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Exhibit 10.20  


 
 

TAX PROTECTION AGREEMENT    
    


        THIS TAX PROTECTION AGREEMENT (this "Agreement") is made and entered into as of
[                             , 2004] by and among
KITE REALTY GROUP TRUST, a Maryland real estate investment trust (the "REIT"), KITE REALTY GROUP, L.P., a Delaware limited partnership (the "Partnership"), ALVIN E. KITE, JR., JOHN A. KITE, PAUL W.
KITE, C. KENNETH KITE AND THOMAS K. MCGOWAN (each a "Protected Partner and collectively the "Protected Partners"). 


        WHEREAS,
pursuant to that certain Contribution Agreement, dated as of April 5, 2004, and that certain Contribution Agreement, dated as of April 1, 2004, (the "Contribution
Agreements"), the Protected Partners transferred to the Partnership all of such Protected Partner's interests in the various entities that own or lease real estate properties, as identified in such
Contribution Agreements, subject to specified liabilities, in exchange for Class A units of limited partnership interest in the Partnership ("Units") (the "Transaction"); 



        WHEREAS,
it is intended for federal income tax purposes that the Transaction be treated as a contribution by the Protected Partners of all of the contributed assets, subject to the
assumed liabilities, to the Partnership in exchange for partnership interests under Section 721 of the Internal Revenue Code of 1986, as amended (the "Code"); 


        WHEREAS,
in accordance with Section 3.2(d) of the Contribution Agreement and in consideration for the agreement of the Protected Partners to consummate the Transaction, the
parties desire to enter into this Agreement regarding certain tax matters associated with the Transaction; and 



        WHEREAS,
the REIT and the Partnership desire to evidence their agreement regarding amounts that may be payable as a result of certain actions being taken by the Partnership regarding the
deposition of certain of the contributed assets and certain debt obligations of the Partnership and its subsidiaries. 


        NOW,
THEREFORE, in consideration of the premises and the mutual representations, warranties, covenants and agreements contained herein and in the Contribution Agreement, the parties
hereto hereby agree as follows: 


ARTICLE 1

DEFINITIONS  


        To the extent not otherwise defined herein, capitalized terms used in this Agreement have the meanings ascribed to them in the Partnership Agreement (as defined
below). 


        "Annual Gain Amount" means $4,000,000 for each Gain Limitation Year; provided,  however, that the Annual Gain Amount for
the Tax Protection Period ending December 31, 2004, will be prorated based on the number of days from
the Closing Date until the end of such Gain Limitation Year. 


        "Annual Gain Limitation" has the meaning set forth in Section 3.2. 


        "Closing Date" means                            , 2004. 


        "Code" means the Internal Revenue Code of 1986, as amended. 



        "Consent" means the prior written consent to do the act or thing for which the consent is required or solicited, which consent may be
executed by a duly authorized officer or agent of the party granting such consent. 


        "Cumulative Recognized Protected Gain" means, for any Gain Limitation Year, the amount equal to the sum of the Protected Gain recognized
by a Protected Partner in such Gain Limitation Year with respect to the Gain Limitation Properties, plus the Protected Gain recognized by such Protected
Partner in all preceding Gain Limitation Years with respect to the Gain Limitation Properties. 







 



        "Cumulative Unadjusted Protected Gain" means, for any Gain Limitation Year, an amount equal to the Cumulative Recognized Protected Gain
for a Protected Partner with respect to the Gain Limitation Properties, minus the Prior Adjusted Protected Gain for such Protected Partner with respect
to the Gain Limitation Properties. 


        "Deficit Restoration Obligation" or "DRO" means a written obligation by a Protected
Partner to become a "DRO Partner" as defined in the Partnership Agreement. 


        "Excess Protected Gain" means for a Gain Limitation Year, the amount by which the Protected Gain recognized by the Protected Partners, as
a group, with respect to such Gain Limitation Year with respect to the Gain Limitation Properties exceeds the Annual Gain Limitation for such Gain Limitation Year. 



        "Gain Limitation Carry-forward" means, for any Gain Limitation Year, the amount by which: 




	(A)
	the
sum of Annual Gain Amounts for all preceding Gain Limitation Years; 





        exceeds




	(B)
	the
aggregate Protected Gain recognized by the Protected Partners, as a group, with respect to the Gain Limitation Properties with respect to all preceding Gain Limitation Years. 





        "Gain Limitation Property" means (i) each of the properties identified on  Schedule 3.1 hereto as a Gain Limitation Property; (ii) any other properties or
assets hereafter acquired by the Partnership or any direct
or indirect interest owned by the Partnership in any entity that owns an interest in a Gain Limitation Property, if the disposition of that interest would result in the recognition of Protected Gain
by a Protected Partner; and (iii) any other property that the Partnership directly or indirectly receives that is in whole or in part a "substituted basis property" as defined in
Section 7701(a)(42) of the Code with respect to a Gain Limitation Property. 


        "Gain Limitation Year" means a taxable year of the Partnership ending on or before the expiration of the Tax Protection Period. 


        "Guaranteed Amount" means the aggregate amount of each Guaranteed Debt that is guaranteed at any time by Partner Guarantors. 


        "Guaranteed Debt" means any loans incurred (or assumed) by the Partnership or any of its subsidiaries that are guaranteed by Partners
Guarantors at any time after the Closing Date pursuant to Article 4 hereof. 


        "Minimum Liability Amount" means, for each Protected Partner, the amount set forth on  Schedule 4.1 hereto next to such Protected Partner's name. 


        "Nonrecourse Liability" has the meaning set forth in Treasury Regulations § 1.752-1(a)(2). 


        "Partner Guarantors" means those Protected Partners who have guaranteed any portion of the Guaranteed Debt. The Partner Guarantors and
each Partner Guarantor's dollar amount share of the Guaranteed Amount with respect to the Guaranteed Debt is zero as of the Closing Date and will be set forth amended from time to time  Schedule 4.2
hereto. 


        "Partnership" means Kite Realty Group, L.P., a Delaware limited partnership. 


        "Partnership Agreement" means the Amended and Restated Agreement of Limited Partnership of Kite Realty Group, L.P., dated as of
                , 2004 as amended, and as the same may be further amended in accordance with the terms thereof. 



        "Prior Adjusted Protected Gain" for any Gain Limitation Year, the amount of Cumulative Recognized Protected Gain of a Protected Partner
with respect to which reimbursement payments 


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would
have been made to such Protected Partner under Article 5 hereof (computed in accordance with the principles set forth in the parenthetical in the first paragraph of Section 3.1,
not taking into account the limitation therein based upon the actual gain recognized by such Protected Partner). 



        "Protected Gain" shall mean the gain that would be allocable to and recognized by a Protected Partner under Section 704(c) of the
Code in the event of the sale of a Protected Property or Gain Limitation Property in a fully taxable transaction (excluding its corresponding share of "book gain," if any). The initial amount of
Protected Gain with respect to each Protected Partner shall be determined as if the Partnership sold a Protected Property or Gain Limitation Property in a fully taxable transaction on the Closing Date
for consideration equal to the Section 704(c) Value of such Protected Property or Gain Limitation Property on the Closing Date, and is set forth on  Schedule 2.1(b) hereto. Gain that would be
allocated to a Protected Partner upon a sale of a Protected Property or Gain Limitation Property that
is "book gain" (for example, gain attributable to appreciation in the actual value of the Protected Property or Gain Limitation Property following the Closing Date or gain resulting from reductions in
the "book value of the Protected Property or Gain Limitation Property following the Closing Date) would not be considered Protected Gain. (As used in this definition, "book gain" is any gain that
would not be required under Section 704 (c) of the Code and the applicable regulations to be specially allocated to the Protected Partners, but rather would be allocated to all partners
in the Partnership, including the REIT, in accordance with their respective economic interests in the Partnership.) 


        "Protected Partner" means those persons set forth on Schedule 2.1(a) hereto as
"Protected Partners," any person who acquires Units from a Protected Partner in a transaction in which gain or loss is not recognized in whole or in part and in which such transferee's adjusted basis,
as determined for federal income tax purposes, is determined in whole or in part by reference to the adjusted basis of a Protected Partner in such Units. 


        "Protected Property" means (i) each of the properties identified as a Protected Property on  Schedule 2.1(b) hereto; (ii) any other properties or assets
hereafter acquired by the Partnership or direct or indirect interest owned by
the Partnership in any Subsidiary that owns an interest in a Protected Property, if the disposition of such properties, assets or interest would result in the recognition of Protected Gain with
respect to a Protected Property by a Protected Partner; and (iii) any other property that the Partnership directly or indirectly receives that is in whole or in part a "substituted basis
property" as defined in Section 7701(a)(42) of the Code with respect to a Protected Property. 


        "Qualified Guarantee" has the meaning set forth in Section 4.2. 


        "Qualified Guarantee Indebtedness" has the meaning set forth in Section 4.2. 


        "Section 704(c) Value" means the fair market value of any Protected Property or Gain Limitation Property as agreed to by the
Partnership and the Protected Partners and as set forth next to each Protected Property on Schedule 2.1(b) and each Gain Limitation Property on  Schedule 3.1 hereto, as applicable. For purposes of this Agreement, the aggregate Section 704(c) Value for all properties contributed to
the Partnership by the Protected Partners in the Transaction will be the agreed value of the Units to be issued in the Transaction plus the mortgage debt secured by or allocable to such properties
outstanding on the Closing Date. The Section 704(c) Value for each Protected Property and each Gain Limitation Property shall be as determined by agreement between the Protected Partners and
the Partnership pursuant to this Agreement. The Partnership shall initially carry the Protected
Property or Gain Limitation Property on its books at a value equal to the Section 704(c) Value as set forth above. 


        "Subsidiary" means any entity in which the Partnership owns a direct or indirect interest that owns a Protected Property or a Gain
Limitation Property on the Closing Date, after giving effect to the 


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Transaction,
or that thereafter is a successor to the Partnership's direct or indirect interests in a Protected Property or Gain Limitation Property. 



        "Tax Protection Period" means the period commencing on the Closing Date and ending at 12:01 AM on January 1, 2017;  provided, however, that with respect to a Protected Partner, the Tax Protection Period shall terminate
at such time as such Protected Partner disposes of 50% or more of the Units received, directly or indirectly, in the Transaction by such Protected Partner. 


        "Total Unadjusted Protected Gain" means, for any Gain Limitation Year, the sum of the Cumulative Unadjusted Protected Gain amounts for all
Protected Partners with respect to the Gain Limitation Properties. 


        "Unadjusted Protected Gain Percentage" means, for any Gain Limitation Year, the percentage obtained by dividing such Protected Partner's
Cumulative Unadjusted Protected Gain by the Total Unadjusted Protected Gain for such Gain Limitation Year and multiplying such quotient by 100. 


        "Units" means class A units of limited partnership interest of the Partnership, as described in the Partnership Agreement. 


ARTICLE 2

RESTRICTIONS ON DISPOSITIONS OF

PROTECTED PROPERTIES  


        2.1    General Prohibition on Disposition of Protected Properties.    The Partnership agrees for the benefit of each
Protected Partner, for the term of the Tax Protection Period, not to directly or indirectly sell, exchange, transfer, or otherwise dispose of a Protected Property or any interest therein (without
regard
to whether such disposition is voluntary or involuntary) in a transaction that would cause any of the Protected Partners to recognize any remaining Protected Gain. 



        Without
limiting the foregoing, the term "sale, exchange, transfer or disposition" by the Partnership shall be deemed to include, and the prohibition shall extend to: 




	(a)
	any
direct or indirect disposition by any direct or indirect Subsidiary of any Protected Property or any interest therein;



	(b)
	any
direct or indirect disposition by the Partnership of any Protected Property (or any direct or indirect interest therein) that is subject to Section 704(c)(1)(B) of the Code
and the Treasury Regulations thereunder; and



	(c)
	any
distribution by the Partnership to a Protected Partner that is subject to Section 737 of the Code and the Treasury Regulations thereunder; 





        Without
limiting the foregoing, a disposition shall include any transfer, voluntary or involuntary, by the Partnership or any Subsidiary in a foreclosure proceeding, pursuant to a deed
in lieu of foreclosure, or in a bankruptcy proceeding. 


