Form 4-32

Contract for Assignment of Real Estate Sales Contract

Execution by the first party to execute this Contract for Assignment of Real Estate Sales Contract (“Contract for Assignment”) and delivery to the other party constitutes an offer to buy or sell Buyer’s rights under the Real Estate Sales Contract (“Contract”). Unless accepted by the other party by execution of this Contract for Assignment and escrowed with the Title Company by the Deposit Deadline, the offer lapses and is void. This Contract for Assignment is effective upon escrow with the Title Company of this Contract for Assignment executed by Assignor and Assignee (“Date”).

Deposit Deadline:

Assignor:

Address:

Phone:

E-mail:

Type of entity:

Assignor’s Attorney:

Law firm:

Address:

Phone:

E-mail:

Assignee:

Address:

Phone:

E-mail:

Type of entity:

Assignee’s Attorney:

Law firm:

Address:

Phone:

E-mail:

Assignee’s Sales Agent:

Brokerage firm:

Address:

Phone:

E-mail:

Contract:   Real Estate Sales Contract between Seller and Buyer, the Assignor, for sale of the Property to Buyer, a true, correct, and complete copy of which is attached hereto as Exhibit A, involving—

Seller:

Property:      The land commonly known as [describe property] and more fully described in Exhibit A (“Land”) [include the following phrases that are applicable, tailoring punctuation and conjunctions as necessary: , together with improvements to the Land (“Improvements”), the leases associated with the Land and Improvements (“Leases”), and the personal property described in Exhibit A (“Personal Prop­erty”)].

Earnest Money:

Escrow:   [title company name, GF #, address, and escrow officer contact information] (“Title Company”)

Consideration:

Independent Consideration: Assignee is to pay $100 (“Independent Consideration”) to Assignor within three business days of the execution by Assignor and Assignee and escrow of this Contract for Assignment with the Title Company as Escrow Agent for Assignor and Assignee. The Independent Consideration is consideration for Assignee’s Termination Option.

Substitute Earnest Money: An amount equal to the Earnest Money under the Contract.

Assignment Fee:

Assignee’s Liquidated Damages:

Assignor’s Additional Liquidated Damages:

Consent:      This Assignment is conditioned on the consent of Seller.

For the Consideration, Assignor and Assignee agree as follows:

A.Exhibits

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

Exhibit A—Real Estate Sales Contract

Exhibit B—Representations

Exhibit C—Records

Exhibit D—Assignment of Real Estate Sales Contract

Exhibit E—Assignee’s Insurance

B.Assignment in Escrow

B.1.Assignment of Contract.      Within five business days of the escrow by the par­ties of this Contract for Assignment, Assignor and Assignee are to execute and deliver to the Title Company the Assignment of Real Estate Sales Contract (“Assignment”), a form of which is attached as Exhibit D.

B.2.Substitute Earnest Money.      Assignee is to deposit with Escrow Agent the Sub­stitute Earnest Money within three business days of the escrow of this Contract for Assign­ment with Escrow Agent.

B.3.Assignment Fee.      Assignee is to deposit with Escrow Agent the Assignment Fee within three business days of the escrow of this Contract for Assignment with Escrow Agent.

B.4.Escrow.      The Assignment, Substitute Earnest Money, and Assignment Fee are to be held by Escrow Agent pending determination by Assignee of whether to exercise Assignee’s Termination Option.

B.4.a.Assignment Effective Date.      The “Assignment Effective Date” is the day after the expiration of the Inspection Period without Assignee having exercised the Termination Option. On the Assignment Effective Date, Escrow Agent is to do the following:

i.Deliver to Assignee the escrowed Assignment.

ii.Deliver to Assignor the Assignment Fee.

iii.Substitute the Substitute Earnest Money for the Earnest Money deposited by Assignor as Buyer under the Contract and send the monies deposited by Assignor as the Earnest Money to Assignor.

B.4.b.Termination.      If Assignee exercises the Termination Option, Escrow Agent is to do the following:

i.Deliver to Assignor the escrowed Assignment.

ii.Send to Assignee the Assignment Fee and Substitute Earnest Money.

C.Inspection Period

C.1.Review of Records.      Assignor will deliver to Assignee copies of the Records specified in Exhibit C, or otherwise make those records available for Assignee’s review, within five business days of the deposit with Escrow Agent of the fully executed Contract for Assignment, the Substitute Earnest Money, and the Assignment Fee.

C.2.Entry onto Property.      Assignee may enter the Property before expiration of the Inspection Period to inspect it at Assignee’s cost and risk, subject to the following:

C.2.a.Insurance.      Assignee must deliver evidence to Assignor that Assignee has commercial general liability insurance, with coverages specified in Exhibit E. Assignee must deliver evidence to Seller that Assignee has insurance with coverages as required by the Con­tract.

C.2.b.Operations at Property.      Assignee may not interfere in any material manner with existing operations or occupants of the Property.

C.2.c.Notice of Testing.      Assignee must notify Assignor in advance of Assignee’s plans to conduct tests so that Assignor may be present during the tests.

C.2.d.Restoration.      If the Property is physically altered because of Assignee’s inspections, Assignee must return the Property to its preinspection condition promptly after the alteration occurs.

C.2.e.Third-Party Reports.      Assignee must deliver to Assignor copies of all inspec­tion reports that Assignee prepares or receives from third-party consultants or contractors within three days after their preparation or receipt.

C.2.f.Rules.      Assignee must abide by any other reasonable entry rules imposed by Seller, Assignor, or both.

C.2.g.Contract Protocols.      Assignee must abide by the requirements of the Contract regarding entry on the Property.

C.3.Environmental Assessment.      Assignee has the right to conduct environmental assessments of the Property. Assignor will provide, or will designate a person with knowledge of the use and condition of the Property to provide, information requested by Assignee or Assignee’s agent or representative regarding the use and condition of the Property. Assignor will cooperate with Assignee in obtaining and providing to Assignee or its agent or represen­tative information regarding the use and condition of the Property before Assignor’s period of ownership to the extent that the information is within Assignor’s possession or control.

C.4.Assignee’s Right to Terminate.      Assignee may terminate this Contract for Assignment for any reason by notifying Assignor of the termination before the end of the Inspection Period (“Termination Option”). If Assignee does not notify Assignor of Assignee’s termination of the contract before the end of the Inspection Period, Assignee waives the right to terminate this Contract for Assignment pursuant to this provision.

C.5.Release.      Assignee releases Seller and Assignor and those persons acting on Seller’s or Assignor’s behalf from all claims and causes of action (including claims for attorney’s fees and court and other costs) resulting from Assignee’s investigation of the Property [include if applicable: , including claims arising out of Seller’s or Assignor’s negligence, but not Seller’s or Assignor’s gross negligence or intentional misconduct].

C.6.Performance of Contract

C.6.a.Assignor to Assignee

i.Modifications to Contract.      Assignor agrees not to modify or in any way alter the terms of the Contract without the prior written consent of Assignee.

ii.Release of Seller.      Assignor agrees not to waive, excuse, condone, or in any manner release or discharge Seller from the obligations, covenants, condi­tions, and agreements of Seller to be performed under the Contract.

iii.Termination of Contract.      Assignor agrees not to terminate the Contract.

iv.Performance of Contract.      Assignor agrees to abide faithfully by, perform, and discharge every material obligation, covenant, and agreement of the Con­tract to be performed by Buyer before the expiration of the Inspection Period and shall obtain Assignee’s consent before exercising any elections or taking any actions.

v.Forwarding Notices.      Assignor agrees to promptly send Assignee any notice or demand that Assignor receives from Seller.

vi.Enforcement of Seller’s Obligations.      Assignor agrees to vigorously enforce the obligations of Seller under the Contract.

vii.Notice of Default by Assignor.      Assignor agrees to promptly notify Assignee of any notice of default by Assignor that Assignor receives.

viii.Assignee Cure Rights.      Assignee is hereby given the right to undertake to cure any default by Assignor on the Contract.

ix.Assignee’s Dealing with Seller.      Assignor authorizes Assignee to contact Seller and the Title Company and obtain Seller’s Records and Title and Sur­vey Information. Assignee shall furnish Assignor a copy of any Seller’s Records and Title and Survey Information it receives from Seller or the Title Company that have not already been furnished to Assignor.

C.6.b.Assignee to Assignor.      Assignee agrees not to take actions or omit to take actions that will cause Assignor to default on the Contract.

