Exhibit 10.1


 


EXECUTION COPY


 


THE
LIMITED PARTNERSHIP INTERESTS EVIDENCED BY THIS AGREEMENT HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”),
OR UNDER APPLICABLE STATE SECURITIES LAWS (THE “STATE ACTS”), AND MAY BE
OFFERED OR SOLD ONLY (1) UPON REGISTRATION OF THE LIMITED PARTNERSHIP
INTERESTS UNDER THE SECURITIES ACT AND THE STATE ACTS OR PURSUANT TO AN
EXEMPTION THEREFROM, AND (2) AFTER COMPLIANCE WITH ALL RESTRICTIONS ON
TRANSFER OF SUCH LIMITED PARTNERSHIP INTERESTS IMPOSED BY THIS AGREEMENT AND
THE PARTNERSHIP AGREEMENT REFERRED TO HEREIN.


 


CONTRIBUTION AGREEMENT


 


THIS CONTRIBUTION
AGREEMENT (this “Agreement”), is entered into as of March 31, 2005 by and among
Kite Realty Group, L.P., a limited partnership organized under the laws of
Delaware (the “Operating Partnership”), Brentwood Holdings, LLC, a limited
liability company organized under the laws of Indiana (“Holdco”) and Alvin E.
Kite, Jr., John A. Kite, Paul W. Kite and Thomas K. McGowan (each a “Principal,”
and collectively, the “Principals”).


 


WHEREAS, the
Principals are each limited partners of the Operating Partnership and
shareholders of Kite Realty Group Trust, a Maryland real estate investment trust
(the “REIT”), and certain of the Principals are also officers and/or trustees
of the REIT;


 


WHEREAS, prior to
the Holdco Contribution (as defined below), the Principals collectively owned a
direct 100% limited liability company interest (collectively, the “LLC
Interests”) in Brentwood Land Partners, LLC, a Delaware limited liability
company (“Brentwood”), which owns a certain 15-acre site located at the
southeast corner of I-75 and Immokalee Road in Naples, Florida, known as Tarpon
Springs Plaza (the “Property”);


 


WHEREAS, pursuant
to an option agreement, dated as of August 16, 2004, by and among the Operating
Partnership, Brentwood and the Principals (the “Option Agreement”), the
Operating Partnership was given the option, on certain terms and conditions
after the Property had achieved specified occupancy levels, to acquire all of
the Principals’ right, title and interest in Brentwood;


 


WHEREAS, the
Principals, pursuant to a contribution agreement (the “Holdco Contribution
Agreement”), dated as of the date hereof, by and between the Principals and Holdco,
contributed all of their right, title and interest in and to the LLC Interests to
Holdco, effective as of 9:00 a.m. (Indianapolis time) on the date hereof (the “Holdco
Contribution”); and


 


WHEREAS, the
Operating Partnership and Holdco wish to affect the transfer of all of Holdco’s
right, title and interest in and to the LLC Interests to the Operating
Partnership on the terms and conditions set forth in this Agreement.


 


NOW THEREFORE, in
consideration of the foregoing and the mutual covenants and conditions set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:


 


ARTICLE I:  CONTRIBUTION OF
LLC INTERESTS


 


1.1           LLC Interests.  Subject to the terms and conditions hereof
and in exchange for the Acquisition Consideration (as defined below), Holdco
hereby agrees to contribute or otherwise 


 





















 


transfer
to the Operating Partnership, at the Closing Time (as defined below), all of
Holdco’s right, title and interest in and to the LLC Interests.


 


1.2           Acquisition Consideration.  (a) The consideration to be paid in exchange
for the LLC Interests (the “Acquisition Consideration”) shall be equal to $3,132,818
(the “Equity Consideration”) plus an amount equal to the existing indebtedness
described in Exhibit A hereto (the “Existing Indebtedness”), a portion of which
will be assumed and the remainder of which shall be repaid in accordance with
Section 6.3 hereof.  Subject to the terms
and conditions hereof, at the Closing, the Operating Partnership agrees to
assume and thereafter pay, honor, discharge and perform, in accordance with
their respective terms, the assumed liabilities relating to Brentwood and the
Property as listed on Exhibit A hereto (the “Assumed Liabilities”).


 


(b)           The Acquisition Consideration shall
be payable at the Closing Time by the Operating Partnership in the following
manner: Holdco shall receive a number of Class A units of limited partnership
interest in the Operating Partnership (“Units”) equal to (x) the Equity Consideration
divided by (y) the Market Value (as defined below) of the common shares of
beneficial interest, $0.01 par value per share, of the REIT (the “Common Shares”).  The number of Units shall be rounded to the
nearest whole number of Units to avoid the issuance of fractional Units.  The rights of holders of the Units as of the
Closing will be set forth in the Amended and Restated Agreement of Limited
Partnership of Kite Realty Group, L.P., as amended and/or restated from time to
time (the “Partnership Agreement”).


