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HomeMy WebLinkAbout06-2431 WIX, WENGER & WEIDNER Steven M. Williams, 1.0. # 62051 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff REGENCY REALTY GROUP, INC., Va SILVER SPRING SQUARE II, LP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. Or.. - JLI"2J l~luL T'VVJ METRO CREMO & SONS, INC" Va CREMO'S VARIETY OUTLET, Defendant : CIVIL ACTION - EQUITY NOTICE You have been sued in court. If you wish to defend against the claims set forth in he 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 LAWTER, 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 32 South Bedford Street Carlisle, Pennsylvania (717) 249-3166 REGENCY REALTY GROUP, INC., tla SILVER SPRING SQUARE II, LP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. METRO CREMO & SONS, INC., Va CREMO'S VARIETY OUTLET, Defendant CIVIL ACTION - EQUITY COMPLAINT AND NOW, comes Plaintiff, Regency Realty Group, Inc., Va Silver Spring Square II, LP ("SSS"), by and through its attorneys, Wix, Wenger & Weidner, and files this Complaint, alleging the following in support: 1. SSS is a Delaware limited partnership, qualified and authorized to do business in Pennsylvania, whose business address is 150 Monument Road, Suite 406, Bala Cynwyd, Pennsylvania 19004. SSS's general partner is Regency Realty Group, Inc., 2. Defendant is Metro Cremo & Sons, Inc., Va Cremo's Variety Outlet, a Pennsylvania corporation that maintains its primary place of business at 6430 Carlisle Pike, Mechanicsburg, Pennsylvania 17055 (herein, the "Property"). 3. Jurisdiction is proper in this Court because the property at issue in this case is located in Cumberland County. 4. Through January 17, 2006, Defendant occupied the Property pursuant to an oral lease (the "Lease") it had with Donald L. Carter and Marion Carter (the "Carters"), who were the owners of the Property. 5. The term of the Lease was month-to-month, and it was terminable upon one month's notice. 6. The Lease contained no renewal or extension options. 7. On January 17, 2006, SSS purchased the Property from the Carters. A true and correct copy of the Deed into SSS is attached hereto as Exhibit A and is incorporated herein by reference as if fully set forth. 8. In connection with SSS's purchase of the Property, SSS took assignment of the Lease pursuant to an Assignment and Assumption of Leases between SSS and the Carters, which was executed on January 17, 2006 (the "Assignment"). A true and correct copy of the Assignment is attached hereto as Exhibit B and is incorporated herein by reference as if fully set forth. 9. On or about December 29,2005, in connection with the pending sale of the Property to SSS, Eric Cremo, President of Defendant, executed a Tenant Estoppel Certificate (the "Certificate"). A true and correct copy of the Certificate is attached hereto as Exhibit C and is incorporated herein by reference as if fully set forth. 10. The Certificate set forth the terms of the Lease, and provided that SSS may rely on its provisions in connection with its purchase of the Property. 11. On January 19, 2006, SSS sent to Defendant a notice of termination (the ''Termination Notice"), which was received by Defendant on January 23,2006. True and correct copies of the Termination Notice and proof of receipt by Defendant are attached hereto as Exhibit D and are incorporated herein by reference as if fully set forth. 2 12. In the Termination Notice, SSS notified Defendant that the Lease was terminated and instructed Defendant to vacate the Property by March 1, 2006. 13. As an accommodation to Defendant, SSS subsequently agreed to allow Defendant to remain on the Property through April 16, 2006. 14. On or about April 11 , 2006, Defendant informed SSS that it did not intend to vacate the Property until Defendant's new building was completed, which was then expected to be in or about September, 2006. 15. On April 12, 2006, SSS served a notice to quit on Defendant, which directed Defendant to vacate the Property no later than April 30, 2006. True and correct copies of the notice to quit and proof of its service are attached hereto as Exhibit E and are incorporated herein by reference as if fully set forth. 16. Defendant has failed and refused to vacate the Property notwithstanding the proper termination of the Lease and proper service of the notice to quit. 17. SSS is entitled to immediate and exclusive possession of the Property. 18. Because the Lease has been properly terminated, Defendant has no right or entitlement to remain in possession of the Property, and its failure to vacate is in direct conflict with SSS's right to immediate and exclusive possession thereof. 19. SSS is developing the Property and adjacent properties into a shopping center, and Defendant's failure to vacate the Property is impeding SSS's ability to continue in its construction plan. 3 WHEREFORE, SSS respectfully requests that this Honorable Court enter judgment in its favor and against Defendant for possession of the Property and grant such other relief as this Court deems just and appropriate. , Date: t.j- /-1 () L itted, By: Steven M. Williams, 1.0. # 62051 / 508 North Second Street , P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff --...,^ 4 EXHIBIT A Deed ". ) ....'. il\~' . RECORD & RETURN TO Stewart Title Guaranty Company 900 West Valley Road, Ste 400 Wayne, PA 19087 OLf. Q<?D::J<"'i ...-.' ~ ~ . , l>'{.:'i. ~) , .~ I -^ j, :1 -' ...... .... ;......' .-., . ...' . DEED '" ~~~'~j~\~;[..~, :~i~:i .' . ':;,,: L:',"; l..' (GUS J'iN 25 Rrl 9 03 This Indenture, Made the 17th day of January, 2006, Between DONALD L. CARTER and MARIAN E. CARTER. husband and wife. individual residents of the Commonwealth ofPeonsylvania (hereinafter collectively called the Grantor), of the first part, and Sll..VER SPRING SQUARE n, L.P., a DelBware limited partnership (hereinafter called the GIantee), of the second part. Witnesseth that the said GIantor, for and in consideration of the swn of One and Do/lOa ($1.00) Dollars lawful money of the United States of America, unto it well and truly paid by the said Grantee, at or before the sealing and delivery hereof, the receipt whereof is hereby acknowledged, has granted, bargained and sold, released and confumed, and by these presents does grant, bargain and sell, release and confinn unto the said GIantee, its successors and assigns, All that certain property described in Schedule A, attached hereto Together with all and singular the buildings and improvements, ways, streets, alleys, driveways, passages, waters, water-courses, rights, liberties, privileges, hereditaments and appurteIlllIlces, whatsoever unto the hereby granted premises belonging, or in any wise appertaining, and the reversions and remainders. rents, issues, and profits thereof, and all the estate, right, title, interest, pIOperty, claim and demand whatsoever of the said GIantor, as well at law as in equity, of, in, and to the same and every part thereof. To have and to bold the said lot or piece of ground above described, with the buildings and improvements thereon erected, hereditaments and premises hereby granted, or mentioned and intended so to be, with the appurtenllnces, unto the said GIantee. its successors and assigns, to and for the ouly proper use and behoof of the said GIantee, its successors and assigns forever, under and subject as Bforcsaid, BOOK 272 p,m4438 DMEAST 19418223 \12 . And the said Grantor, for itself and its successors does covenant, promise and agree, to and with the said Grantee, its successors and assigns, by these presents, that it, the said Grantor, and its successors, all and singular the heredilliments and premises hereby granted or mentioned and intended so to be, with the appurtenances, unto the said Grantee, its successors and assigns, against it, the said Grantor, and its successors and agliinst all and every person and persons whomsoever lawfully claiming or to claim the same or any part thereof, by, from or under him, her, it, them or any of them, shall and will Warn.Dt and forever Defend, under and subj eet as aforesaid. [Signatures on following page] [Remainder of page intentionally blank] CUlberland County Record.r of D.,ds Instrurolnt Filin~ I CORRECTED f Receipt~ 591681 lDstrl 2006-002603 1/25/20116 09:D9:35 Remksl SmART TITLE SILYI;R SPRING Sl! DEED DEED - WRIT DEED - RTT STATE CUlIlJEIUHD VAlLEY SilVER SPRllfl TIIP DEED - A/H .J.C.S. 1 A.T.I. en IHPRtl\IEMENT FRD REC. IMPRVlIT FUND Q1Ed: 6471 Clieckl 6472 lotal Received....... CMEASTt9418223 v2 2 aOOK 272 rACE4439 1>,50 .50 40000.00 20')00.00 2O!YJO.OO l1.50 lO.OO 2.00 3,00 180,0'13.00 $,50 1SiJ,M~.50 In Witness WhereGf. the said Grantor has duly executed this Deed on the date first above written. DONALD L. CARTER (' '~'~ .~ . . ,.---gy: ~ "''''r- MARIAN E. CARTER BY~il~/~~V The address of the above-named Grantee is: ISO Monument Road, Suite 406 Bale Cynwyd, P A ] 9004 ,~ OMEAST*9418223 v2 3 BOOK 272 PAcr 4440 COMMONWEALTH OF PENNSYLVANIA CC;>UNTYOF el.uoo,.-,bO/I~ : SS ON THIS, the 11h day of January, 2006, before me, the undersigned officer, personally appeared Donald L. Carter known to me to be the person whose name is subscribed to the within Special Warranty Deed, and acknowledged that he exeeuted the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. -- ~~~ ~ . -. ~ Notary Public My Commission expires: (Notarial Seal) HOTAlllAt.IUl, SlWeN J. ASHMAN. NOTARY PUBUO SOUTH lIlIOl.ETOIl1\\P., CO\MY OF ClMEIUIIl Mf COMMISSlOK EXPIRES SEPTEMBER 3, 2007 OMEASH9418223 v2 BOOK 272 PAcr4441 COMMONWEALTH OF PENNSYLVANIA COUNTY OF _0) I M\a fA .\iJ : SS ON THIS, the /1"11 day of January, 2006, before me, the undersigned officer, personally appeared Marian E. ~ known to me to be the person whose name is subscribed to the within Special Warranty Deed, and acknowledged that she exeeuted the same for the purposes therein contained. IN WITNESS WHEREOF, ] hereunto set my hand and official seal. ~- <-~. ~ Notary Public My Commission expires: (Notarial Seal) ......."'~...._- j tlOTARIAl. SeAl. ~ ST::\.'~.'. F3HMAN, NOTARY PUBLIC I &:,"". .:..'~:.;;;w~ f;\l', (X'UtllY OF ClMlEIUNlI , . ,. ."' . ":l'"l' ~9fDES t-i:rsraISER 3, 2007 ~_Cl~~~ARVP\lllUC S'TE'/EN J. r...-.-COO<<v Of C\,lII!EllNID ~~.:~~~~mwE1\3.?W7 BOoK 272 PAcr4442 DMEAST*941a223 \12 LEGAL DESCRInION ALL THAT CERTAIN tract or parcel ofland situate in Silver Spring Township, Cumberland County. Pennsylvania, fronting along the Northern Side of Carlisle Pike (S.R. 00 II); said tract of land being approximately ] ,500 feet wel!t of the intersection of Carlis]e Pike and Lambs Gap Road (S,R. 1011) and bOllllded and described in accordance with asurvey made by ReIber!, Rowland & Grubic, Inc. dated 121]5/05 project #3454.001 as follows, to wit: BEGINNING at the intersection of the dividing line of lands NIF of Donald L. and Marion E. Carter and Uinds NIP of Silver Spring Theatres with the Northern Legal Right of Way Line of Carlisle Pike; thence along lands NIP of Silver Spriag Theatres North 01 degrees 43 minutes 2] seconds West 679.00 feet to land NIP of Silver Spring Speedway, Inc.; thence along said lands NIP of Silver Spriag Speedway, Inc, North 88 degrees 16 minutes 39 seconds Ease 495.34 feet; thence continuing 1Il0Dg said lands of Silver Spring Speedway, Inc. and along lands NIP of Alan G. Kreitzer South 04 degrees 43 minutes 39 seconds West 683.32 feet to the Northern Legal Right of Way Line of Carlisle Pike; thence along said legal Right of Way Line of Carlis]e Pike South 88 degrees 16 minutes 39 seconds West 4]8.58 feet to lands NIP of Silver Spring Theatres, being the place of beginning. BEING A COMPREHENSIVE DESCRIPTION consisting of two parcels in the following deed grants: BEING the same premises which West Shore Public Library Association, a PCIlIISy]vania non-profit COIpOration, by IndeDturc dated June 22,198] and recorded in the Recorder ofDecds, in and for the County of Cumberland, aforesaid, in Deed Book L29 page 627 &c" granted and conveyed unto Donald L. Carter and Marian E. Carter, husband and wife, in fee. AND BEING the same premises which Commonwealth National Bank, Executor of the Will of SlaDley N. Armitage by deed dated May 6, 1997 and recorded in the Recorder of Deeds, in and for the County of Cumberland in Misc. Book D27 page 78] granted and conveyed unto Donald L. Carter, in fee. BEING Parcel #38-]9-1608-004. and #38-19-1608-004A. 1 Certify this to be recorded 1n Cumberland County PA . ~.. '.. ,.." ...t'............I ~~~...4- .": - .~..."""".,.-", 7." t7 \.\'~:X;!~ T: ''''S../ Recorder of Deeds BOOK 272 PAGE4443 ----' ....--.T'.. EXHIBIT B Assignment and Assumption of Leases ASSIGNMENT AND ASSUMPTION OF LEASES THIS ASS]GNMENT AND ASSUMPTION OF LEASES (this "Assignment") is made the 4.:rday of January, 2006, by and between DONALD L. CARTER and MARIAN E. CARTER. individual residents of the Commonwealth of Pennsylvania (collectively. "Assignor"). and SILVER SPRING SQUARE II. L.P., a Delaware limited partnership ("Assignee"). WITNESSETH: FOR GOOD AND V ALUAllLE CONSIDERATION. receipt whereof is hereby acknowledged, and intending to be legally bound, Assignor and Assignee hereby agree as 101l0ws: l. In conncction with that certain Agreement of Sale (the "A~reement") dated March 4, 2004 by and between Assi&'I1or, as scller, and TCE Realty & Development Co., LLC ("TCW). as purchaser, as af'\1cl)$ed by that certain Letter Agreement dated February 4, 2005 from Steven Fishman, and as ru,'tl'1er amended by tllat certain Letter Agreement dated April 14, 2005 from Powell Anns, which Agreement has bcen assigned by TCH to Assignee, for property located in Silver Spring Township, Cumberland County, Pennsylvania, und all othcr property expressly to be transferred thereunder (the "l'rollerty"j, Assignor hereby assigns, transfers, grants and conveys to Assignee all of Assignor's right, title and interest in and to (i) those certain leases (the "Leases") associated with the Property as identil1ed on Exhibit A, attached hereto and made a part hereof; (ii) the security deposits listed on Exhibit B. attached hereto and made a part hereof (the "Security Deoosits") held pursuant to the Leases; and (iii) any and all guaranties made or given by any persons or entities with respect to the obligations of the tcnants under the Leaqes and whieh have previously been obtained by Assignor (the ;'Guaranties"). 2. Assignee hereby accepts the foregoing assignmcnts and assumes all of the duties. obligations and liabilities of Assignor accruing under or in connection with the Leases on and after the date of this Assignment. 3. Assignor hereby agrees to promptly pay to Assignee any rent or other amounts received by Assignor on or after the date hereof with respect to any Lease at the Property, to the extent such rent or other amount is applicable to any period on or after to the dale hereof. 4. Assignee hereby agrees to promptly pay to Assignor any perel:otage rent receiyed by Assignee from Advance Stores Company, Incorporated with respect to its Lease at the Property. to the extent such percentage rent is applicable to any period prior to the date hereoC] S. Assignor hereby warrants to Assignee that this Assignment conveys to Assignce on the date hereof title to tlle Leases, Security Deposits and Guaranties, t~'ee and clear of all mortgages. pledges, liens (including mechanie's and materialman's liens), secUlity interests, consignments, conditional sale agreements. conditions, charges, agreements, other restrictions, claims and encumbrances of any kind. and Assignor does hereby warrant and shall defend Assignee against any person lawfully claiming the same or any part thereof. OMEAST *9418229 v2 3 6. Assignee shall indemnitY and hold Assignor hamlless from and against any actions, suits. proceedings or claims. and all costs and expenses (including" without limitation, reasonable attorneys' fees incurred in connection therewith), based upon or arising out of any breach or alleged breach of any of the Leases or out of any other statement of facts connected with the Leases occurring or alleged to have occurred after the date hereof, or from the proper application or return nf any Security Deposits or other deposits, if any, due tenants under the Leases, each to the extent paid over by Assignor to Assignee and so received by Assignee under and pursuant to the Leases. Assignor shall indemnify and hold Assignee harmless from and against any actions, suits. proceedings or claims, and all costs and expenses (including. without limitation, reasonable attorneys' fees incurred in connection therewith). based upon or arising out of any breach or alleged breach of any of the Leases or out of any other statement of facts connected with the Leases occurring or alleged to have occurred up to and including the date hereof, or from the proper application or return of any Security Deposits or other deposits, if any, due tenants under the Leases. each to the extent not paid over by Assignor to Assignee or not received by Assignee under and pursuant to the Leases. TIlis Assignment shall be binding upon and inure to the te.;,lit of Assignor and Assignee and their respective heirs. executors. administrators, suc~es'sors and assigns. 7. All of the provisions of this Assignment shall survive the transfer of the Property to Assignee and shall be binding upon and inure to the benctit of the parties hereto and their respective heirs, personal representatives, successors and assigns. 8. The foregoing assignments arc made subject to the rights and obligations and representations und warranties of Assignor and Assignee under the Agreoment. and thc covenants, representations, warranties and indemnities, if any. contained in the Agreement and pertaining in any way to the Leascs and other interests, propet1y and rights assigned herein, are incorporated herein as though fully set forth. 7. This Assignment may be executcd in several counterparts, cach of which counterparts shall be deemed an original instrumcnt and all of which together shall constitute a single Assignment. [Signatures on following page] [Remainder of page intentionally left blank] DMEAST#9418229 v2 2 , .' IN WITNESS WHEREOF. this Assignment has been duly executed by Assignor and Assignee as of the date and year firsl above written. ASSIGNOR: DONALD L. CARTER By: '~':',. ,1;,-,\'-'''''' ''',:c';, ..,_< ~~"\d"""" > .........:. MARIAN E. CARTER ., < ::~ .~.1 /,/Cfl ,/74' / P" By:... ~l~~~ ~ / U~f..) / . DMEAST #9418229 v2 , ASSIGNEE: SILVER SPRING SQUARE II. L.P. By: By: Name: Title; ~ EXHIBIT A Leases I. Bobby L. White, !fa Bob' s IntoWDe Spas 2. Metro Cremo & Sons, Inc. 3. Hagemeyer North America, Inc. 4. Advance Stores Company , " .~ ,. DMEAST#941B229112 . .' DMEAST #9418229 \/2 EXHIBIT B Security DCPQ'ii,1;; C/).lu'1e < " " EXHIBIT C Tenant Estoppel Certificate TENANT ESTOPPEL CERTIFICATE TO: ICE Realty & Development Co., LLC, its successors <md assigns CPurcha.'.;er"), and any mortgage lender to any of the foregoing FROM: METRO CREMO & SONS, Inc.. a Pennsylvania Corpordlion ("Tenant") RE: 6430 Carlisle Pike. Mechanicsburg. PA (the "Property"), demised premises having a floor area of approximately __(".,500 __square feet ("Premises") Tenant as Tenant under the referenced Lease. hereby certifies as follows: 1. Tenant occupies the Premises pursuant to the terms of an oral agreement (the '''Lease'') with Donald L Carter and Marian Carter. individuals (collectively, "Landlord"), which is in full fon:e and effect and ha<; not been assigned, modified or supplemented. 