HomeMy WebLinkAbout03-2312DUANE MORRIS LLP
By: Rudolph J. Di Massa, Jr.
PA Attorney Identification No. 35492
By: Scott M. Esterbrook
PA Attorney Identification No. 88113
4200 One Liberty Place
Philadelphia, PA 19103-7396
215.979.1000
Attorneys for Plaintiff,
BLX Commercial Capital, LLC
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY OF PENNSYLVANIA
BLX COMMERCIAL CAPITAL, LLC,
645 Madison Avenue, 18th Floor
New York, New York 10022,
Plaintiff,
CARLISLE SPORTS EMPORIUM, INC.,
29 South Middlesex Road
Carlisle, Pennsylvania 17013,
Defendant.
NO.
CIVIL ACTION- LAW
NOTICE TO DEFEND
You have been sued in court. If you wish to defend against the claims set forth in the
following pages, you must take action within twenty (20) days after this complaint and notice are
served, by entering a written appearance personally or by attorney and filing in writing with the
court your defenses or objections to the claims set forth against you. You are warned that if you
fail to do so the case may proceed without you and a judgment may be entered against you by the
court without further notice for any money claimed in the complaint or for any other claim or
relief requested by the plaintiff. You may lose money or property or other rights important to
you.
YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU DO
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.
Bar Association of Cumberland County
Lawyer Referral Service
8 Irvine Row
Carlisle, PA 17013
Telephone: Toll-Free (800) 822-5288
PH1\1092086.1
DUANE MORRIS LLP
By: Rudolph J. Di Massa, Jr.
PA Attorney Identification No. 35492
By: Scott M. Esterbrook
PA Attorney Identification No. 88113
4200 One Liberty Place
Philadelphia, PA 19103-7396
215.979.1000
Attorneys for Plaintiff,
BLX Commercial Capital, LLC
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY, PENNSYLVANIA
BLX COMMERCIAL CAPITAL, LLC,
645 Madison Avenue, 18th Floor
New York, New York 10022,
Vo
Plaintiff,
CARLISLE SPORTS EMPORIUM, INC.
29 South Middlesex Road
Carlisle, Pennsylvania 17013,
Defendant.
NO. 03.--25/,2-' O-~d-t7 ~
CIVIL ACTION- LAW
COMPLAINT IN MORTGAGE FORECLOSURE
Plaintiff, BLX Commercial Capital, LLC ("BLX"), by and through its attorneys, Duane
Morris LLP, files this Complaint In Mortgage Foreclosure to foreclose on a mortgage lien
pursuant to Pennsylvania Rules of Civil Procedure § § 1141-1150, and in support thereof states as
follows:
1. Plaintiff, BLX, is a Delaware limited liability company with an address of
645 Madison Avenue, 18th Floor, New York, New York 10022.
PH1\1086784.1
2. Defendant, Carlisle Sports Emporium, Inc. ("Defendant"), is a
Pennsylvania corporation with an address of 29 South Middlesex Road, Carlisle, Pennsylvania
17013 (the "Mortgaged Premises"), and is owner of record of the Mortgaged Premises.
3. On or about December 28, 1999, BLC Commercial Capital Corp., now
known as BLX Commercial Capital, LLC, entered into a loan transaction with Defendant
whereby BLX loaned Defendant the principal sum of $4,500,000.00 (the "Loan"). The Loan
was evidenced by, inter alia, those two certain promissory notes dated December 28, 1999,
executed and delivered to BLX by Defendant (collectively, the "Notes"). True and correct
copies of the Notes are attached hereto and incorporated herein by reference as Exhibits "A" and
"B," respectively.
4. On or about December 28, 1999, as security for the Notes, Defendant
executed and delivered to BLX a mortgage in the amount of $4,500,000.00, encumbering real
property located at 29 South Middlesex Road, Carlisle, Pennsylvania (the "Mortgage").
Pursuant to the Mortgage, Defendant granted to BLX, among other things, a first priority
mortgage lien on the Mortgaged Premises. The Mortgage was recorded on December 30, 1999
in the Recorder of Deeds of Cumberland County in Book 1589 page 942. A true and correct
copy of the Mortgage is attached hereto and incorporated herein by reference as Exhibit "C."
5. Defendant is in default of the Notes and the Mortgage as a result of,
among other things, the Defendant's failure to make payments when due to BLX (the
"Defaults").
6.
(the "Default Letter").
incorporated herein by reference as Exhibit "D."
By letter dated March 5, 2003, BLX notified Defendant of the Defaults
A true and correct copy of the Default Letter is attached hereto and
PH1\1086784.1 - 2 -
7. Defendant has failed to pay the amounts owed to BLX under the Notes
despite demand thereof.
8. The entire unpaid principal balance under the Notes, all accrued but
unpaid interest thereon, and all other amounts due thereunder are immediately due and payable
by the Defendant to BLX.
9. The amounts due and owing under the Notes as of May 6, 2003 are as
follows:
Unpaid Principal $4,489,895.39
Accrued And Unpaid Interest
Through May 6, 2003
$27,677.43
Unpaid Late Charges And Other
Fees Through May 6, 2003
$63,202.94
Appraisal Fees $7,500.00
Attorney Fees And Costs To Be Determined
Total Amount Due As Of
May 6, 2003
$4,580,775.60
(plus additional interest, fees and costs and
expenses, including, without limitation,
attorneys' fees which continue to accrue)
10. Act 91 is not applicable to this matter as Defendant does not use the
Mortgaged Premises as its primary residence.
11. Act 6 is not applicable to this matter as the Mortgage is not a "residential
mortgage" within the meaning of 41 P.C.S. §101.
PH1\1086784.1 - 3 -
WHEREFORE, Plaintiff, BLX Commercial Capital, LLC, hereby demands judgment
against the Defendant, Carlisle Sports Emporium, Inc., in the amount of $4,580,775.60, plus
interest, costs of suit, foreclosure and sale of the Mortgaged Premises, attorneys' fees, and such
other relief as this Court deems just and proper.
Dated: May 13, 2003
DUANE MORRIS LLP
Scott M. Esterbrook
One Liberty Place
Philadelphia, PA 19103-7396
215.979.1000
Attorneys for Plaintiff
BLX COMMERCIAL CAPITAL, LLC
PH1\1086784.1 - 4 -
DUANE MORRIS LLP
By: Rudolph J. Di Massa, Jr.
PA Attorney Identification No. 35492
By: Scott M. Esterbrook
PA Attorney Identification No. 88113
4200 One Liberty Place
Philadelphia, PA 19103-7396
215.979.1000
Attorneys for Plaintiff,
BLX Commercial Capital, LLC
IN THE COURT OF COMMON PLEAS
CUMBERLAND COUNTY OF PENNSYLVANIA
BLX COMMERCIAL CAPITAL, LLC,
645 Madison Avenue, 18th Floor
New York, New York 10022,
Vo
Plaintiff,
CARLISLE SPORTS EMPORIUM, INC.,
29 South Middlesex Road
Carlisle, Pennsylvania 17013,
Defendant.
NO.
CIVIL ACTION - LAW
VERIFICATION
I, LEONARD RUDOLPH, hereby certify that I am authorized to make this verification
on behalf of BLX Commercial Capital, LLC, and that the statements made in the foregoing
Complaint In Mortgage Foreclosure are true and correct to the best of my knowledge,
information and belief. I understand that the statements made therein are made subject to the
penalties of 18 Pa. C.S. § 4904 relating to unswq~la falsification to authorities.
