8-K

0001193125-12-493987.txt : 20121207 0001193125-12-493987.hdr.sgml : 20121207 20121206173144 ACCESSION NUMBER: 0001193125-12-493987 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20121204 ITEM INFORMATION: Other Events ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20121207 DATE AS OF CHANGE: 20121206 FILER: COMPANY DATA: COMPANY CONFORMED NAME: DDR CORP CENTRAL INDEX KEY: 0000894315 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 341723097 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-11690 FILM NUMBER: 121247617 BUSINESS ADDRESS: STREET 1: 3300 ENTERPRISE PARKWAY CITY: BEACHWOOD STATE: OH ZIP: 44122 BUSINESS PHONE: 2167555500 MAIL ADDRESS: STREET 1: 3300 ENTERPRISE PARKWAY CITY: BEACHWOOD STATE: OH ZIP: 44122 FORMER COMPANY: FORMER CONFORMED NAME: DEVELOPERS DIVERSIFIED REALTY CORP DATE OF NAME CHANGE: 19940218 8-K 1 d446809d8k.htm 8-K 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): December 4, 2012

DDR Corp.

(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 (see General Instruction A.2. below):

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

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

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

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

Item 8.01.

Other Events.

Amended and Restated Sales Agency Financing Agreements

On December 4, 2012, DDR Corp. (the “Company”) amended and restated its separate Sales Agency Financing Agreements, each dated October 4, 2012 (such amended and restated agreements, the “Sales Agreements”), with BNY Mellon Capital Markets, LLC (“BNYMCM”) and KeyBanc Capital Markets Inc. (“KBCM” and, together with BNYMCM, the “Sales Agents”), respectively. The amendments provide that, in addition to the issuance and sale of its common shares, par value $0.10 per share (“Common Shares”), through the Sales Agents, the Company may also enter into forward sale agreements under separate Master Forward Sale Agreements (as defined below) and related supplemental confirmations, between the Company and (1) an affiliate of BNYMCM or (2) KBCM (in such capacity, a “Forward Purchaser”). In connection with each such forward sale agreement, the relevant Forward Purchaser will, at the Company’s request, borrow from third parties and, through the relevant Sales Agent, sell a number of Common Shares equal to the number of Common Shares underlying such forward sale agreement to hedge such forward sale agreement.

In connection with each forward sale agreement, the relevant Sales Agent will receive, in the form of a reduced initial forward sale price, selling commissions at a mutually agreed rate that will not exceed, but may be lower than, 2.0% of the volume weighted average of the sales prices of all borrowed Common Shares sold during the applicable period by it as an agent for the relevant Forward Purchaser.

Master Forward Sale Agreements

On December 4, 2012, the Company entered into separate Master Confirmations for Forward Stock Sale Transactions (the “Master Forward Sale Agreements”) with The Bank of New York Mellon and KBCM, respectively, as Forward Purchasers. Under the terms of the Master Forward Sale Agreements, the Company may from time to time enter into one or more supplemental confirmations. In connection with each supplemental confirmation, the relevant Forward Purchaser will, at the Company’s request, borrow from third parties and, through the relevant Sales Agent, sell a number of Common Shares equal to the number of Common Shares underlying such forward sale agreement to hedge such forward sale agreement.

The initial forward sale price per share under each forward sale agreement will equal the product of (1) an amount equal to one minus the applicable selling commission and (2) the volume weighted average price per share at which the borrowed Common Shares were sold pursuant to the relevant Sales Agreement by the relevant Sales Agent to hedge the relevant Forward Purchaser’s exposure under such forward sale agreement. Thereafter, the initial forward sale price will be subject to the price adjustment provisions of the relevant forward sale agreement. If the Company elects to physically settle any forward sale agreement by delivering Common Shares, the Company will receive an amount of cash from the relevant Forward Purchaser equal to the product of the initial forward sale price per share under such forward sale agreement and the number of Common Shares underlying such forward sale agreement, subject to the price adjustment and other provisions of such forward sale agreement. The forward sale agreements, the maximum terms of which may not exceed six months, will provide that the initial forward sale price, as well as the sales prices used to calculate the initial forward sale price, will be subject to adjustment based on a floating interest rate factor equal to the federal funds rate less a spread. In addition, the initial forward sale price will be subject to decrease on certain dates specified in the relevant forward sale agreement by the amount per share of quarterly dividends the Company currently expects to declare during the term of such forward sale agreement. If the federal funds rate is less than the spread on any day, the interest rate factor will result in a daily reduction of the forward sale price.

Except under the circumstances described below, the Company has the right, in lieu of physical settlement of any forward sale agreement, to elect cash or net share settlement of such forward sale agreement. If the Company elects cash or net share settlement of any forward sale agreement, the relevant Forward Purchaser or one of its affiliates will purchase Common Shares in secondary market transactions over an unwind period to:

•

deliver Common Shares to stock lenders in order to unwind such Forward Purchaser’s hedge (after taking into consideration any Common Shares to be delivered by the Company to such Forward Purchaser, in the case of net share settlement); and

•

in the case of net share settlement, deliver Common Shares to the Company in settlement of such forward sale agreement.

If the price of the Common Shares at which these purchases are made is below the relevant forward sale price, such Forward Purchaser will pay the Company such difference in cash (if the Company elects to cash settle) or deliver Common Shares to the Company having a market value equal to such difference (if the Company elects to net share settle). If the price of the Common Shares at which these purchases are made exceeds the relevant forward sale price, the Company will pay such Forward Purchaser an amount in cash equal to such difference (if the Company elects to cash settle) or the Company will deliver to such Forward Purchaser a number of Common Shares having a market value equal to such difference (if the Company elects to net share settle). Any such difference could be significant. In addition, these purchases of Common Shares by such Forward Purchaser or one of its affiliates could cause the price of the Common Shares to increase over time, thereby increasing the number of Common Shares or amount of cash the Company owes to such Forward Purchaser upon net share or cash settlement or decreasing the number of Common Shares or amount of cash the Forward Purchaser would owe to the Company upon cash or net share settlement.

A Forward Purchaser will have the right to accelerate each forward sale agreement that it enters into with the Company and to require the Company to physically settle on a date specified by such Forward Purchaser if (1) it or its affiliate is unable to hedge (or maintain a hedge of) its exposure under such forward sale agreement after using commercially reasonable efforts because (x) insufficient amounts of Common Shares have been made available for borrowing by share lenders or (y) such Forward Purchaser or its affiliate would incur a stock loan cost in excess of a specified threshold, (2) the Company declares any dividend or distribution on the Common Shares payable in (a) cash in excess of a specified amount, (b) securities of another company, or (c) any other type of securities (other than the Common Shares), rights, warrants or other assets, (3) an event is announced that if consummated would result in a specified extraordinary event (including certain mergers, as well as certain events involving the Company’s nationalization or delisting of the Common Shares) or (4) certain other events of default or termination events occur, including, among other things, any material misrepresentation made in connection with such forward sale agreement, the Company’s bankruptcy or a change in law (each as more fully described in each forward sale agreement). A Forward Purchaser’s decision to exercise its right to require the Company to settle any forward sale agreement will be made irrespective of the Company’s interests, including its need for capital. In such cases, the Company could be required to issue and deliver Common Shares under the terms of the physical settlement provisions of any such forward sale agreement irrespective of its capital needs, which would result in dilution to the Company’s earnings per share and return on equity.

Item 9.01.

Financial Statements and Exhibits.

(d) Exhibits


Exhibit Number		Description

1.1		Amended and Restated Sales Agency Financing Agreement, dated December 4, 2012, among the Company, BNY Mellon Capital Markets, LLC and The Bank of New York Mellon
1.2		Amended and Restated Sales Agency Financing Agreement, dated December 4, 2012, between the Company and KeyBanc Capital Markets Inc., as sales agent and forward purchaser
1.3		Master Confirmation for Forward Stock Sale Transactions, dated December 4, 2012, between the Company and The Bank of New York Mellon
1.4		Master Confirmation for Forward Stock Sale Transactions, dated December 4, 2012, between the Company and KeyBanc Capital Markets Inc.

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.


DDR CORP.

By:	/s/ David J. Oakes
	Name:	David J. Oakes, CFA
	Title:	Senior Executive Vice President & Chief Financial Officer

Date: December 6, 2012

EXHIBIT INDEX


Exhibit Number		Description

1.1		Amended and Restated Sales Agency Financing Agreement, dated December 4, 2012, among DDR Corp., BNY Mellon Capital Markets, LLC and The Bank of New York Mellon
1.2		Amended and Restated Sales Agency Financing Agreement, dated December 4, 2012, between DDR Corp. and KeyBanc Capital Markets Inc., as sales agent and forward purchaser
1.3		Master Confirmation for Forward Stock Sale Transactions, dated December 4, 2012, between DDR Corp. and The Bank of New York Mellon
1.4		Master Confirmation for Forward Stock Sale Transactions, dated December 4, 2012, between DDR Corp. and KeyBanc Capital Markets Inc.

EX-1.1 2 d446809dex11.htm EX-1.1 EX-1.1

Exhibit 1.1

EXECUTION COPY

AMENDED AND RESTATED SALES AGENCY FINANCING AGREEMENT

Amended and Restated Sales Agency Financing Agreement (this “Agreement”), dated as of December 4, 2012, among DDR CORP., an Ohio corporation (the “Company”), BNY MELLON CAPITAL MARKETS, LLC, a registered broker-dealer organized under the laws of Delaware (in its capacity as agent for the Company in connection with the offering and sale of any Issuance Shares hereunder, “BNYMCM” and in its capacity as agent for the Forward Purchaser in connection with the offering and sale of any Forward Hedge Shares hereunder, the “Forward Seller”), and THE BANK OF NEW YORK MELLON (as counterparty under any Forward Contract, the “Forward Purchaser”).

W I T N E S S E T H:

WHEREAS, the Company and BNYMCM entered into a Sales Agency Financing Agreement dated October 2, 2012 (the “Initial Agreement”);

WHEREAS, the Company and BNYMCM desire to amended and restate the Initial Agreement in its entirety;

WHEREAS, the Company has authorized and proposes to issue and sell, in the manner contemplated by this Agreement, Shares with an aggregate Sales Price of up to $200,000,000 (including any Shares sold under the Initial Agreement prior to the date hereof) upon the terms and subject to the conditions contained herein;

WHEREAS, BNYMCM has been appointed by the Company as its agent to sell the Issuance Shares and agrees to use its commercially reasonable efforts to sell the Issuance Shares offered by the Company upon the terms and subject to the conditions contained herein;

WHEREAS, the Forward Seller has been appointed by the Forward Purchaser as its agent to sell the Forward Hedge Shares and agrees with the Company and the Forward Purchaser to use its commercially reasonable efforts to sell the Forward Hedge Shares to be borrowed by the Forward Purchaser and offered by the Company upon the terms and subject to the conditions contained herein; and

WHEREAS, the Company has also entered into an amended and restated sales agency financing agreement (the “Alternative Sales Agency Agreement”), dated as of even date herewith, with KeyBanc Capital Markets Inc. (in its capacity as sales agent, forward seller and forward purchaser thereunder, the “Alternative Sales Agent”), for the issuance (in the case of the Issuance Shares) or borrowing (in the case of Forward Hedge Shares) and sale from time to time through the Alternative Sales Agent of Shares on the terms set forth in the Alternative Sales Agency Agreement. This Agreement and the Alternative Sales Agency Agreement are collectively referred to herein as the “Sales Agency Agreements.” The aggregate Sales Price of Shares to be sold pursuant to the Sales Agency Agreements shall not exceed the Maximum Program Amount.

NOW THEREFORE, in consideration of the premises, representations, warranties, covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound hereby, the parties hereto agree as follows:

ARTICLE I

DEFINITIONS

Section 1.01 Certain Definitions. For purposes of this Agreement, capitalized terms used herein and not otherwise defined shall have the following respective meanings:

“Actual Sold Forward Amount” means, for any Forward Hedge Selling Period for any Forward, the number of Forward Hedge Shares that the Forward Seller has sold during such Forward Hedge Selling Period.

“Actual Sold Issuance Amount” means, for any Issuance Selling Period for any Issuance, the number of Issuance Shares that BNYMCM has sold during such Issuance Selling Period.

“Affiliate” of a Person means another Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such first- mentioned Person. The term “control” (including the terms “controlling,” “controlled by” and “under common control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.

“Agreement” has the meaning set forth in the introductory paragraph of this Agreement.