        Notwithstanding
the foregoing, this Section 2.1 shall not apply to a voluntary, actual disposition by a Protected Partner of Units in connection with a merger or consolidation of
the Partnership pursuant to which (1) the Protected Partner is offered either cash or property treated as cash pursuant to Section 731 of the Code ("Cash Consideration") or partnership
interests in a partnership that would be treated as the continuing partnership under the principles of Section 708 of the Code and the receipt of such partnership interests would not result in
the recognition of gain for federal income tax purposes by the Protected Partner ("Partnership Interest Consideration"); (2) the Protected Partner has the ability to elect to receive solely
Partnership Interest Consideration in exchange for his Units and the continuing partnership has agreed in writing to assume the obligations of the Partnership under this Agreement; (3) no
Protected Gain is recognized by the Partnership as a result of any partner of the 


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Partnership
receiving Cash Consideration; and (4) the Protected Partner elects to receive Cash Consideration. 


        2.2    Exceptions Where No Gain Recognized.    Notwithstanding the restriction set forth in Section 2.1, the
Partnership or any Subsidiary may dispose of any Protected Property (or any interest therein) if such disposition qualifies as a like-kind exchange under Section 1031 of the Code,
or an involuntary conversion under Section 1033 of the Code, or other transaction (including, but not limited to, a contribution of property to any entity that qualifies for the
non-recognition of gain under Section 721 or Section 351 of the Code, or a merger or consolidation of the Partnership with or into another entity that qualifies for taxation
as a "partnership" for federal income tax purposes (a "Successor Partnership")) that, as to each of the foregoing, does not result in the recognition of any taxable income or gain to any Protected
Partner with respect to any of the Units; provided, however, that: 




	(a)
	in
the case of a Section 1031 like-kind exchange, if such exchange is with a "related party" within the meaning of Section 1031(f)(3) of the Code, any direct
or indirect disposition by such related party of the Protected Property or any other transaction prior to the expiration of the two (2) year period following such exchange that would cause
Section 1031(f)(1) to apply with respect to such Protected Property (including by reason of the application of Section 1031(f)(4)) shall be considered a violation of Section 2.1
by the Partnership; and



	(b)
	in
the event that at the time of the exchange or other disposition the Protected Property is secured, directly or indirectly, by indebtedness that is guaranteed by a Protected Partner
(or for which a Protected Partner otherwise has personal liability) and that is not then in default and the transferee is not a Subsidiary of the Partnership that both is more than 50% owned, directly
or indirectly by the Partnership and is and will continue to be under the legal control of the Partnership (which shall include a partnership or limited liability company in which the Partnership or a
wholly owned subsidiary of the Partnership is the sole managing general partner or sole managing member, as applicable), (a) either
(I) such indebtedness shall be repaid in full or (II) the Partnership shall obtain from the lenders with respect to such indebtedness a full and complete release of liability for each of
the Protected Partners that has guaranteed, or otherwise has liability for, such indebtedness, and (b) if such indebtedness is a Guaranteed Debt and the Tax Protection Period shall not have
expired, the Partnership shall comply with its covenants set forth in Article 4 below with respect to such Guaranteed Debt and the Partner Guarantors that are considered to have liability for
such Guaranteed Debt (determined under Section 4.4 treating such events as a repayment of the Guaranteed Debt). 




ARTICLE 3

RESTRICTIONS ON DISPOSITIONS OF

GAIN LIMITATION PROPERTIES  


        3.1    Restrictions on Disposition of Gain Limitation Properties.    The Partnership agrees for the benefit of each
Protected Partner, for the term of the Tax Protection Period, not to directly or indirectly sell, exchange, transfer, or otherwise dispose of a Gain Limitation Property or any interest therein
(without regard to whether such disposition is voluntary or involuntary) in a transaction that would cause the Protected Partners in the aggregate to recognize any Protected Gain in excess of the
Annual Gain Limitation. (For purposes of this Article 3, the Protected Gain recognized by each of the Protected Partners shall be deemed equal to the gain that would have been recognized
without giving effect to any adjustment in basis that results with respect to the indirect interest of such Protected Partner in such Protected Property, it being intended that the Annual Gain
Limitation and the related 


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definitions
are to be applied to the Protected Partners as a group before giving effect to basis adjustments. For example, and as an illustration only, if a Protected Partner who would have recognized
$1,500,000 of gain with respect to the sale of a Protected Property has died, the Annual Gain Limitation and the related definitions shall still be computed and applied as if such gain were recognized
by such Protected Partner, notwithstanding the adjustment to tax basis that occurs with respect to such Protected Partner's indirect interest in the Protected Property that occurs upon the death of
such Protected Partner.) 


        Without
limiting the foregoing, the term "sale, exchange, transfer or disposition" by the Partnership shall be deemed to include: 




	(a)
	any
direct or indirect disposition by any direct or indirect Subsidiary of any Gain Limitation Property or any interest therein;



	(b)
	any
direct or indirect disposition by the Partnership of any Gain Limitation Property (or any direct or indirect interest therein) that is subject to Section 704(c)(1)(B) of
the Code and the Treasury Regulations thereunder; and



	(c)
	any
distribution by the Partnership to a Protected Partner that is subject to Section 737 of the Code and the Treasury Regulations thereunder; 





        Without
limiting the foregoing, a disposition shall include any transfer, voluntary or involuntary, by the Partnership or any Subsidiary in a foreclosure proceeding, pursuant to a deed
in lieu of foreclosure, or in a bankruptcy proceeding. The exceptions set forth in Section 2.2 with respect to the Protected Properties shall apply for purposes of this Article 3 with
respect to the Gain Limitation Properties, subject to the limitations set forth in Section 2.2. 



        Notwithstanding
the foregoing, this Section 2.1 shall not apply to a voluntary, actual disposition by a Protected Partner of Units in connection with a merger or consolidation of
the Partnership pursuant to which (1) the Protected Partner is offered either cash or property treated as cash pursuant to Section 731 of the Code ("Cash Consideration") or partnership
interests in a partnership that would be treated as the continuing partnership under the principles of Section 708 of the Code and the receipt of such partnership interests would not result in
the recognition of gain for federal income tax purposes by the Protected Partner ("Partnership Interest Consideration"); (2) the Protected Partner has the ability to elect to receive solely
Partnership Interest Consideration in exchange for his Units and the continuing partnership has agreed in writing to assume the obligations of the Partnership under this Agreement; (3) no
Protected Gain is recognized by the Partnership as a result of any partner of the Partnership receiving Cash Consideration; and (4) the Protected Partner elects to receive Cash Consideration. 


        3.2    Annual Gain Limitation.    For each Gain Limitation Year, the Annual Gain Limitation will be the sum of the
Annual Gain Amount, plus the Gain Limitation Carry-forward, provided that (i) for each Gain Limitation Year ending on or prior to December 31, 2011, the Annual Gain Limitation shall not
exceed $10,000,000, and (ii) for each Gain Limitation Year beginning after December 31, 2011, the Annual Gain Limitation shall not exceed $20,000,000. 


        3.3    Allocation of Excess Protected Gain among Protected Partners.    For each Gain Limitation Year, the Excess
Protected Gain (computed in accordance with the principles set forth in the parenthetical in the first paragraph of Section 3.1) will be allocated among Protected Partners in proportion to
their Unadjusted Protected Gain Percentages (computed in accordance with the principles set forth in the parenthetical in the first paragraph of Section 3.1) for purposes of determining the
amount of Protected Gain recognized by a Protected Partner that is subject to reimbursement pursuant to Article 5 hereof (for purpose of Article 5, the calculations of gain recognized by
a Protected Partner and the reimbursement required shall be based upon the actual gain recognized by such Protected Partner without regard to the principles set forth in the parenthetical in the first
paragraph of 


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Section 3.1).
Specifically, for each Gain Limitation Year, the amount of Protected Gain for which a Protected Partner may be reimbursed under Article 5 hereof will equal the product of
(a) the Protected Partner's Unadjusted Protected Gain Percentage (computed in accordance with the principles set forth in the parenthetical in the first paragraph of Section 3.1),  multiplied by(b) the Excess Protected Gain for such Gain Limitation Year (computed in accordance with the principles set forth in the
parenthetical in the first paragraph of Section 3.1); provided, however, that no Protected Partner shall be considered for purposes of
Article 5 to have recognized an amount of Protected Gain for a Gain Limitation Year that exceeds the Protected Gain actually recognized by such Protected Partner with respect to such Gain
Limitation Year (computed in accordance with the principles set forth in the parenthetical in the first paragraph of Section 3.1), and provided further,
that the Protected Gain for which other Protected Partners are entitled to reimbursement shall be increased by the portion of the Excess Protected Gain for such year not
allocated to Protected Partners by reason of such limitation (with such allocation to be in accordance with the Protected Gain recognized by the Protected Partners not subject to such limitation).  Schedule 3.3 hereto sets forth an example that illustrates the application of this Section 3.3. 


ARTICLE 4

ALLOCATION OF LIABILITIES; GUARANTEE OPPORTUNITY AND DEFICIT

RESTORATION OBLIGATIONS  


        4.1    Minimum Liability Allocation.    During the Tax Protection Period, the Partnership will offer to each Protected
Partner the opportunity either (i) to enter into Qualified Guarantees of Qualified Guarantee Indebtedness or (ii) to enter into a Deficit Restoration Obligation, in such amount or
amounts so as to cause the amount of partnership liabilities allocated to such Protected Partner for purposes of Section 752 of the Code to be not less than such Protected Partner's Minimum
Liability Amount and to cause the amount of partnership liabilities with respect to which such Protected Partner will be considered to be "at risk" for purposes of Section 465 of the Code to be
not less than such Protected Partner's Minimum Liability Amount, as provided in this Article 4. In order to minimize the need for Protected Partners to enter into Qualified Guarantees or DROs,
the Partnership will use the optional method under Treasury Regulations Section 1.752-3(a)(3) to allocate Nonrecourse Liabilities considered secured by a Protected Property or Gain
Limitation Property to the Protected Partners to the extent that the "built-in gain" with respect to those properties exceeds the amount of the Nonrecourse Liabilities considered secured
by such Protected Property or Gain Limitation Property allocated to the Protected Partners under Treasury Regulations Section 1.752-3(a)(2). 


