Exhibit
10.6


 


REPLACEMENT
GUARANTY OF PAYMENT
AND RECOURSE OBLIGATIONS


 


REPLACEMENT
GUARANTY OF PAYMENT
AND RECOURSE
OBLIGATIONS dated as
of December 15,
2014 (this “Guaranty”),
is executed
by INLAND REAL
ESTATE
INCOME TRUST,
INC.,
a Maryland corporation
(“Guarantor”),
to and
for the benefit
of PNC
BANK, NATIONAL
ASSOCIATION,
a national banking
association
(the “Lender”).


 


R
E C I
T A L
S:


 


A.                
The Lender
has previously extended
a loan
in the principal
amount of TWENTY MILLION
THREE HUNDRED THOUSAND
AND NO/100 DOLLARS
($20,300,000.00) (the “Loan”)
to KRG BRANSON
HILLS, LLC,
a Delaware limited
liability company,
formerly known
as Inland Diversified
Branson Hills,
L.L.C.
(the “Original
Borrower”)
pursuant to
the terms
and conditions
of that
certain Loan
Agreement
dated as
of May
9, 2012
between the
Original Borrower and
the Lender, as
amended by
that certain
Consent to Merger,
Assumption and First
Loan Modification Agreement
made effective as
of July 1,
2014 executed by
and among the
Original Borrower, Inland
Diversified Real
Estate Trust Inc.,
a Maryland corporation (“Original
Guarantor”), Kite Realty Group, L.P.,
a Delaware limited partnership (“Existing
Guarantor”) and
Lender (the
“Consent
to Merger,
Assumption and
First Loan
Modification”) and by
that certain Consent to Sale, Assumptions and Second Loan Modification (as defined
in Recital Paragraph C hereof) (as amended
aforesaid and as the same may be amended,
modified, restated or replaced from time
to time collectively,
the “Loan Agreement”).
All capitalized
terms not
otherwise defined
herein shall
have the meanings
set forth in
the Loan Agreement.


 


B.                 
As a condition
precedent to
the Lender’s
extension
of the Loan
to the Original Borrower
and in consideration
therefor, the
Lender required
the execution
and delivery of
(i) that certain Guaranty
of Payment
and Recourse
Obligations dated as
of May 9,
2012 executed by
the Original Guarantor,
as amended
by and
as assumed
by the Existing
Guarantor pursuant
to the Consent
to Merger, Assumption
and First Loan
Modification (collectively,
the “Original
Guaranty”), (ii)
that certain Promissory
Note dated
as of
May 9,
2012 executed
by the Original Borrower
made payable to
the order of
Lender in the
principal amount
of TWENTY MILLION THREE HUNDRED
THOUSAND AND
NO/100
DOLLARS
($20,300,000.00), (as the same may be amended,
modified, restated or replaced from time
to time, collectively, the “Original
Note”), (iii)
that certain
Deed of Trust,
Security
Agreement, Assignment
of Leases and Rents and Fixture Filing
dated as of May 9, 2012, executed by the Original Borrower for the benefit of Lender
which was recorded
on May 17,
2012 in the
Office of the
Taney County, Missouri
Recorder as Instrument
No. 2012L19018, as
amended
by that certain
First Deed of
Trust and Assignment of Rents and
Leases Modification Agreement made
effective as of July 1, 2014 executed by Original Borrower
and Lender which amended the Permitted
Transfer language contained in the Mortgage as requested by Original
Borrower, Existing Guarantor, the Merger Sub and
KRG, which was
recorded on July
10, 2014 in
the Office of
the Taney County,
Missouri Recorder as Instrument No. 2014L32298 (the “First Mortgage
Modification”) (as amended aforesaid
and as the same may
be amended, modified, restated or replaced
from time
to time collectively,
the “Mortgage”)
encumbering the
real property,
improvements
and personalty described therein
(the “Premises”),
and (iv) the
other Loan Documents.




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C.             
Contemporaneous
with the execution of this Guaranty,
the Guarantor,
the Existing Guarantor, the
Original Borrower,
IREIT Branson
Hills, L.L.C.,
a Delaware
limited liability company
(the “Replacement
Borrower”) and
Lender are entering
into that certain
Consent to Sale, Assumptions and Second
Loan Modification Agreement dated as of
even date herewith (the “Consent to Sale,
Assumptions and
Second Loan
Modification”)
which provides
for: (i)
the sale of
the Premises
to the Replacement
Borrower subject
to the Mortgage,
the Assignment
of Rents and Leases
and the
Lender’s security
interests
therein in consideration
of the Replacement
Borrower’s assumption
of the Loan,
the Debt, the
Obligations and
all of the
Original Borrower’s liabilities
and obligations
under the Loan
Documents as
and to the extent
provided in
Paragraph 5 of the Consent to Sale, Assumptions and Second
Loan Modification and the assumption
by Guarantor of all of the Existing Guarantor’s liabilities
and obligations under the Environmental
Indemnity commencing on the Effective
Date and continuing for
all times thereafter and the Guarantor’s
execution of this Guaranty in order to guarantee
the Obligations (as such term is defined in
this Guaranty) commencing
on the
Effective Date and continuing
for all times thereafter;
and (ii) the mortgaging and granting
a security interest to Lender in the New Additional Property
pursuant to the
Second Deed of
Trust and Assignment
of Rents and
Leases Modification (as such terms are defined in the Consent to Sale, Assumptions
and Second Loan Modification and incorporated herein
by this reference).


 


D.            
One of Lender’s
Conditions Precedent for
consenting to the
Sale and the assumption
by the Replacement
Borrower of the
Loan, the
Debt, the Obligations
and all of Original
Borrower’s obligations
and liabilities
under the
Loan Documents
as and to
the extent provided in
Paragraph 5 of
the Consent to
Sale, Assumptions
and Second Loan
Modification is the Replacement
Borrower’s execution and
delivery to Lender
of that certain
First Amended and Restated
Promissory Note
dated of even
date herewith
executed by
the Replacement
Borrower and made
payable to the
order of
Lender in the
principal amount of
TWENTY MILLION
TWO HUNDRED FORTY
THOUSAND AND
NO/100 DOLLARS
($20,240,000.00) (the “First Amended
and Restated Note”), which amends,
restates and replaces the Original Note in its entirety hereunder (hereinafter, the First Amended
and Restated Note,
as the same
may be amended,
modified, restated or
replaced
from time to
time, is
collectively referred to
herein as, the “Note”).


 


E.              
Upon the Sale
of the Premises
to the Replacement
Borrower and the
execution of the transactions
provided for in
the Consent
to Sale, Assumptions
and Second Loan Modification,
the Guarantor shall
own one hundred
percent (100%)
of the
membership
interests of the
Replacement Borrower,
and thereby having
a financial interest
in the Premises,
has agreed to execute
and deliver
this Guaranty
to the Lender
in satisfaction of
one of
Lender’s Conditions Precedent
to consenting to
the Loan Parties’
Request (as
such term is
defined in the
Consent to Sale, Assumptions
and Second
Loan Modification).


 


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


 


AGREEMENTS:


 


1.              
Definitions. All terms
defined in
the foregoing
Recitals are
incorporated
into and made
a part of
this Guaranty as
if set forth
herein. In this
Guaranty, all capitalized
terms used




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and
not otherwise expressly
defined herein
shall have
the meaning
ascribed
to such terms
in the Loan Agreement.


 


(2)              
Guaranty of
Payment and Recourse
Obligations. The Guarantor
hereby unconditionally,
absolutely and
irrevocably guaranties
to Lender, the
punctual payment
and performance when
due, whether at
stated maturity
or by acceleration
or otherwise, of
the: Payment Obligations
(as such term
is hereinafter
defined), and (b)
Recourse Obligations (as such
term is hereinafter
defined).


 


As
used herein, the
term, the “Payment
Obligations” shall
mean the
indebtedness and other
obligations of
the Borrower
to the
Lender:
(i) evidenced
by the
Note and any
other amounts
that may
become owing
by the Borrower
under the Loan
Agreement and
the other Loan Documents;
and (ii) any
and all obligations
and liabilities
of Borrower to
Lender or
to any affiliate
of Lender, whether
now owing or
existing
or later
arising or
created,
owed absolutely
or contingently, whether
evidenced or acquired
(including all renewals,
extensions and modifications thereof or substitutions) under (a) any agreement,
device or arrangement designed to protect
Borrower from fluctuations
of interest
rates, exchange
rates or
forward rates,
including, but not
limited to, dollar-denominated
or cross-currency
exchange agreements, forward currency
exchange agreements, interest
rate caps, collars or floors, forward rate
currency or interest rate options, puts,
warrants, swaps, swaptions, U.S.
Treasury locks and U.S. Treasury options, (b)
any other interest
rate hedging
transactions, such
as, but not
limited to,
managing the Borrower’s interest
rate risk associated
with any pending or
potential capital market
transactions such as fixed
rate bond issues
and (c) any
and all
cancellations, buybacks,
reversals, terminations
or assignments of any of the foregoing.


 


As used
herein, the term,
the “Recourse
Obligations” shall mean:


 


(a)            
All expenses
and costs incurred
by or on
behalf of Lender
(including, without limitation,
expenses and reasonable
attorneys’ fees) in
enforcing the rights
and remedies
of Lender under this
Guaranty and/or the
other Loan
Documents,
together with all
interest calculated at
the Default
Rate (as such
term is defined
in the
Loan Agreement)
until paid on
all amounts owed
by Guarantor which
accrue from and
after Lender's
demand for
payment is delivered
to Guarantor;


 


(b)           
All damages,
expenses or costs
suffered or incurred
by Lender
as a result
of any intentional
material misrepresentation
in any of the Loan Documents;


 


(c)            
All damages,
expenses or costs
suffered or
incurred by Lender
as a result
of physical waste with
respect to any portion of the Premises;


 


(d)           
All damages,
expenses or costs
suffered or incurred
by Lender as
a result of
the removal or
disposal of any
property in which
Lender has
a security interest
in violation
of the terms and conditions of the
Loan Documents;


 


(e)            
All damages,
expenses or costs
suffered or
incurred by Lender
as a result
of claims for
compensation asserted
by any real
estate broker
not employed
by Lender or
as a result of
any such broker's
liens on the
Premises or
mechanic’s or
materialmen's
liens not expressly permitted
or contested under
the Mortgage;




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(f)            
All damages,
expenses or costs
suffered or incurred
by Lender as
a result of
the application of
any insurance
proceeds
or condemnation
awards (to
the full
extent of
such proceeds or
awards) not permitted
by the
Mortgage or
the failure
of Borrower to
maintain
the insurance coverages required
by the Loan
Agreement;


 


(g)           
All revenues received
by or on
behalf of Borrower
from the operation
or ownership of
the Premises
after the
occurrence of an
Event of Default
less only that
portion of such revenues
which is (A)
actually used
by Borrower to
operate the
Premises in
the ordinary course
of business and
such use is
approved in writing
by the Lender
or (B)
paid to Lender;
and


 


(h)           
All security
deposits provided for
in any Leases
for any part
of the Premises
(together with interest
thereon to the
extent that interest
is payable under
such Leases)
which are
not used in
the ordinary course
of business to
cure defaults by
tenants depositing the
same, returned
to tenants in
accordance with
the terms
of their Leases
or paid over
to Lender and
all lease termination
fees payable
for terminating
any such Leases
which are not
paid jointly
to Borrower and Lender.