“Alternative Sales Agency Agreement” has the meaning set forth in the recitals to this Agreement.

“Alternative Sales Agent” has the meaning set forth in the recitals to this Agreement.

“Anti-Money Laundering Laws” has the meaning set forth in Section 3.31.

“Applicable Time” means the time of sale of any Shares pursuant to this Agreement.

“BNYMCM” has the meaning set forth in the introductory paragraph of this Agreement.

“Closing” has the meaning set forth in Section 2.02.

“Closing Date” means the date on which the Closing occurs.

“Code” has the meaning set forth in Section 3.15.

“Code of Regulations” has the meaning set forth in Section 3.13.

“Comfort Letter Trigger Event” has the meaning set forth in Section 4.08.

“Commission” means the United States Securities and Exchange Commission.

“Commitment Period” means the period commencing on the Closing Date and expiring on the earliest to occur of (x) the date on which BNYMCM, the Forward Seller and the Alternative Sales Agent, in the aggregate, shall have sold the Maximum Program Amount pursuant to the Sales Agency Agreements, (y) the date this Agreement is terminated pursuant to Article VII and (z) the third anniversary of the Closing Date.

“Common Shares” shall mean the Company’s common shares, $0.10 par value per share.

“Company” has the meaning set forth in the introductory paragraph of this Agreement.

“Controlling Persons” has the meaning set forth in Section 6.01.

“Defects” has the meaning set forth in Section 3.20.

“Effective Date” means the date and time as of which the Original Registration Statement and each amendment thereto (including amendments filed for the purpose of complying with Section 10(a)(3) of the Securities Act) became or become effective, including each deemed effective date with respect to BNYMCM pursuant to Rule 430B(f)(2) under the Securities Act.

“EDGAR” has the meaning set forth in Section 4.05.

“Entity” has the meaning set forth in Section 3.32.

“Environmental Laws” has the meaning set forth in Section 3.23.

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

“FINRA” has the meaning set forth in Section 5.01(f).

“Floor Price” means the minimum price set by the Company in the Transaction Notice below which BNYMCM (in the case of an Issuance) or the Forward Seller (in the case of a Forward) shall not sell Issuance Shares or Forward Hedge Shares, as the case may be, during the applicable Selling Period, which may be adjusted by the Company at any time during the Selling Period and which in no event shall be less than $2.00 without the prior written consent of BNYMCM, which may be withheld in BNYMCM’s sole discretion.

“Forward” means each occasion on which the Company elects to exercise its right to deliver a Transaction Notice specifying that it relates to a “Forward” and requiring the Forward Seller to use its commercially reasonable efforts to sell, on behalf of the Company, the Forward Hedge Shares as specified in such Transaction Notice, subject to the terms and conditions of this Agreement.

“Forward Contract” means, for each Forward, the contract evidencing such Forward between the Company and the Forward Purchaser, which shall be comprised of the Master Forward Confirmation and the Supplemental Confirmation (as defined in the Master Forward Confirmation) for such Forward.

“Forward Date” means any Trading Day during the Commitment Period that a Transaction Notice specifying that it relates to a “Forward” is deemed delivered pursuant to Section 2.03(b) hereof.

“Forward Hedge Amount” means the aggregate Sales Price of the Forward Hedge Shares to be sold by the Forward Seller with respect to any Forward as specified in the Transaction Notice for such Forward, which may not exceed $50,000,000 without the prior written consent of the Forward Seller, which consent may be withheld in the Forward Seller’s sole discretion.

“Forward Hedge Price” means, for any Forward Contract, the product of (x) an amount equal to one (1) minus the Forward Hedge Selling Commission Rate for such Forward Contract; and (ii) the “Volume-Weighted Hedge Price” (as defined in the Master Forward Confirmation) for such Forward Contract.

“Forward Hedge Selling Commission” means, for any Forward Contract, the product of (x) the Forward Hedge Selling Commission Rate for such Forward Contract and (y) the “Volume-Weighted Hedge Price” (as defined in the Master Forward Confirmation) for such Forward Contract.

“Forward Hedge Selling Commission Rate” means, for any Forward Contract, a rate mutually agreed to between the Company and the Forward Seller, not to exceed 2.0%.

“Forward Hedge Selling Period” means the period of one to 20 consecutive Trading Days (as determined by the Company in the Company’s sole discretion and specified in the applicable Transaction Notice specifying that it relates to a “Forward”) following the Trading Day on which such Transaction Notice is delivered or deemed to be delivered pursuant to Section 2.03(b) hereof.

“Forward Hedge Settlement Date” means the third (3rd) Trading Day immediately following the sale of any Forward Hedge Shares pursuant to this Agreement.

“Forward Hedge Shares” means all Common Shares borrowed by the Forward Purchaser and offered and sold by the Forward Seller in connection with any Forward that has occurred or may occur in accordance with the terms and conditions of this Agreement. Where the context requires, the term “Forward Hedge Shares” as used herein shall include the definition of the same under the Alternative Sales Agency Agreement.

“Forward Purchaser” has the meaning set forth in the introductory paragraph of this Agreement.

“Forward Seller” has the meaning set forth in the introductory paragraph of this Agreement.

“Free Writing Prospectus” has the meaning set forth in Section 2.05.

“GAAP” has the meaning set forth in Section 3.06.

“Hazardous Materials” has the meaning set forth in Section 3.23.

“Indemnified Party” has the meaning set forth in Section 6.03.

“Indemnifying Party” has the meaning set forth in Section 6.03.

“Initial Agreement” has the meaning set forth in the recitals to this Agreement.

“Issuance” means each occasion the Company elects to exercise its right to deliver a Transaction Notice that does not involve a Forward and that specifies that it relates to an “Issuance” and requires BNYMCM to use its commercially reasonable efforts to sell the Issuance Shares as specified in such Transaction Notice, subject to the terms and conditions of this Agreement.

“Issuance Amount” means the aggregate Sales Price of the Issuance Shares to be sold by BNYMCM with respect to any Issuance as specified in the Transaction Notice for such Issuance, which may not exceed $100,000,000 without the prior written consent of BNYMCM, which may be withheld in BNYMCM’s sole discretion.

“Issuance Date” means any Trading Day during the Commitment Period that a Transaction Notice specifying that it relates to an “Issuance” is delivered or deemed to be delivered pursuant to Section 2.03(b).

“Issuance Price” means the Sales Price less the Issuance Selling Commission.

“Issuance Selling Commission” means a mutually agreed rate, not to exceed 2.0% of the Sales Price of Issuance Shares sold during a Selling Period.

“Issuance Selling Period” means the period of one to 20 consecutive Trading Days (as determined by the Company in the Company’s sole discretion and specified in the applicable Transaction Notice specifying that it relates to an “Issuance”) following the Trading Day on which a Transaction Notice specifying that it relates to an “Issuance” is delivered or deemed to be delivered pursuant to Section 2.03(b).

“Issuance Settlement Date” means the third business day following each Trading Day during the applicable Issuance Selling Period, when the Company shall deliver to BNYMCM the amount of Issuance Shares sold on such Trading Day and BNYMCM shall deliver to the Company the Issuance Price received on such sales.

“Issuance Shares” means all Common Shares issued or issuable pursuant to an Issuance that has occurred or may occur in accordance with the terms and conditions of this Agreement. Where the context requires, the term “Issuance Shares” as used herein shall include the definition of the same under the Alternative Sales Agency Agreement.

“Master Forward Confirmation” means the Master Confirmation for Forward Stock Sale Transactions, dated as of the date hereof, by and between the Company and the Forward Purchaser.

“Material Adverse Effect” has the meaning set forth in Section 3.05.

“Maximum Program Amount” means Common Shares with an aggregate Sales Price of $200,000,000 (or, if less, the aggregate amount of Shares registered under the Registration Statement).

“OFAC” has the meaning set forth in Section 3.32.

“Officers’ Certificate Trigger Event” has the meaning set forth in Section 4.09.

“Opinion Trigger Event” has the meaning set forth in Section 4.07.

“Original Registration Statement” has the meaning set forth in Section 3.01.

“Person” means an individual or a corporation, partnership, limited liability company, trust, incorporated or unincorporated association, joint venture, joint stock company, governmental authority or other entity of any kind.

“Portfolio Properties” has the meaning set forth in Section 3.20.

“preliminary prospectus” has the meaning set forth in Section 3.01.

“Pricing Supplement” has the meaning set forth in Section 3.01.

“Prior Agreement” means the Sales Agency Financing Agreement, dated April 28, 2011, between the Company and BNYMCM.

“Principal Market” means the New York Stock Exchange.

“Prospectus” has the meaning set forth in Section 3.01.

“Prospectus Supplement” has the meaning set forth in Section 5.01(k).

“Registration Statement” has the meaning set forth in Section 3.01.

“REIT” has the meaning set forth in Section 3.15.

“Representation Date” has the meaning set forth in the introductory paragraph of Article III.

“Sales Agency Agreements” has the meaning set forth in the recitals to this Agreement.

“Sales Price” means, for each Forward or each Issuance hereunder, the actual sale execution price of each Forward Share or Issuance Share, as the case may be, sold by BNYMCM or the Forward Seller on the Principal Market hereunder in the case of ordinary brokers’ transactions, or as otherwise agreed by the parties in other methods of sale. Where the context requires, the term “Sales Price” as used herein shall include the definition of the same under the Alternative Sales Agency Agreement.

“Sanctions” has the meaning set forth in Section 3.32.

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

“Selling Period” means any Forward Hedge Selling Period or any Issuance Selling Period.

“Settlement Date” means any Forward Hedge Settlement Date or any Issuance Settlement Date.

“Shares” means Issuance Shares and Forward Hedge Shares. Where the context requires, the term “Shares” as used herein shall include the definition of the same under the Alternative Sales Agency Agreement.

“Significant Subsidiary” has the meaning set forth in Section 3.09.

“Stand Off Period” has the meaning set forth in Section 4.10.

“Trading Day” means any day which is a trading day on the Principal Market, other than a day on which trading is scheduled to close prior to its regular weekday closing time.

“Transaction” means any Issuance or any Forward.

“Transaction Date” means any Issuance Date or any Forward Date.

“Transaction Notice” means a written notice to BNYMCM or the Forward Seller delivered in accordance with this Agreement in the form attached hereto as Exhibit A.

ARTICLE II

ISSUANCES AND FORWARDS

Section 2.01 (a) Transactions. (i) Upon the terms and subject to the conditions of this Agreement, the Company may issue Issuance Shares through BNYMCM, and BNYMCM shall use its commercially reasonable efforts to sell Issuance Shares, with an aggregate Sales Price of up to the Maximum Program Amount, less the aggregate Sales Price for any Forward Hedge Shares previously sold under the Sales Agency Agreements, based on and in accordance with such number of Transaction Notices, each specifying that it relates to an “Issuance,” as the Company in its sole discretion shall choose to deliver during the Commitment Period until the aggregate Sales Price of the Issuance Shares sold under the Sales Agency Agreements, plus the aggregate Sales Prices for any Forward Hedge Shares previously sold under the Sales Agency Agreements, equals the Maximum Program Amount, or this Agreement is otherwise terminated. Subject to the foregoing and the other terms and conditions of this Agreement, upon the delivery of a Transaction Notice specifying that it relates to an “Issuance,” and unless the sale of the Issuance Shares described therein has been suspended, cancelled or otherwise terminated in accordance with the terms of this Agreement, BNYMCM will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares up to the amount specified in such Transaction Notice into the Principal Market, and otherwise in accordance with the terms of such Transaction Notice. BNYMCM will provide written

confirmation to the Company no later than the opening of the Trading Day next following the Trading Day on which it has made sales of Issuance Shares hereunder setting forth the portion of the Actual Sold Issuance Amount for such Trading Day, the corresponding Sales Price and the Issuance Price payable to the Company in respect thereof. BNYMCM may sell Issuance Shares in the manner described in Section 2.01(b). The Company acknowledges and agrees that (A) there can be no assurance that BNYMCM will be successful in selling Issuance Shares and (B) BNYMCM will incur no liability or obligation to the Company or any other Person if it does not sell Issuance Shares for any reason other than a failure by BNYMCM to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares as required under this Section 2.01. In acting hereunder, BNYMCM will be acting as agent for the Company and not as principal.