        4.2    Qualified Guarantee Indebtedness and Qualified Guarantee; Treatment of Qualified Guarantee Indebtedness as Guaranteed
Debt.    In order for an offer by the Partnership of an opportunity to guarantee indebtedness to satisfy the requirements of this Article 4, (1) the
indebtedness to be guaranteed must satisfy all of the conditions set forth in this Section 4.2 (indebtedness satisfying all such conditions is referred to as "Qualified Guarantee
Indebtedness"); (2) the guarantee by the Partner Guarantors must be pursuant to a Guarantee Agreement substantially in the form attached hereto as  Schedule 4.7 that satisfies the conditions
set forth in Sections 4.2(i) and (iii) (a "Qualified Guarantee"); (3) the amount
of debt required to be guaranteed by the Partner Guarantor must not exceed the portion of the Guaranteed Amount for which a replacement guarantee is being offered; and (4) the debt to be
guaranteed must be considered indebtedness of the Partnership for purposes of determining the adjusted tax basis of the interests of partners in the Partnership in their partnership interests. If, and
to the extent that, a Partner Guarantor elects to guarantee Qualified Guarantee Indebtedness pursuant to an offer made in accordance with this Article 4, such indebtedness thereafter shall be
considered a Guaranteed Debt and subject to all of this Article 4. The conditions that must be satisfied 


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at
all times with respect to any additional or replacement Guaranteed Debt offered pursuant to this Article 4 hereof and the guarantees with respect thereto are as follows: 




	(i)
	each
such guarantee shall be a "bottom dollar guarantee" in that the lender for the Guaranteed Debt is required to pursue all other collateral and security for the
Guaranteed Debt (other than any "bottom dollar guarantees" permitted pursuant to this clause (i) and/or Section 4.3 below) prior to seeking to collect on such a guarantee, and the lender
shall have recourse against the guarantee only if, and solely to the extent that, the total amount recovered by the lender with respect to the Guaranteed Debt after the lender has exhausted its
remedies as set forth above is less than the aggregate of the Guaranteed Amounts with respect to such Guaranteed Debt (plus the aggregate amounts of any other guarantees (x) that are in effect
with respect to such Guaranteed Debt at the time the guarantees pursuant to this Article 4 are entered into, or (y) that are entered into after the date the guarantees pursuant to this
Article 4 are entered into with respect to such Guaranteed Debt and that comply with Section 4.5 below, but only to the extent that, in either case, such guarantees are "bottom dollar
guarantees" with respect to the Guaranteed Debt), and the maximum aggregate liability of each Partner Guarantor for all Guaranteed Debt shall be limited to the amount actually guaranteed by such
Partner Guarantor;



	(ii)
	the
fair market value of the collateral against which the lender has recourse pursuant to the Guaranteed Debt, determined as of the time the guarantee is entered into
(an independent appraisal relied upon by the lender in making the loan shall be conclusive evidence of such fair market value when the guarantee is being entered into in connection with the closing of
such loan), shall not be less than 150% of the sum of (x) the aggregate of the Guaranteed Amounts with respect to such Guaranteed Debt, plus (y) the dollar amount of any other
indebtedness that is senior to or pari passu with the Guaranteed Debt and as to which the lender thereunder has recourse against property that is collateral of the Guaranteed Debt, plus (z) the
aggregate amounts of any other guarantees (A) that are in effect with respect to such Guaranteed Debt at the time the guarantees pursuant to this Article 4 are entered into with respect
to such Guaranteed Debt and that comply with Section 4(e) below, but only to the extent that such guarantees are "bottom dollar guarantees with respect to the Guaranteed Debt);



	(iii)
	(A)
the executed guarantee must be delivered to the lender and (B) the execution of the guarantee by the Partner Guarantors must be acknowledged by the lender
as an inducement to it to make a new loan, to continue an existing loan (which continuation is not otherwise required), or to grant a material consent under an existing loan (which consent is not
otherwise required to be granted) or, alternatively, the guarantee otherwise must be enforceable under the laws of the state governing the loan and in which the property securing the loan is located
or in which the lender has a significant place of business (with any bona fide branch or office of the lender through which the loan is made, negotiated, or administered being deemed a "significant
place of business" for the purposes hereof);



	(iv)
	as
to each Partner Guarantor that is executing a guarantee pursuant to this Agreement, there must be no other Person that would be considered to "bear the economic risk
of loss," within the meaning of Treasury Regulation § 1.752-2, or would be considered to be "at risk" for purposes of Section 465(b) with respect to that portion of such
debt for which such Partner Guarantor is being made liable for purposes of satisfying the Partnership's obligations to such Partner Guarantor under this Article 4; 




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	(v)
	the
aggregate Guaranteed Amounts with respect to the Guaranteed Debt will not exceed 25% of the amount of the Guaranteed Debt outstanding at the time the guarantee is
executed. Except for guarantees already in place at the time a guarantee opportunity is presented to the Protected Partners, at no time can there be guarantees with respect to the Guaranteed Debt that
are provided by other persons that are "pari passu" with or at a lower level of risk than the guarantees provided by the Protected Partners. If there are guarantees already in place at the time a
guarantee opportunity is presented to the Protected Partners that are "pari passu" with or at a lower level of risk than the guarantees provided by the Protected Partners, then the amount of
Guaranteed Debt subject to such existing guarantees shall be added to the Guaranteed Amount for purposes of calculating the 25% limitation set forth in this Section 4.2(v); and



	(vi)
	the
obligor with respect to the Guaranteed Debt is the Partnership or an entity which is and will continue to be under the legal control of the Partnership (which shall
include a partnership or limited liability company in which the Partnership or a wholly-owned subsidiary of the Partnership is the sole managing general partner or sole managing member, as
applicable). 





        4.3    Covenant With Respect to Guaranteed Debt Collateral.    The Partnership covenants with the Partner Guarantors
with respect to the Guaranteed Debt that (A) it will comply with the requirements set forth in Section 2.2(b) upon any disposition of any collateral for a Guaranteed Debt, whether during
or following the Guarantee Protection Period, and (B) it will not at any time, whether during or following the Guarantee Protection Period, pledge the collateral with respect to a Guaranteed
Debt to secure any other indebtedness (unless such other indebtedness is, by its terms, subordinate in all respects to the Guaranteed Debt for which such collateral is security) or otherwise
voluntarily dispose of or reduce the amount of such collateral unless either (i) after giving effect thereto the conditions in Section 4.2(ii) would continue to be satisfied with
respect to the Guaranteed Debt and the Guaranteed Debt otherwise would continue to be Qualified Guarantee Indebtedness, or (ii) the Partnership (A) obtains from the lender with respect
to the original Guaranteed Debt a full and complete release of any Partner Guarantor unless the Partner Guarantor expressly requests that it not be released, and (B) if the Tax Protection
Period has not expired, offers to each Partner Guarantor with respect to such original Guaranteed Debt, not less than 30 days prior to such pledge or disposition, the opportunity either
(1) to enter into a Qualified Guarantee of other the Partnership indebtedness that constitutes Qualified Guarantee Indebtedness (with such replacement indebtedness thereafter being considered a
Guaranteed Debt and subject to this Article 4) in an amount equal to the amount of such original Guaranteed Debt that was guaranteed by such Partner Guarantor or (2) to enter into a DRO
in the amount of the original Guaranteed Debt that was guaranteed by such Partner Guarantor. 


        4.4    Repayment or Refinancing of Guaranteed Debt.    The Partnership shall not, at any time during the Tax
Protection Period applicable to a Partner Guarantor, repay or refinance all or any portion of any Guaranteed Debt unless (i) after taking into account such repayment, each Partner Guarantor
would be entitled to include in its basis for its Units an amount of Guaranteed Debt equal to its Minimum Liability Amount, or (ii) alternatively, the Partnership, not less than 30 days
prior to such repayment or refinancing, offers to the applicable Partner Guarantors the opportunity either (A) to enter into a Qualified Guarantee with respect to other Qualified Guarantee
Indebtedness or (B) to enter into a DRO, in either case in an amount sufficient so that, taking into account such guarantees of such other Qualified Guarantee Indebtedness or DRO, as
applicable, each Partner Guarantor who guarantees such other Qualified Guarantee Indebtedness or enters into a DRO in the amount specified by the Partnership would be entitled to include in its
adjusted tax basis for its Units debt equal to the Minimum Liability Amount for such Partner Guarantor. 


        4.5    Limitation on Additional Guarantees With Respect to Debt Secured by Collateral for Guaranteed Debt.    The
Partnership shall not offer the opportunity or make available to any person or entity other 


9







 



than
a Protected Partner a guarantee of any Guaranteed Debt or other debt that is secured, directly or indirectly, by any collateral for Guaranteed Debt unless (i) such debt by its terms is
subordinate in all respects to the Guaranteed Debt or, if such other guarantees are of the Guaranteed Debt itself, such guarantees by their terms must be paid in full before the lender can have
recourse to the Partner Guarantors (i.e., the first dollar amount of recovery by the applicable lenders must be applied to the Guaranteed Amount); provided
that the foregoing shall not apply with respect to additional guarantees of Guaranteed Debt so long as the conditions set forth in Sections 4.2(ii) and (v) would
be satisfied immediately after the implementation of such additional guarantee (determined in the case of Section 4.2(ii), based upon the fair market value of the collateral for such Guaranteed
Debt at the time the additional guarantee is entered into and adding the amount of such additional guarantee(s) to the sum of the applicable Guaranteed Amounts plus any other preexisting "bottom
dollar guarantee" previously permitted pursuant to this Section 4.5 or Sections 4.2(i) and (ii) above, for purposes of making the computation provided for in
Section 4.2(ii)), and (ii) and such other guarantees do not have the effect of reducing the amount of the Guaranteed Debt that is includible by any Partner Guarantor in its adjusted tax
basis for its Units pursuant to Treasury Regulation § 1.752-2. 


        4.6    Process.    Whenever the Partnership is required under this Article 4 to offer to one or more of the
Partner Guarantors an opportunity either to guarantee Qualified Guarantee Indebtedness or enter into a DRO, the Partnership shall be considered to have satisfied its obligation if the other conditions
in this Article 4 are satisfied and, not less than thirty (30) days prior to the date that such guarantee would be required to be executed in order to satisfy this Article 4, the
Partnership sends by first class mail, return receipt requested, to the last known address of each such Partner Guarantor (as reflected in the records of the Partnership) the Guarantee Agreement or
DRO, as applicable, to be executed (which in the case of Guarantee Agreement shall be substantially in the form of Schedule 4.7 hereto, with such
changes thereto as are necessary to reflect the relevant facts) and a brief letter explaining the relevant circumstances (including, as applicable, that the offer is being made pursuant to this
Article 4, the circumstances giving rise to the offer, a brief summary of the terms of the Qualified Guarantee Indebtedness to be guaranteed, a brief description of the collateral for the
Qualified Guarantee Indebtedness, a statement of the amount to be guaranteed, the address to which the executed
Guarantee Agreement or DRO, as applicable, must be sent and the date by which it must be received, and a statement to the effect that, if the Protected Partner fails to execute and return such
Agreement within the time period specified, the Partner Guarantor thereafter would lose its rights under this Article 4 with respect to the amount of debt that the Partnership is required to
offer to be guaranteed or made available for the DRO, and depending upon the Partner Guarantor's circumstances and other circumstances related to the Partnership, the Partner Guarantor could be
required to recognize taxable gain as a result thereof, either currently or prior to the expiration of the Tax Protection Period, that otherwise would have been deferred). If a notice is properly sent
in accordance with this procedure, the Partnership shall have not responsibility as a result of the failure of a Partner Guarantor either to receive such notice or to respond thereto within the
specified time period. 


        4.7    Presumption as to Schedule 4.7.    The form of the Guarantee Agreement attached hereto as  Schedule 4.7 shall be
conclusively presumed to satisfy the conditions set forth in Section 4.2(i) and to have caused the Guaranteed
Debt to be considered allocable to the Guarantor Partner who enters into such Guarantee Agreement pursuant to Treasury Regulation § 1.752-2 and Section 465 of the Code
so long as all of the following conditions are met with respect such Guaranteed Debt: 




	(i)
	there
are no other guarantees in effect with respect to such Guaranteed Debt (other than the guarantees contemporaneously being entered into by the Partner Guarantors
pursuant to this Article 4); 




10







 


	(ii)
	the
collateral securing such Guaranteed Debt is not, and shall not thereafter become, collateral for any other indebtedness that is senior to or pari passu with such
Guaranteed Debt;



	(iii)
	no
additional guarantees with respect to such Guaranteed Debt will be entered into during the applicable Tax Protection Period pursuant to the  proviso set forth in Section 4.3;



	(iv)
	the
lender with respect to such Guaranteed Debt is not the Partnership, any Subsidiary or other entity in which the Partnership owns a direct or indirect interest, the
REIT, any other partner in the Partnership, or any person related to any partner in the Partnership as determined for purposes of Treasury Regulation § 1.752-2 or any person
that would be considered a "related party" as determined for purposes of Section 465 of the Code; and



	(v)
	none
of the REIT, nor any other partner in the Partnership, nor any person related to any partner in the Partnership as determined for purposes of Treasury Regulation
§ 1.752-2 shall have provided, or shall thereafter provide, collateral for, or otherwise shall have entered into, or shall thereafter enter into, a relationship that would
cause such person or entity to be considered to bear the risk of loss with respect to such Guaranteed Debt, as determined for purposes of Treasury Regulation § 1.752-2 or that
would cause such entity to be considered "at risk" with respect to such Guaranteed Debt, as determined for purposes of Section 465 of the Code. 





