Exhibit
10.25


 


CONTRIBUTOR
INDEMNITY AGREEMENT


 


This Contributor
Indemnity Agreement (the “Agreement”) is entered into as of August 16,
2004, by and among Kite Realty Group, L.P. a Delaware limited partnership
(“Kite Realty”) and Alvin E. Kite, Jr., John A. Kite, Paul W. Kite, Thomas K.
McGowan, Daniel R. Sink, George F. McMannis, IV, and Mark Jenkins
(collectively, the “Indemnitees”).


 


WHEREAS, Kite Realty and
its general partner Kite Realty Group Trust, a Maryland real estate investment
trust (the “REIT”), are engaging in various related transactions pursuant to
which, among other things, (i) Kite Realty will acquire interests in
various entities that own or lease real estate properties in which certain
persons affiliated with the REIT have interests, including the Indemnitees,
(ii) Kite Realty will acquire indirect interests in certain service
companies currently owned by persons affiliated with Kite Realty, including
certain of the Indemnitees, and (iii) the REIT will effect an initial public
offering of its common shares and contribute the proceeds therefrom for a like
number of units of partnership interest in Kite Realty (the “Kite IPO,” and
together with the other transactions described above, the “Kite IPO
Transactions”);


 


WHEREAS, pursuant to
Section 1.1(b) of that certain Contribution Agreement dated as of
April 5, 2004 among Kite Realty and the Indemnitees, entered into as part
of the Kite IPO Transactions (the “Contribution Agreement”), Kite Realty has
agreed to assume from the Indemnitees and thereafter pay, honor, discharge and
perform, in accordance with their respective terms, all of the liabilities and
obligations of the Indemnitees identified on Schedule 1 thereto
(the “Assumed Liabilities”);


 


WHEREAS, pursuant to Schedule 1,
Kite Realty agreed that, if it is unsuccessful in obtaining a release of all
personal guarantees previously made by the Indemnitees with respect to the
properties and other assets being contributed pursuant to the Contribution
Agreement, Kite Realty will indemnify the Indemnitees with respect to any loss
actually incurred by the Indemnitees to the beneficiaries of the personal
guarantees pursuant to such guarantees; and


 


WHEREAS, the parties
desire to enter into this Agreement to memorialize the indemnity obligation
referenced in Schedule 1 to the Contribution Agreement.


 


NOW, THEREFORE, in
consideration of the mutual agreements contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the undersigned hereby agree as follows:


 


Section 1.               Indemnification.
Kite Realty hereby agrees to indemnify, defend and hold harmless the
Indemnitees and their agents, assigns and successors from and against all
losses, claims, damages, fines, causes of action, judgments, lawsuits,
assessments, costs, expenses (including but not limited to reasonable
attorneys’ fees and court costs) and other liabilities, including liabilities
for taxes, penalties, interest, and


 
















 


amounts paid in
settlement (collectively “Liabilities”) actually incurred by the Indemnitees to
the beneficiaries of the personal guarantees arising out of, relating to, or
resulting from, the failure of Kite Realty to obtain a release of all personal
guarantees previously made by the Indemnitees with respect to the property and
other assets being contributed pursuant to the Contribution Agreement. Kite
Realty also agrees to reimburse the Indemnitees for all expenses that they
incur in connection with successfully enforcing their rights under this
Agreement.


 


Section 2.               Indemnification
Procedures. The Indemnitees shall notify Kite Realty promptly in writing of
indemnifiable Liabilities (“Indemnifiable Claim”) under Section 1 of this
Agreement after receiving notice or being informed of the existence thereof.
Kite Realty shall assume, at its cost and expense, the sole defense of such
Indemnifiable Claim through counsel selected by Kite Realty and reasonably
acceptable to the Indemnitees.  The
Indemnitees shall cooperate fully with Kite Realty in such defense, including
making relevant documents available and providing witnesses to testify at any
deposition, trial, hearing, arbitration, or other proceeding.  The Indemnitees may, at their option and
expense, participate in Kite Realty’s defense. 
However, Kite Realty shall maintain control of such defense, including
any decision as to settlement, provided that in the event that Kite Realty does
not assume the defense on a timely basis or reasonably maintain the defense,
then, without prejudice to any other rights and remedies available to the
Indemnitees under this Agreement, the Indemnitees may take over such defense
with counsel of their choosing at Kite Realty’s cost and expense.  In the event that there arises a conflict of
interest, which, under applicable principles of legal ethics, prevents a single
legal counsel from representing both the Indemnitees and Kite Realty, the
Indemnitees may take over their defense with counsel of their choosing at Kite
Realty’s cost and expense. Kite Realty shall not be liable for any compromise
or settlement made by the Indemnitees without the consent of Kite Realty.


 


Section 3.               Remedies Not
Exclusive. The indemnification provided to the Indemnitees by Kite Realty,
or granted pursuant to the provisions of this Agreement, shall not be deemed exclusive
of any other rights to which the Indemnitees may be entitled.  Each party’s right to indemnification by the
other party shall be enforceable in any court of competent jurisdiction.


 


Section 4.               Severability.  The invalidity or unenforceability of any
provision of this Agreement shall not affect the validity or enforceability of
any other provisions of this Agreement, which shall remain in full force and
effect. If any term, provision, covenant or restriction contained in this
Agreement is held by a court of competent jurisdiction or other authority to be
invalid, void, unenforceable or against its regulatory policy, the remainder of
the terms, provisions, covenants and restrictions contained in this Agreement
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated.


 


Section 5.               Modifications.  This Agreement may not be amended or modified
except in writing, validly executed and delivered by each party hereto.


 


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Section 6.               Governing Law.
This Agreement shall be governed by, and construed in accordance with, the laws
of the State of Indiana, without reference to principles of conflicts of laws.


 


Section 7.               Counterparts.  This Agreement may be executed in counterparts,
each of which shall constitute an original and all of which together shall
constitute one and the same Agreement.


 


[Remainder of page
intentionally left blank.]


 


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IN WITNESS WHEREOF, the
undersigned have executed and delivered this Agreement as of the date first
written above.


 


 


	
   

  	
  KITE REALTY

  
	
   

  	
   

  
	
   

  	
  KITE REALTY GROUP, L.P.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ JOHN A. KITE

  
	
   

  	
  Name: John A. Kite

  
	
   

  	
  Title:  

  	
  President and Chief
  Executive Officer, Kite Realty Group Trust, its Sole Member

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  THE CONTRIBUTORS

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ DANIEL R. SINK

  	
   

  
	
   

  	
  Daniel R. Sink

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ GEORGE F. McMANNIS,
  IV

  	
   

  
	
   

  	
  George F. McMannis, IV

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ MARK JENKINS

  	
   

  
	
   

  	
  Mark Jenkins

  
								



 


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