8-K

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 20549

FORM 8-K

CURRENT REPORT PURSUANT TO
SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934

Date of report (Date of earliest event reported): November 1, 2010

DEVELOPERS DIVERSIFIED REALTY CORPORATION

(Exact Name of Registrant as Specified in Charter)

Ohio	1-11690	34-1723097
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)

3300 Enterprise Parkway,
Beachwood, Ohio	44122
(Address of Principal Executive Offices)	(Zip Code)

Registrant’s telephone number, including area code: (216) 755-5500

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

     Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o     Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o     Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o     Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o     Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 8.01. Other Events.

     Developers Diversified Realty Corporation (the “Company”) is filing herewith the following exhibits to its Registration Statement on Form S-3 (File No. 333-162451):

1.	Underwriting Agreement Basic Provisions, dated as of November 1, 2010, by and among the Company and J.P. Morgan Securities LLC, Goldman, Sachs & Co., Deutsche Bank Securities Inc. and UBS Securities LLC;
2.	Form of Twelfth Supplemental Indenture by and between the Company and U.S. Bank National Association (as successor to U.S. Bank Trust National Association, as successor to National City Bank); and
3.	Opinions of Jones Day.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits

Exhibit Number	Description
1.1	Underwriting Agreement Basic Provisions, dated as of November 1, 2010, by and among the Company and J.P. Morgan Securities LLC, Goldman, Sachs & Co., Deutsche Bank Securities Inc. and UBS Securities LLC
4.1	Form of Twelfth Supplemental Indenture by and between the Company and U.S. Bank National Association (as successor to U.S. Bank Trust National Association, as successor to National City Bank)
5.1	Opinion of Jones Day
8.1	Opinion of Jones Day regarding certain tax matters
23.1	Consent of Jones Day (included in Exhibit 5.1)
23.2	Consent of Jones Day (included in Exhibit 8.1)

SIGNATURES

     Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

DEVELOPERS DIVERSIFIED REALTY CORPORATION
By:	/s/ David J. Oakes
	David J. Oakes
	Senior Executive Vice President and Chief Financial Officer

Date: November 5, 2010

EXHIBIT INDEX

Exhibit Number	Description
1.1	Underwriting Agreement Basic Provisions, dated as of November 1, 2010, by and among the Company and J.P. Morgan Securities LLC, Goldman, Sachs & Co., Deutsche Bank Securities Inc. and UBS Securities LLC
4.1	Form of Twelfth Supplemental Indenture by and between the Company and U.S. Bank National Association (as successor to U.S. Bank Trust National Association, as successor to National City Bank)
5.1	Opinion of Jones Day
8.1	Opinion of Jones Day regarding certain tax matters
23.1	Consent of Jones Day (included in Exhibit 5.1)
23.2	Consent of Jones Day (included in Exhibit 8.1)

EX-1.1

Exhibit 1.1

DEVELOPERS DIVERSIFIED REALTY CORPORATION
(an Ohio corporation)

Debt Securities

UNDERWRITING AGREEMENT BASIC PROVISIONS

November 1, 2010

J.P. MORGAN SECURITIES LLC
GOLDMAN, SACHS & CO.
DEUTSCHE BANK SECURITIES INC.
UBS SECURITIES LLC

c/o	J.P. Morgan Securities LLC
	383 Madison Avenue
	New York, New York 10179
	Goldman, Sachs & Co.
	200 West Street
	New York, New York 10282

Ladies and Gentlemen:

     1. Introductory. Developers Diversified Realty Corporation, an Ohio corporation (the “Company”), proposes to issue and sell its senior debt securities (the “Senior Securities”) or its subordinated debt securities (the “Subordinated Securities”), or both, from time to time, in one or more offerings on terms to be determined at the time of sale. The Senior Securities will be issued under an indenture dated as of May 1, 1994, as amended and supplemented by the first supplemental indenture, dated as of May 10, 1995, the second supplemental indenture, dated as of July 18, 2003, the third supplemental indenture, dated as of January 23, 2004, the fourth supplemental indenture, dated as of April 22, 2004, the fifth supplemental indenture, dated as of April 28, 2005, the sixth supplemental indenture, dated as of October 7, 2005, the seventh supplemental indenture, dated as of August 28, 2006, the eighth supplemental indenture, dated as of March 13, 2007, the ninth supplemental indenture, dated as of September 30, 2009, the tenth supplemental indenture, dated as of March 19, 2010, the eleventh supplemental indenture, dated as of August 12, 2010 (such indenture, as amended and supplemented, the “Base Indenture”), and the twelfth supplemental indenture, dated on or prior to the Closing Time (as hereinafter defined) (the “Twelfth Supplemental Indenture,” and together with the Base Indenture, the “Senior Indenture”) between the Company and U.S. Bank National Association (as successor to U.S. Bank Trust National Association (as successor to National City Bank)), as trustee (the “Senior Trustee”), and the Subordinated Securities will be issued under an indenture dated as of May 1, 1994 (the “Subordinated Indenture”) between the Company and JPMorgan Chase Bank, N.A. (formerly known as Chemical Bank), as trustee (the “Subordinated Trustee”). The term

“Trustee” as used herein shall refer to either the Senior Trustee or the Subordinated Trustee, as appropriate, for Senior Securities or Subordinated Securities. The Senior Indenture and the Subordinated Indenture, each as further amended or supplemented from time to time, including the Twelfth Supplemental Indenture, are each sometimes referred to as the “Indenture.” Each series of Senior Securities or Subordinated Securities may vary, as applicable, as to aggregate principal amount, maturity date, interest rate or formula and timing of payments thereof, redemption and/or repayment provisions, conversion provisions, sinking fund requirements, if any, and any other variable terms which the Senior Indenture or the Subordinated Indenture, as the case may be, contemplates may be set forth in the Senior Securities and the Subordinated Securities as issued from time to time. The Senior Securities or the Subordinated Securities may be offered either together or separately. As used herein, “Securities” shall mean the Senior Securities or the Subordinated Securities or any combination thereof. As used herein, “you” and “your,” unless the context otherwise requires, shall mean the parties to whom this Agreement is addressed together with the other parties, if any, identified in the applicable Terms Agreement (as hereinafter defined) as additional co-managers with respect to Underwritten Securities (as hereinafter defined) purchased pursuant thereto. Securities issued in book-entry form will be issued to Cede & Co. as nominee of The Depository Trust Company (“DTC”) pursuant to a blanket letter of representations between the Company and DTC.

     Whenever the Company determines to make an offering of Securities through you or through an underwriting syndicate managed by you, the Company will enter into an agreement (the “Terms Agreement”) providing for the sale of such Securities (the “Underwritten Securities”) to, and the purchase and offering thereof by, you and such other underwriters, if any, selected by you as have authorized you to enter into such Terms Agreement on their behalf (the “Underwriters,” which term shall include you whether acting alone in the sale of the Underwritten Securities or as a member of an underwriting syndicate and any Underwriter substituted pursuant to Section 11 hereof). The Terms Agreement relating to the offering of Underwritten Securities shall specify the principal amount of Underwritten Securities to be initially issued (the “Initial Underwritten Securities”), the names of the Underwriters participating in such offering (subject to substitution as provided in Section 11 hereof), the principal amount of Initial Underwritten Securities which each such Underwriter severally agrees to purchase, the names of such of you or such other Underwriters acting as co-managers, if any, in connection with such offering, the price at which the Initial Underwritten Securities are to be purchased by the Underwriters from the Company, the initial public offering price, the time, date and place of delivery and payment, any delayed delivery arrangements and any other variable terms of the Initial Underwritten Securities (including, but not limited to, current ratings, designations, denominations, interest rates or formulas, interest payment dates, maturity dates, conversion provisions, redemption and/or repayment provisions and sinking fund requirements). In addition, each Terms Agreement shall specify whether the Company has agreed to grant to the Underwriters an option to purchase additional Underwritten Securities to cover over-allotments, if any, and the principal amount of Underwritten Securities subject to such option (the “Option Securities”). As used herein, the term “Underwritten Securities” shall include the Initial Underwritten Securities and all or any portion of the Option Securities agreed to be purchased by the Underwriters as provided herein, if any. The Terms Agreement, which shall be substantially in the form of Exhibit A hereto, may take the form of an exchange of any standard form of written telecommunication between you and the Company. Each offering of Underwritten

2

Securities through you or through an underwriting syndicate managed by you will be governed by this Agreement, as supplemented by the applicable Terms Agreement.

     2. Representations and Warranties. (a) The Company represents and warrants to you, as of the date hereof, and to you and each other Underwriter named in the applicable Terms Agreement, as of the date thereof (such latter date being referred to herein as a “Representation Date”), as of the Applicable Time referred to in Section 2(a)(iii), as of the Closing Time and, if applicable, as of each Date of Delivery referred to in Section 3(b), that:

     (i) The Company has filed with the Securities and Exchange Commission (the “Commission”) an automatic shelf registration statement on Form S-3 (No. 333-162451), including the related preliminary prospectus or prospectuses. Such registration statement registers the issuance and sale by the Company of the Securities (including the Underwritten Securities) under the Securities Act of 1933, as amended (the “1933 Act”). Promptly after execution and delivery of the applicable Terms Agreement, the Company will prepare and file a prospectus supplement relating to the offering of Underwritten Securities (the “Prospectus Supplement”) in accordance with the provisions of Rule 430B (“Rule 430B”) of the rules and regulations of the Commission under the 1933 Act (the “1933 Act Regulations”) and paragraph (b) of Rule 424 (“Rule 424(b)”) of the 1933 Act Regulations under the 1933 Act. Any information included in such Prospectus Supplement that was omitted from such registration statement at the time it became effective but that is deemed to be part of and included in such registration statement pursuant to Rule 430B is referred to as “Rule 430B Information.” The prospectus that is part of such registration statement and each prospectus supplement used in connection with the offering of Underwritten Securities that omitted Rule 430B Information is herein called a “preliminary prospectus.” Such registration statement, at any given time, including the amendments thereto to such time, the exhibits and any schedules thereto at such time, the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at such time and the documents otherwise deemed to be a part thereof or included therein by the 1933 Act Regulations, is herein called the “Registration Statement.” The Registration Statement at the time it originally became effective is herein called the “Original Registration Statement.” The final prospectus and the applicable Prospectus Supplement in the form first furnished to the Underwriters for use in connection with the offering of Underwritten Securities, including the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act at the time of the execution of the applicable Terms Agreement is herein called the “Prospectus;” provided, however, that a Prospectus Supplement shall be deemed to have supplemented the Prospectus only with respect to the offering of the Underwritten Securities to which it relates. Each of the Senior Indenture and the Subordinated Indenture has been qualified under the Trust Indenture Act of 1939, as amended (the “1939 Act”).

     All references in this Agreement to financial statements and schedules and other information which is “contained,” “included” or “stated” in the Registration Statement, any preliminary prospectus or the Prospectus (and all other references of like import) shall be deemed to mean and include all such financial statements and schedules and other information which is or is deemed to be incorporated by reference in or otherwise

3

deemed by the 1933 Act Regulations to be a part of or included in the Registration Statement, any preliminary prospectus or the Prospectus, as the case may be, as of any specified date; and all references in this Agreement to amendments or supplements to the Registration Statement, any preliminary prospectus or the Prospectus shall be deemed to mean and include, without limitation, the filing of any document under the Securities Exchange Act of 1934, as amended (the “1934 Act”), which is or is deemed to be incorporated by reference in or otherwise deemed by the 1933 Act Regulations to be a part of or included in the Registration Statement, such preliminary prospectus or the Prospectus, as the case may be, as of any specified date.

     (ii) (A) At the time of filing the Original Registration Statement, (B) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the 1933 Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the 1934 Act or form of prospectus), (C) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) of the 1933 Act Regulations) made any offer relating to the Underwritten Securities in reliance on the exemption of Rule 163 of the 1933 Act Regulations, and (D) at the date hereof, the Company was a “well-known seasoned issuer” as defined in Rule 405 of the 1933 Act Regulations (“Rule 405”). The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405, that initially became effective within three years of the date hereof, and the Securities (including the Underwritten Securities), and if applicable, the Company’s common shares (the “Common Shares”) issuable upon conversion of any of the Securities, since their registration on the Registration Statement, have been and remain eligible for registration by the Company on a Rule 405 “automatic shelf registration statement.” The Company has not received from the Commission any notice pursuant to Rule 401(g)(2) under the 1933 Act objecting to the use of the automatic shelf registration statement form.

     At the time of filing the Original Registration Statement, at the earliest time thereafter that the Company or another offering participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act Regulations) of the Underwritten Securities, at the date hereof and at the applicable Representation Date, the Company was not and is not an “ineligible issuer,” as defined in Rule 405.

     (iii) The Original Registration Statement became effective upon filing under Rule 462(e) of the 1933 Act Regulations (“Rule 462(e)”) on October 13, 2009, and any post-effective amendment thereto also became effective upon filing under Rule 462(e). No stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act and no proceedings for that purpose have been instituted, are pending or, to the knowledge of the Company, have been threatened, and any request on the part of the Commission for additional information has been complied with.

     If applicable, any offer that is a written communication relating to the Underwritten Securities made prior to the filing of the Original Registration Statement by the Company or any person acting on its behalf (within the meaning, for this paragraph only, of Rule 163(c) of the 1933 Act Regulations) has been filed with the Commission in

4

accordance with Rule 163 of the 1933 Act Regulations (“Rule 163”) and otherwise complied with the requirements of Rule 163, including without limitation the legending requirement, to qualify such offer for the exemption from Section 5(c) of the 1933 Act provided by Rule 163.

     At the respective times the Original Registration Statement and each amendment thereto (including amendments filed for the purpose of complying with Section 10(a)(3) of the 1933 Act) became effective, at each deemed effective date with respect to the Underwriters pursuant to Rule 430B(f)(2) of the 1933 Act Regulations, at the date hereof, at the applicable Representation Date, at the Applicable Time and at the Closing Time, the Registration Statement, as amended as of such date, complied, complies and will comply in all material respects with the requirements of the 1933 Act, the 1933 Act Regulations and the 1939 Act, and the rules and regulations of the Commission under the 1939 Act (the “1939 Act Regulations”), and the Registration Statement, as amended as of such date, did not, does not and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading.

     Neither the Prospectus nor any amendments or supplements thereto, at the time the Prospectus or any such amendment or supplement was issued, at the applicable Representation Date, at the Applicable Time, at the time of any filing pursuant to Rule 424(b) of the 1933 Act Regulations and at the Closing Time, included, includes or will include an untrue statement of a material fact or omitted, omits or will omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

     Any preliminary prospectus (including the prospectus filed as part of the Registration Statement or any amendment thereto) complied when so filed in all material respects with the 1933 Act and the 1933 Act Regulations and any such preliminary prospectus and the Prospectus delivered or made available to the Underwriters for use in connection with the offering of Underwritten Securities was and will be, at the time of such delivery, identical to the electronically transmitted copies thereof filed with the Commission pursuant to its Electronic Data Gathering, Analysis and Retrieval system, except to the extent permitted by Regulation S-T.

     As of the Applicable Time, neither (i) the Issuer General Use Free Writing Prospectus(es) (as defined below) (including the Final Term Sheet (as defined in Section 4(c))) issued at or prior to the Applicable Time and the Statutory Prospectus (as defined below), all considered together (collectively, the “General Disclosure Package”), nor (ii) any individual Issuer Limited Use Free Writing Prospectus, when considered together with the General Disclosure Package, included any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

     The representations and warranties in this Section 2(a)(iii) shall not apply to statements in or omissions from the Registration Statement or any post-effective

5

amendment thereto or the Prospectus or any amendments or supplements thereto, or the General Disclosure Package made in reliance upon and in conformity with information furnished to the Company in writing by any Underwriter through you expressly for use in the Registration Statement or any post-effective amendment thereto, or the Prospectus, or any amendments or supplements thereto, or the General Disclosure Package, or to that part of the Registration Statement which shall constitute the Statement of Eligibility under the 1939 Act (Form T-1) (the “Statement of Eligibility”) of the Senior Trustee and the Subordinated Trustee under the Senior Indenture and the Subordinated Indenture, respectively.

     As used in this subsection and elsewhere in this Agreement:

     “Applicable Time” means such date and time as indicated as the “Applicable Time” in the applicable Terms Agreement.

     “Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as defined in Rule 433 of the 1933 Act Regulations (“Rule 433”), relating to the Underwritten Securities (including the Final Term Sheet) that (i) is required to be filed with the Commission by the Company, (ii) is a “road show that is a written communication” within the meaning of Rule 433(d)(8)(i), whether or not required to be filed with the Commission, or (iii) is exempt from filing pursuant to Rule 433(d)(5)(i) because it contains a description of the Underwritten Securities or of the offering that does not reflect the final terms, in each case in the form filed or required to be filed with the Commission or, if not required to be filed, in the form retained in the Company’s records pursuant to Rule 433(g).

     “Issuer General Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is intended for general distribution to prospective investors, as evidenced by its being specified in Schedule I to the applicable Terms Agreement.

     “Issuer Limited Use Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not an Issuer General Use Free Writing Prospectus.

     “Statutory Prospectus” means the prospectus and/or prospectus supplement relating to the Underwritten Securities that is included in the Registration Statement immediately prior to the Applicable Time, including the documents incorporated by reference therein and any preliminary or other prospectus and/or prospectus supplement deemed to be a part thereof.

     (iv) Each Issuer Free Writing Prospectus identified on Schedule I to the applicable Terms Agreement (including the Final Term Sheet), as of its issue date and at all subsequent times through the Closing Time or until any earlier date that the Company notified or notifies you as described in Section 4(f), did not, does not and will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration Statement, the General Disclosure Package or the Prospectus, including any document incorporated by reference therein and any preliminary or other prospectus deemed to be a part thereof that has not been superseded or modified. The

6

foregoing sentence does not apply to statements in or omissions from any such Issuer Free Writing Prospectus based upon and in conformity with written information furnished to the Company by any Underwriter, through you specifically for use therein.

     (v) The documents incorporated or deemed to be incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were or hereafter are filed with the Commission, complied and will comply in all material respects with the requirements of the 1934 Act and the rules and regulations of the Commission thereunder (the “1934 Act Regulations”), and, when read together with the other information in the Registration Statement, the General Disclosure Package or the Prospectus, as the case may be, (a) at the time the Original Registration Statement became effective, (b) at the Applicable Time and (c) as of the applicable Representation Date or the Closing Time or during the period specified in Section 4(f), did not and will not include an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.

     (vi) Since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, except as otherwise provided therein, (A) there has not occurred any material adverse change or any development that is reasonably likely to have a material adverse effect on the financial condition or in the earnings or business of the Company and its subsidiaries considered as one enterprise (a “Material Adverse Effect”) from that set forth in the Registration Statement, the General Disclosure Package and the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of the applicable Terms Agreement), (B) there have been no transactions entered into by the Company or its subsidiaries which are material with respect to the Company and its subsidiaries considered as one enterprise other than those in the ordinary course of business and (C) except for regular quarterly distributions on the Company’s Common Shares, and regular distributions declared, paid or made in accordance with the terms of any class or series of the Company’s preferred shares, there has been no dividend or distribution of any kind declared, paid or made by the Company on any class of its capital shares.

     (vii) The consolidated financial statements and supporting schedules of the Company included in, or incorporated by reference into, the Registration Statement, the General Disclosure Package and the Prospectus (in each case, other than any pro forma financial information and projections) present fairly, in all material respects, the financial position of the Company and its consolidated subsidiaries as of the dates indicated and the results of their operations for the periods specified; except as otherwise stated in the Registration Statement, the General Disclosure Package and the Prospectus, said financial statements have been prepared in conformity with generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis; and the supporting schedules, if any, included in, or incorporated by reference into, the Registration Statement, the General Disclosure Package and the Prospectus present fairly, in all material respects, the information required to be stated therein. The selected financial data and the summary financial information included in, or incorporated by

7

reference into, the Registration Statement, the General Disclosure Package and the Prospectus (in each case, other than any pro forma financial information and projections) present fairly, in all material respects, the information shown therein and have been compiled on a basis consistent with that of the audited financial statements included in, or incorporated by reference into, the Registration Statement, the General Disclosure Package and the Prospectus. The statements of certain revenues and expenses of the properties acquired or proposed to be acquired, if any, included in, or incorporated by reference into, the Registration Statement, the General Disclosure Package and the Prospectus present fairly in all material respects the information set forth therein and have been prepared, in all material respects, in accordance with the applicable financial statement requirements of Rule 3-14 under the 1934 Act with respect to real estate operations acquired or to be acquired. The pro forma financial statements and the other pro forma financial information (including the notes thereto), if any, included in, or incorporated by reference into, the Registration Statement, the General Disclosure Package and the Prospectus present fairly, in all material respects, the information set forth therein, have been prepared, in all material respects, in accordance with the Commission’s rules and guidelines with respect to pro forma financial statements and have been properly compiled on the basis described therein and the assumptions used in the preparation of such pro forma financial statements and other pro forma financial information (including the notes thereto) are reasonable and the adjustments used therein are appropriate to give effect to the transactions or circumstances referred to therein. All disclosures contained in the Registration Statement, the General Disclosure Package and the Prospectus regarding “non-GAAP financial measures” (as such term is defined by the rules and regulations of the Commission), if any, comply with Regulation G under the 1934 Act and Item 10 of Regulation S-K of the 1933 Act Regulations, to the extent applicable.

     (viii) PricewaterhouseCoopers LLP, who has expressed its opinion on the audited financial statements and related schedules included in, or incorporated by reference into, the Registration Statement, is an independent registered public accounting firm within the meaning of the 1933 Act and the applicable 1933 Act Regulations.

     (ix) The Company has been duly organized and is validly existing and in good standing as a corporation under the laws of the State of Ohio, with power and authority (corporate and other) to own, lease and operate its properties and to conduct its business as described in the Registration Statement, the General Disclosure Package and the Prospectus; the Company is in possession of and operating in compliance with all material franchises, grants, authorizations, licenses, permits, easements, consents, certificates and orders required for the conduct of its business, all of which are valid and in full force and effect, except where the failure to so possess or comply would not have a Material Adverse Effect; and the Company is duly qualified to do business and in good standing as a foreign corporation in all other jurisdictions where its ownership or leasing of properties or the conduct of its business requires such qualification, except where failure to qualify and be in good standing would not have a Material Adverse Effect.

     (x) Each significant subsidiary, as defined in Rule 405 of the 1933 Act Regulations and for purposes of such definition, the most recently completed fiscal year

8

shall be the most recently completed fiscal year for which the Company has filed an Annual Report on Form 10-K (each, a “Significant Subsidiary”), has been duly incorporated or formed and is validly existing as a corporation, partnership or limited liability company in good standing or in full force and effect under the laws of the jurisdiction of its incorporation or formation, has corporate, partnership or limited liability company power and authority to own, lease and operate its properties and to conduct its business and is duly qualified as a foreign corporation, partnership or limited liability company to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a Material Adverse Effect.

     (xi) The Base Indenture has been duly and validly authorized, executed and delivered by the Company and constitutes the valid and legally binding agreement of the Company, enforceable in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws relating to or affecting enforcement of creditors’ rights generally or by general equity principles (regardless of whether enforcement is considered in a proceeding in equity or at law); and the Twelfth Supplemental Indenture has been duly authorized by the Company and, when executed and delivered by the Company and the Trustee, will constitute a valid and legally binding agreement of the Company, enforceable against the Company in accordance with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws relating to or affecting creditors’ rights generally and by general equity principles (regardless of whether enforcement is considered in a proceeding in equity or at law).

     (xii) If applicable, the capitalization of the Company is as set forth in the Registration Statement, the General Disclosure Package and the Prospectus under “Capitalization;” the issued and outstanding capital shares of the Company have been duly authorized and validly issued and are fully paid and non-assessable and are not subject to preemptive or other similar rights; and all of the issued and outstanding capital stock of the Company’s Significant Subsidiaries has been duly authorized and validly issued, is fully paid and non-assessable, and such issued and outstanding capital stock owned directly or indirectly by the Company, is owned free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except as otherwise set forth in the Registration Statement, the General Disclosure Package and the Prospectus or for such security interests, mortgages, pledges, liens, encumbrances, claims or equities that would not have a Material Adverse Effect.

     (xiii) The Underwritten Securities have been duly authorized by the Company for issuance and sale pursuant to this Agreement and, when issued, authenticated and delivered pursuant to the provisions of the Indenture against payment of the consideration therefor specified in the applicable Terms Agreement or any Delayed Delivery Contract (as hereinafter defined), the Underwritten Securities will constitute valid and legally binding obligations of the Company, enforceable in accordance with their terms, except as enforcement thereof may be limited by bankruptcy, insolvency or other similar laws relating to or affecting enforcement of creditors’ rights generally or by general equity

9

principles (regardless or whether enforcement is considered in a proceeding in equity or at law); the Underwritten Securities and the Indenture conform in all material respects to all statements relating thereto contained in the Registration Statement, the General Disclosure Package and the Prospectus; and the Underwritten Securities will be entitled to the benefits provided by the Indenture.