 


1.3           Distribution of Units.  At the Closing, the Operating Partnership
shall issue the Units to Holdco (as determined pursuant to Section 1.2 hereof),
in a transaction intended to qualify for nonrecognition of gain to Holdco
pursuant to Section 721 of the Internal Revenue Code of 1986, as amended (the “Code”).  The name of Holdco and the number of Units
issued thereto at the Closing shall be recorded in the books and records of the
Operating Partnership.


 


1.4           Market Value of the Common Shares.
The “Market Value” of the Common Shares shall mean the average closing price of
the Common Shares for the 10 consecutive trading days immediately preceding
(but not including) the Closing Date.


 


1.5           Admission as a Limited Partner.  Upon execution and delivery of
the Limited Partner Acceptance to the Partnership Agreement, attached hereto as
Exhibit B (the “Limited Partner Acceptance”), by Holdco, and subject to the
completion of the Closing, Holdco shall be admitted to the Operating
Partnership as a limited partner of the Operating Partnership and, as such,
shall be subject to, and bound by, the Partnership Agreement, including all the
terms and conditions thereof, and the power of attorney granted therein.


 


ARTICLE II:  REPRESENTATIONS,
AND WARRANTIES OF THE PRINCIPALS AND HOLDCO


 


As a material
inducement to the Operating Partnership to enter into this Agreement, each
Principal (as to itself and to Holdco) and Holdco, represents and warrants to
the Operating Partnership that, as of the date hereof:


 


2.1           Title to LLC Interests. (a) Holdco
owns, beneficially and of record, free and clear of any claim, lien (including
tax liens), option, charge, security interest, mortgage, deed of trust,
encumbrance, rights of assignment, purchase rights or other rights of any
nature whatsoever of any third party (collectively, “Encumbrances”) the LLC
Interests, (b) Holdco has full power and authority to convey free and clear of
any Encumbrances, the LLC Interests, and (c) upon delivery of an assignment by Holdco
conveying its portion of the LLC Interests and payment therefor by the
Operating Partnership, the 


 


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Operating
Partnership will acquire good and valid title thereto, free and clear of any
Encumbrance, in each case, except (i) Encumbrances created in favor of the
Operating Partnership, (ii) Encumbrances that are extinguished at or prior to
Closing, and (iii) Encumbrances listed on Exhibit A hereto (collectively, the “Permitted
Encumbrances”).


 


2.2           Authority.  Each of the Principals and Holdco have full
right, authority, power and capacity (a) to enter into this Agreement and each
agreement, document and instrument to be executed and delivered by or on behalf
of the Principals or Holdco, as the case may be, pursuant to this Agreement;
(b) to carry out the transactions contemplated hereby; and (c) in the case
of Holdco, to transfer, sell and deliver the LLC Interests to the Operating
Partnership in accordance with this Agreement. 
This Agreement and each document and instrument executed and delivered
by or on behalf of the Principals and Holdco, as the case may be, pursuant to
this Agreement constitutes, or when executed and delivered will constitute, the
legal, valid and binding obligation of the Principals or Holdco, as the case
may be, each enforceable in accordance with its respective terms.  The execution, delivery and performance of
this Agreement and each such document and instrument by or on behalf of the
Principals or Holdco, as the case may be (i) does not and will not violate
any foreign, federal, state, local or other laws applicable to the Principals
or Holdco, as the case may be, or require the Principals or Holdco to obtain
any approval, consent or waiver of, or make any filing with, any person or
authority (governmental or otherwise) that will not be obtained or made prior
to the Closing; and (ii) does not and will not violate any term,
conditions or provisions of, or constitute a default under, any bond, note or
other evidence of indebtedness or any contract (other than the Option
Agreement), lease or other instrument to which any of the Principals or Holdco
is a party or by which the property of any of the Principals or Holdco is bound
or affected or result in the creation of any Encumbrance on any of the assets
of Brentwood or the Property, as the case may be.


 


2.3           Litigation.  There is no litigation or proceeding, either judicial or administrative, pending or, to the knowledge
of the Principals or Holdco, threatened, affecting all or any portion of the
LLC Interests or the Property, or the ability of the Principals or Holdco, as
the case may be, to consummate the transactions contemplated hereby.  There is no outstanding order, writ,
injunction or decree of any court, government, governmental entity or authority
or arbitration against or affecting all or any portion of the LLC Interests or
the Property, which in any such case would impair the ability of either the
Principals or Holdco, as the case may be, to enter into and perform all of its
obligations under this Agreement.


