Exhibit 10.4


 


SPRINGING GUARANTY


 


THIS SPRINGING GUARANTY (the
 “Guaranty”) dated as of October 22, 2021, executed and delivered by KITE REALTY GROUP TRUST, a Maryland real estate investment
trust (the “Guarantor”) in favor of (a) KEYBANK NATIONAL ASSOCIATION, in its capacity as Agent (the “Agent”)
for the Lenders under that certain Term Loan Agreement dated as of July 17, 2019, as amended by that certain First Amendment to Term
Loan Agreement dated May 4, 2020 and that certain Second amendment to Term Loan Agreement dated as of even date herewith (as the
same may be further amended, restated, supplemented or otherwise modified from time to time, the “Term Loan Agreement”), by
and among Kite Realty Group, L.P., as successor by merger to Retail Properties of America, Inc. (the “Borrower”), the
financial institutions party thereto and their assignees under Section 12.3 thereof (collectively, the “Lenders”), the
Agent, and the other parties thereto, and (b) the Lenders.


 


WHEREAS, pursuant to the Term
Loan Agreement, the Agent and the Lenders have agreed to make available to the Borrower certain financial accommodations on the terms
and conditions set forth in the Term Loan Agreement;


 


WHEREAS, the Borrower and
the Guarantor, though separate legal entities, are mutually dependent on each other in the conduct of their respective businesses as an
integrated operation and have determined it to be in their mutual best interests to obtain financing from the Agent and the Lenders through
their collective efforts;


 


WHEREAS, Guarantor acknowledges
that it will receive direct and indirect benefits from the Agent and the Lenders making such financial accommodations available to the
Borrower under the Term Loan Agreement and, accordingly, Guarantor is willing, upon the occurrence of a “Springing Recourse Event”
(as hereinafter defined), to guarantee the Borrower’s obligations to the Agent and the Lenders on the terms and conditions contained
herein; and


 


WHEREAS, Guarantor’s
execution and delivery of this Guaranty is a condition to the Agent and the Lenders making, and continuing to make, such financial accommodations
to the Borrower.


 


NOW, THEREFORE, for good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged by Guarantor, Guarantor agrees as follows:


 


Section 1.        Guaranty.
Guarantor, upon the occurrence of a Springing Recourse Event, hereby absolutely, irrevocably and unconditionally guaranties the due and
punctual payment and performance when due, whether at stated maturity, by acceleration or otherwise, of all of the following (collectively
referred to as the “Guarantied Obligations”): (a) all indebtedness and obligations owing by the Borrower to any Lender
or the Agent under or in connection with the Term Loan Agreement and any other Loan Document, including without limitation, the repayment
of all principal of the Term Loans and the Related Swap Obligations (other than Excluded Swap Obligations), and the payment of all interest,
fees, charges, attorneys’ fees and other amounts payable to any Lender or the Agent thereunder or in connection therewith; (b) any
and all extensions, renewals, modifications, amendments or substitutions of the foregoing; (c) all expenses, including, without limitation,
reasonable attorneys’ fees and disbursements, that are incurred by the Lenders and the Agent in the enforcement of any of the foregoing
or any obligation of Guarantor hereunder; and (d) all other Obligations.


 






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For the purposes of this Guaranty,
the occurrence of any of the events described in (1)-(3) below shall be a “Springing Recourse Event”:


 


(1)            (A) Guarantor
fails to perform or comply with any of the following terms (each, a “Guarantor Covenant Breach”):


 


(i)            the
Guarantor shall not, directly or indirectly, enter into or conduct any business other than in connection with the ownership, acquisition
and disposition of general or limited partnership interests in the Borrower and the management of the business of the Borrower, and such
activities as are incidental thereto, all of which shall be solely in furtherance of the business of the Borrower;


 