2. The Lease is a month to month lease and is terminable by Landlord upon one (l) month's prior written notice to Tenant. The Lea..e contains nO,renewal or extension options. ~, .... .~ - I, 3. Tenant is not in default under the Lease. To Tenant's knowledge, Landlord is not in default under the Lease. 4. Tenant has accepted the Premises demised to it pursuant to the Lease, and has commenced its business operations in the Premises. 5. Any free rent or rent concession period at [he commencement of the term of the Lease has expired. 6. The amount affixed or base monthly rent under the Lease is $5,500.00. Tenant bas paid rent when due pursuant to the terms of the Lease through the month of December, 2005. 7, Tenant has no current right of offset against rent and no claims against Landlord. the Premises or the Property. 8. Landlord has performed all work and other conditions required to be perfonned by Landlord and paid to Tenant any allowance or other pa)ment due to such Tenant in connection therewith. 9. Tenant is in sole possession of the Premises, and there are no subleases under the Lease. 10. The amount of the security deposit held by Landlord under the Lease is $ 0.00. J J. The Lease contains no outstanding options or rights of first refusal or offer to purchase or lease the Premises, the Property or any part thereat.: Tenant does hereby consent and agree that, in addition to the parties to whom this Tenant Estoppel CeI1ificmc is addressed, this Tenant Estoppel Certificate may also be specifically relied upon by Silver Spring Square 11, LLC and Silver Spring Square II, LP, and their successors and ~lSsigns, in connection with the acquisition of the Property and the Premises from Landlord. The wldersigned is duly authorized to execute this Certificate. [Tenant] r-\GTtZ.O &01>0 ~ Scns ::Lx:. By: Name: Title: Date:---t!o? ~_u~L.__=-_, 200BS , .~ ::" OMEAST #9412159 v1 4__ae~__ 61(;.. t!..~"" fJI"<<Jk-:.r 2 EXHIBIT D Termination Notice and Proof of Receipt SILVER SPRING SQUARE II, L.P. ] 50 Monument Road, Suite 406 Bala Cynwyd, P A 19004 (6]0) 747-1200 Via certified mail January 19,2006 Mr. Eric Cremo Metro Cremo & Sons, Inc. 6430 Carlisle Pike Mechanicsburg, P A ]7050 NOTICE TO METRO CREMO & SONS, INC., TENANT OF 6430 CARLISLE PIKE, SILVER SPRING TOWNSHIP, CUMBERLAND COUNTY, PENNSYLVANIA Dear Mr. Cremo: .. < .:. ~ Please be advised that the properly located at 6430 Carlisle Pike, Silver Spring Township, Cumberland County, Pennsylvania (the "Pronertv"), was sold on January 17, 2006, by Donald and Miriam Carter to Silver Spring Square n, L.P. This letter serves as tennination of your month-to-month lease. You must vacate on or before March 1, 2006. Until March ], 2006, or your departure if prior to that date, all rent and other charges payable and other communications pursuant to your lease at the Properly should be made to Silver Spring Square n, L.P. and sent to the following address: ]50 Monument Road, Suite 406 Ba]a Cynwyd, PA 19004 All of Dona]d and Miriam Carter's interest in your lease is now held by Silver Spring Square II, L.P., as owner of the Property and any and all security deposits held by the Carters have been conveyed and transferred to Silver Spring Square n, L.P. Silver Spring Square n, L.P. is now responsible for such deposit. Thank you for your time and attention to this matter. Please do not hesitate to contact me at 610 747. 1200 if you have any questions. Sincerely, ealty Group, Inc., its General Partner ~ ' , < ;:" SENDER: COMPLETE THIS SECT/ON . . . . . . Complelelle.,. 1, 2, and 3.'AlSo complele Ilem 4 If Reslrlc1ed DellvOry Is desired. . 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 mall piece, or on the front if space permits. ~C~7::~r ~~-r;5tM,k /;'130 CtiJrWV IK rA.uj~<' Iii /7050 A. Signature x B. ,3. Sprvice1YPe ~rtlfied Mall 0 Exprns5 Mall [J ReglstEnd D Return Receipt for Merchandise o Insured Mall 0 C.O.D. ,4. Restricted Delivery? (&tJa Fee) 0 Yes 2. ArtIcle Number (T"""fertromSfl1Vk:elabeO 7001 0320 0002 2757 1214 PS Form 3811, February 2004 Domestic Return Receipt 102595-02-M.1S40 U.S. Postal Service > CERTIFIED MAIL RECEIPT (Domestic Mall Only; No Insurance Coverage ProvIded) ~r' f'- U1 f'- ru Poiltage $ ~~.ikot 1/ ~!; Certili@(jFee Return Receipt Fee ru (Endorsement Required) t:l t:l t:l Aestricted Delivery Fee (Endorsement A$q\lired) ... t:l t:l f'- o Total Poat8ge I. Fees ru '" t:l , EXHIBIT E Notice to Quit and Proof of Service WIX, WENGER & WEIDNER RICHARD H. W1X THOMAS L. WENGER DEAN A. WEIDNER STEVEN C. WILDS THERESA l. SHADE W!X * DAVID R. GETZ STEPHEN J. DZURANIN STEVEN M. WILLIAMS JEFFREY C. CLARK PETER G. HOWlAND STEPHEN P. SMITH KATHRYN l. WIX A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 508 NORTH SECOND STREET POST OFFICE BOX 845 HARRISBURG. PENNSYLVANIA 17108-0845 4705 DUKE STREET HARRISBURG, PA 17109-3099 (717)652-8455 FAX (717) 652-6290 (717) 234-4182 FAX (717) 234-4224 WWN.wwwpataw.com . Also Member MassaehU$etts a... April 12, 2006 -. , ,:.::" Metro Cremo & Sons, Inc. tla Cremo's Variety Outlet 6430 Carlisle Pike Mechanicsburg, PA 17055 Re: Silver Spring Square II, LP NOTICE TO QUIT Our File No. 7922/13901 Dear Sirs: This office represents Silver Spring Square II, LP ("SSS"), the owner of the above-referenced property on which your business is located (the "Property"). By letter dated January 10, 2006 and received by you on January 23, 2006, SSS terminated your month to month lease and instructed you to vacate the Property by March 1, 2006. As an accommodation to you, SSS subsequently agreed to allow you to remain in the Property through April 16, 2006. This letter serves as formal notice to quit. You are hereby directed to vacate the Property no later than April 30, 2006. Your failure to do so will result in appropriate action being taken by SSS to have you removed from the Property. Please note that your failure to vacate the Property will cause a delay in SSS's development process. This delay will cause damages to SSS in the amount of at least $9,000 per day. This amount includes only the construction financing interest that will be incurred; SSS's total damages will likely far exceed this amount. In the event that you fail to vacate the Property as instructed in this notice, SSS will seek to hold you (and your principals) responsible for all damages it sustains. . :'- ! ", .' l: . . WI X, WENGER & WEIDNER Metro Cremo & Sons, Inc. April 12, 2006 Page 2 This notice is being personally served on you in accordance with the requirements of the Pennsylvania Landlord and Tenant Act. However, because we understand that Robert Walker may represent you, we are providil)g him a courtesy copy of this notice as well. / . I I Sincerely yoUrs, Wix, we~'7ir & Weidner '/ .. J . , tI -, < , .. .~ - I. By:/ ,'Steven M. Williams i , HAND DELIVERED or POSTED cc: Silver Spring Square II, LP Robert M. Walker, Esquire / ! '". .. . AFFIDAVIT OF SERVICE OF NOTICE TO VACATE Peter G. Howland, Esquire, being duly sworn according to law, deposes and says: 1. I am a competent adult, age 34 years, who is employed as an attorney with the law office of Wix, Wenger & Weidner; 2. On April 13, 2006, at 8:25 a.m., I served a Notice to Vacate, a copy of which is attached hereto, on the tenant named therein by hand delivering it to Larry Cremo. 3. Service of the Notice to Vacate occurred at Cremo's Variety Outlet, 6430 Carlisle Pike, Mechanicsburg, PA. Date: Ap<->"\ I?, I Zoo <0 ,~/:~- Peter G. Howland Sworn to and subscribed to before me, a Notary Public, this J1..day of A D(iI 2006. ~. (jJ;t{JifM N ry Publi My Commission Expires: F:\smw\7922 (SilVER SPRING SQUARE II. lP)\13901 (CREMO'S)\DOCUMENTSIAFFIDAVIT OF SERVICE.doc NOTARIAl. SEAL AMY T W1tuAM8 Notary PubNc HAIlIlISllURG CIlY. DAUl'HIN COUNlY My CommlUlon ExpIre. Mar 7, 2009 . . VERIFICATION I, Powell W. Arms, Vice President of Regency Realty Group, Inc.. general partner of SSS, have read the foregoing Complaint and hereby affirm and verify that, to the best of my knowledge, information and belief, all of the statements made therein are true and correct. and that false statements made therein may subject me to the penalties of 18 Pa.C.SA Section 4904, relating to unsworn falsification to authorities. Date: ~'.\ Z6.2.IDb " t/a ~ (":) ~'t ~ :b "-J ___ ~ ~ ----. 'b0 ~ ~ ~ =2 J:- - , ~ ..@J ....; v. NO. Of.r. - dLf?,j (2; u iL ~ be-YVj , WIX, WENGER & WEIDNER Steven M. Williams, 1.0. # 62051 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff REGENCY REALTY GROUP, INC., tfa SILVER SPRING SQUARE II, LP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff METRO CREMO & SONS, INC., t/a CREMO'S VARIETY OUTLET, Defendant : CIVIL ACTION - EQUITY PLAINTIFF'S PETITION FOR PRELIMINARY AND PERMANENT INJUNCTION. OR IN THE ALTERNATIVE. FOR AN EXPEDITED HEARING ON THE MERITS OF THE UNDERLYING ACTION AND NOW, comes Plaintiff, Regency Realty Group, Inc., t/a Silver Spring Square II, LP ("SSS"), by and through its attorneys, Wix, Wenger & Weidner, and files this Petition for Preliminary Injunction and Permanent Injunction, or in the Alternative, for an Expedited Hearing on the Merits of the Underlying Action, alleging the following in support: 1. Contemporaneously with the filing of this Petition, SSS filed its Complaint in this action. A true and correct copy of SSS's Complaint is attached hereto as Exhibit A and each and every allegation thereof is incorporated herein by reference as if fully set forth. 2. SSS is the owner of the property at 6430 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania on which Defendant is currently operating its business (the "Property"), having acquired it on January 17, 2006 from the prior owner, the Carters. 3. SSS is in the process of developing the Property and adjacent properties into a class A shopping center (the "Center"), with a required opening date of March 2007. 4. Through January 17, 2006, Defendant occupied the Property pursuant to the oral Lease it had with the Carters. 5. The term of the Lease was month-to-month, terminable upon one month's notice, and it contained no renewal or extension options. 6. On or about December 29, 2005, in connection with the pending sale of the Property to SSS, Defendant executed a Tenant Estoppel Certificate (the "Certificate"), which set forth the terms of the Lease, and on which, by its terms, SSS was entitled to rely in connection with its purchase of the Property. 7. By letter dated January 19, 2006 and received by Defendant on January 23,2006, SSS notified Defendant that the Lease was terminated and instructed Defendant to vacate the Property by March 1, 2006. 8. In order to ensure timely completion of the construction of the Center, SSS needed Defendant to vacate the Property by March 1, 2006. 9. On or about February 28, 2006, as an accommodation to Defendant, SSS agreed to allow Defendant to remain on the Property through April 16, 2006, and Defendant then agreed that it would vacate the Property by April 16, 2006. 2 3 10. SSS was able to relax its March 1 deadline by "surgically" doing site work in the area of the Property. While this relaxation cost SSS time and extra money in the inefficient use of contractor time, SSS agreed to absorb the cost in an effort to accommodate what SSS believed was Defendant's necessary timeframe for vacating the Property. 11. SSS intended to begin demolition of the building on the Property as of April 17 , 2006. 12. On or about April 11, 2006, Defendant informed SSS that it did not intent to vacate the Property until Defendant's new building was completed, which was then expected to be in or about September 2006. 13. Prior to April 11, 2006, SSS had no notice, knowledge or indication that Defendant intended to remain in the Property after April 16, 2006. 14. Because Defendant's remaining in the Property is not an option, on April 12, 2006, SSS served a notice to quit on Defendant, which directed Defendant to vacate the Property no later than April 30, 2006. 15. Defendant has failed and refused to vacate the Property notwithstanding the proper termination of the Lease and proper service of the notice to quit. 16. Defendant's failure to vacate the Property is impeding SSS's ability to continue in its construction plan and is putting in jeopardy SSS's ability to meet its construction deadlines. 17. In order to meet its construction and completion deadlines, SSS must be able to demolish the building on the Property immediately. 4 18. First, the other end of the building on the Property sits atop the new signalized access-way into the Center from the Carlisle Pike. This is the only access into the Center from the Carlisle Pike, with the exception of a right turn-in only access further east. 19. In addition, most of the underground main utility services run in this area and through the parking area that currently serves Defendant's business. 20. This area must be complete in order for the Center to open in March 2007. 21. The work to complete this access-way will take six months. 22. In order to meet its construction deadlines, SSS must be able to begin this work immediately because, as part of this work, all utilities must be installed and then the entire area must be asphalt paved. 23. Neither the Township nor PennDOT will allow asphalt paving to take place much beyond October 15, and the asphalt plants do not thereafter open until late March 2007, which is beyond SSS's date for the opening of the Center. 24. Target is the anchor for the Center and has no obligation to open if the Center is not completed in time for the March 2007 opening. 25. Target only opens stores three times a year: in March, July and October. 26. If SSS is unable to complete the Center as scheduled, the best case scenario regarding Target is that there will be at least a three month delay in the Center's opening. 5 27. If SSS is unable to complete the Center as scheduled, the worst case scenario is that Target will walk away from the Center and refuse to open, which it has the right to do under its agreement with SSS. 28. All of the smaller tenants of the Center have their opening and rent commencement dates tied in to Target's start date. If SSS cannot meet its deadlines and Target decides not to open in the Center, SSS could be left with no tenants at all. If Target decides to stay in the Center and open at a later date (i.e., in July or October), at a minimum, the opening of the other businesses in the Center could be delayed until such date as well. 29. In such case, SSS would experience damages in at least the form of lost rentals and additional interest payments on its construction financing. In the event that Target remains and merely opens at a later date, at a minimum, these damages could exceed $812,500. If Target opts to not open in the Center, SSS's damages could exceed $50,000,000. 30. Second, the portion of the building currently occupied by Defendant sits atop a pad for a new building to be erected for and occupied by Longhorn Steakhouse, a prospective tenant in the shopping center. Delivery of the completed building to Longhorn is required by September 1, 2006. 31. In order to meet this deadline, SSS must demolish the current building and utilities, regrade the site to match the grade of the rest of the Center, bring underground utilities to the pad, construct the building and pave the lot. This work will require four months to complete. For each day past May 1, 2006 that Defendant remains in 6 the Propery, SSS's ability to meet Longhorn's deadline becomes less likely or impossible. 32. SSS is entitled to immediate and exclusive possession of the Property. 33. Because the Lease has been properly terminated, Defendant has no right or entitlement to remain in possession of the Property, and its failure to vacate is in direct conflict with SSS's right to immediate and exclusive possession thereof. 34. Because it expected that Defendant would vacate, SSS accepted no rental payments from Defendant for April 2006. Request for Preliminarv and Permanent Iniunction 35. Paragraphs 1 through 34 hereof are incorporated herein by reference as if fully set forth. 36. SSS seeks immediate preliminary and permanent injunctive relief in the form of an Order: a. declaring the SSS has the immediate and exclusive right to possession of the Property; b. declaring that Defendant has no rights to continue in possession of the Property; and c. requiring that Defendant immediately vacate the Property and turnover possession thereof to SSS. 37. Because SSS is entitled to immediate and exclusive possession of the Property, SSS is entitled to the injunctive relief sought. 7 38. The issuance of the requested preliminary injunction is reasonably suited to address SSS's rights and prospective damages and Defendant's wrongful action. 39. Because SSS properly terminated the Lease, SSS will succeed on the merits of its underlying claim. 40. The requested injunctive relief will prevent irreparable injury to SSS. 41. In contrast, because Defendant has no right to possess the Property, Defendant will not be prejudiced or unduly inconvenienced or damaged by the issuance of the injunctive relief requested herein. 42. Defendant is being unjustly enriched as a result of its unlawful possession of the Property. 43. Unless this Court immediately grants the requested injunctive relief, SSS will suffer immediate, substantial, and irreparable harm in at least the following respects: (a) SSS's inability to possess and enjoy its Property, which it has the immediate and exclusive right to possess and enjoy and which Defendant has no right to possess or enjoy, will continue; (b) The delay caused by Defendant's failure to timely vacate the Property will irreparably prevent Plaintiff from completing the Center in time for the required turnover to Longhorn on September 1, 2006 or the opening of the rest of the Center in March 2007; (c) Plaintiffs inability to open the Center in March 2007 could result in Target choosing not to open in the Center at all, which would allow all of the other tenants to avoid their leases; 8 (d) The entire business of SSS will fail, causing it to lose substantial business opportunities and profits that are incalculable; (e) SSS will lose its good will and reputation, and likely be unable to fill the Center with class A tenants; (f) SSS will have lost its substantial investment of time, money, and energy in promoting its business, all of which is incalculable; (g) Plaintiff will be deprived of its just revenues based on the Defendant's conduct, all of which is incalculable; and (h) SSS will, at a minimum, incur losses in an amount that will likely exceed $812,500, and could quite realistically exceed $50,000,000. 44. SSS has no adequate remedy at law to redress the harm and injury that will be caused by Defendant's unlawful, unauthorized, wilfull and wanton actions. 