 


2.4           No Agreements to Sell.  Neither the Principals nor Holdco is
currently party to any agreement (other than the Option Agreement or the Holdco
Contribution Agreement) to sell, transfer or otherwise encumber or dispose of
the LLC Interests or the Property.


 


2.5           Status as a United States Person.  Neither the Principals nor Holdco are a foreign
person within the meaning of Section 1445 of the Code (“Section 1445”).  Upon request by the Operating Partnership, each
of the Principals and Holdco agree to complete and provide to the Operating
Partnership, prior to the Closing, a certificate of non-foreign status
substantially in the form provided in Section 1.1445-5(b)(3)(D) of the Treasury
regulations.


 


2.6           No Insolvency Proceedings.  No attachments, execution proceedings,
assignments for the benefit of creditors, insolvency, bankruptcy,
reorganization or other proceedings are pending or, to the knowledge of the
Principals or Holdco, as the case may be, threatened against the Principals or Holdco,
nor are any such proceedings contemplated by either of the Principals or Holdco.


 


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2.7           No Brokers.  Neither the Principals nor Holdco have
entered into, and each of the Principals and Holdco covenants not to enter
into, any agreement, arrangement or understanding with any person or firm which
will result in the obligation of the Operating Partnership to pay any finder’s
fee, brokerage commission or similar payment in connection with the
transactions contemplated hereby.


 


2.8           Securities Law Matters; Transfer
Restrictions.


 


(a)           Each of the Principals and Holdco
acknowledge that the Operating Partnership intends the offer and issuance of
the Units to be exempt from registration under the Securities Act of 1933, as
amended (the “Securities Act”) and applicable state securities laws by virtue
of (i) the status of Holdco as an “accredited investor” within the meaning of
the federal securities laws, and (ii) Regulation D promulgated under
Section 4(2) of the Securities Act (“Regulation D”), and that the
Operating Partnership will rely in part upon the representations and warranties
made by Holdco and the Principals in this Agreement in making the determination
that the offer and issuance of the Units qualify for exemption under Rule 506
of Regulation D as an offer and sale only to “accredited investors.”


 


(b)           Holdco and each of the Principals is
an “accredited investor” within the meaning of the federal securities laws.


 


(c)           Holdco will acquire the Units for its
own account and not with a view to, or for sale in connection with, any “distribution”
thereof within the meaning of the Securities Act. Each of the Principals and
Holdco acknowledge that Holdco does not intend or anticipate that Holdco will
rely on this investment as a principal source of income.


 


(d)           Each of the Principals and Holdco
acknowledge that (i) he/it has sufficient knowledge and experience in
financial, tax and business matters to enable it to evaluate the merits and
risks of investment in the Units, (ii) he/it has adequate means of providing
for its current and anticipated financial needs and contingencies, (iii) he/it
has the ability to bear the economic risk of acquiring the Units for an
indefinite period of time and has no need for liquidity in the Units and could
afford loss of all such investment.


 


(e)           Each of the Principals and Holdco
acknowledges that (i) the transactions contemplated by this Agreement
involve complex tax consequences for Holdco, and Holdco is relying solely on
the advice of its own tax advisors in evaluating such consequences, (ii) the
Operating Partnership has not made (nor shall it be deemed to have made) any
representations or warranties as to the tax consequences of such transaction to
the Principals, Holdco or Holdco’s representatives and (iii) references in
this Agreement to the intended tax effect of the transactions contemplated
hereby shall not be deemed to imply any representation by the Operating Partnership
as to a particular tax effect that may be obtained by Holdco or the Principals.
Holdco remains solely responsible for all tax matters relating to it.


 


(f)            Holdco and its representatives have
been supplied with, or had access to, information to which a reasonable
investor would attach significance in making an investment decision to acquire
the Units and any other information requested by Holdco or its representatives.  Holdco’s representatives have had an
opportunity to ask questions of, and receive information and answers from, the
Operating Partnership and the REIT concerning the Operating Partnership, the
REIT, the Units and the Common Shares into which the Units may be redeemed, and
to assess and evaluate any information supplied to them by the Operating
Partnership or the REIT, and all such questions have been answered, and all
such information has been provided to the full satisfaction of Holdco’s
representatives.