[
,,L~eon~l~t~dolpl~' v v' //~ f
Executive Vice Preside t of BLX Commercial
Capital, LLC
PH1\1086784.1
Exh ibit A
(CC:
NOTE
(ADJUSTABLE RATE NOTE)
USDA GUARANTEED PORTION
THIS NOTE CONTAINS A PROVISION ALLOWING FOR CHANGES IN THE INTEREST
RATE. INCREASES IN THE INTEREST RATE MAY RESULT IN HIGHER PAYMENTS.
DECREASES IN THE INTEREST RATE MAY RESULT IN LOWER PAYMENTS.
$3,600,000.00
New York, New York
Date: December ~>, 1999
This Note is entered into as part of a loan transaction between Carlisle Sports Emporium,
Inc. and BLC Commercial Capital Corp. evidenced by instruments of even date including
without limitation, that certain Loan Agreement of even date herewith between Maker, Lender,
and Guarantor. All capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the Loan Agreement.
FOR VALUE RECEIVED, CARLISLE SPORTS EMPORIUM, INC. ("Maker")
promises to pay to the order of BLC COMMERCIAL CAPITAL CORP. (sometimes referred to
as "Lender" and also sometimes referred to herein together with all subsequent holders hereof as
"Holder") at its offices at 645 Madison Avenue, 18th Floor, New.York, NY 10022, the sum of
THREE MILLION SIX HUNDRED THOUSAND AND NO/100 DOLLARS ($3,600,000.00) in
legal and lawful money of the United States of America (the "Loan Proceeds"), together with
interest thereon from the date hereof until maturity at the rate set out below. While any Event of
Default exists, the unpaid principal balance of Loan shall bear interest at the Past Due Rate,
provided, a late charge and the Past Due Rate shall not apply at any time to the same installment.
This Note shall bear interest at the variable rate of two percent (2%) per annum over the
interest rate published by The Wall Street Journal under the section entitled "Money Rates",
subtitled "Prime Rate", adjusted on a quarterly basis ("the Prime Interest Rate"). The beginning
interest rate for this Note will be ten and one-half percent (10.5%) per annum. The interest rate
shall be adjusted the first day of each calendar quarter, i.e. January, April, July and October of
each calendar year, beginning the first calendar quarter after execution of this Note (the "Change
Date").
In the event The Wall Street Journal publishes more than one interest rate as the Prime
Interest Rate, the Prime Interest Rate used herein shall be the lowest of such published Prime
Interest Rates. If such Prime Interest Rate is no longer ascertainable, the Holder will choose a
new publication or index (which is based upon comparable information) to calculate the Prime
Interest Rate. The Holder will give Maker notice of the new publication or index. Maker
acknowledges that Lender may, from time to time, extend credit to other borrowers at rates of
interest varying from, and having no relationship to, such Prime Rate. Interest shall be computed
on the basis of a 365 day year, and in a 366 day leap year, for the actual days elapsed.
042000:00006:DALLAS:640800.2 1
This Note shall be repaid in monthly installments. A payment of interest only shall be
due and payable on the first day of the first full calendar month after the date of this Note.
Thereafter, this Note shall be repaid in combined monthly payments of principal and interest
commencing on the first day of the second full calendar month after the date of this Note and
continuing monthly and regularly thereafter on the first day of each successive calendar month
until twenty-six (26) years after the date of this Note (unless otherwise accelerated) when the
entire principal balance remaining unpaid, along with all accrued and unpaid interest, shall be
due and payable in full (the "Maturity Date"). Each monthly installment shall be applied first to '
interest accrued to the date of receipt of said installment, and the balance, if any, to the principal.
When the quarterly interest rate is adjusted, the remaining principal balance will be reamortized
and payments adjusted accordingly to insure the loan balance will be repaid within the remaining
life of the loan. Initial monthly payments of principal and interest will be in the amount of
$33,725.85 until adjusted pursuant to the terms hereof.
MAKER ACKNOWLEDGES AND AGREES THAT THE MONTHLY PAYMENT
AMOUNTS SHOWN HBREINABOVE SHALL BE THE INITIAL MONTHLY PAYMENT
AMOUNTS. IF THE INTEREST RATE CHANGES, AS DESCRIBED HEREINABOVE, THE
AMOUNT OF MONTHLY PAYMENTS WILL CHANGE. INCREASES IN THE INTEREST
RATE MAY RESULT IN HIGHER PAYMENTS (UNLESS PRE-PAYMENT SINCE THE
LAST PAYMENT DATE OFFSETS THE INCREASED MONTHLY PAYMENTS).
DECREASES IN THE INTEREST RATE MAY LOWER PAYMENTS.
On each Change Date, the holder of this Note will calculate the new interest rate. If there
is a change in the interest rate, the new rate will be effective on each Change Date, and the
Holder of this Note will determine the amount of monthly payments sufficient to pay the balance
of the principal plus accrued interest at the new interest rate in substantially equal payments by
the Maturity Date. The holder of't~s Note will notify the Maker of the new interest rate and the
new monthly payment amount within ten (10) Business Days after the change is implemented
and in any event twenty (20) days before a payment at the new rate is due.
It is expressly provided that upon any Event of Default, Lender may declare this Note,
and all principal, accrued interest, court costs and attorneys' fees, and other amounts payable
hereunder and under the other Loan Documents, immediately due and/or payable. Maker and all
sureties, endorsers, guarantors and any other party now or thereafter liable for the payment of
this Note, in whole or in part, hereby severally (i) waive demand, presentment for payment,
notice of nonpayment, protest, notice of protest, notice of intent to accelerate, notice of
acceleration and all other notice, filing of suit and diligence in collecting this Note or enforcing
any of the security herefor, (ii) agree to any substitution, subordination, exchange or the release
of any such security or the release of any party primarily or secondarily liable hereon, (iii) agree
that Holder shall not be required first to institute suit or exhaust its remedies hereon against
Maker or others liable or to become liable hereon or to enforce its rights against them or any
security herefor, and (iv) consent to any extension or postponement of time of payment of this
Note and to any other indulgence with respect hereto without notice thereof to any of them.
042000:00006:DALLAS :640800.2 2
In the event any periodic payment shall become overdue for a period in excess of ten (10)
days, a fixed charge of five percent (5.0%) of the installment due will be charged by the Holder
for the purpose of defraying the expense incident to handling such delinquent payments.
Maker agrees that in the event any portion of this Note is paid in whole or in part prior to
maturity, so as to constitute a "prepayment" (as defined below), consideration will be tendered
with the prepayment to the Lender ("Prepayment Consideration") based upon the following
schedule:
Five percent (5.0%) of the outstanding loan principal balance prepaid if prepaid within
the first year.
Four percent (4.0%) of the outstanding loan principal balance prepaid if prepaid within
the second year.
Three percent (3.0%) of the outstanding loan principal balance prepaid if prepaid within
the third year.
Two percent (2.0%) of the outstanding loan balance prepaid if prepaid within the fourth
year.
One percent (1.0%) of the outstanding loan principal balance prepaid if prepaid within
the fifth year or thereafter.
It is understood and agreed that a "prepayment" shall be ~ny payment made ahead of
schedule which when aggregated with all other payments made ahead of schedule, exceeds five
percent (5%) of the then outstanding principal balance of the Note. No Prepayment
Consideration will be due for involuntary prepayments resulting from any casualty loss or from
condemnation.
