exhibit_10-25.htm


     

     

    FREDDIE
MAC NO: SEE EXHIBIT A

    


    MASTER CLEARING ACCOUNTS
AGREEMENT-CME

    Lender
– Access to Clearing Accounts

    


    (REVISION
DATE 8-14-2009)

     

    This
MASTER CLEARING ACCOUNTS AGREEMENT (the “Agreement”) is entered into as
of the 16th day
of December, 2009, by and among PNC BANK, NATIONAL
ASSOCIATION, a national banking association having and address at One PNC
Plaza, 19th Floor, P1-POPP-19-2, Pittsburgh, PA  15222 (“Clearing Bank”), those parties
identified on Exhibit
A attached hereto, each having an address at c/o NTS Development Company,
10172 Linn Station Road, Louisville, Kentucky 40223 (each sometimes referred to
individually as a “Borrower” and all sometimes
referred to collectively as “Borrowers”), and HOLLIDAY FENOGLIO FOWLER,
L.P., a Texas limited partnership, having an address at 9 Greenway Plaza,
Suite 700, Houston, Texas 77046 (together with its successors and assigns,
“Lender”).

     

    RECITALS

    


    WHEREAS, Lender has agreed to make, or
has made to each of the Borrowers a loan (each a “Loan” and collectively, the
“Loans”) in the original
principal amounts set forth on Exhibit A attached
hereto.

     

    WHEREAS, Each Loan is to be evidenced
by the Multifamily Note (each a “Note” and collectively, the
“Notes”) and secured by
a Multifamily Mortgage or Deed of Trust, Assignments of Rents and Security
Agreement of even date herewith (each a “Security Instrument”, and
collectively, the “Security
Instruments”).

     

    WHEREAS, each Security Instrument
grants to Lender, among other things, a first lien on the Mortgaged Property
described therein  and an assignment of all Rents arising with respect
to such Mortgaged Property.   References herein to the “Property” mean each such
Mortgaged Property separately and all such Mortgaged Properties
together.

     

    WHEREAS, Lender and Borrowers are
parties to that certain Master Cross-Collateralization Agreement dated as of the
date of this Agreement (the “Master Cross-Collateralization
Agreement”), wherein Borrowers agree that the Property is and shall be
collateral for all of the Loans.

     

    WHEREAS,
as a condition of making the Loans, Lender is requiring that Borrowers deposit
all Receipts (as defined below) with a financial institution acceptable to
Lender into an account designated by and established for the benefit of Lender,
and Borrowers and Lender desire to retain Clearing Bank to provide the services
described herein.

     

    NOW,
THEREFORE, for and in consideration of the mutual promises and covenants herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Lender, Clearing Bank and
Borrowers agree as follows:

     

    1.           Defined
Terms. The following terms used in this Agreement shall have the
meanings set forth below in this Paragraph 1.

     

    “Available Funds”
means funds on deposit in the Clearing Accounts reasonably determined by the
Clearing Bank to constitute available funds, by reference to Regulation CC
of


    
      
         


      

      
        
          
 PAGE 1

        
        

      

      
         


      

    


    the Board
of Governors of the Federal Reserve System, as amended and interpreted from time
to time.

     

    “ACH System” means the
automated clearinghouse system.

     

    “Business Day” means
any day other than a Saturday, a Sunday or any other day on which Lender,
Clearing Bank, or the national banking associations are not open for
business.

     

    “Cash Management
Agreement” means that certain Master Cash Management Agreement of even
date herewith by and among Borrowers, Manager (as defined in the Cash Management
Agreement) and Lender.

     

    “Cash Sweep Period”
means any period which commences upon receipt of notice by Clearing Bank of the
delivery of a Notice of Commencement of Cash Sweep Period and continues until
such time, if any, as Lender delivers a Notice of Termination of Cash Sweep
Period.

     

    “Clearing Accounts”
has the meaning specified in Paragraph 2(a) below.

     

    “Deposit Account”
means the account established or to be established by Lender or Servicer in
accordance with the terms of the Cash Management Agreement, into which all funds
in the Clearing Accounts shall be deposited as set forth in Paragraph 4 of this
Agreement.

     

    “Designee” means the
Servicer or other agent of Lender acting for the benefit of Lender under this
Agreement. Lender will provide written notice from time to time to Borrower and
Clearing Bank of the appointment of a Designee.  Clearing Bank will
require receipt of such written notice prior to recognizing a party as
Designee.

     

    “Eligible Account”
means an identifiable account which is separate from all other funds held by the
holding institution that is either (i) an account or accounts maintained with
the corporate trust department of a federal or state-chartered depository
institution or trust company which complies with the definition of Eligible
Institution or (ii) a segregated trust account or accounts maintained with the
corporate trust department of a federal or state chartered depository
institution or trust company acting in its fiduciary capacity which, in the case
of a state chartered depository institution or trust company is subject to
regulations substantially similar to 12 C.F.R. §9.10(b), having in either case a
combined capital and surplus of at least $50,000,000 and subject to supervision
or examination by federal and state authority; or (iii) a deposit account within
the meaning of Section 9-104 of the UCC.  An Eligible Account will not
be evidenced by a certificate of deposit, passbook or other
instrument.