     (xiv) If applicable, the Common Shares issuable upon conversion of any of the Underwritten Securities will have been duly and validly authorized and reserved for issuance upon such conversion by all necessary corporate action and such shares, when issued upon such conversion, will be duly and validly issued and will be fully paid and non-assessable, and the issuance of such shares upon such conversion will not be subject to preemptive or other similar rights; the Common Shares so issuable will conform in all material respects, as of the applicable Representation Date, to all statements relating thereto contained in the Registration Statement, the General Disclosure Package and the Prospectus.

     (xv) There is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company, threatened against the Company or its subsidiaries, which is required to be disclosed in the Prospectus (other than as disclosed therein), or which would have a Material Adverse Effect or would materially and adversely affect the properties or assets thereof or which might materially and adversely affect the consummation of this Agreement, the applicable Terms Agreement, or the Indenture, or the transactions contemplated herein and therein; all pending legal or governmental proceedings to which the Company or any of its subsidiaries is a party or of which any of their respective property is the subject which are not described in the Registration Statement, the General Disclosure Package and the Prospectus, including routine litigation incidental to the business, could not, considered in the aggregate, reasonably be expected to result in a Material Adverse Effect; and there are no material contracts or documents of the Company or its subsidiaries which are required to be filed as exhibits to the Registration Statement by the 1933 Act or by the 1933 Act Regulations which have not been so filed.

     (xvi) Neither the Company nor any of its Significant Subsidiaries is in violation of the Company’s Second Amended and Restated Articles of Incorporation, as amended (the “Articles of Incorporation”), or certificate of formation, certificate of limited partnership or other organizational document, as the case may be, or the Company’s Amended Code of Regulations, as amended (the “Code of Regulations”), or bylaws, operating agreement or partnership agreement, as the case may be, or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its properties may be bound, where such defaults in the aggregate would have a Material Adverse Effect; and the execution and delivery of this Agreement, the applicable Terms Agreement and the Indenture, and the consummation of the transactions contemplated herein and therein have been duly authorized by all necessary corporate action, and compliance by the Company with its obligations hereunder and thereunder will not conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien,

10

charge or encumbrance upon any property or assets of the Company or its Significant Subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its Significant Subsidiaries is a party or by which it may be bound or to which any of the property or assets of the Company or any of its Significant Subsidiaries is subject, nor will such action result in any violation of (i) the provisions of the Articles of Incorporation or any Significant Subsidiary’s certificate of formation, certificate of limited partnership or other organizational documents, as the case may be, or Code of Regulations or any Significant Subsidiary’s bylaws, operating agreement or partnership agreement, as the case may be, or, (ii) to the Company’s knowledge, any law, administrative regulation or administrative or court order or decree except, in the case of clause (ii) hereof, for such conflicts, breaches, defaults, liens, charges, encumbrances or violations that would not have a Material Adverse Effect; and no consent, approval, authorization or order of any court or governmental authority or agency is required for the consummation by the Company of the transactions contemplated by this Agreement, or the applicable Terms Agreement or the Indenture, except such as has been obtained or as may be required under the 1933 Act, the 1934 Act, the 1939 Act, state securities or Blue Sky laws or real estate syndication laws in connection with the purchase and distribution of the Underwritten Securities by the Underwriters.

     (xvii) The Company has full right, power and authority to enter into this Agreement, the applicable Terms Agreement and the Delayed Delivery Contracts, if any, and this Agreement has been, and as of the applicable Representation Date, the applicable Terms Agreement and the Delayed Delivery Contracts, if any, will have been, duly authorized, executed and delivered by the Company.

     (xviii) Starting with its taxable year ended December 31, 1993, the Company has elected under Section 856(c) of the Internal Revenue Code of 1986, as amended (the “Code”), to be taxed as a real estate investment trust (“REIT”), and such election has not been revoked or terminated. The Company has qualified as a REIT for its taxable years ended December 31, 1993 through December 31, 2009 and the Company has operated and intends to continue to operate so as to qualify as a REIT thereafter.

     (xix) Neither the Company nor any of its subsidiaries is, or will be immediately after giving effect to the receipt of payment for the Underwritten Securities and the application of the proceeds thereof as contemplated under the caption “Use of Proceeds” in the General Disclosure Package and the Prospectus, required to be registered as an investment company under the Investment Company Act of 1940, as amended (the “1940 Act”).

     (xx) Except as set forth in the Registration Statement, the General Disclosure Package and the Prospectus, there are no persons with registration or other similar rights to have any securities registered pursuant to the Registration Statement.

     (xxi) None of the Company or any of its wholly-owned subsidiaries or, to the Company’s knowledge, any of the officers and directors thereof acting on the Company’s or such subsidiaries’ behalf has taken, directly or indirectly, any action resulting in a

11

violation of Regulation M under the 1934 Act or designed to cause or result in, or which has constituted or which reasonably might be expected to constitute, the stabilization or manipulation of the price of the Underwritten Securities or Common Shares issuable upon conversion of any of the Securities or facilitation of the sale or resale of the Underwritten Securities.

     (xxii) If required pursuant to the applicable Terms Agreement, the Underwritten Securities will be approved for listing on the New York Stock Exchange (“NYSE”) as of the Closing Time.

     (xxiii) (A) Except as described in the Registration Statement, the General Disclosure Package and the Prospectus, the Company or its subsidiaries have good and marketable title or leasehold interest, as the case may be, to the portfolio properties, including, without limitation, shopping centers and business centers (including, without limitation, centers owned through unconsolidated joint ventures and others that are otherwise consolidated by the Company) and undeveloped land (the “Portfolio Properties”) described in the Registration Statement, the General Disclosure Package and the Prospectus as being owned by the Company or its subsidiaries (except with respect to undeveloped land described in the Registration Statement, the General Disclosure Package and the Prospectus as being held by the Company through joint ventures), in each case free and clear of all liens, encumbrances, claims, security interests and defects (excluding mortgages for borrowed money) (collectively, “Defects”), except where such Defects would not have a Material Adverse Effect; (B) the joint venture interest in each property described in the Registration Statement, the General Disclosure Package and the Prospectus, as being held by the Company through a joint venture, is owned free and clear of all Defects except for such Defects that would not have a Material Adverse Effect; (C) all liens, charges, encumbrances, claims or restrictions on or affecting the properties and assets of the Company or its subsidiaries (excluding mortgages for borrowed money) are disclosed in the Registration Statement, the General Disclosure Package and the Prospectus, except for any such liens, charges, encumbrances, claims or restrictions that would not have a Material Adverse Effect; and (D) none of the Company, its wholly-owned subsidiaries or, to the knowledge of the Company, any lessee of any of the Portfolio Properties is in default under any of the leases governing the Portfolio Properties, except such defaults that would not have a Material Adverse Effect, and the Company does not know of any event which, but for the passage of time or the giving of notice, or both, would constitute a default under any of such leases, except such defaults that would not have a Material Adverse Effect.

     (xxiv) The Company or its subsidiaries have title insurance on each of the Portfolio Properties (except with respect to each property described in the Registration Statement, the General Disclosure Package and the Prospectus as held by the Company through a joint venture) in an amount at least equal to the greater of (A) the cost of acquisition of such Portfolio Property and (B) the cost of construction of the improvements located on such Portfolio Property except, in each case, where the failure to maintain such title insurance would not have a Material Adverse Effect; the joint venture owning each property described in the Registration Statement, the General Disclosure Package and the Prospectus as held by the Company through a joint venture

12

has title insurance on such property in an amount at least equal to the greater of (A) the cost of acquisition of such Portfolio Property by such joint venture and (B) the cost of construction of the improvements located on such Portfolio Property, except in each case, where the failure to maintain such title insurance would not have a Material Adverse Effect.

     (xxv) The notes secured by the mortgages and deeds of trust encumbering the Portfolio Properties (except with respect to each property described in the General Disclosure Package and the Prospectus as held by the Company through a joint venture) are not convertible except where the conversion of such notes would not have a Material Adverse Effect, and said mortgages and deeds of trust are not cross-defaulted or cross-collateralized to any property that is not a Portfolio Property, except where such cross-default or cross-collateralization, if triggered, would not have a Material Adverse Effect.

     (xxvi) The Company has no knowledge of (a) the unlawful presence of any regulated hazardous substances, hazardous materials, toxic substances or waste materials (collectively, “Hazardous Materials”) in violation of Environmental Laws (as hereinafter defined) on any of the Portfolio Properties or (b) any spills, releases, discharges or disposals of Hazardous Materials in violation of Environmental Laws that have occurred or are presently occurring from the Portfolio Properties as a result of any construction on or operation and use of the Portfolio Properties, which presence or occurrence would have a Material Adverse Effect. In connection with the construction on or operation and use of the Portfolio Properties, the Company represents that, as of the date of this Agreement and as of the Closing Time, the Company has no knowledge of any material failure to comply with all applicable local, state and federal environmental laws, regulations, ordinances and binding administrative and judicial orders relating to the generation, storage, handling, transport and disposal of any Hazardous Materials (“Environmental Laws”) that would have a Material Adverse Effect.

     (xxvii) The Company and its subsidiaries maintain a system of internal accounting and other controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets, (iii) access to assets is permitted only in accordance with management’s general or specific authorization and (iv) the recorded accounting for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. The Company has no knowledge of any material weaknesses in its internal control over financial reporting and, except as described in the Registration Statement, the General Disclosure Package and the Prospectus, since the end of the Company’s most recent audited fiscal year, there has been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting.

     (xxviii) The Company has established and maintains effective disclosure controls and procedures (as such term is defined in Rules 13a-15 and 15d-15 under the

13

1934 Act) in accordance with the rules and regulations under the Sarbanes-Oxley Act of 2002, the 1933 Act and the 1934 Act.

     (xxix) No labor problem or dispute with the employees of the Company or its Significant Subsidiaries exists or, to the knowledge of the Company, is threatened or imminent, that would have a Material Adverse Effect, except as set forth in or contemplated in the Registration Statement, the General Disclosure Package and the Prospectus (exclusive of any amendments or supplement thereto subsequent to the date of the applicable Terms Agreement).

     (xxx) Each of the Company and its subsidiaries is insured by insurers of recognized financial responsibility against such material losses and risks and in such amounts as management of the Company believes to be prudent.

     (xxxi) Neither the Company, nor any of its subsidiaries nor any director or officer, nor to the knowledge of the Company, any agent or employee of the Company or any of its subsidiaries has taken or will take any action in furtherance of an offer, payment, promise to pay, or authorization or approval of the payment or giving of money, property, gifts or anything else of value, directly or indirectly, to any “government official” (including any officer or employee of a government or government-owned or controlled entity or of a public international organization, or any person acting in an official capacity for or on behalf of any of the foregoing, or any political party or party official or candidate for political office) to unlawfully influence official action or secure an unlawful advantage; and the Company and its wholly-owned subsidiaries have conducted their businesses in compliance with applicable anti-corruption laws and have instituted and maintain and will continue to maintain policies and procedures designed to promote and achieve compliance with such laws and with the representation and warranty contained herein.

     (xxxii) The operations of the Company and its subsidiaries are and have been conducted at all times in compliance with all applicable financial recordkeeping in all material respects and reporting requirements, including those of the Bank Secrecy Act, as amended by Title III of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act), and the applicable anti-money laundering statutes of jurisdictions where the Company and its subsidiaries conduct business, the rules and regulations thereunder and any related or similar rules, regulations or guidelines, issued, administered or enforced by any governmental agency (collectively, the “Anti-Money Laundering Laws”), and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries with respect to the Anti-Money Laundering Laws is pending or, to the best knowledge of the Company, threatened.

     (xxxiii) (A) Neither the Company nor any of its subsidiaries (collectively, the “Entity”) or, to the knowledge of the Company, any director, officer, employee, agent, affiliate or representative of the Entity, is an individual or entity (“Person”) that is, or is owned or controlled by a Person that is: (I) the subject of any sanctions (“Sanctions”)

14

administered or enforced by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”), nor (II) located, organized or resident in a country or territory that is the subject of Sanctions (including, without limitation, Burma/Myanmar, Cuba, Iran, North Korea, Sudan and Syria).

          (B) The Company will not, directly or indirectly, use the proceeds of the offering of the Underwritten Securities, or lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture partner or other Person: (I) to fund or facilitate any activities or business of or with any Person or in any country or territory that, at the time of such funding or facilitation, is the subject of Sanctions; or (II) in any other manner that will result in a violation of Sanctions by any Person (including any Person participating in the offering of Underwritten Securities, whether as underwriter, advisor, investor or otherwise).

          (C) For the past five years, the Company has not knowingly engaged in and is not now knowingly engaged in any dealings or transactions with any Person, or in any country or territory, that at the time of the dealing or transaction is or was the subject of Sanctions.

     (b) Any certificate signed by any officer of the Company and delivered to you or to counsel for the Underwriters shall be deemed a representation and warranty by the Company to each Underwriter participating in such offering as to the matters covered thereby on the date of such certificate and, unless subsequently amended or supplemented, at the applicable Representation Date subsequent thereto.

     3. Purchase by, and Sale and Delivery to, Underwriters. (a)The several commitments of the Underwriters to purchase the Underwritten Securities pursuant to the applicable Terms Agreement shall be deemed to have been made on the basis of the representations and warranties herein contained and shall be subject to the terms and conditions herein set forth.

     (b) In addition, on the basis of the representations and warranties herein contained and subject to the terms and conditions herein set forth, the Company may grant, if so provided in the applicable Terms Agreement relating to the Initial Underwritten Securities, an option to the Underwriters named in such Terms Agreement, severally and not jointly, to purchase up to the aggregate principal amount of Option Securities set forth therein at the same price per Option Security as is applicable to the Initial Underwritten Securities less an amount equal to any interest paid or payable on the Initial Underwritten Securities and not payable on the Option Securities. Such option, if granted, will expire 30 days (or such lesser number of days as may be specified in the applicable Terms Agreement) after the Representation Date relating to the Initial Underwritten Securities, and may be exercised in whole or in part from time to time only for the purpose of covering over-allotments which may be made in connection with the offering and distribution of the Initial Underwritten Securities upon notice by you to the Company setting forth the aggregate principal amount of Option Securities as to which the several Underwriters are then exercising the option and the time and date of payment and delivery for such Option Securities. Any such time, date and place of delivery (a “Date of Delivery”) shall be determined by you, but shall not be later than ten full business days after the exercise of such option and not

15

be earlier than two full business days after the exercise of said option, nor in any event prior to the Closing Time, unless otherwise agreed upon by you and the Company. If the option is exercised as to all or any portion of the Option Securities, each of the Underwriters, acting severally and not jointly, will purchase that proportion of the total aggregate principal amount of Option Securities then being purchased which the aggregate principal amount of Initial Underwritten Securities each such Underwriter has severally agreed to purchase as set forth in the applicable Terms Agreement bears to the total aggregate principal amount of Initial Underwritten Securities (except as otherwise provided in the applicable Terms Agreement).

     (c) Payment of the purchase price for, and delivery of, the Underwritten Securities to be purchased by the Underwriters shall be made at the office of Sidley Austin LLP, 787 Seventh Avenue, New York, New York 10019 by wire transfer in same-day funds, or at such other place as shall be agreed upon by you and the Company, at 10:00 A.M. (New York City time) on the date specified in the Terms Agreement (such time and date of payment and delivery being referred to herein as the “Closing Time”). In addition, in the event that any or all of the Option Securities are purchased by the Underwriters, payment of the purchase price for, and delivery of certificates representing, such Option Securities, shall be made at the above-mentioned offices of Sidley Austin LLP, or at such other place as shall be agreed upon by you and the Company on each Date of Delivery as specified in the notice from you to the Company. Unless otherwise specified in the applicable Terms Agreement, payment shall be made to the Company by wire transfer in same-day funds payable against delivery to you for the respective accounts of the Underwriters for the Underwritten Securities to be purchased by them. The Underwritten Securities shall be in such authorized denominations and registered in such names as you may request in writing at least one business day prior to the Closing Time or Date of Delivery, as the case may be. The Underwritten Securities, which may be in temporary form, will be made available for examination and packaging by you on or before the first business day prior to the Closing Time or the Date of Delivery, as the case may be.

     If authorized by the applicable Terms Agreement, the Underwriters named therein may solicit offers to purchase Underwritten Securities from the Company pursuant to delayed delivery contracts (“Delayed Delivery Contracts”) substantially in the form of Exhibit C hereto with such changes therein as the Company may approve. As compensation for arranging Delayed Delivery Contracts, the Company will pay to you at the Closing Time, for the respective accounts of the Underwriters, a fee specified in the applicable Terms Agreement for each of the Underwritten Securities for which Delayed Delivery Contracts are made at the Closing Time as is specified in the applicable Terms Agreement. Any Delayed Delivery Contracts are to be with institutional investors of the types described in the Registration Statement, the General Disclosure Package and the Prospectus. At the Closing Time, the Company will enter into Delayed Delivery Contracts (for not less than the minimum principal amount of Underwritten Securities per Delayed Delivery Contract specified in the applicable Terms Agreement) with all purchasers proposed by the Underwriters and previously approved by the Company as provided below, but not for an aggregate principal amount of Underwritten Securities in excess of that specified in the applicable Terms Agreement. The Underwriters will not have any responsibility for the validity or performance of Delayed Delivery Contracts.

     You shall submit to the Company, at least two business days prior to the Closing Time, the names of any institutional investors with which it is proposed that the Company will enter

16

into Delayed Delivery Contracts and the principal amount of Underwritten Securities to be purchased by each of them, and the Company will advise you, at least one business day prior to the Closing Time, of the names of the institutions with which the making of Delayed Delivery Contracts is approved by the Company and the principal amount of Underwritten Securities to be covered by each such Delayed Delivery Contract.

     The principal amount of Underwritten Securities agreed to be purchased by the several Underwriters pursuant to the applicable Terms Agreement shall be reduced by the principal amount of Underwritten Securities covered by Delayed Delivery Contracts, as to each Underwriter as set forth in a written notice delivered by you to the Company; provided, however, that the total principal amount of Underwritten Securities to be purchased by all Underwriters shall be the aggregate principal amount of Underwritten Securities covered by the applicable Terms Agreement, less the principal amount of Underwritten Securities covered by Delayed Delivery Contracts.

     4. Covenants and Agreements of the Company. The Company covenants with the several Underwriters participating in the offering of Underwritten Securities that:

     (a) Immediately following the execution of the applicable Terms Agreement, the Company, subject to Section 4(c), will prepare a Prospectus Supplement containing the Rule 430B Information, and the Company will effect the filings required under Rule 424(b) of the 1933 Act Regulations, in the manner and within the time period required by Rule 424(b) (without reliance on Rule 424(b)(8)). The Company shall pay the required Commission filing fees relating to the Underwritten Securities within the time required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations (including, if applicable, by updating the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of the Prospectus Supplement filed pursuant to Rule 424(b)).

     (b) The Company will advise you promptly (i) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the institution of any proceedings for that purpose or of any examination pursuant to Section 8(e) of the 1933 Act concerning the Registration Statement and (ii) if the Company becomes the subject of a proceeding under Section 8A of the 1933 Act in connection with the offering of the Underwritten Securities or if the Company receives from the Commission a notice pursuant to Rule 401(g)(2) of the 1933 Act Regulations. The Company will use its reasonable best efforts to prevent the issuance of any stop order and to obtain as soon as possible the lifting thereof, if issued. The Company will advise you promptly of any request by the Commission for any amendment of or supplement to the Registration Statement, the filing of a new registration statement relating to the Underwritten Securities, any amendment of or supplement to the Prospectus or for additional information.

     (c) At any time when the Prospectus relating to the Underwritten Securities is required to be delivered (or but for the exception afforded by Rule 172 of the 1933 Act Regulations would be required to be delivered) under the 1933 Act or the 1934 Act in connection with sales of the Underwritten Securities (the “Prospectus Delivery Period”), the Company will

17

give you notice of its intention to file any amendment to the Registration Statement, a new registration statement relating to the Underwritten Securities or any amendment or supplement to the Prospectus, whether pursuant to the 1933 Act, the 1934 Act or otherwise, and will furnish you with copies of any such amendment or supplement or such new registration statement a reasonable amount of time prior to such proposed filing, and will not file any such amendment or supplement or such new registration statement or other documents in a form to which you or counsel for the Underwriters shall reasonably object in writing or which is not in material compliance with the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations, as applicable; provided, however, that with respect to any proposed amendment or supplement resulting solely from the incorporation by reference of any report to be filed under the 1934 Act and the 1934 Act Regulations, the Company will only be required to furnish you with copies of such report a reasonable amount of time prior to the proposed filing thereof. The Company has given you notice of any filings made pursuant to the 1934 Act or the 1934 Act Regulations within 48 hours prior to the Applicable Time; the Company will give you notice of its intention to make any such filing from the Applicable Time to the Closing Time and will furnish you with copies of any such documents a reasonable amount of time prior to such proposed filing, as the case may be, and will not file or use any such document to which you or counsel for the Underwriters shall reasonably object. The Company will prepare a final term sheet (the “Final Term Sheet”) reflecting the final terms of the Underwritten Securities, in form and substance satisfactory to you and substantially in the form attached on Schedule I to the applicable Terms Agreement, and shall file such Final Term Sheet as an “issuer free writing prospectus” pursuant to Rule 433 as soon as possible after execution of such Terms Agreement; provided that the Company shall furnish you with copies of any such Final Term Sheet a reasonable amount of time prior to such proposed filing and will not use or file any such document to which you or counsel to the Underwriters shall object. The Final Term Sheet is a Permitted Free Writing Prospectus (as defined herein) for purposes of this Agreement.

     (d) At the request of an Underwriter, the Company will deliver to such Underwriter a conformed copy of the Original Registration Statement and of each amendment thereto (including exhibits filed therewith and documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933 Act or otherwise deemed to be a part thereof).

     (e) The Company will furnish to each Underwriter, upon written request, as many copies of each preliminary prospectus and any amendment or supplement thereto as such Underwriter reasonably requests, and the Company hereby consents to the use of such copies for purposes permitted by the 1933 Act. The Company will furnish to each Underwriter, from time to time during the Prospectus Delivery Period, such number of copies of the Prospectus (as amended or supplemented) as such Underwriter may reasonably request for the purposes contemplated by the 1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations.

     (f) If, during the Prospectus Delivery Period, any event relating to or affecting the Company occurs as a result of which the Prospectus or any other prospectus as then in effect would include an untrue statement of a material fact, or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary at any time to amend the Registration Statement or to file a new registration statement relating to the Underwritten Securities or amend or supplement the

18

Prospectus to comply with the 1933 Act or the 1934 Act, the Company will promptly notify you thereof and, subject to Section 4(c), will amend the Registration Statement, file such new registration statement or amend or supplement the Prospectus, as applicable, to correct such statement or omission whether by filing documents pursuant to the 1933 Act, the 1934 Act or otherwise, as may be necessary to correct such untrue statement or omission or to make the Registration Statement and Prospectus comply with such requirements; the Company will use its reasonable best efforts to have such amendment or such new registration statement declared effective as soon as practicable (if it is not an automatic shelf registration statement with respect to the Underwritten Securities) and the Company will furnish to the Underwriters a reasonable number of copies of such amendment or supplement or such new registration statement. If at any time after the date of the applicable Terms Agreement, an event or development occurs as a result of which the General Disclosure Package contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at the Applicable Time or at the time it is delivered or conveyed to a purchaser, not misleading, the Company will promptly notify you and, subject to Section 4(c), will promptly amend or supplement in a manner reasonably satisfactory to the Underwriters at its own expense, the General Disclosure Package to eliminate or correct such untrue statement or omission. If, prior to the completion of the public offer and sale of the Underwritten Securities, at any time following the issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict with the information contained in the Registration Statement (or any other registration statement relating to the Underwritten Securities) or the Statutory Prospectus or any preliminary prospectus or included or would include an untrue statement of a material fact or omitted or would omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances prevailing at that subsequent time, not misleading, the Company will promptly notify you and, subject to Section 4(c), will promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue statement or omission. The Underwriters’ delivery of any such amendment or supplement shall not constitute a waiver of any of the conditions in Section 8 hereof.

     (g) If immediately prior to the third anniversary of October 13, 2009 (such third anniversary, the “Renewal Deadline”) any of the Underwritten Securities remain unsold by the Underwriters, the Company will, prior to the Renewal Deadline, promptly notify you and file, if it has not already done so and is eligible to do so, an automatic shelf registration statement (as defined in Rule 405 of the 1933 Act Regulations) relating to such Underwritten Securities, in a form satisfactory to you. If at the Renewal Deadline any of the Underwritten Securities remain unsold by the Underwriters and the Company is not eligible to file an automatic shelf registration statement, the Company will, if it has not already done so, promptly notify you and file a new shelf registration statement or post-effective amendment on the proper form relating to such Underwritten Securities in a form satisfactory to you, and will use its best efforts to cause such registration statement or post-effective amendment to be declared effective as soon as practicable after the Renewal Deadline and promptly notify you of such effectiveness. The Company will take all other action necessary or appropriate to permit the public offering and sale of the Underwritten Securities to continue as contemplated in the expired registration statement relating thereto. References herein to the “Registration Statement” shall include such automatic shelf registration statement or such new shelf registration statement or post-effective amendment, as the case may be.

