EXHIBIT 10.1
SIXTH MORTGAGE LOAN MODIFICATION
AGREEMENT
THIS
SIXTH MORTGAGE LOAN MODIFICATION AGREEMENT (the
“Agreement”) is entered into as of the
1st day of September, 2008 by and among
NATIONAL CITY BANK , a national banking association,
successor by merger with The Provident Bank, One East Fourth
Street, Cincinnati, Ohio 45202 (the “Lender”),
NTS/VIRGINIA DEVELOPMENT COMPANY
(“NTS/Virginia”), a Virginia corporation, and
NTS/LAKE FOREST II RESIDENTIAL CORPORATION, a Kentucky
corporation (“NTS/Lake Forest II”; NTS/Virginia and
NTS/Lake Forest II are sometimes hereinafter collectively referred
to as the “Borrowers”), ORLANDO LAKE FOREST JOINT
VENTURE , a Florida joint venture “Orlando Lake
Forest”), and NTS MORTGAGE INCOME FUND , a Delaware
corporation (the “Guarantor”).
RECITALS:
A. Borrowers,
Orlando Lake Forest and/or the Guarantor have issued and delivered
to Lender the following loan agreements, promissory notes and
security documents:
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(1) Amended
and Restated Development and Construction Loan Agreement among
Lender, Borrowers and Guarantors dated October 31, 2000
(“Loan Agreement”);
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(2) $18,000,000.00
Revolving Promissory Note Construction Mortgage Loan made by
Borrowers and Guarantors payable to the order of Lender dated
October 31, 2000, which consolidates the Loans referenced in
Sections 6 and 8 below (“Revolving Note”);
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(3) Guaranty
Agreement made by NTS Mortgage Income Fund in favor of Lender dated
October 31, 2000;
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(4) Stock
Pledge Agreement by NTS Mortgage Income Fund in favor of Lender
pledging its one hundred percent (100%) ownership in the capital
stock of NTS/Lake Forest II to Lender dated October 31,
2000;
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(5) Amendment
to Stock Pledge Agreement by NTS Mortgage Income Fund in favor of
Lender pledging its one hundred percent (100%) ownership in the
capital stock of NTS/Virginia to Lender dated October 31,
2000;
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(6) Development
and Construction Loan dated December 30, 1997 which evidences a Ten
Million Seven Hundred Thousand and 00/100 Dollar ($10,700,000.00)
loan made by Lender to NTS/Virginia Development Company which is
now consolidated under the Revolving Note. Such loan is secured by
the following:
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(a) Credit
Line Deed of Trust and Security Agreement made by Borrower,
NTS/Virginia Development Corporation in favor of Phillip Sasser,
Jr. and James E. Jarrell, III, as Trustees for the benefit of
Lender, of record in Deed Book 1521, Page 447 in the office of the
Spotsylvania County Recorder’s Office, as amended on October
31, 2000 in Deed Book 1874, Page 355 in the
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Spotsylvania County
Recorder’s Office (as modified in Items 9, 12, 14, 17, and
20, the “Deed of Trust”);
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(b) Conditional
Assignment of Leases, Rents, Contracts, Income and Proceeds made by
the Borrower in favor of Lender, of record in Deed Book 1521, Page
501 in the Spotsylvania County Recorder’s Office, as amended
on October 31, 2000 in Deed Book 1874, Page 362, Spotsylvania
County Recorder’s Office; and
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(c) UCC-1
Financing Statements of record in Spotsylvania County
Recorder’s Office.
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(7) Environmental
Indemnity Agreement between Lender and NTS/Virginia dated October
31, 2000;
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(8) Environmental
Indemnity Agreement between Lender and NTS/Lake Forest II dated
October 31, 2000;
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(9) Mortgage
Loan Modification Agreement between Lender and Borrowers dated May
16, 2003 and recorded on July 1, 2003 as Instrument 200300025884 in
the Clerks office of the Circuit Court of Spotsylvania County,
Virginia;
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(10) Second
Amended and Restated Revolving Promissory Note dated May 16, 2003
granted by Borrowers to Lender in the principal amount of Twelve
Million and 00/100 Dollars ($12,000,000.00) (“Second Amended
Note”);
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(11) Security
Agreement dated May 16, 2003 granted by Borrowers to
Lender.
