Form 4-31

Seller’s Consent to Assignment

Date:

Seller:

Address:

Phone:

E-mail:

Type of entity:

Assignor:

Address:

Phone:

E-mail:

Type of entity:

Assignee:

Address:

Phone:

E-mail:

Type of entity:

Contract:   Real Estate Sales Contract between Seller and Buyer for sale of the Property to Buyer involving—

Earnest Money:

Escrow:   [title company name, GF #, address, and escrow officer contact information].

Consideration:

For the Consideration, Seller, Assignor, and Assignee agree as follows:

A.Exhibits

The following are attached to and are a part of this Assignment:

Exhibit A—Assignment of Real Estate Sales Contract

Exhibit B—Representations

Exhibit C—Records

B.Assignment, Assumption, and Consent

B.1.Assignment.      Assignor and Assignee represent to Seller that a true, correct, and complete copy of the Assignment of Real Estate Sales Contract (“Assignment”) executed by Assignor and Assignee is attached as Exhibit A. The Assignment sets forth the entire agree­ment between Assignor and Assignee.

B.2.Assumption.      Assignee assumes and agrees to perform Buyer’s obligations under the Contract.

B.3.Consent.      Seller consents to the Assignment on the terms of this Consent. Seller’s consent to the Assignment is not a consent to any other assignment. In addition to the Conditions of Closing set out in paragraph K.1. of the Contract, Seller will not be obligated to close the sale of the Property to Assignee unless Assignee has satisfied the following condi­tions, any of which may be waived by Seller in its discretion:

B.3.a.The representations of Assignee to Seller in this Consent are true and correct at Closing.

B.3.b.The representations of Assignor to Seller in this Consent are true and correct at Closing.

B.3.c.Assignee must have performed all covenants and agreements required to be per­formed by it at or before Closing.

The consent by Seller to this assignment by Assignor to Assignee does not release Assignor of its obligations under the Contract. Assignor and Assignee are jointly and sever­ally liable to Seller for the performance of the obligations of Buyer under the Contract.

The consent by Seller to this assignment by Assignor to Assignee releases Assignor of its obligations under the Contract except for Assignor’s representations to Seller in this Con­sent.

C.Representations

C.1.Representations

C.1.a.Assignor.      Assignor represents to Seller that its representations stated in sec­tions A. and D. of Exhibit B to the Contract are true and correct as of the Date and will be true and correct on the Closing Date.

Assignor represents to Seller that the Records listed in Exhibit C and provided by Assignor to Assignee for Assignee’s inspections are true, correct, and complete copies of the Records in Assignor’s possession or control. Assignor’s Records and Studies that were pre­pared by or under Assignor’s supervision and control are true, correct, and complete in all material respects.

C.1.b.Assignee.      Assignee represents to Seller that its representations stated in sec­tion A. of Exhibit B to this Consent are true and correct as of the Date and will be true and correct on the Closing Date.

C.1.c.Subsequent Notice.      If Assignor or Assignee becomes aware that any of the representations of either Assignor or Assignee to Seller are not true and correct, it will promptly notify Seller. Unless Assignor or Assignee notifies Seller to the contrary on or before the Closing Date, or Seller has actual knowledge to the contrary as of the Closing Date, Seller is entitled to presume that the representations in this Consent are true and correct as of the Closing Date.

C.2.As Is, Where Is.      Assignee agrees to the terms of section B. (As Is, Where Is) in Exhibit B to this Consent and in section B. to the Contract.

D.Insurance and Indemnity

D.1.Insurance.      Assignee agrees to maintain the insurance set out in Exhibit C to the Contract through Closing.

D.2.Indemnity.      Assignee will indemnify, defend, and hold Seller harm­less from any loss, attorney’s fees, expenses, or claims (“Indemnified Liabilities”) arising out of Assignee’s acts or omissions after the Date, including Indemnified Liabilities caused in whole or in part by the negligence of Assignee or its employ­ees or contractors, including if the Indemnified Liabilities arise in part from the negligence of Assignor or its employees. This indemnity is (a) independent of a party’s insurance, (b) will not be limited by damages paid under the Workers’ Compensation Act, and (c) will survive the Closing or the termination of the Contract.

E.Miscellaneous

E.1.Notices.      Any notice required by or permitted under this Consent must be in writing. Any notice required by this Consent will be deemed to be given (whether received or not) the earlier of receipt or three business days after being deposited with the United States Postal Service, postage prepaid, certified mail, return receipt requested, and addressed to the intended recipient at the address shown in this Consent. Notice may also be given by regular mail, personal delivery, courier delivery, or e-mail and will be effective when received, pro­vided that (a) any notice received on a Saturday, Sunday, or holiday will be deemed to have been received on the next day that is not a Saturday, Sunday, or holiday and (b) any notice received after 5:00 p.m. local time at the place of delivery on a day that is not a Saturday, Sun­day, or holiday will be deemed to have been received on the next day that is not a Saturday, Sunday, or holiday. Any address for notice may be changed by not less than ten days’ prior written notice given as provided herein. Copies of each notice must be given by one of these methods to the attorney of the party to whom notice is given.

E.2.Entire Agreement.      This Consent is the entire agreement of the parties con­cerning consent by Seller to the assignment by Assignor to Assignee. There are no representa­tions, warranties, agreements, or promises pertaining to the Property or the sale of the Property by Seller to Buyer, and Assignee is not relying on any statements or representations of Assignor, Seller, or any agent of Assignor or Seller that are not in the Contract, this Con­sent, or the Assignment.

E.3.Amendment.      This Consent may be amended only by an instrument in writing signed by the parties.

E.4.Prohibition of Assignment.      Assignee may not assign this Consent or the Con­tract or Assignee’s rights under this Agreement or Buyer’s rights under the Contract without Seller’s prior written consent, which Seller has no obligation to grant and which, if granted, may be conditioned in any manner Seller deems appropriate, and any attempted assignment without Seller’s consent is void. The consent by Seller to any assignment by Assignee will not release Assignor or Assignee of its obligations under this Consent, and Assignor, Assignee, and Assignee’s assignee will be jointly and severally liable for the performance of Buyer’s obligations after any such assignment.

E.5.Survival.      The provisions of this Consent that expressly survive termination or Closing and other obligations of this Consent that cannot be performed before termination of this Consent or before Closing survive termination of this Consent or Closing, and the legal doctrine of merger does not apply to these matters. The representations made by the parties as of Closing survive Closing.

E.6.Choice of Law; Venue.      This Consent is to be construed under the laws of the state of Texas, without regard to choice-of-law rules of any jurisdiction. Venue is in the County for Performance.

E.7.Waiver of Default.      Default is not waived if the nondefaulting party fails to declare a default immediately or delays taking any action with respect to the default.

E.8.No Third-Party Beneficiaries.      There are no third-party beneficiaries of this Consent.

E.9.Severability.      If a provision in this Consent is unenforceable for any reason, to the extent the unenforceability does not destroy the basis of the bargain among the parties, the unenforceability does not affect any other provision of this Consent, and this Consent is to be construed as if the unenforceable provision is not a part of the Consent.

E.10.Ambiguities Not to Be Construed against Party Who Drafted Consent.      The rule of construction that ambiguities in a document are construed against the party who drafted it does not apply in interpreting this Consent.

E.11.No Special Relationship.      The parties’ relationship is an ordinary commercial relationship, and the parties do not intend to create the relationship of principal and agent, partners, joint venturers, or any other special relationship.

E.12.Counterparts.      If this Consent is executed in multiple counterparts, all counter­parts taken together constitute this Consent. Copies of signatures to this Consent are effective as original signatures.

E.13.Confidentiality.      This Consent, this transaction, and all information learned in the course of this transaction shall be kept confidential, except to the extent disclosure is required by law or court order or to enable third parties to advise or assist Assignee to investi­gate the Property or either party to close this transaction. Remedies for violations of this pro­vision are limited to injunctions, and no damages or rescission may be sought or recovered as a result of any such violations.

E.14.Binding Effect.      This Consent binds, benefits, and may be enforced by the par­ties and their respective heirs, successors, and permitted assigns.

E.15.Waiver of Consumer Rights.      Assignee waives its rights under the Texas Deceptive Trade Practices–Consumer Protection Act, section 17.41 et seq. of the Texas Business and Commerce Code, a law that gives consumers special rights and protections. After consultation with an attorney of its own selection, Assignee voluntarily consents to this waiver.