Maker acknowledges that the Prepayment Consideration is consideration to Lender for
the privilege of prepaying the indebtedness evidenced by this Note prior to maturity, and Maker
recognizes that Lender would incur substantial additional costs and expenses in the event of a
prepayment of the .indebtedness evidenced by this Note and that the Prepayment Consideration
compensates Lender fdr such costs and expenses (including without limitation, the loss of
Leflder's investment opportunity during the period from the date of prepayment until the
Maturity Date).
Maker agrees that Lender shall not, as a condition to receiving the Prepayment
Consideration, be obligated to actually reinvest the amount prepaid in any manner whatsoever.
This Note evidences all advances made, interest due and all amounts otherwise owed to
Lender under the Loan Agreement. This Note is executed in connection with the Loan
Agreement and is secured by the liens and security interests created by the Security Documents.
042000:00006:DALLAS:640800.2 3
Maker and Lender intend to strictly comply with all applicable federal and Texas laws,
including applicable usury laws (or the usury laws of any jurisdiction whose Usury laws are
deemed to apply to the Note or any other Loan Document despite the intention and desire of the
parties to apply the usury laws of the State of Texas). Accordingly, the provisions of this
paragraph shall govern and control over every other provision of this Note or any other Loan
Document which conflicts or is inconsistent with this Section, even if such provision declares
that it controls. As used in this paragraph, the term "interest" includes the aggregate of all
charges, fees, benefits or other compensation which constitute interest under applicable law,
provided that, to the maximum extent permitted by applicable law, (a) any non-principal
payment shall be characterized as an expense or as compensation for something other than the
use, forbearance or detention of money and not as interest, and (b) all interest at any time
contracted for, reserved, charged or received shall be amortized, prorated, allocated and spread,
in equal parts during the full term of the Obligations. In no event shall Maker or any other
Person be obligated to pay, or Lender have any right or privilege to reserve, receive or retain, (a)
any interest in excess of the maximum amount of nonusurious interest permitted under the laws
of the State of Texas or the applicable laws (if any) of the United States or of any other state, or
(b) total interest in excess of the amount which Lender could lawfully have contracted for,
reserved, received, retained or charged had the interest been calculated for the full term of the
Obligations at the Ceiling Rate. On each day, if any, that the interest rate (the "Stated Rate")
called for under this Note or any other Loan Document exceeds the Ceiling Rate, the rate at
which interest shall accrue shall automatically be fixed by operation of this sentence at the
Ceiling Rate for that day, and shall remain fixed at the Ceiling Rate for each day thereafter until
the total amount of interest accrued equals the total amount of interest which would have accrued
if there were no such Ceiling Rate imposed by this sentence. Thereafter, interest shall accrue at
the Stated Rate unless and until the Stated Rate again exceeds the Ceiling Rate, in which case,
the provisions of the immediately preceding sentence shall again automatically operate to limit
the interest accrual rate to the Ceiling Rate. The daily interest rates to be used in calculating
interest at the Ceiling Rate shall be determined by dividing the applicable Ceiling Rate by the
number of days in the calendar year for which such calculation is being made. None of the terms
and provisions contained in this Note or in any other Loan Document which directly or indirectly
relate to interest shall ever be construed without reference to this paragraph, or be construed to
create a contract to pay for the use, forbearance or detention of money at an interest rate in
excess of the Ceiling Rate. If the term of any Obligation is shortened by reason of acceleration
of maturity as a result.of any Default or by any other cause, or by reason of any required or
permitted prepayment, and if for that (or any other) reason Lender at any time, including but not
limited to, the stated maturity, is owed or receives (and/or has received) interest in excess of
interest calculated at the Ceiling Rate, then and in any such everit all of any such excess interest
shall be canceled automatically as of the date of such acceleration, prepayment or other event
which produces the excess, and, if such excess interest has been paid to Lender, it shall be
credited p.ro tanto against the then-outstanding principal balance of Maker's obligations to
Lender, effective as of the date or dates when the event occurs which causes it to be excess
interest, until such excess is exhausted or all of such principal has been fully paid and satisfied,
whichever occurs first, and any remaining balance of such excess shall be promptly refunded to
its payor.
042000"0000~:DALLAS:640800'2 4
Executed as of the date first written above.
MAKER:
CARLISLE SPORTS EMPORIUM, INC.
g ·
Title'
042000:00006:DALLAS :640800.2 .~
Exhibit B
(CC:
NOTE
(ADJUSTABLE RATE NOTE)
NON-GUARANTEED PORTION
THIS NOTE CONTAINS A PROVISION ALLOWING FOR CHANGES IN THE INTEREST
RATE. INCREASES IN THE INTEREST RATE MAY RESULT IN HIGHER PAYMENTS.
DECREASES IN THE INTEREST RATE MAY RESULT IN LOWER PAYMENTS.
$900,000.00
New York~ New York
Date: December o~[z , 1999
This Note is entered into as part of a loan transaction between Carlisle Sports Emporium,
Inc. and BLC Commercial Capital Corp. evidenced by instruments of even date including
without limitation, that certain Loan Agreement of even date herewith between Maker, Lender,
and Guarantor. All capitalized terms used herein and not otherwise defined shall have the
meanings assigned to them in the Loan Agreement.
FOR VALUE RECEIVED, CARLISLE SPORTS EMPORIUM, INC. ("Maker")
promises to pay to the order of BLC COMMERCIAL CAPITAL CORP. (sometimes referred to
as "Lender" and also sometimes referred to herein together with all subsequent holders hereof as
"Holder") at its offices at 645 Madison Avenue, 18th Floor, New.York, NY 10022, the sum of
NINE HUNDRED THOUSAND AND NO/100 DOLLARS ($900,000.00) in legal and lawful
money of the United States of America (the "Loan Proceeds"), together with interest thereon
from the date hereof until maturity at the rate set out below. While any Event of Default exists,
the unpaid principal balance of Loan shall bear interest at the Past Due Rate, provided, a late
charge and the Past Due Rate shall not apply at any time to the same installment.
This Note shall bear interest at the variable rate of two percent (2%) per annum over the
interest rate published by The Wall Street Journal under the section entitled "Money Rates",
subtitled "Prime Rate", adjusted on a quarterly basis ("the Prime Interest Rate"). The beginning
interest rate for this Note will be ten and one-half percent (10.5%) per annum. The interest rate
shall be adjusted the first day of each calendar quarter, i.e. January, April, July and October of
each calendar year, beginning the first calendar quarter after execution of this Note (the "Change
Date").
In the event The Wall Street Journal publishes more than one interest rate as the Prime
Interest Rate, the Prime Interest Rate used herein shall be the lowest of such published. Prime
Interest Rates. If such Prime Interest Rate is no longer ascertainable, the Holder will choose a
new publication or index (which is based upon comparable infOrmation) to calculate the Prime
Interest Rate. The Holder will give Maker notice of the new publication or index. Maker
acknowledges that Lender may, from time to time, extend credit to other borrowers at rates of
interest varying fi:om, and having no relationship to, such Prime Rate. Interest shall be computed
on the basis of a 365 day year, and in a 366 day leap year, for the actual days elapsed.
042000:00006:DALLAS:661925.2 1
This Note shall be repaid in monthly installments. A payment of interest only shall be
due and payable on the first day of the first full calendar month after the date of this Note.