45. Injunctive relief is appropriate where, as in this case, one who has no right to occupy and possess property refuses to give up possession to the one who has the right to occupy and possess the property. See, e.g., Touraine Partners v. Kelly, 333 Pa.Super.196, 482 A.2d 240 (1984). WHEREFORE, SSS respectfully requests that this Court enter a preliminary and permanent injunctive Order: a. declaring the SSS has the immediate and exclusive right to possession of the Property; b. declaring that Defendant has no rights to continue in possession of the Property; 9 c. requiring that Defendant immediately vacate the Property and turnover possession thereof to SSS; and d. granting such other relief as this Court deems just and appropriate. Alternative Reauest for Expedited Hearina on Merits of Underlvina Action 46. Paragraphs 1 through 45 hereof are incorporated herein by reference as if fully set forth. 47. SSS seeks an immediate hearing on the merits of the underlying action. 48. As set forth more fully above: a. SSS is the owner of the Property; b. SSS has properly terminated the Lease; c. SSS has properly served a Notice to Quit on Defendant; d. SSS is entitled to immediate and exclusive possession of the Property; e. Defendant has no right to continue in possession of the Property. 49. There are no issues to be determined in the underlying action other than SSS's right to immediate and exclusive possession of the Property. 50. The parties do not need to conduct discovery of any kind in connection with the merits of the underlying action. 51. Defendant's continued occupancy of the Property is impeding SSS's ability to develop the Property and construct the Center. 52. Time is of the essence for the vacating of the Property by Defendant if SSS is to avoid damages, as aforesaid. I Respectfully S~mitted, WHEREFORE, SSS respectfully requests that this Court set an immediate hearing date on the merits of the underlying action so that the matter can be resolved immediately to minimize the significant damages that SSS will otherwise incur if Defendant's unlawful possession of the Premises is allowed to continue. Date: c; i, 1 ct WIX, WENG R & WEIDNER if"--~ By: .8teven M. Williams, 1.0.# 62051 // 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorney for Plaintiff F:\smw\7922 (SILVER SPRING SQUARE II. LP)\13901 (CREMO'S)\DOCUMENTS\lnjunction Petition.doc 10 n~ A t:'{LI-bt+ H. WIX, WENGER & WEIDNER Steven M. Williams, 1.0. # 62051 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff REGENCY REALTY GROUP, INC., tfa SILVER SPRING SQUARE II, LP : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. METRO CREMO & SONS, INC., t/a CREMO'S VARIETY OUTLET, Defendant : CIVIL ACTION - EQUITY NOTICE You have been sued in court. If you wish to defend against the claims set forth in he 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 LAWTER, 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 32 South Bedford Street Carlisle, Pennsylvania (717) 249-3166 v. NO. REGENCY REALTY GROUP, INC., tfa SILVER SPRING SQUARE II, LP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff METRO CREMO & SONS, INC., Va CREMO'S VARIETY OUTLET, Defendant CIVIL ACTION - EQUITY COMPLAINT AND NOW, comes Plaintiff, Regency Realty Group, Inc., Va Silver Spring Square II, LP ("SSS"), by and through its attorneys, Wix, Wenger & Weidner, and files this Complaint, alleging the following in support: 1. SSS is a Delaware limited partnership, qualified and authorized to do business in Pennsylvania, whose business address is 150 Monument Road, Suite 406, Bala Cynwyd, Pennsylvania 19004. SSS's general partner is Regency Realty Group, Inc., 2. Defendant is Metro Cremo & Sons, Inc., Va Cremo's Variety Outlet, a Pennsylvania corporation that maintains its primary place of business at 6430 Carlisle Pike, Mechanicsburg, Pennsylvania 17055 (herein, the "Property"). 3. Jurisdiction is proper in this Court because the property at issue in this case is located in Cumberland County. 4. Through January 17, 2006, Defendant occupied the Property pursuant to an oral lease (the "Lease") it had with Donald L. Carter and Marion Carter (the "Carters"), who were the owners of the Property. 2 5. The term of the Lease was month-to-month, and it was terminable upon one month's notice. 6. The Lease contained no renewal or extension options. 7. On January 17, 2006, SSS purchased the Property from the Carters. A true and correct copy of the Deed into SSS is attached hereto as Exhibit A and is incorporated herein by reference as if fully set forth. 8. In connection with SSS's purchase of the Property, SSS took assignment of the Lease pursuant to an Assignment and Assumption of Leases between SSS and the Carters, which was executed on January 17, 2006 (the "Assignment"). A true and correct copy of the Assignment is attached hereto as Exhibit B and is incorporated herein by reference as if fully set forth. 9. On or about December 29,2005, in connection with the pending sale of the Property to SSS, Eric Cremo, President of Defendant, executed a Tenant Estoppel Certificate (the "Certificate"). A true and correct copy of the Certificate is attached hereto as Exhibit C and is incorporated herein by reference as if fully set forth. 10. The Certificate set forth the terms of the Lease, and provided that SSS may rely on its provisions in connection with its purchase of the Property. 11. On January 19, 2006, SSS sent to Defendant a notice of termination (the "Termination Notice"), which was received by Defendant on January 23,2006. True and correct copies of the Termination Notice and proof of receipt by Defendant are attached hereto as Exhibit D and are incorporated herein by reference as if fully set forth. 3 12. In the Termination Notice, SSS notified Defendant that the Lease was terminated and instructed Defendant to vacate the Property by March 1, 2006. 13. As an accommodation to Defendant, SSS subsequently agreed to allow Defendant to remain on the Property through April 16, 2006. 14. On or about April 11, 2006, Defendant informed SSS that it did not intend to vacate the Property until Defendant's new building was completed, which was then expected to be in or about September, 2006. 15. On April 12, 2006, SSS served a notice to quit on Defendant, which directed Defendant to vacate the Property no later than April 30, 2006. True and correct copies of the notice to quit and proof of its service are attached hereto as Exhibit E and are incorporated herein by reference as if fully set forth. 16. Defendant has failed and refused to vacate the Property notwithstanding the proper termination of the Lease and proper service of the notice to quit. 17. SSS is entitled to immediate and exclusive possession of the Property. 18. Because the Lease has been properly terminated, Defendant has no right or entitlement to remain in possession of the Property, and its failure to vacate is in direct conflict with SSS's right to immediate and exclusive possession thereof. 19. SSS is developing the Property and adjacent properties into a shopping center, and Defendant's failure to vacate the Property is impeding SSS's ability to continue in its construction plan. Date: ',;, I,' ( Respectfully Siitted, WIX, WENGE;-R & WEIDNER / i^,-- /r J,' 1/ ---. By: l Steven M. Williams, 1.0. # 62051 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff WHEREFORE, SSS respectfully requests that this Honorable Court enter judgment in its favor and against Defendant for possession of the Property and grant such other relief as this Court deems just and appropriate. 4 EXHIBIT A Deed _ ,. " .'t" . --.' . '';') ). . iA~ RECORD & RETURN TO Stewart Title Guaranty Company 900 West Valley Road, Ste 400 Wayne, PA 19087 ID'-f' iJ'i'D:;'D~ ..-..' J ~ . ~ I..;"'l~~'.( ~) .' ) '1 './ ,,'" i. -.. DEED - ...-,,' ".~~~ji\~';L,~ Gi' :';.-, ' :.' . " '."") L:':'~' ...~ (GDS JRN 25 RI'1 9 03 This Indenture, Made the 17th day of January, 2006, Between DONALD L. CARTER and MARIAN E. CARTER, husband and wife, individual residents of the Commonwealth ofPeansy]vania (hereinafter collectively called the Grantor), of the first part, and SILVER SPRING SQUARE n, L.P., a Delaware limited partnership (hereinafter called the Gran\ee), of the second part, Witnesseth that the said Grantor. for and in consideration of the swn of One and no/lOO ($1.00) Dollars lawful money of the United States of America, Wlto it well and truly paid by the said Grantee, at or before the sealing and delivery hereof, the receipt whereof is hereby acknowledged, has granted, bargained and sold. released and confirmed, and by these presents does grant, bargain and sell, release and confirm Wlto the said Grantee, its successors and assigns, All that certain property described in Schedule A, attached hereto Together with all and singuiar the buildings and improvements, ways, streets, alleys, driveways, passages, waters, water-courses, rights, liberties, privileges, hereditaments and appurten.ances, whatsoever unto the hereby granted premises belonging, or in any wise appertaining, and the reversions aad remainders, rents, issues, and profits thereof, and all the estate, righ~ title, interest, property. claim and demand whatsoever of the said Grantor, as well at law as in equity, of, in, and to the same and every part thereof. To have and to hold the said lot or piece of ground above described, with the buildings and improvements thereon erected, hereditaments and premises hereby granted, or mentioned and intended so to be, with the appurtenances, unto the said Grantee. its successors and assigns, to and for the only proper use and behoof of the said Grantee, its successors and assigns forever, under and subject as aforesaid. BOOK 272 p.\GE4438 OMEAST ~ 18223 \12 . And the said Grantor, for itself and its successors does covenant, promise and agree, to and with the said Grantee, its successors and assigns. by these presents, that it, the said Grantor, and its successors, all and singuiar the heredilliments and premises hereby granted or mentioned and intended so to be, with the appurtenances, unto the said Grantee, its successors and assigns, against it, the said Grantor, and its successors and agliinst all and every person and persons whomsoever lawfully claiming or to claim the same or any part thereof, by, from or under him, her, it, them or any of them, shall and will Warn.Dt and forever Defend, under and subj eet as aforesaid. [Signatures on following page] [Remainder of page intentionally blank] Cwaberland County Record'r of D"ds Instrwulnt Filin~ I CORRECTED I Receipt~ 591681 Iostrl 2006-002603 1/25/2006 09:09:35 R,aarksl SmART TI1LE SILYI;R SPRWG SlI DEED DEED - WRIT DEED - RTT STATE CUlIlJEIUHO VAlLEY SilVER SPRllfl TIIP DEEII - AIH .J.e.s. I A,T .J. en IHPRtl\IEMENT FND REC. IMPRVlIT FUND Ch2Ck~ 6411 Clieckl 6\72 lotal R.c.ived....... OMEAST 19418223 ...2 2 aOOK 272 rACE4439 16,50 .50 41)000.00 20QOO.00 20000,00 11.50 10.00 2.00 3.00 180,0'13.00 \,50 S31} /.~~3.S0 BY~~/~V In Witness WhcreGf, the said Grantor has duly executed this Deed on the date first above written. DONALD L. CARTER (" '", '~ .~ . ..-.-gy: ~ "" ~~ MARIAN E. CARTER The address of the above-named Grantee is: ISO Monument Road, Suite 406 Bala Cynwyd, PA ]9004 ,~ DMEASTW418223 w2 3 BOOK 272 PAC[ 4440 0..EASTIil41S223v2 Book 2'(2 PACE4441 COMMONWEALTH OF PENNSYLVANIA COUNTYOF el.uoo,.-,bO/I~ : SS ON TillS, the 11h day of January, 2006, before me, the undersigned officer, personally appeared Donald L. Carter known to me to be the person whose name is subscribed to the within Special Warranty Deed, and acknowledged that he exeeuted the same for the purposes therein contained. IN WITNESS WHEREOF,] hereunto set my hand and official seal. ---- ~ ~~ ~ Notary Public My Commission expires: (Notarial Seal) NOT-'IUI. STEVeN J. FISHMAN, NOTARY PUBlIC SOUTH lIIlIOlEON TM'., COI.MY OF ClMERNlIl Iof{ COf,lMISSION EXPIRES SS'TEIo'IlER 3, 2007 . BOOK 272 PACr4442 COMMONWEALTH OF PENNSYLVANIA COUNTY OF G J N\~ fA .~ SS ON THIS, the /1'11 day of January, 2006, before me, the undersigned officer, personally appeared Marian E. carter known to me to be the person whose name is subscribed to the within Special Warranty Deed, and acknowledged that she execu~ the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. ~- .,..-~. ~ Notary Public My Commission expires: (Notarial Seal) .. ......~>...._..- I' tlOTARlAL SeAl. STf\!:;'" ,I. .';HNlAN, NOTARY PUBUO ,S\/...'W:, :'~f.'..j:r...)l1\lfl r COUNTY' OF ClMlER..AND , 'r ,'. . (t:I'-l'~loE.'1St:PTaJeER3.2007 NOTAR\ALSeAl. BOO smEN J, FISHMAN. NOT:V~o t:lIJ1l\ lIOO\ETON 1'flI'.. COIJNT'i s 2W7 !II COMMISSIO~.~~I!~:f'T<WER ' OMEAST ;V:9418223 v2 1 Certify this to be recorded 1n Cumberland County P A _ '. _," .I..'~ "" ~~~...k- .:' . .>.....~...- .,- '..., "t7 LEGAL DESCRIPTION ALL THAT CERTAIN tract or parcel ofland situate in Silver Spring Township, Cumberland County, Pennsylvania, fronting along the Northern Side of Carlisle Pike (S.R. 001]); said tract of land being approximately 1,500 feet wCllt of the intersection ofCarlis]c Pike and Lambs Gap Road (S.R. 101]) and bounded and described in accordance with a survey made by Herbert, Rowland & Grubic, Inc, dated ]2/]5/05 project #3454.00] as follows, to wit: BEGINNING at the intersection of the dividing line of lands N/F of Donald L. and Marion E. Carter and Lands NIP of Silver Spring Theatres with the Northern Legal Right of Way Line of Car Us Ie Pike; thence along lands NIP of Silver Spring Theatres North 01 degrcc& 43 minutes 21 seconds West 679.00 feet to land NIP of Silver Spring Speedway, Inc.; thence along said lands NIP of Silver Spring Speedway, Inc. North 88 degrees 16 minutes 39 seconds Ease 495,34 feet; thence continuing along said lands of Silver Spring Speedway, Inc. and along lands NIP of Alan G. Kreitzer South 04 degrees 43 minutes 39 seconds West 683.32 feet to the Northern Legal Right of Way Line of CarUsle Pike; thence along said legal Right of Way Line of Carlisle Pike South 88 degrees ]6 minutes 39 seconds West4]8.S8 feet to lands NIP of Silver Spring Theatres, being the place of beginning. BEING A COMPREHENSIVE DESCRIPTION consisting of two parcels in the following deed grants: BEING the same premises which West Shore Public Library Association, a Pennsylvania non-profit corporation, by Indenture dated June 22, 198] and recorded in the Recorder ofDeeds, in and for the County of Cumberland, aforesaid, in Deed Book L29 page 627 &C., granted and conveyed unto Donald L. Carter and Marian E. Carter, husband and wife, in fee. AND BEING the same premises which Co=onwealth National Bank, Executor of the Will of StanleyN. Armitage by deed dated May 6, 1997 and recorded in the Recorder of Deeds, in and for the County of Cumberland in Misc. Book D27 page 78] granted and conveyed unto Donald L. Carter, in fee. BEING Parcel #38-19-1608-004. and #3S-]9-]60S-004A. Recorder of Deeds BOOK 272 FAGE4443 --T- EXHIBIT B Assignment and Assumption of Leases ASSTGNMENT AND ASSUMPTION OF LEASES THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this "Assignment") is made (he 4-i'day of January, 2006, by and between DONALD L. CARTER and MARIAN E. CARTER, individual residents of the Commonwealth of l'ellllsylvania (collectively. "Assignor"). and SILVER SPRING SQUARE II. L.P., a Dclaware limited partnership ("Assignee"). \VITNESSETI-I: FOR GOOD AND VALUABLE CONSIDERATION, receipt whctcof is hereby acknowlcdged, and intending to bc legally bound, Assignor and Assignee hereby agrec as follows: I. In connection with that certain Agreement of Sale (tile "Agreement") dated March 4, 2004 by and between Assib~lor, as seller, and TCH Realty & Development Co., LLC ("TCI-I"), as purchaser, as al1,1e'!fed by Ulat ccrtain Letter Agreement dated February 4, 2005 from Steven Fishman, and as further amended by tilat certain Letter Agreement dated April 14, 2005 from Powell Anns, which Agreement has been assigned by TCH to Assignee, for property located in Silver Spring Township, Cumberland County, Pennsylvania, ill1d all other property expressly to be transferred thereunder (tile "l'rotlerty"), Assignor hereby assigns, transfers, grants and conveys to Assignee all of Assignor's right, title and interest in and to (i) those certain leases (the "Leases") associated with the Property as identil1ed on Exhibit A, attached hereto and made a part hercof; (il) Ule security deposits listed on Exhibit B. attached hereto and made a part hereof (the "Security Denosits") held pursuant to the Leases; and (iii) any and all guaranties made Of given by any persons or entities with respect to the obligations of the tenants under the Leases and which bave previously been obtained by Assignor (the "Guaranties"). 2. Assignee hereby accepts the foregoing assignments and assumes all of the duties, obligations and liabilities of Assignor accruing under or in connection with the Leases on and aner the date of this Alsignmcnt. 3. Assignor hereby agrees to promptly pay to Assignee any rent or other amounts received by Assignor on or after the date hereof witb respect to any Lease at the Property, to the extent such rent or other amount is applicable to any period on or after to the date hereof. 4. Assignee hereby agrees to promptly pay to Assignor any percentage rent reccivcd by Assignee t'rom Advance Stores Company, Incorporated with respect to its Lease at the Property. to the extent such percentage rent is applicablc to any period prior to the date hereoC] 5. Assignor hereby warrants to Assignee that this Assignment conveys to Assignee on the date hereof title to the Leases, Security Deposits and Guaranties, free and e1ear of all mortgages, pledges. liens (including mechanic's and materialman's liens), security interests, consignments, conditional sale agreements, conditions. charges, agreements. other restrictions, claims and encumbrances of any kind, and Assignor does hereby warrant and shall defend Assignee against any person lawfully claiming the same or any part thereof. DMEAST #9418229 \/2 3 6. Assignee shall indemnitY and hold Assignor hannless from and against any actions, suits. proceedings or claims. and all costs and expenses (including. without limitation, reasonable attorneys' fees incurred in connection thcrewith), bascd upon or arising out of any breach or alleged breach of any of the Leases or out of any other statement of facts connected with the Leases occurring or alleged to have occurred after the date hereof, or from the proper application or return of any Security Deposits or other deposits, if any, due tenants under the Leases, each to the extent paid over by Assignor to Assignee and so received by Assignee under and pursuant to the Leases. Assignor shall indemnify and hold Assignee harmless from and against any actions, suits, proceedings or claims, and all costs and expenses (including, without limitation, reasonable attorneys' fees incurred in connection therewith), ba.<;cd upon or arising out of any breach or alleged breach of any of the Lca$es or out of any other statement of facts connectcd with the Lell$es occurring or alleged to have occurred up to WId including thc date hereof. or from thc proper application or return of any Security Deposits or other deposits, jf any, due tenants under the Leases. each to the extent not paid over by Assignor to Assignee or not received by Assignee under and pursuant to the Leases. 