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IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION

CARDINAL PEAK INDUSTRIES, a Colorado limited liability company,

Plaintiff,

NEXFORD INDUSTRIAL HOLDINGS INC., a Delaware corporation,

Defendant / Counter-Plaintiff.

Case No. 2022-L-008471

Honorable Judge Margaret T. Winslow

DEFENDANT NEXFORD INDUSTRIAL HOLDINGS INC.'S FIRST SET OF INTERROGATORIES TO PLAINTIFF CARDINAL PEAK INDUSTRIES

Defendant and Counter-Plaintiff Nexford Industrial Holdings Inc. ("Nexford" or "NIH"), by and through its attorneys, Calderwood & Harkness LLP, 200 South Wacker Drive, Suite 4400, Chicago, Illinois 60606, hereby propounds the following First Set of Interrogatories upon Plaintiff Cardinal Peak Industries ("Cardinal Peak" or "CPI"), a Colorado limited liability company, with its principal place of business at 1580 Ridgeline Boulevard, Pueblo, Colorado 81001, and requests that Cardinal Peak answer each Interrogatory fully, in writing and under oath, within twenty-eight (28) days of service, in accordance with the Illinois Supreme Court Rules and the Illinois Code of Civil Procedure.

Date Served: December 5, 2022

Attorneys of Record for Nexford Industrial Holdings Inc.:

Priya Anand, Responsible Partner Douglas Carmichael, Billing Partner Simone Laroche, Lead Associate Jeffrey Park, Associate

CALDERWOOD & HARKNESS LLP 200 South Wacker Drive, Suite 4400 Chicago, Illinois 60606 Telephone: (312) 555-7200 Facsimile: (312) 555-7201 panand@calderwoodharkness.com Matter No.: 1005-00005

Attorneys of Record for Cardinal Peak Industries:

Garrett Blackwood, Lead Partner Megan Hsu, Associate

BLACKWOOD STEIN & ASSOCIATES LLP 717 Seventeenth Street, Suite 2200 Denver, Colorado 80202 Telephone: (303) 555-4100 Facsimile: (303) 555-4101 gblackwood@blackwoodstein.com

INSTRUCTIONS

Instruction No. 1 — Governing Rules. These Interrogatories are propounded pursuant to Illinois Supreme Court Rules 213 and 214, and the Illinois Code of Civil Procedure, 735 ILCS 5/2-401 et seq. Cardinal Peak is required to answer each Interrogatory fully, in writing and under oath, within twenty-eight (28) days of service of these Interrogatories. Each answer must be complete in and of itself, and shall not merely refer to or incorporate by reference any other pleading, document, or prior discovery response, except where expressly permitted by the Illinois Supreme Court Rules.

Instruction No. 2 — Scope and Continuing Obligation. Responses to these Interrogatories shall be based on all information known to or reasonably available to Cardinal Peak, including, without limitation, information in the possession, custody, or control of its officers, directors, employees, agents, consultants, accountants, attorneys (to the extent not privileged), and any other person or entity acting on Cardinal Peak's behalf or subject to Cardinal Peak's control. Cardinal Peak is directed to make a diligent and good-faith search of all such sources of information in preparing its responses. Furthermore, Cardinal Peak has a continuing obligation to supplement and amend its responses pursuant to Illinois Supreme Court Rule 213(i) if additional or corrective information becomes known to it or its counsel after the initial responses are served. Supplemental responses must be served promptly upon discovery of such information and in no event later than required by the Court's scheduling order or applicable rules.

Instruction No. 3 — Identification of Persons. Where an Interrogatory asks Cardinal Peak to "identify" a person, Cardinal Peak shall provide, for each such person: (a) the person's full legal name; (b) current or last known title or position; (c) current or last known employer or business affiliation; (d) current or last known business address; and (e) current or last known telephone number. If Cardinal Peak is unable to provide any of the foregoing information after a diligent search, it shall so state and describe the efforts made to obtain such information.

Instruction No. 4 — Identification of Documents. Where an Interrogatory asks Cardinal Peak to "identify" a document, Cardinal Peak shall provide, for each such document: (a) the document's title or a description sufficient to identify it; (b) the date of the document; (c) the name(s) of the author(s) or originator(s); (d) the name(s) of the recipient(s) or addressee(s); (e) the identity of the custodian or person currently in possession of the document; and (f) the Bates number or range of Bates numbers assigned to the document, if applicable. If a document has not yet been produced or Bates-stamped, Cardinal Peak shall so indicate and describe the document with sufficient particularity to enable Nexford to identify it.

Instruction No. 5 — Time Period. Unless a specific Interrogatory provides otherwise, these Interrogatories cover the period from January 15, 2020 (the date of execution of the Master Supply Agreement identified as MSA-NIH-CPI-2020-001) through and including the date of Cardinal Peak's response to these Interrogatories.

Instruction No. 6 — Privilege Log. If Cardinal Peak withholds any information responsive to these Interrogatories on the basis of attorney-client privilege, work product protection, or any other applicable privilege or immunity, Cardinal Peak shall provide a privilege log that identifies, for each item of withheld information: (a) the date of the communication or document; (b) the name(s) and title(s) of the author(s) or declarant(s); (c) the name(s) and title(s) of the recipient(s) or audience; (d) the general subject matter of the communication or document (described with sufficient particularity to permit an assessment of the privilege claim without revealing privileged content); and (e) the specific privilege or protection asserted as the basis for withholding. A blanket assertion of privilege is insufficient and will not be deemed a proper response.

DEFINITIONS

As used in these Interrogatories, the following terms shall have the meanings set forth below. These definitions are in addition to, and not in lieu of, the definitions contained in the Illinois Supreme Court Rules and the Illinois Code of Civil Procedure.

Definition A — "MSA." The term "MSA" means the Master Supply Agreement executed on or about January 15, 2020, between Cardinal Peak Industries (as Seller) and Nexford Industrial Holdings Inc. (as Buyer), identified as Contract No. MSA-NIH-CPI-2020-001, including all exhibits, schedules, appendices, amendments, addenda, side letters, and modifications thereto, whether written or oral.

Definition B — "Surcharge" or "Surcharges." The term "Surcharge" or "Surcharges" means any raw-material surcharge, including but not limited to scrap surcharges, energy surcharges, alloy surcharges, and any other cost pass-through or adjustment, invoiced, assessed, claimed, or sought by Cardinal Peak under or in connection with Section 7.4 of the MSA, or under any purported modification, amendment, or interpretation of Section 7.4.

Definition C — "Surcharge Notice." The term "Surcharge Notice" means any written notice delivered or purportedly delivered by Cardinal Peak to Nexford pursuant to Section 7.4(a) of the MSA, reflecting the Surcharges applicable to a given invoice period, together with any supporting documentation, calculations, data, or schedules accompanying or referenced in such notice.

Definition D — "Exhibit C Methodology." The term "Exhibit C Methodology" means the surcharge calculation methodology set forth in Exhibit C to the MSA, which prescribes the calculation of Surcharges using: (i) the published Ferrous Scrap Index, as reported by S&P Global Platts (formerly Platts/SPI), applied against the agreed baseline scrap cost of $340 per ton; and (ii) the Industrial Energy Cost Index, applied against the agreed baseline energy cost of $48 per ton. The Exhibit C Methodology defines the exclusive contractual method by which Surcharges are to be computed under the MSA.

Definition E — "Disputed Period." The term "Disputed Period" means the period from March 2021 through and including May 2022, during which Cardinal Peak claims that Nexford failed to pay or fully pay certain Surcharge invoices.

Definition F — "Base Price." The term "Base Price" means the per-ton price for each product category as established in Section 7.2 of the MSA, specifically: (i) $620 per ton for hot-rolled coil ("HRC"); and (ii) $740 per ton for cold-rolled coil ("CRC"), as set in the 2020 base price schedule, subject to quarterly adjustment in accordance with Section 7.2(b) of the MSA.

Definition G — "Blended Cost" or "Blended Cost Metric." The term "Blended Cost" or "Blended Cost Metric" means any internal cost calculation, formula, methodology, model, or metric used by Cardinal Peak to determine Surcharge amounts that differs from, departs from, supplements, or modifies the Exhibit C Methodology in any respect, including but not limited to any methodology incorporating Cardinal Peak's actual or estimated raw-material procurement costs, weighted-average scrap costs, internally derived energy cost indices, or any other cost inputs not specified in Exhibit C to the MSA.