 


As
used herein, the
Payment Obligations,
the Recourse
Obligations together
with all other
payment and
performance obligations
of the
Guarantor hereunder, are
collectively referred to herein
as, the “Obligations.”
Obligations shall
include the liabilities
to Lender with respect
to any Swap Obligation
(as such term
is defined in
the Loan Agreement)
in connection with
the Loan, however, notwithstanding
anything to the
contrary contained herein,
the Obligations
shall not include
any Excluded Hedge
Liabilities (as such term is
defined in
the Loan Agreement
and incorporated herein by this reference).


 


This
Guaranty is a
present and continuing
guaranty of
payment and not
of collectability, and Lender
shall not be
required to prosecute
collection, enforcement
or other remedies
against Borrower or any
other guarantor of
the Obligations,
or to enforce
or resort
to any collateral
for the repayment
of the Obligations
or other rights
or remedies
pertaining thereto, before
calling on the Guarantor
for payment.
If for any
reason the
Borrower shall
fail or
be unable
to pay, punctually
and fully, any
of the Obligations,
the Guarantor shall
pay such obligations
to Lender in full
immediately upon
demand.
One or more
successive actions
may
be brought against
the Guarantor, as often as Lender deems advisable,
until all of the Obligations are
paid and performed in full.


 


3.               Guarantor’s Liability for Payment
Obligations. Notwithstanding anything contained herein to 
the contrary or anything inconsistent contained herein, Guarantor shall only
be liable under this
Guaranty for Payment
Obligations as follows:


 


(a)            
Upon the occurrence of any of the following events:


 


		(i)	there is fraud
by Borrower or
Guarantor with
respect to
the Loan;



 


		(ii)	a Prohibited
Transfer occurs;



 


		(iii)	Borrower
contests, delays
or otherwise
hinders any action
taken by
Lender in good
faith following an
Event of Default
in connection with
the appointment of
a receiver for
the Premises
or the
foreclosure of
the liens,





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the Mortgage
or other security interests created by
any of the Loan Documents;


 


		(iv)	Borrower
voluntarily files for
bankruptcy or
an involuntarily
bankruptcy or insolvency
proceeding is
commenced against
Borrower by any
person (other than Lender)
and such involuntary
bankruptcy or
proceedings is
not dismissed
within sixty (60)
days after
the filing thereof;
or



 


		(v)	Borrower
fails to establish
the Lockbox
and the
Lockbox Account
as and
when required under
Sections 5.16
and 5.17 of
the Loan Agreement
including, without limitation,
Borrower fails to
send letters to
all tenants under all
Leases directing
and requiring
that all
rents be
paid under
the Leases directly
to the Lockbox
Account on or
before the expiration
of the DSC
Deficiency
Cure Period.



 


Guarantor’s
liability for
the Payment
Obligations
upon the
occurrence of
any of
the foregoing events contained in this
Paragraph 3(a) shall be unlimited.


 


(b)           
Subject to
the limitations
set forth
in Paragraph
24 of
this Guaranty, if
the Debt Service Coverage
Ratio for the
Property
falls below
1.00:1.00 as
determined
under Section
5.15 of the
Loan Agreement
(each, a “DSC
Deficiency”),
then Guarantor
shall have recourse
liability for the
Payment Obligations
solely as
a result
of the
DSC Deficiency
subject to
the limitations
set forth
in Paragraph
24 below.
Notwithstanding anything
to the
contrary or
inconsistent herein, provided no Event of Default exists, Guarantor’s
liability for the
Payment Obligations pursuant to
this Paragraph
3(b) shall
terminate if the
Debt Service
Coverage Ratio for
the Property equals or exceeds
1.00:1.00 as reasonably determined
by Lender for two (2) consecutive calendar quarters. Guarantor’s liability
for the
Payment Obligations
pursuant
to this Paragraph 3(b)
shall be subsequently reinstated
if, at any time thereafter,
the Debt Service Coverage Ratio for
the Property falls
below 1.00:1.00 subject to the limitations
contained in Paragraph 24 of
this Guaranty.


 


4.              
Guarantor Covenants.
In the event
Guarantor becomes
liable for the
Payment Obligations pursuant
to the
application of
Section 3(b) of
this Guaranty, then
Guarantor hereby covenants
and agrees with
Lender that Guarantor
will satisfy
each of the
following covenants at all
times so
long as this
Guaranty remains
in effect:


 


(a)            
Maximum
Corporate Leverage.
The ratio
of Total Indebtedness
to Gross Asset Value
shall at
no time
be greater than
60%, except
that once during
the term of
the Loan, leverage
will be
permitted
to increase
to 65%
for two
consecutive fiscal
quarters (the
“Surge Provision”).
Such covenant shall
be tested as
of the last
day of each
fiscal quarter if and
when this covenant
is in
effect based
upon Guarantor’s compliance
certificate for such quarter.


 


(b)           
Consolidated Minimum
Tangible Net
Worth. Consolidated
Tangible Net Worth
shall at
no time
be less
than (i)
85%
of the Guarantor’s
actual Consolidated
Tangible Net Worth
at the closing
of the transactions
provided
for in
the Consent
to Sale, Assumptions
and Second Loan
Modification, plus
75% of the
equity contributions or




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sales
of treasury stock
received by the
Guarantor after
such closing. Such
covenant shall be tested
as of the
last day
of each fiscal
quarter if
and when
this covenant
is in effect
based upon Guarantor’s
compliance certificate
for such quarter.


 


(c)            
All Borrowings
Duly Authorized. Guarantor
covenants that
its aggregate
borrowings owed to
all Persons
shall not exceed
the amount
authorized by
the Guarantor’s Board of Directors from time
to time.


 


All
capitalized
terms
used in Sections
4(a) and 4(b)
of this
Guaranty shall
have the same
definitions as
contained in that
certain Summary
of Terms
and Conditions
- October 2014
issued to Guarantor by Key Banc Markets Capital
for a revolving
line of credit facility.