     

    “Eligible Institution”
means a federal or state chartered depository institution or trust company
insured by the Federal Deposit Insurance Corporation, the short term unsecured
debt obligations or commercial paper of which are rated at least A-1 by Standard
& Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc
(“S&P”); P-1 by
Moody’s Investors Service, Inc. (“Moody's”); and F-1 by Fitch,
Inc. (“Fitch”) in the
case of accounts in which funds are held for thirty (30) days or less or, in the
case of letters of credit or accounts in which funds are held for more than
thirty (30) days, the long term unsecured debt obligations of which are rated at
least “A” by Fitch and S&P “A2” by Moody’s.  If at any time an
Eligible Institution does not meet the required rating, the Eligible Account
must be moved within thirty (30) days to an appropriately rated Eligible
Institution.

     

    
      “Notice of Commencement of
Cash Sweep Period” means a Notice provided to Clearing Bank and Borrowers
by Lender that provides that a Cash Sweep Period has commenced and thereafter
Lender shall have sole dominion and control over the Clearing
Accounts.

    


    
      
         


      

      
        
          
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    “Notice of Termination of
Cash Sweep Period” means a Notice provided to Clearing Bank and Borrowers
by Lender that a Cash Sweep Period has terminated and thereafter Borrowers and
Lender shall have joint control over the Clearing Accounts as provided in the
Cash Management Agreement.

     

    “Obligations” means
any and all debts, liabilities and obligations of Borrowers, and each of them,
to Lender pursuant to or in connection with the Loans, including without
limitation, the indebtedness evidenced by the Notes and any and all debt,
liabilities and obligations of Borrowers under the “Loan Documents” as defined
in the Cash Management Agreement.

     

    “Receipts” means any
Rents and any other income received by any Borrower or Manager in connection
with the Property.

     

    Terms
used in this Agreement and not defined herein have the meanings given to those
terms in the Cash Management Agreement.

     

    2.           Duties of Clearing
Bank.

     

    (a)           In
order to further secure the performance by Borrowers of their Obligations (i)
Borrowers have established with Clearing Bank eight (8) separate deposit
accounts (collectively, the “Clearing Accounts) designated
as set forth in Exhibit B hereto,
provided, that
Lender shall have the option to cause Clearing Bank to change the name of any
such account in its sole discretion by giving Notice to Borrowers and Clearing
Bank; and provided
further that such change shall not otherwise modify the terms of this
Agreement.  Clearing Bank will maintain the Clearing Accounts. The
Clearing Accounts will be assigned the respective federal tax identification
numbers listed in Exhibit
B.

     

    (b)           Clearing
Bank shall receive and process any Receipts presented by Borrowers, Manager or
any of their respective agents pursuant to the Cash Management Agreement and
shall deposit all Receipts received by it with respect to the Property into the
Clearing Accounts.

     

    (c)           Clearing
Bank shall hold amounts deposited in the Clearing Accounts for the benefit of
Lender and shall designate such amounts on its books as being held for the
benefit of Lender, subject to the terms of this Agreement.

     

    (d)           Borrowers
and Clearing Bank shall maintain each Clearing Account as an Eligible
Account.  Each Clearing Account shall constitute a “deposit account”
within the meaning of the Uniform Commercial Code of the State of New
York.  Regardless of any provision of any other agreement, for
purposes of the Uniform Commercial Code, New York shall be deemed the
jurisdiction of the Bank, as “bank” with respect to such “deposit
account”.

     

    (e)           Clearing
Bank shall immediately take any steps necessary in order for Clearing Bank to
effectuate any transfer of funds to Lender or Designee pursuant to Paragraph
4 of this Agreement
and to provide data, via utilization of Clearing Bank’s internet-based systems
then in effect, to Lender or Designee pursuant to Paragraph 2(g) of this
Agreement.

     

    
      (f)           Clearing
Bank shall send monthly account statements to Borrowers, or at Borrowers’
discretion, Manager, itemizing activity with respect to the Clearing Accounts in
accordance with Clearing Bank's regular practices for providing account
statements to its customers.

       

    

    
      
         


      

      
        
          
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    (g)           Upon
request of Lender or Designee, Clearing Bank shall (i) provide to Lender or
Designee, as applicable, via utilization of Clearing Bank’s generally available
internet-based banking system, currently accessible via pnc.com, then in effect,
information on Clearing Account balances, the aggregate amount of withdrawals
from the Clearing Accounts and other similar information and (ii) Clearing
Bank (x) shall advise Lender or Designee, as applicable, of the amount of
Available Funds via utilization of Clearing Bank’s generally available
internet-based banking system, currently accessible via pnc.com, then in effect,
(y) shall deliver to Lender or Designee, as applicable, a duplicate copy of all
monthly account statements sent to Borrower, and (z) shall make available any
other information concerning the Clearing Accounts as Lender or Designee shall
reasonably request via utilization of Clearing Bank’s generally available
internet-based banking system, currently accessible via pnc.com, then in
effect.

     

    (h)           Items
deposited with Clearing Bank that are returned for insufficient or uncollected
funds shall be debited to the Clearing Account, as provided in Paragraph 8
below, under advice and returned to Borrower.

     

    3.           Dominion and
Control.  Lender, Clearing Bank and Borrowers acknowledge and
agree that the Clearing Accounts are subject to the dominion, control and
discretion of Lender and Designee as set forth in the Cash Management
Agreement.  Neither any Borrower nor Manager shall have the right to
close the Clearing Accounts; provided, that
Clearing Bank shall not be liable under this Agreement, under applicable law, or
in equity in the event that the Borrower or Manager close any of the Clearing
Accounts prior to receipt of a Notice of Commencement of Cash Sweep Period, and
allowing for a reasonable period of time, not to exceed two (2) Business Days,
or following the receipt of a Notice of Termination of Cash Sweep Period, and
allowing for a reasonable period of time, not to exceed two (2) Business
Days..  After the receipt by Clearing Bank of a Notice of Commencement
of Cash Sweep Period, and allowing for a reasonable period of time not to exceed
two (2) Business Days, and prior to Clearing Bank’s receipt of a Notice of
Termination of Cash Sweep Period, neither any Borrower nor Manager shall have
any right of withdrawal with respect to the Clearing Accounts except with the
prior written consent of Lender, which written consent shall be provided to
Clearing Bank.  Each Borrower and Manager and Lender shall be entitled
to request and receive any information about the Clearing Accounts that it shall
reasonably request from time to time via utilization of the Clearing Bank’s
generally available internet-based systems, currently accessible via pnc.com,
then in effect.

     

    4.           Transfer of Funds in
Clearing Accounts. Clearing Bank shall transfer all Available Funds
on deposit in the Clearing Accounts as follows:

     

    (i)           Clearing
Bank shall transfer, by wire transfer or via the ACH System and/or by such means
as Clearing Bank generally employs in connection with “Zero Balance” accounts
such as the Clearing Accounts, so much of the Available Funds as Borrowers shall
request from time to time to one or more accounts designated in writing by
Borrowers until such time, if any, as Clearing Bank and Borrowers have received
a Notice of Commencement of Cash Sweep Period (Clearing Bank shall have no
obligation to verify that Borrowers have received such Notice). Thereafter all
Available Funds shall be disbursed on each Business Day to the Deposit Account
designated in writing by Lender or Designee until such time as Clearing Bank has
received a Notice of Termination
of Cash Sweep Period, and thereafter for a reasonable period of time not to
exceed two (2) Business Days.

     

    
      (ii)           Simultaneously
with any transfer to the Deposit Account, Clearing Bank shall send (or make
available via electronic information reporting system) to Manager, Lender,
Designee and Borrowers, via telecopy, a wire transfer or ACH System advice
setting forth the amount transferred.

    


    
      
         


      

      
        
          
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    5.           Fees.

     

    (a)           To
compensate Clearing Bank for performing the services required hereunder,
Borrowers hereby agree to pay all such fees as shall be charged by the Clearing
Bank in connection with Clearing Bank’s obligations
hereunder.  Borrowers shall be liable to Clearing Bank for the amount
of any exchange, collection, processing, transfer, wire, postage or other
out-of-pocket expenses incurred by Clearing Bank, as determined by Clearing Bank
from time to time.

     

    (b)           Clearing
Bank shall debit the Clearing Accounts by the amount of its fees on a monthly
basis or shall include its fees in an account analysis statement.  In
the event that there are not sufficient collected funds in the Clearing Accounts
to compensate Clearing Bank for such fees, Borrowers authorize Clearing Bank to
debit any other account maintained by Borrowers with Clearing Bank and in the
event that there are not sufficient collected funds in any of Borrowers’ other
accounts, Borrowers agree upon demand to reimburse Clearing Banking for the
amount of such fees.

     

    (c)           Borrowers
agree to pay Clearing Bank, upon demand, all costs and expenses, including
reasonable attorneys’ fees and disbursements, including, but not limited to, any
and all expenses incurred in any interpleader action, incurred by Clearing Bank
in the preparation, negotiation, administration and enforcement of this
Agreement (including any amendments hereto or additional instruments or
agreements required hereunder).

     

    6.           Termination.

     

    (a)           Clearing
Bank may resign from its obligations under this Agreement (i) at any time after
thirty (30) days’ prior written notice to the other parties hereto, and (ii)
immediately, upon contemporaneous notice thereof to the other parties hereto, if
it becomes aware of fraud or criminal activity in connection with any of the
Clearing Accounts or this Agreement, other than by Clearing Bank or its
employees.  Upon such resignation, Borrowers shall designate a
successor to Clearing Bank promptly after receipt of notice of resignation by
Clearing Bank, which successor shall be subject to the approval of Lender, and
cause such designated successor promptly to assume the obligations of Clearing
Bank hereunder.  It shall be an Event of Default if a successor to
Clearing Bank acceptable to Lender has not been designated or has not assumed
the obligations of Clearing Bank prior to the effective date of Clearing Bank’s
resignation.

