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HomeMy WebLinkAbout07-3514w DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, L'L? Plaintiff, vV. KEITH L. PLASTERER and JAMIE PLASTERER, CIVIL ACTION - LAW 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. NOTICE TO DEFEND J 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. r IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association Lawyer Referral Service 32 South Bedford Street Carlisle, PA 17013 Telephone: Toll-Free (800) 990-9108 or (717)249-3166 2 Attorneys for Plaintiff Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) V. Plaintiff, NO. CIVIL ACTION - LAW KEITH L. PLASTERER and JAMIE PLASTERER, 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. COMPLAINT FOR BREACH OF CONTRACT Plaintiff, Business Loan Center, LLC ("Business Loan Center"), by and through its attorneys, Duane Morris LLP, herby files this Complaint for Breach of Contract against Keith L. Plasterer ("Keith Plasterer") and Jamie Plasterer ("Jamie Plasterer" and together with Keith Plasterer, the "Defendants"), and, in support hereof, states as follows: THE PARTIES 1. Business Loan Center is a Delaware limited liability company with a principal place of business located at 1633 Broadway, 39th Floor, New York, New York 10019. 2. Prior to January 312003, Business Loan Center operated its business under the name Business Loan Center, Inc. ("Business Loan Center Inc."). However, on or about January 30, 2003, the company changed its name to Business Loan Center, LLC (the "Business Loan Center Name Change"). The Business Loan Center Name Change is evidenced by the Certificate of Conversion of Business Loan Center, Inc. to Business Loan Center, LLC, a true and correct copy of which is attached hereto and incorporated herein by reference as Exhibit 66A » 3. The Business Loan Center Name Change had, and continues to have, no effect on the ability of Business Loan Center to enforce its rights and remedies under any loan documents executed by the Defendants in favor of Business Loan Center Inc. 4. Keith Plasterer and Jamie Plasterer, husband and wife, are adult individuals and residents of the Commonwealth of Pennsylvania with an address of 36 Kelly Drive, Carlisle, Pennsylvania 17013. JURISDICTION AND VENUE 5. This Court has personal jurisdiction over Defendants pursuant to 42 Pa.C.S.A. § 5301(a)(1)(ii) because Defendants are residents of, and domiciled in, the Commonwealth of Pennsylvania. 6. Venue is proper in Cumberland County pursuant to 42 Pa.C.S.A. § 931 and Pennsylvania Rule of Civil Procedure 1006 because Defendants reside in Cumberland County, the underlying transactions and occurrences took place in Cumberland County and the causes of action arose in Cumberland County. 2 FACTUAL ALLEGATIONS 7. Carlisle Sports Emporium, Inc. ("Carlisle Sports") is a Pennsylvania corporation with a principal place of business located at 29 South Middlesex Road, Carlisle, Pennsylvania 17013. 8. Keith Plasterer is the President of Carlisle Sports. 9. The Defendants, Keith Plasterer and Jamie Plasterer, each executed a personal guarantee in favor of Business Loan Center in order to secure certain obligations due and owing to Business Loan Center from Carlisle Sports as a result of a certain loan transaction entered into by and between Carlisle Sports and Business Loan Center. 10. On or about December 20, 2000, Business Loan Center Inc. entered into a loan transaction with Carlisle Sports, whereby Business Loan Center Inc. loaned Carlisle Sports (hereinafter, "Borrower") the principal sum of One Hundred Seventy Five Thousand Dollars $175,000.00 (the "$175,000 Loan"). 11. The $175,000 Loan was evidenced by, inter alia, a promissory note in the amount of One Hundred Seventy Five Thousand Dollars ($175,000.00) dated December 20, 2000, executed and delivered to Business Loan Center Inc. by Borrower (the "$175,000 Note"). A true and correct copy of the $175,000 Note is attached hereto and incorporated herein by reference as Exhibit "B." 12. As security for the $175,000 Loan and the obligations of Borrower due and owing to Business Loan Center Inc. under the $175,000 Note, on December 20, 2000, Defendants executed that certain guaranty agreement in favor of Business Loan Center Inc. (the 11$175,000 Guaranty"). A true and correct copy of the $175,000 Guaranty is attached hereto and incorporated herein by reference as Exhibit "C." 3 13. Pursuant to the terms of the $175,000 Note, payments of principal and interest are due on the first day of each month. 14. Pursuant to the terms of the $175,000 Note, in the event any monthly payments of principal and interest remain unpaid ten (10) days after such payments are due, a delinquency charge of five percent (5%) of the amount so overdue will be assessed. 15. Borrower is in default of its obligations under the $175,000 Note as a result of, among other things, Borrower's failure to make payments when due to Business Loan Center (the 11$175,000 Payment Default") 16. By letter dated November 10, 2006, Business Loan Center notified Borrower of the $175,000 Payment Default and that it was accelerating all amounts then due and owing under the $175,000 Note (the "November Default Letter"). A true and correct copy of the November Default Letter is attached hereto and incorporated herein by reference as Exhibit «D.99 17. In response to the November Default Letter, Borrower made a partial payment to Business Loan Center; however, the payment neither satisfied the entire unpaid principal balance due under the $175,000 Note and all accrued, unpaid interest due and owing under thereunder, nor cured the $175,000 Payment Default. 18. By letter dated December 29, 2006, Business Loan Center again notified Borrower of the $175,000 Payment Default and that it was accelerating all amounts then due and owing under the $175,000 Note (the "December Default Letter"). A true and correct copy of the December Default Letter is attached hereto and incorporated herein by reference as Exhibit «E.5'9 4 19. Since the December Default Letter, Borrower has made and attempted to make partial payments to Business Loan Center; however, these partial payments neither satisfied the entire unpaid principal balance due under the $175,000 Note and all accrued, unpaid interest due and owing under thereunder, nor cured the $175,000 Payment Default. 20. Borrower remains in default of its obligations under the $175,000 Note. 21. As a result of Borrower's non-payment, Defendants are obligated through the $175,000 Guaranty to pay the amounts due and owing to Business Loan Center under the $175,000 Note. 22. To date, Defendants have failed to pay the amounts due and owing to Business Loan Center under the $175,000 Note despite demand therefor. 23. The amounts due and owing under the $175,000 Note as of April 16, 2007 are as follows: Unpaid Principal: Accrued And Unpaid Interest Through April 16, 2007: Unpaid Late Charges Through April 16, 2007: Miscellaneous Fees Through April 16, 2007: Attorney Fees And Costs: $90,953.68 $1,726.87 $1,629.07 $25.00 To Be Determined Total Amount Due As Of April 16, 2007: $94,334.62 (plus additional interest, which continues to accrue at a per diem rate of $27.41, fees and costs and expenses, including, without limitation, attorneys' fees which continue to accrue) COUNTI Breach of Contract Against Keith L. Plasterer 24. Business Loan Center re-alleges and incorporates by this reference all the allegations of the aforementioned paragraphs as if fully set forth in this paragraph. 25. Pursuant to the $175,000 Guaranty, Defendant Keith Plasterer unconditionally guaranteed to Business Loan Center (i) the full and prompt payment when due (whether at maturity, by acceleration or otherwise) all sums due under the $175,000 Note, and (ii) the full and prompt performance by Borrower of its other obligations under the $175,000 Note and all documents executed in connection therewith (collectively, the "Loan Documents") 26. Pursuant to the $175,000 Guaranty, if Borrower is in default of its obligations under the $175,000 Note, upon demand, Defendant Keith Plasterer shall promptly pay Business Loan Center any amount due under the $175,000 Note, or perform the obligation which is in default. 27. Pursuant to the $175,000 Guaranty, Defendant Keith Plasterer also agreed to pay all costs and expenses, including reasonable attorney's fees, paid or incurred by Business Loan Center in collecting any amount that is due to Business Loan Center or in performing any defaulted obligation. 28. Business Loan Center made written demand upon Defendant Keith Plasterer for payment of the amounts due and owing under the $175,000 Note on November 10, 2006 and again on December 29, 2006, as evidenced by those certain demand letters attached hereto and incorporated herein by reference as Exhibits "F" and "G" respectively (hereinafter, the "November Guarantor Demand Letter" and the "December Guarantor Demand Letter") 29. To date, Defendant Keith Plasterer has failed to cure the $175,000 Payment Default. 6 WHEREFORE, Business Loan Center, LLC, a Delaware limited liability company, hereby demands that: (i) judgment in the amount of $94,334.62 be entered against Defendant Keith L. Plasterer in favor of Business Loan Center; (ii) judgment for a yet to be determined amount, representing Business Loan Center's costs, legal fees, and interest until the date of payment, be entered in favor of Business Loan Center and against Defendant Keith L. Plasterer; and (iii) any such other and further relief as this Court may deem proper. COUNT II Breach of Contract Against Jamie Plasterer 30. Business Loan Center re-alleges and incorporates by this reference all the allegations of the aforementioned paragraphs as if fully set forth in this paragraph. 31. Pursuant to the $175,000 Guaranty, Defendant Jamie Plasterer unconditionally guaranteed to Business Loan Center (i) the full and prompt payment when due (whether at maturity, by acceleration or otherwise) all sums due under the $175,000 Note, and (ii) the full and prompt performance by Borrower of its other obligations under the $175,000 Note and all related other Loan Documents. 32. Pursuant to the $175,000 Guaranty, if Borrower is in default of its obligations under the $175,000 Note, upon demand, Defendant Jamie Plasterer shall promptly pay Business Loan Center any amount due under the $175,000 Note, or perform the obligation which is in default. 33. Pursuant to the $175,000 Guaranty, Defendant Jamie Plasterer also agreed to pay all costs and expenses, including reasonable attorney's fees, paid or incurred by Business Loan Center in collecting any amount that is due to Business Loan Center or in performing any defaulted obligation. 7 34. Business Loan Center made written demand upon Defendant Jamie Plasterer for payment of the amounts due and owing under the $175,000 Note on November 10, 2006 and again on December 29, 2006, as evidenced by the November Guarantor Demand Letter and the December Guarantor Demand Letter, which are attached hereto and incorporated herein by reference as Exhibits "F" and "G," respectively. 35. To date, Defendant Jamie Plasterer has failed to cure the $175,000 Payment Default. WHEREFORE, Business Loan Center, LLC, a Delaware limited liability company, hereby demands that: (i) judgment in the amount of $94,334.62 be entered against Defendant Jamie Plasterer in favor of Business Loan Center; (ii) judgment for a yet to be determined amount, representing Business Loan Center's costs, legal fees, and interest until the date of payment, be entered in favor of Business Loan Center and against Defendant Jamie Plasterer; and (iii) any such other and further relief as this Court may deem proper. Respectfully submitted, Dated: June q, 2007 DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr., Esquire PA Bar Id. No. 35492 Sommer L. Ross, Esquire PA Bar Id. No. 98451 30 South 17th Street Philadelphia, PA 19103 215.979.1000 Attorney for Plaintiff BUSINESS LOAN CENTER, LLC 8 VERIFICATION I, Geraldine Segars, hereby state that I am Vice President of BLX Commercial Capital, and verify that the statements made in the foregoing Complaint for Breach of Contract are true and correct to the best of my knowledge, information and belief. As Vice President of BLX Commercial Capital, LLC, I am authorized to make this Verification on behalf of Plaintiff Business Loan Center, LLC. I understand that the statements made therein are made subject to penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. BLX COMMERCIAL CAPITAL, LLC Date: June L4 ; 2007 By; ? gL4_ Geraldine Segars Vice President DM3\523622.1 C', ?, b) STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 11:16 AN 0113112003 030066713 - 2227863 CERTIFICATE OF CONVERSION OF BUSINESS LOAN CENTER, INC. (a Delaware corporation) Ito BUSINESS LOAN CENTER, LLC (a Delaware limited liability company) Pursuant to Section 266 of the Delaware General Corporation Law (the "DGCU ) and Section 18-214 of the Delaware Limited Liability Company Act (the "DLLCA" ), the undersigned domestic corporation (the "Corporation') hereby duly executes and files this Certificate of Conversion: 1. The name of the Corporation immediately prior to filing this Certificate of Conversion is Business Loan Center, Inc., which is also the name under which the Corporation was originally incorporated. 2. The Corporation's original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on April 16, 1990. 3. The name of the limited liability company to which the Corporation is being converted, as set forth in its Certificate of Formation, is Business Loan Center, LLC, a limited liability company organized under the laws of the State of Delaware. 4. The conversion has been approved in accordance with the provisions of Section 266 of the DGCL and Section 18-214 of the DLLCA. The conversion shall be effective at 11:56 p.m. on January 31, 2003. IN WITNESS WHEREOF, the undersigned has caused this Certificate of Conversion to be executed by an authorized officer on its behalf. Executed on January 30, 2003. BUSINESS LOAN CENTER, INC. By: /s/Robert F. Tannenhauser President and Chief Executive Officer 132 WO 136806.1 US Small Audww Admtntatmtion U.S. Small Business Administration NOTE SBA Loan # PLP 413-637-4009 SBA Loan Name Carlisle Sports Em oriiim, Inc. Date r 20. 2000 Loan Amount $175,000-00 Interest Rate 12.25% Borrower Carlisle Sports Emporium, Inc. Operating Company Lender Business Loan Center, Inc. 1. PROMISE TO PAY: In return for the Loan, Borrower promises to pay to the order of Lender the amount of one hundred seventy-five thousand dollars and no/100 ************* __ Dollars, interest on the unpaid principal balance, and all other amounts required by this Note. 2. DEFINITIONS: "Collateral" means any property taken as security for payment of this Note or any guarantee of this Note. "Guarantor" means each person or entity that signs a guarantee of payment of this Note. "Loan" means the loan evidenced by this Note. "Loan Documents" means the documents related to this loan signed by Borrower, any Guarantor, or anyone who pledges collateral. "SBA" means the Small Business Administration, an Agency of the United States of America. SBA Form 147 (10/22198) Previous editions obsolete Page 1/6 3. PAYMENT TERMS: Borrower must make all payments at the place Lender designates. The payment terns for this Note are: The interest rate on this Note will fluctuate. The initial rate is 12.25% per year. This initial rate is the prime rate on the date SBA received the loan application, plus 2.75%. Borrower must pay one payment of interest only on the disbursed principal balance one month from the month this Note is date; payment must be made on the first calendar day in the month it is due. Borrower must pay principal and interest payments of $2,536.10 every month, beginning two months from the month this Note is dated; -payments must be made on the first calendar day in the months they are due. Lender will apply each installment payment first to pay interest accrued to the day Lender receives the payment, then to bring principal current, then to pay any. late fees, and will apply any remaining balance to reduce principal. The interest rate will be adjusted every calendar quarter (the "change period"). The "Prime Rate" is the prime rate in effect on the first business day of the month in which an interest rate change occurs, as published in the Wall Street Journal on the next business day. The adjusted interest rate will be 2.75% above the Prime Rate. Lender will adjust the interest rate on the first calendar day of each change period. - The change in interest rate is effective on that day whether or not Lender gives Borrower notice of the change. The initial interest rate must remain in effect until the first change period begins. Lender must adjust the payment amount at least annually as needed to amortize principal over the remaining term of the note. If SBA purchases the guaranteed portion of the unpaid principal balance, the interest rate becomes fixed at the rate in effect at the time of the earliest uncured payment default. If there is not uncured payment. default, the rate becomes fixed at the rate in effect at the time of purchase. All remaining principal and accrued interest is due and payable 10 years from date of Note. Late Charge: If a payment on this Note is more than 10 days late, Lender may charge Borrower a late fee of up to 5% of the unpaid portion of the regularly scheduled payment. SBA Form 147 (10122/98) Previous editions obsolete Page 216 P 4. - RIGHT TO PREPAY: Borrower may prepay this Note. Borrower may prepay 20 percent or less of the unpaid principal balance at any time without notice. If Borrower prepays more than 20 percent and the Loan has been sold on the secondary market, Borrower must: A. Give Lender written notice; B. Pay all accrued interest; and C. If the prepayment is received less than 21 days from the date Lender receives the notice, pay an amount equal to 21 days' interest from the date lender receives the notice, less any interest accrued during the 21 days and paid under subparagraph B. If Borrower does not prepay within 60 days from the date Lender receives the notice, Borrower must give Lender a new notice. 5. DEFAULT: Borrower is in default under this Note if Borrower does not make a payment when due under this Note, or if Borrower or Operating Company: A. Fails to do anything required by this Note and other Loan Documents; B. Defaults on any other loan with Lender, C. Does not preserve, or account to Lender's satisfaction for, any of the Collateral or its proceeds; D. Does not disclose, or anyone acting on their behalf does not disclose, any material fact to Lender or SBA; E. Makes, or anyone acting on their behalf makes, a materially false or misleading representation to Lender or SBA; F. Defaults on any loan or agreement with another creditor, if Lender believes the default may materially affect Borrower's ability to pay this Note; G. Fails to pay any taxes when due; H. Becomes the subject of a proceeding under any bankruptcy or insolvency law; 1. Has a receiver or liquidator appointed for any part of their business or property; J. Makes an assignment for the benefit of creditors; K. Has any adverse change in financial condition or business operation that Lender believes may materially affect Borrower's ability to pay this Note; L. Reorganizes, merges, consolidates, or otherwise changes ownership or business structure without Lender's prior written consent; or M. Becomes the subject of a civil or criminal action that Lender believes may materially affect Borrower's ability to pay this Note. 6. LENDER'S RIGHTS IF THERE IS A DEFAULT: Without notice or demand and without giving up any of its rights, Lender may: A. Require immediate payment of all amounts owing under this Note; B. Collect all amounts owing from any Borrower or Guarantor, C. File suit and obtain judgment; D. Take possession of any Collateral; or E. Sell, lease, or otherwise dispose of, any Collateral at public or private sale, with or without advertisement. SBA Form 147 (10/22/98) Previous editions obsolete Page 316 7. LENDER'S GENERAL POWERS: Without notice and without Borrower's consent, Lender may: A. Bid on or buy the Collateral at its sale or the sale of another lienholder, at any price it. chooses; B. Incur expenses to collect amounts due under this Note, enforce the terms of this Note or any other Loan Document, and preserve or dispose of the Collateral. Among other things, the expenses may include payments for property taxes, prior liens, insurance, appraisals, environmental remediation costs, and reasonable attorney's fees and costs. If Lender incurs such expenses, it may demand immediate repayment from Borrower or add the expenses to the principal balance; C. Release anyone obligated to pay this Note; D. Compromise, release, renew, extend or substitute any of the Collateral; and E. Take any action necessary to protect the Collateral or collect amounts owing on this Note. 8. WHEN FEDERAL LAW APPLIES: When SBA is the holder, this Note will be interpreted and enforced under federal law, including SBA regulations. Lender or SBA may use state or local procedures for filing papers, recording documents, giving notice, foreclosing liens, and other purposes. By using such procedures, SBA does not waive any federal immunity from state or local control, penalty, tax, or liability. As to this Note, Borrower may not claim or assert against SBA any local or state law to deny any obligation, defeat any claim of SBA, or preempt federal law. 9. SUCCESSORS AND ASSIGNS: Under this Note, Borrower and Operating Company include the successors of each, and Lender includes its successors and assigns. 10. GENERAL PROVISIONS: A. All individuals and entities signing this Note are jointly and severally liable. B. Borrower waives all suretyship defenses. C. Borrower must sign all documents necessary at any time to comply with the Loan Documents and to enable Lender to acquire, perfect, or maintain Lender's liens on Collateral. D. Lender may exercise any of its rights separately or together, as many times and in any order it chooses. Lender may delay or forgo enforcing any of its rights without giving up any of them. E. Borrower may not use an oral statement of Lender or SBA to contradict or alter the written terms of this Note. F. If any part of this Note is unenforceable, all other parts remain in effect. G. To the extent allowed by law, Borrower waives all demands and notices in connection with this Note, including presentment, demand, protest, and notice of dishonor. Borrower also waives any defenses based upon any claim that Lender did not obtain any guarantee; did not obtain, perfect, or maintain a lien upon Collateral; impaired Collateral; or did not obtain the fair market value of Collateral at a sale. SBA Form 147 (10/22/98) Previous editions obsolete Page 416 11. STATE-SPECIFIC PROVISIONS: SBA Form 147 (10/27198) Previous editions obsolete Page 516 1 2. BORROWER'S NAME(S) AND SIGNATURE(S): By signing below, each individual or entity becomes obligated under this Note as Borrower. CARLISLE SPORTS EMPORIUM, INC. Keith L. Plasterer, President SBA Form 147 (10/22198) Previous editions obsolete Page 6/6 x???? f C Tracking # 200008271 TX us sett >? Aamint+kion U.S. Small Business Administration UNCONDITIONAL GUARANTEE SBA Loan # PLP 413-637-4009 SBA Loan Name Carlisle Sports Emporium, Inc. Guarantor Keith L. Plasterer and Jamie Plasterer Borrower Carlisle Sports Emporium, Inc. Lender Business Loan Center, Inc. Date December 20, 2000 Note Amount 1. GUARANTEE: Guarantor unconditionally guarantees payment to Lender of all amounts owing under the Note. This Guarantee remains in effect until the Note is paid in full. Guarantor must pay all amounts due under the Note when Lender makes written demand upon Guarantor. Lender is not required to seek payment from any other source before demanding payment from Guarantor. 2. NOTE: The "Note" is the promissory note dated December 20. 2000 in the principal amount of One hundred seventy-five thousand dollars and No/100 ******************** Dollars, from Borrower to Lender. It includes any assumption, renewal, substitution, or replacement of the Note, and multiple notes under a line of credit. 3. DEFINITIONS: "Collateral" means any property taken as security for payment of the Note or any guarantee of the Note. "Loan" means the loan evidenced by the Note. "Loan Documents" means the documents related to the Loan signed by Borrower, Guarantor or any other guarantor, or anyone who pledges Collateral "SBA" means the Small Business Administration, an Agency of the United States of America. SBA Form 148 (10/98) Previous editions obsolete. Page 1/5 4. LENDER'S GENERAL POWERS: Lender may take any of the following actions at any time, without notice, without Guarantor's consent, and without making demand upon Guarantor. A. Modify the terms of the Note or any other Loan Document except to increase the amounts due under the Note; B. Refrain from taking any action on the Note, the Collateral, or any guarantee; C. Release any Borrower or any guarantor of the Note; D. Compromise or settle with the Borrower or any guarantor of the Note; E. Substitute or release any of the Collateral, whether or not Lender receives anything in return; F. Foreclose upon or otherwise obtain, and dispose of, any Collateral at public or private sale, with or without advertisement; G. Bid or buy at any sale of Collateral by Lender or any other lienholder, at any price Lender chooses; and H. Exercise any rights it has, including those in the Note and other Loan Documents. These actions will not release or reduce the obligations of Guarantor or create any rights or claims against Lender. 5. FEDERAL LAW: When SBA is the holder, the Note and this Guarantee will be construed and enforced under federal law, including SBA regulations. Lender or SBA may use state or local procedures for filing papers, recording documents, giving notice, foreclosing liens, and other purposes. By using such procedures, SBA does not waive any federal immunity from state or local control, penalty, tax, or liability. As to this Guarantee, Guarantor may not claim or assert any local or state law against SBA to deny any obligation, -defeat any claim of SBA, or preempt federal law. 6. RIGHTS, NOTICES, AND DEFENSES THAT GUARANTOR WAIVES: To the extent permitted by law, A. Guarantor waives all rights to: 1) Require presentment, protest, or demand upon Borrower, 2) Redeem any Collateral before or after Lender disposes of it; 3) Have any disposition of Collateral advertised; and 4) Require a valuation of Collateral before or after Lender disposes of it. B. Guarantor waives any notice of: 1) Any default under the Note; 2) Presentment, dishonor, protest, or demand; 3) Execution of the Note; 4) Any action or inaction on the Note or Collateral, such as disbursements, payment, nonpayment, acceleration, intent to accelerate, assignment, collection activity, and incurring enforcement expenses; 5) Any change in the financial condition or business operations of Borrower or any guarantor; 6) Any changes in the terms of the Note or other Loan Documents, except increases in the amounts due under the Note; and 7) The time or place of any sale or other disposition of Collateral. C. Guarantor waives defenses based upon any claim that: 1) Lender failed to obtain any guarantee; 2) Lender failed to obtain, perfect, or maintain a security interest in any property offered or taken as Collateral; 3) Lender or others improperly valued or inspected the Collateral; 4) The Collateral changed in value, or was neglected, lost, destroyed, or underinsured; SBA Form 148 (10198) Previous editions obsolete. Page 215 5) Lender impaired the Collateral; 6) Lender did not dispose of any of the Collateral; 7) Lender did not conduct a commercially reasonable sale; 8) Lender did not obtain the fair market value of the Collateral; 9) Lender did not make or perfect a claim upon the death or disability of Borrower or any guarantor of the Note; 10) The financial condition of Borrower or any guarantor was overstated or has adversely changed; 11) Lender made errors or omissions in Loan Documents or administration of the Loan; 12) Lender did not seek payment from the Borrower, any other guarantors, or any Collateral before demanding payment from Guarantor: 13) Lender impaired Guarantor's suretyship rights; 14) Lender modified the Note terms, other than to increase amounts due under the Note. If Lender modifies the Note to increase the amounts due under the Note without Guarantor's consent, Guarantor will not be liable for the increased amounts and related interest and expenses, but remains liable for all other amounts; 15) Borrower has avoided liability on the Note; or 16) Lender has taken an action allowed under the Note, this Guarantee, or other Loan Documents. 7. DUTIES AS TO COLLATERAL: Guarantor will preserve the Collateral pledged by Guarantor to secure this Guarantee. Lender has no duty to preserve or dispose of any Collateral. 8. SUCCESSORS AND ASSIGNS: Under this Guarantee, Guarantor includes heirs and successors, and Lender includes its successors and assigns. 9. GENERAL PROVISIONS: A. ENFORCEMENT EXPENSES. Guarantor promises to pay all expenses Lender incurs to enforce this Guarantee, including, but not limited to, attorney's fees and costs. B. SBA NOT A CO-GUARANTOR. Guarantor's liability will continue even if SBA pays Lender. SBA is not a co-guarantor with Guarantor. Guarantor has no right of contribution from SBA. C. SUBROGATION RIGHTS. Guarantor has no subrogation rights as to the Note or the Collateral until the Note is paid in full. D. JOINT AND SEVERAL LIABILITY. All individuals and entities signing as Guarantor are jointly and severally liable. E. DOCUMENT SIGNING. Guarantor must sign all documents necessary at any time to comply with the Loan Documents and to enable Lender to acquire, perfect, or maintain Lender's liens on Collateral. F. FINANCIAL STATEMENTS. Guarantor must give Lender financial statements as Lender requires. G. LENDER'S RIGHTS CUMULATIVE, NOT WAIVED. Lender may exercise any of its rights separately or together, as many times as it chooses. Lender may delay or forgo enforcing any of its rights without losing or impairing any of them. H. ORAL STATEMENTS NOT BINDING. Guarantor may not use an oral statement to contradict or alter the written terms of the Note or this Guarantee, or to raise a defense to this Guarantee. 1. SEVERABILITY. If any part of this Guarantee is found to be unenforceable, all other parts will remain in effect. J. CONSIDERATION. The consideration for this Guarantee is the Loan or any accommodation by Lender as to the Loan. SBA Form 148 (10/98) Previous editions obsolete. Page 3/5 10. STATE-SPECIFIC PROVISIONS: SBA Form 148 (10198) Previous editions obsolete. Page 415 11. GUARANTOR ACKNOWLEDGMENT OF TERMS. Guarantor acknowledges that Guarantor has read and understands the significance of all tempts of the Note and this Guarantee, including all waivers. 12. GUARANTOR NAME(S) AND SIGNATURE(S): By signing below, each individual or entity becomes obligated as Guarantor under this Guarantee. Keith L. Plas sterer SBA Form 148 (10/98) Previous editions obsolete. Page 5/5 ;?,,k j I -?,-p SONQAER L. ROSS DIRECT DIAL: 215.979.1546 E-MCL: slross@duanemocris.com www.duanemorris.com November 10, 2006 VIA CERTIFIED RETURN RECEIPT AND REGULAR MAIL Carlisle Sports Emporium, Inc. 29 Middlesex Road Carlisle, Pennsylvania 17013 DuaneMorris• F7AWmdAFFJLIATEOFFICFS NEW YORK LONDON LOS ANGELES CHICAGO HOUSTON PHZ ADELPHIA SAN DIEGO SAN FRANCISCO BOSTON WASHINGTON, DC LAS VEGAS ATLANTA A4A)& PITTSBURGH r I L NEWARK WUIvUNGTON PRINCETON LAKETAHOE Re: $3,600,000.00 USDA Note dated December 28, 1999 Executed By Carlisle Sports Emporium, Inc. in favor of BLX Commercial Capital L-L.C. and Business Loan Center, LLC (the "$3.6 Million USDA Note"); $900,000.00 USDA Note dated December 28, 1999 Executed By Carlisle Sports Emporium, Inc. in favor of BLX Commercial Capital L.L.C. and Business Loan Center, LLC (the "900,000 USDA Note"); and $175,000.00 SBA Note dated December 20, 2000 Executed By Carlisle Sports Emporium, Inc. in favor of BLX Commercial Capital L.L.C. and Business Loan Center, LLC (the "SBA Note") Dear Sir/Madam: Please be advised that this office represents BLX Commercial Capital L.L.C., f/k/a Business Commercial Capital Corp. ("BLC Commercial") and Business Loan Center, LLC, f/k/a Business Loan Center, Inc. ("BLC," and together with BLC Commercial .and any and all affiliates, collectively referred to herein as "Lender") ir, connection with the above-referenced Promissory Notes (collectively, the "Notes"). The purpose of this letter is to notify Carlisle Sports Emporium, Inc. (`Borrower") that it is in default under the Notes. Reference is hereby made to the following: (i) the $3.6 Million USDA Note; (ii) the $900,000 USDA Note (and together with the $3.6 Million USDA Note, the "USDA Notes"); and (iii) the SBA Note. Defaults and events of default have occurred and are continuing under the Notes because, among other things, Borrower has failed to pay amounts when due under the Notes. As a result of said defaults and events of default, Lender hereby declares the entire unpaid principal balance DUANE MORRIS LLP 30 SOUTH 17TH STREET PHILADELPHIA, PA 19103-4196 PHONE: 215.979.1000 FAX: 215.979.1020 DM3\416264.2 D uaneNt- November 10, 2006 Page 2 of the USDA Notes and the SBA Note and all accrued, unpaid interest due and owing under the Notes immediately due from Borrower. Pursuant to the terms of the Notes, Borrower is additionally required to reimburse Lender for all costs and expenses (including attorneys' fees and legal expenses) incurred by Lender in the collection of all amounts due under the Notes. As of November 7, 2006, the principal amount of $4,262,837.22, together with $152,875.64 in accrued and unpaid interest, is due and owing under the USDA Notes and the principal amount of $96,091.19, together with $1,650.66 in accrued and unpaid interest, is due and owing under the SBA Note. Additionally, there are late fees and other charges accruing in accordance with the terms of the Notes. Lender hereby demands immediate payment in full of all amounts due and owing under the Notes. Since the amounts due and owing under the Notes increase each day payment is not received, please contact Ms. Geraldine Segars at (646) 723-5222 to obtain the updated payoff amounts prior to making payment. References in this letter to specific breaches and events of default are not intended to be exclusive and do not in any way create a waiver of other defaults and events of default that are not specified herein or that have occurred or might occur under any obligations of Borrower to Lender. Neither the contents of this letter, nor any communications between Lender and Borrower, shall constitute or be deemed to constitute a waiver of any rights or remedies Lender may have under the Notes or related loan documents, or any other obligations of Borrower to Lender and/or applicable law, all of which are expressly reserved and preserved hereby. Sincerely, ,,4rnM7O?J- 94-t-2 Sommer L. Ross dj g cc: . Mr. Keith L. Plasterer (Guarantor) Ms. Jamie Plasterer (Guarantor) Anthony P. Tabasso, Esquire (Borrower's Counsel) Ms. Geraldine Segars (Lender) Rudolph J. Di Massa, Jr., Esquire (Lender's Counsel) DM3\416264.2 ru I Er a . e LrI r-q Lri to Er r=i Postage C3 Certified Fee E3 Return Receipt Fee (Endorsement Required) E3 Restricted Delivery Fee ,.11 (Endorsement Required) r-9 r=I Total Postage 8 Fees Lr1 Sent To C3 r3 tLC -- Iti SfreeLAofNo.: _n >•9`1 U3 $?-f - 8 1 a Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. s Print your name and address on the reverse so that we can return the card to you. ¦ Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: I r /rcq a 9 lxU? //? ?---- &Ab-4-!-c 70 .e j A. S? Agent X ? Addressee i Received by (Printed Name) C. Date of Delivery -2 D. Is delivery address different from item 1? ? Yes If YES, enter delivery address below: ? No 3. Service Type iEl-Certffied Mail C9-Express Mail ? Registered ? Return Receipt for Merchandise ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 2. Article Number (rr?bst troM}seh„ ,+ r,:A 160 0001 1955 1952 {- PS Form 3811, August 2001 Domestic Return Receipt 102595-01-M-2509 U.S. POSTAL SERVICE CERTIFICATE OF MAILING MAY BE USED FOR DOMESTIC AND INTERNATIONAL MAIL, DOES NOT PROVIDE FOR INSURANCE-POSTMASTER Received From: ?OL 6SS «.7, :3D S / 7 771 One piece of ordinary mail addressed to: .'?F f 02 9 fib L,(.L ' PS Form 3817, January ZUU1 i+ LD co a?O {J ?` rJ S, { LLJ Cj O z c) 0 t IV o u_ -? r 7 J r o - ?11Nf1 0 0 4- Duane orriso Soh0AER L. ROSS DIRECT DIAL: 21 5.979.1546 E-MAIL: slrross@duanemDms.com wivnv.duanemorris.com December 29, 2006 FILE HW? VIA CERTIFIED MAIL RETURN RECEIPT AND REGULAR MAIL Carlisle Sports Emporium, Inc. 29 Middlesex Road Carlisle, Pennsylvania 17013 7001 2510 0008 7724 1388 FIRMQ,d AFF7MA7Z OFFICES NEW YORK LONDON LOS ANGELES CEIICAGO HOUSTON PHII-ADELPMA SAN DIEGO SAN FRANCISCO BOSTON WASHINGTON, DC LAS VEGAS ATLANTA MIIANG PITTSBURGH NEWARK WII.MLNGTON PRINCETON LAKE TAHOE Re: $3,600,000.00 USDA Note dated December 28, 1999 Executed By Carlisle Sports Emporium, Inc. in favor of BLX Commercial Capital L.L.C. and Business Loan Center, LLC (the "$3.6 Million USDA Note"); $900,000.00 USDA Note dated December 28, 1999 Executed By Carlisle Sports Emporium, Inc. in favor of BLX Commercial Capital L.L.C. and Business Loan Center, LLC (the "$900,000 USDA Note"); and $175,000.00 SBA Note dated December 20, 2000 Executed By Carlisle Sports Emporium, Inc. in favor of BLX Commercial Capital L.L.C. and Business Loan Center, LLC (the "SBA Note") Dear Sir/Madam: Please be advised that this office represents BLX Commercial Capital L.L.C., f/k/a Business Commercial Capital Corp. ("BLC Commercial") and Business Loan Center, LLC, f/k/a Business Loan Center, Inc. ("BLC," and together with BLC Commercial and any and all affiliates, collectively referred to herein as "Lender") in connection with the above-referenced Promissory Notes (collectively, the "Notes"). The purpose of this letter is to notify Carlisle Sports Emporium, Inc. (`Borrower") that it is in default of certain of its obligations under the Notes. Reference is hereby made to the following: (i) the $3.6 Million USDA Note; (ii) the $900,000 USDA Note (and, together with the $3.6 Million USDA Note, the "USDA Notes"); and (iii) the SBA Note. Reference is further made to that certain demand letter dated November 10, 2006 (the November Demand Letter") that was sent to Borrower informing Borrower that it was in default of certain obligations under the Notes. DUANE MORRIS LLP PHONE: 215.979.1000 FAX:215.979.1020 30 SOUTH 17TH STREET PHILADELPHIA, PA 14103-4196 DM3\433799.1 uane orris December 29, 2006 Page 2 Despite the fact that Borrower has made certain payments since the November Demand Letter (the Partial Payments"), these Partial Payments neither satisfied the entire unpaid principal balance of the USDA Notes and SBA Note and all accrued, unpaid interest due and owing under the Notes (as required by the November Demand Letter), nor did the Partial Payments bring Borrower current under the USDA Notes. Accordingly, the purpose of this letter is to again inform Borrower that defaults and events of default have occurred and are continuing under the Notes because, among other things, Borrower has failed to pay amounts when due under the Notes. As a result of said defaults and events of default, Lender hereby declares the entire unpaid principal balance of the USDA Notes and the SBA Note and all accrued, unpaid interest due and owing under the Notes immediately due and payable. Pursuant to the terms of the Notes, Borrower is additionally required to reimburse Lender for all costs and expenses (including attorneys' fees and legal expenses) incurred by Lender in the collection of all amounts due under the Notes. As of December 27, 2006, the principal amount of $4,262,837.22, together with $152,730.55 in accrued and unpaid interest, is due and owing under the USDA Notes, and the principal amount of $91,868.30, together with $166.12 in accrued and unpaid interest, is due and owing under the SBA Note. Additionally, there are late fees and other charges accruing in accordance with the terms of the Notes. Lender hereby demands immediate payment in full of all amounts due and owing under the Notes. Since the amounts due and owing under the Notes increase each day that payment is not received by Lender, please contact Ms. Geraldine Segars at (646) 723-5222 to obtain updated payoff amounts prior to making payment. Lender further demands, due to the fact that several of Borrower's checks tendered as payment to Lender have been returned due to insufficient funds, that any negotiable instrument tendered to Lender by Borrower be honored upon presentment by Lender. References in this letter to specific breaches and events of default are not intended to be exclusive and do not in any way create a waiver of other defaults and events of default that are not specified herein or that have occurred or might occur under any obligations of Borrower to Lender.' Neither the contents of this letter, nor any communications between Lender and Borrower, shall constitute or be deemed to constitute a waiver of any rights or remedies Lender may have under the Notes or related loan documents or under applicable law, or of any other DM3\433799.1 rris Dane o 4 December 29, 2006 Page 3 obligation of Borrower to Lender under the Notes or related loan documents or under applicable law, all of which are expressly reserved and preserved hereby. Sincerely, Sommer L. Ross SLR cc: Mr. Keith L. Plasterer (Guarantor) Ms. Jamie Plasterer (Guarantor) Anthony P. Tabasso, Esquire (Borrower's Counsel) Ms. Geraldine Segars (Lender) Rudolph J. Di Massa, Jr., Esquire (Lender's Counsel) DM3\433799.1 )?x ? j ? f5 SOMMER L. ROSS DIRECT DIAL: 215.979.1546 E-M41L: slross@duanemorris.com www.duanemorris.com November 10, 2006 VIA CERTIFIED MAIL RETURN RECEIPT AND REGULAR MAIL Mr. Keith L. Plasterer Ms. Jamie Plasterer 36 Kelly Drive Carlisle, PA 17013 Duane orris FIRW..dAFFILUTE OFFICES NEW YORK LONDON LOS ANGELES CHICAGO HOUSTON PHILADELPHIA SAN DIEGO SAN FRANCISCO BOSTON WASHINGTON, DC LAS VEGAS ATLANTA MIAMI PITTSBURGH NEWARK Con WILMINGTON PRINCETON C F t L LAKETAHOE Re: $3,600,000.00 USDA Note dated December 28, 1999 Executed By Carlisle Sports Emporium, Inc. in favor of BLX Commercial Capital L.L.C. and Business Loan Center, LLC (the "3.6 Million USDA Note"); $900,000.00 USDA Note dated December 28, 1999 Executed By Carlisle Sports Emporium, Inc. in favor of BLX Commercial Capital L.L.C. and Business Loan Center, LLC (the "$9,000.00 USDA Note"); and $175,000.00 SBA Note dated December 20, 2000 Executed By Carlisle Sports Emporium, Inc. in favor of BLX Commercial Capital L.L.C. and Business Loan Center, LLC (the "SBA Note") Dear Mr. and Mrs. Plasterer: Please be advised that this office represents BLX Commercial Capital L.L.C., f/k/a Business Commercial Capital Corp. ("BLC Commercial") and Business Loan Center, LLC, f/k/a Business Loan Center, Inc. ("BLC," and together with BLC Commercial and any and all affiliates, collectively referred to herein as "Lender") in connection with the above-referenced Promissory Notes (collectively, the "Notes"). The purpose of this letter is to notify you in your capacity as guarantors ("Guarantors") that Carlisle Sports Emporium, Inc. ("Borrower") is in default of its obligations to Lender under the Notes. Reference is hereby made to the following: (i) the $3.6 Million USDA Note; (ii) the $900,000 USDA Note (and together with the $3.6 Million USDA Note, the "USDA Notes"); (iii) the SBA Note; and (iv) those certain Guarantee Agreements executed by you, Guarantors, in favor of Lender, pursuant to which you each guaranteed and agreed to act as surety for the obligations owed by Borrower to Lender under the Notes and related loan documents. DUANE MORRIS LLP 30 SOUTH 17TH STREET PHILADELPHIA, PA 19103-4196 PHONE: 215.979.1000 FAX: 215.979.1020 DM31416262.2 wane orris November 10, 2006 Page 2 Defaults and events of default have occurred and are continuing under the Notes because, among other things, Borrower has failed to pay amounts when due under the Notes. As a result of said defaults and events of default, Lender hereby declares the entire unpaid principal balance of the USDA Notes and the SBA Note and all accrued, unpaid interest due and owing under the Notes immediately due from Borrower. Pursuant to the terms of the Notes, Borrower is additionally required to reimburse Lender for all costs and expenses (including attorneys' fees and legal expenses) incurred by Lender in the collection of all amounts due under the Notes. As of November 7, 2006, the principal amount of $4,262,837.22, together with $152,875.64 in accrued and unpaid interest, is due and owing under the USDA Notes and the principal amount of $96,091.19, together with $1,650.66 in accrued and unpaid interest, is due and owing under the SBA Note. Additionally, there are late fees and other charges accruing in accordance with the terms of the Notes. Lender hereby demands immediate payment in full of all amounts due and owing under the Notes. Since the amounts due and owing under the Notes increase each day payment is not received, please contact Ms. Geraldine Segars at (646) 723-5222 to obtain the updated payoff amounts prior to making payment. References in this letter to specific breaches and events of default are not intended to be exclusive and do not in any way create a waiver of other defaults and events of default that are not specified herein or that have occurred or might occur under any obligations of Borrower to Lender. Neither the contents of this letter, nor any communications between Lender and Borrower, shall constitute or be deemed to constitute a waiver of any rights or remedies Lender may have under the Notes or related loan documents, or any other obligations of Borrower to Lender and/or applicable law, all of which are expressly reserved preserved hereby. Sincerely, '-'Ie6rhYYrVO? 