Exhibit 10.21


 


INDEMNIFICATION AGREEMENT


 


THIS INDEMNIFICATION AGREEMENT
(this “Agreement”) is entered into as of August 16, 2004, by and among
Kite Realty Group Trust, a Maryland real estate investment trust (the
“Company”), Kite Realty Group, L.P., a Delaware limited partnership (the
“Operating Partnership” and together with the Company, the “Indemnitors”), and
Michael L. Smith (the “Indemnitee”).


 


WHEREAS, the
Indemnitee is an officer or a member of the Board of Trustees of the Company
and in such capacity is performing a valuable service for the Company and the
Operating Partnership;


 


WHEREAS, Maryland
law permits the Company to enter into contracts with its officers or members of
its Board of Trustees with respect to indemnification of, and advancement of
expenses to, such persons;


 


WHEREAS, the
Declaration of Trust of the Company (the “Declaration of Trust”) authorizes the
Company to indemnify and advance expenses to its officers and trustees to the
maximum extent permitted by Maryland law in effect from time to time;


 


WHEREAS, the
Amended and Restated Bylaws of the Company (the “Bylaws”) provide that each
officer and trustee of the Company shall be indemnified by the Company to the
maximum extent permitted by Maryland law in effect from time to time and shall
be entitled to advancement of expenses consistent with Maryland law;


 


WHEREAS, the
Company is the general partner of, and conducts substantially all of its
business through, the Operating Partnership;


 


WHEREAS, the
Amended and Restated Partnership Agreement of the Operating Partnership (the
“Partnership Agreement”)
provides for indemnification and advancement of expenses to the Company and its
officers and trustees consistent with the applicable provisions of Maryland
law, subject to the same limitations on indemnity and advancement of expenses
that apply under Maryland law to indemnity and advancement of expenses by the
Company of its officers and trustees; and


 


WHEREAS, to induce
the Indemnitee to provide services to the Company as an officer or a member of
the Board of Trustees, and to provide the Indemnitee with specific contractual
assurance that indemnification will be available to the Indemnitee regardless
of, among other things, any amendment to or revocation of the Declaration of
Trust, the Bylaws or the Partnership Agreement, or any acquisition transaction
relating to the Company, the Indemnitors desire to provide the Indemnitee with
protection against personal liability as set forth herein;


 


NOW, THEREFORE, in
consideration of the premises and the covenants contained herein, the
Indemnitors and the Indemnitee hereby agree as follows:


 

















 


1.             DEFINITIONS.


 


For purposes of
this Agreement:


 


(A)          “Change
in Control” shall mean


 


i.              the
dissolution or liquidation of the Company;


 


ii.             the
merger, consolidation, or reorganization of the Company with one or more other
entities in which the Company is not the surviving entity or immediately
following which the persons or entities who were beneficial owners (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”)) of voting securities of the Company immediately
prior thereto cease to beneficially own more than fifty percent (50%) of the
voting securities of the surviving entity immediately thereafter;


 


iii.            a
sale of all or substantially all of the assets of the Company to another person
or entity;


 


iv.            any
transaction (including without limitation a merger or reorganization in which
the Company is the surviving entity) that results in any person or entity or
“group” (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Exchange Act) (other than persons who are shareholders or affiliates
immediately prior to the transaction) owning thirty percent (30%) or more of
the combined voting power of all classes of shares of the Company; or


 


v.             individuals
who, as of the date hereof, constitute the Board of Trustees (the “Incumbent Board”) cease for any reason
to constitute at least a majority of the Board of Trustees; provided, however,
that any individual becoming a trustee subsequent to the date hereof whose
election, or nomination for election by the Company’s shareholders, was
approved by a vote of at least a majority of the trustees then comprising the
Incumbent Board (either by a specific vote or by approval of the proxy
statement of the Company in which such person is named as a nominee for
trustee, without written objection to such nomination) shall be considered as
though such individual were a member of the Incumbent Board, but excluding, for
this purpose, any such individual whose initial assumption of office occurs as
a result of an actual or threatened election contest with respect to the
election or removal of trustees or other actual or threatened solicitation of
proxies or contests by or on behalf of a person other than the Board of
Trustees.