 


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(g)           Holdco and the Principals acknowledge
that there are substantial restrictions on the transferability of the Units and
that the Units will not be registered under the Securities Act or any state
securities laws, and that Holdco has no right to require that they be so
registered.  Holdco and the Principals
agree that any Units Holdco acquires will not be sold in the absence of
registration unless such sale is exempt from registration under the Securities
Act and applicable state securities laws. Holdco and the Principals acknowledge
that Holdco shall be responsible for compliance with all conditions on transfer
imposed by any securities authority and for any expenses incurred by the
Operating Partnership for legal or accounting services in connection with
reviewing such a proposed transfer or issuing opinions in connection therewith.


 


(h)           Holdco
and the Principals acknowledge that no federal agency (including the Securities
and Exchange Commission) or state agency has made or will make any finding or
determination as to the fairness of an investment in the Units (including as to
the value determined pursuant to Section 1.2 hereof).


 


(i)            Holdco
and the Principals acknowledge that that there is no established public,
private or other market for the Units acquired hereunder and it is not
anticipated that there will be any public, private or other market for such
Units in the foreseeable future.


 


(j)            Holdco
and the Principals acknowledge that that Rule 144 promulgated under the
Securities Act is not currently available with respect to the sale of Units.


 


2.9           Reliance.  Each of the Principals and Holdco acknowledges
that it understands the meaning and legal consequences of the representations
and warranties in this Article II, and that the Operating Partnership may rely
upon such representations and warranties in determining whether to enter into
this Agreement.


 


ARTICLE III: 
CONDITIONS TO CLOSING


 


3.1           Conditions to the Operating
Partnership’s Obligation to Close. 
The obligation of the Operating Partnership to consummate the Closing is
subject to the fulfillment, at or prior to the Closing, of the following
conditions (unless such conditions are waived in writing by the Operating
Partnership):


 


(a)           Representations and Warranties.  The representations and warranties made by each
of the Principals and Holdco pursuant to this Agreement shall be true and correct
in all respects when made, and on and as of the Closing Date, as though such
representations and warranties were made on the Closing Date.


 


(b)           Performance.  Each of the Principals and Holdco shall have
performed and complied with all agreements and covenants required to be performed
or complied with pursuant to this Agreement prior to the Closing.


 


(c)           Legal Proceedings.  No action or proceeding by or before any
governmental authority shall have been instituted that is reasonably expected
to restrain, prohibit or invalidate the transactions contemplated by this
Agreement.


 


(d)           Consents and Approvals.  All necessary consents of governmental and
private parties to effect the transactions contemplated by this Agreement,
including, without limitation, consents of lenders, shall have been obtained.


 


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3.2           Conditions to Holdco’s Obligation
to Close.  The obligation of Holdco
to consummate the Closing is subject to the fulfillment, at or prior to the
Closing, of the following conditions (unless such conditions are waived in
writing by Holdco):


 


(a)           Performance.  The Operating Partnership shall have
performed and complied with all agreements and covenants that it is required to
perform or comply with pursuant to this Agreement prior to the Closing.


 


(b)           Legal Proceedings.  No action or proceeding by or before any
governmental authority shall have been instituted that is reasonably expected
to restrain, prohibit or invalidate the transactions contemplated by this Agreement,
other than an action or proceeding instituted by the Operating Partnership;
provided, that the foregoing condition shall be deemed to have been satisfied
if the Operating Partnership shall have fully indemnified Holdco and the
Principals from any loss, liability, claim, damage or expense arising out of Holdco’s
decision to close under this Agreement in the face of any such action or
proceeding.


 


(c)           Consents and Approvals.  All necessary consents of governmental and
private parties to effect the transactions contemplated by this Agreement,
including, without limitation, consents of lenders, shall have been obtained;
provided, that the foregoing condition shall be deemed to have been satisfied
if the Operating Partnership shall have fully indemnified Holdco and the
Principals from any loss, liability, claim, damage or expense arising out of Holdco’s
decision to close under this Agreement without having obtained a necessary
consent.


 


ARTICLE IV: 
CLOSING


 


4.1           Closing.  The closing hereunder (the “Closing”) shall be
deemed to occur at 2:00 p.m. (Indianapolis time) on the date hereof, at the principal
offices of the Operating Partnership in Indianapolis, Indiana.  The date on which the Closing occurs is
referred to herein as the “Closing Date.” The time on the Closing Date when the
Closing is deemed to have occurred is referred to herein as the “Closing Time.”


