 51. Denied. See response to paragraph 47 above. 52. Denied. See response to paragraph 47 above. 53. Denied. After reasonable investigation, Plaintiff is information sufficient to form a belief as to the truth of the and believes that occasionally of a defective tank, it is with appropriate Plaintiff never received or responded to. knowledge or and strict proof thereof is demanded at trial. 54. Denied. See response to paragraph 49 above. 55. Denied. See response to paragraph 49 above. 57. Denied as a conclusion of law. In further reply, after Plaintiff is without knowledge or information sufficient to form a averment and strict proof thereof is demanded at trial. WHEREFORE, Plaintiff requests this Honorable Court to the Defendants, and enter judgment in favor of the Plaintiff in the Plaintiff's Complaint. Respectfully submitted, PURCELL, KRUG & BY 56. Denied. See response to paragraph 49 above. In further investigation, Plaintiff is without knowledge or information sufficient truth of the averment and strict proof thereof is demanded at trial. , after reasonable form a belief as to the investigation, as to the truth of the the Counterclaim of set forth in the 1'rMNorth Fro t Street Harrisburg, PA 7102 (717) 234-4178 .Y VERIFICATION COMPANY NAME: Harsco Corporation I verify that the statements made in the foregoing Plaintiffs Resp?nse to Defendants' New Matter and Counterclaim are true and correct. I understand that false statements herein are made subject to § 4904 relating to unsworn falsification to authorities. Dated: lwa. 2C 2-oo6 penalties of 18 PA C.S. r CERTIFICATE OF SERVICE I, John W. Purcell, Jr., Esquire, do hereby certify that 2006, I caused a true and correct copy of the Plaintiff s Resr Matter and Counterclaim to be served upon the following it mail by depositing same in the United States, postage prep Pennsylvania: R. James Reynolds, Jr., Esq. Thomas, Thomas, Armstrong and ] PO Box 9500 Harrisburg, PA 17108-9500 BY M #29955 1719 North Frc Harrisburg, Pp (717) 234-4178 Attorney for P1 the 26th day of May, 5e to Defendant's New iduals by first class in Harrisburg, Jr. it Street 17102 N (7 r? " yl - { i r -ry T Tw 41 < rn m c? Y cn 1 ,"ALI IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA AMERICAN WELDING & TANK TAYLOR-WHARTON GAS No. 2005-6702 CIVIL EQUIPMENT, DIVISION OF HARSCO CORPORATION, Plaintiff V. PRO TANKS LEASING, LLC, UNITED PROPANE GAS, INC. AND LIBERTY CIIVIL ACTION - LAW PROPANE GAS, LLC, Defendants. PRAECIPE FOR ENTRY OF APPEARANCE To the Prothonotary: Please enter the appearance of Bridget E. Montgomery, Esquire on behalf of Plaintiff American Welding & Tank Taylor-Wharton Gas Equipment, Division of Harsco Corporation in the above- captioned matter. The aforementioned individual is authorized to accept service on behalf of Plaintiff at the address set forth below. Respectfully submitted, ECKERT SEAMANS CHERIN & MELLOTT, LLC "4 ? I 11vA Bridget q?iwntgomery, Esq ' , No. 105 213 Market Street, 8th Floor Harrisburg, PA 17101 (717) 237-6000 J of Date:' , (L0322197.1) CERTIFICATE OF SERVICE I, Bridget E. Montgomery, Esquire, certify that on the I day of December, 2006, a true and correct copy of the foregoing document was served via U.S. Mail, postage pre-paid, addressed as follows: R. James Reynolds, Jr. Thomas, Thomas, Armstrong & Niesen LLC 212 Locust Street, Suite 500 P. O. Box 9500 Harrisburg, PA 17108-9500 ECKERT SEAMANS CHERIN & MELLOTT, LLC Bridget E. ontgomery, Esquir , o. 56 213 Market Street, 8th Floor Harrisburg, PA 17101 (717) 237-6000 f L0322197.1 } C'] r--z Q C-n Vr IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA AMERICAN WELDING & TANK TAYLOR-WHARTON GAS EQUIPMENT, DIVISION OF HARSCO CORPORATION, Plaintiff V. PRO TANKS LEASING, LLC, UNITED PROPANE GAS, INC. AND LIBERTY PROPANE GAS, LLC, Defendants. No. 2005-6702 CIVIL CIIVIL ACTION - LAW PRAECIPE TO WITHDRAW APPEARANCE To the Prothonotary: Please withdraw the appearance of John W. Purcell, Jr., Esquire on behalf of Plaintiff in the above-captioned matter. Date: -? w /06 PURCELL, KRUG & HALLER By Joh W. Purcell; Jr. . #29955 1719 North Front Street Harrisburg, PA 17102 (717) 234-4178 fL0322188.1) .,v CERTIFICATE OF SERVICE I, John