 


(B)           “Corporate Status”
describes the status of a person who is or was a trustee or officer of the
Company (or of any domestic or foreign predecessor entity of the


 


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Company in a merger, consolidation or other transaction in which the
predecessor’s interest ceased upon consummation of the transaction) or is or
was serving at the request of the Company (or any such predecessor entity) as a
director, officer, partner (limited or general), member, trustee, employee or
agent of any other foreign or domestic corporation, partnership, joint venture,
limited liability company, trust, other enterprise (whether conducted for
profit or not for profit) or employee benefit plan. The Company (and any
domestic or foreign predecessor entity of the Company in a merger,
consolidation or other transaction in which the predecessor’s existence ceased
upon consummation of the transaction) shall be deemed to have requested the Indemnitee
to serve an employee benefit plan where the performance of the Indemnitee’s
duties to the Company (or any such predecessor entity) also imposes or imposed
duties on, or otherwise involves or involved services by, the Indemnitee to the
plan or participants or beneficiaries of the plan.


 


(C)           “Expenses”
shall include all attorneys’ and paralegals’ fees, retainers, court costs,
transcript costs, fees of experts, witness fees, travel expenses, duplicating
costs, printing and binding costs, telephone charges, postage, delivery service
fees, and all other disbursements or expenses of the types customarily incurred
in connection with prosecuting, defending, preparing to prosecute or defend,
investigating, or being or preparing to be a witness in a Proceeding.


 


(D)          “Proceeding”
includes any action, suit, arbitration, alternate dispute resolution mechanism,
investigation, administrative hearing, or any other proceeding, including
appeals therefrom, whether civil, criminal, administrative, or investigative,
except one initiated by the Indemnitee pursuant to paragraph 8 of this
Agreement to enforce such Indemnitee’s 
rights under this Agreement.


 


(E)           “Special
Legal Counsel” means a law firm, or a member of a law firm, that is experienced
in matters of corporation law and neither presently is, or in the past two
years has been, retained to represent (i) the Indemnitors or the Indemnitee in
any matter material to either such party, or (ii) any other party to the
Proceeding giving rise to a claim for indemnification hereunder.


 


2.             INDEMNIFICATION


 


The Indemnitee
shall be entitled to the rights of indemnification provided in this paragraph 2
and under applicable law, the Declaration of Trust, the Bylaws, the Partnership
Agreement, any other agreement, a vote of shareholders or resolution of the
Board of Trustees or otherwise if, by reason of such Indemnitee’s Corporate
Status, such Indemnitee is, or is threatened to be made, a party to any
threatened, pending, or completed Proceeding, including a Proceeding by or in the
right of the Company or the Operating Partnership.  Unless prohibited by paragraph 13 hereof and subject to the other
provisions of this Agreement, the Indemnitee shall be indemnified hereunder, to
the maximum extent provided by Maryland law in effect from time to time,
against judgments, penalties, fines, and settlements and reasonable Expenses
actually incurred by or on behalf of such Indemnitee in connection with such
Proceeding or any claim,


 


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issue or matter therein;
provided, however, that if such Proceeding was one by or in the right of the
Company or the Operating Partnership, indemnification may not be made in
respect of such Proceeding if the Indemnitee shall have been adjudged to be
liable to the Company or the Operating Partnership.  For purposes of this paragraph 2, excise taxes assessed on the
Indemnitee with respect to an employee benefit plan pursuant to applicable law
shall be deemed fines.


 


3.             EXPENSES OF
A SUCCESSFUL PARTY


 


Without limiting
the effect of any other provision of this Agreement and without regard to the
provisions of paragraph 6 hereof, to the extent that the Indemnitee is, by
reason of such Indemnitee’s Corporate Status, a party to and is successful, on
the merits or otherwise, in any Proceeding pursuant to a final non-appealable
order, such Indemnitee shall be indemnified against all reasonable Expenses
actually incurred by or on behalf of such Indemnitee in connection
therewith.  If the Indemnitee is not
wholly successful in such Proceeding pursuant to a final non-appealable order
but is successful, on the merits or otherwise, as to one or more but less than
all claims, issues, or matters in such Proceeding pursuant to a final
non-appealable order, the Indemnitors shall indemnify the Indemnitee against
all reasonable Expenses actually incurred by or on behalf of such Indemnitee in
connection with each successfully resolved claim, issue or matter.  For purposes of this paragraph and without
limitation, the termination of any claim, issue or matter in such Proceeding by
dismissal, with or without prejudice, shall be deemed to be a successful result
as to such claim, issue or matter.


 


4.             ADVANCEMENT
OF EXPENSES


 


The Indemnitors
shall advance all reasonable Expenses incurred by or on behalf of the
Indemnitee in connection with any Proceeding within 20 days after the receipt
by the Indemnitors of a statement from the Indemnitee requesting such advance
from time to time, whether prior to or after final disposition of such
Proceeding.  Such statement shall
reasonably evidence the Expenses incurred or to be incurred by the Indemnitee
and shall include or be preceded or accompanied by (i) a written affirmation by
the Indemnitee of the Indemnitee’s good faith belief that the standard of conduct
necessary for indemnification by the Indemnitors as authorized by this
Agreement has been met and (ii) a written undertaking by or on behalf of the
Indemnitee to repay the amounts advanced if it should ultimately be determined
that the standard of conduct has not been met. 
The undertaking required by clause (ii) of the immediately preceding
sentence shall be an unlimited general obligation of the Indemnitee but need
not be secured and may be accepted without reference to financial ability to
make the repayment.


 


5.             WITNESS
EXPENSES


 


Notwithstanding
any other provision of this Agreement, to the extent that the Indemnitee is, by
reason of such Indemnitee’s Corporate Status, a witness for any reason in any
Proceeding to which such Indemnitee is not a named defendant or respondent,
such Indemnitee shall be indemnified by the Indemnitors against all Expenses
actually incurred by or on behalf of such Indemnitee in connection therewith.


 


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6.             DETERMINATION
OF ENTITLEMENT TO AND AUTHORIZATION OF INDEMNIFICATION


 


(A)          To
obtain indemnification under this Agreement, the Indemnitee shall submit to the
Indemnitors a written request, including therewith such documentation and
information reasonably necessary to determine whether and to what extent the
Indemnitee is entitled to indemnification.


 


(B)           Indemnification
under this Agreement may not be made unless authorized for a specific
Proceeding after a determination has been made in accordance with this
Section 6(B) that indemnification of the Indemnitee is permissible in the
circumstances because the Indemnitee has met the following standard of conduct:
the Indemnitors shall indemnify the Indemnitee in accordance with the
provisions of paragraph 2 hereof, unless  it is established that:  (a) the act or omission of the Indemnitee
was material to the matter giving rise to the Proceeding and (x) was committed
in bad faith or (y) was the result of active and deliberate dishonesty; (b) the
Indemnitee actually received an improper personal benefit in money, property or
services; or (c) in the case of any criminal proceeding, the Indemnitee had
reasonable cause to believe that the act or omission was unlawful.  Upon receipt by the Indemnitors of the
Indemnitee’s written request for indemnification pursuant to subparagraph 6(A),
a determination as to whether the applicable standard of conduct has been met
shall be made within the period specified in paragraph 6(E):  (i) if a Change in Control shall have
occurred, by Special Legal Counsel in a written opinion to the Board of
Trustees, a copy of which shall be delivered to the Indemnitee, with Special
Legal Counsel selected by the Indemnitee (unless the Indemnitee shall request
that such determination be made by the person or persons and in the manner
provided in clause (ii) of this paragraph 6(B), in which event the provisions
of such clause (ii) shall apply) (If the Indemnitee selects Special Legal
Counsel to make the determination under this clause (i), the Indemnitee shall
give prompt written notice to the Indemnitors advising them of the identity of
the Special Legal Counsel so selected); or (ii) if a Change in Control shall
not have occurred, (A) by the Board of Trustees by a majority vote of a quorum
consisting of trustees not, at the time, parties to the Proceeding, or, if such
quorum cannot be obtained, then by a majority vote of a committee of the Board
of Trustees consisting solely of two or more trustees not, at the time, parties
to such Proceeding and who were duly designated to act in the matter by a
majority vote of the full Board of Trustees in which the designated trustees
who are parties may participate, (B) by Special Legal Counsel in a written
opinion to the Board of Trustees, a copy of which shall be delivered to the Indemnitee,
with Special Legal Counsel selected by the Board of Trustees or a committee of
the Board of Trustees by vote as set forth in subparagraph (ii)(A) of this
paragraph 6(B), or, if the requisite quorum of the full Board of Trustees
cannot be obtained therefor and the committee cannot be established, by a
majority of the full Board of Trustees in which trustees who are parties to the
Proceeding may participate (If the Indemnitors select Special Legal Counsel to
make the determination under this clause (ii), the Indemnitors shall give
prompt


 


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written notice to
the Indemnitee advising him or her of the identity of the Special Legal Counsel
so selected) or (C) by the shareholders of the Company.  If it is so determined that the Indemnitee
is entitled to indemnification, payment to the Indemnitee shall be made within
10 days after such determination. Authorization of indemnification and
determination as to reasonableness of Expenses shall be made in the same manner
as the determination that indemnification is permissible.  However, if the determination that
indemnification is permissible is made by Special Legal Counsel under clause
(B) above, authorization of indemnification and determination as to reasonableness
of Expenses shall be made in the manner specified under clause (B) above for
the selection of such Special Legal Counsel.


 


(C)           The
Indemnitee shall cooperate with the person or entity making such determination
with respect to the Indemnitee’s entitlement to indemnification, including
providing upon reasonable advance request any documentation or information
which is not privileged or otherwise protected from disclosure and which is
reasonably available to the Indemnitee and reasonably necessary to such
determination.  Any reasonable costs or
expenses (including reasonable attorneys’ fees and disbursements) incurred by
the Indemnitee in so cooperating shall be borne by the Indemnitors
(irrespective of the determination as to the Indemnitee’s entitlement to
indemnification) and the Indemnitors hereby indemnify and agree to hold the
Indemnitee’s harmless therefrom.


 


(D)           In
the event the determination of entitlement to indemnification is to be made by
Special Legal Counsel pursuant to paragraph 6(B) hereof, the Indemnitee, or the
Indemnitors, as the case may be, may, within seven days after such written
notice of selection shall have been given, deliver to the Indemnitors or to the
Indemnitee, as the case may be, a written objection to such selection.  Such objection may be asserted only on the
grounds that the Special Legal Counsel so selected does not meet the
requirements of “Special Legal Counsel” as defined in paragraph 1 of this
Agreement.  If such written objection is
made, the Special Legal Counsel so selected may not serve as Special Legal
Counsel until a court has determined that such objection is without merit.  If, within 20 days after submission by the
Indemnitee of a written request for indemnification pursuant to paragraph 6(A)
hereof, no Special Legal Counsel shall have been selected or, if selected,
shall have been objected to, either the Indemnitors or the Indemnitee may
petition a court for resolution of any objection which shall have been made by
the Indemnitors or the Indemnitee to the other’s selection of Special Legal
Counsel and/or for the appointment as Special Legal Counsel of a person
selected by the court or by such other person as the court shall designate, and
the person with respect to whom an objection is so resolved or the person so
appointed shall act as Special Legal Counsel under paragraph 6(B) hereof.  The Indemnitors shall pay all reasonable
fees and expenses of Special Legal Counsel incurred in connection with acting
pursuant to paragraph 6(B) hereof, and all reasonable fees and expenses
incident to the selection of such Special Legal Counsel pursuant to this
paragraph 6(D).  In the event that a
determination of entitlement to indemnification is to be made by Special Legal
Counsel and such determination