 


4.2           Closing Deliveries by Holdco.  At the Closing, Holdco shall execute and
deliver to the Operating Partnership the following:


 


(i)            a duly executed Assignment and
Assumption Agreement, substantially in the form attached hereto as Exhibit C (“Assignment
Agreement”) conveying title to the LLC Interests to the Operating Partnership,
free and clear of Encumbrances (other than the Permitted Encumbrances) and providing
for assumption of Existing Indebtedness, subject to Section 6.3 hereof;


 


(ii)           a duly
executed Limited Partner Acceptance, substantially in the form attached hereto
as Exhibit B; and


 


(iii)          such
documents and certificates as the Operating Partnership may reasonably request
(x) to establish the authority of the parties executing any documents in
connection with the Closing, (y) to reflect the parties’ intentions regarding
the transfer of the LLC Interests or (z) to cause any manager or other representative
of Brentwood to resign as of the Closing.


 


4.3           Closing Deliveries by the
Operating Partnership.  At the
Closing the Operating Partnership shall execute and deliver to Holdco a duly
executed Assignment Agreement.


 


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ARTICLE V: 
TERMINATION


 


5.1           Termination by the Operating
Partnership.  The Agreement may be
terminated prior to consummation of the Closing by the Operating Partnership
following (i) a determination by the Operating Partnership, in its sole and
absolute discretion, not to proceed with the transfer of the LLC Interests on
the terms outlined herein, or (ii) a determination that any of the representations
or warranties contained in Article II hereof are no longer true or correct, and
that such representation or warranty cannot reasonably be expected to be true
and correct at the Closing.


 


5.2           Effect of Termination.  Upon the termination of this Agreement
pursuant to Section 5.1 hereof, neither party shall have any liability to the
other in connection with the transactions contemplated hereby, or as a result
of the termination of this Agreement; provided, that the foregoing shall not
relieve a party of any liability as a result of a breach of any of the terms of
this Agreement.


 


ARTICLE VI:  COVENANTS AND
OTHER AGREEMENTS


 


6.1           Consent to Transfer of LLC
Interests.  For the avoidance of
doubt, each of the Principals consents to the transfer by Holdco of the LLC Interests
pursuant to the terms of this Agreement and hereby waives any rights under the
operating agreement for Brentwood or Holdco in connection therewith, including
any rights of first refusal thereto and any notice requirements therewith. Each
of the Principals and Holdco hereby consents to the admission of the Operating
Partnership as a substituted member in Brentwood.


 


6.2           Registration Rights Agreement.  The REIT hereby acknowledges that it shall,
as soon as reasonably practicable after the Closing, enter into an appropriate
amendment to that certain Registration Rights Agreement, dated as of August 16,
2004, among the REIT, the Principals and the other parties thereto (the “Registration
Rights Agreement”) providing Holdco and the Principals with registration rights
that either, at the REIT’s option, (i) register the issuance of Common Shares
received upon redemption of the Units issued pursuant to this Agreement, or
(ii) register the resale of the Common Shares issuable upon redemption of the
Units issuable pursuant to this Agreement.


 


6.3           Existing Indebtedness; Release of
Guarantees and Indemnitees.  The
parties acknowledge and agree that the Existing Bank Loan (as defined in
Exhibit A hereto) shall be repaid by the Operating Partnership in connection
with the Closing.  All personal
guarantees or indemnitees previously made by the Principals with respect to the
Property in connection with the Existing Bank Loan are to be released
concurrently with the repayment of the Existing Bank Loan.  In the event the Operating Partnership is
unsuccessful in obtaining any such release, the Operating Partnership will
agree to indemnify the affected Principals with respect to any loss incurred
pursuant to such guaranty or indemnitee. 
The
Operating Partnership hereby agrees to use reasonable commercial efforts to
cooperate with the Principals, Holdco and Brentwood, as the case may be, to
minimize any taxes, fees or prepayment penalties payable in connection with
this Agreement, including the assumption or repayment of the Existing
Indebtedness; provided that, except as otherwise set forth in this Agreement,
such cooperation shall not require the Operating Partnership to unreasonably
delay the Closing Date or require the Operating Partnership to assume
additional liabilities or incur any material amount of out-of-pocket expenses.


 


6.4           Further Assurances.  Each of the Principals and Holdco shall execute
and deliver to the Operating Partnership any instruments and documents and take
or cause to be taken all such other and further actions as the Operating
Partnership may reasonably request in order to effect the transactions
contemplated by this Agreement, including instruments or documents deemed
necessary or desirable by


 


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the Operating Partnership to
effect and evidence the conveyance of the LLC Interests in accordance with the
terms of this Agreement.