 


5.              
Representations
and Warranties.
The following
shall constitute
representations
and warranties of
Guarantor, and Guarantor
hereby acknowledges
that Lender intends
to make the
Loan in reliance
thereon:


 


(a)            
The Guarantor is not in default,
and no event has occurred which, with
the passage of time
and/or the giving
of notice, would
constitute a default,
under any agreement
to which Guarantor is
a party (beyond
applicable notice
and/or cure periods),
the effect of
which will impair
performance
by Guarantor of
its obligations
under this Guaranty.
Neither the execution and
delivery of this Guaranty
nor compliance
with the terms
and provisions hereof
will violate any applicable
law, rule, regulation,
judgment,
decree or order,
or will conflict
with or result
in any
breach of any
of the
terms,
covenants, conditions
or provisions
of any
indenture, mortgage, deed
of trust, instrument,
document, agreement
or contract of
any kind that
creates, represents, evidences or
provides for any
lien, charge or
encumbrance upon
any of the
property or assets
of Guarantor, or
any other
indenture, mortgage,
deed of trust,
instrument, document,
agreement or
contract of any
kind to which
Guarantor is
a party
or to which
Guarantor or
the property of Guarantor
may be
subject.


 


(b)           
There are
no litigation, arbitration,
governmental or
administrative
proceedings, actions, examinations,
claims or
demands pending,
or to
the knowledge
of Guarantor,
threatened that could adversely
affect in any
material respect
performance by
Guarantor
of its obligations
under this Guaranty.


 


(c)            
Neither this
Guaranty nor
any statement
or certification
as to facts
previously furnished
or required
herein to
be furnished
to Lender
by Guarantor, contains
any material inaccuracy
or material
untruth in any
representation,
covenant or warranty
or omits
to state a
fact material to
this Guaranty.


 


6.              
Continuing Guaranty.
The Guarantor
agrees that
performance of the Obligations
by Guarantor shall
be a primary
obligation, shall
not be subject
to any counterclaim (other
than a mandatory
counterclaim), set-off,
abatement,
deferment or
defense (other
than the defense of
payment) based
upon any claim
that Guarantor may
have against the
Lender, the Borrower,
any other
guarantor of
the Obligations
or any
other person
or entity,
and shall
remain in full
force and effect
without regard
to, and shall
not be
released, discharged
or affected
in any
way by, any
circumstance or
condition (whether
or not
Guarantor
shall have
any knowledge thereof):




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(a)            
any lack
of validity
or enforceability of any of the
Loan Documents;


 


(b)           
any termination,
amendment,
modification
or other
change in
any of
the Loan
Documents, including, without limitation,
any modification
of the interest rate(s)
described therein;


 


(c)            
any furnishing,
exchange, substitution
or release of
any collateral securing
repayment of the Loan, or any failure to perfect
any lien in such
collateral;


 


(d)           
any failure,
omission or
delay on the
part of the
Borrower, the Guarantor,
any other guarantor of
the Obligations
or the Lender
to conform or
comply with
any term of
any of the Loan
Documents or
any failure of
the Lender to
give notice
of any
Event
of Default
(as such term
is defined in the Loan Agreement);


 


(e)            
any waiver,
compromise,
release, settlement
or extension of
time
of payment
or performance or
observance of any
of the obligations
or agreements
contained in any
of the Loan Documents;


 


(f)            
any action
or inaction by
the Lender under
or in
respect of
any of
the Loan
Documents, any
failure, lack of
diligence, omission
or delay on
the part
of the
Lender to
perfect, enforce, assert
or exercise any
lien, security interest,
right, power or
remedy conferred
on it in any of the Loan Documents,
or any other action or inaction on the part of the Lender;


 


(g)           
any
voluntary or
involuntary bankruptcy,
insolvency, reorganization, arrangement,
readjustment, assignment
for the benefit
of creditors,
composition, receivership,
liquidation, marshaling
of assets and
liabilities or similar
events or proceedings
with respect to the
Borrower, the Guarantor
or any other
guarantor of the
Obligations, as applicable,
or any of their
respective property
or creditors,
or any action
taken by
any trustee
or receiver
or by
any court in
any such proceeding;


 


(h)           
any merger
or consolidation of
the Borrower
into or
with any
entity, or
any sale,
lease or transfer
of any of
the assets
of the Borrower,
the Guarantor
or any
other guarantor
of the
Obligations to any
other person
or entity;


 


(i)             
any
change in
the ownership
of the
Borrower or
any change
in the relationship
between the
Borrower, the Guarantor,
or any
other guarantor of
the Obligations,
or any termination
of any such
relationship;


 


(j)             
any release
or discharge by
operation of law
of the Borrower,
the Guarantor
or any other guarantor
of the
Obligations from
any obligation
or agreement
contained in
any of the Loan Documents;
or


 


(k)           
any other
occurrence, circumstance,
happening or
event, whether similar
or dissimilar
to the
foregoing and
whether foreseen
or unforeseen,
which otherwise
might constitute
a legal or
equitable defense or
discharge of
the liabilities
of a guarantor
or surety or
which otherwise might limit
recourse against the Borrower or
the Guarantor
to the fullest
extent permitted by
law.




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7.              
Waivers. The
Guarantor expressly and
unconditionally waives
(i) notice of
any of the matters
referred
to in Paragraph
6 above, (ii)
all notices which
may be
required by statute, rule
of law or
otherwise, now
or hereafter in
effect, to preserve
intact any rights
against the Guarantor, including,
without limitation,
any demand,
presentment
and protest,
proof of
notice of nonpayment
under any of
the Loan Documents
and notice of
any Event of
Default or any
failure on the
part of Borrower,
Guarantor or any
other guarantor of
the Obligations to perform
or comply
with any
covenant, agreement,
term or condition
of any of
the Loan Documents, (iii) any right
to the enforcement, assertion or exercise against the
Borrower, the Guarantor or any other guarantor of the Obligations
of any right
or remedy
conferred under any of the Loan Documents,
(iv) any requirement of diligence
on the part of any person or entity, (v) any requirement
on the part of Lender to exhaust
any remedies or to mitigate
the damages resulting from any default
under any of the Loan Documents, and (vi) any notice of any sale, transfer
or other disposition
of any right, title or interest of the Lender under any of the Loan Documents.