 


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shall not have been made and delivered in a written
opinion within ninety (90) days after the receipt by the Indemnitors of the
Indemnitee’s request in accordance with paragraph 6(A), upon the due
commencement of any judicial proceeding in accordance with paragraph 8(A) of
this Agreement, Special Legal Counsel shall be discharged and relieved of any
further responsibility in such capacity.


 


(E)           If
the person or entity making the determination whether the Indemnitee is entitled
to indemnification shall not have made a determination within 60 days after
receipt by the Indemnitors of the request therefor, the requisite determination
of entitlement to indemnification shall be deemed to have been made and the
Indemnitee shall be entitled to such indemnification, absent:  (i) a misstatement by the Indemnitee of a
material fact, or an omission of a material fact necessary to make the
Indemnitee’s statement not materially misleading, in connection with the
request for indemnification, or (ii) a prohibition of such indemnification
under applicable law.  Such 60-day
period may be extended for a reasonable time, not to exceed an additional 30
days, if the person or entity making said determination in good faith requires
additional time for the obtaining or evaluating of documentation and/or
information relating thereto.  The
foregoing provisions of this paragraph 6(E) shall not apply:  (i) if the determination of entitlement to
indemnification is to be made by the shareholders and if within 15 days after
receipt by the Indemnitors of the request for such determination the Board of
Trustees resolves to submit such determination to the shareholders for
consideration at an annual or special meeting thereof to be held within 75 days
after such receipt and such determination is made at such meeting, or (ii) if
the determination of entitlement to indemnification is to be made by Special
Legal Counsel pursuant to paragraph 6(B) of this Agreement.


 


7.             PRESUMPTIONS


 


(A)          In
making a determination with respect to entitlement or authorization of
indemnification hereunder, the person or entity making such determination shall
presume that the Indemnitee is entitled to indemnification under this Agreement
and the Indemnitors shall have the burden of proof to overcome such
presumption.


 


(B)           The
termination of any Proceeding by conviction, or upon a plea of nolo contendere
or its equivalent, or an entry of an order of probation prior to judgment,
creates a rebuttable presumption that the Indemnitee did not meet the requisite
standard of conduct described herein for indemnification.


 


8.             REMEDIES


 


(A)          In
the event that:  (i) a determination is
made in accordance with the provisions of paragraph 6 that the Indemnitee is
not entitled to indemnification under this Agreement, or (ii) advancement of
reasonable Expenses is not timely made pursuant to this Agreement, or (iii)
payment of indemnification due the Indemnitee under this Agreement is not
timely made, the Indemnitee shall be entitled to an adjudication in an appropriate
court of competent jurisdiction of 


 


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such Indemnitee’s
entitlement to such indemnification or advancement of Expenses.


 


(B)           In
the event that a determination shall have been made pursuant to paragraph 6 of
this Agreement that the Indemnitee is not entitled to indemnification, any
judicial proceeding commenced pursuant to this paragraph 8 shall be conducted
in all respects as a de novo trial on the merits.  The fact that a determination had been made earlier pursuant to
paragraph 6 of this Agreement that the Indemnitee was not entitled to
indemnification shall not be taken into account in any judicial proceeding
commenced pursuant to this paragraph 8 and the Indemnitee shall not be
prejudiced in any way by reason of that adverse determination.  In any judicial proceeding commenced
pursuant to this paragraph 8, the Indemnitors shall have the burden of proving
that the Indemnitee is not entitled to indemnification or advancement of
Expenses, as the case may be.