19

     (h) The Company will cooperate with the Underwriters to enable the Underwritten Securities and the Common Shares issuable upon conversion of the Underwritten Securities, if any, to be qualified for sale under the securities laws and real estate syndication laws of such jurisdictions as you may reasonably designate and at the reasonable request of the Underwriters will make such applications and furnish such information as may be required of it as the issuer of the Underwritten Securities and the Common Shares issuable upon conversion of the Underwritten Securities, if any, for that purpose; provided, however, that the Company shall not be required to qualify to do business or to file a general consent to service of process or to become subject to taxation as a foreign business in any such jurisdiction. The Company will, from time to time, prepare and file such statements and reports as are or may be required of it as the issuer of the Underwritten Securities and the Common Shares issuable upon conversion of the Underwritten Securities, if any, to continue such qualifications in effect for so long a period as the Underwriters may reasonably request for the distribution of the Underwritten Securities; and in each jurisdiction in which the Underwritten Securities and the Common Shares issuable upon conversion of the Underwritten Securities, if any, have been so qualified, the Company will file such statements and reports as may be required by the laws of such jurisdiction to continue such qualification in effect for so long as may be required for the distribution of the Underwritten Securities and the Common Shares issuable upon conversion of the Underwritten Securities, if any; provided, however, that the Company shall not be obligated to qualify as a foreign corporation or to take any action that would subject it to general service of process in any jurisdiction where it is not so qualified or where it would be subject to taxation as a foreign business.

     (i) With respect to each sale of Underwritten Securities, the Company will timely file such reports pursuant to the 1934 Act as are necessary in order to make generally available to its securityholders an earnings statement in form complying with the provisions of Rule 158 of the 1933 Act Regulations for the purposes of, and to provide to the Underwriters the benefits contemplated by, the last paragraph of Section 11(a) of the 1933 Act.

     (j) During the period of five years from the date hereof, to the extent not otherwise available on EDGAR, the Company will deliver to you and, upon request, to each of the other Underwriters, (i) copies of each annual report of the Company and each other report furnished by the Company to its shareholders; and will deliver to you, (ii) as soon as they are available, copies of any other reports (financial or other) which the Company shall publish or otherwise make available to any of its security holders as such, and (iii) as soon as they are available, copies of any reports and financial statements furnished to or filed with the Commission or any national securities exchange.

     (k) The Company will use the net proceeds received by it from the sale of Underwritten Securities in the manner specified in the Registration Statement, the General Disclosure Package and the Prospectus under “Use of Proceeds.”

     (l) The Company will use its reasonable best efforts to continue to meet the requirements to qualify as a REIT under the Code for the taxable year in which sales of the Underwritten Securities are to occur, unless otherwise specified in the Registration Statement, the General Disclosure Package and the Prospectus.

20

     (m) The Company, during the Prospectus Delivery Period, will file promptly all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the time periods prescribed by the 1934 Act and the 1934 Act Regulations.

     (n) The Company represents and agrees that, unless it obtains your prior written consent, and each Underwriter represents and agrees that, unless it obtains the prior written consent of the Company and you, it has not made and will not make any offer relating to the Underwritten Securities that would constitute an “issuer free writing prospectus,” as defined in Rule 433, or that would otherwise constitute a “free writing prospectus,” as defined in Rule 405; provided, however, that the prior written consent of the Company and you shall be deemed to have been given in respect of any Issuer Free Writing Prospectus(es) included on Schedule I to the applicable Terms Agreement; and provided, further, that prior to the preparation of the Final Term Sheet in accordance with Section 4(c), the Underwriters are authorized to use any free writing prospectus that contains substantially only information specified in the Final Term Sheet. Any such free writing prospectus consented to in writing by the Company and you is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated or agrees that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply with the requirements of Rule 433 applicable to any Permitted Free Writing Prospectus, including timely filing with the Commission where required, legending and record keeping.

     (o) The Company will not, between the date of the applicable Terms Agreement and the Closing Time, without your prior written consent, offer or sell, grant any option for the sale of, or enter into any agreement to sell, any debt securities of the Company with a maturity of more than one year (other than the Underwritten Securities which are to be sold pursuant to such Terms Agreement), or if such Terms Agreement relates to Senior Securities or Subordinated Securities that are convertible into Common Shares, any Common Shares or any security convertible into Common Shares (except for Common Shares issued pursuant to reservations, agreements, employee benefit plans, dividend reinvestment plans, or employee stock option plans), except as may otherwise be provided in the applicable Terms Agreement.

     (p) If applicable, the Company will reserve and keep available at all times, free of preemptive rights or other similar rights, a sufficient number of Common Shares for the purpose of enabling the Company to satisfy any obligations to issue such shares upon conversion of the Securities.

     (q) If applicable, the Company will use its best efforts to list the Common Shares issuable upon conversion of the Underwritten Securities on the NYSE or such other national exchange on which the Common Shares are then listed.

     5. Payment of Expenses. Whether or not the transactions contemplated in this Agreement are consummated or this Agreement is terminated, the Company agrees to pay or cause to be paid all expenses incident to the performance of its obligations under this Agreement or the applicable Terms Agreement, including: (i) the fees, disbursements and expenses of the Company’s counsel and the Company’s registered public accounting firm in connection with the registration and delivery of the Underwritten Securities under the 1933 Act and all other fees or expenses in connection with the preparation and filing of the Registration Statement, any

21

preliminary prospectus, any Issuer Free Writing Prospectus, the Prospectus and amendments and supplements to any of the foregoing, including all printing costs associated therewith, and the mailing and delivery of copies thereof to the Underwriters and dealers, in the quantities hereinabove specified, and any costs associated with electronic delivery of any of the foregoing by the Underwriters to investors, (ii) all costs and expenses related to the transfer and delivery of the Underwritten Securities to the Underwriters, including any transfer or other taxes payable thereon, (iii) the cost of printing or producing any Blue Sky or Legal Investment memorandum in connection with the offer and sale of the Underwritten Securities under state securities laws and all expenses in connection with the qualification of the Underwritten Securities for offer and sale under state securities laws and real estate syndication laws as provided in Section 4(h) hereof, including filing fees and the reasonable fees and disbursements of counsel for the Underwriters in connection with such qualification and in connection with the Blue Sky or Legal Investment memorandum (provided that the amount for such memorandum shall not exceed $5,000), (iv) all filing fees and the reasonable fees and disbursements of counsel to the Underwriters incurred in connection with the review and qualification of the offering of the Underwritten Securities by the Financial Industry Regulatory Authority (provided that any fees of such counsel shall not exceed $5,000), (v) all fees and expenses in connection with the preparation and filing of the registration statement on Form 8-A relating to the Underwritten Securities and all costs and expenses incident to listing the Underwritten Securities on the NYSE, (vi) the cost of printing certificates representing the Underwritten Securities, (vii) the costs and charges of any transfer agent, registrar or depositary, (viii) the costs and expenses of the Company relating to investor presentations on any “road show” undertaken in connection with the marketing of the offering of the Underwritten Securities including, without limitation, expenses associated with the production of road show slides and graphics, fees and expenses of any consultants engaged in connection with the road show presentations with the prior approval of the Company, travel and lodging expenses of the representatives and officers of the Company and any such consultants, and the cost of any aircraft chartered in connection with the road show and (ix) all other costs and expenses incident to the performance of the obligations of the Company hereunder for which provision is not otherwise made in this Section. It is understood, however, that except as provided in this Section, Section 6 and Section 10, the Underwriters will pay all of their costs and expenses, including fees and disbursements of their counsel, stock transfer taxes payable on resale of any of the Underwritten Securities by them and any advertising expenses connected with any offers they may make.

     6. Indemnity and Contribution. (a)The Company agrees to indemnify and hold harmless each Underwriter (including, for this purpose, any affiliated broker-dealer of an Underwriter participating as an initial seller in the offering of the Underwritten Securities) and each person, if any, who controls any Underwriter within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) caused by any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or any amendment thereof, including the Rule 430B Information, or in the General Disclosure Package, any preliminary prospectus, any Issuer Free Writing Prospectus or the Prospectus (as amended or supplemented if the Company shall have furnished any amendments or supplements thereto), or caused by any omission or alleged omission to state therein a material fact required to be stated therein (with respect to any preliminary prospectus, any Issuer Free Writing

22

Prospectus or the Prospectus only, in the light of the circumstances under which they were made) or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages or liabilities are caused by any such untrue statement or omission or alleged untrue statement or omission based upon information relating to any Underwriter furnished to the Company in writing by such Underwriter through you expressly for use therein.

     (b) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement and each person, if any, who controls the Company within the meaning of either Section 15 of the 1933 Act or Section 20 of the 1934 Act to the same extent as the foregoing indemnity from the Company to such Underwriter, but only with reference to information relating to such Underwriter furnished to the Company in writing by such Underwriter through you expressly for use in the Registration Statement, including the Rule 430B Information, or in the General Disclosure Package, any preliminary prospectus, any Issuer Free Writing Prospectus, the Prospectus or any amendments or supplements thereto.

     (c) In case any proceeding (including any governmental investigation) shall be instituted involving any person in respect of which indemnity may be sought pursuant to Section 6(a) or 6(b), such person (the “indemnified party”) shall promptly notify the person against whom such indemnity may be sought (the “indemnifying party”) in writing and the indemnifying party shall be entitled to retain counsel reasonably satisfactory to the indemnified party to represent the indemnified party and any others the indemnifying party may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any indemnified party shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the indemnifying party and the indemnified party shall have mutually agreed to the retention of such counsel, (ii) the indemnifying party does not promptly retain counsel reasonably satisfactory to the indemnified party or (iii) the named parties to any such proceeding (including any impleaded parties) include both the indemnifying party and the indemnified party and the indemnified party reasonably concludes that the representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. It is understood that the indemnifying party shall not, in respect of the legal expenses of any indemnified party in connection with any proceeding or related proceedings in the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all such indemnified parties and that all such fees and expenses shall be reimbursed as they are incurred. Such firm shall be designated in writing by J.P. Morgan Securities LLC and Goldman, Sachs & Co., in the case of parties indemnified pursuant to Section 6(a), and by the Company, in the case of parties indemnified pursuant to Section 6(b). The indemnifying party shall not be liable for any settlement of any proceeding effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the indemnified party from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified party shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses of counsel as contemplated by the second and third sentences of this paragraph, the indemnifying party agrees that it shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 45 days after receipt by such indemnifying party of the aforesaid request, (ii) such

23

indemnifying party shall have received notice of the terms of such settlement at least 30 days prior to such settlement being entered into and (iii) such indemnifying party shall not have reimbursed the indemnified party in accordance with such request prior to the date of such settlement; provided that an indemnifying party shall not be liable for any such settlement effected without its consent if such indemnifying party (x) reimburses such indemnified party in accordance with such request to the extent that the indemnifying party in its judgment considers such request to be reasonable and (y) provides written notice to the indemnified party stating the reason it deems the unpaid balance unreasonable, in each case no later than 45 days after receipt by such indemnifying party of the aforesaid request from the indemnified party. No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened proceeding in respect of which any indemnified party is or could have been a party and indemnity could have been sought hereunder by such indemnified party, unless (i) such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such proceeding and (ii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified party.

     (d) To the extent the indemnification provided for in Section 6(a) or 6(b) is unavailable to an indemnified party or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then each indemnifying party under such paragraph, in lieu of indemnifying such indemnified party thereunder, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the Underwriters on the other hand from the offering of the Underwritten Securities or (ii) if the allocation provided by clause 6(d)(i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause 6(d)(i) above but also the relative fault of the Company on the one hand and of the Underwriters on the other hand in connection with the statements or omissions that resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other hand in connection with the offering of the Underwritten Securities shall be deemed to be in the same respective proportions as the net proceeds from the offering of the Underwritten Securities (before deducting expenses) received by the Company and the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover of the Prospectus, bear to the aggregate Public Offering Price of the Underwritten Securities. The relative fault of the Company on the one hand and the Underwriters on the other hand shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Underwriters’ respective obligations to contribute pursuant to this Section 6 are several in proportion to the respective number of Underwritten Securities they have purchased hereunder, and not joint.

     (e) The Company and the Underwriters agree that it would not be just or equitable if contribution pursuant to this Section 6 were determined by pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation

24

that does not take account of the equitable considerations referred to in Section 6(d). The amount paid or payable by an indemnified party as a result of the losses, claims, damages and liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating or defending any such action or claim. Notwithstanding the provisions of this Section 6, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Underwritten Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages that such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The remedies provided for in this Section 6 are not exclusive and shall not limit any rights or remedies which may otherwise be available to any indemnified party at law or in equity.

     (f) The indemnity and contribution provisions contained in this Section 6 and the representations, warranties and other statements of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (i) any termination of this Agreement, (ii) any investigation made by or on behalf of any Underwriter or any person controlling any Underwriter or by or on behalf of the Company, its officers or directors or any person controlling the Company and (iii) acceptance of and payment for any of the Underwritten Securities.

     7. Survival of Indemnities, Representation, Warranties, etc. The respective indemnities, covenants, agreements, representations, warranties and other statements of the Company and the several Underwriters, as set forth in this Agreement or the applicable Terms Agreement or made by them, respectively, pursuant to this Agreement or the applicable Terms Agreement, shall remain in full force and effect, regardless of any investigation made by or on behalf of any Underwriter or the Company or any of their officers or directors or any controlling person, and shall survive delivery of and payment for the Underwritten Securities.

     8. Conditions of Underwriters’ Obligations. The respective obligations of the several Underwriters to purchase Underwritten Securities pursuant to the applicable Terms Agreement are subject to the accuracy, at and (except as otherwise stated herein) as of the date hereof, the Applicable Time, the applicable Representation Date, the Closing Time and at each Date of Delivery, of the representations and warranties made herein by the Company, to the accuracy of the statements of the Company’s officers or directors in any certificate furnished pursuant to the provisions hereof, to compliance at and as of the Closing Time and at each Date of Delivery by the Company, with its covenants and agreements herein contained and other provisions hereof to be satisfied at or prior to the Closing Time, or Date of Delivery, as the case may be, and to the following additional conditions:

     (a) The Registration Statement has become effective and, at the Closing Time, (i) no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been initiated or, to the knowledge of the Company or you, threatened by the Commission and any request on the part of the Commission for additional information shall have been complied with to the

25

reasonable satisfaction of counsel to the Underwriters, (ii) each preliminary prospectus and the Prospectus containing the Rule 430B Information shall have been filed with the Commission in the manner and within the time period required by Rule 424(b) without reliance on Rule 424(b)(8) (or a post-effective amendment providing such information shall have been filed and become effective in accordance with the requirements of Rule 430B), (iii) the Final Term Sheet and any other material required to be filed by the Company pursuant to Rule 433(d) of the 1933 Act Regulations shall have been filed with the Commission within the applicable time periods prescribed for such filings under such Rule 433, (iv) the Company shall have paid the required Commission filing fees relating to the Underwritten Securities within the time period required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933 Act Regulations, and (v) there shall not have come to your attention any facts that would cause you to believe that (a) the Prospectus, together with the applicable Prospectus Supplement, at the time it was required to be delivered (or but for the exception afforded by Rule 172 of the 1933 Act Regulations would be required to be delivered) to purchasers of the Underwritten Securities, or (b) the General Disclosure Package, at the Applicable Time, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading.

     (b) At the time of execution of the applicable Terms Agreement, you shall have received from PricewaterhouseCoopers LLP a letter, dated the date of such execution, in form and substance satisfactory to you, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters.

     (c) At the Closing Time, you shall have received from PricewaterhouseCoopers LLP a letter, dated the Closing Time, to the effect that such accountants reaffirm, as of the Closing Time, and as though made on the Closing Time, the statements made in the letter furnished by such accountants pursuant to paragraph (b) of this Section 8, except that the specified date will be a date not more than three business days prior to the Closing Time.

     (d) At the Closing Time, you shall have received from Jones Day, counsel for the Company, an opinion, dated as of the Closing Time, substantially in the form set forth in Exhibit B hereto and to such further effect as counsel to the Underwriters may reasonably request.

     (e) At the Closing Time, you shall have received from Sidley Austin LLP, counsel for the Underwriters, their opinion or opinions dated the Closing Time in form and substance satisfactory to the Underwriters, and the Company shall have furnished to such counsel such documents as they may request for the purpose of enabling them to pass upon such matters.

     In giving their opinions, Sidley Austin LLP may rely as to matters involving the laws of the State of Ohio upon the opinion of Jones Day. Jones Day and Sidley Austin LLP may rely (i) as to the qualification of the Company or its subsidiaries to do business

26

in any state or jurisdiction, upon certificates of appropriate government officials, telephonic confirmation by representatives of such states or confirmation from information contained on the websites of such states and (ii) as to matters of fact, upon certificates and written statements of officers and employees of and accountants for the Company or its subsidiaries.

     (f) Subsequent to the execution and delivery of this Agreement and the Terms Agreement and prior to the Closing Time:

     (i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that either (x) does not indicate the direction of the possible change or (y) indicates a negative change, in the rating accorded any of the Company’s securities by any “nationally recognized statistical rating organization,” as such term is defined for purposes of Rule 436(g)(2) under the 1933 Act; and

     (ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Registration Statement, the General Disclosure Package and the Prospectus (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Underwritten Securities on the terms and in the manner contemplated in the Registration Statement, the General Disclosure Package and the Prospectus.

     (g) At the Closing Time (i) there shall not have been, since the date of the applicable Terms Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, any Material Adverse Effect, other than as set forth in the Registration Statement, the General Disclosure Package and the Prospectus, (ii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to Closing Time, (iii) the Company has not received from the Commission any notice pursuant to Rule 401(g)(2) of the 1933 Act objecting to the use of the automatic shelf registration statement form, (iv) no stop order suspending the effectiveness of the Registration Statement shall have been issued under the 1933 Act and no proceeding therefor shall have been instituted or threatened by the Commission and (v) you shall have received at the Closing Time a certificate of the Executive Chairman of the Board or the President and Chief Executive Officer of the Company and the Chief Financial Officer or the Chief Accounting Officer of the Company, dated as of the Closing Time, evidencing compliance with the provisions of this subsection (g).

     (h) You shall have received certificates, dated the Closing Time, of the Executive Chairman of the Board or the President and Chief Executive Officer of the Company and the Chief Financial Officer or the Chief Accounting Officer of the Company, to the effect that the representations and warranties of the Company contained

27

in Section 2(a) are true and correct with the same force and effect as though expressly made at and as of the Closing Time.

     (i) The Company shall have furnished to you such additional certificates as specified in the applicable Terms Agreement as you may have reasonably requested as to the accuracy, at and as of the Closing Time, of the representations and warranties made herein by them, as to compliance, at and as of the Closing Time, by them with their covenants and agreements herein contained and other provisions hereof to be satisfied at or prior to the Closing Time, and as to other conditions to the obligations of the Underwriters hereunder.

     (j) In the event the Underwriters exercise their option provided in a Terms Agreement as set forth in Section 3 hereof to purchase all or any portion of the Option Securities, the representations and warranties of the Company contained herein and the statements in any certificates furnished by the Company hereunder shall be true and correct as of each Date of Delivery, and you shall have received:

     (i) A letter from PricewaterhouseCoopers LLP in form and substance satisfactory to you and dated such Date of Delivery, substantially the same in scope and substance as the letter furnished to you pursuant to Section 8(b), except that the specified date in the letter furnished pursuant to this Section 8(j)(i) shall be a date not more than three business days prior to such Date of Delivery.

     (ii) The opinion of Jones Day, counsel for the Company, in form and substance satisfactory to counsel for the Underwriters, dated such Date of Delivery, relating to the Option Securities and otherwise to the same effect as the opinion required by Section 8(d).

     (iii) The opinion of Sidley Austin LLP, counsel for the Underwriters, dated such Date of Delivery, relating to the Options Securities and otherwise to the same effect as the opinion required by Section 8(e).

     (iv) A certificate, dated such Date of Delivery, of the Executive Chairman of the Board or the President and Chief Executive Officer of the Company and the Chief Financial Officer or the Chief Accounting Officer of the Company confirming that the certificate or certificates delivered at the Closing Time pursuant to Sections 8(g)(v) and 8(h) remains or remain true as of such Date of Delivery.

     (v) Such additional certificates, dated such Date of Delivery, as you may have reasonably requested pursuant to Section 8(i).

     If any of the conditions hereinabove provided for in this Section shall not have been satisfied when and as required to be satisfied, the applicable Terms Agreement may be terminated by you by notifying the Company of such termination in writing or by telegram at or prior to the Closing Time, but you shall be entitled to waive any of such conditions.

28

     9. Termination.

     (a) This Agreement (excluding the applicable Terms Agreement) may be terminated for any reason at any time by the Company or by you upon the giving of 30 days’ written notice of such termination to the other party hereto.

     (b) This Agreement and the Terms Agreement shall be subject to termination by notice given by you to the Company, if after the execution and delivery of this Agreement and the Terms Agreement and prior to the Closing Time (i) trading generally shall have been suspended or materially limited on or by, as the case may be, the NYSE or the Nasdaq Global Market, (ii) trading of any securities of the Company shall have been suspended on any exchange or in any over-the-counter market, (iii) a general moratorium on commercial banking activities in New York shall have been declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services has occurred in the United States, (iv) if the rating assigned by any nationally recognized statistical rating organization to any securities of the Company as of the date of the applicable Terms Agreement shall have been lowered since such date or if any such rating organization shall have publicly announced that it has placed any securities of the Company on what is commonly termed a “watch list” for possible downgrading, (v) there shall have occurred any outbreak or escalation of hostilities, declaration by the United States of a national emergency or war, or other calamity or crisis or any change in national or international political, financial or economic condition, the effect of which on financial markets is such as to make it, in your sole judgment, impractical or inadvisable to proceed with the offering or delivery of the Underwritten Securities as contemplated by the Registration Statement, the General Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto subsequent to the date of the applicable Terms Agreement), or (vi) if there has been, since the date of the applicable Terms Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package or the Prospectus, any Material Adverse Effect.

     (c) In the event of any such termination, the covenants set forth in Section 4 with respect to any offering of Underwritten Securities shall remain in effect so long as any Underwriter owns any such Underwritten Securities purchased from the Company pursuant to the applicable Terms Agreement.

     10. Reimbursement of Underwriters. Notwithstanding any other provisions hereof, if this Agreement or the applicable Terms Agreement shall be terminated by you under Section 8, Section 9(b) or Section 12, the Company will bear and pay the expenses specified in Section 5 hereof and, in addition to their obligations pursuant to Section 6 hereof, the Company will reimburse the reasonable out-of-pocket expenses of the several Underwriters (including reasonable fees and disbursements of counsel for the Underwriters) incurred in connection with this Agreement or the applicable Terms Agreement and the proposed purchase of the Underwritten Securities, and promptly upon demand, the Company will pay such amounts to you for and on behalf of such Underwriter. In addition, the provisions of Section 6 shall survive any such termination.

     11. Default by One or More of the Underwriters. If one or more of the Underwriters shall fail at the Closing Time or the relevant Date of Delivery, as the case may be, to purchase

29

the Underwritten Securities which it or they are obligated to purchase under the applicable Terms Agreement (the “Defaulted Securities”), then you shall have the right, within 36 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any other underwriters, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be agreed upon and upon the terms herein set forth; if, however, you shall not have completed such arrangements within such 36-hour period, then:

(a)

if the aggregate principal amount of Defaulted Securities does not exceed 10% of the aggregate principal amount of Underwritten Securities to be purchased on such date pursuant to such Terms Agreement, the non-defaulting Underwriters shall be obligated, severally and not jointly, to purchase the full amount thereof in the proportions that their respective underwriting obligations under such Terms Agreement bear to the underwriting obligations of all non-defaulting Underwriters, or

(b)

if the aggregate principal amount of Defaulted Securities exceeds 10% of the aggregate principal amount of Underwritten Securities to be purchased on such date pursuant to such Terms Agreement, such Terms Agreement (or, with respect to the Underwriters’ exercise of any applicable over-allotment option for the purchase of Option Securities on a Date of Delivery after the Closing Time, the obligations of the Underwriters to purchase, and the Company to sell, such Option Securities on such Date of Delivery) shall terminate without liability on the part of any non-defaulting Underwriter.

     No action taken pursuant to this Section 11 shall relieve any defaulting Underwriter from liability in respect of its default.

     In the event of any such default which does not result in (i) a termination of the applicable Terms Agreement or (ii) in the case of a Date of Delivery after the Closing Time, a termination of the obligations of the Underwriters and the Company with respect to the related Option Securities, as the case may be, either you or the Company shall have the right to postpone the Closing Time or the relevant Date of Delivery, as the case may be, for a period not exceeding seven days in order to effect any required changes in the Registration Statement, the General Disclosure Package or the Prospectus or in any other documents or arrangements.

     12. Default by the Company. If the Company shall fail at the Closing Time to sell and deliver the principal amount of Underwritten Securities which it is obligated to sell pursuant to the applicable Terms Agreement, then such agreement shall terminate without any liability on the part of any non-defaulting party, other than obligations under Section 10 hereof. No action taken pursuant to this Section 12 shall relieve the Company from liability, if any, in respect of such default.

     13. No Fiduciary Relationship. The Company acknowledges and agrees that each Underwriter is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Underwritten Securities contemplated hereby and in the applicable Terms Agreement (including in connection with determining the terms of the offering) and not as a financial advisor or a fiduciary to, or an agent of, the Company or any

30

other person. Additionally, no Underwriter is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its own independent investigation and appraisal of the transactions contemplated hereby, and no Underwriter shall have any responsibility or liability to the Company with respect thereto. Any review by an Underwriter of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of such Underwriter and shall not be on behalf of the Company.

     14. Notices. All communications hereunder shall be in writing and, if sent to the Underwriters shall be mailed, delivered or telecopied and confirmed to you, J.P. Morgan Securities LLC, 383 Madison Avenue, New York, New York 10179, Attn: High Grade Syndicate Desk and Goldman, Sachs & Co., 200 West Street, New York, New York 10282, Attn: Registration Department, except that notices given to an Underwriter pursuant to Section 6 hereof shall be sent to such Underwriter at the address furnished by you, or if sent to the Company shall be mailed, delivered or telegraphed and confirmed at 3300 Enterprise Parkway, Beachwood, Ohio 44122, Attention: General Counsel.

     15. Patriot Act. In accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company, which information may include the name and address of their respective clients, as well as other information that will allow the Underwriters to properly identify their respective clients.

     16. Successors. This Agreement and the applicable Terms Agreement shall inure to the benefit of and be binding upon you and the Company and any Underwriter who becomes a party to such Terms Agreement, the Company and their respective successors and legal representatives. Nothing expressed or mentioned in this Agreement or the applicable Terms Agreement is intended or shall be construed to give any person other than the persons mentioned in the preceding sentence any legal or equitable right, remedy or claim under or in respect of this Agreement, or any provisions herein contained, this Agreement or such Terms Agreement and all conditions and provisions hereof being intended to be and being for the sole and exclusive benefit of such persons and for the benefit of no other person; except that the representations, warranties, covenants, agreements and indemnities of the Company contained in this Agreement shall also be for the benefit of the person or persons, if any, who control any Underwriter within the meaning of Section 15 of the 1933 Act, and the indemnities given by the several Underwriters shall also be for the benefit of each director of the Company, each of the Company’s officers who has signed the Registration Statement and the person or persons, if any, who control the Company within the meaning of Section 15 of the 1933 Act.

     17. Applicable Law. This Agreement and the applicable Terms Agreement shall be governed by and construed in accordance with the laws of the State of New York applicable to agreements made and to be performed in said state. Specified times of day refer to New York City time.

31

     18. Counterparts. This Agreement and the applicable Terms Agreement may be executed in one or more counterparts, and if executed in more than one counterpart the executed counterparts shall constitute a single instrument.

32

     If the foregoing correctly sets forth our understanding, please indicate your acceptance thereof in the space provided below for that purpose, whereupon this letter and your acceptance shall constitute a binding agreement between us.

Very truly yours, DEVELOPERS DIVERSIFIED REALTY CORPORATION
By:	/s/ David J. Oakes
	Name:	David J. Oakes
	Title:	Senior Executive Vice President and Chief Financial Officer

Accepted and delivered, as of the date first above written: J.P. MORGAN SECURITIES LLC GOLDMAN, SACHS & CO. DEUTSCHE BANK SECURITIES INC. UBS SECURITIES LLC
By:	J.P. Morgan Securities LLC
By:	/s/ Santosh Sreenivasan
	Name:	Santosh Sreenivasan
	Title:	Managing Director
By:	Goldman, Sachs & Co.
/s/ Goldman Sachs & Co.
(Goldman, Sachs & Co.)

Acting for themselves and the other Underwriters named in the applicable Terms Agreement

33

Exhibit A

DEVELOPERS DIVERSIFIED REALTY CORPORATION
(an Ohio corporation)

$     % Notes due 20

TERMS AGREEMENT

Dated:

To: Developers Diversified Realty Corporation
3300 Enterprise Parkway
Beachwood, Ohio 44122

Attention: Mr. Daniel B. Hurwitz
President and Chief Executive Officer

Ladies and Gentlemen:

     We (the “Underwriters”) understand that Developers Diversified Realty Corporation, an Ohio corporation (the “Company”), proposes to issue and sell $           aggregate principal amount of its      % Notes due 20 (the “Underwritten Securities”). Subject to the terms and conditions set forth or incorporated by reference herein, the Underwriters named below offer to purchase, severally and not jointly, the respective amounts of Initial Underwritten Securities (as defined in the Underwriting Agreement referenced below) set forth below opposite their respective names.

A-1

	Principal Amount of
Underwriter	Underwritten Securities
	$
Total	$

A-2

     The Underwritten Securities shall have the following terms:

Title of Securities:
Currency:
Principal amount to be issued: $
Interest rate or formula:           % per annum
Interest payment dates:           and      , commencing
Stated maturity date:
Redemption and/or repayment provisions:
Sinking fund requirements:
Number of Option Securities, if any, that may be purchased by the Underwriters:
Delayed Delivery Contracts:
Initial public offering price:           %, plus accrued interest from .
Purchase price:           % (payable in same day funds).
Conversion provisions:
Form: Through the facilities of The Depository Trust Company

Other terms: The Underwritten Securities shall be rated at least            by            and           by      , and as soon as practicable after the Closing Time, the Company shall have delivered to the Underwriters a letter from each such rating agency, or other evidence satisfactory to the Underwriters, confirming that the Underwritten Securities have such ratings. Issuer Free Writing Prospectus (including the Final Term Sheet, if applicable): see Schedule I hereto

Applicable Time:           a.m./p.m., New York City time, on      , 20
Closing time, date and location: 10:00 a.m., New York City time, on      , 20           , Sidley Austin LLP, 787 Seventh Avenue, New York, New York 10019

     All the provisions contained in the document attached as Annex A hereto entitled “Developers Diversified Realty Corporation-Debt Securities-Underwriting Agreement Basic Provisions” are hereby incorporated by reference in their entirety herein and shall be deemed to be a part of this Terms Agreement to the same extent as if such provisions had been set forth in full herein. Terms defined in such document are used herein as therein defined.

A-3

     Please accept this offer by signing a copy of this Terms Agreement in the space set forth below and returning the signed copy to us.

Very truly yours, J.P. MORGAN SECURITIES LLC GOLDMAN, SACHS & CO. DEUTSCHE BANK SECURITIES INC. UBS SECURITIES LLC
By:	J.P. Morgan Securities LLC
By:
	Name:
	Title:
By:	Goldman, Sachs & Co.
	(Goldman, Sachs & Co.)
Acting for themselves and the other Underwriters named above

Accepted: DEVELOPERS DIVERSIFIED REALTY CORPORATION
By:
	Name:
	Title:

A-4

     Schedule I
to Terms Agreement

Schedule of Issuer Free Writing Prospectuses Included in the General Disclosure Package

1. Final Term Sheet, attached hereto as Schedule I-A

SchI-A-1

Exhibit B

FORM OF OPINION OF COMPANY’S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 8(d)

B-1

Exhibit C

DEVELOPERS DIVERSIFIED REALTY CORPORATION
(an Ohio corporation)

[Title of Securities]

DELAYED DELIVERY CONTRACT

                     __, 20 __

Developers Diversified Realty Corporation
3300 Enterprise Parkway
Beachwood, Ohio 44122

Attention: Mr. Daniel B. Hurwitz
President and Chief Executive Officer

Dear Sirs:

     The undersigned hereby agrees to purchase from Developers Diversified Realty Corporation (the “Company”), and the Company agrees to sell to the undersigned on                     , 20 (the “Delivery Date”),

     of the Company’s [insert title of security] (the “Securities”), offered by the Company’s Prospectus dated                     , 20__, as supplemented by its Prospectus Supplement dated ,                      20, __ receipt of which is hereby acknowledged at a purchase price of [$                     ], plus accrued interest to the Delivery Date, and on the further terms and conditions set forth in this contract.

     Payment for the Securities which the undersigned has agreed to purchase on the Delivery Date shall be made to the Company or its order by certified or official bank check in New York Clearing House funds at the office of

     , on the Delivery Date, upon delivery to the undersigned of the Securities to be purchased by the undersigned in definitive form and in such denominations and registered in such names as the undersigned may designate by written or telegraphic communication addressed to the Company not less than five full business days prior to the Delivery Date.

     The obligation of the undersigned to take delivery of and make payment for Securities on the Delivery Date shall be subject only to the conditions that (1) the purchase of Securities to be made by the undersigned shall not on the Delivery Date be prohibited under the laws of the jurisdiction to which the undersigned is subject and (2) the Company, on or before                     , 20__, shall have sold to the Underwriters of the Securities (the “Underwriters”) such principal amount of the Securities as is to be sold to them pursuant to the Terms Agreement dated

C-1

                    , 20__ between the Company and the Underwriters. The obligation of the undersigned to take delivery of and make payment for Securities shall not be affected by the failure of any purchaser to take delivery of and make payments for Securities pursuant to other contracts similar to this contract. The undersigned represents and warrants to you that its investment in the Securities is not, as of the date hereof, prohibited under the laws of any jurisdiction to which the undersigned is subject and which govern such investment.

     Promptly after completion of the sale to the Underwriters, the Company will mail or deliver to the undersigned at its address set forth below notice to such effect, accompanied by a copy of the opinion of counsel for the Company delivered to the Underwriters in connection therewith.

     By the execution hereof, the undersigned represents and warrants to the Company that all necessary action for the due execution and delivery of this contract and the payment for and purchase of the Securities has been taken by it and no further authorization or approval of any governmental or other regulatory authority is required for such execution, delivery, payment or purchase, and that, upon acceptance hereof by the Company and mailing or delivery of a copy as provided below, this contract will constitute a valid and binding agreement of the undersigned in accordance with its terms.

     This contract will inure to the benefit of and be binding upon the parties hereto and their respective successors, but will not be assignable by either party hereto without the written consent of the other.

     It is understood that the Company will not accept Delayed Delivery Contracts for an aggregate principal amount of Securities in excess of                      and that the acceptance of any Delayed Delivery Contract is in the Company’s sole discretion and, without limiting the foregoing, need not be on a first-come, first-served basis. If this contract is acceptable to the Company, it is requested that the Company sign the form of acceptance on a copy hereof and mail or deliver a signed copy hereof to the undersigned at its address set forth below. This will become a binding contract between the Company and the undersigned when such copy is so mailed or delivered.

C-2

     This Agreement shall be governed by the laws of the State of New York.

Yours very truly,
(Name of Purchaser)
By
	(Title)
(Address)

Accepted as of the date first above written. DEVELOPERS DIVERSIFIED REALTY CORPORATION
By:
	(Title)

PURCHASER-PLEASE COMPLETE AT TIME OF SIGNING

The name and telephone number of the representative of the Purchaser with whom details of delivery on the Delivery Date may be discussed are as follows: (Please print.)

	Telephone No.
	(including
Name	Area Code)

C-3

EX-4.1

Exhibit 4.1

FORM OF TWELFTH SUPPLEMENTAL INDENTURE

     THIS TWELFTH SUPPLEMENTAL INDENTURE (this “Twelfth Supplemental Indenture”) is entered into as of                     , between DEVELOPERS DIVERSIFIED REALTY CORPORATION, an Ohio corporation (the “Company”), having its principal place of business at 3300 Enterprise Parkway, Beachwood, Ohio 44122, and U.S. Bank National Association (as successor to U.S. Bank Trust National Association, as successor to National City Bank), a national banking association duly organized and existing under the laws of the United States, as Trustee hereunder (the “Trustee”), having its Corporate Trust Office at 100 Wall Street — Suite 1600, New York, New York 10005.

     WHEREAS, the Company and the Trustee entered into that certain Indenture, dated as of May 1, 1994 (as supplemented by a First Supplemental Indenture, dated as of May 10, 1995, by a Second Supplemental Indenture, dated as of July 18, 2003, by a Third Supplemental Indenture, dated as of January 23, 2004, by a Fourth Supplemental Indenture, dated as of April 22, 2004, by a Fifth Supplemental Indenture, dated as of April 28, 2005, by a Sixth Supplemental Indenture, dated as of October 7, 2005, by a Seventh Supplemental Indenture, dated as of August 28, 2006, by an Eighth Supplemental Indenture, dated as of March 13, 2007, by a Ninth Supplemental Indenture, dated as of September 30, 2009, by a Tenth Supplemental Indenture, dated as of March 19, 2010, and by an Eleventh Supplemental Indenture, dated as of August 12, 2010, the “Original Indenture”), relating to the Company’s senior debt securities;

     WHEREAS, pursuant to Section 901 of the Indenture, the Company and the Trustee may enter into supplemental indentures to establish the terms and provisions of a series of Securities issued pursuant to the Indenture;

     WHEREAS, pursuant to Section 301 of the Indenture, the Company and the Trustee desire to establish the terms of a series of Securities entitled the “1.75% Convertible Senior Notes due 2040” (the “Notes”); and

     WHEREAS, the Company and the Trustee have duly authorized the execution and delivery of this instrument to establish the terms of the Notes set forth herein and have done all things necessary to make this instrument (together with the Original Indenture, the “Indenture”) a valid agreement of the parties hereto, in accordance with its terms;

     NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained herein, and for other good and valuable consideration the receipt of which is hereby acknowledged, and for the equal and proportionate benefit of the Holders of the Securities, the Company and the Trustee agree as follows:

ARTICLE ONE
DEFINITIONS

     Section 1.01. Definitions. Capitalized terms used in this instrument and not otherwise defined herein shall have the meanings assigned to such terms in the Original Indenture, as supplemented by the Twelfth Supplemental Indenture, or in the form of Note attached as Exhibit A hereto.

1

     “Additional Notes” has the meaning provided in Section 2.02 hereof.

     “Additional Shares” has the meaning specified in Section 2.10.

     “Business Day” means, with respect to any Note, any day, other than a Saturday, Sunday or any other day on which banking institutions in The City of New York are authorized or obligated by law, regulation or executive order to close.

     “Cash Percentage” has the meaning provided in Section 2.12 hereof.

     “Cash Percentage Notice” has the meaning provided in Section 2.12 hereof.

     “Change in Control” means the occurrence at any time any of the following events:

     (1) consummation of any transaction or event (whether by means of a share exchange or tender offer applicable to Common Shares, a liquidation, consolidation, recapitalization, reclassification, combination or merger of the Company or a sale, lease or other transfer of all or substantially all of the consolidated assets of the Company) or a series of related transactions or events pursuant to which all of the outstanding Common Shares are exchanged for, converted into or constitute solely the right to receive, cash, securities or other property;

     (2) any “person” or “group” (as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act, whether or not applicable), other than the Company or any majority-owned subsidiary of the Company or any employee benefit plan of the Company or such subsidiary, is or becomes the “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of more than 50% of the total voting power in the aggregate of all classes of capital shares of the Company then outstanding entitled to vote generally in elections of the Company’s directors; or

     (3) during any period of 12 consecutive months after the date of original issuance of the Notes, persons who at the beginning of such 12-month period constituted the Board of Directors of the Company, together with any new persons whose election was approved by a vote of a majority of the persons then still comprising the Board of Directors of the Company who were either members of the Board of Directors of the Company at the beginning of such period or whose election, designation or nomination for election was previously so approved, cease for any reason to constitute a majority of the Board of Directors of the Company.

Notwithstanding the foregoing, the occurrence of an event described in clause (1) above will not be deemed to constitute a “Change of Control” if at least 90% of the consideration (excluding cash payments for fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in the transaction or transactions consists of shares of common stock (or depositary receipts or other certificates representing common equity interests) traded on a national securities exchange in the United States (or will be so traded immediately following such merger, consolidation or other transaction) and as a result of the merger, consolidation or other transaction the Notes become convertible into such shares of common stock (or depositary receipts or other certificates representing common equity interests). For the purposes of this

2

definition, “person” includes any syndicate or group that would be deemed to be a “person” under Section 13(d)(3) of the Exchange Act.

     “Change in Control Purchase Date” has the meaning provided in Section 2.09 hereof.

     “Change in Control Purchase Notice” has the meaning provided in Section 2.09 hereof.

     “Change in Control Purchase Price” has the meaning provided in Section 2.09 hereof.

     “Closing Sale Price” of the Common Shares on any date means the closing sale price per share (or if no closing sale price is reported, the average of the bid and ask prices or, if more than one in either case, the average of the average bid and the average ask prices) on that date as reported in composite transactions for the principal U.S. securities exchange on which the Common Shares are traded. If the Common Shares are not listed for trading on a U.S. national or regional securities exchange on the relevant date, the “closing sale price” will be the last quoted bid price for the Common Shares in the over-the-countermarket on the relevant date as reported by Pink Sheets LLC or similar organization. If the Common Shares are not so quoted, the “closing sale price” will be the average of the mid-point of the last bid and ask prices for the Common Shares on the relevant date from each of at least three nationally recognized independent investment banking firms selected by the Company for this purpose.

     “Common Shares” means common shares, $0.10 par value per share, of the Company.

     “Company” has the meaning provided in the first paragraph of this instrument until a successor Person shall have become such pursuant to the applicable provisions of the Indenture, and thereafter “Company” shall mean such successor Person.

     “Company Notice” has the meaning provided in Section 2.09 hereof.

     “Conversion Agent” means the office or agency designated by the Company where the Notes may be presented for conversion.

     “Conversion Date” has the meaning specified in Section 2.13 hereof.

     “Conversion Price” means, as of any date of determination, for $1,000 principal amount of Notes, the quotient of $1,000 divided by the Conversion Rate in effect as of such date, rounded to the nearest $0.01, with $0.005 rounded upward.

     “Conversion Rate” means initially 61.0361 Common Shares for each $1,000 principal amount of Notes, as the same shall be adjusted from time to time in accordance with the provisions hereof and of the Notes.

     “Daily Conversion Value” has the meaning provided in Section 2.12 hereof.

     “Daily Settlement Amount” has the meaning provided in Section 2.12 hereof.

     “Daily Share Amount” has the meaning provided in Section 2.12 hereof.

3

     “Daily VWAP” has the meaning provided in Section 2.12 hereof.

     “Depositary” has the meaning provided in Section 2.03 hereof.

     “Effective Date” has the meaning specified in Section 2.10.

     “Exchange Act” means the Securities Exchange Act of 1934, as amended.

     “Expiration Time” has the meaning specified in Section 2.14.

     “interest” means, when used with reference to the Notes, any interest payable under the terms of the Notes, including Special Interest, if any, payable pursuant to Section 2.19(c) hereof.

     “Indenture” has the meaning provided in the preamble of this instrument.

     “Interest Payment Date” has the meaning provided in Section 2.05 hereof.

     “Market Disruption Event” has the meaning provided in Section 2.12 hereof.

     “Merger Event” has the meaning specified in Section 2.15 hereof.

     “Notes” has the meaning provided in Section 2.01 hereof which shall be substantially in the form attached as Exhibit A hereto.

     “Observation Period” has the meaning provided in Section 2.12 hereof.

     “Purchase Date” has the meaning specified in Section 2.08.

     “Purchase Notice” has the meaning specified in Section 2.08.

     “Purchase Price” has the meaning specified in Section 2.08.

     “Redemption Date” means, with respect to any Note or portion thereof to be redeemed in accordance with the provisions of Section 2.07 hereof, the date fixed for such redemption in accordance with the provisions of Section 2.07 hereof.

     “Redemption Price” has the meaning provided in Section 2.07 hereof.

     “Reference Dividend” has the meaning specified in Section 2.14.

     “Reference Property” has the meaning specified in Section 2.15.

     “Regular Record Date” has the meaning provided in Section 2.05 hereof.

     “Scheduled Trading Day” has the meaning provided in Section 2.12 hereof.

     “Securities Act” means the Securities Act of 1933, as amended.

     “Share Price” has the meaning specified in Section 2.10.

4

     “Special Interest” has the meaning specified in Section 2.19(c).

     “Special Interest Notice” has the meaning specified in Section 2.26.

     “Spin-Off” has the meaning specified in Section 2.14.

     “Stated Maturity” has the meaning specified in Section 2.04.

     “Trading Day” means a day during which trading in securities generally occurs on the New York Stock Exchange or, if the Common Shares are not then listed on the New York Stock Exchange, on the principal other U.S. national or regional securities exchange on which Common Shares are then listed or, if the Common Shares are not then listed on a U.S. national or regional securities exchange, on the principal other market on which Common Shares are then traded. If the Common Shares are not so listed or traded, “Trading Day” means a “Business Day.” Notwithstanding the foregoing, for purposes of Section 2.12, the term Trading Day shall have the meaning set forth in Section 2.12.

     “Trading Price” means, with respect to the Notes on any date of determination, the average of the secondary market bid quotations per $1,000 principal amount of Notes obtained by the Trustee for a $5,000,000 principal amount of Notes at approximately 3:30 p.m., New York City time, on such determination date from two independent nationally recognized securities dealers selected by the Company, which may include one or more of the Underwriters or any successor to such entities. If at least two such bids cannot reasonably be obtained by the Trustee, but one such bid can reasonably be obtained by the Trustee, then one bid shall be used. If the Trustee cannot reasonably obtain at least one bid for a $5,000,000 principal amount of Notes from a nationally recognized securities dealer or, in the reasonable judgment of the Company, the bid quotations are not indicative of the secondary market value of the Notes, then the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of the product of the Closing Sale Price of the Common Shares and the Conversion Rate on such determination date.

     “Trust Indenture Act” means the Trust Indenture Act of 1939, as amended.

     “Underwriters” mean J.P. Morgan Securities LLC, Goldman, Sachs & Co., Deutsche Bank Securities Inc., UBS Securities LLC, KeyBanc Capital Markets Inc., RBC Capital Markets Corporation, Scotia Capital (USA) Inc., U.S. Bancorp Investments, Inc., Daiwa Capital Markets America Inc., FBR Capital Markets & Co., ING Financial Markets LLC and RBS Securities Inc. pursuant to the Underwriting Agreement.

     “Underwriting Agreement” means the Terms Agreement, dated November 1, 2010, between the Company and the Underwriters.

ARTICLE TWO
TERMS

     Section 2.01. Title. The Notes shall constitute a series of Securities designated as the “1.75% Convertible Senior Notes due 2040” of the Company.

5

     Section 2.02. Aggregate Principal Amount. The aggregate principal amount of Notes which may be authenticated and delivered under the Indenture is initially limited in aggregate principal amount to $350,000,000, except for Notes authenticated and delivered upon registration of transfer of, or in exchange for, or in lieu of, other Notes pursuant to Sections 304, 305, 306, 906, 1107 or 1203 of the Indenture and except for any Notes which, pursuant to Section 303 of the Indenture, are deemed never to have been authenticated and delivered thereunder; provided that the Company may from time to time, without the consent of the Holders of the Notes, increase the principal amount of the Notes by issuing additional Securities in the future (the “Additional Notes”) having the same terms and ranking equally and ratably with the Notes in all respects and with the same CUSIP number as the Notes, except for the difference in the issue price and interest accrued prior to the issue date of such Additional Notes, provided that such Additional Notes constitute part of the same issue as the Notes for U.S. federal income tax purposes. Any Additional Notes will be treated as a single series with the Notes under the Indenture and shall have the same terms as to status, redemption, repurchase, conversion and otherwise as the Notes.

     The Company or its affiliates may, to the extent permitted by applicable law, at any time purchase Notes in the open market, by tender at any price or by private agreement.

     Section 2.03. Registered Securities in Book-Entry Form. The Notes shall be issuable in the form of one or more global Securities registered in the name of The Depository Trust Company’s nominee, and shall be deposited with, or on behalf of, The Depository Trust Company, New York, New York (the “Depositary”). The Notes may be surrendered for registration of transfer and for conversion at the office or agency of the Company (including the Trustee) maintained for such purpose in the Borough of Manhattan, The City of New York, or at any other office or agency maintained by the Company for such purpose.

     Section 2.04. Stated Maturity of Principal. The “Stated Maturity” of the principal of the Notes shall be November 15, 2040.

