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EXHIBIT 10.15.7.1
After recording return to:
Xxxxxxx X. Xxxxxxx, Esq.
Holt, Ney, Zatcoff & Xxxxxxxxx
000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
FIRST AMENDMENT TO DEED TO SECURE DEBT
AND SECURITY AGREEMENT
THIS FIRST AMENDMENT TO DEED TO SECURE DEBT AND SECURITY AGREEMENT
(hereinafter referred to as the "Amendment") is made and entered into this 1st
day of August, 1994, by and between THE CRESTMARK CLUB, L.P., a Georgia limited
partnership, party of the first part, as grantor (hereinafter referred to as
"Borrower"), and COMMONWEALTH OF PENNSYLVANIA STATE EMPLOYES' RETIREMENT BOARD,
AN INDEPENDENT ADMINISTRATIVE BOARD OF THE COMMONWEALTH OF PENNSYLVANIA,
TRANSACTING BUSINESS AS THE COMMONWEALTH OF PENNSYLVANIA STATE EMPLOYES'
RETIREMENT SYSTEM, party of the second part, as grantee (hereinafter referred to
as "Lender").
W I T N E S S E T H T H A T:
WHEREAS, Borrower executed in favor of Lender that certain Deed to
Secure Debt and Security Agreement dated April 27, 1994, recorded in Deed Book
879, page 444, et seq., Xxxxxxx County, Georgia records (hereinafter referred to
as the "Security Deed"); and
WHEREAS, Borrower and Lender are mutually desirous of entering into
this Amendment to amend certain terms and provisions of the Security Deed, only
as hereinafter specifically set forth;
NOW, THEREFORE., for and in consideration of the premises, Ten Dollars
($1 0.00) in hand paid by Borrower to Lender, and other good and valuable
consideration, the receipt, adequacy and sufficiency of which are hereby
acknowledged by the parties hereto, the parties hereto, intending to be legally
bound, hereby agree as follows:
1. The foregoing recital of facts is hereby incorporated herein to the
same extent as if hereinafter fully set forth.
2. The Security Deed is hereby amended by deleting the penultimate
paragraph of paragraph 4 of Schedule 3 (Further Stipulations) of Exhibit C to
the Security Deed, and by substituting in lieu thereof the following:
"In the event that the Proposed Transferee is a real estate
investment trust organized by Xxxxxxx X. Xxxxxxx ("REIT"),
then, in addition to the Transfer Conditions, the following
conditions must also be satisfied (the "REIT Transfer
Conditions"): (t) the loan-to-value ratio of the REIT must not
exceed 75%; and (u) Xxxxxxx X. Xxxxxxx ("Xxxxxxx") at all
times must own stock in the REIT with an aggregate economic
interest of not less than $500,000; and (v) Xxxxxxx at all
times
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personally guarantee the payment of the Note and the
performance of the Borrower of its covenants under this Deed,
pursuant to an instrument of guaranty satisfactory to Lender,
and such guaranty shall remain in effect until Lender has
determined, based on information furnished to Lender in form
and detail satisfactory to Lender, that the next three (3)
apartment communities acquired by or transferred to the REIT,
following the acquisition by the REIT of the Premises, have
achieved a 90% leasing and occupancy level, whereupon the
guaranty will be released; and (x) a management firm owned or
controlled by Xxxxxxx, which is satisfactory to Lender, must
at all times manage and lease the Premises; and (y) Borrower
shall pay all costs and expenses incurred by Lender and
associated with the transfer of the Premises to the REIT,
including without limitation, attorney's fees of Lender's
special counsel; and (z) in the event that the transfer to the
REIT occurs after December 31, 1994, then Borrower shall pay
to Lender the non-refundable fee in the amount of one percent
(1%) of the then outstanding principal balance of the Note
as referred to in paragraph 4(h) above; but, in the event the
transfer to the REIT occurs before January 1, 1995, the
non-refundable one percent (1%) fee specified in paragraph 4
(h) above will not be due and payable. In the event that any
of the REIT Transfer Conditions are not met or, having been
met, are breached or cease being met at any time after the
transfer of the Premises to the REIT occurs, then such breach
or failure of compliance shall, at Lender's option, be and
constitute a Default under this Deed."
3. Except as herein specifically amended, the Security Deed shall
remain in full force and effect and unamended. This Amendment shall be governed
by, construed and interpreted pursuant to the laws of the State of Georgia. This
Amendment shall be binding upon and shall inure to the benefit of Borrower and
Lender and their successors and assigns, subject to the restrictions on transfer
of the Premises (as defined in the Security Deed) contained in the Security
Deed. This Amendment shall not constitute a novation as respects the Security
Deed.
IN WITNESS WHEREOF, Borrower and Lender have caused this Amendment to
be duly executed, sealed and delivered the day and year first above written.
BORROWER:
Signed, sealed and delivered THE CRESTMARK CLUB, L.P.
in the presence of:
/s/ Xxxxx Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx (SEAL)
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Witness Xxxxxxx X. Xxxxxxx, its sole
general partner
/s/ Xxxxxxxx X. Xxxxxxxxx
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Notary Public
My Commission expires: Notary Public, Gwinnett County, Georgia
My Commission Expires March 1, 1997
[Affixed notary seal or stamp]
(Signatures continued on next page)
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LENDER:
Signed, sealed and delivered COMMONWEALTH OF PENNSYLVANIA
in the presence of: STATE EMPLOYES' RETIREMENT BOARD,
/s/ Xxxxxx X. [illegible]
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Witness By: Xxxxxxx & Xxxx Financial Services.,
Inc., its agent, which is also
known as Xxxx Xxxxx Real Estate
Advisors
/s/ Xxxxxx Xxxxxxxx
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Notary Public
By: /s/ Xxxxxxxx X. Xxxxx
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Xxxxxxxx X. Xxxxx, Assistant Vice
President
My Commission expires:
[Affixed notary seal or stamp] (CORPORATE SEAL)
RECORDED 9-12 1994
XXXX X. XXXXXXXX, CLERK
SUPERIOR COURT, XXXXXXX CO
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