'nlis Assignment shall b" binding upon and inure to the j;~*fit of Assignor and Assignee and their respective heirs, executor" administrators, suc~es'sors and assi~ns. 7. All of the provisions of this Assignment shall survive the transfer of the Propelty to Assignee and shall be binding upon and inure to the benetit of the parties hereto and their respective heirs, personal representatives, successors and assigns. 8. The foregoing ll$signments are made subject to the rights and obligations and representations and warranties of Assignor and Assignee under the Agreement. and the covenants, representations, warranties and indemnities. if any, contained in the Agrecment and pertaining in any way to the l.eases and other interests, property and rights assigned herein, are incorporated herein as though fully set forth. 7. This Assignment may be executed in several counterparts, each of which cOtmterparts shall be deemed an original instrument and all of which together shall constitute a single Assignment. [Signatures on following page] [Remainder of page intentionally left blank] DMEA$T#9418n9 v2 2 3 ASS]GNEE: IN WITNESS WHEREOF, this Assignment has been duly executed by Assignor and Assignee us of the date and year first above written. ASSIGNOR: DONALD L. CARTER By: , :":~:.,.~ ..t...,\,~""', """"\'.'c< ~_,\t-'-'r... . "'.....::. MARIAN E. CARTER By:. ., 1 :. ..,. . .,.,. . ,.1 // ~~/:y ",-7.,. . /~~~-~ , .' / ubD DMEA$T #9418229 'J2 SILVER SPRING SQUARE IT, L.P. By: rida By: Name: Title: ~ DMEAST #9418229 \(2 EXHIBIT A Leases \. Bobby L. White, !fa Bob's Intowne Spas 2. Metro Cremo & Sons, Inc. 3. Hagemeyer North America, Inc. 4. Advance Stores Company < '. '''"1. ..' m"E..~ST #9418229 1J2 EXHIBIT B Security Dep.Q~.i.~ c./), Icwle < ,., .~ I. .' EXHIBIT C Tenant Estoppel Certificate TENANT ESTOPPEL CERTIFICATE TO: ICE Realty & Development Co" LLC, its successors and assigns ('Purchaser"), and any mortgage lcnd~r to any of the foregoing. FROM: METRO CREl\lO & SONS, Inc,. a Pennsylvania Corpordtion ("Tena11t") RE: 6430 Carlisle Pike. Mechanicsburg. PA (the "Property"), demised premises having u floor area of approximately ~.J_500.___square feet ("Premises") Tenant as Tenant under the referenced Lease, hereby certifies as follows: 1. Tenant occupies the Premises pursuant to the terms of ,m oral agreement (the "Lease") with Donald L. Carter and Marian Carter, individuals (collectively, "L;mdlord"), which is in full force and effect and ha<; not been assigned, modified or supplemented. 2. The Lease is il monrh to month lease and is terminable by Landlord upon one (1.) month's prior wrirtcn notice to Tenant. The Lea~c contains Jlo,rencwal or extension options. ~, '.... ....\, 3. Tenant is not in default under the Lease. To Tenant's knowledge, Landlord is not in default under the Lease. 4. Tenant has accepted the Prell1is~s demised to it pursuant to the Lease, and has commenced its business operations in the Premises, 5. Any free rent or rent concession period at the commencement of the term of the Lease has expired, 6. The amount oftixed or base monthly rent under the Lease is $5,500.00. Tenant bas paid rent when due pursuant to the terms of the Lease through the month of December, 2005, 7. Tenant has no current right of offset against rent and no claims against Land.lord, the Premises or the Property. 8. Landlord has performed all work and other conditions required to be perfonned by La11dlord and paid to Tenant any allowance or other pa)ment due to such Tenant in connection therewith. 9. Tenant is in sole possession of the Premises, and there are no subleases under the Lease. 10. The amount of the security deposit held by Landlord UIlder the Lease is $ 0.00. 11. The Lease contai,ns no outstanding options or rights oftirst refusal or orfer to purchase or lease the Premises, the Property or any part thereat: Tenant docs hereby consent and agree that, in addition to the parties 10 whom this Tenant Estoppel Certificate is addressed, this Tenant Estoppel Certificate may also be specifically relied upon by Silver Spring Square I. I, LLC and Silver Spring Square II, LP, and their successors and <.lssigns, in connection with the acquisition of the Property and the Premises from Land{ord. .' BY~cz,~-:__ Name: Title: - C",!</.C... ~^"'h1' ?^",,/4;'" TIle wldersigned is duly authorized to execute this Certificate:. [Tenant] r-\GTt'Z.O Crcmo <?- :Scns Ire Date:_L:::l- eL.._:~_, 200M < '. " OMEAST #9412159 v1 2 EXHIBIT D Termination Notice and Proof of Receipt SILVER SPRJNG SQUARE II, L.P. 150 Monument Road, Suite 406 Ba1a Cynwyd, P A 19004 (610) 747-1200 Via certified mail January i9, 2006 Mr. Eric Cremo Metro Cremo & Sons, Inc. 6430 Carlisle Pike Mechanicsburg, P A ]7050 NOTICE TO METRO CREMO & SONS, TNC., TENANT OF 6430 CARLISLE PIKE, SILVER SPRlNG TOWNSHIP, CUMBERLAND COUNTY, PENNSYLVANIA Dear Mr. Cremo: ., < .:::.\'";" Please be advised that the property located at 6430 Carlisle Pike, Silver Spring Township, Cumberland County, Pennsylvania (the "Prooertv"), was sold on January 17,2006, by Donald and Miriam Carter to Silver Spring Square II, L.P. This letter serves as termination of your month-to-month lease. You must vacate on or before March I, 2006. Until March ], 2006, or your departure if prior to that date, all rent and other charges payable and other communications pursuant to your lease at the Property should be made to Silver Spring Square II, L.P. and sent to the following address: ]50 Monument Road, Suite 406 Bala Cynwyd, PA ]9004 All of Donald and Miriam Carter's interest in your lease is now held by Silver Spring Square II, L.P., as owner of the Property and any and all security deposits held by the Carters have been conveyed and transferred to Silver Spring Square II, L.P. Silver Spring Square II, L.P. is now responsible for such deposit. Thank you for your time and attention to this matter. Please do not hesitate to contact me at 610 747. ]200 if you have any questions. Sincerely, ealty Group, Inc., its General Partner , < ., .~ h , 1 .. . COMPLETE THIS SECT/ON ON DEUVERY . . Complete Items 1, 2, and 3.:AJso 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. . Attach this card to the back of the mallplece, or on the front if space penn its. 1. Article Addressed to: 1/h.~~r ~Ourff~,k /;'/30 CtiJrWf/fJK 1f1uid/tU' Ii ;7050 I A. Signature ~ o Addressee x B. DVes o No 3. SpMce1YPe ji9-Certlfied Mall 0 Express Mall o Registered 0 Return ReceIpt for Merchandise o Insured Mall 0 C.O.D. 4. Restricted DeUvery? (Extra Fee) 0 Yes 2. Article Number (r_'erIromSIHVlcelebel) 7001 0320 0002 2757 1214 PS Form 3811, February 2004 Domestic Return R"""'pt 102595-02.M-1S40 U.S. Postal Service , CERTIFIED MAIL RECEIPT (Domestic Mall Only; No Insurance Coverage ProVided) EXHIBIT E Notice to Quit and Proof of Service RICHARD H. W1X THOMAS L. WENGER DEAN A. WEIDNER STEVEN C. WILDS THERESA L. SHADE WIX. DAVID R. GETZ STEPHEN J. DZURANIN STEVEN M. WILLIAMS JEFFREY C. CLARK PETER G. HOWLAND STEPHEN P. SMITH KATHRYN L. WIX A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 508 NORTH SECOND STREET POST OFFICE BOX 845 HARRISBURG, PENNSYLVANIA 17108.0845 4705 DUKE STREET HARRISBURG. PA 17109.3099 (717)652-8455 FAX (717) 652-6290 . ". WIX, WENGER & WEIDNER (717) 234-4182 FAX (717) 234.4224 www.wwvvpalaw.com . AI~Q Member M"s~:IehusatU 8:1r April 12, 2006 ., ." 2,-,,":,, ,_ Metro Cremo & Sons, Inc. ' tla Cremo's Variety Outlet 6430 Carlisle Pike Mechanicsburg, PA 17055 Re: Silver Spring Square II, LP NOTICE TO QUIT Our File No. 7922/13901 Dear Sirs: This office represents Silver Spring Square II, LP ("SSS"), the owner of the above-referenced property on which your business is located (the "Property"). By letter dated January 10, 2006 and received by you on January 23, 2006, SSS terminated your month to month lease and instructed you to vacate the Property by March 1, 2006. As an accommodation to you, SSS subsequently agreed to allow you to remain in the Property through April 16, 2006. This letter serves as formal notice to quit. You are hereby directed to vacate the Property no later than April 30, 2006. Your failure to do so will result in appropriate action being taken by SSS to have you removed from the Property. Please note that your failure to vacate the Property will cause a delay in SSS's development process. This delay will cause damages to SSS in the amount of at least $9,000 per day. This amount includes only the construction financing interest that will be incurred; SSS's total damages will likely far exceed this amount. In the event that you fail to vacate the Property as instructed in this notice, SSS will seek to hold you (and your principals) responsible for all damages it sustains. , ! :.': =-~ This notice is being personally served on you in accordance with the requirements of the Pennsylvania Landlord and Tenant Act. However, because we understand that Robert Walker may represent you, we are provldlr;lg him a courtesy copy of this notice as well. / Sincerely your( Wix, we~'7i & Weidner .il By:,/ f t ,'Steven M. Williams .., '1 ::,.;:t WIX, WENGER & WEIDNER Metro Cremo & Sons, Inc, April 12, 2006 Page 2 / , HAND DELIVERED or POSTED cc: Silver Spring Square II, LP Robert M. Walker, Esquire r ! ~'.. =-~ , : Peter G. Howland AFFIDAVIT OF SERVICE OF NOTICE TO VACATE Peter G. Howland, Esquire, being duly sworn according to law, deposes and says: 1. I am a competent adult, age 34 years, who is employed as an attorney with the law office of Wix, Wenger & Weidner; 2. On April 13, 2006, at 8:25 a.m., I selVed a Notice to Vacate, a copy of which is attached hereto, on the tenant named therein by hand delivering it to Larry Cremo. 3. SelVice of the Notice to Vacate occurred at Cremo's Variety Outlet, 6430 Carlisle Pike, Mechanicsburg, PA. Date: i-\p"-'"\ 13. I Z.0O iO Sworn to and subscribed to before me, a Notary Public, this JL day of A !J(i1 2006. N~#cI~ My Commission Expires: F:\smw\7922 (SILVER SPRING SQUARE 11, LP)\13901 (CREMO'S)\DOCUMENTSIAFFIDAVIT OF SERVICE.doc NOTARIAl SEAl AAff T WILLIAMS Notary PubHc HARIlIS8URG CITY. DAUPHIN COUNTY My Commission Explle, Mar 7. 2009 Date: ~t'_\ Z6,zrob " tla VERIFICATION I, Powell W. Arms, Vice President of Regency Realty Group, Inc., general partner of SSS, have read the foregoing Complaint and hereby affirm and verify that, to the best of my knowledge, information and belief, all of the statements made therein are true and correct, and that false statements made therein may subject me to the penalties of 18 Pa.C.SA Section 4904, relating to unsworn falsification to authorities. Date: '1lz.1 {Db REGENCY REALTY SILVER SP SQU . Va VERIFICATION I, Powell W. Arms, Vice President of Regency Realty Group, Inc., general partner of SSS, have read the foregoing Petition and hereby affirm and verify that, to the best of my knowledge, information and belief, all of the statements made therein are true and correct, and that false statements made therein may subject me to the penalties of 18 Pa.C.SA Section 4904, relating to unsworn falsification to authorities. Respectfully Submitted, WIX, WENGER & WEIDNER REGENCY REALTY GROUP, INC., : IN THE COURT OF COMMON PLEAS OF Va SILVER SPRING SQUARE II, LP : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. : NO. METRO CREMO & SONS, INC., Va CREMO'S VARIETY OUTLET, Defendant : CIVIL ACTION - EQUITY CERTIFICATE OF SERVICE I hereby certify that the foregoing Petition was hand delivered this day to Defendant's counsel, Robert M. Walker, Esquire, Johnson, Duffie, Stewart & Weidner, 301 Market Street, P.O. Box 109, Lemoyne, PA 17043-0109, who was authorized to, and did, accept service of this Petition on behalf of Defendant. Date: May 1, 2006 By: . I ., ( ... ')., "> ~ Alison A Zortman,,-- gal Assistant 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorney for Plaintiff . ~ MAY 01 2t106f'" REGENCY REALTY GROUP, INC., tla SILVER SPRING SQUARE II, LP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. a- ;)4]/ C~uLL 1<dLY'v METRO CREMO & SONS, INC., tla CREMO'S VARIETY OUTLET, Defendant. CIVIL ACTION - EQUITY ORDER AND NOW, this J6+aay of 'hJl(' 2006, upon consideration of Plaintiffs Petition for Preliminary and Permanent Injunctive Relief, or in the Altemative, for an Expedited Hearing on the Merits of the Underlying Action and the Complaint attached thereto, a Rule is hereby issued to Defendant to show cause why the relief sought by Plaintiff in the foregoing Petition should not be granted. A hearing is hereby scheduled for ~"Jt _, May 3. .,2006 at EO -f ,m. in Courtroom S of the Cumberland County Court of Common Pleas. By the Court: ~L lW\ . \ J. Distribution: ~Iaintiff: Steven M. Williams, Esquire, Wlx, Wenger & Weidner, 508 North Second Street, P.O. Box 845, Harrisburg, PA 17108-0845 ~3,-\ - L\ \&"~ ~ Defendant: Robert M. Walker, Esquire, Johnson.. Duffie. Stewart & Weidner, 301 Market Street, P.O. Box 109, emoyne, PA 17043-0109 1v\- !\.:>~-o ~ ,",,':1\\\;' ~'(':_,,:' c>,~j \..,r~l"-,\ :,' ,,; .:,'1 -'- ,> :-~:>i'n\\~ GU :s Hd \ - J:i!\<I (l~\lL \"'I'."i' . ",\-\).' jO r,t~\f,;,.I....;I'<'-~'" -' C.::,',,! .::-I\::n\:1 WIX, WENGER & WEIDNER Steven M. Williams, 1.0. # 62051 508 North Second Street P,O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff REGENCY REALTY GROUP, INC., tla SILVER SPRING SQUARE II, LP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff NO. 0(,,- ;)L{21 GULL ~~ v. METRO CREMO & SONS, INC., tla CREMO'S VARIETY OUTLET, Defendant : CIVIL ACTION - EQUITY PLAINTIFF'S PETITION FOR PRELIMINARY AND PERMANENT INJUNCTION. OR IN THE ALTERNATIVE. FOR AN EXPEDITED HEARING ON THE MERITS OF THE UNDERLYING ACTION AND NOW, comes Plaintiff, Regency Realty Group, Inc., tla Silver Spring Square II, LP ("SSS"), by and through its attorneys, Wix, Wenger & Weidner, and files this Petition for Preliminary Injunction and Permanent Injunction, or in the Alternative, for an Expedited Hearing on the Merits of the Underlying Action, alleging the following in support: 1. Contemporaneously with the filing of this Petition, SSS filed its Complaint in this action. A true and correct copy of SSS's Complaint is attached hereto as Exhibit A and each and every allegation thereof is incorporated herein by reference as if fully set forth. 2. SSS is the owner of the property at 6430 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania on which Defendant is currently operating its business (the "Property"), having acquired it on January 17, 2006 from the prior owner, the Carters. 3. SSS is in the process of developing the Property and adjacent properties into a class A shopping center (the "Center"), with a required opening date of March 2007. 4. Through January 17, 2006, Defendant occupied the Property pursuant to the oral Lease it had with the Carters. 5. The term of the Lease was month-to-month, terminable upon one month's notice, and it contained no renewal or extension options. 6. On or about December 29, 2005, in connection with the pending sale of the Property to SSS, Defendant executed a Tenant Estoppel Certificate (the "Certificate"), which set forth the terms of the Lease, and on which, by its terms, SSS was entitled to rely in connection with its purchase of the Property. 7. By letter dated January 19, 2006 and received by Defendant on January 23, 2006, SSS notified Defendant that the Lease was terminated and instructed Defendant to vacate the Property by March 1, 2006. 8. In order to ensure timely completion of the construction of the Center, SSS needed Defendant to vacate the Property by March 1, 2006. 9. On or about February 28, 2006, as an accommodation to Defendant, SSS agreed to allow Defendant to remain on the Property through April 16, 2006, and Defendant then agreed that it would vacate the Property by April 16, 2006. 2 10. SSS was able to relax its March 1 deadline by "surgically" doing site work in the area of the Property. While this relaxation cost SSS time and extra money in the inefficient use of contractor time, SSS agreed to absorb the cost in an effort to accommodate what SSS believed was Defendant's necessary timeframe for vacating the Property. 11. SSS intended to begin demolition of the building on the Property as of April 17 , 2006. 12. On or about April 11, 2006, Defendant informed SSS that it did not intent to vacate the Property until Defendant's new building was completed, which was then expected to be in or about September 2006. 13. Prior to April 11, 2006, SSS had no notice, knowledge or indication that Defendant intended to remain in the Property after April 16, 2006. 14. Because Defendant's remaining in the Property is not an option, on April 12, 2006, SSS served a notice to quit on Defendant, which directed Defendant to vacate the Property no later than April 30, 2006. 15. Defendant has failed and refused to vacate the Property notwithstanding the proper termination of the Lease and proper service of the notice to quit. 16. Defendant's failure to vacate the Property is impeding SSS's ability to continue in its construction plan and is putting in jeopardy SSS's ability to meet its construction deadlines. 17. I n order to meet its construction and completion deadlines, SSS must be able to demolish the building on the Property immediately. 3 18. First, the other end of the building on the Property sits atop the new signalized access-way into the Center from the Carlisle Pike. This is the only access into the Center from the Carlisle Pike, with the exception of a right turn-in only access further east. 19. In addition, most of the underground main utility services run in this area and through the parking area that currently serves Defendant's business. 20. This area must be complete in order for the Center to open in March 2007. 21. The work to complete this access-way will take six months. 22. In order to meet its construction deadlines, SSS must be able to begin this work immediately because, as part of this work, all utilities must be installed and then the entire area must be asphalt paved. 23. Neither the Township nor Penn DOT will allow asphalt paving to take place much beyond October 15, and the asphalt plants do not thereafter open until late March 2007, which is beyond SSS's date for the opening of the Center. 24. Target is the anchor for the Center and has no obligation to open if the Center is not completed in time for the March 2007 opening. 25. Target only opens stores three times a year: in March, July and October. 26. If SSS is unable to complete the Center as scheduled, the best case scenario regarding Target is that there will be at least a three month delay in the Center's opening. 4 27. If SSS is unable to complete the Center as scheduled, the worst case scenario is that Target will walk away from the Center and refuse to open, which it has the right to do under its agreement with SSS. 28. All of the smaller tenants of the Center have their opening and rent commencement dates tied in to Target's start date. If SSS cannot meet its deadlines and Target decides not to open in the Center, SSS could be left with no tenants at all. IfTarget decides to stay in the Center and open at a later date (i.e., in July or October), at a minimum, the opening of the other businesses in the Center could be delayed until such date as well. 29. In such case, SSS would experience damages in at least the form of lost rentals and additional interest payments on its construction financing. In the event that Target remains and merely opens at a later date, at a minimum, these damages could exceed $812,500. If Target opts to not open in the Center, SSS's damages could exceed $50,000,000. 