(ii) In addition, upon the terms and subject to the conditions of this Agreement and the Master Forward Confirmation, the Forward Purchaser may borrow, offer and sell Forward Hedge Shares through the Forward Seller to hedge each Forward, and the Forward Seller shall use its commercially reasonable efforts to sell, on behalf of the Company, Forward Hedge Shares with an aggregate Sales Price of up to the Maximum Program Amount, less the aggregate Sales Price for any Issuance Shares previously sold under the Sales Agency Agreements, based on and in accordance with such number of Transaction Notices, each specifying that it relates to a “Forward,” as the Company shall choose to deliver during the Commitment Period until the aggregate Sales Price of the Forward Hedge Shares sold under the Sales Agency Agreements, plus the aggregate Sales Prices for any Issuance Shares previously sold under the Sales Agency Agreements, equals the Maximum Program Amount or this Agreement is otherwise terminated. Subject to the foregoing and the other terms and conditions of this Agreement and the Master Forward Confirmation, upon the delivery of a Transaction Notice specifying that it relates to a “Forward,” and unless the sale of the Forward Hedge Shares described therein has been suspended or otherwise terminated in accordance with the terms of this Agreement or the Master Forward Confirmation, the Forward Purchaser will use its commercially reasonable efforts to borrow Forward Hedge Shares up to the amount specified and the Forward Seller will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell, on behalf of the Company, such Forward Hedge Shares into the Principal Market, and otherwise in accordance with the terms of such Transaction Notice. The Forward Seller will provide written confirmation to the Company and the Forward Purchaser no later than the opening of the Trading Day next following each Trading Day on which it has made sales of Forward Hedge Shares hereunder setting forth the portion of the Actual Sold Forward Amount sold on such Trading Day, the corresponding Sales Price and the Forward Hedge Price payable to the Forward Purchaser in respect thereof. Each of the Company and the Forward Purchaser acknowledges and agrees that: (A) there can be no assurance that the Forward Purchaser will be successful in borrowing or that the Forward Seller will be successful in selling Forward Hedge Shares; (B) the Forward Seller will incur no liability or obligation to the Company, the Forward Purchasers or any other Person if it does not sell Forward Hedge Shares borrowed by the Forward Purchaser for any reason other than a failure by the Forward Seller to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell, on behalf of the Company, such Forward Hedge Shares as required under this Section 2.01 and (C) the Forward Purchaser will incur no liability or obligation to the Company, the Forward Seller or any other Person if it does not borrow Forward Hedge Shares for any reason other than a failure by the Forward Purchaser to use its commercially reasonable efforts to borrow such Forward Hedge Shares as

required under this Section 2.01. In acting hereunder, the Forward Seller will be acting as agent for the Forward Purchaser and not as principal. No later than the opening of the Trading Day next following the last Trading Day of each Forward Hedge Selling Period (or, if earlier, the date on which any Forward Hedge Selling Period is suspended or terminated pursuant to Section 5.03), the Forward Purchaser shall execute and deliver to the Company a “Supplemental Confirmation” in respect of the Forward for such Forward Hedge Selling Period, which “Supplemental Confirmation” shall set forth the “Trade Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the last Trading Day of such Forward Hedge Selling Period), the “Effective Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the date one Settlement Cycle (as such term is defined in the Master Forward Confirmation) immediately following the last Trading Day of such Forward Hedge Selling Period), the initial number of “Base Shares” for such Forward (which shall be the Actual Sold Forward Amount for such Forward Hedge Selling Period), the “Maturity Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the date that follows the last Trading Day of such Forward Hedge Selling Period by the number of days or months set forth opposite the caption “Term” in the Transaction Notice for such Forward, which number of days or months shall in no event be less than 10 days nor more than six months), the number of Forward Hedge Shares sold on each Trading Day of the Forward Hedge Selling Period for such Forward, the Sales Prices of the Forward Hedge Shares sold on each Trading Day of the Forward Hedge Selling Period for such Forward, the “Forward Price Reduction Dates” for such Forward (which shall be each of the dates set forth below the caption “Forward Price Reduction Dates” in the Transaction Notice for such Forward) and the “Forward Price Reduction Amounts” corresponding to such Forward Price Reduction Dates (which shall be each amount set forth opposite each “Forward Price Reduction Date” and below the caption “Forward Price Reduction Amounts” in the Transaction Notice for such Forward) and the “Initial Forward Price” for such Forward. Notwithstanding anything herein to the contrary, (x) in no event shall the Forward Purchaser be required to borrow any Forward Hedge Shares to the extent it (or its affiliate) would incur a stock loan cost of more than 45 basis points per annum and (y) the Forward Purchaser shall in no event be deemed to have failed to use its commercially reasonable efforts to borrow any Forward Hedge Shares if the Forward Purchaser fails to borrow any Forward Hedge Shares because it (or its affiliate) would incur a stock loan cost of more than 45 basis points per annum.

(b) Method of Offer and Sale. The Shares may be offered and sold (i) in privately negotiated transactions (if and only if the parties hereto have so agreed in writing) or (ii) by any other method or payment permitted by law deemed to be an “at the market offering” as defined in Rule 415 under the Securities Act, including sales made directly on the Principal Market or sales made to or through a market maker or through an electronic communications network. Nothing in this Agreement shall be deemed to require any party to agree to the method of offer and sale specified in clause (i) above, and any party may withhold its consent thereto in such party’s sole discretion.

(c) Transactions. Upon the terms and subject to the conditions set forth herein, on any Trading Day as provided in Section 2.03(b) during the Commitment Period on which the conditions set forth in Sections 5.01 and 5.02 have been satisfied, the Company may exercise its right to call for an Issuance by the delivery of a Transaction Notice specifying that it relates to an “Issuance,” executed by the Chief Executive Officer, the President, the Chief Financial Officer,

the Chief Investment Officer, any Senior Executive Vice President or the Senior Vice President of Capital Markets of the Company, to BNYMCM. The number of Issuance Shares that BNYMCM shall use its commercially reasonable efforts to sell pursuant to such Issuance shall have an aggregate Sales Price equal to the Issuance Amount. Each Issuance will be settled on the applicable Settlement Date following the Issuance Date.

Upon the terms and subject to the conditions set forth herein, on any Trading Day as provided in Section 2.03(b) during the Commitment Period on which the conditions set forth in Sections 5.01 and 5.02 have been satisfied, the Company may exercise its right to call for a Forward by the delivery of a Transaction Notice specifying that it relates to a “Forward,” executed by the Chief Executive Officer, the President, the Chief Financial Officer, the Chief Investment Officer, any Senior Executive Vice President or the Senior Vice President of Capital Markets of the Company, to the Forward Seller and the Forward Purchaser. The number of Forward Hedge Shares that the Forward Purchaser shall use its commercially reasonable efforts to borrow and that the Forward Seller shall use its commercially reasonable efforts to sell pursuant to such Forward shall have an aggregate Sales Price equal to the Forward Hedge Amount. Each sale of Forward Hedge Shares will be settled as between the Forward Seller and the Forward Purchaser on each applicable Forward Hedge Settlement Date following the relevant Forward Date.

Section 2.02 Effectiveness. The effectiveness of this Agreement (the “Closing”) shall be deemed to take place concurrently with the execution and delivery of this Agreement by the parties hereto and the completion of the closing transactions set forth in the immediately following sentence. At the Closing, the following closing transactions shall take place, each of which shall be deemed to occur simultaneously with the Closing: (i) the Company shall deliver to BNYMCM and the Forward Seller a certificate executed by the Secretary of the Company, signing in such capacity, dated the Closing Date and (A) certifying that attached thereto are true and complete copies of the resolutions duly adopted by the Board of Directors of the Company or an authorized committee or subcommittee thereof authorizing the execution and delivery of this Agreement, the Master Forward Confirmation and the consummation of the transactions contemplated hereby and thereby, which authorization shall be in full force and effect on and as of the date of such certificate, and (B) certifying and attesting to the office, incumbency, due authority and specimen signatures of each Person who executed this Agreement and the Master Forward Confirmation for or on behalf of the Company; (ii) the Company shall deliver to BNYMCM and the Forward Seller a certificate executed by (A) the President and Chief Executive Officer or the Senior Executive Vice President and Chief Financial Officer or any Senior Executive Vice President or the Chief Accounting Officer of the Company and (B) the President and Chief Executive Officer or the Senior Executive Vice President and Chief Financial Officer or any Senior Executive Vice President or the Chief Accounting Officer (in each case, only if such officer had not executed the certificate pursuant to clause (ii)(A) above) or the Senior Vice President of Capital Markets of the Company, signing in such respective capacities, dated the Closing Date, confirming that the representations and warranties of the Company contained in this Agreement and the Master Forward Confirmation are true and correct and that the Company has performed, in all material respects, all of its obligations hereunder to be performed on or prior to the Closing Date and as to the matters set forth in Section 5.01(a) hereof; (iii) Jones Day, counsel to the Company, shall deliver to BNYMCM and the Forward Seller an opinion, dated the Closing Date and addressed to BNYMCM and the Forward Seller,

substantially in the form of Exhibit B; (iv) Sidley Austin LLP, counsel to BNYMCM and the Alternative Sales Agent, shall deliver to BNYMCM and the Forward Seller an opinion, dated the Closing Date and addressed to BNYMCM and the Forward Seller, in form and substance satisfactory to BNYMCM and the Forward Seller (and the Company shall have furnished to such counsel such documents as it may request for the purpose of enabling such counsel to pass upon such matters, and, in giving its opinion, such counsel may rely as to matters involving the laws of the State of Ohio upon the opinion of even date of Jones Day); and (v) PricewaterhouseCoopers LLP shall deliver to BNYMCM and the Forward Seller a letter, dated the Closing Date, in form and substance reasonably satisfactory to BNYMCM and the Forward Seller.

Section 2.03 Mechanics of Issuances.

(a) Transaction Notice. On any Trading Day during the Commitment Period, the Company may deliver a Transaction Notice to BNYMCM (in the case of an Issuance) or the Forward Seller and the Forward Purchaser (in the case of a Forward), subject to the satisfaction of the conditions set forth in Sections 5.01 and 5.02; provided, however, that (i) the Issuance Amount or Forward Hedge Amount, as the case may be, for each Transaction as designated by the Company in the applicable Transaction Notice shall in no event exceed $100,000,000 for any Issuance or $50,000,000 for any Forward without the prior written consent of BNYMCM or the Forward Seller, which may be withheld in BNYMCM’s or the Forward Seller’s sole discretion and (ii) notwithstanding anything in this Agreement or the Master Forward Confirmation to the contrary, neither the Forward Purchaser, BNYMCM nor the Forward Seller shall have any further obligations with respect to any Transaction Notice if and to the extent the aggregate Sales Price of the Shares sold pursuant thereto, together with the aggregate Sales Price of the Shares previously sold under the Sales Agency Agreements, shall exceed the Maximum Program Amount. The Company shall have the right, in its sole discretion, to amend at any time and from time to time any Transaction Notice; provided, however, that (i) the Company may not amend the Issuance Amount or Forward Hedge Amount, as the case may be, if such amended Issuance Amount or Forward Hedge Amount, as applicable, is less than the Actual Sold Issuance Amount or Actual Sold Forward Amount, as the case may be, as of the date of such amendment; (ii) the Company shall not have the right to amend a Transaction Notice specifying that it relates to a “Forward” after the related “Supplemental Confirmation” has been delivered to the Company; and (iii) no reduction in the Floor Price shall cause any sales of Shares executed pursuant to such Transaction Notice prior to the date of receipt of such amendment to be a breach of the terms hereof.

(b) Delivery of Transaction Notice. A Transaction Notice or any amendment thereto shall be deemed delivered on the Trading Day that it is received by facsimile or e-mail (and the Company confirms such delivery by telephone (including voicemail message)) by BNYMCM (in the case of a Transaction Notice specifying that it relates to an “Issuance”) or by the Forward Seller and the Forward Purchaser (in the case of a Transaction Notice specifying that it relates to a “Forward”). No Transaction Notice or any amendment thereto may be delivered other than on a Trading Day during the Commitment Period, no Transaction Notice may be delivered during an Issuance Selling Period or Forward Hedge Selling Period specified in a previously delivered Transaction Notice, no more than one Transaction Notice may be delivered on any single Trading Day and no Transaction Notice specifying that it relates to a “Forward” may be delivered if an ex-dividend date or ex-date, as applicable for any dividend or distribution payable

by the Company on the Common Shares is scheduled to occur during the period from, but excluding, the first scheduled Trading Day of the related Forward Hedge Selling Period to, and including, the last scheduled Trading Day of such Forward Hedge Selling Period.