E.16.Waiver of Jury Trial.      Assignor and Assignee, each after consultation with an attorney of its own selection (which counsel was not directly or indirectly identified, sug­gested, or selected by the other party), both voluntarily waive a trial by jury of any issue aris­ing in an action or proceeding between the parties or their successors, under or connected with this Consent or its provisions. Assignor and Assignee acknowledge to each other that Assignor and Assignee are not in significantly disparate bargaining positions.

   
[Name and title of seller]
Date:

   
[Name and title of assignor]
Date:

   
[Name and title of assignee]
Date:

Exhibit A

Assignment of Real Estate Sales Contract

Exhibit B

Representations

A.Assignee’s Representations to Seller

Assignee represents to Seller that the following are true and correct as of the Date and will be true and correct on the Closing Date, unless Seller has given Assignee notice of any changes before the Closing Date that such circumstances have changed due to causes not rea­sonably within Assignee’s control.

A.1.Authority.      Assignee is a [specify type of organization] duly organized, validly existing, and in good standing under the laws of the state of [Texas/[state]] with authority to perform its obligations under this Assignment. This Consent and the Assignment are binding on Assignee.

A.2.Litigation.      Assignee has not received written notice and has no actual knowl­edge of any litigation pending or threatened against the Property or Assignee that might adversely affect the Property or Assignee’s ability to perform its obligations under this Assignment [include if applicable: , except: [specify]].

A.3.Violation of Governmental Requirements.      Assignee has not received written notice and has no actual knowledge of violation of any law, ordinance, regulation, restriction, or legal requirements affecting the Property or Seller’s use of the Property [include if applica­ble: , except: [specify]].

A.4.Licenses, Permits, and Approvals.      Assignee has not received written notice and has no actual knowledge that any license, permit, or approval necessary to use the Prop­erty in the manner in which it is currently being used has expired or will not be renewed on expiration or that any material condition will be imposed to use or renew the same [include if applicable: , except: [specify]].

A.5.Condemnation; Zoning; Land Use; Hazardous Materials.      Assignee has not received written notice and has no actual knowledge of any condemnation, zoning, land-use, hazardous materials, or other proceedings affecting the Property or any written inquiries or notices by any governmental authority or third party with respect to condemnation, zoning, or other land-use regulations or the presence of hazardous materials affecting the Property [include if applicable: , except: [specify]].

A.6.Terrorist Organizations Lists.      Assignee is not and Assignee has no actual knowledge that any of its partners, members, shareholders, owners, employees, officers, directors, representatives, or agents is a person or entity with whom U.S. persons or entities are restricted from doing business under regulations of the Office of Foreign Asset Control of the Department of the Treasury or under any statute, executive order, or other governmental action.

A.7.No Other Obligation to Sell Property or Restriction against Sale.      Assignee is not obligated to sell any of the Property to any person other than Assignee. Assignee’s perfor­mance of this agreement will not cause a breach of any other agreement or obligation to which Assignee is a party or by which Assignee or the Property is bound.

A.8.No Liens.      On the Closing Date, the Property will be free and clear of all mechanic’s and materialman’s liens and other liens and encumbrances of any nature arising through Assignee.

A.9.No Other Representation.      Except as stated above or in the notices, statements, and certificates set forth in Exhibit D to the Contract, Seller makes no representation with respect to the Property.

A.10.No Warranty.      Seller has made no warranty in connection with this transaction.

B.“As Is, Where Is”

This Consent, the Assignment, and the Contract are an arm’s-length agreement between the parties. The Consideration was bargained on the basis of an “AS IS, WHERE IS” transaction and reflects the agreement of the parties that there are no representations, disclosures, or express or implied warranties, except those in this Consent or the Contract.

Assignee is not relying on any representations, disclosures, or express or implied warranties other than those expressly contained in this Consent. Assignee is not relying on any information regarding the Property provided by any person, other than Assignee’s own inspection and the representations and warranties of Seller contained in this Consent or the Contract.

Exhibit C

Records

A.Seller’s Records.      Assignee acknowledges that the following records of Seller (“Seller’s Records”) have been delivered to Assignee:

B.Title and Survey Information.      Assignee acknowledges that the following title and survey information have been delivered to Assignee (“Title and Survey Information”):

C.Assignor’s Records and Studies.      Assignee acknowledges that the following records and studies (“Assignor’s Records and Studies”) have been delivered to Assignee: