EXHIBIT 10.2
SIXTH AMENDED AND RESTATED
PROMISSORY NOTE
CONSTRUCTION MORTGAGE LOAN
September 1, 2008
WHEREAS,
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”) granted to NATIONAL CITY
BANK , as successor by merger to The Provident Bank
(“Bank”) a First Amended and Restated Revolving
Promissory Note Construction Mortgage Loan in the maximum amount of
available credit of Eighteen Million and 00/100 Dollars
($18,000,000.00) dated October 31, 2000 (“Revolving
Note”), which Revolving Note consolidated two (2) prior
Notes, the first in the original principal amount of $10,700,000
dated December 30, 1997 between Borrowers and Bank, and that
certain Revolving Promissory Amended and Restated Note dated
January 6, 1998, made by NTS/Lake Forest II payable to the order of
Bank of Louisville in the original principal amount of $8,000,000,
which Amended and Restated Note has been assigned and endorsed over
to Bank; and
WHEREAS,
Borrowers granted to Bank a Second Amended and Restated Revolving
Promissory Note Construction Mortgage Loan in the maximum amount of
available credit of Twelve Million and 00/100 Dollars
($12,000,000.00) dated May 16, 2003 (“Second Revolving
Note”), which Second Revolving Note provided for an amendment
to the maximum permitted outstanding balance under the Revolving
Note, extended the maturity date of the Revolving Note and
permitted the use of the Revolving Note to repay the existing debt
on the Lake Forest Golf and Country Club; and
WHEREAS,
Borrowers granted to Bank a Third Amended and Restated Revolving
Promissory Note Construction Mortgage Loan in the maximum amount of
available credit of Eight Million and 00/100 Dollars
($8,000,000.00) dated June 22, 2004 (“Third Revolving
Note”), which Third Revolving Note provided for an amendment
to the maximum permitted outstanding balance under the Revolving
Note and Second Revolving Note; and
WHEREAS,
Borrowers granted to Bank a Fourth Amended and Restated Revolving
Promissory Note Construction Mortgage Loan in the maximum amount of
available credit of Five Million and 00/100 Dollars ($5,000,000.00)
dated April 20, 2005 (“Fourth Revolving Note”), which
Fourth Revolving Note provided for an amendment to the maximum
permitted outstanding balance, to extend the maturity date and to
amend the interest rate under the Revolving Note, the Second
Revolving Note and the Third Revolving Note; and
WHEREAS,
Borrowers granted to Bank a Fifth Amended and Restated Revolving
Promissory Note Construction Mortgage Loan in the maximum amount of
available credit of Seven Million Five Hundred Thousand and 00/100
Dollars ($7,500,000.00) dated October 24, 2007 (“Fifth
Revolving Note”), which Fifth Revolving Note provided for an
increase to the maximum permitted outstanding balance thereunder;
and
(the
Revolving Note, the Second Revolving Note, the Third Revolving
Note, the Fourth Revolving Note and the Fifth Revolving Note are
hereinafter referred to as the “Notes”.)
WHEREAS,
of even date, Borrowers have requested and Bank has agreed 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 Borrowers’ right to the remaining availability
under the Notes and fix the amount of the Note at the current
outstanding principal balance of Seven Million Three Hundred
Fifty-Two Thousand and 00/100 Dollars ($7,352,000.00), to add an
additional Guarantor and to add certain covenants to the Loan
Documents, upon Borrowers’ compliance with the provisions set
forth herein; and
WHEREAS,
for the convenience of Borrowers and Bank, the parties have agreed
to amend and restate the Revolving Note, the Second Revolving Note,
the Third Revolving Note, the Fourth Revolving Note and Fifth
Revolving Note in their entirety hereunder (“Amended and
Restated Note”), which amendment and restatement shall in no
manner constitute a repayment, satisfaction or novation of the
indebtedness evidenced by the Revolving Note, the two (2) notes
consolidated under the Revolving Note, the Second Revolving Note,
the Third Revolving Note, the Fourth Revolving Note or the Fifth
Revolving Note, which indebtedness shall remain outstanding for all
purposes hereunder from December 30, 1997, January 6, 1998, October
31, 2000, May 16, 2003, June 22, 2004, April 20, 2005 and October
24, 2007, respectively.
NOW
THEREFORE, Borrowers grants this Amended and Restated Note under
the following terms:
FOR VALUE RECEIVED, the undersigned, 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”), with a
mailing address of 10172 Linn Station Road, Louisville, Kentucky
40223 hereby, jointly and severally, promise to pay to the order of
NATIONAL CITY BANK (“Bank”), a national banking
association, the principal sum of SEVEN MILLION THREE HUNDRED
FIFTY-TWO THOUSAND AND 00/100 DOLLARS ($7,352,000.00)
(“Credit Commitment”), or so much thereof as is
disbursed by Bank pursuant to the provisions hereof, together with
interest on the unpaid balance thereto at the rate per annum set
forth below computed daily on the basis of a three hundred sixty
(360) day year for the actual number of days elapsed in the three
hundred sixty-five (365) day year.
For
purposes of this Amended and Restated Note, the following terms
shall have the following meanings: