exhibit_10-19.htm


    
      FHLMC
Loan No. 534381200

      Willow
Lake

      


    

    
      GUARANTY-CME

      MULTISTATE

    

    
      


    

    
      (for
use in all Property jurisdictions except California)

      


      REVISION
DATE 8-14-09

    

    
      


    

    
      This
Guaranty ("Guaranty") is
entered into to be effective as of December 16, 2009, by the undersigned
Person(s) (the "Guarantor" jointly and
severally if more than one), for the benefit of HOLLIDAY FENOGLIO FOWLER,
L.P., a Texas limited partnership (the "Lender").

      


    

    
      RECITALS

      


    

    
      A.           NLP
Willow Lake, LLC, a Delaware limited liability company (the "Borrower") has requested that
Lender make a loan to Borrower in the amount of $10,945,000.00 (the "Loan").  The Loan
will be evidenced by a Multifamily Note from Borrower to Lender dated effective
as of the effective date of this Guaranty (the "Note").  The Note
will be secured by a Multifamily Mortgage, Deed of Trust, or Deed to Secure Debt
dated effective as of the effective date of the Note (the "Security Instrument"),
encumbering the Mortgaged
Property described in the Security Instrument.

       

      B.           As
a condition to making the Loan to Borrower, Lender requires that the Guarantor
execute this Guaranty.

      


    

    
      NOW,
THEREFORE, in order to induce Lender to make the Loan to Borrower, and in
consideration thereof, Guarantor agrees as follows:

      


    

    
          1.           Defined
Terms.  "Indebtedness," "Loan Documents" and "Property
Jurisdiction" and other capitalized terms used but not defined in this
Guaranty shall have the meanings assigned to them in the Security
Instrument.

       

      
        2.           Scope
of Guaranty.

        


        
          
            
              
                       (a)     
Guarantor
hereby absolutely, unconditionally and irrevocably guarantees to
Lender:

              

            

          

           

          
            
              
                
                  
                    	
                          	
                            (i)

                          	
                            
                              the
      full and prompt payment when due, whether at the Maturity Date or earlier,
      by reason of acceleration or otherwise, and at all times thereafter, of
      each of the
following:

                            

                          


                  

                

              

               

              
                
                  
                    
                      
                        	
                              	
                                (A)

                              	
                                
                                  a
      portion of the Indebtedness equal to zero percent (0%) of the original
      principal balance of the Note (the "Base Guaranty");
      and

                                

                              


                      

                    

                  

                   

                  
                    
                      
                        
                          
                            	
                                  	
                                    (B)

                                  	
                                    in
      addition to the Base Guaranty, all other amounts for which Borrower is
      personally liable under Sections 9(c), 9(d) and 9(f) of the Note
      (provided, however,
that

                                  


                          

                        

                      

                    

                  

                

              

            

          

        

         

        
          
            

              
                
                   


                

                
                  
                    
 PAGE 1

                  
                  

                

                
                   


                

              

            

             

          

        

        
          
            
              
                
                  
                    	
                          	
                             

                          	
                            Guarantor
      shall have no liability for failure of the Borrower or SPE Equity Owner to
      comply with (I) Section 33(b)(xviii) of the Security Instrument and (II)
      the requirement in Section 33(b)(x)(B) of the Security Instrument as to
      payment of trade payables within 60 days of the date incurred) of the Note;
      and

                          


                  

                

              

            

          

           

          
            
              
                
                  
                    
                      	
                            	
                              (C)

                            	
                              all
      costs and expenses, including reasonable Attorneys' Fees and Costs
      incurred by Lender in enforcing its rights under this Guaranty;
      and

                            


                    

                  

                

              

            

            
               

              
                
                  
                    
                      
                        	
                              	
                                (ii)

                              	
                                
                                  the
      full and prompt payment and performance when due of all of Borrower’s
      obligations under Section 18 of the Security
      Instrument.

                                

                              


                      

                    

                  

                   

                         (b)      If the
Base Guaranty stated in Section 2(a)(i)(A) is 100 percent of the original
principal balance of the Note, then (i) the Base Guaranty shall mean and include
the full and complete guaranty of payment of the entire Indebtedness and the
performance of all Borrower’s obligations under the Loan Documents; and (ii) for
so long as the Base Guaranty remains in effect (there being no limit to the
duration of the Base Guaranty unless otherwise expressly provided in this
Guaranty), the obligations guaranteed pursuant to Sections 2(a)(i)(B),
2(a)(i)(C) and Section 3 shall be part of, and not in addition to or in
limitation of, the Base Guaranty.

                

              

            

          

        

        


        
              If the Base
Guaranty stated in Section 2(a)(i)(A) is less than 100 percent of the
original principal balance of the Note, then this Section 2(b) shall be
completely inapplicable and shall be treated as if not a part of this
Guaranty.

          


        

        
          (c)           If
Guarantor is not liable for the entire Indebtedness, then all payments made by
Borrower with respect to the Indebtedness and all amounts received by Lender
from the enforcement of its rights under the Security Instrument and the other
Loan Documents (except this Guaranty) shall be applied first to the portion of
the Indebtedness for which neither Borrower nor Guarantor has personal
liability.

          
3.           [INTENTIONALLY
DELETED]

        

      

    

    
       

      4.           Guarantor's Obligations Survive
Foreclosure.  The obligations of Guarantor under this Guaranty
shall survive any foreclosure proceeding, any foreclosure sale, any delivery of
any deed in lieu of foreclosure, and any release of record of the Security
Instrument, and, in addition, the obligations of Guarantor relating to
Borrower's obligations under Section 18 of the Security Instrument shall
survive any repayment or discharge of the
Indebtedness.  Notwithstanding the foregoing, if Lender has never been
a mortgagee-in-possession of or held title to the Mortgaged Property, Guarantor
shall have no obligation under this Guaranty relating to Borrower's obligations
under Section 18 of the Security Instrument after the date of the release
of record of the lien of the Security Instrument as a result of the payment in
full of the Indebtedness on the Maturity Date or by voluntary prepayment in
full.

       

      5.           Guaranty of Payment and
Performance.  Guarantor’s obligations under this Guaranty
constitute an unconditional guaranty of payment and performance and not merely a
guaranty of collection.

    


    
      
         


      

      
        
          
 PAGE 2

        
        

      

      
         


      

    


    
          6.           No Demand by Lender Necessary;
Waivers by Guarantor.  The obligations of Guarantor under this
Guaranty shall be performed without demand by Lender and shall be unconditional
regardless of the genuineness, validity, regularity or enforceability of the
Note, the Security Instrument, or any other Loan Document, and without regard to
any other circumstance which might otherwise constitute a legal or equitable
discharge of a surety, a guarantor, a borrower or a
mortgagor.  Guarantor hereby waives, to the fullest extent permitted
by applicable law:

      


    

    
      (a)           the
benefit of all principles or provisions of law, statutory or otherwise, which
are or might be in conflict with the terms of this Guaranty and agrees that
Guarantor's obligations shall not be affected by any circumstances, whether or
not referred to in this Guaranty, which might otherwise constitute a legal or
equitable discharge of a surety, a guarantor, a borrower or a
mortgagor;

       

      (b)           the
benefits of any right of discharge under any and all statutes or other laws
relating to a guarantor, a surety, a borrower or a mortgagor, and any other
rights of a surety, a guarantor, a borrower or a mortgagor under such statutes
or laws;

       

      (c)           diligence
in collecting the Indebtedness, presentment, demand for payment, protest, all
notices with respect to the Note and this Guaranty which may be required by
statute, rule of law or otherwise to preserve Lender's rights against
Guarantor under this Guaranty, including, but not limited to, notice of
acceptance, notice of any amendment of the Loan Documents, notice of the
occurrence of any default or Event of Default, notice of intent to accelerate,
notice of acceleration, notice of dishonor, notice of foreclosure, notice of
protest, and notice of the incurring by Borrower of any obligation or
indebtedness;

       

      (d)           all
rights to cause a marshalling of the Borrower's assets or to require Lender
to:

       

      
        
          
            
              
                
                  
                    	
                          	
                            (i)

                          	
                            
                              
                                proceed
      against Borrower or any other guarantor of Borrower’s payment or
      performance under the Loan Documents (an "Other
      Guarantor");

                              

                            

                          


                  

                

              

               

              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  	
                                        	
                                          (ii)

                                        	
                                          
                                            
                                              proceed
      against any general partner of Borrower or any Other Guarantor if Borrower
      or any Other Guarantor is a
  partnership;

                                            

                                          

                                        


                                

                              

                            

                             

                          

                        

                      

                    

                  

                

              

            

          

        

        
          
            
              
                
                  
                    	
                          	
                            (iii)

                          	
                            
                              
                                proceed
      against or exhaust any collateral held by Lender to secure the repayment
      of the Indebtedness;
or

                              

                            

                          


                  

                

              

               

              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  	
                                        	
                                          (iv)

                                        	
                                          
                                            
                                              pursue
      any other remedy it may now or hereafter have against Borrower, or, if
      Borrower is a partnership, any general partner of
      Borrower;

                                            

                                          

                                        


                                

                              

                            

                             

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    
      (e)           any
right to object to the timing, manner or conduct of Lender's enforcement of its
rights under any of the Loan Documents; and

       

      (f)           any
right to revoke this Guaranty as to any future advances by Lender under the
terms of the Security Instrument to protect Lender’s interest in the Mortgaged
Property.

    


    
      
         


      

      
        
          
 PAGE 3

        
        

      

      
         


      

    


    
            
7.           Modification of Loan
Documents.  At any time or from time to time and any number of
times, without notice to Guarantor and without affecting the liability of
Guarantor, Lender may:

       

      (a)           extend
the time for payment of the principal of or interest on the Indebtedness or
renew the Indebtedness in whole or in part;

       

      (b)           extend
the time for Borrower's performance of or compliance with any covenant or
agreement contained in the Note, the Security Instrument or any other Loan
Document, whether presently existing or hereinafter entered into, or waive such
performance or compliance;

       

      (c)           accelerate
the Maturity Date of the Indebtedness as provided in the Note, the Security
Instrument, or any other Loan Document;

       

      (d)           with
Borrower, modify or amend the Note, the Security Instrument, or any other Loan
Document in any respect, including, but not limited to, an increase in the
principal amount; and/or

       

      (e)           modify,
exchange, surrender or otherwise deal with any security for the Indebtedness or
accept additional security that is pledged or mortgaged for the
Indebtedness.

      


    

    
          8.           Joint and Several
Liability.  The obligations of Guarantor (and each party named
as a Guarantor in this Guaranty) and any Other Guarantor shall be joint and
several.  Lender, in its sole and absolute discretion,
may:

      


    

    
      (a)           bring
suit against Guarantor, or any one or more of the parties named as a Guarantor
in this Guaranty, and any Other Guarantor, jointly and severally, or against any
one or more of them;

       

      (b)           compromise
or settle with Guarantor, any one or more of the parties named as a Guarantor in
this Guaranty, or any Other Guarantor, for such consideration as Lender may deem
proper;

       

      (c)           release
one or more of the parties named as a Guarantor in this Guaranty, or any Other
Guarantor, from liability; and

       

      (d)           otherwise
deal with Guarantor and any Other Guarantor, or any one or more of them, in any
manner, and no such action shall impair the rights of Lender to collect from
Guarantor any amount guaranteed by Guarantor under this Guaranty.

       

    

    
          9.           Subordination of Borrower's
Indebtedness to Guarantor.  Any indebtedness of Borrower held
by Guarantor now or in the future is and shall be subordinated to the
Indebtedness and Guarantor shall collect, enforce and receive any such
indebtedness of Borrower as trustee for Lender, but without reducing or
affecting in any manner the liability of Guarantor under the other provisions of
this Guaranty.