0), ),?;Lw Sommer L. Ross cc: Carlisle Sports Emporium, Inc. (Borrower) Anthony P. Tabasso, Esquire (Guarantors' Counsel) Ms. Geraldine Segars (Lender) Rudolph J. Di Massa, Jr., Esquire (Lender's Counsel) DM3\416262.2 1 • Ir • rr . M r-3 r- _SE a ? U3 - +q-$ (?- Postage $ F r_q C3 ee Certified ME& E3 O Return Receipt Fee (Endorsement Required) s g ,_ Q r3 Restricted Delivery Fee (Endorsement Required) V 2 O & Fees 006 O Total Postage 0 Senr To ge l T /t I QS ?lLd R? -------- SPS -- r-- Sheer. Apt No.: `2 l., It w -------------- , , , J IJQJ --------------- ¦ Complete items 1, 2, and 3. Also complete hem 4 if Restricted Delivery is desired. ¦ Pririt your name and address on the reverse so that we can return the card to you. e Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: e l T- D? 3 6 1&.114 Cwt. I t.S t,g, P A t -7 U 13 P._ Artic . rar 55S For.,, . _ .. , _ 102595-014 U.S. POSTAL SERVICE CERTIFICATE OF MAILING cra ?? MAY BE USED FOR DOMESTIC AND°IAYEFtA!(TfONAL MAIL, DOES NOT TMASTER W N m CD 0 PROVIDE FOR INSURANCE-POS o LL ,7 Received From: i"COS$, y©- C Z Q> C '6yrt'n t ?-/ 02915 LL d' G ,%} a , 3 i r 13 00 , h? lu oe ! hlk , /?/0 1111 m One piece of ordinary mail addressed to: A #52 A-, ?• a. u ` v U r o = 61 rA / 0 0 ?3 ? kP? 'rerv?- ? 1 •, Aaus?g, 104 s PS Form 3817, January 2001 3 , 'i A. X - 1 (Printed Name) TC. Date of Deliv D. Is delivery address different from item 1? 0 Yes If YES, enter delivery address below: 0 No 3. Service Type p ertified Mail 0 Express Mail 0 Registered eturn Receipt for Merchan ? Insured Mail 0 C.O.D. 4. Restricted Delivery? (Extra Fee) 0 Yes o , C3 OFFICIAL USE. 1' Postage $ # (?, r-1 Certified Fee O Postr O O Return Receipt Fee l Her O (Endorsement Required) C3 Restricted Doliivery Fee ?uD?f (Endorsement Required) C! 'q S r3 Total Postage & Fees$ 3?i 5? -0 FSentTo ---------------- r -.r Y?S.Ai --_ --- -- ---------- R No.; o. ?3 le 1 -N- -T. - -------------- IP+4 ?? f1 f tS L' I -7o I .3 OWN' ¦ Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ¦ Print your name and address on the reverse • so that we can return the card to YOU- a Attach this card to the back of the maiipiece, or on'the front if space permits. 1. Article Addressed to: ,.l ?-7?- P4, 3Lei, (I-? ?I,t?f .? ?rjLj,S1Q f?1-I 1.70 2. Artie rai S Fol.- • - A. Si Agent 0 g ? Address C. Date of DelivE B. Received by (Printed Name) D. Is delivery address different from item 1? [3 Yes ? No if YES, enter delivery address below: 3. Serve Type Certified Mail 0 Express Mail ? Registered O'ge-turn Receipt for Merehan< ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes U.S. POSTAL SERVICE CERTIFICATE OF MAILING NATIONAL MAIL, DOES NOT MAY BE USED FOR INSURANCE-POSTMASTER PROVIDE FOR Received From: ?GnY!?Lh?? ?' 40-SS J ya. rf L v2z/.5z &,o One piece of ordinary mail addressed to: s . Jam.is. ? ?G 3 ? /AL- e/?t /f J /7d / S PS Form JU I f, January zuui 19 102595-014 to M o c o N N Qi c!'?gF r' ? W eFl i ? O VV W V9 U N 00 m O UU-- ?CD W o =? ?1tNft No ? x?,,,.br? ?s uane orris' SOMMER L. ROSS DIRECT DIAL: 215.979.1546 E-MAIL: slross@duanemonis.com www.duanemo-is"In December 29, 2006 L. L VIA CERTIFIED MAIL RETURN RECEIPT AND REGULAR MAIL 7006 0100 0001 7417 0372 Mr. Keith L. Plasterer 7006 0100 0001 7417 0389 Ms. Jamie Plasterer 36 Kelly Drive Carlisle, Pennsylvania 17013 FIRM and AFFILIATE OFFICES NEW YORK LONDON LOS ANGELES CHICAGO HOUSTON PHILADELPHIA SAN DIEGO SAN FRANCISCO BOSTON WASHINGTON, DC LAS VEGAS ATLANTA MIAMI PITTSBURGH NEWARK WILMINGTON PRINCETON LAKETAHOE isle Commercial Executed By Capital ?, L Garland Re: $3,600,000.00 USDA Note dated December Sports Emporium, Inc. in favor of BLX Business Loan Center, LLC (the "$3.6 Million USDA Note"); L.L Carlisle BLX Executed By $900,000.00 USDA Note dated December 28, 199 and Sports Emporium, Inc. in favor of Business Loan Center, LLC (the "$900,000 USDA Note"); and $175,000.00 SBA Note dated December 20, 2000Executed By Carlisle L.L.C and Bu ports Emporium, Inc. in favor of BLX Commercial Capital Loan Center, LLC (the "SSA Note") Dear Mr. and Mrs. Plasterer: Please be advised that this office represents BLX Commercial Capitalter, LLC, fWa Business Commercial Capital Corp. 'Band together Cl with B Business a Commercial and any and all. Business Loan Center, Inc. ( , of this lettertis tthe o n b fY ove-referencedn your affiliates, collectively referred to herein as "Lender") in connection Promissory Notes (collectively, the "Notesp). The purpose capacity as guarantors ("Guarantors") that Carlisle Sports Emporium, Inc. ("Borrower") is in default of certain of its obligations under the Notes. the $3.6 Million USDA Note; (ii) the Reference is hereby made to the following: (i) $900,000 USDA Note (and, together with the $3.6 Million USDA Note, the "USDA Notes"); d by uaran in favor (iii) the SBA Note; and (iv) those certain Guarantee d to act ase surety forethe obl gationssowed by of Lender, pursuant to which you each guarani Borrower to Lender under the Notes and related loan documents. Reference is further made to DUANE MORRIS LLr PHONE: 215.979.1000 FAX: 215.979-1020 30 SOUTH 17TH STREET PHILADELPHIA, PA 19103-4196 nM3\433823.1 CERTIFICATE OF SERVICE I, Sommer L. Ross, Esquire, hereby certify that on this 14th day of June, 2007, I caused a true and correct copy of the foregoing Complaint for Breach of Contract to be served upon the following via hand delivery: Anthony P Tabasso, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers, LLP 260 South Broad Street Philadelphia, PA 19102 Counsel for Defendants UM ryv c Go? Sommer L. Ross, Esquire DM3\523622.1 ti V fJ O b b ^3 N C Cli V ?S O rc? L IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, NO. 07-3514 V. CIVIL ACTION - LAW KEITH L. PLASTERER and JAMIE PLASTERER, 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. ACCEPTANCE OF SERVICE I, Anthony P Tabasso, Esquire, hereby accept service of the Complaint for Breach of Contract on behalf of Defendants Keith L. Plassterer and Jamie Plasterer and certify that I am authorized to do so. Date: 4, 1 is a1 Ant1 ony P basso, Esquire Klehr, Ha son, Harvey, Branzburg & Ellers, L 260 South Broad Street Philadelphia, PA 19102 Counsel for Defendants DM3\523622.1 C* A z ?T cn c,7 NOTICE TO PLEAD TO THE PLAINTIFFS: You are hereby notified to file a written response to enclosed New Matter within twenty ( days of service hereof or a judgmeiftay/be.entered Saiugt you. By: for KLEHR, HARRISON, HARVEY, BRANZBURG & ELLERS LLP / By: Shahan G. Teberian, Esquire/Anthony P. Tabasso, Esquire I.D. Nos. 69407/80851 260 S. Broad Street Philadelphia, PA 19102 Attorneys for Defendants (215) 568-6060 Keith L. Plasterer and Jamie Plasterer IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY OF PENNSYLVANIA BUSINESS LOAN CENTER, L.L.C. f/k/a BUSINESS LOAN CENTER, INC. 1633 Broadway, 19t' Floor New York, NY 10019 Plaintiffs, V. KEITH L. PLASTERER and JAMIE PLASTERER : 36 Kelly Drive Carlisle, PA 17013 Defendants. No. 07-3514 Civil Term CIVIL ACTION - LAW ANSWER AND NEW MATTER Defendants, Keith L. Plasterer and Jamie Plasterer, by and through their undersigned counsel, hereby answer the Plaintiffs' Complaint for Breach of Contract as follows: 1. Admitted. 2. Denied. After reasonable investigation, the Defendants are without sufficient information to form a belief as to the truth or falsity of the allegations contained in this paragraph PHILI 749470-1 v of the Complaint, and therefore deny same. Strict proof thereof is demanded at trial, if relevant. By way of further answer, but not in derogation of the foregoing, the allegations contained in this paragraph of the Complaint refer to a document, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. Finally, the allegations of this paragraph of the Complaint refer to a document, the terms and legal effects of which speak for themselves. The Plaintiffs' characterization of those terms and those legal effects are denied. 3. Denied. After reasonable investigation, the Defendants are without sufficient information to form a belief as to the truth or falsity of the allegations contained in this paragraph of the Complaint, and therefore deny same. Strict proof thereof is demanded at trial, if relevant. By way of further answer, but not in derogation of the foregoing, the allegations contained in this paragraph of the Complaint constitute legal conclusions to which no response is required and are, therefore, deemed denied. 4. Admitted. 5. Denied. The allegations contained in paragraph 6 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. 6. Denied. The allegations contained in paragraph 7 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. 7. Admitted. 8. Admitted. 9. Denied. The allegations contained in paragraph 9 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 10. Denied. The allegations contained in paragraph 10 constitute conclusions of law PHILI 749470-1 to which no response is required, and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, the allegations contained in paragraph 10 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 11. Denied. The allegations contained in paragraph 11 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, the allegations contained in paragraph 11 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 12. Denied. The allegations contained in paragraph 12 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 13. Denied. The allegations contained in paragraph 13 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 14. Denied. The allegations contained in paragraph 14 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 15. Denied. The allegations contained in paragraph 15 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. 16. Denied. The allegations contained in paragraph 16 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. PHIL1 749470-1 17. Admitted in part, denied in part. It is admitted that the Defendants have made various payments to the Plaintiff. The remaining allegations contained in paragraph 17 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. 18. Denied. The allegations contained in paragraph 18 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 19. Denied. To the extent that the allegations contained in paragraph 19 imply that Defendants failed to tender sufficient funds for each payment they made to the Plaintiff, such allegations are denied. 20. Denied. The allegations contained in paragraph 20 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. 21. Denied. The allegations contained in paragraph 21 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. 22. Denied. The allegations contained in paragraph 22 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, Defendants have made several payments to the Plaintiff. 23. Denied. After reasonable investigation, the Defendants are without sufficient information to form a belief as to the truth or falsity of the allegations contained in this paragraph of the Complaint, and therefore deny same. Strict proof thereof is demanded at trial, if relevant. By way of further answer, but not in derogation of the foregoing, the allegations contained in this paragraph of the Complaint refer to a document, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. Finally, the allegations of this paragraph of the PHILI 749470-1 Complaint refer to a document, the terms and legal effects of which speak for themselves. The Plaintiffs' characterization of those terms and those legal effects are denied. COUNTI 24. Defendants incorporate their answers to the foregoing paragraphs by reference, as if fully set forth herein. 25. Denied. The allegations contained in paragraph 25 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. 26. Denied. The allegations contained in paragraph 26 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, the allegations contained in paragraph 26 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 27. Denied. The allegations contained in paragraph 27 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. By. way of further answer, but not in derogation of the foregoing, the allegations contained in paragraph 27 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 28. Denied. The allegations contained in paragraph 28 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 29. Denied. The allegations contained in paragraph 29 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, Defendants have made several payments to the Plaintiff. PHILI 749470-1 WHEREFORE, Keith L. Plasterer respectfully requests entry of judgment in his favor and against the Plaintiff on Count I of the Plaintiffs' Complaint. COUNT II 30. Defendants incorporate their answers to the foregoing paragraphs by reference, as if fully set forth herein. 31. Denied. The allegations contained in paragraph 31 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. 32. Denied. The allegations contained in paragraph 32 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. By way of fin-ther answer, but not in derogation of the foregoing, the allegations contained in paragraph 32 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 33. Denied. The allegations contained in paragraph 33 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, the allegations contained in paragraph 33 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 34. Denied. The allegations contained in paragraph 34 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 35. Denied. The allegations contained in paragraph 35 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, Defendants have made several payments to the Plaintiff. PHILI 749470-1 WHEREFORE, Jamie Plasterer respectfully request entry of judgment in her favor and against the Plaintiff on Count II of the Plaintiffs' Complaint. NEW MATTER 36. Defendants incorporate their responses to the foregoing paragraphs by reference, as if fully set forth. 37. Plaintiff's claims are barred by the doctrine of accord and satisfaction. 38. Plaintiff's claims are barred under the doctrine of estoppel. 39. Plaintiff s claims are barred by failure of consideration. 40. Plaintiffs claims are barred by a failure of a condition precedent. 41. Plaintiff s claims are barred under the doctrine of latches. 42. Plaintiff s claims are barred under the doctrine of payment. 43. Plaintiff s claims are barred under the doctrine of release. 44. Plaintiff s claims are barred under the applicable statute of limitations. 45. Plaintiff s claims are barred under the statute of frauds. 46. Plaintiff s claims are barred under the doctrine of waiver. 47. Plaintiff s claims are barred under the terms of a written Forbearance Agreement. PHILI 749470-1 WHEREFORE, Defendants respectfully request that this Court enter judgment in their favor and against Plaintiff on Plaintiffs Complaint. KLEHR, HARRISON, HARVEY, BRANZBURG & ELLERS LLP Date: a By: Shahan G. Teberi Esquire Anthony P. Tab so, Esquire 260 South Bro Street Philadelphia, PA 19102 Tel: 215-568-6060 Fax: 215-568-6603 Attorneys for Defendants, Keith L. Plasterer and Jamie Plasterer PHILI 749470.1 VERIFICATION I, Anthony P. Tabasso, state that I am the attorney for the defendants, that I am authorized to make this verification on its behalf, and, further, state that the allegations contained within the foregoing pleading are true and correct to the best of my knowledge. I am making this. verification instead of the defendants because they are unavailable to execute same within the time necessary. All other factual pleadings are based upon documents already of record in the Cumberland County Court of Common Pleas. I understand that these statements are subject to the penalties set forth in 18 P.S. §4904 for unworn falsifications made to authorities. PHILI 749470-1 'XLEHR, HARRISON, HARVEY, BRANZBURG & ELLERS LLP By: Shahan G. Teberian, Esquire/Anthony P. Tabasso, Esquire I.D. Nos. 69407/80851 260 S. Broad Street Philadelphia, PA 19102 Attorneys for Defendants (215) 568-6060 Keith L. Plasterer and Jamie Plasterer IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY OF PENNSYLVANIA BLX COMMERCIAL CAPITAL, LLC FWa BLC COMMERCIAL CAPITAL CORP., : 1633 Broadway, 19`h Floor New York, NY 10019 and BUSINESS LOAN CENTER, L.L.C. f/k/a BUSINESS LOAN CENTER, INC. 1633 Broadway, 19`h Floor New York, NY 10019 Plaintiffs, V. KEITH L. PLASTERER and JAMIE PLASTERER : 36 Kelly Drive Carlisle, PA 17013 Defendants. No. 07-2320 Civil Term CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Anthony P. Tabasso, Esquire, hereby certify that I caused a true and correct copy of the foregoing Answer and New Matter to be served upon the following counsel of record via first class mail, postage pre-paid: Dated: 012116 Sommer L. Ross, Esquire Duane Morris, LLP 30 South 17`h Street Philadelphia, PA 191V P. Toasso, Esquire PHILI 749470-1 Un ^C i_ fli r._. G.? -r t 3 i' I._ a Y DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, v. Plaintiff, NO. 07-3514 CIVIL ACTION - LAW KEITH L. PLASTERER and JAMIE PLASTERER, 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. PLAINTIFF'S ANSWER TO DEFENDANTS' NEW MATTER Plaintiff, Business Loan Center, LLC ("Business Loan Center"), by and through its attorneys, Duane Morris LLP, herby files this Answer to the New Matter filed by Keith L. Plasterer ("Keith Plasterer") and Jamie Plasterer ("Jamie Plasterer" and together with Keith Plasterer, the "Defendants"), and, in support hereof, states as follows: 37. - 47. Denied. The allegations contained in Paragraphs 37 through 47 constitute conclusions of law to which no response is required. By way of further answer, the Defendants fail to offer any facts to support the defense to which they claim to be entitled. Strict proof thereof is demanded at trial. DM3\560796.1 WHEREFORE, Business Loan Center, LLC, a Delaware limited liability company, hereby demands that: (i) judgment in the amount of $94,334.62 be entered against Defendants and in favor of Business Loan Center; (ii) judgment for a yet to be determined amount, representing Business Loan Center's costs, legal fees, and interest until the date of payment, be entered in favor of Business Loan Center and against the Defendants; and (iii) any such other and further relief as this Court may deem proper. Respectfully submitted, Dated: September 10, 2007 DM3\560796.1 DUANE MORRIS LLP By: mzq_? Rudolph J. Di Massa, Jr., Esquire PA Bar Id. No. 35492 Sommer L. Ross, Esquire PA Bar Id. No. 98451 30 South 17th Street Philadelphia, PA 19103 215.979.1000 Attorney for Plaintiff BUSINESS LOAN CENTER, LLC 2 VERIFICATION I, Geraldine Segars, hereby state that I am Vice President of BLX Commercial Capital, and verify that the statements made in the foregoing Answer to Defendants' New Matter are true and correct to the best of my knowledge, information and belief. As Vice President of BLX Commercial Capital, LLC, I am authorized to make this Verification on behalf of Plaintiff Business Loan Center, LLC. I understand that the statements made therein are made subject to penalties of 18 Pa. C.S. § 4904 relating to unworn falsification to authorities. BLX COMMERCIAL CAPITAL, LLC Date: September 2007 By: , Geraldine Segars Vice President DM3\560796.1 a_..l CERTIFICATE OF SERVICE I, Sommer L. Ross, Esquire, hereby certify that on this 10th day of September, 2007, I caused a true and correct copy of the foregoing Answer to New Matter to be served upon the following individual via hand delivery: Anthony P Tabasso, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers, LLP 260 South Broad Street Philadelphia, PA 19102 Counsel for Defendants i? Sommer L. Ross, squire DM3\560796.1 r 'Q DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff, Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, NO. 07-3514 V. KEITH L. PLASTERER and JAMIE PLASTERER, 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. : CIVIL ACTION - LAW PLAINTIFF'S MOTION TO COMPEL ANSWERS TO (I) PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND (II) PLAINTIFF'S FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANTS KEITH L. PLASTERER AND JAMIE PLASTERER Plaintiff, BLX Commercial Capital, LLC ("BLX"), by and through its attorneys, Duane Morris LLP, hereby move to compel the defendants, Keith L. Plasterer and Jamie Plasterer (the "Defendant"), to answer the following discovery: (i) Plaintiff s First Request for Production of Documents Directed to Defendants dated July 8, 2008 (the " First Request for Production of Documents")and (ii) Plaintiffs First Set of Interrogatories Directed to Defendants dated July 8, DM31851627.1 2008 (the "First Set of Interrogatories" and, together with the First Request for Production of Documents, the "Discovery Requests"). In support of this motion, Plaintiff avers as follows: On July 8, 2008, Plaintiff served Defendants with the Discovery Requests.' A true and correct copy of the correspondence enclosing the Discovery Requests is attached hereto as Exhibit "A" and the Discovery Requests themselves are attached hereto as Exhibit "B." 2. Pursuant to Rule 4006 and Rule 4009 of the Pennsylvania Rules of Civil Procedure, Defendants had thirty (30) days to respond to the Discovery Requests. Accordingly, Defendants had until August 7, 2008 to respond to the Discovery Requests. 3. The parties have not discussed or agreed to an informal extension of time for Defendants to respond to the Discovery Requests. 4. On or about August 22, 2008, as part of its good faith effort to obviate the need for the present motion, counsel for Plaintiff notified counsel for Defendants by letter (the "August 22"d Letter") that Defendants were overdue in responding to the Discovery Requests. On or about September 10, 2008, as part of its good faith effort to obviate the need for the present motion, counsel for Plaintiff again notified counsel for Defendants by letter (the "September 10th Letter") that Defendants were overdue in responding to the Discovery Requests. 6. Since the August 22"d Letter and September 10th Letter, and despite Plaintiff's repeated good faith efforts to obtain responses to the Discovery Requests without Court intervention, Defendants have not responded to the Discovery Requests. 7. Due to the fact Defendants have failed to respond to the Discovery Requests, the Plaintiff has been materially prejudiced in its ability to move this case forward and/or resolve the ' On July 8, 2008, Plaintiff also served Defendant with Plaintiff's Request for Admissions Directed To Defendants. On or about August 11, 2008, Defendant responded to this discovery request. -2- DM3\851627.1 Y , to instant action. Defendants' failure to respond to the Discovery Request is in violation of the Pennsylvania Rules of Civil Procedure. 9. The trial court is responsible for "[overseeing] discovery between the parties and therefore it is within that court's discretion to determine the appropriate measure necessary to insure adequate and prompt discovering of materials allowed by the Rules of Civil Procedure." Hutchison v. Luddy, 606 A.2d 905, 908 (Pa. Super. 1992) (citation and internal quotations omitted). 10. Pursuant to Rule 4019 of the Pennsylvania Rules of Civil Procedure, this Court may, on motion, make an appropriate order if "a party fails to serve answers, sufficient answers or objections to written interrogatories under Rule 4005" or a party "in response to a request for production or inspection make under Rule 4009, fails to respond that inspection may be permitted as requested or fails to permit inspection as requested." Pa. R. Civ. P. No. 4019(a)(1)(ii) and (vii). 11. Further, Rule 4019(a)(2) provides that failure to serve answers, sufficient answers or objections to written interrogatories or to respond to a request for production of documents "may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has filed an appropriate objection or has applied for a protective order." 12. Defendants have failed to answer and provide responsive documents to Plaintiff s Discovery Requests, which were served 120 days ago. 13. Defendants' failure to respond to the Discovery Requests is in violation of Pennsylvania Rules of Civil Procedure 4006 and 4009.12. 14. Defendants have failed to serve any timely objections to the Discovery Requests; -3- DM3`,851627.1 I . , J neither have Defendants moved for a protective order. As a result, any objections which Defendants might have filed are waived. See Nat'l R.R. Passenger Corp. v. Fowler, 788 A.2d 1053, 1059 (Pa. Commw. Ct. 2001) (citing Mountain View Condominium Owners' Ass'n v. Mountain View Assoc., 9 Pa. D. & C. 4th 81, 86 (CP. Chester 1991)) (finding that an objection to discovery under Pa. R Civ. P. 4006(a)(2) or an application for protective order under Pa. R. Civ. P. 4012 must be filed before the party seeking discovery has filed a motion for sanctions or other motion seeking to enforce compliance with the discovery request, or else the objection or the grounds upon which the protective order is sought will be waived). 15. Accordingly, Plaintiff respectfully requests that this Court compel Defendants to fully and completely answer all of Plaintiff's Discovery Requests within ten (10) days of the entry of an order regarding this matter. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter the attached Order: (i) granting this Motion to Compel; (ii) directing Defendants to: (a) respond to and produce any and all documents responsive to the First Request for Production of Documents; and (b) respond to the First Set of Interrogatories within ten (10) days; and (iii) grant any such other relief this Court deems just and appropriate. Respectfully submitted, DUANE MORRIS LLP Dated: November 6, 2008 By: '4?L, Rudolph J. DiMassa, Jr. Esquire Sommer L. Ross, Esquire 30 South 17th Street Philadelphia, PA 19103-4196 215.979.1000 (telephone) 215.979.1020 (facsimile) Attorneys for Plaintiffs/Movants -4- DM3\851627.1 i i . i w ? ? s wane orrise SOMMER L. ROSS DIRECT DIAL: 215.979.1546 E-MAIL: slross(,duanemorris.com www.duanemorris.com July 8, 2008 FILE COPY Anthony P. Tabasso, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers LLP 260 South Broad Street Philadelphia, Pennsylvania 10102-5003 FIRM and AFFIEJATE OFFICE'S NEW YORK LONDON CHICAGO HOUSTON PHILADELPHIA SAN DIEGO SAN FRANCISCO BOSTON WASHINGTON, DC ATLANTA MIAMI PITTSBURGH NEWARK ALLENTOWN WILMINGTON HARRISBURG PRINCETON WESTCHESTER Re: Business Loan Center, LLC v. Keith L. Plasterer and Jamie Plasterer; Cumberland County Court of Common Pleas; Case No. 07-3514 Dear Anthony: With regard to the above-referenced case, enclosed please find (i) Plaintiffs First Set of Interrogatories Directed To Defendant, (ii) Plaintiff's First Request for Production of Documents Directed to Defendant and (iii) Plaintiff s First Request for Admissions Directed to Defendant. In accordance with the applicable Pennsylvania Rules of Civil Procedure, the Defendant has thirty (30) days within which to respond. Should you have any questions regarding this request, please do not hesitate to contact me. Sincerely, _"10'VI M11n, ) • Rl-J Sommer L. Ross SLR/kc Enclosures cc: Ms. Geraldine Segars (w/ enclosures via e-mail) Rudolph J. Di Massa, Esquire (w/o enclosures) DUANE MORRIS LLP ONE LIBERTY PLACE PHILADELPHIA, PA 19103-7396 PHONE: 215.979.1000 FAX: 215.979.1020 DM31760710.1 a I . i DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff, Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, : V. KEITH L. PLASTERER and JAMIE PLASTERER, 36 Kelly Drive Carlisle, Pennsylvania 17013, : Defendants. NO. 07-3514 CIVIL ACTION - LAW PLAINTIFF'S FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANTS Plaintiff, Business Loan Center, LLC ("BLC"), by and through its attorneys, Duane Morris LLP, hereby serves upon Defendants, pursuant to Pa. R. Civ. P. 4001 et seq., this First Set of Interrogatories. These interrogatories (each an "Interrogatory" and collectively, the "Interrogatories") are addressed to each Defendant, both parties to this action, and their answers shall be based upon information known to each or in their possession, the possession of their attorneys or other representatives acting on their behalf, whether in preparation for litigation or otherwise. DM3\744057.2 I 7 . Each of these Interrogatories must be answered fully and completely by each Defendant in writing and must be signed by each Defendant under oath before a Notary Public, or otherwise properly verified. Pennsylvania Rule of Civil Procedure 4006 requires filing and service of Defendants' answers on Plaintiffs counsel within thirty (30) days after service of these Interrogatories. Supplements to the Defendants' answers shall be filed in accordance with Pennsylvania Rule of Civil Procedure 4007.4. Interrogatories that call for the production of documents should be considered requests for production of documents pursuant to Pennsylvania Rule of Civil Procedure 4009.11 et seq. Space has been provided below each Interrogatory for the Defendants' answers. If additional space is required for their answers, either use the reverse side of said paper or attach an additional sheet of paper appropriately marking said Interrogatory. DEFINITIONS 1. "Plaintiff' or "BLC" shall mean Business Loan Center, LLC, its representatives, agents, and all others acting for and/or on its behalf, unless the context indicates otherwise. 2. "BLC Inc." shall mean Business Loan Center Inc., its representatives, agents, and all others acting for and/or on its behalf, unless the context indicates otherwise. 3. "Keith Plasterer" shall mean Keith L. Plasterer, an adult individual with an address of 36 Kelly Drive, Carlisle, PA 17013. 4. "Jamie Plasterer" shall mean Jamie Plasterer, an adult individual with an address of 36 Kelly Drive, Carlisle, PA 17013. 5. "Defendants" shall mean Keith Plasterer and Jamie Plasterer. 6. "Carlisle" shall mean Carlisle Sports Emporium, Inc., its representatives, agents, and all others acting for and/or on its behalf, unless the context indicates otherwise. -2- DM3\7440572 • ? . i 7. "Loan" shall mean that certain transaction dated December 20, 2000, in which BLC Inc. loaned Carlisle the principal sum of $175,000. 8. "Note" shall refer to that certain promissory note dated December 20, 2000 executed and delivered to BLC Inc. by Carlisle in the amount of $175,000. 9. "$175,000 Guaranty" shall mean that certain guaranty executed by Defendants in favor of BLC Inc. on December 20, 2000, pursuant to which the Defendants guaranteed Carlisle's obligations under the Note. 10. "November Default Letter" shall mean that certain letter dated November 10, 2006 sent by Plaintiff's counsel to Carlisle notifying Carlisle of certain defaults and that it was accelerating all amounts then due and owing under the Note. 11. "December Default Letter" shall mean that certain letter dated December 29, 2006 sent by Plaintiff's counsel to Carlisle notifying Carlisle of certain defaults and that it was accelerating all amounts then due and owing under the Note. 12. "November Guarantor Demand Letter" shall mean that certain letter dated November 10, 2006 sent by Plaintiff's counsel to Defendants notifying Defendants that Carlisle was in default of its obligations due under the Note and demanding payment from Defendants for all amounts due and owing under the Note. 13. "December Guarantor Demand Letter" shall mean that certain letter dated December 29, 2006 sent by Plaintiff's counsel to Defendants notifying Defendants that Carlisle was in default of its obligations due under the Note and demanding payment from Defendants for all amounts due and owing under the Note. 14. "Document" or "documents" shall mean all written, typewritten, handwritten, recorded or printed matter of any kind, including the originals and all identical and/or non- identical copies thereof, including any non-identical copies different from the originals by reason -3- DM3\744057.2 I 1 . . of any notation made on such copies or otherwise, including without limitation, minutes and/or other records of meetings, agendas, bills, contracts, leases, assignments, agreements, summaries of negotiations, account books, orders, invoices, statements, bills, checks, accounting records, vouchers, summaries, diaries, forecasts, studies, drawings, graphs, charts, reports and/or summaries of investigations or reports, strategic or business plans or summaries, brochures, pamphlets, publications, circulars, advertisements, trade letters, press releases, statements of policy, correspondence, letters, telegrams, interoffice and intra-office communications, offers, notations of any sort of conversations, appointment books, day planners, calendars or other appointment or activity schedule, teletypes, telefax, thermafax, confirmations, computer files, printouts of computer files, computer data (including information or programs stored in a computer, whether or not ever printed out or displayed); all drafts, alterations, modifications, changes and amendments of any of the foregoing; all graphic or manual records or representations of any kind, including without limitation, photographs, microfiche, microfilm, video tape, records, motion pictures, and electronic, mechanical or electric records or representations of any kind, including without limitation, tapes, cassettes, disks, magnetic cards, and recordings; and all other similar material which is in your possession, custody or control. Without limiting the term "control" as used in the preceding sentence, a document shall be deemed to be within your control, regardless of its physical location, if you have the right to secure the document or a copy thereof from another person or entity, either public or private, including, but not limited to, your legal counsel, having actual possession thereof. 15. "All documents" shall mean every document, whether an original or copy, as above defined, known to you, and every such document or writing which you can locate or discover by reasonably diligent efforts. -4- DM3\7440572 U I • I 16. "Communication," "discussion" or "statement" means any manner or means of disclosure, transfer, or exchange, and any disclosure, transfer or exchange of information whether orally or by document, or whether face-to-face, by telephone, e-mail, mail, personal delivery or otherwise. 17. "Oral Statement" shall mean any utterance spoken or heard, whether in person, by telephone, or otherwise. 18. "Identify" or "identity," when used in reference to an individual person, shall mean to state his or her full name, present or last known business address and residential address, business and residential telephone number and the name of such person's present or last known employer, place of employment and position during the relevant time period. 19. "Identify" or "identity," when used in reference to an entity, shall mean to state its full and complete name and the present or last known address of its headquarters or principal place of business. 20. W "Identify," when used in reference to a document, shall mean to state the nature of the document (e.g., letter, memorandum, etc.); the date, if any, appearing on the document; the identity of the person(s) who wrote, signed, dictated or otherwise participated in the preparation of the document; the identity of all persons who received copies of the document; and the present location and custodian of the document. 21. "Identify," when used in reference to a photograph, shall mean to describe the subject of the photograph; the date the photograph was taken; the identity of the person who took the photograph and the person(s) to whom the photograph was disseminated; and the identity of the present custodian of the photograph. 22. "Refer," "Relate," "Reflect," "Regard," "Refer to," "Relate to," "Relating to," and "Concerning" (or forms thereof) shall mean directly or indirectly, in whole or in part, referring -5- DM3\744057.2 to, relating to, connected with, commenting on, relevant to, impinging or impacting upon, affecting, responding to, showing, describing, representing, supporting, contradicting, stating, mentioning, showing, evaluating, recording, noting, analyzing, reflecting or constituting. 23. "Complaint" shall mean the Complaint for Breach of Contract filed by Plaintiff in the above-captioned action on June 15, 2007. 24. "Answer" shall mean the Defendants' answer to the Complaint filed by Defendants in the above-captioned action on or about August 31, 2007. 25. "Answer to New Matter" shall mean Plaintiff's answer to the New Matter contained within the Answer, which was filed on September 11, 2007. 26. The term "you" or "your" shall mean the Defendants, their representatives, agents, and all others acting for and/or on their behalf, unless the context indicates otherwise. 27. The term "contact" or "contacted" shall mean any communication whether oral, written or otherwise. 28. The term "and" shall mean and/or. 29. The term "or" shall mean and/or. 30. The term "each" shall mean each and every. 31. The term "any" shall mean any and all. INSTRUCTIONS 1. If you claim any form of privilege, whether based on statute or otherwise, as a ground for not answering any Interrogatory, state the nature of the privilege claimed (e.g., attorney-client, work product or other) and set forth all facts upon which the claim of privilege is based. 2. If any document responsive to any Interrogatory has been destroyed, identify any and all persons who participated in, or were involved in, the decision to destroy such document, -6- DM3\744057.2 . I . any document retention or destruction policy under which such document was destroyed and any and all persons who participated in, or were involved in, the formulation of any such policy, the reason for the destruction of such document, and the date (approximate, if the precise date is not known) of the destruction of such document. 3. The fact that your investigation is continuing, or that discovery is not complete, should not be used as an excuse for failing to provide answers that are as full and complete as possible as of the date of answer. The omission of any name, fact or other item of information from the answers shall be deemed a representation that such name, fact or item was not known to you or anyone acting on your behalf at the time of service of the answers. 4. Whenever a date, amount or other computation or figure is requested, the exact date, amount or other computation or figure is to be given unless it is not known; and in that case, the approximate date, amount, or other computation or figure should be given or the best estimate thereof, and the answer should state that the date, amount, or other computation provided is an estimate or approximation. 5. Where facts set forth in your answers are supplied upon information and belief rather than based on your direct personal knowledge, you should so state and specifically identify each source of such information and belief. Should you be unable to answer any Interrogatory or portion thereof by either actual knowledge or upon information and belief, you should so state. 6. Whenever an Interrogatory calls for information which is not available to you in the form requested, but is available in another form or can be obtained at least in part from other sources in your possession, you should so state and either supply the information requested in the form in which it is available or supply the sources from which the information can be obtained. -7- DM31744057.2 . r . I 7. Whenever an Interrogatory requests that you "state," "state the facts" or "describe," you should provide all information relating to the subject matter of such Interrogatory, including: a specification of dates of all events which relate to such subject matter; the identity of all oral communications and meetings relating to the subject matter; the identity of all persons with knowledge of the facts that relate to such subject matter; and the identity of all documents which refer to, relate to or contain information concerning the subject matter. If there were any oral or written communications concerning the subject matter of the Interrogatory, include the identity of the. participants to such communications and set forth the substance of such communications. 8. Except for reference to defined or designated terms, each discovery request shall be construed independently and not by reference to any other Interrogatory herein for purposes of limitation. 9. In answering these Interrogatories, the Defendants shall furnish all information available at the time of answering, and shall supplement their answers in accordance with the Pennsylvania Rules of Civil Procedure and Local Rules of Court. INTERROGATORIES INTERROGATORY NO. 1: Identify each person who participated in preparing your responses to these Interrogatories, identifying the particular Interrogatory(ies) with which the person assisted. Response: -8- DM31744057.2 ? J . I INTERROGATORY NO. 2: .. Identify, with specificity, any and all documents that you used or relied upon in preparing your responses to these Interrogatories. Response: INTERROGATORY NO. 3: Identify any and all persons with any knowledge of any facts contained or alleged in the Complaint, Answer, or in the answers to these Interrogatories. Response: INTERROGATORY NO. 4: With respect to each person identified in your answer to Interrogatory No. 3, state each fact to which such person has knowledge and the current address and telephone number of such person. Response: -9- DM3\744057.2 INTERROGATORY NO. 5: Identify each and every payment made to Plaintiff and/or BLC Inc. account of the Note since the inception of the Loan and with respect to each payment, state the date, amount, whether such payment was made by check, wire transfer or some other form of payment, to whom it was payable and by whom it was paid. Response: INTERROGATORY NO. 6: State with specificity the balance you believe is due and owing under the Note as of the date hereof (or as of the date of your response hereto) and provide a detailed explanation of how you arrived at that figure. Response: INTERROGATORY NO. 7: State all facts that support each defense set forth in the Answer's New Matter and identify any and all documents that support each defense. Response: -10- DM3\744057.2 INTERROGATORY NO. 8: State all facts which support any and all denials of the allegations contained in the Complaint which were set forth in the Answer. Response: INTERROGATORY NO. 9: If you intend to rely upon any documents or other tangible things to support a position that you have taken or intend to take in the litigation involving the Complaint, provide a brief description, by category, and the location of all such documents and other tangible things, and identify all persons having custody and/or control of them. Response: INTERROGATORY NO. 10: Identify with specificity any and all documents that you intend to use and/or introduce into evidence at trial. Response: -II- DM3\7440572 I I . ' INTERROGATORY NO. 11: Identify all persons who you may call as a witness at trial and for each person, describe with particularity the facts to which such witness is expected to testify. Response: INTERROGATORY NO. 12: If you intend to call an expert witness at trial, state: (a) The name and address of each such expert witness; (b) The subject matter as to which each such expert witness is expected to testify; (c) The substance of the facts and opinions to which each expert is expected to testify and a summary of the grounds for each opinion and/or attach a copy of each expert's report to your Answers to Interrogatories; (d) The educational background, field of expertise, professional experience of each of the expert witnesses identified in your Answers above. Response: INTERROGATORY NO. 13: If your answer to any Request for Admission set forth 'in Plaintiff's Request for Admissions Directed to Defendants is not an affirmative admission, i. e., "Admit," set forth all facts upon which you rely for your response to or denial of each such Request for Admission. Response: -12- DM3\744057.2 INTERROGATORY NO. 14: If after reviewing the exhibits attached to the Complaint you dispute that Plaintiff is the holder of the Note, state, in detail and with particularity, why. Response: INTERROGATORY NO. 15: Identify any and all documents that support you answer to Interrogatory No. 14. Response: INTERROGATORY NO. 16: Describe, with specificity, Keith Plasterer's relationship to Carlisle. Response: -13 - DM3\744057.2 INTERROGATORY NO. 17: Describe, with specificity, Jamie Plasterer's relationship to Carlisle. Response: INTERROGATORY NO. 18 Identify each of the Defendants open bank accounts, the name and location of the banking institute where each account is maintained and in whose name(s) each account is held. Response: INTERROGATORY NO. 19 If either of the Defendants have closed any bank accounts since the inception of the Loan, identify each account, the name and location of the banking institute where each account was maintained, and in whose name(s) the account was held. Response: -14- DM3\744057.2 INTERROGATORY NO. 20 _ Identify any and all persons who provide or have provided accounting services for and/or to the Defendants since the inception of the Loan. Response: INTERROGATORY NO. 21 Identify all persons affiliated with Plaintiff and/or BLC Inc. with whom you have been in contact with regarding the Loan and/or Note since the inception of the Loan. Response: INTERROGATORY NO. 22 With respect to Interrogatory No. 21, state the reason for the contact, who initiated the contact and whether such contact was written or verbal. Response: -15- DM3\744057.2 I . 