AGREEMENT FOR PURCHASE AND SALE OF
REAL PROPERTY


 


CIRCLE K GAS & CONVENIENCE
– 2 PACK


 


THIS AGREEMENT (“Agreement”)
is made and entered into as of the Effective Date by and between AR CAPITAL, LLC (“Buyer”), and SUNSET ENTERPRISE TRUST
(“Seller”).


 


BACKGROUND


 


A.            Seller
is the Owner of each of the Properties listed on Exhibit A1 attached hereto (such entities listed on Exhibit A1 being
referred to herein individually as an “Affiliate” or “Seller’s Affiliate”, and two or more being
referred to herein collectively as the “Affiliates”).


 


B.            Buyer
desires to purchase the Property and Seller desires to sell the Property to Buyer on the terms and conditions set forth in this
Agreement.


 


In consideration of the mutual promises
set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto, intending to be legally bound, agree as follows:


 


1.            Terms
and Definitions. The terms listed below shall have the respective meaning given them as set forth adjacent to each term.


 


(a)           “Broker”
shall mean, Kase Abusharkh/The Kase Group and Marcus & Millichap acting as Seller’s agent.


 


(b)           “Closing”
shall mean the consummation of the transaction contemplated herein, which shall occur, subject to the extension set forth in Section
10 hereof, on or before May 4, 2012 but in no event prior to the last day of the Due Diligence Period (as defined herein). The
date of Closing is sometimes hereinafter referred to as the “Closing Date.” Neither party will need to
be present at Closing, it being anticipated that the parties will deliver all Closing documents and deliverables in escrow to the
Escrow Agent (or if both Buyer and Seller agree, to Buyer’s and/or Seller’s counsel) prior to the date of Closing.


 


(c)          
“Due Diligence Period” shall mean the period beginning upon the Effective Date and extending until 11:59
PM EST on the date that is twenty-eight (28) days thereafter. Seller shall deliver to Buyer all of the Material Due Diligence Materials
within five (5) business days after the Effective Date, and for each day that passes thereafter until all of the Due Diligence
Materials are delivered to Buyer, the Due Diligence Period and the Closing Date shall be extended by one (1) business day.


 


(d)          
“Earnest Money” shall mean One Hundred Ninety Eight Thousand Dollars ($198,000.00). The Earnest Money shall
be delivered to Escrow Agent within three (3) business days after the Effective Date. The Earnest Money shall be deposited by Buyer
in escrow with Escrow Agent, to be applied as part payment of the Purchase Price at the time the sale is closed, or disbursed as
agreed upon in accordance with the terms of this Agreement. Seller and Buyer each shall pay one-half of all reasonable escrow fees
charged by Escrow Agent.


 



    	 



    	 



    

 


(e)          
“Effective Date” This Agreement shall be signed by both Seller and Buyer. The date that is one (1) business
day after the date of execution and delivery of this Agreement by both Seller and Buyer shall be the “Effective Date”
of this Agreement.


 


(f)            “Escrow
Agent” shall mean Chicago Title Insurance Company, whose address is Suite 1325, 1515 Market Street, Philadelphia,
PA 19102-1930, Attention: Edwin G. Ditlow, Telephone: 215-875-4184; Telecopy: 215-732-1203; E-mail: ditlowE@ctt.com. The
parties agree that the Escrow Agent shall be responsible for (x) organizing the issuance of the Commitment and Title Policy, (y)
preparation of the closing statement, and (z) collections and disbursement of the funds.


 


(g)           “Guarantor”
shall mean Alimentation Couche-Tard, Inc.


 


(h)           “Guaranty”
or “Guaranties” shall mean those certain guaranties of each of the Leases executed by Guarantor.


 


(i)            “Lease”
or “Leases” shall mean those certain Leases described on Exhibit A2 attached hereto and made a part hereof
and referred to in Section 6(b)(i) of this Agreement between Seller or Seller’s Affiliates, as landlord, and Circle K Stores,
Inc. as tenant (“Tenant”), as amended.


 


(j)          
 “Property” shall collectively mean (i) those certain parcels of real property, all of which are listed on
Exhibit A1, together with all right, title and interest of the Affiliates, if any, in and to the land lying in the bed of any street
or highway in front of or adjoining such real property, and all appurtenances and all the estate and rights of the Affiliates,
if any, in and appurtenant to such parcels of real property, including, without limitation, all appurtenant easements and rights-of-way,
and Buildings (as hereinafter defined) and all other improvements thereon, and all air and subsurface rights appurtenant to such
parcels of real property, as the case may be (such parcels of real property, together with all such rights and appurtenances, being
collectively referred to herein as the “Land”); (ii) all of the buildings and improvements (each individually
called a “Building” and collectively called the “Buildings”) situated on the Land; (iii) all right, title
and interest of the Affiliates, if any, in and to the lighting, electrical, mechanical, plumbing and heating, ventilation and air
conditioning systems used in connection with the Land and the Buildings, and all carpeting, draperies, appliances and other fixtures
and equipment attached or appurtenant to the Land together with all personal property (other than furniture, equipment not necessary
to operate the Buildings or building systems and not permanently affixed to the Buildings or Land, trade fixtures and inventory)
owned by the Affiliates and located on the Land or on and/or in the Buildings (collectively, the “Personal Property”);
(iv) all right, title and interest of the Affiliates in and to all warranties and guaranties respecting the Buildings and Personal
Property; (v) to the extent not otherwise described in subsection (i), all right, title and interest of the Affiliates in and to
all leases respecting the Buildings and Personal Property, including, without limitation, all prepaid rent or security or other
deposits thereunder; (vi) all right, title and interest of Seller in and to all licenses, permits, authorizations and approvals
issued by any governmental agency or authority which pertain to the Land and the Buildings, to the extent they exist and are transferable
and assignable; and (vii) to the extent the same are assignable, all site plans, surveys, and plans which relate to the Land. Any
references to “Property” in the singular, such as references to “a Property” or “each


 



    	 



    	 



    

 


Property”,
refer to an individual parcel of Land and all matters described in (ii)-(vii) in connection with such Land.