Definition H — "You," "Your," "Cardinal Peak," or "CPI." The terms "You," "Your," "Cardinal Peak," or "CPI" mean Plaintiff Cardinal Peak Industries, a Colorado limited liability company, and include its current and former officers, directors, employees, agents, representatives, consultants, accountants, attorneys (to the extent not privileged), predecessors, successors, assigns, subsidiaries, affiliates, and any other person or entity acting on its behalf or under its direction or control.

Definition I — "Nexford" or "NIH." The terms "Nexford" or "NIH" mean Defendant and Counter-Plaintiff Nexford Industrial Holdings Inc., a Delaware corporation, with its principal offices located at 4200 West Lakeshore Industrial Parkway, Suite 300, Waukegan, Illinois 60085.

Definition J — "Person." The term "Person" means any natural person, corporation, limited liability company, partnership, joint venture, association, trust, estate, governmental body or agency, or any other legal entity, whether domestic or foreign.

Definition K — "Document" or "Documents." The terms "Document" or "Documents" shall be construed in the broadest sense permitted by law and shall have the meaning set forth in Illinois Supreme Court Rule 201(b)(1) and, by analogy, Federal Rule of Civil Procedure 34(a), including but not limited to writings, drawings, graphs, charts, photographs, sound recordings, images, electronically stored information ("ESI"), and other data compilations from which information can be obtained, translated, if necessary, through detection devices into reasonably usable form, regardless of the medium on which the information is stored or the manner in which it is maintained.

Definition L — "Communication." The term "Communication" means any oral or written exchange, transmission, or transfer of information between two or more Persons, by any means, including but not limited to emails, letters, memoranda, text messages, instant messages, voicemail messages, telephone calls, video conferences, and in-person conversations.

Definition M — "Surcharge Cap." The term "Surcharge Cap" means the limitation set forth in Section 7.4(c) of the MSA, which provides that aggregate monthly Surcharges assessed by Cardinal Peak shall not exceed twelve percent (12%) of the applicable Base Price for the relevant product category, unless the parties mutually agree in writing to a higher percentage.

INTERROGATORIES

INTERROGATORY NO. 1 — Identification of Persons with Knowledge

State the full name, title, employer, business address, telephone number, and role of each Person who has knowledge of, was involved in, or participated in any manner in the following:

(a) the calculation, preparation, review, or approval of Surcharge invoices issued to Nexford during the Disputed Period;

(b) the preparation, review, authorization, or delivery of Surcharge Notices to Nexford during the Disputed Period;

(c) the development, design, implementation, or application of the Exhibit C Methodology or any alternative methodology — including, without limitation, any Blended Cost Metric — used to compute, adjust, or verify Surcharges assessed against Nexford at any time during the period covered by these Interrogatories;

(d) any and all Communications with Nexford or its representatives regarding Surcharge disputes, Surcharge calculations, Surcharge Notice delivery, the Surcharge Cap, or any other matter related to the Surcharges at issue in this litigation, from March 2021 through the date of Cardinal Peak's response to these Interrogatories.

For each Person identified in response to subparts (a) through (d) above, describe in detail the nature and extent of such Person's knowledge, including the specific subject matter(s) as to which the Person has knowledge, the time period during which the Person was involved, and the Person's role or function with respect to the matters described. If any such Person is no longer employed by or affiliated with Cardinal Peak, state the date on which such Person's employment or affiliation ended and the Person's last known contact information.

INTERROGATORY NO. 2 — Surcharge Calculation Methodology

Describe in detail the methodology that Cardinal Peak used to calculate each Surcharge invoiced to Nexford during the Disputed Period (March 2021 through May 2022), including but not limited to the following:

(a) the specific indices, data sources, market publications, internal cost metrics, or other inputs used to determine the scrap surcharge component, the energy surcharge component, and the alloy surcharge component (if any) of each Surcharge invoice;

(b) whether and to what extent Cardinal Peak applied the published Ferrous Scrap Index (as reported by S&P Global Platts, formerly Platts/SPI) and the Industrial Energy Cost Index, as prescribed by the Exhibit C Methodology, to calculate Surcharges during the Disputed Period;

(c) whether and to what extent Cardinal Peak used a Blended Cost Metric or any other internal calculation, formula, or methodology that differs from or supplements the Exhibit C Methodology for purposes of computing Surcharges during the Disputed Period, and if so, a detailed description of such Blended Cost Metric or alternative methodology, including all inputs, variables, weighting factors, and assumptions used, together with the factual and contractual basis for Cardinal Peak's use of such alternative methodology rather than the Exhibit C Methodology;

(d) the baseline scrap cost and baseline energy cost that Cardinal Peak used in its Surcharge calculations during each month of the Disputed Period, and whether these baselines correspond to the $340 per ton baseline scrap cost and $48 per ton baseline energy cost specified in Exhibit C to the MSA; if the baselines used by Cardinal Peak differed from those specified in Exhibit C, state the baselines actually used and the factual and contractual basis for any deviation;

(e) identification of all Documents reflecting, relating to, embodying, or supporting Cardinal Peak's surcharge calculation methodology, including but not limited to calculation worksheets, spreadsheets, pricing models, internal memoranda, policy documents, training materials, and Communications discussing the methodology.

INTERROGATORY NO. 3 — Surcharge Notice Delivery Dates and Compliance

For each month during the Disputed Period (March 2021 through May 2022, inclusive — fourteen (14) months in total), state the following with respect to the applicable Surcharge Notice:

(a) the date on which the applicable Surcharge Notice was prepared or finalized in a form intended for delivery to Nexford;

(b) the date on which the applicable Surcharge Notice was actually delivered or transmitted to Nexford;

(c) the method of delivery or transmission used (e.g., electronic mail, overnight courier, certified U.S. mail, hand delivery, or other method), including, if delivered by email, the sending and receiving email addresses;

(d) the identity of the Person who prepared the Surcharge Notice and the identity of the Person who authorized or approved the Surcharge Notice for delivery;

(e) whether the Surcharge Notice was delivered to Nexford within fifteen (15) business days after the end of the applicable month, as required by Section 7.4(a) of the MSA, and the specific date on which the 15-business-day deadline fell for each applicable month;

(f) if any Surcharge Notice was delivered beyond the 15-business-day deadline specified in Section 7.4(a) of the MSA, the reason or reasons for the late delivery, the number of business days by which delivery was late, and the factual and legal basis for Cardinal Peak's contention (if any) that such late delivery does not affect, waive, or impair Cardinal Peak's right to collect the Surcharge associated with that Surcharge Notice.

INTERROGATORY NO. 4 — Monthly Surcharge Amounts and Supporting Data

For each month during the Disputed Period (March 2021 through May 2022), provide the following information:

(a) the total Surcharge amount invoiced to Nexford for that month, broken down separately by product category (i.e., Hot-Rolled Coil ("HRC") and Cold-Rolled Coil ("CRC"));

(b) the total tonnage of HRC and the total tonnage of CRC delivered by Cardinal Peak to Nexford during that month;

(d) the applicable Base Price in effect for each product category (HRC and CRC) during that month, including any quarterly adjustments pursuant to Section 7.2(b) of the MSA;

(e) the percentage that the total monthly Surcharge represents relative to the applicable Base Price for each product category, calculated for purposes of determining compliance with the twelve percent (12%) Surcharge Cap under Section 7.4(c) of the MSA;

(f) whether the aggregate monthly Surcharge exceeded twelve percent (12%) of the applicable Base Price for any product category during that month, and if so: (i) the amount by which the Surcharge exceeded the twelve percent (12%) cap; (ii) whether Cardinal Peak sought and obtained prior written consent from Nexford to exceed the Surcharge Cap, as required by Section 7.4(c); and (iii) if Cardinal Peak did obtain such consent, the date, form, and content of the request and the date, form, and content of Nexford's written consent.

INTERROGATORY NO. 5 — Internal Pricing Policies and Blended Cost Metric

Describe in detail Cardinal Peak's internal pricing policies, practices, procedures, and guidelines with respect to raw-material surcharges during the Disputed Period, including but not limited to the following:

(a) the origin, development, components, and operation of any Blended Cost Metric or internal cost model used by Cardinal Peak to determine or inform Surcharge amounts, including the date on which any such metric was first developed or adopted, the Person(s) who authorized its use, and any revisions or modifications made to the metric during the Disputed Period;

(b) whether the Blended Cost Metric (or any variant thereof) was applied to other customers of Cardinal Peak, or whether its application was limited to Nexford, and if the Blended Cost Metric was applied to other customers, the identity of each such customer and the terms under which the Blended Cost Metric was applied;

(c) the identity of any Person(s) responsible for developing, approving, implementing, overseeing, or administering the Blended Cost Metric, including each such Person's title, department, and role;

(d) the relationship, if any, between the Blended Cost Metric and the Exhibit C Methodology prescribed by the MSA, including whether the Blended Cost Metric was intended to replace, supplement, or refine the Exhibit C Methodology, and the factual and contractual basis for any such relationship;

(e) whether Cardinal Peak notified Nexford at any time, whether before or during the Disputed Period, that Cardinal Peak intended to deviate from the Exhibit C Methodology and use a Blended Cost Metric or any other alternative methodology to calculate Surcharges, and if so, identify all related Communications by date, participants, and content, and state whether Nexford consented to such deviation.

INTERROGATORY NO. 6 — Basis for Claimed Damages Amount

State the complete factual and computational basis for Cardinal Peak's claim, as set forth in the Complaint, that Nexford owes $4,730,000 in unpaid Surcharges (exclusive of prejudgment interest), including but not limited to the following:

(a) a detailed reconciliation showing: (i) the total aggregate Surcharges invoiced to Nexford during the Disputed Period (which Cardinal Peak has alleged to be approximately $6,410,000); (ii) the total aggregate amounts paid by Nexford on account of such Surcharges (which Nexford's records reflect as approximately $1,680,000); and (iii) the resulting unpaid balance claimed by Cardinal Peak (alleged to be approximately $4,730,000);

(b) identification of each specific invoice comprising the $4,730,000 claimed unpaid amount, including for each invoice: the invoice number, the invoice date, the invoice amount, the product category (HRC or CRC), the tonnage to which the invoice relates, and the Surcharge per ton reflected in the invoice;

(c) Cardinal Peak's position regarding the month of April 2021, for which Nexford's records reflect that the applicable Surcharge was paid in full, and whether Cardinal Peak contends that any amount remains due and owing for that month; if Cardinal Peak contends that any amount remains due for April 2021, state the amount and the basis for such contention;

(d) any credits, adjustments, offsets, deductions, or other modifications that Cardinal Peak has applied, or contends should be applied, to the claimed unpaid balance, including the basis and amount of each such credit, adjustment, or offset.

INTERROGATORY NO. 7 — Prejudgment Interest Claim

Describe the complete factual and legal basis for Cardinal Peak's claim for prejudgment interest in the amount of approximately $380,000 (resulting in a total claimed amount of approximately $5,110,000), including but not limited to the following:

(a) the interest rate applied by Cardinal Peak in computing the claimed prejudgment interest, and whether such rate is a statutory rate, a contractual rate, or a rate derived from some other source;

(b) the method of calculation used (i.e., whether interest was computed on a simple-interest or compound-interest basis, and if compounded, the compounding frequency);

(c) the start date or dates from which prejudgment interest is calculated for each unpaid Surcharge invoice, and the basis for selecting each such start date (e.g., the invoice due date, the date of demand, or some other date);

(d) the specific legal authority under Illinois law on which Cardinal Peak relies for its claimed entitlement to prejudgment interest, including any statutory provisions, case law, or contractual provisions;

(e) identification of any expert, consultant, accountant, or other professional who performed, reviewed, or verified the prejudgment interest calculation, including such person's full name, professional qualifications, business address, and the scope of the engagement; if Dr. Theodore Voss of Pinnacle Economics Group LLC performed or contributed to the calculation, so state and provide the information requested herein.

INTERROGATORY NO. 8 — Factual Basis for Unjust Enrichment Claim (Count II)

State all facts supporting Cardinal Peak's claim for unjust enrichment as set forth in Count II of the Complaint, including but not limited to the following:

(a) the specific benefit or benefits that Cardinal Peak contends Nexford received as a result of the alleged failure to pay or fully pay the Surcharges at issue;

(b) the factual and legal basis for Cardinal Peak's contention that it would be unjust or inequitable for Nexford to retain such benefit or benefits without full payment to Cardinal Peak;

(c) whether Cardinal Peak contends that its unjust enrichment claim exists independently of the MSA (i.e., whether the claim would survive even if the MSA were held to govern exclusively the parties' rights and obligations with respect to the Surcharges at issue), and if so, the specific factual and legal basis for that contention;

(d) whether Cardinal Peak acknowledges that the MSA constitutes an express, enforceable contract that governs the parties' rights and obligations with respect to the Surcharges at issue, and if Cardinal Peak contends that the MSA does not govern — or does not exclusively govern — the subject matter of the unjust enrichment claim, the complete factual and legal basis for that contention.

INTERROGATORY NO. 9 — Factual Basis for Account Stated Claim (Count III)

State all facts supporting Cardinal Peak's claim for account stated as set forth in Count III of the Complaint, including but not limited to the following:

(a) the specific invoices, statements of account, or other accounting records that Cardinal Peak contends constitute the "account stated" between the parties;

(b) the date or dates on which Cardinal Peak contends that Nexford agreed to, acknowledged, or acquiesced in the correctness of the stated account;

(c) the specific conduct, Communications, payments, or omissions by Nexford that Cardinal Peak contends constitute agreement to, acknowledgment of, or acquiescence in the correctness of the stated account;

(d) Cardinal Peak's response to Nexford's position that it timely disputed the Surcharge invoices within the thirty (30) calendar-day dispute period prescribed by Section 7.4(d) of the MSA, including: (i) whether Cardinal Peak contends that Nexford failed to dispute any specific invoice within the 30-day period; (ii) identification of each invoice that Cardinal Peak contends was not timely disputed; and (iii) the factual basis for any such contention.

INTERROGATORY NO. 10 — Communications with Nexford Regarding Surcharge Disputes

Identify and describe all Communications between Cardinal Peak (including its officers, directors, employees, agents, consultants, and representatives) and Nexford (including its officers, directors, employees, agents, consultants, and representatives) regarding disputed Surcharge invoices, Surcharge calculations, the Surcharge Cap, the Exhibit C Methodology, the Blended Cost Metric, or any other subject matter relating to the Surcharges at issue in this litigation, during the period from March 2021 through the date of Cardinal Peak's response to these Interrogatories, including but not limited to the following for each such Communication:

(a) the date, time (if known), and participants (including each participant's name and title or role) of each Communication;

(b) whether the Communication was oral (e.g., telephone call, in-person meeting, video conference) or written (e.g., email, letter, memorandum, text message);

(c) whether Cardinal Peak received any written dispute notice from Nexford pursuant to Section 7.4(d) of the MSA, and if so, identify each such dispute notice by date, sender, recipient, method of transmission, and a description of the content and substance of the dispute notice;

(d) Cardinal Peak's response (if any) to each such dispute notice, including the date, form, and content of Cardinal Peak's response, and the identity of the Person who authored or authorized the response.

INTERROGATORY NO. 11 — Section 7.4(c) Surcharge Cap — Written Consent

Identify each instance during the Disputed Period in which the aggregate monthly Surcharge assessed by Cardinal Peak for any product category exceeded twelve percent (12%) of the applicable Base Price for that product category, and for each such instance, state the following:

(a) the month, the product category (HRC or CRC), the applicable Base Price in effect for that product category during that month, the total Surcharge amount invoiced for that product category, and the percentage that the Surcharge represents relative to the applicable Base Price;

(b) whether Cardinal Peak sought prior written consent from Nexford to exceed the twelve percent (12%) Surcharge Cap, as required by Section 7.4(c) of the MSA, and if so, identify the date, form, content, and recipient of such request;

(c) whether Nexford provided prior written consent to exceed the twelve percent (12%) Surcharge Cap, and if so, identify the date, form, content, and author of such consent;

(d) if Cardinal Peak did not obtain prior written consent from Nexford to exceed the twelve percent (12%) Surcharge Cap, the complete factual and legal basis for Cardinal Peak's contention (if any) that it was nevertheless entitled to invoice and collect Surcharges in excess of the twelve percent (12%) cap, including but not limited to any reliance on course of dealing, course of performance, waiver, estoppel, or other legal theory.

INTERROGATORY NO. 12 — Exhibit C Methodology — Ferrous Scrap Index and Industrial Energy Cost Index Data

For each month during the Disputed Period (March 2021 through May 2022), state the following:

(a) the published Ferrous Scrap Index value (as reported by S&P Global Platts, formerly Platts/SPI) applicable to that month, together with the publication date and edition or issue of the Platts/SPI report from which the value was derived;

(b) the published Industrial Energy Cost Index value applicable to that month, together with the publication date and source from which the value was derived;

(c) the scrap surcharge per ton that would result from applying the Exhibit C Methodology using the published Ferrous Scrap Index value identified in subpart (a) above and the $340 per ton baseline scrap cost specified in Exhibit C;

(d) the energy surcharge per ton that would result from applying the Exhibit C Methodology using the published Industrial Energy Cost Index value identified in subpart (b) above and the $48 per ton baseline energy cost specified in Exhibit C;

(e) the total Surcharge per ton that would result from applying the Exhibit C Methodology for each product category (HRC and CRC), representing the sum of the scrap surcharge and energy surcharge computed in subparts (c) and (d) above, plus any alloy surcharge component (if applicable);

(f) the variance, if any, between the Surcharge amounts calculated using the Exhibit C Methodology (as set forth in subpart (e) above) and the Surcharge amounts actually invoiced by Cardinal Peak for each month and each product category, expressed both in dollars per ton and in total dollars for the month.

INTERROGATORY NO. 13 — Identification of Expert Witnesses

Identify each expert witness that Cardinal Peak has retained, employed, or expects to call at trial or at any hearing in this action, and for each such expert, state the following:

(a) the expert's full name, professional qualifications (including degrees, certifications, and relevant professional experience), current employer or business affiliation, and business address;

(b) the subject matter on which the expert is expected to testify, described with reasonable specificity;

(d) the facts, data, documents, and other information considered by the expert in forming or expected to form such opinions, including whether the expert reviewed the MSA, Exhibit C, Surcharge Notices, Surcharge invoices, or any other Documents produced in this litigation;

(e) the compensation arrangement between Cardinal Peak (or its counsel) and the expert for this engagement, including the hourly rate, flat fee, or other fee arrangement, and the total compensation paid or expected to be paid through the date of Cardinal Peak's response.

INTERROGATORY NO. 14 — Mitigation and Alternative Supply Arrangements

State whether Cardinal Peak took any steps to mitigate its alleged damages, including but not limited to the following:

(a) whether Cardinal Peak sought to sell or redirect to other customers, during or after the Disputed Period, the steel products (HRC or CRC) that would have generated Surcharge revenue from Nexford, and if so, describe the efforts undertaken, the customers approached, the products offered, and the outcome of such efforts;

(b) whether Cardinal Peak's claimed Surcharges are net of any amounts recovered, earned, or received through sales to alternative customers or through any other transactions that offset or reduced the loss attributable to the allegedly unpaid Surcharges;

(c) whether Cardinal Peak entered into any new or amended supply agreements with other customers during the Disputed Period that had the effect of offsetting, replacing, or compensating for the allegedly unpaid Surcharges from Nexford, and if so, identify each such agreement by parties, date, product category, and relevant financial terms (to the extent not subject to a valid confidentiality restriction).

INTERROGATORY NO. 15 — Cardinal Peak's Prior Course of Dealing

Describe any instances occurring prior to March 2021 (i.e., during the period from January 15, 2020 through February 28, 2021) in which any of the following occurred:

(a) Cardinal Peak delivered a Surcharge Notice to Nexford beyond the fifteen (15) business-day deadline prescribed by Section 7.4(a) of the MSA, and for each such instance, state: the month to which the Surcharge Notice related; the date the Surcharge Notice was delivered; the number of business days by which delivery was late; and Nexford's response, if any, to the late delivery (including whether Nexford objected, accepted, or paid the associated Surcharge);

(b) Cardinal Peak used a methodology other than the Exhibit C Methodology to calculate Surcharges passed through to Nexford under the MSA, and for each such instance, state: the month(s) to which the alternative methodology was applied; a description of the alternative methodology used; the variance (if any) between the Surcharge calculated under the Exhibit C Methodology and the Surcharge actually invoiced; and Nexford's response, if any (including whether Nexford objected, accepted, or paid the associated Surcharge);

(c) any Surcharge assessed by Cardinal Peak against Nexford exceeded the twelve percent (12%) Surcharge Cap under Section 7.4(c) of the MSA, and for each such instance, state: the month, product category, Surcharge amount, and percentage of the applicable Base Price; whether Nexford provided prior written consent to exceed the Surcharge Cap; and Nexford's response, if any.

INTERROGATORY NO. 16 — Relationship Between Complaint Allegations and Counterclaim

State Cardinal Peak's position regarding Nexford's Counterclaim, filed on October 3, 2022, including but not limited to the following:

(a) Cardinal Peak's response to Nexford's allegation, set forth in the Counterclaim, that Cardinal Peak breached the MSA by failing to comply with the Exhibit C Methodology and the Section 7.4 notice requirements, including a statement of each fact that Cardinal Peak contends supports its denial or defense to such allegation;

(b) Cardinal Peak's response to Nexford's request, set forth in Count II of the Counterclaim, for declaratory relief establishing that: (i) the Exhibit C Methodology is the exclusive methodology for computing Surcharges under the MSA; (ii) Surcharge Notices not delivered within fifteen (15) business days after the end of the applicable month are untimely and do not give rise to a payment obligation; and (iii) Surcharges exceeding the twelve percent (12%) Surcharge Cap without Nexford's prior written consent are unenforceable;

(c) Cardinal Peak's position on Nexford's claim, set forth in Count III of the Counterclaim, for return of $210,000 in alleged overpayments resulting from Surcharges that Nexford contends were calculated using an unauthorized methodology and/or assessed in excess of the Surcharge Cap, including whether Cardinal Peak disputes the amount claimed and the factual and legal basis for any such dispute.

VERIFICATION

The undersigned, being an authorized officer of Cardinal Peak Industries, having read the foregoing Interrogatories and having reviewed the responses prepared thereto, hereby verifies under oath that the answers to the foregoing Interrogatories are true and correct to the best of my knowledge, information, and belief, formed after a reasonable inquiry. I understand that making a false statement herein is punishable under the laws of the State of Illinois.

This Verification is made pursuant to 735 ILCS 5/1-109.

________________________________________

Printed Name: ______

Title: ________

Date: ________

State of ___ ) ) ss. County of ____ )

Subscribed and sworn to before me this _ day of ___, 20_.

________________________________________

Notary Public My Commission Expires: ____

ATTORNEY SIGNATURE BLOCK

Respectfully submitted,

NEXFORD INDUSTRIAL HOLDINGS INC.

By its attorneys,

CALDERWOOD & HARKNESS LLP

By: ________

Priya Anand (ARDC No. 6312847) Responsible Partner

Douglas Carmichael (ARDC No. 6284531) Billing Partner

Simone Laroche (ARDC No. 6340912) Lead Associate

Jeffrey Park (ARDC No. 6358204) Associate

CALDERWOOD & HARKNESS LLP 200 South Wacker Drive, Suite 4400 Chicago, Illinois 60606 Telephone: (312) 555-7200 Facsimile: (312) 555-7201 panand@calderwoodharkness.com dcarmichael@calderwoodharkness.com slaroche@calderwoodharkness.com jpark@calderwoodharkness.com

Matter No.: 1005-00005

CERTIFICATE OF SERVICE

I, Priya Anand, an attorney, hereby certify that on December 5, 2022, I caused a true and correct copy of Defendant Nexford Industrial Holdings Inc.'s First Set of Interrogatories to Plaintiff Cardinal Peak Industries to be served upon counsel of record for Plaintiff Cardinal Peak Industries at the following address:

Garrett Blackwood Megan Hsu BLACKWOOD STEIN & ASSOCIATES LLP 717 Seventeenth Street, Suite 2200 Denver, Colorado 80202 Telephone: (303) 555-4100 Facsimile: (303) 555-4101 gblackwood@blackwoodstein.com mhsu@blackwoodstein.com

Service was effected via electronic service through the Court's electronic filing system and by depositing a copy in the United States Mail, first-class postage prepaid, addressed to counsel at the address set forth above.

Under penalties as provided by law pursuant to 735 ILCS 5/1-109, I certify that the statements set forth in this Certificate of Service are true and correct.

________________________________________

Priya Anand CALDERWOOD & HARKNESS LLP 200 South Wacker Drive, Suite 4400 Chicago, Illinois 60606 Attorneys for Defendant / Counter-Plaintiff Nexford Industrial Holdings Inc.

Date: December 5, 2022

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION
CARDINAL PEAK INDUSTRIES, a Colorado limited liability company,
Plaintiff,
v.
NEXFORD INDUSTRIAL HOLDINGS INC., a Delaware corporation,
Defendant / Counter-Plaintiff.
Case No. 2022-L-008471
Honorable Judge Margaret T. Winslow
DEFENDANT NEXFORD INDUSTRIAL HOLDINGS INC.'S FIRST SET OF INTERROGATORIES TO PLAINTIFF CARDINAL PEAK INDUSTRIES
Defendant and Counter-Plaintiff Nexford Industrial Holdings Inc. ("Nexford" or "NIH"), by and through its attorneys, Calderwood & Harkness LLP, 200 South Wacker Drive, Suite 4400, Chicago, Illinois 60606, hereby propounds the following First Set of Interrogatories upon Plaintiff Cardinal Peak Industries ("Cardinal Peak" or "CPI"), a Colorado limited liability company, with its principal place of business at 1580 Ridgeline Boulevard, Pueblo, Colorado 81001, and requests that Cardinal Peak answer each Interrogatory fully, in writing and under oath, within twenty-eight (28) days of service, in accordance with the Illinois Supreme Court Rules and the Illinois Code of Civil Procedure.
Date Served: December 5, 2022
Attorneys of Record for Nexford Industrial Holdings Inc.:
Priya Anand, Responsible Partner Douglas Carmichael, Billing Partner Simone Laroche, Lead Associate Jeffrey Park, Associate
CALDERWOOD & HARKNESS LLP 200 South Wacker Drive, Suite 4400 Chicago, Illinois 60606 Telephone: (312) 555-7200 Facsimile: (312) 555-7201 panand@calderwoodharkness.com Matter No.: 1005-00005
Attorneys of Record for Cardinal Peak Industries:
Garrett Blackwood, Lead Partner Megan Hsu, Associate
BLACKWOOD STEIN & ASSOCIATES LLP 717 Seventeenth Street, Suite 2200 Denver, Colorado 80202 Telephone: (303) 555-4100 Facsimile: (303) 555-4101 gblackwood@blackwoodstein.com
INSTRUCTIONS
Instruction No. 1 — Governing Rules. These Interrogatories are propounded pursuant to Illinois Supreme Court Rules 213 and 214, and the Illinois Code of Civil Procedure, 735 ILCS 5/2-401 et seq. Cardinal Peak is required to answer each Interrogatory fully, in writing and under oath, within twenty-eight (28) days of service of these Interrogatories. Each answer must be complete in and of itself, and shall not merely refer to or incorporate by reference any other pleading, document, or prior discovery response, except where expressly permitted by the Illinois Supreme Court Rules.
Instruction No. 2 — Scope and Continuing Obligation. Responses to these Interrogatories shall be based on all information known to or reasonably available to Cardinal Peak, including, without limitation, information in the possession, custody, or control of its officers, directors, employees, agents, consultants, accountants, attorneys (to the extent not privileged), and any other person or entity acting on Cardinal Peak's behalf or subject to Cardinal Peak's control. Cardinal Peak is directed to make a diligent and good-faith search of all such sources of information in preparing its responses. Furthermore, Cardinal Peak has a continuing obligation to supplement and amend its responses pursuant to Illinois Supreme Court Rule 213(i) if additional or corrective information becomes known to it or its counsel after the initial responses are served. Supplemental responses must be served promptly upon discovery of such information and in no event later than required by the Court's scheduling order or applicable rules.
Instruction No. 3 — Identification of Persons. Where an Interrogatory asks Cardinal Peak to "identify" a person, Cardinal Peak shall provide, for each such person: (a) the person's full legal name; (b) current or last known title or position; (c) current or last known employer or business affiliation; (d) current or last known business address; and (e) current or last known telephone number. If Cardinal Peak is unable to provide any of the foregoing information after a diligent search, it shall so state and describe the efforts made to obtain such information.
Instruction No. 4 — Identification of Documents. Where an Interrogatory asks Cardinal Peak to "identify" a document, Cardinal Peak shall provide, for each such document: (a) the document's title or a description sufficient to identify it; (b) the date of the document; (c) the name(s) of the author(s) or originator(s); (d) the name(s) of the recipient(s) or addressee(s); (e) the identity of the custodian or person currently in possession of the document; and (f) the Bates number or range of Bates numbers assigned to the document, if applicable. If a document has not yet been produced or Bates-stamped, Cardinal Peak shall so indicate and describe the document with sufficient particularity to enable Nexford to identify it.
Instruction No. 5 — Time Period. Unless a specific Interrogatory provides otherwise, these Interrogatories cover the period from January 15, 2020 (the date of execution of the Master Supply Agreement identified as MSA-NIH-CPI-2020-001) through and including the date of Cardinal Peak's response to these Interrogatories.
Instruction No. 6 — Privilege Log. If Cardinal Peak withholds any information responsive to these Interrogatories on the basis of attorney-client privilege, work product protection, or any other applicable privilege or immunity, Cardinal Peak shall provide a privilege log that identifies, for each item of withheld information: (a) the date of the communication or document; (b) the name(s) and title(s) of the author(s) or declarant(s); (c) the name(s) and title(s) of the recipient(s) or audience; (d) the general subject matter of the communication or document (described with sufficient particularity to permit an assessment of the privilege claim without revealing privileged content); and (e) the specific privilege or protection asserted as the basis for withholding. A blanket assertion of privilege is insufficient and will not be deemed a proper response.
DEFINITIONS
As used in these Interrogatories, the following terms shall have the meanings set forth below. These definitions are in addition to, and not in lieu of, the definitions contained in the Illinois Supreme Court Rules and the Illinois Code of Civil Procedure.
Definition A — "MSA." The term "MSA" means the Master Supply Agreement executed on or about January 15, 2020, between Cardinal Peak Industries (as Seller) and Nexford Industrial Holdings Inc. (as Buyer), identified as Contract No. MSA-NIH-CPI-2020-001, including all exhibits, schedules, appendices, amendments, addenda, side letters, and modifications thereto, whether written or oral.
Definition B — "Surcharge" or "Surcharges." The term "Surcharge" or "Surcharges" means any raw-material surcharge, including but not limited to scrap surcharges, energy surcharges, alloy surcharges, and any other cost pass-through or adjustment, invoiced, assessed, claimed, or sought by Cardinal Peak under or in connection with Section 7.4 of the MSA, or under any purported modification, amendment, or interpretation of Section 7.4.
Definition C — "Surcharge Notice." The term "Surcharge Notice" means any written notice delivered or purportedly delivered by Cardinal Peak to Nexford pursuant to Section 7.4(a) of the MSA, reflecting the Surcharges applicable to a given invoice period, together with any supporting documentation, calculations, data, or schedules accompanying or referenced in such notice.
Definition D — "Exhibit C Methodology." The term "Exhibit C Methodology" means the surcharge calculation methodology set forth in Exhibit C to the MSA, which prescribes the calculation of Surcharges using: (i) the published Ferrous Scrap Index, as reported by S&P Global Platts (formerly Platts/SPI), applied against the agreed baseline scrap cost of $340 per ton; and (ii) the Industrial Energy Cost Index, applied against the agreed baseline energy cost of $48 per ton. The Exhibit C Methodology defines the exclusive contractual method by which Surcharges are to be computed under the MSA.
Definition E — "Disputed Period." The term "Disputed Period" means the period from March 2021 through and including May 2022, during which Cardinal Peak claims that Nexford failed to pay or fully pay certain Surcharge invoices.
Definition F — "Base Price." The term "Base Price" means the per-ton price for each product category as established in Section 7.2 of the MSA, specifically: (i) $620 per ton for hot-rolled coil ("HRC"); and (ii) $740 per ton for cold-rolled coil ("CRC"), as set in the 2020 base price schedule, subject to quarterly adjustment in accordance with Section 7.2(b) of the MSA.
Definition G — "Blended Cost" or "Blended Cost Metric." The term "Blended Cost" or "Blended Cost Metric" means any internal cost calculation, formula, methodology, model, or metric used by Cardinal Peak to determine Surcharge amounts that differs from, departs from, supplements, or modifies the Exhibit C Methodology in any respect, including but not limited to any methodology incorporating Cardinal Peak's actual or estimated raw-material procurement costs, weighted-average scrap costs, internally derived energy cost indices, or any other cost inputs not specified in Exhibit C to the MSA.
Definition H — "You," "Your," "Cardinal Peak," or "CPI." The terms "You," "Your," "Cardinal Peak," or "CPI" mean Plaintiff Cardinal Peak Industries, a Colorado limited liability company, and include its current and former officers, directors, employees, agents, representatives, consultants, accountants, attorneys (to the extent not privileged), predecessors, successors, assigns, subsidiaries, affiliates, and any other person or entity acting on its behalf or under its direction or control.
Definition I — "Nexford" or "NIH." The terms "Nexford" or "NIH" mean Defendant and Counter-Plaintiff Nexford Industrial Holdings Inc., a Delaware corporation, with its principal offices located at 4200 West Lakeshore Industrial Parkway, Suite 300, Waukegan, Illinois 60085.
Definition J — "Person." The term "Person" means any natural person, corporation, limited liability company, partnership, joint venture, association, trust, estate, governmental body or agency, or any other legal entity, whether domestic or foreign.
Definition K — "Document" or "Documents." The terms "Document" or "Documents" shall be construed in the broadest sense permitted by law and shall have the meaning set forth in Illinois Supreme Court Rule 201(b)(1) and, by analogy, Federal Rule of Civil Procedure 34(a), including but not limited to writings, drawings, graphs, charts, photographs, sound recordings, images, electronically stored information ("ESI"), and other data compilations from which information can be obtained, translated, if necessary, through detection devices into reasonably usable form, regardless of the medium on which the information is stored or the manner in which it is maintained.
Definition L — "Communication." The term "Communication" means any oral or written exchange, transmission, or transfer of information between two or more Persons, by any means, including but not limited to emails, letters, memoranda, text messages, instant messages, voicemail messages, telephone calls, video conferences, and in-person conversations.
Definition M — "Surcharge Cap." The term "Surcharge Cap" means the limitation set forth in Section 7.4(c) of the MSA, which provides that aggregate monthly Surcharges assessed by Cardinal Peak shall not exceed twelve percent (12%) of the applicable Base Price for the relevant product category, unless the parties mutually agree in writing to a higher percentage.
INTERROGATORIES
INTERROGATORY NO. 1 — Identification of Persons with Knowledge
State the full name, title, employer, business address, telephone number, and role of each Person who has knowledge of, was involved in, or participated in any manner in the following:
(a) the calculation, preparation, review, or approval of Surcharge invoices issued to Nexford during the Disputed Period;
(b) the preparation, review, authorization, or delivery of Surcharge Notices to Nexford during the Disputed Period;
(c) the development, design, implementation, or application of the Exhibit C Methodology or any alternative methodology — including, without limitation, any Blended Cost Metric — used to compute, adjust, or verify Surcharges assessed against Nexford at any time during the period covered by these Interrogatories;
(d) any and all Communications with Nexford or its representatives regarding Surcharge disputes, Surcharge calculations, Surcharge Notice delivery, the Surcharge Cap, or any other matter related to the Surcharges at issue in this litigation, from March 2021 through the date of Cardinal Peak's response to these Interrogatories.
For each Person identified in response to subparts (a) through (d) above, describe in detail the nature and extent of such Person's knowledge, including the specific subject matter(s) as to which the Person has knowledge, the time period during which the Person was involved, and the Person's role or function with respect to the matters described. If any such Person is no longer employed by or affiliated with Cardinal Peak, state the date on which such Person's employment or affiliation ended and the Person's last known contact information.
INTERROGATORY NO. 2 — Surcharge Calculation Methodology
Describe in detail the methodology that Cardinal Peak used to calculate each Surcharge invoiced to Nexford during the Disputed Period (March 2021 through May 2022), including but not limited to the following:
(a) the specific indices, data sources, market publications, internal cost metrics, or other inputs used to determine the scrap surcharge component, the energy surcharge component, and the alloy surcharge component (if any) of each Surcharge invoice;
(b) whether and to what extent Cardinal Peak applied the published Ferrous Scrap Index (as reported by S&P Global Platts, formerly Platts/SPI) and the Industrial Energy Cost Index, as prescribed by the Exhibit C Methodology, to calculate Surcharges during the Disputed Period;
(c) whether and to what extent Cardinal Peak used a Blended Cost Metric or any other internal calculation, formula, or methodology that differs from or supplements the Exhibit C Methodology for purposes of computing Surcharges during the Disputed Period, and if so, a detailed description of such Blended Cost Metric or alternative methodology, including all inputs, variables, weighting factors, and assumptions used, together with the factual and contractual basis for Cardinal Peak's use of such alternative methodology rather than the Exhibit C Methodology;
(d) the baseline scrap cost and baseline energy cost that Cardinal Peak used in its Surcharge calculations during each month of the Disputed Period, and whether these baselines correspond to the $340 per ton baseline scrap cost and $48 per ton baseline energy cost specified in Exhibit C to the MSA; if the baselines used by Cardinal Peak differed from those specified in Exhibit C, state the baselines actually used and the factual and contractual basis for any deviation;
(e) identification of all Documents reflecting, relating to, embodying, or supporting Cardinal Peak's surcharge calculation methodology, including but not limited to calculation worksheets, spreadsheets, pricing models, internal memoranda, policy documents, training materials, and Communications discussing the methodology.
INTERROGATORY NO. 3 — Surcharge Notice Delivery Dates and Compliance
For each month during the Disputed Period (March 2021 through May 2022, inclusive — fourteen (14) months in total), state the following with respect to the applicable Surcharge Notice:
(a) the date on which the applicable Surcharge Notice was prepared or finalized in a form intended for delivery to Nexford;
(b) the date on which the applicable Surcharge Notice was actually delivered or transmitted to Nexford;
(c) the method of delivery or transmission used (e.g., electronic mail, overnight courier, certified U.S. mail, hand delivery, or other method), including, if delivered by email, the sending and receiving email addresses;
(d) the identity of the Person who prepared the Surcharge Notice and the identity of the Person who authorized or approved the Surcharge Notice for delivery;
(e) whether the Surcharge Notice was delivered to Nexford within fifteen (15) business days after the end of the applicable month, as required by Section 7.4(a) of the MSA, and the specific date on which the 15-business-day deadline fell for each applicable month;
(f) if any Surcharge Notice was delivered beyond the 15-business-day deadline specified in Section 7.4(a) of the MSA, the reason or reasons for the late delivery, the number of business days by which delivery was late, and the factual and legal basis for Cardinal Peak's contention (if any) that such late delivery does not affect, waive, or impair Cardinal Peak's right to collect the Surcharge associated with that Surcharge Notice.
INTERROGATORY NO. 4 — Monthly Surcharge Amounts and Supporting Data
For each month during the Disputed Period (March 2021 through May 2022), provide the following information:
(a) the total Surcharge amount invoiced to Nexford for that month, broken down separately by product category (i.e., Hot-Rolled Coil ("HRC") and Cold-Rolled Coil ("CRC"));
(b) the total tonnage of HRC and the total tonnage of CRC delivered by Cardinal Peak to Nexford during that month;
(c) the Surcharge per ton assessed for each product category (HRC and CRC) for that month;
(d) the applicable Base Price in effect for each product category (HRC and CRC) during that month, including any quarterly adjustments pursuant to Section 7.2(b) of the MSA;
(e) the percentage that the total monthly Surcharge represents relative to the applicable Base Price for each product category, calculated for purposes of determining compliance with the twelve percent (12%) Surcharge Cap under Section 7.4(c) of the MSA;
(f) whether the aggregate monthly Surcharge exceeded twelve percent (12%) of the applicable Base Price for any product category during that month, and if so: (i) the amount by which the Surcharge exceeded the twelve percent (12%) cap; (ii) whether Cardinal Peak sought and obtained prior written consent from Nexford to exceed the Surcharge Cap, as required by Section 7.4(c); and (iii) if Cardinal Peak did obtain such consent, the date, form, and content of the request and the date, form, and content of Nexford's written consent.
INTERROGATORY NO. 5 — Internal Pricing Policies and Blended Cost Metric
Describe in detail Cardinal Peak's internal pricing policies, practices, procedures, and guidelines with respect to raw-material surcharges during the Disputed Period, including but not limited to the following:
(a) the origin, development, components, and operation of any Blended Cost Metric or internal cost model used by Cardinal Peak to determine or inform Surcharge amounts, including the date on which any such metric was first developed or adopted, the Person(s) who authorized its use, and any revisions or modifications made to the metric during the Disputed Period;
(b) whether the Blended Cost Metric (or any variant thereof) was applied to other customers of Cardinal Peak, or whether its application was limited to Nexford, and if the Blended Cost Metric was applied to other customers, the identity of each such customer and the terms under which the Blended Cost Metric was applied;