       

      10.         Waiver of
Subrogation.  Guarantor shall have no right of, and hereby
waives any claim for, subrogation or reimbursement against Borrower or any
general partner of Borrower by reason of any payment by Guarantor under this
Guaranty, whether such right or claim arises at law or in equity or under any
contract or statute, until the Indebtedness has been paid in full
and

    


    
      
         


      

      
        
          
 PAGE 4

        
        

      

      
         


      

    


    
      there has
expired the maximum possible period thereafter during which any payment made by
Borrower to Lender with respect to the Indebtedness could be deemed a preference
under the United States Bankruptcy Code.

       

      11.         Preference.  If any
payment by Borrower is held to constitute a preference under any applicable
bankruptcy, insolvency, or similar laws, or if for any other reason Lender is
required to refund any sums to Borrower, such refund shall not constitute a
release of any liability of Guarantor under this Guaranty.  It is the
intention of Lender and Guarantor that Guarantor's obligations under this
Guaranty shall not be discharged except by Guarantor's performance of such
obligations and then only to the extent of such performance.

       

      12.         Financial
Information.  Guarantor, from time to time upon written request
by Lender, shall deliver to Lender such financial statements as Lender may
reasonably require.  If an Event of Default has occurred and is
continuing, Guarantor shall deliver to Lender upon written request copies of its
state and federal tax returns.

       

      13.         Assignment.  Lender
may assign its rights under this Guaranty in whole or in part and upon any such
assignment, all the terms and provisions of this Guaranty shall inure to the
benefit of such assignee to the extent so assigned.  The terms used to
designate any of the parties herein shall be deemed to include the heirs, legal
representatives, successors and assigns of such parties, and the term "Lender" shall also include any
lawful owner, holder or pledgee of the Note.

       

      14.         Complete and Final
Agreement.  This Guaranty and the other Loan Documents
represent the final agreement between the parties and may not be contradicted by
evidence of prior, contemporaneous or subsequent oral agreements. There are no
unwritten oral agreements between the parties.  All prior or
contemporaneous agreements, understandings, representations, and statements,
oral or written, are merged into this Guaranty and the other Loan
Documents.  Guarantor acknowledges that Guarantor has received a copy
of the Note and all other Loan Documents.  Neither this Guaranty nor
any of its provisions may be waived, modified, amended, discharged, or
terminated except by a writing signed by the party against which the enforcement
of the waiver, modification, amendment, discharge, or termination is sought, and
then only to the extent set forth in that writing.

       

      15.         Governing Law. This Guaranty
shall be governed by and enforced in accordance with the laws of the Property
Jurisdiction, without giving effect to the choice of law principles of the
Property Jurisdiction that would require the application of the laws of a
jurisdiction other than the Property Jurisdiction.

       

      16.         Jurisdiction;
Venue.  Guarantor agrees that any controversy arising under or
in relation to this Guaranty may be litigated in the Property Jurisdiction, and
that the state and federal courts and authorities with jurisdiction in the
Property Jurisdiction shall have jurisdiction over all controversies which shall
arise under or in relation to this Guaranty.  Guarantor irrevocably
consents to service, jurisdiction and venue of such courts for any such
litigation and waives any other venue to which it might be entitled by virtue of
domicile, habitual residence or otherwise.  However, nothing herein is
intended to limit Lender's right to bring any suit, action or proceeding
relating to matters arising under this Guaranty against Guarantor or any of
Guarantor's assets in any court of any other
jurisdiction.

    


    
      
         


      

      
        
          
 PAGE 5

        
        

      

      
         


      

    


    
          17.         Guarantor's Interest in
Borrower.  Guarantor represents to Lender that Guarantor has a
direct or indirect ownership or other financial interest in Borrower and/or will
otherwise derive a material financial benefit from the making of the
Loan.