Thereafter, this Note shall be repaid in combined monthly payments of principal and interest
commencing on the first day of~the second full calendar month after the date of this Note and
continuing monthly and regularly thereafter on the first day of each successive calendar month
until twenty-six (26) years after the date of this Note (unless otherwise accelerated) when the
entire principal balance remaining unpaid, along with all accrued and unpaid interest, shall be
due and payable in full (the "Maturity Date"). Each monthly installment shall be applied first to
interest accrued to the date of receipt of said installment, and the balance, if any, to the principal.
When the quarterly interest rate is adjusted, the remaining principal balance will be reamortized
and payments adjusted accordingly to insure the loan balance will be repaid within the remaining
life of the loan. Initial monthly payments of principal and interest will be in the amount of
$8,431.46 until adjusted pursuant to the terms hereof.
MAKER ACKNOWLEDGES AND AGREES THAT THE MONTHLY PAYMENT
AMOUNTS SHOWN HEREINABOVE SHALL BE THE INITIAL MONTHLY PAYMENT
AMOUNTS. IF THE INTEREST RATE CHANGES, AS DESCRIBED HEREINABOVE, THE
AMOUNT OF MONTHLY PAYMENTS WILL CHANGE. INCREASES IN THE INTEREST
RATE MAY RESULT IN HIGHER PAYMENTS (UNLESS PRE-PAYMENT SINCE THE
LAST PAYMENT DATE OFFSETS THE INCREASED MONTHLY PAYMENTS).
DECREASES IN THE INTEREST RATE MAY LOWER PAYMENTS.
On each Change Date, the holder of this Note will calculate the new interest rate. If there
is a change in the interest rate, the new rate will be effective on each Change Date, and the
Holder of this Note will determine the amount of monthly payments sufficient to pay the balance
of the principal plus accrued interest at the new interest rate in substantially equal payments by
the Maturity Date. The holder of this Note will notify the Maker of the new interest rate and the
new monthly payment amount within ten (10) Business Days after the change is implemented
and in any event twenty (20) days before a payment at the new rate is due.
It is expressly provided that upon any Event of Default, Lender may declare this Note,
and all principal, accrued interest, court costs and attorneys' fees, and other amounts payable
hereunder and under the other Loan Documents, immediately due and/or payable. Maker and all
sureties, endorsers, guarantors and any other party now or thereafter liable for the payment of
this Note, in whole or in part, hereby severally (i) waive demand, presentment for payment,
notice of nonpayment, protest, notice of protest, notice of intent to accelerate, notice of
acceleration and all other notice, filing of suit and diligence in collecting this Note or enforcing
any of the security herefor, (ii) agree to any substitution, subordination, exchange or the release
of any such security or the release of any party primarily or secondarily liable hereon, (iii) agree
that Holder shall not be required first to institute suit or exhaust its remedies hereon against
Maker or others liable or to become liable hereon or to enfome its rights against them or any
security herefor, and (iv) consent to any extension or postponement of time of payment of this
Note and to any other indulgence with respect hereto without notice thereof to any of them.
042000!00006:DALI.S:661925.2 2
In the event any periodic payment shall become overdue for a period in excess of ten (10)
days, a fixed charge of five percent (5.0%) of the installment due will be charged by the Holder
for the purpose of defraying the expense incident to handling such delinquent payments.
Maker agrees that in the event any portion of this Note is paid in whole or in part prior to
maturity, so as to constitute a "prepayment" (as defined below), consideration will be tendered
with the prepayment to the Lender ("Prepayment Consideration") based upon the following
schedule:
Five percent (5.0%) of the outstanding loan principal balance prepaid if prepaid within
the first year.
Four percent (4.0%) of the outstanding loan principal balance prepaid if prepaid within
the second year.
Three percent (3.0%) of the outstanding loan principal balance prepaid if prepaid within
the third year.
Two percent (2.0%) of the outstanding loan balance prepaid if prepaid within the fourth
year.
One percent (1.0%) of the outstanding loan principal balance prepaid if prepaid within
the fifth year or thereafter.
It is understood and agreed that a "prepayment" shall be ~ny payment made ahead of
schedule which when aggregated with all other payments made ahead of schedule, exceeds five
percent (5%) of the then outstanding principal balance of the Note. No Prepayment
Consideration will be due for involuntary prepayments resulting from any casualty loss or from.
Maker acknowledges that the Prepayment Consideration is consideration to Lender for
the privilege of prepaying the indebtedness evidenced by this Note prior to maturity, and Maker
recognizes that Lender would incur substantial additional costs and expenses in the event of a
prepayment of the indebtedness evidenced by this Note and that the Prepayment Consideration
compensates Lender for such costs and expenses (including without limitation, the loss of
Lender's investment Opportunity during the period from the date of prepayment until the
Maturity Date).
Maker agrees that Lender shall not, as a condition to receiving the Prepayment
Consideration, be obligated to actually reinvest the amount prepaid in any manner whatsoever.
This Note evidences all advances made, interest due and all amounts otherwise owed to
Lender under the Loan Agreement. This Note is executed in connection with the Loan
Agreement and is secured by the liens and security interests created by the Security Documents.
Maker and Lender intend to strictly comply with all applicable federal and Texas laws,
including applicable usury laws (or the usury laws of any jurisdiction whose usury laws are
042000:00006:DALLAS:661925.2 3
deemed to apply to the Note or any other Loan Document despite the intention and desire of the
parties to apply the usury laws of the State of Texas). Accordingly, the provisions of this
paragraph shall govern and control over every other provision of this Note or any other Loan
Document which conflicts or is inconsistent with this Section, even if such provision declares
that it controls. As used in this paragraph, the term "interest" includes the aggregate of all
charges, fees, benefits or other compensation which constitute interest under applicable law,
provided that, to the maximum extent permitted by applicable law, (a) any non-principal
payment shall be characterized as an expense or as compensation for something other than the
use, forbearance or detention of money and not as interest, and Co) all interest at any time
contracted for, reserved, charged or received shall be amortized, prorated, allocated and spread,
in equal parts during the full term of the Obligations. In no event shall Maker or any other
Person be obligated to pay, or Lender have any right or privilege to reserve, receive or retain, (a)
any interest in excess of the maximum amount of nonusurious interest permitted under the laws
of the State of Texas or the applicable laws (if any) of the United States or of any other state, or
Co) total interest in excess of the amount which Lender could lawfully have contracted for,
reserved, received, retained or charged had the interest been calculated for the full term of the
Obligations at the Ceiling Rate. On each day, if any, that the interest rate (the "Stated Rate")
called for under this Note or any other Loan Document exceeds the Ceiling Rate, the rate at
which interest shall accrue shall automatically be fixed by operation of this sentence at the
Ceiling Rate for that day, and shall remain fixed at the Ceiling Rate for each day thereafter until
the total amount of interest accrued equals the total amount of interest which would have accrued
if there were no such Ceiling Rate imposed by this sentence. Thereafter, interest shall accrue at
the Stated Rate unless and until the Stated Rate again exceeds the Ceiling Rate, in which case,
the provisions of the immediately preceding sentence shall again automatically operate to limit
the interest accrual rate to the Ceiling Rate. The daily interest rates to be used in calculating
interest at the Ceiling Rate shall be determined by dividing the applicable Ceiling Rate by the
number of days in the calendar year for which such calculation is being made. None of the terms
and provisions contained in this Note or in any other Loan Document which directly or indirectly
relate to interest shall ever be construed without reference to this paragraph, or be construed to
create a contract to pay for the use, forbearance or detention of money at an interest rate in
excess of the Ceiling Rate. If the term of any Obligation is shortened by reason of acceleration
of maturity as a result of any Default or by any other cause, or by reason of any required or
permitted prepayment, and if for that (or any other) reason Lender at any time, including but not
limited to, the stated maturity, is owed or receives (and/or has received) interest in excess of
interest calculated at th~ Ceiling Rate, then and in any such event all of any such excess interest
shall be canceled automatically as of the date of such acceleration, prepayment or other event
which produces the excess, and, if such excess interest has been paid to Lender, it shall be
credited rop. r.q_!..~ against the then-outstanding principal balance of Maker's obligations to
Lender, effective as of the date or dates when the event occurs which causes it to be excess
interest, until such excess is exhausted or all of such principal has been fully paid and satisfied,
whichever occurs first, and any remaining balance of such excess shall be promptly refunded to
its payor.