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(12) Second
Mortgage Loan Modification Agreement between Lender and Borrowers
dated June 22, 2004 and recorded on July 12, 2004 as Instrument
LR200400026770 in the Clerks office of the Circuit Court of
Spotsylvania County, Virginia;
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(13) Third
Amended and Restated Revolving Promissory Note dated June 22, 2004
granted by Borrowers to Lender in the maximum amount of available
credit of Eight Million and 00/100 Dollars ($8,000,000.00)
(“Third Amended Note”);
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(14) Third
Mortgage Loan Modification Agreement between Lender and Borrowers
dated April 20, 2005 and recorded on May 16, 2005 as Instrument
200500018730 in the Clerks office of the Circuit Court of
Spotsylvania County, Virginia;
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(15) Fourth
Amended and Restated Revolving Promissory Note dated April 20, 2005
granted by Borrowers to Lender in the maximum amount of available
credit of Five Million and 00/100 Dollars ($5,000,000.00)
(“Fourth Amended Note”);
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(16) Fifth
Amended and Restated Revolving Promissory Note dated
October 24, 2007 granted by Borrowers to Lender in the maximum
amount of available
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credit of Seven Million Five
Hundred Thousand and 00/100 Dollars ($7,500,000.00) (“Fifth
Amended Note”);
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(17) Fourth
Mortgage Loan Modification Agreement between Lender, Borrower,
Orlando Lake Forest and Guarantor dated October 24, 2007 and
recorded December 13, 2007 as Instrument No. LR200700033396 in the
Clerk’s Office of Spotsylvania County, Virginia;
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(18) Unrecorded
Open End Mortgage, Security Agreement and Assignment of Rents and
Leases dated October 24, 2007, granted by Orlando Lake Forest in
favor of Lender, encumbering land (“Additional
Property”) located in Seminole County, Florida
(“Additional Mortgage”);
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(19) Unrecorded
Assignment of Contracts and Income dated October 24, 2007, granted
by Orlando Lake Forest in favor of Lender (“Additional
Assignment”); and
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(20) Fifth
Mortgage Loan Modification Agreement between Lender, Borrower,
Orlando Lake Forest and Guarantor dated May 19, 2008 and recorded
June 12, 2008 as Instrument No. LR200800012251 in the Clerk’s
Office of Spotsylvania County, Virginia.
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Items
(2), (10), (13), (15), are (16) are hereinafter referred to as the
“Notes”. Items (1) through (20) are hereinafter
referred to as the “Loan Documents.”
B.
The above described indebtedness, as evidenced by the Notes and all
additional sums due under the Loan Documents, remains unpaid and
Borrowers have requested and Lender has agreed to the rearrangement
of the terms of such indebtedness (the “Indebtedness”)
to extend the maturity date of the Notes with an option to further
extend the maturity date, to amend the interest rate thereunder, to
terminate the remaining availability thereunder and any revolving
features, to add an additional Guarantor, to amend the release
prices under the Deed of Trust and to add certain covenants to the
Loan Documents, which modifications shall occur upon
Borrowers’ compliance with the provisions set forth
herein.
NOW,
THEREFORE, in consideration of the mutual promises made herein, the
benefits accruing to the parties herein and the obligations assumed
hereunder, the parties agree that the Loan shall remain outstanding
and the terms of such Indebtedness shall be amended as set forth
below:
(1)
Amendment to the Notes . The Notes shall be amended and
restated in their entirety to extend the maturity date and to
provide for an additional extension option, to amend the interest
rate thereunder, to terminate the remaining availability thereunder
and any revolving features, and to provide for certain covenants of
Borrowers, as more fully defined in and pursuant to a Sixth Amended
and Restated Promissory Note dated of even date herewith
(“Restated Note”). The Restated Note shall not
constitute a repayment or satisfaction of the Indebtedness
evidenced by the Notes, which for all purposes hereunder shall
remain outstanding from December 30, 1997, January 6, 1998, October
31, 2000, May 16, 2003, June 22, 2004, April 20, 2005 and October
24, 2007, respectively.
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(2)
Amendment to Deed of Trust, Additional Mortgage and Other Loan
Documents . The Deed of Trust, the Additional Mortgage and
other Loan Documents shall be amended to reflect the extension of
the maturity date as set forth in the Restated Note to September 1,
2009, with an option to renew the maturity date to September 1,
2010 upon Borrowers’ meeting certain criteria therein. The
Deed of Trust, the Additional Mortgage and other Loan Documents
shall continue to secure the indebtedness under the Notes as now
evidenced by the Restated Note which evidences an outstanding
principal amount of Seven Million Three Hundred Fifty-Two Thousand
and 00/100 Dollars ($7,352,000.
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