 


ARTICLE VII:  INDEMNIFICATION


 


7.1           Indemnification.  Each of the Principals and Holdco, severally
and not jointly, agrees to indemnify, defend and hold harmless the Operating
Partnership, the REIT and their respective affiliates, trustees, directors,
officers, members, partners, employees, agents, successors and assigns (the “Indemnitees”),
in each case other than the Principals and Holdco to the extent they would
otherwise be considered Indemnitees, in respect of any and all liabilities
(whether absolute or contingent, known or unknown or accrued or unaccrued),
damages, judgments, fines, fees, penalties, obligations, deficiencies, losses
and expenses (including, without limitation, reasonable fees and expenses of
attorneys and accountants and including, without limitation, amounts paid in
settlement) (“Damages”) actually incurred or suffered by any Indemnitee arising
out of, resulting from or relating to (i) the untruth, inaccuracy or breach of
any representation or warranty of any of the Principals or Holdco, as the case
may be, contained in this Agreement, or (ii) any claim or cause of action
relating to the Property, Brentwood or any subsidiary of Brentwood, arising out
of, relating to or resulting from any action, inaction, event, condition, facts
or circumstances that occurred or existed prior to the Closing (whether or not
pending or threatened as of the Closing) and any liability of the Property,
Brentwood or any subsidiary of Brentwood to the extent such liability was
incurred prior to the Closing (other than the obligation to pay the Existing
Indebtedness).


 


ARTICLE VIII TERMINATION OF OPTION AGREEMENT


 


8.1           Option Agreement Termination. The
parties hereto acknowledge that, upon the consummation of the acquisition by
the Operating Partnership of the LLC Interests pursuant to this Agreement, the
Option Agreement shall terminate in accordance with its terms pursuant to
Section 6.1 of the Option Agreement.  For
the sake of clarity, the parties acknowledge and agree that, to the extent any
of the transactions contemplated by this Agreement would conflict or require
consent or waiver under the Option Agreement (including any consent to the
execution of this Agreement or any ratification of the consummation of the Holdco
Contribution), the parties are hereby deemed to have waived any such conflict
or required consent to the extent necessary to permit the execution, delivery
and performance of this Agreement and the consummation of the transactions
contemplated by this Agreement, and the Option Agreement shall be deemed to
have been amended if and to the extent necessary to permit the execution,
delivery and performance of this Agreement and the consummation of the
transactions contemplated by this Agreement.


 


ARTICLE IX:  MISCELLANEOUS


 


9.1           Amendment; Waiver.  Any amendment hereto shall be effective only
if signed by each of the parties hereto, and in connection with Section 6.2
hereto only, the REIT.  No waiver of any
provisions of this Agreement shall be valid unless in writing and signed by the
party against whom enforcement is sought.


 


9.2           Entire Agreement; Counterparts;
Applicable Law.  This Agreement (a)
shall constitute the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof, (b) may be executed in one or more counterparts, each of
which will be deemed an original and all of which shall constitute one and the
same instrument, and (c) shall be governed in all respects, including validity,
interpretation and effect, by the laws of the State of Indiana without giving
effect to the conflict of law provisions thereof.


 


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9.3           Assignability.  This Agreement shall be binding upon, and
shall be enforceable by and inure to the benefit of, the parties hereto and
their respective heirs, legal representatives, successors and assigns;
provided, however, that this Agreement may not be assigned (except by operation
of law) by any party without the prior written consent of the other parties,
and any attempted assignment without such consent shall be void and of no
effect; provided, further, however, that the Operating Partnership may assign
this Agreement and any agreement contemplated hereunder or thereunder to an
affiliate of the Operating Partnership without the consent of the Principals or
Holdco.


 


9.4           Severability.  If any provision of this Agreement, or the
application thereof, is for any reason held to any extent to be invalid or
unenforceable, the remainder of this Agreement and application of such
provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties
hereto.  The parties further agree to
replace such void or unenforceable provision of this Agreement with a valid and
enforceable provision that will achieve, to the extent possible, the economic,
business and other purposes of the void or unenforceable provision and to
execute any amendment, consent or agreement deemed necessary or desirable by the
Operating Partnership to effect such replacement.


 


9.5           Equitable Remedies.  The parties hereto agree that irreparable
damage would occur if any provision of this Agreement was not performed in
accordance with its specific terms or was otherwise breached.  It is accordingly agreed that the parties
shall be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof in any
federal or state court located in the State of Indiana (as to which the parties
agree to submit to jurisdiction for the purposes of such action), this being in
addition to any other remedy to which they are entitled at law or in equity.


 


9.6           Attorneys’ Fees.  In connection with any litigation or a court
proceeding arising out of this Agreement, the prevailing party shall be
entitled to recover all costs incurred, including reasonable attorneys’ fees
and legal assistants’ fees and costs whether incurred prior to trial, at trial,
or on appeal.