C.7.Consent by Assignor to Assignment.      Assignor and Assignee are to cooperate in seeking Seller’s consent for Assignor to assign Buyer’s rights under the Contract to Assignee.

D.Representations

D.1.Contract.      Attached as Exhibit A is a true and correct copy of the Contract.

D.2.Representations.      The representations stated in sections A. and C. of Exhibit B to this Contract for Assignment are true and correct as of the Date and must be true and cor­rect as of the Assignment Effective Date. A party to this Consent for Assignment who becomes aware that any of the representations of either party are not true and correct will promptly notify the other party. Unless a party notifies the other party to the contrary on or before the Assignment Effective Date, or a party has actual knowledge to the contrary as of the Assignment Effective Date, each party to this Contract for Assignment is entitled to pre­sume that the representations of the other party in Exhibit B are true and correct as of the Assignment Effective Date.

D.3.As Is, Where Is.      The parties agree to the terms of section B. (As Is, Where Is) in Exhibit B.

E.Insurance and Indemnity

E.1.Insurance.      Assignee agrees to maintain the insurance set out in Exhibit E through Closing.

E.2.Indemnity.      Assignee will indemnify, defend, and hold Assignor 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.

F.Default and Remedies

F.1.Assignor’s Defaults.      If Assignor fails to perform its obligations under this Contract for Assignment or if Assignor’s representations are not true and correct as of the Assignment Effective Date (“Assignor’s Default”), Assignee’s sole and exclusive remedy is to terminate this Contract for Assignment by giving notice to Assignor and Escrow Agent on or before [number] days after the Inspection Period and have the Substitute Earnest Money and Assignment Fee returned to Assignee. If Assignor’s Default occurs after Assignee has incurred costs to investigate the Property and Assignee terminates this Contract for Assign­ment in accordance with the previous sentence, Assignor will also pay to Assignee as liqui­dated damages the lesser of Assignee’s actual out-of-pocket expenses incurred to investigate the Property after the Effective Date (“Assignee’s Expenses”) or the amount of Assignee’s Liquidated Damages, within ten days after Assignor’s receipt of an invoice from Assignee stating the amount of Assignee’s Expenses accompanied by reasonable evidence of Assignee’s Expenses.

F.2.Assignee’s Default.      If Assignee fails to perform any of its obligations under this Contract for Assignment (“Assignee’s Default”), Assignor’s sole and exclusive remedy is to terminate this Contract for Assignment by giving notice to Assignee and Escrow Agent and have the Assignment Fee, if not previously delivered by Escrow Agent to Assignor as pro­vided in this Contract for Assignment, as liquidated damages. If Assignee’s Default occurs after Assignor has incurred costs to perform its obligations under this Contract for Assign­ment and Assignor terminates this Contract for Assignment in accordance with the previous sentence, Assignee will also reimburse Assignor for the lesser of Assignor’s actual out-of-pocket expenses incurred after the Effective Date to perform its obligations under this Con­tract for Assignment (“Assignor’s Expenses”) or the amount of Assignor’s Additional Liqui­dated Damages, within ten days after Assignee’s receipt of an invoice from Assignor stating the amount of Assignor’s Expenses accompanied by reasonable evidence of Assignor’s Expenses.

F.3.Assignee’s Default; Remedies after Closing.      If Assignee fails to perform any of its obligations under this Contract for Assignment that survive Closing, Assignor will have all rights and remedies available at law or in equity unless otherwise provided by the Closing Documents.

F.4.Liquidated Damages.      The parties agree that just compensation for the harm that would be caused by a default by either party cannot be accurately estimated or would be very difficult to accurately estimate and that Assignee’s Liquidated Damages and Assumption Fee and Assignor’s Additional Liquidated Damages are reasonable forecasts of just compen­sation to the nondefaulting party for the harm that would be caused by a default.

F.5.Attorney’s Fees.      If either party retains an attorney to enforce this Contract for Assignment, the party prevailing in litigation is entitled to recover reasonable attorney’s fees and court and other costs.

G.Miscellaneous

G.1.Notices.      Any notice required by or permitted under this Contract for Assign­ment must be in writing. Any notice required by this Contract for Assignment 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 contract. 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.

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

G.3.Amendment.      This Contract for Assignment may be amended only by an instrument in writing signed by the parties.