        4.8    Deficit Restoration Obligation.    The Partnership will maintain an amount of indebtedness of the Partnership
that would be considered "recourse" indebtedness (taking into account all of the facts and circumstances related to the indebtedness, the Partnership and the General Partner) equal to or greater than
the sum of the "DRO Amounts" (as defined in the Partnership Agreement) of all Protected Partners (plus, the DRO Amounts, if any, of other partners in the Partnership). The deficit restoration
obligation shall be conclusively presumed to cause the Protected Partner to be allocated an amount of liabilities equal to the DRO Amount of such Protected Partner for purposes of Sections 465 and 752
of the Code, provided that (1) the Partnership maintains an amount of debt that is considered "recourse" indebtedness (determined for purposes of
Section 752 of the Code and taking into account all of the facts and circumstances related to the indebtedness, the Partnership and the General Partner) equal to the aggregate DRO Amounts of
all partners of the Partnership and (2) all other terms and conditions of the Partnership Agreement with respect to such deficit restoration obligation are met. 



        4.9    Additional Guarantee and DRO Opportunities.    Without limiting any of the other obligations of the Partnership
under this Agreement, from and after the expiration of the Tax Protection Period, the Partnership shall, upon a request from a Protected Partner, use commercially reasonable efforts to permit such
Protected Partner to enter into an agreement with the Partnership to bear the economic risk of loss as to a portion of the Partnership's recourse indebtedness by undertaking an obligation to restore a
portion of its negative capital account balance upon liquidation of such Protected Partner's interest in the Partnership and/or to bear financial liability under a Guarantee Agreement substantially in
the form of Schedule F hereto for indebtedness that would be considered Qualifying Guarantee Indebtedness under Section 4.2 hereof, if
such Protected Partner shall provide information from its professional tax advisor satisfactory to the Partnership showing that, in the absence of such agreement, such Protected Partner likely would
not be allocated from the Partnership sufficient indebtedness under Section 752 of the Code and the at-risk provisions under Section 465 of the Code to avoid the recognition
of gain (other than gain required to be recognized by reason of actual cash distributions from the Partnership). The Partnership and its professional tax advisors shall cooperate in good faith with
such Protected Partner and its professional tax advisors to provide such information regarding the allocation of the Partnership liabilities and the nature of such liabilities as is reasonably
necessary in order to determine the Protected Partner's adjusted tax basis in its Units and at-risk amount. If the 


11







 



Partnership
permits a Protected Partner to enter into an agreement under this Section 4.9, the Partnership shall be under no further obligation with respect thereto, and the Partnership shall
not be required to indemnify such Protected Partner for any damage incurred, in connection with or as a result of such agreement or the indebtedness, including without limitation a refinancing or
prepayment thereof or taking any of the other actions required by Article 4 hereof with respect to Qualified Indebtedness. 


ARTICLE 5

REMEDIES FOR BREACH  


        5.1    Monetary Damages.    In the event that the Partnership breaches its obligations set forth in Article 2,
Article 3, Article 4 or Article 7 with respect to a Protected Partner the Protected Partner's sole right shall be to receive from the Partnership, and the Partnership shall pay to
such Protected Partner as damages, an amount equal to: 




	(a)
	in
the case of a violation of Articles 4 or 7, the aggregate federal, state and local income taxes incurred by the Protected Partner as a result of the income or gain allocated to, or
otherwise recognized by, such Protected Partner with respect to its Units by reason of such breach;



	(b)
	in
the case of a violation of Article 2, the aggregate federal state, and local income taxes incurred with respect the Protected Gain incurred with respect to the Protected
Property that is allocable to such Protected Partner under the Partnership Agreement;



	(c)
	in
the case of a violation of Article 3, the aggregate federal state, and local income taxes incurred with respect the Excess Protected Gain incurred with respect to the Gain
Limitation Property that is allocable to such Protected Partner under the Partnership Agreement and Section 3.3 hereof (computed without regard to the principles set forth in the parenthetical
in the first paragraph of Section 3.1); 





plus in the case of either (a), (b) or (c), an amount equal to the aggregate federal, state, and local income taxes payable by the Protected
Partner as a result of the receipt of any payment required under this Section 5.1. 


        For
purposes of computing the amount of federal, state, and local income taxes required to be paid by a Protected Partner, (i) any deduction for state income taxes payable as a
result thereof actually allowed in computing federal income taxes shall be taken into account, and (ii) a Protected Partner's tax liability shall be computed using the highest federal, state
and local marginal income tax rates that would be applicable to such Protected Partner's taxable income (taking into account the character and type of such income or gain) for the year with respect to
which the taxes must be paid, without regard to any deductions, losses or credits that may be available to such Protected Partner that would reduce or offset its actual taxable income or actual tax
liability if such deductions, losses or credits could be utilized by the Protected Partner to offset other income, gain or taxes of the Protected Partner, either in the current year, in earlier years,
or in later years). 


        5.2    Process for Determining Damages.    If the Partnership has breached or violated any of the covenants set forth
in Article 2, Article 3, Article 4 or Article 7 (or a Protected Partner asserts that the Partnership has breached or violated any of the covenants set forth in
Article 2, Article 3, Article 4 or Article 7), the Partnership and the Protected Partner agree to negotiate in good faith to resolve any disagreements regarding any such
breach or violation and the amount of damages, if any, payable to such Protected Partner under Section 5.1 (and to the extent applicable, Sections 5.4 and/or 5.5). If any such disagreement
cannot be resolved by the Partnership and such Protected Partner within sixty (60) days after the receipt of notice from the Partnership of such breach and the amount of income to be recognized
by reason thereof, the Partnership and the Protected Partner shall jointly retain a 


12







 



nationally
recognized independent public accounting firm ("an Accounting Firm") to act as an arbitrator to resolve as expeditiously as possible all points of any such disagreement (including, without
limitation, whether a breach of any of the covenants set forth Article 2, Article 3, Article 4, Article 7, or Article 8 has occurred and, if so, the amount of
damages to which the Protected Partner is entitled as a result thereof, determined as set forth in Section 5.1 (and to the extent applicable, Section 5.4 and/or 5.5). All determinations
made by the Accounting Firm with respect to the resolution of any breach or violation of any of the covenants set forth in Article 2, Article 3, Article 4 or Article 7 and
the amount of damages payable to the Protected Partner under Section 5.1 (and to the extent applicable, Section 5.4 and/or 5.5) shall be final, conclusive and binding on the Partnership
and the Protected Partner. The fees and expenses of any Accounting Firm incurred in connection with any such determination shall be shared equally by the Partnership and the Protected Partner,  provided that if the amount determined by the Accounting Firm to be owed by the Partnership to the Protected Partner is more than five percent (5%)
higher than the amount proposed by the Partnership to be owed to such Protected Partner prior to the submission of the matter to the Accounting Firm, then all of the fees and expenses of any
Accounting Firm incurred in connection with any such determination shall be paid by the Partnership and if the amount determined by the Accounting Firm to be owed by the Partnership to the Protected
Partner is more than five percent (5%) less than the amount proposed by the Partnership to be owed to such Protected Partner prior to the submission of the matter to the Accounting Firm, then all of
the fees and expenses of any Accounting Firm incurred in connection with any such determination shall be paid by the Protected Partner. 


        5.3    Required Notices; Time for Payment.    In the event that there has been a breach of Article 2,
Article 3, Article 4 or Article 7 the Partnership shall provide to the Protected Partner notice of the transaction or event giving rise to such breach not later than at such time
as the Partnership provides to the Protected Partners the Schedule K-1's to the Partnership's federal income tax return as required in accordance with Section 8.4 below. All
payments required under this Article 5 to any Protected Partner shall be made to such Protected Partner on or before April 15 of the year following the year in which the gain recognition
event giving rise to such payment took place; provided that, if the Protected Partner is required to make estimated tax payments that would include such
gain, the Partnership shall make a payment to the Protected Partner on or before the due date for such estimated tax payment and such payment from the partnership shall be in an amount that
corresponds to the amount of the estimated tax being paid by such Protected Partner at such time. In the event of a payment required after the date required pursuant to this Section 5.3,
interest shall accrue on the aggregate amount required to be paid from such date to the date of actual payment at a rate equal to the "prime rate" of interest, as published in the Wall Street Journal
(or if no longer published there, as announced by Citibank) effective as of the date the payment is required to be made. 


        5.4    Additional Damages for Breaches of Section 2.2(b), Section 4.2 and/or
Section 4.3.    Notwithstanding any of the foregoing in this Article 5, in the event that the Partnership should breach any of its covenants set forth
in Section 2.2(b), Section 4.2 and/or Sections 4.3 (i), (ii) and/or (iii) and a Protected Partner is required to make a payment in respect of such indebtedness that it
would not have had to make if such breach had not occurred (an "Excess Payment"), then, in addition to the damages provided for in the other Sections of this Article 5, the Partnership shall
pay to such Protected Partner an amount equal to the sum of (i) the Excess Payment plus (ii) the aggregate federal, state and local income taxes, if any, computed or set forth in
Section 5.1, required to be paid by such Protected Partner by reason of Section 5.4 becoming operative (for example, because the breach by the Partnership and this Section 5.4
caused all or any portion of the indebtedness in question no longer to be considered debt includible in basis by the affected Protected Partner pursuant to Treasury Regulations §
1.752-2(a)), plus (iii) an amount equal to the aggregate federal, state and local income taxes required to be paid by the Protected Partner (computed as set forth in
Section 5.1) as a result of any payment required under this Section 5.4. 


13







 
ARTICLE 6

SECTION 704(C) METHOD AND ALLOCATIONS  


        6.1    Application of "Traditional Method."    Notwithstanding any provision of the Partnership Agreement, the
Partnership shall use the "traditional method" under Regulations § 1.704-3(b) for purposes of making all allocations under Section 704(c) of the Code (with no "curative
allocations" to offset the effects of the "ceiling rule," including upon any sale of a Protected Property or Gain Limitation Property). 


ARTICLE 7

ALLOCATIONS OF LIABILITIES PURSUANT TO REGULATIONS UNDER

SECTION 752  


        7.1    Allocation Methods to be Followed.    Except as provided in Section 7.2, all tax returns prepared by the
Partnership with respect to the Protected Period (and to the extent arrangements have been entered into pursuant to Section 4.9, for so long thereafter as such arrangements are in effect) that
allocate liabilities of the Partnership for purposes of Section 752 and the Treasury Regulations thereunder shall treat each Partner Guarantor as being allocated for federal income tax purposes
an amount of recourse debt (in addition to any nonrecourse debt otherwise allocable to such Partner Guarantor in accordance
with the Partnership Agreement and Treasury Regulations § 1.752-3 and any other recourse liabilities allocable to such Partner Guarantor by reason of guarantees of indebtedness
or DROs entered into pursuant other agreements with the Partnership) pursuant to Treasury Regulation § 1.752-2 equal to such Partner Guarantor's Minimum Liability Amount, as
set forth on Schedule B hereto and as may be reduced pursuant to the terms of this Agreement, and the Partnership and the REIT shall not, during
or with respect to the Protected Period, take any contrary or inconsistent position in any federal or state income tax returns (including, without limitation, information returns, such as Forms
K-1, provided to partners in the Partnership and returns of Subsidiaries of the Partnership) or any dealings involving the Internal Revenue Service (including, without limitation, any
audit, administrative appeal or any judicial proceeding involving the income tax returns of the Partnership or the tax treatment of any holder of partnership interests the Partnership). 