IM2000:00006:DALLAS:661925.2 4
Executed as of the date first written above.
MAKER:
CARLISLE SPORTS EMPORIUM, INC.
Title:
042000:00006:DALLAS:661925.2
Exhibit C
MORTGAGE
(Commercial)
THIS MORTGAGE is made this ~o day of December, 1999 by and between
CARLISLE SPORTS EMPORIUM, INC., a Pennsylvania corporation, having an address of 29
Middlesex Road, Carlisle, Pennsylvania 17013-8511 (herein "the Mortgagor") and BLC
Commercial Capital Corp., a Delaware corporation, having an address at 645 Madison Avenue,
18th Floor, New York 10022 ("the Mortgagee").
WHEREAS, the title to the improved real property serving as collateral for this
Mortgage is vested in the Mortgagor, which property is more specifically described on Exhibit
"A" attached hereto and incorporated herein by reference; and
WHEREAS, Mortgagor has entered into a loan agreement (the "Loan Agreement") with
the Mortgagee and Mortgagor shall execute a Note or Notes in the aggregate amount of
$4,500,000.00 which this Mortgage shall secure the payment of all sums due or which may
become due under said Note and all other obligations, debts, dues, instruments, liabilities,
advances, judgments, damages, losses, claims, contracts, and causes in action, including all costs
of suit and attorney's commission as described in paragraph thirteenth, of whatever nature and
however arising, including past and future advances, owed to Mortgagee from Mortgagor, past,
present or future, direct or indirect, absolute or contingent, voluntary or involuntary, now due or
to become due, and any and all extensions or renewals thereof in whole or in part, whether owed
by Mortgagor as drawer, maker, endorser, assignor, guarantor, surety or otherwise whatsoever,
excepting those obligations (other than the obligations evidenced by the Note), (all of such
obligations secured thereby, hereinafter called the "Obligation(s)"), as well as to secure
Mortgagor's performance under this Mortgage, Mortgagor by these presents, intended to be
legally bound, does grant, bargain, sell, and convey unto Mortgagee, its successors and assigns,
ali that certain tract of land in the Township of Carlisle, Cumberland County, Pennsylvania, as
more particularly described in Exhibit "A" attached hereto and made a part hereof; and
TOGETHER WITH ALL AND SINGULAR, the buildings and improvements, streets,
lanes, alleys, passages, ways, waters, watercourses, rights, liberties, privileges, hereditaments, all
equipment installed and fixtures now or hereafter attached to said premises, and appurtenances
whatsoever thereunder belonging, or in any wa)) appertaining, and all easements and covenants
now existing or hereafter created for the benefit of such real property and the reversions and
remainders, rents, issues and profits thereof; and
TO HAVE AND TO HOLD same unto the said Mortgagee, it successors or assigns
FOREVER.
MORTGAGOR, represents, warrants, covenants, and agrees that:
First: All furniture and furnishings of every kind and description and all appliances,
apparatus, and equipment now or hereafter in any building or improvements now or hereafter
standing on the premises hereinabove granted (and all substitutions therefor or additions thereto)
are considered to be necessary, indispensable, and especially adapted and appropriate to the use
042000:00006: DA I. LA S:6~2535.3 I
and operation of said premises and constitute an integral part of said real estate; and all of the
same are hereby conveyed, assigned, and pledged and shall be deemed and treated for all
purposes of this instrument as real estate and not as personal property. This Mortgage is also a
security agreement under the Pennsylvania Uniform Commercial Code by virtue of which
Mortgagor does hereby grant to Mortgagee a security interest in all personal property now owned
and hereinafter acquired, including construction materials, furnishings, accessories, machinery,
and equipment, franchise rights, municipal or state permits, leases and leasehold, whether oral or
written, which leasehold rights are hereby assigned to the Mortgagee, including the right to
receive all rent and other payments due by Mortgagor's tenant(s) upon any event of default and
upon written notice by the Mortgagee (and all substitutions therefor or additions thereto), plus all
attachments and accessories thereto, and the proceeds (cash and non-cash) of the foregoing. (All
items of property granted under this paragraph First, together with the real estate, the buildings
and improvements thereon and the rights and interests granted in Granting Clauses hereinabove
set forth, are hereinafter referred to as the "Mortgaged Property"; subject to any prior liens of
record, as reflected on Exhibit B attached hereto and made a part hereof.)
Second: Mortgagor will keep and perform all of the covenants and agreements contained
herein.
Third: Without prior written consent of Mortgagee, which consent may be withheld for
any reason, Mortgagor shall not transfer or change legal or equitable title, ownership or control
of all or part of the Mortgaged Property by sale, lease, operation of law or in any other manner,
whether voluntarily or involuntarily. It is further understood and agreed that, if Mortgagee
consents to any such transfer, Mortgagee may impose as a condition of such consent any
condition, which Mortgagee, in its sole judgment, deems appropriate.
Fourth: The Mortgagor warrants that it-owns fee simple title to the Mortgaged Property
free and clear of all liens, claims and encumbrances and that Mortgagor has full right and
authority to grant this Mortgage and to perform all obligations hereunder. Mortgagor covenants
that the Mortgaged Property shall continue to be held free and clear of all liens, claims, and
encumbrances, except for the Subordinate Mortgages (hereinafter defined) or as otherwise
expressly permitted by Mortgagee in writing; subject to any prior liens of record, as reflected on
Exhibit B attached hereto and made a part hereof.
Fifth: Mortgagor will pay when due all taxes, assessments, levies and other charges on
or against the Mortgaged Property which may attain priority over the lien of this Mortgage. If
Mortgagor fail to do so, Mortgagee at its sole option may elect to pay such taxes, assessments,
levies or other charges, or require Mortgagor to establish an escrow for the payment of same.
Sixth: Mortgagor shall keep the Mortgaged Property in good repair, excepting only
reasonable wear and tear. Mortgagor will permit Mortgagee's authorized representatives to enter
upon the Mortgaged Property at any reasonable time for the purpose of inspecting the condition
of the Mortgaged Property. Without the prior written consent of Mortgagee, Mortgagor will not
permit removal or demolition of improvements now or hereafter erected on the Mortgaged
Property, nor will Mortgagor permit waste of the Mortgaged Property or alteration of
improvements now or hereafter erected on the Mortgaged Property which would adversely affect
042000:00006: DALLAS :642535.3
. oo 1589n £.,943
its market value as determined by Mortgagee. If Mortgagor fails to perform Mortgagor's
obligations hereunder, Mortgagee at its sole option may elect to do so at Mortgagor's cost and
expense, and may pay for Mortgagor's account any and all costs, charges, fees or expenses
incurred by Mortgagee as a result of such performance by Mortgagee.