(ii)           the
Guarantor shall not own any assets other than (A) equity interests (or rights, options or warrants in respect thereof) of the Borrower,
(B) up to a one percent (1%) equity interest in any partnership or limited liability company at least ninety-nine percent (99%) of
the equity of which is owned, directly or indirectly, by the Borrower; (C) money that has been distributed to Guarantor by Borrower
or a Subsidiary of Borrower described in clause (ii)(B) above in accordance with Section 6.11 of the Term Loan Agreement that
is held for ten (10) Business Days or less pending further distribution to equity holders of the Guarantor, (D) assets received
by the Guarantor from third parties (including, without limitation, the proceeds from any issuance of equity interests), that are held
for ten (10) Business Days or less pending further contribution to Borrower, (E) such bank accounts or similar instruments (subject
to the other terms hereof) as it deems necessary to carry out its responsibilities under the limited partnership agreement of the Borrower,
and (F) other tangible and intangible assets that, taken as a whole, are de minimis in relation to the net assets of Borrower and
its Subsidiaries (but which in no event shall include any real estate, cash, cash equivalents or other liquid assets in excess of $500,000
in the aggregate (except as permitted in clauses (ii)(C) and (D) above) or equity interests (other than equity interests permitted
in clauses (ii)(A) and (B) above);


 


(iii)          the
Guarantor shall promptly contribute or otherwise downstream to the Borrower any net assets received by the Guarantor from third parties
(including, without limitation, the proceeds from any issuance of equity interests), subject to the terms of clause (ii)(D) above;


 


(iv)          the
Guarantor shall not merge or consolidate (except as permitted in the Term Loan Agreement), or dissolve, liquidate or otherwise wind up
its business, affairs or assets;


 






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(v)           the
Guarantor shall not guarantee, or otherwise be or become obligated in respect of, any Indebtedness (which for the purposes hereof shall
include any obligations under any Swap Contract but shall exclude (A) [intentionally omitted], (B) all obligations of the Guarantor
to purchase, redeem, retire, defease or otherwise make any payment in respect of any Mandatorily Redeemable Stock (as hereinafter defined)
issued by the Guarantor or any other Person, (C) any liability pursuant to non-recourse carveout guaranties with customary exceptions
for fraud, misapplication of funds, environmental indemnities, voluntary bankruptcy, collusive involuntary bankruptcy and other similar
customary exceptions to recourse liability (a “Customary Nonrecourse Debt Guaranty”) until a claim is made with respect thereto
(provided that for the purposes of this clause (v), the Guarantor shall not be deemed to have violated this covenant with respect to Indebtedness
under a Customary Nonrecourse Debt Guaranty until a judgment is obtained with respect to claims under Customary Nonrecourse Debt Guaranties
individually or in the aggregate of $30,000,000 or greater), and (D) any liability pursuant to a springing guaranty on substantially
the same terms as the Springing Guaranty; and provided further that the Guarantor’s liability with respect to (x) Indebtedness
of Borrower in place as of March 31, 2014 and (y) Indebtedness of Inland Diversified Real Estate Trust, Inc., a Maryland
corporation (“Inland Diversified”) assumed by Borrower and that is existing debt of Inland Diversified as of July 1,
2014 and was not incurred as a part of or in anticipation of the merger of Inland Diversified with and into KRG Magellan, LLC, solely
by virtue of the Guarantor being the general partner of Borrower and not as a guarantor, shall be excluded from the foregoing provided
such liability is not increased); and


 


(B) with respect to a Guarantor Covenant
Breach of any event described in (1)(A)(i)-(iii) above, the passage of forty-five (45) days after the first to occur of either (i) Borrower
or Guarantor becoming aware of such Guarantor Covenant Breach, or (ii) Agent notifying Borrower in writing of any such Guarantor
Covenant Breach, or


 


(C) with respect to a Guarantor Covenant
Breach of the event described in clause (1)(A)(v) above, the passage of ten (10) Business Days (or forty-five (45) days if the
aggregate Indebtedness for the purposes of clause (1)(A)(v) above is less than $10,000,000), after the first to occur of either (i) Borrower
or Guarantor becoming aware of such Guarantor Covenant Breach, or (ii) Agent notifying Borrower in writing of any such Guarantor
Covenant Breach; or


 


(2)            Borrower
or Guarantor shall commence a voluntary case under the Bankruptcy Code of 1978, as amended, or any other federal bankruptcy or any other
domestic or foreign laws relating to bankruptcy, insolvency, reorganization, winding-up, composition or adjustment of debts, in each case
with respect to Borrower or Guarantor, whether now or hereinafter in effect (collectively, a “Bankruptcy Proceeding”); or


 


(3)            Borrower
or Guarantor or any officer or director thereof shall collude with, or otherwise assist any party in connection with any such filing in
a Bankruptcy Proceeding or solicit or cause to be solicited petitioning creditors for any involuntary petition against Borrower or Guarantor
in any such Bankruptcy Proceeding from any party.