 


(k)           “Purchase
Price” shall mean the amount listed for each Property as set forth opposite the designation of such Property on
Exhibit A1 attached hereto. The Purchase Price is based on a capitalization rate of 7.40% and the rents set forth on Exhibit
A2.


 


(l)            Seller
and Buyer’s Notice address 


 


(i)          “Seller’s
Notice Address” shall be as follows, except as same may be changed pursuant to the Notice section herein:


 


Anthony J. Florentine


Sunset Enterprise Trust


626 N. Mountain View Pl.


Fullerton, CA 92831


Tel. No.: (714)870-5278


Email: aflor1@roadrunner.com


 


(ii)         “Buyer’s
Notice Address” shall be as follows, except as same may be changed pursuant to the Notice section herein:


 


Michael Weil


AR Capital, LLC


405 Park Avenue, 15th Floor


New York, NY 10022


Tel. No.: (212) 415-6505


Fax No.: (857) 207-3397


Email: mweil@arlcap.com


 


And to:


 


Jesse Galloway


AR Capital, LLC


405 Park Avenue, 15th Floor


New York, NY 10022


Tel. No.: (212) 415-6516


Fax No.: (646) 861-7751


Email: jgalloway@arlcap.com


 


And Due Diligence Materials (if provided by email) to:


 


duediligence@arlcap.com


 


With hard copies and/or cds to:


 


James A. (Jim) Mezzanotte


 



    	 



    	 



    

 


AR Capital, LLC


202 E Franklin Street


Monroe, NC 28112


Tel. No.: (212) 415-6570


Fax No.: (212) 415-6507


Email: jmezzanotte@arlcap.com


 


2.            Purchase
and Sale of the Property. Subject to the terms of this Agreement, Seller agrees to sell, or Seller shall cause Seller’s
respective Affiliate to sell, to Buyer the Property for the Purchase Price set forth above. Seller agrees that it shall cause its
Affiliates to perform all of the obligations of “Seller” hereunder with respect to the Property or Properties owned
by such Affiliate as set forth on Exhibit A1 provided that this shall not release Seller from the obligations of the “Seller”
under this Agreement.


 


3.            Purchase
Price. 


 


(a)          The
Purchase Price to be paid by Buyer to Seller shall be paid by wire transfer of immediately available funds in the amount of the
Purchase Price plus or minus prorations, credits and adjustments as provided in Section 4 and elsewhere in this Agreement to Escrow
Agent, at the time of Closing, or as otherwise agreed to between Buyer and Seller.


 


4.            Proration
of Expenses and Payment of Costs and Recording Fees. 


 


(a)          All
real estate taxes, rollback taxes, personal property taxes, water and sewer use charges, and any other charges and assessments
constituting a lien on the Property (collectively “Taxes and Assessments”) due and payable on or before the Closing
Date shall be remitted to the collecting authorities or to the Escrow Agent by Seller prior to or at Closing. There shall be no
closing adjustments between the parties for Taxes and Assessments not yet due and payable at Closing as Tenant is responsible for
all such Taxes and Assessments due in accordance with the provisions of the Lease.


 


(b)          All
rents shall be prorated as of the Closing Date with Buyer being credited for rent attributable to the day of Closing through and
including the last day of the calendar month in which the Closing Date occurs; provided, however, if the Closing Date shall occur
within ten (10) days of the end of the month in which Closing occurs, Buyer and Seller agree that Buyer shall be credited with
the following month’s rent at Closing and Seller shall be entitled to retain any rents received by Seller that are attributable
to the month following the month in which the Closing Date occurs and Buyer agrees to the extent that it receives any rent attributable
to such month which was adjusted at Closing, it will refund such amount to Seller as soon as reasonably possible.


 


(c)          Seller
shall pay or be charged with the following costs and expenses in connection with this transaction which costs shall be referred
to as “Seller’s Closing Costs”:


 


(i)            Seller
shall provide Buyer and pay premiums for a standard CLTA Title policy.



    	 



    	 



    

 


(ii)           Transfer
taxes and conveyance fees on the sale and transfer of the Property shall be paid by Seller;


 


(iii)          Broker’s
commission payments (sales commissions earned), in accordance with Section 23 of this Agreement; and


 


(iv)          All
fees relating to the granting, executing and recording of the Deed for each Property and for any costs incurred in connection with
the release of existing debt, including, but not limited to, prepayment penalty fees and recording fees for documents providing
for the release of the applicable Property from the existing debt.


 


(d)          Buyer
shall pay or be charged with the following costs and expenses in connection with this transaction, which costs shall be referred
to as “Buyer’s Closing Costs”:


 


(i)            Title
Insurance policy premiums for any endorsements issued in connection with such policies other than endorsements that Seller elects
to purchase to cover title issues, if any, and other than a survey endorsement;


 


(ii)           all
costs and expenses in connection with Buyer’s financing, including appraisal, points, commitment fees and the like and costs
for the filing of all documents necessary to complete such financing and related documentary stamp tax and intangibles tax; and


 


(iii)          Buyer
shall pay for the cost of its own survey, Phase 1 environmental study and due diligence investigations.


 


(e)          Each
party shall pay its own legal fees incidental to the negotiation, execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby.


 


5.            Title.
At Closing, Seller agrees to convey to Buyer fee simple marketable title to each Property by special warranty deed, free and clear
of all liens, defects of title, conditions, easements, assessments, restrictions, and encumbrances except for Permitted Exceptions
(as hereinafter defined).