Seventh: Mortgagor shall keep the Mortgaged Property insured as provided in the Loan
Agreement.
Eighth: Mortgagor hereby agrees to repay to Mortgagee on demand all sums which
Mortgagee has elected to pay under Paragraphs Fifth, Sixth and/or Seventh, and any and all sums
which Mortgagee has otherwise elected to pay in accordance with any other provisions of this
Mortgage or otherwise to protect the lien of this Mortgage, with interest thereon at a rate equal to
the highest rate provided in the Note; and all sums so paid, together with interest thereon, until
repaid to Mortgagee, shall be part of the Obligations and be secured hereby.
Ninth: Mortgagor hereby assigns to Mortgagee all proceeds of any award in connection
with any condemnation or other taking of the Mortgaged Property of any part thereof, or
payment for conveyance in lieu of condemnation.
Tenth: If the Mortgaged Property or any portion thereof consists of a unit in a
condominium or a planned unit development, Mortgagor shall perform all of Mortgagor's
obligations under the declaration or covenants creating or governing the condominium or
planned unit development, the by-laws, rules, and regulations of the condominium or planned
unit development, and related documents.
Eleventh: In order to further secure Mortgagee in the event of default in the payrnent of
the Obligations secured hereby, or in the performance by Mortgagor of any of the covenants,
conditions or agreements contained herein, Mortgagor hereby assigns and transfers to
Mortgagee, it successors and assigns, any and all leases on the Mortgaged Property or any part
thereof, now existing or which may hereafter be made at any time, together with any and all
rents, issues, and profits arising from the Mortgaged Property under said leases or otherwise.
without obligation of Mortgagee to perform or discharge any obligation, duty or liability under
such leases, but.with full authorization to collect all rents under the leases or otherwise and to
take possession of and rent the Mortgaged Property. Mortgagor covenants not to accept the
payment of any rent paid more than thirty (30) days in advance.
Twelfth:
I..Additional Representations, Warranties and Covenants.
In addition to the covenants and agreements made herein, Mortgagor further
covenants and agrees with Mortgagee as follows:
(a) Except as previously disclosed by Mortgagor to Mortgagee in writing, the
Mortgaged Property is and will continue to be free of Hazardous Substances (as hereinafter
defined), the presence of which Mortgagor is required to report to any federal, state, or local
042000:00006: DA L LAS :642535.3
agency or entity or the presence ofwhich is prohibited by any Environmental Law (as hereinafter
defined);
(b) The ownership, operation or use of the Mortgaged Property by Mortgagor
or Mortgagor's tenant(s), as the case may be, does not require as of the date hereof, and in the
future will not require, the handling, storage, location or discharge of Hazardous Substances in,
on or under the Mortgaged Property, the presence of which Mortgagor or Mortgagor's tenant(s)
have to report to any federal, state or local agency or entity or the presence of which is prohibited
by any Environmental Law;
(c) Mortgagor and Mortgagor's tenant(s), if any, at all times have operated
and maintained the Mortgaged Property, and at all times will continue to operate and maintain
the Mortgaged Property, in material compliance with all Environmental Laws and Environmental
Permits (as hereinafter defined);
(d) Except as previously disclosed by Mortgagor to Mortgagee in writing, no
pending or threatened proceeding, suit, investigation, allegation, or inquiry exists regarding any
alleged violation of Environmental Laws or Environmental Permits with respect to the
Mortgaged Property or of any alleged obligation to cleanup or remediate any Hazardous
Substance in, on or under the Mortgaged Property, and Mortgagor shall notify Mortgagee within
five (5) business days in writing upon becoming aware hereafter of any such proceeding, suit,
investigation, allegation or inquiry, setting forth the details thereof;
(e) There does not exist, nor will Mortgagor permit to exist, any event or
condition on or with respect to the Mortgaged Property that requires or is likely to require
Mortgagor under any Environmental Law to pay or expend funds by way of fines, judgments,
damages, cleanup, remediation or the like; provided, however, that Mortgagor shall notify
Mortgagee prornptly in writing upon becoming aware hereafter of any such event or condition;
and
(f) Upon request by Mortgagee, Mortgagor shall provide (at Mortgagor's
cost) certifications, documentation, copies of pleadings, and other information regarding the
above, all in form and content satisfactory to Mortgagee.
2. Additional Rights of Mortgagee,
Mortgagee and its agents and representatives shall have the right at any time,
whether or not any Event of Default (as defined in the Loan Agreement) has occurred, and at its
sole option and discretion, without notice, to enter and visit the Mortgaged Property for the
purposes of observing the Mortgaged Property, taking and removing soil or goundwater samples,
and conducting tests on any part of the Mortgaged Property, all at the cost of Mortgagor if
Mortgagor is in Default (as defined in the Loan Agreement) or if Mortgagor has a reasonable
suspicion that Hazardous Substances exist on or about the Mortgaged Property; and otherwise at
Mortgagee's cost. Mortgagee is under no duty, however, to visit or observe the Mortgaged
Property or to conduct tests, and any such acts by Mortgagee shall be solely for the purposes of
protecting its security interest and preserving Mortgagee's rights under the Loan Agreement and
IM2000:00006:DA LLAS:642535.3
the Note and other documents executed and delivered in connection with the Loan Agreement
and Note. No site visit, observation or testing by Mortgagee shall result in a waiver of any
default of Mortgagor or impose any liability on Mortgagee. In no event shall any visit,
observation or testing by Mortgagee be a representation that Hazardous Substances are or are not
present in, on or under the Mortgaged Property, or that there has been or shall be compliance
with any Environmental Law. Neither Mortgagor nor any other party is entitled to rely on any
site visit, observation or testing by Mortgagee, nor on any statements, representations or any
other comments made by Mortgagee to Mortgagor or any other party with respect to any
Hazardous Substances or any other adverse condition affecting the Mortgaged Property.
Mortgagee owes no duty of care to protect Mortgagor or any other party against, or to inform
Mortgagor or any other party of, any Hazardous Substances or any other adverse condition
affecting the Mortgaged Property. Mortgagee shall not be obligated to disclose to Mortgagor or
any other party any report or findings made as a result of, or in connection with, any site visit,
observation or testing by Mortgagee.
3. Indemnification.
Mortgagor shall indemnify and be surety for, defend, and hold harn'~less
Mortgagee, its employees, agents, officers, and directors from and against any and all claims,
demands, penalties, fines, liabilities, settlements, damages, costs, and expenses of any kind
whatsoever, including but not limited to, attorneys' fees (including reasonable counsel fees), all
fees of environmental consultants and laboratory costs, arising out of or in any way relating to:
(a) the release or threatened release, disposal or existence of any Hazardous Substances on or
affecting the Mortgaged Property; (b) any personal injury (including wrongful death) or property
damage (real or personal) arising out of or related to such Hazardous Substances; (c) any lawsuit
brought or threatened, settlement reached or governmental order issued relating to Hazardous
Substances with respect to the Mortgaged Property; (d) any violation or alleged violation of
laws, permits, licenses, orders, regulations, requirements or demands of government authorities
or any policies or requirements of Mortgagee, which are based upon or in any way related to
Hazardous Substances; (e) the breach of any warranty, representation or covenant of Mortgagor
contained herein or in any related loan document; or (0 the presence of any environmental
contamination whether from past or future uses or operations on the premises in violation of or in
an amount .in excess of the amount permitted by any Environmental Law. This indemnity shall
survive repayment 0'f any Obligations or any judicial foreclosure, foreclosure by power of sale,
deed-in-lieu of foreclosure or transfer of the Mortgaged Property by Mortgagor or Mortgagee.