     Section 2.05. Interest. The Notes shall bear interest at the rate of 1.75% per annum from November 5, 2010, or from the most recent Interest Payment Date to which interest has been paid or provided for, as the case may be, and will be payable semi-annually in arrears on May 15 and November 15 of each year (each, an “Interest Payment Date”), commencing on May 15, 2011, until the principal thereof is paid or duly made available for payment, to the Persons in whose names such Notes are registered at the close of business on the May 1 or November 1 (whether or not a Business Day) preceding the applicable Interest Payment Date (each, a “Regular Record Date”). Interest payable on each Interest Payment Date shall equal the amount of interest accrued for the period commencing on and including the immediately preceding Interest Payment Date in respect of which interest has been paid (or commencing on and including November 5, 2010, if no interest has been paid) and ending on and including the day immediately preceding such Interest Payment Date. Interest on the Notes will be computed on the basis of a 360-day year consisting of twelve 30-day months.

     If the Company shall redeem the Notes in accordance with the provisions of Section 2.07 hereof, or if a Holder shall surrender a Note for repurchase by the Company in accordance with the provisions of Section 2.08 or 2.09 hereof, subject to the next succeeding sentence, accrued

6

and unpaid interest shall be payable to each Holder that shall have surrendered such Note for redemption or repurchase, as the case may be. However, if an Interest Payment Date shall fall on or prior to the Redemption Date, Purchase Date or Change in Control Purchase Date, as the case may be, for a Note, accrued and unpaid interest due on such Interest Payment Date shall be payable instead to the Person in whose name such Note is registered at the close of business on the related Regular Record Date.

     Section 2.06. Place of Payment. The principal of and the interest on the Notes shall be payable at the office or agency of the Company (including the Trustee) maintained for such purpose in the Borough of Manhattan, The City of New York in the manner specified in this Indenture.

     Section 2.07. Redemption. If, at any time prior to November 20, 2015, the Company determines it is necessary to redeem the Notes in order to preserve the Company’s status as a real estate investment trust, the Company shall have the right, upon not less than 30 nor more than 60 days’ prior written notice by mail to the Holders of the Notes, redeem the Notes in whole or in part, for cash equal to 100% of the principal amount of the Notes to be redeemed plus unpaid interest accrued thereon to but excluding the Redemption Date (such amount, the “Redemption Price”). In such case, the Company shall provide the Trustee with an Officers’ Certificate evidencing that the Board of Directors of the Company has, in good faith, made the determination that it is necessary to redeem the Notes in order to preserve the Company’s status as a real estate investment trust. The Notes shall not otherwise be redeemable prior to November 20, 2015.

     At any time and from time to time on or after November 20, 2015, the Company may, upon not less than 30 nor more than 60 days’ prior written notice by mail to the Holders of the Notes, redeem the Notes in whole or in part, for cash equal to the Redemption Price.

     If less than all the Notes are to be redeemed, the Trustee shall select the Notes to be redeemed (in principal amounts of $1,000 and integral multiples thereof) on a pro rata basis, by lot or by such other method the Trustee considers fair and appropriate, subject, with respect to Notes that are in global form, to the rules and procedures of the Depositary. The Trustee shall make the selection at least 30 days but not more than 60 days before the Redemption Date from Outstanding Notes not previously called for redemption. Notes and portions of the principal amount thereof selected for redemption shall be in integral multiples of $1,000. The Trustee shall notify the Company promptly of the Notes or portions of the principal amount thereof to be redeemed. If the Trustee selects a portion of a Note for partial redemption and a Holder converts a portion of the same Note in accordance with the provisions of Section 2.11 hereof before termination of the conversion right with respect to the portion of the Note so selected, the converted portion of such Note shall be deemed to be from the portion selected for redemption. Notes that have been converted during a selection of Notes to be redeemed shall be treated by the Trustee as Outstanding for the purpose of such selection.

     In addition to those matters set forth in Section 1104 of the Indenture, a notice of redemption sent to the Holders of Notes to be redeemed in accordance with the provisions of the two preceding paragraphs shall state:

     (a) the name of the Paying Agent and Conversion Agent;

7

     (b) the then current Conversion Rate;

     (c) that Notes called for redemption may be converted at any time prior to the close of business on the second Business Day preceding the Redemption Date; and

     (d) that Holders who wish to convert Notes must comply with the procedures relating thereto specified in Section 2.13 hereof.

     Section 2.08. Repurchase at Option of Holders on Specified Dates. A Holder of Notes shall have the right to require the Company to repurchase such Holder’s Notes, in whole or in part (in principal amounts of $1,000 and integral multiples thereof) on November 15, 2015, November 15, 2020, November 15, 2025, November 15, 2030 and November 15, 2035 (each, a “Purchase Date”) for cash equal to 100% of the principal amount of the Notes to be repurchased, plus unpaid interest accrued thereon to but excluding the Purchase Date (such amount, the “Purchase Price”), subject to satisfaction by or on behalf of the Holder of the requirements set forth below.

     On or before the 25th Business Day prior to each Purchase Date, the Company shall mail or cause to be mailed to all Holders of record on such date (and to beneficial owners as required by applicable law) a notice by first-class mail to the Trustee, any Paying Agent and to each Holder (and to beneficial owners as required by applicable law). The notice shall include a form of Purchase Notice (defined below) to be completed by the Holder and shall state:

     (a) the date by which the Purchase Notice must be delivered to the Paying Agent;

     (b) the Purchase Date;

     (c) the Purchase Price;

     (d) the name and address of the Trustee, the Paying Agent and the Conversion Agent;

     (e) that Notes in respect of which a Purchase Notice is provided by a Holder shall not be convertible unless such Holder validly withdraws such Purchase Notice in accordance with the provisions of this Section 2.08;

     (f) the procedures that Holders must follow to require the Company to repurchase their Notes;

     (g) that Notes must be surrendered to the Paying Agent to collect payment of the Purchase Price;

     (h) that the Purchase Price for any Note as to which a Purchase Notice has been duly given will be promptly following the later of the Purchase Date or the surrender by delivery or book-entry transfer of such Notes for repurchase;

8

     (i) that, unless the Company defaults in making payment of the Purchase Price, interest on Notes surrendered for repurchase will cease to accrue on and after the Purchase Date; and

     (j) the CUSIP number of the Notes.

     The Company shall also disseminate a press release containing the information specified above or publish such information in a newspaper of general circulation in New York City or on the Company’s website, or through such other public medium as the Company shall deem appropriate at such time.

     A Holder may exercise its rights specified in this Section 2.08 upon delivery of a written notice of such Holder’s exercise of its repurchase right (a “Purchase Notice”) to the Paying Agent at any time during the period beginning at the opening of business on the date that is 25 Business Days prior to the Purchase Date to the close of business on the fourth Business Day prior to the Purchase Date, stating:

     (a) if such Notes are in certificated form, the certificate number(s) of the Notes which the Holder will deliver to be repurchased;

     (b) the portion of the principal amount of the Notes to be repurchased, in multiples of $1,000, provided that the remaining principal amount of Notes is in an authorized denomination; and

     (c) that such Note shall be repurchased pursuant to the applicable provisions hereof and of the Notes.

     The Paying Agent shall promptly notify the Company in writing of the receipt by it of any Purchase Notice.

     Book-entry transfer of Notes in book-entry form in compliance with appropriate procedures of the Depositary or delivery of Notes in certificated form (together with all necessary endorsements) to the Paying Agent on or after the Purchase Date at the offices of the Paying Agent shall be a condition to the receipt by the Holder of the Purchase Price therefor. Holders electing to require the Company to repurchase Notes must effect such transfer or delivery to the Paying Agent prior to the Purchase Date to receive payment of the Purchase Price on the Purchase Date. The Company shall pay the Purchase Price promptly following the later of the Purchase Date or the time of such transfer or the delivery of the Notes.

     A Purchase Notice may be withdrawn in whole or in part by a Holder by means of a written notice of withdrawal delivered to the office of the Paying Agent prior to the close of business on the fourth Business Day prior to the Purchase Date specifying:

     (a) the Holder’s name;

     (b) the principal amount of Notes in respect of which the Purchase Notice is being withdrawn, which must be an integral multiple of $1,000;

9

     (c) if the Notes subject to the notice of withdrawal are in certificated form, the certificate number(s) of all Notes subject to the notice of withdrawal; and

     (d) the principal amount of Notes, if any, that remains subject to the Purchase Notice, which must be an integral multiple of $1,000.

     If Notes subject to the notice of withdrawal are in book-entry form, the above notices must also comply with the applicable procedures of the Depositary.

     On or before 10:00 a.m. (New York City time) on the Purchase Date, the Company shall deposit with the Paying Agent (or if the Company or an Affiliate of the Company is acting as the Paying Agent, shall segregate and hold in trust) money sufficient to pay the aggregate Purchase Price of the Notes to be repurchased pursuant to this Section 2.08. If the Paying Agent holds, in accordance with the terms of this Indenture, money sufficient to pay the Purchase Price of such Notes on the Purchase Date, then, on and after such date, such Notes shall cease to be Outstanding and interest on such Notes shall cease to accrue and all rights of the Holders of such Notes shall terminate (other than the right to receive the Purchase Price after delivery or transfer of the Notes). Such will be the case whether or not book-entry transfer of the Notes in book-entry form is made and whether or not Notes in certificated form, together with the necessary endorsements, are delivered to the Paying Agent.

     Notwithstanding the foregoing, no Notes may be repurchased by the Company in accordance with the provisions of this Section 2.08 if there has occurred and is continuing an Event of Default with respect to the Notes (other than a default in the payment of the Purchase Price).

     To the extent legally required in connection with a repurchase of Notes, the Company shall comply with the provisions of Rule 13e-4 and other tender offer rules under the Exchange Act then applicable, if any, and will file a Schedule TO or any other schedule required under the Exchange Act. The Company shall comply with all other federal and state securities laws in connection with any offer by it to repurchase the Notes. To the extent the then applicable requirements under any federal or state securities laws, including Rule 13e-4 and the other tender offer rules under the Exchange Act, conflict with the terms of the Notes, the applicable requirements under such federal and state securities laws shall control.

     The Company may arrange for a third party to purchase Notes for which the Company has received a valid Purchase Notice that has not been properly withdrawn, in the manner and otherwise in compliance with the requirements set forth herein and in the Notes. If a third party purchases any Notes under such circumstances, then interest will continue to accrue on the Notes and such Notes will continue to be Outstanding after the Purchase Date for all purposes of the Indenture and will be fungible with all other Notes then Outstanding. The third party subsequently may resell those purchased Notes to other investors.

     Section 2.09. Repurchase at Option of Holders upon a Change in Control. If a Change in Control occurs prior to the Stated Maturity, a Holder of Notes shall have the right to require the Company to repurchase such Holder’s Notes, in whole or in part (in principal amounts of $1,000 or an integral multiple thereof) for cash equal to 100% of the principal amount of the

10

Notes to be repurchased, plus unpaid interest accrued thereon to but excluding the Change in Control Purchase Date (such amount, the “Change in Control Purchase Price”), subject to satisfaction by or on behalf of the Holder of the requirements set forth below.

     Within 20 days after the occurrence of a Change in Control, the Company shall mail a written notice of the particular Change in Control and of the repurchase right arising as a result of such Change in Control (the “Company Notice”) by first-class mail to the Trustee, any Paying Agent and to each Holder (and to beneficial owners as required by applicable law). The notice shall include a form of Change in Control Purchase Notice (defined below) to be completed by the Holder and shall state:

     (a) briefly, the events causing a Change in Control and the date of such Change in Control;

     (b) the date by which the Change in Control Purchase Notice must be delivered to the Paying Agent;

     (c) the date on which the Company will repurchase Notes upon a Change in Control, which must be not less than 15 days nor more than 35 days after the date of the Company Notice (such date, the “Change in Control Purchase Date”);

     (d) the Change in Control Purchase Price;

     (e) the name and address of the Trustee, the Paying Agent and the Conversion Agent;

     (f) that Notes in respect of which a Change in Control Purchase Notice is provided by a Holder shall not be convertible unless such Holder validly withdraws such Change in Control Purchase Notice in accordance with the provisions of this Section 2.09;

     (g) that Notes must be surrendered to the Paying Agent to collect payment of the Change in Control Purchase Price;

     (h) that the Change in Control Purchase Price for any Note as to which a Change in Control Purchase Notice has been duly given will be paid promptly following the later of the Change in Control Purchase Date or the time at which such Notes are surrendered for repurchase;

     (i) that, unless the Company defaults in making payment of the Change in Control Purchase Price, interest on Notes surrendered for repurchase will cease to accrue on and after the Change in Control Purchase Date; and

     (j) the CUSIP number of the Notes.

     The Company shall also disseminate a press release announcing the occurrence of such Change in Control or publish such information in a newspaper of general circulation in The City

11

of New York or on the Company’s website, or through such other public medium as the Company shall deem appropriate at such time.

     A Holder may exercise its rights specified in this Section 2.09 upon delivery of a written notice of such Holder’s exercise of its repurchase right (a “Change in Control Purchase Notice”) to the Paying Agent at any time prior to the close of business on the fourth Business Day prior to the Change in Control Purchase Date, stating:

     (a) if such Notes are in certificated form, the certificate number(s) of the Notes which the Holder will deliver to be repurchased;

     (b) the portion of the principal amount of the Notes to be repurchased, in multiples of $1,000, provided that the remaining principal amount of Notes is in an authorized denomination; and

     (c) that such Note shall be repurchased pursuant to the applicable provisions hereof and of the Notes.

     The Paying Agent shall promptly notify the Company in writing of the receipt by it of any Change in Control Purchase Notice.

     Book-entry transfer of Notes in book-entry form in compliance with appropriate procedures of the Depositary or delivery of Notes in certificated form (together with all necessary endorsements) to the Paying Agent on or after the Change in Control Purchase Date at the offices of the Paying Agent shall be a condition to the receipt by the Holder of the Change in Control Purchase Price therefor. Holders electing to require the Company to repurchase Notes must effect such transfer or delivery to the Paying Agent prior to the Change in Control Purchase Date to receive payment of the Change in Control Purchase Price on the Change in Control Purchase Date. The Company shall pay the Change in Control Purchase Price promptly following the later of the Change in Control Purchase Date or the time of book-entry transfer or the delivery of the Notes.

     A Change in Control Purchase Notice may be withdrawn in whole or in part by a Holder by means of a written notice of withdrawal delivered to the office of the Paying Agent prior to the close of business on the fourth Business Day prior to the Change in Control Purchase Date specifying:

     (a) the Holder’s name;

     (b) the principal amount of Notes in respect of which the Change in Control Purchase Notice is being withdrawn, which must be an integral multiple of $1,000;

     (c) if the Notes subject to the notice of withdrawal are in certificated form, the certificate number(s) of all Notes subject to the notice of withdrawal; and

     (d) the principal amount of Notes, if any, that remains subject to the Change in Control Purchase Notice, which must be an integral multiple of $1,000.

12

     If Notes subject to the notice of withdrawal are in book-entry form, the above notices must also comply with the applicable procedures of the Depositary.

     On or before 10:00 a.m. (New York City time) on the Change in Control Purchase Date, the Company shall deposit with the Paying Agent (or if the Company or an Affiliate of the Company is acting as the Paying Agent, shall segregate and hold in trust) money sufficient to pay the aggregate Change in Control Purchase Price of the Notes to be repurchased pursuant to this Section 2.09. If the Paying Agent holds, in accordance with the terms of this Indenture, money sufficient to pay the Change in Control Purchase Price of such Notes on the Change in Control Purchase Date, then, on and after such date, such Notes shall cease to be Outstanding and interest on such Notes shall cease to accrue and all rights of the Holders of such Notes shall terminate (other than the right to receive the Change in Control Purchase Price after delivery or transfer of the Notes). Such will be the case whether or not book-entry transfer of the Notes in book-entry form is made and whether or not Notes in certificated form, together with the necessary endorsements, are delivered to the Paying Agent.

     Notwithstanding the foregoing, no Notes may be repurchased by the Company in accordance with the provisions of this Section 2.09 if there has occurred and is continuing an Event of Default with respect to the Notes (other than a default in the payment of the Change in Control Purchase Price).

     To the extent legally required in connection with a repurchase of Notes, the Company shall comply with the provisions of Rule 13e-4 and other tender offer rules under the Exchange Act then applicable, if any, and will file a Schedule TO or any other schedule required under the Exchange Act. The Company shall comply with all other federal and state securities laws in connection with any offer by it to repurchase the Notes. To the extent the then applicable requirements under any federal or state securities laws, including Rule 13e-4 and the other tender offer rules under the Exchange Act, conflict with the terms of the Notes, the applicable requirements under such federal and state securities laws shall control.

     The Company may arrange for a third party to purchase Notes for which the Company has received a valid Change in Control Purchase Notice that has not been properly withdrawn, in the manner and otherwise in compliance with the requirements set forth herein and in the Notes. If a third party purchases any Notes under such circumstances, then interest will continue to accrue on the Notes and such Notes will continue to be Outstanding after the Change in Control Purchase Date for all purposes of the Indenture and will be fungible with all other Notes then Outstanding. The third party subsequently may resell those purchased Notes to other investors.

     Section 2.10. Make Whole Amount. If the Effective Date (as defined below) of a Change in Control occurs prior to November 20, 2015 as a result of a transaction or event described in clauses (1) or (2) of the definition of Change in Control and a Holder elects to convert its Notes in connection with such Change in Control pursuant to Section 2.11(d) hereof, the Company shall increase the applicable Conversion Rate for such Notes surrendered for conversion by a number of additional Common Shares (the “Additional Shares”) as specified below. A conversion of Notes shall be deemed for these purposes to be “in connection with” such a Change in Control if the notice of conversion of the Notes is received by the Conversion Agent

13

on any date from and including the date that is the Effective Date of such Change in Control up to and including the 30th Business Day following the Effective Date of such Change in Control.

     The number of Additional Shares will be determined by reference to the table below and is based on the date on which such Change in Control transaction becomes effective (the “Effective Date”) and the price (the “Share Price”) paid per Common Share in such Change in Control transaction. If holders of Common Shares receive only cash in a Change in Control transaction, the Share Price shall be the cash amount paid per Common Share. In all other cases, the Share Price shall be the average of the Closing Sale Prices of the Common Shares on the 10 consecutive Trading Days up to but excluding the Effective Date.

     The Share Prices set forth in the first row of the table (i.e., the column headers) will be adjusted as of any date on which the Conversion Rate of the Notes is adjusted. The adjusted Share Prices will equal the Share Prices applicable immediately prior to such adjustment multiplied by a fraction, the numerator of which is the Conversion Rate immediately prior to the adjustment giving rise to the Share Price adjustment and the denominator of which is the Conversion Rate as so adjusted. In addition, the number of Additional Shares will be subject to adjustment in the same manner as the Conversion Rate in accordance with the provisions of Section 2.14 hereof.

     The following table sets forth the Share Price and number of Additional Shares to be received per $1,000 principal amount of Notes:

Share Price

Effective date	$12.85		$14.00		$15.00		$16.00		$18.00		$20.00		$22.00		$25.00		$30.00		$35.00		$40.00		$45.00		$50.00
11/5/2010		16.7849		14.1925		11.5928		9.6160		6.7117		4.7654		3.4339		2.1480		1.0203		0.4862		0.2162		0.0761		0.0085
11/15/2011		16.7849		14.1773		11.5456		9.4437		6.3981		4.4045		3.0771		1.8405		0.8165		0.3640		0.1481		0.0416		0.0000
11/15/2012		16.7849		13.9524		11.1382		8.9151		5.7620		3.7732		2.5064		1.3943		0.5564		0.2249		0.0789		0.0116		0.0000
11/15/2013		16.7849		13.1027		10.1071		7.7848		4.6136		2.7479		1.6575		0.8061		0.2727		0.0979		0.0257		0.0000		0.0000
11/15/2014		16.7849		11.7547		8.4396		5.9557		2.8345		1.2932		0.5858		0.1987		0.0594		0.0232		0.0016		0.0000		0.0000
11/20/2015		16.7849		10.3925		5.6306		1.4620		0.0000		0.0000		0.0000		0.0000		0.0000		0.0000		0.0000		0.0000		0.0000

     The exact Share Prices and Effective Dates may not be set forth in the table, in which case:

     (a) if the Share Price is between two Share Price amounts in the table or the Effective Date is between two dates in the table, the Additional Shares will be determined by straight-line interpolation between the number of Additional Shares set forth for the higher and lower Share Price amounts and the two dates, as applicable, based on a 365-day year;

     (b) if the Share Price is equal to or in excess of $50.00 per Common Share (subject to adjustment as specified in the second preceding paragraph), no Additional Shares will be delivered upon a conversion of Notes; and

     (c) if the Share Price is less than $12.85 per Common Share (subject to adjustment as specified in the second preceding paragraph), no Additional Shares will be delivered upon a conversion of Notes.

14

     Notwithstanding the foregoing, in no event shall the total number of Common Shares deliverable upon a conversion of Notes exceed 77.8210 shares per $1,000 principal amount of Notes, subject to adjustment in the same manner as the Conversion Rate pursuant to Section 2.14 hereof.

     Section 2.11. Conversion Rights.

     Subject to the restrictions on ownership of the Common Shares as set forth in Section 2.16 hereof and to the conditions set forth herein, Holders may surrender their Notes for conversion for cash and, if applicable, Common Shares (or, at the election of the Company in accordance with the provisions of Section 2.12 hereof, cash in lieu of such Common Shares) at the applicable Conversion Rate prior to the close of business on the Business Day preceding May 15, 2040 only under the circumstances set forth in this Section 2.11. On or after May 15, 2040 until the close of business on the second Business Day preceding the Stated Maturity of the principal of the Notes, Holders may convert their Notes at any time, regardless of the circumstances set forth in this Section 2.11.

     (a) Conversion upon Satisfaction of Market Price Condition. A Holder may surrender any of its Notes for conversion during any fiscal quarter beginning after December 31, 2010 (and only during such fiscal quarter) if, and only if, the Closing Sale Price of the Common Shares for at least 20 Trading Days (whether or not consecutive) in the period of 30 consecutive Trading Days ending on the last Trading Day of the preceding fiscal quarter is more than 125% of the Conversion Price per Common Share in effect on the applicable Trading Day. The Board of Directors of the Company shall make appropriate adjustments, in its good faith determination, to account for any adjustment to the Conversion Rate that becomes effective, or any event requiring an adjustment to the Conversion Rate where the ex-dividend date of the event occurs, during that 30 consecutive Trading Day period.

     (b) Conversion upon Satisfaction of Trading Price Condition. A Holder may surrender any of its Notes for conversion during the five consecutive Trading Day period following any five consecutive Trading Days in which the Trading Price per $1,000 principal amount of Notes (as determined following a reasonable request by a Holder of the Notes) was less than 98% of the product of the Closing Sale Price of the Common Shares multiplied by the Conversion Rate.

     The Trustee shall have no obligation to determine the Trading Price of the Notes unless the Company shall have requested such determination, and the Company shall have no obligation to make such request unless a Holder provides the Company with written reasonable evidence that the Trading Price per $1,000 principal amount of the Notes would be less than 98% of the product of the Closing Sale Price of the Common Shares and the Conversion Rate, whereupon the Company shall instruct the Trustee to determine the Trading Price of the Notes beginning on the next Trading Day and on each successive Trading Day until the Trading Price is greater than or equal to 98% of the product of the Closing Sale Price of the Common Shares and the Conversion Rate.

     Notwithstanding anything to the contrary in this Twelfth Supplemental Indenture (including, but not limited to, the definition of Trading Price or this Section 2.11 hereof), the sole

15

method by which the Trustee shall determine the Trading Price shall be by the appointment by the Trustee, at the cost and expense of the Company, of a bid solicitation agent that shall be an independent nationally recognized investment banking firm to determine the Trading Price as required by this Twelfth Supplemental Indenture. Such bid solicitation agent shall perform all functions and duties that may be required of the Trustee herein in connection with or related to the determination of a Trading Price. So long as the Trustee has exercised reasonable care in the appointment of such bid solicitation agent, the Trustee shall not be liable for any negligent acts or omissions, or misconduct, of such bid solicitation agent.

     (c) Conversion upon Notice of Redemption. A Holder may surrender for conversion any of the Notes called for redemption at any time prior to the close of business on the second Business Day prior to the Redemption Date, even if the Notes are not otherwise convertible at such time. The right to convert Notes pursuant to this clause (c) will expire after the close of business on the second Business Day prior to the Redemption Date unless the Company defaults in making the payment due upon redemption. A Holder may convert fewer than all of its Notes so long as the Notes converted are an integral multiple of $1,000 principal amount and the remaining principal amount of Notes is in an authorized denomination. However, if a Holder has already delivered a Purchase Notice or a Change in Control Purchase Notice with respect to a Note, such Holder may not surrender such Note for conversion until it has withdrawn such notice in accordance with the applicable provisions of Section 2.08 or 2.09 hereof, as the case may be.

     (d) Conversion upon Specified Transactions. If the Company elects to:

     (i) distribute to all holders of Common Shares rights entitling them to purchase, for a period expiring within 45 days, Common Shares at less than the Closing Sale Price of the Common Shares on the Trading Day preceding the declaration date of the distribution; or

     (ii) distribute to all holders of Common Shares assets, debt securities or certain rights to purchase securities of the Company, which distribution has a per share value exceeding 10% of the Closing Sale Price of the Common Shares on the Trading Day preceding the declaration date of such distribution,

the Company shall notify the Holders of the Notes in writing at least 45 days prior to the ex-dividend date for such distribution. Following the giving of such notice, Holders may surrender their Notes for conversion at any time until the earlier of the close of business on the Business Day immediately prior to the ex-dividend date or an announcement that such distribution will not take place; provided, however, that a Holder may not exercise this right to convert if the Holder may participate, on an as-converted basis (assuming for such purposes that the Notes are convertible solely in Common Shares at the then applicable Conversion Rate), in the distribution without a conversion of Notes. The ex-dividend date is the first date upon which a sale of the Common Shares does not automatically transfer the right to receive the relevant distribution from the seller of Common Shares to its buyer.

     In addition, if the Company is party to a consolidation, merger or binding share exchange pursuant to which all of the Common Shares would be exchanged for cash, securities or other property that is not otherwise a Change in Control, a Holder may surrender Notes for conversion

16

at any time from and including the date that is 15 Business Days prior to the Effective Date of the transaction up to and including five Business Days after the actual date of such transaction. The Company shall notify Holders as promptly as practicable following the date it publicly announces such transaction (but in no event less than 15 Business Days prior to the anticipated effective time of such transaction).

     If a Change in Control occurs as a result of a transaction described in clauses (1) or (2) of the definition of “Change in Control”, a Holder will have the right to convert its Notes at any time from and including the Effective Date of such transaction up to and including the 30th Business Day following the Effective Date of the transaction, provided that, if a Holder has already delivered a Change in Control Purchase Notice with respect to a Note, such Holder may not surrender such Note for conversion until it has withdrawn such notice in accordance with the applicable provisions of Section 2.09 hereof. The Company will notify Holders as promptly as practicable following the date that it publicly announces such Change in Control (but in no event later than five Business Days prior to the Effective Date of such Change in Control).

     (e) Conversion upon Delisting of the Common Shares. A Holder of Notes may surrender any of its Notes for conversion at any time beginning on the first Business Day after the Common Shares have ceased to be listed on a U.S. national or regional securities exchange for a 30 consecutive Trading Day period.

     Section 2.12. Conversion Settlement. Upon conversion of Notes, the Company shall pay cash up to the principal amount of such Notes and, to the extent that the conversion value (calculated in the manner set forth in this Section 2.12) exceeds the principal amount of such Notes, cash, Common Shares or a combination thereof (at the election of the Company) in respect of the excess, all as set forth in this Section 2.12.

     Upon a conversion of Notes, the Company shall deliver, in respect of each $1,000 principal amount of Notes being converted, a settlement amount equal to the sum of the Daily Settlement Amounts for each of the 30 Trading Days during the Observation Period.

     The “Daily Settlement Amount,” for each of the 30 Trading Days during the Observation Period, shall consist of:

     (a) cash equal to the lesser of (i) one-thirtieth of $1,000 and (ii) the Daily Conversion Value (defined below); and

     (b) to the extent the Daily Conversion Value exceeds one-thirtieth of $1,000, a number of Common Shares (the “Daily Share Amount”), subject to the Company’s right to pay cash in lieu of all or a portion of such Common Shares as set forth herein, equal to (i) the difference between the Daily Conversion Value and one-thirtieth of $1,000, divided by (ii) the Daily VWAP (defined below) for such Trading Day.

     By the close of business on the Scheduled Trading Day prior to the first Scheduled Trading Day of the applicable Observation Period, the Company may specify a percentage of the Daily Share Amount that will be settled in cash (the “Cash Percentage”) and the Company shall notify Holders of Notes of such Cash Percentage by notifying the Trustee (the “Cash Percentage Notice”). If the Company elects to specify a Cash Percentage, the amount of cash

17

that the Company shall deliver in lieu of all or the applicable portion of the Daily Share Amount in respect of each Trading Day in the applicable Observation Period will equal (i) the Cash Percentage, multiplied by (ii) the Daily Share Amount for such Trading Day (assuming the Company had not specified a Cash Percentage), multiplied by (iii) the Daily VWAP for such Trading Day. The number of Common Shares deliverable in respect of each Trading Day in the applicable Observation Period will be a percentage of the Daily Share Amount (assuming the Company had not specified a Cash Percentage) equal to 100% minus the Cash Percentage. If the Company does not specify a Cash Percentage, the Company must settle the entire Daily Share Amount for each Trading Day in such Observation Period in Common Shares (plus cash in lieu of fractional shares). The Company may, at its option, revoke any Cash Percentage Notice in respect of any Observation Period by notifying the Trustee; provided that the Company revokes such notice by the close of business on the Scheduled Trading Day prior to the first Scheduled Trading Day of such Observation Period.

     “Daily Conversion Value” means, for each of the 30 consecutive Trading Days during the Observation Period, one-thirtieth of the product of (i) the applicable Conversion Rate and (ii) the Daily VWAP of the Common Shares on such Trading Day.

     “Daily VWAP” means, for each of the 30 consecutive Trading Days during the Observation Period, the per share volume-weighted average price as displayed under the heading “Bloomberg VWAP” on Bloomberg page “DDR.N <equity> AQR” (or its equivalent successor if such page is not available) in respect of the period from 9:30 a.m. to 4:00 p.m. (New York City time) on such Trading Day (or if such volume-weighted average price is unavailable, the market value of one Common Share on such Trading Day determined, using a volume-weighted average method, by a nationally recognized independent investment banking firm retained for this purpose by the Company). Daily VWAP will be determined without regard to after hours trading or any other trading outside of the regular trading session trading hours.

     “Observation Period” with respect to any Note means:

     (i) if the relevant Conversion Date occurs prior to May 15, 2040 (other than in the case of a conversion following a notice of redemption as set forth in clause (ii) below), the 30 consecutive Trading Day period beginning on and including the second Trading Day after the Conversion Date;

     (ii) if the relevant Conversion Date occurs on or after the date of issuance of a notice of redemption in accordance with the provisions of Section 2.07 hereof but prior to the relevant Redemption Date, the 30 consecutive Trading Days beginning on and including the 32nd Scheduled Trading Day preceding such Redemption Date; and

     (iii) if the Conversion Date occurs on or after May 15, 2040, the 30 consecutive Trading Days beginning on and including the 32nd Scheduled Trading Day preceding November 15, 2040.

     For the purposes of determining payment upon conversion in accordance with the provisions of this Section 2.12, “Trading Day” means a day during which (i) trading in Common Shares generally occurs on the principal U.S. national or regional securities exchange

18

or market on which Common Shares are listed or admitted for trading and (ii) there is no Market Disruption Event.

     “Scheduled Trading Day” means a day that is scheduled to be a Trading Day on the principal U.S. national or regional securities exchange or market on which Common Shares are listed or admitted for trading.

     For the purposes of determining payment upon conversion in accordance with the provisions of this Section 2.12, “Market Disruption Event” means (i) a failure by the principal U.S. national or regional securities exchange or market on which Common Shares are listed or admitted to trading to open for trading during its regular trading session or (ii) the occurrence or existence prior to 1:00 p.m. on any Trading Day for Common Shares for an aggregate one half hour period of any suspension or limitation imposed on trading (by reason of movements in price exceeding limits permitted by the stock exchange or otherwise) in Common Shares or in any options, contracts or future contracts relating to Common Shares.

     The Company shall deliver the sum of the Daily Settlement Amounts for each of the 30 Trading Days during the Observation Period to converting Holders on the third Business Day following the last day of the Observation Period.

     The Company shall deliver cash in lieu of any fractional Common Share deliverable in connection with payment of the settlement amount (based on the Closing Sale Price of Common Shares on the last day of the applicable Observation Period).

     Section 2.13. Conversion Procedures. To convert Notes, a Holder must satisfy the requirements set forth in this Section 2.13.

     To convert the Notes, a Holder must (a) complete and manually sign the irrevocable conversion notice on the reverse of the Note (or complete and manually sign a facsimile of such notice) and deliver such notice to the Conversion Agent at the office maintained by the Conversion Agent for such purpose, (b) with respect to Notes which are in certificated form, surrender the Notes to the Conversion Agent, or, if the Notes are in book-entry form, comply with the appropriate procedures of the Depositary, (c) furnish appropriate endorsements and transfer documents if required by the Conversion Agent, the Company or the Trustee and (d) pay any transfer or similar tax, if required. The date on which the Holder satisfies all such requirements shall be the “Conversion Date.”

     Notes in respect of which a Holder has delivered a Purchase Notice or a Change in Control Purchase Notice may be converted only if such notice is withdrawn in accordance with the terms of Section 2.08 or 2.09, as the case may be.

     In case any Note shall be surrendered for partial conversion, the Company shall execute and the Trustee shall authenticate and deliver to, or upon the written order of, the Holder of the Note so surrendered, without charge to such Holder, a new Note or Notes in authorized denominations in an aggregate principal amount equal to the portion of the surrendered Notes not surrendered for conversion. A Holder may convert fewer than all of such Holder’s Notes so long as the Notes converted are an integral multiple of $1,000 principal amount.

19

     Upon surrender of a Note for conversion by a Holder, such Holder shall deliver to the Company cash equal to the amount that the Company is required to deduct and withhold under applicable law in connection with the conversion; provided, however, if the Holder does not deliver such cash, the Company may deduct and withhold from the amount of consideration otherwise deliverable to such Holder the amount required to be deducted and withheld under applicable law.

     Upon conversion of a Note, a Holder will not receive any cash payment representing accrued and unpaid interest on such Note, except as specified in the immediately following paragraph. Instead, upon a conversion of Notes, the Company will deliver to the surrendering Holder only the consideration specified in Section 2.12. Delivery of cash and Common Shares, if any, upon a conversion of Notes will be deemed to satisfy the Company’s obligation to pay the principal of the Notes and any accrued and unpaid interest thereon. Accordingly, upon a conversion of Notes, any accrued and unpaid interest will be deemed paid in full rather than cancelled, extinguished or forfeited. In no event will the Conversion Rate be adjusted to account for accrued and unpaid interest on the Notes.

     Upon the conversion of Notes, accrued interest thereon will be deemed to be paid by delivery of the consideration due to the converting Holder upon such conversion, except that Holders of Notes at the close of business on a Regular Record Date for an interest payment will receive payment of interest payable on the corresponding Interest Payment Date notwithstanding the conversion of such Notes at any time after the close of business on the applicable Regular Record Date. Notes surrendered for conversion by a Holder after the close of business on any Regular Record Date for an interest payment and on or prior to the corresponding Interest Payment Date must be accompanied by payment of an amount equal to the interest that such Holder is to receive on such Notes on such Interest Payment Date; provided, however, that no such payment shall be required to be made (1) if such Notes have been called for redemption on a Redemption Date that is after such Regular Record Date and on or prior to such Interest Payment Date, or (2) with respect to overdue interest, if any overdue interest exists at the time of conversion with respect to such Notes.

     Upon conversion of a Note, the Company, if it has not elected to deliver cash in lieu of Common Shares, if any, otherwise deliverable upon conversion, will pay any documentary, stamp or similar issue or transfer tax due on the issue or delivery of the Common Shares upon such conversion unless the tax is due because the Holder requests the Common Shares to be issued or delivered to a Person other than the Holder, in which case the Holder must pay the tax due prior to the delivery of such Common Shares. Certificates representing Common Shares will not be issued or delivered unless all taxes and duties, if any, payable by the Holder have been paid.

     A Holder of Notes, as such, shall not be entitled to any rights of a holder of Common Shares. Such Holder shall only acquire such rights upon the delivery by the Company of Common Shares, if any, in accordance with the provisions of Section 2.12 upon a conversion of Notes by a Holder.

     If a Holder converts more than one Note at the same time, the number of Common Shares, if any, issuable upon the conversion shall be based on the total principal amount of the Notes surrendered for conversion.

20

     The Company shall, prior to issuance of any Notes hereunder, and from time to time as may be necessary, reserve out of its authorized but unissued Common Shares a sufficient number of Common Shares to permit the conversion of the Notes at the applicable Conversion Rate. Any Common Shares delivered upon a conversion of Notes shall be newly issued shares or treasury shares, shall be duly and validly issued and fully paid and nonassessable and shall be free from preemptive rights and free of any lien or adverse claim.

     The Company shall endeavor promptly to comply with all federal and state securities laws regulating the issuance and delivery of Common Shares, if any, upon a conversion of Notes and shall cause to have listed or quoted all such Common Shares on each U.S. national securities exchange or over-the-counter or other domestic market on which the Common Shares are then listed or quoted.

     Except as set forth herein, no other payment or adjustment for interest shall be made upon conversion of Notes.

     Section 2.14. Conversion Rate Adjustments. The Conversion Rate shall be adjusted from time to time as follows:

     (a) If the Company issues Common Shares as a dividend or distribution on Common Shares to all holders of Common Shares, or if the Company effects a share split or share combination, the Conversion Rate will be adjusted based on the following formula:

where
CR0	=	the Conversion Rate in effect immediately prior to the adjustment relating to such event
CR1	=	the new Conversion Rate in effect taking such event into account
OS0	=	the number of Common Shares outstanding immediately prior to such event
OS1	=	the number of Common Shares outstanding immediately after such event.

Any adjustment made pursuant to this clause (a) shall become effective on the date that is immediately after (x) the date fixed for the determination of shareholders entitled to receive such dividend or other distribution or (y) the date on which such split or combination becomes effective, as applicable. If any dividend or distribution described in this clause (a) is declared but not so paid or made, the new Conversion Rate shall be

21

readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

     (b) If the Company issues to all holders of Common Shares any rights, warrants, options or other securities entitling them for a period of not more than 45 days after the date of issuance thereof to subscribe for or purchase Common Shares, or if the Company issues to all holders of Common Shares securities convertible into Common Shares for a period of not more than 45 days after the date of issuance thereof, in either case at an exercise price per Common Share or a conversion price per Common Share less than the Closing Sale Price of the Common Shares on the Business Day preceding the time of announcement of such issuance, the Conversion Rate will be adjusted based on the following formula:

where
CR0	=	the Conversion Rate in effect immediately prior to the adjustment relating to such event
CR1	=	the new Conversion Rate taking such event into account
OS0	=	the number of Common Shares outstanding immediately prior to such event
X	=	the total number of Common Shares issuable pursuant to such rights, warrants, options, other securities or convertible securities
Y	=	the number of Common Shares equal to the quotient of (A) the aggregate price payable to exercise such rights, warrants, options, other securities or convertible securities and (B) the average of the Closing Sale Prices of the Common Shares for the 10 consecutive Trading Days prior to the Business Day preceding the date of announcement for the issuance of such rights, warrants, options, other securities or convertible securities.

For purposes of this clause (b), in determining whether any rights, warrants, options, other securities or convertible securities entitle the holders to subscribe for or purchase, or exercise a conversion right for, Common Shares at less than the applicable Closing Sale Price of the Common Shares, and in determining the aggregate exercise or conversion price payable for such Common Shares, there shall be taken into account any consideration received by the Company for such rights, warrants, options, other securities or convertible securities and any amount payable on exercise or conversion thereof, with the value of such consideration, if other than cash, to be determined by the Board of Directors of the Company. If any right, warrant, option, other security or convertible

22

security described in this clause (b) is not exercised or converted prior to the expiration of the exercisability or convertibility thereof, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such right, warrant, option, other security or convertible security had not been so issued.

     (c) If the Company distributes capital shares, evidences of indebtedness or other assets or property of the Company to all holders of Common Shares, excluding:

     (i) dividends, distributions, rights, warrants, options, other securities or convertible securities referred to in clause (a) or (b) above,

     (ii) dividends or distributions paid exclusively in cash, and

     (iii) Spin-Offs described below in this clause (c),

then the Conversion Rate will be adjusted based on the following formula:

where
CR0	=	the Conversion Rate in effect immediately prior to the adjustment relating to such event
CR1	=	the new Conversion Rate taking such event into account
SP0	=	the Closing Sale Price of the Common Shares on the Trading Day preceding the ex-dividend date for such distribution
FMV	=	the fair market value (as determined in good faith by the Board of Directors of the Company) of the capital shares, evidences of indebtedness, assets or property distributed with respect to each outstanding Common Share on the earlier of the record date or the ex-dividend date for such distribution.

     An adjustment to the Conversion Rate made pursuant to the immediately preceding clause shall be made successively whenever any such distribution is made and shall become effective on the ex-dividend date for such distribution.

     If the Company distributes to all holders of Common Shares capital shares of any class or series, or similar equity interest, of or relating to a subsidiary or other business unit of the Company (a “Spin-Off”), the Conversion Rate in effect immediately before the close of business on the date fixed for determination of holders of Common Shares entitled to receive such distribution will be adjusted based on the following formula:

23

where
CR0	=	the Conversion Rate in effect immediately prior to the adjustment relating to such event
CR1	=	the new Conversion Rate taking such event into account
FMV0	=	the average of the Closing Sale Prices of the capital shares or similar equity interest distributed to holders of Common Shares applicable to one Common Share over the first 10 consecutive Trading Days after the effective date of the Spin-Off
MP0	=	the average of the Closing Sale Prices of the Common Shares over the first 10 consecutive Trading Days after the effective date of the Spin-Off.

     An adjustment to the Conversion Rate made pursuant to the immediately preceding clause will occur on the 10th Trading Day from and including the effective date of the Spin-Off.

     If any such dividend or distribution described in this clause (c) is declared but not paid or made, the new Conversion Rate shall be readjusted to be the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

     (d) If the Company pays or makes any cash dividend or distribution in respect of any of its quarterly fiscal periods (without regard to when paid) to all holders of Common Shares in an aggregate amount that, together with other cash dividends or distributions made in respect of such quarterly fiscal period, exceeds the product of $0.02 (the “Reference Dividend”) multiplied by the number of Common Shares outstanding on the record date for such distribution, the Conversion Rate will be adjusted based on the following formula:

where
CR0	=	the Conversion Rate in effect immediately prior to the adjustment relating to such event
CR1	=	the new Conversion Rate taking such event into account

24

SP0	=	the Closing Sale Price of Common Shares on the Trading Day preceding the ex-dividend date for such distribution
C	=	the amount in cash per Common Share that the Company distributes to holders of Common Shares in respect of such quarterly fiscal period that exceeds the Reference Dividend.

     An adjustment to the Conversion Rate made pursuant to this clause (d) shall become effective on the ex-dividend date for such dividend or distribution. If any dividend or distribution described in this clause (d) is declared but not so paid or made, the new Conversion Rate shall be readjusted to the Conversion Rate that would then be in effect if such dividend or distribution had not been declared.

     The Reference Dividend shall be subject to adjustment on account of any of the events set forth in clauses (a), (b) and (c) above and clause (e) below. Any such adjustment will be effected by multiplying the Reference Dividend by a fraction, the numerator of which will equal the Conversion Rate in effect immediately prior to the adjustment on account of such event and the denominator of which will equal the Conversion Rate as adjusted.

     (e) If the Company or any of its subsidiaries makes a payment in respect of a tender offer or exchange offer for Common Shares to the extent that the cash and value of any other consideration included in the payment per Common Share exceeds the Closing Sale Price of a Common Share on the Trading Day next succeeding the last date on which tenders or exchanges may be made pursuant to such tender or exchange offer (the “Expiration Time”), the Conversion Rate will be adjusted based on the following formula:

where
CR0	=	the Conversion Rate in effect immediately prior to the adjustment relating to such event
CR1	=	the new Conversion Rate taking such event into account
AC	=	the aggregate value of all cash and any other consideration (as determined by the Board of Directors of the Company) paid or payable for Common Shares purchased in such tender or exchange offer
OS0	=	the number of Common Shares outstanding immediately prior to the date such tender or exchange offer expires

25

OS1	=	the number of Common Shares outstanding immediately after such tender or exchange offer expires (after giving effect to the purchase or exchange of shares pursuant to such tender or exchange offer)
SP1	=	the average of the Closing Sale Prices of Common Shares for the 10 consecutive Trading Days commencing on the Trading Day next succeeding the date such tender or exchange offer expires.

     If the application of the foregoing formula would result in a decrease in the Conversion Rate, no adjustment to the Conversion Rate will be made.

     Any adjustment to the Conversion Rate made pursuant to this clause (e) shall become effective on the date immediately following the determination of the average of the Closing Sale Prices of Common Shares for purposes of SP₁ above. If the Company or one of its subsidiaries is obligated to purchase Common Shares pursuant to any such tender or exchange offer but is permanently prevented by applicable law from effecting any such purchase or all such purchases are rescinded, the new Conversion Rate shall be readjusted to be the Conversion Rate that would be in effect if such tender or exchange offer had not been made.

     (f) [RESERVED]

     (g) If the Company has in effect a rights plan while any Notes remain Outstanding, Holders of Notes will receive, upon a conversion of Notes in respect of which the Company is required to deliver Common Shares, in addition to such Common Shares, rights under the Company’s shareholder rights agreement unless, prior to conversion, the rights have expired, terminated or been redeemed or unless the rights have separated from the Common Shares. If the rights provided for in the rights plan adopted by the Company have separated from the Common Shares in accordance with the provisions of the applicable shareholder rights agreement so that Holders of Notes would not be entitled to receive any rights in respect of Common Shares, if any, that the Company is required to deliver upon conversion of Notes, the Conversion Rate will be adjusted at the time of separation as if the Company had distributed to all holders of Common Shares capital shares, evidences of indebtedness or other assets or property pursuant to clause (c) above, subject to readjustment upon the subsequent expiration, termination or redemption of the rights.

     In addition to the adjustments pursuant to clauses (a) through (g) above, the Company may increase the Conversion Rate in order to avoid or diminish any income tax to holders of Common Shares resulting from any dividend or distribution of capital shares (or rights to acquire Common Shares) or from any event treated as such for income tax purposes. The Company may also, from time to time, to the extent permitted by applicable law, increase the Conversion Rate by any amount for any period if the Company has determined that such increase would be in the best interests of the Company. If the Company makes such determination, it will be conclusive and the Company will mail to Holders of the Notes a notice of the increased Conversion Rate and

26

the period during which it will be in effect at least fifteen (15) days prior to the date the increased Conversion Rate takes effect in accordance with applicable law.

     If, in connection with any adjustment to the Conversion Rate as set forth in this Section 2.14 a Holder shall be deemed for U.S. federal tax purposes to have received a distribution, the Company may set off any withholding tax it reasonably believes it is required to collect with respect to any such deemed distribution against cash payments of interest in accordance with the provisions of Section 2.05 hereof or from cash and Common Shares, if any, otherwise deliverable to a Holder upon a conversion of Notes in accordance with the provisions of Section 2.12 hereof or a redemption or repurchase of a Note in accordance with the provisions of Section 2.07, 2.08 or 2.09 hereof.

     The Company will not make any adjustment to the Conversion Rate if Holders of the Notes are permitted to participate, on an as-converted basis, in the transactions described above.

     Notwithstanding anything to the contrary contained herein, in addition to the other events set forth herein on account of which no adjustment to the Conversion Rate shall be made, the applicable Conversion Rate shall not be adjusted for:

     (i) the issuance of any Common Shares pursuant to any present or future plan providing for the reinvestment of dividends or interest payable on securities of the Company and the investment of additional optional amounts in Common Shares under any plan;

     (ii) the issuance of any Common Shares or options or rights to purchase those shares pursuant to any present or future employee, director or consultant benefit plan, employee agreement or arrangement or program of the Company;

     (iii) the issuance of any Common Shares pursuant to any option, warrant, right, or exercisable, exchangeable or convertible security outstanding as of the date the Notes were first issued;

     (iv) a change in the par value of the Common Shares;

     (v) accumulated and unpaid dividends or distributions; and

     (vi) as a result of a tender offer solely to holders of fewer than 100 Common Shares.

     Adjustments to the applicable Conversion Rate will be calculated to the nearest 1/10,000th of a share. No adjustment in the Conversion Rate shall be required unless the adjustment would require an increase or decrease of at least 1% of the Conversion Rate. If the adjustment is not made because the adjustment does not change the Conversion Rate by at least 1%, then the adjustment that is not made will be carried forward and taken into account in any future adjustment. Notwithstanding the foregoing, all adjustments not previously made will be given effect with respect to any conversion of Notes.

27

     Whenever the Conversion Rate is adjusted as herein provided, the Company shall, as promptly as reasonably practicable, file with the Trustee and any Conversion Agent other than the Trustee, an Officers’ Certificate setting forth the Conversion Rate after such adjustment and setting forth a brief statement of the facts requiring such adjustment. Promptly after delivery of such certificate, the Company shall prepare a notice of such adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and the date on which each adjustment becomes effective and shall mail such notice of such adjustment of the Conversion Rate to the Holders of the Notes within 20 Business Days of the effective date of such adjustment. Failure to deliver such notice shall not affect the legality or validity of any such adjustment.

     For purposes of this Section 2.14, the number of Common Shares at any time outstanding shall not include shares held in the treasury of the Company but shall include shares issuable in respect of scrip certificates issued in lieu of fractions of Common Shares.

     Notwithstanding anything in this Section 2.14 to the contrary, in no event shall the Conversion Rate be adjusted so that the Conversion Price would be less than $0.01.

Section 2.15. Effect of Recapitalization, Reclassification, Consolidation, Merger or Sale.

     (a) If any of the following events occur:

     (i) any recapitalization or reclassification of, or change in, the Common Shares (other than changes resulting from a subdivision or combination or a change in par value);

     (ii) any consolidation, merger or combination involving the Company; or

     (iii) any sale, lease or other transfer to a third party of the consolidated assets of the Company and its subsidiaries substantially as an entirety; or

     (iv) any statutory share exchange;

in each case as a result of which all of the Common Shares would be converted into, or exchanged for, stock, other securities, other property or assets (including cash or any combination thereof) (any such event, a “Merger Event”), then at the effective time of such Merger Event, the Company or the successor or purchasing Person, as the case may be, shall execute with the Trustee a supplemental indenture (which shall comply with the Trust Indenture Act as in force at the date of execution of such supplemental indenture) providing that at and after the effective time of such Merger Event, the right to convert a Note will be changed into a right to convert such Note as set forth in this Indenture into the kind and amount of shares of stock, other securities or other property or assets (including cash or any combination thereof) that a holder of a number of Common Shares equal to the Conversion Rate immediately prior to such Merger Event would have owned or been entitled to receive (the “Reference Property,” with each “unit of Reference Property” meaning the type and amount of Reference Property that a holder of one Common Share is entitled to receive) upon such Merger Event; provided, however, that at and after the effective time of the Merger Event the conversion obligation shall be calculated and settled in accordance with Section 2.12 such that (i) the amount otherwise payable in cash upon conversion

28

of the Notes as set forth under Section 2.12 will continue to be payable in cash, (ii) the number of Common Shares (if the Company does not elect to pay cash in lieu of all such shares) deliverable upon conversion of the Notes under Section 2.12 will be instead deliverable in the amount and type of Reference Property that a holder of that number of Common Shares would have been entitled to receive in such Merger Event and (iii) the Daily VWAP and the Closing Sale Price will be calculated based on the value of a unit of Reference Property.

     If, as a result of the Merger Event, each Common Share is converted into the right to receive more than a single type of consideration (determined based in part upon any form of stockholder election), then (x) the Reference Property into which the Notes will be convertible will be deemed to be the weighted average of the types and amounts of consideration received by the holders of Common Shares that affirmatively make such an election, and (y) the unit of Reference Property for purposes of the foregoing sentence shall refer to the consideration referred to in clause (x) attributable to one Common Share.

     The Company shall not become a party to any such Merger Event unless its terms are consistent with this Section 2.15. Such supplemental indenture shall provide for adjustments which shall be as nearly equivalent as may be practicable to the adjustments provided for herein in the judgment of the Board of Directors or the board of directors of the successor Person. If, in the case of any such recapitalization, reclassification, change, consolidation, merger, combination, sale, lease, other transfer or statutory share exchange, the Reference Property receivable thereupon by a holder of Common Shares includes shares of stock, securities or other property or assets (including cash or any combination thereof) of a Person other than the successor or purchasing Person, as the case may be, in such reorganization, reclassification, change, consolidation, merger, combination, sale, lease, other transfer or statutory share exchange, then such supplemental indenture shall also be executed by such other Person.

     (b) The Company shall cause notice of the execution of such supplemental indenture to be mailed to each Holder, at the address of such Holder as it appears on the register of the Notes maintained by the Registrar, within 20 days after execution thereof. Failure to deliver such notice shall not affect the legality or validity of such supplemental indenture. The above provisions of this Section 2.15 shall similarly apply to successive reclassifications, changes, consolidations, mergers, combinations, sales and conveyances. If this Section 2.15 applies to any Merger Event, Section 2.14 shall not apply.

     Section 2.16. Ownership Limit; Withholding. Notwithstanding any other provision of the Notes or the instructions contained herein, no Holder of Notes shall be entitled to convert such Notes for Common Shares to the extent that receipt of such shares would cause such Holder (together with such Holder’s affiliates) to exceed the ownership limit contained in the Articles of Incorporation of the Company as in effect from time to time.

     At the Maturity of the principal of the Notes, whether at Stated Maturity or upon earlier redemption or repurchase of Notes or otherwise, and upon any date upon which interest is payable on the Notes, and as otherwise required by law, the Company may deduct and withhold from the amount of consideration otherwise deliverable to such Holder the amount required to be deducted and withheld under applicable law.

     Section 2.17. Merger, Consolidation or Sale.

29

     Section 801 of the Indenture, for purposes of the Notes, is hereby modified and amended to include the following additional proviso:

     “(iii) if as a result of such transaction the Notes become exchangeable into common stock or other securities issued by a third party, such third party shall assume or fully and unconditionally guarantee all obligations under the Notes and the Indenture.”

     Section 2.18. Satisfaction and Discharge.

     (a) The satisfaction and discharge provisions set forth in this Section 2.18 shall, with respect to the Notes, supersede the entirety of ARTICLE FOUR of the Original Indenture, and all references in the Original Indenture to ARTICLE FOUR thereof and satisfaction and discharge provisions therein, as the case may be, shall, with respect to the Notes, be deemed to be references to this Section 2.18 and the satisfaction and discharge provisions set forth in this Section 2.18, respectively.

     When (i) the Company shall deliver to the Trustee for cancellation all Notes theretofore authenticated (other than any Notes that have been destroyed, lost or stolen and in lieu of or in substitution for which other Notes shall have been authenticated and delivered) and not theretofore canceled, or (ii) all the Notes not theretofore canceled or delivered to the Trustee for cancellation shall have become due and payable (whether at Stated Maturity for the payment of the principal amount thereof, on any Redemption Date, Purchase Date or Change in Control Purchase Date or following the last day of the applicable Observation Period upon conversion or otherwise) and the Company shall deposit with the Trustee, in trust, or deliver to the Holders, as applicable, cash funds and Common Shares, as applicable, sufficient to pay all amounts due (and Common Shares deliverable following conversion, if applicable) on all of such Notes (other than any Notes that shall have been mutilated, destroyed, lost or stolen and in lieu of or in substitution for which other Notes shall have been authenticated and delivered) not theretofore canceled or delivered to the Trustee for cancellation, including principal and interest due, and if the Company shall also pay or cause to be paid all other sums payable hereunder by the Company, then the Indenture shall cease to be of further effect with respect to the Notes (except as to (A) rights hereunder of Holders of the Notes to receive all amounts owing upon the Notes and the other rights, duties and obligations of Holders of the Notes, as beneficiaries hereof with respect to the amounts, if any, so deposited with the Trustee and (B) the obligations of the Company to the Trustee and any predecessor Trustee under Section 606 of the Indenture and the obligations of the Company to any Authenticating Agent under Section 611 of the Indenture), and the Trustee, upon receipt of a Company Order accompanied by an Officers’ Certificate and an Opinion of Counsel (each stating that all conditions precedent provided for in the Indenture relating to the satisfaction and discharge of the Indenture as to the Notes have been complied with) and at the cost and expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of this Indenture with respect to the Notes.

     (b) Subject to Section 2.18(d), all monies deposited with the Trustee pursuant to Section 2.18(a) shall be held in trust for the sole benefit of the Holders of the Notes, and such monies shall be applied by the Trustee to the payment, either directly or through any Paying Agent (including the Company if acting as its own Paying Agent), to the Holders of the

30

particular Notes for the payment or redemption of which such monies have been deposited with the Trustee, of all sums due and to become due thereon for principal and interest, if any.

     (c) Upon the satisfaction and discharge of this Indenture, all monies then held by any Paying Agent of the Notes (other than the Trustee) shall, upon receipt of a Company Order, be repaid to it or paid to the Trustee, and thereupon such Paying Agent shall be released from all further liability with respect to such monies.

     (d) Subject to the requirements of applicable law, any monies deposited with or paid to the Trustee for payment of the principal of or interest, if any, on the Notes and not applied but remaining unclaimed by the Holders of the Notes for two years after the date upon which the principal of or interest, if any, on such Notes, as the case may be, shall have become due and payable, shall be repaid to the Company by the Trustee on demand and all liability of the Trustee shall thereupon cease with respect to such monies; and the Holder of any of the Notes shall thereafter look only to the Company for any payment that such Holder of the Notes may be entitled to collect unless an applicable abandoned property law designates another Person.

     (e) If the Trustee or the Paying Agent is unable to apply any money in accordance with Section 2.18(b) by reason of any order or judgment of any court or governmental authority enjoining, restraining or otherwise prohibiting such application, the Company’s obligations under the Notes and the Indenture with respect to the Notes shall be revived and reinstated as though no deposit had occurred pursuant to 2.18(a) until such time as the Trustee or the Paying Agent is permitted to apply all such money in accordance with Section 2.18(b); provided, however, that if the Company makes any payment of interest on or principal of any Note following the reinstatement of its obligations, the Company shall be subrogated to the rights of the Holders of such Notes to receive such payment from the money held by the Trustee or Paying Agent.

     (f) The provisions of ARTICLE FOURTEEN of the Indenture shall not be applicable to the Notes.

     Section 2.19. Events of Default; Waiver of Past Defaults.

     (a) Section 501 of the Indenture is modified and amended for purposes of the Notes to add the following Events of Default as clauses (9) and (10):

     “(9) default in the delivery when due of the amounts owing upon conversion, on the terms set forth herein and in the Notes, upon exercise of a Holder’s conversion right in accordance with the terms hereof and of the Notes and the continuation of such default for 10 days;”

- and -

     “(10) failure of the Company to provide a Company Notice within 20 days after the occurrence of a Change in Control as provided in Section 2.09 of the Twelfth Supplemental Indenture.”

31

     (b) Clause five of Section 501 of the Indenture is modified and amended for purposes of the Notes to read as follows :

     “if any event of default under any bond, debenture, note or other evidence of indebtedness of the Company (including an Event of Default with respect to any other series of Securities), or under any mortgage, indenture or other instrument of the Company under which there may be issued or by which there may be secured or evidenced any indebtedness of the Company (or by any Subsidiary, the repayment of which the Company has guaranteed or for which the Company is directly responsible or liable as obligor or guarantor), whether such indebtedness now exists or shall hereafter be created, shall happen and shall result in an aggregate principal amount exceeding $25,000,000 becoming or being declared due and payable prior to the date on which it would otherwise have become due and payable, without such indebtedness having been discharged, or such acceleration having been waived, rescinded or annulled, within a period of 10 days after there shall have been given, by registered or certified mail, to the Company by the Trustee or to the Company and the Trustee by the Holders of at least 10% in principal amount of the Notes Outstanding a written notice specifying such event of default and requiring the Company to cause such indebtedness to be discharged or cause such acceleration to be rescinded or annulled and stating that such notice is a “Notice of Default” hereunder. Subject to the provisions of Section 601, the Trustee shall not be deemed to have knowledge of such event of default unless either (A) a Responsible Officer of the Trustee shall have actual knowledge of such event of default or (B) the Trustee shall have received written notice thereof from the Company, from any Holder, from the holder of any such indebtedness or from the trustee under any such mortgage, indenture or other instrument; or”

     (c) Section 502 of the Indenture is modified and amended with respect to the Notes to add the following as the final two paragraphs thereto:

     “Notwithstanding the foregoing, to the extent elected by the Company, the sole remedy for an Event of Default relating to the failure to comply with the reporting obligations under Section 2.25 of the Twelfth Supplemental Indenture or for any failure to comply with the requirements of Section 314(a)(1) of the Trust Indenture Act, will for the first 365 days after the occurrence of such an Event of Default consist exclusively of the right to receive special interest (“Special Interest”) on the Notes at an annual rate equal to 0.50% of the principal amount of the Notes. This Special Interest shall be payable semi-annually in arrears, with the first semi-annual payment due on the first Interest Payment Date following the date on which such Special Interest shall have begun to accrue on the Notes. Special Interest shall accrue on all Outstanding Notes from and including the date on which an Event of Default relating to a failure to comply with the reporting obligations in Section 2.25 of the Twelfth Supplemental Indenture or the requirements of Section 314(a)(1) of the Trust Indenture Act first occurs to but not including the 365th day thereafter (or such earlier date on which such Event of Default shall have been cured or waived). On such 365th day (or earlier, if such Event of Default is cured or waived prior to such 365th day), such Special Interest shall cease to accrue and, if the Event of Default relating to reporting obligations has not been cured or waived prior to such 365th day, the Notes shall be subject to acceleration as provided in the first

32

paragraph of this Section 502. The provisions of the Indenture described in this paragraph shall not affect the rights of Holders in the event of the occurrence of any other Event of Default. In the event the Company does not elect to pay Special Interest upon an Event of Default in accordance with this paragraph, the Notes shall be subject to acceleration as provided in the first paragraph of this Section 502.

     If the Company elects to pay Special Interest in connection with an Event of Default relating to the failure to comply with the reporting obligations under Section 2.25 of the Twelfth Supplemental Indenture or for any failure to comply with the requirements of Section 314(a)(1) of the Trust Indenture Act in accordance with the preceding paragraph, the Company shall notify all Holders of Notes and the Trustee and Paying Agent of such election on or before the close of business on the date on which such Event of Default first occurs.”

     (d) Section 508 of the Indenture is modified and amended for purposes of the Notes to read as follows:

     “Notwithstanding any other provision in this Indenture, the Holder of any Note shall have the right which is absolute and unconditional to receive payment of the principal of, and (subject to Sections 305 and 307) interest on, and amounts owing upon conversion in respect of, such Note on the respective due dates expressed in such Note (or, in the case of redemption on the Redemption Date) and to institute suit for the enforcement of any such payment, and such rights shall not be impaired without the consent of such Holder.”

     (e) Section 513 of the Indenture is modified and amended for purposes of the Notes to add the following as clause (3):

     (3) “in respect of the failure to convert any Notes in accordance with their terms.”

     Section 2.20. Modification. Section 902 of the Indenture is modified for purposes of the Notes to add the following as clauses (4) and (5):

     “(4) impair the right to institute suit for the enforcement of the payment and delivery of amounts owing upon conversion of the Notes; or

     (5) make any change that impairs or adversely affects the rights of a Holder to convert Notes in accordance with the terms hereof and the Notes; or”

     Section 2.21. Certain Covenants Not Applicable to the Notes. The Notes shall not be entitled to the benefits of the covenants set forth in Sections 1004 through 1011, inclusive, and Section 1015 of the Indenture.

     Section 2.22. Calculations in Respect of the Notes. Except as otherwise specifically stated herein or in the Notes, all calculations to be made in respect of the Notes shall be the obligation of the Company. All calculations made by the Company or its agent as contemplated pursuant to the terms hereof and of the Notes shall be made in good faith and be final and binding on the Company and the Holders absent manifest error. The Company shall provide a schedule of

33

calculations to the Trustee, and the Trustee shall be entitled to rely upon the accuracy of the calculations by the Company without independent verification. The Trustee shall forward calculations made by the Company to any Holder of Notes upon written request within 20 Business Days after the effective date of any adjustment.

     Section 2.23. Authorized Denominations. The Notes shall be issued in denominations of $1,000 and integral multiples thereof and payments of principal and interest on the Notes shall be made in U.S. dollars.

     Section 2.24. Conversion Agent, Paying Agent and Securities Registrar. U.S. Bank National Association, is hereby appointed as Conversion Agent, Paying Agent and the Security Registrar for the Notes. The Security Register for the Notes will be maintained by the Security Registrar at the Trustee’s Corporate Trust Office. The rights, privileges, protections, immunities and benefits given to the Trustee pursuant to the Indenture, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, each of the Conversion Agent, the Paying Agent and the Security Registrar.

     Section 2.25. Provision of Financial Information. The Company, for so long as any Notes are Outstanding, within 15 days after it is required to file the same with the Commission, will file with the Trustee all annual, quarterly and other reports that it may be required to file with the Commission pursuant to Section 13 or Section 15(d) of the Exchange Act. Delivery of such reports, information and documents to the Trustee is for informational purposes only and the Trustee’s receipt of such shall not constitute constructive notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on an Officers’ Certificate). If the Company is not required to file the foregoing forms or reports with the Commission, then it will file with the Trustee and the Commission such reports as may be prescribed by the Commission at such time. Notwithstanding the foregoing, the Trustee agrees that the Company shall be deemed to have furnished such information referred to in this Section 2.25 to the Trustee if the Company shall have filed such reports with the Commission via the EDGAR filing system (or any successor system) and such reports and other information are publicly available.

     Section 2.26. Special Interest Notice. In the event that the Company shall have elected to pay Special Interest in accordance with the provisions of Section 2.19(c), the Company will provide written notice (“Special Interest Notice”) to the Trustee of its election to pay Special Interest no later than fifteen (15) calendar days prior to the proposed payment date for Special Interest, and the Special Interest Notice shall set forth the amount of Special Interest to be paid by the Company on such payment date. The Trustee shall not at any time be under any duty or responsibility to any Holder of Notes to determine the Special Interest, or with respect to the nature, extent or calculation of the amount of Special Interest when made, or with respect to the method employed in such calculation of the Special Interest.

34

ARTICLE THREE
FORM OF NOTES

     Section 3.01. Form of Notes. The Notes and the Trustee’s certificate of authentication to be borne by such Notes shall be substantially in the form set forth in Exhibit A hereto. Any of the Notes may have such letters, numbers or other marks of identification and such notations, legends, endorsements or changes as the officers executing the same may approve (execution thereof to be conclusive evidence of such approval) and as are not inconsistent with the provisions of the Indenture or as may be required by the Depositary or as may be required to comply with any applicable law or with any rule or regulation made pursuant thereto or with any rule or regulation of any securities exchange or automated quotation system on which the Notes may be listed, or to conform to usage, or to indicate any special limitations or restrictions to which any particular Notes are subject.

ARTICLE FOUR
MISCELLANEOUS

     Section 4.01. Relation to Original Indenture. This Twelfth Supplemental Indenture supplements and amends the Original Indenture and shall be a part of and subject to all the terms thereof. Except as supplemented and amended hereby, all of the terms, provisions and conditions of the Original Indenture and the Securities issued thereunder shall continue in full force and effect.

     Section 4.02. Concerning the Trustee. The Trustee shall not be responsible for any recital herein, as such recitals shall be taken as statements of the Company, or the validity of the execution by the Company of this Twelfth Supplemental Indenture. The Trustee makes no representations as to the validity or sufficiency of this instrument.

     Section 4.03. Effect of Headings. The Article and Section headings herein are for convenience of reference only and shall not affect the construction hereof.

     Section 4.04. Counterparts. This instrument may be executed in counterparts, each of which shall be deemed an original, but all of which shall together constitute one and the same instrument.

     Section 4.05. Governing Law. This instrument shall be governed by and construed in accordance with the laws of the State of Ohio.

      Section 4.06. No Shareholder Rights. A Holder of a Note, as such, shall not have any rights as a shareholder of the Company, including without limitation, voting rights and rights to receive any dividends or other distributions on the Common Shares until such time as such Holder is deemed, in connection with a conversion of the Notes, to be a record holder of Common Shares on the final Trading Day of the related Observation Period in respect of Common Shares, if any, deliverable upon conversion.

[signature page follows]

35

     IN WITNESS WHEREOF, the parties hereto have caused this Twelfth Supplemental Indenture to be duly executed as of the day and year first above written.

	DEVELOPERS DIVERSIFIED REALTY CORPORATION
	By:
		Name:
		Title:
Attest:

Name:

Title:

	U.S. BANK NATIONAL ASSOCIATION as Trustee
	By:
		Name:
		Title:
Attest:

Name:

Title:

36

Exhibit A

[FORM OF NOTE]

DEVELOPERS DIVERSIFIED REALTY CORPORATION

1.75% Convertible Senior Note due 2040

[Include only for Global Notes]

     UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.

     UNLESS AND UNTIL THIS NOTE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR.

A - 1

NO. 001	PRINCIPAL AMOUNT
CUSIP NO. 251591AX1	$

DEVELOPERS DIVERSIFIED REALTY CORPORATION

1.75% Convertible Senior Note due 2040

     DEVELOPERS DIVERSIFIED REALTY CORPORATION, an Ohio corporation (the “Company”, which term shall include any successor under the Indenture hereinafter referred to), for value received, hereby promises to pay to Cede & Co., or its registered assigns, the principal sum of           Million Dollars ($           ) on November 15, 2040 unless redeemed, repurchased or converted prior to such date in accordance with the terms hereof and of the Indenture.

     This Note shall bear interest as specified on the reverse hereof. This Note is convertible for the consideration specified on the reverse hereof. This Note is subject to redemption by the Company at its option and to repurchase by the Company at the option of the Holder as specified on the reverse hereof.

     Reference is hereby made to the further provisions of this Note set forth on the reverse hereof, which further provisions shall for all purposes have the same effect as if set forth at this place.

     This Note shall not be entitled to the benefits of the Indenture or be valid or become obligatory for any purpose until the certificate of authentication hereon shall have been signed by the Trustee.

A - 2

     IN WITNESS WHEREOF, the Company has caused this Note to be signed manually or by facsimile by an authorized signatory.

Dated: November 5, 2010

DEVELOPERS DIVERSIFIED REALTY CORPORATION
	By:
		Name:
		Title:

Attest:

Name:

Title:

TRUSTEE’S CERTIFICATE OF AUTHENTICATION

     This is one of the Securities of the series designated therein referred to in the within-mentioned Indenture.

U.S. BANK NATIONAL ASSOCIATION      as Trustee
By:
	Authorized Signatory

A - 3

[REVERSE OF NOTE]

DEVELOPERS DIVERSIFIED REALTY CORPORATION

1.75% Convertible Senior Note due 2040

     This Note is one of a duly authorized issue of notes, debentures, bonds, or other evidences of indebtedness of the Company (hereinafter called the “Securities”) of the series hereinafter specified, all issued or to be issued under and pursuant to an Indenture, dated as of May 1, 1994 (as amended and supplemented by a First Supplemental Indenture, dated as of May 10, 1995, by a Second Supplemental Indenture, dated as of July 18, 2003, by a Third Supplemental Indenture, dated as of January 23, 2004, by a Fourth Supplemental Indenture, dated as of April 22, 2004, by a Fifth Supplemental Indenture, dated as of April 28, 2005, by a Sixth Supplemental Indenture, dated as of October 7, 2005, by a Seventh Supplemental Indenture, dated as of August 28, 2006, by an Eighth Supplemental Indenture, dated as of March 13, 2007, by a Ninth Supplemental Indenture, dated as of September 30, 2009, by a Tenth Supplemental Indenture, dated as of March 19, 2010, by an Eleventh Supplemental Indenture, dated as of August 12, 2010, and by a Twelfth Supplement Indenture, dated as of November 5, 2010, and as further amended and supplemented from time to time, the “Indenture”), duly executed and delivered by Developers Diversified Realty Corporation, an Ohio corporation (the “Company”), to U.S. Bank National Association, as trustee (the “Trustee,” which term includes any successor trustee under the Indenture with respect to the series of Securities of which this Note is a part), and reference is hereby made to the Indenture, and all modifications and amendments and indentures supplemental thereto relating to the Notes, for a description of the rights, limitations of rights, obligations, duties, and immunities thereunder of the Trustee, the Company, and the Holders of the Notes and the terms upon which the Notes are authenticated and delivered. The Securities may be issued in one or more series, which different series may be issued in various aggregate principal amounts, may mature at different times, may accrue interest (if any) at different rates or formulas and may otherwise vary as provided in the Indenture. This Note is one of a series of Securities designated as the “1.75% Convertible Senior Notes due 2040” of the Company, initially limited (except as permitted under the Indenture) in aggregate principal amount to $350,000,000. Terms used herein without definition and which are defined in the Indenture have the meanings assigned to them in the Indenture.

1. INTEREST

     The Notes shall bear interest at the rate of 1.75% per annum from November 5, 2010 or from the most recent Interest Payment Date (as defined below) to which interest has been paid or duly provided for, as the case may be, payable semi-annually in arrears on May 15 and November 15 of each year (each, an “Interest Payment Date”), commencing on May 15, 2011, until the principal hereof is paid or duly made available for payment. Interest payable on each Interest Payment Date shall equal the amount of interest accrued for the period commencing on and including the preceding Interest Payment Date in respect of which interest has been paid or duly provided for (or commencing on and including November 5, 2010, if no interest has been paid or duly provided for) and ending on and including the day preceding such Interest Payment Date. Interest on the Notes will be computed on the basis of a

A - 4

360-day year consisting of twelve 30-day months. Special Interest shall be payable in respect of the Notes in the manner and to the extent specified in the Indenture.