        7.2    Exception to Required Allocation Method.    Notwithstanding the provisions of this Agreement, the Partnership
shall not be required to make allocations of Guaranteed Debt or other recourse debt of the Partnership to the Protected Partners as set forth in this Agreement if and to the extent that the
Partnership determines in good faith that there may not be "substantial authority" (within the meaning of Section 6662(d)(2)(B)(i)) of the Code for such allocation;  provided that the Partnership
shall provide to each Protected Partner (or in the event of their death or disability, their executor, guardian or
custodian, as applicable), notice of such determination and if, within forty-five (45) days after the receipt thereof, the Partnership is provided an opinion of a law firm
recognized as expert in such matters or a nationally recognized public accounting firm to the effect that there is "substantial authority" (within the meaning of
Section 6662(d)(2)(B)(i) of the Code) for such allocations, the Partnership shall continue to make allocations of Guaranteed Debt or other recourse debt of the Partnership to the
Protected Partners as set forth in this Agreement; provided further that if there shall have been a judicial determination in a proceeding to which the
Partnership is a party and as to which the General Partners have been allowed to participate as and to the extent contemplated in Article 8 to the effect that such allocations are not correct,
Section 7.1 shall not apply unless the matter is being appealed to an applicable court of appeals, the requirements of Section 10.3 shall have been satisfied in connection therewith, and
the opinion described above from counsel or accountants engaged by a Protected Partner shall have been provided, except that such opinion shall be to the effect that it is more likely than not that
such allocations will be respected. In no event shall this Section 7.2 be construed to relieve the Partnership for liability arising from a failure by the Partnership to comply with one or more
of the provisions of Article 4 of this Agreement. 


14







 



        7.3    Cooperation in the Event of a Change.    If a change in the Partnership's allocations of Guaranteed Debt or
other recourse debt of the Partnership to the Protected Partners is required by reason of circumstances described in Section 7.2, the Partnership and its professional tax advisors shall
cooperate in good faith with each Protected Partner (or in the event of their death or disability, their executor, guardian or custodian, as applicable) and their professional tax advisors to develop
alternative allocation arrangements and/or other mechanisms that protect the federal income tax positions of the Protected Partners in the manner contemplated by the allocations of Guaranteed Debt or
other recourse debt of the Partnership to the Protected Partners as set forth in this Agreement. 


ARTICLE 8

TAX PROCEEDINGS  


        8.1    Notice of Tax Audits.    If any claim, demand, assessment (including a notice of proposed assessment) or other
assertion is made with respect to taxes against the Protected Partners or the Partnership the calculation of which involves a matter covered in this Agreement that could result in tax liability to a
Protected Partner ("Tax Claim") or if the REIT or the Partnership receives any notice from any jurisdiction with respect to any current or future audit, examination, investigation or other proceeding
("Tax Proceeding") involving the Protected Partners or the Partnership or that otherwise could involve a matter covered in this Agreement and could directly or indirectly affect the Protected Partners
(adversely or otherwise), then the REIT or the Partnership, as applicable shall promptly notify the Protected Partners of such Tax Claim or Tax Proceeding. 


        8.2    Control of Tax Proceedings.    The REIT, as the general partner of the Partnership shall have the right to
control the defense, settlement or compromise of any Proceeding or Tax Claim; provided, however, that
the REIT shall not consent to the entry of any judgment or enter into any settlement with respect to such Tax Claim or Tax Proceeding that could result in tax liability to a Protected Partner without
the prior written consent of the Protected Partners (unless, and only to the extent, that any taxes required to be paid by the Protected Partners as a result thereof would be required to be reimbursed
by the Partnership and the REIT under Article 5 and the Partnership and the REIT agree in connection with such settlement or consent, to make such required payments);  provided further that the
Partnership shall keep the Protected Partners duly informed of the progress thereof to the extent that such Proceeding or Tax
Claim could directly or indirectly affect (adversely or otherwise) the Protected Partners and that the Protected Partners shall have the right to review and comment on any and all submissions made to
the to Internal Revenue Service ("IRS"), a court, or other governmental body with respect to such Tax Claim or Tax Proceeding and that the Partnership will consider such comments in good faith. 



        8.4    Timing of Tax Returns; Periodic Tax Information.    The Partnership shall cause to be delivered to each
Protected Partner, as soon as practicable each year, the Forms K-1 that the Partnership is required to deliver to such Protected Partners with respect to the prior taxable year. In
addition, the Partnership agrees to provide to the Protected Partners, upon request, an estimate of the taxable income expected to be allocable for a specified taxable year from the Partnership to
each Protected Partner and the entities that they control, provided that such estimates shall not be required to be provided more frequently than once
each calendar quarter. 


ARTICLE 9

AMENDMENT OF THIS AGREEMENT; WAIVER OF CERTAIN PROVISIONS;

APPROVAL OF CERTAIN TRANSACTIONS  


        9.1    Amendment.    This Agreement may not be amended, directly or indirectly (including by reason of a merger
between the Partnership and another entity) except by a written instrument signed by both the REIT, as general partner of the Partnership, and each of the Protected Partners. 


15







 

        9.2    Waiver.    Notwithstanding the foregoing, upon written request by the Partnership, each Protected Partner, in
its sole discretion, may waive the payment of any damages that is otherwise payable to such Protected Partner pursuant to Article 5 hereof. Such a waiver shall be effective only if obtained in
writing from the affected Protected Partner. 


ARTICLE 10

MISCELLANEOUS  


        10.1    Additional Actions and Documents.    Each of the parties hereto hereby agrees to take or cause to be taken
such further actions, to execute, deliver, and file or cause to be executed, delivered and filed such further documents, and will obtain such consents, as may be necessary or as may be reasonably
requested in order to fully effectuate the purposes, terms and conditions of this Agreement. 


        10.2    Assignment.    No party hereto shall assign its or his rights or obligations under this Agreement, in whole or
in part, except by operation of law, without the prior written consent of the other parties hereto, and any such assignment contrary to the terms hereof shall be null and void and of no force and
effect. 


        10.3    Successors and Assigns.    This Agreement shall be binding upon and shall inure to the benefit of the
Protected Partners and their respective successors and permitted assigns, whether so expressed or not. This Agreement shall be binding upon the REIT, the Partnership, and any entity that is a direct
or indirect successor, whether by merger, transfer, spin-off or otherwise, to all or substantially all of the assets of either the REIT or the Partnership (or any prior successor thereto
as set forth in the preceding portion of this sentence), provided that none of the foregoing shall result in the release of liability of the REIT and
the Partnership hereunder. The REIT and the Partnership covenant with and for the benefit of the Protected Partners not to undertake any transfer of all or substantially all of the assets of either
entity (whether by merger, transfer, spin-off or otherwise) unless the transferee has acknowledged in writing and agreed in writing to be bound by this Agreement,  provided that the foregoing shall not
be deemed to permit any transaction otherwise prohibited by this Agreement. 


        10.4    Modification; Waiver.    No failure or delay on the part of any party hereto in exercising any power or right
hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other right or power. The rights and remedies of the parties hereunder are cumulative and not exclusive of any rights or remedies
which they would otherwise have. No modification or waiver of any provision of this Agreement, nor consent to any departure by any party therefrom, shall in any event be effective unless the same
shall be in writing, and then such waiver or consent shall be effective only in the specific instance and for the purpose for which given. No notice to or demand on any party in any case shall entitle
such party to any other or further notice or demand in similar or other circumstances. 


        10.5    Representations and Warranties Regarding Authority; Noncontravention.    



        10.5.1    Representations and Warranties of the REIT and the Partnership.    Each of the REIT and the Partnership has
the requisite corporate or other (as the case may be) power and authority to enter into this Agreement and to perform its respective obligations hereunder. The execution and delivery of this Agreement
by each of the REIT and the Partnership and the performance of each of its respective obligations hereunder have been duly authorized by all necessary trust, partnership, or other (as the case may be)
action on the part of each of the REIT and the Partnership. This Agreement has been duly executed and delivered by each of the REIT and the Partnership and constitutes a valid and binding obligation
of each of the REIT and the Partnership, enforceable against each of the REIT and the Partnership in accordance with its terms, except as such enforcement may be limited by (i) applicable
bankruptcy or insolvency laws 



16







 

(or
other laws affecting creditors' rights generally) or (ii) general principles of equity. The execution and delivery of this Agreement by each of the REIT and the Partnership do not, and the
performance by each of its respective obligations hereunder will not, conflict with, or result in any violation of (i) the Partnership Agreement or (ii) any other agreement applicable to
the REIT and/or the Partnership, other than, in the case of clause (ii), any such conflicts or violations that would not materially adversely affect the performance by the Partnership and the
REIT of their obligations hereunder. 


        10.5.2    Representations and Warranties of the Protected Partners.    Each of the Protected Partners has the
requisite corporate or other (as the case may be) power and authority to enter into this Agreement and to perform its respective obligations hereunder. The execution and delivery of this Agreement by
each of the Protected Partners and the performance of each of its respective obligations hereunder have been duly authorized by all necessary trust, partnership, or other (as the case may be) action
on the part of each of the Protected Partners. This Agreement has been duly executed and delivered by each of the Protected Partners and constitutes a valid and binding obligation of each of the
Protected Partners. 




        10.6    Captions.    The Article and Section headings contained in this Agreement are inserted for convenience of
reference only, shall not be deemed to be a part of this Agreement for any purpose, and shall not in any way define or affect the meaning, construction or scope of any of the provisions hereof. 


        10.7    Notices.    All notices and other communications given or made pursuant hereto shall be in writing and shall
be deemed to have been duly given or made as of the date delivered, mailed or transmitted, and shall be effective upon receipt, if delivered personally, mailed by registered or certified mail (postage
prepaid, return receipt requested) to the parties at the following addresses (or at such other address for a party as shall be specified by like changes of address) or sent by electronic transmission
to the telecopier number specified below: 




	(i)
	if
to the Partnership or the REIT, to: 








Kite
Realty Group, L.P.

30 South Meridian, Suite 1100

Indianapolis, IN 46204

Attention: John A. Kite

Facsimile: [                        ] 




	(i)
	if
to a Protected Partner, to the address on file with the Partnership. 





Each
party may designate by notice in writing a new address to which any notice, demand, request or communication may thereafter be so given, served or sent. Each notice, demand, request, or
communication which shall be hand delivered, sent, mailed, telecopied or telexed in the manner described above, or which shall be delivered to a telegraph company, shall be deemed sufficiently given,
served, sent, received or delivered for all purposes at such time as it is delivered to the addressee (with the return receipt, the delivery receipt, or (with respect to a telecopy or telex) the
answerback being deemed conclusive, but not exclusive, evidence of such delivery) or at such time as delivery is refused by the addressee upon presentation. 



        10.8    Counterparts.    This Agreement may be executed in two or more counterparts, all of which shall be considered
one and the same agreement and each of which shall be deemed an original. 


        10.9    Governing Law.    The interpretation and construction of this Agreement, and all matters relating thereto,
shall be governed by the laws of the State of Indiana, without regard to the choice of law provisions thereof. 


17







 



        10.10    Consent to Jurisdiction; Enforceability.    



        10.10.1    This
Agreement and the duties and obligations of the parties hereunder shall be enforceable against any of the parties in the courts of the State of Indiana. For
such purpose, each party hereto hereby irrevocably submits to the nonexclusive jurisdiction of such courts and agrees that all claims in respect of this Agreement may be heard and determined in any of
such courts. 


        10.10.2    Each
party hereto hereby irrevocably agrees that a final judgment of any of the courts specified above in any action or proceeding relating to this Agreement shall
be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. 




        10.11    Severability.    If any part of any provision of this Agreement shall be invalid or unenforceable in any
respect, such part shall be ineffective to the extent of such invalidity or unenforceability only, without in any way affecting the remaining parts of such provision or the remaining provisions of
this Agreement. 


        10.12    Costs of Disputes.    Except as otherwise expressly set forth in this Agreement, the nonprevailing party in
any dispute arising hereunder shall bear and pay the costs and expenses (including, without limitation, reasonable attorneys' fees and expenses) incurred by the prevailing party or parties in
connection with resolving such dispute. 


18










        IN WITNESS WHEREOF, the REIT, the Partnership, and the Protected Partners have caused this Agreement to be signed by their respective officers (or general partners) thereunto duly
authorized all as of the date first written above. 



	 	 	KITE REALTY GROUP TRUST, a Maryland real estate investment trust
	

 	
 	

By:	

 
	 	 	 	

	 	 	Name:	 
	 	 	 	

	 	 	Title:	 
	 	 	 	

	

 	
 	

KITE REALTY GROUP, L.P., a Delaware limited partnership
	

 	
 	

By:	

Kite Realty Group Trust, its sole General Partner
	

 	
 	

By:	

 
	 	 	 	

	 	 	Name:	 
	 	 	 	

	 	 	Title:	 
	 	 	 	

	

 	
 	

ALVIN E. KITE, JR.
	