The liability covered by these indemnity provisions shall include, but not be
limited to, losses sustained by Mortgagee and/or any of its successors and assigns for (a)
amounts owning as Obligations under the Note or any related loan documents, including
diminution in value of the Mortgaged Property, (b) amounts arising out of personal injury or
death claims, (c) amounts charged to Mortgagee for any environmental or Hazardous Substances
clean up costs and expenses, liens or other such charges or impositions, (d) payment for
reasonable attorney's fees and disbursements, expert witness fees, court costs, environmental
tests, and design studies, and (e) any other amounts expended by Mortgagee or its successors and
assigns in connection with the subject matter of this paragraph.
042000:00006:DA LLAS:642535.3
4. Definitions.
As used in this paragraph:
(a) "Environmental Law" means any federal, state or local environmental law,
statute, regulation, rule, ordinance, court or administrative order or decree, or private agreement
or interpretation, now or hereafter in existence, relating to the use, handling, collection, storage,
treatment, disposal or otherwise of Hazardous Substances, or in any way relating to pollution or
protection of the environment, including but not limited to: the Clean Air Act, 42 U.S.C.7401 et
.seq.; the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 4~
U.S.C. 9601 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. _et. seq.; the Hazardous
Material Transportation Act, 49 U.S.C. 1801 ,et. seq.; the Federal Insecticide Fungicide and
Rodenticide Act, 7 U.S.C. 136 et. seq.; the Resource Conservation and Recovery Act of 1976, 42
U.S.C. 6901 et seq,; the Toxic Substances Control Act, 15 U.S.C. 2601 .et. seq.; all as amended.
(b) "Environmental Permit" means any federal, state or local permit, license
or authorization issued under or in connection with any Environmental Law.
(c) "Hazardous Substances" includes petroleum and petroleum products,
radioactive materials, asbestos or any materials or substances defined as or included in the .
definition of "hazardous wastes," "hazardous substances," "hazardous materials," "toxic
substances," "hazardous air pollutants," and "toxic pollutants," as those terms are used in any
Environmental Law, including any state or federal law or local ordinance relating to hazardous
substances now or hereafter in existence, and in any regulations promulgated or may be
promulgated thereunder.
Thirteenth: In the event that (a) Mortgagor fails to pay any Obligation or any portion thereof
when due; or (b) Mortgagor breaches any warranty, covenant or agreement contained herein; or
(c) any representation or warranty contained herein or otherwise made by any Mortgagor in
connection xvith this Mortgage or any of the Obligations proves to be false or misleading; or (d)
there occurs an event of default under any agreement evidencing, securing or otherwise executed
and delivered by Mortgagor in connection with the Obligation or any portion thereof, including
without limitation under the Loan Agreement, or (e) there occurs in an event of default for non-
payment under the terms of any other mortgage or other instrument creating a lien on the
Mortgaged Property (whether or not such lien is in favor of Mortgagee) other than with respect
to the two (2) subordinate mortgages on the Mortgaged Property in favor of (i) Harold Z.
Swidler, Terry Ann Warshawsky and Eric Swidler, and (ii) George Berryhill (collectively the
"Subordinate Mortgages"); or (0 a holder of any lien encumbering the Mortgaged Property or
any portion thereof (whether such lien is junior or superior to the lien of this Mortgage)
including, without limitation, any of the holders of the Subordinate Mortgages commences a
foreclosure or any other proceeding to execute on such lien; or (g) Mortgagor makes an
assignment for the benefits of its creditors, becomes insolvent or files or has filed against it any
petition, action, case or proceeding, voluntary or involuntary, under any state or federal law
regarding bankruptcy, insolvency, reorganization, receivership or dissolution, including the
Bankruptcy Reform Act of 1978, as amended; or (h) Mortgagor fails to pay when due any
amount owing by Mortgagor pursuant to the terms hereof, then in addition to exercising any
042000:O004}6:DALLAS:642535.3
6 ,o ,1589r, £.947
rights which Mortgagee may have under the terms of any agreement securing repayment of, or
relating to, any portion of the Obligation, or otherMse provided by law, Mortgagee may
foreclose upon the Mortgaged Property by appropriate legal proceedings and sell the Mortgaged
Property for the collection of the Obligation, together with costs of suit and attorney's
commission equal to the lesser of (a) twenty percent (20%) of the total Obligation or five
hundred dollars ($500.00), whichever is the larger amount or (b) the maximum amount permitted
by law. Mortgagor hereby forever waives and releases all errors in the said proceedings, waives
stay of execution, the right of inquisition and extension of time of payment, agrees to
condemnation of any property levied upon by virtue of any such execution, and waives all
exemptions from levy and sale of any property that now is or hereafter may be exempted by law.
Fourteenth: The rights and remedies of Mortgagee as provided herein, or in any other
agreement securing repayment of, or relating to, any portion of the Obligations, or otherwise
provided by law, shall be cumulative and may be pursued singly, concurrently or successively in
Mortgagee's sole discretion, and may be exercised as often as necessary; and the failure to
exercise any such right or remedy shall in no event be construed as a waiver or release of the
same.
Fifteenth: The covenants, conditions, and agreements contained herein shall bind the
heirs, personal representatives, and successors of Mortgagor, and the rights and privileges
contained herein shall inure to the successors or assigns of Mortgagee.
Sixteenth: The formal and essential validity hereof shall be governed in all respects by
the laws of the Commonwealth of Pennsylvania. If any provision hereof shall for any reason be
held invalid or unenforceable, no other provision shall be affected thereby, and this Mortgage
shall be construed as if the invalid or unenforceable provision had never been part of it.
WITNESS the due execution hereof by the undersigned Mortgagor on the day and year
first above written.
CARLISLE SPORTS EMPORIUM, INC.
By:,,
Name:
Title:
COMMONWEALTH OF PENNSYLVANIA §
COUNTY OF //~ J,.(_ (L ~-.I..4)~j~ [1_.. §
. On th~s ~(~¥ day of {~,_~.~'i~ [,*-~.~F , , !.~99, before me, a notary public, the
,Uonrdt;tiisgf~e.cl o.f. ficer, per.sona, lly appeared ~]~, ! ~,', ,~ f'.,. ,1.6 J?/~.J,.~.'"': ,/9,z-',~.,Fknown ,o me
t ctonly proven) to be the person whose name is subscribed to the w/thin instrument, and
acknowledged that he executed the same for the purposes contained therein.
IN WITNESS WHEREOF, I hereunto s/~y hand and or.seal.
Printed Name:/~Or~__~, ,~eA ~'4//~ 0
My commission Expires:
042000:O0006:DALI.AS:642535.3 8
ALL THAT certain piece, parcel and lot of land situate in Middlesex
Township, Cumberland County, Commonwealth of Pennsylvania and being more
particularly bound and described according to an ALTA/ACSM Land Title ·
Survey for Carlisle Sports Emporium by Rettew Associates, Inc., drawing
no. 992907-01, dated October 27, 1999, revised November 23 1999 as
follows to wit: ' '
BEGINNING at a point in the center of South Middlesex Road (S.R. 1005) at
a corner of lands now or formerly Beauty Seven, A General Partnership,
said point being South 73 degrees 53 minutes 20 seconds West a distance
of 23.91 feet from rebar (set); thence along said lands North 73 degrees
53 minutes 20 seconds East a distance of 457.50 feet to an existing fence
post; thence continuing along same South 86 degrees 16 minutes 38 seconds
East a distance of 654.00 feet to an existing rebar at a corner of lands
now or formerly Harry A. Alexanderian; thence along said lands the
following two (2) courses and distances: (1) South 02 degrees 54
minutes 29 seconds East a distance of 236.67 feet to an existing iron
pin; (2) South 84 degrees 47 minutes 24 seconds East a distance of 374.16
feet to a rebar at a corner of lands now or formerly Terri Ann Warshawsky
et al; thence along said lands South 05 degrees 54 minutes 15 seconds
West a distance of 233.39 feet to an existing iron pin on the westerly
right-of-way line of Interstate 81 (A limited access highway); thence
along said right-of-way line the following three (3) courses and
distances: (1) South 43 degrees 09 minutes 09 seconds West a distance
of 341.04 feet to a rebar (set); (2) South 28 degrees 34 minutes 20
seconds West a distance of 101.98 feet to a rebar (set); (3) South 43
degrees 18 minutes 56 seconds West a distance of 189.52 feet to a point
in the center of South Middlesex Road (S.R. 1005) said point being South
43 degrees 18 minutes 56 seconds West a distance of 30.03 feet from a
rebar (set); thence in and along the center of said road North 49 degrees
19 minutes 43 seconds West a distance of 1 372.16 feet to a point the
place of BEGINNING. ' '
Containing 17.784 acres.
BEING the same premises which Terri Ann Warshawsky and Eric J. Swidler,
as one-quarter tenants-in-common, and Harold Z. Swidler, as one-half
tenant-in-common by-Deed dated November 3, 1992 and recorded in
Cumberland County, in Deed Book Z, Vol. 35 page 36 conveyed unto Carlisle
Sports Emporium, a Pennsylvania corporation.
EXHIBIT B
1. Easement as set forth in Deed Book Z, Vol. 35, Page 36.
2. Conditions as shown on Plan of Carlisle Sports Emporium, Inc., recorded in Plan Book 71,
Page 126.
a) 40 feet wide Atlantic pipe line easement
b) 50 feet wide Laurel pipe line easement
c) 50 feet wide Mobil pipe line easement
d) water line and overhead utility lines along and through South Middlesex Road
e) setback lines of 35 feet front, 15 feet side and 35 feet rear
0 50 feet wide utility trimming easement along South Middlesex Road
3. Rights granted to Laurel Pipe Line Company in Misc. Book 128, Page 109.
4. Rights granted to Magnolia Pipe Line Company in Misc. Book 154, Page 391.
5. Rights of the public and others entitled thereto in and to the use of that portion of the
premises within the bounds of SR 1005.
6. Conditions set forth on Survey b)) Rettew Associates, Inc., drawing no. 992907-01, dated
October 27, 1999, revised November 23, 1999, as follows:
a) Encroachment ofgo-kart track and parking spaces over 40 foot wide Atlantic Pipe Line
Company, now Sun Pipe Line Company, easement
b) 50 feet wide Laurel Pipe Line Company easement
c) 50 feet wide Magnolia Pipe Line Company, noxv Columbia Gas Company, easement
d) Water main, sanitary sewer and force main in the bed of Middlesex Road
e) Overhead electric, telephone and cable lines along Middlesex Road
0 Setback lines of 35 feet front, 15 feet side and 35 feet rear
g) 50 feet wide utility trimming easement along South Middlesex Road
h) Access easement (by foot) over Easterly portion of premises
i) Miniature golfcourse extends over Northerly building set back line
j) Small portion ofbillboard extends over Easterly building set back line
042000:00OO6: DA I.LA S :673027. I
12tl7/99 2:57 PM
Exhibit
6~,5 Madison Avenue
New York, NY 1002.2
(212) 751-5626
(8oo) 69o-~oa~
Fax (646) ~$2-6366
March 5, 2003
Via Facsimile;
Via Regular US Postage
Carlisle Spo~t Emporium
1101 Lindham Court
Mechanicsburg PA 17055
Atto: Keith Plaster
Trander to Liquidations
Carlisle Sports Emporium
SBA PLP# 413-637-4009 \\ BLC 122000C
B & I # CC122899
Dear Borrow~rs~
Due to your failure to adhere to the tetras and conditions of your note, mortgage and other relamd
documents executed on or about December 20, 2000, and your failure to respond to the Demand for
Payment dated January 21, 2003, your file has been transferred to my office to commence liquidation and
litigation proceedings.
On Friday, March 07, 2003 BLC will retain counsel and instruct same to commence litigation to
foreclosure our security interest as set forth in the aforementioned instruments.
Should you wish to reinstate your acco~mt my office must receive no later t_b.nn Friday March 28, 2002
Certified or wire tr~n~er funds (ONLY) in the nmo~nt of: $213,335.86 (CC1Z2899) and $3,803.$1
02200oc)
Failure to cure this Dequincy will remit in additional fees and cost added to the outstanding debt in
accordance w/th the terms and condition as specified in your note.
~ve ~hla serious matter your immecEate attention.
at 646452-6329.
/ ident .
~ Liquidafl~ Offi~r_ _'
~ Liqm'dations file
Rudolph DiMassa, Esq.
Businesskoan£xpress.net
1-800-SBA-Loan
Should you wish to discuss this 'matter I
Sut~$lolary Companies o.f B(l$1t~es$ Loan ExpresS, LLC:
Rusiness Loan Center, LLC BL× Capital, LLC BLX Commercial Capital, LLC
SHERIFF'S RETURN -
CASE NO: 2003-02312 P
COMMONWEALTH OF PENNSYLVANIA:
COUNTY OF CUMBERLAND
BLX COMMERCIAL CAPITAL LLC
VS
CARLISLE SPORTS EMPORIUM INC
REGULAR
DAWN KELL ,
Cumberland County,Pennsylvania,
says, the within COMPLAINT - MORT FORE
CARLISLE SPORTS EMPORIUM
DEFENDANT , at 1015:00 HOURS, on the
at 29 SOUTH MIDDLESEX ROAD
CARLISLE, PA 17013
LYNSEY KELLY, MANAGER
a
Sheriff or Deputy Sheriff of
who being duly sworn according to law,
was served upon
the
16th day of May , 2003
by handing to
ADULT IN CHARGE
true and attested copy of COMPLAINT - MORT FORE together with
and at the same time directing Her attention to the contents thereof.
Sheriff's Costs:
Docketing 18.00
Service 3.45
Affidavit .00
Surcharge 10.00
.00
31.45
Sworn and Subscribed to before
me this /~2 ~ day of
/ Prothonotary
So Answers:
R. Thomas Kline
05/19/2003
DUANE MORRIS
By:
Deputy Sheriff