2. METHOD OF PAYMENT

     Except as provided in the Indenture, the Company shall pay interest on the Notes to the Persons who are Holders of record of Notes at the close of business (whether or not a Business Day) on the May 1 and November 1 preceding the applicable Interest Payment Date (each, a “Regular Record Date”). Holders must surrender Notes to a Paying Agent and comply with the other terms of the Indenture to collect the principal amount, Redemption Price, Purchase Price or Change in Control Purchase Price of the Notes, plus, if applicable, accrued and unpaid interest payable as herein provided at maturity, upon redemption by the Company or repurchase at the Holder’s option. The Company shall pay, in money of the United States that at the time of payment is legal tender for payment of public and private debts, all amounts due in cash with respect to the Notes on the dates and in the manner provided in this Note and the Indenture.

3. PAYING AGENT, CONVERSION AGENT AND SECURITY REGISTRAR

     Initially, the Trustee shall act as Paying Agent, Conversion Agent and Security Registrar. The Company hereby initially designates the Corporate Trust Office of the Trustee in the Borough of Manhattan, The City of New York as the office to be maintained by it where this Note may be presented for payment, registration of transfer or exchange, where notices or demands to or upon the Company in respect of this Note or the Indenture may be served and where the Notes may be surrendered for conversion in accordance with the provisions of paragraph 6 hereof and the Indenture. The Company may appoint and change any Paying Agent, Conversion Agent, Security Registrar or co-registrar or approve a change in the office through which any Paying Agent acts without notice, other than notice to the Trustee.

4. REDEMPTION BY THE COMPANY

     On and after November 20, 2015, the Company may redeem the Notes then Outstanding, in whole or in part, at the Redemption Price. Prior to November 20, 2015, if the Company determines it is necessary to redeem the Notes for cash in order to preserve the status of the Company as a real estate investment trust, the Company may redeem the Notes then Outstanding, in whole or in part, at 100% of the principal amount of the Notes to be redeemed plus unpaid interest accrued thereon to but excluding the Redemption Date (the “Redemption Price”). The Notes are not otherwise redeemable at the option of the Company prior to November 20, 2015.

     Notice of any such redemption shall be mailed at least 30 days but not more than 60 days before the Redemption Date to each Holder of Notes to be redeemed at the Holder’s registered address. Notes in denominations larger than $1,000 principal amount may be redeemed in part but only in integral multiples of $1,000 principal amount.

5. REPURCHASE AT OPTION OF HOLDER

     (a) If a Change in Control occurs prior to the Stated Maturity, a Holder shall have the right, at such Holder’s option and subject to the terms and conditions of the Indenture, to require

A - 5

the Company to repurchase all or any of such Holder’s Notes having a principal amount equal to $1,000 or an integral multiple thereof on the date (the “Change in Control Purchase Date”) specified by the Company in the Company Notice (which date shall be no earlier than 15 days and no later than 35 days after the date of such Company Notice) for cash equal to 100% of the principal amount of the Notes to be repurchased plus unpaid interest accrued thereon to but excluding the Change in Control Purchase Date (the “Change in Control Purchase Price”).

     (b) On November 15, 2015, November 15, 2020, November 15, 2025, November 15, 2030 and November 15, 2035 (each, a “Purchase Date”), a Holder shall have the right, at such Holder’s option and subject to the terms and conditions of the Indenture, to require the Company to repurchase all or any of such Holder’s Notes having a principal amount equal to $1,000 or an integral multiple thereof for cash equal to 100% of the principal amount of the Notes to be repurchased plus unpaid interest accrued thereon to but excluding the Purchase Date (the “Purchase Price”).

     (c) Holders have the right to withdraw any Purchase Notice or Change in Control Purchase Notice by delivery to the Paying Agent of a written notice of withdrawal in accordance with the provisions of the Indenture.

     (d) If the Paying Agent holds, in accordance with the terms of the Indenture, money sufficient to pay the Purchase Price or Change in Control Purchase Price of such Notes on the Purchase Date or Change in Control Purchase Date, as the case may be, then, on and after such date, such Notes shall cease to be Outstanding and interest on such Notes shall cease to accrue, and all other rights of the Holder shall terminate (other than the right to receive the Purchase Price or Change in Control Purchase Price upon delivery or transfer of the Notes).

6. CONVERSION

     The Notes shall be convertible into the consideration specified in the Indenture at such times, upon compliance with such conditions and upon the terms set forth in the Indenture.

     The initial Conversion Rate shall be 61.0361 Common Shares per $1,000 principal amount of Notes, subject to adjustment in certain circumstances as specified in the Indenture. Notes tendered for conversion by a Holder after the close of business on any Regular Record Date for an interest payment and on or prior to the corresponding Interest Payment Date must be accompanied by payment of an amount equal to the interest that such Holder is to receive on such Notes on such Interest Payment Date; provided, however, that no such payment shall be required (1) if such Notes have been called for redemption on a Redemption Date that is after such Regular Record Date and on or prior to such Interest Payment Date, or (2) with respect to overdue interest, if any overdue interest exists at the time of conversion with respect to such Notes.

     The Conversion Rate applicable to each Note a notice of conversion in respect of which is received by the Conversion Agent from and including the Effective Date of a Change in Control resulting from a transaction described in clauses (1) or (2) of the definition of Change in Control up to and including the 30th Business Day following the Effective Date of such Change in Control shall be increased by the number of Additional Shares specified in the Indenture.

A - 6

     To convert this Note, the Holder must (a) complete and manually sign the irrevocable conversion notice set forth below (or complete and manually sign a facsimile of such notice) and deliver such notice to the Conversion Agent at the office maintained by the Conversion Agent for such purpose, (b) if this Note is in certificated form, surrender such Note to the Conversion Agent, (c) furnish appropriate endorsements and transfer documents if required by the Conversion Agent, the Company or the Trustee and (d) pay any transfer or similar tax, if required. The date on which the Holder satisfies all such requirements shall be deemed to be the date on which this Note shall have been surrendered for conversion.

     If the Holder has delivered a Purchase Notice or Change in Control Purchase Notice requiring the Company to repurchase all or a portion of this Note pursuant to paragraph 5 hereof, then this Note (or portion hereof subject to such Purchase Notice or Change in Control Purchase Notice) may be converted only if the Purchase Notice or Change in Control Purchase Notice is withdrawn in accordance with the terms of the Indenture.

7. RANKING

     The Notes are senior unsecured obligations of the Company and shall rank pari passu in right of payment with all other senior unsecured indebtedness of the Company from time to time outstanding.

8. DEFAULTED INTEREST

     Except as otherwise specified herein or in the Indenture, any Defaulted Interest on this Note shall forthwith cease to be payable to the Holder hereof on the relevant Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid by the Company as provided for in Section 307 of the Indenture.

A - 7

9. DENOMINATIONS; TRANSFER; CONVERSION

     This Note is issuable only in fully registered form, without coupons, in denominations of $1,000 and integral multiples thereof. This Note may be exchanged for a like aggregate principal amount of Notes of other authorized denominations at the office or agency of the Company in The City of New York, in the manner and subject to the limitations provided herein and in the Indenture, but without the payment of any charge except for any tax or other governmental charge imposed in connection therewith. Upon due presentment for registration of transfer of this Note at the office or agency of the Company in The City of New York, one or more new Notes of authorized denominations in an equal aggregate principal amount will be issued to the transferee in exchange therefor, and bearing such restrictive legends as may be required by the Indenture, but without payment of any charge except for any tax or other governmental charge imposed in connection therewith. In the event of any redemption in part, the Company shall not be required to: (i) issue or register the transfer or exchange of any Note during a period beginning at the opening of business 15 days before any selection of Notes to be redeemed and ending at the close of business on the day of mailing of the relevant notice of redemption, or (ii) register the transfer or exchange of any Note, or portion thereof, called for redemption, except the unredeemed portion of any Note redeemed in part.

10. PERSONS DEEMED OWNERS

     The Holder of this Note may be treated as the owner of this Note for all purposes, and neither the Company or the Trustee nor any authorized agent of the Company or the Trustee shall be affected by any notice to the contrary, except as required by law.

11. MODIFICATION AND AMENDMENT; WAIVER

     The Indenture permits, with certain exceptions as therein provided, the amendment thereof and the modification of the rights and obligations of the Company and the rights of the Holders of the Securities under the Indenture at any time by the Company and the Trustee with the consent of the Holders of a majority in the aggregate principal amount of all Outstanding Securities affected thereby (voting together as a single class). The Indenture also provides that certain amendments or modifications may not be made without the consent of each Holder to be affected thereby. Furthermore, provisions in the Indenture permit the Holders of a majority in the aggregate principal amount of the Outstanding Securities of any series, in certain instances, to waive, on behalf of all of the Holders of Securities of such series, certain past defaults under the Indenture and their consequences. Any such waiver by the Holder of this Note shall be conclusive and binding upon such Holder and upon all future Holders of this Note and other Notes issued upon the registration of transfer hereof or in exchange hereof, or in lieu hereof, whether or not notation of such consent or waiver is made upon this Note.

12. DEFAULTS AND REMEDIES

     If an Event of Default occurs and is continuing, the Trustee, or the Holders of not less than 25% in aggregate principal amount of the Notes at the time Outstanding, may declare the principal amount and any accrued and unpaid interest, of all the Notes to be due and payable or in the manner and with the effect provided in the Indenture.

A - 8

     Notwithstanding the foregoing, to the extent elected by the Company, the sole remedy for an Event of Default relating to the failure to comply with the reporting obligations under Section 2.25 of the Twelfth Supplemental Indenture or for any failure to comply with the requirements of Section 314(a)(1) of the Trust Indenture Act, will for the first 365 days after the occurrence of such an Event of Default consist exclusively of the right to receive special interest on the Notes at an annual rate equal to 0.50% of the principal amount of the Notes, in the manner and with the effect provided in the Indenture.

     Events of Default in respect of the Notes are set forth in Section 501 of the Indenture. Holders may not enforce the Indenture or the Notes except as provided in the Indenture.

13. CONSOLIDATION, MERGER, AND SALE OF ASSETS

     In the event of a consolidation or merger of the Company or a sale, lease or conveyance of all or substantially all of the assets of the Company, as described in ARTICLE EIGHT of the Indenture, the successor entity to the Company shall succeed to and be substituted for the Company and may exercise the rights and powers of the Company under the Indenture, and thereafter, except in the case of a lease, the Company shall be relieved of all obligations and covenants under the Indenture and the Notes.

14. CERTAIN COVENANTS NOT TO APPLY

     The Notes shall not be entitled to the benefits of the covenants set forth in Sections 1004 through 1011, inclusive, and Section 1015 of the Indenture.

15. TRUSTEE AND AGENT DEALINGS WITH THE COMPANY

     The Trustee, Paying Agent, Conversion Agent and Securities Registrar under the Indenture, each in its individual or any other capacity, may become the owner or pledgee of Notes and may otherwise deal with and collect obligations owed to it by the Company or its Affiliates and may otherwise deal with the Company or its Affiliates with the same rights it would have if it were not Trustee, Paying Agent, Conversion Agent or Registrar.

16. CALCULATIONS IN RESPECT OF THE NOTES

     Except as otherwise specifically stated herein or in the Indenture, all calculations to be made in respect of the Notes shall be the obligation of the Company. All calculations made by the Company or its agent as contemplated pursuant to the terms hereof and of the Indenture shall be final and binding on the Company and the Holders absent manifest error. The Company shall provide a schedule of calculations to the Trustee, and the Trustee shall be entitled to rely upon the accuracy of the calculations by the Company without independent verification. The Trustee shall forward calculations made by the Company to any Holder of Notes upon written request.

17. GOVERNING LAW

     The Indenture and this Note shall be governed by and construed in accordance with the laws of the State of Ohio.

A - 9

ASSIGNMENT

FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto                                                                                                                                .

PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE

(Please print or Typewrite Name and Address
Including Postal Zip Code of Assignee)

the within Note and all rights thereunder, and hereby irrevocably constitutes and appoints

to transfer said Note on the books of the Company, with full power of substitution in the premises.

Dated:                                            

Signature Guaranteed
NOTICE: Signature must be guaranteed by an eligible Guarantor Institution (banks, stockbrokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15.	NOTICE: The signature to this Assignment must correspond with the name as written upon the face of the within Note in every particular, without alteration or enlargement or any change whatever.

A - 10

CONVERSION NOTICE

     To convert this Note as provided in the Indenture, check the box: o

     To convert only part of this Note, state the principal amount to be converted (must be $1,000 or an integral multiple of $1,000): $____________.

     If, in the event the Company delivers Common Shares and you want the stock certificate made out in another Person’s name, fill in the form below:

(Insert assignee’s soc. sec. or tax I.D. no.)

(Print or type assignee’s name, address and zip code)

		Your Signature:
Date:
		(Sign exactly as your name appears on the other side of this Note)
1.Signature	guaranteed by:
By:

¹ Signature must be guaranteed by an eligible Guarantor Institution (banks, stockbrokers, savings and loan associations and credit unions) with membership in an approved signature guarantee medallion program pursuant to Securities and Exchange Commission Rule 17Ad-15.

A - 11

EX-5.1

Exhibit 5.1

JONES DAY

NORTH POINT • 901 LAKESIDE AVENUE • CLEVELAND, OHIO 44114-1190
TELEPHONE: (216) 586-3939 • FACSIMILE: (216) 579-0212

November 5, 2010

Developers Diversified Realty Corporation
3300 Enterprise Parkway
Beachwood, Ohio 44122

Re:  Up to $350,000,000 of 1.75% Convertible Senior Notes due 2040 of Developers Diversified Realty Corporation

Ladies and Gentlemen:

     We have acted as counsel for Developers Diversified Realty Corporation, an Ohio corporation (the “Company”), in connection with the issuance and sale of up to $350,000,000 aggregate principal amount of the Company’s 1.75% Convertible Senior Notes due 2040 (the “Notes”), and the underlying common shares, $0.10 par value per share, of the Company (the “Shares” and, together with the Notes, the “Securities”), issuable upon conversion of the Notes, pursuant to the Terms Agreement, dated as of November 1, 2010, including the Underwriting Agreement attached thereto as Annex A (collectively, the “Underwriting Agreement”), by and among the Company and J.P. Morgan Securities LLC, Goldman, Sachs & Co., Deutsche Bank Securities Inc. and UBS Securities LLC, acting as representatives of the several underwriters named therein (the “Underwriters”). The Notes will be issued pursuant to the Indenture, dated as of May 1, 1994 (as amended, supplemented or otherwise modified through the date hereof, the “Indenture”), by and between the Company and U.S. Bank National Association (as successor to U.S. Bank Trust National Association, as successor to National City Bank), as trustee (the “Trustee”).

     In connection with the opinions expressed herein, we have examined such documents, records and matters of law as we have deemed relevant or necessary for purposes of such opinions. Based on the foregoing, and subject to the further limitations, qualifications and assumptions set forth herein, we are of the opinion that:

     1. The Notes, when they are executed by the Company and authenticated by the Trustee in accordance with the Indenture and issued and delivered to the Underwriters pursuant to the terms of the Underwriting Agreement against payment of the consideration therefor as provided therein, will constitute valid and binding obligations of the Company.

     2. The Shares initially issuable upon conversion of the Notes have been authorized by all necessary corporate action of the Company and, when they are issued upon conversion of the Notes pursuant to the terms and conditions of the Notes and the Indenture, will be validly issued, fully paid and nonassessable.

ATLANTA  •  BEIJING  •  BRUSSELS  •  CHICAGO  •  CLEVELAND  •  COLUMBUS  •  DALLAS  •  FRANKFURT  •  HONG KONG
HOUSTON  •  IRVINE  •  LONDON  •  LOS ANGELES  •  MADRID  •  MENLO PARK  •  MILAN  •  MUNICH  •  NEW DELHI  •  NEW YORK
PARIS  •  PITTSBURGH  •  SAN FRANCISCO  •  SHANGHAI  •  SINGAPORE  •  SYDNEY  •  TAIPEI  •  TOKYO  •  WASHINGTON

Developers Diversified Realty Corporation
November 5, 2010
Page 2 JONES DAY

     In rendering the foregoing opinions, we have assumed that (i) the resolutions authorizing the Company to issue, offer and sell the Securities will be in full force and effect at all times at which any Securities are issued, offered or sold by the Company and (ii) the Company will take no action inconsistent with such resolutions.

     For purposes of the opinion expressed in paragraph 1 above, we also have assumed that (i) the definitive terms of the Notes will be established in accordance with the provisions of the Indenture and (ii) the Trustee has authorized, executed and delivered the Indenture and the Indenture is the valid, binding and enforceable obligation of the Trustee.

     The opinion expressed in paragraph 1 above is limited by bankruptcy, insolvency, reorganization, fraudulent transfer and fraudulent conveyance, voidable preference, moratorium or other similar laws and related regulations and judicial doctrines from time to time in effect relating to or affecting creditors’ rights generally, and by general equitable principles and public policy considerations, whether such principles and considerations are considered in a proceeding at law or at equity.

     The opinions expressed herein are limited to the laws of the State of Ohio as currently in effect, and we express no opinion as to the effect of the laws of any other jurisdiction.

     We hereby consent to the filing of this opinion as Exhibit 5.1 to the Current Report on Form 8-K dated the date hereof filed by the Company and incorporated by reference into the Registration Statement on Form S-3 (Reg. No. 333-162451) (the “Registration Statement”), filed by the Company to effect the registration of the Securities under the Securities Act of 1933 (the “Act”) and to the reference to Jones Day under the caption “Legal Matters” in the prospectus constituting a part of such Registration Statement. In giving such consent, we do not thereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.

Very truly yours,
 

/s/ Jones Day  

EX-8.1

Exhibit 8.1

JONES DAY

77 WEST WACKER • CHICAGO, ILLINOIS 60601-1692
TELEPHONE: (312) 782-3939 • FACSIMILE: (312) 782-8585

November 5, 2010

Developers Diversified Realty Corporation
3300 Enterprise Parkway
Beachwood, Ohio 44122

Re:  Up to $350,000,000 of 1.75% Convertible Senior Notes due 2040

Ladies and Gentlemen:

     We have acted as special tax counsel for Developers Diversified Realty Corporation, an Ohio corporation (the “Company”), in connection with the issuance and sale of up to $350,000,000 aggregate principal amount of the Company’s 1.75% Convertible Senior Notes due 2040 (the “Notes”), and the underlying common shares, $0.10 par value per share, of the Company (the “Shares”), issuable upon conversion of the Notes, pursuant to the Terms Agreement, dated as of November 1, 2010, including the Underwriting Agreement attached thereto as Annex A (collectively, the “Underwriting Agreement”), by and among the Company and J.P. Morgan Securities LLC, Goldman, Sachs & Co., Deutsche Bank Securities Inc. and UBS Securities LLC, acting as representatives of the several underwriters named therein. The Notes will be issued pursuant to the Indenture, dated as of May 1, 1994 (as amended, supplemented or otherwise modified through the date hereof, the “Indenture”), by and between the Company and U.S. Bank National Association (as successor to U.S. Bank Trust National Association, as successor to National City Bank), as trustee. The issuance and sale of the Notes are discussed in the prospectus supplement dated November 1, 2010 (the “Prospectus Supplement”), which supplements the prospectus dated October 13, 2009 (the “Prospectus”). The Prospectus was part of the Company’s Registration Statement No. 333-162451 on Form S-3 (the “Registration Statement”), filed by the Company on October 13, 2009, with the United States Securities and Exchange Commission (the “SEC”) pursuant to the Securities Act of 1933 (the “Act”).

     You have requested our opinion concerning certain federal income tax considerations relating to the Company, including with respect to its election to be taxed as a real estate investment trust under the Internal Revenue Code of 1986, as amended (the “Code”). In connection with our opinion, we have reviewed and are relying upon (i) the Registration Statement (including the exhibits thereto), the Prospectus and the Prospectus Supplement, (ii) the Second Amended and Restated Articles of Incorporation of the Company as in effect on the date hereof, (iii) the Amended Code of Regulations of the Company as in effect on the date hereof, (iv) the Indenture, (v) the Underwriting Agreement and (vi) such other documents, records and instruments that we have deemed necessary or appropriate for purposes of our opinion, and have assumed their accuracy as of the date hereof. For purposes of our review, we have also assumed,

ATLANTA  •  BEIJING  •  BRUSSELS  •  CHICAGO  •  CLEVELAND  •  COLUMBUS  •  DALLAS  •  DUBAI  •  FRANKFURT  •  HONG KONG  •   HOUSTON
IRVINE  •  LONDON  •  LOS ANGELES  •  MADRID  •  MEXICO CITY  •  MILAN  •  MOSCOW  •  MUNICH  •  NEW DELHI  •  NEW YORK  •  PARIS
PITTSBURGH  •  SAN DIEGO  •  SAN FRANCISCO  •  SHANGHAI  •  SILICON VALLEY  •  SINGAPORE  •  SYDNEY  •  TAIPEI  •  TOKYO  •  WASHINGTON

JONES DAY

Developers Diversified Realty Corporation
November 5, 2010
Page 2

with your consent, the authenticity of all documents we have examined as well as the genuineness of signatures and the validity of the indicated capacity of each party executing a document. In addition, we have relied upon the factual representations contained in a certificate, dated as of the date hereof (the “Officer’s Certificate”), executed by a duly appointed officer of the Company, setting forth certain representations relating to the organization and operation of the Company.

     We have made such investigations of law and fact as we have deemed appropriate as a basis for our opinion. However, for purposes of our opinion, we have not made an independent investigation of the facts set forth in the Officer’s Certificate. Our opinion is conditioned on the accuracy and completeness of the factual representations made in the Officer’s Certificate and in the Registration Statement (including the Prospectus and Prospectus Supplement) and any change or inaccuracy in the factual representations referred to in the Registration Statement (including the Prospectus and Prospectus Supplement) or the Officer’s Certificate may affect our conclusions set forth herein.

     Our opinion is based upon current provisions of the Code, the legislative history thereto, the existing applicable United States federal income tax regulations promulgated or proposed under the Code, published judicial authority and currently effective published rulings and administrative pronouncements of the Internal Revenue Service (the “IRS”), all of which are subject to change at any time, possibly with retroactive effect, and subject to differing interpretations.

     Based upon and subject to the foregoing and the qualifications set forth below, it is our opinion that

(1)

During the period commencing with the Company’s taxable year ended December 31, 1993 through its taxable year ended December 31, 2009, the Company was organized and has operated in conformity with the requirements for qualification and taxation as a real estate investment trust (a “REIT”) under the Code, and the Company’s current and proposed method of operation will enable the Company to continue to meet the requirements for qualification and taxation as a REIT under the Code for its taxable year ending December 31, 2010 and for future taxable years; and

(2)

The statements set forth in the Prospectus Supplement under the caption “Certain U.S. Federal Income Tax Considerations,” to the extent they describe United States federal income tax laws or legal conclusions with respect thereto, are accurate summaries of the matters described therein in all material respects.

JONES DAY

Developers Diversified Realty Corporation
November 5, 2010
Page 3

     Other than as expressly stated above, we express no opinion on any issue relating to the Company or to any investment therein. The qualification and taxation of the Company as a REIT depend upon the ability of the Company to meet on a continuing basis, through actual annual operating and other results, the various requirements under the Code and the Treasury Regulations promulgated thereunder and described in the Prospectus Supplement with regard to, among other things, the sources of its income, the composition of its assets, the level of its distributions to holders of the Company’s shares and the diversity of ownership of the Company’s shares. Jones Day will not review the compliance of the Company with these requirements on a continuing basis. Accordingly, no assurance can be given that the actual results of the operations of the Company, the sources of its income, the nature of its assets, the level of the Company’s distributions to shareholders and the diversity of ownership of the Company’s shares for 2010 and subsequent taxable years will satisfy the requirements under the Code and the applicable Treasury Regulations for qualification and taxation as a REIT.

     In rendering our opinion, we are expressing our views only as to the United States federal income tax laws. We do not undertake to advise you of the effect of changes in matters of law or fact occurring subsequent to the date hereof. This opinion is not binding upon the IRS or the courts. There can be no assurance, and none is hereby given, that the IRS will not take a position contrary to one or more of the positions reflected in the foregoing opinion or that our opinion will be upheld by the courts if challenged by the IRS.

     We hereby consent to the filing of this opinion as Exhibit 8.1 to the Registration Statement filed by the Company to effect registration of the Common Shares under the Act and to the reference to us under the caption “Certain U.S. Federal Income Tax Considerations” in the Prospectus Supplement constituting a part of such Registration Statement. In giving such consent, we do not hereby admit that we are included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the SEC promulgated thereunder.

Very truly yours,
 

/s/ Jones Day