(c) Floor Price. Neither BNYMCM nor the Forward Seller shall sell Issuance Shares or Forward Hedge Shares, as the case may be, below the Floor Price during the applicable Selling Period, and, subject to clause (iii) of the proviso to the last sentence of Section 2.3(a), such Floor Price may be adjusted by the Company at any time during the applicable Selling Period upon notice to BNYMCM or the Forward Seller and confirmation by BNYMCM or the Forward Seller to the Company.

(d) Reserved.

(e) Trading Guidelines. Each of BNYMCM and the Forward Seller may, to the extent permitted under the Securities Act and the Exchange Act, purchase and sell Common Shares for its own account while this Agreement is in effect provided that (i) no such purchase or sale shall take place while a Transaction Notice under this Agreement is in effect (except to the extent (x) BNYMCM may engage in sales of Issuance Shares purchased or deemed purchased from the Company as a “riskless principal” or in a similar capacity, (y) the Forward Seller may engage in sales of Forward Hedge Shares borrowed by the Forward Seller, as agent for the Forward Purchaser; and (z) nothing in this Agreement shall prohibit the Forward Purchaser or its affiliates from engaging in such transactions as are necessary or desirable to unwind the Forward Purchaser’s hedge in connection with any settlement under the Master Forward Confirmation), (ii) in no circumstances shall BNYMCM or the Forward Seller have a short position in the Common Shares for its own account and (iii) the Company shall not be deemed to have authorized or consented to any such purchases or sales by BNYMCM or the Forward Seller. In addition, the Company hereby acknowledges and agrees that BNYMCM’s or the Forward Seller’s Affiliates, subject to compliance with Regulation M under the Exchange Act, may make markets in the Common Shares or other securities of the Company, in connection with which they may buy and sell, as agent or principal, for long or short account, Common Shares or other securities of the Company, at the same time BNYMCM or the Forward Seller is acting as agent pursuant to this Agreement; provided, however, that the Company shall not be deemed to have authorized or consented to any such purchases or sales by BNYMCM’s or the Forward Seller’s Affiliates.

Section 2.04 (a) Settlements. Subject to the provisions of Article V, on or before each Issuance Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer the Issuance Shares being sold by crediting BNYMCM or its designee’s account at The Depository Trust Company through its Deposit/Withdrawal At Custodian (“DWAC”) System, or by such other means of delivery as may be mutually agreed upon by the parties hereto and, upon receipt of such Issuance Shares, which in all cases shall be freely tradeable, transferable, registered shares in good deliverable form, BNYMCM will deliver the related Issuance Price in same day funds delivered to an account designated by the Company prior to the Issuance Settlement Date. If the Company defaults in its obligation to deliver Issuance Shares on an Issuance Settlement Date, the Company agrees that it will (i) hold BNYMCM harmless against any loss, claim, damage or expense (including, without limitation, penalties, interest and reasonable legal fees and expenses), as incurred, arising out of or in connection with such default

by the Company, and (ii) pay to BNYMCM any Issuance Selling Commission to which it would otherwise have been entitled absent such default. The parties hereto acknowledge and agree that, in performing its obligations under this Agreement, BNYMCM may borrow Common Shares from stock lenders, and may use the Issuance Shares to settle or close out such borrowings.

(b) Subject to the provisions of Article V, on or before each Forward Hedge Settlement Date, the Forward Purchaser shall, or shall cause its transfer agent to, electronically transfer the Forward Hedge Shares being sold by crediting the Forward Seller or its designee’s account at The Depository Trust Company through DWAC, or by such other means of delivery as may be mutually agreed upon by the Forward Seller and the Forward Purchaser and, upon receipt of such Forward Hedge Shares, which in all cases shall be freely tradable and transferable, the Forward Seller shall deliver the related aggregate Forward Hedge Price in same day funds delivered to an account designated by the Forward Purchaser prior to the relevant Forward Hedge Settlement Date.

Section 2.05 Use of Free Writing Prospectus. Neither the Company nor BNYMCM nor the Forward Seller has prepared, used, referred to or distributed, or will prepare, use, refer to or distribute, without the other party’s prior written consent, any “written communication” that constitutes a “free writing prospectus” as such terms are defined in Rule 405 under the Securities Act with respect to the offering contemplated by this Agreement (any such free writing prospectus being referred to herein as a “Free Writing Prospectus”).

Section 2.06 Alternative Sales Agent. The Company agrees that any offer to sell, any solicitation of an offer to buy or any sales of Shares shall be effected by or through only one of BNYMCM and the Alternative Sales Agent on any single given day, but in no event more than one of BNYMCM and the Alternative Sales Agent, and the Company shall in no event request that BNYMCM and the Alternative Sales Agent sell Shares on the same day.

Section 2.07 Material Non-Public Information. Notwithstanding any other provision of this Agreement, BNYMCM and the Forward Seller shall not be obligated to sell any Shares hereunder during any period in which it reasonably believes that the Company is in possession of material non-public information.

Section 2.08 Exemption from Regulation M. If BNYMCM or the Forward Seller reasonably believes that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act (applicable to securities with an average daily trading volume value of at least $1,000,000 that are issued by an issuer whose common equity securities have a public float value of at least $150,000,000) are not satisfied with respect to the Company or the Common Shares, it shall promptly notify the Company of such belief and sales of Common Shares under the Sales Agency Agreements shall be suspended until that or other exemptive provisions have been satisfied in the reasonable judgment of the Company and BNYMCM. If, either immediately prior to delivery of a Transaction Notice or during a Selling Period, the Company reasonably believes that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Common Shares, it shall promptly notify BNYMCM and the Forward Seller of such belief and sales of Common Shares under the Sales Agency Agreements and the Master Forward Confirmation shall be suspended until that or other exemptive provisions have been satisfied in the reasonable judgment of the Company and BNYMCM.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company represents and warrants to, and agrees with, BNYMCM, the Forward Purchaser and the Forward Seller, that as of the Closing Date, as of each Transaction Date, as of each Settlement Date and as of any time that the Registration Statement or the Prospectus shall be amended or supplemented (each of the times referenced above is referred to herein as a “Representation Date”), except as may be disclosed in the Prospectus (including any documents incorporated by reference therein and any supplements thereto) on or before a Representation Date:

Section 3.01 Listing, Filing and Effectiveness of Registration Statement. The Common Shares are registered pursuant to Section 12(b) of the Exchange Act and are currently listed and quoted on the Principal Market under the trading symbol “DDR”, and the Shares have been or will have been listed on the Principal Market prior to delivery of the first Transaction Notice hereunder. The Company (i) meets the requirements for the use of Form S-3 under the Securities Act and the rules and regulations thereunder for the registration of the transactions contemplated by this Agreement and the Master Forward Confirmation and (ii) has been subject to the requirements of Section 12 of the Exchange Act and has timely filed all the material required to be filed pursuant to Sections 13 and 14 of the Exchange Act for a period of more than 12 calendar months (other than a report that is required solely pursuant to Item 1.01, 1.02, 2.03, 2.04, 2.05, 2.06, 4.02(a) or 5.02(e) of Form 8-K).

The Company has filed with the Commission an automatic shelf registration statement on Form S-3 (No. 333-184221), including the related preliminary prospectus or prospectuses. Such registration statement registers the issuance and sale by the Company of the Shares under the Securities Act. Such registration statement (and any further registration statements that may be filed by the Company for the purpose of registering additional Shares to be sold pursuant to this Agreement and the Master Forward Confirmation or for the purpose of complying with Rule 415(a)(5) under the Securities Act with respect to the registration of the Shares under the Securities Act), including any information deemed to be a part thereof pursuant to Rule 430B under the Securities Act, including all documents incorporated or deemed to be incorporated therein by reference pursuant to Item 12 of Form S-3 under the Securities Act as from time to time amended or supplemented, is herein referred to as the “Registration Statement,” and the prospectus constituting a part of such registration statement, together with the Prospectus Supplement and any pricing supplement filed with the Commission pursuant to Rule 424(b) under the Securities Act relating to the Shares (each, a “Pricing Supplement”), including all documents incorporated or deemed to be incorporated therein by reference pursuant to Item 12 of Form S-3 under the Securities Act, in each case, as from time to time amended or supplemented, is referred to herein as the “Prospectus,” except that if any revised prospectus is provided to BNYMCM or the Forward Seller by the Company for use in connection with the offering of the Shares that is not required to be filed by the Company pursuant to Rule 424(b) under the

Securities Act, the term “Prospectus” shall refer to such revised prospectus from and after the time it is first provided to BNYMCM or the Forward Seller for such use. The Registration Statement at the time it originally became effective is herein called the “Original Registration Statement.” The term “preliminary prospectus” means any preliminary form of the Prospectus. As used in this Agreement, the terms “amendment” or “supplement” when applied to the Registration Statement or the Prospectus shall be deemed to include the filing by the Company with the Commission of any document under the Exchange Act after the date hereof that is or is deemed to be incorporated therein by reference.

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 of the Company and schedules and other information of the Company which is or is deemed to be incorporated by reference in or otherwise deemed by the Securities Act 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 Exchange Act which is or is deemed to be incorporated by reference in or otherwise deemed by the rules and regulations under the Securities Act 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.

Section 3.02 WKSI; Ineligible Issuer Status and Automatic Shelf Registration Statement. (i) At the time of filing the Original Registration Statement, (ii) at the time of the most recent amendment thereto for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus), (iii) at the time the Company or any person acting on its behalf (within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer relating to the Shares in reliance on the exemption of Rule 163 under the Securities Act, and (iv) at the date hereof, the Company was and is a “well-known seasoned issuer” as defined in Rule 405 under the Securities Act. The Registration Statement is an “automatic shelf registration statement,” as defined in Rule 405 under the Securities Act, that initially became effective within three years of the date hereof, and the Shares, 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 Securities 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) under the Securities Act) of the Shares, and at the date hereof, the Company was not and is not an “ineligible issuer,” as defined in Rule 405 under the Securities Act.

462(e) under the Securities Act. No stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted, are pending or, to the knowledge of the Company, have been threatened.

At each deemed effective date with respect to BNYMCM or the Forward Seller pursuant to Rule 430B(f)(2) under the Securities Act, at the Closing Date, at each Applicable Time within the applicable Selling Period, at the Issuance Date or Forward Date with respect to the applicable Selling Period and at each Settlement Date with respect to the applicable Selling Period, the Registration Statement, as amended as of such date, complied, complies and will comply in all material respects with the requirements of the Securities Act and the rules and regulations thereunder, 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 (except that the foregoing shall not apply to those parts of the Registration Statement that constitute the Statements of Eligibility (Forms T-1) under the Trust Indenture Act of 1939). As of the Closing Date, as of the date of any filing of a Pricing Supplement pursuant to Rule 424(b) under the Securities Act and as of each Applicable Time within the applicable Selling Period, the Prospectus, as amended as of such date, conformed, conforms and will conform in all material respects to the requirements of the Securities Act and the rules and regulations thereunder and, as of such respective dates, did not, does not and will not contain an untrue statement of a material fact or omit to state a material fact necessary 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 3.03 shall not apply to statements in or omissions from the Registration Statement or any post-effective amendment thereto or the Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information furnished to the Company in writing by BNYMCM expressly for use in the Registration Statement or any post-effective amendment thereto or the Prospectus or any amendment or supplement thereto.

Section 3.04 Incorporated Documents. The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, 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 Exchange Act and the rules and regulations thereunder, as applicable, and none of such documents contained or will contain at such time an untrue statement of a material fact or omitted or will omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading.

Section 3.05 No Material Adverse Change in Business. Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise provided therein, (i) 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”), (ii) 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 (iii) except for regular

quarterly distributions on the 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.

Section 3.06 Financial Statements. The consolidated financial statements and supporting schedules of the Company included in, or incorporated by reference into, the Registration Statement 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 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 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 of the Company included in, or incorporated by reference into, the Registration Statement 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 of the Company included in, or incorporated by reference into, the Registration Statement and the Prospectus. The statements of certain revenues and expenses of the properties acquired or proposed to be acquired by the Company, if any, included in, or incorporated by reference into, the Registration Statement 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 Exchange 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) of the Company included in, or incorporated by reference into, the Registration Statement 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. To the knowledge of the Company, the consolidated financial statements of Sonae Sierra Brazil BV Sarl and its consolidated subsidiaries incorporated by reference in the Registration Statement and the Prospectus (in each case, other than any pro forma financial information and projections), if any, present fairly, in all material respects, the consolidated financial position of Sonae Sierra Brazil BV Sarl 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 and the Prospectus, such financial statements have been prepared in all material respects in conformity with International Financial Reporting Standards as issued by the International Accounting Standards Board applied on a consistent basis and otherwise have been prepared in all material respects in accordance with the financial statement requirements of Rule 3-09 under the Exchange Act. All disclosures contained in the Registration Statement 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 Exchange Act and Item 10 of Regulation S-K under the Securities Act, to the extent applicable. The interactive data in eXtensible Business Reporting Language included or incorporated by reference in the Registration Statement and the Prospectus fairly presents the information called for in all material respects and has been prepared in all material respects in accordance with the Commission’s rules and guidelines applicable thereto.

Section 3.07 Independent Accountants. Each of PricewaterhouseCoopers LLP, and, to the knowledge of the Company, Deloitte Touche Tohmatsu Auditores Independentes, which has expressed its opinion on the audited financial statements and related schedules included in, or incorporated by reference into, the Registration Statement and the Prospectus, is an independent registered public accounting firm within the meaning of the Securities Act and the applicable rules and regulations thereunder.

Section 3.08 Good Standing of the Company. 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 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.

Section 3.09 Subsidiaries. Each significant subsidiary, as defined in Rule 405 under the Securities Act and for purposes of such definition, the most recently completed fiscal year 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 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 be duly incorporated or formed, validly existing, have such power or authority or be so qualified would not have a Material Adverse Effect.

Section 3.10 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 have been duly authorized and validly issued, are fully paid and non-assessable and are owned directly by the Company, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity, except for such security interests, mortgages, pledges, liens, encumbrances, claims or equities that would not have a Material Adverse Effect.

Section 3.11 Shares. The Shares (in an amount up to the Maximum Program Amount) have been, or will have been at the time such Shares are issued, duly authorized by the Company for issuance and sale pursuant to this Agreement, the Master Forward Confirmation or the Alternative Sales Agency Agreement, as the case may be, and, when issued and delivered pursuant to this Agreement and the Master Forward Confirmation against payment of the consideration therefor specified herein or therein, will be validly issued, fully paid and non-assessable. The Shares conform in all material respects to all statements relating thereto contained in the Prospectus. The issuance of the Shares is not subject to preemptive or other similar rights.

Section 3.12 Litigation. 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 consummation of this Agreement and the Master Forward Confirmation or the transactions contemplated herein or therein.

Section 3.13 No Conflicts. Neither the Company nor any of its Significant Subsidiaries is (i) in violation of its respective Articles of Incorporation, or certificate of limited partnership or other organizational document, as the case may be, or the Company’s Amended and Restated Code of Regulations (the “Code of Regulations”), or bylaws, operating agreement or partnership agreement, as the case may be, or (ii) 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 Master Forward Confirmation and each “Supplemental Confirmation” under the Master Forward Confirmation 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, charge or encumbrance upon any properties 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 properties or assets of the Company or any of its Significant Subsidiaries is subject, nor will such action result in any violation of 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 to the best of the Company’s knowledge, any law, administrative regulation or administrative or court order or decree; 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 and the Master Forward Confirmation, except such as has been obtained or as may be required under the Securities Act, the Exchange Act, state securities or blue sky laws or real estate syndication laws in connection with the transactions contemplated hereby and thereby.

Section 3.14 Authorization. The Company has the full right, power and authority to execute and deliver this Agreement, the Master Forward Confirmation and each “Supplemental Confirmation” executed in connection with the Master Forward Confirmation and to perform its obligations hereunder and thereunder; and all corporate action required to be taken for the due and proper authorization, execution and delivery of this Agreement and the Master Forward Confirmation and the consummation of the transactions contemplated hereby and thereby has been duly and validly taken.

Section 3.15 REIT Status. 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 of its most recently completed taxable year and the Company has operated and intends to continue to operate so as to qualify as a REIT thereafter.

Section 3.16 Investment Company Act. Neither the Company nor any of its subsidiaries is, or will be immediately after the consummation of the transactions contemplated by this Agreement and the Master Forward Confirmation, required to be registered as an investment company under the Investment Company Act of 1940, as amended.

Section 3.17 Registration Rights. Except as set forth in the Prospectus, there are no persons with registration or other similar rights to have any securities registered pursuant to the Registration Statement.

Section 3.18 No Stabilization or Manipulation. 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 violation of Regulation M under the Exchange 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 Common Shares.

Section 3.19 Actively-Traded Security. Except under circumstances where the Company has provided BNYMCM and the Forward Seller with the notice required pursuant to Section 2.08 of this Agreement, the Common Shares are an “actively-traded security” exempted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.

Statement 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 (collectively, “Defects”), except where such Defects would not have a Material Adverse Effect; (ii) the joint venture interest in each property described in the Registration Statement 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; (iii) all liens, charges, encumbrances, claims or restrictions on or affecting the properties and assets of the Company or its subsidiaries are disclosed in the Registration Statement and the Prospectus, except for any such interests that would not have a Material Adverse Effect; and (iv) 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.

Section 3.21 Title Insurance. The Company or its subsidiaries have title insurance on each of the Portfolio Properties (except with respect to each property described in the Prospectus as held by the Company through a joint venture) in an amount at least equal to the greater of (i) the cost of acquisition of such Portfolio Property and (ii) 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 Prospectus as held by the Company through a joint venture has title insurance on such property in an amount at least equal to the greater of (i) the cost of acquisition of such Portfolio Property by such joint venture and (ii) 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.

Section 3.22 Mortgages and Deeds of Trust. The notes secured by the mortgages and deeds of trust encumbering the Portfolio Properties (except with respect to each property described in 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.

Section 3.23 Environmental Laws. The Company has no knowledge of (i) 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 (ii) 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 Closing Date, 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.

Section 3.24 Internal Accounting and Other Controls. 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 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.

Section 3.25 Disclosure Controls. 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 Exchange Act) in accordance with the rules and regulations under the Sarbanes-Oxley Act of 2002, the Securities Act and the Exchange Act.

Section 3.26 Absence of Labor Dispute. No labor problem or dispute with the employees of the Company or the 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 and the Prospectus.

Section 3.27 Use of Proceeds. The Company will use the net proceeds from the offering of Shares in the manner specified in the Prospectus under “Use of Proceeds.”

Section 3.28 No Finder’s Fees. Except as provided for in the Sales Agency Agreements, the Company has not incurred (directly or indirectly) nor will it incur, directly or indirectly, any liability for any broker’s, finder’s, financial advisor’s or other similar fee, charge or commission in connection with this Agreement or the Alternative Sales Agency Agreement or the transactions contemplated hereby or thereby.

Section 3.29 Insurance. 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.

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.

Section 3.31 Anti-Money Laundering Laws. The operations of the Company and its subsidiaries are and have been conducted at all times in compliance in all material respects with all applicable financial recordkeeping 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.

Section 3.32 OFAC. (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 a Person that is, or is owned or controlled by a Person that is: (i) the subject of any sanctions (“Sanctions”) 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 any offering of Shares, 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 any offering of Shares, whether as sales agent, 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.

ARTICLE IV

COVENANTS

The Company covenants and agrees during the term of this Agreement and the Master Forward Confirmation with BNYMCM, the Forward Seller and the Forward Purchaser as follows:

Section 4.01 Registration Statement and Prospectus. (i) To make no amendment or supplement to the Registration Statement or the Prospectus (other than (x) an amendment or supplement relating solely to the issuance or offering of securities other than the Shares and (y) by means of a Current Report on Form 8-K filed with the Commission under the Exchange Act and incorporated or deemed to be incorporated by reference in the Registration Statement or the Prospectus; provided, that the Company will give prior written notice to BNYMCM of the intention to file such report and describing the subject matter to be included in such report as soon as reasonably practicable prior to the filing of such report) after the date of delivery of a Transaction Notice and prior to the related Settlement Date at any time prior to having afforded BNYMCM a reasonable opportunity to review and comment thereon; (ii) to prepare, with respect to any Shares to be sold pursuant to this Agreement and the Master Forward Confirmation, a Pricing Supplement with respect to such Shares in a form previously approved by BNYMCM and to file such Pricing Supplement pursuant to Rule 424(b) under the Securities Act within the time period required thereby and to deliver such number of copies of each Pricing Supplement to each exchange or market on which such sales were effected, in each case unless delivery and filing of such a Pricing Supplement is not required by applicable law or by the rules and regulations of the Commission; (iii) to make no amendment or supplement to the Registration Statement or the Prospectus (other than (x) an amendment or supplement relating solely to the issuance or offering of securities other than the Shares and (y) by means of an Annual Report on Form 10-K, a Quarterly Report on Form 10-Q, a Current Report on Form 8-K or a Registration Statement on Form 8-A or any amendments thereto filed with the Commission under the Exchange Act and incorporated or deemed to be incorporated by reference into the Registration Statement or the Prospectus except to the extent required by Section 4.01(i)) at any time prior to having afforded BNYMCM and the Forward Seller a reasonable opportunity to review and comment thereon and to advise BNYMCM and the Forward Seller promptly when any such amendment to the Registration Statement has been filed or has become effective or any such amendment or supplement to the Prospectus has been filed with the Commission; (iv) to file within the time periods required by the Exchange Act all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required under the Securities Act or under the blue sky or securities laws of any jurisdiction in connection with the offering or sale of the Shares, and during such same period to advise BNYMCM and the Forward Seller, promptly after the Company receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus relating to the Shares, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, of any request by the Commission for the amendment or supplement of the Registration Statement or the Prospectus or for additional information relating thereto, or the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus; (v) in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any such prospectus or suspending any such qualification during a Selling Period, to use promptly its commercially reasonable efforts to obtain its withdrawal; in the event any such stop order or such other order is issued outside a Selling Period, the Company will promptly advise BNYMCM and the Forward Seller as to the issuance thereof and as to whether it intends to seek to obtain its withdrawal; and (vi) to pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act

without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (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 or any Pricing Supplement filed pursuant to Rule 424(b)).

If, immediately prior to the third anniversary of the filing of the Original Registration Statement, any of the Shares remain unsold under the Sales Agency Agreements, the Company will, prior to such third anniversary and subject to this Section 4.01, file, if it has not already done so, a new automatic shelf registration statement or shelf registration statement, as applicable, relating to the Shares, and, if such registration statement is not an automatic shelf registration statement, will use its reasonable best efforts to cause such registration statement to be declared effective as soon as practicable, and will take all other reasonable actions necessary or appropriate to permit the offering and sale of Shares to continue as contemplated in the expired registration statement relating to such Shares and the Sales Agency Agreements. References herein to the “Registration Statement” shall include such new automatic shelf registration statement or shelf registration statement, as applicable.

Section 4.02 Blue Sky. To use its commercially reasonable efforts to cause the Shares to be listed on the Principal Market and promptly from time to time to take such action as BNYMCM or the Forward Seller may reasonably request; to cooperate with BNYMCM or the Forward Seller in the qualification of the Shares for offering and sale under the blue sky or securities laws of such jurisdictions within the United States of America and its territories as BNYMCM or the Forward Seller may reasonably request; and to use its commercially reasonable efforts to comply with such laws so as to permit the continuance of sales and dealings therein for as long as may be necessary to complete the sale of the Shares; provided, however, that in connection therewith the Company shall not be required to qualify as a foreign corporation, to file a general consent to service of process or to subject itself to taxation in respect of doing business in any jurisdiction.

Section 4.03 Copies of Registration Statement and Prospectus. To furnish BNYMCM with copies (which may be electronic copies) of the Registration Statement and each amendment thereto, and with copies of the Prospectus and each amendment or supplement thereto in the form in which it is filed with the Commission pursuant to the Securities Act or Rule 424(b) under the Securities Act, both in such quantities as BNYMCM may reasonably request from time to time; and, if the delivery of a prospectus is required under the Securities Act or under the blue sky or securities laws of any jurisdiction at any time on or prior to the applicable Settlement Date for any Selling Period in connection with the offering or sale of the Shares and if at such time any event has occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it is necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify BNYMCM and to request that BNYMCM suspend offers to sell Shares (and, if so notified, BNYMCM shall cease such offers as soon as practicable); and if the Company decides to amend or supplement the Registration Statement or

the Prospectus as then amended or supplemented, to advise BNYMCM promptly by telephone (with confirmation in writing or e-mail) and to prepare and cause to be filed promptly with the Commission an amendment or supplement to the Registration Statement or the Prospectus as then amended or supplemented that will correct such statement or omission or effect such compliance; provided, however, that if during such same period BNYMCM is required to deliver a prospectus in respect of transactions in the Shares, the Company shall promptly prepare and file with the Commission such an amendment or supplement.