 


6.            Examination
of Property. Seller and Buyer hereby agree as follows:


 


(a)           Buyer
shall order a title commitment (the “Title Commitment”) from Escrow Agent, a survey and a zoning report for
the Property promptly after the date hereof. All matters shown in the Title Commitment, survey or zoning report (“Title
Matters”) with respect to which Buyer fails to object prior to the expiration of the Due Diligence Period shall be deemed
“Permitted Exceptions”. However, Permitted Exceptions shall not include any mechanic’s lien or
any monetary lien, or any deeds of trust, mortgage, or other loan documents secured by the Property, (collectively, “Liens”).
Seller shall be required to cure or remove all Liens (by payment, bond deposit or indemnity acceptable to Escrow Agent). Seller
agrees to remove or cure any objections of Buyer which are of a nature that are capable of being cured with reasonable efforts
prior to Closing. Seller shall have no obligation to cure any Title Matter objected to, except as aforesaid, provided Seller notifies
Buyer of any objections which Seller


 



    	 



    	 



    

 


elects not to remove or cure within
five (5) business days following receipt of Buyer’s objections. In the event that Seller refuses to remove or cure any objections,
Buyer shall have the right to terminate this Agreement upon written notice to Seller given within five (5) business days after
receipt of Seller’s notice, upon which termination the Earnest Money shall be returned to Buyer and neither party shall have
any further obligation hereunder, except as otherwise expressly set forth herein. If any matter not revealed in the Title Commitment
is discovered by Buyer or by the Escrow Agent and is added to the Title Commitment by the Escrow Agent at or prior to Closing,
Buyer shall have until the earlier of (i) ten (10) days after the Buyer’s receipt of the updated, revised Title Commitment
showing the new title exception, together with a legible copy of any such new matter, or (ii) the date of Closing, to provide Seller
with written notice of its objection to any such new title exception (an “Objection”). If Seller does not remove or
cure such Objection prior to the date of Closing, Buyer may terminate this Agreement, in which case the Earnest Money shall be
returned to Buyer, Seller shall reimburse Buyer for all out of pocket costs and expenses incurred hereunder and neither party shall
have any further obligation hereunder, except as otherwise expressly set forth herein.


 


(b)           Within
five (5) days following the Effective Date, Seller shall provide to Buyer copies of the following documents and materials pertaining
to each Property to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s counsel: (i)
a complete copy of all leases affecting the Property and all amendments thereto and of all material correspondence relating thereto;
(ii) a copy of all surveys and site plans of the Property, including without limitation any  (iv)
a copy of Seller’s title insurance commitments and policies relating to the Property; (vi) a copy of all environmental, engineering
and physical condition reports for the Property; (vii) copies of the Property’s real estate tax bills for the current and
prior two (2) tax years or, if the Property has been owned by Seller for less than two (2) tax years, for the period of ownership;
(ix) the operating statements of the Property for the twenty four (24) calendar months immediately preceding the Effective Date
or if the Tenant has been operating for less than twenty-four (24) months, for the period of operation; (x) and insurance policies
which affect the Property, if any; (xi) (xii) a written inventory of all items of personal property to be conveyed to Buyer, if
any (the “Due Diligence Materials”). Seller shall deliver any other documents relating to each Property
reasonably requested by Buyer, to the extent within Seller’s possession or reasonably obtainable by Seller or Seller’s
counsel, within three (3) business days following such request. Additionally, during the term of this Agreement, Buyer, its agents
and designees, shall have the right to enter the Property for the purposes of inspecting the Property, conducting soil tests, and
making surveys, mechanical and structural engineering studies, inspecting construction, and conducting any other investigations
and inspections as Buyer may reasonably require to assess the condition and suitability of the Property; provided, however, that
such activities by or on behalf of Buyer on the Property shall not damage the Property nor interfere with construction on the Property
or the conduct of business by Tenant under the Lease; and provided further, however, that Buyer shall indemnify and hold Seller
harmless from and against any and all claims or damages to the extent resulting from the activities of Buyer on the Property, and
Buyer shall repair any and all damage caused, in whole or in part, by Buyer and return the Property to its condition prior to such
damage, which obligation shall survive Closing or any termination of this Agreement. Seller shall reasonably cooperate with the
efforts of Buyer and the Buyer’s representatives to inspect the Property. After the Effective Date, Buyer shall be permitted
to speak and meet with Tenant in connection with Buyer’s due diligence. Upon signing this agreement, Seller shall provide
Buyer with the name of a contact person(s) for the


 



    	 



    	 



    

 


purpose of arranging site visits. Buyer
shall give Seller reasonable written notice (which in any event shall not be less than two (2) business days) before entering the
Property, and Seller may have a representative present during any and all examinations, inspections and/or studies on the Property.
Buyer shall have the unconditional right, for any reason or no reason, to terminate this Agreement with respect to any Property
by giving written notice thereof to Seller prior to the expiration of the Due Diligence Period, in which event this Agreement shall
become null and void as to such Property, Buyer shall receive a refund of the Earnest Money, and all rights, liabilities and obligations
of the parties under this Agreement shall expire as to such Property, except as otherwise expressly set forth herein.


 


(c)           Within
five (5) days following the Effective Date Seller shall request Estoppel Certificates certified to Buyer, the Approved Assignees
and their Lender, successors and assigns (and simultaneously provide Buyer with a copy of such request) and a Waiver of Tenant’s
right of first refusal. It shall be a condition of Closing that Seller shall have obtained an estoppel certificate from Tenant
in the form attached hereto as Exhibit F for each Property (the “Tenant Estoppel Certificate”) and an estoppel certificate
from Guarantor in the form attached hereto as Exhibit G for each Property (the “Guarantor Estoppel Certificate”), and
Seller shall use good faith efforts to obtain the same. Seller shall promptly deliver to Buyer photocopies or pdf files of the
executed estoppel certificates when Seller receives the same.


 


(d)           Seller
shall use good faith efforts to obtain a subordination, non-disturbance and attornment agreement from Tenant in form and substance
reasonably acceptable to Buyer and Buyer’s Lender, if applicable (the “SNDA”).


 


(e)           Seller
shall use good faith efforts to obtain estoppel certificates with respect to reciprocal easement agreements as may be reasonably
requested by Buyer.


 


7.            Risk
of Loss/Condemnation. Upon an occurrence of a casualty, condemnation or taking with respect to any Property, Seller shall notify
Buyer in writing of same. Until Closing, the risk of loss or damage to the Property, except as otherwise expressly provided herein,
shall be borne by Seller. In the event all or any portion of any Property is damaged in any casualty or condemned or taken (or
notice of any condemnation or taking is issued) so that: (a) Tenant has a right of termination or abatement of rent under the Lease
for such Property, or (b) with respect to any casualty, if the cost to repair such casualty would exceed $50,000, or (c) with respect
to any condemnation, any Improvements or access to the Property or more than five percent (5%) of the Property is (or will be)
condemned or taken, then, Buyer may elect to terminate this Agreement with respect to each such Property by providing written notice
of such termination to Seller within ten (10) business days after Buyer’s receipt of notice of such condemnation, taking
or damage, upon which termination a proportionate part of the Earnest Money shall be returned to the Buyer in accordance with the
Purchase Price as set forth on Exhibit A1 and neither party hereto shall have any further rights, obligations or liabilities under
this Agreement with respect to such Property, except as otherwise expressly set forth herein. With respect to any condemnation
or taking (of any notice thereof), if Buyer does not elect to cancel this Agreement as aforesaid, there shall be no abatement of
the Purchase Price and Seller shall assign to Buyer at the Closing the rights of Seller to the awards, if any, for the condemnation
or taking, and Buyer shall be entitled to receive and keep all such awards. With respect to a casualty, if Buyer does not elect
to terminate this Agreement with respect to any such


 



    	 



    	 



    

 


Property or does not have the right
to terminate this Agreement as aforesaid, there shall be no abatement of the Purchase Price and Seller shall assign to Buyer at
the Closing the rights of Seller to the proceeds under Seller’s insurance policies covering such Property with respect to
such damage or destruction (or pay to Buyer any such proceeds received prior to Closing) and pay to Buyer the amount of any deductible
with respect thereto, and Buyer shall be entitled to receive and keep any monies received from such insurance policies.


 


8.            Earnest
Money Disbursement. The Earnest Money shall be held by Escrow Agent, in trust, and disposed of only in accordance with the
following provisions:


 


(a)            If
the Closing occurs, Escrow Agent shall deliver the Earnest Money to, or upon the instructions of, Seller and Buyer on the Closing
Date to be applied as part payment of the Purchase Price. If for any reason the Closing does not occur, Escrow Agent shall deliver
the Earnest Money to Seller or Buyer only upon receipt of a written demand therefor from such party, subject to the following provisions
of this clause (a). Subject to the last sentence of this clause (a), if for any reason the Closing does not occur and either party
makes a written demand (the “Demand”) upon Escrow Agent for payment of the Earnest Money, Escrow Agent shall give written
notice to the other party of the Demand within one business day after receipt of the Demand. If Escrow Agent does not receive a
written objection from the other party to the proposed payment within five (5) business days after the giving of such notice by
Escrow Agent, Escrow Agent is hereby authorized to make the payment set forth in the Demand. If Escrow Agent does receive such
written objection within such period, Escrow Agent shall continue to hold such amount until otherwise directed by written instructions
signed by Seller and Buyer or a final judgment of a court. Notwithstanding the foregoing provisions of this clause (a) if Buyer
delivers a notice to Escrow Agent stating that Buyer has terminated this Agreement on or prior to the expiration of the Due Diligence
Period, then Escrow Agent shall immediately return the Earnest Money to Buyer without the necessity of delivering any notice to,
or receiving any notice from Seller.


 


(b)           The
parties acknowledge that Escrow Agent is acting solely as a stakeholder at their request and for their convenience, that Escrow
Agent shall not be deemed to be the agent of either of the parties, and that Escrow Agent shall not be liable to either of the
parties for any action or omission on its part taken or made in good faith, and not in disregard of this Agreement, but shall be
liable for its negligent acts and for any liabilities (including reasonable attorneys’ fees, expenses and disbursements)
incurred by Seller or Buyer resulting from Escrow Agent’s mistake of law respecting Escrow Agent scope or nature of its duties.
Seller and Buyer shall jointly and severally indemnify and hold Escrow Agent harmless from and against all liabilities (including
reasonable attorneys’ fees, expenses and disbursements) incurred in connection with the performance of Escrow Agent’s
duties hereunder, except with respect to actions or omissions taken or made by Escrow Agent in bad faith, in disregard of this
Agreement or involving negligence on the part of Escrow Agent. Escrow Agent has executed this Agreement in the place indicated
on the signature page hereof in order to confirm that Escrow Agent has received and shall hold the Earnest Money in escrow, and
shall disburse the Earnest Money pursuant to the provisions of this Section 8.


 


9.            Default


 



    	 



    	 



    

 


(a)            In
the event that Seller is ready, willing and able to close in accordance with the terms and provisions hereof, and Buyer defaults
in any of its obligations undertaken in this Agreement, Seller shall be entitled to, as its sole and exclusive remedy to either:
(i) if Buyer is willing to proceed to Closing, waive such default and proceed to Closing in accordance with the terms and provisions
hereof; or (ii) declare this Agreement to be terminated, and Seller shall be entitled to immediately receive all of the Earnest
Money as liquidated damages as and for Seller’s sole remedy. Upon such termination, neither Buyer nor Seller shall have any
further rights, obligations or liabilities hereunder, except as otherwise expressly provided herein. Seller and Buyer agree that
(a) actual damages due to Buyer’s default hereunder would be difficult and inconvenient to ascertain and that such amount
is not a penalty and is fair and reasonable in light of all relevant circumstances, (b) the amount specified as liquidated damages
is not disproportionate to the damages that would be suffered and the costs that would be incurred by Seller as a result of having
withdrawn the Property from the market, and (c) Buyer desires to limit its liability under this Agreement to the amount of the
Earnest Money paid in the event Buyer fails to complete Closing. Seller hereby waives any right to recover the balance of the Purchase
Price, or any part thereof, and the right to pursue any other remedy permitted at law or in equity against Buyer. In no event under
this Section or otherwise shall Buyer be liable to Seller for any punitive, speculative or consequential damages.