W. Purcell, Jr., Esquire, certify that on the /V day of December, 2006, a true and correct copy of the foregoing document was served via U.S. Mail, postage pre-paid, addressed as follows: R. James Reynolds, Jr. Thomas, Thomas, Armstrong & Niesen LLC 212 Locust Street, Suite 500 P. O. Box 9500 Harrisburg, PA 17108-9500 PURCELL, KRUG & HALLER By Purcell, Jr. 29955 1719 North Front Street Harrisburg, PA 17102 (717) 234-4178 (L0322188.1) E O -TI - n F"I --r? c r, 4.J ? J r IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA AMERICAN WELDING & TANK TAYLOR-WHARTON GAS EQUIPMENT, DIVISION OF HARSCO No. 2005 - 6702 CORPORATION, Plaintiffs Civil Action - Law V. PRO TANKS LEASING, LLC, UNITED PROPANE GAS, INC. and LIBERTY PROPANE GAS, LLC, Defendants MOTION FOR STATUS CONFERENCE TO ESTABLISH FINAL DISCOVERY AND DISPOSITIVE MOTION DEADLINES AND NON-JURY TRIAL DATE AND NOW, pursuant to Cumberland County Local Rule 208.3(a) and 215-1, Plaintiff American Welding & Tank Taylor-Wharton Gas Equipment, Division of Harsco Corporation ("Harsco"), with the concurrence of Defendants, requests this Court to schedule a status conference and assign a judge for the purpose of establishing a non jury trial date, as well as deadlines for final discovery and pre-trial dispositive motions in the captioned action, so that the case moves expeditiously to trial. As support for this Petition, Harsco states as follows: 1. On February 6, 2006, Harsco filed a Complaint in this action against Defendants. 2. The pleadings were closed as of May 31, 2006, when Harsco filed a Response to Defendants' New Matter and Counterclaim. 3. Neither party has requested a jury trial in this matter and, therefore, the matter will be heard before a judge of this Court. 4. The parties have engaged in written discovery and have scheduled a document production and depositions during the month of March. { 0326942/1 5. Harsco has asserted in the matter that Defendants owe Harsco a significant sum of money and, accordingly, Harsco has an interest in bringing the matter to a prompt conclusion. 6. Harsco has received partial responses to its written discovery requests and Defendants have promised to provide supplemental responses promptly. 7. Harsco seeks a status conference with this Court for the purpose of establishing final discovery deadlines, a dispositive motions schedule, and a trial date for a non-jury trial. 8. Harsco believes that a status conference for the purpose of establishing these deadlines will avoid unnecessary delay and facilitate a prompt non jury trial of this matter. WHEREFORE, for the reasons set forth above, Harsco respectfully requests that this Court issue an Order scheduling a status conference, to be attended by counsel for the parties, for the purpose of establishing all necessary pre-trial deadlines and a trial date. Respectfully submitted, ECKERT SEAMANS CHERIN & MELLOTT, LLC Bridget E j Montgomery, Esquire( I.D. No. 6105 ` 213 Market Street, Eighth Floor Harrisburg, PA 17101 717-237-6000 Counsel for Plaintiff Date: f, ~ (L0326942.1) 2 CERTIFICATE OF CONCURRENCE Pursuant to Cumberland County Local Rule of Court 208.2(d), counsel for Plaintiff has called counsel for Defendants and requested concurrence in this Motion, and has faxed a copy of the Motion to counsel for Defendants for his review. Counsel for Defendants has indicated that Defendants do concur in this Motion. n 1 Date: • A_? Bridget Montgomery, Esquire` Counsel ' or Plaintiff {L0326942. l } CERTIFICATE OF SERVICE I, Bridget E. Montgomery, Esq., hereby certify that I have served a copy of the foregoing document U. S. mail, first-class postage pre-paid, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, to the following address: R. James Reynolds, Jr., Esquire Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 Harrisburg, PA 17108-9500 (Counsel for Defendants) 1 Date: - BridgefE. Montgomery, Esquire Counsel for Plaintiff J {L0326942.11 A? 0% 94R 0 8 V/0 V IN HE COURT OF COMMO PLEAS CUM ERLAND COUNTY, PENNSYLVANIA AMERICAN WELDING &jTANK TAYLOR-WHARTON GAS EQUIPMENT, DIVISION OF HARSCO CORPORATION, No. 2005'- 6702 Plaintiffs Civil Action - Law v. PRO TANKS LEASING, L LC, UNITED PROPANE GAS, INC. and LIBERTY PROPANE GAS, LLC, Defendants ORDER i AND NOW th's day of , 2007, upon consideration of the -&? 