30. Second, the portion of the building currently occupied by Defendant sits atop a pad for a new building to be erected for and occupied by Longhorn Steakhouse, a prospective tenant in the shopping center. Delivery of the completed building to Longhorn is required by September 1, 2006. 31. In order to meet this deadline, SSS must demolish the current building and utilities, regrade the site to match the grade of the rest of the Center, bring underground utilities to the pad, construct the building and pave the lot. This work will require four months to complete. For each day past May 1, 2006 that Defendant remains in 5 the Propery, SSS's ability to meet Longhorn's deadline becomes less likely or impossible. 32. SSS is entitled to immediate and exclusive possession of the Property. 33. Because the Lease has been properly terminated, Defendant has no right or entitlement to remain in possession of the Property, and its failure to vacate is in direct conflict with SSS's right to immediate and exclusive possession thereof. 34. Because it expected that Defendant would vacate, SSS accepted no rental payments from Defendant for April 2006. Reauest for Preliminary and Permanent Iniunction 35. Paragraphs 1 through 34 hereof are incorporated herein by reference as if fully set forth. 36. SSS seeks immediate preliminary and permanent injunctive relief in the form of an Order: a. declaring the SSS has the immediate and exclusive right to possession of the Property; b. declaring that Defendant has no rights to continue in possession of the Property; and c. requiring that Defendant immediately vacate the Property and turnover possession thereof to SSS. 37. Because SSS is entitled to immediate and exclusive possession of the Property, SSS is entitled to the injunctive relief sought. 6 38. The issuance of the requested preliminary injunction is reasonably suited to address SSS's rights and prospective damages and Defendant's wrongful action. 39. Because SSS properly terminated the Lease, SSS will succeed on the merits of its underlying claim. 40. The requested injunctive relief will prevent irreparable injury to SSS. 41. In contrast, because Defendant has no right to possess the Property, Defendant will not be prejudiced or unduly inconvenienced or damaged by the issuance of the injunctive relief requested herein. 42. Defendant is being unjustly enriched as a result of its unlawful possession of the Property. 43. Unless this Court immediately grants the requested injunctive relief, SSS will suffer immediate, substantial, and irreparable harm in at least the following respects: (a) SSS's inability to possess and enjoy its Property, which it has the immediate and exclusive right to possess and enjoy and which Defendant has no right to possess or enjoy, will continue; (b) The delay caused by Defendant's failure to timely vacate the Property will irreparably prevent Plaintiff from completing the Center in time for the required turnover to Longhorn on September 1, 2006 or the opening of the rest of the Center in March 2007; (c) Plaintiffs inability to open the Center in March 2007 could result in Target choosing not to open in the Center at all, which would allow all of the other tenants to avoid their leases; 7 (d) The entire business of SSS will fail, causing it to lose substantial business opportunities and profits that are incalculable; (e) SSS will lose its good will and reputation, and likely be unable to fill the Center with class A tenants; (f) SSS will have lost its substantial investment of time, money, and energy in promoting its business, all of which is incalculable; (g) Plaintiff will be deprived of its just revenues based on the Defendant's conduct, all of which is incalculable; and (h) SSS will, at a minimum, incur losses in an amount that will likely exceed $812,500, and could quite realistically exceed $50,000,000. 44. SSS has no adequate remedy at law to redress the harm and injury that will be caused by Defendant's unlawful, unauthorized, wilfull and wanton actions. 45. Injunctive relief is appropriate where, as in this case, one who has no right to occupy and possess property refuses to give up possession to the one who has the right to occupy and possess the property. See, e.g., Touraine Partners v. Kelly, 333 Pa.Super.196, 482 A.2d 240 (1984). WHEREFORE, SSS respectfully requests that this Court enter a preliminary and permanent injunctive Order: a. declaring the SSS has the immediate and exclusive right to possession of the Property; b. declaring that Defendant has no rights to continue in possession of the Property; 8 c. requiring that Defendant immediately vacate the Property and tumover possession thereof to SSS; and d. granting such other relief as this Court deems just and appropriate. Alternative Reauest for Exoedited Hearina on Merits of Underlvina Action 46. Paragraphs 1 through 45 hereof are incorporated herein by reference as if fully set forth. 47. SSS seeks an immediate hearing on the merits of the underlying action. 48. As set forth more fully above: a. SSS is the owner of the Property; b. SSS has properly terminated the Lease; c. SSS has properly served a Notice to Quit on Defendant; d. SSS is entitled to immediate and exclusive possession of the Property; e. Defendant has no right to continue in possession of the Property. 49. There are no issues to be determined in the underlying action other than SSS's right to immediate and exclusive possession of the Property. 50. The parties do not need to conduct discovery of any kind in connection with the merits of the underlying action. 51. Defendant's continued occupancy of the Property is impeding SSS's ability to develop the Property and construct the Center. 52. Time is of the essence for the vacating of the Property by Defendant if SSS is to avoid damages, as aforesaid. 9 WHEREFORE, SSS respectfully requests that this Court set an immediate hearing date on the merits of the underlying action so that the matter can be resolved immediately to minimize the significant damages that SSS will otherwise incur if Defendant's unlawful possession of the Premises is allowed to continue. Date: ." 1 IDe. even M. Williams, 1.0.# 62051 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorney for Plaintiff F:\smwl7922 (SILVER SPRING SQUARE II. LP)113901 (CREMO'S)IDOCUMENTSllnjunction Petition.doc 10 - ['{LI'bl+ p. WIX, WENGER & WEIDNER Steven M. Williams, l.D. # 62051 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff REGENCY REAL TV GROUP, INC., tla SILVER SPRING SQUARE II, LP : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. METRO CREMO & SONS, INC., tla CREMO'S VARIETY OUTLET, Defendant : CIVIL ACTION - EQUITY NOTICE You have been sued in court. If you wish to defend against the claims set forth in he 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 LAWTER, 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 32 South Bedford Street Carlisle, Pennsylvania (717) 249-3166 REGENCY REALTY GROUP, INC., tla SILVER SPRING SQUARE II, LP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. METRO CREMO & SONS, INC., tla CREMO'S VARIETY OUTLET, Defendant CIVIL ACTION - EQUITY COMPLAINT AND NOW, comes Plaintiff, Regency Realty Group, Inc., tla Silver Spring Square II, LP ("SSS"), by and through its attorneys, Wix, Wenger & Weidner, and files this Complaint, al/eging the following in support: 1. SSS is a Delaware limited partnership, qualified and authorized to do business in Pennsylvania, whose business address is 150 Monument Road, Suite 406, Bala Cynwyd, Pennsylvania 19004. SSS's general partner is Regency Realty Group, Inc., 2. Defendant is Metro Cremo & Sons, Inc., tla Cremo's Variety Outlet, a Pennsylvania corporation that maintains its primary place of business at 6430 Carlisle Pike, Mechanicsburg, Pennsylvania 17055 (herein, the "Property"). 3. Jurisdiction is proper in this Court because the property at issue in this case is located in Cumberland County. 4. Through January 17, 2006, Defendant occupied the Property pursuant to an oral lease (the "Lease") it had with Donald L. Carter and Marion Carter (the "Carters"), who were the owners of the Property. 5. The term of the Lease was month-to-month, and it was terminable upon one month's notice. 6. The Lease contained no renewal or extension options. 7. On January 17, 2008, SSS purchased the Property from the Carters. A true and correct copy of the Deed into SSS is attached hereto as Exhibit A and is incorporated herein by reference as if fully set forth. 8. In connection with SSS's purchase of the Property, SSS took assignment of the Lease pursuant to an Assignment and Assumption of Leases between SSS and the Carters, which was executed on January 17, 2006 (the "Assignment"). A true and correct copy of the Assignment is attached hereto as Exhibit B and is incorporated herein by reference as if fully set forth. 9. On or about December 29, 2005, in connection with the pending sale of the Property to SSS, Eric Cremo, President of Defendant, executed a Tenant Estoppel Certificate (the "Certificate"). A true and correct copy of the Certificate is attached hereto as Exhibit C and is incorporated herein by reference as if fully set forth. 10. The Certificate set forth the terms of the Lease, and provided that SSS may rely on its provisions in connection with its purchase of the Property. 11. On January 19, 2008, SSS sent to Defendant a notice of termination (the "Termination Notice"), which was received by Defendant on January 23, 2006. True and correct copies of the Termination Notice and proof of receipt by Defendant are attached hereto as Exhibit D and are incorporated herein by reference as if fully set forth. 2 12. In the Termination Notice, SSS notified Defendant that the Lease was terminated and instructed Defendant to vacate the Property by March 1, 2006. 13. As an accommodation to Defendant, SSS subsequently agreed to allow Defendant to remain on the Property through April 16, 2006. 14. On or about April 11 , 2006, Defendant informed SSS that it did not intend to vacate the Property until Defendant's new building was completed, which was then expected to be in or about September, 2006. 15. On April 12, 2006, SSS served a notice to quit on Defendant, which directed Defendant to vacate the Property no later than April 30, 2006. True and correct copies of the notice to quit and proof of its service are attached hereto as Exhibit E and are incorporated herein by reference as if fully set forth. 16. Defendant has failed and refused to vacate the Property notwithstanding the proper termination of the Lease and proper service of the notice to quit. 17. SSS is entitled to immediate and exclusive possession of the Property. 18. Because the Lease has been properly terminated, Defendant has no right or entitlement to remain in possession of the Property, and its failure to vacate is in direct conflict with SSS's right to immediate and exclusive possession thereof. 19. SSS is developing the Property and adjacent properties into a shopping center, and Defendant's failure to vacate the Property is impeding SSS's ability to continue in its construction plan. 3 WHEREFORE, SSS respectfully requests that this Honorable Court enter judgment in its favor and against Defendant for possession of the Property and grant such other relief as this Court deems just and appropriate. Respectfully Su itted, Date: ,; I. )" c -, By: Steven M. Williams, 1.0. # 62051 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff 4 EXHIBIT A Deed ., .,;.) ,"),0 . I...{...... :~ RECORD & RETURN TO Stewart Title Guaranty Company 900 West Valley Road, Ste 400 Wayne, PA 19087 () 'f- O~D::Jo'1 ......... ,...'" ...:..;t.:,L .5 ., )"1 _.,.."- I, -.' DEED ;-'.~:. \::::~ :", ~'~""--" ...~.~~jh~;[). :';i7 !i;:::~ ", C. ':~~".:L:,..:r ~~., . " .;.. ~GuS JRN 25 Rl'1 S 03 This Indenture, Made the 17th day of January, 2006, Between DONALD L. CARTER and MARIAN E. CARTER, husband and wife, individual residents of the Commonwealth of Pennsylvania (hereinafter collectively called the Grantor), of the first part, and Sll..VER SPRlNG SQUARE n. L.P., a De]aware limited partnership (hereinafter called the Grantee). of the second part, Witnesseth tbat the said Grantor, for ancI in consideration of the swn of One and no/]OG ($1.00) Dollars lawful money of the United States of America, unto it well and truly paid by the said Grantee, at or before the sealing ancI delivery hereof, the receipt whereof is hereby acknowledged, has granted, bargaiIwd and sold, released ancI confirmed, and by these presCJ:lls does grant, bargain and sell, release and confirm unto the said Grantcc:, its successors and assigns, All that certain property described in Schedule A, attached hereto TD&ether with all ancI singular the buildings and improvements, ways, streets, alleys, driveways, passages, waters, water-iXlurses, rights, liberties. privileges, hereditaments and appurtenances, whatsoever unto the hereby granted premises belonging, or in any wise appertaining, and the reversions and remainders, rents, issues, and profits thereof, ancI all the estate, right, title, interest, property, claim ancI demand whatsoever of the said Grantor. as well at law as in equity, of, in, and to the same and every part thereof. To have and to bold the said lot or pi= of ground above described, with the buildings and improvements thereon erected, hereditaments and premises hereby granted, or mentioned ancI intended so to be, with the appurtenances, untn the said Grantee, its successors and assigns, to and for the ocly proper use ancI behoof or the said Grantee, its successors ll1ld assigns forever. under ll1ld subject as aforesaid. BOOK 272 PAGE44.38 DlAEAST_18223v2 . And the said Grantor, for itself and its successors does covenant, promisc and agree, to and with thc said Grantee, its successors and assigns. by these presents, that it, the said Grantor, and its successors, all and singular thc hcredillimeDls and premises hereby granted or mentioned and intendcd so to be, with the appurtenances, unto the said Grantee, its successors and assigns, against it, the said Grantor, and its SUCCCllSOrs and agBinst all and every person and persons whomsoever lawfully claiming or to claim the same or any part thereof, by, from or undcr him, her, it, them or any of them, shall and will Warn.Dt and forever Defend, under and subj eet as aforesaid. {Signatures on following page] [Remainder ofpagc intentionally blank] CUlberland Cau.1:Y Recorder of De,dS InstrWUlnt Filin~ I lmRECTtD I Receipt~ 5916Bl Instrl lOO6-o02603 112512006 09:09:35 Remksl STEUART TIllE SILYI;R SPRINS ~ DtED DEED - WRIT DEED - RTT STATE CUlIlJEIUHD VAlLEY SilVER SPRllfl TIIP DEED - AM .J.C.S. I A,T.I, en lIU'RIll'EKENT fKD REC. IMPRVlIT FUND 01ec~ ml C!ieckl6m lot.] Rlclived....... DMEASTm18223 v2 2 bOOK 272 rACE4439 16.50 ,SO 40000.00 200'JO.00 20000,00 !l.SO 10.00 2.00 3.00 ISO,Oi,J.oo \.50 ISM4l.S0 In Witness WhereGf. the said Grantor has duly executed this Deed on the date first above written, DONALD L. CARTER \'.. '~"~ ~ . ~.._. By: ~ "" ,....-,,_ MARIAN E. CARTER BY~~: -. -' /~v The address of the above-named Grantee is: ] 50 Monument Road, Suite 406 BalaCynwyd,PA ]9004 .~t: ~ On behalfOf~e OMEAST ~18223 .. 3 bOOK 272 rACf4440 - -....__.._--,--------~- . .... . .. , .. ..--,.....'..~....- COMMONWEALTH OF PENNSYLVANIA CC;>UNTY OF c.l.uoo,.-, bO/I~ : SS ON THIS, the 11h day of January, 2006, before me, the undersigned officer, personally appeared Donald L. Carter known to me to be the person whose IUIll1C ill subscribed to the within Special W manly Deed, and aoknowledged that he executed the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set my hand and official seal. .--~ ~~~ -~ Notary Public My Commission expires: (Notarial Seal) HOTNIIlAlIlAl, STEVEN J. FISHMAN, NOTARY P\JBlJO SlU1H ICllUlOIIlllP. QllMYOFClMlElWtD f8f COMMISSION EXPlI\ES SEPTE!.IlEII3, 2007 . DUEAST '9418223 Y2 BOOK 272 PAGr4441 COMMONWEALTH OF PENNSYLVANIA COUNTY OF GtM~ fA W : SS ON THIS, the J 'I'!' day of January, 2006, before lIle, the undersigned officer, personal]y appeared Marian E,cartei- known to me to be the person whose name is subscribed to the within Special Warranty Deed, and acknowledged that she exec~ the same for the purposes therein contained. IN WITNESS WHEREOF, I hereunto set lIlY hand and official seal. ~- ~. ."~> Notary Public My Connnission expires: (Notarial Seal) .. ~.......~....- I tlOTARlAl.seAL STif\!:<nl ,I, f'OHMAN, NOTARYPUBUC I Si...'!II ';"'i:',':Tw~ 1\if' ,CX!lJt/lYOF CUIIlEIU/Cl , " ,. . . . ........ o/r'fDES SfI'l'EMSER 3, 2001 . ....... ~Afl\AI.8EAL P\lllUO smEN J. f1StlIIAN~~CI.IIIJ!II.Hlll tQllll\=::iR!:SS~3,2WT "'" .- OMEAST 11941 S223 ,2 BOoK 272 PAcr4442 ." '.'-'.~"'-'..~"'''.' .... . LEGAL DESCRIFIlON ALL THAT CERTAIN tract or parcel ofland situate in Silver Spring Township, Cumberland County, Pennsylvania, fronting along the Northern Side ofCarlis]e Pike (S.R. 00] 1); said tract oflaDd being 8pproximatcly 1,500 feet wC!!t of the intersection of Carlisle Pike and Lambs Gap Road (S.R. 1011) and bounded and described in IICcordance with a survey made by Herbert, Rowland & Grubic, Inc. dated ]2/]5/05 project #3454.001 as follows, to wit: BEGINNING at the intersection of the dividing line oflands NIP of Donald 1. and Marlon E. Carter and Lands NIP of Silver Spring Theatrca with the Northern Legal Right of Way Line ofCarlis]e Pike; thClDCe alooglaDds NIF of Silver Spring Theatres North 01 degrees 43 minutes 211ecom11 West 679.00 feet to land NIF of Silver Spring Speedway, Inc.; thClDCCl alODg laid lands NIF of Silver Spring Speedway, Inc. North 88 degrees 16 minutes 39 seconds Base 495.34 feet; thClDCe continuing along said lands of Silver Spring Speedway, Inc. and along lands NIF of Alan G. Kreitzer South 04 degrees 43 minutes 39scconds West 683.32 feet to the Northern Legal Right of Way Line of Car Us Ie Pike; thence along said legal Right of Way Line of Carlisle Pike South 88 degrees ]6 minutes 391l<<Ond.t West 4]8.58 feet 10 lands N/F of Silver Spring Theatres, being the place of beginning. BEING A COMPREHENSIVE DESCIUPTlON COIIIiRflng of two parce]s in the following deed grants: BEING the same premises which West Shore Public Libruy Asaocialion, I. Pcnnsylvania non-profit colpOl'llion, by Indenture dated JUDe 22, 1981 and recorded in the Recorder ofDceds, in and for tho CoUllty of Cumberland, aforesaid, in Deed Book 129 page 627 &C., srmted and c:ouveyed unto Donald L. Carter and Marian E. Carter, husband and wife, in Cee. AND BEING the same premises which Commonwealth National BIIIIk, Executor of the Will of StaDleyN. Annitagllby deed daledMay6, 1997 and recorded in the Recorder ofDeecb, in and for the County of Cumberland in Misc. Book D27 page 781 granted and conveyed unto Donald 1. Carter, in fee. BEING Parcel #38-]9-1608'()04. and #38-19-1608-004A. 1 Certify this to be recorded ltl Cumberland County P A , .' -.- ". ...'" ,,"_..r-"'" ~~<!...4- , .~,"".".'" ,,, t:1' - . '. ~~'.::t,; \\' ......: 1~ \ ..:....:1... '':S,. Recorder of Deeds 806K 272 PAGE4443 -"'-r EXHIBIT B Assignment and Assumption of Leases ASSIGNMENT AND ASSUMPTION OF LEASES THIS ASSIGNMENT AND ASSUMPTION OF LEASES (this "!illiilllment") is made the -a.J'day of January, 2006, by and between DONALD L. CARTER and MARIAN E. CARTER, individual residents of the Commonwealth ofPelUlsylvania (collectively. "Assignor"). and SILVER SPRING SQUARE n, L.P., a Delaware limited partnership ("Assignee"). WITNESSETH: FOR GOOD AND V ALUADLE CONSIDERATION, receipt whereof is hereby acknowledged, and intending to be legally bound, Assignor and Assignee hereby agree as follows: I. In connection with that certain Agreement of Sale (the "Al!reement") dated March 4,2004 by and between Assil,'Dor, as seller, and TCH Realty & Development Co., LLC ("TCH"), as purchaser, as an;le~ed by that certain Letter Agreement dated February 4, 2005 from Steven Fishman, and as filitl'1er amended by that certain Letter Agreement dated April 14, 2005 from Powell Anns, which Agreement has been assigned by TCH to Assignee, for property located in Silver Spring Township, Cumberland County, Pennsylvania, and all other property expressly to be transferred thereunder (thc "Provertv''), Assignor hereby assigns, transfers, grants and conveys to Assignee all of Assignor's right, title and interest in and 10 (i) those certain leases (the "Leases") associated with the Property as identified on Exhibit A, attached hereto and made a part hereof; (ii) the security deposits listed on Exhibit B, attached hereto and made a part hereof (the "Securitv Denosits'') held pursuant to the Leases; and (iii) any and all guaranties made or given by any persons or entities with respect 10 the obligations of the tenants under the Leases and which have previously been obtained by Assignor (the "Guaranties"). 2. Assignee hereby accepts the foregoing assignments and assumes all of the duties, obligations and liabilities of Assignor accruing under or in connection with the Leases on and after the date of this A.,:signment. 3. Assignor hereby agrees to promptly pay to Assignee any rent or other amounts received by Assignor on or after the date hereof with respect to any Lease at the Property, to the extent such rent or other amount is applicable to any period on or after to the date hereof. 4. Assignee hereby agrees to promptly pay to Assignor any percentage rent received by Assignee from Advance Stores Company, Incorporated with respect to its Lease at the Property, to the extent such percentage rent is applicable to any period prior to the date hereo!:] 5. Assignor hereby warrants to Assignee that this Assignment conveys to Assignce on the date hereof title to tIlc Lenses, Security Deposits and Guaranties. free and clear of all mortgagcs, pledges, liens (including mechanic's and materialman's liens), security interests, consignments, conditional sale agreements, conditions, charges, agrcemcnts, other restrictions, claims and encumbranccs of any kind. and Assignor docs hereby warrant and shall defend Assignee against any person lawfully claiming the same or any part thereof. OMEAST #941 8229 v2 ;~ 6. Assignee shall indemnitY and hold Assignor hannless from and against any actions, suits, proceedings or claims. and all costs and expenses (including, without limitation, reasonable anorneys' fees incurred in connection there\\ith), based upon or arising out of any breach or allegcd brcach of any of the Lcases or out of any other statement of facts connected "ith the Leases occurring or alleged to have occurred after the date hereof, or from the proper application or return of any Security Deposits or other deposits, if any, due tenants under the Leases, each to the extent paid OVer by Assignor to Assignee and so received by Assignee under and pursuant to the Leases. Assignor shall indemnify and hold Assignee haml!ess from and against any actions, suits, proceedings or claims, and all costs and expenses (including. without limitation, reasonable attorneys' fees incurred in connection therewith), based upon or arising out of any breach or alleged breach of any of the Leases or out of any other statement of facts connected with the Leases occurring or alleged to have occurred up to Dnd including the date hereof. or from the proper application or return of any Security Deposits or other deposits, if any, due tenants under the Leases, each to the extent not paid over by Assignor to Assignee or not received by Assignee under and pursuant to the Leases. This Assignment shall be binding upon and inure to the 1.\~*!it of Ass.ignor and Assignee and their respective heirs, executors, '''' 11. , administrators, successors and assi'gns. 7, All of the provisions of this Assignment shaU survive the transfer of the Property to Assignee and shall be binding upon and inure to the benetit of dIe parties hereto and their respective heirs. personal representatives, successors and assigns. 8. The foregoing assignments are made subject to the rights and obligations and representations and warranties of Assignor and Assignee under the Agreement. and thc covenants, representations, warranties and indemnities, if any, contained in the Agreement and pertaining in any way to the Leases and other interests, property and rights assigned herein, are incorporated herein as though fully set forth. 7, This Assignment may be exeeuted in several counterparts, each of which counterparts shall be deemed an original instrument and all of which together shall constitute a single Assignment. [Signatures on following page] [Remainder of page intentionally left blank] Oi\tEA$T#9418229..2 2 ;:! IN WITNESS WHEREOF. this Assignment has been duly executed by Assignor and Assignee as of the date and year first above written. ASSIGNOR: DONALD L. CARTER \ ":. \' x."=''i"'" '. By: ~ ~ ~(!.:.... MARIAN E. CARTER By: ., ." ~..~ ,.. .~-1 -7. . ~ ~ . / ~-) ... ~~. 'b.'t. / DMEAST 'N:9418229 v2 .,' ! ;'. ..! ASSIGNEE: SILVER SPRING SQUARE n. 1..1'. By: By: Name. .-Powell W. nns Title: Vice President - EXHIBIT A Leases 1. Bobby L. White, tla Bob's Intowne Spas 2. Metro Cremo & Sons, Inc. 3. Hagemeyer North America, Inc. 4. Advance Stores Company .. , :':',,';' OMEAST 119418229 .2 DMEAST #9418229 ',/2 ., < ,...~ ..~ EXHlBrr B Securitv Deposits c..-,. /t-o~,e .,' EXHIBIT C Tenant Estoppel Certificate TENANT ESTOPPEL CERTIFICATE TO: ICE Realty & Development Co., LLC, its successors and assigns ('Purchaser"). and any mortgage lender to any of the foregoing. FROM: METRO CREMO & SONS, Inc., a Pennsylvania Corporation ("Tenant") RE: 6430 Carlisle Pike. Mechanicsburg. PA (dIe "Property"), demised premises having a noor area of approximately L>,500 square fect ("Premises") Tenant as Tenant under the referenced Lease. hereby certifies as follows: l. Tenant occupies thc Premises pursuant to the terms of lIn oral agreement (the "Lease") with Donald L. Carter and Marian Carter, individuals (collectively, "Landlord"), which is in t\llI force and effcct and has not been assigned. modified or supplemented. 2. The Lease is a month to month lease and is terminable by Landlord upon onc (I) month's prior written notico to Tenant. The ~~e contains nq,renewal or extension options. ...-\,. :. 3. Tcnant is not in default under the Lease. To Tenant's knowledge, Landlord is not in default under thc Lease. 4. Tenant has accepted the Premises demised \0 it pursuant to the Lease. and has commenced its business operations in the Premises. 5. Any free rent or rent concession period at the commencement ofthe tenn of the Lease has expired. 6. lbe amount offixed or base monthly rent under the Lease is $5,500.00. Tenant has paid rent when due pursuant to the tenns oCthe Lease through the month of December, 2005. 7. Tenant has no current right of offset against rent and no claims against Landlord, the Premises or the Property. 8. Landlord has perfomled all work and other conditions required to be performed by Landlord and paid to Tenant any allowance or other payment due to such Tenant in connection therewith. 9. Tenant is in sole possession of the Premiscs, and thcre are no subleases under the Lease. 10. The amount of thc security deposit held by Landlord under the Lease is $ 0.00. [1. The Lease contains no outstanding options or rights of first refusal or offer to purchase or leasc the Premises, thc Property or any part thereof. Tenant does hereby consent and agree that, in addition to !.he parties to whom this Tenant Estoppel Certificate is addressed, this Tenant Estoppel Certificate may also be specifically relied upon by Silver Spring Square 11, LLC and Silver Spring Square 11, LP, and their succcssors and assigns, in connection with the acquisition of the Property and the Prcmises from Laodlord. ;~ ; TIle Wldersigncd is duly authorized to execute this Certificate. [Tenant] r-\GTI'{D ~o ~ Scns::J:r.c &.J~ 61C,. t!..",,,,, jJr<</~1.t By: Name: Title: Date: /d - 2L--=-,2oo25 .. " ::..j;" DMEAST#9412159 v1 ..~ 2 EXHIBIT 0 Termination Notice and Proof of Receipt Sn.. VER SPRING SQUARE II, L.P. 150 Monument Road, Suite 406 Bala Cynwyd, P A 19004 (610) 747-1200 Via certified mail January 19, 2006 Mr. Eric Cremo Metro Cremo & Sons, Inc. 6430 Carlisle Pike Mechanicsburg, P A 17050 NOTICE TO METRO CREMO & SONS, INC., TENANT OF 6430 CARLISLE PIKE, SILVER SPRING TOWNSHlP, CUMBERLAND COUNTY, PENNSYLVANIA Dear Mr, Cremo: ., < '::"1" Please be advised that the property located at 6430 Carlisle Pike, Silver Spring Township, Cumberland COWlty, PCIlI1sylVlUlia (the "Pronertv"), was sold on January 17, 2006, by Donald and Miriam Carter to Silver Spring Square n, L.P. This letter serves as tennination of your month-lo-month lease. You must vacate on or before March I, 2006. Until March I, 2006, or your departure if prior to that date, all rent and other charges payable and other conunWlications pursuant to your lease at the Property should be made to Silver Spring Square n, L.P, and sent to the following address: 150 Monument Road, Suite 406 Bala Cynwyd, P A 19004 All of Donald and Miriam Carter's interest in your lease is now held by Silver Spring Square n, L.P., as owner of the Properly and any and all security deposits held by the Carters have been conveyed and transferred to Silver Spring Square n, L.P. Silver Spring Square n, L.P. is now responsible for such deposit. Thank you for your lime and attention to this matter. Please do not hesitate to contact me at 610 747. 1200 if you have any questions. Sincerely, ealty Group, Inc., its General Partner . .t' ! ;" .:t -. ,~ t:rAij;'t [] AddreS$ee C. Date of O~ery -z...3-Olo D. lsdollve<yad _tfl'omllem 11 0 Yes It YES. enter cIeJIVlIry addreu below: tl No 1 SENDER: COMPLETE THIS SECTION . . . Com~lete 'tems 1, 2, III1d 3.' A1ao complete Item 4 n Restricted Oeavery Ia desired. . Print your name and address on the reverse $0 that we can return the card to you. . Attach thls card 10 the back .of the mallplece, at on the fIont n space permits. A. Slgnofln X . . . B. 1:1::~r ~~~~,k /;'/3Q CdftJ;JvtK 1Auj-4/n~' f Ii 17050 3. SpMc.1'iPe ~rtlfledMalI 0 e,q,.... Mall o Registered DR..." Receipt lor M"""'ndlse [J ,_ Mall 0 C.O.D. 4. R.atrk:ted Delivery? (SdnI Fee) CJ Yes 2. Article Number rr-""/rom_1oboI} 7001 0320 0002 2757 1214 PS Form 3811, Fobrual'f 2004 Oometllc R4t1IIl1-"r 102S9$-02-M-1S40 ~(;"'kPt ~ / Ii;'; ..~ ............p;.....i:i'&'5ij................ , . EXHIBIT E Notice to Quit and Proof of Service - '. . , R:ICHAAD H W1X THOMAS L. WeNGeR oeAN A. weiDNeR STEVEN C. WILDS THSRESA L. SHADE WIX. DAVID R. GET'Z STEPHeN J. OZURAN1N STEVEN M. WILLIAMS JeFFREY C. ClARK PETER G. HOWLAND STEPHEN P. SMITH KATHRYN L WIX WIX, WENGER & WEIDNER A PROFESSIONAL CORPORATION ATTORNEYS AT LAW 508 NORTH SECOND STREET POST OFFtCE BOX 845 HARRISBURG. PENNSYLVANIA 17108-0845 4705 OUKe STReeT HARRISBURG. PA 17109-3099 (717) a52-8455 FAX (7f7) a52-6290 (717) 234-4182 FAX (717) 234-4224 www.wwwpa.aw.com 'AlIQ MemberMa;a:adlusslls Sar April 12, 2006 t.~ \'. Metro Cremo & Sons, Inc. tla Cremo's Variety Outlet 6430 Carlisle Pike Mechanicsburg, PA 17055 Re: Silver Spring Square II, LP NOTICE TO QUIT Our File No. 7922/13901 Dear Sirs: This office represents Silver Spring Square 1\, LP ("SSS"), the owner of the above-referenced property on which your business is located (the "Property"), By letter dated January 10,2006 and received by you on January 23,2006, SSS terminated your month to month lease and instructed you to vacate the Property by March 1, 2006. As an accommodation to you, SSS subsequently agreed to allow you to remain in the Property through April 16, 2006. This letter serves as formal notice to quit. You are hereby directed to vacate the Pfoperty no later than April 30, 2006. Your failure to do so will result in appropriate action being taken by SSS to have you removed from the Property, Please note that your failure to vacate the Property will cause a delay in SSS's development process. This delay will cause damages to SSS in the amount of at least $9,000 per day. This amount includes only the construction financing interest that will be incurred; SSS's total damages will likely far exceed this amount. In the event that you fail to vacate the Property as instructed in this notice, SSS will seek to hold you (and your pfincipals) responsibl~ for all damages it sustains. ; ~.': , ", O'!' , . . <' '.. WIX. WENGER & WEIDNER Metro Cremo & Sons, Inc. April 12,2006 Page 2 This notice is being personally selVed on you in accordance with the requirements of the Pennsylvania Landlord and Tenant Act. However, because we understand that Robert Walker may represent you, we are providilJg him a courtesy copy of this notice as well. .., ""1 ::.;j;t Wix, wen,~ r & Weidner Ii) i f By:,/ Ii . /Steven M, Williams / HAND DELIVERED or POSTED cc: Silver Spring Square II, LP Robert M. Walker, Esquire " : .,' I ~. , ". l~ I': . .,. . AFFIDAVIT OF SERVICE OF NOTICE TO VACATE Peter G. Howland, Esquire, being duly sworn according to law, deposes and says: 1. I am a competent adult, age 34 years, who is employed as an attorney with the law office of Wix, Wenger & Weidner; 2. On April 13, 2006, at 8:25 a.m., I served a Notice to Vacate, a copy of which is attached hereto, on the tenant named therein by hand delivering it to Larry Cremo. 3. Service of the Notice to Vacate occurred at Cremo's Variety Outlet, 6430 Carlisle Pike, Mechanicsburg, PA. Date: Apr--'l I S I zoo <D Sworn to and subscrlbed to before me, a Notary Public, this .J2.... day of A D( iI 2006. ~ N ry Publi My Commission Expires: F:\smw\7922 (SILVER SPRING SQUARE II, LP)\13901 (CREMO'S)\DOCUMENTSIAFFIDAVIT OF SERVICE.doc NOWllAI. SEAl. mY T WIlUAMll NotOly PublIc HAlIIltIIUIlG CITY. DAUPHIN COUNlY My Commllslon EJcpl/.. Mar 7, 2009 . ". . . VERIFICATION I, Powell W. Arms, Vice President of Regency Realty Group, Inc., general partner of SSS, have read the foregoing Complaint and hereby affirm and verify that, to the best of my knowledge, information and belief, all of the statements made therein are true and correct, and that false statements made therein may subject me to the penalties of 18 Pa.C.SA Section 4904, relating to unsworn falsification to authorities. REGENCY REALTY GROUP, I ., tla SILVER SPRIN E I , Date: ~'.\ Z'5,zroh 10 .. .. VERI FICA TION I, Powell W. Arms, Vice President of Regency Realty Group, Inc., general partner of SSS, have read the foregoing Petition and hefeby affirm and verify that, to the best of my knowledge, information and belief, all of the statements made therein are true and correct, and that false statements made therein may subject me to the penalties of 18 Pa.C.SA Section 4904, relating to unsworn falsification to authorities. Date: "l1~110k . Va s, Vice President .. .t .. REGENCY REALTY GROUP,INC., t1a SILVER SPRING SQUARE II, LP : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. METRO CREMO & SONS, INC., tla CREMO'S VARIETY OUTLET, Defendant : CIVIL ACTION - EQUITY CERTIFICATE OF SERVICE I hereby certify that the foregoing Petition was hand delivered this day to Defendant's counsel, Robert M. Walker, Esquire, Johnson, Duffie, Stewart & Weidner, 301 Market Street, P.O. Box 109, Lemoyne, PA 17043-0109, who was authorized to, and did, accept service of this Petition on behalf of Defendant. Respectfully Submitted, WIX, WENGER & WEIDNER Date: May 1, 2006 By: {;. ' Alison A. Zortman, gal Assistant 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorney for Plaintiff .-' (:::;.~ ~-;;.-' ~ 'P'" -" -- (;A 9J~ t'."\f~.. ~'"'\\;,.; -;j~' ),> .~.;~-~~) ") i". <?~{." -i~S ::.<. -. :;.;. .- -- r-' ~r'" REGENCY REALTY GROUP, INC., tla SILVER SPRING SQUARE, II, LP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Planitiff No. 06-2431 Civil Term v. METRO CREMO & SONS, INC., tla CREMO'S VARIETY OUTLET, CIVIL ACTION - EQUITY Defendant PRAECIPE FOR ENTRY OF APPEARANCE Please enter the appearance of Robert M. Walker, Esquire, Johnson, Duffie, Stewart & Weidner, P.C., whose address is 301 Market Street, Lemoyne, Pennsylvania as Attorney for Metro Cremo & Sons, Inc., tla Cremo's Variety Outlet, the Defendants in the above-captioned case. Respectfully submitted, BY: Robe . Walker, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street Lemoyne, Pennsylvania 17043 717-761-4540 Attorney ID No. 86340 Attorneys for Defendant Date May 2, 2006 :274596 rc?? _~-':l 0- ~. ..- ~-... ';,0... ~ .-<- 9,,, -' .. ::r,.~ \I"\~~ _.r\'r, \~~:? \ :;:- J~'.- ~'. ~ ~ q:? "-,-::-, 1:-\\-' <~2\ ':;-: '& - .J , , REGENCY REALTY GROUP, INC., tla SILVER SPRING SQUARE II, LP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 06-2431 Civil Term METRO CREMO & SONS, INC., tla CREMO'S VARIETY OUTLET, Defendant CIVIL ACTION - EQUITY STIPULATED ORDER AND NOW, come the parties, by and through their respective undersigned counsel and, intending to be legally bound, enter into this Stipulated Order, which the parties agree shall be entered by this Court as a final order in this case. The factual background, which shall constitute part of this Stipulated Order, is as follows: 1. Plaintiff, Regency Realty Group, Inc., tla Silver Spring Square II, L.P, ("SSS") is the owner of the property at 6430 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania on which Defendant, Metro Cremo & Sons, Inc., tla Cremo's Variety Outlet ("Cremo's") is currently operating its business (the "Property"). 2. SSS is in the process of developing the Property and adjacent properties into a class A shopping center (the "Center"), with a projected opening date of March 2007. 3. Cremo's has occupied and continues to occupy the Property pursuant to a lease entered into with the former owners of the Property. / , 4. A question of fact remains as to whether, as SSS asserts, the term of the lease was month-to-month, terminable upon one month's notice, containing no renewal or extension options. 5. By letter dated January 19, 2006, SSS notified Cremo's that the lease was terminated and instructed Cremo's to vacate the Property by March 1, 2006. 6. On or about February 28, 2006, SSS agreed to allow Cremo's to remain on the Property through April 16, 2006. 7. SSS intended to begin demolition of the building on the Property (the "Building") on of April 17, 2006. 8. On or about April 11 , 2006, Cremo's informed SSS that it did not intend to vacate the Property until its new building was completed, which was then expected to be in or about September 2006. 9. Because Cremo's remaining in the Property was not acceptable to SSS, on April 12,2006, SSS served a notice to quit, which directed Cremo's to vacate the Property no later than April 30, 2006. 