1 Dated: July 8, 2008 DUANE MORRIS LLP By: udolph J. Di Massa, Jr., Esquire PA Attorney Identification No. 35492 Sommer L. Ross, Esquire PA Attorney Identification No. 49851 30 South 17th Street Philadelphia, PA 19103 215.979.1000 Attorneys for Plaintiff Business Loan Center, LLC -16- DM3\744057.2 I i . A CERTIFICATE OF SERVICE I, Sommer L. Ross, Esquire, hereby certify that on this 8th day of July, 2008, I caused a true and correct copy of Plaintiff's First Set of Interrogatories Directed to Defendants to be served upon the following individual via first class mail, postage pre-paid: Anthony P Tabasso, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers, LLP 260 South Broad Street Philadelphia, PA 19102 Counsel for Defendants July 8, 2008 _i1UMnr'U ? ?Sommer L. Ross, Esquire DM3\744057.2 DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. - PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff, Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, V. NO. 07-3514 CIVIL ACTION - LAW KEITH L. PLASTERER and JAMIE PLASTERER, 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANTS Plaintiff, Business Loan Center, LLC (`BLC"), by and through its attorneys, Duane Morris LLP, hereby serves upon Defendants, pursuant to Pa. R. Civ. P. 4001 et seq., this First Request for Production of Documents (each a "Request" and collectively, the "Requests"). Pursuant to Pa. R. Civ. P. 4009.12, the responsive documents should be made available for inspection and copying within thirty (30) days of service hereof, at the office of Duane Morris LLP, 30 South 17th Street, Philadelphia, PA 19103, or at such other location as to which the parties may otherwise mutually agree. DM3\744057.2 DEFIMTIONS 1. "Plaintiff' or "BLC" shall mean Business Loan Center, LLC, its representatives, agents, and all others acting for and/or on its behalf, unless the context indicates otherwise. 2. "BLC Inc." shall mean Business Loan Center Inc., its representatives, agents, and all others acting for and/or on its behalf, unless the context indicates otherwise. 3. "Keith Plasterer" shall mean Keith L. Plasterer, an adult individual with an address of 36 Kelly Drive, Carlisle, PA 17013. 4. "Jamie Plasterer" shall mean Jamie Plasterer, an adult individual with an address of 36 Kelly Drive, Carlisle, PA 17013. 5. "Defendants" shall mean Keith Plasterer and Jamie Plasterer. 6. "Carlisle" shall mean Carlisle Sports Emporium, Inc., its representatives, agents, and all others acting for and/or on its behalf, unless the context indicates otherwise. 7. "Loan" shall mean that certain transaction dated December 20, 2000, in which BLC Inc. loaned Carlisle the principal sum of $175,000. 8. "Note" shall refer to that certain promissory note dated December 20, 2000 executed and delivered to BLC Inc. by Carlisle in the amount of $175,000. 9. "$175,000 Guaranty" shall mean that certain guaranty executed by Defendants in favor of BLC Inc. on December 20, 2000, pursuant to which the Defendants guaranteed Carlisle's obligations under the Note. 10. "November Default Letter" shall mean that certain letter dated November 10, 2006 sent by Plaintiff's counsel to Carlisle notifying Carlisle of certain defaults and that it was accelerating all amounts then due and owing under the Note. DM3\744057.2 2 . I { l 11. "December Default Letter" shall mean that certain letter dated December 29, 2006 sent by Plaintiffs counsel to Carlisle notifying Carlisle of certain defaults and that it was accelerating all amounts then due and owing under the Note. 12. "November Guarantor Demand Letter" shall mean that certain letter dated November 10, 2006 sent by Plaintiff's counsel to Defendants notifying Defendants that Carlisle was in default of its obligations due under the Note and demanding payment from Defendants for all amounts due and owing under the Note. 13. "December Guarantor Demand Letter" shall mean that certain letter dated December 29, 2006 sent by Plaintiff's counsel to Defendants notifying Defendants that Carlisle was in default of its obligations due under the Note and demanding payment from Defendants for all amounts due and owing under the Note. 14. "Document" or "documents" shall mean all written, typewritten, handwritten, recorded or printed matter of any kind, including the originals and all identical and/or non- identical copies thereof, including any non-identical copies different from the originals by reason of any notation made on such copies or otherwise, including without limitation, minutes and/or other records of meetings, agendas, bills, contracts, leases, assignments, agreements, summaries of negotiations, account books, orders, invoices, statements, bills, checks, accounting records, vouchers, summaries, diaries, forecasts, studies, drawings, graphs, charts, reports and/or summaries of investigations or reports, strategic or business plans or summaries, brochures, pamphlets, publications, circulars, advertisements, trade letters, press releases, statements of policy, correspondence, letters, telegrams, interoffice and intra-office communications, offers, notations of any sort of conversations, appointment books, day planners, calendars or other appointment or activity schedule, teletypes, telefax, thermafax, confirmations, computer files, printouts of computer files, computer data (including information or programs stored in a DM3\744057.2 3 computer, whether or not ever printed out or displayed); all drafts, alterations, modifications, changes and amendments of any of the foregoing; all graphic or manual records or representations of any kind, including without limitation, photographs, microfiche, microfilm, video tape, records, motion pictures, and electronic, mechanical or electric records or representations of any kind, including without limitation, tapes, cassettes, disks, magnetic cards, and recordings; and all other similar material which is in your possession, custody or control. Without limiting the term "control" as used in the preceding sentence, a document shall be deemed to be within your control, regardless of its physical location, if you have the right to secure the document or a copy thereof from another person or entity, either public or private, including, but not limited to, your legal counsel, having actual possession thereof. 15. "All documents" shall mean every document, whether an original or copy, as above defined, known to you, and every such document or writing which you can locate or discover by reasonably diligent efforts. 16. "Communication," : "discussion" or "statement" means any manner or means of disclosure, transfer, or exchange, and any disclosure, transfer or exchange of information whether orally or by document, or whether face-to-face, by telephone, e-mail, mail, personal delivery or otherwise. 17. "Oral Statement" shall mean any utterance spoken or heard, whether in person, by telephone, or otherwise. 18. "Identify" or "identity," when used in reference to an individual person, shall mean to state his or her full name, present or last known business address and residential address, business and residential telephone number and the name of such person's present or last known employer, place of employment and position during the relevant time period. DM3\744057.2 4 t 19. "Identify" or "identity," when used in reference to an entity, shall mean to state its full and complete name and the present or last known address of its headquarters or principal place of business. 20. "Identify," when used in reference to a document, shall mean to state the nature of the document (e.g., letter, memorandum, etc.); the date, if any, appearing on the document; the identity of the person(s) who wrote, signed, dictated or otherwise participated in the preparation of the document; the identity of all persons who received copies of the document; and the present location and custodian of the document. 21. "Identify," when used in reference to a photograph, shall mean to describe the subject of the photograph; the date the photograph was taken; the identity of the person who took the photograph and the person(s) to whom the photograph was disseminated; and the identity of the present custodian of the photograph. 22. "Refer," "Relate," "Reflect," "Regard," "Refer to," "Relate to," "Relating to," and "Concerning" (or forms thereof) shall mean directly or indirectly, in whole or in part, referring to, relating to, connected with, commenting on, relevant to, impinging or impacting upon, affecting, responding to, showing, describing, representing, supporting, contradicting, stating, mentioning, showing, evaluating, recording, noting, analyzing, reflecting or constituting. 23. "Complaint" shall mean the Complaint for Breach of Contract filed by Plaintiff in the above-captioned action on June 15, 2007. 24. "Answer" shall mean the Defendants' answer to the Complaint filed by Defendants in the above-captioned action on or about August 31, 2007. 25. "Answer to New Matter" shall mean Plaintiff's answer to the New Matter contained within the Answer, which was filed on September 11, 2007. DW 744057.2 5 . I 26. The term "you" or "your" shall mean the Defendants, their representatives, agents, and all others acting for and/or on their behalf, unless the context indicates otherwise. 27. The term "contact" or "contacted" shall mean any communication whether oral, written or otherwise. 28. The term "and" shall mean and/or. 29. The term "or" shall mean and/or. 30. The term "each" shall mean each and every. 31. The term "any" shall mean any and all. INSTRUCTIONS 1. These Requests are continuing in nature and when new knowledge or information comes to the attention of either Defendant, the information supplied in the answers to these Requests shall be supplemented forthwith. 2. For each and every Request herein, you shall produce documents in your possession, custody, or control, which shall include but be limited to, documents, objects or articles described that are in your possession or that you have the right to secure the original or a copy from another person or entity. The fact that your investigation is continuing or discovery is incomplete is not an excuse for your failure to respond to each request as fully and completely as possible. Your responses should consist of information known to you through yourself, your agents, your attorneys, your employees, or your representatives. All documents produced pursuant to this Request are to be produced as they are kept in the usual course of business, and shall be organized and labeled (without permanently marking the item produced) so as to correspond with the categories of each numbered request hereof. If copies or drafts of a document exist, the production of which has been requested herein, produce and submit for DM3\7440572 6 .. inspection and copying each and every copy and draft which differs in any way from the original document or from any copy or draft. 3. If you at any time had possession, custody, or control of any document requested herein, and such document has been lost, destroyed, discarded, or is not presently in your possession, these documents shall be identified as completely as possible, including: a. The names of the authors of the document; b. The names of the persons to whom the documents or copies were sent; C. The date of the document; d. The date on which the document was received by each addressee, copyee or recipient; e. A description of the nature and subject matter of the document that is as complete as possible; f. The date on which the document was lost, discarded or destroyed; and g. The manner in which the document was lost, discarded or destroyed. 4. With respect to documents that the Defendants, hold under claim of privilege, the Defendants shall number all such documents, hold them separately, and retain them intact pending a ruling by the Court on the claimed privilege. In addition, the Defendants shall provide a statement, signed by an attorney representing it, setting forth as to each such document: a. The names of the senders of the document; b. The names of the authors of the document; C. The names of the-persons to whom the document or copies were sent; d. The job title of every person named in subparagraphs 1, 2 and 3 above; e. The date of the document; f. The date on which the document was received by each addressee, copyee or recipient; g. A brief description of the nature and subject matter of the document; and DM3%744057.2 7 , f h. The statute, rule or decision which is claimed to give rise to the privilege. 5. If you cannot secure or produce the document(s) requested herein after exercising due diligence to, you must identify which Request(s) for which you do not have any responsive documents and in response thereto, specify your inability to produce the document(s) requested and if appropriate, provide the identity of the person who has possession, custody, or control of the requested document(s). 6. All words in this Request shall have their plain and ordinary meanings unless specifically defined herein or in the definition section of this Request. 7. Copies of documents which are identical duplicates of other documents which have already been produced for inspection and copying in this action need not be produced again, except that the duplicates must be produced if handwritten or any other type of notes or similar intelligence appear thereon or are attached thereto, including markings on slips indicating the routing of the document to individuals or organizations. 8. The singular and plural forms shall be construed interchangeably so as to bring within the scope of these Requests any information which might otherwise be construed as outside their scope. 9. "And" and "or" shall be construed interchangeably so as to bring within the scope of this document request any information which might otherwise might be construed as outside their scope. 10. "The use of the singular form of any word includes the plural and vice versa. 11. Unless otherwise stated herein, the time period encompassed by these Requests shall be from December 20, 2000. DM3\7440572 8 0 ) - - ? 1 REQUEST FOR PRODUCTION OF DOCUMENTS Request for Production No. 1: Produce any and all documents identified in Interrogatory No. 2 contained within Plaintiff's First Set of Interrogatories Directed To Defendants. Request for Production No. 2: Produce any and all documents identified in Interrogatory No. 7 contained within Plaintiff s First Set of Interrogatories Directed To Defendants. Request for Production No. 3: Produce any and all documents identified in Interrogatory No. 10 contained within Plaintiff's First Set of Interrogatories Directed To Defendants. Request for Production No. 4: Produce any and all documents identified in Interrogatory No. 15 contained within Plaintiff's First Set of Interrogatories Directed To Defendants. Request for Production No. 5: Produce any and all other documents referenced and/or referred to in Defendant's response to Plaintiff's First Set of Interrogatories Directed to Defendants. Request for Production No. 6: Produce any and all documents executed by and between either Defendant or both Defendants and Plaintiff and/or BLC Inc. since the inception of the Loan. Request for Production No. 7: Produce any and all communications by and between either Defendant or both Defendants and Plaintiff and/or BLC Inc. since the inception of the Loan. Request for Production No. 8: Produce any and all documents that evidence every payment made by either Defendant or both Defendants to Plaintiff and/or BLC Inc. since the inception of the Loan with respect to the Loan and/or Note. Request for Production No. 9: DM3\744057.2 9 ., r - , ? t Produce copies of every check and/or evidence of every wire transfer or other method of delivery of payment from either Defendant or both Defendants to Plaintiff and/or BLC Inc. since the inception of the Loan with respect to the Loan and/or Note. Request for Production No. 10: Produce all written correspondence, including any e-mail communication, in either of the Defendants' possession relating to either or both Defendants' alleged default under the terms of the $175,000 Guaranty. Request for Production No. 11: Produce any and all documents that you reviewed, identified, or relied upon in filing the Answer. Request for Production No. 12: Produce any and all documents that disprove the assertion set forth in Paragraph 23 of the Complaint. Request for Production No. 13: Produce any and all documents that disprove the assertion set forth in Paragraph 2 of the Complaint. Request for Production No. 14: Produce any and all documents that disprove the assertion set forth in Paragraph 3 of the Complaint. Request for Production No. 15: Produce any documents that support each defense set forth in the Answer's New Matter. Request for Production No. 16: Produce any and all summaries, analyses, calculations or documents used in or prepared for the defense of the claims asserted against Defendants in the Complaint. Request for Production No. 17: Produce all documents which you intend to introduce and/or rely upon at any deposition in this matter. Request for Production No. 18: Produce all documents which you intend to introduce and/or rely upon at the trial in this matter. DM3\744057.2 10 A - , i 1 Request for Production No. 19: Produce any and all statements of persons, whether written, oral, recorded, or transcribed, including notes or summaries of statements referring in any way to the parties to this action, the Complaint, the Answer or the Answer to New Matter. Request for Production No. 20: Produce Carlisle's Business Tax Return for 2007. Request for Production No. 21: Produce Carlisle's Business Tax Return for 2006. Request for Production No. 22: Produce Carlisle's Business Tax Return for 2005. Request for Production No. 23: Produce Carlisle's Profit and Loss Statement for 2007. Request for Production No. 24: Produce Carlisle's Profit and Loss Statement for 2006. Request for Production No. 25: Produce Carlisle's Profit and Loss Statement for 2005. Request for Production No. 26: Produce the Defendants' completed Tax Return for 2007. Request for Production No. 27: Produce the Defendants' completed Tax Return for 2006. Request for Production No. 28: Produce the Defendants' completed Tax Return for 2005. DM3\744057.2 11 A ? 0 1, 1 Dated: July 8, 2008 DUANE MORRIS LLP By: iYl1 ?- Rudolph J. Di Massa, Jr., Esquire PA Attorney Identification No. 35492 Sommer L. Ross, Esquire PA Attorney Identification No. 49851 30 South 17th Street Philadelphia, PA 19103 215.979.1000 Attorneys for Plaintiff Business Loan Center, LLC DM3\744057.2 12 n i r: 1 W 1 CERTIFICATE OF SERVICE I, Sommer L. Ross, Esquire, hereby certify that on this 8th day of July, 2008,1 caused a true and correct copy of Plaintiff s First Request for Production of Documents Directed to Defendants to be served upon the following individual via first class mail, postage pre-paid: Anthony P Tabasso, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers, LLP 260 South Broad Street Philadelphia, PA 19102 Counsel for Defendants July 8, 2008 "?? .. _"4rY)rY)OCA ommer L. Ross, Esquire DM3\744057.2 A y, r+ N. a ;', ._.? _ . . ,. _,? DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff, Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, NO. 07-3514 V. KEITH L. PLASTERER and JAMIE PLASTERER, 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. CIVIL ACTION - LAW AMENDMENT TO PLAINTIFF'S MOTION TO COMPEL ANSWERS TO (I) PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND (II) PLAINTIFF'S FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANTS KEITH L. PLASTERER AND JAMIE PLASTERER Plaintiff, Business Loan Center, LLC, f/k/a Business Loan Center, Inc. ("BLC"), by and through its attorneys, Duane Morris LLP, hereby files this Amendment (the "Amendment") to its Motion To Compel Answers To (I) Plaintiffs First Request for Production of Documents And (II) Plaintiffs First Set of Interrogatories Directed To Defendants Keith L. Plasterer and Jamie Plasterer (the "Motion to Compel"), filed with this Court on November 7, 2008. By this DM3`,861930 I Amendment, BLC avers as follows: CUMBERLAND COUNTY LOCAL RULE 208.3(a)(2) DECLARATIONS 1. On February 13, 2008, Judge Kevin A. Hess entered on order in two related proceedings, Civil Action No. 07-2320 and Civil Action No. 07-2319 (together, the "Related Proceedings"), denying BLX's Motion for Judgment on the Pleadings (the "Motion for Judgment on the Pleadings"). The Motion for Judgment on the Pleadings was filed in each of the Related Proceedings on October 26, 2007. 2. On June 22, 2007, Judge Kevin A. Hess entered on order in one of the Related Proceedings, Civil Action No. 07-2320, granting the plaintiff's Motion To Amend Caption. CUMBERLAND COUNTY LOCAL RULE 208.3(a)(9) DECLARATION 3. Counsel to the Defendants, Keith L. Plasterer and Jamie Plasterer, was consulted prior to the filing of the Motion to Compel and this Amendment thereto, and informed BLC's counsel that he does not concur to the relief sought in the Motion to Compel. [Remainder of Page Intentionally Left Blank] -2- DM3y861930.1 WHEREFORE, BLC respectfully requests that this Honorable Court enter the Order attached to the Motion to Compel: (i) granting the Motion to Compel; (ii) directing the Defendants to: (a) respond to and produce any and all documents responsive to the First Request for Production of Documents; and (b) respond to the First Set of Interrogatories within ten (10) days; and (iii) grant any such other relief this Court deems just and appropriate. Respectfully submitted, DUANE MORRIS LLP Dated: November 21, 2008 By: Rudolph J. DiMassa, Jr. Esquire Sommer L. Ross, Esquire 30 South 17th Street Philadelphia, PA 19103-4196 215.979.1000 (telephone) 215.979.1020 (facsimile) Attorneys for Plaintiff/Movant -3- DM31861930.1 ?,, ? : ; `? .? ? c"?? M;? ?. °N Y.' ,?? x DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, : NO. 07-3514 V. Attorneys for Plaintiff, Business Loan Center, LLC : CIVIL ACTION - LAW KEITH L. PLASTERER and JAMIE PLASTERER, 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. CERTIFICATE OF SERVICE I, Sommer L. Ross, Esquire, hereby certify that on this 21" day of November, 2008, 1 caused a true and correct copy of the Amendment To Plaintiffs Motion To Compel Answers To (I) Plaintiffs First Request for Production of Documents And (II) Plaintiffs First Set of Interrogatories Directed To Defendants Keith L. Plasterer and Jamie Plasterer, to be served upon the following individual via first class mail, postage pre-paid: DM31861930.1 Anthony P Tabasso, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers, LLP 260 South Broad Street Philadelphia, PA 19102 Counsel for Defendants November 21, 2008 4L8Soer. Ross, Esquire 2 DM3\861930- I ??'- ..,, ?: ; . u , ,i, 7?. c 1y 7 4.. <` _ ?.z 3 ?yb BUSINESS LOAN CENTER, LLC, IN THE COURT OF COMMON PLEAS OF f/k/a BUSINESS LOAN CENTER, CUMBERLAND COUNTY, PENNSYLVANIA INC., Plaintiff CIVIL ACTION - LAW NO. 07-3514 CIVIL vs. KEITH L. PLASTERER and JAMIE : PLASTERER, Defendants: IN RE: PLAINTIFF'S MOTION FOR COMPEL ORDER AND NOW, this Z G day of November, 2008, a rule is issued on the defendant to show cause why the relief requested in the within motion to compel ought not to be granted. This rule returnable twenty (20) days after service. BY THE COURT, Rudolph J. Di Massa, Jr. Sommer L. Ross, Esquire For the Plaintiff Anthony P. Tabasso, Esquire For the Defendant Kevi A. Hess, J. rlm 014 DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff, Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, NO. 07-3514 V. KEITH L. PLASTERER and JAMIE PLASTERER, CIVIL ACTION - LAW 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. CERTIFICATE OF SERVICE I, Sommer L. Ross, Esq., hereby certify that I am not less than 18 years of age, and that the Order Regarding Plaintiffs Motion to Compel entered on November 26, 2008 in the above- captioned case was served via first-class mail, postage prepaid, and via e-mail, this Ist day of December, 2008, upon the following individual: December 1, 2008 Anthony P. Tabasso, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers LLP 260 South Broad Street Philadelphia, Pennsylvania 10102-5003 Counsel to Plaint' ?nt' tti By: y' So mer L. Ross, Esquire P.A. I.D. No. 94851 Duane Morris LLP 30 South 17th Street Philadelphia, Pennsylvania 19103-4196 DM3\866756.1 :? •? c.? ;?? ., r, _ <,_ DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff, Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, V. KEITH L. PLASTERER and JAMIE PLASTERER,-: 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. NO. 07-3514 CIVIL ACTION - LAW MOTION TO MAKE RULE ABSOLUTE 1. On November 7, 2008, Plaintiff Business Loan Center, LLC ("Plaintiff' or "BLX") filed a Motion to Compel Answers To (I) Plaintiffs First Request For Production Of Documents And (II) Plaintiffs First Set Of Interrogatories Directed To Defendant(s) (the "Motion To Compel"). 2. The Motion To Compel was served on counsel to Keith L. Plasterer and Jamie Plasterer (collectively, the "Defendants") via First Class U.S. mail on November 6, 2008 and via First Class U.S. Mail and electronic mail on November 10, 2008. The relevant Certificate of Service and correspondence evidencing such service is attached hereto as Exhibit "A." DM3\889333.1 3. On November 24, 2008, Plaintiff filed an Amendment (the "Amendment") to the Motion To Compel in order to comply with Cumberland County Local Rule 208.3(a)(2) and (a)(9). 4. The Amendment was served on counsel to the Defendants via First Class U.S. Mail on November 21, 2008 as evidenced by the Certificate of Service attached hereto as Exhibit "B." 5. On November 26, 2008, the Court, by and through the Honorable Kevin A. Hess, entered an order which issued a rule to show cause (the "Rule To Show Cause") why the relief requested in the Motion To Compel ought not to be granted. A true and correct copy of the Rule To Show Cause is attached hereto as Exhibit "C." Pursuant to the Rule to Show Cause, it was returnable twenty (20) days after service. 6. A copy of the Rule To Show Cause was served on counsel to the Defendants via First Class U.S. Mail and electronic mail on December 1, 2008. A true and correct copy of the relevant Certificate of Service and the correspondence evidencing such service is attached hereto as Exhibit "D." 7. The Rule To Show Cause was returnable on December 21, 2008. 8. To date, the Defendants have failed to respond to the Rule To Show Cause or the Motion To Compel. 9. To date, the Defendants have failed to respond to the discovery which is the subject of the Motion To Compel. CUMBERLAND COUNTY LOCAL RULE 208.3(a)(2) DECLARATIONS 10. On February 13, 2008, Judge Kevin A. Hess entered on order in two related proceedings, Civil Action No. 07-2320 and Civil Action No. 07-2319 (together, the "Related 2 DM3\889333.1 Proceedings"), denying the plaintiffs' Motion for Judgment on the Pleadings (the "Motion for Judgment on the Pleadings"). The Motion for Judgment on the Pleadings was filed in each of the Related Proceedings on October 26, 2007. 11. On June 22, 2007, Judge Kevin A. Hess entered on order in one of the Related Proceedings, Civil Action No. 07-2320, granting the plaintiffs Motion To Amend Caption. 12. On November 7, 2008 and November 24, 2008, respectively, the Motion To Compel and the Amendment were filed. 13. On November 26, 2008, Judge Kevin A. Hess entered an order issuing the Rule To Show Cause. CUMBERLAND COUNTY LOCAL RULE 208.3(a)(9) DECLARATION 14. Counsel to the Defendants, Keith L. Plasterer and Jamie Plasterer, was consulted prior to the filing of this Motion to Make Rule Absolute Compel by Plaintiffs counsel and he did not respond; therefore, we assume that he does not concur in the relief sought. WHEREFORE, Plaintiff, Business Loan Center, LLC, respectfully requests that this Honorable Court enter an Order making the Rule To Show Cause absolute and grant the relief requested in the Motion To Compel. Respectfully submitted, DUANE MORRIS LLP Dated: January 8, 2009 By: R Adolph J. DiMassa, Jr. Esquire Sommer L. Ross, Esquire 30 South 17th Street Philadelphia, PA 19103-4196 215.979.1000 (telephone) 215.979.1020 (facsimile) Attorneys for Plaintiff/Movant 3 DM3\889333.1 DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff, Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, V. KEITH L. PLASTERER and JAMIE PLASTERER, 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. NO. 07-3514 CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Sommer L. Ross, Esquire, hereby certify that on this 8th day of January, 2009, I caused a true and correct copy of Plaintiff's Motion To Make Rule Absolute and Order Making Rule Absolute to be served upon the following individual via first class mail, postage pre-paid: Anthony P Tabasso, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers, LLP 260 South Broad Street Philadelphia, PA 19102 Counsel for Defend s January 8, 2009 S miner L. Ross, Esquire DM31889333.1 EXHIBIT "A" IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., COP Y 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, NO. 07-3514 V. . CIVIL ACTION - LAW c KEITH L. PLASTERER and JAMIE PLASTERER, 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. CERTIFICATE OF SERVICE I, Sommer L. Ross, Esquire, hereby certify that on this 6`h day o f November, 200 8, I caused a true and correct copy of Plaintiff's Motion To Compel Answers To (I) Plaintiff's First Request for Production of Documents and (II) Plaintiffs First Set Of Interrogatories Directed To Defendants Keith L. Plasterer and Jamie Plasterer, to be served upon the following individual via first class mail, postage pre-paid: Anthony P Tabasso, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers, LLP 260 South Broad Street Philadelphia, PA 19102 Counsel for Defendants November 6, 2008 d' Sommer L. Ross, Esquire DM3\851627.1 Page 1 of 1 Ross, Sommer L. From: Ross, Sommer L. Sent: Monday, November 10, 2008 2:45 PM To: 'Anthony Tabasso' Cc: DiMassa, Rudolph J. Subject: BLX/BLX v. Carlisle/Plasterer - Motions to Compel Attachments: Carlisle - letter to anthony tabasso 11-10-08 enclosing motions to compel.PDF; Carlisle - Motion to Compel with Exhibits time-stamped (07-2319).PDF; Carlisle - Motion to Compel with Exhibits time-stamped (07-2320).PDF; Carlisle -- Motion to Compel with Exhibits time- stamped (07-3514).PDF Anthony, On November 7, 2008, we filed Motions to Compel Discovery Responses in each of the 3 BLX/Carlisle/Plasterer cases. Attached are service copies of the Motions. Hard copies are going out by mail today. If you have any questions, please let us know. Thanks. Sommer Sommer L. Ross Associate Duane Morris LLP 30 South 17th Street Philadelphia, PA 19103-4196 P: 215.979.1546 F: 215.979.1020 Duane Morris LLP 1100 North Market Street, Suite 1200 Wilmington, DE 19801 P: 302.657.4900 F: 302.657.4901 SLRoss@duanemorris.com www.duanemorris.com Please consider the environment before printing this email. 1/7/2009 EXgIBIT ??-B?? DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff, Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, fWa BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, V. KEITH L. PLASTERER and JAMIE PLASTERER, 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. NO. 07-3514 CIVIL ACTION - LAW CERTIFICATE OF SERVICE ?.' a 4 -.? I, Sommer L. Ross, Esquire, hereby certify that on this 21St day of November, 2008, I caused a true and correct copy of the Amendment To Plaintiffs Motion To Compel Answers To (I) Plaintiffs First Request for Production of Documents And (II) Plaintiffs First Set of Interrogatories Directed To Defendants Keith L. Plasterer and Jamie Plasterer, to be served upon the following individual via first class mail, postage pre-paid: DMM861930.1 Anthony P Tabasso, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers, LLP 260 South Broad Street Philadelphia, PA 19102 Counsel for Defendants November 21, 2008 Mc.c?• So er L. Ross, Esquire 2 DM3\861930.1 EXHIBIT "C" BUSINESS LOAN CENTER, LLC, IN THE COURT OF COMMON PLEAS OF f/k/a BUSINESS LOAN CENTER, CUMBERLAND COUNTY, PENNSYLVANIA INC., Plaintiff CIVIL ACTION - LAW NO. 07-3514 CIVIL vs. KEITH L. PLASTERER and JAMIE : PLASTERER, Defendants: IN RE: PLAINTIFF'S MOTION FOR COMPEL ORDER AND NOW, this Z G day of November, 2008, a rule is issued on the defendant to show cause why the relief requested in the within motion to compel ought not to be granted. This rule returnable twenty (20) days after service. Rudolph J. Di Massa, Jr. Sommer L. Ross, Esquire For the Plaintiff Anthony P. Tabasso, Esquire For the Defendant :rlm BY THE COURT, 11 Kevi A. Hess, J. : 't (w sell of said Gault ai Carl &, PC f. in -day OL-abdaAl w, u Prat?lrt EXKIBIT 411D @)? DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff, Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, : NO. 07-3514 V. KEITH L. PLASTERER and JAMIE PLASTERER, CIVIL ACTION - LAW 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. CERTIFICATE OF SERVICE rhp 7 cp I, Sommer L. Ross, Esq., hereby certify that I am not less than 18 years of age, and that the Order Regarding Plaint ffs Motion to Compel entered on November 26, 2008 in the above- captioned case was served via first-class mail, postage prepaid, and via e-mail, this I st day of December, 2008, upon the following individual: December 1, 2008 Anthony P. Tabasso, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers LLP 260 South Broad Street Philadelphia, Pennsylvania 10102-5003 Counsel to Plaint'L By: It,#_ a-w c? o er L. Ross, Esquire P.A. I.D. No. 94851 Duane Morris LLP 30 South 17th Street Philadelphia, Pennsylvania 19103-4196 DMM66756. t Ross, Sommer L. From: Ross, Sommer L. Sent: Monday, December 01, 2008 2:51 PM To: 'Anthony Tabasso' Cc: DiMassa, Rudolph J. Subject: BLX v. Carlisle / Plasterers - Service of Order re: Rule to Show Cause Attachments: 20081201144318423. pdf IJ 2008120114431842 3.pdf (163 KB)... Anthony, Attached is a copy of an Order entered in each of the three BLX/Carlisle/Plasterer cases setting a rule to show cause in response to the Motions to Compel Discovery Responses filed by the Plaintiff in each case. Regards, Sommer Sommer L. Ross Duane Morris LLP 30 South 17th Street Philadelphia, PA 19103-4196 P: 215.979.1546 F: 215.979.1020 Duane Morris LLP 1100 North Market Street, Suite 1200 Wilmington, DE 19801 P: 302.657.4900 F: 302.657.4901 SLRoss@duanemorris.com www.duanemorris.com Please consider the environment before printing this email. tV c y. cn 1 0, JAN 13 2009 4 DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff, Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, NO. 07-3514 V. KEITH L. PLASTERER and JAMIE PLASTERER, : CIVIL ACTION - LAW 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. ORDER MAKING RULE ABSOLUTE AND NOW, this r V' day of January, 2009, upon the Motion To Make Rule Absolute filed by Plaintiff Business Loan Center, LLC, the Rule To Show Cause' entered by this Court on November 26, 2008, Returnable December 21, 2008, is hereby made absolute and it is hereby Ordered that: (i) the Motion To Compel is granted; ' All terms not otherwise defined herein shall have the meaning ascribed to them in the Motion to Make Rule Absolute unless otherwise noted. DM3\889333.1 Q L-fj sit S AJLA 73?iC6 D - 4001,71/1 *C""'o h ? (ii) Defendants Keith L. Plasterer and Jamie Plasterer shall fully and completely respond to and produce any and all documents responsive to the Plaintiffs First Request for a, ( Zo) Documents2 within *R. days from the date of this Order; and (iii) Defendants Keith L. Plasterer and Jamie Plasterer shall fully and completely respond to Plaintiffs First Set of Interrogatories3 within days from the date of this Order. BY THE COURT: DISCOVERY DEADLINE: 200' 2 This term is defined in the Motion to Compel. 3 This term is defined in the Motion to Compel. 2 I DM3\889333.1 DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff, Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, NO. 07-3514 V. KEITH L. PLASTERER and JAMIE PLASTERER, CIVIL ACTION - LAW 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. CERTIFICATE OF SERVICE I, Sommer L. Ross, Esq., hereby certify that I am not less than 18 years of age, and that the Order Making Rule Absolute entered on January 14, 2009 in the above-captioned case was served via first-class mail, postage prepaid, this 20`" day of January, 2009, and via e-mail, the 19`h day of January, 2009, upon the following individual: January 20, 2009 Anthony P. Tabasso, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers LLP 260 South Broad Street Philadelphia, Pennsylvania 10102-5003 Counsel to Defenda is By: ? e414- L&e_ Sommer L. Ross, Esquire P.A. I.D. No. 94851 Duane Morris LLP 30 South 17th Street Philadelphia, Pennsylvania 19103-4196 DM3\902258. I ra 3 t._ ::w PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, NO. 07-3514 V. CIVIL ACTION - LAW KEITH L. PLASTERER and JAMIE PLASTERER, 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. 1. State matter to be argued: Plaintiff s Motion for Summary Judgment 2. Identify counsel who will argue cases: (a) for Plaintiff: Rudolph J. Di Massa, Jr. , Esquire Sommer L. Ross, Esquire Duane Morris LLP 30 South 17th Street Philadelphia, PA 19103 (b) for Defendants: Anthony P. Tabasso, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers, LLP 260 South Broad Street Philadelphia, PA 19102 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: 9-4-00 Date: February Aj, 2009 ? a- 0--4'-V By: Sommer L. Ross Attorney For Business Loan Center, LLC DM3\929599.1 cv f DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff, Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, V. NO. 07-3514 CIVIL ACTION - LAW KEITH L. PLASTERER and JAMIE PLASTERER, : MOTION FOR SUMMARY JUDGMENT 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Plaintiff, Business Loan Center, LLC ("BLC"), by and through its attorneys, Duane Morris LLP, respectfully moves this Honorable Court for Summary Judgment pursuant to Pennsylvania Rule of Civil Procedure ("Pa. R. Civ. P.") 1035 and Cumberland County Rule of Civil Procedure ("C.C.R.P.") 1035.2(a) (the "Motion"), and in support hereof states as follows: 1 DW929599.1 I. Factual Background 1. This matter arises from a loan transaction (the "Loan") between Business Loan Center, Inc. ("BLC Inc."), as lender, and Carlisle Sports Emporium, Inc. (the "Borrower"), as borrower. See Exhibit H, Complaint for Breach of Contract (hereinafter, "Complaint"). 2. The principal amount of the Loan was $175,000.00. See Exhibit H, Complaint at ¶ 10; Exhibit T, Affidavit of Jonathan Chang in Support of Motion for Summary Judgment (hereinafter, the "Chang Affidavit") at ¶ 14. 3. The Loan is evidenced by, inter alia, a promissory note dated December 20, 2000, executed and delivered to BLC Inc. by Borrower (the "Note"). See Exhibit A, Note; Exhibit H, Complaint at ¶ 11; Exhibit T, Chang Affidavit at ¶ 15. 4. On December 20, 2000, as security for the Note and the obligations of Borrower due and owing to BLC Inc. thereunder, the Defendants herein, Keith L. Plasterer ("Keith Plasterer") and Jamie Plasterer ("Jamie Plasterer", and together with Keith Plasterer, the "Defendants"), executed an unconditional guaranty of payment in favor of BLC Inc. (the "Guaranty"). See Exhibit B, Guaranty; Exhibit H, Complaint at ¶ 12; Exhibit T, Chang Affidavit at ¶ 16. 5. Prior to January 31 2003, BLC, the named Plaintiff herein, operated as a Delaware corporation under the name Business Loan Center, Inc. (a/k/a BLC Inc.). See Exhibit H, Complaint at ¶ 2. 6. BLC Inc.'s conversion from a Delaware corporation to a Delaware limited liability corporation (the "Conversion") is evidenced by the Certificate of Conversion of Business Loan Center, Inc. to Business Loan Center, LLC dated January 31, 2003 (the ' The exhibits to the Motion (the "Exhibits") are voluminous and, as a result, have been submitted separately in an Exhibit Binder. All exhibits to the Exhibits in the Exhibit Binder have been intentionally excluded since they are themselves, an Exhibit. -2- DM3\929599.1 "Certificate of Conversion"). See Exhibit G, Certificate of Conversion; Exhibit H, Complaint at ¶ 2; Exhibit T, Chang Affidavit at ¶ 7. 7. By virtue of the Conversion, BLC is the holder of the Note and Guaranty and is entitled to enforce the Note and Guaranty and any other loan documents related thereto. See Chang Affidavit at ¶ 8. 8. Borrower is and has been in default of its obligations under the Note. See Exhibit H, Complaint at'¶¶ 15-20; Exhibit T, Chang Affidavit at ¶¶ 17-18, 20-21, 23, 38, 41, 43. 9. The amounts due and owing under the Note as of February 4, 2009 are as follows: Unpaid Principal Accrued And Unpaid Interest Through Feb. 4, 2009 Unpaid Late Charges Through Feb. 4, 2009 Unpaid Expenses Through Feb. 4, 2009 Miscellaneous Fees Through Feb. 4, 2009 Attorney Fees And Costs Total Amount Due As Of Feb. 4, 2009 $74,984.48 $8,788.59 $4,286.21 $11,261.33 $25.00 To Be Determined $99,345.61 (plus additional interest, which continues to accrue at a per diem rate of $12.33, fees and costs and expenses, including, without limitation, attorneys' fees, which continue to accrue) Exhibit T, Chang Affidavit at ¶ 41. DMM29599. I -3- 10. By virtue of the Guaranty, the Defendants are liable to BLC for the entire amount due and owing under the Note. See Exhibit B, Guaranty; Exhibit H, Complaint at ¶ 21; Exhibit T, Chang Affidavit at 142. II. Procedural Backiround 11. Plaintiff commenced this action against Defendants on April 23, 2007 by filing a Complaint for Breach of Contract (the "Initial Complaint") with a certain affiliate that had a related claim against the Defendants. See Exhibit T, Chang Affidavit at ¶ 24. 12. On June 4, 2007, after receiving notice pursuant to Pa. R. Civ. P. 237.4, the Defendants filed Preliminary Objections (the "Preliminary Objections"). The basis for the Preliminary Objections was that Plaintiff was not a party to the Loan Documents, did not have standing to bring this action or enforce the Loan Documents and that the Plaintiff combined two unrelated causes of actions. 13. On June 15, 2007, in response to the Preliminary Objections, Plaintiff withdrew from the Initial Complaint and filed a new Complaint for Breach of Contract (the "Complaint"). See Exhibit H, Complaint; Exhibit T, Chang Affidavit at ¶ 25. 14. On or about August 18, 2007, after receiving notice pursuant to Pa. R. Civ. P. 237.4, the Defendants filed their Answer and New Matter (the "Answer and New Matter"). See Exhibit I, Answer and New Matter. 15. On September 4, 2007, Plaintiff filed its Answer to Defendants' Answer and New Matter (the "Plaintiff's Answer to New Matter"). See Exhibit J, Plaintiff's Answer to New Matter; Exhibit T, Chang Affidavit at ¶ 26. 16. On July 8, 2008, after a motion for judgment on the pleading was filed against the Defendants in a related case and denied, Plaintiff served the following discovery requests on the Defendants (collectively, "Plaintiff's Discovery" or the "Discovery Requests"): (i) Plaintiff's -4- DM3\929599. ] Request for Admissions Directed to Defendants (the "Request for Admissions"); (ii) Plaintiff's First Request for Production of Documents Directed to Defendants (the "Document Requests"); and (iii) Plaintiff's First Set of Interrogatories Directed to Defendants (the "Interrogatories"). See Exhibit K, Request for Admissions; Exhibit L, Document Requests; Exhibit M, Interrogatories; Exhibit T, Chang Affidavit at ¶ 27. 17. Pursuant to the applicable rules of civil procedure, the Defendants' responses to the Discovery Requests were due on August 7, 2008. 18. On August 8, 2008, the Defendants served their answer to the Request for Admissions only ("Defendant's Response to the Request for Admissions"). See Exhibit N, Defendants' Response to the Request for Admissions; Exhibit T, Chang Affidavit at ¶ 28. 19. On November 7, 2008, after the Plaintiff made several attempts to compel the Defendants to respond to the Document Requests and the Interrogatories without the need for Court intervention, the Plaintiff filed a Motion to Compel Answers To (I) Plaintiff's First Request for Production of Documents and (II) Plaintiff's First Set of Interrogatories Directed to the Defendants, which was subsequently amended (the "Motion to Compel"). See Exhibit O, Motion to Compel; Exhibit T, Chang Affidavit at ¶ 29. 20. On November 26, 2008, this Honorable Court entered an Order Regarding the Motion to Compel which effectively issued a rule to show cause (the "Rule"). The Rule was returnable on December 21, 2008. See Exhibit P, Rule; Exhibit T, Chang Affidavit at ¶ 30. 21. Despite being served with the Rule, the Defendants failed to respond to the Motion to Compel. See Exhibit T, Chang Affidavit at ¶ 31. 22. On January 14, 2009, after Plaintiff filed a Motion to Make Rule Absolute, see Exhibit O, this Honorable Court entered an Order Making Rule Absolute (the "Order Making -5- DM3\929599.1 Rule Absolute"). See Exhibit R, Order Making Rule Absolute; Exhibit T, Chang Affidavit at ¶ 32. 