 


(C)           If
a determination shall have been made or deemed to have been made pursuant to
this Agreement that the Indemnitee is entitled to indemnification, the
Indemnitors shall be bound by such determination in any judicial proceeding
commenced pursuant to this paragraph 8, absent:  (i) a misstatement by the Indemnitee of a material fact, or an
omission of a material fact necessary to make the Indemnitee’s statement not
materially misleading, in connection with the request for indemnification, or (ii)
a prohibition of such indemnification under applicable law.


 


(D)          The
Indemnitors shall be precluded from asserting in any judicial proceeding
commenced pursuant to this paragraph 8 that the procedures and presumptions of
this Agreement are not valid, binding and enforceable and shall stipulate in
any such court that the Indemnitors are bound by all the provisions of this
Agreement.


 


(E)           In
the event that the Indemnitee, pursuant to this paragraph 8, seeks a judicial
adjudication of such Indemnitee’s rights under, or to recover damages for
breach of, this Agreement, if successful in whole or in part, the Indemnitee
shall be entitled to recover from the Indemnitors, and shall be indemnified by
the Indemnitors against, any and all reasonable Expenses actually incurred by
such Indemnitee in such judicial adjudication.


 


9.             NOTIFICATION
AND DEFENSE OF CLAIMS


 


The Indemnitee agrees promptly to notify the
Indemnitors in writing upon being served with any summons, citation, subpoena,
complaint, indictment, information, or other document relating to any
Proceeding or matter which may be subject to indemnification or advancement of
Expenses covered hereunder, but the failure so to notify the Indemnitors will
not relieve the Indemnitors from any liability that the Indemnitors may have to
Indemnitee under this Agreement unless the Indemnitors are materially
prejudiced thereby.  With respect to any
such Proceeding as to which Indemnitee notifies the Indemnitors of the
commencement thereof:


 


(A)          The
Indemnitors will be entitled to participate therein at their own expense.


 


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(B)           Except as otherwise
provided below, the Indemnitors will be entitled to assume the defense thereof,
with counsel reasonably satisfactory to Indemnitee.  After notice from the Indemnitors to Indemnitee of the
Indemnitors’ election so to assume the defense thereof, the Indemnitors will
not be liable to Indemnitee under this Agreement for any legal or other expenses
subsequently incurred by Indemnitee in connection with the defense thereof
other than reasonable costs of investigation or as otherwise provided
below.  Indemnitee shall have the right
to employ Indemnitee’s own counsel in such Proceeding, but the fees and
disbursements of such counsel incurred after notice from the Indemnitors of the
Indemnitors’ assumption of the defense thereof shall be at the expense of
Indemnitee unless (a) the employment by counsel by Indemnitee has been
authorized by the Indemnitors, (b) the Indemnitee shall have reasonably
concluded that there may be a conflict of interest between the Indemnitors and
the Indemnitee in the conduct of the defense of such action, (c) such
Proceeding seeks penalties or other relief against the Indemnitee with respect
to which the Indemnitors could not provide monetary indemnification to the
Indemnitee (such as injunctive relief or incarceration) or (d) the Indemnitors
shall not in fact have employed counsel to assume the defense of such action,
in each of which cases the fees and disbursements of counsel shall be at the
expense of the Indemnitors.  The
Indemnitors shall not be entitled to assume the defense of any Proceeding
brought by or on behalf of the Indemnitors, or as to which Indemnitee shall have
reached the conclusion specified in clause (b) above, or which involves
penalties or other relief against Indemnitee of the type referred to in clause
(c) above.


 


(C)           The
Indemnitors shall not be liable to indemnify Indemnitee under this Agreement
for any amounts paid in settlement of any action or claim effected without the
Indemnitors’ written consent.  The
Indemnitors shall not settle any action or claim in any manner that would
impose any penalty or limitation on Indemnitee without Indemnitee’s written
consent.  Neither the Indemnitors nor
Indemnitee will unreasonably withhold or delay consent to any proposed
settlement.