Section 4.04 Rule 158. To make generally available to its holders of the Shares as soon as practicable, but in any event not later than 18 months after the effective date of the Registration Statement (as defined in Rule 158(c) under the Securities Act), an earnings statement of the Company and its consolidated subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations of the Commission promulgated thereunder (including the option of the Company to file periodic reports in order to make generally available such earnings statement, to the extent that it is required to file such reports under Section 13 or Section 15(d) of the Exchange Act, pursuant to Rule 158 under the Securities Act).

Section 4.05 Information. Except where such reports, communications, financial statements or other information is available on the Commission’s Electronic Data Gathering Analysis and Retrieval (“EDGAR”) system, to furnish to BNYMCM (in paper or electronic format) copies of all publicly available reports or other communications (financial or other) furnished by the Company generally to shareholders and filed by the Company with the Commission pursuant to the Exchange Act, and deliver to BNYMCM (in paper or electronic format) (i) promptly after they are available, copies of any publicly available reports and financial statements furnished to or filed by the Company with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional publicly available information concerning the business and financial condition of the Company as BNYMCM may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its shareholders generally or to the Commission).

Section 4.06 Representations and Warranties. That each delivery of a Transaction Notice and each delivery of Shares on a Settlement Date shall be deemed to be (i) an affirmation to BNYMCM or both the Forward Seller and the Forward Purchaser, as the case may be, that the representations and warranties of the Company contained in or made pursuant to this Agreement and the Master Forward Confirmation are true and correct as of the date of such Transaction Notice or of such Settlement Date, as the case may be, as though made at and as of each such date, except as may be disclosed in the Prospectus, and (ii) an undertaking that the Company will advise BNYMCM or both the Forward Seller and the Forward Purchaser, as the case may be, if any of such representations and warranties will not be true and correct as of the Settlement Date for the Shares relating to such Transaction Notice, as though made at and as of each such date (except that such representations and warranties shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented relating to such Shares).

Section 4.07 Opinions of Counsel. That each time the Registration Statement or the Prospectus is amended or supplemented (other than by means of (x) an amendment or

supplement relating solely to the offering of securities other than the Shares, (y) a Pricing Supplement or (z) a Current Report on Form 8-K, unless, in the case of (y) or (z) filed during a Selling Period, reasonably requested by BNYMCM within five days of the filing thereof with the Commission; provided, that, notwithstanding the foregoing, such request must be made prior to the final Settlement Date of the applicable Selling Period), including by means of an Annual Report on Form 10-K or a Quarterly Report on Form 10-Q filed with the Commission under the Exchange Act and incorporated or deemed to be incorporated by reference into the Prospectus (each such amendment or supplement, an “Opinion Trigger Event”), the Company shall at any time selected by the Company on or following the date of such Opinion Trigger Event (except that during a Selling Period or any other period in which a prospectus relating to the Shares is required to be delivered to BNYMCM under the Securities Act, such time shall be as soon as practicable after each Opinion Trigger Event that occurs during such Selling Period) furnish or cause to be furnished to BNYMCM and the Forward Seller a written opinion of Jones Day, counsel to the Company, dated the date of delivery and in form reasonably satisfactory to BNYMCM and the Forward Seller, (i) if such counsel has previously furnished an opinion to the effect set forth in Exhibit B, to the effect that BNYMCM and the Forward Seller may rely on such previously furnished opinion of such counsel to the same extent as though it were dated the date of such letter authorizing reliance (except that the statements in such last opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to such date) or (ii) if such counsel has not previously furnished an opinion to the effect set forth in Exhibit B, of the same tenor as such an opinion of such counsel but modified to relate to the Registration Statement and the Prospectus as amended and supplemented to such date; provided, however, that the Company shall not be obligated to deliver any such opinion unless and until such time as the Company delivers a Transaction Notice or the Opinion Trigger Event occurs during a Selling Period.

Section 4.08 Comfort Letters. That each time the Registration Statement or the Prospectus is amended or supplemented, including by means of an Annual Report on Form 10-K, a Quarterly Report on Form 10-Q or a Current Report on Form 8-K (but only a Current Report on Form 8-K that contains financial statements filed with the Commission under the Exchange Act and incorporated or deemed to be incorporated by reference into the Prospectus), other than an amendment or supplement relating solely to the issuance or offering of securities other than the Shares, in any case to set forth financial information included in or derived from the Company’s financial statements or accounting records (each such amendment or supplement, a “Comfort Letter Trigger Event”), the Company shall at any time selected by the Company on or following the date of such Comfort Letter Trigger Event (except that during a Selling Period or any other period in which a prospectus relating to the Shares is required to be delivered by BNYMCM or the Forward Seller under the Securities Act, such time shall be as soon as practicable after each Comfort Letter Trigger Event that occurs during such Selling Period) cause the independent registered public accounting firm who has audited the financial statements so included or incorporated by reference in the Registration Statement to furnish to BNYMCM and the Forward Seller a letter, dated the date of delivery, in form reasonably satisfactory to BNYMCM and the Forward Seller, of the same tenor as the letter referred to in Section 5.01(g) but modified to relate to the Registration Statement and the Prospectus as amended or supplemented to the date of such letter, with such changes as may be necessary to reflect changes in the financial statements and other information derived from the accounting records of the Company, to the extent such financial statements and other information are available as of a date

not more than five business days prior to the date of such letter; provided, however, that, with respect to any financial information or other matters, such letter may reconfirm as true and correct at such date as though made at and as of such date, rather than repeat, statements with respect to such financial information or other matters made in the letter referred to in Section 5.01(g) that was last furnished to BNYMCM and the Forward Seller; provided, however, that the Company shall not be obligated to deliver any such comfort letter unless and until such time as the Company delivers a Transaction Notice or the Comfort Letter Trigger Event occurs during a Selling Period.

Section 4.09 Officers’ Certificate. That each time the Registration Statement or the Prospectus is amended or supplemented (other than by means of (x) an amendment or supplement relating solely to the offering of securities other than the Shares, (y) a Pricing Supplement or (z) a Current Report on Form 8-K, unless, in the case of (y) or (z) filed during a Selling Period, reasonably requested by BNYMCM or the Forward Seller within five days of the filing thereof with the Commission; provided, that, notwithstanding the foregoing, such request must be made prior to the final Settlement Date of the applicable Selling Period), including by means of an Annual Report on Form 10-K or a Quarterly Report on Form 10-Q filed with the Commission under the Exchange Act and incorporated or deemed to be incorporated by reference into the Prospectus (each such amendment or supplement, an “Officers’ Certificate Trigger Event”), the Company shall at any time selected by the Company on or following the date of such Officers’ Certificate Trigger Event (except that during a Selling Period or any other period in which a prospectus relating to the Shares is required to be delivered by BNYMCM or the Forward Seller under the Securities Act, such time shall be as soon as practicable after each Officers’ Certificate Trigger Event that occurs during such period) furnish or cause to be furnished forthwith to BNYMCM, the Forward Seller and the Forward Purchaser a certificate, dated the date of delivery, in such form and executed by such officers of the Company as is reasonably satisfactory to BNYMCM, the Forward Seller and the Forward Purchaser, of the same tenor as the certificate referred to in Section 2.02(ii) but modified to relate to the Registration Statement and the Prospectus as amended and supplemented to such date; provided, however, that the Company shall not be obligated to deliver any such officers’ certificate unless and until such time as the Company delivers a Transaction Notice or the Officers’ Certificate Trigger Event occurs during a Selling Period.

Section 4.10 Stand Off Agreement. Without the written consent of BNYMCM and the Forward Seller, the Company will not, directly or indirectly, offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Common Shares or securities convertible into or exchangeable for Common Shares (other than Shares hereunder), warrants or any rights to purchase or acquire Common Shares during the period beginning on the first Trading Day specified in any Transaction Notice delivered to BNYMCM or the Forward Seller and the Forward Purchaser, as the case may be, hereunder and ending on the last Settlement Date with respect to Shares sold pursuant to such Transaction Notice (the “Stand Off Period”); provided, however, that such restriction will not be required in connection with the Company’s issuance or sale of (i) Issuance Shares pursuant to any Transaction Notice (or the sale of Forward Hedge Shares by the Forward Seller, on behalf of the Company, pursuant to any Transaction Notice, if applicable), (ii) Common Shares, options to purchase Common Shares or Common Shares issuable upon the exercise of options or other equity awards pursuant to any employee or director share option, incentive or benefit plan, share purchase or ownership plan, long-term incentive

plan, distribution reinvestment plan or other compensation plan of the Company or its subsidiaries, whether currently existing or adopted hereafter, (iii) Common Shares issuable upon conversion of securities or the exercise of warrants, options or other rights disclosed in the Company’s Commission filings, (iv) Common Shares issuable as consideration in connection with acquisitions of business, assets or securities of other Persons and (v) Common Shares issuable by the Company upon settlement of any Forward Contract. For the avoidance of doubt, this Section 4.10 shall not prohibit the sale of Common Shares by the Forward Purchaser.

Section 4.11 Market Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares or (ii) during the Stand Off Period, sell, bid for or purchase the Shares, or pay anyone any compensation for soliciting purchases of the Shares other than BNYMCM, the Forward Seller or the Forward Purchaser; provided, however that this Section 4.11 shall not prohibit the Company from electing to net share or cash settle any Forward Contract.

Section 4.12 Maximum Program Amount. The Company will promptly notify BNYMCM, the Forward Seller and the Alternative Sales Agent when the Maximum Program Amount has been sold pursuant to the Sales Agency Agreements.

Section 4.13 No Dividends. The Company shall not declare any dividend, or cause there to be any distribution, on the Common Shares if the ex-dividend date or ex-date, as applicable, for such dividend or distribution will occur during the period from, but excluding, the first Trading Day of any Forward Hedge Selling Period to, and including, the last Trading Day of such Forward Hedge Selling Period.

ARTICLE V

CONDITIONS TO DELIVERY OF TRANSACTION

NOTICES AND TO SETTLEMENT

Section 5.01 Conditions Precedent to the Right of the Company To Deliver a Transaction Notice and the Obligation of BNYMCM and the Forward Seller to Sell Shares During the Selling Period(s). The right of the Company to deliver a Transaction Notice hereunder is subject to the satisfaction, on the date of delivery of such Transaction Notice, and the obligations of each of BNYMCM to sell Issuance Shares and the Forward Seller to sell, on behalf of the Company, and the Forward Purchaser to borrow the Forward Hedge Shares during the applicable Selling Period is subject to the satisfaction, on the applicable Transaction Date and Settlement Date, of each of the following conditions:

threatened by the Commission; (ii) no other suspension of the use or withdrawal of the effectiveness of the Registration Statement or Prospectus shall exist; (iii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of BNYMCM and the Forward Seller; and (iv) no event specified in Section 4.03 shall have occurred and be continuing without the Company amending or supplementing the Registration Statement or the Prospectus, as the case may be, as provided in Section 4.03. The authorizations referred to in this Agreement and the Master Forward Confirmation shall have been issued and shall be in full force and effect, and such authorizations shall not be the subject of any pending or, to the Company’s knowledge, threatened application for rehearing or petition for modification, and are sufficient to authorize the issuance and sale of the Shares.

(b) Accuracy of the Company’s Representations and Warranties. The representations and warranties of the Company shall be true and correct as of the Closing Date, as of the applicable date referred to in Section 4.09 that is prior to such Transaction Date and the related Settlement Date, as the case may be, and as of each such Transaction Date and the related Settlement Date as though made at such time.

(c) Performance by the Company. The Company shall have performed, satisfied and complied with, in all material respects, all covenants, agreements and conditions required by this Agreement and the Master Forward Confirmation to be performed, satisfied or complied with by the Company at or prior to such date.

(d) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby that prohibits or directly and materially adversely affects any of the transactions contemplated by this Agreement or the Master Forward Confirmation (and, in the case of a Forward, the applicable Forward Contract), and no proceeding shall have been commenced that may have the effect of prohibiting or materially adversely affecting any of the transactions contemplated by this Agreement or the Master Forward Confirmation (and, in the case of a Forward, the applicable Forward Contract).