 	
 	

    

	

 	
 	

JOHN A. KITE
	

 	
 	

    

	

 	
 	

C. KENNETH KITE
	

 	
 	

    

	

 	
 	

PAUL W. KITE
	

 	
 	

    

	

 	
 	

THOMAS K. MCGOWAN
	

 	
 	

    










Schedule 2.1(a)  


 List of Protected Partners  







Schedule 2.1(b)

[to be completed]
Protected Properties and

Estimated Initial Protected Gain for Protected Partners  



	Name of Protected Property
 
	 	Initial Protected

Gain: Al Kite
	 	Initial Protected

Gain: John Kite
	 	Initial Protected

Gain: Paul Kite
	 	Initial Protected

Gain: Ken Kite
	 	Initial Protected

Gain: Tom McGowan
	 	Initial Protected

Gain: Total

	1. Thirty South

Indianapolis, IN	 	 	 	 	 	 	 	 	 	 	 	 
	2. Shops at Eagle Creek

Naples, FL	 	 	 	 	 	 	 	 	 	 	 	 
	3. Ridge Plaza Shopping Center

Oak Ridge, NJ	 	 	 	 	 	 	 	 	 	 	 	 
	4. International Speedway Square

Daytona Beach, FL	 	 	 	 	 	 	 	 	 	 	 	 
	5. Whitehall Pike

Bloomington, IN	 	 	 	 	 	 	 	 	 	 	 	 
	6. Mid-America Clinical Labs

Indianapolis, IN	 	 	 	 	 	 	 	 	 	 	 	 









Schedule 3.1

[to be completed]
  Gain Limitation Properties and

Estimated Initial Protected Gain for Protected Partners  



	Name of Gain Limitation Property
 
	 	Initial Protected

Gain: Al Kite
	 	Initial Protected

Gain: John Kite
	 	Initial Protected

Gain: Paul Kite
	 	Initial Protected

Gain: Ken Kite
	 	Initial Protected

Gain: Tom McGowan
	 	Initial Protected

Gain: Total

	1. Thirty South

Indianapolis, IN	 	 	 	 	 	 	 	 	 	 	 	 
	2. Shops at Eagle Creek

Naples, FL	 	 	 	 	 	 	 	 	 	 	 	 
	3. Ridge Plaza Shopping Center

Oak Ridge, NJ	 	 	 	 	 	 	 	 	 	 	 	 
	4. International Speedway Square

Daytona Beach, FL	 	 	 	 	 	 	 	 	 	 	 	 
	5. Whitehall Pike

Bloomington, IN	 	 	 	 	 	 	 	 	 	 	 	 
	6. Mid-America Clinical Labs

Indianapolis, IN	 	 	 	 	 	 	 	 	 	 	 	 
	7. Traders Point I and II

Indianapolis, IN	 	 	 	 	 	 	 	 	 	 	 	 
	8. The Centre

Carmel, IN	 	 	 	 	 	 	 	 	 	 	 	 
	9. King's Lake Square

Naples, FL	 	 	 	 	 	 	 	 	 	 	 	 
	10. Boulevard Crossing

Kokomo, IN	 	 	 	 	 	 	 	 	 	 	 	 
	11. Circuit City Plaza

Coral Springs, FL	 	 	 	 	 	 	 	 	 	 	 	 
	12. Preston Commons

Frisco, TX	 	 	 	 	 	 	 	 	 	 	 	 
	13. Pen Products Warehouse

Plainfield, IN	 	 	 	 	 	 	 	 	 	 	 	 









	14. The Corner Shops

Carmel, IN	 	 	 	 	 	 	 	 	 	 	 	 
	15. Spring Mill Medical

Carmel, IN	 	 	 	 	 	 	 	 	 	 	 	 
	16. Union Station Parking Garage

Indianapolis, IN	 	 	 	 	 	 	 	 	 	 	 	 
	17. Cool Creek Commons

Westfield, IN	 	 	 	 	 	 	 	 	 	 	 	 
	18. Pad 1 and Capri

Naples, FL	 	 	 	 	 	 	 	 	 	 	 	 
	19. SE 82 & SE Otty Road

Portland, OR	 	 	 	 	 	 	 	 	 	 	 	 
	20. 50th & 12th

Seattle, WA	 	 	 	 	 	 	 	 	 	 	 	 
	21. 176th & Meridian

Payullup, WA	 	 	 	 	 	 	 	 	 	 	 	 
	22. Weston Park (106th & Michigan)

Carmel, IN	 	 	 	 	 	 	 	 	 	 	 	 
	23. Glendale Mall

Indianapolis, IN	 	 	 	 	 	 	 	 	 	 	 	 
	24. Burlington Coat Factory

San Antonio, TX	 	 	 	 	 	 	 	 	 	 	 	 
	25. Indiana State Motor Pool

Indianapolis, IN	 	 	 	 	 	 	 	 	 	 	 	 
	26. 50 S. Morton Street

Franklin, IN	 	 	 	 	 	 	 	 	 	 	 	 
	27. Stoney Creek Commons

Noblesville, IN	 	 	 	 	 	 	 	 	 	 	 	 










Schedule 3.3  


Example Illustrating the Provisions of Section 3.3 of the Agreement Relating to Allocation of Annual Gain Limitation Among Protected Partners  


        In Gain Limitation Year 1 (GLY 1), Protected Partner A and Protected Partner B each recognize $1.5 million of Protected Gain, Protected Partner C
recognizes $2 million of Protected Gain and Protected Partner D recognizes $3 million of Protected Gain. The Annual Gain Limitation for GLY 1 is $4 million. Accordingly, A, B, C,
and D, as a group, are entitled to reimbursement under Article 5 of the Agreement with respect to $4 million of Protected Gain, allocated among them in the following amounts: A $750,000;
B: $750,000; C: $1,000,000; and D: $1,500,000. 


        In
GLY 2, no Protected Gain is recognized by any Protected Partners. 


        In
GLY 3, the Annual Gain Limitation is $8 million (because it includes a Gain Limitation Carry-forward of $4 million from GLY 2). A recognizes $500,000 of Protected Gain,
B recognizes $6 million and C and D each recognize no Protected Gain. No Protected Partners are entitled to reimbursement under Article 5 of the Agreement with respect to GLY 3 (since
the total Protected Gain recognized in GLY3—$6.5 million—is $1.5 million less than the Annual Gain Limitation for GLY 3). 


        In
GLY 4, the Annual Gain Limitation is $5.5 million (including the Gain Limitation Carry-forward of $1.5 million from GLY 3). Each of A, B, C and D recognize
$2.5 million of Protected Gain. Accordingly, the Protected Gain for each Protected Partner for GLY 5 for which such Partner is entitled to reimbursement under Article 5 of the Agreement
is as follows: 



	Protected Partner
 
	 	Current

GLY

Protected

Gain

Recognized
	 	Current

GLY

Annual

Gain

Limitation
	 	Cumulative

Recognized

Protected

Gain
	 	Prior

Adjusted

Protected

Gain
	 	Cumulative

Unadjusted

Protected

Gain
	 	Unadjusted

Protected

Gain

Percentage
	 	Current GLY

Protected Gain

Subject to

Reimbursement

Under Article 5

	A	 	$	2,500,000	 	 	N/A	 	$	4,500,000	 	$	750,000	 	$	3,750,000	 	18.3	%	$	823,500
	B	 	$	2,500,000	 	 	N/A	 	$	10,000,000	 	$	750,000	 	$	9,250,000	 	45.1	%	$	2,029,500
	C	 	$	2,500,000	 	 	N/A	 	$	4,500,000	 	$	1,000,000	 	$	3,500,000	 	17.1	%	$	769,500
	D	 	$	2,500,000	 	 	N/A	 	$	5,500,000	 	$	1,500,000	 	$	4,000,000	 	19.5	%	$	877,500
	Total	 	$	10,000,000	 	$	5,500,000	 	$	24,500,000	 	$	4,000,000	 	$	20,500,000	 	100	%	$	4,500,000





        In
GLY 5, no Protected Gain is recognized. 


        In
GLY 6, A and B each recognize $6 million of Protected Gain, C recognizes $200,000 of Protected Gain and D recognized no Protected Gain. The Annual Gain Limitation is
$8 million (because it includes a Gain Limitation Carry-forward of $4 million from GLY 5). 



	Protected Partner
 
	 	Current

GLY

Protected

Gain

Recognized
	 	Current

GLY

Annual

Gain

Limitation
	 	Cumulative

Recognized

Protected

Gain
	 	Prior

Adjusted

Protected

Gain
	 	Cumulative

Unadjusted

Protected

Gain
	 	Unadjusted

Protected

Gain

Percentage
	 	Current GLY

Protected Gain

Subject to

Reimbursement

Under Article 5

	A	 	$	6,000,000	 	 	N/A	 	$	10,500,000	 	$	1,573,500	 	$	8,926,500	 	31.6	%	$	2,000,000
	B	 	$	6,000,000	 	 	N/A	 	$	16,000,000	 	$	2,779,500	 	$	13,220,500	 	46.9	%	$	2,000,000
	C	 	$	200,000	 	 	N/A	 	$	4,700,000	 	$	1,769,500	 	$	2,930,500	 	10.4	%	$	200,000
	D	 	$	0	 	 	N/A	 	$	5,500,000	 	$	2,377,500	 	$	3,122,500	 	11.1	%	$	0
	Total	 	$	12,200,000	 	$	8,000,000	 	$	36,700,000	 	$	8,500,000	 	$	28,200,000	 	100	%	$	4,200,000





        Because
C and D would have been allocated more Excess Protected Gain than they actually recognized for federal income tax purposes during GLY 6, the difference between the amount
actually recognized by C and D and the amounts they would be allocated based on the Unadjusted Protected Gain Percentage are reallocated to A and B based on the portion of the Excess Protected Gain
actually recognized by them during GLY 5. 


        In
GLY 7, no Protected Gain is recognized, and B dies. 










        In
GLY 8, each of A, C and D recognizes $5 million of Protected Gain and, if he had not died, B also would have recognized $5 million of Protected Gain. Due to the basis
adjustment that occurred on his death, B's heirs did not actually recognize this gain. The Annual Gain Limitation is $8 million (because it includes a Gain Limitation Carry-forward of
$4 million from GLY 7). 



	Protected Partner
 
	 	Current

GLY

Protected

Gain

Recognized
	 	Current

GLY

Annual

Gain

Limitation
	 	Cumulative

Recognized

Protected

Gain
	 	Prior

Adjusted

Protected

Gain
	 	Cumulative

Unadjusted

Protected

Gain
	 	Unadjusted

Protected

Gain

Percentage
	 	Current GLY

Protected Gain

Subject to

Reimbursement

Under Article 5

	A	 	$	5,000,000	 	 	N/A	 	$	15,500,000	 	$	3,573,500	 	$	11,926,500	 	27.1	%	$	3,252,000
	B	 	$	5,000,000	 	 	N/A	 	$	21,000,000	 	$	4,779,500	 	$	16,220,500	 	36.9	%	$	0
	C	 	$	5,000,000	 	 	N/A	 	$	9,700,000	 	$	1,969,500	 	$	7,730,500	 	17.6	%	$	2,112,000
	D	 	$	5,000,000	 	 	N/A	 	$	10,500,000	 	$	2,377,500	 	$	8,122,500	 	18.4	%	$	2,208,000
	Total	 	$	20,000,000	 	$	8,000,000	 	$	56,700,000	 	$	12,700,000	 	$	44,000,000	 	100	%	$	7,572,000





        Because
of B's death, the amount of Protected Gain allocable to him under the principles of Article 3 of the Tax Protection Agreement ($4,428,000) is not actually recognized and
therefore is not subject to reimbursement under Article 5. The amount of Protected Gain that otherwise would have been allocated to B is not reallocated to A, C or D. 


        Comment:    These calculations are made based upon the principles set forth in the parenthetical in the
first paragraph of Section 3.1, to the effect that the Protected Gain recognized by each of the Protected Partners shall be deemed equal to the gain that would have been recognized without
giving effect to any adjustment in basis that results with respect to the indirect interest of such Protected Partner in such Protected Property, it being intended that the Annual Gain Limitation and
the related definitions are to be applied to the Protected Partners as a group before giving effect to basis adjustments. 







Schedule 4.1  


Minimum Liability Amount  



	Protected Partner
 
	 	Minimum Liability Amount*

	Al Kite	 	 
	John Kite	 	 
	Paul Kite	 	 
	Ken Kite	 	 
	Tom McGowan	 	 






	*
	To
be 110% of the estimated negative capital accounts of the Protected Partners at closing. The current estimates of those negative capital accounts are $12.1 million,
$7.7 million, $7.7 million, $1.1 million and $5.5 million, respectively. 








Schedule 4.7  


Form of Guarantee Agreement(1)  


 GUARANTEE  


        This Guarantee is made and entered into as of the    day of            2004, by the persons listed on
 Exhibit A annexed hereto (the "Guarantors") for the benefit of the Lender set forth on  Exhibit B annexed hereto and made a part hereof (the
"Lender," which term shall include any person or entity who hereafter holds the Note (as
defined below) in accordance with the terms thereof). 




	(1)
	This
Form of the Guarantee Agreement is for Guaranteed Debt where the following conditions all are applicable:



	(i)
	there
are no other guarantees in effect with respect to such Guaranteed Debt;



	(ii)
	the
collateral securing such Guaranteed Debt is not collateral for any other indebtedness that is senior to or pari pasu with such Guaranteed Debt;



	(iii)
	no
additional guarantees with respect to such Guaranteed Debt will be entered into during the applicable Tax Protection Period pursuant to the  proviso set forth in Section 4.5;



	(iv)
	the
lender with respect to such Guaranteed Debt is not the Partnership, any Subsidiary or other entity in which the Partnership owns a direct or indirect interest, the
REIT, any other partner in the Partnership, or any person related to any partner in the Partnership as determined for purposes of Treasury Regulation § 1.752-2; and



	(v)
	none
of the REIT, nor any other partner in the Partnership, nor any person related to any partner in the Partnership as determined for purposes of Treasury Regulation
§ 1.752-2 shall have provided, or shall thereafter provide, collateral for, or otherwise shall have entered, or thereafter shall enter, into a relationship that would cause
such person or entity to be considered to bear risk of loss with respect to such Guaranteed Debt, as determined for purposes of Treasury Regulation § 1.752-2. 






        If,
and to the extent that, one or more of these conditions is not applicable, appropriate changes to the attached form of Guarantee will be required in order to cause the various
conditions set forth in Article 4 of the Tax Protection Agreement to be satisfied. 


RECITALS  


        WHEREAS,
the Lender has loaned to the borrower set forth on Exhibit B (the "Borrower") the amount set forth opposite such Lender's
name on Exhibit B, which loan (i) is evidenced by the promissory note described on  Exhibit C hereto (the "Note"), (ii) has a current
outstanding balance in the amount set forth on  Exhibit B annexed hereto, and (iii) is secured by a mortgage or deed of trust on the collateral described on  Exhibit D annexed hereto (the "Deed of Trust," with the property and other assets securing such Deed of Trust referred to as the "Collateral"); 



        WHEREAS,
the Borrower is either Kite Realty Trust, L.P., a Delaware limited partnership (the "Partnership") or a wholly owned subsidiary of the Partnership; 


        WHEREAS,
the Guarantors are limited partners in the Partnership; and 


        WHEREAS,
the Guarantors are executing and delivering this Guarantee to guarantee a portion of the Borrower's payments with respect to the Note, subject to and otherwise in accordance
with the terms and conditions hereinafter set forth. 










        NOW
THEREFORE, in consideration of the foregoing recitals and facts and other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, each of
the Guarantors hereby agree as follows: 


        1.    Guarantee and Performance of Payment.    


        (a)   The
Guarantors hereby irrevocably and unconditionally guarantee the collection by the Lender of, and hereby agree to pay to the Lender upon demand (following
(1) foreclosure of the Deed of Trust, exercise of the powers of sale thereunder and/or acceptance by the Lender of a deed to the Collateral in lieu of foreclosure, and (2) the exhaustion
of the exercise of any and all remedies available to the Lender against the Borrower, including, without limitation, realizing upon the assets of the Borrower other than the Collateral against which
the Lender may have recourse), an amount equal to the excess, if any, of the Guaranteed Amount set forth on Exhibit B over the Lender Proceeds
(as hereinafter defined) (which excess is referred to as the "Aggregate Guarantee Liability"). The amounts payable by each Guarantor in respect of the guarantee obligations hereunder shall be in the
same proportion as the dollar amounts listed next to such Guarantor's name on Exhibit A attached hereto bears to the total Guaranteed Amount set
forth on Exhibit A, provided that, notwithstanding anything to the contrary contained in this
Guarantee, each Guarantor's aggregate obligation under this Guarantee shall be limited to the dollar amount set forth on Exhibit A attached
hereto next to such Guarantor's name. The Guarantors' obligations as set forth in this paragraph 1(a) are hereinafter referred to as the "Guaranteed Obligations." 


        (b)   For
the purposes of this Guarantee, the term "Lender Proceeds" shall mean the aggregate of (i) the Foreclosure Proceeds (as hereinafter defined) plus
(ii) all amounts collected by the Lender from the Borrower (other than payments of principal, interest or other amounts required to be paid by the Borrower to Lender under the terms of the Note
that are paid by the Borrower to the Lender at a time when no default has occurred under the Note and is continuing) or realized by the Lender from the sale of assets of the Borrower other than the
Collateral. 


        (c)   For
the purposes of this Guarantee, the term "Foreclosure Proceeds" shall have the applicable meaning set forth below with respect to the Collateral: 




	1.
	If
at least one bona fide third party unrelated to the Lender (and including, without limitation, any of the Guarantors) bids for such Collateral at a sale thereof, conducted upon
foreclosure of the related Deed of Trust or exercise of the power of sale thereunder, Foreclosure Proceeds shall mean the highest amount bid for such Collateral by the party that acquires title
thereto (directly or through a nominee) at or pursuant to such sale. For the purposes of determining such highest bid, amounts bid for the Collateral by the Lender shall be taken into account
notwithstanding the fact that such bids may constitute credit bids which offset against the amount due to the Lender under the Note.



	2.
	If
there is no such unrelated third-party at such sale of the Collateral so that the only bidder at such sale is the Lender or its designee, the Foreclosure Proceeds shall be deemed to
be fair market value (the "Fair Market Value") of the Collateral as of the date of the foreclosure sale, as such Fair Market Value shall be mutually agreed upon by the Lender and the Guarantor or
determined pursuant to subparagraph 1(d).



	3.
	If
the Lender receives and accepts a deed to the Collateral in lieu of foreclosure in partial satisfaction of the Borrower's obligations under the Note, the Foreclosure Proceeds shall
be deemed to be the Fair Market Value of such Collateral as of the date of delivery of the deed-in-lieu of foreclosure, as such Fair Market Value shall be mutually agreed upon
by the Lender and the Guarantor or determined pursuant to subparagraph 1(d). 







        (d)   Fair
Market Value of the Collateral (or any item thereof) shall be the price at which a willing seller not compelled to sell would sell such Collateral, and a willing
buyer not compelled to buy would purchase such Collateral, free and clear of all mortgages but subject to all leases and reciprocal 








easements
and operating agreements. If the Lender and the Guarantor are unable to agree upon the Fair Market Value of any Collateral in accordance with subparagraphs 1(c)2. or 3. above, as applicable,
within twenty (20) days after the date of the foreclosure sale or the delivery of the deed-in-lieu of foreclosure, as applicable, relating to such Collateral, either
party may have the Fair Market Value of such Collateral determined by appraisal by appointing an appraiser having the qualifications set forth below to determine the same and by notifying the other
party of such appointment within twenty (20) days after the expiration of such twenty (20) day period. If the other party shall fail to notify the first party, within twenty
(20) days after its receipt of notice of the appointment by the first party, of the appointment by the other party of an appraiser having the qualifications set forth below, the appraiser
appointed by the first party shall alone make the determination of such Fair Market Value. Appraisers appointed by the parties shall be members of the Appraisal Institute (MAI) and shall have at least
ten years' experience in the valuation of properties similar to the Collateral being valued in the greater metropolitan area in which such Collateral is located. If each party shall appoint an
appraiser having the aforesaid qualifications and if such appraisers cannot, within thirty (30) days after the appointment of the second appraiser, agree upon the determination hereinabove
required, then they shall select a third appraiser which third appraiser shall have the aforesaid qualifications, and if they fail so to do within forty (40) days after the appointment of the
second appraiser they shall notify the parties hereto, and either party shall thereafter have the right, on notice to the other, to apply for the appointment of a third appraiser to the chapter of the
American Arbitration Association or its successor organization located in the metropolitan area in which the Collateral is located or to which the Collateral is proximate or if no such chapter is
located in such metropolitan area, in the metropolitan area closest to the Collateral in which such a chapter is located. Each appraiser shall render its decision as to the Fair Market Value of the
Collateral in question within thirty (30) days after the appointment of the third appraiser and shall furnish a copy thereof to the Lender and the Guarantor. The Fair Market Value of the
Collateral shall then be calculated as the average of (i) the Fair Market Value determined by the third appraiser and (ii) whichever of the Fair Market Values determined by the first two
appraisers is closer to the Fair Market Value determined by the third appraiser; provided, however, that
if the Fair Market Value determined by the third appraiser is higher or lower than both Fair Market Values determined by the first two appraisers, such Fair Market Value determined by the third
appraiser shall be disregarded and the Fair Market Value of the Collateral shall then be calculated as the average of the Fair Market Value determined by the first two appraisers. The Fair Market
Value of a Property, as so determined, shall be binding and conclusive upon the Lender and the Guarantors. Guarantors shall bear the cost of its own appraiser and, subject to subparagraph 1(e), shall
bear all reasonable costs of appointing, and the expenses of, any other appraiser appointed pursuant to this subparagraph (1)(d). 


        (e)   Notwithstanding
anything in the preceding subparagraphs of this paragraph 1, (i) in no event shall the aggregate amount required to be paid pursuant to
this Guarantee by the Guarantors as a group with respect to all defaults under the Note and the Deed of Trust securing the obligations thereunder exceed the Guaranteed Amount set forth on  Exhibit B
hereto, and (ii) the aggregate obligation of each Guarantor hereunder with respect to the Guaranteed Obligation shall be limited
to the lesser of (I) the product of (w) the Individual Guarantee Percentage for such Guarantor set forth on Exhibit A hereto
multiplied by (x) the Guaranteed Amount, or (II) the product of (y) such Guarantor's Individual Guarantee Percentage multiplied by (z) the Aggregate Guarantee Liability. 


        (f)    In
confirmation of the foregoing, and without limitation, the Lender must first exhaust all of its rights and remedies against all property of the Borrower as to which
the Lender has (or may have) a right of recourse, including, without limitation, the institution and prosecution to completion of appropriate foreclosure proceedings under the Deed of Trust, before
exercising any right or remedy or making any claim, under this Guarantee. 



        (g)   The
obligations under this Guarantee shall be personal to each Guarantor and shall not be affected by any transfer of all or any part of a Guarantor's interests in the
Partnership. Further, no Guarantor shall have the right to recover from the Borrower any amounts such Guarantor pays pursuant to this Guarantee (except and only to the extent that the amount paid to
the Lender by such 










Guarantor
exceeds the amount required to be paid by such Guarantor under the terms of this Guarantee). 