 


10.           NON-EXCLUSIVITY;
SURVIVAL OF RIGHTS; INSURANCE SUBROGATION


 


(A)          The
rights of indemnification and to receive advancement of reasonable Expenses as
provided by this Agreement shall not be deemed exclusive of any other rights to
which the Indemnitee may at any time be entitled under applicable law, the
Declaration of Trust, the Bylaws, the Operating Partnership’s Partnership
Agreement, any other agreement, a vote of shareholders, a resolution of the
Board of Trustees or otherwise.  No
amendment, alteration or repeal of this Agreement or any provision hereof shall
be effective as to the Indemnitee with respect to any action taken or omitted
by the Indemnitee as a member of the Board of Trustees prior to such amendment,
alteration or repeal.


 


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(B)           To
the extent that the Company maintains an insurance policy or policies providing
liability insurance for trustees and officers of the Company, the Indemnitee
shall be covered by such policy or policies in accordance with its or their
terms to the maximum extent of the coverage available and upon any “Change in
Control” the Company shall use commercially reasonable efforts to obtain or
arrange for continuation and/or “tail” coverage for the Indemnitee to the
maximum extent obtainable at such time.


 


(C)           In
the event of any payment under this Agreement, the Indemnitors shall be
subrogated to the extent of such payment to all of the rights of recovery of
the Indemnitee, who shall execute all papers required and take all actions
necessary to secure such rights, including execution of such documents as are
necessary to enable the Indemnitors to bring suit to enforce such rights.


 


(D)          The Indemnitors shall
not be liable under this Agreement to make any payment of amounts otherwise
indemnifiable hereunder if and to the extent that the Indemnitee has otherwise
actually received such payment under any insurance policy, contract, agreement,
or otherwise.


 


11.           CONTINUATION
OF INDEMNITY


 


(A)          All
agreements and obligations of the Indemnitors contained herein shall continue
during the period the Indemnitee is an officer or a member of the Board of
Trustees of the Company and shall continue thereafter so long as the Indemnitee
shall be subject to any threatened, pending or completed Proceeding by reason
of such Indemnitee’s Corporate Status and during the period of statute of
limitations for any act or omission occurring during the Indemnitee’s term of
Corporate Status. This Agreement shall be binding upon the Indemnitors and
their respective successors and assigns and shall inure to the benefit of the
Indemnitee and such Indemnitee’s heirs, executors and administrators.


 


(B)          The
Company and the Operating Partnership shall require and cause any successor
(whether direct or indirect by purchase, merger, consolidation or otherwise) to
all, substantially all or a substantial part, of the business and/or assets of
the Company or the Operating Partnership, by written agreement in form and
substance reasonably satisfactory to the Indemnitee, expressly to assume and
agree to perform this Agreement in the same manner and to the same extent that
the Company and the Operating Partnership would be required to perform if no
such succession had taken place.


 


12.           SEVERABILITY


 


If any provision
or provisions of this Agreement shall be held to be invalid, illegal, or
unenforceable for any reason whatsoever, (i) the validity, legality, and
enforceability of the remaining provisions of this Agreement (including,
without limitation, each portion of any paragraph of this Agreement containing
any such provision held to be invalid, illegal, or unenforceable, that is not
itself invalid, illegal, or unenforceable) shall not in any way be affected or
impaired thereby, and (ii) to the fullest extent possible, the provisions of
this Agreement (including, without limitation, each portion of any paragraph of
this Agreement containing any such provision held to be invalid, illegal, or


 


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unenforceable, that is
not itself invalid, illegal, or unenforceable) shall be construed so as to give
effect to the intent manifested by the provisions held invalid, illegal, or
unenforceable.


 


13.           EXCEPTION TO
RIGHT OF INDEMNIFICATION OR ADVANCEMENT OF EXPENSES


 


Notwithstanding
any other provisions of this Agreement, the Indemnitee shall not be entitled to
indemnification or advancement of reasonable Expenses under this Agreement with
respect to any Proceeding initiated by such Indemnitee against the Indemnitors
other than a proceeding commenced pursuant to paragraph 8.