23. Pursuant to the Order Making Rule Absolute, the Defendants had until February 3, 2009 to respond to the Document Requests and the Interrogatories. See Exhibit R, Order Making Rule Absolute; See Exhibit T, Chang Affidavit at $ 33. 24. On February 6, 2009, the Defendants produced documents responsive to the Document Requests. See Exhibit T, Chang Affidavit at ¶ 34. 25. On February 12, 2009, the Defendants responded to the Interrogatories (the "Defendants' Response to Interrogatories"). See Exhibit S, Defendants' Response to Interrogatories; Exhibit T, Chang Affidavit at ¶ 35. III. The Motion A. The Summary Judgment Standard Under Pennsylvania Law 26. Rule 1035.2 of the Pennsylvania Rules of Civil Procedure ("Pa. R. Civ. P.") sets forth the summary judgment standard in Pennsylvania. Pursuant to Pa. R. Civ. P. 1035.2: [A]fter the relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion . .. an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa. R. Civ. P. 1035.2. 27. The pleadings in this case are closed and time exists within which to dispose of this Motion so as not to delay trial. -6- DM3\929599.1 28. BLC is entitled to summary judgment because (i) the Defendants have failed to offer any facts or evidence which contradict the substantive facts raised by BLC, including the fact that BLC has standing to bring this action, and (ii) the Defendants have failed to offer any facts or evidence to support the affirmative defenses to which they claims to be entitled. B. Summary Judgment Is Appropriate Because There Are No Genuine Issues As To Any Material Fact 29. As discussed in more detail below, the Defendants have failed to dispute any issue of material fact or produce any evidence to the contrary. As a result, BLC is entitled to summary judgment. 1. Defendants Admit That Borrower Obtained The Loan And That They Signed the Guaranty. 30. The Defendants have admitted that the Borrower obtained the Loan from BLC, see Exhibit N, Defendants' Response to the Request for Admissions at T 7; that the Loan is evidenced by the Note, see Exhibit N, Defendants' Response to the Request for Admissions at T 8; and that a true and correct copy of the Note is attached to the Complaint as Exhibit "A," see Exhibit N, Defendants' Response to the Request for Admissions at T 9. 31. The Defendants have also admitted that on or about December 20, 2000, as security for the Note, they executed the Guaranty, see Exhibit N, Defendant's Response to the Request for Admissions at ¶ 10-11, and that a true and correct copy of the Guaranty is attached to the Complaint as Exhibit "C," see Exhibit N, Defendants' Response to the Request for Admissions at T 13. -7- DM3\929599.1 2. Defendants Admit That The Note Has Not Been Satisfied And Have Failed To Produce Any Evidence To Demonstrate That The Borrower is Not In Default Of Its Obligations Thereunder. 32. In paragraph 15 of the Complaint, BLC states that the "Borrower is in default of its obligations under the [Note] as a result of, among other things, the Borrower's failure to make payments when due to [BLC]." See Exhibit H, Complaint, ¶ 15. 33. Paragraph 15 of the Complaint is, in essence, the reason for this action and why BLC seeks to enforce its rights under the Guaranty and obtain a monetary judgment against the Defendants. 34. Here, although the Defendants do not admit that the Borrower is in default of its obligations due and owing under the Note or that they are in default of their obligations of the Guaranty, the have produced absolutely no evidence to disprove Plaintiff's assertions that: (i) the Borrower is in default, and has been in default, of its obligations due and owing to BLC under the Note; and (ii) the Defendants are in default, and have been in default, of their obligations due and owing to BLC under the Guaranty. 35. Further, the Defendants have admitted that neither the Borrower nor they have satisfied the Note. See Exhibit N, Defendants' Response to the Request for Admissions at ¶¶ 15- 17. 36. According to Plaintiff's books and records, as of February 4, 2009, $99,345.61 is due and owing to BLC from the Borrower under the Note and/or from the Defendants under the Guaranty. See Exhibit T, Chang Affidavit at ¶¶ 41-42. -8- DM3\929599.1 3. Defendants Have Failed To Produce Any Evidence To Disprove That BLC Has Standing. 37. BLC is the Plaintiff in this action and was, prior to the Conversion, formerly known as BLC Inc. See Exhibit T, Chang Affidavit at ¶¶ 6-8. Therefore, BLC has standing to bring this action. 38. In support of the fact that BLC has standing to enforce the Note, the Guaranty and the Loan Documents, BLC attached the following documents to the Complaint: the Certificate of Conversion of Business Loan Center, Inc. to Business Loan Center, LLC dated January 31, 2003, (the "Certificate of Conversion"), see Exhibit G. 39. The Certificate of Conversion evidences that on January 31, 2003 BLC Inc went from being a Delaware corporation to a Delaware limited liability corporation. See Exhibit T, Chang Affidavit at ¶¶7-8. The Conversion did not affect BLC's ability to enforce the Note. 40. Despite the documentation evidencing the Conversion, the Defendants have challenged, without any factual or documentary basis, BLC's standing. However, the Defendants have failed to produce any evidence to discredit the Certificate of Conversion, a document which has been authenticated by the Secretary of State for the State of Delaware. 41. Further, the Defendants have admitted that the legal effects of the Certificate of Conversion "speaks for themselves." See Exhibit I, Answer and New Matter at ¶ 2. 42. In addition, in the Interrogatories the Plaintiff specifically asked the Defendants: If after reviewing the exhibits attached to the Complaint you dispute that Plaintiff is the holder of the Note, state, in detail and with particularity, why. See Exhibit M, Interrogatories at ¶ 14. The Defendants' response to this Interrogatory, after having ample opportunity to inspect the Certificate of Conversion and/or discover additional information related thereto, was: -9- DM3\929599. ] Defendant is without sufficient information to determine who is the proper holder of the $4.5 million mortgage and/or related loan documents. See Exhibit S Defendants' Response to Interrogatories at $ 14. The Defendant then goes on to state: The Defendant is aware that BLX was acquired by or merged into an entity known as Ciena Capital, and that Ciena Capital subsequently filed for bankruptcy. The defendant has no knowledge as to how the loans underlying this case were treated in those transactions. See Exhibit S, Defendants' Response to Interrogatories at $ 14. 43. First and foremost, this action does not deal with the entity known as `BLX", which is an entity related to BLC. Second, the "Note" in question here is a $175,000 Note, not a $4.5 million note. However, assuming that the Defendants intended to reference BLC and the $175,000 Note, not BLX and the $4.5 million note, Plaintiff responds by stating BLC was not recently "acquired" by Ciena Capital, LLC ("Ciena Capital"). As discussed in the Chang Affidavit, Ciena Capital is BLC's parent corporation and has been for quite some time. See Exhibit T, Chang Affidavit at $ 5. Ciena Capital is just a new name for the parent corporation, which was, up until January 7, 2008, Business Loan Express, LLC. The parent corporation's name change had no effect, and continues to have no effect, on BLC being the holder of the Note. See Exhibit T, Chang Affidavit at $ 5. 44. Further, the Defendants should be estopped from arguing that BLC has no standing to enforce the Note and Guaranty since they themselves have listed BLC as an additional insured in certain insurance documentation, which was produced by Defendants in response to the Document Requests. See Exhibit U, Document D0132-0135 Produced by Defendants. -10- DM3\929599.1 4. Defendants Have Failed To Produce Any Evidence To Support The "Boiler Plate" Legal Defenses Set Forth In Their Answer And New Matter. 45. In their Answer and New Matter, the Defendants assert eleven (11) "boiler plate" affirmative defenses. See Exhibit I, Answer and New Matter at ¶T 36-47. However, the Defendants have failed to offer any facts tot support any of them despite the fact they were asked to do so in the Interrogatories. See Exhibit M, Interrogatories at ¶ 7. The Defendants have also failed to produce any documents to support the alleged affirmative defenses, despite being asked to do so in the Document Requests. See Exhibit L, Document Requests at ¶¶ 2, 15. C. Conclusion 46. The pleadings and the record in this case present no genuine issue of material fact to be tried.. As recognized by the Defendants, the Note and the Guaranty and are valid and binding documents "the terms and legal effect of which speak for themselves." The Defendants have not offered any evidence or statements of fact to disprove BLC's assertion that the Borrower is in default of its obligations due and owing to BLC under the Note or that the Defendants are in default of their obligations due and owing to BLC under the Guaranty. The Defendants also have not demonstrated that they are entitled to any of the affirmative defenses they raised in their Answer and New Matter or that BLC does not have standing to enforce the Note and Guaranty. As a result, BLC is entitled to summary judgment. D. C.C.L.R. 208.3(a)(2) and (a)(9) Declarations 47. On February 13, 2008, Judge Kevin A. Hess entered on order in two related proceedings, Civil Action No. 07-2320 and Civil Action No. 07-2319 (together, the "Related Proceedings"), denying the plaintiffs' Motion for Judgment on the Pleadings (the "Motion for Judgment on the Pleadings"). The Motion for Judgment on the Pleadings was filed in each of the Related Proceedings on October 26, 2007. -11- DM3\929599.1 48. On June 22, 2007, Judge Kevin A. Hess entered on order in one of the Related Proceedings, Civil Action No. 07-2320, granting the plaintiff's Motion To Amend Caption. 49. On November 7, 2008 and November 24, 2008, respectively, the Motion To Compel and the Amendment were filed. 50. On November 26, 2008, Judge Kevin A. Hess entered an order issuing the Rule. Thereafter, the Rule was made absolute. Counsel to the Defendants, Keith L. Plasterer and Jamie Plasterer, was consulted prior to the filing of this Motion to Make Rule Absolute Compel by Plaintiff's counsel and he does not concur in the relief sought. WHEREFORE, Plaintiff, Business Loan Center, LLC, hereby respectfully requests that this Court enter summary judgment in favor of Plaintiff and against the Defendants, Keith L. Plasterer and Jamie Plasterer in the amount of $99,345.61, plus pre judgment interest, post- judgment interest, costs of suit, attorneys' fees, and such other relief as this Court deems just and proper. Dated: February 17, 2009 Respectfully submitted, DUANE MORRIS LLP By: .Q I??UYJ2-?dl'J Rudolph J. Di Massa, Jr., Esquire PA Attorney Identification No. 35492 Sommer L. Ross, Esquire PA Attorney Identification No. 49851 30 South 17th Street Philadelphia, PA 19103 215.979.1000 Attorneys for Plaintiff BUSINESS LOAN CENTER, LLC -12- DM31929599.1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, : NO. 07-3514 V. CIVIL ACTION - LAW KEITH L. PLASTERER and JAMIE PLASTERER, : MOTION FOR SUMMARY JUDGMENT 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. EXHIBIT BINDER FOR PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT EXHIBIT TITLE A Note B Guaranty C November Demand Letter D November Guarantor Demand Letter E December Demand Letter F December Guarantor Demand Letter G Certificate of Conversion H Complaint I Defendants' Answer and New Matter J Plaintiffs Answer to New Matter K Request for Admissions L Document Re guests M Interrogatories N Defendants' Response to Requests for Admissions O Motion to Compel P Rule or November 26, 2008 Order re: Motion to Compel Motion to Make Rule Absolute R January 14, 2009 Order re: Motion to Make Rule Absolute S Defendants' Response to Interrogatories T Affidavit of Jonathan Change in Support for Motion for Summa Judgment U Document D0132-0135 Produced B Defendants DM3\930463. I A us S all Ausin= Adn%Wbdntba U.S. Small Business Administration ` NOTE SBA Loan # PLP 413-637=4009 SBA Loan Name Carlisle Sports Em oriiim, Inc. Date J December 20. 2000. Loan Amount $175,000.00 Interest Rate 12.252 Borrower Carlisle Sports Emporium, Inc. Operating Company Lender Business Loan Center, Inc. 1. PROMISE TO PAY: In return for the Loan, Borrower promises to pay to the order of Lender the amount of One hundred seventy-five thousand dollars and-no/100 ************* Dollars, interest on the unpaid principal balance, and all other amounts required by this Note. 2. DEFINITIONS: "Cbliateral" means any property taken as security for payment of this Note or any guarantee of this Note. "Guarantor" means each person or entity that signs a guarantee of payment of this Note. "Loan" means the loan evidenced by this Note. "Loan Documents" means the documents related to this loan signed by Borrower, any Guarantor, or anyone who pledges collateral. "SBA" means the Small Business Administration, an Agency of the United States of America. SBA Form 147 (10122198) Previous editions obsolete Page 118 3. PAYMENT TERMS: Borrower must make all payments at the place Lender designates. The payment terms for this Note are: The interest rate on this Note will fluctuate. The initial rate is 12.25% per year. This initial rate is the prime rate on the date SBA received the loan application, plus 2.75%. Borrower must pay one payment of interest only on the disbursed principal balance one month from the month this Note is date; payment must be made on the first calendar day in the month it is due. Borrower must pay principal and interest payments of $2,536.10 every month, beginning two months from the month this Note is dated; -payments must be made on the first calendar day in the months they are due. Lender will apply each installment payment-first to pay interest accrued to the day Lender receives the payment, then to bring principal current, then to pay any. late fees, and will apply any remaining balance to reduce principal. The interest rate will be adjusted every calendar quarter (the "change period"). The "Prirhe.Rate" is the prime rate in effect on the first business day of the month in which an interest rate change occurs, as published in the Wall Street Journal on the next business day. The adjusted interest rate will be 2.75% above the Prime Rate. Lender will adjust the interest rate on the first calendar day of each change period. - The change in interest rate is effective on that day whether or not Lender gives Borrower notice of the change. The initial interest rate must remain in effect until the first change period begins. Lender must adjust the payment amount at least annually as needed to amortize principal over the remaining term of the note. If SBA purchases the guaranteed portion of the unpaid principal balance, the interest rate becomes fixed at the rate in effect at the time of the earliest uncured payment default. If there is not uncured payment default, the rate becomes fixed at the rate in effect at the time of purchase. All remaining principal and accrued interest is due and payable 10 years from date of Note. Late Charge: If a payment on this Note is more than 10 days late, Lender may charge Borrower a late fee of up to 5% of the unpaid portion of the regularly scheduled payment. caa r.- 147 (1 n/22198) Previous editions obsolete Page 2/6 4. - RIGHT TO PREPAY: Borrower may prepay this Note. Borrower may prepay 20 percent or less of the unpaid principal balance at any time without notice. If Borrower prepays more than 20 percent and the Loan has been sold on the secondary market, Borrower must: A. Give Lender written notice; B. Pay all accrued interest; and C. If the prepayment is received less than 21 days from the date Lender receives the notice, pay anamount equal to 21 days' interest from the date lender receives the notice, less any interest accrued during the 21 days and paid under subparagraph B. If Borrower does not prepay within 60 days from the date Lender receives the notice, Borrower must give Lender a new notice. 5. DEFAULT: Borrower is in default under this Note if Borrower does not make a payment when due under this Note, or if Borrower or Operating Company. A. Fails to do anything required by this Note and other Loan Documents; B. Defaults on any other loan with Lender, C. Does not preserve, or account to Lender's satisfaction for, any of the Collateral or its proceeds; D. Does not disclose, or anyone acting on their behalf does not disclose, any material fact to Lender or SBA; E. Makes, or anyone acting on their behalf makes, a materially false or misleading representation to Lender or SBA; F. Defaults on any loan or agreement with another creditor, if Lender believes the default may materially affect Borrower's ability to pay this Note; G. Fails to pay any taxes when due; H. Becomes the subject of a proceeding under any bankruptcy or insolvency law; I. Has a receiver or liquidator appointed for any part of their business or property; J. Makes an assignment for the benefit of creditors; K. Has any adverse change in financial condition or business operation that Lender believes may materially affect Borrower's ability to pay this Note; L. Reorganizes, merges, consolidates, or otherwise changes ownership or business structure without Lender's prior written consent; or M. Becomes the subject of a civil or criminal action that Lender believes may materially affect Borrower's ability to pay this Note. 6. LENDER'S RIGHTS IF THERE IS A DEFAULT: Without notice or demand and without giving up any of its rights, Lender may: A. Require immediate payment of all amounts owing under this Note; B. Collect all amounts owing from any Borrower or Guarantor, C. File suit and obtain judgment; D. Take possession of any Collateral; or E. Sell, lease, or otherwise dispose of, any Collateral at public or private sale, with or without advertisement. SBA Form 147 (10/22/98) Previous editions obsolete Page 316 7. LENDER'S GENERAL POWERS: Without notice and without Borrower's consent, Lender may: A. Bid on or buy the Collateral at its sale or the sale of another lienholder, at any price it.choose5; B. Incur expenses to collect amounts due under this Note, enforce the terms of this Note or any other Loan Document, and preserve or dispose of the Collateral. Among other things, the expenses may include payments for property taxes, prior liens, insurance, appraisals, environmental remediation costs, and reasonable attbrney's fees and costs. If Lender incurs such expenses, it may demand immediate repayment from Borrower or add the expenses to the principal balance; C. Release anyone obligated to pay this Note; D. Compromise, release, renew, extend or substitute any of the Collateral; and E. Take any action necessary to protect the Collateral or collect amounts owing on this Note. 8. WHEN FEDERAL LAW APPLIES: When SBA is the holder, this Note will be interpreted and enforced under federal law, including SBA regulations. Lender or SBA may use state or local procedures for filing papers, recording documents, giving notice, foreclosing liens, and other purposes. By using such procedures, SBA does not waive any federal immunity from state or local control, penalty, tax, or liability. As to this Note, Borrower may not claim or assert against SBA any local or state law to deny any obligation, defeat any claim of SBA, or preempt federal law. .9. SUCCESSORS AND ASSIGNS: Under this Note, Borrower and Operating Company include the successors of each, and Lender includes its successors and assigns. 10. GENERAL PROVISIONS: A. All individuals and entities signing this Note are jointly and severally liable. B. Borrower waives all suretyship defenses. C. Borrower must sign all documents necessary at any time to comply with the Loan Documents and to enable Lender to acquire, perfect, or maintain Lender's liens on Collateral. D. Lender may exercise any of its rights separately or together, as many times and in any order it chooses. Lender may delay or forgo enforcing any of its rights without giving up any of them. E. Borrower may not use an oral statement of Lender or SBA to contradict or alter the written terms of this Note. F. If any part of this Note is unenforceable, all other parts remain in effect G. To the extent allowed bylaw, Borrower waives all demands and notices in connection with this Note, including presentment, demand, protest, and notice of dishonor. Borrower also waives any defenses based upon any claim that Lender did not obtain any guarantee; did not obtain, perfect, or maintain a lien upon Collateral; impaired Collateral; or did not obtain the fair market value of Collateral at a sale. - - . 11 / 11/771(10\ Drn..:-- Ail- D- AIM 11. STATE-SPECIFIC PROVISIONS: CMA C-- IA7 r1 nr'>';ron1 P-Amlit nriilinnn nbnolele Pam 516 12. BORROWER'S NAME(S) AND SIGNATURE(S): By signing below, each individual or entity becomes obligated under this Note as Borrower. CARLISLE SPORTS EMPORIUM, INC. Keith L. Plasterer, President SBA Form 147 (10122198) Previous editions obsolete Page 6/5 11, Tracking # 200008271 TX us Smog l?fa Adit on Ftj Ij U.S. Small Business Administration I! UNCONDITIONAL GUARANTEE SBA Loan # PLP 413-637-4009 SBA Loan Name Carlisle Sports Emporium, Inc. Guarantor Keith L. Plasterer and Jamie Plasterer Borrower Carlisle Sports Emporium, Inc. Lender Business Loan Center, Inc. Date December 20, 2000 Note Amount $175 000.00 1. GUARANTEE: Guarantor unconditionally guarantees payment to Lender of all amounts owing under the Note. This Guarantee remains in effect until the Note is paid in full. Guarantor must pay all amounts due under the Note when Lender makes written demand upon Guarantor. Lender is not required to seek payment from any other source before demanding payment from Guarantor. 2. NOTE: The "Note" is the promissory note dated December 20, 2000 in the principal amount of One hundred seventy-five thousand dollars and No/100 ******************** Dollars, from Borrower to Lender. It includes any assumption, renewal, substitution, or replacement of the Note, and multiple notes under a line of credit. 3. DEFINITIONS: "Collateral" means any property taken as security for payment of the Note or any guarantee of the Note. "Loan" means the loan evidenced by the Note. "Loan Documents" means the documents related to the Loan signed by Borrower, Guarantor or any other guarantor, or anyone who pledges Collateral. "SBA" means the Small Business Administration, an Agency of the United States of America. SBA Form 148 (10198) Previous editions obsolete. Page 1/5 4. LENDER'S GENERAL POWERS: Lender may take any of the following actions at any time, without notice, without Guarantor's consent, and without making demand upon Guarantor. A. Modify the terms of the Note or any other Loan Document except to increase the amounts due under the Note; B. Refrain from taking any action on the Note, the Collateral, or any guarantee; C. Release any Borrower or any guarantor of the Note; D. Compromise or settle with the Borrower or any guarantor of the Note; E. Substitute or release any of the Collateral, whether or not Lender receives anything in return; F. Foreclose upon or otherwise obtain, and dispose of, any Collateral at public or private sale, with or without advertisement; G. Bid or buy at any sale of Collateral by Lender or any other lienholder, at any price Lender chooses; and H. Exercise any rights it has, including those in the Note and other Loan Documents. These actions will not release or reduce the obligations of Guarantor or create any rights or claims against Lender. 5. FEDERAL LAW: When SBA is the holder, the Note and this Guarantee will be construed and enforced under federal law, including SBA regulations. Lender or SBA may use state or local procedures for filing papers, recording documents, giving notice, foreclosing liens, and other purposes. By using such procedures, SBA does not waive any federal immunity from state or local control, penalty, tax, or liability. As to this Guarantee, Guarantor may not claim or assert any local or state law against SBA to deny any obligation,-defeat any claim of SBA, or preempt federal law. 6. RIGHTS, NOTTCES, AND DEFENSES THAT GUARANTOR WAIVES: To the extent permitted by law, A. Guarantor waives all rights to: 1) Require presentment, protest, or demand upon Borrower, 2) Redeem any Collateral before or after Lender disposes of it; 3) Have any disposition of Collateral advertised; and 4) Require a valuation of Collateral before or after Lender disposes of it. B. Guarantor waives any notice of: 1) Any default under the Note; 2) Presentment, dishonor, protest, or demand; 3) Execution of the Note; 4) Any action or inaction on the Note or Collateral, such as disbursements, payment, nonpayment, acceleration, intent to accelerate, assignment, collection activity, and incurring enforcement expenses; 5) Any change in the financial condition or business operations of Borrower or any guarantor; 6) Any changes in the terms of the Note or other Loan Documents, except increases in the amounts due under the Note; and 7) The time or place of any sale or other disposition of Collateral. C. Guarantor waives defenses based upon any claim that: _ 1) Lender failed to obtain any guarantee; 2) Lender failed to obtain, perfect, or maintain a security interest in any property offered or taken as Collateral; 3) Lender or others improperly valued or inspected the Collateral; 4) The Collateral changed in value, or was neglected, lost, destroyed, or underinsured; SBA Form 148 (10!98) Previous editions obsolete. Page 215 5) Lender impaired the Collateral; 6) Lender did not dispose of any of the Collateral; 7) Lender did not conduct a commercially reasonable sale; 8) Lender did not obtain the fair market value of the Collateral; 9) Lender did not make or perfect a claim upon the death or disability of Borrower or any guarantor of the Note; 10) The financial condition of Borrower or any guarantor was overstated or has adversely changed; 11) Lender made errors or omissions in Loan Documents or administration of the Loan; 12) Lender did not seek payment from the Borrower, any other guarantors, or any Collateral before demanding payment from Guarantor: 13) Lender impaired Guarantor's suretyship rights; 14) Lender modified the Note terms, other than to increase amounts due under the Note. If Lender modifies the Note to increase the amounts due under the Note without Guarantor's consent, Guarantor will not be liable for the increased amounts and related interest and expenser., but remains liable for all other amounts; 15) Borrower has avoided liability on the Note; or 16) Lender has taken an action allowed under the Note, this Guarantee, or other Loan Documents. 7. DUTIES AS TO COLLATERAL: Guarantor will preserve the Collateral pledged by Guarantor to secure this Guarantee. Lender has no duty to preserve or dispose of any Collateral. 8. SUCCESSORS AND ASSIGNS: Under this Guarantee, Guarantor includes heirs and successors, and Lender includes its successors and assigns. 9. GENERAL PROVISIONS: A. ENFORCEMENT EXPENSES. Guarantor promises to pay all expenses Lender incurs to enforce this Guarantee, including, but not limited to, attorney's fees and costs. B. SBA NOT A CO-GUARANTOR Guarantor's liability will continue even if SBA pays Lender. SBA is not a co-guarantor with Guarantor. Guarantor has no right of contribution from SBA. C. SUBROGATION RIGHTS. Guarantor has no subrogation rights as to the Note or the Collateral until the Note is paid in full. D. JOINT AND SEVERAL LIABILITY. All individuals and entities signing as Guarantor are jointly and severally liable. E. DOCUMENT SIGNING. Guarantor must sign all documents necessary at any time to comply with the Loan Documents and to enable Lender to acquire, perfect, or maintain Lender's liens on Collateral. F. FINANCIAL STATEMENTS. Guarantor must give Lender financial statements as Lender requires. G. LENDER'S RIGHTS CUMULATIVE, NOT WAIVED. Lender may exercise any of its rights separately or together, as many times as it chooses. Lender may delay or forgo enforcing any of its rights without losing or impairing any of them. H. ORAL STATEMENTS NOT BINDING. Guarantor may not use an oral statement to contradict or alter the written terms of the Note or this Guarantee, or to raise a defense to this Guarantee. 1. SEVERABILITY. If any part of this Guarantee is found to be unenforceable, all other parts will remain in effect J. CONSIDERATION. The consideration for this Guarantee is the Loan or any accommodation by Lender as to the Loan. SBA Form 148 (10198) Previous editions obsolete. Page 3/5 10. STATE-SPECIFIC PROVISIONS: SBA Form 148 (10/98) Previous editions obsolete. Page 4/5 11. GUARANTOR ACKNOWLEDGMENT OF TERMS. Guarantor acknowledges that Guarantor has read and understands the significance of all terms of the Note and this Guarantee, including all waivers. 12. GUARANTOR NAME(S) AND SIGNATURE(S): By signing below, each individual or entity becomes obligated as Guarantor under this Guarantee. Keith L. PlaspeXer sterer SBA Form 148 (10198) Previous editions obsolete. Page 5/5 C SOM1AER L ROSS DIRECT DIAL: 215.979.1546 E-)WL: simss@duanemorris.com www.duanemarris.com November 10, 2006 VIA. CERTIFIED RETURN RECEIPT AND REGULAR MAIL Carlisle Sports Emporium, Inc. 29 Middlesex Road Carlisle, Pennsylvania 17013 Dggnefon-is• FIRWmrdAFtT AMOFFr-U NEW YORK LONDON LOS ANGELES CMCAGO HOUSTON K ADEIPHI A SAN DIEGO SAN FRANCISCO BOSTON WASHINGTON, DC LAS VEGAS ATLANTA F I L E P Y PITTSBURGH n NEWARK WU.MNGTDN PRINCETON LAKETAHOE Re: $3,600,000.00 USDA Note dated December 28, 1999 Executed By Carlisle Sports Emporium, Inc. in favor of BLX Commercial Capital L.L.C. and Business Loan Center, LLC (the "$3.6 Million USDA Note"); $900,000.00 USDA Note dated December 28, 1999 Executed By Carlisle Sports Emporium, Inc. in favor of BLX Commercial Capital L.L.C. and Business Loan Center, LLC (the "900,000 USDA Note"); and $1757000.00 SBA Note dated December 20, 2000 Executed By Carlisle Sports Emporium, Inc. in favor of BLX Commercial Capital L.L.C. and Business Loan Center, LLC (the "SSA Note") Dear Sir/Madam: Please be advised that this office represents BLX Commercial Capital L.L.C., f/k/a Business Commercial Capital Corp. ("BLC Commercial") and Business Loan Center, LLC, f/k/a Business Loan Center, Inc. (`BLC," and together with BLC Commercial aid any and all affiliates, collectively referred to herein as "Lender") iri connection with the above-referenced Promissory Notes (collectively, the "Notes"). The purpose of this letter is to notify Carlisle Sports Emporium, Inc. (`Borrower") that it is in default under the Notes. Reference is hereby made to the following: (i) the $3.6 Million USDA Note; (ii) the $900,000 USDA Note (and together with the $3.6 Million USDA Note, the "USDA Notes"); and (iii) the SBA Note. Defaults and events of default have occurred and are continuing under the Notes because, among other things, Borrower has failed to pay amounts when due under the Notes. As a result of said defaults and events of default, Lender hereby declares the entire unpaid principal balance DUANE MORRIS ALP 30 SOUTH 17TH STREET PHILADELPHIA, PA 19103-4196 PHONE: 215.979.1000 FAX: 215.979.1020 DM31416264.2 uaneMorris November 10, 2006 Page 2 of the USDA Notes and the SBA Note and all accrued, unpaid interest due and owing under the Notes unmediately due from Borrower. Pursuant to the terms of the Notes, Borrower is additionally required to reimburse Lender for all costs and expenses (including attorneys' fees and legal expenses) incurred by Lender in the collection of all amounts due under the Notes. As of November 7, 2006, the principal amount of $4,262,837.22, together with $152,875.64 in accrued and unpaid interest, is due and owing under the USDA Notes and the principal amount of $96,091.19, together with $1,650.66 in accrued and unpaid interest, is due and owing under the SBA Note. Additionally, there are late fees and other charges accruing in accordance with the terms of the Notes. Lender hereby demands immediate payment in full of all amounts due and owing under the Notes. Since the amounts due and owing under the Notes increase each day payment is not received, please contact Ms. Geraldine Segars at (646) 723-5222 to obtain the updated payoff amounts prior to making payment. References in this letter to specific breaches and events of default are not intended to be exclusive and do not in any way create a waiver of-other defaults and events of default that are not specified herein or that have occurred or might occur under any obligations of Borrower to Lender. Neither the contents of this letter, nor any communications between Lender and Borrower, shall constitute or be deemed to constitute a waiver of any rights or remedies Lender may have under the Notes or related loan documents, or any other obligations of Borrower to Lender and/or applicable law, all of which are expressly reserved and preserved hereby. Sincerely, ?,4m rmc/?" ) g,4"2 Sommer L. Ross dj g cc: Mr. Keith L. Plasterer (Guarantor) Ms. Jamie Plasterer (Guarantor) Anthony P. Tabasso, Esquire (Borrower's Counsel) Ms. Geraldine Segars (Lender) Rudolph J. Di Massa, Jr., Esquire (Lender's Counsel) DM3\476264.2 r1.i s 'i Er I • 1 r1 LnOFF Er W-9 Postage a O Certified Fee E3 1-3 Rewm Receipt Fee == (End nt Required) E3 Restricted Delivery Fee -n (Endorsement Required) r-q r-9 Total Postage & Fees Ill p [Sent To O X Ljr ? -Srtre?et-_ Aef: IJe :------ .C l?as,5 S ?F 1 ?ENDER: CO14PLETE THIS SECTION, ® Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. s Print your name and address on the reverse so that we can return the card to you. s Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: A. e'r ature n X ? Agent ? Addressee Received by (Printed Name) C. Date of Delivery / / - /3 D. Is delivery address different from item 1? ? Yes If YES, enter delivery address below: ? No 3. Service Type E-C-ertifled Mail CTZd cress Mail ? Registered ? Return Receipt for Merchandise ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes 2. Article Number 7 f7 1160 0001 1955 1952 .+ (Ti?sf'LfrojtA?ie}vF?'il?3„-'.,••r??l:A! '?`?"_ -- r PS Form 3811, August 2001 Domestic Return Receipt tD2595-01-M-2505 U.S. POSTAL SERVICE CERTIFICATE OF MAILING MAY BE USED FOR DOMESTIC AND INTERNATIONAL MAIL. DOES NOT PROVIDE FOR INSURANCE-POSTMASTER Received From: ?'?L yh t 4 z. 4 S & 4,7t/ /311,- /'-& S G L;,, 3D S 1 ? 771 ?-f One piece of ordinary mail addressed to: i, 9 PS Form 3817, January 2001 a? LO rrl C. /4^? N Oil tp O C; O >O U c ? d ti N ?O r coo O O t? co ILL- _` °w 2ah ? ``? J N O Q hi O O a. SO1,D.ER I.. ROSS DIRECT DIAL: 215.979.1546 E-MAIL: slross@duanemonis.rom www.duanemorrixxom November 10, 2006 VIA CERTIFIED MAIL RETURN RECEIPT AND REGULAR MAIL Mr. Keith L. Plasterer Ms. Jamie Plasterer 36 Kelly Drive Carlisle, PA 17013 TuaneMon-is- FIRWa adAFFfLUIF OFFICES NEW YORK LONDON LOS ANGELES CHICAGO HOUSTON PHILADELPHIA SAN DIEGO SAN FRANCLSCO BOSTON WASHINGTON, DC LAS VEGAS ATLANTA MIAMI PITTSBURGH NEWARK ILE C WILMINGTON PRINCETON F LAKETAHOE Re: $3,600,000.00 USDA Note dated December 28, 1999 Executed By Carlisle Sports Emporium, Inc. in favor of BLX Commercial Capital L.L.C. and Business Loan Center, LLC (the "3.6 Million USDA Note"); $900,000.00 USDA Note dated December 28, 1999 Executed By Carlisle Sports Emporium, Inc. in favor of BLX Commercial Capital L.L.C. and Business Loan Center, LLC (the "$9,000.00 USDA Note"); and $175,000.00 SBA Note dated December 20, 2000 Executed By Carlisle Sports Emporium, Inc. in favor of BLX Commercial Capital L.L.C. and Business Loan Center, LLC (the "SBA Note") Dear Mr. and Mrs. Plasterer: Please be advised that this office represents BLX Commercial Capital L.L.C., f/k/a Business Commercial Capital Corp. ("BLC Commercial") and Business Loan Center, LLC, f/k/a Business Loan Center, Inc. ("BLC," and together with BLC Commercial and any and all affiliates, collectively referred to herein as "Lender") in connection with the above-referenced Promissory Notes (collectively, the "Notes"). The purpose of this letter is to notify you in your capacity as guarantors ("Guarantors") that Carlisle Sports Emporium, Inc. ("Borrower") is in default of its obligations to Lender under the Notes. Reference is hereby made to the following: (i) the $3.6 Million USDA Note; '(ii) the $900,000 USDA Note (and together with the $3.6 Million USDA Note, the "USDA Notes"); (iii) the SBA Note; and (iv) those certain Guarantee Agreements executed by you, Guarantors, in favor of Lender, pursuant to which you each guaranteed and agreed to act as surety for the obligations owed by Borrower to Lender under the Notes and related loan documents. DUANE MORRIS LLP 30 SOUTH 17TH STREET PHILADELPHIA, PA 19103-4196 PHONE: 215.979.1000 FAX: 215.979.1020 DM34416262.2 uaneorris November 10, 2006 Page 2 Defaults and events of default have occurred and are continuing under the Notes because, among other things, Borrower has failed to pay amounts when due under the Notes. As a result of said defaults and events of default, Lender hereby declares the entire unpaid principal balance of the USDA Notes and the SBA Note and all accrued, unpaid interest due and owing under the Notes immediately due from Borrower. Pursuant to the terms of the Notes, Borrower is additionally required to reimburse Lender for all costs and expenses (including attorneys' fees and legal expenses) incurred by Lender in the collection of all amounts due under the Notes. As of November 7, 2006, the principal amount of $4,262,837.22, together with $152,875.64 in accrued and unpaid interest, is due and owing under the USDA Notes and the principal amount of $96,091.19, together with $1,650.66 in accrued and unpaid interest, is due and owing under the SBA Note. Additionally, there are late fees and other charges accruing in accordance with the terms of the Notes. Lender hereby demands immediate payment in full of all amounts due and owing under the Notes. Since the amounts due and owing under the Notes increase each day payment is not received, please contact Ms. Geraldine Segars at (646) 723-5222 to obtain the updated payoff amounts prior to making payment. References in this letter to specific breaches and events of default are not intended to be exclusive and do not in any way create a waiver of other defaults and events of default that are not specified herein or that have occurred or might occur under any obligations of Borrower to Lender. Neither the contents of this letter, nor any communications between Lender'- and Borrower, shall constitute or be deemed to constitute a waiver of any rights or remedies Lender may have under the Notes or related loan documents, or any other obligations of Borrower to Lender and/or applicable law, all of which are expressly reserved and preserved hereby. Sincerely, Sommer L. Ross cc: Carlisle Sports Emporium., Inc. (Borrower) Anthony P. Tabasso, Esquire (Guarantors' Counsel) Ms. Geraldine Segars (Lender) Rudolph J. Di Massa, Jr., Esquire (Lender's Counsel) DM3\416262.2 Er rrl a ° a . USE F• ? : + - t`- Postage $ )71 03 i?t•f-$ rq ° Certified Fee 4?2 M E3 Return Receipt Fee (Enjorsement Required) C7 ° Restricted Delivery Fee (Endors ement Required) V C7 Total Postage lz Fees $ yf U 2006 Sent To ' ?.. Street Apt No.; - orPO Box No. 10 k t be' "e, I '7 -- 0 1 °---- 2? --------------------------- Ll??rsl? , ?? .. COMPLETE THIS SECTIOM N Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. ¦ Pritit your name and address on the reverse so that we can return the card to you. a Attach this card to the back of the mailpiece, or on the front if space permits. 1. Article Addressed to: 3 to 16G.1 ry D2-, ?- Cd-aAis rg , P A t -i v i 3 •Artic ?+•-?tfrat S Foi.,, A. Signature X ??/Ager JZ Add, V. Received by (Printed Name) I C. Date of Dr D. Is delivery address different from item 17 ? Yes If YES, enter delivery address below: ? No 3. Service Type Ek6'rtified Mail ? Express Mail O Registered etum Receipt for Merct 0 Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Ye! tozs9s- U.S. POSTAL SERVICE CERTIFICATE OF MAILING MAY BE USED FOR DOMESTIC AND-WE111 ATrONAL MAIL, PROVIDEFORINSURANCE-POSTMASTER Received From: P.?it Dune /?'/D?e/S LLB' 3©oS. X77"' ST One piece of ordinary marl addressed to: f R ?ersL?, P4 i7d13? . ?s PS Form 3817, January 2001 a DOES NOT N ? c MCI s G l}g 1 r-(-?•? mot, ? ?7• a •. ru + • .. C3 Postage $ # ?- G O Certified Fee ^? Q C3 Return Receipt Fee (Endorsement Required) P°stma o / HerA • i? t p Restricted Delivery Fee ?? E3 (Endorsement Required) G n t!6 V r-q [3 Total Postage & Fees y/ Q? ?J Y D . C3 C3 Sent To = r. -- Street Apt No.; - -- `-- orPOSozNo, 3 (e 1(3Jr C Ly ?fLr a(!: --------------------- ------•°- °° - --- Cily,• State, , ZIP +4 p -g C4 fl-IfS le 1 ff 1 7 0 1 3 IN Complete items 1, 2, and 3. Also complete item 4 'rf Restricted Delivery is desired. ¦ Print your name and address on the reverse • so that we can return the card to you. N Attach this card to the back of the mailplece, or on°the front if space permits. A. Agent v ? Addre Received by (Printed Name) C. Date of De 1. Article Addressed to: ?GI,v(ts)e , iq 1-70 A Fot... D. Is delivery address different from item 1? ? Yes • 2. Artii ra, !f YES, enter delivery address below: ? No 3, Serviye Type Certified Mail ? Express Mail ? Registered 0-'14e-turn Receipt for Merct ? Insured Mail ? C.O.D. 4. Restricted Delivery? (Extra Fee) ? Yes U.S. POSTAL SERVICE CERTIFICATE OF MAILING MAY BE USED FOR DOMESTIC AND INTERNATIONAL MAIL, DOES NOT PROVIDE FOR INSURANCE-POSTMASTER Received From: 5Lrjrl PrutA- L _ 0 S Ua- n.L. lyB2e1SC L One piece of ordinary mail addressed to: s . Ja?t. as ??G 3 ? ??// /' eta c. ?O 170 \S 102S95- ? r o c or 3 f?.N O a° ?yII -U FCC ?L &? n n t o mU rp C ? C L O jft`l?t O O s PS Form 3817, January 2001 T)uaneorris• SOMMER L. ROSS DIRECT DIAL: 215.979.1546 E-MAIL: slmss@duancmorris.com Wim.f uanemorr7S.Com December 29, 2006 F ILE C 9P? VIA CERTIFIED MAIL RETURN RECEIPT AND REGULAR MAIL Carlisle Sports Emporium, Inc. 29 Middlesex Road Carlisle, Pennsylvania 17013 7001 2510 0008 7724 1388 FLW m,d AFMATE OFFICES NEW YORK LOS ANGELES CHICADO HOUSTON PHILADELPHIA SAN DIEGO SAN FRANCISCO BOSTON WASHINGTON, DC LAS VEGAS ATLANTA PITTSBURGH NEWARK WILMINGTON PRINCETON LAKE TAHOE Re: $3,600,000.00 USDA Note dated December 28, 1999 Executed By Carlisle Sports Emporium, Inc. in favor of BLX Commercial Capital L.L.C. and Business Loan Center, LLC (the "$3.6 Million USDA Note"); . $900,000.00 USDA Note dated December 28, 1999 Executed By Carlisle Sports Emporium, Inc. in favor of BLX Commercial Capital L.L.C. and Business Loan Center, LLC (the "$900,000 USDA Note"); and $175,000.00 SBA Note dated December 20, 2000 Executed By Carlisle Sports Emporium, Inc. in favor of BLX Commercial Capital L.L.C. and Business Loan Center, LLC (the "SBA Note") Dear Sir/Madam: Please be advised that this office represents BLX Commercial Capital L.L.C., fWa Business Commercial Capital Corp. ("BLC Commercial") and Business Loan Center, LLC, f/k/a Business Loan Center, Inc. ("BLC," and together with BLC Commercial and any and all affiliates, collectively referred to herein as "Lender") in connection with the above-referenced Promissory Notes (collectively, the "Notes"). The purpose of this letter is to notify Carlisle Sports Emporium, Inc. ("Borrower") that it is in default of certain of its obligations under the Notes. Reference is hereby made to the following: (i) the $3.6 Million USDA Note; (ii) the $900,000 USDA Note (and, together with the $3.6 Million USDA Note, the "USDA Notes"); and (iii) the SBA Note. Reference is further made to that certain demand letter dated November 10, 2006 (the "November Demand Letter") that was sent to Borrower informing Borrower that it was in default of certain obligations under the Notes. DUANE MORRIS LLP 30 SOUTH 17TH STREET PHILADELPHIA. PA 19103-4196 PHONE: 215.979.1000 FAX: 215.979.1020 .