exhibit_10-1.htm


     

     

    EIGHTH MORTGAGE LOAN
MODIFICATION AGREEMENT

     

    THIS
EIGHTH MORTGAGE LOAN MODIFICATION AGREEMENT (the “Agreement”) is entered into as
of the   23  
day of December, 2009 by and among PNC BANK, NATIONAL
ASSOCIATION, a national banking association, successor by merger with
National City Bank as 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 general partnership “Orlando Lake
Forest”), NTS MORTGAGE INCOME
FUND, a Delaware corporation, NTS GUARANTY CORPORATION, a
Kentucky corporation and J.D.
NICHOLS (collectively, the “Guarantors”).

     

    RECITALS:

     

    A.           Borrowers,
Orlando Lake Forest and/or the Guarantors have issued and delivered to Lender
the following loan agreements, promissory notes and security
documents:

     

    (1)           Amended
and Restated Development and Construction Loan Agreement among Lender, Borrowers
and Guarantors dated October 31, 2000;

     

    (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;

     

    (3)           Guaranty
Agreement made by NTS Mortgage Income Fund in favor of Lender dated October 31,
2000;

     

    (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;

     

    (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;

     

    (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:

     

    (a)           Credit
Line Deed of Trust and Security Agreement dated December 30, 1997 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 Spotsylvania County Recorder’s Office (as modified in Items 9, 11,
13, 16, 17, 18 and 24 below, the “Deed of Trust”) which encumbers the real
property more fully described in Exhibit A of the Seventh Mortgage Loan
Modification Agreement described in Item 24 below (“Fawn Lake
Property”);

     

    (b)           Conditional
Assignment of Leases, Rents, Contracts, Income and Proceeds dated December 30,
1997 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

     

    (c)           UCC-1
Financing Statements of record in Spotsylvania County Recorder’s
Office.

     

    (7)           Environmental
Indemnity Agreement between Lender and NTS/Virginia dated October 31,
2000;

     

    (8)           Environmental
Indemnity Agreement between Lender and NTS/Lake Forest II dated October 31,
2000;

     

    (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;

     

    (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”);

     

    (11)           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;

     

    (12)           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”);

     

    (13)           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;

     

    (14)           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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    (15)           Fifth
Amended and Restated Revolving Promissory Note dated October 24, 2007
granted by Borrowers to Lender in the maximum amount of available credit of
Seven Million Five Hundred Thousand and 00/100 Dollars ($7,500,000.00) (“Fifth
Amended Note”);

     

    (16)           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;

     

    (17)           Assignment
of Contracts and Income dated October 24, 2007, granted by Orlando Lake Forest
in favor of Lender;

     

    (18)           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;

     

    (19)           Sixth
Mortgage Loan Modification Agreement between Lender, Borrower, Orlando Lake
Forest and Guarantors dated September 1, 2008 and recorded September 29, 2008 as
Instrument No. 20080009584 in the Clerk’s Office of Spotsylvania County,
Virginia;

     

    (20)           Sixth
Amended and Restated Promissory Note dated September 1, 2008 granted by
Borrowers to Lender in the principal amount of Seven Million Three Hundred
Fifty-Two Thousand And 00/100 Dollars ($7,352,000.00) (“Sixth Amended
Note”);

     

    (21)           Unconditional
and Continuing Guaranty granted by NTS Guaranty Corporation dated September 1,
2008;

     

    (22)           Promissory
Note Modification Agreement dated November 21, 2008 between Borrowers,
Guarantors and Lender;

     

    (23)           Promissory
Note Modification Agreement dated April 15, 2009 between Borrowers, Guarantors
and Lender;

     

    (24)           Promissory
Note Modification Agreement dated May 15, 2009 between Borrowers, Guarantors and
Lender;

     

    (25)           Seventh
Mortgage Loan Modification Agreement between Lender, Borrower, Orlando Lake
Forest and Guarantors dated August 18, 2009 and recorded ____________, 2009 as
Instrument No. __________ in the Clerk’s Office of Spotsylvania County,
Virginia;

     

    (26)           Seventh
Amended and Restated Promissory Note dated August 18, 2009 granted by Borrowers
to Lender in the principal amount of Six Million Seven Hundred Ninety-Nine
Thousand Four Hundred Sixty-Eight and 00/100 Dollars ($6,799,468.00) (“Seventh
Amended Note”);

     


    
      
         


      

      
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    (27)           Open
End Mortgage, Security Agreement and Assignment of Rents and Leases in the
amount of Five Million and 00/100 Dollars ($5,000,000.00) dated August 18, 2009,
granted by Orlando Lake Forest in favor of Lender and recorded ____________,
2009 as Instrument No. __________ in the Clerk’s Office of Seminole County,
Florida (“Orlando Mortgage”);