2-) e-L concurred-in MOTION for STATUS CONFERENCE, it is hereby ORDERED that a Status Conference will be conducted) on 2007 at _.m., with The Honorable a` `to establi h pretrial deadlines and a trial date for the captioned action. - J. - (U326942.1) [4rl C 1 ?,' t 0 0 Z AMERICAN WELDING & TANK TAYLOR-WHARTON GAS EQUIPMENT, DIVISION OF HARSCO CORPORATION, Plaintiffs v PRO TANKS LEASING, LLC, UNITED PROPANE GAS, INC., and LIBERTY PROPANE GAS, LLC, Defendants IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA CIVIL ACTION - LAW 2005-6702 CIVIL TERM IN RE: STATUS CONFERENCE ORDER OF COURT AND NOW, this 12th day of April, 2007, upon consideration of the Motion for Status Conference To Establish Final Discovery and Diapositive Motion Deadlines and Non-Jury Trial Date, and following a conference in chambers, in which Plaintiff was represented by Bridget E. Montgomery, Esquire, and Defendants were represented by R. James Reynolds, Jr., Esquire, and pursuant to an agreement of counsel, it is ordered and directed as follows: 1. All discovery in this case shall be complete within 45 days of the date of this order; and 2. Any diapositive motion shall be filed within 60 days of the date of this order. It is noted that this will be a non-jury trial, and Plaintiff's counsel has indicated her intention to list this case for trial and secure its adjudication at the earliest possible moment. By the Court, 4 J. esley Olkz4 Jr., J. X01 J Bridget E. Montgomery, Esquire 213 Market Street, Eighth Floor Harrisburg, PA 17101 For Plaintiff R. James Reynolds, Jr., Esquire 212 Locust Street, Suite 500 Harrisburg, PA 17108-9500 For Defendants :mae IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA AMERICAN WELDING & TANK TAYLOR-WHARTON GAS EQUIPMENT, DIVISION OF HARSCO CORPORATION, Plaintiff No. 2005 - 6702 V. : CIVIL ACTION - LAW PRO TANKS LEASING, LLC, UNITED PROPANE GAS, INC. and LIBERTY PROPANE GAS, LLC, Defendants STIPULATION OF SETTLEMENT AND NOW, this day of .tune, 2007, Plaintiff American Welding & Tank Taylor- Wharton Gas Equipment, Division of Harsco Corporation ("Harsco"), and Defendants Pro Tanks Leasing, LLC, United Propane Gas, Inc. and Liberty Propane Gas, LLC ("the United Propane Parties"), by their duly authorized undersigned counsel, hereby stipulate to the settlement and ultimate withdrawal of the above-captioned action on the following terms and schedule: 1. Harsco and the United Propane Parties have settled this action, along with another action pending between them in the United States District Court for the Western District of Kentucky, Paducah Division, Civil Action No. 5:05-CV-246, in a global settlement. 2. A copy of the executed Settlement Agreement and Mutual Release, pursuant to which the parties have resolved the two referenced actions globally, is attached hereto as Exhibit "A". 3. Harsco and the United Propane Parties have each exchanged checks in satisfaction of the lump sum cash payment aspect of their global settlement arrangement. 4. The United Propane Parties continue to be indebted to Harsco under the terms of the existing Notes and Guarantees referenced in the attached Settlement Agreement and Mutual Release, which, in part, were the subject of the action in this Court. 5. Pursuant to the terms of the attached Settlement Agreement and Mutual Release, the United Propane Parties will continue to make payments under the terms of the existing Notes and Guarantees until the debt due under the Notes is paid in full, except that, in the event that the United Propane Parties wish to prepay any amount under the Notes, or pay the Notes off in their entirety, Harsco has agreed under the Settlement Agreement and Mutual Release to waive the prepayment penalty provisions contained in the Notes. 6. Harsco has released present claims for acceleration, attorneys' fees, costs and otherdamages underthe existing Notes and Guarantees, and the parties have agreed that if the United Propane Parties fail to make payments under the existing Notes, this Court should retain jurisdiction of the current action for the purposes of enforcing the terms of the Settlement Agreement and Mutual Release and the terms of the Notes and Guarantees. 7. Until such time as the existing Notes are paid in full, the parties have agreed that this Court should retain jurisdiction, but request that this Court hold the case in abeyance pending the satisfaction of this term of the Settlement Agreement and Mutual Release. -2- 8. Immediately upon the United Propane Parties' final payment of all amounts due under the existing Notes, Harsco will move this Court to discontinue this action with prejudice. WHEREFORE, Plaintiff and Defendants respectfully requestthatthisCourtapprove this Stipulation of Settlement. L 1% Bridget E(AMontgomery, Es re Eckert S "mans Cherin & M Ilott, L?C 213 Market Street, Eighth Floor Post Office Box 1248 Harrisburg, Pennsylvania 17108-1248 Z?2 R. J s Reyn s, , Esquire Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 Post Office Box 9500 Harrisburg, PA 17108-9500 Attorney for Plaintiff AND NOW, this day of Settlement entered into by the parties is APPROVED. , 2007, the above Stipulation of BY THE COURT: J. Attorney for Defendants ORDER -3- t?i- A lh SETTLEMENT AGREEMENT and MUTUAL RELEASE AND NOW, come American Welding & Tank Taylor-Wharton Gas Equipment, Division of Harsco Corporation and Harsco Corporation (collectively at times "Harsco"), and Pro Tanks Leasing, LLC, United Propane Gas, Inc. and Liberty Propane Gas, LLC (collectively at times "the United Propane Parties"), which agree to the following terms and conditions for the purpose of resolving the action now pending and brought by Harsco against the United Propane Parties in the Court of Common Pleas of Cumberland County, Pennsylvania, Civil Action No. 05-6702 ("the Pennsylvania action") and the action now pending and brought by United Propane Gas, Inc. against Harsco Corporation in the United States District Court for the Western District of Kentucky, Paducah Division, Civil Action 5:05-CV-246 ("the Kentucky action"): 1. Harsco and the United Propane Parties wish to enter into a full and final settlement and to release each other from all claims and liabilities arising out of and in connection with the Pennsylvania action and the Kentucky action as more specifically set forth below. 2. In consideration of the payments, mutual promises, terms and conditions set forth herein, and intending to be legally bound thereby, Harsco and the United Propane Parties agree as follows: A. In settlement of the Kentucky action, Harsco agrees to pay to the United Propane Parties the amount of Three Hundred Ninety-Five Thousand Dollars ($395,000.00). Page 1 of 5 B. In settlement of the Pennsylvania action, the United Propane Parties agree to pay to Harsco the amount of Three Hundred Seven Thousand Five Hundred Dollars ($307,500.00). C. The United Propane Parties will continue to make payments underthe terms of the Commercial Notes executed by Pro Tanks Leasing, LLC in favor of Harsco Corporation and dated March 10, 2005 and March 18, 2005, respectively ("the Notes), pursuant to the terms and conditions set forth therein, except that, in the event the United Propane Parties wish to prepay any amount due under the Notes, Harsco will waive the prepayment penalty provisions contained in the Notes. D. Harsco releases the United Propane Parties from all present claims for acceleration, attorneys' fees, costs, and other damages under the Notes and the Guarantee Agreements executed by Liberty Propane Gas, LLC and United Propane Gas, Inc. on March 18, 2005 and June 12, 2003, respectively ("the Guarantees"), subject to the condition that if the United Propane Parties fail to make payments under the Notes as set forth therein, the Court of Common Pleas of Cumberland County, Pennsylvania shall retain jurisdiction to enforce the terms of the Settlement Agreement and Mutual Release ("Settlement Agreement") and the terms of the Notes and Guarantees. E. No later than five (5) business days after the parties execute this Settlement Agreement, each party shall deliver to its counsel, for personal exchange with counsel for the other party, a certified bank check made out in the respective settlement amounts as follows: (1) a certified bank check in the amount Page 2 of 5 of $307,500.00 from the United