FIRST AMENDED DECLARATION OF COVENANTS AND CONDITIONS OF CHIMNEY HILL (LOTS 1-50)

COLLEGE STATION, BRAZOS COUNTY, TEXAS

November 10, 2004

WHEREAS, J.A.C. DEVELOPERS, INC., a Texas corporation, prepared certain Declaration of Covenants and Conditions of Chimney Hill (Lots 1-50), College Station, Brazos County, Texas (referred to hereinafter as “Declaration of Covenants”), which Declaration of Covenants was recorded on September 30, 1981 at Volume 495, Page 797 of the Deed Records of Brazos County, Texas; and

WHEREAS, the undersigned owners of two-thirds (2/3) of the lots or residential units in the Subdivision desire to change said Declaration of Covenants in accordance with Article VII, Section 1;

NOW, THEREFORE, the Declaration of Covenants is hereby deleted and in their place and stead, the following Declaration of Covenants and Conditions is hereby adopted.

WITNESSETH:

PREAMBLE

WHEREAS, the Owners desire to provide for the preservation of the value and amenities in their residential community, and to this end, desires to subject the real property described hereinabove, together with any such additions as may hereafter be made thereto, to the covenants, charges and liens, hereinafter set forth, each and all of which is and are for the benefit of said property and each owner thereof; and

WHEREAS, these Covenants and Conditions are supplemental to, and not in limitation of, those certain Subdivision Restrictions duly recorded Volume 482, Page 749, Deed Records of Brazos County, Texas, as amended by Amendment recorded at Volume ___, Page ___ of the Official Records of Brazos County, Texas, with respect to the same property made the subject hereof;

WHEREAS, the Owners have deemed it desirable, for the efficient preservation of the value and amenities in said community, to create an agency to which should be delegated and assigned the powers of maintaining and administering and enforcing the covenants and conditions and disbursing the assessments and charges hereinafter created; and

WHEREAS, the Owners have established an unincorporated, non-profit association known as “The Chimney Hill Improvement Association” (“the Association”), for the purpose of exercising the functions aforesaid;

NOW, THEREFORE, the Owners declare that the real property described hereinabove, and such additions thereto as may hereafter be made, is and shall be held, transferred, sold, conveyed, and occupied subject to the covenants, conditions, charges, and liens hereinafter set forth.

ARTICLE I — DEFINITIONS

Section 1. The following words when used in this Declaration shall mean:

(a) “Association” shall mean and refer to The Chimney Hill Improvement Association.

(b) “ByLaws” shall mean and refer to the ByLaws of the Chimney Hill Improvement Association as the same currently exists or as they may be subsequently amended.

(c) “The Properties” shall mean and refer to all such existing properties, and additions thereto, as are subject to this Declaration.

(d) “Lot” shall mean and refer to any plot of land shown upon any recorded subdivision map of The Properties with the exception of any Common Properties as heretofore defined.

(e) “Residential Unit” shall mean and refer to a building situated upon The Properties designated and intended for use and occupancy as a residence by a single family.

(f) “Single Family” shall mean one family unit related by blood or by marriage, or not more than two unrelated individuals.

(g) “Owner” shall mean and refer to the record owner, whether one (1) or more entities, of the fee simple title to any Lot or Residential Unit situated upon The Properties but, notwithstanding any applicable theory of mortgage, shall not mean or refer to a mortgage unless and until such mortgagee has acquired title pursuant to foreclosure or any proceeding in lieu of foreclosure.

(h) “Members” shall mean and refer to all those Owners who are members of the Association as provided in Article III, Section 1, hereof.

ARTICLE II — PROPERTY SUBJECT TO THIS DECLARATION

Section 1. Existing Property. The real property which is, and shall be, held, transferred, sold, conveyed, and occupied subject to this Declaration is located in the State of Texas, County of Brazos, and is particularly described above.

ARTICLE III — MEMBERSHIP AND VOTING RIGHTS IN THE ASSOCIATION

Section 1. Membership. Every person or entity being a record owner of a fee or undivided fee interest in any lot or Residential Unit which is subject by covenants of record to assessment by the Association shall be a Member of the Association, provided that such person or entity which holds such interest merely as security for the performance of any obligation shall not be a Member.

Section 2. Voting Rights. Members shall be all those owners as defined in Section 1. Members shall be entitled to one (1) vote for each Lot or Residential Unit in which they hold the interests required for membership by Section 1. When more than one (1) person holds such interest or interests in any Lot or Residential Unit all such persons shall be Members, and the vote for such Lot or Residential Unit shall be exercised as they among themselves determine, but in no event shall more than one (1) vote be cast with respect to any such Lot or Residential Unit.

For purposes of determining the votes allowed under this Section when Residential Units are counted, the Lot or Lots upon which such Residential Units are situated shall not be counted.

Section 3. Members Meeting.

(a) There shall be an annual meeting of the Members of the Association. Annual meetings will be determined by the Board of Directors of the Association and provided for in the Bylaws.

(b) The initial Board of Directors shall serve until said annual meeting, at which time a new Board will be elected by majority vote of Members voting. The Board of Directors shall consist of at least three (3) persons, and not more than nine (9), as will be determined by Members voting at the first annual meeting, and subsequently, as will be provided in the Bylaws of the Association.

(c) The Board of Directors shall be responsible for the affairs of the Association and shall adopt such Bylaws and regulations as necessary to carry out its functions, but cannot adopt Bylaws or regulations which are contrary to provisions as set out herein.

ARTICLE IV — COVENANT FOR MAINTENANCE ASSESSMENTS

Section 1. Creation of the Lien and Personal Obligation of Assessments.

Each Owner of any Lot or Residential Unit by acceptance of a deed therefore, whether or not it shall be so expressed in any such deed or other conveyance, shall be deemed to covenant and agree to pay to the Association; (1) monthly assessments or charges; (2) special assessments for capital improvements, such assessments to be fixed, established and collected from time to time as hereafter provided. The monthly and special assessments, together with such interest thereon and costs of collection thereof as hereinafter provided, shall be a charge on the land and shall be a continuing lien upon the property against which such assessment is made. Each such assessment, together with such interest thereon and cost of collection thereof as hereinafter provided, shall also be the personal obligation of the person who was the Owner of such property at the time when the assessment fell due.

Section 2. Purpose of Assessments. The assessments levied by the Association shall be used exclusively for the purpose of promoting the recreation, health, safety, and welfare of the residents in The Properties and in particular for the improvement and maintenance of properties, services, and facilities devoted to this purpose and related to the use and enjoyment of any Common Properties and of the homes situated upon The Properties.

Section 3. Basis and Maximum of Monthly Assessments. The monthly assessments on each Lot belonging to a Member shall be determined in the manner specified in the ByLaws.

The Board of Directors of the Association may, after consideration of current maintenance costs and further needs of The Association, fix the actual assessment for any period.

For the purpose of figuring the amount of assessment, where a single family residential unit is constructed on more than one Lot, (as Lot is shown by recorded plat), then and in that event, such unit shall be, for the purpose of assessment, considered as one lot, and the Owner of such unit shall not be entitled to more than one vote.

Section 4. Change in Basis and Maximum Monthly Assessments. Subject to the limitations of Section 3 hereof, and for the periods therein specified, the Association may change the maximum and basis of the assessments fixed by Section 3 hereof (prospectively) for any such period provided that any such change shall have the assent of two-thirds (2/3) of the votes of the Members who are voting in person or by proxy at a meeting duly called for this purpose, written notice of which shall be sent to all Members at least thirty (30) days in advance and shall set forth the purpose of the meeting.

Section 5. Quorum for Any Action Authorized Under Section 4. The quorum required for any action authorized by Section 4 hereof, shall be as follows:

At the first meeting called, as provided in Section 4 hereof, the presence at the meeting of Members, or of proxies, entitled to cast forty (40%) percent of all the votes of membership shall constitute a quorum. If the required quorum is not forthcoming at any meeting, another meeting may be called, subject to the notice requirement set forth in Section 4, and the required quorum at any such subsequent meeting shall be one-half (1/2) of the required quorum at the preceding meeting, provided that no such subsequent meeting shall be held more than sixty (60) days following the preceding meeting.

Section 6. Verification of Payment of Assessment. The Association shall upon demand at any time furnish to any Owner liable for said assessments a certificate in writing signed by an officer of the Association, setting forth whether said assessment has been paid. Such certificate shall be conclusive evidence of payment of any assessment therein stated to have been paid.

Section 7. Effect of Non-Payment of Assessments: The Personal Obligation of the Owner; The Lien; Remedies of the Association. If the assessments are not paid on the date when due, then such assessment shall become delinquent and shall, together with such interest thereon and cost of collection thereof as hereinafter provided, thereupon become a continuing lien on the property which shall bind such property in the hands of the then Owner, his heirs, devisees, personal representatives and assigns. The personal obligation of the Owner to pay such assessment, however, shall remain his personal obligation for the statutory period and shall not pass to his successors in title unless expressly assumed by them.

If the assessment is not paid within thirty (30) days after the delinquency date, the assessment shall bear interest from the date of delinquency at the rate of twelve (12%) percent per annum, and the Association may bring an action at law against the Owner personally obligated to pay the same or to foreclose the lien against the property, and there shall be added to the amount of such assessment the costs of preparing and filing the complaint in such action, and in the event a judgment is obtained such judgment shall include interest on the assessment as above provided and a reasonable attorney’s fee to be fixed by the Court together with the costs of the action.

Section 8. Subordination of the Lien to Mortgage. The lien of the assessments provided for herein shall be subordinate to the lien of any mortgage or mortgages now or hereinafter placed upon The Properties subject to assessment; provided, however, that such subordination shall apply only to the assessments which have become due and payable prior to a sale or transfer of such property pursuant to a decree of foreclosure, or any other proceeding in lieu of foreclosure. Such sale or transfer shall not relieve such property from liability for any assessments thereafter becoming due, nor from the lien of any such subsequent assessment.

ARTICLE V — ARCHITECTURAL CONTROL COMMITTEE

Section 1. Review by Committee. No building, fence, wall or other structure shall be commenced, erected or maintained upon The Properties, nor shall any exterior addition to or change or alteration therein be made until the plans and specifications showing the nature, kind, shape, height, materials, and location of the same shall have been submitted to and approved in writing by the Architectural Control Committee as to harmony of exterior design and location in relation to surrounding structures and topography.

Section 2. Membership. The Architectural Control Committee shall be composed of three members selected by the Board. The Committee members or their appointed Successors shall continue in office for a period of three (3) years from date of appointment. Any two members will constitute a quorum and the vote of any two will control the action of the committee. In the event of death or resignation of any member of the committee, the Board of Directors shall have full authority to designate a successor.

Section 3. Responsibility. If the Committee, or a designated representative, fails to give written approval or disapproval within thirty (30) days after plans and specifications have been submitted to it, or in any event, if no suit to enjoin the construction has been commenced prior to the completion of the improvements, approval will not be required and the provisions of this Article will be deemed to have been fully complied with.

ARTICLE VI

Section 1. Duration. The Covenants and Conditions of this Declaration shall run with and bind the land, and shall inure to the benefit of and be enforceable by the Association; or the Owner of any land subject to this Declaration, their respective legal representatives, heirs, successors, and assigns, for a term of twenty (20) years from the date this Declaration is recorded, after which time said covenants shall be automatically extended for successive periods of ten (10) years unless an instrument signed by the then-owners of two-thirds (2/3) of the Lots or Residential Units has been recorded, agreeing to change said Covenants and Conditions in whole or in part. For purpose of meeting the two-thirds (2/3) requirement, when Residential Units are counted, the Lot or Lots upon which such Residential Units are situated shall not be counted. Provided, however, that no such agreement to change shall be effective unless made and recorded one (1) year in advance of the effective date of such change, and unless written notice of the proposed agreement is sent to every Owner at least ninety (90) days in advance of any action taken.

Section 2. Notices to Members. Any notice required to be sent to any Member or Owner under the provisions of this Declaration shall be deemed to have been properly sent when mailed, postage prepaid, to the last known address of the person who appears as a Member or Owner on the records of the Association at the time of such mailing.

Section 3. Enforcement. Enforcement of these Covenants and Conditions shall be by any proceeding at law or in equity against any person or persons violating or attempting to violate any Covenant or Condition, either to restrain violation or to recover damages, and against the land to enforce any lien created by these Covenants; and failure by the Association or any Owner to enforce any Covenant or Condition herein contained shall in no event be deemed a waiver of the right to do so thereafter.

Section 4. Severability. Invalidation of any one of these Covenants or Conditions by judgment or court order shall in no wise effect any other provision which shall remain in full force and effect.

Section 5. Notices to Association. Any notice to the Association shall be deemed to have been properly sent when hand delivered or mailed by certified mail, return receipt requested to the sitting President or Treasurer. Any notice to the Architectural Control Committee shall be deemed to have been sent on the day it is personally delivered to any sitting member of the Architectural Control Committee or mailed by certified mail, return receipt requested to Architectural Control Committee, Chimney Hill Improvement Association, in care of Kathy Lees, 200 Lampwick Circle, College Station, Texas 77840, or the current President or Treasurer of the Association, or such other address as may be recorded in the Official Records of Brazos County, Texas.

Reproduced for convenience from the recorded instrument. The official document on file controls.