     

    (28)           Deed
of Trust, Assignment and Security Agreement in the amount of Six Million Seven
Hundred Ninety-Nine Thousand Four Hundred Sixty-Eight and 00/100 Dollars
($6,799,468.00) dated August 18, 2009, granted by NTS/Virginia in favor of
Lender and recorded ____________, 2009 as Instrument No. __________ in the
Clerk’s Office of Spotsylvania County, Virginia (“6.799MM Deed of
Trust”);

     

    (29)           Promissory
Note dated August 18, 2009 in the original principal amount of One Million Three
Hundred Eighty-Five Thousand Five Hundred Forty-Four and 00/100 Dollars
($1,385,544.00) (“Section 21A Note”);

     

    (30)           Development
Loan Disbursing Agreement dated August 18, 2009;

     

    (31)           Deed
of Trust, Assignment and Security Agreement in the amount of One Million Three
Hundred Eighty-Five Thousand Five Hundred Forty-Four and 00/100 Dollars
($1,385,544.00) dated August 18, 2009, granted by NTS/Virginia in favor of
Lender and recorded ____________, 2009 as Instrument No. __________ in the
Clerk’s Office of Spotsylvania County, Virginia (“1.385MM Deed of
Trust”);

     

    (32)           Unconditional
and Continuing Guaranty dated August 18, 2009 and granted by J.D. Nichols and
NTS Mortgage Income Fund;

     

    (33)           Unconditional
and Continuing Guaranty dated August 18, 2009 and granted by NTS Guaranty
Corporation;

     

    (34)           Assignment
of Contracts and Income granted by NTS/Virginia to Lender and dated August 18,
2009; and

     

    (35)           Environmental
Indemnity Agreement between Lender, Borrowers and Guarantors dated August 19,
2009.

     

    All
above-referenced promissory notes are hereinafter referred to as the “Notes”,
all deeds of trust and mortgages are hereinafter referred to as the “Mortgages”,
and all guaranties are hereinafter referred to as the
“Guaranties”.  Items (1) through (35) 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 allow for the development of vacant land in Section 21B into
twenty-two (22) lots, which modification shall occur upon Borrowers’ compliance
with the provisions set forth herein.

     


    
      
         


      

      
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    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)           Additional Loan
Documents.                                                                Concurrently
with the execution of this Agreement, NTS/Virginia shall enter into an Escrow
Agreement with Lender, which calls for the deposits of sums from the sale of
Lots 1245 and 1246 in Section 21B of the Fawn Lake Property into an account with
Lender to be used solely for the development of Section 21B (“Escrow
Agreement”).  In addition, NTS/Virginia shall also enter into a
Development Loan Disbursing Agreement solely for the purpose of developing
Section 21B (“Section 21B Loan Agreement”).  The Escrow Agreement and
Section 21B Loan Agreement shall now become part of the Loan Documents and shall
secure the obligations of the Borrowers under the Loan Documents.

     

    (2)           Consent of
Guarantors.  The Guarantors consent to the foregoing
modifications and agree that nothing contained herein shall impair their
liability under the Guaranties, which now guarantee the repayment of the Notes
and other sums due under the Loan Documents and all accrued interest and costs
of collection, as more fully set forth in such Guaranties, which Guaranties
continue in full force and effect.

     

    (3)           Conditions
Precedent.  Concurrently with the execution of this Agreement,
Borrowers shall deliver to Lender the following items:

     

    (a)           Lender’s
legal fees and title fees, and other out-of-pocket expenses in connection with
the modification contained herein;

     

    (b)           authorizing
resolutions from Borrowers and Guarantors authorizing the modifications and
authorizing the execution of the Escrow Agreement and Section 21B Loan Agreement
as stated above; and

     

    (4)           No Other
Changes.  All of the terms and conditions contained in the
Notes, Mortgages and all other Loan Documents, except as modified by this
Agreement, the Escrow Agreement and the Section 21B Loan Agreement, shall remain
unchanged, unimpaired and in full force and effect.  This Agreement,
the Escrow Agreement and the Section 21B Loan Agreement are hereby made a part
of the original documents evidencing and securing the Indebtedness as completely
as if incorporated verbatim therein.

     

    (5)           Covenants and
Representations.

     

    (a)           Borrowers
acknowledge and unconditionally promise to pay the entire Indebtedness as set
forth in the Notes and in the original and amended instruments evidencing and
securing the Indebtedness.

     

    (b)           Borrowers
and Lender agree that the entire Indebtedness, as evidenced by the Notes, shall
be secured by the Mortgages and the other Loan Documents and the parties agree
and acknowledge that this Agreement is made in reliance upon the security of
such Mortgages and other Loan Documents, as amended.

     


    
      
         


      

      
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    (c)           NTS/Virginia
represents and warrants that it is the true and lawful owner of the Fawn Lake
Property (except as certain parcels may have been previously released), in the
Fawn Lake Project located in Spotsylvania County, Virginia (“Fawn Lake
Project”), subject to the Deed of Trust and that the Deed of Trust will be
maintained as a valid first lien on the Land in the Fawn Lake project, in each
case subject to the on-going quiet title action filed by Chicago Title Insurance
Corporation on behalf of NTS/Virginia Development Company for the 48 acres of
timbered land at Fawn Lake.

     

    (d)           NTS/Virginia
represents and warrants that it is the true and lawful owner of the Property
subject to the 6.799MM Deed of Trust and 1.385MM Deed of Trust and that the
6.799MM Deed of Trust and 1.385MM Deed of Trust are and will be maintained as
valid first mortgage liens on the property encumbered thereby, except that
property which the Lender has released from the lien thereof.

     

    (e)           Orlando
Lake Forest represents and warrants that it is the true and lawful owner of the
property subject to the Orlando Mortgage and that the Orlando Mortgage is and
will be maintained as a valid first mortgage lien on the property encumbered
thereby.

     

    (f)           Borrowers
reaffirm all covenants and representations set forth in the Notes, the Mortgages
and other Loan Documents, as amended, as if such covenants and representations
were made as of the date hereof.

     

    (f)           Borrowers
represent and warrant that Borrowers have no claims, counterclaims, setoffs,
actions or causes of actions, damages or liabilities of any kind or nature
whatsoever whether at law or in equity, in contract or in tort, whether now
accrued or hereafter maturing (collectively, "Claims") against Lender, its
direct or indirect parent corporation or any direct or indirect affiliates of
such parent corporation, or any of the foregoing's respective directors,
officers, employees, agents, attorneys and legal representatives, or the heirs,
administrators, successors or assigns of any of them (collectively, "Lender
Parties") that directly or indirectly arise out of, are based upon or are in any
manner connected with any Prior Related Event.  As an inducement to
Lender to enter into this Agreement, Borrowers on behalf of each of them, and
all of their respective successors and assigns hereby knowingly and voluntarily
release and discharge all Lender Parties from any and all Claims, whether known
or unknown, that directly or indirectly arise out of, are based upon or are in
any manner connected with any Prior Related Event.  As used herein,
the term "Prior Related Event" means any transaction, event, circumstance,
action, failure to act, occurrence of any sort or type, whether known or
unknown, which occurred, existed, was taken, permitted or begun at any time
prior to the Effective Date or occurred, existed, was taken, was permitted or
begun in accordance with, pursuant to or by virtue of any of the terms of the
Loan Documents or any documents executed in connection with the Loan Documents
or which was related to or connected in any manner, directly or indirectly to
the extension of credit represented by the Loan Documents.

     


    
      
         


      

      
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    (6)           Miscellaneous.  This
Agreement and the rights and obligations of the parties hereunder shall be
governed by and construed under the laws of the jurisdictions set forth in the
underlying loan documents, as applicable.  This Agreement shall inure
to the benefit of and be binding on the respective heirs, executors,
administrators, successors and assigns of the parties hereto.

     


    
      
         


      

      
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    IN WITNESS WHEREOF, the parties have
signed this Agreement as of the date first above written.

     

    LENDER:

     

    PNC
BANK, NATIONAL ASSOCIATION

     

    
      By:  /s/
Brent E. Johnson      

      Brent E.
Johnson

      Senior Vice
President
fs

    

    


    STATE OF
OHIO                              )

    )  SS:

    COUNTY OF
HAMILTON              )

     

    The
foregoing instrument was acknowledged before me this 23day of December, 2009, by
Brent E. Johnson, Senior Vice President of PNC Bank, National Association, a
national banking association on behalf of the banking association.

     

    My
commission expires:     2/18/13  
                                                                           

     

    


    (SEAL)                                                                       /s/ Christi Y.
Davis       

                          
Notary Public


    
      
         


      

      
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    BORROWERS:

     

    NTS/VIRGINIA
DEVELOPMENT COMPANY,

    a
Virginia corporation

    


    


    By: /s/ Gregory A. Wells       

    Name: Gregory A. Wells

    Title: Executive Vice
President

    


    


    COMMONWEALTH
OF
KENTUCKY                        )

    ) SS:

    COUNTY OF
JEFFERSON                                            )

     

    The
foregoing instrument was acknowledged before me this 22nd day
of December, 2009, by Gregory A. Wells,
Executive Vice
President of NTS/Virginia Development Company, a Virginia corporation,
for and on behalf of said corporation.

