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CONTRACTOR/LENDER AGREEMENT
October 20, 1998
First American Bank, SSB, a Texas State Savings Bank
P.O. Box 1033
Bryan, Texas 77805
("Lender")
RE: Premises: Being all that certain tract or parcel of land lying and being situated in the
CRAWFORD BURNETT SURVEY, Abstract No. 7, College Station,
Brazos County, Texas, said tract being comprised of the following five (5)
parcels of land:
1) A portion of a called 50.1 acre tract described as Second Tract
by a deed to Frank Elbrich, Sr. recorded in Volume 201, Page
107 of the Deed Records of Brazos County, Texas
(B.C.D.R.),
2) A portion of a called 6 acre tract as described by a deed to
Frank Elbrich and wife, Mary Elbrich, recorded in Volume
145, Page 211 (B.C.D.R.),
3) A portion of a called 6 acre tract as described by a deed to
Frank Elbrich and wife, Mary Elbrich, recorded in Volume
148, Page 581 (B.C.D.R.),
4) All of a called 2.00 acre tract as described by a deed to Frank
J. Elbrich, Sr. and wife, Mary M. Elbrich, recorded in Volume
351, Page 575 of the Deed Records of Brazos County, Texas,
5) A portion of a called 1.285 acre tract described as Tract One
to John Edward Elbrich recorded in deed in Volume 865,
Page 590 of the Official Records of Brazos County, Texas
(O.R.B.C.),
6) All of a called 1.285 acre tract described as Tract Two by a
deed to Joveline Elbrich Mikuline recorded in Volume 865,
Page 590 of the Official Records of Brazos County
(O.R.B.C.),
7) All of a called 1.285 acre tract described as Tract Three by a
deed to Mary Elbrich Januse recorded in Volume 865, Page
590 (O.R.B.C.) and
8) All of a called 1.285 acre tract described as Tract Four by a
deed to Margaret Elbrich Dileo recorded in Volume 865, Page
590 (O.R.B.C.),
said tract being more particularly described by metes and
bonds as follows:
BEGINNING: at a %i-inch iron rod on the northeast right-of--way
line of Farm to Market Road No. 2154, also known as Wellborn Road
(based on a 100-foot width) marking the south corner of said 1.285
acre John Edward Elbrich tract and the west corner of the said 1.285
acre Joveline Elbrich Mikuline Tract;
THENCE: N 46° 49' 16" E along the common line of said 1.285
acre tracts for a distance of 517.55 feet to a 5/8-inch iron rod for
corner;
THENCE: N 44° 36' 12" W through said Tract One for a distance
of 82.10 feet to a 5/8-inch iron rod on the northwest line of said 1.285
Acre John Edward Elbrich tract and marking the east corner of a
called 1.00 acre tract as described by a deed to John Elbrich and wi fe,
JDW/Ikm TRAID.CONTRACTOR AGR 98-1604 1
Josephine Elbrich, recorded. in Volume 566, Page 425 (B.C.D.R.),
and a southwest corner of said remainder of 50.1 acre tract;
THENCE: along the southwest lines of said 50.1 acre tract
(201/107) for the following five (5) calls:
(1) N 44° 57' 08" W for a distance of 228.87 feet to a 5/8-
inch iron rod,
(2) N 47 ° 25' 08" E for a distance of 87.22 feet to a 5/8-
inch iron rod,
(3) N 42 ° 37' 18" W for a distance of 167.60 feet to an
angle iron,
(4) N 44° 18' 42" E for a distance of 114.70 feet to a 5/8-
inch iron rod, for reference a 4-inch Elm Tree fence
corner found bears: S 79 ° 10' S6" W for a distance of
4.80 feet and
(5) N 42 ° 52' 18" W for a distance of 535.51 feet to a 5/8-
inch iron rod on the southeast line of a called 17.119
acre tract as described by a deed to Edsel G. Jones
recorded in Volume 360, Page 491 (B.C.D.R.), for
reference a 5/8-inch iron pipe on said southeast line
marking the north corner of said 1.89 acre
Hollingsworth tract (320/503) and the west corner of
a called 2 acre tract as described by a deed to Robert
Smith and wife, Sallie Smith, recorded in Volume
134, Page 328 (B.C.D.R.), bears S 40° 39' 20" W for
a distance of 466.01 feet;
THENCE: N 40° 39' 20'' E along the common line of said 50.1 acre
tract and said 17.119 acre Jones tract for a distance of 1238.27 feet to
a 5/8-inch iron rod on the southeast line of a called 17.119 acre tract
as described by a deed to O.D. Butler recorded in Volume 360, Page
525 (B.C.D.R.), said iron rod marking the most westerly corner of
West Ridge according to the plat recorded in Volume 507, Page 243
(B.C.D.R.), for reference a 3/8-inch iron rod on the southeast line of
said 17.119 acre Butler tract bears N 41 ° 06' 10" E for a distance of
347.70 feet;
THENCE: S 48 ° 31' 48" E along a southwest line of said West
Ridge for a distance of 217.95 feet to a cross-tie fence corner found
marking a southwest corner of said West Ridge;
THENCE: N 41 ° O1' OS" E along a southwest line of said West
Ridge for a distance of 200.07 feet to a 3/8-inch iron rod marking an
interior southwest corner of said West Ridge;
THENCE: S 48 ° 18' 24" E along the southwest line of said West
Ridge for a distance of 56.79 feet to a 3/8-inch iron rod marking an
angle point in said southwest line;
THENCE: S 70° 58' 21" E along the common line of said West
Ridge and said 2.00 acre tract (351/575) for a distance of 718.11 feet
to a 5/8-inch iron rod marking an angle point in the southwest line of
said West Ridge;
THENCE: S 39° 53' 04" E along the southwest line of said West
Ridge Subdivision for a distance of 24.19 feet for corner;
THENCE: S 48 ° 08' 13" W for a distance of 88.33 feet to the Point
of Curvature of a curve to the left;
THENCE: 212.07 feet along the arc of said curve having a central
angle of 21 ° 19' 02", a radius of 570.00 feet, a tangent of 107.28 feet
and a lo_ig chord bearing S 37 ° 28' 42" W at a distance of 210.85 feet
to the Point of Tangency;
THENCE: S 26° 49' 11" W for a distance of 1328.46 feet to the
Point of Curvature of a curve to the right;
JDW/lian TRAID.CONTRACTOR AGR 98-0934 2
THENCE: 265.83 feet along the arc of said curve having a central
angle of 24° 10' 33", a radius of 630.00 feet, a tangent of 134.92 feet
and a ling chord bearing S 38 ° 54' 28" W at a distance of 263.86 feet
to the Point of Tangency;
THENCE: S 50 ° 59' 44" W for a distance of 204.00 feet to the Point
of Curvature of a curve to the left;
THENCE: 109.71 feet along the arc of said curve having a central
angle of 04° 16' 35", a radius of 1470.00 feet, a tangent of 54.88 feet
and a long chord bearing S 48 ° 51' 27" W at a distance of 109.69 feet
to a point in the northeast line of a 1.00 acre tract described as first
tract by deed to Frank Januse, Jr. recorded in Volume 1620, Page 70;
THENCE: N 51 ° 13' 36" W for a distance of 0.91 feet to the north
corner of said 1.00 acre tract;
THENCE: S 44 ° 42' 16" W along the common line of the beforesaid
50.1 acre tract, the 1.00 acre tract (1620/70) and the 1.00 acre
Rosemary Januse Hellman tract as described in Volume 1620, Page
72 for a distance of 366.35 feet to a 5/8-inch iron rod in the northeast
line of the beforementioned Farm to Market Road No. 2154 for
corner;
THENCE: N 46° 57' 17" W for a distance of 279.12 feet to the
POINT OF BEGINNING and containing 46.914 acres of land, more
or less.
Project: Develop 115 duplex lots and 3 one acre tracts in Phase I of Steeplechase
Subdivision
Borrower: BRAZOS TRIAD LAND DEVELOPMENT PARTNERSHIP, LTD., a Texas
Limited Partnership
Contractor: ~'pU~l9 L~r~C'~t/~5', /~sc',
~-
Gentlemen:
In consideration of the agreements by the Lendf;r to :finance construction of the Project in
accordance with and subj ect to the Commitment Letter (the "Commitment")between the Lender and
the Borrower dated October 20, 1998, providing for a loan not to exceed $2,900,000.00; the
undersigned Contractor acknowledges, represents and agrees with the Lender as follows:
1. Contractor acknowledges that the Borrower has granted a security interest to the Lender in
the Borrower's right, title and interest in the Construction Contract, a copy of which is
attached hereto as Exhibit "A", between Borrower and the Contractor.
2. If the Borrower defaults under the Construction Contract, before exercising any remedy the
Contractor shall give written notice to the Lender specifying the default and the steps
necessary to cure same and the Lender shall have twenty (20) days after receipt of such
notice to cure such default or cause it to be cured, if the Lender elects to do so, but Lender
has no obligation to cure any such default.
3. In the event the Lender notifies the Contractor in writing that the Borrower has defaulted
under the Commitment and requests that the Contractor continue performance under the
Construction Contract, the Contractor shall thereafter perform under the Construction
Contract in accordance with its terms, so long as the Contractor shall be paid in accordance
with the Construction Contract for all work, labor and materials rendered pursuant thereto.
4. The Contractor agrees not to perform work pursuant to any change order which (alone or
together with any prior changes) increases or decreases the contract price set forth in the
JDW/llrn~ TRAID.CONTRACTOR AGR 98-0934 3
Construction Contract by more than $15,000.00 or extends the time for completion of the
Project as set forth in the Construction Contract, unless the Lender shall have specifically
approved such change order. In the event such approval is not given by the Lender, the
Construction Contract shall be deemed not to have been modified by such change order.
Contractor also represents to Lender that the Construction Contract attached hereto as
Exhibit "A" is a true and correct copy of the Construction Contract between Borrower and
Contractor.
5. Upon request of the Lender, the Contractor shall furnish to the Lender a current list of all
persons or firms with whom the Contractor has entered into subcontracts or other agreements
relating to the performance of work or furnishing of materials in connection with the Proj ect,
together with a statement as to the status of each such subcontracts or agreements and the
respective amounts, if any, owed by the Contractor thereunder. Contractor also agrees to
provide to Lender affidavits at the time of each draw wherein the Contractor verifies to
Lender under oath that all persons, firms or subcontractors for which prior draws were made
have been paid the funds drawn for such particular person, firm or subcontractor.
6. Any and all liens, rights and interests (whether Choate or inchoate and including, without
limitation, all mechanic's and materiahnan's liens under the Constitution or statutes of the
State of Texas) owned, claimed or held, or to be owned, claimed or held by the Contractor
in and to the Premises or any improvements, fixtures or furnishings now or hereafter
constructed, placed or situated thereon, are and shall be second, subordinate and inferior to
the liens on and security interest in the Premises now or hereafter securing payment of any
indebtedness to the Lender created or incurred under the Commitment or otherwise.
Very truly yours,
~ ~
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By: ~ ~ ~C lIl',
Name: ~ t S; / ho
Title: ~~-~ ~ q ~ /~
STATE OF TEXAS
COUNTY OF BRAZOS §
~~ do ~e~~~r
This instrument was acknowledged before me on this the °P{~J _ day of ~etebe~; 1998 by
CJ. ~ ~IO S /~/t/~Nl~fi ~ ~ of
~i^GL C O/' C „ a corporation, on behalf of said corporation.
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No Public, estate of Texas
My Commission Expires: ~ ~ ~ g ~ ~~ C1
!o`'"rr~ic~ RE$ECCA S. ENtOE
;~ ~~ j No18-Y Public. SiaUe fp Texes 0/
„/, / My Commiuion Enplra
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JDW/Uan TRAID.CONTRACTOR AGR 98-0934 4