       

      18.         STATE-SPECIFIC
PROVISIONS:  As used herein, "Attorneys' Fees and Costs" shall
mean (i) fees and out-of-pocket costs of Lender's and Loan Servicer's
attorneys, as applicable, including costs of Lender's and Loan Servicer's
in-house counsel, support staff costs, costs of preparing for litigation,
computerized research, telephone and facsimile transmission expenses, mileage,
deposition costs, postage, duplicating, process service, videotaping and similar
costs and expenses; (ii) costs and fees of expert witnesses, including
appraisers; and (iii) investigatory fees.  Nothing in this clause
is intended to limit the nature or extent of any costs or expenses that may be
recovered by Lender from Guarantor.

       

      19.         Residence;
Community Property Provision.

      


    

    
      (a)           Guarantor
represents and warrants that his state of residence is Kentucky.

       

      (b)           Guarantor
warrants and represents that he is:

      


    

    
            [_____] single

    

    
            [    X    ]
married

      


    

    
          20.         GUARANTOR
AND LENDER EACH (A) AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY
ISSUE ARISING OUT OF THIS GUARANTY OR THE RELATIONSHIP BETWEEN THE PARTIES AS
GUARANTOR AND LENDER THAT IS TRIABLE OF RIGHT BY A JURY AND (B) WAIVES ANY
RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH
RIGHT EXISTS NOW OR IN THE FUTURE.  THIS WAIVER OF RIGHT TO TRIAL BY
JURY IS SEPARATELY GIVEN BY EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE
BENEFIT OF COMPETENT LEGAL COUNSEL.

       

      ATTACHED
EXHIBIT.  The following Exhibit is attached to this
Guaranty:

       

       |X|           Exhibit
A    Modifications to
Guaranty

      


    

    IN WITNESS WHEREOF, Guarantor
has signed and delivered this Guaranty under seal or has caused this Guaranty to
be signed and delivered under seal by its duly authorized
representative.

    



    
      
         


      

      
        
          
 PAGE 6

        
        

      

      
         


      

    

    

       

      
        
          
            	 	
                    /s/ J.D. Nichols              

                    J.D.
  Nichols

                  


          

           

        

        
           

        

        STATE
OF     Kentucky     ,      
Jefferson       County, ss:

         

        The
foregoing instrument was acknowledged before me this     3rd   
  day of     
December     , 

        2009, by
J.D. Nichols, for the purposes contained therein.

         

        My
Commission expires:      April 27,
2010     

         

         

        
          	 	
                  /s/ Susan M.
      Howard            

                  Notary
      Public

                


        

         

      


      
        
           


        

        
          
            
 PAGE 7

          
          

        

        
           


        

      

       

      Name and Address of
Guarantor:

      
         

        
          	
                  Name:

                	
                  J.D.
  Nichols

                


        

        
          	
                  Address:

                	
                  10172 Linn Station Road, Suite
      200

                  Louisville, Kentucky
      40223

                


        

         

      

      
        
          
            
              
                
                  
                     


                  

                  
                    
                      
 PAGE 8

                    
                    

                  

                  
                     


                  

                

              

               

            

          

        

      

    

    
      EXHIBIT
A

      


      MODIFICATIONS
TO GUARANTY

      


      


    

    
      The
following modifications are made to the text of the Guaranty that precedes this
Exhibit:

      


    

    
      	
              1.

            	
              A
      new Section 21 is added, reading as
follows:

            


    

    


    “21.           Cross-Collateralization.  The
obligations of Guarantor shall not be impaired or in any way limited by (i) any
action taken by Lender to enforce its rights under or realize upon collateral
for any of the “Loans” as defined in the Master Cross-Collateralization
Agreement dated the same date as this Guaranty among Lender, Borrower and the
other Borrowers identified therein (the “Master Cross-Collateralization
Agreement”), (ii) the fact that Lender may be seeking to realize upon some but
not all of the collateral for the “Loans” as defined in the Master
Cross-Collateralization Agreement, or (iii) the exercise or not, concurrently,
consecutively or otherwise, of any of the rights or remedies available to Lender
under the Master Cross-Collateralization Agreement or applicable
law.”

     

    
      
        
          
            

          

        

        PAGE A-1