ASSIGNMENT OF AGREEMENT OF PURCHASE AND SALE

 

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                  ASSIGNMENT OF AGREEMENT OF PURCHASE AND SALE

 

                  C & F DEVELOPMENT ASSOCIATES, LLC, AS SELLER

                                       AND

                             SERIES C, LLC, AS BUYER

 

      ASSIGNOR, for good and valuable consideration, the receipt and sufficiency

of which is hereby acknowledged, does hereby assign all of its right, title and

interest in that certain Agreement of Purchase and Sale ("Purchase Agreement")

described herein, to ASSIGNEE and its successors and assigns. The Purchase

Agreement is described as follows:

 

      DATE OF AGREEMENT: August 2, 2005; amended August 12, 2005 and August 31,

                         2005

 

      ORIGINAL BUYER:     Series C, LLC

 

      ASSIGNED TO:        Cole TS Parkersburg WV, LLC

 

      PROPERTY ADDRESS:   101 Tara Lane, Parkersburg, West Virginia

 

      ASSIGNOR acknowledges that it is not released from any and all obligations

or liabilities under said Purchase Agreement with the exception of the earnest

money deposit which is currently in escrow.

 

      ASSIGNEE hereby agrees to assume and be responsible for all obligations

and liabilities under said Purchase Agreement. This Assignment shall be in full

force and effect upon its full execution.

 

      Executed this 23rd day of September, 2005.

 

ASSIGNOR:                                   ASSIGNEE:

 

SERIES C, LLC                               COLE TS PARKERSBURG WV, LLC

 

                                           By:   Cole REIT Advisors II, LLC

By: /s/ John M. Pons                              its Manager

    -----------------

    John M. Pons

    Authorized Officer

 

                                           By: /s/ John M. Pons

                                               -------------------

                                                John M. Pons

                                               Senior Vice President

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                         AGREEMENT OF PURCHASE AND SALE

 

      This Agreement of Purchase and Sale ("Agreement") is entered into

effective the 2nd day of August, 2005, among C & F DEVELOPMENT ASSOCIATES, LLC,

a West Virginia limited liability company ("Buyer"), SERIES C, LLC, an Arizona

limited liability company ("Buyer"), and Fidelity National Title Insurance

Company ("Escrow Agent").

 

                                     RECITALS:

 

      A. Seller is the owner of approximately 2.966 acres of land (the "Land")

located at the intersection of U.S. Route 14 and Pike Street near I-77,

Parkersburg, WV, and more particularly described on Exhibit "A" attached hereto.

 

      B. Seller is the landlord under that certain lease (the "Lease") dated

November 12, 2004, between Seller, as landlord, and Tractor Supply Company, a

Delaware corporation ("Tenant"), whereby Seller shall construct a Tractor Supply

store on the Land to be occupied by Tenant.

 

      C. Seller desires to sell the Land and assign its interest in the Lease,

and Buyer desires to purchase the Land and assume Seller's interest in the

Lease, upon the terms and conditions hereinafter set forth.

 

       NOW, THEREFORE, for good and valuable consideration, and in consideration

of the foregoing recitals, the mutual benefits to be gained by the performance

hereof, Seller, Escrow Agent and Buyer hereby agree as follows:

 

                                     ARTICLE I

                                   DEFINITIONS

 

      1.1 Definitions. For purposes of this Agreement, the following terms shall

have the following meanings ascribed to them. Other terms are defined in the

section of this Agreement to which such terms relate.

 

      "Building" shall mean a Tractor Supply building consisting of

approximately 21,688 rentable square feet, built in accordance with the

Construction Documents and constructed in a good and workmanlike manner,

acceptable to the Tenant.

 

      "Certificate of Completion" shall mean a Certificate of Completion

executed by Seller's general construction contractor certifying that the

Building has been completed in substantial accordance with the Construction

Documents.