- %.,z-7oa t Duane kris December 29, 2006 Page 2 Despite the fact that Borrower has made certain payments since the November Demand Letter (the "Partial Payments"), these Partial Payments neither satisfied the entire unpaid principal balance of the USDA Notes and SBA Note and all accrued, unpaid interest due and owing under the Notes (as required by the November Demand Letter), nor did the Partial Payments bring Borrower current under the USDA Notes. Accordingly, the purpose of this letter is to again inform Borrower that defaults and events of default have occurred and are continuing under the Notes because, among other things, Borrower has failed to pay amounts when due under the Notes. As a result of said defaults and events of default, Lender hereby declares the entire unpaid principal balance of the USDA Notes and the SBA Note and all accrued, unpaid interest due and owing under the Notes immediately due and payable. Pursuant to the terms of the Notes, Borrower is additionally required to reimburse Lender for all costs and expenses (including attorneys' fees and legal expenses) incurred by Lender in the collection of all amounts due under the Notes. As of December 27, 2006, the principal amount of $4,262,837.22, together with $152,730.55 in accrued and unpaid interest, is due and owing under the USDA Notes, and the principal amount of $91,868.30, together with $166.12 in accrued and unpaid interest, is due and owing under the SBA Note. Additionally, there are late fees and other charges accruing in accordance with the terms of the Notes. Lender hereby demands immediate payment in full of all amounts due and owing under the Notes. Since the amounts due and owing under the Notes increase each day that payment is not received by Lender, please contact Ms. Geraldine Segars at (646) 723-5222 to obtain updated payoff amounts prior to making payment. Lender further demands, due to the fact that several of Borrower's checks tendered as payment to Lender have been returned due to insufficient funds, that any negotiable instrument tendered to Lender by Borrower be honored upon presentment by Lender. References in this letter to specific breaches and events of default are not intended to be exclusive and do not in any way create a waiver of other defaults and events of default that are not specified herein or that have occurred or might occur under any obligations of Borrower to Lender.' Neither the contents of this letter, nor any communications between Lender and Borrower, shall constitute or be deemed to constitute a waiver of any rights or remedies Lender may have under the Notes or related loan documents or under applicable law, or of any other DM3W33799.1 DuaneNorris December 29, 2006 Page 3 obligation of Borrower to Lender under the Notes or related loan documents or under applicable law, all of which are expressly reserved and preserved hereby. Sincerely, Sommer L. Ross SLR cc: Mr. Keith L. Plasterer (Guarantor) Ms. Jamie Plasterer (Guarantor) Anthony P. Tabasso, Esquire (Borrower's Counsel) Ms. Geraldine Segars (Lender) Rudolph J. Di Massa, Jr., Esquire (Lender's Counsel) D1,13\433799.1 F uaneorris' SOMMER L. ROSS DIRECT DIAL: 215.979.1546 E -MALL: slross@duanemorris.com www.duanemorris.com FIL Ec P Y' December 29, 2006 VIA CERTIFIED MAIL RETURN RECEIPT AND REGULAR MAIL 7006 0100 0001 7417 0372 Mr. Keith L. Plasterer Ms. Jamie Plasterer 7006 0100 0001 7417 0389 36 Kelly Drive Carlisle, Pennsylvania 17013 FIRM and AFFXUTE OFFICES NEW YORK LONDON LOS ANGELES CHICAGO HOUSTON PLOLADELYHiA SAN DIEGO SAN FRANCISCO BOSTON WASHINGTON. DC LAS VEGAS ATLANTA PITTSBURGH NEWARK WILI.IINGTON PRINCETON LAKE TAHOB Re: $3,600,000.00 USDA Note dated December 28, 1999 Executed By Carlisle Sports Emporium, Inc. in favor of BLX Commercial Capital L.L.C. and Business Loan Center, LLC (the "$3.6 Million USDA Note"); $900,000.00 USDA Note dated December 28, 1999 Executed By Carlisle Sports Emporium, Inc. in favor of BLX Commercial Capital L.L.C. and Business Loan Center, LLC (the "$900,000 USDA Note"); and ' $175,000.00 SBA Note dated December 202 2000 Executed By Carlisle Sports Emporium, Inc. in favor of BLX Commercial Capital L.L.C. and Business Loan Center, LLC (the "SBA Note") Dear Mr. and Mrs. Plasterer: Please be advised that this office represents BLX Commercial Capital L.L.C., f/k/a Business Commercial Capital Corp. ('BLC Commercial') and Business Loan Center, LLC, f/k/a Business Loan Center, Inc. ("BLC," and together with BLC Commercial and any and all. affiliates, collectively referred to herein as "Lender") in connection with the above-referenced Promissory Notes (collectively, the "Notes"). The purpose of this letter is to notify you in your capacity as guarantors ("Guarantors") that Carlisle Sports Emporium, Inc. ("Borrower") is in default of certain of its obligations under the Notes. Reference is hereby made to the following: (i) the $3.6 Million USDA Note; (ii) the $900,000 USDA Note (and, together with the $3.6 Million USDA Note, the "USDA Notes"); (iii) the SBA Note; and (iv) those certain Guarantee Agreements executed by Guarantors in favor of Lender, pursuant to which you each guaranteed to act as surety for the obligations owed by Borrower to Lender under the Notes and related loan documents. Reference is further made to DUANE MORRIS LLP 30 SOUTH.17TH STREET PHILADELPHIA, PA 19103-4196 PHONE: 215.979.1000 FAX: 215.979.1020 --%A17R7j I Duane orris December 29, 2006 Page 2 that certain demand letter dated November 10, 2006 (the "November Demand Letter") that was sent to Guarantors informing you that Borrower was in default of certain of its obligations under the Notes. Despite the fact that Borrower has made certain payments since the November Demand Letter (the "Partial Payments"), these Partial Payments neither satisfied the entire unpaid principal balance of the USDA Notes and SBA Note and all accrued, unpaid interest due and owing under the Notes (as required by the November Demand Letter), nor did the Partial Payments bring Borrower current under the USDA Notes. Accordingly, the purpose of this letter is to again inform you that defaults and events of default have occurred and are continuing under the Notes because, among other things, Borrower has failed to pay amounts when due under the Notes. As a result of said defaults and events of default, Lender hereby declares the entire unpaid principal balance of the USDA Notes and the SBA Note and all accrued, unpaid interest due and owing under the Notes immediately due and payable. Pursuant to the terms of the Notes, Borrower and Guarantors are additionally required to reimburse Lender for all costs and expenses (including attorneys' fees and legal expenses) incurred by Lender in the collection of all amounts due under the Notes. As of December 27, 2006, the principal amount of $4,262,837.22, together with $152,730.55 in accrued and unpaid interest, is due and owing under the USDA Notes, and the principal amount of $91,868.30, together with $166.12 in accrued and unpaid interest, is due and owing under the SBA Note. Additionally, there are late fees and other charges accruing in accordance with the terms of the Notes. Lender hereby demands immediate payment in full of all amounts due and owing under the Notes. Since the amounts due and owing under the Notes increase each day that payment is not received by Lender, please contact Ms. Geraldine Segars at (646) 723-5222 to obtain updated payoff amounts prior to making payment. Lender further demands, due to the fact that several of Borrower's checks tendered as payment to Lender have been returned due to insufficient funds, that any negotiable instrument tendered to Lender by Borrower be honored upon presentment by Lender. References in this letter to specific breaches and events of default are not intended to be exclusive and do not in any way create a waiver of other defaults and events of default that are not specified herein or that have occurred or might occur under any obligations of Borrower to Lender. Neither the contents of this letter, nor any communications between Lender and Borrower and/or Guarantors, shall constitute or be deemed to constitute a waiver of any rights or remedies Lender may have under the Notes or related loan documents or under applicable law, or T)M3\433823.1 D-uaneNOI ris December 29, 2006 Page 3 of any other obligation of Borrower and/or Guarantors to Lender under the Notes or related loan documents or under applicable law, all of which are expressly reserved and preserved hereby. Sincerely, . /ZOnlm71cf, 91. &P-I Sommer L. Ross SLR cc: Carlisle Sports Emporium, Inc. (Borrower) Anthony P. Tabasso, Esquire (Guarantors' Counsel) Ms. Geraldine Segars (Lender) Rudolph J. Di Massa, Jr., Esquire (Lender's Counsel) MA7%A11271 1 CERTIFICATE OF SERVICE I, Sommer L. Ross, Esquire, hereby certify that on this 14th day of June, 2007, I caused a true and correct copy of the foregoing Complaint for Breach of Contract to be served upon the following via hand delivery: Anthony P Tabasso, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers, LLP 260 South Broad Street Philadelphia, PA 19102 Counsel for Defendants U? rYYYC/? ?? Sommer L. Ross, Esquire DM3\523622.1 G STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 11:16 Am 0113112003 030066723 - 2227663 CERTIFICATE OF CONVERSION OF BUSMESS LOAN CENTER, INC. (a Delaware corporation) do BUSINESS LOAN CENTER, LLC (a Delaware limited liability company) Pursuant to Section 266 of the Delaware General Corporation Law (the "DGCL") and Section 18-214 of the Delaware Limited Liability Company Act (the "DLLCA"), the undersigned domestic corporation (the "Corporation') hereby duly executes and files this Certificate of Conversion: 1. The name of the Corporation immediately prior to filing this Certificate of Conversion is Business Loan Center, Inc., which is also the name under which the Corporation was originally incorporated. 2. The Corporation's original Certificate of Incorporation was filed with the Secretary of State of the Stage of Delaware on April 16, 1990. 3. The name of the limited liability company to which the Corporation is being converted, as set forth in its Certificate of Formation, is Business Loan Center, LLC, a limited liability company organized under the laws of the State of Delaware. 4. The conversion has been approved in accordance with the provisions of Section 266 of the DGCL and Section 18-214 of the DLLCA. The conversion shall be effective at 11:56 p.m. on January 31, 2003. IN WITNESS WHEREOF, the undersigned has caused this Certificate of Conversion to be executed by an authorized officer on its behalf. Executed on January 30, 2003. BUSINESS LOAN CENTER, INC. By: /s/Robert F. Tannenhauser President and Chief Executive Officer 132 r? DUANE MORRIS LLP Attorneys for Plaintiff By: Rudolph J. Di Massa, Jr. Business Loan Center, LLC PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 r c z 215.979.1506/1546 _ ti n 215.979.1020 (facsimile) - r IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA _ r- BUSINESS LOAN CENTER, LLC, f/k/a F.; o BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, NO. - 3SC (2t c>???1L.`''l V. KEITH L. PLASTERER and JAMIE PLASTERER, CIVIL ACTION - LAW 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. 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, GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW. THIS OFFICE CAN PROVIDE YOU WITH INFORMATION ABOUT HIRING A LAWYER. IF YOU CANNOT AFFORD TO HIRE A LAWYER, THIS OFFICE MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE. Cumberland County Bar Association Lawyer Referral Service 32 South Bedford Street Carlisle, PA 17013 Telephone: Toll-Free (800) 990-9108 or (717)249-3166 2 DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, fWa BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, : NO. V. KEITH L. PLASTERER and JAMIE PLASTERER, 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. CIVIL ACTION - LAW COMPLAINT FOR BREACH OF CONTRACT Plaintiff, Business Loan Center, LLC ("Business Loan Center"), by and through its attorneys, Duane Morris LLP, herby files this Complaint for Breach of Contract against Keith L. Plasterer ("Keith Plasterer") and Jamie Plasterer ("Jamie Plasterer" and together with Keith Plasterer, the "Defendants"), and, in support hereof, states as follows: THE PARTIES 1. Business Loan Center is a Delaware limited liability company with a principal place of business located at 1633 Broadway, 39th Floor, New York, New York 10019. 2. Prior to January 312003, Business Loan Center operated its business under the name Business Loan Center, Inc. ("Business Loan Center Inc."). However, on or about January 30, 2003, the company changed its name to Business Loan Center, LLC (the "Business Loan Center Name Change"). The Business Loan Center Name Change is evidenced by the Certificate of Conversion of Business Loan Center, Inc. to Business Loan Center, LLC, a true and correct copy of which is attached hereto and incorporated herein by reference as Exhibit "A The Business Loan Center Name Change had, and continues to have, no effect on the ability of Business Loan Center to enforce its rights and remedies under any loan documents executed by the Defendants in favor of Business Loan Center Inc. 4. Keith Plasterer and Jamie Plasterer, husband and wife, are adult individuals and residents of the Commonwealth of Pennsylvania with an address of 36 Kelly Drive, Carlisle, Pennsylvania 17013. JURISDICTION AND VENUE 5. This. Court has personal jurisdiction over Defendants pursuant to 42 Pa.C.S.A. § 5301(a)(1)(ii) because Defendants are residents of, and domiciled in, the Commonwealth of Pennsylvania. 6. Venue is proper in Cumberland County pursuant to 42 Pa.C.S.A. § 931 and Pennsylvania Rule of Civil Procedure 1006 because Defendants reside in Cumberland County, the underlying transactions and occurrences took place in Cumberland County and the causes of action arose in Cumberland County. 2 FACTUAL ALLEGATIONS 7. Carlisle Sports Emporium, Inc. ("Carlisle Sports") is a Pennsylvania corporation with a principal place of business located at 29 South Middlesex Road, Carlisle, Pennsylvania 17013. Keith Plasterer is the President of Carlisle Sports. 9. The Defendants, Keith Plasterer and Jamie Plasterer, each executed a personal guarantee in favor of Business Loan Center in order to secure certain obligations due and owing to Business Loan Center from Carlisle Sports as a result of a certain loan transaction entered into by and between Carlisle Sports and Business Loan Center. 10. On or about December 20, 2000, Business Loan Center Inc. entered into a loan transaction with Carlisle Sports, whereby Business Loan Center Inc. loaned Carlisle Sports (hereinafter, "Borrower") the principal sum of One Hundred Seventy Five Thousand Dollars $175,000.00 (the "$175,000 Loan"). 11. The $175,000 Loan was evidenced by, inter alia, a promissory note in the amount of One Hundred Seventy Five Thousand Dollars ($175,000.00) dated December 20, 2000, executed and delivered to Business Loan Center Inc. by Borrower (the "$175,000 Note"). A true and correct copy of the $175,000 Note is attached hereto and incorporated herein by reference as Exhibit `B." 12. As security for the $175,000 Loan and the obligations of Borrower due and owing to Business Loan Center Inc. under the $175,000 Note, on December 20, 2000, Defendants executed that certain guaranty agreement in favor of Business Loan Center Inc. (the "$175,000 Guaranty"). A true and correct copy of the $175,000 Guaranty is attached hereto and incorporated herein by reference as Exhibit "C." 13. Pursuant to the terms of the $175,000 Note, payments of principal and interest are due on the first day of each month. 14. Pursuant to the terms of the $175,000 Note, in the event any monthly payments of principal and interest remain unpaid ten (10) days after such payments are due, a delinquency charge of five percent (5%) of the amount so overdue will be assessed. 15. Borrower is in default of its obligations under the $175,000 Note as a result of, among other things, Borrower's failure to make payments when due to Business Loan Center (the "$175,000 Payment Default") 16. By letter dated November 10, 2006, Business Loan Center notified Borrower of the $175,000 Payment Default and that it was accelerating all amounts then due and owing under the $175,000 Note (the "November Default Letter"). A true and correct copy of the November Default Letter is attached hereto and incorporated herein by reference as Exhibit «D.» 17. In response to the November Default Letter, Borrower made a partial payment to Business Loan Center; however, the payment neither satisfied the entire unpaid principal balance due under the $175,000 Note and all accrued, unpaid interest due and owing under thereunder, nor cured the $175,000 Payment Default. 18. By letter dated December 29, 2006, Business Loan Center again notified Borrower of the $175,000 Payment Default and that it was accelerating all amounts then due and owing under the $175,000 Note (the "December Default Letter"). A true and correct copy of the December Default Letter is attached hereto and incorporated herein by reference as Exhibit «E.» 4 19. Since the December Default Letter, Borrower has made and attempted to make partial payments to Business Loan Center; however, these partial payments neither satisfied the entire unpaid principal balance due under the $175,000 Note and all accrued, unpaid interest due and owing under thereunder, nor cured the $175,000 Payment Default. 20. Borrower remains in default of its obligations under the $175,000 Note. 21. As a result of Borrower's non-payment, Defendants are obligated through the $175,000 Guaranty to pay the amounts due and owing to Business Loan Center under the $175,000 Note. 22. To date, Defendants have failed to pay the amounts due and owing to Business Loan Center under the $175,000 Note despite demand therefor. 23. The amounts due and owing under the $175,000 Note as of April 16, 2007 are as follows: Unpaid Principal: Accrued And Unpaid Interest Through April 16, 2007: Unpaid Late Charges Through April 16, 2007: Miscellaneous Fees Through April 16, 2007: Attorney Fees And Costs: $90,953.68 $1,726.87 $1,629.07 $25.00 To Be Determined Total Amount Due As Of April 16, 2007: $94,334.62 (plus additional interest, which continues to accrue at a per diem rate of $27.41, fees and costs and expenses, including, without limitation, attorneys' fees which continue to accrue) 5 COUNTI Breach of Contract Against Keith L. Plasterer 24. Business Loan Center re-alleges and incorporates by this reference all the allegations of the aforementioned paragraphs as if fully set forth in this paragraph. 25. Pursuant to the $175,000 Guaranty, Defendant Keith Plasterer unconditionally guaranteed to Business Loan Center (i) the full and prompt payment when due (whether at maturity, by acceleration or otherwise) all sums due under the $175,000 Note, and (ii) the full and prompt performance by Borrower of its other obligations under the $175,000 Note and all documents executed in connection therewith (collectively, the "Loan Documents"). 26. Pursuant to the $175,000 Guaranty, if Borrower is in default of its obligations under the $175,000 Note, upon demand, Defendant Keith Plasterer shall promptly pay Business Loan Center any amount due under the $175,000 Note, or perform the obligation which is in default. 27. Pursuant to the $175,000 Guaranty, Defendant Keith Plasterer also agreed to pay all costs and expenses, including reasonable attorney's fees, paid or incurred by Business Loan Center in collecting any amount that is due to Business Loan Center or in performing any defaulted obligation. 28. Business Loan Center made written demand upon Defendant Keith Plasterer for payment of the amounts due and owing under the $175,000 Note on November 10, 2006 and again on December 29, 2006, as evidenced by those certain demand letters attached hereto and incorporated herein by reference as Exhibits "F" and "G" respectively (hereinafter, the "November Guarantor Demand Letter" and the "December Guarantor Demand Letter"). 29. To date, Defendant Keith Plasterer has failed to cure the $175,000 Payment Default. 6 WHEREFORE, Business Loan Center, LLC, a Delaware limited liability company, hereby demands that: (i) judgment in the amount of $94,334.62 be entered against Defendant Keith L. Plasterer in favor of Business Loan Center; (ii) judgment for a yet to be determined amount, representing Business Loan Center's costs, legal fees, and interest until the date of payment, be entered in favor of Business Loan Center and against Defendant Keith L. Plasterer; and (iii) any such other and further relief as this Court may deem proper. COUNT II Breach of Contract AF-ainst Jamie Plasterer 30. Business Loan Center re-alleges and incorporates by this reference all the allegations of the aforementioned paragraphs as if fully set forth in this paragraph. 31. Pursuant to the $175,000 Guaranty, Defendant Jamie Plasterer unconditionally guaranteed to Business Loan Center (i) the full and prompt payment when due (whether at maturity, by acceleration or otherwise) all sums due under the $175,000 Note, and (ii) the full and prompt performance by Borrower of its other obligations under the $175,000 Note and all related other Loan Documents. 32. Pursuant to the $175,000 Guaranty, if Borrower is in default of its obligations under the $175,000 Note, upon demand, Defendant Jamie Plasterer shall promptly pay Business Loan Center any amount due under the $175,000 Note, or perform the obligation which is in default. 33. Pursuant to the $175,000 Guaranty, Defendant Jamie Plasterer also agreed to pay all costs and expenses, including reasonable attorney's fees, paid or incurred by Business Loan Center in collecting any amount that is due to Business Loan Center or in performing any defaulted obligation. 7 34. Business Loan Center made written demand upon Defendant Jamie Plasterer for payment of the amounts due and owing under the $175,000 Note on November 10, 2006 and again on December 29, 2006, as evidenced by the November Guarantor Demand Letter and the December Guarantor Demand Letter, which are attached hereto and incorporated herein by reference as Exhibits "F" and "G," respectively. 35. To date, Defendant Jamie Plasterer has failed to cure the $175,000 Payment Default. WHEREFORE, Business Loan Center, LLC, a Delaware limited liability company, hereby demands that: (i) judgment in the amount of $94,334.62 be entered against Defendant Jamie Plasterer in favor of Business Loan Center; (ii) judgment for a yet to be determined amount, representing Business Loan Center's costs, legal fees, and interest until the date of payment, be entered in favor of Business Loan Center and against Defendant Jamie Plasterer; and (iii) any such other and further relief as this Court may deem proper. Dated: June q, 2007 Respectfully submitted, DUANE MORRIS LLP By--- -Al. Rudolph J. Di Massa, Jr., Esquire PA Bar Id. No. 35492 Sommer L. Ross, Esquire PA Bar Id. No. 98451 30 South 17th Street Philadelphia, PA 19103 215.979.1000 Attorney for Plaintiff BUSINESS LOAN CENTER, LLC 8 VERIFICATION I, Geraldine Segars, hereby state that I am Vice President of BLX Commercial Capital, and verify that the statements made in the foregoing Complaint for Breach of Contract are true and correct to the best of my knowledge, information and belief. As Vice President of BLX Commercial Capital, LLC, I am authorized to make this Verification on behalf of Plaintiff Business Loan Center, LLC. I understand that the statements made therein are made subject to penalties of 18 Pa. C.S. § 4904 relating to unworn falsification to authorities. BLX COMMERCIAL CAPITAL, LLC Date: June L4; 2007 By: Geraldine Segars Vice President DM31523622.1 j SEP 0 4 2007 B Y. ----?---- --------- NOTICE TO PLEAD TO THE PLAINTIFFS: You are hereby notified to file a written response to tha, enclosed New Matter within twenty (305 days of service hereof or a }udgme may be entered against you. By: Attorney for KLEHR, HARRISON, HARVEY, BRANZBURG & ELLERS LLP ; By: Shahan G. Teberian, Esquire/Anthony P. Tabasso, Esquire J I.D. Nos. 69407/80851 260 S. Broad Street Philadelphia, PA 19102 Attorneys for Defendants (215) 568-6060 Keith L. Plasterer and Jamie Plasterer IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY OF PENNSYLVANIA BUSINESS LOAN CENTER, L.L.C. fWa BUSINESS LOAN CENTER, INC. 1633 Broadway, 19th Floor New York, NY 10019 Plaintiffs, V. KEITH L. PLASTERER and JAMIE PLASTERER : 36 Kelly Drive Carlisle, PA 17013 Defendants. No. 07-3514 Civil Term CIVIL ACTION - LAW ANSWER AND NEW MATTER Defendants, Keith L. Plasterer and Jamie Plasterer, by and through their undersigned counsel, hereby answer the Plaintiffs' Complaint for Breach of Contract as follows: 1. Admitted. 2. Denied. After reasonable investigation, the Defendants are without sufficient information to form a belief as to the truth or falsity of the allegations contained in this paragraph PHILI 749470-1 of the Complaint, and therefore deny same. Strict proof thereof is demanded at trial, if relevant. By way of fiurther answer, but not in derogation of the foregoing, the allegations contained in this paragraph of the Complaint refer to a document, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. Finally, the allegations of this paragraph of the Complaint refer to a document, the terms and legal effects of which speak for themselves. The Plaintiffs' characterization of those terms and those legal effects are denied. 3. Denied. After reasonable investigation, the Defendants are without sufficient information to form a belief as to the truth or falsity of the allegations contained in this paragraph of the Complaint, and therefore deny same. Strict proof thereof is demanded at trial, if relevant. By way of further answer, but not in derogation of the foregoing, the allegations contained in this paragraph of the Complaint constitute legal conclusions to which no response is required and are, therefore, deemed denied. 4. Admitted. 5. Denied. The allegations contained in paragraph 6 constitute conclusions of law to which no response is required, and are, therefore, deemed'denied. 6. Denied. The allegations contained in paragraph 7 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. 7. Admitted. 8. Admitted. 9. Denied. The allegations contained in paragraph 9 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 10. Denied. The allegations contained in paragraph 10 constitute conclusions of law PHILI 749470-1 to which no response is required, and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, the allegations contained in paragraph 10 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 11. Denied. The allegations contained in paragraph 11 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, the allegations contained in paragraph 11 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 12. Denied. The allegations contained in paragraph 12 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 13. Denied. The allegations contained in paragraph 13 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 14. Denied. The allegations contained in paragraph 14 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 15. Denied. The allegations contained in paragraph 15 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. 16. Denied. The allegations contained in paragraph 16 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. PHII,1 749470-1 17. Admitted in part, denied in part. It is admitted that the Defendants have made various payments to the Plaintiff. The remaining allegations contained in paragraph 17 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. 18. Denied. The allegations contained in paragraph 18 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 19. Denied. To the extent that the allegations contained in paragraph 19 imply that Defendants failed to tender sufficient funds for each payment they made to the Plaintiff, such allegations are denied. 20. Denied. The allegations contained in paragraph 20 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. 21. Denied. The allegations contained in paragraph 21 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. 22. Denied. The allegations contained in paragraph 22 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, Defendants have made several payments to the Plaintiff. 23. Denied. After reasonable investigation, the Defendants are without sufficient information to form a belief as to the truth or falsity of the allegations contained in this paragraph of the Complaint, and therefore deny same. Strict proof thereof is demanded at trial, if relevant. By way of further answer, but not in derogation of the foregoing, the allegations contained in this paragraph of the Complaint refer to a document, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. Finally, the allegations of this paragraph of the PHIL I 749470-1 Complaint refer to a document, the terms and legal effects of which speak for themselves. The Plaintiffs' characterization of those terms and those legal effects are denied. COUNTI 24. Defendants incorporate their answers to the foregoing paragraphs by reference, as if fully set forth herein. 25. Denied. The allegations contained in paragraph 25 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. 26. Denied. The allegations contained in paragraph 26 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, the allegations contained in paragraph 26 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 27. Denied. The allegations contained in paragraph 27 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. By. way of further answer, but not in derogation of the foregoing, the allegations contained in paragraph 27 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 28. Denied. The allegations contained in paragraph 28 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 29. Denied. The allegations contained in paragraph 29 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, Defendants have made several payments to the Plaintiff. PHILI 749470-1 WHEREFORE, Keith L. Plasterer respectfully requests entry of judgment in his favor and against the Plaintiff on Count I of the Plaintiffs' Complaint. COUNT II 30. Defendants incorporate their answers to the foregoing paragraphs by reference, as if fully set forth herein. 31. Denied. The allegations contained in paragraph 31 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. 32. Denied. The allegations contained in paragraph 32 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, the allegations contained in paragraph 32 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 33. Denied. The allegations contained in paragraph 33 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, the allegations contained in paragraph 33 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 34. Denied. The allegations contained in paragraph 34 make reference to a document, the terms and legal effects of which speak for themselves, and Plaintiffs' characterizations of which are denied. 35. Denied. The allegations contained in paragraph 35 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, Defendants have made several payments to the Plaintiff. PHILI 749470-1 WHEREFORE, Jamie Plasterer respectfully request entry of judgment in her favor and against the Plaintiff on Count H of the Plaintiffs' Complaint. NEW MATTER 36. Defendants incorporate their responses to the foregoing paragraphs by reference, as if fully set forth. 37. Plaintiff's claims are barred by the doctrine of accord and satisfaction. 38. Plaintiff's claims are barred under the doctrine of estoppel. 39. Plaintiff s claims are barred by failure of consideration. 40. Plaintiff's claims are barred by a failure of a condition precedent. 41. Plaintiff s claims are barred under the doctrine of latches. 42. Plaintiff's claims are barred under the doctrine of payment. 43. Plaintiff's claims are barred under the doctrine of release. 44. Plaintiff s claims are barred under the applicable statute of limitations. 45. Plaintiff's claims are barred under the statute of frauds. 46. Plaintiffs claims are barred under the doctrine of waiver. 47. Plaintiffs claims are barred under the terms of a written Forbearance Agreement. PHILI 749470-1 WHEREFORE, Defendants respectfully request that this Court enter judgment in their favor and against Plaintiff on Plaintiff s Complaint. KLEHR, HARRISON, HARVEY, BRANZMRG & ELLERS LLP Date: 0 -) By: ZDA I. e, I Shahan G. Teberi Esquire Anthony P. Tab so, Esquire 260 South Broa Street Philadelphia, PA 19102 Tel: 215-568-6060 Fax: 215-568-6603 Attorneys for Defendants, Keith L. Plasterer and Jamie Plasterer PHILI 749470-1 VERIFICATION 1, Anthony P. Tabasso, state that I am the attorney for the defendants, that I am authorized to make this verification on its behalf, and, further, state that the allegations contained within the foregoing pleading are true and correct to the best of my knowledge. I am making this verification instead of the defendants because they are unavailable to execute same within the time necessary. All other factual pleadings are based upon documents already of record in the Cumberland County Court of Common Pleas. I understand that these statements are subject to the penalties set forth in 18 P.S. §4904 for unsworn falsifications made to authorities. PHILI 744470-1 KLEHR, HARRISON, HARVEY, BRANZBURG & ELLERS LLP By: Shahan G. Teberian, Esquire/Anthony P. Tabasso, Esquire I.D. Nos. 69407/80851 260 S. Broad Street Philadelphia, PA 19102 (215) 568-6060 Attorneys for Defendants Keith L. Plasterer and Jamie Plasterer IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY OF PENNSYLVANIA BLX COMMERCIAL CAPITAL, LLC f/kla BLC COMMERCIAL CAPITAL CORP., 1633 Broadway, 19th Floor New York, NY 10019 and BUSINESS LOAN CENTER, L.L.C. fWa BUSINESS LOAN CENTER, INC. 1633 Broadway, 19th Floor New York, NY 10019 No. 07-2320 Civil Term CIVIL ACTION - LAW Plaintiffs, V. KEITH L. PLASTERER and JAMIE PLASTERER : 36 Kelly Drive Carlisle, PA 17013 Defendants. CERTIFICATE OF SERVICE I, Anthony P. Tabasso, Esquire, hereby certify that I caused a true and correct copy of the foregoing Answer and New Matter to be served upon the following counsel of record via first class mail, postage pre-paid: Sommer L. Ross, Esquire Duane Morris, LLP 30 South 17th Street Philadelphia, PA 191 17 / Dated: 9 d ' Ant ony P. T asso, Esquire PHILI 749470-1 9 DUANE MORRIS LLp By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, fVa BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, V. : NO. 07-3514 KEITH L. PLASTERER and JAMIE PLASTERER, 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. CIVIL ACTION - LAW PLAINTIFF'S ANSWER TO DEFENDANTS' NEW MATTER y ?. _b zt Plaintiff, Business Loan Center, LLC ("Business Loan Center"), by and through its attorneys, Duane Morris LLP, herby files this Answer to the New Matter filed by Keith L. Plasterer ("Keith Plasterer") and Jamie Plasterer ("Jamie Plasterer" and together with Keith Plasterer, the "Defendants"), and, in support hereof, states as follows: 37-- 47. Denied. The allegations contained in Paragraphs 37 through 47 constitute conclusions of law to which no response is required. By way of further answer, the 0 Mr -0 M- 41 A Defendants fail to offer any facts to support the defense to which they claim to be entitled. Strict WHEREFORE, Business Loan Center, LLC, a Delaware limited liability company, hereby demands that: (i) judgment in the amount of $94,334.62 be entered against Defendants and in favor of Business Loan Center; (ii) judgment for a yet to be determined amount, representing Business Loan Center's costs, legal fees, and interest until the date of payment, be entered in favor of Business Loan Center and against the Defendants; and (iii) any such other and further relief as this Court may deem proper. Respectfully submitted, DUANE MORRIS LLP By: -,.e&ffi22Z0 J, 041L-11 Rudolph J. Di Massa, Jr., Esquire PA Bar Id. No. 35492 Sommer L. Ross, Esquire PA Bar Id. No. 98451 30 South 17th Street Philadelphia, PA 19103 215.979.1000 Attorney for Plaintiff BUSINESS LOAN CENTER, LLC Dated: September 10, 2007 VERIFICATION I, Geraldine Segars, hereby state that I am Vice President of BLX Commercial Capital, and verify that the statements made in the foregoing Answer to Defendants' New Matter are true and correct to the best of my knowledge, information and belief. As Vice President of BLX Commercial Capital, LLC, I am authorized to make this Verification on behalf of Plaintiff Business Loan Center, LLC. I understand that the statements made therein are made subject to penalties of 18 Pa. C.S. § 4904 relating to unsworn falsification to authorities. BLX COMMERCIAL CAPITAL, LLC r Date: September 2007 'Geraldine Segars Vice President CERTIFICATE OF SERVICE I, Sommer L. Ross, Esquire, hereby certify that on this 10th day of September, 2007, I caused a true and correct copy of the foregoing Answer to New Matter to be served upon the following individual via hand delivery: Anthony P Tabasso, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers, LLP 260 South Broad Street Philadelphia, PA 19102 Counsel for Defendants Sommer L. Ross, squire V 0 0 DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.150611546 215.979.1020 (facsimile) Attorneys for Plaintiff, Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 163 3 Broadway, 19th Floor New York, New York 10019, Plaintiff, V. NO. 07-3514 CIVIL ACTION - LAW KEITH L. PLASTERER and JAMIE PLASTERER, 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. PLAINTIFF'S REQUEST FOR ADMISSIONS DIRECTED TO DEFENDANT Plaintiff, Business Loan Center, LLC (`BLC"), by and through its attorneys, Duane Morris LLP, hereby serves upon Defendants, pursuant to Pa. R. Civ. P. 4001 et seq., this Request for Admissions. The Defendants are hereby directed to admit or specifically deny each matter set forth below. If either Defendant's answer to the following Request for Admissions (each a "Request" and collectively, the "Requests") is anything other than an unequivocal admission, please have each Defendant state, with specificity and particularity, the reasons in support of DM3\744057.2 their denial or other contention. Further, please identify and produce all documents, not otherwise produced, which support the Defendants' denial or other contention. DEFINITIONS 1. "Plaintiff' or "BLC" shall mean Business Loan Center, LLC, its representatives, agents, and all others acting for and/or on its behalf, unless the context indicates otherwise. 2. "BLC Inc." shall mean Business Loan Center Inc., its representatives, agents, and all others acting for and/or on its behalf, unless the context indicates otherwise. 3. "Keith Plasterer" shall mean Keith L. Plasterer, an adult individual with an address of 36 Kelly Drive, Carlisle, PA 17013. 4. "Jamie Plasterer" shall mean Jamie Plasterer, an adult individual with an address of 36 Kelly Drive, Carlisle, PA 17013. 5. "Defendants" shall mean Keith Plasterer and Jamie Plasterer. 6. "Carlisle" shall mean Carlisle Sports Emporium, Inc., its representatives, agents, and all others acting for and/or on its behalf, unless the context indicates otherwise. 7. "Loan" shall mean that certain transaction dated December 20, 2000, in which BLC Inc. loaned Carlisle the principal sum of $175,000. 8. "Note" shall refer to that certain promissory note dated December 20, 2000 executed and delivered to BLC Inc. by Carlisle in the amount of $175,000. 9. 1175,000 Guaranty" shall mean that certain guaranty executed by Defendants in favor of BLC Inc. on December 20, 2000, pursuant to which the Defendants guaranteed Carlisle's obligations under the Note. -2- DM3\744057.2 10. "November Default Letter" shall mean that certain letter dated November 10, 2006 sent by Plaintiff's counsel to Carlisle notifying Carlisle of certain defaults and that it was accelerating all amounts then due and owing under the Note. 11. "December Default Letter" shall mean that certain letter dated December 29, 2006 sent by Plaintiff's counsel to Carlisle notifying Carlisle of certain defaults and that it was accelerating all amounts then due and owing under the Note. 12. "November Guarantor Demand Letter" shall mean that certain letter dated November 10, 2006 sent by Plaintiff's counsel to Defendants notifying Defendants that Carlisle was in default of its obligations due under the Note and demanding payment from Defendants for all amounts due and owing under the Note. 13. "December Guarantor Demand Letter" shall mean that certain letter dated December 29, 2006 sent by Plaintiff's counsel to Defendants notifying Defendants that Carlisle was in default of its obligations due under the Note and demanding payment from Defendants for all amounts due and owing under the Note. 14. "Document" or "documents" shall mean all written, typewritten, handwritten, recorded or printed matter of any kind, including the originals and all identical and/or non- identical copies thereof, including any non-identical copies different from the originals by reason of any notation made on such copies or otherwise, including without limitation, minutes and/or other records of meetings, agendas, bills, contracts, leases, assignments, agreements, summaries of negotiations, account books, orders, invoices, statements, bills, checks, accounting records, vouchers, summaries, diaries, forecasts, studies, drawings, graphs, charts, reports and/or summaries of investigations or reports, strategic or business plans or summaries, brochures, pamphlets, publications, circulars, advertisements, trade letters, press releases, statements of -3- DM31744057.2 policy, correspondence, letters, telegrams, interoffice and intra-office communications, offers, notations of any sort of conversations, appointment books, day planners, calendars or other appointment or activity schedule, teletypes, telefax, thermafax, confirmations, computer files, printouts of computer files, computer data (including information or programs stored in a computer, whether or not ever printed out or displayed); all drafts, alterations, modifications, changes and amendments of any of the foregoing; all graphic or manual - records or representations of any kind, including without limitation, photographs, microfiche, microfilm, video tape, records, motion pictures, and electronic, mechanical or electric records or representations of any kind, including without limitation, tapes, cassettes, disks, magnetic cards, and recordings; and all other similar material which is in your possession, custody or control. Without limiting the term "control" as used in the preceding sentence, a document shall be deemed to be within your control, regardless of its physical location, if you have the right to secure the document or a copy thereof from another person or entity, either public or private, including, but not limited to, your legal counsel, having actual possession thereof. 15. "All documents" shall mean every document, whether an original or copy, as above defined, known to you, and every such document or writing which you can locate or discover by reasonably diligent efforts. 16. "Communication," "discussion" or "statement" means any manner or means of disclosure, transfer, or exchange, and any disclosure, transfer or exchange of information whether orally or by document, or whether face-to-face, by telephone, e-mail, mail, personal delivery or otherwise. 17. "Oral Statement" shall mean any utterance spoken or heard, whether in person, by telephone, or otherwise. DM3\744057.2 -4- 18. "Identify" or "identity," when used in reference to an individual person, shall mean to state his or her full name; present or last known business address and residential address, business and residential telephone number and the name of such person's present or last known employer, place of employment and position during the relevant time period. 19. "Identify" or "identity," when used in reference to an entity, shall mean to state its full and complete name and the present or last known address of its headquarters or principal place of business. 20. "Identify," when used in reference to a document, shall mean to state the nature of the document (e.g., letter, memorandum, etc.); the date, if any, appearing on the document; the identity of the person(s) who wrote, signed, dictated or otherwise participated in the preparation of the document; the identity of all persons who received copies of the document; and the present location and custodian of the document. 21. "Identify," when used in reference to a photograph, shall mean to describe the subject of the photograph; the date the photograph was taken; the identity of the person who took the photograph and the person(s) to whom the photograph was disseminated; and the identity of the present custodian of the photograph. 22. "Refer," "Relate," "Reflect," "Regard," "Refer to," "Relate to," "Relating to," and "Concerning" (or forms thereof) shall mean directly or indirectly, in whole or in part, referring to, relating to, connected with, commenting on, relevant to, impinging or impacting upon, affecting, responding to, showing, describing, representing, supporting, contradicting, stating, mentioning, showing, evaluating, recording, noting, analyzing, reflecting or constituting. 23. "Complaint" shall mean the Complaint for Breach of Contract filed by Plaintiff in the above-captioned action on June 15, 2007. -5- DM31744057.2 24. "Answer" shall mean the Defendants' answer to the Complaint filed by Defendants in the above-captioned action on or about August 31, 2007. 25. "Answer to New Matter" shall mean Plaintiff's answer to the New Matter contained within the Answer, which was filed on September 11, 2007. 26. The term "you" or "your" shall mean the Defendants, their representatives, agents, and all others acting for and/or on their behalf, unless the context indicates otherwise. 27. The term "contact" or "contacted" shall mean any communication whether oral, written or otherwise. 28. The term "and" shall mean and/or. 29. The term "or" shall mean and/or. 30. The term "each" shall mean each and every. 31. The term "any" shall mean any and all. REQUEST FOR ADMISSIONS REQUEST FOR ADMISSION NO. 1: Plaintiff is a Delaware limited liability company with an address of 1633 Broadway, 39th Floor, New York, New York 10019. Response: REQUEST FOR ADMISSION NO. 2: Carlisle is a Pennsylvania corporation with an address of 29 South Middlesex Road, Carlisle, Pennsylvania 17013. Response: REQUEST FOR ADMISSION NO. 3: Keith Plasterer is an adult individual with an address of 36 Kelly Drive, Carlisle, PA 17013. -6- DM3\744057.2 Response: REQUEST FOR ADMISSION NO. 4: Jamie Plasterer is an adult individual with an address of 36 Kelly Drive, Carlisle, PA 17013. Response: REQUEST FOR ADMISSION NO. 5: Keith Plasterer and Jamie Plasterer are husband and wife. Response: REQUEST FOR ADMISSION NO. 6: Keith L. Plasterer and Jamie Plasterer are Carlisle's principals. Response: REQUEST FOR ADMISSION NO. 7: On or about December 20, 2000, BLC Inc. entered into a loan transaction with Carlisle whereby BLC Inc. loaned Carlisle the principal sum of $175,000. Response. REQUEST FOR ADMISSION NO. 8: The Loan is evidenced by the Note. Response: REQUEST FOR ADMISSION NO. 9: A true and correct copy of the Note is attached to the Complaint as Exhibit "B." Response: -7- DM3\744057.2 REQUEST FOR ADMISSION NO. 10: On or about December 20, 2000, Keith Plasterer executed the $175,000 Guaranty. . Response: REQUEST FOR ADMISSION NO. 11: On or about December 20, 2000, Jamie Plasterer executed the $175,000 Guaranty. Response: REQUEST FOR ADMISSION NO. 12: Pursuant to the $175,000 Guaranty, each of the Defendants guaranteed Carlisle's obligations due and owing under the Note. Response: REQUEST FOR ADMISSION NO. 13: A true and correct copy of $175,000 Guaranty is attached to the Complaint as Exhibit "C." Response: REQUEST FOR ADMISSION NO. 14: Exhibit "A" to the Complaint evidences that Business Loan Center Inc. ("BLC LLC") changed its name to Business Loan Center, LLC ("Plaintiff' or "BLC") on January 31, 2003. Response: REQUEST FOR ADMISSION NO. 15: Carlisle has not yet paid in full and/or otherwise satisfied the Note. Response: -8- DM3\744057.2 REQUEST FOR ADMISSION NO. 16: Keith Plasterer has not yet paid in full and/or otherwise satisfied the Note. Response: REQUEST FOR ADMISSION NO. 17: Jamie Plasterer has not yet paid in full and/or otherwise satisfied the Note. Response: REQUEST FOR ADMISSION NO. 18: The last payment made under the Note, either by Carlisle and/or Keith Plasterer and/or Jamie Plasterer, was on or about September 27, 2007 and was in the amount of $14,829.03. Response: REQUEST FOR ADMISSION NO. 19: Prior to the payment made on September 27, 2007 (referenced in Request No. 18), the last payment made under the Note, either by Carlisle and/or Keith Plasterer and/or Jamie Plasterer, was on or about May 10, 2007 and was in the amount of $2,383.00. Response: REQUEST FOR ADMISSION NO. 20: Carlisle received the November Default Letter. Response: -9- DM3\7440571 REQUEST FOR ADMISSION NO. 21: Carlisle received the December Default Letter. Response: REQUEST FOR ADMISSION NO. 22: Defendants received the November Guarantor Demand Lettet. Response: REQUEST FOR ADMISSION NO. 23: Defendants received the December Guarantor Demand Letter. Response: Dated: July 8 2008 DUANE MORRIS LLP By: 'ZMwiv udo ph J. Di Massa, Jr., Esquire PA Attorney Identification No. 35492 Sommer L. Ross, Esquire PA Attorney Identification No. 49851 30 South 17th Street Philadelphia, PA 19103 215.979.1000 Attorneys for Plaintiff BLX COMMERCIAL CAPITAL, LLC -10- DM3\744057.2 CERTIFICATE OF SERVICE I, Sommer L. Ross, Esquire, hereby certify that on this 8th day of July, 2008,1 caused a true and correct copy of Plaintiff's First Request for Admissions Directed to Defendants to be served upon the following individual via first class mail, postage pre-paid: Anthony P Tabasso, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers, LLP 260 South Broad Street Philadelphia, PA 19102 Counsel for Defendants July 8, 2008 'A' C f Y-1 nilyr-4, ) . Z4-, 'Sommer L. Ross, Esquire DM3\744057.2 L,-, DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. - PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff, Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, NO. 07-3514 V. KEITH L. PLASTERER and JAMIE PLASTERER, 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. CIVIL ACTION - LAW PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO DEFENDANTS Plaintiff, Business Loan Center, LLC (`BLC"), by and through its attorneys, Duane Morris LLP, hereby serves upon Defendants, pursuant to Pa. R. Civ. P. 4001 et seq., this First Request for Production of Documents (each a "Request" and collectively, the "Requests"). Pursuant to Pa. R. Civ. P. 4009.12, the responsive documents should be made available for inspection and copying within thirty (30) days of service hereof, at the office of Duane Morris LLP, 30 South 17th Street, Philadelphia, PA 19103, or at such other location as to which the parties may otherwise mutually agree. DM3\744057.2 DEFINITIONS 1. "Plaintiff' or "BLC" shall mean Business Loan Center, LLC, its representatives, agents, and all others acting for and/or on its behalf, unless the context indicates otherwise. 2. "BLC Inc." shall mean Business Loan Center Inc., its representatives, agents, and all others acting for and/or on its behalf, unless the context indicates otherwise. 3. "Keith Plasterer" shall mean Keith L. Plasterer, an adult individual with an address of 36 Kelly Drive, Carlisle, PA 17013. 4. "Jamie Plasterer" shall mean Jamie Plasterer, an adult individual with an address of 36 Kelly Drive, Carlisle, PA 17013. 5. "Defendants" shall mean Keith Plasterer and Jamie Plasterer. 6. "Carlisle" shall mean Carlisle Sports Emporium, Inc., its representatives, agents, and all others acting for and/or on its behalf, unless the context indicates otherwise. 7. "Loan" shall mean that certain transaction dated December 20, 2000, in which BLC Inc. loaned Carlisle the principal sum of $175,000. 8. "Note" shall refer to that certain promissory note dated December 20, 2000 executed and delivered to BLC Inc. by Carlisle in the amount of $175,000. 9. "$175,000 Guaranty" shall mean that certain guaranty executed by Defendants in favor of BLC Inc. on December 20, 2000, pursuant to which the Defendants guaranteed Carlisle's obligations under the Note. 10. "November Default Letter" shall mean that certain letter dated November 10, 2006 sent by Plaintiff's counsel to Carlisle notifying Carlisle of certain defaults and that it was accelerating all amounts then due and owing under the Note. DM3\744057.2 2 11. "December Default Letter" shall mean that certain letter dated December 29, 2006 sent by Plaintiff's counsel to Carlisle notifying Carlisle of certain defaults and that it was accelerating all amounts then due and owing under the Note. 12. "November Guarantor Demand Letter" shall mean that certain letter dated November 10, 2006 sent by Plaintiff's counsel to Defendants notifying Defendants that Carlisle was in default of its obligations due under the Note and demanding payment from Defendants for all amounts due and owing under the Note. 13. "December Guarantor Demand Letter" shall mean that certain letter dated December 29, 2006 sent by Plaintiff's counsel to Defendants notifying Defendants that Carlisle was in default of its obligations due under the Note and demanding payment from Defendants for all amounts due and owing under the Note. 14. "Document" or "documents" shall mean all written, typewritten, handwritten, recorded or printed matter of any kind, including the originals and all identical and/or non- identical copies thereof, including any non-identical copies different from the originals by reason of any notation made on such copies or otherwise, including without limitation, minutes and/or other records of meetings, agendas, bills, contracts, leases, assignments, agreements, summaries of negotiations, account books, orders, invoices, statements, bills, checks, accounting records, vouchers, summaries, diaries, forecasts, studies, drawings, graphs, charts, reports and/or summaries of investigations or reports, strategic or business plans or summaries, brochures, pamphlets, publications, circulars, advertisements, trade letters, press releases, statements of policy, correspondence, letters, telegrams, interoffice and intra-office communications, offers, notations of any sort of conversations, appointment books, day planners, calendars or other appointment or activity schedule, teletypes, telefax, thermafax, confirmations., computer files, printouts of computer files, computer data (including information or programs stored in a DM31744057.2 3 computer, whether or not ever printed out or displayed); all drafts, alterations, modifications, changes and amendments of any of the foregoing; all graphic or manual records or representations of any kind, including without limitation, photographs, microfiche, microfilm, video tape, records, motion pictures, and electronic, mechanical or electric records or representations of any kind, including without limitation, tapes, cassettes, disks, magnetic cards, and recordings; and all other similar material which is in your possession, custody or control. Without limiting the term "control" as used in the preceding sentence, a document shall be deemed to be within your control, regardless of its physical location, if you have the right to secure the document or a copy thereof from another person or entity, either public or private, including, but not limited to, your legal counsel, having actual possession thereof. 15. "All documents" shall mean every document, whether an original or copy, as above defined, known to you, and every such document or writing which you can locate or discover by reasonably diligent efforts. 16. "Communication," "discussion" or "statement" means any manner or means of disclosure, transfer, or exchange, and any disclosure, transfer or exchange of information whether orally or by document, or whether face-to-face, by telephone, e-mail, mail, personal delivery or otherwise. 17. "Oral Statement" shall mean any utterance spoken or heard, whether in person, by telephone, or otherwise. 18. "Identify" or "identity," when used in reference to an individual person, shall mean to state his or her full name, present or last known business address and residential address, business and residential telephone number and the name of such person's present or last known employer, place of employment and position during the relevant time period. DM3\744057.2 4 19. "Identify" or "identity," when used in reference to an entity, shall mean to state its full and complete name and the present or last known address of its headquarters or principal place of business. 20. "Identify," when used in reference to a document, shall mean to state the nature of the document (e.g., letter, memorandum, etc.); the date, if any, appearing on the document; the identity of the person(s) who wrote, signed, dictated or otherwise participated in the preparation of the document; the identity of all persons who received copies of the document; and the present location and custodian of the document. 21. "Identify," when used in reference to a photograph, shall mean to describe the subject of the photograph; the date the photograph was taken; the identity of the person who took the photograph and the person(s) to whom the photograph was disseminated; and the identity of the present custodian of the photograph. 22. "Refer," "Relate," "Reflect," "Regard," "Refer to," "Relate to," "Relating to," and "Concerning" (or forms thereof) shall mean directly or indirectly, in whole or in part, referring to, relating to, connected with, commenting on, relevant to, impinging or impacting upon, affecting, responding to, showing, describing, representing, supporting, contradicting, stating, mentioning, showing, evaluating, recording, noting, analyzing, reflecting or constituting. 23. "Complaint" shall mean the Complaint for Breach of Contract filed by Plaintiff in the above-captioned action on June 15, 2007. 24. "Answer" shall mean the Defendants' answer to the Complaint filed by Defendants in the above-captioned action on or about August 31, 2007. 25. "Answer to New Matter" shall mean Plaintiff's answer to the New Matter contained within the Answer, which was filed on September 11, 2007. DM31744057.2 5 26. The term "you" or "your" shall mean the Defendants, their representatives, agents, and all others acting for and/or on their behalf, unless the context indicates otherwise. 27. The term "contact" or "contacted" shall mean any communication whether oral, written or otherwise. 28. The term "and" shall mean and/or. 29. The term "or" shall mean and/or. 30. The term "each" shall mean each and every. 31. The term "any" shall mean any and all. INSTRUCTIONS 1. These Requests are continuing in nature and when new knowledge or information comes to the attention of either Defendant, the information supplied in the answers to these Requests shall be supplemented forthwith. 2. For each and every Request herein, you shall produce documents in your possession, custody, or control, which shall include but be limited to, documents, objects or articles described that are in your possession or that you have the right to secure the original or a copy from another person or entity. The fact that your investigation is continuing or discovery is incomplete is not an excuse for your failure to respond to each request as fully and completely as possible. Your responses should consist of information known to you through yourself, your agents, your attorneys, your employees, or your representatives. All documents produced pursuant to this Request are to be produced as they are kept in the usual course of business, and shall be organized and labeled (without permanently marking the item produced) so as to correspond with the categories of each numbered request hereof. If copies or drafts of a document exist, the production of which has been requested herein, produce and submit for DM3\7440572 6 inspection and copying each and every copy and draft which differs in any way from the original document or from any copy or draft. 3. If you at any time had possession, custody, or control of any document requested herein, and such document has been lost, destroyed, discarded, or is not presently in your possession, these documents shall be identified as completely as possible, including: a. The names of the authors of the document; b. The names of the persons to whom the documents or copies were sent; C. The date of the document; d. The date on which the document was received by each addressee, copyee or recipient; e. A description of the nature and subject matter of the document that is as complete as possible; f. The date on which the document was lost, discarded or destroyed; and g. The manner in which the document was lost, discarded or destroyed. 4. With respect to documents that the Defendants, hold under claim of privilege, the Defendants shall number all such documents, hold them separately, and retain them intact pending a ruling by the Court on the claimed privilege. In addition, the Defendants shall provide a statement, signed by an attorney representing it, setting forth as to each such document: a. The names of the senders of the document; b. The names of the authors of the document; C. The names of the?persons to whom the document or copies were sent; d. The job title of every person named in subparagraphs 1, 2 and 3 above; e. The date of the document; f. The date on which the document was received by each addressee, copyee or recipient; g. A brief description of the nature and subject matter of the document; and DM31744057.2 7 h. The statute, rule or decision which is claimed to give rise to the privilege. 5. If you cannot secure or produce the document(s) requested herein after exercising due diligence to, you must identify which Request(s) for which you do not have any responsive documents and in response thereto, specify your inability to produce the document(s) requested and if appropriate, provide the identity of the person who has possession, custody, or control of the requested document(s). 6. All words in this Request shall have their plain and ordinary meanings unless specifically defined herein or in the definition section of this Request. 7. Copies of documents which are identical duplicates of other documents which have already been produced for inspection and copying in this action need not be produced again, except that the duplicates must be produced if handwritten or any other type of notes or similar intelligence appear thereon or are attached thereto, including markings on slips indicating the routing of the document to individuals or organizations. 8. The singular and plural forms shall be construed interchangeably so as to bring within the scope of these Requests any information which might otherwise be construed as outside their scope. 9. "And" and "or" shall be construed interchangeably so as to bring within the scope of this document request any information which might otherwise might be construed as outside their scope. 10. "The use of the singular form of any word includes the plural and vice versa. 11. Unless otherwise stated herein, the time period encompassed by these Requests shall be from December 20, 2000. DM3\744057.2 8 REQUEST FOR PRODUCTION OF DOCUMENTS Request for Production No. 1: Produce any and all documents identified in Interrogatory No. 2 contained within Plaintiff's First Set of Interrogatories Directed To Defendants. Request for Production No. 2: Produce any and all documents identified in Interrogatory No. 7 contained within Plaintiff's First Set of Interrogatories Directed To Defendants. Request for Production No. 3: Produce any and all documents identified in Interrogatory No. 10 contained 'within Plaintiff's First Set of Interrogatories Directed To Defendants. Request for Production No. 4: Produce any and all documents identified in Interrogatory No. 15 contained within Plaintiff's First Set of Interrogatories Directed To Defendants. Request for Production No. 5: Produce any and all other documents referenced and/or referred to in Defendant's response to Plaintiff's First Set of Interrogatories Directed to Defendants. Request for Production No. 6: Produce any and all documents executed by and between either Defendant or both Defendants and Plaintiff and/or BLC Inc. since the inception of the Loan. Request for Production No. 7: Produce any and all communications by and between either Defendant or both Defendants and Plaintiff and/or BLC Inc. since the inception of the Loan. Request for Production No. 8: Produce any and all documents that evidence every payment made by either Defendant or both Defendants to Plaintiff and/or BLC Inc. since the inception of the Loan with respect to the Loan and/or Note. Request for Production No. 9: DMA 7440572 9 Produce copies of every check and/or evidence of every wire transfer or other method of delivery of payment from either Defendant or both Defendants to Plaintiff and/or BLC Inc. since the inception of the Loan with respect to the Loan and/or Note. Request for Production No. 10: Produce all written correspondence, including any e-mail communication, in either of the Defendants' possession relating to either or both Defendants' alleged default under the terms of the $175,000 Guaranty. Request for Production No. 11: Produce any and all documents that you reviewed, identified, or relied upon in filing the Answer. Request for Production No. 12: Produce any and all documents that disprove the assertion set forth in Paragraph 23 of the Complaint. Request for Production No. 13: Produce any and all documents that disprove the assertion set forth in Paragraph 2 of the Complaint. Request for Production No. 14: Produce any and all documents that disprove the assertion set forth in Paragraph 3 of the Complaint. Request for Production No. 15: Produce any documents that support each defense set forth in the Answer's New Matter. Request for Production No. 16: Produce any and all summaries, analyses, calculations or documents used in or prepared for the defense of the claims asserted against Defendants in the Complaint. Request for Production No. 17: Produce all documents which you intend to introduce and/or rely upon at any deposition in this matter. Request for Production No. 18: Produce all documents which you intend to introduce and/or rely upon at the trial in this matter. DM3\744057.2 10 Request for Production No. 19: Produce any and all statements of persons, whether written, oral, recorded, or transcribed, including notes or summaries of statements referring in any way to the parties to this action, the Complaint, the Answer or the Answer to New Matter. Request for Production No. 20: Produce Carlisle's Business Tax Return for 2007. Request for Production No. 21: Produce Carlisle's Business Tax Return for 2006. Request for Production No. 22: Produce Carlisle's Business Tax Return for 2005. Request for Production No. 23: Produce Carlisle's Profit and Loss Statement for 2007. Request for Production No. 24: Produce Carlisle's Profit and Loss Statement for 2006. Request for Production No. 25: Produce Carlisle's Profit and Loss Statement for 2005. Request for Production No. 26: Produce the Defendants' completed Tax Return for 2007. Request for Production No. 27: Produce the Defendants' completed Tax Return for 2006. Request for Production No. 28: Produce the Defendants' completed Tax Return for 2005. DM31744057.2 11 Dated: July 8, 2008 DUANE MORRIS LLP By: i?mrn-r>rt ?' "2 Rudolph J. Di Massa, Jr., Esquire PA Attorney Identification No. 35492 Sommer L. Ross, Esquire PA Attorney Identification No. 49851 30 South 17th Street Philadelphia, PA 19103 215.979.1000 Attorneys for Plaintiff Business Loan Center, LLC DM3\744057.2 12 CERTIFICATE OF SERVICE I, Sommer L. Ross, Esquire, hereby certify that on this 8th day of July, 2008, I caused a true and correct copy of Plaintiff s First Request for Production of Documents Directed to Defendants to be served upon the following individual via first class mail, postage pre-paid: Anthony P Tabasso, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers, LLP 260 South Broad Street Philadelphia, PA 19102 Counsel for Defendants July 8, 2008 ommer L. Ross, Esquire DM3%744057.2 ?` DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff, Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, v. Plaintiff, KEITH L. PLASTERER and JAMIE PLASTERER, 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. NO. 07-3514 CIVIL ACTION - LAW PLAINTIFF'S FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANTS Plaintiff, Business Loan Center, LLC ("BLC"), by and through its attorneys, Duane Morris LLP, hereby serves upon Defendants, pursuant to Pa. R. Civ. P. 4001 et seq., this First Set of Interrogatories. These interrogatories (each an "Interrogatory" and collectively, the "Interro atg oriel ') are addressed to each Defendant, both parties to this action, and their answers shall be based upon information known to each or in their possession, the possession of their attorneys or other representatives acting on their behalf, whether in preparation for litigation or otherwise. DM3\744057.2 Each of these Interrogatories must be answered fully and completely by each Defendant in writing and must be signed by each Defendant under oath before a Notary Public, or otherwise properly verified. Pennsylvania Rule of Civil Procedure 4006 requires filing and service of Defendants' answers on Plaintiffs counsel within thirty (30) days after service of these Interrogatories. Supplements to the Defendants' answers shall be filed in accordance with Pennsylvania Rule of Civil Procedure 4007.4. Interrogatories that call for the production of documents should be considered requests for production of documents pursuant to Pennsylvania Rule of Civil Procedure 4009.11 et seq. Space has been provided below each Interrogatory for the Defendants' answers. If additional space is required for their answers, either use the reverse side of said paper or attach an additional sheet of paper appropriately marking said Interrogatory. DEFINITIONS 1. "Plaintiff' or "BLC" shall mean Business Loan Center, LLC, its representatives, agents, and all others acting for and/or on its behalf, unless the context indicates otherwise. 2. "BLC Inc." shall mean Business Loan Center Inc., its representatives, agents, and all others acting for and/or on its behalf, unless the context indicates otherwise. 3. "Keith Plasterer" shall mean Keith L. Plasterer, an adult individual with an address of 36 Kelly Drive, Carlisle, PA 17013. 4. "Jamie Plasterer" shall mean Jamie Plasterer, an adult individual with an address of 36 Kelly Drive, Carlisle, PA 17013. 5. "Defendants" shall mean Keith Plasterer and Jamie Plasterer. 6. "Carlisle" shall mean Carlisle Sports Emporium, Inc., its representatives, agents, and all others acting for and/or on its behalf, unless the context indicates otherwise. -2- DM3\7440572 7. "Loan" shall mean that certain transaction dated December 20, 2000, in which BLC Inc. loaned Carlisle the principal sum of $175,000. 8. "Note" shall refer to that certain promissory note dated December 20, 2000 executed and delivered to BLC Inc. by Carlisle in the amount of $175,000. 9. "$175,000 Guaranty" shall mean that certain guaranty executed by Defendants in favor of BLC Inc. on December 20, 2000, pursuant to which the Defendants guaranteed Carlisle's obligations under the Note. 10. "November Default Letter" shall mean that certain letter dated November 10, 2006 sent by Plaintiff's counsel to Carlisle notifying Carlisle of certain defaults and that it was accelerating all amounts then due and owing under the Note. 11. "December Default Letter" shall mean that certain letter dated December 29, 2006 sent by Plaintiff's counsel to Carlisle notifying Carlisle of certain defaults and that it was accelerating all amounts then due and owing under the Note. 12. "November Guarantor Demand Letter" shall mean that certain letter dated November 10, 2006 sent by Plaintiffs counsel to Defendants notifying Defendants that Carlisle was in default of its obligations due under the Note and demanding payment from Defendants for all amounts due and owing under the Note. 13. "December Guarantor Demand Letter" shall mean that certain letter dated December 29, 2006 sent by Plaintiffs counsel to Defendants notifying Defendants that Carlisle was in default of its obligations due under the Note and demanding payment from Defendants for all amounts due and owing under the Note. 14. "Document" or "documents" shall mean all written, typewritten, handwritten, recorded or printed matter of any kind, including the originals and all identical and/or non- identical copies thereof, including any non-identical copies different from the originals by reason -3- DM3\744057.2 of any notation made on such copies or otherwise, including without limitation, minutes and/or other records of meetings, agendas, bills, contracts, leases, assignments, agreements, summaries of negotiations, account books, orders, invoices, statements, bills, checks, accounting records, vouchers, summaries, diaries, forecasts, studies, drawings, graphs, charts, reports and/or summaries of investigations or reports, strategic or business plans or summaries, brochures, pamphlets, publications, circulars, advertisements, trade letters, press releases, statements of policy, correspondence, letters, telegrams, interoffice and intra-office communications, offers, notations of any sort of conversations, appointment books, day planners, calendars or other appointment or activity schedule, teletypes, telefax, thermafax, confirmations, computer files, printouts of computer files, computer data (including information or programs stored in a computer, whether or not ever printed out or displayed); all drafts, alterations, modifications, changes and amendments of any of the foregoing; all graphic or manual records or representations of any kind, including without limitation, photographs, microfiche, microfilm, video tape, records, motion pictures, and electronic, mechanical or electric records or representations of any kind, including without limitation, tapes, cassettes, disks, magnetic cards, and recordings; and all other similar material which is in your possession, custody or control. Without limiting the term "control" as used in the preceding sentence, a document shall be deemed to be within your control, regardless of its physical location, if you have the right to secure the document or a copy thereof from another person or entity, either public or private, including, but not limited to, your legal counsel, having actual possession thereof. 15. "All documents" shall mean every document, whether an original or copy, as above defined, known to you, and every such document or writing which you can locate or discover by reasonably diligent efforts. -4- DM3\744057.2 16. "Communication," "discussion" or "statement" means any manner or means of disclosure, transfer, or exchange, and any disclosure, transfer or exchange of information whether orally or by document, or whether face-to-face, by telephone, e-mail, mail, personal delivery or otherwise. 17. "Oral. Statement" shall mean any utterance spoken 'or heard, whether in person, by telephone, or otherwise. 18. "Identify" or "identity," when used in reference to an individual person, shall mean to state his or her full name, present or last known business address and residential address, business and residential telephone number and the name of such person's present or last known employer, place of employment and position during the relevant time period. 19. "Identify" or "identity," when used in reference to an entity, shall mean to state its full and complete name and the present or last known address of its headquarters or principal place of business. 20. "Identify," when used in reference to a document, shall mean to state the nature of the document (e.g., letter, memorandum, etc.); the date, if any, appearing on the document; the identity of the person(s) who wrote, signed, dictated or otherwise participated in the preparation of the document; the identity of all persons who received copies of the document; and the present location and custodian of the document. 21. "Identify," when used in reference to a photograph, shall mean to describe the subject of the photograph; the date the photograph was taken; the identity of the person who took the photograph and the person(s) to whom the photograph was disseminated; and the identity of the present custodian of the photograph. 22. "Refer," "Relate," "Reflect," "Regard," "Refer to," "Relate to," "Relating to," and "Concerning" (or forms thereof) shall mean directly or indirectly, in whole or in part, referring -5- DM3\744057.2 to, relating to, connected with, commenting on, relevant to, impinging or impacting upon, affecting, responding to, showing, describing, representing, supporting, contradicting, stating, mentioning, showing, evaluating, recording, noting, analyzing, reflecting or constituting. 23. "Complaint" shall mean the Complaint for Breach of Contract filed by Plaintiff in the above-captioned action on June 15, 2007. 24. "Answer" shall mean the Defendants' answer to the Complaint filed by Defendants in the above-captioned action on or about August 31, 2007. 25. "Answer to New Matter" shall mean Plaintiff's answer to the New Matter contained within the Answer, which was filed on September 11, 2007. 26. The term "you" or "your" shall mean the Defendants, their representatives, agents, and all others acting for and/or on their behalf, unless the context indicates otherwise. 27. The term "contact" or "contacted" shall mean any communication whether oral, written or otherwise. 28. The term "and" shall mean and/or. 29. The term "or" shall mean and/or. 30. The term "each" shall mean each and every. 31. The term "any" shall mean any and all. INSTRUCTIONS 1. If you claim any form of privilege, whether based on statute or otherwise, as a ground for not answering any Interrogatory, state the nature of the privilege claimed (e.g., attorney-client, work product or other) and set forth all facts upon which the claim of privilege is based. 2. If any document responsive to any Interrogatory has been destroyed, identify any and all persons who participated in, or were involved in, the decision to destroy such document, -6- DMM744057.2 any document retention or destruction policy under which such document was destroyed and any and all persons who participated in, or were involved in, the formulation of any such policy, the reason for the destruction of such document, and the date (approximate, if the precise date is not known) of the destruction of such document. 3. The fact that your investigation is continuing, or that discovery is not complete, should not be used as an excuse for failing to provide answers that are as full and complete as possible as of the date of answer. The omission of any name, fact or other item of information from the answers shall be deemed a representation that such name, fact or item was not known to you or anyone acting on your behalf at the time of service of the answers. 4. Whenever a date, amount or other computation or figure is requested, the exact date, amount or other computation or figure is to be given unless it is not known; and in that case, the approximate date, amount, or other computation or figure should be given or the best estimate thereof, and the answer should state that the date, amount, or other computation provided is an estimate or approximation. 5. Where facts set forth in your answers are supplied upon information and belief rather than based on your direct personal knowledge, you should so state and specifically identify each source of such information and belief. Should 'you be unable to answer any Interrogatory or portion thereof by either actual knowledge or upon information and belief, you should so state. 6. Whenever an Interrogatory calls for information which is not available to you in the form requested, but is available in another form or can be obtained at least in part from other sources in your possession, you should so state and either supply the information requested in the form in which it is available or supply the sources from which the information can be obtained. -7- DM31744057.2 7. Whenever an Interrogatory requests that you "state," "state the facts" or "describe," you should provide all information relating to the subject matter of such Interrogatory, including: a specification of dates of all events which relate to such subject matter; the identity of all oral communications and meetings relating to the subject matter; the identity of all persons with knowledge of the facts that relate to such subject matter; and the identity of all documents which refer to, relate to or contain information concerning the subject matter. If there were any oral or written communications concerning the subject matter of the Interrogatory, include the identity of the participants to such communications and set forth the substance of such communications. 8. Except for reference to defined or designated terms, each discovery request shall be construed independently and not by reference to any other Interrogatory herein for purposes of limitation. 9. In answering these Interrogatories, the Defendants shall furnish all information available at the time of answering, and shall supplement their answers in accordance with the Pennsylvania Rules of Civil Procedure and Local Rules of Court. INTERROGATORIES INTERROGATORY NO. 1: Identify each person who participated in preparing your responses to these Interrogatories, identifying the particular Interrogatory(ies) with which the person assisted. Response: -8- DM3\744057.2 INTERROGATORY NO. 2: Identify, with specificity, any and all documents that you used or relied upon in preparing your responses to these Interrogatories. Response: INTERROGATORY NO. 3: Identify any and all. persons with any knowledge of any facts contained or alleged in the Complaint, Answer, or in the answers to these Interrogatories. Response: INTERROGATORY NO. 4: With respect to each person identified in your answer to Interrogatory No. 3, state each fact to which such person has knowledge and the current address and telephone number of such person. Response: -9- DM3\744057.2 INTERROGATORY NO. 5: Identify each and every payment made to Plaintiff and/or BLC Inc. account of the Note since the inception of the Loan and with respect to each payment, state the date, amount, whether such payment was made by check, wire transfer or some other form of payment, to whom it was payable and by whom it was paid. Response: INTERROGATORY NO. 6: State with specificity the balance you believe is due and owing under the Note as of the date hereof (or as of the date of your response hereto) and provide a detailed explanation of how you arrived at that figure. Response: INTERROGATORY NO. 7: State all facts that support each defense set forth in the Answer's New Matter and identify any and all documents that support each defense. Response: -10- DM3\744057.2 INTERROGATORY NO. 8: State all facts which support any and all denials of the allegations contained in the Complaint which were set forth in the Answer. Response: INTERROGATORY NO. 9: If you intend to rely upon any documents or other tangible things to support a position that you have taken or intend to take in the litigation involving the Complaint, provide a brief description, by category, and the location of all such documents and other tangible things, and identify all persons having custody and/or control of them. Response: INTERROGATORY NO. 10: Identify with specificity any and all documents that you intend to use and/or introduce into evidence at trial. Response: -11- DM3\744057.2 INTERROGATORY NO. 11: Identify all persons who you may call as a witness at trial and for each person, describe with particularity the facts to which such witness is expected to testify. Response: INTERROGATORY NO. 12: If you intend to call an expert witness at trial, state: (a) The name and address of each such expert witness; (b) The 'subject matter as to which each such expert witness is expected to testify; (c) The substance of the facts and opinions to which each expert is expected to testify and a summary of the grounds for each opinion and/or attach a copy of each expert's report to your Answers to Interrogatories; (d) The educational background, field of expertise, professional experience of each of the expert witnesses identified in your Answers above. Response: INTERROGATORY NO. 13: If your answer to any Request for Admission set forth in Plaintiff's Request for Admissions Directed to Defendants is not an affirmative admission, i. e., "Admit," set forth all facts upon which you rely for your response to or denial of each such Request for Admission. Response: -12- DM3\744057.2 INTERROGATORY NO. 14: If after reviewing the exhibits attached to the Complaint you dispute that Plaintiff is the holder of the Note, state, in detail and with particularity, why. Response: INTERROGATORY NO. 15: Identify any and all documents that support you answer to Interrogatory No. 14. Response: INTERROGATORY NO. 16: Describe, with specificity, Keith Plasterer's relationship to Carlisle. Response: -13 - DM3\744057.2 INTERROGATORY NO. 17: Describe, with specificity, Jamie Plasterer's relationship to Carlisle. Response: INTERROGATORY NO. 18 Identify each of the Defendants open bank accounts, the name and location of the banking institute where each account is maintained and in whose name(s) each account is held. Response: INTERROGATORY NO. 19 If either of the Defendants have closed any bank accounts since the inception of the Loan, identify each account, the name and location of the banking institute where each account was maintained, and in whose name(s) the account was held. Response: -14- DM3\744057.2 INTERROGATORY NO. 20 Identify any and all persons who provide or have provided accounting services for and/or to the Defendants since the inception of the Loan. Response: INTERROGATORY NO. 21 Identify all persons affiliated with Plaintiff and/or BLC Inc. with whom you have been in contact with regarding the Loan and/or Note since the inception of the Loan. Response: INTERROGATORY NO. 22 With respect to Interrogatory No. 21, state the reason for the contact, who initiated the contact and whether such contact was written or verbal. Response: -15- DM3\744057.2 Dated: July 8, 2008 By: DUANE MORRIS LLP Rudolph J. Di Massa, Jr., Esquire PA Attorney Identification No. 35492 Sommer L. Ross, Esquire PA Attorney Identification No. 49851 30 South 17th Street Philadelphia, PA 19103 215.979.1000 Attorneys for Plaintiff Business Loan Center, LLC -16- DM3t744057.2 CERTIFICATE OF SERVICE I, Sommer L. Ross, Esquire, hereby certify that on this 8th day of July, 2008, I caused a true and correct copy of Plaintiff's First Set of Interrogatories Directed to Defendants to be served upon the following individual via first class mail, postage pre-paid: Anthony P Tabasso, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers, LLP 260 South Broad Street Philadelphia, PA 19102 Counsel for Defendants July 8, 2008 Sommer L. Ross, Esquire DM3\744057.2 0 0 0 KLEHR, HARRISON, HARVEY, BRANZBURG & ELLERS LLP By: Shahan G. Teberian, Esquire/Anthony P. Tabasso, Esquire I.D. Nos. 69407/80851 260 S. Broad Street Philadelphia, PA 19102 Attorneys for Defendants (215) 568-6060 Keith L. Plasterer and Jamie Plasterer BLX COMMERCIAL CAPITAL, LLC f/k/a BLC COMMERCIAL CAPITAL CORP., 1633 Broadway, 19`h Floor New York, NY 10019 and BUSINESS LOAN CENTER, L.L.C. f/k/a BUSINESS LOAN CENTER, INC. 1633 Broadway, 19`h Floor New York, NY 10019 Plaintiffs, V. KEITH L. PLASTERER and JAMIE PLASTERER : 36 Kelly Drive Carlisle, PA 17013 Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 07-3514 Civil Term CIVIL ACTION - LAW DEFENDANTS' ANSWERS TO PLAINTIFFS' REQUESTS FOR ADMISSIONS Defendants Keith L. Plasterer and Jamie Plasterer ("Plasterer"), by and through their undersigned counsel, hereby submit these Answers to Plaintiffs' Requests for Admissions: GENERAL OBJECTIONS Plasterer makes the following general objections. Plasterer incorporates each general objection into their answer and objections to each request for admission by reference, whether or not restated expressly in the answer and objections. PHIL] 799582-1 1. Plasterer objects to the instructions contained in the Requests to the extent they are inconsistent with, or purport to impose burdens on the Plasterer greater than those imposed by the Pennsylvania Rules of Civil Procedure. Plasterer will answer the Requests in accordance with the Pennsylvania Rules of Civil Procedure. 2. Plasterer objects to the Requests to the extent they seek information protected by the attorney/client communication privilege, the work product doctrine or any other privilege or protection from discovery. 3. Plasterer objects to the Requests to the extent that they seek information equally available to the Defendant in the public domain or are readily obtainable by the Defendant from a source other than Plasterer in a more convenient, less burdensome and/or less expensive manner. 4. Plasterer objects to the Requests insofar as they contain vague, ambiguous and/or undefined terms. 5. Plasterer objects to the Requests insofar as they are based on false premises or upon allegations of fact which have no foundation in the record. 6. Plasterer objects to the Requests insofar as they seek information which is neither relevant, nor reasonably calculated to lead to the discovery of admissible evidence. 7. Plasterer objects to the Requests insofar as they are propounded for the improper purposes of causing harassment, annoyance, burden, oppression and/or expense. PHILI 799582-1 ANSWERS AND OBJECTIONS 1. After reasonable investigation, Defendants are without sufficient information to form a belief as the truth or falsity of this request, and, therefore, deny same. 2. Admitted. 3. Admitted. 4. Admitted. 5. Admitted. 6. Objection. Defendants object to Request No. 6 on the grounds that the term "Principals" is not defined. 7. Admitted. 8. Admitted. 9. Admitted. 14. Admitted, 11. Admitted. 12. Objection. Defendants object to Request No. 12 on the grounds that it calls for a legal conclusion. 13. Admitted. 14. Denied. 15. Admitted. 16. Admitted. 17. Admitted, 18. Admitted, PHILI 799582-1 19. Denied. To the contrary, Defendants believe that other payments were made under the notes, and are reviewing their records to determine same. 20. Admitted. 21. Admitted. 22. Admitted. 23. Admitted. &vv+??LLP By: -' -41 Anthony p abi Attornevs(for Defendants PHILI 799582-I DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff, Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, flk/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, NO. 07-3514 V. CIVIL ACTION - LAW KEITH L. PLASTERER and JAMIE PLASTERER, 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. `s? T PLAINTIFF'S MOTION TO COMPEL ANSWERS TO (1) PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND (II) PLAINTIFF'S FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANTS KEITH L. PLASTERER AND JAMIE PLASTERER Plaintiff, BLX Commercial Capital. LLC ('BLX"), by and through its attorneys, Duane Morris LLP, hereby move to compel the defendants, Keith L. Plasterer and Jamie Plasterer (the "Defendant"), to answer the following discovery: (i) Plaintiffs First Request for Production of Documents Directed to Defendants dated July 8, 2008 (the " First Request for Production of Documents")and (ii) Plaintiffs First Set of Interrogatories Directed to Defendants dated July 8, DM3\851627.1 2008 (the "First Set of Interrogatories" and, together with the First Request for Production of Documents, the "Discovery Requests"). In support of this motion, Plaintiff avers as follows: On July 8, 2008, Plaintiff served Defendants with the Discovery Requests.' A true and correct copy of the correspondence enclosing the Discovery Requests is attached hereto as Exhibit "A" and the Discovery Requests themselves are attached hereto as Exhibit "B." 2. Pursuant to Rule 4006 and Rule 4009 of the Pennsylvania Rules of Civil Procedure, Defendants had thirty (30) days to respond to the Discovery Requests. Accordingly, Defendants had until August 7, 2008 to respond to the Discovery Requests. 