 


9.7           Notices.  Any notice or demand which must or may be
given under this Agreement or by law shall, except as otherwise provided, be in
writing and shall be deemed to have been given (i) when physically received by
personal delivery (which shall include the confirmed receipt of a facsimile
transmission to the applicable party c/o Kite Realty Group Trust at
317-577-5605), or (ii) three calendar days after being deposited in the United
States mail, or (iii) one business day after being deposited with a
nationally known commercial courier service providing next day delivery service
(such as Federal Express).  Any such
notice or demand shall be addressed to the attention of the applicable party
and delivered to the following address: c/o Kite Realty Group Trust, 30 S.
Meridian Street, Suite 1100, Indianapolis, Indiana 46204, (and, in the case of
the Operating Partnership, addressed to the attention of Daniel R. Sink), or to
any such other address or addresses as any party hereto may from time to time specify
to the parties hereto in writing in compliance herewith.


 


9.9           Survival.  It is the express intention and agreement of
the parties hereto that the representations, warranties and covenants set forth
in this Agreement shall survive the consummation of the transactions
contemplated hereby.


 


9.10         Time of the Essence.  The parties hereto acknowledge that time is
of the essence with respect to the obligations of the parties under this
Agreement.


 


9





















 


IN WITNESS
WHEREOF, each of the parties hereto has executed and delivered this Agreement,
or caused the Agreement to be duly executed and delivered on its behalf, as of
the date first set forth above.


 


	
   

  	
  KITE REALTY GROUP, L.P.:

  
	
   

  	
   

  
	
   

  	
  By: KITE REALTY GROUP TRUST, its General

  Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Daniel
  R. Sink

  	
   

  
	
   

  	
  Name: 

  	
  Daniel R. Sink

  
	
   

  	
  Title:

  	
  Senior Vice President, Chief

  Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  BRENTWOOD HOLDINGS, LLC:

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
  /s/ Thomas
  K. McGowan

  	
   

  
	
   

  	
  Name: 

  	
  Thomas K. McGowan

  
	
   

  	
  Title:

  	
  Managing Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  PRINCIPALS:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Alvin E. Kite,
  Jr.

  	
   

  
	
   

  	
  Alvin E. Kite, Jr.

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ John A. Kite

  	
   

  
	
   

  	
  John A. Kite

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Paul W. Kite

  	
   

  
	
   

  	
  Paul W. Kite

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Thomas K.
  McGowan

  	
   

  
	
   

  	
  Thomas K. McGowan

  	
   

  



 


ACKNOWLEDGED AS TO SECTIONS 6.2 AND 9.1 ONLY


 


KITE REALTY GROUP TRUST:


 


	
  By:

  	
   

  	
  /s/
  Daniel R. Sink

  	
   

  
	
  Name: 

  	
  Daniel R. Sink

  
	
  Title:

  	
  Senior Vice President,

  
	
   

  	
  Chief Financial Officer

  



 





















 


EXHIBIT A


 


EXISTING
INDEBTEDNESS


 


1.             Existing Bank Loan. A
Promissory Note, in the original principal amount of $3,962,070.00, from
Brentwood Land Partners, LLC to SouthTrust Bank.


 


2.             Assumed Liabilities. All accounts payable of
Brentwood as of the Closing Date (approximately $220,000, as of March 29,
2005).


 


A-1





















 


EXHIBIT B


 


FORM OF LIMITED PARTNER
ACCEPTANCE


 


This Limited Partner Acceptance to the Amended and Restated Agreement
of Limited Partnership of Kite Realty Group, L.P., dated as of March      ,
2005 (the “Acceptance”), which Acceptance is incorporated into that certain
Amended and Restated Agreement of Limited Partnership of Kite Realty Group,
L.P., dated as of April 16, 2004, as amended from time to time (the “Partnership
Agreement”), is executed and delivered by the undersigned.


 


As of the date hereof, the undersigned, designated as an Additional
Limited Partner, is admitted as a Limited Partner of the Partnership, and by
said undersigned’s execution and delivery hereof, said undersigned agrees to be
bound by the terms and provisions of the Partnership Agreement, including the
power of attorney set forth in Section 15.11 of the Partnership Agreement.  The number of Class A
Units issued as of the date hereof to the undersigned designated as an
Additional Limited Partner is shown opposite such Additional Limited Partner’s
signature below.  All terms used herein
and not otherwise defined shall have the meanings given them in the Partnership
Agreement.