 


8.              
Subordination.
The Guarantor
agrees that
any and all
present and
future debts and
obligations of
Borrower to
Guarantor
are hereby subordinated
to the claims
of the Lender
and are
hereby assigned
by Guarantor
to the Lender
as security
for the
Obligations and
the obligations of
Guarantor under this
Guaranty.


 


9.              
Subrogation Waiver.
Until the Obligations
are paid in
full and all
periods under applicable
bankruptcy law for
the contest of
any payment by Guarantor or Borrower
as a preferential or fraudulent
payment have
expired, the
Guarantor knowingly, and
with advice of counsel,
waives, relinquishes, releases
and abandons all
rights and
claims to
indemnification, contribution, reimbursement,
subrogation and payment
which the Guarantor
may now
or hereafter have by
and from Borrower
and the successors
and assigns
of Borrower, for any payments
made by Guarantor
to the Lender,
including, without limitation,
any rights which might
allow Borrower, the Borrower's successors,
a creditor of Borrower, or a trustee
in bankruptcy of Borrower to claim in bankruptcy or any other similar
proceedings that any payment made
by Borrower or the Borrower’s successors and assigns
to the Lender was on behalf of
or for the benefit
of Guarantor
and that such
payment is
recoverable by Borrower,
a creditor or trustee
in bankruptcy of
the Borrower
as a preferential payment, fraudulent conveyance, payment
of an insider or any other classification of payment which may otherwise be recoverable
from the Lender.


 


10.              
Reinstatement.
The obligations
of the Guarantor
pursuant to this
Guaranty shall continue
to be effective
or automatically
be reinstated,
as the case may
be, if at
any time
payment of
any of
the Obligations
or the
obligations of
the Guarantor under
this Guaranty
is rescinded or otherwise
must be
restored or
returned by Lender
upon the
insolvency, bankruptcy,
dissolution, liquidation or
reorganization of Guarantor
or Borrower
or otherwise, all
as though such
payment had not been made.


 


11.           
Financial Statements.
The Guarantor represents
and warrants to
Lender that (a) the
financial
statements of
the Guarantor previously
submitted to
Lender are
true, complete
and correct in all
material respects,
disclose
all actual and
contingent liabilities, and
fairly present
the financial condition of
Guarantor, and do
not contain any
untrue statement
of a material
fact or omit
to state
a fact
material to
the financial
statements
submitted or
this Guaranty,
and (b)
no




    	8



    	 



    

material
adverse change
has occurred
in the
financial
statements
from the
dates thereof
until the date hereof.
So long as
this Guaranty remains
in effect, the
Guarantor covenants and
agrees to deliver to
Lender or
its authorized
representatives
the financial
statements and
other information
regarding Guarantor as
required under
Section 5.9
of the Loan
Agreement which
is incorporated
herein by this
reference.


 


12.           
Transfers; Sales.
Etc. The
Guarantor shall not
sell, lease, transfer,
convey or assign any
of its
assets, unless such
sale, lease, transfer,
conveyance or
assignment is
performed in the
ordinary course
of its
business consistent
with past practices,
and will not
have a
material adverse effect
on the business
or financial condition
of Guarantor or
its ability to
perform its obligations hereunder.
In addition, Guarantor
shall
neither become
a party to any
merger or consolidation,
nor, except in
the ordinary course
of its
business consistent
with past
practices, acquire
all or substantially
all of the
assets of,
a controlling interest
in the stock
of, or a partnership
or joint venture interest
in, any other entity.
Notwithstanding anything
contained herein
to the contrary,
Guarantor may
engage in those transfers
and transactions to the extent
they are permitted
in accordance with the terms of
the Mortgage.


 


13.           
Enforcement Costs.
If: (a) this
Guaranty, is placed
in the hands
of one or
more attorneys for
collection or is
collected through
any legal proceeding;
(b) one or
more attorneys
is retained to represent
the Lender in
any bankruptcy,
reorganization, receivership
or other proceedings
affecting creditors'
rights and
involving a
claim under this
Guaranty, or
(c) one or
more attorneys
is retained to
represent the Lender
in any
other proceedings
whatsoever
in connection with this
Guaranty, then the
Guarantor shall
pay to the
Lender upon demand
all fees, costs and
expenses incurred by
the Lender in
connection
therewith, including,
without limitation, reasonable
attorney's fees, court costs
and filing fees (all
of which are
referred to herein
as, the “Enforcement Costs”),
in addition to
all other amounts
due hereunder.


 


14.           
Successors and
Assigns; Joint and
Several Liability.
This Guaranty
shall inure to
the benefit
of the Lender
and its successors
and assigns.
This Guaranty
shall be
binding on
Guarantor and
the successors and
assigns of Guarantor.
It is agreed
that the liability of Guarantor
hereunder is several
and independent
of any
other guarantees
or other
obligations at
any time
in effect
with respect
to the Obligations
or any part
thereof and
that the
liability of Guarantor
hereunder may be
enforced regardless of the
existence, validity, enforcement
or nonenforcement of any such other guarantees
or other obligations.


 


15.           
No Waiver
of Rights.
No delay or
failure on the
part of Lender
to exercise any right,
power or privilege
under this Guaranty
or any of
the other
Loan Documents
shall operate as a
waiver thereof, and
no single or
partial exercise
of any
right, power
or privilege shall preclude
any other
or further
exercise
thereof or
the exercise
of any
other power
or right,
or be
deemed to
establish a
custom or course
of dealing
or performance
between the parties
hereto. The rights and
remedies herein
provided are cumulative
and not exclusive
of any rights
or remedies provided
by law. No
notice to or
demand
on Guarantor in
any case shall
entitle Guarantor to
any other or
further notice or
demand in
the same, similar
or other circumstance.


 


16.           
Modification.
The terms
of this Guaranty
may be
waived,
discharged, or
terminated only
by an instrument
in writing signed
by the party
against which enforcement
of the change, waiver,
discharge or termination
is sought. No
amendment, modification,
waiver or




    	9



    	 



    

other
change of any
of the terms
of this Guaranty
shall be effective
without the prior
written consent of the Lender.


 


17.           
Joinder. Any
action to enforce
this Guaranty
may be
brought against
Guarantor without any
reimbursement
or joinder of
Borrower or any
other guarantor of
the Obligations in such action.


 


18.           
Severability.
If any
term, covenant
or provision
of this Guaranty
shall be held
to be invalid,
illegal or
unenforceable in
any respect, the
remainder of
this Guaranty
shall remain
in full force and effect and shall be
construed without
such term, covenant
or provision.


 


19.           
Applicable Law.
This Guaranty is
governed as to
validity, interpretation, effect and
in all other
respects by laws
and decisions of the State of Illinois.


 


20.           
Notices. All
notices, communications
and waivers under
this Guaranty shall
be in writing and
shall be (a)
delivered in person
or (b)
by overnight express
carrier, addressed
in each case as follows:


 


To
Lender:


PNC Bank,
National Association


One North
Franklin Street, Suite 2150


Chicago, Illinois 60606


Attn:
Joel G. Dalson,
Senior Vice President


 


With
a copy to:


Robbins, Salomon & Patt, Ltd.


180 North LaSalle Street,
Suite 3300


Chicago,
Illinois 60601


Attn: Andrew M. Sachs, Esq.


 


To
the Guarantor:


Inland
Real Estate Income
Trust, Inc.


2901 Butterfield
Road


Oak Brook, Illinois 60523


Attn:President


 


With
a copy to:


The
Inland Real Estate
Group, Inc.


Attn: General Counsel


2901
Butterfield Road


Oak Brook, Illinois 60523


Attn: Robert Baum,
Esq., General Counsel


 


or
to any other
address as to
any of the
parties hereto, as
such party
shall designate
in a written
notice to the
other parties hereto.
All notices sent
pursuant to
the terms
of this Section
shall be deemed
received (i) if
personally delivered, then
on the date
of delivery, (ii)
if sent by
overnight, express carrier,
then on the
next federal banking
day immediately
following the
day sent, or
(iii) if sent by
registered or certified
mail, then on
the earlier of
the third federal
banking day following
the day sent
or when actually
received.




    	10



    	 



    

21.           
CONSENT
TO JURISDICTION.
TO INDUCE LENDER
TO ACCEPT THIS GUARANTY,
GUARANTOR
IRREVOCABLY
AGREES
THAT, SUBJECT
TO THE
LENDER’S SOLE AND
ABSOLUTE ELECTION, ALL
ACTIONS OR
PROCEEDINGS
IN ANY WAY
ARISING OUT
OF OR
RELATED
TO THIS
GUARANTY
WILL
BE LITIGATED
IN COURTS
HAVING SITUS
IN CHICAGO,
ILLINOIS. THE
GUARANTOR
HEREBY
CONSENTS
AND SUBMITS
TO THE
JURISDICTION
OF ANY
COURT LOCATED WITHIN
CHICAGO, ILLINOIS.


 


22.           
WAIVER
OF DEFENSES.
OTHER
THAN CLAIMS
BASED
UPON THE
FAILURE OF
THE LENDER
TO ACT
IN A
COMMERCIALLY
REASONABLE
MANNER, GUARANTOR
WAIVES
EVERY PRESENT
AND FUTURE
DEFENSE (OTHER
THAN THE
DEFENSE OF
PAYMENT
IN FULL),
CAUSE OF
ACTION, COUNTERCLAIM
OR SETOFF
WHICH GUARANTOR OR
BORROWER MAY
NOW HAVE
OR HEREAFTER
MAY HAVE TO
ANY ACTION BY
LENDER IN
ENFORCING THIS
GUARANTY
OR ANY
OF THE
LOAN DOCUMENTS.
THIS PROVISION
IS A
MATERIAL
INDUCEMENT FOR
THE LENDER GRANTING
ANY FINANCIAL
ACCOMMODATION TO
BORROWER.


 


23.           
WAIVER
OF JURY
TRIAL.
THE GUARANTOR
AND LENDER
(BY ACCEPTANCE
HEREOF),
HAVING BEEN
REPRESENTED
BY COUNSEL,
EACH KNOWINGLY
AND VOLUNTARILY
WAIVES
ANY RIGHT
TO A
TRIAL BY
JURY IN
ANY ACTION
OR PROCEEDING
TO ENFORCE
OR DEFEND
ANY RIGHTS
UNDER THIS
GUARANTY
OR UNDER
ANY AMENDMENT,
INSTRUMENT,
DOCUMENT OR
AGREEMENT
DELIVERED OR
WHICH MAY
IN THE
FUTURE BE
DELIVERED
IN CONNECTION
HEREWITH
AND AGREES
THAT ANY
SUCH ACTION
OR PROCEEDING
WILL
BE TRIED
BEFORE A
COURT AND NOT
BEFORE A JURY.
THE GUARANTOR
AGREES
THAT GUARANTOR
WILL
NOT ASSERT
ANY CLAIM
AGAINST THE LENDER
ON ANY THEORY
OF LIABILITY
FOR SPECIAL, INDIRECT,
CONSEQUENTIAL,
INCIDENTAL
OR PUNITIVE
DAMAGES.


 


24.           
Limitation of
Liability. Notwithstanding anything
to the
contrary contained
herein, the Guarantor’s
liability for the
Payment Obligations
under this
Guaranty pursuant to
the application of
Paragraph 3(b) of
this Guaranty
shall be limited
to the payment
of (i) the sum
of SIX MILLION SEVENTY-TWO
THOUSAND AND
NO/100 DOLLARS
($6,072,000.00), plus


(ii) 
interest
on the foregoing
amount from
and after the
date of written
demand
from the
Lender to the
Guarantor for payment,
at a per
annum rate
of interest equal
to the Default
Rate (as defined in
the Loan Agreement),
plus (iii) all Enforcement
Costs; provided, however,
that at all times
prior to the
payment in
full of
the Obligations,
the Guarantor
shall have
unlimited liability with
respect to
the following:


 


(a)            
the guaranty
of the payment
and performance
of the Payment
Obligations upon
the occurrence
of any
one of
the events
described in
Paragraph 3(a)
of this Guaranty; and


 


		(b)	the Recourse Obligations.



 


Under
no circumstances
shall the liability
of the
Guarantor hereunder
be reduced by, from
or as a
result of any
payment to
or amount
realized by the
Lender from any
rents, deposits,




    	11



    	 



    

insurance
proceeds, condemnation
awards, proceeds
from bankruptcy sale,
foreclosure or
any conveyance in lieu
of foreclosure or
from any other
profits, avails, revenues
or proceeds derived from
the Premises,
and only payments
made to
the Lender by
the Guarantor out
of its personal funds
not derived from the
Premises after
demand therefor
by the Lender
shall be applied
against such liability. Furthermore,
the foregoing limitation
on liability
shall not limit
in any way
the liability of
the Guarantor
pursuant to
or arising
from the guaranty
of the Payment
Obligations upon the
occurrence of any
of the events set forth in Paragraph
3(a) hereof or
any of the
other covenants, representations,
warranties or
other provisions hereof, other
than the liability
of the Guarantor pursuant
to or arising
from its guaranty
of the Payment
Obligations pursuant
to the application
of Paragraph 3(b) of
this Guaranty as a result of a DSC Deficiency as described therein,
nor shall such limitation limit the liability
of the Guarantor that may arise out of the obligations
set forth in that certain Environmental
Indemnity Agreement
dated as of May 9, 2012, jointly and
severally executed by
the Original Guarantor
and the Original
Borrower to and for the benefit of
the Lender, as amended and assumed
by the Existing Guarantor pursuant to
the Consent to Merger,
Assumption and
First Loan Modification
and as contemporaneously herewith being amended
and assumed by Guarantor
and the Replacement Borrower respectively
pursuant to the Consent to Sale, Assumptions
and Second Loan Modification (collectively, the “Environmental Indemnity”),
the intent being that the Guarantor
shall have unlimited liability with
respect to the
guaranty of the
Payment Obligations
upon the occurrence
of any of
the events contained in
Paragraph 3(a) of
this Guaranty, the Recourse Obligations,
such other
covenants, representations, warranties and other provisions
hereof, and under
the Environmental
Indemnity.


 


25.           
Keepwell.
The Guarantor and
each other Loan
Party, if it
is a Qualified
ECP Loan Party, jointly
and severally, hereby
absolutely unconditionally
and irrevocably: (a) guarantees
the prompt
payment and
performance of
all Swap Obligations
owing by each
Non- Qualifying Party (it
being understood
and agreed that
this guarantee
is a guaranty
of payment and
not of collection)
and (b) undertakes
to provide
such funds
or other
support as may
be needed from
time
to time
by any
Non-Qualifying
Party to
honor all
of such
Non Qualifying Party’s obligations under this Guaranty or any Loan Document
in respect of Swap Obligations (provided, however, that each
Qualified ECP Loan
Party shall only
be liable under
this Paragraph 25 for the
maximum
amount of such liability that
can be hereby
incurred without rendering its obligations under this Paragraph
25, or otherwise under this Guaranty or any Loan Document,
voidable under applicable law, including applicable law relating to
fraudulent conveyance or
fraudulent transfer, and
not for any
greater amount). The
obligations of each Qualified ECP
Loan Party under this Paragraph
25 shall remain
in full force and effect
until payment in full of the Obligations
and termination
of this Guaranty and the Loan Documents.
Each Qualified ECP Loan Party intends that this
Paragraph 25
constitute, and this Paragraph
25 shall be deemed to constitute,
a guarantee of the obligations
of, and a “keepwell, support, or other agreement”
for the benefit of each other Borrower and Guarantor for all purposes of Section 1a(18)(A)(v)(II)
of the CEA.


 


26.           
Anti-Money Laundering/International
Trade Law
Compliance Representation
and Warranty.
The Guarantor
herby represents and
warrants to
Lender as
of the date
of this Guaranty
as follows, and
Guarantor hereby
acknowledges that
Lender intends to make
the Loan in
reliance
thereon:
(a) no
Covered Entity
is a Sanctioned
Person and (b)
no Covered Entity,
either in its
own right
or through any
third party: (i)
has any of
its assets in
a Sanctioned Country or
in the possession,
custody or control
of a Sanctioned
Person in violation




    	12



    	 



    

of
any Anti-Terrorism Law;
(ii) does business
in or with,
or derives any
of its income
from investments
in or transactions
with, any
Sanctioned Country
or Sanctioned Person
in violation
of any Anti-Terrorism
Law or (iii)
engages in any
dealings or
transactions prohibited by
any Anti- Terrorism
Law.


 


It
shall be an
automatic Event
of Default under
the Loan Agreement
(without any notice, grace
or cure
period) if
any representation
or warranty contained
in this Paragraph
26 is
or becomes false
or misleading
at any time.


 


27.           
Anti-Money Laundering/International
Trade Law
Compliance Covenant. The
Guarantor covenants
and agrees to
all of the
covenants and obligations
contained in
this Paragraph 27.
No Covered Entity
will become
a Sanctioned
Person. No Covered
Entity, either in
its own right
or through any
third party,
will: (a)
have any
of its assets
in a
Sanctioned Country or
in the possession,
custody or control
of a Sanctioned
Person in violation
of any Anti- Terrorism Law;
(b) do business
in or with,
or derive any
of its income from investments in
or transactions with, any
Sanctioned Country or Sanctioned Person
in violation of
any Anti- Terrorism Law; (c) engage in any dealings or
transactions prohibited by any Anti-Terrorism Law or (d) use the Advances to fund any operations in,
finance any investments or activities in, or, make
any payments to, a Sanctioned Country or Sanctioned
Person in violation
of any
Anti- Terrorism Law. The funds
used to repay the Obligations will not be derived
from any unlawful
activity. Each Covered Entity shall comply
with all Anti-Terrorism Laws. The Guarantor shall promptly
notify the Lender in writing upon the occurrence of a Reportable
Compliance Event.


 


Any
default, breach or
violation
of any
covenant contained in
this Paragraph
27 shall
be an automatic
Event of Default
under the
Loan Agreement
(without any
notice, grace
or cure period).


 


28.           
Definitions Regarding “Anti-Money
Laundering”/International Trade
Law Compliance. For purposes of
Paragraphs 26 and 27 of this Guaranty, the
following terms shall have the following
meanings:


 


“Anti-Terrorism
Laws” shall
mean any
Laws relating
to terrorism,
trade sanctions programs
and embargoes,
import/export licensing,
money
laundering or
bribery, and
any regulation, order,
or directive promulgated,
issued or
enforced pursuant
to such
Laws, all
as amended, supplemented
or replaced from time
to time.


 


“Covered
Entity” shall
mean: (a)
Borrower, each of
Borrower’s Subsidiaries,
the Guarantor, all guarantors
of the Obligations
and all
pledgors of Collateral
and (b) each
Person that, directly or
indirectly, is in
control of a
Person described in
clause (a) above.
For purposes of this
definition, control of
a Person
shall mean
the direct
or indirect:
(x) ownership of,
or power to vote,
twenty-five
percent (25%)
or more
of the issued
and outstanding
equity interests
having ordinary voting
power for the
election of directors of such Person
or other Persons performing similar
functions for such
Person or (y)
power to
direct or
cause the
direction of
the management
and policies of
such Person whether
by ownership of
equity interests,
contract or
otherwise.




    	13



    	 



    

“Governmental
Body” shall
mean any
nation or government,
any state or
other political subdivision
thereof or
any entity,
authority, agency,
division or department
exercising the executive, legislative,
judicial, taxing, regulatory
or administrative
powers or functions
of or pertaining to
a government
(including any
supra-national bodies
such
as the
European Union
or the European
Central Bank)
and any
group or
body
charged with
setting financial
accounting or
regulatory capital rules
or standards
(including, without
limitation,
the Financial Accounting Standards
Board, the
Bank for
International Settlements
or the Basel
Committee on
Banking Supervision or any
successor or similar
authority to any
of the foregoing).


 


“Law”
shall mean
any law(s) (including
common law),
constitution, statute, treaty, regulation,
rule, ordinance, opinion,
issued guidance, release,
ruling, order, executive
order, injunction, writ, decree,
bond, judgment,
authorization or
approval, lien
or award
of or
any settlement
arrangement, by
agreement, consent
or otherwise, with
any Governmental
Body, foreign or domestic.


 


“Reportable
Compliance Event”
shall mean
that any Covered
Entity becomes
a Sanctioned Person, or
is charged by
indictment, criminal
complaint or
similar charging instrument,
arraigned, or custodially
detained in
connection with any
Anti-Terrorism
Law or any predicate
crime to
any Anti-Terrorism
Law, or
has knowledge
of facts
or circumstances
to the effect that it is reasonably
likely that any aspect of its operations is in actual or probable violation of any
Anti-Terrorism Law.


 


“Sanctioned
Country” shall
mean a
country subject to
a sanctions program
maintained under any Anti-Terrorism Law.


 


“Sanctioned
Person” shall
mean any
individual person,
group, regime,
entity or thing listed
or otherwise recognized
as a specially
designated, prohibited, sanctioned
or debarred person, group,
regime, entity
or thing,
or subject to
any limitations
or prohibitions
(including but
not limited
to the blocking
of property or
rejection of
transactions), under any
Anti-Terrorism Law.


 


29.           
Facsimile
Signatures.
Receipt of an
executed signature
page to
this Guaranty by facsimile
or other electronic
transmission shall constitute
effective delivery
thereof.


 


30.           
Replacement Guaranty
and Liability under
this Guaranty.
This Guaranty is executed
and delivered
as a replacement
guaranty for the
Original Guaranty to
be effective
as of the date
of this Guaranty.
Guarantor shall be
fully liable
for the
Obligations commencing on
the date of this
Guaranty and
for all
times continuing
thereafter
until satisfied
pursuant to
the terms
hereof.


 


[REMAINDER
OF PAGE
INTENTIONALLY
LEFT BLANK;


SIGNATURE
PAGE IMMEDIATELY
FOLLOWS]




    	14



    	 



    

 


IN
WITNESS WHEREOF, Guarantor has executed this Replacement Guaranty of Payment and
Recourse Obligations as
of the date fast above written.


 


 


	 	
        GUARANTOR:

         

        INLAND REAL ESTATE INCOME TRUST, INC.,

        a Maryland corporation

	 	 	 
	 	By:	/s/ David Z. Lichterman
	 	 	 
	 	Print Name:	David Z. Lichterman
	 	 	 
	 	Title:	Vice President, Treasurer & CAO


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


 


Execution
Page to Replacement
Guaranty


of
Payment and Recourse
Obligations