     

    (b)           Borrowers
may not unilaterally terminate this Agreement or close any of the Clearing
Accounts established pursuant to the terms of this
Agreement.  Clearing Bank shall not cause or permit any of such
accounts to be closed unless it has received prior written Notice from Lender;
provided,
Clearing Bank shall have no liability under this Agreement, under applicable
law, or in equity, in the event any of the Clearing Accounts are closed by
Borrowers at any time prior to receipt of a Notice of Commencement of Cash Sweep
Period, and allowing for a reasonable period of time, not to exceed two (2)
Business Days, or following the receipt of a Notice of Termination of Cash Sweep
Period, and allowing for a reasonable period of time, not to exceed two (2)
Business Days.

    
       

      (c)          Lender
may terminate this Agreement at any time after five (5) days’ prior written
notice to the other parties hereto.  Upon any termination of this
Agreement in accordance with the terms of this Paragraph 6, Clearing Bank shall
hold all funds in the Clearing Accounts for a period of no more than thirty (30)
days until Clearing Bank receives written Notice from Lender instructing
Clearing Bank how to dispose of such funds.

    

     

    
      
         


      

      
        
          
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    7.           Liabilities of Clearing
Bank; Indemnity by Borrowers.

     

    (a)           The
parties hereto agree that Clearing Bank shall not be liable for damage or loss
to any party or to any other person for any delay or failure of performance
arising out of the acts or omissions of any third parties, including, but not
limited to, various communication services, courier services, the Federal
Reserve System, any other bank or any third party who may be affected by funds
transactions, fire, mechanical, computer or electrical failures or other
unforeseen contingencies, strikes, or any similar or dissimilar cause beyond the
reasonable control of the Clearing Bank.

     

    (b)           Clearing
Bank shall make every commercially reasonable effort to transfer all Available
Funds referred to in Paragraph 4
above by the mutually agreed upon time but does not guarantee a specific
delivery time.  Accordingly, Clearing Bank’s sole responsibility to
Lender, Designee or any third party with respect to the time of delivery of such
amounts and items shall be to deliver such amounts and items as close to the
mutually agreed upon time as may be reasonably practicable.

     

    (c)           Notwithstanding
any other term or provision of this Agreement, Clearing Bank will not be liable
to any other party for:

    


    (i)           failing
to follow any Notice, including, without limitation, any Notice of Commencement
of Cash Sweep Period or Notice of Termination of Cash Sweep Period, or any other
instruction originated by Lender (A) earlier than two (2) Business Days after
receipt of such Notice or instruction, (B) or any Notice, instruction, or term
set forth in this Agreement, that requires (x) the disposition or transfer of
the funds in the Clearing Account, including, without limitation, Available
Funds, by a method not available under Clearing Bank’s usual policies and
procedures; or (y) the receipt, processing, or deposit of Receipts by a method
not available under Clearing Bank’s usual policies and procedures, or (C) that
Clearing Bank determines would result in Clearing Bank’s failing to comply with
a statute, rule or regulation, court order or other legal, regulatory, or
administrative process, binding upon Clearing Bank; or

    


    (ii)           complying
with Lender’s or Borrowers’ instructions regarding disposition of funds in the
Clearing Account, or otherwise completing a transaction involving the Clearing
Account, that Clearing Bank had started to process two (2) or fewer Business
Days after Clearing Bank had actually received a Notice of Commencement of Cash
Sweep Period.

    


    (d)           Clearing
Bank will not be liable to any party for any claim, loss, cost, fee, or expense
except to the extent directly caused by Clearing Bank’s own gross negligence or
willful misconduct, as determined by a final non-appealable judgment by a court
of competent jurisdiction.  In no event shall Clearing Bank be liable
for any lost profits or for any indirect, special, consequential or punitive
damages even if advised of the possibility or likelihood of such
damages.

    


    (e)           Clearing
Bank shall have no responsibility or liability to Lender for complying with
instructions concerning the Clearing Accounts from Borrowers or Borrowers’
representatives, which are received by Clearing Bank prior to receipt of a
Notice of Commencement of Cash Sweep Period, and allowing for a reasonable
period of time, not to exceed
two (2) Business Days, or following the receipt of a Notice of Termination of
Cash Sweep Period, and allowing for a reasonable period of time, not to exceed
two (2) Business Days.  Clearing Bank shall have no responsibility or
liability to Borrowers for complying with a Notice of Commencement of Cash Sweep
Period or complying with instructions concerning the Clearing Accounts
originated by Lender, and shall have no responsibility to investigate the
appropriateness of any such instruction or Notice of Commencement of Cash Sweep
Period, even if Borrowers notify Clearing Bank that Lender is not legally
entitled to originate any such instruction or Notice of Commencement of Cash
Sweep Period.

       

    

    
      
         


      

      
        
          
 PAGE 6

        
        

      

      
         


      

    


    (f)           Borrowers
hereby indemnify and hold harmless Clearing Bank, its affiliates, and its and
their directors, officers, agents and employees from and against any and all
claims, damages, penalties, judgments, liabilities, losses or expenses
(including reasonable attorneys’ fees and disbursements) arising out of,
resulting from, or in any way related to this Agreement or any action taken or
not taken pursuant to this Agreement except to the extent such claims, damages,
penalties, judgments, liabilities, losses or expenses are primarily caused by
Clearing Bank’s gross negligence or willful misconduct, as determined by a final
non-appealable judgment by a court of competent jurisdiction.