 

      "Certificate of Occupancy" shall mean a Certificate of Occupancy, or its

equivalent, issued by the applicable governmental authority, allowing the Tenant

to open for business to the public at the Project.

 

      "Closing" means the closing of the purchase and sale hereunder, as

described in Article V of this Agreement.

 

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      "Closing Date" shall mean the actual date that Buyer and Seller consummate

the transactions contemplated hereby and fulfill their respective obligations

hereunder.

 

      "Construction Documents" shall mean the final plans and specifications

with respect to construction of the Building in accordance with the terms of and

as required by the Lease.

 

      "Contracts" shall mean all of Seller's interest, to the extent

transferable, in all permits, licenses, warranties, contractual rights and

intangibles (including rights to the name of the improvements as well as

architectural/engineering plans) with respect to the operation, maintenance,

repair or improvement of the Project.

 

      "Due Diligence Period" shall mean the period of time commencing on the

date of this Agreement and ending on the 22nd calendar day after the date of

this Agreement.

 

      "Earnest Money" shall mean all amounts deposited with Escrow Agent

pursuant to Section 2.2 of this Agreement, together with all interest accrued

thereon.

 

      "Improvements" shall mean all improvements and fixtures on the Land.

 

      "Land" is defined in the recitals hereto.

 

      "Lease" is defined in the recitals hereto.

 

      "Parties" means Buyer, Seller and Escrow Agent.

 

      "Permitted Exceptions" shall mean the lien of taxes and assessments not

yet due and payable, easements, covenants and restrictions of record approved or

deemed approved by Buyer pursuant to the terms hereof.

 

      "Personal Property" shall mean Seller's interest, if any, in any

equipment, machinery and personal property located on or used in connection with

the Land and/or the Building.

 

      "Project" shall mean the Land, the Building, the Improvements, the

Contracts and the Personal Property.

 

      "Purchase Price" shall mean Three Million Two Hundred Fifty Nine Thousand

Two Hundred Forty Three and No/100 ($3,259,243.00) Dollars.

 

      "State" shall mean the State of West Virginia.

 

      "Survey" shall be defined in Article III of this Agreement.

 

      "Tenant" is defined in the recitals hereto.

 

      "Title Company" shall mean Escrow Agent, as such term is defined in the

introductory paragraph hereof.

 

      "Transfer Documents" shall mean the Deed, the Assignment of Lease, the

Bill of Sale and the Assignment Agreement (each, as defined in Section 5.3

hereof), in a form reasonably acceptable to Seller and Buyer.

 

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                                    ARTICLE II

                       PURCHASE AND SALE AND EARNEST MONEY

 

      2.1 Purchase and Sale. Seller hereby agrees to sell to Buyer, and Buyer

hereby agrees to purchase from Seller, upon the terms and conditions hereinafter

provided, the Project for the Purchase Price, in immediately available funds to

be paid by Buyer on the Closing Date.

 

      2.2 Earnest Money. Within five business days after the date of this

Agreement, Buyer shall deliver a deposit of Earnest Money in the amount of

$40,000.00 to the Escrow Agent. The Earnest Money shall thereafter be held by

the Escrow Agent in accordance with this Agreement. If the purchase and sale

hereunder is consummated in accordance with the terms and provisions hereof, the

Earnest Money shall be credited against the Purchase Price at the Closing. In

all other events, the Earnest Money shall be disposed of by the Escrow Agent as

herein provided.

 

                                   ARTICLE III

                                   INSPECTION

 

      3.1 Delivery of Documents. Seller shall, to the extent the same are in

Seller's possession or the possession of Seller's agents, provide Buyer with

true, accurate, and complete copies of the following: (a) a copy of Seller's

existing boundary survey; (b) a copy of the Lease; (c) a copy of permits from

the governmental agencies approving the construction of the Project; (d)

environmental reports with respect to the Land; (e) any appraisals prepared in

connection with the Project; (f) Construction Documents applicable to the

Project; and (g) a copy of Seller's existing title insurance policy together

with any easements, covenants, or restrictions placed against the Land

subsequent to the date of such title insurance policy.