 


(b)            In
the event of a default in the obligations herein taken by Seller, or in the event of the failure of a condition precedent set forth
in Section 13 of this Agreement, with respect to any or all of the Properties, Buyer may, as its sole and exclusive remedy, either:
(i) waive any unsatisfied conditions and proceed to Closing in accordance with the terms and provisions hereof; (ii) terminate
this Agreement with respect to any or all Properties by delivering written notice thereof to Seller no later than Closing, upon
which termination the Earnest Money shall be refunded to Buyer, which return shall operate to terminate this Agreement and release
Seller and Buyer from any and all liability hereunder, except those which are specifically stated herein to survive any termination
hereof; (iii) enforce specific performance of Seller’s obligations hereunder or (iv) by notice to Seller given on or before
the Closing Date, extend the Closing Date for a period of up to thirty (30) days (the “Closing Extension Period”) to
permit Seller to remedy any such default, and the “Closing Date” shall be moved to the last day of the Closing Extension
Period. If Buyer so extends the Closing Date, then Seller may, but shall not be obligated to, cause said conditions to be satisfied
during the Closing Extension Period. If Seller does not cause said conditions to be satisfied during the Closing Extension Period,
then Buyer shall have the remedies set forth in Section 9(b) (i) through (iii) above except that the term “Closing”
shall be revised to reflect the Buyer’s election of remedies under this Section 9(b).


 


Notwithstanding the foregoing, in
the event of a willful or intentional default of Seller hereunder, Buyer shall, in addition to the foregoing remedies, be permitted
to pursue any and all rights and remedies available to Buyer at law or in equity; provided, however, in no event shall Seller be
liable to Buyer for any punitive, speculative or indirect consequential damages.


 


10.         Closing.
The Closing shall consist of the execution and delivery of documents by Seller and Buyer with respect to each Property as set forth
below, and delivery by Buyer to Seller of the Purchase Price in accordance with the terms of this Agreement. Seller shall deliver
to Escrow Agent for the benefit of Buyer at Closing the following executed documents for each Property:


 



    	 



    	 



    

 


(a)           A
Special Warranty Deed in the form attached hereto as Exhibit B;


 


(b)           An
Assignment and Assumption of Lease and Security Deposits, in the form attached hereto as Exhibit C;


 


(c)           A
Bill of Sale for the personal property, if any, in the form attached hereto as Exhibit D;


 


(d)           An
Assignment of Contracts, Permits, Licenses and Warranties in the form of Exhibit E;


 


(e)           An
original Tenant Estoppel Certificate dated no earlier than 30 days prior to the date of Closing. In addition, the business terms
of the Tenant Estoppel Certificate must be in accordance with and not contradict the Lease. If the Lease and any amendments, bearing
the original signatures of the landlord and tenant thereunder have not been delivered to Buyer previously, a copy thereof confirming
that the copy is true, correct and complete shall be attached to the Tenant Estoppel;


 


(f)            To
the extent obtained by Seller, estoppel certificates with respect to reciprocal easement agreements as may be reasonably requested
by Buyer;


 


(g)           Originals
of the Warranties (as hereinafter defined);


 


(h)          
An original Guarantor Estoppel Certificate dated no earlier than 10 days prior to the date of Closing;


 


(i)            A
settlement statement setting forth the Purchase Price, all prorations and other adjustments to be made pursuant to the terms hereof,
and the funds required for Closing as contemplated hereunder;


 


(j)            All
transfer tax statements, declarations and filings as may be necessary or appropriate for purposes of recordation of the deed;


 


(k)           Good
standing certificates and corporate resolutions or member or partner consents, as applicable, and such other documents as reasonably
requested by Escrow Agent


 


(l)            A
certificate pursuant to Section 1445 of the Internal Revenue Code of 1986, as amended, or the regulations issued pursuant thereto,
certifying the non foreign status of Seller;


 


(m)          An
owner’s title affidavit as to mechanics’ liens and possession and other matters in customary form reasonably acceptable
to Buyer and Escrow Agent;


 


(n)           An
original SNDA fully executed and notarized by Tenant, if requested by Buyer;


 


(o)           Letter
to Tenant in form of Exhibit H attached hereto;


 



    	 



    	 



    

 


(p)           A
certificate of insurance or other evidence reasonably satisfactory to Buyer memorializing and confirming that Tenant is then maintaining
policies of insurance of the types and in the amounts required by the Lease, which shall name Buyer and its mortgagee as additional
insured parties and/or as loss payees and/or mortgagees, as appropriate, as their respective interests may appear; and


 


(q)           Such
other instruments as are reasonably required by Buyer or Escrow Agent to close the escrow and consummate the purchase of the Property
in accordance with the terms hereof.


 


At Closing, Buyer shall instruct Escrow
Agent to deliver the Earnest Money to Seller which shall be applied to the Purchase Price, shall deliver the balance of the Purchase
Price to Seller and shall execute and deliver execution counterparts of the closing documents referenced in clauses (b) and (i)
above. Buyer shall have the right to advance the Closing upon five (5) days prior written notice to Seller; provided that all conditions
precedent to both Buyer’s and Seller’s respective obligations to proceed with Closing under this Agreement have been
satisfied (or, if there are conditions to a party’s obligation to proceed with Closing that remain unsatisfied, such conditions
have been waived by such party). Buyer shall have a one time right to extend the Closing for up to fifteen (15) business days upon
written notice to Seller to be received by Seller on or prior to the date scheduled for the Closing. If Buyer timely exercises
this right to extend, any document that Seller is obligated to provide that is “time sensitive” does not need to be
provided again by Seller. The Closing shall be held through the mail by delivery of the closing documents to the Escrow Agent on
or prior to the Closing or such other place or manner as the parties hereto may mutually agree.


 


11.          Representations
by Seller. For the purpose of inducing Buyer to enter into this Agreement and to consummate the sale and purchase of the Property
in accordance herewith, Seller and each Affiliate (collectively referred to in this Section 11 as Seller) makes the following representations
and warranties to Buyer as of the date hereof and as of the Closing Date with respect to the Property:


 


(a)           Seller
is duly organized (or formed), validly existing and in good standing under the laws of its state of organization, and to the extent
required by law, the State in which the Property is located. Seller has the power and authority to execute and deliver this Agreement
and all closing documents to be executed by Seller, and to perform all of Seller’s obligations hereunder and thereunder.
Neither the execution and delivery of this Agreement and all closing documents to be executed by Seller, nor the performance of
the obligations of Seller hereunder or thereunder will result in the violation of any law or any provision of the organizational
documents of Seller or will conflict with any order or decree of any court or governmental instrumentality of any nature by which
Seller is bound;


 


(b)           Seller
has not received any written notice of any current or pending litigation, condemnation proceeding or tax appeals affecting Seller
or the Property and Seller does not have any knowledge of any pending litigation or tax appeals against Seller or the Property;
Seller has not initiated, nor is Seller participating in, any action for a change or modification in the current subdivision, site
plan, zoning or other land use permits for the Property;


 



    	 



    	 



    

 


(c)           Seller
has not entered into any contracts, subcontracts or agreements affecting the Property which will be binding upon Buyer after the
Closing other than the Lease;


 


(d)           Except
for violations cured or remedied on or before the date hereof, Seller has not received any written notice from (or delivered any
notice to) any governmental authority regarding any violation of any law applicable to the Property and Seller does not have knowledge
of any such violations;


 


(e)           Seller
has fee simple title to the Property free and clear of all liens and encumbrances except for Permitted Exceptions and Seller is
the sole owner of the entire lessor’s interest in the Lease. The Property constitutes one or more separate tax parcels for
purposes of ad valorem taxation;


 


(f)           With
respect to the Leases: (i) the Leases forwarded to Buyer under Section 6(b)(i) are true, correct and complete copies of the Leases;
(ii) the Leases are in full force and effect and there is no default thereunder; (iii) no brokerage or leasing commissions or other
compensation is or will be due or payable to any person, firm, corporation or other entity with respect to or on account of the
current term of the Leases or any extension or renewal thereof; (iv) Seller has no outstanding obligation to provide Tenant with
an allowance to construct, or to construct at its own expense, any tenant improvements; and (v) the rent for each Property is as
set forth on Exhibit A2;


 


(g)           There
are no occupancy rights, leases or tenancies affecting the Property other than the Lease. Neither this Agreement nor the consummation
of the transactions contemplated hereby is subject to any first right of refusal or other purchase right in favor of any other
person or entity; and apart from this Agreement, Seller has not entered into any written agreements for the purchase or sale of
the Property, or any interest therein which has not been terminated; Notwithstanding the Right of First
Offer per the Lease Agreements.


 


(h)           The
transactions contemplated hereby either (i) will not constitute a sale of all or substantially all the assets of Seller, or (ii)
if such transaction does constitute a sale of all or substantially all the assets of any Seller, Seller shall provide to Buyer
at Closing an excise tax lien waiver or such other reasonably obtainable instruments evidencing compliance with laws or payment
of taxes to the extent required by the law of the relevant state, or an indemnification from a party reasonably acceptable to Buyer
for any resulting liability with respect to the period prior to the Closing;


 


(i)            To
Seller’s knowledge, except as set forth in the environmental reports previously delivered by Seller to Buyer, no hazardous
substances have been generated, stored, released, or disposed of on or about the Property in violation of any law, rule or regulation
applicable to the Property which regulates or controls matters relating to the environment or public health or safety (collectively,
“Environmental Laws”). Seller has not received any written notice from (nor delivered any notice to) any federal, state,
county, municipal or other governmental department, agency or authority concerning any petroleum product or other hazardous substance
discharge or seepage. For purposes of this Subsection, “hazardous substances” shall mean any substance or material
which is defined or deemed to be hazardous or


 



    	 



    	 



    

 


toxic pursuant to any Environmental
Laws. To Seller’s knowledge, there are no underground storage tanks located on the Property;


 


(j)            Exhibit
I attached hereto is a true, correct and complete listing of all warranties in effect for the Property (the “Warranties”).


 


The representations and warranties of Seller
shall survive Closing for a period of one (1) year. Seller's maximum liability under this section 11
shall be capped at $200,000.00 and Buyer may not bring a claim against Seller pursuant to this section 11 unless such claim is
a minimum of at least $50,000.00.


 


12.          Representations
by Buyer. Buyer represents and warrants to, and covenants with, Seller as follows:


 


(a)           Buyer
is duly formed, validly existing and in good standing under the laws of Delaware, is authorized to consummate the transaction set
forth herein and fulfill all of its obligations hereunder and under all closing documents to be executed by Buyer, and has all
necessary power to execute and deliver this Agreement and all closing documents to be executed by Buyer, and to perform all of
Buyer’s obligations hereunder and thereunder. This Agreement and all closing documents to be executed by Buyer have been
duly authorized by all requisite corporate or other required action on the part of Buyer and are the valid and legally binding
obligation of Buyer, enforceable in accordance with their respective terms. Neither the execution and delivery of this Agreement
and all closing documents to be executed by Buyer, nor the performance of the obligations of Buyer hereunder or thereunder will
result in the violation of any law or any provision of the organizational documents of Buyer or will conflict with any order or
decree of any court or governmental instrumentality of any nature by which Buyer is bound.


 


The representations and warranties of Buyer
shall survive Closing for a period of one (1) year.


 


13.          Conditions
Precedent to Buyer’s Obligations. Buyer’s obligation to pay the Purchase Price, and to accept title to the Property,
shall be subject to compliance by Seller or Affiliate, as the case may be, with the following conditions precedent for each Property
on and as of the date of Closing:


 


(a)           Seller
shall deliver to Buyer on or before the Closing the items set forth in Section 10 above;


 


(b)           Buyer
shall receive from Escrow Agent or any other title insurer approved by Buyer in its judgment and discretion, a current
CLTA owner’s form of title insurance policy, or irrevocable and unconditional binder to issue the same, with extended
coverage for the Real Property in the amount of the Purchase Price, dated, or updated to, the date of the Closing, insuring, or
committing to insure, at its ordinary premium rates Buyer’s good and marketable title in fee simple to the Real Property
and otherwise in such form and with such endorsements as provided in the title commitment approved by Buyer pursuant to Section
6 hereof and subject only to the Permitted Exceptions (the “Title Policy”);


 



    	 



    	 



    

 


(c)           Tenant
shall be in possession of the premises demised under the Leases, open for business to the public and paying full and unabated rent
under the Leases and Tenant shall not have assigned or sublet any of the Property;


 


(d)           The
representations and warranties of Seller contained in this Agreement shall have been true when made and shall be true in all material
respects at and as of the date of Closing as if such representations and warranties were made at and as of the Closing, and Seller
shall have performed and complied in all material respects with all covenants, agreements and conditions required by this Agreement
to be performed or complied with by Seller prior to or at the Closing;


 


(e)           Seller
shall have delivered to Buyer a written waiver by Tenant of any right of first refusal, right of first offer or other purchase
option that Tenant has pursuant to the Leases to purchase the Property from Seller; and


 


(f)           Seller
shall have made all contributions, payments and/or reimbursements and completed any and all work required by any governmental authority
in connection with the construction and development of the Property, including, without limitation, as required by any variance
or site plan approval.


 


In the event that the foregoing conditions
precedent have not been satisfied as of Closing, Buyer shall have the rights and remedies set forth in Section 9(b) of this Agreement.


 


14.          Conditions
Precedent to Seller’s Obligations. Seller’s obligation to deliver title to the Property shall be subject to compliance
by Buyer with the following conditions precedent on and as of the date of Closing:


 


(a)           Buyer
shall deliver to Escrow Agent on the Closing Date the remainder of the Purchase Price, subject to adjustment of such amount pursuant
to Section 2 hereof; and


 


(b)           The
representations and warranties of Buyer contained in this Agreement shall have been true when made and shall be true in all material
respects at and as of the date of Closing as if such representations and warranties were made at and as of the Closing, and Buyer
shall have performed and complied in all material respects with all covenants, agreements and conditions required by this Agreement
to be performed or complied with by Buyer prior to or at the Closing.


 


15.          Notices.
Unless otherwise provided herein, all notices and other communications which may be or are required to be given or made by any
party to the other in connection herewith shall be in writing and shall be deemed to have been properly given and received on the
date: (i) delivered by facsimile transmission or by electronic mail (e.g. email), (ii) delivered in person, (iii) deposited in
the United States mail, registered or certified, return receipt requested, or (iv) deposited with a nationally recognized overnight
courier, to the addresses set out in Section 1, or at such other addresses as specified by written notice delivered in accordance
herewith. Notwithstanding the foregoing, Seller and Buyer agree that notice may be given on behalf of each party by the counsel
for each party and notice by such counsel in accordance with this Section 15 shall constitute notice under this Agreement.


 



    	 



    	 



    

 


16.          Seller
Covenants. Seller agrees that Seller and/or each Affiliate with respect to each Property: (a) shall continue to operate and
manage the Property in the same manner in which Seller has previously operated and managed the Property; (b) shall, subject to
Section 7 hereof and subject to reasonable wear and tear, maintain each Property in the same (or better) condition as exists on
the date hereof; and (c) shall not, without Buyer’s prior written consent, which, after the expiration of the Due Diligence
Period may be withheld in Buyer’s sole discretion: (i) amend the Leases in any manner, nor enter into any new lease, license
agreement or other occupancy agreement with respect to any Property; (ii) consent to an assignment of the Leases or a sublease
of the premises demised thereunder or a termination or surrender thereof; (iii) terminate the Leases nor release any guarantor
of or security for the Leases unless required by the express terms of the Leases; and/or (iv) cause, permit or consent to an alteration
of the premises demised thereunder (unless such consent is non-discretionary). Seller shall promptly inform Buyer in writing of
any material event adversely affecting the ownership, use, occupancy or maintenance of any Property, whether insured or not.


 


17.          Performance
on Business Days. A "business day" is a day which is not a Saturday, Sunday or legal holiday recognized by the Federal
Government. Furthermore, if any date upon which or by which action is required under this Agreement is not a business day, then
the date for such action shall be extended to the first day that is after such date and is a business day.


 


18.          Entire
Agreement. This Agreement constitutes the sole and entire agreement among the parties hereto and no modification of this Agreement
shall be binding unless in writing and signed by all parties hereto. No prior agreement or understanding pertaining to the subject
matter hereof (including, without limitation, any letter of intent executed prior to this Agreement) shall be valid or of any force
or effect from and after the date hereof.


 


19.          Severability.
 If any provision of this Agreement, or the application thereof to any person or circumstance, shall be invalid or unenforceable,
at any time or to any extent, then the remainder of this Agreement, or the application of such provision to persons or circumstances
other than those as to which it is invalid or unenforceable, shall not be affected thereby. Each provision of this Agreement shall
be valid and enforced to the fullest extent permitted by law


 


20.          No
Representations or Warranties. Buyer hereby acknowledges, understands and agrees that it has an opportunity to inspect the
Property as set forth in Section 6 herein, and except as set forth in this Agreement, the Property shall be conveyed at Closing
to Buyer in “as-is” condition with no representation or warranties whatsoever.


 


21.          Applicable
Law. This Agreement shall be construed under the laws of the State or Commonwealth in which the Property is located, without
giving effect to any state's conflict of laws principles.