     

    (g)           Notwithstanding
any other term or provisions of this Agreement, Clearing Bank shall have no
obligation to review or confirm that any actions taken pursuant to this
Agreement comply with any other agreement or document, including, without
limitation, the Cash Management Agreement.  Substantial compliance by
Clearing Bank with its standard procedures for the services Clearing Bank is
providing hereunder shall be deemed to be exercise by it of ordinary
care.

     

    (h)           This
Paragraph 7 shall survive termination of this Agreement.

    


    8.           Set-off. 
Clearing Bank waives any right to offset any claim against Borrowers which it
might have against any account maintained hereunder; provided, however, that
Clearing Bank retains the right to charge the Clearing Accounts for (i)
processing or encoding errors arising in a Clearing Account, (ii) items
deposited in a Clearing Account that are subsequently returned to Clearing Bank
unpaid, (iii) automated clearing house (“ACH”) credit entries initiated from a
Clearing Account by Borrowers or Lender for which there are insufficient funds
in the applicable Clearing Account on the date required by the applicable
agreement with the Clearing Bank for such services, or ACH debit entries
initiated from a Clearing Account by Borrowers of Lender which are returned to
Clearing Bank for any reason, (iv) all other charges and obligations and
liabilities arising out of any cash management services provided by Clearing
Bank for Borrowers and related to the Clearing Accounts or the services provided
pursuant to this Agreement, and (v) any of Clearing Bank’s charges, fees and
expenses provided for herein.  Borrowers and Lender understand and
agree that Clearing Bank is authorized to collect any amount owing pursuant to
the preceding sentence (a “Chargeable Amount”) by debiting any of the Clearing
Accounts.  Borrowers shall pay any Chargeable Amount immediately upon
demand to the extent there are not sufficient funds in the Clearing Accounts to
cover any Chargeable Amount on the day of the debit.  If any
Chargeable Amount set forth in paragraph 8(i), 8(ii), or 8(iii) has not been
paid in full by Borrower within fifteen (15) days after demand on Borrowers by
Bank and there are still insufficient funds in the Clearing Accounts, then
Lender shall pay such Chargeable Amount to Clearing Bank, within fifteen (15)
days after receipt of written demand therefor from Clearing Bank, solely to the
extent that Lender has received such funds.  If Clearing Bank is
stayed or prohibited from making demand upon Borrowers for any reason, then
Clearing Bank shall not be required to: (a) make such demand upon Borrowers or
(b) wait fifteen (15) days prior to making demand on Lender.  This
paragraph shall survive termination of this Agreement.

     

    
      9.           Matters Concerning Borrowers
and Manager.  Borrowers and Lender agree that:

       

      (a)           Each
Borrower hereby pledges, transfers and assigns, and grants to Lender, as
additional security for the payment and performance of the Notes and the
Obligations of Borrowers, a first priority security interest in and to, and a
general first lien upon, subject to Clearing Bank’s right to set-off with
respect to the Clearing Bank’s fees and expenses as described in Paragraph 8
above, (i) the Clearing Accounts and all of such Borrower’s right, title
and interest in and to all Receipts, cash, property, instruments or rights
transferred to or deposited in the Clearing Accounts from time to time by such
Borrower or on behalf of such

    


    
      
         


      

      
        
          
 PAGE 7

        
        

      

      
         


      

    


     Borrower
in accordance with the provisions of this Agreement, (ii) all earnings,
investments and securities held in the Clearing Accounts in accordance with this
Agreement and (iii) any and all proceeds of the foregoing.  This
Agreement and the pledge, assignment and grant of security interest made hereby
shall secure payment of all amounts payable by Borrowers to Lender under the
Notes and the other Obligations of Borrowers.  Borrowers acknowledge
and agree that Clearing Bank is acting at the direction of Lender in connection
with the subject matter of this Agreement.  Borrowers further agree to
execute, acknowledge, deliver, file or do at its sole cost and expense, all
other acts, assignments, notices, agreements or other instruments as Lender may
reasonably require in order to effectuate, assure, convey, secure, assign,
transfer and convey unto Lender any of the rights granted by this
Paragraph.

     

    (b)           Borrowers
shall provide Manager with a copy of this Agreement, as the same may be amended
from time to time, and shall cause Manager to abide by all of the terms and
provisions hereof applicable to Borrowers and/or Manager.

     

    10.         Successors and Assigns;
Assignments.  This Agreement shall bind and inure to the benefit of
and be enforceable by Clearing Bank, each Borrower and Lender and their
respective successors and permitted assigns.  Lender shall have the
right to assign or transfer its rights under this Agreement in connection with
any assignment of the Loan and the Loan Documents.  Any assignee or
transferee of Lender shall be entitled to all the benefits afforded to Lender
under this Agreement; provided that the assignee or transferee automatically
will be bound by all of the terms and conditions of this Agreement by virtue of
such assignment or transfer.  No Borrower shall have the right to
assign or transfer its rights or obligations under this Agreement without the
prior written consent of Lender.  Clearing Bank shall have the right
to assign or transfer its rights and obligations hereunder in connection with a
merger, consolidation or sale of all or substantially all of the assets of
Clearing Bank provided that the transferee thereof agrees in writing to be bound
by the terms of this Agreement.

     

    11.         Amendment.  This
Agreement may be amended from time to time only by a written agreement executed
by all of the parties hereto.

     

    12.         Notices. All
notices, including without limitation any Notice of Commencement of Cash Sweep
Period or Notice of Termination of Cash Sweep Period, demands, requests,
consents, approvals or other communications (any of the foregoing, a “Notice”) required, permitted,
or desired to be given hereunder shall be in writing sent by telefax (with
answer back acknowledged) or by registered or certified mail, postage prepaid,
return receipt requested, or delivered by hand or reputable overnight courier
addressed to the party to be so notified at its address hereinafter set forth,
or to such other address as such party may hereafter specify in accordance with
the provisions of this Paragraph 12.  Any Notice shall be deemed to
have been received three (3) days after the date such Notice is mailed or on the
date of sending by telefax or delivery by hand if sent or delivered during
business hours on a Business Day (otherwise on the next Business Day) or the
next Business Day if sent by an overnight commercial courier addressed to the
parties as follows:

     

    
      	 	If to
    Lender:	
              Holliday
      Fenoglio Fowler, L.P.

              9 Greenway Plaza, Suite 700

              Houston, Texas 77046

              Attention: David Croskery, Senior Managing Director

              Facismile No. (713) 852-3498

            


    

     

    
       

      
        	 	With a copy
      to:	
                DESIGNEE'S
      NAME

                (Currently Not
      Applicable)

                                             
                      
      

                Attention:              
                    
      

                Facismile No.                      
      

              


      

       

    

    

      
        
           


        

        
          
            
 PAGE 8

          
          

        

        
           


        

      

    

     

    
      
         

        
          	 	If to
      Borrowers:	
                  NTS Development Company

                  10172 Linn Station Road

                  Louisville, Kentucky 40223

                  Attention: Brian F. Lavin

                  Facismile No. (502) 426-4994

                


        

         

        
          
            
              	 	If to Clearing
      Bank:	
                      PNC Bank - Treasury Management

                      101 South Fifth Street

                      Louisville, Kentucky 40202

                      Attetion: Linda Haas

                      Facsimile No. (502) 581-2470

                    


            

             

          

        

      

    

    13.         Governing Law. 
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF THE STATE OF NEW YORK (WITHOUT GIVING EFFECT TO ITS CONFLICTS OF LAW
RULES OTHER THAN
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW). JUDICIAL ACTIONS, SUITS OR
PROCEEDINGS BROUGHT AGAINST ANY PARTY HERETO WITH RESPECT TO ITS OBLIGATIONS,
LIABILITIES OR ANY OTHER MATTER UNDER OR ARISING OUT OF IN CONNECTION WITH THIS
AGREEMENT OR ANY TRANSACTION CONTEMPLATED HEREUNDER OR FOR RECOGNITION OR
ENFORCEMENT OF ANY JUDGMENT RENDERED IN ANY SUCH PROCEEDINGS SHALL BE BROUGHT IN
THE STATE COURT OF NEW YORK AND SHALL BE HEARD BY SUCH COURT SITTING WITHOUT A
JURY.

     

    14.         Certain Matters Affecting
Clearing Bank.

     

    (a)           Clearing
Bank may rely and shall be protected in acting or refraining from acting upon
any notice (including but not limited to electronically confirmed facsimiles of
such notice) believed by it to be genuine and to have been signed or presented
by the proper party or parties.

     

    (b)           The
duties and obligations of Clearing Bank hereunder shall be determined solely by
the express provisions of this Agreement.  Clearing Bank shall not be
liable except for the performance of its duties and obligations as are
specifically set forth in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against Clearing
Bank.

     

    (c)           If
at any time: (a) Clearing Bank, in good faith, is in doubt as to the action it
should take under this Agreement, (b) any Borrower becomes subject to a
voluntary or involuntary bankruptcy, reorganization, receivership or similar
proceeding, or (c) Clearing Bank is served
with legal process which it in good faith believes prohibits the disbursement of
the funds deposited in any Clearing Account, then Clearing Bank shall have the
right to (i) place a hold on the funds in the Clearing Accounts until such time
as it receives an appropriate court order or other assurance satisfactory to it
as to the disposition of the funds in the Clearing Accounts, or (ii) commence,
at Borrowers’ expense, an interpleader action in any competent federal or state
court located in the Commonwealth of Pennsylvania, and otherwise to take no
further action except in accordance with joint written instructions from
Borrowers and Lender or in accordance with the final order of a competent court
served on Clearing Bank.


    
      
         


      

      
        
          
 PAGE 9

        
        

      

      
         


      

    

    


    IN
WITNESS WHEREOF, the parties hereto have executed this Clearing Accounts
Agreement in several counterparts (each of which shall be deemed an original) as
from the date first above written.


    
      
         


      

      
        
          
 PAGE 10

        
        

      

      
         


      

    

     

    
      

        
          	
                   
      

                	
                  BORROWERS:

                   

                  NLP CASTLE CREEK, LLC, a
      Delaware limited

                      liability
      company

                


        

         

        
          	 	By:	
                  NTS
      Realty Holdings Limited Partnership, a

                  Delaware
      limited partnership, its sole
member

                


        

         

        
          	 	By:	
                  NTS
      Realty Capital, Inc., a Delaware

                  corporation,
      its managing general

                  partner

                


        

         

        
          	 	By:	
                   /s/
      Neil A. Mitchell   

                  Name: Neil A. Mitchell

                  Title: Sr Vice Pres

                


        

         

      

      
        
          
            
              
                
                   

                

              

            

          

        

      

    

    
      
         


      

      
        
          
 PAGE 11

        
        

      

      
         


      

    


    
      

        
          	
                   
      

                	
                  NLP LAKE CLEARWATER,
      LLC, a Delaware

                    limited liability
      company

                


        

         

        
          	 	By:	
                  NTS
      Realty Holdings Limited Partnership, a

                  Delaware
      limited partnership, its sole
member

                


        

         

        
          	 	By:	
                  NTS
      Realty Capital, Inc., a Delaware

                  corporation,
      its managing general

                  partner

                


        

         

        
          	 	By:	
                   /s/
      Neil A. Mitchell   

                  Name: Neil A. Mitchell

                  Title: Sr Vice Pres

                


        

         

      

    


    
      
         


      

      
        
          
 PAGE 12

        
        

      

      
         


      

    

    
 

    
      
        
          	
                   
      

                	
                  NLP PARK
      PLACE, LLC, a Delaware limited

                      liability
      company

                


        

         

        
          	 	By:	
                  NTS
      Realty Holdings Limited Partnership, a

                  Delaware
      limited partnership, its sole
member

                


        

         

        
          	 	By:	
                  NTS
      Realty Capital, Inc., a Delaware

                  corporation,
      its managing general

                  partner

                


        

         

        
          	 	By:	
                   /s/
      Neil A. Mitchell   

                  Name: Neil A. Mitchell

                  Title: Sr Vice Pres

                


        

         

      

      
        
          
            
              
                
                  

                    
                      
                         


                      

                      
                        
                          
 PAGE 13

                        
                        

                      

                      
                         


                      

                    

                  

                

              

            

          

        

      

    

     

    
      

        
          	
                   
      

                	
                  NLP RICHLAND, LLC, a
      Delaware limited

                      liability
      company

                


        

         

        
          	 	By:	
                  NTS
      Realty Holdings Limited Partnership, a

                  Delaware
      limited partnership, its sole
member

                


        

         

        
          	 	By:	
                  NTS
      Realty Capital, Inc., a Delaware

                  corporation,
      its managing general

                  partner

                


        

         

        
          	 	By:	
                   /s/
      Neil A. Mitchell   

                  Name: Neil A. Mitchell

                  Title: Sr Vice Pres

                


        

         

      

      
        
          
            
              
                
                  

                    
                      
                         


                      

                      
                        
                          
 PAGE 14

                        
                        

                      

                      
                         


                      

                    

                  

                

              

            

          

        

      

    

     

    
      

        
          	
                   
      

                	
                  NLP SWIFT CREEK, LLC, a
      Delaware limited

                      liability
      company

                


        

         

        
          	 	By:	
                  NTS
      Realty Holdings Limited Partnership, a

                  Delaware
      limited partnership, its sole
member

                


        

         

        
          	 	By:	
                  NTS
      Realty Capital, Inc., a Delaware

                  corporation,
      its managing general

                  partner

                


        

         

        
          	 	By:	
                   /s/
      Neil A. Mitchell   

                  Name: Neil A. Mitchell

                  Title: Sr Vice Pres

                


        

         

      

      
        
          
            
              
                
                   

                

              

            

          

        

      

    

    
      
         


      

      
        
          
 PAGE 15

        
        

      

      
         


      

    

     

     

    
      
        
          	
                   
      

                	
                  NLP WHITWORTH, LLC, a
      Delaware limited

                      liability
      company

                


        

         

        
          	 	By:	
                  NTS
      Realty Holdings Limited Partnership, a

                  Delaware
      limited partnership, its sole
member

                


        

         

        
          	 	By:	
                  NTS
      Realty Capital, Inc., a Delaware

                  corporation,
      its managing general

                  partner

                


        

         

        
          	 	By:	
                   /s/
      Neil A. Mitchell   

                  Name: Neil A. Mitchell

                  Title: Sr Vice Pres

                


        

         

      

      
        
          
            
              
                
                   

                

              

            

          

        

      

    

    
      
         


      

      
        
          
 PAGE 16

        
        

      

      
         


      

    

    
 

    
      
        
          	
                   
      

                	
                  NLP WILLOW LAKE, LLC, a
      Delaware limited

                      liability
      company

                