10. Because Cremo's did not vacate the Property by April 30, 2006, SSS initiated this action by filing its Complaint. In addition, SSS filed its Petition for Preliminary Injunction and Permanent Injunction, or in the Alternative, for an Expedited Hearing on the Merits of the Underlying Action (the "Petition"). 2 In consideration of the parties' agreement, and incorporating herein the above factual background, it is hereby ORDERED: 1. Upon request of SSS, the Cumberland County Prothonotary shall enter this Order as a judgment in favor of SSS and against Cremo's for possession of the Property. 2. A judgment for possession notwithstanding, so long as Cremo's complies with the terms of this Stipulated Order, Cremo's shall be entitled to remain in possession of the Property, with full use of its portion of the Building, customer and delivery vehicle parking areas, together with continued connection to all existing utility services, subject to paragraph 4.e. hereof, until 12:01 a.m. on Friday, September 1,2006 (the "Vacate Time"). 3. So long as Cremo's continues its possession of its portion of the Building, Cremo's shall pay to SSS rent in the amount of $5,500 per month through August 31,2006. Cremo's shall make its payments for April and May within ten days after the entry of this Order, and it shall make the remaining payments on Of before the first day of June, July and August, respectively. In the event Cremo's vacates the Building for any reason prior to August 31, 2006, SSS shall refund to Cremo's the pro-rata portion of paid rent. During such occupancy and notwithstanding SSS's right to conduct work as set forth in paragraph 4 below, Cremo's shall be entitled to maintain its customary hours and methods of operation and neither SSS, nor its employees, agents, 3 contractors or sub-contractors shall unreasonably interfere with said operations. 4. SSS shall be entitled to conduct any and all work necessary on and around the Property in order to keep its construction on the Center progressing at a pace necessary in its sole discretion to meet its construction schedule. Without limiting the foregoing, SSS shall be specifically entitled to do all of the following: a. demolish the far eastern portion of the Building (i.e., the area formerly occupied by "Bob's Intown Spas") when SSS deems such work to be necessary or desirable; b. demolish the middle portion of the Building (i.e., the area formerly occupied by "Tri-State Electric"), if and when SSS deems such work to be necessary or desirable. In the event of either such partial demolition of the Building, SSS shall shore up the structure of the remaining portion of the Building as needed so as to ensure no ill effects to Cremo's business or the portion of the Building in which Cremo's operates its business; c. fence off the parking lot from the eastern end wall of the portion of the Building that Cremo's occupies out to the Carlisle Pike; d. begin filling and grading the areas around the Building, including up to the loading dock wall base in the back and between Auto Zone and Cremo's, provided, however, such filling and grading shall not 4 unreasonably restrict or prevent access by trailer tractor delivery vehicles to and from Cremo's loading dock and the Carlisle Pike; e. begin installing underground and above ground utilities in the areas around the Building, including but not limited to under the driveway and parking areas, which may include temporary shut off of Cremo's utilities during non-business hours, if necessary; and f. doing any and all other work SSS deems necessary and appropriate to ensure a pace necessary in its sole discretion to meet its construction schedule and that is otherwise not in conflict with Cremo's business operations or its continued occupancy of its portion of the Building. In doing all of the above work: a. Cremo's shall grant to SSS, its agents, employees, subcontractors and others who are doing work for or on behalf of SSS at the Property, such access to the parking areas and driveway serving Cremo's business as SSS deems necessary or desirable in order to conduct its construction work on and around the Property; pfovided, however, SSS shall control access and availability to ensure that Cremo's customers may still get in and out of the Property. b. Cremo's will not in any way interfere with SSS's progress, work, agents, employees, subcontractors and others who are doing work for or on behalf of SSS at the Property and shall cooperate fully to 5 ensure that SSS's construction activities can proceed at and around the Property at a pace necessary in SSS's sole discretion to meet its construction schedule. c. SSS shall ensure that its work does not have an unreasonable disparate impact on Cremo's ability to continue its business operations through the Vacate Time. 5. SSS shall be entitled at any time after the entry of this Stipulated Order to file with the Prothonotary a Praecipe for Writ of Execution/Possession directing the Sheriff to turn over the Property to SSS, so long as the turn over does not occur prior to the Vacate Time. 6. In the event that Cremo's defaults in any of its obligations under this Stipulated Order (except the obligation to vacate the Property by the Vacate Time), and such default is not cured within five calendar days after written notice to Cremo's pursuant to paragraph 9 below, SSS shall be entitled to direct the Sheriff to turn over the Property prior to the Vacate Time. 7. Cremo's shall vacate the Property and ensure that all of its equipment, inventory, furnishings and other property has been removed from the Property no later than the Vacate Time. SSS intends to demolish the portion of the building on the Property in which Cremo's conducts its business on Friday, September 1, 2006. In the event that there remains any equipment, inventory, furnishings or other property on the Property after the Vacate Time, or earlier turnover date as provided in paragraph 6 hereof, it/they shall be 6 deemed to have been abandoned, and SSS shall have no liability to Cremo's, or to any other person or entity, resulting from any damage to or loss of any such equipment, inventory, furnishings and other property that remains on the Property after the Vacate Time, or earlier turnover date as provided in paragraph 6 hereof. Cremo's hereby agrees to indemnify, defend and hold harmless SSS and its agents, employees, subcontractors and all others who are doing work for or on behalf of SSS at the Property from and against any and all claims by any person or entity relating to any damage to or loss of any property that remains on the Property after the Vacate Time, or earlier turnover date as provided in paragraph 6 hereof. 8. Conditioned upon full compliance by Cremo's of the terms of this Stipulated Order, SSS, for itself, its partners, shareholders, directors, tenants, subtenants, contractors, subcontractors, employees, agents, insurers, successors, assigns and any other persons or entitles in any way related to SSS and / or its shopping center project, releases, remises and forever discharges Cremo's, its shareholders, directors, officers, employees, insurers, successors, agents, and assigns from all actions, causes of action, claims, suits, controversies, trespasses, damages, judgments, and demands in any form whatsoever, at law or in equity, arising from or by reason of any and all known or unknown, foreseen or unforeseen injuries or damages in any way relating to Cremo's occupancy of the Property through August 31, 2006. Notwithstanding the foregoing, nothing in this release shall release or be 7 deemed to release any uncured defaults of this Stipulated Order or any action or inaction from and after the date of this Stipulated Order of Cremo's or any of its partners, shareholders, directors, employees, agents, insurers, successors, assigns and any other persons or entitles in any way related to Cremo's. 9. Conditioned upon full compliance by SSS of the terms of this Stipulated Order, Cremo's, for itself, its partners, shareholders, directors, employees, agents, insurers, successors, assigns and any other persons or entitles in any way related to Cremo's, releases, remises and forever discharges SSS, its partners, shareholders, directors, tenants, subtenants, contractors, subcontractors, employees, agents, insurers, successors, assigns and any other persons or entitles in any way related to SSS and / or its shopping center project, from all actions, causes of action, claims, suits, controversies, trespasses, damages, judgments, and demands in any form whatsoever, at law or in equity, arising from or by reason of any and all known or unknown, foreseen or unforeseen injuries or damages in any way relating to Cremo's occupancy and/or vacating of the Property. Notwithstanding the foregoing, nothing in this release shall release or be deemed to release any uncured defaults of this Stipulated Order or any action or inaction from and after the date of this Stipulated Order of SSS or any of its partners, shareholders, directors, tenants, subtenants, contractors, subcontractors, employees, 8 . agents, insurers, successors, assigns and any other persons or entitles in any way related to SSS and I or its shopping center project. 10.AII notices to either party pursuant to this Order shall be hand delivered or delivered by 24-hour courier service or by postage prepaid certified mail (return receipt requested), addressed as follows: If to SSS: Mr. Powell W. Arms, Vice President Regency Realty Group, Inc. 150 Monument Road, Suite 406 Bala Cynwyd, PA 19004 With a Copv to: Steven M. Williams, Esquire Wix, Wenger & Weidner 508 North Second Street Harrisburg, PA 17101 If to Cremo's: Mr. Eric Cremo, President Metro Cremo & Sons, Inc. 6430 CarlislePike Mechanicsburg, PA 17050 With a Copv to: Robert M. Walker, Esq. Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043 11. The parties do not intend, by this Stipulated Order or otherwise, to create a landlord and tenant relationship between them, and nothing in this Stipulated Order shall create or be deemed to create such a relationship. Neither the terms of this Stipulated Order nor the relationship of the parties as of the date the parties execute this Stipulated Order shall be governed, controlled, 9 . interpreted or otherwise affected by the Pennsylvania Landlord and Tenant Act or any similar law (caselaw or enacted). This paragraph shall not negate nor circumvent any specific rights granted to Cremo's or SSS pursuant to this Order. 12. Time is of the essence for all terms contained in this Stipulated Order. 13. The terms of this Stipulated Order are reasonable, and the parties each acknowledges that it has read this Stipulated Order, fully understands its provisions, and has had the advice of counsel relating to its provisions prior to signing it. 14. The undersigned counsel each certifies that he has the authority to enter into this Stipulated Order on behalf of, and to bind hereto, his respective client. [Remainder of page intentionally left blank] 10 . Respectfully Submitted for the parties by: WIX, WENG / ,/;/ teven M. Williams, 1.0. # 62051 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff Date: S13/0h JOHNSON, DUFFIE, STEWART & WEIDNER By: Robe M. Walker, I. 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 Attorneys for Defendant Date: ~/> hG. . It is so ORDERED this 4th day of May 2006: By the Court: 'l M. L. Ebert, Jr., Judge F:\smw\7922 (SILVER SPRING SQUARE II, LP)\13901 (CREMO'S)\DOCUMENTSI5TIPULATED ORDER-Final.doc Distribution: For Plaintiff: Steven M. Williams, Esquire, Wix, Wenger & Weidner, 508 North Second Street, P.O. Box 845, Harrisburg, PA 17108-0845 For Defendant: Robert M. Walker, Esquire, Johnson, Duffie, Stewart & Weidner, 301 Market Street, P.O. Box 109, Lemoyne, PA 17043-0109 11 IiiNV^'ASNN3d I "N.nn'-) qu,,-'~}J::;-j'^lln'" h..U ..... I,., 'i ._.._>, \I' u 02 :01 WV S- W.j 9GGZ AoVlONOi-UOC!d 3HJ. .:lO 30i:l30-0311:l WIX, WENGER & WEIDNER Steven M. Williams, 1.0. # 62051 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff REGENCY REALTY GROUP, INC., Va SILVER SPRING SQUARE II, LP : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 06-2431 Civil Term METRO CREMO & SONS, INC., Va CREMO'S VARIETY OUTLET, Defendant : CIVIL ACTION - EQUITY PRAECIPE TO ENTER JUDGMENT FOR POSSESSION To the Prothonotary: In accordance with the Stipulated Order, signed Judge Ebert on May 4, 2006 and entered in this case on May 5, 2006, please enter a judgment in favor of Plaintiff and against Defendant for possession of the property known as 6430 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania. Date: May 9. 2006 R & WEIDNER By: teven M. Williams, 1.0. # 62051 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff F:\smw\7922 (SILVER SPRING SQUARE II, LP)\13901 (CREMO'S)\DOCUMENTS\Judgment Praeclpe.doc . REGENCY REALTY GROUP, INC., t/a SILVER SPRING SQUARE II, LP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 06-2431 Civil Term METRO CREMO & SONS, INC., t/a CREMO'S VARIETY OUTLET, Defendant CIVIL ACTION - EQUITY STIPULATED ORDER AND NOW, come the parties, by and through their respective undersigned counsel and, intending to be legally bound, enter into this Stipulated Order, which the parties agree shall be entered by this Court as a final order in this case. The factual background, which shall constitute part of this Stipulated Order, is as follows: 1. Plaintiff, Regency Realty Group, Inc., t/a Silver Spring Square II, L.P. ("555") is the owner of the property at 6430 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania on which Defendant, Metro Cremo & Sons, Inc., t/a Cremo's Variety Outlet ("Cremo's") is currently operating its business (the "Property"). 2. SSS is in the process of developing the Property and adjacent properties into a class A shopping center (the "Center"), with a projected opening date of March 2007. 3. Cremo's has occupied and continues to occupy the Property pursuant to a lease entered into with the former owners of the Property. . 4. A question of fact remains as to whether, as SSS asserts, the term of the lease was month-to-month, terminable upon one month's notice, containing no renewal or extension options. 5. By letter dated January 19, 2006, SSS notified Cfemo's that the lease was terminated and instructed Cremo's to vacate the Property by March 1, 2006. 6. On or about February 28, 2006, SSS agreed to allow Cremo's to remain on the Property through April 16, 2006. 7. SSS intended to begin demolition of the building on the Property (the "Building") on of April 17, 2006. 8. On or about April 11 , 2006, Cremo's informed SSS that it did not intend to vacate the Property until its new building was completed, which was then expected to be in or about September 2006. 9. Because Cremo's remaining in the Property was not acceptable to SSS, on April 12,2006, SSS served a notice to quit, which directed Cremo's to vacate the Property no later than April 30, 2006. 10. Because Cremo's did not vacate the Property by April 30, 2006, SSS initiated this action by filing its Complaint. In addition, SSS filed its Petition for Preliminary Injunction and Permanent Injunction, or in the Alternative, for an Expedited Hearing on the Merits of the Underlying Action (the "Petition"). 2 . In consideration of the parties' agreement, and incorporating herein the above factual background, it is hereby ORDERED: 1. Upon request of SSS, the Cumberland County Prothonotary shall enter this Order as a judgment in favor of SSS and against Cremo's for possession of the Property. 2. A judgment for possession notwithstanding, so long as Cremo's complies with the terms of this Stipulated Order, Cremo's shall be entitled to remain in possession of the Property, with full use of its portion of the Building, customer and delivery vehicle parking areas, together with continued connection to all existing utility services, subject to paragraph 4.e. hereof, until 12:01 a.m. on Friday, September 1,2006 (the "Vacate Time"). 3. So long as Cremo's continues its possession of its portion of the Building, Cremo's shall pay to SSS rent in the amount of $5,500 per month through August 31, 2006. Cremo's shall make its payments for April and May within ten days after the entry of this Order, and it shall make the remaining payments on or before the first day of June, July and August, respectively. In the event Cremo's vacates the Building for any reason prior to August 31, 2006, SSS shall refund to Cremo's the pro-rata portion of paid rent. During such occupancy and notwithstanding SSS's right to conduct work as set forth in paragraph 4 below, Cremo's shall be entitled to maintain its customary hours and methods of operation and neither SSS, nor its employees, agents, 3 contractors or sub-contractors shall unreasonably interfere with said operations. 