 


Guarantor acknowledges and agrees that the guaranty
under this Guaranty of the Guarantied Obligations shall automatically become fully effective upon the occurrence of any Springing Recourse
Event and no other documentation or notice shall be required to evidence the same.


 


Section 2.        Guaranty
of Payment and Not of Collection. This Guaranty is a guaranty of payment, and not of collection, and upon the occurrence of a Springing
Recourse Event, a debt of Guarantor for its own account. Accordingly, none of the Lenders or the Agent shall be obligated or required
before enforcing this Guaranty against Guarantor after a Springing Recourse Event: (a)  to pursue any right or remedy any of them
may have against the Borrower, any other Loan Party or any other Person or commence any suit or other proceeding against the Borrower,
any other Loan Party or any other Person in any court or other tribunal; (b) to make any claim in a liquidation or bankruptcy of
the Borrower, any other Loan Party, or any other Person; or (c) to make demand of the Borrower, any other Loan Party or any other
Person or to enforce or seek to enforce or realize upon any collateral security held by the Lenders or the Agent which may secure any
of the Guarantied Obligations.


 






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Section 3.        Guaranty
Absolute. Guarantor, upon the occurrence of a Springing Recourse Event, guarantees that the Guarantied Obligations will be paid strictly
in accordance with the terms of the documents evidencing the same, regardless of any applicable law now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Agent or the Lenders with respect thereto. Upon the occurrence of a Springing
Recourse Event, the liability of Guarantor under this Guaranty shall be absolute, irrevocable and unconditional in accordance with its
terms and shall remain in full force and effect without regard to, and shall not be released, suspended, discharged, terminated or otherwise
affected by, any circumstance or occurrence whatsoever, including without limitation, the following (whether or not Guarantor consents
thereto or has notice thereof and whether before or after the occurrence of a Springing Recourse Event):


 


a.      (i) any
change in the amount, interest rate or due date or other term of any of the Guarantied Obligations, (ii) any change in the time,
place or manner of payment of all or any portion of the Guarantied Obligations, (iii) any amendment or waiver of, or consent to the
departure from or other indulgence with respect to, the Term Loan Agreement, any other Loan Document, or any other document or instrument
evidencing or relating to any Guarantied Obligations, or (iv) any waiver, renewal, extension, addition, or supplement to, or deletion
from, or any other action or inaction under or in respect of, the Term Loan Agreement, any of the other Loan Documents, or any other documents,
instruments or agreements relating to the Guarantied Obligations or any other instrument or agreement referred to therein or evidencing
any Guarantied Obligations or any assignment or transfer of any of the foregoing;


 


b.      any
lack of validity or enforceability of the Term Loan Agreement, any of the other Loan Documents, or any other document, instrument or agreement
referred to therein or evidencing any Guarantied Obligations or any assignment or transfer of any of the foregoing;


 


c.      any
furnishing to the Agent or the Lenders of any security for the Guarantied Obligations, or any sale, exchange, release or surrender of,
or realization on, any collateral securing any of the Obligations;


 


d.      any
settlement or compromise of any of the Guarantied Obligations, any security therefor, or any liability of any other party with respect
to the Guarantied Obligations, or any subordination of the payment of the Guarantied Obligations to the payment of any other liability
of the Borrower or any other Loan Party;


 


e.      any
bankruptcy, insolvency, reorganization, composition, adjustment, dissolution, liquidation or other like proceeding relating to Guarantor,
the Borrower, any other Loan Party or any other Person, or any action taken with respect to this Guaranty by any trustee or receiver,
or by any court, in any such proceeding;


 


f.       any
act or failure to act by the Borrower, any other Loan Party or any other Person which may adversely affect Guarantor’s subrogation
rights, if any, against the Borrower to recover payments made under this Guaranty;


 






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g.      any
nonperfection or impairment of any security interest or other Lien on any collateral, if any, securing in any way any of the Obligations;


 


h.      any
application of sums paid by the Borrower, any other Loan Party or any other Person with respect to the liabilities of the Borrower to
the Agent or the Lenders, regardless of what liabilities of the Borrower remain unpaid;


 


i.      any
defect, limitation or insufficiency in the borrowing powers of the Borrower or in the exercise thereof; or


 


j.       any
other circumstance which might otherwise constitute a defense available to, or a discharge of, Guarantor hereunder (other than indefeasible
payment and performance in full).


 


Section 4.        Action
with Respect to Guarantied Obligations. The Lenders and the Agent may, at any time and from time to time, without the consent of,
or notice to, Guarantor, and without discharging Guarantor from its obligations hereunder, take any and all actions described in Section 3
and may otherwise: (a) amend, modify, alter or supplement the terms of any of the Guarantied Obligations, including, but not limited
to, extending or shortening the time of payment of any of the Guarantied Obligations or changing the interest rate that may accrue on
any of the Guarantied Obligations; (b) amend, modify, alter or supplement the Term Loan Agreement or any other Loan Document; provided,
however, that no such amendments can require Guarantor to modify the nature of the springing guaranty provided hereunder without the approval
of Guarantor; (c) sell, exchange, release or otherwise deal with all, or any part, of any collateral securing any of the Obligations;
(d) release any other Loan Party or other Person liable in any manner for the payment or collection of the Guarantied Obligations;
(e) exercise, or refrain from exercising, any rights against the Borrower, any other Loan Party or any other Person; and (f) apply
any sum, by whomsoever paid or however realized, to the Guarantied Obligations in such order as the Lenders shall elect.


 


Section 5.        Reserved.


 


Section 6.        Reserved.


 


Section 7.        Waiver.
Guarantor, to the fullest extent permitted by applicable law, hereby waives notice of acceptance hereof or any presentment, demand, protest
or notice of any kind, and any other act or thing, or omission or delay to do any other act or thing, which in any manner or to any extent
might vary the risk of Guarantor or which otherwise might operate to discharge Guarantor from its obligations hereunder.


 


Section 8.        Inability
to Accelerate Loan. If the Agent and/or the Lenders are prevented under applicable law or otherwise from demanding or accelerating
payment of any of the Guarantied Obligations after the occurrence of a Springing Recourse Event by reason of any automatic stay or otherwise,
the Agent and/or the Lenders shall be entitled to receive from Guarantor, upon demand therefor, the sums which otherwise would have been
due had such demand or acceleration occurred.


 






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Section 9.        Reinstatement
of Guarantied Obligations. If claim is ever made on the Agent or any Lender for repayment or recovery of any amount or amounts received
in payment or on account of any of the Guarantied Obligations, and the Agent or such Lender repays all or part of said amount by reason
of (a) any judgment, decree or order of any court or administrative body of competent jurisdiction, or (b) any settlement or
compromise of any such claim effected by the Agent or such Lender with any such claimant (including the Borrower or a trustee in bankruptcy
for the Borrower), then and in such event Guarantor agrees that any such judgment, decree, order, settlement or compromise shall be binding
on it, notwithstanding any revocation hereof or the cancellation of the Term Loan Agreement, any of the other Loan Documents, or any other
instrument evidencing any liability of the Borrower, and Guarantor shall, upon the occurrence of a Springing Recourse Event, be and remain
liable to the Agent or such Lender for the amounts so repaid or recovered to the same extent as if such amount had never originally been
paid to the Agent or such Lender.


 


Section 10.      Subrogation.
Upon the making by Guarantor of any payment hereunder for the account of the Borrower, Guarantor shall be subrogated to the rights of
the payee against the Borrower; provided, however, that Guarantor shall not enforce any right or receive any payment by way of subrogation
or otherwise take any action in respect of any other claim or cause of action Guarantor may have against the Borrower arising by reason
of any payment or performance by Guarantor pursuant to this Guaranty, unless and until all of the Guarantied Obligations have been indefeasibly
paid and performed in full. If any amount shall be paid to Guarantor on account of or in respect of such subrogation rights or other claims
or causes of action, Guarantor shall hold such amount in trust for the benefit of the Agent and the Lenders and shall forthwith pay such
amount to the Agent to be credited and applied against the Guarantied Obligations, whether matured or unmatured, in accordance with the
terms of the Term Loan Agreement or to be held by the Agent as collateral security for any Guarantied Obligations existing.


 


Section 11.      Payments
Free and Clear. All sums payable by Guarantor hereunder, whether of principal, interest, Fees, expenses, premiums or otherwise, shall
be paid in full, without set off or counterclaim or any deduction or withholding whatsoever, and if Guarantor is required by applicable
law or by a Governmental Authority to make any such deduction or withholding, Guarantor shall pay to the Agent and the Lenders such additional
amount as will result in the receipt by the Agent and the Lenders of the full amount payable hereunder had such deduction or withholding
not occurred or been required.