(c) the identity of any Person(s) responsible for developing, approving, implementing, overseeing, or administering the Blended Cost Metric, including each such Person's title, department, and role;
(d) the relationship, if any, between the Blended Cost Metric and the Exhibit C Methodology prescribed by the MSA, including whether the Blended Cost Metric was intended to replace, supplement, or refine the Exhibit C Methodology, and the factual and contractual basis for any such relationship;
(e) whether Cardinal Peak notified Nexford at any time, whether before or during the Disputed Period, that Cardinal Peak intended to deviate from the Exhibit C Methodology and use a Blended Cost Metric or any other alternative methodology to calculate Surcharges, and if so, identify all related Communications by date, participants, and content, and state whether Nexford consented to such deviation.
INTERROGATORY NO. 6 — Basis for Claimed Damages Amount
State the complete factual and computational basis for Cardinal Peak's claim, as set forth in the Complaint, that Nexford owes $4,730,000 in unpaid Surcharges (exclusive of prejudgment interest), including but not limited to the following:
(a) a detailed reconciliation showing: (i) the total aggregate Surcharges invoiced to Nexford during the Disputed Period (which Cardinal Peak has alleged to be approximately $6,410,000); (ii) the total aggregate amounts paid by Nexford on account of such Surcharges (which Nexford's records reflect as approximately $1,680,000); and (iii) the resulting unpaid balance claimed by Cardinal Peak (alleged to be approximately $4,730,000);
(b) identification of each specific invoice comprising the $4,730,000 claimed unpaid amount, including for each invoice: the invoice number, the invoice date, the invoice amount, the product category (HRC or CRC), the tonnage to which the invoice relates, and the Surcharge per ton reflected in the invoice;
(c) Cardinal Peak's position regarding the month of April 2021, for which Nexford's records reflect that the applicable Surcharge was paid in full, and whether Cardinal Peak contends that any amount remains due and owing for that month; if Cardinal Peak contends that any amount remains due for April 2021, state the amount and the basis for such contention;
(d) any credits, adjustments, offsets, deductions, or other modifications that Cardinal Peak has applied, or contends should be applied, to the claimed unpaid balance, including the basis and amount of each such credit, adjustment, or offset.
INTERROGATORY NO. 7 — Prejudgment Interest Claim
Describe the complete factual and legal basis for Cardinal Peak's claim for prejudgment interest in the amount of approximately $380,000 (resulting in a total claimed amount of approximately $5,110,000), including but not limited to the following:
(a) the interest rate applied by Cardinal Peak in computing the claimed prejudgment interest, and whether such rate is a statutory rate, a contractual rate, or a rate derived from some other source;
(b) the method of calculation used (i.e., whether interest was computed on a simple-interest or compound-interest basis, and if compounded, the compounding frequency);
(c) the start date or dates from which prejudgment interest is calculated for each unpaid Surcharge invoice, and the basis for selecting each such start date (e.g., the invoice due date, the date of demand, or some other date);
(d) the specific legal authority under Illinois law on which Cardinal Peak relies for its claimed entitlement to prejudgment interest, including any statutory provisions, case law, or contractual provisions;
(e) identification of any expert, consultant, accountant, or other professional who performed, reviewed, or verified the prejudgment interest calculation, including such person's full name, professional qualifications, business address, and the scope of the engagement; if Dr. Theodore Voss of Pinnacle Economics Group LLC performed or contributed to the calculation, so state and provide the information requested herein.
INTERROGATORY NO. 8 — Factual Basis for Unjust Enrichment Claim (Count II)
State all facts supporting Cardinal Peak's claim for unjust enrichment as set forth in Count II of the Complaint, including but not limited to the following:
(a) the specific benefit or benefits that Cardinal Peak contends Nexford received as a result of the alleged failure to pay or fully pay the Surcharges at issue;
(b) the factual and legal basis for Cardinal Peak's contention that it would be unjust or inequitable for Nexford to retain such benefit or benefits without full payment to Cardinal Peak;
(c) whether Cardinal Peak contends that its unjust enrichment claim exists independently of the MSA (i.e., whether the claim would survive even if the MSA were held to govern exclusively the parties' rights and obligations with respect to the Surcharges at issue), and if so, the specific factual and legal basis for that contention;
(d) whether Cardinal Peak acknowledges that the MSA constitutes an express, enforceable contract that governs the parties' rights and obligations with respect to the Surcharges at issue, and if Cardinal Peak contends that the MSA does not govern — or does not exclusively govern — the subject matter of the unjust enrichment claim, the complete factual and legal basis for that contention.
INTERROGATORY NO. 9 — Factual Basis for Account Stated Claim (Count III)
State all facts supporting Cardinal Peak's claim for account stated as set forth in Count III of the Complaint, including but not limited to the following:
(a) the specific invoices, statements of account, or other accounting records that Cardinal Peak contends constitute the "account stated" between the parties;
(b) the date or dates on which Cardinal Peak contends that Nexford agreed to, acknowledged, or acquiesced in the correctness of the stated account;
(c) the specific conduct, Communications, payments, or omissions by Nexford that Cardinal Peak contends constitute agreement to, acknowledgment of, or acquiescence in the correctness of the stated account;
(d) Cardinal Peak's response to Nexford's position that it timely disputed the Surcharge invoices within the thirty (30) calendar-day dispute period prescribed by Section 7.4(d) of the MSA, including: (i) whether Cardinal Peak contends that Nexford failed to dispute any specific invoice within the 30-day period; (ii) identification of each invoice that Cardinal Peak contends was not timely disputed; and (iii) the factual basis for any such contention.
INTERROGATORY NO. 10 — Communications with Nexford Regarding Surcharge Disputes
Identify and describe all Communications between Cardinal Peak (including its officers, directors, employees, agents, consultants, and representatives) and Nexford (including its officers, directors, employees, agents, consultants, and representatives) regarding disputed Surcharge invoices, Surcharge calculations, the Surcharge Cap, the Exhibit C Methodology, the Blended Cost Metric, or any other subject matter relating to the Surcharges at issue in this litigation, during the period from March 2021 through the date of Cardinal Peak's response to these Interrogatories, including but not limited to the following for each such Communication:
(a) the date, time (if known), and participants (including each participant's name and title or role) of each Communication;
(b) whether the Communication was oral (e.g., telephone call, in-person meeting, video conference) or written (e.g., email, letter, memorandum, text message);
(c) whether Cardinal Peak received any written dispute notice from Nexford pursuant to Section 7.4(d) of the MSA, and if so, identify each such dispute notice by date, sender, recipient, method of transmission, and a description of the content and substance of the dispute notice;
(d) Cardinal Peak's response (if any) to each such dispute notice, including the date, form, and content of Cardinal Peak's response, and the identity of the Person who authored or authorized the response.
INTERROGATORY NO. 11 — Section 7.4(c) Surcharge Cap — Written Consent
Identify each instance during the Disputed Period in which the aggregate monthly Surcharge assessed by Cardinal Peak for any product category exceeded twelve percent (12%) of the applicable Base Price for that product category, and for each such instance, state the following:
(a) the month, the product category (HRC or CRC), the applicable Base Price in effect for that product category during that month, the total Surcharge amount invoiced for that product category, and the percentage that the Surcharge represents relative to the applicable Base Price;
(b) whether Cardinal Peak sought prior written consent from Nexford to exceed the twelve percent (12%) Surcharge Cap, as required by Section 7.4(c) of the MSA, and if so, identify the date, form, content, and recipient of such request;
(c) whether Nexford provided prior written consent to exceed the twelve percent (12%) Surcharge Cap, and if so, identify the date, form, content, and author of such consent;
(d) if Cardinal Peak did not obtain prior written consent from Nexford to exceed the twelve percent (12%) Surcharge Cap, the complete factual and legal basis for Cardinal Peak's contention (if any) that it was nevertheless entitled to invoice and collect Surcharges in excess of the twelve percent (12%) cap, including but not limited to any reliance on course of dealing, course of performance, waiver, estoppel, or other legal theory.
INTERROGATORY NO. 12 — Exhibit C Methodology — Ferrous Scrap Index and Industrial Energy Cost Index Data
For each month during the Disputed Period (March 2021 through May 2022), state the following:
(a) the published Ferrous Scrap Index value (as reported by S&P Global Platts, formerly Platts/SPI) applicable to that month, together with the publication date and edition or issue of the Platts/SPI report from which the value was derived;
(b) the published Industrial Energy Cost Index value applicable to that month, together with the publication date and source from which the value was derived;
(c) the scrap surcharge per ton that would result from applying the Exhibit C Methodology using the published Ferrous Scrap Index value identified in subpart (a) above and the $340 per ton baseline scrap cost specified in Exhibit C;
(d) the energy surcharge per ton that would result from applying the Exhibit C Methodology using the published Industrial Energy Cost Index value identified in subpart (b) above and the $48 per ton baseline energy cost specified in Exhibit C;
(e) the total Surcharge per ton that would result from applying the Exhibit C Methodology for each product category (HRC and CRC), representing the sum of the scrap surcharge and energy surcharge computed in subparts (c) and (d) above, plus any alloy surcharge component (if applicable);
(f) the variance, if any, between the Surcharge amounts calculated using the Exhibit C Methodology (as set forth in subpart (e) above) and the Surcharge amounts actually invoiced by Cardinal Peak for each month and each product category, expressed both in dollars per ton and in total dollars for the month.
INTERROGATORY NO. 13 — Identification of Expert Witnesses
Identify each expert witness that Cardinal Peak has retained, employed, or expects to call at trial or at any hearing in this action, and for each such expert, state the following:
(a) the expert's full name, professional qualifications (including degrees, certifications, and relevant professional experience), current employer or business affiliation, and business address;
(b) the subject matter on which the expert is expected to testify, described with reasonable specificity;
(c) the opinions the expert has formed or is expected to form, including any preliminary or draft opinions;
(d) the facts, data, documents, and other information considered by the expert in forming or expected to form such opinions, including whether the expert reviewed the MSA, Exhibit C, Surcharge Notices, Surcharge invoices, or any other Documents produced in this litigation;
(e) the compensation arrangement between Cardinal Peak (or its counsel) and the expert for this engagement, including the hourly rate, flat fee, or other fee arrangement, and the total compensation paid or expected to be paid through the date of Cardinal Peak's response.
INTERROGATORY NO. 14 — Mitigation and Alternative Supply Arrangements
State whether Cardinal Peak took any steps to mitigate its alleged damages, including but not limited to the following:
(a) whether Cardinal Peak sought to sell or redirect to other customers, during or after the Disputed Period, the steel products (HRC or CRC) that would have generated Surcharge revenue from Nexford, and if so, describe the efforts undertaken, the customers approached, the products offered, and the outcome of such efforts;
(b) whether Cardinal Peak's claimed Surcharges are net of any amounts recovered, earned, or received through sales to alternative customers or through any other transactions that offset or reduced the loss attributable to the allegedly unpaid Surcharges;
(c) whether Cardinal Peak entered into any new or amended supply agreements with other customers during the Disputed Period that had the effect of offsetting, replacing, or compensating for the allegedly unpaid Surcharges from Nexford, and if so, identify each such agreement by parties, date, product category, and relevant financial terms (to the extent not subject to a valid confidentiality restriction).
INTERROGATORY NO. 15 — Cardinal Peak's Prior Course of Dealing
Describe any instances occurring prior to March 2021 (i.e., during the period from January 15, 2020 through February 28, 2021) in which any of the following occurred:
(a) Cardinal Peak delivered a Surcharge Notice to Nexford beyond the fifteen (15) business-day deadline prescribed by Section 7.4(a) of the MSA, and for each such instance, state: the month to which the Surcharge Notice related; the date the Surcharge Notice was delivered; the number of business days by which delivery was late; and Nexford's response, if any, to the late delivery (including whether Nexford objected, accepted, or paid the associated Surcharge);
(b) Cardinal Peak used a methodology other than the Exhibit C Methodology to calculate Surcharges passed through to Nexford under the MSA, and for each such instance, state: the month(s) to which the alternative methodology was applied; a description of the alternative methodology used; the variance (if any) between the Surcharge calculated under the Exhibit C Methodology and the Surcharge actually invoiced; and Nexford's response, if any (including whether Nexford objected, accepted, or paid the associated Surcharge);
(c) any Surcharge assessed by Cardinal Peak against Nexford exceeded the twelve percent (12%) Surcharge Cap under Section 7.4(c) of the MSA, and for each such instance, state: the month, product category, Surcharge amount, and percentage of the applicable Base Price; whether Nexford provided prior written consent to exceed the Surcharge Cap; and Nexford's response, if any.
INTERROGATORY NO. 16 — Relationship Between Complaint Allegations and Counterclaim
State Cardinal Peak's position regarding Nexford's Counterclaim, filed on October 3, 2022, including but not limited to the following:
(a) Cardinal Peak's response to Nexford's allegation, set forth in the Counterclaim, that Cardinal Peak breached the MSA by failing to comply with the Exhibit C Methodology and the Section 7.4 notice requirements, including a statement of each fact that Cardinal Peak contends supports its denial or defense to such allegation;
(b) Cardinal Peak's response to Nexford's request, set forth in Count II of the Counterclaim, for declaratory relief establishing that: (i) the Exhibit C Methodology is the exclusive methodology for computing Surcharges under the MSA; (ii) Surcharge Notices not delivered within fifteen (15) business days after the end of the applicable month are untimely and do not give rise to a payment obligation; and (iii) Surcharges exceeding the twelve percent (12%) Surcharge Cap without Nexford's prior written consent are unenforceable;
(c) Cardinal Peak's position on Nexford's claim, set forth in Count III of the Counterclaim, for return of $210,000 in alleged overpayments resulting from Surcharges that Nexford contends were calculated using an unauthorized methodology and/or assessed in excess of the Surcharge Cap, including whether Cardinal Peak disputes the amount claimed and the factual and legal basis for any such dispute.
VERIFICATION
The undersigned, being an authorized officer of Cardinal Peak Industries, having read the foregoing Interrogatories and having reviewed the responses prepared thereto, hereby verifies under oath that the answers to the foregoing Interrogatories are true and correct to the best of my knowledge, information, and belief, formed after a reasonable inquiry. I understand that making a false statement herein is punishable under the laws of the State of Illinois.
This Verification is made pursuant to 735 ILCS 5/1-109.
________________________________________
Printed Name: ______
Title: ________
Date: ________
State of ___ ) ) ss. County of ____ )
Subscribed and sworn to before me this _ day of ___, 20_.
________________________________________
Notary Public My Commission Expires: ____
ATTORNEY SIGNATURE BLOCK
Respectfully submitted,
NEXFORD INDUSTRIAL HOLDINGS INC.
By its attorneys,
CALDERWOOD & HARKNESS LLP
By: ________
Priya Anand (ARDC No. 6312847) Responsible Partner
Douglas Carmichael (ARDC No. 6284531) Billing Partner
Simone Laroche (ARDC No. 6340912) Lead Associate
Jeffrey Park (ARDC No. 6358204) Associate
CALDERWOOD & HARKNESS LLP 200 South Wacker Drive, Suite 4400 Chicago, Illinois 60606 Telephone: (312) 555-7200 Facsimile: (312) 555-7201 panand@calderwoodharkness.com dcarmichael@calderwoodharkness.com slaroche@calderwoodharkness.com jpark@calderwoodharkness.com
Matter No.: 1005-00005
CERTIFICATE OF SERVICE
I, Priya Anand, an attorney, hereby certify that on December 5, 2022, I caused a true and correct copy of Defendant Nexford Industrial Holdings Inc.'s First Set of Interrogatories to Plaintiff Cardinal Peak Industries to be served upon counsel of record for Plaintiff Cardinal Peak Industries at the following address:
Garrett Blackwood Megan Hsu BLACKWOOD STEIN & ASSOCIATES LLP 717 Seventeenth Street, Suite 2200 Denver, Colorado 80202 Telephone: (303) 555-4100 Facsimile: (303) 555-4101 gblackwood@blackwoodstein.com mhsu@blackwoodstein.com
Service was effected via electronic service through the Court's electronic filing system and by depositing a copy in the United States Mail, first-class postage prepaid, addressed to counsel at the address set forth above.
Under penalties as provided by law pursuant to 735 ILCS 5/1-109, I certify that the statements set forth in this Certificate of Service are true and correct.
________________________________________
Priya Anand CALDERWOOD & HARKNESS LLP 200 South Wacker Drive, Suite 4400 Chicago, Illinois 60606 Attorneys for Defendant / Counter-Plaintiff Nexford Industrial Holdings Inc.
Date: December 5, 2022

IN THE CIRCUIT COURT OF COOK COUNTY, ILLINOIS COUNTY DEPARTMENT, LAW DIVISION

INSTRUCTIONS

DEFINITIONS

INTERROGATORIES

VERIFICATION

ATTORNEY SIGNATURE BLOCK

NEXFORD INDUSTRIAL HOLDINGS INC.

CALDERWOOD & HARKNESS LLP

CERTIFICATE OF SERVICE

Record

Parties

Dates

Amounts