4. SSS shall be entitled to conduct any and all work necessary on and around the Property in order to keep its construction on the Center progressing at a pace necessary in its sole discretion to meet its construction schedule. Without limiting the foregoing, SSS shall be specifically entitled to do all of the following: a. demolish the far eastern portion of the Building (i.e., the area formerly occupied by "Bob's Intown Spas") when SSS deems such work to be necessary or desirable; b. demolish the middle portion of the Building (i.e., the area formerly occupied by ''Tri-State Electric"), if and when SSS deems such work to be necessary or desirable. In the event of either such partial demolition of the Building, SSS shall shore up the structure of the remaining portion of the Building as needed so as to ensure no ill effects to Cremo's business or the portion of the Building in which Cremo's operates its business; c. fence off the parking lot from the eastern end wall of the portion of the Building that Cremo's occupies out to the Carlisle Pike; d. begin filling and grading the areas around the Building, including up to the loading dock wall base in the back and between Auto Zone and Cremo's, provided, however, such filling and grading shall not 4 , unfeasonably restrict or prevent access by trailer tractor delivery vehicles to and from Cremo's loading dock and the Carlisle Pike; e. begin installing underground and above ground utilities in the areas around the Building, including but not limited to under the driveway and parking areas, which may include temporary shut off of Cfemo's utilities during non-business hours, if necessary; and f. doing any and all other work SSS deems necessary and appropriate to ensure a pace necessary in its sole discretion to meet its construction schedule and that is otherwise not in conflict with Cremo's business operations or its continued occupancy of its portion of the Building. In doing all of the above work: a. Cremo's shall grant to SSS, its agents, employees, subcontractors and others who are doing work for or on behalf of SSS at the Property, such access to the parking areas and driveway serving Cremo's business as SSS deems necessary or desirable in order to conduct its construction work on and around the Property; provided, however, SSS shall control access and availability to ensure that Cremo's customers may still get in and out of the Property. b. Cremo's will not in any way interfere with SSS's progress, work, agents, employees, subcontractors and others who are doing work for or on behalf of SSS at the Property and shall cooperate fully to 5 ensure that SSS's construction activities can proceed at and around the Property at a pace necessary in SSS's sole discretion to meet its construction schedule, c. SSS shall ensure that its work does not have an unreasonable disparate impact on Cremo's ability to continue its business operations through the Vacate Time. 5. SSS shall be entitled at any time after the entry of this Stipulated Order to file with the Prothonotary a Praecipe for Writ of Execution/Possession directing the Sheriff to turn over the Property to SSS, so long as the turn over does not occur pfior to the Vacate Time. 6. In the event that Cremo's defaults in any of its obligations under this Stipulated Order (except the obligation to vacate the Property by the Vacate Time), and such default is not cured within five calendar days after written notice to Cremo's pursuant to paragraph 9 below, SSS shall be entitled to direct the Sheriff to turn over the Property prior to the Vacate Time. 7. Cremo's shall vacate the Property and ensure that all of its equipment, inventory, furnishings and other property has been removed from the Pfoperty no later than the Vacate Time. SSS intends to demolish the portion of the building on the Property in which Cremo's conducts its business on Friday, September 1, 2006. In the event that there remains any equipment, inventory, furniShings or other property on the Property after the Vacate Time, or earlier turnover date as provided in paragraph 6 hereof, it/they shall be 6 , deemed to have been abandoned, and SSS shall have no liability to Cremo's, or to any other person or entity, resulting from any damage to or loss of any such equipment, inventory, furnishings and other property that remains on the Property after the Vacate Time, or earlier turnover date as provided in paragraph 6 hereof. Cremo's hereby agrees to indemnify, defend and hold harmless SSS and its agents, employees, subcontractors and all others who are doing work for or on behalf of SSS at the Property from and against any and all claims by any person or entity relating to any damage to or loss of any property that remains on the Property after the Vacate Time, or earlier turnover date as provided in paragraph 6 hereof. 8. Conditioned upon full compliance by Cremo's of the terms of this Stipulated Order, SSS, for itself, its partners, shareholders, directors, tenants, subtenants, contractors, subcontractors, employees, agents, insurers, successors, assigns and any other persons or entitles in any way related to SSS and I or its shopping center project, releases, remises and forever discharges Cremo's, its shareholders, directors, officers, employees, insurers, successors, agents, and assigns from all actions, causes of action, claims, suits, controversies, trespasses, damages, judgments, and demands in any form whatsoever, at law or in equity, arising from or by reason of any and all known or unknown, foreseen or unforeseen injuries or damages in any way relating to Cremo's occupancy of the Property through August 31, 2006. Notwithstanding the foregoing, nothing in this release shall release or be 7 deemed to release any uncured defaults of this Stipulated Order or any action or inaction from and after the date of this Stipulated Order of Cremo's or any of its partners, shareholders, directors, employees, agents, insurers, successors, assigns and any other persons or entitles in any way related to Cremo's. 9. Conditioned upon full compliance by SSS of the terms of this Stipulated Order, Cremo's, for itself, its partners, shareholders, directors, employees, agents, insurers, successors, assigns and any other persons or entitles in any way related to Cremo's, releases, remises and forever discharges SSS, its partners, shareholders, directors, tenants, subtenants, contractors, subcontractofs, employees, agents, insurers, successors, assigns and any other persons or entitles in any way related to SSS and / or its shopping center project, from all actions, causes of action, claims, suits, controversies, trespasses, damages, judgments, and demands in any form whatsoever, at law or in equity, arising from or by reason of any and all known or unknown, foreseen or unforeseen injuries or damages in any way relating to Cremo's occupancy and/or vacating of the Property. Notwithstanding the foregoing, nothing in this release shall release or be deemed to release any uncured defaults of this Stipulated Order or any action or inaction from and after the date of this Stipulated Order of SSS or any of its partners, shareholders, directors, tenants, subtenants, contractors, subcontractors, employees, 8 agents, insurers, succeSSOfS, assigns and any other persons or entitles in any way related to SSS and I or its shopping center project. 10.AII notices to either party pursuant to this Order shall be hand delivered or delivered by 24-hour courier service or by postage prepaid certified mail (feturn receipt requested), addressed as follows: If to SSS: Mr. Powell W. Arms, Vice President Regency Realty Group, Inc. 150 Monument Road, Suite 406 Bala Cynwyd, PA 19004 With a Copv to: Steven M. Williams, Esquire Wix, Wenger & Weidner 508 North Second Street Harrisburg, PA 17101 If to Cremo's: Mr. Eric Cremo, President Metro Cremo & Sons, Inc. 6430 CarlislePike Mechanicsburg, PA 17050 With a Copv to: Robert M. Walker, Esq. Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043 11. The parties do not intend, by this Stipulated Order or otherwise, to create a landlord and tenant relationship between them, and nothing in this Stipulated Order shall create or be deemed to create such a relationship. Neither the terms of this Stipulated Order nor the relationship of the parties as of the date the parties execute this Stipulated Order shall be governed, controlled, 9 I interpreted or otherwise affected by the Pennsylvania Landlord and Tenant Act or any similar law (case law or enacted). This paragraph shall not negate nor circumvent any specific rights granted to Cremo's or SSS pursuant to this Order. 12. Time is of the essence for all terms contained in this Stipulated Order. 13. The terms of this Stipulated Order are reasonable, and the parties each acknowledges that it has read this Stipulated Order, fully understands its provisions, and has had the advice of counsel relating to its provisions prior to signing it. 14. The undersigned counsel each certifies that he has the authority to enter into this Stipulated Order on behalf of, and to bind hereto, his respective client. [Remainder of page intentionally left blank] 10 , // Respectfully Submitted for the parties by: WIX, WENGER'~ WEIDNER JOHNSON, DUFFIE, STEWART & //1{ WEIDNER ~ By: Robe M. Walker, I. 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 (717) 761-4540 Attorneys for Defendant Date: s-1J'h6 . .' By: / /Steven M. Williams, 1.0. # 62051 , 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff Date: sll )0& It is so ORDERED this 4th day of May 2006: By the Court: -:1. F:\smw17922 (SILVER SPRING SQUARE 11, LP)113901 (CREMO'S)IDOCUMENTSISTIPULATED ORDER-Final.doc Distribution: For Plaintiff: Steven M. Williams, Esquire, Wix, Wenger & Weidner, 508 North Second Street, P.O. Box 845, Harrisburg, PA 17108-0845 For Defendant: Robert M. Walker, Esquire, Johnson, Duffie, Stewart & Weidner, 301 Market Street, P.O. Box 109, Lemoyne, PA 17043-0109 11 ~ CJ ,..., ~ ~ (:) c 'is t -0 < 0" \. ~"t1 ct: ~ ?,;f! \) 1}' ~ +- , :B~ (0 - r< D- O o( ~ c: ;.,-j-r-; \ ....... ...0_ ~ ~~R !-~. '~J ~ '>..() -;Y ,,:;::,\,., ,~t' <5j"f1 w "p'C: C!? ~ ~ --.l ~ r ~ c:> ~ .~ (./'\ (j' -. :0 ~ - .f- ~ 1- ,........." -- WIX, WENGER & WEIDNER Steven M. Williams, Esquire 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff REGENCY REALTY GROUP, INC., tla SILVER SPRING SQUARE II, LP : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. : NO. 06-2431 Civil Term METRO CREMO & SONS, INC., tla CREMO'S VARIETY OUTLET, Defendant : CIVIL ACTION - EQUITY To: Metro Cremo & Sons, Inc., tla Cremo's Variety Outlet, c/o Robert M. Walker, Esquire, Johnson, Duffie, Stewart & Weidner, 301 Market Street, P.O. Box 109, Lemoyne, PA 17043-0109 You are hereby notified that on ~7;;t, I~~NJ. the following (Order) (gear-ee) (Judgment) has been entered against you in the above-captio ed se. For possession of the property known as 6430 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania. DATE: slk>iub . I rot onotary I hereby certify that the name and address of the proper person(s) to receive ~jo Ice is: Metro Cremo & Sons, Inc., tla Cremo's Variety Outlet c/o Robert M. Walker, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 A: Metro Cremo & Sons, Inc., lIa Cremo's Variety Outlet, clo Robert M. Walker, Esquire, Johnson, Duffie, Stewart & Weidner, 301 Market Street, P.O. Box 109, Lemoyne, PA 17043-0109 Por este medio se Ie esta notificando que en el _ de del 2005, el siguiente (Orden), (Decreto ), (Pallo) ha side anotado en contra suya en el caso mencionado en el epigrafe. FECHA: Prothonotario Certifico que la siguiente direccion es la del defendidos segun indicada en el certificado de residencia: Metro Cremo & Sons, Inc., lIa Cremo's Variety Outlet clo Robert M. Walker, Esquire Johnson, Duffie, Stewart & Weidner 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 .... . . ~ Johnson, Duffie, Stewart & Weidner By: Robert M. Walker 1.0. No. 86340 301 Market Street P. O. Box 109 Lemoyne, Pennsylvania 17043-0109 (717) 761-4540 rmw@jdsw.com Attorneys for Defendant REGENCY REALTY GROUP, INC., tla SILVER SPRING SQUARE, II, LP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Planitiff No. 06-2431 Civil Term v. METRO CREMO & SONS, INC., tla CREMO'S VARIETY OUTLET, CIVIL ACTION - EQUITY Defendant PETITION TO OPEN JUDGMENT !1... AND NOW, this 2,j day of August, 2006, comes the Defendant, Metro Cremo & Sons, Inc., tla Cremo's Variety Outlet, by and through its counsel, Johnson, Duffie, Stewart & Weidner, and files this Petition to Open Judgment and in support thereof avers as follows: 1. On May 1, 2006, Plaintiff filed a Complaint with this Court seeking a judgment against Defendant and in favor of Plaintiff for possession of the property located at 6430 Carlisle Pike, Mechanicsburg, Cumberland County, Pennsylvania ("Property"). 2. Simultaneous with the filing of the Complaint, Plaintiff filed a Petition for Preliminary and Permanent Injunction seeking removal of the Defendant from the Property in advance of a final determination for possession pursuant to the Complaint. ., - . 3. On May 3, 2006, Plaintiff and Defendant, through their respective counsel entered into a Stipulated Order ("Order") providing, inter alia, for Defendant's continued possession of the Property through 11 :59 p.m., August 31, 2006. 4. Said Order was granted by the Honorable M. L. Ebert, Jr. of the Court on May 4, 2006. 5. Under the terms of the Order, Plaintiff was entitled to conduct construction activities for its shopping center project upon lands adjacent to the Property so long as Plaintiff did no unreasonably interfere with the business activities of Defendant. 6. On at least ten (10) separate dates between May 3, 2006 and August 9, 2006, Plaintiffs construction activities interfered with Defendant's business operations by blocking or limiting Defendants use of said facilities and in turn materially interfering with Defendant's business operations. 7. On at least one occaision, Plaintiffs construction activities caused Defendant's telephone and electrical services to be disrupted for the majority of the business day. 8. Plaintiffs breaches of the terms of the Order were material and have caused monetary losses to Defendant which are difficult, if not impossible to quantify. 9. As a remedy for these breaches, Defendant seeks an opening of the judgment in the matter and a fifteen (15) day extension of Defendant's occupancy of the Property. 10. It is Defendant's believe that such relief would offset the damages to Defendant caused by Plaintiff and which are otherwise not calculable, in a manner which does not harm Plaintiff. 2 \.---~ , . . WHEREFORE, Defendant respectfully requests that the judgment entered on May 4, 2006 pursuant to the Stipulated Order between Plaintiff and Defendant be opened and that this Court amend the Stipulated Order between Plaintiff and Defendant entered May 4, 2006 by extending Defendant's occupancy of the Property for an additional fifteen (15) day period. Respectfully submitted, Date: ~/zs-IoG BY: Ro rt M. Walker, Esquire I.D. No. 86340 301 Market Street P.O. Box 109 Lemoyne, PA 17043 (717) 761-4540 Attorneys for Defendant :282010 3 .. :-. , . 0' -. I, ERIC CREIIO. PresIdent of Metro Cremo & Sont, Inc. tIa Cremo'. VIIltetI 0utIIt. hllY8 read the foregoing PetitiOn and heIeby affInn an:i verify that the to best of my knoWledge. informatIOn and belief, all the statements mad. therein .. true and correct. and bit false Btaten'I8I'D made therein may subject me to the penaltlel ~f 18 Pa.C.SA. 14904 reIIItIng to unsworn falalficallon to authOrtty. METRO CREMO . SONS, INC., tla CREMO'S VARIETY OUTLET By: ~- ~4~""/~ ERIC CREMe, President ~ (") c '"""" ~~ --0 (" r;1 \' -7 . ..r.- ;::~,!" . c-:::~ C_.- 2~':!..- ~;:2 z :z "" = = CT' ~ GJ N c.f! ,. :P'" :J: ~ ~-n il1F" -otn -DC( C),o -:? -r I ~J_ -n ,', """ 0.'';' () lc""nl ~\ ~ Cf! z:- --J REGENCY TREAL TY GROUP, INC. : IN THE COURT OF COMMON PLEAS OF Va SILVER SPRING SQUARE, 11, LP : CUMBERLAND COUNTY, PENNSYLVANIA PLAINTIFF : NO. 06-2431 CIVIL V. METRO CREMO & SONS, INC., Va CREMO'S VARIETY OUTLET DEFENDANT : CIVIL ACTION - EQUITY ORDER OF COURT AND NOW, this 28th day of August, 2006, upon consideration of Defendant's Petition to Open Judgment and Plaintiff's Answer thereto, IT IS HEREBY ORDERED AND DIRECTED that the Defendant's Request to Open Judgment is DENIED; and accordingly IT IS FUTHER ORDERED AND DIRECTED that Defendant's occupancy of the property will not be extended for an additional 15 day period. By the Court, "''\ J. M. L. Ebert, Jr., v&even Williams, Esquire Attorney for Plaintiff ~bert M. Walker, Esquire ~ Attorney for Defendant bas 0\9 etf o ,\li~,rv.l\~v ~\i:~,I=1..1 AlNnC{)' . '.~ -i;'j~iNna LO :~ Hd 82 :JOV 988Z AtNlONOHiO!:id 3Hl :10 38::1;!0-0318 '" WIX, WENGER & WEIDNER Steven M. Williams, ID # 62051 508 North Second Street P.O. Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorneys for Plaintiff REGENCY REALTY GROUP, INC., t/a SILVER SPRING SQUARE II, LP IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA Plaintiff v. NO. 06-2431 Civil Term METRO CREMO & SONS, INC., t/a CREMO'S VARIETY OUTLET, Defendant CIVIL ACTION - EQUITY PRAECIPE FOR WRIT OF POSSESSION To the Prothonotary: Please issue a Writ of Possession against Defendant for the premises known as 6430 Carlisle Pike, Mechanicsburg, Pennsylvania. Please direct the Sheriff to schedule the turn-over for September 1, 2006. Date: 'l J 12 }o& Respectfully teven M. Williams, I.D.# 62051 508 North Second Street Post Office Box 845 Harrisburg, PA 17108-0845 (717) 234-4182 Attorney for Plaintiff F:\smw\7922 (SILVER SPRING SQUARE II, LP)\13901 (CREMO'S)\DOCUMENTS\PRAECIPE FOR WRIT OF POSSESSION.doc E ~ p. -'<l =+- ~ ~ ~ 1 ~ .-.a .()~, . 6, !rl ~ 0 ti c,~~..... ,. o & ~ --I C P - ~ r I \ t :V ~ ...... ,w ~ ~ ~ "rC'. - - ~ ~ ... ~~~ ~ ~ .. ~ d' -. '>\0... V\ (. - (r V ~ V\ l . ... 100 WRIT OF POSSESSION (Ejectment Proceedings PRCP3160-3165 etc.) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGENCY REALTY GROUP, INC., T/A SILVER SPRING SQUARE II, LP VS. No, 06-2431 Civil Term_ METRO CREMO & SONS, INe., T/A CREMO'S VARIETY OUTLET Costs Attorney's Plaintiffs Prothonotary $ 79.50 $ $ 1.00 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND: To the Sheriff of Cumberland County, Pennsylvania (1) To satisfy the judgment for possession in the above matter you are directed to deliver possession of the following described property to: (Plaintiff (s)) 6430 CARLISLE PIKE, MECHANICSBURG, P A being: (Premises as follows): (2) To satisfy the costs against the defendant (s) you are directed to levy upon any property of the defendant (s) and sell his/her (or their) interest therein. Curtis R. Long Prothonotary, Common Pleas Court of Cumberland County, PA Date JULY 13, 2006 (Seal) ~ 2.?[~P;!Y ,.-' 20f2 No 06-2431 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA REGENCY REALTY GROUP, INC., T/A SILVER SPRING SQUARE II, LP vs. METRO CREMO & SONS, INC., T/A CREMO'S VARIETY OUTLET 6430 CARLISLE PIKE MECHANICSBURG, P A WRIT OF POSSESSION P.R.c.P. 3160-3165 ETC. Costs Att'y P1ff (s1 Prothy Sheriff $ 79.50 $ $ 1.00 $ Plaintiff (s) attorney name and address: STEVEN M. WILLIAMS, ESQUIRE WIX,WENGER & WEIDNER 508 NORTH SECOND STREET P.O.BOX 845 HARRISBURG, PA 17108-0845 717-234-4182 LD.# 62501 Attorney for Plaintiff(s) Where papers may be served By virtue of this writ, on the _ day of , . I caused the within named , to have possession of the premises described with the appurtenances, and So Answers, .' . .,/ '-- Sworn and subscribed to before me this Day of Prothonotary Sheriff By Deputy . \ .... Sheriff's Return: Docketing Poundage Prothy Milage Surcharge Possession 18.00 1. 94 1. 00 17.60 30.00 30.00 98.54 Advance Costs: 150.00 ~ Sheriff's Costs:5~:~t Refunded to Atty on 9/5/06 V c;f/bl. ~ c. " ~ ..c. \.>.l - I,JO Ut, 5'534t ~ j fILl, '10 20f2 No 06-2431 Civil Term IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYL VANIA REGENCY REALTY GROUP, INC., T/A SILVER SPRING SQUARE II, LP vs. METRO CREMO & SONS, INC., T/A CREMO'S VARIETY OUTLET 6430 CARLISLE PIKE MECHANICSBURG, P A WRIT OF POSSESSION P.RC.P. 3160-3165 ETC. Costs Att'y Plff (s1 Prothy Sheriff $ 79.50 $- $ 1.00 $- Plaintiff (s) attorney name and address: STEVENM.vnLL~S,ESQUTIRE WIX,WENGER & WEIDNER 508 NORTH SECOND STREET P.O.BOX 845 HARRISBURG, PA 17108-0845 717 -234-4182 ID.# 62501 Attorney for Plaintiff (s) Where papers may be served By virtue of this writ, on the ~day of September; 2006 . I caused the within named Reg e n c y Rea 1 t y, e t. a 1to have possession of the premises described Nf(Jj{tK<< X ~~~~~~~ 6430 Carlisle Pike, Mechanicsburg, PA 17055 Sworn and subscribed to before me this Day of SO?~ ~ BJ\ (~~~ ~~ '--~ Deputy ProthonotarY ,> , " 10f2 WRIT OF POSSESSION (Ejectment Proceedings PRCP3160-3165 etc.) IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA REGENCY REALTY GROUP, INC., T/A SILVER SPRING SQUARE II, LP VS. No. 06-2431 Civil Term_ METRO CREMO & SONS, INC., T/A CREMO'S V ARIETY OUTLET Costs Attorney's Plaintiff s Prothonotary $ 79,50 $ $ 1.00 COMMONWEALTH OF PENNSYL VANIA: COUNTY OF CUMBERLAND: To the Sheriff of Cumberland County, Pennsylvania (1) To satisfy the judgment for possession in the above matter you are directed to deliver possession of the following described property to: (Plaintiff (s)) 6430 CARLISLE PIKE, MECHANICSBURG, P A being: (Premises as follows): (2) To satisfy the costs against the defendant (s) you are directed to levy upon any property ofthe defendant (s) and sell his/her (or their) interest therein. Curtis R. Long Prothonotary, Common Pleas Court of Cumberland County, P A Date JULY 13, 2006 (Seal) ~~e.7r~fR;-