 


Section 12.      Set-off.
In addition to any rights now or hereafter granted under any of the other Loan Documents or applicable law and not by way of limitation
of any such rights, Guarantor hereby authorizes the Agent and each Lender, at any time during the continuance of an Event of Default and
after the occurrence of a Springing Recourse Event, without any prior notice to Guarantor or to any other Person, any such notice being
hereby expressly waived, but in the case of a Lender or Participant subject to receipt of the prior written consent of the Agent exercised
in its sole discretion, to set off and to appropriate and to apply any and all deposits (general or special, including, but not limited
to, indebtedness evidenced by certificates of deposit, whether matured or unmatured) and any other indebtedness at any time held or owing
by the Agent, such Lender, or any affiliate of the Agent or such Lender, to or for the credit or the account of Guarantor against and
on account of any of the Guarantied Obligations, although such obligations shall be contingent or unmatured. Guarantor agrees, to the
fullest extent permitted by applicable law and subject to the terms hereof, that any Participant may exercise rights of setoff or counterclaim
and other rights with respect to its participation after the occurrence of a Springing Recourse Event as fully as if such Participant
were a direct creditor of Guarantor in the amount of such participation.


 






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Section 13.      Subordination.
Guarantor hereby expressly covenants and agrees for the benefit of the Agent and the Lenders that all obligations and liabilities of the
Borrower to Guarantor of whatever description, including without limitation, all intercompany receivables of Guarantor from the Borrower
(collectively, the “Junior Claims”) shall be subordinate and junior in right of payment to all Guarantied Obligations. If
an Event of Default shall exist, then Guarantor shall not accept any direct or indirect payment (in cash, property or securities, by setoff
or otherwise) from the Borrower on account of or in any manner in respect of any Junior Claim until all of the Guarantied Obligations
have been indefeasibly paid in full.


 


Section 14.      Avoidance
Provisions. It is the intent of Guarantor, the Agent and the Lenders that in any Proceeding, Guarantor’s maximum obligation
hereunder shall equal, but not exceed, the maximum amount which would not otherwise cause the obligations of Guarantor hereunder (or any
other obligations of Guarantor to the Agent and the Lenders) to be avoidable or unenforceable against Guarantor in such Proceeding as
a result of applicable law, including without limitation, (a) Section 548 of the Bankruptcy Code of 1978, as amended (the “Bankruptcy
Code”) and (b) any state fraudulent transfer or fraudulent conveyance act or statute applied in such Proceeding, whether by
virtue of Section 544 of the Bankruptcy Code or otherwise. The applicable laws under which the possible avoidance or unenforceability
of the obligations of Guarantor hereunder (or any other obligations of Guarantor to the Agent and the Lenders) shall be determined in
any such Proceeding are referred to as the “Avoidance Provisions”. Accordingly, to the extent that the obligations of Guarantor
hereunder would otherwise be subject to avoidance under the Avoidance Provisions, the maximum Guarantied Obligations for which Guarantor
shall be liable hereunder shall be reduced to that amount which, as of the time any of the Guarantied Obligations are deemed to have been
incurred under the Avoidance Provisions, would not cause the obligations of Guarantor hereunder (or any other obligations of Guarantor
to the Agent and the Lenders), to be subject to avoidance under the Avoidance Provisions. This Section is intended solely to preserve
the rights of the Agent and the Lenders hereunder to the maximum extent that would not cause the obligations of Guarantor hereunder to
be subject to avoidance under the Avoidance Provisions, and neither Guarantor nor any other Person shall have any right or claim under
this Section as against the Agent and the Lenders that would not otherwise be available to such Person under the Avoidance Provisions.


 


Section 15.      Information.
Guarantor assumes all responsibility for being and keeping itself informed of the financial condition of the Borrower and the other Loan
Parties, and of all other circumstances bearing upon the risk of nonpayment of any of the Guarantied Obligations and the nature, scope
and extent of the risks that Guarantor assumes and incurs hereunder, and agrees that none of the Agent or the Lenders shall have any duty
whatsoever to advise Guarantor of information regarding such circumstances or risks.


