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EXHIBIT 10.3
FORM OF GUARANTY
THIS GUARANTY dated as of July 15, 2008, executed and delivered
by Kite Realty Group Trust ("Guarantor") in favor of (a) KEYBANK
NATIONAL ASSOCIATION, in its capacity as Agent (the "Agent") for
the Lenders under that certain Term Loan Agreement dated as of July
15, 2008 (as amended, restated, supplemented or otherwise modified
from time to time, the "Loan Agreement"), by and among Kite Realty
Group, L.P. (the "Borrower"), the financial institutions party
thereto and their assignees under Section 13.5. thereof (the
"Lenders"), the Agent, and the other parties thereto, and (b) the
Lenders.
WHEREAS, pursuant to the Loan Agreement, the Agent and the
Lenders have agreed to make available to the Borrower certain
financial accommodations on the terms and conditions set forth in
the Loan Agreement;
WHEREAS, the Borrower the Guarantor, though separate legal
entities, are mutually dependent on each other in the conduct of
their respective businesses as an integrated operation and have
determined it to be in their mutual best interests to obtain
financing from the Agent and the Lenders through their collective
efforts;
WHEREAS, Guarantor acknowledges that it will receive direct and
indirect benefits from the Agent and the Lenders making such
financial accommodations available to the Borrower under the Loan
Agreement and, accordingly, Guarantor is willing to guarantee the
Borrower’s obligations to the Agent and the Lenders on the
terms and conditions contained herein; and
WHEREAS, Guarantor’s execution and delivery of this
Guaranty is a condition to the Agent and the Lenders making, and
continuing to make, such financial accommodations to the
Borrower.
NOW, THEREFORE, for good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged by Guarantor,
Guarantor agrees as follows:
Section 1. Guaranty . Guarantor hereby absolutely,
irrevocably and unconditionally guaranties the due and punctual
payment and performance when due, whether at stated maturity, by
acceleration or otherwise, of all of the following (collectively
referred to as the "Guarantied Obligations"): (a) all indebtedness
and obligations owing by the Borrower to any Lender or the Agent
under or in connection with the Loan Agreement and any other Loan
Document, including without limitation, the repayment of all
principal of the Loans, and the payment of all interest, Fees,
charges, attorneys’ fees and other amounts payable to any
Lender or the Agent thereunder or in connection therewith; (b) any
and all extensions, renewals, modifications, amendments or
substitutions of the foregoing; (c) all expenses, including,
without limitation, reasonable attorneys’ fees and
disbursements, that are incurred by the Lenders and the Agent in
the enforcement of any of the foregoing or any obligation of
Guarantor hereunder; and (d) all other Obligations.
Section 2. Guaranty of Payment and Not of
Collection . This Guaranty is a guaranty of payment, and not of
collection, and a debt of Guarantor for its own account.
Accordingly, none of the Lenders or the Agent shall be obligated or
required before enforcing this Guaranty against Guarantor: (a) to
pursue any right or remedy any of them may have against the
Borrower, any other guarantor or any other Person or commence any
suit or other proceeding against the Borrower, any other guarantor
or any other Person in any court or other tribunal; (b) to make any
claim in a liquidation or bankruptcy of the Borrower, any other
guarantor or any other Person; or (c) to make demand of the
Borrower, any other guarantor or any other Person or to enforce or
seek to enforce or realize upon any collateral security held by the
Lenders or the Agent which may secure any of the Guarantied
Obligations.