Propane Parties to Harsco Corporation; and (2) a certified bank check in the amount of $395,000.00 from Harsco Corporation to United Propane Gas, Inc. F. No laterthan three (3) business days afterthe parties have exchanged the checks as set forth in paragraph 2.E above: (1) counsel for Harsco shall provide a Stipulation of Settlement for execution by the parties' counsel in the form attached as Exhibit "A" and shall submit the executed Stipulation, along with the executed Settlement Agreement, to the Court of Common Pleas of Cumberland County, Pennsylvania for approval by the Court in the Pennsylvania action; and (2) United Propane Gas, Inc. shall move to discontinue with prejudice the Kentucky action. G. The Court of Common Pleas of Cumberland County, Pennsylvania shall retain jurisdiction of the Pennsylvania action until the United Propane Parties have paid off the Notes in full. Within seven (7) business days of such full and final payment of the Notes, Harsco shall file a praecipe to discontinue with prejudice the Pennsylvania action. H. This Settlement Agreement is entered into forthe purpose of resolving the Pennsylvania action and the Kentucky action and shall not be construed as an admission in any respect by any party, or as a waiver of any rights and obligations under the Notes, except as set forth specifically herein. 3. The parties acknowledge and agree that in executing this Settlement Agreement they and their successors and assigns, and any and all other persons, firms, or corporations related to them, do remise, release and discharge each of the other parties Page 3 of 5 to this Settlement Agreement, their successors and assigns, and any and all present, former, and future principals, stockholders, directors, officers, affiliates, parent companies, subdivisions, agents, representatives, consultants, employees, attorneys, and any and all other persons interested in their behalf, whether named or unnamed, of and from all claims, demands, and liabilities asserted in, in connection with, arising out of, or relating to the Pennsylvania action and the Kentucky action from the beginning of the world to the date of these presents. 4. The parties acknowledge and agree that no statement of fact or opinion has been made by any party, or anyone acting on behalf of any party, to induce the execution of this Settlement Agreement and that this Settlement Agreement is executed by them freely and voluntarily. 5. The parties further acknowledge and agree that this Settlement Agreement is being entered into to settle and resolve any existing disputes between the parties. 6. All signatories to this Settlement Agreement state and affirm that they have the full authority and legal standing to execute this Settlement Agreement and to thereby bind the party on whose behalf they execute it. 7. This Settlement Agreement may be executed in one or more counterparts, all of which together shall be one instrument, and all of which shall be considered duplicate originals. A photocopy of the fully executed original of this Settlement Agreement shall be deemed to be an original for any and all purposes. Page 4 of 5 IN WITNESS WHEREOF, intending to be legally bound, the parties hereto have executed this Settlement Agreement and Mutual Release this `day of ?i if. 2007. American Welding & Tank Taylor-Wharton Gas Equipment, Division of Harsco Corporation Attest: By: rv_.'? ?Ras?d a? 9 Aasco Gb(t&W (Title) Harsco Corporation :'1 F Attest: By: s?.I r}- (Title) Pro Tanks Leasing, LLC Attest: By: Attest: By: (Title) United Propane Gas, Inc. (Title) Attest: By: Liberty Propane Gas, LLC (Title) Page 5 of 5 IN WITNESS WHEREOF, intending to be legally bound, the parties hereto have executed this Settlement Agreement and Mutual Release this day of /1 -P--, 2007. Attest: By: American Welding & Tank Taylor-Wharton Gas Equipment, Division of Harsco Corporation (Title) Attest: By: Harsco Corporation (Title) Pro Tanks Leasing, LLC Attest: By: ";)e4 (Title) Attest: By: United Propane Gas, Inc. feS'Jcl? r (Title) Liberty Propane Gas, LLC Attest: By: Pi- j\ (Title) Page 5 of 5 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA AMERICAN WELDING & TANK TAYLOR-WHARTON GAS EQUIPMENT, DIVISION OF HARSCO CORPORATION, Plaintiff V. PRO TANKS LEASING, LLC, UNITED PROPANE GAS, INC. and LIBERTY PROPANE GAS, LLC, Defendants No. 2005 - 6702 : CIVIL ACTION - LAW STIPULATION OF SETTLEMENT AND NOW, this day of June, 2007, Plaintiff American Welding & Tank Taylor- Wharton Gas Equipment, Division of Harsco Corporation ("Harsco"), and Defendants Pro Tanks Leasing, LLC, United Propane Gas, Inc. and Liberty Propane Gas, LLC ("the United Propane Parties"), by their duly authorized undersigned counsel, hereby stipulate to the settlement and ultimate withdrawal of the above-captioned action on the following terms and schedule: 1. Harsco and the United Propane Parties have settled this action, along with another action pending between them in the United States District Court for the Western District of Kentucky, Paducah Division, Civil Action No. 5:05-CV-246, in a global settlement. 2. A copy of the executed Settlement Agreement and Mutual Release, pursuant to which the parties have resolved the two referenced actions globally, is attached hereto as Exhibit "A". 3. Harsco and the United Propane Parties have each exchanged checks in satisfaction of the lump sum cash payment aspect of their global settlement arrangement. 4. The United Propane Parties continue to be indebted to Harsco under the terms of the existing Notes and Guarantees referenced in the attached Settlement Agreement and Mutual Release, which, in part, were the subject of the action in this Court. 5. Pursuant to the terms of the attached Settlement Agreement and Mutual Release, the United Propane Parties will continue to make payments under the terms of the existing Notes and Guarantees until the debt due underthe Notes is paid in full, except that, in the event that the United Propane Parties wish to prepay any amount under the Notes, or pay the Notes off in their entirety, Harsco has agreed under the Settlement Agreement and Mutual Release to waive the prepayment penalty provisions contained in the Notes. 6. Harsco has released present claims for acceleration, attorneys' fees, costs and other damages under the existing Notes and Guarantees, and the parties have agreed that if the United Propane Parties fail to make payments under the existing Notes, this Court should retain jurisdiction of the current action for the purposes of enforcing the terms of the Settlement Agreement and Mutual Release and the terms of the Notes and Guarantees. 7. Until such time as the existing Notes are paid in full, the parties have agreed that this Court should retain jurisdiction, but request that this Court hold the case in abeyance pending the satisfaction of this term of the Settlement Agreement and Mutual Release. -2- l 1 ~Y, 7 -TI - s A/ 16' IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA AMERICAN WELDING & TANK TAYLOR-WHARTON GAS EQUIPMENT, DIVISION OF HARSCO CORPORATION, Plaintiff No. 2005 - 6702 V. PRO TANKS LEASING, LLC, UNITED PROPANE GAS, INC. and LIBERTY PROPANE GAS, LLC, Defendants : CIVIL ACTION - LAW STIPULATION OF SETTLEMENT AND NOW, this / day of June, 2007, Plaintiff American Welding & Tank Taylor- Wharton Gas Equipment, Division of Harsco Corporation ("Harsco"), and Defendants Pro Tanks Leasing, LLC, United Propane Gas, Inc. and Liberty Propane Gas, LLC ("the United Propane Parties"), by their duly authorized undersigned counsel, hereby stipulate to the settlement and ultimate withdrawal of the above-captioned action on the following terms and schedule: Harsco and the United Propane Parties have settled this action, along with another action pending between them in the United States District Court for the Western District of Kentucky, Paducah Division, Civil Action No. 5:05-CV-246, in a global settlement. 2. A copy of the executed Settlement Agreement and Mutual Release, pursuant to which the parties have resolved the two referenced actions globally, is attached hereto as Exhibit "A". d. "? ts.?? _p r., ? ?.+ ? ? C 4. r??: ?. r ?+? . ., , p?.y cam ' ? y Z L `_` ?„ +W kJr C?7 Y"? ? U 3. Harsco and the United Propane Parties have each exchanged checks in satisfaction of the lump sum cash payment aspect of their global settlement arrangement. 