 


Section 16.      Governing
Law. THIS AGREEMENT SHALL PURSUANT TO NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1401 BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.


 






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Section 17.      WAIVER
OF JURY TRIAL.


 


a.       EACH
PARTY HERETO ACKNOWLEDGES THAT ANY DISPUTE OR CONTROVERSY BETWEEN OR AMONG GUARANTOR, THE AGENT OR ANY OF THE LENDERS WOULD BE BASED
ON DIFFICULT AND COMPLEX ISSUES OF LAW AND FACT AND WOULD RESULT IN DELAY AND EXPENSE TO THE PARTIES. ACCORDINGLY, TO THE EXTENT PERMITTED
BY APPLICABLE LAW, EACH OF THE LENDERS, THE AGENT AND GUARANTOR HEREBY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING
OF ANY KIND OR NATURE IN ANY COURT OR TRIBUNAL IN WHICH AN ACTION MAY BE COMMENCED BY OR AGAINST ANY PARTY HERETO ARISING OUT OF
THIS GUARANTY OR ANY OTHER LOAN DOCUMENT OR BY REASON OF ANY OTHER SUIT, CAUSE OF ACTION OR DISPUTE WHATSOEVER BETWEEN OR AMONG GUARANTOR,
THE AGENT OR ANY OF THE LENDERS OF ANY KIND OR NATURE RELATING TO ANY OF THE LOAN DOCUMENTS.


 


b.      EACH
OF THE GUARANTOR, THE AGENT AND EACH LENDER HEREBY AGREES THAT ANY FEDERAL DISTRICT COURT LOCATED IN NEW YORK OR, AT THE OPTION OF THE
AGENT, ANY STATE COURT LOCATED IN THE BOROUGH OF MANHATTAN, NEW YORK, NEW YORK, SHALL HAVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS
OR DISPUTES BETWEEN OR AMONG GUARANTOR, THE AGENT OR ANY OF THE LENDERS, PERTAINING DIRECTLY OR INDIRECTLY TO THIS GUARANTY OR ANY OTHER
LOAN DOCUMENT OR TO ANY MATTER ARISING HEREFROM OR THEREFROM. GUARANTOR AND EACH OF THE LENDERS EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE
TO SUCH JURISDICTION IN ANY ACTION OR PROCEEDING COMMENCED IN SUCH COURTS WITH RESPECT TO SUCH CLAIMS OR DISPUTES. EACH PARTY FURTHER
WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH ACTION OR PROCEEDING IN ANY SUCH COURT OR THAT SUCH
ACTION OR PROCEEDING WAS BROUGHT IN AN INCONVENIENT FORUM AND EACH AGREES NOT TO PLEAD OR CLAIM THE SAME. THE CHOICE OF FORUM SET FORTH
IN THIS SECTION SHALL NOT BE DEEMED TO PRECLUDE THE BRINGING OF ANY ACTION BY THE AGENT OR ANY LENDER OR THE ENFORCEMENT BY THE AGENT
OR ANY LENDER OF ANY JUDGMENT OBTAINED IN SUCH FORUM IN ANY OTHER APPROPRIATE JURISDICTION.


 


c.       THE
PROVISIONS OF THIS SECTION HAVE BEEN CONSIDERED BY EACH PARTY WITH THE ADVICE OF COUNSEL AND WITH A FULL UNDERSTANDING OF THE LEGAL
CONSEQUENCES THEREOF, AND SHALL SURVIVE THE PAYMENT OF THE LOANS AND ALL OTHER AMOUNTS PAYABLE HEREUNDER OR UNDER THE OTHER LOAN DOCUMENTS
AND THE TERMINATION OF THIS GUARANTY.


 


Section 18.      Loan
Accounts. The Agent and each Lender may maintain books and accounts setting forth the amounts of principal, interest and other sums
paid and payable with respect to the Guarantied Obligations, and in the case of any dispute relating to any of the outstanding amount,
payment or receipt of any of the Guarantied Obligations or otherwise, the entries in such books and accounts shall be deemed conclusive
evidence of the amounts and other matters set forth herein, absent manifest error. The failure of the Agent or any Lender to maintain
such books and accounts shall not in any way relieve or discharge Guarantor of any of its obligations hereunder.