        

         

        
          	 	By:	
                  NTS
      Realty Holdings Limited Partnership, a

                  Delaware
      limited partnership, its sole
member

                


        

         

        
          	 	By:	
                  NTS
      Realty Capital, Inc., a Delaware

                  corporation,
      its managing general

                  partner

                


        

         

        
          	 	By:	
                   /s/
      Neil A. Mitchell   

                  Name: Neil A. Mitchell

                  Title: Sr Vice Pres

                


        

         

      

    


    
      
         


      

      
        
          
 PAGE 17

        
        

      

      
         


      

    

     

     

    
      
        
          	
                   
      

                	
                  NLP WILLOWS, LLC, a
      Delaware limited

                      liability
      company

                


        

         

        
          	 	By:	
                  NTS
      Realty Holdings Limited Partnership, a

                  Delaware
      limited partnership, its sole
member

                


        

         

        
          	 	By:	
                  NTS
      Realty Capital, Inc., a Delaware

                  corporation,
      its managing general

                  partner

                


        

         

        
          	 	By:	
                   /s/
      Neil A. Mitchell   

                  Name: Neil A. Mitchell

                  Title: Sr Vice Pres

                


        

         

      

      
        
          
            
              
                
                  

                    
                      
                         


                      

                      
                        
                          
 PAGE 18

                        
                        

                      

                      
                         


                      

                    

                  

                

              

            

          

        

      

    

    
 

    
      
        
          	
                   
      

                	
                         
      LENDER:

                  HOLLIDAY FENOGLIO FOWLER, L.P.,
      a

                      Texas
      limited partnership

                


        

         

        
          	 	By:	
                  Holliday
      GP Corp., a Delaware corporations, its

                  general
      partner

                


        

         

        
          	 	By:	
                  /s/
      Patrick V. Kinlan   

                  Patrick
      V. Kinlan

                  Vice
      President

                


        

         

      

      
        
          
            
              
                
                   

                

              

            

          

        

      

    

    
      
         


      

      
        
          
 PAGE 19

        
        

      

      
         


      

    

    
 

    
      
        
          	
                   
      

                	
                  CLEARING
      BANK:

                   

                  PNC BANK, NATIONAL
      ASSOCIATION

                


        

         

        
          	 	By:	
                  /s/
      Henry R. Synder, IV   

                  Name:
      Henry R. Snyder, IV

                  Title:
      Vice President

                


        

      

      
        
          
            
              
                
                   

                   

                

              

            

          

        

      

    

    
      
         


      

      
        
          
 PAGE 20

        
        

      

      
         


      

    


    EXHIBIT
A

    


    BORROWERS,
LOAN NUMBERS AND LOAN AMOUNTS

     

    
      	
              Borrower

               

            	
              Loan
      Number

               

            	
              Original

              Loan
      Amount

            	
              Taxpayer
      ID

              Numbers

            
	 	 	 	 
	
              NLP
      Park Place, LLC

            	534381243	$	30,625,000	 
      
	 	 	 	 	 
	
              NLP
      Willows, LLC

            	534381219	$	17,920,000	 
      
	 	 	 	 	 
	
              NLP
      Willow Lake, LLC

            	534381200	$	10,945,000	 
      
	 	 	 	 	 
	
              NLP
      Castle Creek, LLC

            	534381227	$	13,895,000	 
      
	 	 	 	 	 
	
              NLP
      Lake Clearwater, LLC

            	534381235	$	11,390,000	 
      
	 	 	 	 	 
	
              NLP
      Swift Creek, LLC

            	534381278	$	16,845,000	 
      
	 	 	 	 	 
	
              NLP
      Richland, LLC

            	534381251	$	27,000,000	 
      
	 	 	 	 	 
	
              NLP
      Whitworth, LLC

            	534381286	$	27,675,000	 
      


    

    


     

    
      
         


      

      
        
          
 PAGE A-1

        
        

      

      
         


      

    


    
      EXHIBIT
B

      


      LIST OF
ACCOUNTS COMPRISING THE CLEARING ACCOUNTS

      


      
        	
                Account Title

              	Tax
      Identification	Account
      Number
	 	 	 
	
                NLP
      Park Place, LLC

              	
                27-1213199

              	
                3007485657

              
	 	 	 
	
                NLP
      Willows, LLC

              	
                27-1213238

              	
                3007485745

              
	 	 	 
	
                NLP
      Willow Lake, LLC

              	
                27-1213310

              	
                3007485737

              
	 	 	 
	
                NLP
      Castle Creek, LLC

              	
                27-1213344

              	
                3007485729

              
	 	 	 
	
                NLP
      Lake Clearwater, LLC

              	
                27-1213379

              	
                3007485702

              
	 	 	 
	
                NLP
      Swift Creek, LLC

              	
                27-1213409

              	
                3007485681

              
	 	 	 
	
                NLP
      Richland, LLC

              	
                27-1213450

              	
                3007485673

              
	 	 	 
	
                NLP
      Whitworth, LLC

              	
                27-1213470

              	
                3007485665

              


      

      


       

        
          

        

      

      PAGE B-1