Section 3. Guaranty Absolute . Guarantor guarantees that
the Guarantied Obligations will be paid strictly in accordance with
the terms of the documents evidencing the same, regardless of any
Applicable Law now or hereafter in effect in any jurisdiction
affecting any of such terms or the rights of the Agent or the
Lenders with respect thereto. The liability of Guarantor under this
Guaranty shall be absolute, irrevocable and unconditional in
accordance with its terms and shall remain in full force and effect
without regard to, and shall not be released, suspended,
discharged, terminated or otherwise affected by, any circumstance
or occurrence whatsoever, including without limitation, the
following (whether or not Guarantor consents thereto or has notice
thereof):
(a)(i) any change in the amount, interest rate or due date or
other term of any of the Guarantied Obligations, (ii) any change in
the time, place or manner of payment of all or any portion of the
Guarantied Obligations, (iii) any amendment or waiver of, or
consent to the departure from or other indulgence with respect to,
the Loan Agreement, any other Loan Document, or any other document
or instrument evidencing or relating to any Guarantied Obligations,
or (iv) any waiver, renewal, extension, addition, or supplement to,
or deletion from, or any other action or inaction under or in
respect of, the Loan Agreement, any of the other Loan Documents, or
any other documents, instruments or agreements relating to the
Guarantied Obligations or any other instrument or agreement
referred to therein or evidencing any Guarantied Obligations or any
assignment or transfer of any of the foregoing;
(b) any lack of
validity or enforceability of the Loan Agreement, any of the other
Loan Documents, or any other document, instrument or agreement
referred to therein or evidencing any Guarantied Obligations or any
assignment or transfer of any of the foregoing;
(c) any furnishing to
the Agent or the Lenders of any security for the Guarantied
Obligations, or any sale, exchange, release or surrender of, or
realization on, any collateral securing any of the Obligations;
(d) any settlement or
compromise of any of the Guarantied Obligations, any security
therefor, or any liability of any other party with respect to the
Guarantied
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Obligations, or any subordination of the payment
of the Guarantied Obligations to the payment of any other liability
of the Borrower or any other Loan Party;
(e) any bankruptcy,
insolvency, reorganization, composition, adjustment, dissolution,
liquidation or other like proceeding relating to Guarantor, the
Borrower, any other Loan Party or any other Person, or any action
taken with respect to this Guaranty by any trustee or receiver, or
by any court, in any such proceeding;
(f) any act or
failure to act by the Borrower, any other Loan Party or any other
Person which may adversely affect Guarantor’s subrogation
rights, if any, against the Borrower to recover payments made under
this Guaranty;
(g) any nonperfection
or impairment of any security interest or other Lien on any
collateral, if any, securing in any way any of the Obligations;
(h) any application of
sums paid by the Borrower, any other guarantor or any other Person
with respect to the liabilities of the Borrower to the Agent or the
Lenders, regardless of what liabilities of the Borrower remain
unpaid;
(i) any defect,
limitation or insufficiency in the borrowing powers of the Borrower
or in the exercise thereof; or
(j) any other
circumstance which might otherwise constitute a defense available
to, or a discharge of, Guarantor hereunder (other than indefeasible
payment and performance in full).
Section 4. Action with Respect to Guarantied Obligations
. The Lenders and the Agent may, at any time and from time to time,
without the consent of, or notice to, Guarantor, and without
discharging Guarantor from its obligations hereunder, take any and
all actions described in Section 3 and may otherwise: (a) amend,
modify, alter or supplement the terms of any of the Guarantied
Obligations, including, but not limited to, extending or shortening
the time of payment of any of the Guarantied Obligations or
changing the interest rate that may accrue on any of the Guarantied
Obligations; (b) amend, modify, alter or supplement the Loan
Agreement or any other Loan Document; (c) sell, exchange, release
or otherwise deal with all, or any part, of any collateral securing
any of the Obligations; (d) release any other Loan Party or other
Person liable in any manner for the payment or collection of the
Guarantied Obligations; (e) exercise, or refrain from exercising,
any rights against the Borrower, any other guarantor or any other
Person; and (f) apply any sum, by whomsoever paid or however
realized, to the Guarantied Obligations in such order as the
Lenders shall elect.
Section 5. Representations and Warranties . Guarantor
hereby makes to the Agent and the Lenders all of the
representations and warranties made by the Borrower with respect to
or in any way relating to Guarantor in the Loan Agreement and the
other Loan Documents, as if the same were set forth herein in
full.
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Section 6. Covenants . Guarantor will
comply with all covenants which the Borrower is to cause Guarantor
to comply with under the terms of the Loan Agreement or any of the
other Loan Documents.
Section 7. Waiver . Guarantor, to the fullest extent
permitted by Applicable Law, hereby waives notice of acceptance
hereof or any presentment, demand, protest or notice of any kind,
and any other act or thing, or omission or delay to do any other
act or thing, which in any manner or to any extent might vary the
risk of Guarantor or which otherwise might operate to discharge
Guarantor from its obligations hereunder.
Section 8. Inability to Accelerate Loan . If the Agent
and/or the Lenders are prevented under Applicable Law or otherwise
from demanding or accelerating payment of any of the Guarantied
Obligations by reason of any automatic stay or otherwise, the Agent
and/or the Lenders shall be entitled to receive from Guarantor,
upon demand therefor, the sums which otherwise would have been due
had such demand or acceleration occurred.
Section 9. Reinstatement of Guarantied Obligations . If
claim is ever made on the Agent or any Lender for repayment or
recovery of any amount or amounts received in payment or on account
of any of the Guarantied Obligations, and the Agent or such Lender
repays all or part of said amount by reason of (a) any judgment,
decree or order of any court or administrative body of competent
jurisdiction, or (b) any settlement or compromise of any such claim
effected by the Agent or such Lender with any such claimant
(including the Borrower or a trustee in bankruptcy for the
Borrower), then and in such event Guarantor agrees that any such
judgment, decree, order, settlement or compromise shall be binding
on it, notwithstanding any revocation hereof or the cancellation of
the Loan Agreement, any of the other Loan Documents, or any other
instrument evidencing any liability of the Borrower, and Guarantor
shall be and remai
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