 






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Section 19.      Waiver
of Remedies. No delay or failure on the part of the Agent or any Lender in the exercise of any right or remedy it may have against
Guarantor hereunder or otherwise shall operate as a waiver thereof, and no single or partial exercise by the Agent or any Lender of any
such right or remedy shall preclude any other or further exercise thereof or the exercise of any other such right or remedy.


 


Section 20.      Termination.
This Guaranty shall remain in full force and effect until (a) the termination of all of the Commitments, (b) the termination
of any and all obligations of the Lenders to make any Loans, and (c) the payment and satisfaction in full of all Guarantied Obligations
in accordance with their terms (and without regard to any extension, reduction or other alteration thereof in any Proceeding), other than
contingent obligations for indemnification, expense reimbursement, tax gross-up or yield protection as to which no claim has been made;
provided, that, notwithstanding the foregoing, the provisions of Section 9 shall survive and continue following any such termination.


 


Section 21.      Successors
and Assigns. Each reference herein to the Agent or the Lenders shall be deemed to include such Person’s respective successors
and assigns (including, but not limited to, any holder of the Guarantied Obligations) in whose favor the provisions of this Guaranty also
shall inure, and each reference herein to Guarantor shall be deemed to include Guarantor’s successors and assigns, upon whom this
Guaranty also shall be binding. The Lenders may, in accordance with the applicable provisions of the Term Loan Agreement, assign, transfer
or sell any Guarantied Obligation, or grant or sell participations in any Guarantied Obligations, to any Person without the consent of,
or notice to, Guarantor and without releasing, discharging or modifying Guarantor’s obligations hereunder. Subject to Section 12.4
of the Term Loan Agreement, Guarantor hereby consents to the delivery by the Agent or any Lender to any Purchaser or Participant (or any
prospective Purchaser or Participant) of any financial or other information regarding the Borrower or Guarantor. Guarantor may not assign
or transfer its obligations hereunder to any Person without the prior written consent of all Lenders and any such assignment or other
transfer to which all of the Lenders have not so consented shall be null and void.


 


Section 22.      [Reserved.]


 


Section 23.      Amendments.
This Guaranty may not be amended other than in writing in accordance with the terms of Section 8.2 of the Term Loan Agreement.


 


Section 24.      Payments.
All payments to be made by Guarantor pursuant to this Guaranty shall be made in Dollars, in immediately available funds to the Agent at
the Agent’s address specified pursuant to Article XIII of the Term Loan Agreement, or at any other Lending Installation of
the Agent specified in writing by the Agent to the Borrower, not later than 2:00 p.m. on the date of demand therefor.


 


Section 25.      Notices.
All notices, requests and other communications hereunder shall be in writing (including facsimile transmission or similar writing) and
shall be given (a) to Guarantor at its address set forth below its signature hereto, (b) to the Agent or any Lender at its respective
address for notices provided for in the Term Loan Agreement, or (c) as to each such party at such other address as such party shall
designate in a written notice to the other parties. Each such notice, request or other communication shall be effective (i) if mailed,
when received; (ii) if telecopied, when transmitted; or (iii) if hand delivered, when delivered; provided, however, that any
notice of a change of address for notices shall not be effective until received.


 






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Section 26.      Severability.
In case any provision of this Guaranty shall be invalid, illegal or unenforceable in any jurisdiction, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired thereby.


 


Section 27.      Headings.
Section headings used in this Guaranty are for convenience only and shall not affect the construction of this Guaranty.


 


Section 28.      Limitation
of Liability. Neither the Agent nor any Lender, nor any affiliate, officer, director, employee, attorney, or agent of the Agent or
any Lender, shall have any liability with respect to, and Guarantor hereby waives, releases, and agrees not to sue any of them upon, any
claim for any special, indirect, incidental, or consequential damages suffered or incurred by Guarantor in connection with, arising out
of, or in any way related to, this Guaranty or any of the other Loan Documents, or any of the transactions contemplated by this Guaranty,
the Term Loan Agreement or any of the other Loan Documents. Guarantor hereby waives, releases, and agrees not to sue the Agent or any
Lender or any of the Agent’s or any Lender’s affiliates, officers, directors, employees, attorneys, or agents for punitive
damages in respect of any claim in connection with, arising out of, or in any way related to, this Guaranty, the Term Loan Agreement or
any of the other Loan Documents, or any of the transactions contemplated by Term Loan Agreement or financed thereby.


 


Section 29.      Definitions.
a.  For the purposes of this Guaranty:


 


“Mandatorily Redeemable
Stock” means any equity interest of a Person which by its terms (or by the terms of any security into which it is convertible or
for which it is exchangeable or exercisable), upon the happening of any event or otherwise (a) matures or is mandatorily redeemable,
pursuant to a sinking fund obligation or otherwise (other than an equity interest to the extent redeemable in exchange for common stock
or other equivalent common equity interests), (b) is convertible into or exchangeable or exercisable for Indebtedness or Mandatorily
Redeemable Stock, or (c) is redeemable at the option of the holder thereof, in whole or in part (other than an equity interest which
is redeemable solely in exchange for common stock or other equivalent common equity interests), in each case on or prior to the date on
which all Loans are scheduled to be due and payable in full.


 


“Proceeding”
means any of the following: (i) a voluntary or involuntary case concerning Guarantor shall be commenced under the Bankruptcy Code
of 1978, as amended; (ii) a custodian (as defined in such Bankruptcy Code or any other applicable bankruptcy laws) is appointed for,
or takes charge of, all or any substantial part of the property of Guarantor; (iii) any other proceeding under any applicable law,
domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up or composition for adjustment of debts, whether now
or hereafter in effect, is commenced relating to Guarantor; (iv) Guarantor is adjudicated insolvent or bankrupt; (v) any order
of relief or other order approving any such case or proceeding is entered by a court of competent jurisdiction; (vi) Guarantor makes
a general assignment for the benefit of creditors; (vii) Guarantor shall fail to pay, or shall state that it is unable to pay, or
shall be unable to pay, its debts generally as they become due; (viii) Guarantor shall call a meeting of its creditors with a view
to arranging a composition or adjustment of its debts; (ix) Guarantor shall by any act or failure to act indicate its consent
to, approval of or acquiescence in any of the foregoing; or (x) any corporate action shall be taken by Guarantor for the purpose
of effecting any of the foregoing.


 






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b.      Terms
not otherwise defined herein are used herein with the respective meanings given them in the Term Loan Agreement.


 


Section 30.      Keepwell.
Each Qualified ECP Guarantor hereby jointly and severally absolutely, unconditionally and irrevocably undertakes to provide such funds
or other support as may be needed from time to time by each other Loan Party to honor all of its obligations under this Guaranty or the
other Loan Documents in respect of Related Swap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable
under this Section for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this
Section, or otherwise under this Guaranty or the other Loan Documents, voidable under applicable law relating to fraudulent conveyance
or fraudulent transfer, and not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section shall
remain in full force and effect until termination of this Guaranty. Each Qualified ECP Guarantor intends that this Section constitute,
and this Section shall be deemed to constitute, a “keepwell, support, or other agreement” for the benefit of each other
Loan Party for all purposes of Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.


 


“Qualified ECP Guarantor”
means, in respect of any Related Swap Obligation, each Loan Party that has total assets exceeding $10,000,000 at the time the relevant
guarantee or grant of the relevant security interest becomes effective with respect to such Related Swap Obligation or such other person
as constitutes an “eligible contract participant” under the Commodity Exchange Act or any regulations promulgated thereunder
and can cause another person to qualify as an “eligible contract participant” at such time by entering into a keepwell under
Section 1a(18)(A)(v)(II) of the Commodity Exchange Act.


 


[Signature on Next Page]


 




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IN WITNESS WHEREOF, Guarantor has duly executed
and delivered this Guaranty as of the date and year first written above.


 


	 	GUARANTOR:
	 	 
	 	 
	 	KITE REALTY GROUP TRUST
	 	 
	 	 
	 	By: 	/s/ Heath R. Fear
	 	Name: Heath R. Fear
	 	Title: Executive Vice President and Chief Financial Officer



 


	 	 
	 	Address for Notices:
	 	 
	 	Kite Realty Group Trust
	 	30 S. Meridian Street, Suite 1100
	 	Indianapolis, Indiana 46204
	 	Attention: Chief Financial Officer
	 	Telecopy Number:	(317) 577-5605
	 	Telephone Number:	(317) 577-5600



 


	 	 
	 	with a copy to:
	 	 
	 	Hogan Lovells US LLP
	 	555 13th Street, N.W.
	 	Washington, D.C. 20004
	 	Attn: David Bonser
	 	Telephone:	(202) 637-5868
	 	Telecopy:	(202) 637-5910