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

G.5.Survival.      The provisions of this Contract for Assignment that expressly sur­vive termination or Closing and other obligations of this Contract for Assignment that cannot be performed before termination of this Contract for Assignment or before Closing survive termination of this Contract for Assignment 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.

G.6.Choice of Law; Venue.      This Contract for Assignment 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.

G.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.

G.8.No Third-Party Beneficiaries.      There are no third-party beneficiaries of this Contract for Assignment.

G.9.Severability.      If a provision in this Contract for Assignment 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 Contract for Assignment, and this Contract for Assignment is to be construed as if the unenforceable provi­sion is not a part of the Contract for Assignment.

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

G.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.

G.12.Counterparts.      If this Contract for Assignment is executed in multiple counter­parts, all counterparts taken together constitute this Contract for Assignment. Copies of signa­tures to this Contract for Assignment are effective as original signatures.

G.13.Confidentiality.      This Contract for Assignment, 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.

G.14.Binding Effect.      This Contract for Assignment binds, benefits, and may be enforced by the parties and their respective heirs, successors, and permitted assigns.

G.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.

G.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 Contract for Assignment or its provisions. Assignor and Assignee acknowledge to each other that Assignor and Assignee are not in significantly disparate bargaining positions.

G.17.Broker’s Commissions.      Assignor and Assignee each indemnify and agree to defend and hold the other party harmless from any loss, attorney’s fees, and court and other costs arising out of a claim by any person or entity claiming by, through, or under the indem­nitor for a broker’s or finder’s fee or commission because of this transaction or this Contract for Assignment or the Contract, whether the claimant is disclosed to the indemnitee or not. At Closing under the Contract, each party will provide the other party with a release of broker’s or appraiser’s liens from all brokers or appraisers for which such party is responsible.

   
[Name and title of assignor]
Date:

   
[Name and title of assignee]
Date:

Exhibit A

Real Estate Sales Contract

Exhibit B

Representations

A.Assignor’s Representations to Assignee

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

A.1.Authority.      Assignor 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 Assignment is binding on Assignor.

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

A.3.Violation of Governmental Requirements.      Assignor 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.      Assignor 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.      Assignor 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.      Assignor is not and Assignor 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.      Assignor is not obligated to sell any of the Property to any person other than Assignee. Assignor’s perfor­mance of this Assignment will not cause a breach of any other agreement or obligation to which Assignor is a party or by which Assignor or the Property is bound.

A.8.No Liens.      On the Assignment Effective 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 Assignor.

A.9.Assignor’s Records.      The records provided by Assignor to Assignee for Assignee’s inspections will be true, correct, and complete copies of the records in Assignor’s possession or control. The records that were prepared by or under Assignor’s supervision and control will be true, correct, and complete in all material respects. Unless Assignor notifies Assignee to the contrary at the time of delivery of records provided by Assignor to Assignee that were not prepared by or under Assignor’s supervision and control, Assignor has no actual knowledge that such records are not true, correct, and complete in any material respect.

A.10.No Other Representation.      Except as stated above or in the notices, statements, and certificates set forth in Exhibit D to the Contract, Assignor makes no representation with respect to the Property.

A.11.No Warranty.      Assignor has made no warranty in connection with this transac­tion.

B.“As Is, Where Is”

This Assignment is 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 Assignment.

Assignee is not relying on any representations, disclosures, or express or implied warranties other than those expressly contained in this Assignment. 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 contained in this Assignment.

C.Assignee’s Representations to Assignor

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

C.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 Contract for Assignment is binding on Assignee. This Contract for Assignment is, and all documents required by this Contract for Assignment to be executed and delivered to Seller at Closing will be, duly authorized, exe­cuted, and delivered by Assignee.

C.2.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.

Exhibit C

Records

To the extent that Assignor has possession or control of the following items pertaining to and currently impacting the Property, Assignor will deliver or make the items or copies of them available to Buyer by [date]:

A.Seller’s Records.      The following records delivered by Seller to Assignor (“Seller’s Records”):

B.Title and Survey Information.      The following title and survey information delivered to Assignor:

C.Assignor’s Records and Studies.      The following records and studies obtained by Seller other than those listed in A.:

Exhibit D

Assignment of Real Estate Sales Contract

Exhibit E

Assignee’s Insurance