 


This Acceptance may be executed in two or more counterparts, each of
which shall be deemed an original but all of which collectively shall
constitute one and the same document.


 


This Acceptance shall be governed in all respects, including validity,
interpretation and effect, by the laws of the State of Indiana, without giving
effect to the conflict of law provisions thereof.


 


 


	
   

  	
  KITE REALTY GROUP, L.P.:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  KITE
  REALTY GROUP TRUST,

  its General Partner

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Daniel
  R. Sink 

  
	
   

  	
   

  	
  Senior
  Vice President, Chief Financial Officer

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  ADDITIONAL LIMITED PARTNER:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  BRENTWOOD
  HOLDINGS, LLC

  
	
  Number
  of  

  	
   

  	
   

  
	
  Class
  A Units:

  	
  By:
  

  	
   

  	
   

  
	
   

  	
   

  	
  Thomas
  K. McGowan  

  
	
   

  	
   

  	
   

  	
  Managing
  Member

  
						



 


B-1





















 


EXHIBIT C


 


FORM OF ASSIGNMENT
AND ASSUMPTION AGREEMENT


 


THIS ASSIGNMENT
AND ASSUMPTION AGREEMENT (this “Agreement”) is made as of March     ,
2005 between Brentwood Holdings, LLC, a limited liability company organized
under the laws of the State of Indiana (“Holdco”), and Kite Realty Group, L.P.,
a limited partnership organized under the laws of the State of Delaware (the “Operating
Partnership”).


 


WHEREAS, Holdco
owns a 100% limited liability company interest in Brentwood Land Partners, LLC,
a limited liability company organized under the laws of the State of Delaware (“Brentwood”);


 


WHEREAS, pursuant
to that certain Contribution Agreement, dated as of March       ,
2005, by and among Holdco, the Operating Partnership and the other parties
thereto (the “Contribution Agreement”), Holdco is obligated to contribute or
otherwise transfer to the Operating Partnership on this date the LLC Interests
identified in the Contribution Agreement for the consideration and upon the
terms and conditions set forth in the Contribution Agreement; and


 


WHEREAS,
capitalized terms used herein and not otherwise defined shall have the meanings
specified in the Contribution Agreement.


 


NOW, THEREFORE, in
consideration of the premises and for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, and in further
consideration of the covenants and agreements contained in the Contribution
Agreement, and pursuant to the terms of the Contribution Agreement (including
the representations and warranties therein, which shall survive as provided for
in the Contribution Agreement), the Operating Partnership and Holdco do hereby
covenant and agree as follows:


 


1.             Upon the terms and subject to the
conditions specified herein and in the Contribution Agreement and as of the
date hereof, Holdco hereby contributes, assigns, transfers and conveys to the
Operating Partnership and the Operating Partnership hereby assumes and accepts,
Holdco’s entire legal and beneficial right, title and interest in and to the LLC
Interests, including, without limitation, all right, title and interest, if
any, of Holdco in and to the assets of Brentwood and the right to receive
distributions of money, profits and other assets from Brentwood, presently
existing or hereafter at any time arising or accruing.


 


2.             Upon the terms and subject to the
conditions specified herein and in the Contribution Agreement and as of the
date hereof, the Operating Partnership hereby assumes and agrees to pay, honor,
discharge and perform, as the case may be, in a timely manner and in accordance
with their respective terms all of the liabilities listed on Exhibit A hereto.  The Operating Partnership hereby agrees to be
bound by the limited liability company agreement of Brentwood and shall be
deemed to have been admitted as a substituted member thereunder.


 


3.             This Agreement and the covenants
and agreements herein set forth shall inure to the benefit of the parties
hereto and their respective successors and assigns and shall be binding upon
the parties hereto and their respective successors and assigns.


 


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4.             The validity, interpretation and
effect of this Agreement shall, to the extent the particular subject matter is
controlled by state law, be governed by and be construed in accordance with the
laws of the State of Indiana, without giving effect to the conflicts of laws
provisions thereof.


 


 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]


 


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IN WITNESS WHEREOF, each
of the undersigned has caused this Agreement to be duly executed and delivered
in its name and on its behalf as of the date first written above.


 


	
   

  	
  KITE REALTY GROUP, L.P.,

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By: KITE REALTY GROUP TRUST, its General

  Partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name: 

  	
  Daniel R. Sink

  
	
   

  	
  Title:

  	
  Senior Vice President, Chief Financial
  Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  BRENTWOOD HOLDINGS, LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  	
   

  
	
   

  	
  Name: 

  	
  Thomas K. McGowan

  
	
   

  	
  Title:

  	
  Managing Member

  



 


C-3