3. The parties have not discussed or agreed to an informal extension of time for Defendants to respond to the Discovery Requests. 4. On or about August 22, 2008, as part of its good faith effort to obviate the need for the present motion, counsel for Plaintiff notified counsel for Defendants by letter (the "August 22"d Letter") that Defendants were overdue in responding to the Discovery Requests. On or about September 10, 2008, as part of its good faith effort to obviate the need for the present motion, counsel for Plaintiff again notified counsel for Defendants by letter (the "September 10th Letter") that Defendants were overdue in responding to the Discovery Requests. 6. Since the August 22"d Letter and September 10th Letter, and despite Plaintiff s repeated good faith efforts to obtain responses to the Discovery Requests without Court intervention, Defendants have not responded to the Discovery Requests. 7. Due to the fact Defendants have failed to respond to the Discovery Requests, the Plaintiff has been materially prejudiced in its ability to move this case forward and/or resolve the 1 On July 8, 2008, Plaintiff also served Defendant with Plaintiff s Request for Admissions Directed To Defendants. On or about August 11, 2008, Defendant responded to this discovery request. -2- DM3\851627.1 instant action. Defendants' failure to respond to the Discovery Request is in violation of the Pennsylvania Rules of Civil Procedure. 9. The trial court is responsible for "[overseeing] discovery between the parties and therefore it is within that court's discretion to determine the appropriate measure necessary to insure adequate and prompt discovering of materials allowed by the Rules of Civil Procedure." Hutchison v. Luddy, 606 A.2d 905, 908 (Pa. Super. 1992) (citation and internal quotations omitted). 10. Pursuant to Rule 4019 of the Pennsylvania Rules of Civil Procedure, this Court may, on motion, make an appropriate order if "a party fails to serve answers, sufficient answers or objections to written interrogatories under Rule 4005" or a party "in response to a request for production or inspection make under Rule 4009, fails to respond that inspection may be permitted as requested or fails to permit inspection as requested." Pa. R. Civ. P. No. 4019(a)(1)(ii) and (vii). 11. Further, Rule 4019(a)(2) provides that failure to serve answers, sufficient answers or objections to written interrogatories or to respond to a request for production of documents "may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has filed an appropriate objection or has applied for a protective order." 12. Defendants have failed to answer and provide responsive documents to Plaintiff's Discovery Requests, which were served 120 days ago. 13. Defendants' failure to respond to the Discovery Requests is in violation of Pennsylvania Rules of Civil Procedure 4006 and 4009.12. 14. Defendants have failed to serve any timely objections to the Discovery Requests; -3- DM3M851627.1 neither have Defendants moved for a protective order. As a result, any objections which Defendants might have filed are waived. See Nat'l R.R. Passenger Corp. v. Fowler, 788 A.2d 1053, 1059 (Pa. Commw. Ct. 2001) (citing Mountain View Condominium Owners'Ass'n v. Mountain View Assoc., 9 Pa. D. & C. 4th 81, 86 (CP. Chester 1991)) (finding that an objection to discovery under Pa. R Civ. P. 4006(a)(2) or an application for protective order under Pa. R. Civ. P. 4012 must be filed before the party seeking discovery has filed a motion for sanctions or other motion seeking to enforce compliance with the discovery request, or else the objection or the grounds upon which the protective order is sought will be waived). 15. Accordingly, Plaintiff respectfully requests that this Court compel Defendants to fully and completely answer all of Plaintiff's Discovery Requests within ten (10) days of the entry of an order regarding this matter. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter the attached Order: (i) granting this Motion to Compel; (ii) directing Defendants to: (a) respond to and produce any and all documents responsive to the First Request for Production of Documents; and (b) respond to the First Set of Interrogatories within ten (10) days; and (iii) grant any such other relief this Court deems just and appropriate. Respectfully submitted, DUANE MORRIS LLP Dated: November 6, 2008 By: o ?x r Rudolph J. DiMassa, Jr. Esquire Sommer L. Ross, Esquire 30 South 17th Street Philadelphia, PA 19103-4196 215.9 79. 1000 (telephone) 215.979.1020 (facsimile) Attorneys for Plaintiffs/Movants -4- DM3\851627.1 DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff, Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, V. KEITH L. PLASTERER and JAMIE PLASTERER, 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. NO. 07-3514 CIVIL ACTION - LAW _ -- , t, AMENDMENT TO PLAINTIFF'S MOTION TO COMPEL ANSWERS TO (I) PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND (II) PLAINTIFF'S FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANTS KEITH L. PLASTERER AND JAMIE PLASTERER Plaintiff, Business Loan Center, LLC, f/k/a Business Loan Center, Inc. ("BLC"), by and through its attorneys, Duane Morris LLP, hereby files this Amendment (the "Amendment") to its Motion To Compel Answers To (I) Plaintiff's First Request for Production of Documents And (II) Plaintiff's First Set of Interrogatories Directed To Defendants Keith L. Plasterer and Jamie Plasterer (the "Motion to Compel"), filed with this Court on November 7, 2008. By this DM3\861930.1 Amendment, BLC avers as follows: CUMBERLAND COUNTY LOCAL RULE 208.3(a)(2) DECLARATIONS On February 13, 2008, Judge Kevin A. Hess entered on order in two related proceedings, Civil Action No. 07-2320 and Civil Action No. 07-2319 (together, the "Related Proceedings"), denying BLX's Motion for Judgment on the Pleadings (the "Motion for Judgment on the Pleadings"). The Motion for Judgment on the Pleadings was filed in each of the Related Proceedings on October 26, 2007. 2. On June 22, 2007, Judge Kevin A. Hess entered on order in one of the Related Proceedings, Civil Action No. 07-2320, granting the plaintiff's Motion To Amend Caption. CUMBERLAND COUNTY LOCAL RULE 208.3(a)(9) DECLARATION 3. Counsel to the Defendants, Keith L. Plasterer and Jamie Plasterer, was consulted prior to the filing of the Motion to Compel and this Amendment thereto, and informed BLC's counsel that he does not concur to the relief sought in the Motion to Compel. [Remainder of Page Intentionally Left Blank] DM 3\861930.1 WHEREFORE, BLC respectfully requests that this Honorable Court enter the Order attached to the Motion to Compel: (i) granting the Motion to Compel; (ii) directing the Defendants to: (a) respond to and produce any and all documents responsive to the First Request for Production of Documents; and (b) respond to the First Set of Interrogatories within ten (10) days; and (iii) grant any such other relief this Court deems just and appropriate. Respectfully submitted, DUANE MORRIS LLP Dated: November 21, 2008 By: ?---- Rudolph J. DiMassa, Jr. Esquire Sommer L. Ross, Esquire 30 South 17th Street Philadelphia, PA 19103-4196 215.979.1000 (telephone) 215.979.1020 (facsimile) Attorneys for Plaintiff/Movant -3- DM3\861930.1 DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff, Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, fWa BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, V. KEITH L. PLASTERER and JAMIE PLASTERER, 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. NO. 07-3514 CIVIL ACTION - LAW CERTIFICATE OF SERVICE rt r-J F ti? r 1`_yy , i? I, Sommer L. Ross, Esquire, hereby certify that on this 21St day of November, 2008, I caused a true and correct copy of the Amendment To Plaintiffs Motion To Compel Answers To (I) Plaintiffs First Request for Production of Documents And (II) Plaintiffs First Set of Interrogatories Directed To Defendants Keith L. Plasterer and Jamie Plasterer, to be served upon the following individual via first class mail, postage pre-paid: D W N80 930.1 Anthony P Tabasso, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers, LLP 260 South Broad Street Philadelphia, PA 19102 Counsel for- Defendants November 21, 2008 So er L. Ross, Esquire DM3\861930.1 0 2008 (the "First Set of Interrogatories" and, together with the First Request for Production of Documents, the "Discovery Requests"). In support of this motion, Plaintiff avers as follows: 1. On July 8, 2008, Plaintiff served Defendants with the Discovery Requests.' A true and correct copy of the correspondence enclosing the Discovery Requests is attached hereto as Exhibit "A" and the Discovery Requests themselves are attached hereto as Exhibit "B." 2. Pursuant to Rule 4006 and Rule 4009 of the Pennsylvania Rules of Civil Procedure, Defendants had thirty (30) days to respond to the Discovery Requests. Accordingly, Defendants had until August 7, 2008 to respond to the Discovery Requests. 3. The parties have not discussed or agreed to an informal extension of time for Defendants to respond to the Discovery Requests. 4. On or about August 22, 2008, as part of its good faith effort to obviate the need for the present motion, counsel for Plaintiff notified counsel for Defendants by letter (the "August 22nd Letter") that Defendants were overdue in responding to the Discovery Requests. 5. On or about September 10, 2008, as part of its good faith effort to obviate the need for the present motion, counsel for Plaintiff again notified counsel for Defendants by letter (the "September 10th Letter") that Defendants were overdue in responding to the Discovery Requests. 6. Since the August 22°d Letter and September 10th Letter, and despite Plaintiff's repeated good faith efforts to obtain responses to the Discovery Requests without Court intervention, Defendants have not responded to the Discovery Requests. 7. Due to the fact Defendants have failed to respond to the Discovery Requests, the Plaintiff has been materially prejudiced in its ability to move this case forward and/or resolve the 1 On July 8, 2008, Plaintiff also served Defendant with Plaintiff s Request for Admissions Directed To Defendants. On or about August 11, 2008, Defendant responded to this discovery request. -2- DM3\851627.1 instant action. Defendants' failure to respond to the Discovery Request is in violation of the Pennsylvania Rules of Civil Procedure. 9. The trial court is responsible for "[overseeing] discovery between the parties and therefore it is within that court's discretion to determine the appropriate measure necessary to insure adequate and prompt discovering of materials allowed by the Rules of Civil Procedure." Hutchison v. Luddy, 606 A.2d 905, 908 (Pa. Super. 1992) (citation and internal quotations omitted). 10. Pursuant to Rule 4019 of the Pennsylvania Rules of Civil Procedure, this Court may, on motion, make an appropriate order if "a party fails to serve answers, sufficient answers or objections to written interrogatories under Rule 4005" or a party "in response to a request for production or inspection make under Rule 4009, fails to respond that inspection may be permitted as requested or fails to permit inspection as requested." Pa. R. Civ. P. No. 4019(a)(1)(ii) and (vii). 11. Further, Rule 4019(a)(2) provides that failure to serve answers, sufficient answers or objections to written interrogatories or to respond to a request for production of documents "may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has filed an appropriate objection or has applied for a protective order." 12. Defendants have failed to answer and provide responsive documents to,Plaintiff s Discovery Requests, which were served 120 days ago. 13. Defendants' failure to respond to the Discovery Requests is in violation of Pennsylvania Rules of Civil Procedure 4006 and 4009.12. 14. Defendants have failed to serve any timely objections to the Discovery Requests; -3- DM3\851627.1 neither have Defendants moved for a protective order. As a result, any objections which Defendants might have filed are waived. See Nat'l R.R. Passenger Corp. v. Fowler, 788 A.2d 1053, 1059 (Pa. Commw. Ct. 2001) (citing Mountain View Condominium Owners'Ass'n v. Mountain View Assoc., 9 Pa. D. & C. 4th 81, 86 (CP. Chester 1991)) (finding that an objection to discovery under Pa. R Civ. P. 4006(a)(2) or an application for protective order under Pa. R. Civ. P. 4012 must be filed before the party seeking discovery has filed a motion for sanctions or other motion seeking to enforce compliance with the discovery request, or else the objection or the grounds upon which the protective order is sought will be waived). 15. Accordingly, Plaintiff respectfully requests that this Court compel Defendants to fully and completely answer all of Plaintiff's Discovery Requests within ten (10) days of the entry of an order regarding this matter. WHEREFORE, Plaintiff respectfully requests that this Honorable Court enter the attached Order: (i) granting this Motion to Compel; (ii) directing Defendants to: (a) respond to and produce any and all documents responsive to the First Request for Production of Documents; and (b) respond to the First Set of Interrogatories within ten (10) days; and (iii) grant any such other relief this Court deems just and appropriate. Respectfully submitted, DUANE MORRIS LLP Dated: November 6, 2008 By: o ix r Rudolph J. DiMassa, Jr. Esquire Sommer L. Ross, Esquire 30 South 17th Street Philadelphia, PA 19103-4196 215.979.1000 (telephone) 215.979.1020 (facsimile) Attorneys for Plaintiffs/Movants -4- DM3\851627.1 DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff, Business Loan Center, LLC - IN THE COURT OF COMMON PLEAS ; ? n CUMBERLAND COUNTY PENNSYLVANIA , ` -mot BUSINESS LOAN CENTER, LLC, f/k/a ?? c=? BUSINESS LOAN CENTER INC. '' , , 1633 Broadway 19th Floor , New York, New York 10019, Plaintiff, V. NO. 07-3514 CIVIL ACTION - LAW KEITH L. PLASTERER and JAMIE PLASTERER, 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. AMENDMENT TO PLAINTIFF'S MOTION TO COMPEL ANSWERS TO (I) PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND (II) PLAINTIFF'S FIRST SET OF INTERROGATORIES DIRECTED TO DEFENDANTS KEITH L. PLASTERER AND JAMIE PLASTERER Plaintiff, Business Loan Center, LLC, f/k/a Business Loan Center, Inc. ("BLC"), by and through its attorneys, Duane Morris LLP, hereby files this Amendment (the "Amendment") to its Motion To Compel Answers To (I) Plaintiff's First Request for Production of Documents And (II) Plaintiffs First Set of Interrogatories Directed To Defendants Keith L. Plasterer and Jamie Plasterer (the "Motion to Compel"), filed with this Court on November 7, 2008. By this DM3\861930.1 Amendment, BLC avers as follows: CUMBERLAND COUNTY LOCAL RULE 208.3(a)(2) DECLARATIONS 1. On February 13, 2008, Judge Kevin A. Hess entered on order in two related proceedings, Civil Action No. 07-2320 and Civil Action No. 07-2319 (together, the "Related Proceedings"), denying BLX's Motion for Judgment on the Pleadings (the "Motion for Judgment on the Pleadings"). The Motion for Judgment on the Pleadings was filed in each of the Related Proceedings on October 26, 2007. 2. On June 22, 2007, Judge Kevin A. Hess entered on order in one of the Related Proceedings, Civil Action No. 07-2320, granting the plaintiff's Motion To Amend Caption. CUMBERLAND COUNTY LOCAL RULE 208.3(a)(9) DECLARATION 3. Counsel to the Defendants, Keith L. Plasterer and Jamie Plasterer, was consulted prior to the filing of the Motion to Compel and this Amendment thereto, and informed BLC's counsel that he does not concur to the relief sought in the Motion to Compel. f Remainder of Page Intentionally Left Blank] -2- DM3\8G 1930.1 WHEREFORE, BLC respectfully requests that this Honorable Court enter the Order attached to the Motion to Compel: (i) granting the Motion to Compel; (ii) directing the Defendants to: (a) respond to and produce any and all documents responsive to the First Request for Production of Documents; and (b) respond to the First Set of Interrogatories within ten (10) days; and (iii) grant any such other relief this Court deems just and appropriate. Respectfully submitted, DUANE MORRIS LLP Dated: November 21, 2008 By: Rudolph J. DiMassa, Jr. Esquire Sommer L. Ross, Esquire 30 South 17th Street Philadelphia, PA 19103-4196 215.979.1000 (telephone) 215.979.1020 (facsimile) Attorneys for Plaintiff/Movant -3- DM3\861930.1 BUSINESS LOAN CENTER, LLC, IN THE COURT OF COMMON PLEAS OF f/k/a BUSINESS LOAN CENTER, CUMBERLAND COUNTY, PENNSYLVANIA INC., Plaintiff CIVIL ACTION-LAW NO.07-3514 CIVIL vs. KEITH L. PLASTERER and JAMIE : PLASTERER, Defendants: IN RE: PLAINTIFF'S MOTION FOR COMPEL ORDER AND NOW, this z G day of November, 2008, a rule is issued on the defendant to show cause why the relief requested in the within motion to compel ought not to be granted. This rule returnable twenty (20) days after service. BY THE COURT, Hess, J. Rudolph J. Di Massa, Jr. Sommer L. Ross, Esquire For the Plaintiff Anthony P. Tabasso, Esquire For the Defendant rlm gg i the seal of said Court ai Catiisia; N. f hik ?ay , )f- Q DUANE MORRIS LLP Attorneys for Plaintiff, By: Rudolph J. Di Massa, Jr. Business Loan Center, LLC PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) w ? T7 IN THE COURT OF COMMON PLEAS _ A. CUMBERLAND COUNTY, P ENNSYLVANIA 4 t..} BUSINESS LOAN CENTER, LLC, VWa AG BUSINESS LOAN CENTER, INC., _Z4 r c? b 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, NO. 07-3514 V. KEITH L. PLASTERER and JAMIE PLASTERER,-: CIVIL ACTION - LAW 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. MOTION TO MAKE RULE ABSOLUTE 1. On November 7, 2008, Plaintiff Business Loan Center, LLC ("Plaintiff' or "BLX") filed a Motion to Compel Answers To (I) Plaintiffs First Request For Production Of Documents And (II) Plaintiff's First Set Of Interrogatories Directed To Defendant(s) (the "Motion To Comel") 2. The Motion To Compel was served on counsel to Keith L. Plasterer and Jamie Plasterer (collectively, the "Defendants") via First Class U.S. mail on November 6, 2008 and via First Class U.S. Mail and electronic mail on November 10, 2008. The relevant Certificate of Service and correspondence evidencing such service is attached hereto as Exhibit "A." DM3\999333.1 3. On November 24, 2008, Plaintiff filed an Amendment (the "Amendment") to the Motion To Compel in order to comply with Cumberland County Local Rule 208.3(a)(2) and (a)(9) 4. The Amendment was served on counsel to the Defendants via First Class U.S. Mail on November 21, 2008 as evidenced by the Certificate of Service attached hereto as Exhibit "B." 5. On November 26, 2008, the Court, by and through the Honorable Kevin A. Hess, entered an order which issued a rule to show cause (the "Rule To Show Cause") why the relief requested in the Motion To Compel ought not to be granted. A true and correct copy of the Rule To Show Cause is attached hereto as Exhibit "C." Pursuant to the Rule to Show Cause, it was returnable twenty (20) days after service. 6. A copy of the Rule To Show Cause was served on counsel to the Defendants via First Class U.S. Mail and electronic mail on December 1, 2008. A true and correct copy of the relevant Certificate of Service and the correspondence evidencing such service is attached hereto as Exhibit "D." 7. The Rule To Show Cause was returnable on December 21, 2008. 8. To date, the Defendants have failed to respond to the Rule To Show Cause or the Motion To Compel. 9. To date, the Defendants have failed to respond to the discovery which is the subject of the Motion To Compel. CUMBERLAND COUNTY LOCAL RULE 208.3(a)(2) DECLARATIONS 10. On February 13, 2008, Judge Kevin A. Hess entered on order in two related proceedings, Civil Action No. 07-2320 and Civil Action No. 07-2319 (together, the "Related 2 DM3\889333.1 Proceedings"), denying the plaintiffs' Motion for Judgment on the Pleadings (the "Motion for Judgment on the Pleadings"). The Motion for Judgment on the Pleadings was filed in each of the Related Proceedings on October 26, 2007. 11. On June 22, 2007, Judge Kevin A. Hess entered on order in one of the Related Proceedings, Civil Action No. 07-2320, granting the plaintiff's Motion To Amend Caption. 12. On November 7, 2008 and November 24, 2008, respectively, the Motion To Compel and the Amendment were filed. 13. On November 26, 2008, Judge Kevin A. Hess entered an order issuing the Rule To Show Cause. CUMBERLAND COUNTY LOCAL RULE 208.3(a)(9) DECLARATION 14. Counsel to the Defendants, Keith L. Plasterer and Jamie Plasterer, was consulted prior to the filing of this Motion to Make Rule Absolute Compel by Plaintiffs counsel and he did not respond; therefore, we assume that he does not concur in the relief sought. WHEREFORE, Plaintiff, Business Loan Center, LLC, respectfully requests that this Honorable Court enter an Order making the Rule To Show Cause absolute and grant the relief requested in the Motion To Compel. Respectfully submitted, DUANE MORRIS LLP Dated: January 8, 2009 By: R dolph J. DiMassa, Jr. Esquire Sommer L. Ross, Esquire 30 South 17th Street Philadelphia,. PA 19103-4196 -215.979.1000 (telephone) 215.979.1020 (facsimile) Attorneys for PlaintifVMovant 3 DM31889333.1 DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff, Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, fWa BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, : NO. 07-3514 V. KEITH L. PLASTERER and JAMIE PLASTERER, : CIVIL ACTION - LAW 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. CERTIFICATE OF SERVICE I, Sommer L. Ross, Esquire, hereby certify that on this 8th day of January, 2009, I caused a true and correct copy of Plaintiffs Motion To Make Rule Absolute and Order Making Rule Absolute to be served upon the following individual via first class mail, postage pre-paid: Anthony P Tabasso, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers, LLP 260 South Broad Street Philadelphia, PA 19102 January Counsel for Defend s lc4t_ 8 2009 S mmer L. Ross, Esquire DM3\889333,1 t\ JAN 7 3 2009 ? DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff, Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a : BUSINESS LOAN CENTER, INC., : 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, NO.07-3 514 V. ; KEITH L. PLASTERER and JAMIE PLASTERER, : CIVIL ACTION - LAW 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. ORDER MAKING RULE ABSOLUTE AND NOW, this ltr?k day of January, 2009, upon the Motion To Make Rule Absolute filed by Plaintiff Business Loan Center, LLC, the Rule To Show Cause' entered by this Court on November 26, 2008, Returnable December 21, 2008, is hereby made absolute and it is hereby Ordered that: (i) the Motion To Compel is granted; 'All terms not otherwise defined herein shall have the meaning ascribed to them in the Motion to Make Rule Absolute unless otherwise noted. DM3\889333.1 (ii) Defendants Keith L. Plasterer and Jamie Plasterer shall fully and completely respond to and produce any and all documents responsive to the Plaintiffs First Request for 4w ?A&) Documents2 witliin4e*{} days from the date of this Order; and (iii) Defendants Keith L. Plasterer and Jamie Plasterer shall Nly and completely respond to Plaintiffs First Set of Interrogatories3 within 4en (iB) days from the date of this Order. DISCOVERY DEADLINE: 2 This term is defined in the Motion to Compel. 3 This term is defined in the Motion to Compel. DM3\889333.1 BY THE COURT: - / " W. a W ) , , 1.4j J. 2004 d b yp Jp'l 2 S FIEB 1 2 2088 KLEHR, HARRISON, HARVEY, BRANZBURG & ELLERS LLP By: Anthony P. Tabasso, Esquire BY . -•--?--?'? A-...... I.D. Nos. 80851 260 S. Broad Street Philadelphia, PA 19102 Attorneys for Defendants (215) 568-6060 Keith L. Plasterer and Jamie Plasterer BLX COMMERCIAL CAPITAL, LLC f/k/a BLC COMMERCIAL CAPITAL CORP., 1633 Broadway, 19th Floor New York, NY 10019 COURT OF COMMON PLEAS CUMBERLAND COUNTY and BUSINESS LOAN CENTER, L.L.C. f/k/a BUSINESS LOAN CENTER, INC. 1633 Broadway, 19th Floor New York, NY 10019 No. 07-3514 Civil Term CIVIL ACTION - LAW Plaintiffs, V. KEITH L. PLASTERER and JAMIE PLASTERER : 36 Kelly Drive Carlisle, PA 17013 Defendants. DEFENDANTS' ANSWER TO PLAINTIFF'S FIRST SET OF INTERROGATORIES Defendants, Keith L. Plasterer and Jamie Plasterer, by and through their undersigned counsel, hereby answers Plaintiff s First Set of Interrogatories as follows: GENERAL OBJECTIONS 1. The Defendants object to the propounded discovery requests to the extent that they seek documents or other information protected from discovery by the attorney-client privilege, the work product doctrine, or any other applicable privilege. PHILI 827521-1 2. The Defendants object to the Definitions, the purported instructions and the individual propounded discovery requests to the extent that they attempt to expand and impose greater burdens than permitted or required by the Pennsylvania Rules of Civil Procedure. 3. The Defendants object to the propounded discovery requests to the extent that they seek the disclosure of documents or other information that are proprietary, or which constitute trade secrets or other confidential commercial information, and which are not subject (or not yet subject) to an appropriate protective order entered into by the parties. 4. The Defendants object to the propounded discovery requests to the extent that they seek information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. 5. The Defendants object to the propounded discovery requests to the extent that they are designed to cause unreasonable burden, annoyance, expense or harassment to the Defendants and/or were propounded for an improper purpose. 6. The Defendants object to the propounded discovery requests because they are vague, ambiguous and/or overbroad. 7. The Defendants object to the propounded discovery requests to the extent that they may be addressed to parties other than the Defendants. 8. The Defendants reserve the right, but do not hereby assume the obligation, to alter, amend, or supplement these responses and objections as may be appropriate or necessary, in accordance with the Pennsylvania Rules of Civil Procedure. The foregoing General Objections will be deemed to be continuing throughout the responses that follow, whether or not expressly referred to therein. The stating of additional or PHILI 827521-1 other specific objections shall not constitute a waiver or limitation of the General Objections in their entirety. SPECIFIC ANSWERS AND OBJECTIONS 1. Keith Plasterer. 2. Mr. Plasterer reviewed the documents produced concurrently herewith when answering these interrogatories. 3. Keith Plasterer and Jamie Plasterer. 4. The Plasterers have knowledge relating to the entire loan relationship with BLX. 5. Pursuant to Pennsylvania Rule of Civil Procedure 4006(b), the answer to this interrogatory can be derived from a review of the payment records produced concurrently herewith. 6. Defendants are unsure what the current balance of the loan is. 7. Objection. Defendants object to this form of "contention" interrogatory on the grounds that the underlying information is more suited to deposition testimony. Pursuant to Pennsylvania Rule of Civil Procedure 4006(b), the answer to this interrogatory can be derived from a review of the payment records produced concurrently herewith. 8. Objection. Defendants object to this form of "contention" interrogatory on the grounds that the underlying information is more suited to deposition testimony. Pursuant to Pennsylvania Rule of Civil Procedure 4006(b), the answer to this interrogatory can be derived from a review of the payment records produced concurrently herewith. 9. Defendants have not decided what documents they will rely on in connection with the litigation. However, the defendants have produced all documents in their custody or control relating to BLX concurrently herewith. PHILI 827521-1 10. Defendants have not yet determined what documents they intend to use and/or introduce into evidence at trial. 11. Defendants have not yet determined what witnesses they intend to call at trial. 12. Defendants do not anticipate utilizing any experts in this case. Defendants will amend their response to this interrogatory in the future, if necessary. 13. Defendants incorporate their answers to the plaintiff's request for admissions by reference. 14. Defendants are without sufficient information to determine who is the proper holder of the $4.5 million mortgage and/or related loan documents. The defendants are aware that BLX was acquired by, or merged into, an entity known as Ciena Capital, and that Ciena Capital subsequently filed for bankruptcy. The defendants have no knowledge as to how the loans underlying this case were treated in those transactions. 15. Defendants obtained the information set forth in their answer to interrogatory no. 14 from articles posted online. 16. Mr. Plasterer is the President and sole shareholder of Carlisle 17. Jamie Plasterer is an unpaid employee of the defendant. 18. Objection. Defendants object to interrogatory no. 18 on the grounds that it is irrelevant. 19. Objection. Defendants object to interrogatory no. 19 on the grounds that it is irrelevant. 20. Gift and Associates, 1205 Manor Drive, Suite 100, Mechanicsburg, PA 17055. 21. Denise Hilton, Tim Williams, Len Rudolph, Geraldine Seagar, Cindy James, Steve Welsh, Rudolph DiMassa, David Redlener, Ada Matos, David Speers. PHILI 827521-1 22. Defendants' primary contacts with the individuals listed in paragraph 25 regarded general loan administration, payment arrangements, and deposits and releases of escrowed funds. The contacts were both written and verbal. By: KLEHR, HARRISON, HARVEY, BRAN"MURG & ELLERS LLP A lWony P. TabaSsb, Esquire Attorney J.D. No. 80851 260 S. Broad Street Philadelphia, PA 19102 (215) 568-6060 Attorneys for Defendants PHILI 827521-1 CERTIFICATE OF SERVICE I, Anthony P. Tabasso, Esquire, hereby certify that I caused a true and correct copy of the foregoing Answers to Interrogatories to be served upon the following counsel of record via first- class mail, postage prepared: Sommer L. Ross, Esquire Duane Morris 30 S. 17t' Street Philadelphia, PA -?9103 r/ Anthony P. abasso, PH1L1 827521-1 L IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, NO. 07-3514 V. KEITH L. PLASTERER and JAMIE PLASTERER, : CIVIL ACTION - LAW 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. AFFIDAVIT OF JONATHAN CHANG IN SUPPORT OF PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT I, Jonathan Chang, do hereby declare under penalty of perjury that: 1. I am an adult individual over the age of eighteen (18). 2. I am Vice President of Business Loan Center, LLC ("BLC"). 3. I have personal knowledge of the matters set forth herein and am authorized to make the statements set forth herein by and on behalf of BLC. The statements made herein are true and correct to the best of my knowledge, information and belief. 4. BLC is a Delaware limited liability company with an address of 1515 Broadway, 12th Floor, New York, New York 10036. 5. BLC is a wholly owned subsidiary of Ciena Capital, LLC ("Ciena Capital"), which, prior to January 7, 2008, operated under the name Business Loan Express, LLC. Ciena Capital filed for bankruptcy protection on September 30, 2008 in the United States Bankruptcy Court for the Southern District of New York. 6. BLC became a limited liability company on about January 31, 2003. DM3\921913.1 7. Prior to January 31 2003, BLC operated as a Delaware corporation under the name Business Loan Center, Inc. ("BLC Inc."). The conversion from a Delaware corporation to a Delaware limited liability corporation (the "Conversion") is evidenced by the Certificate of Conversion of Business Loan Center, Inc. to Business Loan Center, LLC dated January 31, 2003 (the "Certificate of Conversion"), a true and correct copy of which is attached hereto and incorporated herein by reference as Exhibit "A." 8. By virtue of the Conversion, BLC is the holder of the Note (defined below) and is entitled to enforce the Guaranty (defined below) and any loan documents related thereto. 9. The Defendants in this case are Keith L. Plasterer ("Keith Plasterer") and Jamie L. Plasterer ("Jamie Plasterer," and together, with Keith Plasterer the "Defendants"). 10. The Defendants are husband and wife. 11. The Defendants are residents of the Commonwealth of Pennsylvania with an address of 36 Kelly Drive, Carlisle, Pennsylvania 17013. 12. Keith Plasterer is the President of Carlisle Sports Emporium, Inc. ("Borrower") 13. Borrower is a Pennsylvania corporation with an address of 29 South Middlesex Road, Carlisle, Pennsylvania 17013 (the "Mortgaged Premises"). 14. On or about December 20, 2000, BLC Inc. entered into a loan transaction with Borrower whereby BLC Inc. loaned Borrower the principal sum of $175,000.00 (the "Loan") 15. The Loan was evidenced by, inter alia, a promissory note dated December 20, 2000, executed and delivered to BLC Inc. by Borrower (the "Note"). -2- DM3\921913.1 16. As security for the Note, and the obligations of Borrower due and owing to BLC Inc. thereunder, the Defendants executed an unconditional guaranty of payment in favor of BLC Inc. (the "Guaranty") 17. Borrower is in default of it obligations due and owing under the Note as a result of, among other things, Borrower's failure to make payments when due to BLC (the "Defaults"). 18. By letter dated November 10, 2006, BLC notified Borrower of the Defaults and that it was accelerating all amounts then due and owing under the Note (the "November Default Letter"). 19. By letter dated November 10, 2006, BLC also notified the Defendants of the Defaults and that it was accelerating all amounts then due and owing under the Note (the "November Guarantor Default Letter") 20. In response to the November Default Letter and/or the November Guarantor Default Letter, Borrower made a partial payment to BLC; however, the payment neither satisfied the entire unpaid principal balance due under the Note and all accrued, unpaid interest due and owing under thereunder, nor cured the Defaults. 21. By letter dated December 29, 2006, BLC again notified Borrower of the Defaults and that it was accelerating all amounts then due and owing under the Note (the "December Default Letter") 22. By letter dated December 29, 2006, BLC again notified Defendants of the Defaults and that it was accelerating all amounts then due and owing under the Note (the "December Guarantor Default Letter"). -3- DM3\921913.1 23. After the December Default Letter and/or the December Guarantor Default Letter, Borrower made and attempted to make partial payments to BLC; however, the partial payments neither satisfied the entire unpaid principal balance due under the Note and all accrued, unpaid interest due and owing under thereunder, nor cured the Defaults. 24. On or about April 23, 2007, BLC commenced an action against the Defendants by filing a Complaint for Breach of Contract with a certain affiliate that also had related claims against Defendants (the "Initial Complaint") 25. In response to preliminary objections filed by the Defendants, BLC withdrew from the Initial Complaint and, on June 15, 2007, filed new Complaint for Breach of Contract against the Defendants (the "Complaint"), which initiated this action. 26. On September 11, 2007, BLC filed an Answer to Defendants' New Matter. 27. On July 8, 2008, BLC served the following discovery requests on the Defendants (collectively, "Plaintiff's Discovery" or the "Discovery Requests"): (i) Plaintiff's Request for Admissions Directed to Defendants (the "Request for Admissions"); (ii) Plaintiff's First Request for Production of Documents Directed to Defendants (the "Document Requests"); and (iii) Plaintiff's First Set of Interrogatories Directed to Defendants (the "Interrogatories"). 28. On August 8, 2008, the Defendants served their answer to the Request for Admissions only ("Defendants' Response to the Request for Admissions"). 29. On November 7, 2008, after making several attempts to compel the Defendants to respond to the Document Requests and the Interrogatories without the need for Court intervention, BLC filed a Motion to Compel Answers To (I) Plaintiff's First Request -4- DM3\921913.1 for Production of Documents and (II) Plaintiff's First Set of Interrogatories Directed to the Defendants, which was subsequently amended (the "Motion to Compel"). 30. On November 26, 2008, this Honorable Court entered an Order Regarding BLC's Motion to Compel which effectively issued a rule to show cause (the "Rule"). The Rule was returnable on December 21, 2008. 31. The Defendants failed to respond to the Motion to Compel and/or the Rule. 32. On January 14, 2009, after BLC filed a Motion to Make Rule Absolute, the Court entered an Order Making Rule Absolute (the "Order Making Rule Absolute"). 33. Pursuant to the Order Making Rule Absolute, the Defendants had until February 3, 2009 to respond to the Document Requests and the Interrogatories. 34. On February 6, 2009, the Defendants produced documents responsive to the Document Requests. 35. On February 12, 2009, the Defendants responded to the Interrogatories. 36. The information produced in response to the Discovery Requests does not appear to support the objections or the defenses raised by the Defendants in their answer to the Amended Complaint. 37. As a result, BLC directed its counsel to file a Motion for Summary Judgment. 38. As of the date hereof, the Borrower remains in default of its obligations under the Note and the Defendants remain in default of their obligations under the Guaranty. 39. As of the date the Complaint was filed, the Defendants and/or Borrower owed BLC $94,334.62 under the Note and/or Guaranty. 40. Since the date the Complaint was filed the Defendants have made sporadic payments to BLC under the Note. -5- DM3\921913.1 41 follows: The amounts due and owing under the Note as of February 4, 2009 are as Unpaid Principal $74,984.48 Accrued And Unpaid Interest $8,788.59 Through Feb. 4, 2009 Unpaid Late Charges Through $4,286.21 Feb. 4, 2009 Unpaid Expenses Through $11,261.33 Feb. 4, 2009 Miscellaneous Fees Through $25.00 Feb. 4, 2009 Attorney Fees And Costs To Be Determined Total Amount Due As Of $99,345.61 Feb. 4, 2009 (plus additional interest, which continues to accrue at a per, diem rate of $12.33, fees and costs and expenses, including, without limitation, attorneys' fees, which continue to accrue) 42. Pursuant to the Guaranty, the entire unpaid principal balance under the Note, all accrued but unpaid interest thereon, and all other amounts due thereunder are immediately due and payable by the Defendants to BLC. 43. The amounts due under the Note have not been satisfied by either Borrower or the Defendants or any other person or entity. 44. Interest continues to accrue under the Note at the per diem rate of $12.33. 45. The interest rate is variable and changes with the market. -6- DM3\921913.1 Dated: February 17, 2009 Sworn to and subscribed before me this 11 day of 2009. A - ??? w No ublic DM3\921913.1 Jonathan Chang Vice President, B sin s Loan Center, LLC -jam L. W904 NUrARY PU L' (1VIW YORK is laMrlaeeller WROAM190 IeWtWdlrJlwUt Y cawidw aom i13MI0 ! y -7- EXHIBIT "A" STATE OF DELAWARE SECRETARY OF STATE DIVISION OF CORPORATIONS FILED 11:16 AM 0113112003 030066713 - 2227663 CERTIFICATE OF CONVERSION OF BUSINESS LOAN CENTER, INC. (a Delaware corporation) to BUSiN> SS LOAN CENTER, LLC (a Delaware limited liability company) Pursuant to Section 266 of the Delaware General Corporation Law (the "DGCL") and Section 18-214 of the Delaware Limited Liability Company Act (the "DLLCA"), the undersigned domestic corporation (the "Corporation') hereby duly executes and files this Certificate of Conversion: 1. The name of the Corporation immediately prior to filing this Certificate of Conversion is Business Loan Center, Inc., which is also the name under which the Corporation was originally incorporated. 2. The Corporation's original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on Apri116, 1990. 3. The name of the limited liability company to which the Corporation is being converted, as set forth in its Certificate of Formation, is Business Loan Center, LLC, a limited liability company organized under the laws of the State of Delaware. 4. The conversion has been approved in accordance with the provisions of Section 266 of the DGCL and Section 18-214 of the DLLCA. 5. The conversion shall be effective at 11:56 p.m. on January 31, 2003. IN WITNESS WHEREOF, the undersigned has caused this Certificate of Conversion to be executed by an authorized officer on its behalf. Executed on January 30, 2003. BUSINESS LOAN CENTER. INC. By: Is/Robert F. Tannenhauser President and Chief Executive Officer 132 WO 136806.( j r To: ?? - Fax #: W From: Date: c,- L # of pages including cover Re: Urgent NOTES: Confidential For Review _ Please Reply 29 South Middlesex Road., Carlisle PA. 17013 (717) 2.59-4741, Fax (717) 258-8858 ??-)A D 0132 BUSINESS LOAN EXPRESS One Independence ?oin!e. Sw!e t02. G!eenviLle. SC 29615 January11, 2007 Keith L. Plasterer 1101 Lindham Court (#704) Mechanicsburg, PA 17055 RE: Periodic Insurance Audit of Loan Files Dear Borrower(s): We periodically audit our loan files to verify insurance status . In order to complete your file, we ask that you provide insurance policies for the following loan and its collateral. Please note that more than one type of insurance may be re quired for your loan. Please fax or mail your policy to the address listed above. LOWNUMBER COL1ATERAL.DESCRiP7lON RE4UIRED INSURANCE,. 22000C 29 MIDDLESEX ROAD 17013-8511 Business Interruption t.A12000C 29 MIDDLESEX ROAD 17013-8511 Business Personal Property ?'22000C 29 MIDDLESEX ROAD 17013-8511 General Liability L 22000C 29 MIDDLESEX ROAD 17013-8511 Real Property Evidence of insurance may be submitted in any of the following ways: n . Attach a copy of this notice to the policies requested and mail to the address listed above; Attach a copy of this notice to the policies requested and fax to 864-751-4450_. or X__ Contact your agent and have the requested information mailed or faxed on your behalf. Should you have any questions regarding this notice, the insurance requirements of your loan, or any other insurance-related matter, please call 800-542-7900, extension 6530. Sincerely, Insurance Service Center Avli? Altj RCN D 0133 whited `3 up" COMMERCIAL PROPERTY POLICY ij Li lSl ifi :i iY f•'tJ Li'vY L.:?4 Lnr°.r}.i ISJ Iti .+ Insurance Company GunitedNational insuraneeComp an), 0D lam and State Insurance Company United Halle" a;tAL i.YD P=-NHSYL.ANtK WM44AFCAG. NDIANA r1vJ I 4A3CCl:SN policy No. Renewal of No. :'vtia Named Insured and Mailing Address (No. Street, '.own or City, County, State, Zip Code) s.•. E? 500. r'I.:a F. Ti`J{:f 1.u In Inc 29 J_ Middlesex Rd {;a r1 _S1 e .'P. 17013 Polity Period: From January 25, 2007 to January 25, 2008 at 12:01 A.M. Standard Time at your m ailing address shown above. Producer(Name, Address& Code): B43-11:_5 950 Highland Ave G-eensburq PA1-5 601 IN RETURN FOR THE PAYMENT OF THE PREMIUM, AND SUBJECT TO ALL THE TERMS OF THIS POLICY, WE AGREE WITH YOU TO PROVIDE THE INSURANCE AS STATED IN THIS POLICY. VDESCRIPTION OF PREMISES- Prem. Bldg. Location Construction and Occupancy 001 001 29 South Middlesex RD Non-Combustible Carisle PA 17013 Sportsf Activities Center COVERAGES PROVIDED INSURANCE AT THE DESCRIBED PREMISES APPLIES ONLY FOR COVERAGES FOR W"ICH A LIMfT OF INSUPANCE IS SHOWN. Limitof Covered Causes Coinsurance or Replacement Prem. Bldg. Coverage Insurance of Loss Mo_ Indemnity cost 001 001 Building $4.800,000 Special 80% X 001 001 Business Personal Property $800,000 Special 80% X MORTGAGE HOLDER(S) (Name and Mailing Address) 001 001 Business Loan Center LLC 1633 Broadway 39th Floor, New York. NY 10019 DEDUCTIBLE: $10,000 Commercial Property Premium: $ 23,900.00 Policy Fee $500.00 Equipment Breakdown Premium: $ Stamp Fee $15.00 optional Terrorism Coverage Premium: $ Tax $ 717.00 Premium Payable at Inception: $ 23,900.00 Minimum Earned Premium: $ 5,975.00 Form(s) and Endorsement(s) made a part of this policy at tim a of issue: SEE ATTACHED SCHEDULE OF POLICY FORMS AND ENDORSEMENTS SAA-100 Countersigned: 02106/07 The Insurervahleh has Issued this Insurance Is SLI not licensed by the Pennsylvania Insurance Department and Is subject to limited DPB-101 (8/ ^1004) ragulallon_ Ttva insurance is not coverod by the Pennsylvania Property and Casualty Insunance Guaranty AssoGatlon. Placed by. W N Tuscan. Agency Inc, f 350 ii I4l,Iand Ave. Greansb-q. PA 7?0G1. Authorized Representative D 0134 ACOM. CERTIFICATE OF LIABILITY INSURANCE DATE YYYY) 7/1MJDDi 7/99/2006 06 PRODUCER (262) 797-8160 FAX x;262) 797-9048 !Beckman Insurance Agency t S* 171 78 1 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. _. s S. 28 New Berlin WI 53151 ? INSURERS AFFORDING COVERAGE ( NAIC ? INSURED INSURER A C-reat American EIS Ins. Carlisle Sports Emporium, Inc. INSURER B. I29 South Middlesex Road INSURER C' I INSURER D: ICarlisle PA 17013 INSURERE I IVFRAGFS THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INUICATED. Nol WI RiS IANLANU ANY TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, REQUIREMENT , NSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. AGG-REGATE 4 POLICY EFFECTNE P OLICY EXPIRATION .. R TYPE OF WSURANCE POLICY NUMBER DATE (MMIDDlYY) DATE (MMIDDfYYI LIMITS GENERAL LIABILITY EACH OCCURRENCE 1,000,000 S { DAMAGE TO RENTED 000 50 I X COMMERCIAL GENERAL LIABILITY PREMISES a oraurrmw , S A I CLAIMS MADE aOCCUR TO BE ASSIGNED 7/18/2006 7/18/2007 MEDEXP(Any one person S EXCLUDED PERSONAL& ADV INJURY S 1,OOD,000 GENERAL AGGREGATE S 2,000,000 AGGREGATE LIMIT APPLIES PER: GENT PRODUCTS - COMPIOP AGG $ 1,000,000 y I . O 1 T I LOG X POLICY, JEC AUT OMOBILE LIABILITY COMBINED SINGLE LIMIT S i ANY AUTO (Ea accident) I I i 1 1 ALL OWNED AUTOS SCHEDULED AnOS BODILY INJURY (Per person) S HIRED AUTOS BODILYINJURY NON-OWNED AUTOS i (Per accident) PROPERTY DAMAGE S (Per accidmt) GARAGE LIABILITY AUTO ONLY - EA ACCIDENT S A14Y .AUTO OTHER THAN EA ACC S i AUTO ONLY: qGG S ( EXCESSIUMBRELLA LIABILITY EACH OCCURRENCE S OCCUR F1 CLAIMS MADE I AGGREGATE 5 I 5 DEDUCTIBLE I S yE; TIO:: S S _ ? STATUS OTH - 1 WORKERS COMPENSATION AND TOOR RY LIMITS ER i EMPLOYERS LIABILITY CCUTI'JE PROPRIETOR/PARTNEPJEY E.L. EACH ACCIDENT S - 1 ANY OFFICERIMEMBER EXCLUDED? EL. DSEASE . EA EMPLOYE S It yes, desabe under SPECIAL PROVISIONS below E.L. DISEASE - POLICY LIMIT S f OTHER DESCRIPTION OF OPERATIONSILOCATIONSIV"IL;LtSIt7.CLUNUNS AUUCU er Mn KV MCN uarouA? r-ecvworuna Coverage is for the go-karts, rookie karts, mini-golf, arcade, concessions, batting cages, laser tag, and parties located at 29 South Middlesex Rd., Carlisle, PA. CERTIFICATE HOLDER (717)783-4158 Commonwealth of Pennsylvania Dept. of Agriculture, Bureau of Ride & Measurement Standards 2301 N. Cameron St., Rm. 206 Harrisburg, PA 17100-9408 D 0135 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 10 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE AUTHORIZED XCORD 25 (2001108) 0-WCOWD CORPORATION 1988 'IS025 (p1.3e).06 AMS VMP Mortgage Sol•- Lions, ire. (8^_0)327.0545 - CERTIFICATE OF SERVICE I, Sommer L. Ross, Esquire, hereby certify that on this. 18th day of February 2009, I caused a true and correct copy of the foregoing Motion for Summary Judgment to be served upon the following individual via first class mail, postage pre-paid: Anthony P Tabasso, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers, LLP 260 South Broad Street Philadelphia, PA 19102 Counsel for Defendants February 18, 2009 So mer L. Ross, Esquire DM3\929599.1 15 { - Co PRAECIPE FOR LISTING CASE FOR ARGUMENT TO THE PROTHONOTARY OF CUMBERLAND COUNTY: Please list the within matter for the next Argument Court. BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, NO. 07-3514 V. CIVIL ACTION - LAW KEITH L. PLASTERER and JAMIE PLASTERER, 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. 