exhibit_10-5.htm


    CONSOLIDATED AND
AMENDED

    AND
RESTATED

    PROMISSORY
NOTE

     

    
      	 $118,542.66	
              Louisville,
      Kentucky

              February 1,
      2010

            




    WHEREAS,
RESIDENTIAL MANAGEMENT
COMPANY, a Kentucky corporation having an address of 10172 Linn Station
Road, Louisville, Kentucky, 40223 (the “Lender”) has made certain loans and
advances to NTS/LAKE FOREST II
RESIDENTIAL CORPORATION, a Kentucky corporation having an address of
10172 Linn Station Road, Louisville, Kentucky 40223 (the “Borrower”), which
loans and advances are evidenced by the following promissory notes:

     

    (a) that
certain Amended and Restated Promissory Note dated April 11, 2009 made by
Borrower payable to the order of Lender in the face principal amount of Thirty
Six Thousand One Hundred Six Dollars and Ninety Cents ($36,106.90) (“Note
2009-1”); and

     

    (b) that
certain Promissory Note dated August 10, 2009 made by Borrower payable to the
order of Lender in the face principal amount of Seventy Six Thousand Nine
Hundred Thirty Dollars and Sixty Six Cents ($76,930.66) (“Note
2009-2”);

     

    Note
2009-1 – Note 2009-2 are sometimes hereinafter referred to collectively as the
“Notes.”

     

    WHEREAS,
Lender has made additional advances or loans to the Borrower during the months
of September – December 2009 for payroll billings and overhead fees in the
aggregate amount of Five Thousand Five Hundred Five Dollars and Ten Cents
($5,505.10) (the “Advances”); and

     

    WHEREAS,
for the convenience of Borrower and Lender, the parties have agreed to
consolidate, amend and restate the Notes in their entirety hereunder and to
include the amount of the Advances in the principal due under this Consolidated
and Amended and Restated Promissory Note, which consolidation, amendment and
restatement shall in no manner constitute a repayment, satisfaction or novation
of the indebtedness evidenced by the Notes;

     

    NOW
THEREFORE, Borrower makes and grants to Lender this Consolidated and Amended and
Restated Note (the “Note”) under the following terms:

     

    FOR VALUE
RECEIVED, Borrower promises to pay to Lender, in lawful money of the United
States of America in immediately available funds at its offices located at 10172
Linn Station Road, Louisville, Kentucky 40223, or at such other location as the
Lender may designate from time to time, the principal sum of ONE HUNDRED
EIGHTEEN THOUSAND FIVE HUNDRED FORTY TWO DOLLARS AND SIXTY SIX CENTS
($118,542.66) (the “Loan”), together with interest accruing on the outstanding
principal balance from the date hereof, as provided below:


    
      
         


      

      
         


        
        

      

      
         


      

    


          
1.           Interest
Rate.  The principal balance of the Loan will bear interest at
a fixed rate per annum (calculated on the basis of the actual number of days
that principal is outstanding over a year of 360 days) equal to five and
thirty-four one-hundredths percent (5.34%) per annum (the “Fixed
Rate”).

    


    In no event will the rate of interest
hereunder exceed the maximum rate allowed by law.

    


    2.           Payment
Terms.  Interest shall be due and payable commencing on the
first day of each month beginning February 1, 2010 until March 31, 2010 on which
date all outstanding principal and accrued interest shall be due and payable in
full (the “Maturity Date”).  Payments received will be applied to
charges, fees and expenses (including attorneys’ fees), accrued interest and
principal in any order the Lender may choose, in its sole
discretion.

    


    3.           Late Payments; Default
Rate.  If a payment is more than 15 days late, the Borrower
shall also pay to the Lender a late charge equal to 5% of the unpaid portion of
the payment or $100, whichever is greater (the “Late Charge”).  Such
15 day period shall not be construed in any way to extend the due date of any
such payment.  Upon maturity, whether by acceleration, demand or
otherwise, and at the option of the Lender upon the occurrence of any Event of
Default (as hereinafter defined) and during the continuance thereof, this Note
shall bear interest at a rate per annum (calculated on the basis of the actual
number of days that principal is outstanding over a year of 360 days) which
shall be four percentage points (4%) in excess of the Fixed Rate in effect from
time to time but not more than the maximum rate allowed by law (the “Default
Rate”).  The Default Rate shall continue to apply whether or not
judgment shall be entered on this Note.  Both the Late Charge and the
Default Rate are imposed as liquidated damages for the purpose of defraying the
Lender’s expenses incident to the handling of delinquent payments, but are in
addition to, and not in lieu of, the Lender’s exercise of any rights and
remedies hereunder, under the Loan Documents or under applicable law, and any
fees and expenses of any agents or attorneys which the Lender may
employ.  In addition, the Default Rate reflects the increased credit
risk to the Lender of carrying a loan that is in default.  The
Borrower agrees that the Late Charge and Default Rate are reasonable forecasts
of just compensation for anticipated and actual harm incurred by the Lender, and
that the actual harm incurred by the Lender cannot be estimated with certainty
and without difficulty.

    


    4.           Prepayment.  The
indebtedness evidenced by this Note may be prepaid in whole or in part at any
time without penalty or premium.

    


    5.           Events of
Default.  The occurrence of any of the following events will be
deemed to be an “Event of Default” under this Note:

    


    (i)           Borrower
fails to make any payment when due hereunder, or fails to otherwise comply with
any term or provision of this Note, and such failure is not cured within any
applicable cure period or fails to comply;

    


    (ii)           The
filing by or against Borrower of any proceeding in bankruptcy, receivership,
insolvency, reorganization, liquidation, conservatorship or similar proceeding
(and,


    
      
         


      

      
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    in the
case of any such proceeding instituted against any Obligor, such proceeding is
not dismissed or stayed within 30 days of the commencement
thereof);

    


    (iii)           Any
assignment by Borrower for the benefit of creditors, or any levy, garnishment,
attachment or similar proceeding is instituted against any property of
Borrower;

    


    (iv)           A
judgment or judgments are entered against Borrower, Borrower defaults in the
payment of any other debts or there is a material adverse change in the
financial condition of Borrower, or the Lender in good faith believes the
prospects for repayment of this Note have been impaired; and

    


    (v)           Any
material statement made to the Lender about Borrower, or about Borrower’s
financial condition, or about any collateral securing this Note is false or
misleading.

    


    Upon the occurrence of an Event of
Default: (a) in an Event of Default specified in clauses (ii) or (iii) above
shall occur, the outstanding principal balance and accrued interest hereunder
together with any additional amounts payable hereunder shall be immediately due
and payable without demand or notice of any kind; (b) if any other Event of
Default shall occur, the outstanding principal balance and accrued interest
hereunder together with any additional amounts payable hereunder, at the option
of the Lender and without demand or notice of any kind may be accelerated and
become immediately due and payable; (c) at the option of the Lender, this Note
will bear interest at the Default Rate from the date of the occurrence of the
Event of Default; and (d) the Lender may exercise from time to time any of the
rights and remedies available to the Lender under applicable law.

    


    6.           Indemnity.  The
Borrower agrees to indemnify each of the Lender, each legal entity, if any, who
controls, is controlled by or is under common control with the Lender, and each
of their respective directors, officers and employees (the “Indemnified
Parties”), and to hold each Indemnified Party harmless from and against any and
all claims, damages, losses, liabilities and expenses (including all fees and
charges of internal or external counsel with whom any Indemnified Party may
consult and all expenses of litigation and preparation therefor) which any
Indemnified Party may incur or which may be asserted against any Indemnified
Party by any person, entity or governmental authority (including any person or
entity claiming derivatively on behalf of the Borrower), in connection with or
arising out of or relating to the matters referred to in this Note whether (a)
arising from or incurred in connection with any breach of a representation,
warranty or covenant by the Borrower, or (b) arising out of or resulting from
any suit, action, claim, proceeding or governmental investigation, pending or
threatened, whether based on statute, regulation or order, or tort, or contract
or otherwise, before any court or governmental authority; provided, however, that the
foregoing indemnity agreement shall not apply to any claims, damages, losses,
liabilities and expenses solely attributable to an Indemnified Party’s gross
negligence or willful misconduct. The indemnity agreement contained in this
Section shall survive the termination of this Note, payment of any amounts
hereunder and the assignment of any rights hereunder.  The Borrower
may participate at its expense in the defense of any such auction or
claim.


    
      
         


      

      
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    7.           Miscellaneous. All
notices, demands, requests, consents, approvals and other communications
required or permitted hereunder (“Notices”) must be in writing (except as may be
agreed otherwise above with respect to borrowing requests) and will be effective
upon receipt. Notices may be given in any manner to which the parties may
separately agree, including electronic mail.  Without limiting the
foregoing, first-class mail, facsimile transmission and commercial courier
service are hereby agreed to as acceptable methods for giving
Notices.  Regardless of the manner in which provided, Notices may be
sent to a party’s address as set forth above or to such other address as any
party may give to the other for such purpose in accordance with this
section.  No delay or omission on the Lender’s part to exercise any
right or power arising hereunder will impair any such right or
power.  The Lender’s rights and remedies hereunder are cumulative and
not exclusive of any other rights or remedies which the Lender may have under
other agreements, at law or in equity.  No modification, amendment or
waiver of, or consent to any departure by the Borrower from, any provision of
this Note will be effective unless made in a writing signed by the Lender, and
then such waiver or consent shall be effective only in the specific instance and
for the purpose for which given.  The Borrower agrees to pay on
demand, to the extent permitted by law, all costs and expenses incurred by the
Lender in the enforcement of its rights in this Note and in any security
therefor, including without limitation reasonable fees and expenses of the
Lender’s counsel.  If any provision of this Note is found to be
invalid, illegal or unenforceable in any respect by a court, all the other
provisions of this Note will remain in full force and effect.  The
Borrower and all other makers and indorsers of this Note hereby forever waive
presentment, protest, notice of dishonor and notice of
non-payment.  The Borrower also waives all defenses based on
suretyship or impairment of collateral.  If this Notice is executed by
more than one Borrower, the obligations of such persons or entities hereunder
will be joint and several.  This Note shall bind the Borrower and its
heirs, executors, administrators, successors and assigns, and the benefits
hereof shall inure to the benefit of the Lender and its successors and assigns;
provided, however, that the
Borrower may not assign this Note in whole or in part without the Lender’s
written consent and the Lender at any time may assign this Note in whole or in
part.

    


    This Note has been delivered to and
accepted by the Lender and will be deemed to be made in the State where the
Lender’s office indicated above is located.  This Note will be interpreted and the
rights and liabilities of the Lender and the Borrower determined in accordance
with the laws of the State where the Lender’s office indicated above is located,
excluding its conflict of laws rules. The Borrower hereby irrevocably
consents to the exclusive jurisdiction of any state or federal court in the
county or judicial district where the Lender’s office indicated above is
located; provided that nothing contained in this Note will prevent the Lender
from bringing any action, enforcing any award or judgment or exercising any
rights against the Borrower individually, against any security or against any
property of the Borrower within any other county, state or other foreign or
domestic jurisdiction.  The Borrower acknowledges and agrees that the
venue provided above is the most convenient forum for both the Lender and the
Borrower. The Borrower waives any objection to venue and any objection based on
a more convenient forum in any action instituted under this Note.

    


    8.           Waiver of Jury
Trial.  The Borrower irrevocably waives any and all right it
may have to a trial by jury in any action, proceeding or claim of any nature
relating to this Note, any documents executed in connection with this Notice or
any transaction


    
      
         


      

      
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    contemplated
in any of such documents.  The Borrower acknowledges that the
foregoing waiver is knowing and voluntary.

    


    The Borrower acknowledges that it has
read and understands all of the provisions of this Note, including the waiver of
jury trial, and has been advised by counsel as necessary or
appropriate.

    


    WITNESS the due execution hereof by an
authorized officer of Borrower, with the intent to be legally bound
hereby.

    


    


    LENDER:

    


    RESIDENTIAL MANAGEMENT
COMPANY,

    a Kentucky corporation

    


    


    


    By:           /s/
Brian F. Lavin      

    Name:     Brian F.
Lavin

    Title:       President

    


    


    BORROWER:

    


    NTS/LAKE FOREST II
RESIDENTIAL 

     
                    CORPORATION,
a Kentucky corporation

    


    


    


    By:           /s/
Gregory A. Wells      

    Name:     Gregory A.
Wells

    Title:       Executive
Vice President

     

     

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