     

    My
commission expires:     Nov.
25, 2010  
                                                                                     

     

    


    /s/ Rosann D. Tafel         

    (SEAL)                                                                     NOTARY
PUBLIC

    


    



    
      
         


      

      
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    NTS/LAKE FOREST II
RESIDENTIAL

    CORPORATION, a Kentucky
corporation

     

    By: /s/ Gregory A. Wells          

    Name: Gregory A. Wells

    Title: Executive Vice
President

    


    


    COMMONWEALTH
OF
KENTUCKY                        )

    ) SS:

    COUNTY OF
JEFFERSON                                            )

     

    The
foregoing instrument was acknowledged before me this 22nd day
of December, 2009, by Gregory A. Wells,
Executive Vice
President of NTS/Lake Forest II Residential Corporation, a Kentucky
corporation, for and on behalf of said corporation.

     

    My
commission expires:     Nov.
25, 2010  
                                                                                     

     

    


    /s/ Rosann D. Tafel         

    (SEAL)                    NOTARY
PUBLIC

    


    



    
      
         


      

      
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    ORLANDO
LAKE FOREST:

    


    Signed, sealed and delivered in the
presence of:

    


    ORLANDO LAKE FOREST
JOINT

    VENTURE, a Florida general
partnership

    


    By:         Orlando
Lake Forest, Inc., a Florida

       corporation, Managing General
Partner

    


    By: /s/ Gregory A. Wells    

    Name: Gregory A. Wells

    Title: Executive Vice
President

    


    


    COMMONWEALTH
OF
KENTUCKY                        )

    ) SS:

    COUNTY OF
JEFFERSON                                            )

     

    The
foregoing instrument was acknowledged before me this 22nd day
of December, 2009, by Gregory A. Wells,
Executive Vice
President of Orlando Lake Forest, Inc., a Florida corporation, Managing
General Partner of Orlando Lake Forest Joint Venture, a Florida general
partnership, on behalf of the partnership.  He is personally known to
me and did not take an oath.

     

    /s/ Rosann D. Tafel         

    (SEAL)                                                                      NOTARY
PUBLIC

    


     

    My commission expires:     Nov.
25, 2010    

     

    



    
      
         


      

      
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    GUARANTORS:

    


    NTS MORTGAGE INCOME
FUND,

    a
Delaware corporation

    


    


    By: /s/ Brian F. Lavin         

    Name:
Brian F. Lavin

    Title:
Pres/CEO

    


    


    


    COMMONWEALTH
OF
KENTUCKY                        )

    ) SS:

    COUNTY OF
JEFFERSON                                            )

     

    The
foregoing instrument was acknowledged before me this   22nd day
of December, 2009, by Brian F. Lavin, President of NTS
Mortgage Income Fund, a Delaware corporation, for and on behalf of said
corporation.

     

    My
commission expires:     Nov.
25, 2010  
                                                                                     

     

    


    /s/ Rosann D. Tafel         

    (SEAL)                                                                      NOTARY
PUBLIC

    



    
      
         


      

      
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    NTS GUARANTY
CORPORATION,

    a
Kentucky corporation

    


    


    By: /s/ Gregory A. Wells      

    Name: Gregory A. Wells

    Title: Executive Vice
President

    


    


    


    


    COMMONWEALTH
OF
KENTUCKY                        )

    ) SS:

    COUNTY OF
JEFFERSON                                            )

     

    The
foregoing instrument was acknowledged before me this 22nd day
of December, 2009, by Gregory A. Wells,
Executive Vice
President of NTS Guaranty Corporation, a Kentucky corporation, for and on
behalf of said corporation.

     

    My
commission expires:     Nov.
25, 2010  
                                                                                     

     

    


    /s/ Rosann D. Tafel         

    (SEAL)                                                                      NOTARY
PUBLIC

    


    


    


    



    
      
         


      

      
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    /s/ J.D. Nichols           

    J.D.
NICHOLS

    


    


    


    COMMONWEALTH
OF
KENTUCKY                        )

    ) SS:

    COUNTY OF
JEFFERSON                                            )

     

    The
foregoing instrument was acknowledged before me this 22 day
of December, 2009, by J.D. Nichols.

     

    My
commission expires:     Nov.
25, 2010  
                                                                                     

     

    


     /s/ Rosann D. Tafel         

    (SEAL)                                                                      NOTARY
PUBLIC

    


    


    



    
      
         


      

      
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    This
Instrument Prepared by:

    


    Mark J.
Weber

    Keating,
Muething & Klekamp PLL

    One East
Fourth Street #1400

    Cincinnati,
Ohio 45202

     

     

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