1. State matter to be argued: Plaintiff s Motion for Summary Judgment 2. Identify counsel who will argue cases: (a) for Plaintiff. Rudolph J. Di Massa, Jr., Esquire Sommer L. Ross, Esquire Duane Morris LLP 30 South 17th Street Philadelphia, PA 19103 (b) for Defendants: Anthony P. Tabasso, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers, LLP 260 South Broad Street Philadelphia, PA 19102 3. I will notify all parties in writing within two days that this case has been listed for argument. 4. Argument Court Date: Aril 29, 2009 ?p f-rvrt?_ cn • ,c.c.?.? Date: March 3, 2009 By: Sommer L. Ross Attorney For Business Loan Center, LLC DM3\941599.1 ??? ?C% Office of the Prothonotary Cumberland County Curtis R. Long Prothonotary Sommer L. Ross, Esq. 30 South 17th Street Philadelphia, PA 19103 DATE: February 26, 2009 TO Attorney Ross: THIS IS TO NOTIFY YOU THAT CASE NUMBER 07-3514 BUSINESS LOAN CENTER, LLC, Vk/a BUSINESS LOAN CENTER, INC. . 2a ?n,C9 t?Al 11 1G? Sommer L. Ross, Esq. 30 South 17th Street Philadelphia, PA19103 , -S P087, _ dad 7Y. ` q PITNEY 607N?5 02 1A $ 00.420 0004631598 FEB27 2009 MAILED FROM ZIP CODE 1 701 3 L 0 a-v NIXIE 1531 Cc 1 95 03106109 RETURN TO SENDER =NUNABLE _TOOTFORWARDS BO: 17010 *0119-0339i-27-42 Office of the Prothonotary Cumberland County Curtis R. Long Prothonotary Sommer L. Ross, Esq. 30 South 17th Street Philadelphia, PA 19103 DATE: February 26, 2009 TO Attorney Ross: THIS IS TO NOTIFY YOU THAT CASE NUMBER 07-3514 BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC. VS. KEITH L. PLASTERER and JAMIE PLASTERER HAS BEEN LISTED FOR ARGUMENT ON March 18, 2009 Cumberland County Argument Court Rules 1028(c), 1034(a) and 1035.2(a) shall be strictly enforced. If the issue was listed for prior argument you must re-fine your brief as per Local Rule 1028(c)10. Curtis R. Long Prothonotary L KLEHR, HARRISON, HARVEY, BRANZBURG & ELLERS LLP By: Anthony P. Tabasso, Esquire I.D. Nos. 80851 260 S. Broad Street Philadelphia, PA 19102 Attorneys for Defendants (215) 568-6060 Keith L. Plasterer and Jamie Plasterer BLX COMMERCIAL CAPITAL, LLC f/k/a BLC COMMERCIAL CAPITAL CORP., 1633 Broadway, 19'h Floor New York, NY 10019 and BUSINESS LOAN CENTER, L.L.C. f/k/a BUSINESS LOAN CENTER, INC. 1633 Broadway, 19`x' Floor New York, NY 10019 Plaintiffs, V. KEITH L. PLASTERER and JAMIE PLASTERER : 36 Kelly Drive Carlisle, PA 17013 Defendants. ORDER AND NOW, this day of COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 07-3514 Civil Term CIVIL ACTION - LAW 2009, upon consideration of Defendants Keith L. Plasterer and Jamie Plasterer's Answer to Plaintiffs' Motion for Summary Judgment, the accompanying Memorandum of Law, and any responses thereto, it is hereby ORDERED that Plaintiffs' Motion is DENIED in its entirety. BY THE COURT: J. PHILI 836308-1 lk? KLEHR, HARRISON, HARVEY, BRANZBURG & ELLERS LLP By: Anthony P. Tabasso, Esquire I.D. Nos. 80851 260 S. Broad Street Philadelphia, PA 19102 Attorneys for Defendants (215) 568-6060 Keith L. Plasterer and Jamie Plasterer BLX COMMERCIAL CAPITAL, LLC f/k/a BLC COMMERCIAL CAPITAL CORP., 1633 Broadway, 19th Floor New York, NY 10019 and BUSINESS LOAN CENTER, L.L.C. f/k/a BUSINESS LOAN CENTER, INC. 1633 Broadway, 19th Floor New York, NY 10019 Plaintiffs, V. KEITH L. PLASTERER and JAMIE PLASTERER : 36 Kelly Drive Carlisle, PA 17013 Defendants. COURT OF COMMON PLEAS CUMBERLAND COUNTY No. 07-3514 Civil Term CIVIL ACTION - LAW DEFENDANTS' ANSWER TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT Defendants Keith L. Plasterer and Jamie Plasterer ("Plasterer"), by and through their undersigned counsel, hereby answers Plaintiffs' Motion for Summary Judgment as follows: FACTUAL BACKGROUND 1. The allegations contained in paragraph 1 make reference to written documents, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. PHILI 836308-1 2. The allegations contained in paragraph 2 make reference to written documents, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. 3. The allegations contained in paragraph 3 make reference to written documents, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. 4. The allegations contained in paragraph 4 make reference to written documents, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. 5. Denied. The allegations in paragraph 5 constitute conclusions of law to which no response is required and are, therefore, deemed denied. 6. Denied. The allegations contained in paragraph 6 make reference to written documents, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. 7. Denied. The allegations contained in paragraph 7 make reference to written documents, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. By way of further answer, but not in derogation of the foregoing, the allegations contained in paragraph 7 for further written documents, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. 8. Denied. The allegations contained in paragraph 8 make reference to written documents, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. 9. Denied. The allegations contained in paragraph 9 make reference to written documents, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. By way of further answer, but not in derogation of the foregoing, it is specifically denied that the sums cited by Plaintiffs are correct. 2 PHIL 1836308-1 P 10. Denied. The allegations in paragraph 10 constitute conclusions of law to which no response is required and are, therefore, deemed denied. PROCEDURAL BACKGROUND 11. Admitted. 12. Admitted. 13. Admitted. 14. Admitted. 15. Admitted. 16. Admitted. 17. Admitted. 18. Admitted. 19. Admitted. 20. Admitted. 21. Denied. The allegations in paragraph 21 constitute conclusions of law to which no response is required and are, therefore, deemed denied. 22. Admitted. 23. Denied. The allegations contained in paragraph 23 make reference to written documents, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. By way of further answer, but not in derogation of the foregoing, Defendants had a specific agreement with Plaintiffs' counsel whereby Defendants were to respond to all outstanding discovery on or before February 12, 2009. 24. Admitted. 3 PHIL 1836308-1 a 25. Admitted. By way of further answer, but not in derogation of the foregoing, Defendants had a specific agreement with Plaintiffs' counsel whereby Defendants were to respond to all outstanding discovery on or before February 12, 2009. THE MOTION 26. Denied. The allegations in paragraph 26 constitute conclusions of law to which no response is required and are, therefore, deemed denied. 27. Denied. The allegations in paragraph 27 constitute conclusions of law to which no response is required and are, therefore, deemed denied. 28. Denied. The allegations in paragraph 28 constitute conclusions of law to which no response is required and are, therefore, deemed denied. 29. Denied. The allegations in paragraph 29 constitute conclusions of law to which no response is required and are, therefore, deemed denied. 30. Denied. The allegations in paragraph 30 constitute conclusions of law to which no response is required and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, the allegations contained in paragraph 30 refer to written documents, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. 31. Denied. The allegations in paragraph 31 constitute conclusions of law to which no response is required and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, the allegations contained in paragraph 31 refer to written documents, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. 32. Denied. The allegations contained in paragraph 32 refer to written documents, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. 4 PHIL I 836308-1 33. Denied. The allegations in paragraph 33 constitute conclusions of law to which no response is required and are, therefore, deemed denied. 34. Denied. The allegations in paragraph 34 constitute conclusions of law to which no response is required and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, the allegations contained in paragraph 34 refer to written documents, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. 35. Denied. The allegations in paragraph 35 constitute conclusions of law to which no response is required and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, the allegations contained in paragraph 35 refer to written documents, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. 36. Denied. After reasonable investigation, Defendants are without sufficient information to form a belief as to the truth or falsity of the allegations contained in paragraph 36, and therefore deny same. 37. Denied. After reasonable investigation, Defendants are without sufficient information to form a belief as to the truth or falsity of the allegations contained in paragraph 37, and therefore deny same. 38. Denied. The allegations contained in paragraph 38 constitute conclusions of law to which no response is required and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, Defendants believe that, in the latest iteration of an ongoing corporate shell game, the loan documents at issue are currently held by an entity known as Ciena Capital, and not the Plaintiffs. Finally, the allegations contained in paragraph 38 refer 5 PHIL1 836308-1 to written documents, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. 39. Denied. The allegations contained in paragraph 39 constitute conclusions of law to which no response is required and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, Defendants believe that, in the latest iteration of an ongoing corporate shell game, the loan documents at issue are currently held by an entity known as Ciena Capital, and not the Plaintiffs. Finally, the allegations contained in paragraph 39 refer to written documents, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. 40. Denied. The allegations contained in paragraph 40 constitute conclusions of law to which no response is required and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, Defendant believes that, in the latest iteration of an ongoing corporate shell game, the loan documents at issue are currently held by an entity known as Ciena Capital, and not the Plaintiffs. Finally, the allegations contained in paragraph 40 refer to written documents, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. 41. Denied. The allegations contained in paragraph 41 constitute conclusions of law to which no response is required and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, Defendants believe that, in the latest iteration of an ongoing corporate shell game, the loan documents at issue are currently held by an entity known as Ciena Capital, and not the Plaintiffs. Finally, the allegations contained in paragraph 41 refer to written documents, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. 6 PHILI 836308-1 42. Denied. The allegations contained in paragraph 42 constitute conclusions of law to which no response is required and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, Defendants believe that, in the latest iteration of an ongoing corporate shell game, the loan documents at issue are currently held by an entity known as Ciena Capital, and not the Plaintiffs. Finally, the allegations contained in paragraph 42 refer to written documents, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. 43. Denied. The allegations contained in paragraph 43 constitute conclusions of law to which no response is required and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, Defendants believe that, in the latest iteration of an ongoing corporate shell game, the loan documents at issue are currently held by an entity known as Ciena Capital, and not the Plaintiffs. Finally, the allegations contained in paragraph 43 refer to written documents, the terms of which speak for themselves, and Plaintiffs' characterizations of which are denied. 44. Denied. The allegations contained in paragraph 44 constitute conclusions of law to which no response is required and are, therefore, deemed denied. By way of further answer, but not in derogation of the foregoing, Defendants designated BLC on its casualty policy at BLC's direction. Defendants were and are unaware of the true holder of this loan. 45. Denied. The allegations contained in paragraph 45 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. 46. Denied. The allegations contained in paragraph 46 constitute conclusions of law to which no response is required, and are, therefore, deemed denied. 47. Admitted. 7 PHIL1 836308-1 48. Admitted. 49. Admitted. 50. Admitted. WHEREFORE, Defendants Keith L. Plasterer and Jamie Plasterer respectfully request that this Court deny the Plaintiffs' Motion for Summary Judgment in its entirety. KLEHR, HARRISON, HARVEY, BRANZBURG & ELLERS LLP By: M n R. ranzburg, Esquire Anthony Y. Tabasso, Esquire Attorne for Defendants 8 PHIL1 836308-1 CERTIFICATE OF SERVICE I, Anthony P. Tabasso, Esquire, hereby certify that I caused a true and correct copy of the foregoing Defendants' Answer to Plaintiffs' Motion for Summary Judgment to be served upon the following counsel of record via first class mail, postage pre-paid: Sommer L. Ross, Esquire Duane Morris, LLP 30 South 17u' Street Philadelphia, PA 19103 Dated: 3 ?o O PHILI 836308-1 C) F Tf 3 F' wY 2009 MAlt 3 I A IC- I .D CU vi" F: w,?T1 i DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff, Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, NO. 07-3514 VS. CIVIL ACTION - LAW KEITH L. PLASTERER and JAMIE PLASTERER 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. PRAECIPE TO ENTER STIPULATED JUDGMENT TO THE PROTHONOTARY: Kindly enter in favor of Plaintiff, Business Loan Center, LLC, and against Defendants, Keith L. Plasterer and Jamie Plasterer, in the above-captioned matter, judgment in the amount of $100,910.26, together with interest from April 30, 2009 through August 6, 2009 in the amount of $1,220.30, post judgment interest at the statutory rate, costs of suit and attorneys' fees. DM3\1102107.1 The judgment is being entered pursuant to that certain Stipulation and Agreement to Consent to Judgment dated as of April 29, 2009 (the "Stipulation") by and among BLX Commercial Capital, LLC, Business Loan Center, LLC, Carlisle Sports Emporium, Inc., Keith L. Plasterer and Jamie Plasterer. A true and correct copy of the Stipulation is attached hereto as Exhibit "A." Dated: August /40 , 2009 DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. Sommer L. Ross 30 South 17th Street Philadelphia, PA 19103 215.979.1000 Attorneys for Plaintiff BUSINESS LOAN CENTER, LLC KLEHR,H SON, HARVEY, BRANZBURG & ELLE 1LI1P By: Anthony . Tabasso 260 Soul Broad Street Philadelphia, PA 19102 215.569.4397 Attorney for Defendants KEITH L. PLASTERER and JAMIE PLASTERER -2- DM3\1102107.1 EXHIBIT "A" Stipulation and Agreement to Consent to Judgment DM3\1 102107.1 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BLX COMMERCIAL CAPITAL, LLC, f/k/a BLC NO. 07-2319 COMMERCIAL CAPITAL, LLC, successor-in-interest by merger to, BLC COMMERCIAL CAPITAL CORP., CIVIL ACTION - LAW 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, V. CARLISLE SPORTS EMPORIUM, INC. 29 South Middlesex Road Carlisle, Pennsylvania 17013, Defendant. BLX COMMERCIAL CAPITAL, LLC, f/k/a BLC COMMERCIAL CAPITAL LLC, successor-in-interest by merger to BLC COMMERCIAL CAPITAL CORP., 1633 Broadway, 19th Floor New York, New York 10019, NO.07-2320 Plaintiff, V. CIVIL ACTION - LAW KEITH L. PLASTERER and JAMIE PLASTERER, 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, V. NO. 07-3514 KEITH L. PLASTERER and JAMIE PLASTERER, 36 Kelly Drive CIVIL ACTION - LAW Carlisle, Pennsylvania 17013, Defendants. DM3V91G39,2 STIPULATION AND AGREEMENT TO CONSENT TO JUDGMENT BLX COMMERCIAL CAPITAL, LLC BUSINESS LOAN CENTER, LLC ("BLC" ), CARLISLE SPORTS EMPORIUM, INC. ("Carlisle"), KEITH L. PLASTERER ("Keith Plasterer") and JAMIE PLASTERER ("Jamie Plasterer" and, together with BLX, BLC, Carlisle and Keith Plasterer, the "Parties") herby enter into this Stipulation and Agreement To Consent To Judgment (the "Stipulation and Consent Agreement"), the terms of which are set forth herein, as of the 29`f' day of April, 2009. RECITALS WHEREAS, BLX is a Delaware limited liability company with an address of 515 Broadway, 12th Floor, New York, New York 10036; WHEREAS, BLC is a Delaware limited liability company with an address of 515 Broadway, 12th Floor, New York, New York 10036; WHEREAS, Carlisle is a Pennsylvania corporation with an address of 29 South Middlesex Road, Carlisle, Pennsylvania 17013; WHEREAS, Keith Plasterer and Jamie Plasterer, husband and wife, are adult individuals and residents of the Commonwealth of Pennsylvania with an address of 36 Kelly Drive, Carlisle, Pennsylvania 17013; WHEREAS, On or about December 28, 1999, BLX, by and through its predecessor in interest, BLC Commercial Capital Corp., loaned Carlisle the principal sum of $4,500,000.00 (the "S4.5 Million Loan"); WHEREAS, the $4.5 Million Loan is evidenced by, inter alia, two promissory notes dated December 28, 1999, one in the original principal amount of $3,600,000.00 (the '116MM USDA Note") and the other in the original principal amount of $900,000 (the "$900,004 Note" 2 DM3\991639.2 .. and, together with the $3.6MM USDA Note, the "Notes") duly executed and delivered to BLX's predecessor-in-interest by Carlisle; WHEREAS, on or about December 28, 1999, as security for the Notes, Carlisle executed and delivered to BLC Commercial Capital Corp., BLX's predecessor-in-interest, a first priority mortgage (the "First Mortgage") in the amount of $4,500,000.00 encumbering the real property located at 29 South Middlesex Road, Carlisle, Pennsylvania (the "Commercial Mortgaged Premises") and a third priority mortgage (the "Residential Mortgage") on 36 Kelly Drive, Carlisle, Cumberland County, PA (the "Residential Mortgaged Premises"); WHEREAS, the First Mortgage was recorded on December 30, 1999, with the Recorder of Deeds of Cumberland County in Book 1589 page 942; WHEREAS, the $4.5 Million Loan is also secured by, inter alia, all of Carlisle's accounts, accounts receivable, chattel paper, notes receivable, inventory, equipment and machinery, furniture and fixtures, and all other personal property, as evidenced by that certain security agreement dated December 28, 1999, executed by Carlisle; WHEREAS, as further security for the Notes and the obligations of Carlisle due and owing to BLX's predecessor-in-interest thereunder, on December 28, 1999, Keith Plasterer and Jamie Plasterer executed a payment guaranty (the "$4.5 Million Guaranty" and, together with the Notes, the First Mortgage, the Residential Mortgage and any and all other agreements, amendments, financing statements, schedules, reports, notices, and exhibits now or hereafter executed or delivered in connection with any of the foregoing, as may be in effect from time to time, the "S4.5-Million Loan Documents") in favor of BLX's predecessor in interest; 3 DM3\991639.2 WHEREAS, on or about May 8, 2003, BLC, an affiliate of BLX, by and through Business Loan Center Inc.; its predecessor-in-interest, loaned Carlisle-.the principal sum of $175,000.00 (the 1$175,000 Loan"). WHEREAS, the $175,000 Loan is evidenced by, inter alia, a promissory note in the amount of $175,000.00 dated December 20, 2000, executed and delivered to BLC's predecessor- in-interest, by Carlisle (the "S175,000 Note"); WHEREAS, as security for the $175,000 Loan and the obligations of Carlisle due and owing to BLC under thereunder, on December 20, 2000, Carlisle granted BLC's predecessor-in- interest a third priority mortgage on the Commercial Mortgaged Premises (the "Third Mortgage"); WHEREAS, the $175,000 Loan is also secured by, inter alia, all of Carlisle's accounts, accounts receivable, chattel paper, notes receivable, inventory, equipment and machinery, furniture and fixtures, and all other personal property, as evidenced by that certain security agreement executed by the Carlisle on December 20, 2000; WHREAS, as further security for the $175,000 Note and the obligations of Carlisle due and owing to BLC's predecessor-in-interest under the $175,000 Note, on December 28, 1999, Keith Plasterer and Jamie Plasterer executed a payment guaranty (the "$175,000 Guaranty" and, together with the $175,000 Note, the Third Mortgage and any and all other agreements, amendments, financing statements, schedules, reports, notices, and exhibits now or hereafter executed or delivered in connection with any of the foregoing, as may be in effect from time to time, the "$175,000 Loan Documents") in favor of BLC's predecessor-in-interest; WHEREAS, Carlisle is in default of its obligations due and owing to (i) BLX under the $4.5 Million Loan Documents and (ii) BLC under the $175,000 Loan Documents; 4 DMA991639.2 WHEREAS, despite repeated requests from BLX and BLC to cure the defaults, Carlisle has failed to do so; WHEREAS, BLX and BLC have made demands on Keith Plasterer and Jamie Plasterer, pursuant to the $4.5 Million Guaranty and the $175,00 Guaranty, to cure the outstanding payment defaults under the Notes and the $175,000 Note; WHEREAS, despite repeated requests from BLX and BLC to Keith Plasterer and Jamie Plasterer to cure the payment defaults, Keith Plasterer and Jamie Plasterer have failed to do so; WHEREAS, on April 27, 2007, BLX initiated the above-captioned action against Carlisle in order to foreclose on the Commercial Mortgaged Premises and obtain a money judgment against Carlisle (the "Mortgage Foreclosure Action"). The Mortgage Foreclosure Action is identified as case number 07-2319 by the Court of Common Pleas of Cumberland County (the "Court"); WHEREAS, on April 27, 2007, BLX initiated the above-captioned action against Keith Plasterer and Jamie Plasterer in order to enforce the $4.5 Million Guaranty and obtain a money judgment against Keith Plasterer and Jamie Plasterer (the "$4.5 Million Guaranty Action"). The $4.5 Million Guaranty Action is identified as case number 07-2320 by the Court; WHEREAS, on June 15, 2007, BLC initiated the above-captioned action against Keith Plasterer and Jamie Plasterer in order to enforce the $175,000 Guaranty and obtain a money judgment against Keith Plasterer and Jamie Plasterer (the "$175x000 Guaranty Action" and, together with the $4.5 Million Guaranty Action, the "Guarantor Actions"). The $175,000 Guaranty Action is identified as case number 07-3514 by the Court; 5 DM31991639.2 WHEREAS, the Parties have been litigating the Mortgage Foreclosure Action and the Guarantor Actions for almost two (2) years, all the while discussing a possible resolution of the actions. WHEREAS, on February 18, 2009, BLX filed a Motion for Summary Judgment in the Mortgage Foreclosure Action and in the $4.5 Million Guaranty Action and BLC filed a Motion for Summary Judgment in the $175,000 Guaranty Action (collectively, the "Summary Judgment Motions"); WHEREAS, on March 31, 2009, Carlisle, Keith Plasterer and Jamie Plasterer filed responses to the Summary Judgment Motions in each of the respective actions; WHEREAS, the Court scheduled oral argument on the Summary Judgment Motions on April 29, 2009 at 9:30 a.m. (the "Hearin Date"); and WHEREAS, prior to the Hearing Date, the Parties reached an amicable agreement regarding the Mortgage Foreclosure Action and Guarantor Actions, the terms of which are set forth in this Stipulation and Consent Order. NOW, THEREFORE, incorporating the Recitals set forth above, and for good and valuable consideration, the receipt and legal sufficient of which are hereby acknowledged, and intending to be legally bound, the Parties agree as follows: STIPULATION AND CONSENT 1. INCORPORATION. The above referenced Recitals are incorporated herein by reference as if set forth herein at length. 2. ACKNOWLEDGEMENTS BY CARLISLE KEITH PLASTERER AND JAMIE PLASTERER. Carlisle, Keith Plasterer and Jamie Plasterer each acknowledge the following: 6 DMM991639.2 (a) Acknowledgment of BLX's Standing. BLX, plaintiff in the Mortgage Foreclosure Action and the $4.5 Million Guaranty Action,. has standing to enforce the $4.5 Million Loan Documents including, but not limited to, the $3.6 MM USDA Note, the $900,000 Note, the First Mortgage, the Residential Mortgage; and the $4.5 Million Guaranty. (b) Acknowledgment of BLC's Standing. BLC, plaintiff in the $175,000 Guaranty Action, has standing to enforce the $175,000 Loan Documents, including, but not limited to, the $175,000 Note, the Third Mortgage, and the $175,000 Guaranty. (c) Acknowledgment of Defaults and Amounts Due to BLX. As of April 29, 2009, Carlisle, Keith Plasterer and Jamie Plasterer each acknowledges that: (i) Carlisle is in default of its obligations to BLX due and owing under the $4.5 Million Loan Documents; (ii) Keith Plasterer is in default of his obligations to BLX due and owing under the $4.5 Million Guaranty; (iii) Jamie Plasterer is in default of her obligations to BLX due and owing under the $4.5 Million Guaranty; and (iv) As of April 29, 2009, $5,463,563.00 is due and owing to BLX under the Notes, which amount represents $4,242,837.22 in principal, $968,145.67 in accrued and unpaid interest, $125,244.30 in expenses and $127,355.81 in late fees. This amount does not include interest which continues to accrue on a per diem basis, attorneys' fees or costs. Each of Carlisle, Keith Plasterer and Jamie Plasterer is individually and jointly and severally liable to BLX for all of the amounts set forth in subparagraph (c)(i) through (c)(iv). (d) Acknowledgment of Defaults and Amounts Due to BLC. As of April 29, 2009, Carlisle, Keith Plasterer and Jamie Plasterer each acknowledges that: (i) Carlisle is in default of its obligations to BLC due and owing under the $175,000 Loan Documents; (ii) Keith Plasterer is in default of his obligations to BLC due and owing under the $175,000 Guaranty; (iii) Jamie Plasterer is in default of her obligations to BLX due and owing under the $175,000 Guaranty; and (iv) As of April 29, 2009, $100,910.26 is due and owing to BLC under the $175,000 Note, which amount represents $74,984.48 in principal, $9,823.99 in accrued and unpaid interest, $11,261.33 in expenses and $4,840.46 in late fees. This amount does not include interest which continues to accrue on a per diem basis, attorneys' fees or costs. Each of Carlisle, Keith Plasterer and Jamie Plasterer is individually and jointly and severally liable to BLC for all of the amounts set forth in subparagraph (d)(i) through (d)(iv). 7 DM3\991639.2 (e) Acknowledgment of $4.5 Million Loan Documents: Waiver of Claims. The $4.5 Million Loan Documents are valid and enforceable against, and all of the terms and conditions of the $4.5 Million Loan Documents are binding on, Carlisle, Keith Plasterer and Jamie Plasterer, individually, jointly and severally; (ii) the liens and/or security interests granted to BLX pursuant to the $4.5 Million Loan Documents are valid, legal, and binding liens and/or security interests; and (iii) Carlisle, Keith Plasterer and Jamie Plasterer hereby waive any and all defenses, set-offs and counterclaims which they may have or claim to have against BLX with respect to any of the obligations descried herein as of the date hereof, including those raised in the Mortgage Foreclosure Action and in the $4.5 Million Guaranty Action. W Acknowledgment of $175,000 Loan Documents, Waiver of Claims. The $175,000 Loan Documents are valid and enforceable against, and all of the terms and conditions of the $175,000 Loan Documents are binding on, Carlisle, Keith Plasterer and Jamie Plasterer, individually, jointly and severally; (ii) the liens and/or security interests granted to BLC pursuant to the $175,000 Loan Documents are valid, legal, and binding liens and/or security interests; and (iii) Carlisle, Keith Plasterer and Jamie Plasterer hereby waive any and all defenses, set-offs and counterclaims which they may have or claim to have against BLC with respect to any of the obligations descried herein as of the date hereof, including those raised in the $175,000 Guaranty Action. 3. CONSENT TO JUDGMENTS AND FORECLOSURE OF THE COMMERCIAL MORTGAGED PREMISES BY CARLISLE. Carlisle, acting by and through Keith Plasterer, in his capacity as President of Carlisle, herby consents to the following judgments being entered against it in the following actions: (a) Judgment in mortgage foreclosure against Carlisle in favor of BLX in the Mortgage Foreclosure Action so that BLX may exercise its rights under the First Mortgage and foreclose on the Mortgaged Commercial Premises; (b) Judgment in the amount of $5,463,563.00 against Carlisle in favor of BLX in the Mortgage Foreclosure Action, with post judgment interest to be paid at the statutory rate; and (c) Judgment in the amount of $100,910.26 against Carlisle in favor of BLC in the $175,000 Guaranty Action, with post judgment interest to be paid at the statutory rate. Carlisle's consent shall be effective as of the date this Stipulation and Consent Agreement is executed; provided however, neither BLX nor BLC shall record any such judgments before May 30, 2009; AM3%991679.2 4. CONSENT TO JUDGMENT AGAINST KEITH PLASTERER. Keith Plasterer, an adult individual, hereby consents to the following judgments being entered against him in the following actions: (a) Judgment in the amount of $5,463,563.00 against Keith Plasterer in favor of BLX in the $4.5 Million Guaranty Action, with post judgment interest to be paid at the statutory rate; and (b) Judgment in the amount of $100,910.26 against Keith Plasterer in favor of BLC in the $175,000 Guaranty Action, with post judgment interest to be paid at the statutory rate. Keith Plasterer's consent shall be effective as of the date this Stipulation and Consent Agreement is executed; provided however, neither BLX nor BLC shall record any such judgments before May 30, 2009; 5. CONSENT TO JUDGMENT AGAINST JAMIE PLASTERER. Jamie Plasterer, an adult individual, herby consents to the following judgments being entered against her in the following actions: (a) Judgment in the amount of $5,463,563.00 against Jamie Plasterer in favor of BLX in the $4.5 Million Guaranty Action, with post judgment interest to be paid at the statutory rate; and (b) Judgment in the amount of $100,910.26 against Jamie Plasterer in favor of BLC in the $175,000 Guaranty Action, with post-judgment interest to be paid at the statutory rate. Jamie Plasterer's consent shall be effective as of the date this Stipulation and Consent Agreement is executed; rovided however, neither BLX nor BLC shall record any such judgments before May 30, 2009; 6. UTILITY PAYMENTS, PROPERTY INSURANCE: MAINTENANCE. Carlisle, Keith Plasterer and Jamie Plasterer agree that so long as the Mortgaged Commercial Premises and the Residential Premises (the "Properties") are owned by Carlisle and/or the Plasterers, they 9 DM31991639.2 will maintain (or case to be maintained) the Properties. Such maintenance includes, without limitation, paying any and all utility bills, maintaining Iiisurance for the Properties and otherwise maintaining the Properties in the ordinary course of business. 7. RELEASE AND INDEMNITY. Carlisle, Keith Plasterer and Jamie Plasterer, each on behalf of themselves, and any person claiming by, through or under them (collectively referred to in this provision as the "Releasors"), hereby unconditionally remise, release and forever discharge BLX and BLC, their respective past and present officers, directors, shareholders, agents, representatives affiliates, trustees, administrators, advisors, attorneys, predecessors, successors and assigns, and the heirs, executors, administrators, successors and assigns of any such person or entity (collectively referred to in this provision as the "Releasees"), of and from any and all manner of actions, causes of action, suits, debts, dues, accounts, bonds, covenants, contracts, agreements, promises, warranties, guaranties, representations, judgments, claims, counterclaims, crossclaims, defenses and/or demands whatsoever, including claims for contribution and/or indemnity, whether now known or unknown, past or present, asserted or unasserted, contingent or liquidated, at law or in equity, (collectively referred to in this provision as "Claims"), which any of the Releasors ever had, have and/or hereafter can, shall or may claim to have against any of the Releasees, for or by reason of any cause, matter or thing whatsoever relating to or arising from the lending relationship of BLX and Carlisle or BLC and Carlisle. Carlisle, Keith Plasterer and Jamie Plasterer each warrants and represents that he, she or it has not assigned, pledged, hypothecated and/or otherwise divested himself, herself or itself or encumbered all or any part of the Claims being released hereby and that he, she and it hereby agree to indemnify, defend and hold 10 DM3199 t 639.2 harmless any and all of the Releasees - against whom any Claim so assigned, pledged, hypothecated, divested and/or encumbered is asserted. 8. REAFFIRMATION OF $4.5 MILLION LOAN DOCUMENTS. Carlisle, Keith Plasterer and Jamie Plasterer each hereby reaffirms each and every covenant, condition, obligation and provision set forth in the $4.5 Million Loan Documents and acknowledges and agrees that: (i) the $4.5 Million Loan Documents are valid legal agreements, enforceable against and binding upon each orf them in accordance with their respective terms; (ii) the obligations due under the $4.5 Million Loan Documents are valid legal obligations of Carlisle, Keith Plasterer and/or Jamie Plasterer without defenses, offsets or counterclaims; and (iii) no defenses, offsets or counterclaims exist with respect to the enforcement by BLX of its rights under the $4.5 Million Loan Documents; provided however, to the extent that any such defenses, offsets or counterclaims exist, Carlisle, Keith Plasterer and Jamie Plasterer agree to waive and hereby waive any and all such defenses, set-offs and counterclaims which they may have or claim to have relating to or arising from the transactions reflected in the $4.5 Million Loan Documents or to the enforcement by BLX of its rights and remedies under the $4.5 Million Loan Documents and applicable law. 9. REAFFIRMATION OF $175,000 LOAN DOCUMENTS. Carlisle, Keith Plasterer and Jamie Plasterer each hereby reaffirms each and every covenant, condition, obligation and provision set forth in the $175,000 Loan Documents and acknowledges and agrees that: (i) the $175,000 Loan Documents are valid legal agreements, enforceable against and binding upon in accordance with their respective terms; (ii) the obligations due under the $175,000 Loan Documents are valid legal obligations of Carlisle, Keith Plasterer and/or Jame Plasterer without defenses, offsets or counterclaims; and (iii) no defenses, offsets or 11 DMA 91639,2 counterclaims exist with respect to the enforcement by BLC of its rights under the $175,000 Loan Documents; provided however, to the extent that any such 'defenses, offsets or counterclaims exist, Carlisle, Keith Plasterer and Jamie Plasterer agree to waive and hereby waive any and all such defenses, set-offs and counterclaims which they may have or claim to have relating to or arising from the transactions reflected in the $175,000 Loan Documents or to the enforcement by BLC of its rights and remedies under the $175,000 Loan Documents and applicable law. 10. FMADINGS. Section and other headings in this Stipulation and Consent Agreement are included herein for convenience of reference only and shall not constitute a part of this Stipulation and Consent Agreement or for any other purpose. 11. GOVERNING LAW. This Stipulation and Consent Agreement shall be construed in accordance with and governed by the internal laws of the Commonwealth of Pennsylvania without reference to conflict of laws principles. 12. COUNTERPARTS. This Stipulation and Consent Agreement may be executed in any number of counterparts, and by different parties hereto in separate counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute one and the same instrument. Delivery of a reproduction of an executed counterpart of a signature page to this Stipulation and Consent Agreement by facsimile, electronic mail or other form of electronic transmission shall be effective as delivery of an original executed counterpart of this Stipulation and Consent Agreement. 13. AMENDMENT AND WAIVER. No amendment to this Stipulation and Consent Agreement, and no waiver, discharge or termination of any one or more of the 12 DMA99IG391 provisions hereof, shall be effective unless set forth in writing and signed by all of the parties hereto. 14. SUCCESSORS AND ASSIGNS. This Stipulation and Consent Agreement (i) shall be binding upon the Parties and upon their respective nominees, successors, heirs and assigns, and (ii) shall inure to the benefit of the Parties and their respective nominees, successors and assigns, provided that neither Carlisle, Keith Plasterer, nor Jamie Plaseeer shall assign its, his or her rights hereunder or any interest herein without obtaining the prior written consent of BLX and BLC, and any such assignment or attempted assignment which is given without the prior written consent of BLX and BLC shall be void and of no effect with respect to BLX and BLC. All representations and warranties contained herein or made in writing by Carlisle, Keith Plasterer and Jamie Plasterer in connection herewith, shall survive the execution and delivery of this Stipulation and Consent Agreement. 15. SEVERABILITY OF PROVISIONS. Any provision of this Stipulation and Consent Agreement that is held to be inoperative, unenforceable, void, or invalid in any jurisdiction shall, as to that jurisdiction, be ineffective, unenforceable, void, or invalid without affecting the remaining provisions in that jurisdiction or the operation, enforceability, or validity of that provision in any other jurisdiction, and to this end the provisions of this Stipulation and Consent Agreement are declared to be severable. 16. CONSTRUCTION. This Stipulation and Consent Agreement shall be deemed to have been jointly drafted by the respective Parties and their counsel, and the rule of construction of contracts that ambiguities are to be construed against the drafting party shall not be applied against any person. 13 MU1991639w 17, VOLUNTARY EXECUTION. Each of the Parties represents and warrants that he, she or it has carefully read this Stipulation and Consent Agreement in"its entirety; that he, she or it has had an adequate opportunity to consider it and to consult with any advisor of his, her or its choice about it; that he, she or it understands all of its terms; that he, she or it has consulted with independent counsel of his, her or its choice, who answered to his, her or its satisfaction all questions that he, she or it had regarding this Stipulation and Consent Agreement; that his, her or its undersigned representative is duly authorized to enter into this Stipulation and Consent Agreement on his, her and its behalf; that he, she or it voluntarily assents to all the terms and conditions contained herein; that by signing this Stipulation and Consent Agreement, upon Court approval, he, she or it is bound by the terms and conditions contained herein; and that he, she or it is signing this Stipulation and Consent Agreement voluntarily and of his, her or its own free will. 18. COURT APPROVAL AND JURISDICTION. Upon Court approval, this Stipulation and Consent Agreement shall constitute an Order of the Court. Moreover, the Court shall retain jurisdiction to construe, interpret and enforce the terms of this Stipulation and Consent Agreement. REMAINDER OF PAGE INTENTIONALLY LEFT BLANK 14 DMM. 1639.2 Jun 03 09 04:14p Sports Emporium 7972W858 p.2 IN VV"TNESS WHEREOF, the parties hereto have caused this Stipulation :md Consent Agreement to be executed and delivered as of the day and year first above written. CARLISLE SPORTS EMPOJ,JUK INC. By. JCeith L. Plasterer, President KEITH L. PLASTERER JAMM PLASTERER J..7? COMMCRCIAL CAPITAL, L L C By: Jonathan Chang, Vice President BUSINESS LOAN CENTER, LLC By. Jonathan Chang, Vice Presirient NOW, THEREFORE, the parties jointly agree to the foregoing P=uvlsions and Order respecdblly 6f the ze Court quest that this Honorable Court enter the Stipulation and Consent Agreement as an APPROVED AND SO ORDE , D this da of y , 2009. BY THE COURT: .J. MOV91LI9.7 is IN WITNESS WHEREOF, the parties hereto have caused this Stipulation and Consent Agreement to be executed and delivered as of the day and year first above written. CARLISLE SPORTS EMPORIUM, INC. By: Keith L. Plasterer, President KEITH L. PLASTERER JAMIE PLASTERER BLX COMMERCIAL CAPITAL, LLC By: dl?7 _ Jo than Chang, Vi esident BUSINESS LOAN CENTER, LLC By: (it- Jo?khan Chang, Vice r dent NOW, THEREFORE, the parties jointly agree to the foregoing provisions and respectfully request that this Honorable Court enter the Stipulation and Consent Agreement as an Order of the Court. APPROVED AND SO ORDERED this day of 12009. BY THE COURT: J. DM31991G39.2 15 DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff, Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, VS. KEITH L. PLASTERER and JAMIE PLASTERER 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. NO. 07-3514 CIVIL ACTION - LAW CERTIFICATE OF SERVICE I, Rudolph J. Di Massa, Jr., Esquire, do hereby certify that, on August 6, 2009, I caused a true and correct copy of the foregoing Praecipe to Enter Stipulated Judgment to be served upon the following via hand delivery: Anthony P Tabasso, Esquire Klehr, Harrison, Harvey, Branzburg & Ellers, LLP 260 South Broad Street Philadelphia, PA 19102 Counsel for Defendants J Rudolph J. Di Massa, Jr. DM311 102107.1 l?U?iC( ?yl DUANE MORRIS LLP By: Rudolph J. Di Massa, Jr. PA Attorney Identification No. 35492 By: 'Sommer L. Ross PA Attorney Identification No. 94851 30 South 17th Street Philadelphia, PA 19103 215.979.1506/1546 215.979.1020 (facsimile) Attorneys for Plaintiff, Business Loan Center, LLC IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS LOAN CENTER, LLC, f/k/a BUSINESS LOAN CENTER, INC., 1633 Broadway, 19th Floor New York, New York 10019, Plaintiff, NO. 07-3514 vs. KEITH L. PLASTERER and JAMIE PLASTERER 36 Kelly Drive Carlisle, Pennsylvania 17013, Defendants. CIVIL ACTION - LAW NOTICE OF JUDGMENT A Judgment has been entered against you in the above proceeding. Copies of all documents that have been filed with the Prothonotary in support of the Judgment are attached hereto. If you have any questions concerning this Notice, please call Rudolph J. Di Massa, Esquire at (215) 979-1506. ?'llI/a9 P honotary DM3\1102107.1 FIRST AMERICAN TITLE INSURANCE CO. TWO PENN CENTER ERIA, PPA ' S I2 E 1910 1-0?k IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA BUSINESS " LOAN CENTER, LLC F/K/A BUSINESS LOAN CENTER, INC. Plaintiff, V. KEITH L. AND JAMIE PLASTERER Defendant. NO. 07-3514 CIVIL TERM CIVIL ACTION - LAW PRAECIPE TO SATISFY JUDGMENT TO THE PROTHONOTARY: Kindly mark the judgment in the above captioned matter satisfied, discontinued and ended. Dated: March A, 2010 BUSINESS LOAN CENTER, LLC F/K/A BUSINESS LOAN CENTER, INC. By: FUDcL,pk J. --OjMASSA-) Tv- 3o S c ? -v--• 1-7-1- S'? ?-?e Plaintiff ?h i L/}} 4' ! `ai 0 3 PHIL 1922848-1