 


22.          Tax-Deferred
Exchange. Buyer and Seller respectively acknowledge that the purchase and sale of the Property contemplated hereby may be part
of a separate exchange (an “Exchange”) being made by each party pursuant to Section 1031 of the Internal Revenue Code
of 1986, as amended, and the regulations promulgated with respect thereto. In the event that


 



    	 



    	 



    

 


either party (the “Exchanging
Party”) desires to effectuate such an exchange, then the other party (the “Non-Exchanging Party”) agrees to cooperate
fully with the Exchanging Party in order that the Exchanging Party may effectuate such an exchange; provided, however, that with
respect to such Exchange (a) all additional costs, fees and expenses related thereto shall be the sole responsibility of, and borne
by, the Exchanging Party; (b) the Non-Exchanging Party shall incur no additional liability as a result of such exchange; (c) the
contemplated exchange shall not delay any of the time periods or other obligations of the Exchanging Party hereby, and without
limiting the foregoing, the scheduled date for Closing shall not be delayed or adversely affected by reason of the Exchange; (d)
the accomplishment of the Exchange shall not be a condition precedent or condition subsequent to the Exchanging Party's obligations
under the Agreement; and (e) the Non-Exchanging Party shall not be required to hold title to any land other than the Property for
purposes of the Exchange. The Exchanging Party agrees to defend, indemnify and hold the Non-Exchanging Party harmless from any
and all liability, damage or cost, including, without limitation, reasonable attorney's fees that may result from Non-Exchanging
Party's cooperation with the Exchange. The Non-Exchanging Party shall not, by reason of the Exchange, (i) have its rights under
this Agreement, including, without limitation, any representations, warranties and covenants made by the Exchanging Party in this
Agreement (including but not limited to any warranties of title, which, if Seller is the Exchanging Party, shall remain warranties
of Seller), or in any of the closing documents (including but not limited to any warranties of title, which, if Seller is the Exchanging
Party, shall remain warranties of Seller) contemplated hereby, adversely affected or diminished in any manner, or (ii) be responsible
for compliance with or deemed to have warranted to the Exchanging Party that the Exchange complies with Section 1031 of the Code.


 


23.          Broker’s
Commissions. Buyer and Seller each hereby represent that, except for the Broker listed herein, there are no other brokers involved
or that have a right to proceeds in this transaction. Seller shall be responsible for payment of commissions to the Broker pursuant
to a separate written agreement executed by Seller. Seller and Buyer each hereby agree to indemnify and hold the other harmless
from all loss, cost, damage or expense (including reasonable attorneys' fees at both trial and appellate levels) incurred by the
other as a result of any claim arising out of the acts of the indemnifying party (or others on its behalf) for a commission, finder's
fee or similar compensation made by any broker, finder or any party who claims to have dealt with such party (except that Buyer
shall have no obligations hereunder with respect to any claim by Broker). The representations, warranties and indemnity obligations
contained in this section shall survive the Closing or the earlier termination of this Agreement.


 


24.          Assignment.
Buyer may assign its rights under this Agreement, provided, however, that no such assignment shall relieve Buyer of any of its
obligations hereunder until Closing is complete. Buyer is entering into this Agreement for and on behalf of related special purpose
entities as set forth on Exhibit A1 (each an “Approved Assignee”) and intends to assign each respective Approved Assignee
its rights hereunder prior to Closing.


 


25.          Attorneys’
Fees. In any action between Buyer and Seller as a result of failure to perform or a default under this Agreement, the prevailing
party shall be entitled to recover from the other party, and the other party shall pay to the prevailing party, the prevailing
party’s attorneys’ fees and disbursements and court costs incurred in such action.


 



    	 



    	 



    

 


26.          Time
of the Essence. Time is of the essence with respect to each of Buyer’s and Seller’s obligations hereunder.


 


27.          Counterparts.
This Agreement may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and shall
become a binding agreement when one or more counterparts have been signed by each of the parties and delivered to the other party.
Signatures on this Agreement which are transmitted by electronically shall be valid for all purposes; however any party shall deliver
an original signature on this Agreement to the other party upon request.


 


28.          Anti-Terrorism.
Neither Buyer or Seller, nor any of their affiliates, are in violation of any Anti-Terrorism Law (as hereinafter defined) or engages
in or conspires to engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or attempts to violate,
any of the prohibitions set forth in any Anti-Terrorism Law. “Anti-Terrorism Laws” shall mean any laws relating to
terrorism or money laundering, including: Executive Order No. 13224; the Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism Act of 2001, Public Law 107-56, as the same has been, or may hereafter be, renewed,
extended, amended or replaced; the applicable laws comprising or implementing the Bank Secrecy Act; and the applicable laws administered
by the United States Treasury Department’s Office of Foreign Asset Control (as any of the foregoing may from time to time
be amended, renewed, extended, or replaced).


 


[SIGNATURES APPEAR ON THE FOLLOWING PAGES]


 



    	 



    	 



    

 


IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the Effective Date.


 













	BUYER:	 	SELLER:
	 	 	 
	AR CAPITAL, LLC,	 	SUNSET ENTERPRISE TRUST
	a Delaware limited liability company	 	 











 





	By:	/s/ Edward M. Weil, Jr.	 	By:	/s/ Anthony Florentine
	 	Name:	Edward M. Weil, Jr.	 	 	Name:	Anthony J. Florentine
	 	Title:	President	 	 	Title:	Trustee
	 	 	 	 	 	 	 
	Date:	4/13/2012	 	Date:	4/13/2012







  


THE UNDERSIGNED HEREBY ACKNOWLEDGES AND AGREES TO BE BOUND BY
THE TERMS OF THIS AGREEMENT RELATING TO ESCROW AGENT AND THE DEPOSIT.


 


ESCROW AGENT:


 


CHICAGO TITLE INSURANCE COMPANY


 


	By:	 	 
	 	 	 
	Name:	 	 
	 	 	 
	Title:	 	 
	 	 	 
	Date:	 	 


 



    	 



    	 



    

 


EXHIBITS


 


	Exhibit A1	-	List of Properties
	 	 	 
	Exhibit A2	-	List of Leases and Rents
	 	 	 
	Exhibit B	-	Form of Special Warranty Deed
	 	 	 
	Exhibit C	-	Form of Assignment and Assumption of Lease
	 	 	 
	Exhibit D	-	Form of Bill of Sale
	 	 	 
	Exhibit E	-	Form of Assignment of Contracts, Permits, Licenses and Warranties
	 	 	 
	Exhibit F	-	Form of Tenant Estoppel
	 	 	 
	Exhibit G	-	Form of Guarantor Estoppel
	 	 	 
	Exhibit H	-	Form of Tenant Notice
	 	 	 
	Exhibit I	-	Warranties