4. The United Propane Parties continue to be indebted to Harsco under the terms of the existing Notes and Guarantees referenced in the attached Settlement Agreement and Mutual Release, which, in part, were the subject of the action in this Court. 5. Pursuant to the terms of the attached Settlement Agreement and Mutual Release, the United Propane Parties will continue to make payments under the terms of the existing Notes and Guarantees until the debt due under the Notes is paid in full, except that, in the event that the United Propane Parties wish to prepay any amount under the Notes, or pay the Notes off in their entirety, Harsco has agreed under the Settlement Agreement and Mutual Release to waive the prepayment penalty provisions contained in the Notes. 6. Harsco has released present claims for acceleration, attorneys' fees, costs and other damages under the existing Notes and Guarantees, and the parties have agreed that if the United Propane Parties fail to make payments under the existing Notes, this Courtshould retain jurisdiction of the current action for the purposes of enforcing the terms of the Settlement Agreement and Mutual Release and the terms of the Notes and Guarantees. 7. Until such time as the existing Notes are paid in full, the parties have agreed that this Court should retain jurisdiction, but request that this Court hold the case in abeyance pending the satisfaction of this term of the Settlement Agreement and Mutual Release. -2- 8. Immediately upon the United Propane Parties' final payment of all amounts due under the existing Notes, Harsco will move this Court to discontinue this action with prejudice. WHEREFORE, Plaintiff and Defendants respectfully requestthatthis Courtapprove this Stipulation of Settlement. C? ridget Montgomery, Es rre Eck rt S & M , L C 213 Market Street, Eighth Floor Post Office Box 1248 Harrisburg, Pennsylvania 17108-1248 J s Reyn s, , Esquire Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 Post Office Box 9500 Harrisburg, PA 17108-9500 Attorney for Plaintiff Attorney for Defendants ORDER AND NOW, this day of S s r _ , 2007, the above Stipulation of -aA Settlement entered into by the parties is APPROVED. 3- BY THE COURT: IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA AMERICAN WELDING & TANK TAYLOR-WHARTON GAS EQUIPMENT, DIVISION OF HARSCO CORPORATION, Plaintiffs V. PRO TANKS LEASING, LLC, UNITED PROPANE GAS, INC. and LIBERTY PROPANE GAS, LLC, Defendants No. 2005 - 6702 Civil Action - Law PRAECIPE TO DISCONTINUE WITH PREJUDICE AND NOW, this 13th day of August, 2007, American Welding & Tank Taylor-Wharton Gas Equipment, Division of Harsco Corporation ("Harsco"), requests this Court to discontinue the above-captioned action with prejudice, in accordance with the Stipulation of Settlement filed June 14, 2007 and approved by Order dated June 21, 2007. Respectfully submitted, ECKERT SEAMANS CHERIN & MELLOTT, LLC b;a? Bridget E. Montgomery, Esq 213 Market Street, 8th Floor Harrisburg, PA 17101 717-237-6000 Counsel for Plaintiffs Date: August 13, 2007 (I.D. NdJ 56105) (L0335146.1) --, CERTIFICATE OF SERVICE I, Bridget E. Montgomery, Esq., hereby certify that I have served a copy of the foregoing document U. S. mail, first-class postage pre-paid, which service satisfies the requirements of the Pennsylvania Rules of Civil Procedure, to the following address: R. James Reynolds, Jr., Esquire Thomas, Thomas, Armstrong & Niesen 212 Locust Street, Suite 500 Harrisburg, PA 17108-9500 (Counsel for Defendants) bA?AQ Bridget E. ontgomery, Esqu' e Date: August 13, 2007 Counsel for Plaintiffs r"' ?} ?? c -, ?.? -n ?? ?w, .a `- ? z ? sT'? i • .? _»?, t't i ,` , , ' ? :a --? •? W 0 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA AMERICAN WELDING & TANK TAYLOR-WHARTON GAS EQUIPMENT, DIVISION OF HARSCO CORPORATION, Plaintiffs No. 2005 - 6702 Civil Action - Law v. PRO TANKS LEASING, LLC, UNITED PROPANE GAS, INC. and LIBERTY PROPANE GAS, LLC, Defendants ORDER AND NOW this t I Nay of August, 2007, in accordance with the Praecipe to Discontinue with Prejudice filed on August 13, 2007, and the Stipulation of Settlement filed on June 14, 2007, the above-captioned action is discontinued with prejudice. r 6 C :01 [IV S 1 OAV LOOZ Jet y%,, ' .: s , 3'Hi JO