        (h)   The
obligations of any Guarantor who is an individual as a Guarantor hereunder shall terminate with respect to such Guarantor on the death of such Guarantor if, as a
result of the death of such Guarantor, all property held by the Guarantor on the date of death would have a basis for federal income tax purposes equal to the fair market value of such property on
such date (unless a later date were to be elected by the executor of the Guarantor's estate in accordance with the applicable provisions of the Internal Revenue Code). 


        2.    Intent to Benefit Lender.    This Guarantee is expressly for the benefit of the Lender. The Guarantors intend
that the Lender shall have the right to enforce the obligations of the Guarantors hereunder separately and independently of the Borrower, subject to the provisions of paragraph 1 hereof,
without any requirement whatsoever of resort by the Lender to any other party. The Lender's rights to enforce the obligations of the Guarantors hereunder are material elements of this Guarantee. This
Guarantee shall not be modified, amended or terminated (other than as specifically provided herein) without the written consent of the Lender. The Borrower shall furnish a copy of this Guarantee to
the Lender contemporaneously with its execution. 


        3.    Waivers.    Each Guarantor intends to bear the ultimate economic responsibility for the payment hereof of the
Guaranteed Obligations to the extent set forth in Paragraph 1 above. Pursuant to such intent: 



        (a)   Except
as expressly set forth in Paragraph 1 above, each Guarantor expressly waives any right (pursuant to any law, rule, arrangement or relationship) to compel
the Lender, or any subsequent holder of the Note or any beneficiary of the Deed of Trust to sue or enforce payment thereof or pursue any other remedy in the power of the Borrower, the Lender or any
subsequent holder of the Note or any beneficiary of the Deed of Trust whatsoever, and failure of the Borrower or the Lender or any subsequent holder of the Note or any beneficiary of the Deed of Trust
to do so shall not exonerate, release or discharge a Guarantor from its absolute unconditional obligations under this Guarantee. Each Guarantor hereby binds and obligates itself, and its permitted
successors and assignees, for performance of the Guaranteed Obligations according to the terms hereof, whether or not the Guaranteed Obligations or any portion thereof are valid now or hereafter
enforceable against the Borrower or shall have been incurred in compliance with any of the conditions applicable thereto, subject, however, in all respects to the Guarantee Limit and the other
limitations set forth in paragraph 1. 


        (b)   Each
Guarantor expressly waives any right (pursuant to any law, rule, arrangement, or relationship) to compel any other person (including, but not limited to, the
Borrower, the Partnership, any subsidiary of the Partnership or the Borrower, or any other partner or affiliate of the Partnership or the Borrower) to reimburse or indemnify such Guarantor for all or
any portion of amounts paid by such Guarantor pursuant to this Guarantee to the extent such amounts do not exceed the amounts required to be paid by such Guarantor pursuant to paragraph 1
hereof (taking into account the limitations set forth therein). 


        (c)   Except
as expressly set forth in Paragraph 1 above, if and only to the extent that the Borrower has made similar waivers under the Note or the Deed of Trust, each
Guarantor expressly waives: (i) the defense of the statute of limitations in any action hereunder or for the collection or performance of the Note or the Deed of Trust; (ii) any defense
that may arise by reason of: the incapacity, or lack of authority of the Borrower, the revocation or repudiation hereof by such Guarantor, the revocation or repudiation of the Note or the Deed of
Trust by the Borrower, the failure of the Lender to file or enforce a claim against the estate (either in administration, bankruptcy or any other proceeding) of the Borrower; the unenforceability in
whole or in part of the Note, the Deed of Trust or any other document or instrument related thereto; the Lender's election, in any proceeding by or against the Borrower under the federal Bankruptcy
Code, of the application of Section 1111(b)(2) of the federal Bankruptcy Code; or any borrowing or grant of a security interest under Section 364 of the federal Bankruptcy Code;
(iii) presentment, demand for 












payment,
protest, notice of discharge, notice of acceptance of this Guarantee or occurrence of, or any default in connection with, the Note or the Deed of Trust, and indulgences and notices of any
other kind whatsoever, including, without limitation, notice of the disposition of any collateral for the Note; (iv) any defense based upon an election of remedies (including, if available, an
election to proceed by non-judicial foreclosure) or other action or omission by the Lender or any other person or entity which destroys or otherwise impairs any indemnification,
contribution or subrogation rights of such Guarantor or the right of such Guarantor, if any, to proceed against the Borrower for reimbursement, or any combination thereof; (v) subject to
Paragraph 4 below, any defense based upon any taking, modification or release of any collateral or guarantees for the Note, or any failure to create or perfect any security interest in, or the
taking of or failure to take any other action with respect to any collateral securing payment or performance of the Note; (vi) any rights or defenses based upon any right to offset or claimed
offset by such Guarantor against any indebtedness or obligation now or hereafter owed to such Guarantor by the Borrower; or (vii) any rights or defenses based upon any rights or defenses of the
Borrower to the Note or the Deed of Trust (including, without limitation, the failure or value of consideration, any statute of limitations, accord and satisfaction, and the insolvency of the
Borrower); it being intended, except as expressly set forth in Paragraph 1 above, that such Guarantor shall remain liable hereunder, to the extent set forth herein, notwithstanding any act,
omission or thing which might otherwise operate as a legal or equitable discharge of any of such Guarantor or of the Borrower. 




        4.    Amendment of Note and Deed of Trust.    Without in any manner limiting the generality of the foregoing, the
Lender or any subsequent holder of the Note or beneficiary of the Deed of Trust may, from time to time, without notice to or consent of the Guarantors, agree to any amendment, waiver, modification or
alteration of the Note or the Deed of Trust relating to the Borrower and its rights and obligations thereunder (including, without limitation, renewal, waiver or variation of the maturity of the
indebtedness evidenced by the Note, increase or reduction of the rate of interest payable under the Note, release, substitution or addition of any Guarantor or endorser and acceptance or release of
any security for the Note), it being understood and agreed by the Lender, however, that the Guarantor's obligations hereunder are subject, in all events, to the limitations set forth in
Paragraph 1; provided that (i) in the event that the Lender consents to the release of any Collateral securing the Note pursuant to the
Deed of Trust, the Guaranteed Amount shall be reduced by the Fair Market Value of such Collateral on the date of such release (determined as set forth in Section 1(d)); and (ii) upon any
material change to the Note or the Deed of Trust, including, without limitation, the maturity date or the interest rate of the Note, or upon any release or substitution of any Collateral securing the
Note, within thirty (30) days of any Guarantor's receipt of actual notice of such event, subject to the following
sentence, such Guarantor may elect to terminate such Guarantor's obligations under this Guarantee by written notice to the Lender. Such termination shall take effect on the 31st day following such
actual notice, provided that no default under the Guaranteed Obligation has occurred and is then continuing. 



        5.    Termination of Guarantee.    Subject to Paragraph 4, this Guarantee is irrevocable as to any and all of
the Guaranteed Obligations. 


        6.    Independent Obligations.    Except as expressly set forth in Paragraph 1, the obligations of each
Guarantor hereunder are independent of the obligations of the Borrower, and a separate action or actions may be brought by a Lender against the Guarantors, whether or not actions are brought against
the Borrower. Each Guarantor expressly waives any and all rights of subrogation, reimbursement, indemnity, exoneration, contribution or any other claim which such Guarantor may now or hereafter have
against the Borrower, or any other person directly or contingently liable for the payment or performance of the Note and the Deed of Trust arising from the existence or performance of this Guarantee
(including, but not limited to, the Partnership, Kite Realty Group Trust, or any other partner of the Partnership) (except and only to the extent that a Guarantor makes a payment to the Lender in
excess of the amount required to be paid under paragraph 1 and the limitations set forth therein). 










        7.    Understanding With Respect to Waivers.    Each Guarantor warrants and represents that each of the waivers set
forth above are made with full knowledge of their significance and consequences, and that under the circumstances, the waivers are reasonable and not contrary to public policy or law. If any of said
waivers are determined to be contrary to any applicable law or public policy, such waiver shall be effective only to the maximum extent permitted by law. 


        8.    No Assignment.    No Guarantor shall be entitled to assign his or her rights or obligations under this Guarantee
to any other person without the written consent of the Lender. 


        9.    Entire Agreement.    The parties agree that this Guarantee contains the entire understanding and agreement
between them with respect to the subject matter hereof and cannot be amended, modified or superseded, except by an agreement in writing signed by the parties. 


        10.    Notices.    Any notice given pursuant to this Guarantee shall be in writing and shall be deemed given when
delivered personally, or sent by registered or certified mail, postage prepaid, as follows: 


        If
to the Partnership: 




Kite
Realty Group, L.P.

30 South Meridian, Suite 1100

Indianapolis, IN 46204

Attention: John A. Kite

Facsimile:

  

With a copy to:

    [Insert]





or
to such other address with respect to which notice is subsequently provided in the manner set forth above; and 


        If
to a Guarantor, to the address set forth on Exhibit A hereto, or to such other address with respect to which notice is
subsequently provided in the manner set forth above. 



        11.    Applicable Law.    This Guarantee shall be governed by, interpreted under and construed in accordance with the
laws of the [State of Indiana] without reference to its choice of law provisions. 


        12.    Consent to Jurisdiction; Enforceability    


        (a)   This
Guarantee and the duties and obligations of the parties hereto shall be enforceable against each Guarantor in the courts of the  [State of Indiana]. For such purpose, each Guarantor hereby irrevocably
submits to the nonexclusive jurisdiction of such courts
and agrees that all claims in respect of this Guarantee may be heard and determined in any of such courts. 


        (b)   Each
Guarantor hereby irrevocably agrees that a final judgment of any of the courts specified above in any action or proceeding relating to this Guarantee shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. 



        13.    Condition of Borrower.    Each Guarantor is fully aware of the financial condition of the Borrower and is
executing and delivering this Guarantee based solely upon its own independent investigation of all matters pertinent hereto and is not relying in any manner upon any representation or statement of the
Lender or the Borrower. Each Guarantor represents and warrants that it is in a position to obtain, and hereby assumes full responsibility for obtaining, any additional information concerning the
Borrower's
financial conditions and any other matter pertinent hereto as it may desire, and it is not relying upon or expecting the Lender to furnish to it any information now or hereafter in the Lender's
possession concerning the same. By executing this Guarantee, each Guarantor knowingly accepts the full range of risks encompassed within a contract of this type, which risks it acknowledges. 


        14.    Expenses.    Each Guarantor agrees that, promptly after receiving Lender's notice therefor, such Guarantor
shall reimburse Lender, subject to the limitation set forth in subparagraph 1(e) and to the extent that such reimbursement is not made by Borrower, for all reasonable expenses (including, 











without
limitation, reasonable attorneys fees and disbursements) incurred by Lender in connection with the collection of the Guaranteed Obligations or any portion thereof or with the enforcement of
this Guarantee. 








        IN
WITNESS WHEREOF, the undersigned Guarantors set forth on Exhibit A hereto have executed this Guarantee as of the date first set
forth above. 



	 	 	GUARANTORS SET FORTH ON EXHIBIT A HERETO:
	

 	
 	

By:	

 
	 	 	 	

	

 	
 	

By:	

 
	 	 	 	

	

 	
 	

By:	

 
	 	 	 	

	

 	
 	

By:	

 
	 	 	 	

	

 	
 	

By:	

 
	 	 	 	











Exhibit A  



	Name and Address of Partner Guarantors
 
	 	Guaranteed Amount

	Guarantors, as a group	 	$	 





	 
	 	Individual

Guarantee

Percentage
 

	Individual Guarantors:	 	 
	    	 	 









Exhibit B  



	Name of Lender
 
	 	Name of Borrower
	 	Date of and Principal Amount of Loan
	 	Debt Balance as of    /    /    
	 	Guaranteed

Amount

	    	 	 	 	 	 	 	 	 
	    	 	 	 	 	 	 	 	 









Exhibit C  


 Summary of Principal Terms of Note [or attach copy of Note]  







Exhibit D  


 Identification of Deed of Trust and

Brief Summary Description of Collateral  







Schedule B  


 [Partner Scheduled Guarantee Amount]  



	Name of Partner Guarantors
 
	 	Guaranteed Amount

	    	 	 
	    	 	 













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