 

      3.2 Inspection. Buyer may, in its sole and absolute discretion for any

reason or for no reason, terminate this Agreement and receive an immediate

return of the Earnest Money unless on or before the expiration of the Due

Diligence Period, Buyer has determined, to Buyer's sole satisfaction, that the

Project is suitable for Buyer's purposes in all respects. Unless Buyer notifies

Seller prior to the expiration of the Due Diligence Period that the Project is

suitable to Buyer in all respects, the Earnest Money shall promptly be returned

to Buyer and neither party shall have further obligations to the other. Failure

by Buyer to deliver such notice to Seller prior to the expiration of the Due

Diligence Period shall be deemed to be Buyer's election to terminate the

Agreement.

 

      3.3 Buyer's Access to the Project. Seller agrees to permit Buyer's agents

reasonable access to the Project during the Due Diligence Period for the

purposes of conducting engineering and feasibility studies and tests, provided

that such studies and tests do not result in any material damage to the present

character or topography of the Project. Buyer agrees to indemnify, defend and

hold harmless Seller from any liens, claims, loss, damages, injury to persons or

damage to Project, including improvements, located on the Project, and

attorneys' fees directly arising from Buyer's inspections, testing and exercise

of its right of access to the Project. Buyer will restore the Project to the

same condition after its inspections or testing has been completed as it was

prior to said inspections/testing.

 

      3.4 Title Commitment. During the Due Diligence Period, Buyer shall obtain

a current, effective commitment (the "Title Commitment") for an ALTA extended

coverage

 

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owner's title insurance policy issued by the Title Company, in the amount of the

Purchase Price with Buyer as the proposed insured (the "Owner's Policy"), and

accompanied by true, complete, and legible copies of all documents referred to

in the Title Commitment.

 

      3.5. Survey. During the Due Diligence Period, Buyer may obtain a current

survey of the Property (the "Survey"). In no event shall Seller be required to

obtain any new survey or update any existing survey of the Property, or provide

a survey affidavit or other similar document to any party.

 

      3.6. Title and Survey Review and Cure. (a) Upon its receipt of the Title

Commitment and Survey, Buyer shall deliver copies thereof to Seller and during

the Due Diligence Period may notify Seller of any title objections it may have.

Seller shall have ten (10) business days from its receipt of such notice to

respond to Buyer that it (a) will cure or otherwise remove such title objections

prior to Closing or (b) that it will not cure or otherwise remove such title

objections. Should Seller elect to proceed under clause (a) but shall not able

to obtain such removal or cure prior to Closing despite its good faith efforts

to do so, Seller shall be entitled to extend the Closing for a reasonable period

of time (not to exceed thirty (30) days) in which to complete such cure. Should

Seller elect to proceed under clause (b), Buyer shall have shall have five (5)

business days from its receipt of Seller's notice that it has elected to proceed

under clause (b) hereof, or until the end of the Due Diligence Period, whichever

is later, to notify Seller whether it will (a) terminate this Agreement and

receive a prompt return of the Earnest Money or (b) proceed under this Agreement

to Closing, without reduction or abatement of the Purchase Price. Seller's lack

of response shall be deemed to be Seller's notice that Seller has elected to

proceed under clause (b) hereof. Buyer's notice that the Project is suitable

made under Section 3.2 hereof shall be deemed an acceptance by Buyer of all

matters related to the title of the Land existing prior to the date of the Title

Commitment.

 

      (b) In the event the Title Commitment is amended to include new exceptions

that are not set forth in a prior version of the Title Commitment, Buyer shall

have until the later of (i) the expiration of the Due Diligence Period, or (ii)

the date seven (7) days after Buyer's receipt of the amended Title Commitment

and copies of the documents identified in the new exceptions or new

requirements, within which to cancel this Agreement and receive a refund of the

Earnest Money or to provisionally accept the title subject to Seller's agreement

to cause the removal of any disapproved exceptions or objections. If Seller

serves notice to Buyer that Seller does not intend to remove such new exceptions

and objections before Closing, Buyer shall, within ten (10) days thereafter,

notify Seller and Escrow Agent in writing of Buyer's election to either (i)

terminate this Agreement, whereupon the Earnest Money shall be returned to Buyer

and all obligations shall terminate, or (ii) Buyer may waive such objections and

the transaction shall close as scheduled. If written notice of objection to such

new exceptions or requirements is not timely given by Buyer to Seller pursuant

to this Section 3.6(b), then Buyer shall be deemed to have objected to all such

new objections or requirements.

 

      3.7. Title and Survey Costs. Buyer shall pay any and all costs related to

the Title Commitment and Owner's Policy. Buyer shall pay any and all costs

related to the Survey.

 

      3.8. Confidentiality. Neither Buyer nor Seller shall make public

announcement or disclosure of any information related to this Agreement to

outside brokers or third parties including tax assessors before the Closing

without the prior written specific consent of the other; provided, however, that

either may make disclosure of this Agreement to its attorneys, lenders,

contractors, creditors, officers, employees and agents as necessary to perform

its obligations and

 

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conduct investigations hereunder. The provisions of this section shall survive

termination of this Agreement for twelve (12) months.

 

                                   ARTICLE IV

                         REPRESENTATIONS AND WARRANTIES

 

      4.1 Seller's Representations and Warranties. In order to induce Buyer to

enter into this Agreement, Seller represents and warrants to Buyer that:

 

            (a) Seller is a limited liability company duly formed, validly

existing and in good standing under the laws of the State of West Virginia and

has all requisite right, power and authority to execute, deliver and perform

this Agreement;

 

            (b) This Agreement has been duly authorized for execution, delivery

and performance by Seller, has been duly executed and delivered by Seller, and

constitutes the valid and binding agreement of Seller, enforceable against

Seller in accordance with its terms;

 

            (c) There is no pending or threatened litigation, condemnation or

similar proceeding affecting the Project or any part thereof, nor to the best

knowledge and belief of Seller is any such proceeding or assessment contemplated

by any governmental authority;

 

            (d) Except for Tenant, there are no parties in possession of any

portion of the Land as lessees, tenants at sufferance, licensees, or trespassers

and no person or entity has any right or option to lease, purchase, occupy, or

possess all or any part of the Project or any interest therein;

 

             (e) Seller is not a "foreign person" within the meaning of Section

1445 of the Internal Revenue Code;

 

            (f) To the knowledge of Seller and except as disclosed in the

environmental report delivered to Buyer, the Land does not contain any hazardous

wastes, hazardous substances or materials, toxic materials, or the like, as

defined or designated in any federal, state, or local law or environmental

statute, regulation, or ordinance, including asbestos, nor does the Land contain

any environmental hazard under any local, state, or federal laws or regulations

applicable to the Land;

 

            (g) To Seller's knowledge, no notice of violation has been issued

with regard to any applicable regulation, ordinance, requirement, covenant,

condition or restriction relating to the present use or occupancy of the Project

by any person, authority or agency having jurisdiction;

 

            (h) Seller will not, without the prior written consent of Buyer,

take any action before any governmental authority having jurisdiction thereover,

the object of which would be to change the present zoning of or other land-use

limitations, upon the Project, or any portion thereof, or its potential use,

and, to Seller's knowledge, there are no pending proceedings, the object of

which would be to change the present zoning or other land-use limitations;

 

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            (i) Except for any item to be prorated at Closing in accordance with

this Agreement, all bills or other charges, costs or expenses arising out of or

in connection with or resulting from Seller's use, ownership, or operation of

the Project up to Closing shall be paid in full by Seller;

 

            (j) All general real estate taxes, assessments and personal property

taxes that have become due with respect to the Project (except for those that

will be prorated at Closing) have been paid or will be so paid by Seller prior

to Closing;