 


14.           NOTICE TO THE COMPANY SHAREHOLDERS


 


Any
indemnification of, or advancement of reasonable Expenses, to an Indemnitee in
accordance with this Agreement, if arising out of a Proceeding by or in the
right of the Company, shall be reported in writing to the shareholders of the
Company with the notice of the next the Company shareholders’ meeting or prior
to the meeting.


 


15.           PAYMENT BY
THE OPERATING PARTNERSHIP OF AMOUNTS REQUIRED  TO BE
PAID         OR ADVANCED BY THE
COMPANY


 


The obligations of
the Company and the Operating Partnership under this Agreement shall be joint
and several.  The Operating Partnership
shall promptly pay upon demand by the Company or the Indemnitee all amounts the
Company is required to pay or advance hereunder.


 


16.           HEADINGS


 


The headings of
the paragraph of this Agreement are inserted for convenience only and shall not
be deemed to constitute part of this Agreement or to affect the construction
thereof.


 


17.           MODIFICATION AND WAIVER


 


No supplement,
modification, or amendment of this Agreement shall be binding unless executed
in writing by each of the parties hereto. 
No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provisions hereof (whether or not
similar) nor shall such waiver constitute a continuing waiver.


 


18.           NOTICES


 


All notices,
requests, demands, and other communications hereunder shall be in writing and shall
be deemed to have been duly given if (i) delivered by hand and receipted for by
the party to whom said notice or other communication shall have been directed,
or (ii) mailed by


 


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certified or registered
mail with postage prepaid, on the third business day after the date on which it
is so mailed, if so delivered or mailed, as the case may be, to the following
addresses:


 


If to the
Indemnitee, to the address set forth in the records of the Company.


 


If to the
Indemnitors, to:


 


	
   

  	
  Kite Realty Group Trust

  
	
   

  	
  Kite Realty Group, L.P.

  
	
   

  	
  30 S. Meridian Street

  
	
   

  	
  Suite 1100

  
	
   

  	
  Indianapolis,
  Indiana  46204

  
	
   

  	
  Attention: Daniel R.
  Sink

  
	
   

  	
  Fax No.:  317/577-5605

  
	
   

  	
   

  
	
   

  	
  with a copy (which
  shall not constitute notice) to:

  
	
   

  	
   

  
	
   

  	
  Kite Realty Group Trust

  
	
   

  	
  30 S. Meridian Street

  
	
   

  	
  Suite 1100

  
	
   

  	
  Indianapolis,
  Indiana  46204

  
	
   

  	
  Attention: Tanya Marsh,
  Esq.

  
	
   

  	
  Fax No.:  317/577-5600

  



 


or to such other address
as may have been furnished to the Indemnitee by the Indemnitors or to the Indemnitors
by the Indemnitee, as the case may be.


 


19.           GOVERNING LAW


 


The parties agree
that this Agreement shall be governed by, and construed and enforced in
accordance with, the laws of the State of Maryland, without application of the
conflict of laws principles thereof.


 


20.           COUNTERPARTS


 


This Agreement may
be executed in two or more counterparts, each of which shall be deemed an
original, but all of which together constitute an agreement binding on all of
the parties hereto.


 


(Remainder of page intentionally left blank.)


 


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IN
WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the day and year first above written.


 


	
   

  	
  KITE REALTY GROUP TRUST

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ JOHN A. KITE

  	
   

  
	
   

  	
  Name:

  	
  John A. Kite

  
	
   

  	
  Title:

  	
  President and
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  KITE REALTY GROUP, L.P.

  
	
   

  	
   

  
	
   

  	
  By:

  	
  Kite
  Realty Group Trust,

  
	
   

  	
   

  	
  its general partner

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ JOHN A. KITE

  	
   

  
	
   

  	
  Name:

  	
  John A. Kite

  
	
   

  	
  Title:

  	
  President and Chief
  Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  INDEMNITEE:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ MICHAEL L. SMITH

  	
   

  
	
   

  	
  Michael L. Smith

  
						



 


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