 

            (k) From the date hereof until Closing or the earlier termination of

this Agreement, Seller shall (i) operate and maintain the Project in a manner

generally consistent with the manner in which Seller has operated and maintained

the Project prior to the date hereof, and shall perform in all material

respects, its obligations under the Lease, (ii) not, without Buyer's written

consent which shall not be unreasonably withheld, amend, modify or waive any

material rights under the Lease, and (iii) maintain the existing or comparable

insurance coverage, if any, for the Improvements which Seller is obligated to

maintain under the Lease;

 

            (l) To Seller's actual knowledge, except as disclosed in any

environmental report delivered to Buyer, there is not now, nor has there

ever been, on or in the Project underground storage tanks, any

asbestos-containing materials or any polychlorinated biphenyls, including those

used in hydraulic oils, electric transformers, or other equipment. Seller hereby

assigns to Buyer, effective as of Closing, all claims, counterclaims, defenses,

or actions, whether at common law, or pursuant to any other applicable federal

or state or other laws which Seller may have against any third parties relating

to the existence of any Hazardous Materials in, at, on, under or about the

Project (including Hazardous Materials released on the Project prior to Closing

and continuing in existence on the Project at Closing);

 

            (m) Should Seller receive notice or knowledge of any information

regarding any of the matters set forth in this Section 4.1 after the date hereof

and prior to Closing, Seller will immediately notify Buyer of the same in

writing; and

 

            (n) All representations made in this Agreement by Seller shall

survive the execution and delivery of this Agreement and Closing for a period of

two (2) years. Seller shall and does hereby indemnify against and hold Buyer

harmless from any loss, damage, liability and expense, together with all court

costs and attorneys' fees which Buyer may incur, by reason of any material

misrepresentation by Seller or any material breach of any of Seller's

warranties. Seller's indemnity and hold harmless obligations shall survive

Closing for a period of two (2) years.

 

      4.2 Buyer's Representations and Warranties. In order to induce Seller to

enter into this Agreement, Buyer represents and warrants to Seller that:

 

            (a) Buyer is duly formed, validly existing and in good standing

under the laws of its state of organization and has all requisite right, power

and authority to execute, deliver and perform this Agreement;

 

            (b) This Agreement has been duly authorized for execution, delivery

and performance by Buyer, has been duly executed and delivered by Buyer, and

constitutes the valid and binding agreement of Buyer, enforceable against Buyer

in accordance with its terms;

 

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            (c) There is no pending or threatened litigation or similar

proceeding affecting the Buyer, nor to the best knowledge and belief of Buyer is

any such proceeding or assessment contemplated;

 

            (d) should Buyer receive notice or knowledge of any information

regarding any of the matters set forth in this Section 14 after the Effective

Date and prior to Closing, Buyer will promptly notify Seller of the same in

writing; and

 

            (e) All representations made in this Agreement by Buyer shall

survive the execution and delivery of this Agreement and Closing for a period of

two (2) years. Buyer shall and does hereby indemnify against and hold Seller

harmless from any loss, damage, liability and expense, together with all court

costs and attorneys' fees, if awarded by a court of law, which Seller may incur,

by reason of any material misrepresentation by Buyer or any material breach of

any of Buyer's warranties. Buyer's indemnity and hold harmless obligations shall

survive Closing for a period of two (2) years.

 

      4.3 Intentionally Omitted.

 

      4.4 "AS IS, WHERE IS" Purchase. In recognition of the fact Buyer will have

conducted its own due diligence and thoroughly inspected the Project prior to

electing to proceed to Closing pursuant to this Agreement, including the

Project's physical, environmental, operational and structural aspects, it is

expressly understood and agreed that Seller has not made, and shall not be

deemed to have made, except as expressly set forth in Section 4.1 of this

Agreement, any warranties or representations, expressed or implied, and Seller

shall not have any liability to Buyer, except in connection with a breach of