(e) Material Adverse Changes. Since the Closing Date, no event that had or would reasonably be expected to have a Material Adverse Effect shall have occurred that has not been disclosed in the Registration Statement or the Prospectus (including the documents incorporated by reference therein and any supplements thereto).

fixed, or maximum ranges for prices have been required, by such exchange or by such system or by order of the Commission, FINRA or any other governmental authority, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States; (ii) a general moratorium on commercial banking activities in New York declared by either federal or New York state authorities; or (iii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak or escalation of hostilities or other calamity or crisis involving the United States or the declaration by the United States of a national emergency or war or any change or development involving a prospective change in national or international political, financial or economic conditions, if the effect of any such event specified in this clause (iii) in the sole judgment of BNYMCM or the Forward Purchaser makes it impracticable or inadvisable to proceed with the sale of Shares.

(g) Comfort Letter. The independent registered public accounting firm who has audited the financial statements included or incorporated by reference in the Registration Statement shall have furnished to BNYMCM and the Forward Seller a letter required to be delivered pursuant to Section 4.08 on or before the date on which satisfaction of this condition is determined.

(h) No Defaults. The execution and delivery of this Agreement, the Master Forward Confirmation and each “Supplemental Confirmation” under the Master Forward Confirmation, and the issuance and/or sale of the Shares and the compliance by the Company with all of the provisions hereof and thereof will not result in the Company or any of the Significant Subsidiaries being in default of (whether upon the passage of time, the giving of notice or both) its organizational and other governing documents, or any provision of any security issued by the Company or any of its Significant Subsidiaries, or of any agreement, instrument or other undertaking to which the Company or any of its Significant Subsidiaries is a party or by which it or any of its properties or assets is bound, or the applicable provisions of any law, statute, rule, regulation, order, writ, injunction, judgment or decree of any court or governmental authority to or by which the Company, any of its Significant Subsidiaries or any of their property or assets is bound, in each case which default, either individually or in the aggregate, would reasonably be expected to have a Material Adverse Effect.

(i) Trading Cushion. The Selling Period for any previous Transaction Notice delivered under this Agreement or under the Alternative Sales Agency Agreement (as such terms are defined therein) shall have expired.

(j) Maximum Issuance Amount. In no event may the Company issue a Transaction Notice to sell an Issuance Amount or a Forward Hedge Amount, as the case may be, to the extent that (I) the sum of (x) the Sales Price of the requested Issuance Amount or Forward Hedge Amount, as applicable, plus (y) the aggregate Sales Price of all Shares issued under all previous Issuances and Forwards effected pursuant to this Agreement, together with the aggregate Sales Price of all Shares issued under the Alternative Sales Agency Agreement, would exceed the Maximum Program Amount or (II) the requested Issuance Amount or Forward Hedge Amount, as the case may be, exceeds $100,000,000 for any Issuance and $50,000,000 for any Forward without the prior written consent of BNYMCM or the Forward Seller, as the case may be.

(k) Prospectus Supplement and Pricing Supplement. (i) A supplement or supplements to the prospectus included in the Registration Statement related to the offering and sale of Shares pursuant to this Agreement (a “Prospectus Supplement”), in form and substance to be agreed upon by the parties, setting forth information regarding this Agreement and the Master Forward Confirmation including, without limitation, the Maximum Program Amount, shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the time period required thereby and sufficient copies thereof delivered to BNYMCM and the Forward Seller on or prior to the date of sale of the Issuance Shares or Forward Hedge Shares, as applicable.

(ii) To the extent required by Section 4.01(ii), a Pricing Supplement, in form and substance to be agreed upon by the parties hereto, shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the time period required thereby and sufficient copies thereof delivered to BNYMCM and the Forward Seller on or prior to the date of sale of the Issuance Shares or Forward Hedge Shares, as applicable.

(l) Counsel Opinions. The counsel specified in Section 4.07, or other counsel selected by the Company and reasonably satisfactory to BNYMCM and the Forward Seller, shall have furnished to BNYMCM and the Forward Seller their written opinion required to be delivered pursuant to Section 4.07 on or before the date on which satisfaction of this condition is determined. In addition, Sidley Austin LLP, counsel for BNYMCM and the Forward Seller and the Alternative Sales Agent, or other counsel selected by BNYMCM and the Forward Seller, shall have furnished to BNYMCM and the Forward Seller its written opinion, dated on or before the date of the opinion(s) delivered pursuant to Section 4.07, in form and substance satisfactory to BNYMCM and the Forward Seller and of the same tenor as the opinion referred to in Section 2.02(iv) but modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such opinion; provided, that if such counsel has previously furnished an opinion of the same tenor as the opinion referred to in Section 2.02(iv), such counsel shall have furnished to BNYMCM and the Forward Seller a letter or letters to the effect that BNYMCM and the Forward Seller may rely on such previously furnished opinion of such counsel to the same extent as though it were dated the date of such letter authorizing reliance (except that the statements in such last opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to such date). In connection with the foregoing, 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, and Sidley Austin LLP may rely as to matters involving the laws of the State of Ohio upon the opinion of even date of Jones Day.

(m) Officers’ Certificate. The Company shall have furnished or caused to be furnished to BNYMCM and the Forward Seller an officers’ certificate executed by (A) the President and Chief Executive Officer or the Senior Executive Vice President and Chief Financial Officer or any Senior Executive Vice President or the Chief Accounting Officer of the Company and (B) the President and Chief Executive Officer or the Senior Executive Vice President and Chief Financial Officer or any Senior Executive Vice President or the Chief Accounting Officer (in each case, only if such officer had not executed the certificate pursuant to clause (A) above) or the Senior Vice President of Capital Markets of the Company, signing in such respective capacities, required to be delivered pursuant to Section 4.09 on or before the date on which satisfaction of this condition is determined, as to the matters specified in Section 2.02(ii).

(n) Other Documents. On the Closing Date and prior to each Transaction Date and Settlement Date, BNYMCM, the Forward Purchaser and the Forward Seller and their counsel shall have been furnished with such documents as they may reasonably request in order to evidence the accuracy and completeness of any of the representations or warranties, or the fulfillment of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and/or sale of the Shares as herein contemplated shall be satisfactory in form and substance to BNYMCM, the Forward Seller and the Forward Purchaser and their counsel.

Section 5.02 Documents Required To Be Delivered on each Transaction Date. BNYMCM’s and the Forward Seller’s obligation to sell Shares pursuant to an Issuance or Forward hereunder shall additionally be conditioned upon the delivery to BNYMCM and the Forward Seller on or before the Transaction Date of a certificate in form and substance reasonably satisfactory to BNYMCM and the Forward Seller, executed by the Chief Executive Officer, the President, the Chief Financial Officer, the Chief Investment Officer, any Senior Executive Vice President or the Senior Vice President of Capital Markets of the Company, to the effect that all conditions to the delivery of such Transaction Notice shall have been satisfied as at the date of such certificate (which certificate shall not be required if the foregoing representations shall be set forth in the Transaction Notice).

Section 5.03 Suspension of Sales. The Company, the Forward Purchaser, BNYMCM or the Forward Seller may, upon notice to the other parties in writing, including by e-mail or by telephone (confirmed immediately by verifiable facsimile transmission), suspend any sale of Shares, and the applicable Selling Period shall immediately terminate; provided, however, that such suspension and termination shall not affect or impair either party’s obligations with respect to any Shares sold hereunder prior to the receipt of such notice (and, in the case of any Forward Hedge Shares, the resulting Forward Contract). The Company agrees that no such notice shall be effective against the Forward Purchaser, BNYMCM or the Forward Seller unless it is made to one of the individuals named on Schedule 1 annexed hereto, as such Schedule may be amended from time to time. Each of the Forward Purchaser, BNYMCM and the Forward Seller agrees that no such notice shall be effective against the Company unless it is made to one of the individuals named on Schedule 1 annexed hereto, as such Schedule 1 may be amended from time to time.

ARTICLE VI

INDEMNIFICATION AND CONTRIBUTION

Section 6.01 Indemnification by the Company. The Company agrees to indemnify and hold harmless each of the Forward Purchaser, BNYMCM, and the Forward Seller, each of their respective officers, directors, employees and agents, and each Person, if any, who controls the Forward Purchaser, BNYMCM or the Forward Seller within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, together with each such Person’s respective officers, directors, employees and agents (collectively, the “Controlling Persons”), from and against any and all losses, claims, damages or liabilities, and any action or proceeding in respect

thereof, to which the Forward Purchaser, BNYMCM, or the Forward Seller, as the case may be, and each of their officers, directors, employees and agents, and any such Controlling Person may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Prospectus, any Free Writing Prospectus or any other prospectus relating to the Shares, or any amendment or supplement thereto, or any preliminary prospectus, or arise out of, or are based upon, any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus or any amendment or supplement thereto or any Free Writing Prospectus or preliminary prospectus, in light of the circumstances in which they were made) not misleading, except insofar as the same are made in reliance upon and in conformity with information related to the Forward Purchaser, BNYMCM or the Forward Seller or their plan of distribution furnished in writing to the Company by or on behalf of the Forward Purchaser, BNYMCM or the Forward Seller, as the case may be, expressly for use therein, and the Company shall reimburse the Forward Purchaser, BNYMCM or the Forward Seller, as the case may be, their officers, directors, employees and agents, and each Controlling Person for any reasonable legal and other expenses incurred thereby in investigating or defending or preparing to defend against any such losses, claims, damages or liabilities, or actions or proceedings in respect thereof, as such expenses are incurred.

Section 6.02 Indemnification by the Forward Purchaser, BNYMCM and the Forward Seller. Each of the Forward Purchaser, BNYMCM and the Forward Seller agrees to indemnify and hold harmless the Company, its officers, directors, employees and agents and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, together with each such Person’s respective officers, directors, employees and agents, from and against any losses, claims, damages or liabilities, and any action or proceeding in respect thereof, to which the Company, its officers, directors, employees or agents, any such controlling Person and any officer, director, employee or agent of such controlling Person may become subject under the Securities Act, the Exchange Act or otherwise, insofar as losses, claims, damages or liabilities (or action or proceeding in respect thereof) arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Prospectus, any Free Writing Prospectus or any other prospectus relating to the Shares, or any amendment or supplement thereto, or any preliminary prospectus, or arise out of, or are based upon, any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, any Free Writing Prospectus or any other prospectus relating to the Shares, or any amendment or supplement thereto or any preliminary prospectus, in light of the circumstances in which they were made) not misleading in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with written information related to the Forward Purchaser, BNYMCM and the Forward Seller or its respective plan of distribution furnished to the Company by or on behalf of the Forward Purchaser, BNYMCM and the Forward Seller, as the case may be, expressly for use therein and the Forward Purchaser, BNYMCM and the Forward Seller shall reimburse the Company, its officers, directors, employees and agents and each Controlling Person of the Company for any reasonable legal and other expenses incurred thereby in investigating or defending or preparing to defend against any such losses, claims, damages or liabilities, or actions or proceedings in respect thereof, as such expenses are incurred.

Section 6.03 Conduct of Indemnification Proceedings. Promptly after receipt by any Person (an “Indemnified Party”) of notice of any claim or the commencement of any action in respect of which indemnity may be sought pursuant to Section 6.01 or 6.02, the Indemnified Party shall, if a claim in respect thereof is to be made against the Person against whom such indemnity may be sought (an “Indemnifying Party”), notify the Indemnifying Party in writing of the claim or the commencement of such action. In the event an Indemnified Party shall fail to give such notice as provided in this Section 6.03 and the Indemnifying Party to whom notice was not given was unaware of the proceeding to which such notice would have related and was materially prejudiced by the failure to give such notice, the indemnification provided for in Section 6.01 or 6.02 shall be reduced to the extent of any actual prejudice resulting from such failure to so notify the Indemnifying Party; provided, that the failure to notify the Indemnifying Party shall not relieve it from any liability that it may have to an Indemnified Party otherwise than under Section 6.01 or 6.02. If any such claim or action shall be brought against an Indemnified Party, the Indemnifying Party shall be entitled to participate therein, and, to the extent that it wishes, jointly with any other similarly notified Indemnifying Party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such claim or action, the Indemnifying Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation; provided, that the Indemnified Party shall have the right to employ separate counsel to represent the Indemnified Party, but the fees and expenses of such counsel shall be for the account of such Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (ii) such Indemnified Party reasonably concludes that representation of both parties by the same counsel would be inappropriate due to actual or potential conflicts of interest with the Company, it being understood, however, that the Indemnifying Party shall not, in connection with any one such claim or action or separate but substantially similar or related claims or actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for all Indemnified Parties or for fees and expenses that are not reasonable. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any claim or pending or threatened proceeding in respect of which the Indemnified Party is or could have been a party and indemnification could have been sought hereunder by such Indemnified Party unless such settlement includes an unconditional release of each such Indemnified Party from all losses, claims, damages or liabilities arising out of such claim or proceeding and such settlement does not admit or constitute an admission of fault, guilt, failure to act or culpability on the part of any such Indemnified Party. Whether or not the defense of any claim or action is assumed by an Indemnifying Party, such Indemnifying Party will not be subject to any liability for any settlement made without its prior written consent, which consent will not be unreasonably withheld.

Section 6.04 Contribution. If for any reason the indemnification provided for in this Article VI is unavailable to the Indemnified Parties in respect of any losses, claims, damages or

liabilities referred to herein, then each Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities among the Company, on the one hand, and BNYMCM, the Forward Seller and the Forward Purchaser, on the other, in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and BNYMCM, the Forward Seller and the Forward Purchaser, on the other from the offering of the Shares to which such losses, claims, damages or liabilities relate. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each Indemnifying Party shall contribute to such amount paid or payable by such Indemnifying Party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of each of the Company, BNYMCM, the Forward Seller and the Forward Purchaser in connection with such statements or omissions, as well as any other relevant equitable considerations. The relative benefits received by each of the Company, BNYMCM, the Forward Seller and the Forward Purchaser, shall be equal to the sum, for each Transaction under this Agreement, of, (a) in the case of the Company, (x) the Actual Sold Forward Amount for each Forward under this Agreement, multiplied by the Forward Hedge Price for such Forward, and (y) the Actual Sold Issuance Amount for each Issuance under this Agreement, multiplied by the Issuance Price for such Issuance, (b) in the case of BNYMCM, the Actual Sold Issuance Amount for each Issuance under this Agreement, multiplied by the Issuance Selling Commission for such Issuance, (c) in the case of the Forward Seller, the Actual Sold Forward Amount for each Forward under this Agreement, multiplied by the Forward Hedge Selling Commission for such Forward, and (d) in the case of the Forward Purchaser, the net Spread (as such term is defined in the Master Forward Confirmation and net of any related stock borrow costs actually incurred) by such Forward Purchaser for all Forward Contracts executed in connection with this Agreement. The relative fault of the Company, on the one hand, and BNYMCM, the Forward Seller and the Forward Purchaser, 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 each such party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

Each of the Company, BNYMCM, the Forward Seller and the Forward Purchaser agrees that it would not be just and equitable if contribution pursuant to this Section 6.04 were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any reasonable 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 6.04, (i) neither BNYMCM nor the Forward Seller shall in any event be required to contribute any amount in excess of the aggregate Issuance Selling Commissions or the aggregate Forward Hedge Selling Commissions, as the case may be, received by it under this Agreement and (ii) the Forward Purchaser shall in no event be required to contribute any amount in excess of the net Spread for all Forward Contracts entered into pursuant to this Agreement. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 6.04, each

officer, director, employee and agent of the Forward Purchaser, BNYMCM or the Forward Seller, and each Controlling Person of each, shall have the same rights to contribution as the Forward Purchaser, BNYMCM or the Forward Seller, as the case may be, and each director of the Company, each officer of the Company who signed the Registration Statement, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company. The obligations of the Company, BNYMCM, the Forward Seller and the Forward Purchaser under this Article VI shall be in addition to any liability that each may otherwise have.

ARTICLE VII

TERMINATION

Section 7.01 Term. Subject to the provisions of this Article VII, the term of this Agreement shall run until the end of the Commitment Period.

Section 7.02 Termination by BNYMCM. BNYMCM may terminate the right of the Company to effect any Issuances or Forwards under this Agreement upon one Trading Day’s notice if any of the following events shall occur:

(a)

The Company or any Significant Subsidiary shall make an assignment for the benefit of creditors, or apply for or consent to the appointment of a receiver or trustee for it or for all or substantially all of its properties or business; or such a receiver or trustee shall otherwise be appointed;

(b)

Bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings for relief under any bankruptcy law or any law for the relief of debtors shall be instituted by or against the Company or any of its Significant Subsidiaries;

(c)

The Company shall fail to maintain the listing of the Common Shares on the Principal Market;

(d)

Since the Effective Date, there shall have occurred any event, development or state of circumstances or facts that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect; or

(e)

BNYMCM shall have given ten days’ notice of its election to terminate this Agreement, in its sole discretion, at any time.

Section 7.03 Termination by the Company. The Company shall have the right, by giving one Trading Day’s notice as hereinafter specified, to terminate this Agreement in its sole discretion at any time; provided, however, that termination in no event shall be effective prior to settlement of all outstanding sales of Shares under this Agreement. After delivery of such notice, the Company shall no longer have any right to deliver any Transaction Notices hereunder.

Section 7.04 Liability; Provisions that Survive Termination. If this Agreement is terminated pursuant to this Article VII, such termination shall be without liability of any party hereto to any other party hereto except as provided in Section 9.02 and for the Company’s, BNYMCM’s and the Forward Seller’s respective obligations in respect of all prior Transaction Notices; and provided, further, that in any case the provisions of Article VI, Article VIII and Article IX shall survive termination of this Agreement without limitation.

ARTICLE VIII

REPRESENTATIONS AND WARRANTIES TO SURVIVE DELIVERY

All representations and warranties of the Company herein or in certificates delivered pursuant hereto shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of BNYMCM, the Forward Seller or the Forward Purchaser or any of the respective officers, directors, employees and agents and any Controlling Persons, (ii) delivery and acceptance of the Shares and payment therefor, (iii) the settlement of any Forward Contract or (iv) any termination of this Agreement or the Master Forward Confirmation.

ARTICLE IX

MISCELLANEOUS

Section 9.01 Press Releases and Disclosure. The Company may issue a press release describing the material terms of the transactions contemplated hereby as soon as practicable following the Closing Date, and may file with the Commission a Current Report on Form 8-K describing the material terms of the transactions contemplated hereby, and the Company shall consult with BNYMCM prior to making such disclosures, and the parties hereto shall use all commercially reasonable efforts, acting in good faith, to agree upon a text for such disclosures that is reasonably satisfactory to all parties hereto. No party hereto shall issue thereafter any press release or like public statement (including, without limitation, any disclosure required in reports filed with the Commission pursuant to the Exchange Act) related to this Agreement or the Master Forward Confirmation or any of the transactions contemplated hereby or thereby that includes information related to this Agreement or the Master Forward Confirmation or transactions contemplated hereby or thereby that has not been previously disclosed without the prior written approval of the other party hereto, except as may be necessary or appropriate in the opinion of the party seeking to make disclosure to comply with the requirements of applicable law or stock exchange rules. If any such press release or like public statement is so required, the party making such disclosure shall consult with the other party prior to making such disclosure, and the parties shall use all commercially reasonable efforts, acting in good faith, to agree upon a text for such disclosure that is reasonably satisfactory to all parties hereto.

Section 9.02 Expenses. The Company covenants and agrees with BNYMCM, the Forward Seller and the Forward Purchaser that the Company shall pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the preparation, printing and filing of the Registration Statement, the Prospectus and any Pricing Supplements and all other amendments and supplements thereto and the mailing and delivery of copies thereof to BNYMCM and the Forward Seller and the Principal Market; (ii) BNYMCM’s, the Forward Seller’s and the Forward Purchaser’s reasonable documented out-of-pocket expenses (up to, together with the Alternative Sales Agent’s reasonable documented out-of-pocket expenses incurred in connection with the Alternative Sales Agency Agreement, $70,000 in the aggregate (in addition to the reimbursement provided for in Section 9.02 of the Initial Agreement)) including the reasonable fees, disbursements and expenses of counsel and special counsel for BNYMCM, the Forward Seller and the Forward

Purchaser (including in connection with the qualification of the Shares for offering and sale under state securities laws as provided in Section 4.02 and in connection with preparing any blue sky survey), incurred in connection with this Agreement and the Master Forward Confirmation and the Registration Statement and any Issuances or Forwards hereunder and ongoing services in connection with the transactions contemplated hereunder; (iii) the cost (other than those expenses described in clause (ii) above) of printing, preparing or reproducing this Agreement and the Master Forward Confirmation and any other documents in connection with the offering, purchase, sale and delivery of the Shares; (iv) all filing fees and expenses (other than those expenses described in clause (ii) above) in connection with the qualification of the Shares for offering and sale under state securities laws as provided in Section 4.02; (v) the cost of preparing the Shares; (vi) the fees and expenses of any transfer agent of the Company; (vii) the cost of providing any CUSIP or other identification numbers for the Shares; (viii) the fees and expenses incurred in connection with the listing or qualification of the Shares on the Principal Market and any filing fees incident to any required review by FINRA of the terms of the sale of the Shares in connection with this Agreement and the Master Forward Confirmation and the Registration Statement; and (ix) all other costs and expenses incident to the performance of the Company’s obligations hereunder that are not otherwise specifically provided for in this Section. During the term of this Agreement, the Company shall pay BNYMCM’s attorneys’ fees for its quarterly or other periodic due diligence review in connection with the delivery by the Company of a Transaction Notice and review of the opinions, letters and certificates delivered pursuant to Sections 4.07, 4.08 and 4.09 and related matters (amount not to exceed, together with the Alternative Sales Agent’s attorneys’ fees for its quarterly or other periodic reviews pursuant to the Alternative Sales Agency Agreement, $15,000 in the aggregate for any fiscal quarter, unless otherwise agreed by the parties hereto).

Section 9.03 Notices. All notices, demands, requests, consents, approvals or other communications required or permitted to be given hereunder or that are given with respect to this Agreement shall be in writing and shall be personally served or deposited in the mail, registered or certified, return receipt requested, postage prepaid or delivered by reputable air courier service with charges prepaid, or transmitted by hand delivery, telegram, telex or facsimile, addressed as set forth below, or to such other address as such party shall have specified most recently by written notice: (i) if to the Company to: DDR Corp. at 3300 Enterprise Parkway, Beachwood, Ohio 44122, Attention: David J. Oakes, Senior Executive Vice President and Chief Financial Officer, Facsimile No.: 216-755-3453, E-mail: doakes@ddr.com, with a copy (which shall not constitute notice) to: DDR Corp. at 3300 Enterprise Parkway, Beachwood, Ohio 44122, Attention: David E. Weiss, Executive Vice President and General Counsel, Facsimile No.: 216-755-1650, E-mail: dweiss@ddr.com, and to: Jones Day, North Point, 901 Lakeside Avenue, Cleveland, Ohio 44114, Attention: Michael J. Solecki, Facsimile No.: 216-579-0212, E-mail: mjsolecki@jonesday.com; (ii) if to BNYMCM, BNY Mellon Capital Markets, LLC, 32 Old Slip, 15th Floor, New York, New York 10286, Attention: Daniel C. de Menocal, Jr., Facsimile No.: 212-804-5057, E-mail: daniel.de.menocal@bnymellon.com, with a copy (which shall not constitute notice) to: Sidley Austin LLP, 787 Seventh Avenue, New York, New York 10019, Attention J. Gerard Cummins, Facsimile No.: 212-839-5599, E-mail: jcummins@sidley.com; and (iii) if the Forward Purchaser, The Bank of New York Mellon, 32 Old Slip, 15th Floor, New York, New York 10286, Attention: Art Condodina, Facsimile No.: 212-495-1015, with a copy to Vijay Suchdev, Facsimile No.: 212-635-1958, E-mail: vijay.suchdev@bnymellon.com. Except as set forth in Sections 2.03, 4.03 and 5.03, notice shall be deemed given on the date of service or

transmission if personally served or transmitted by telegram, telex or confirmed facsimile. Notice otherwise sent as provided herein shall be deemed given on the third business day following the date mailed or on the next business day following delivery of such notice to a reputable air courier service for next day delivery.

Section 9.04 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)), BNYMCM is required to obtain, verify and record information that identifies its clients, including the Company, which information may include the name and address of its clients, as well as other information that will allow BNYMCM to properly identify its clients.

Section 9.05 Entire Agreement. This Agreement constitutes the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements, representations, understandings, negotiations and discussions between the parties hereto, whether oral or written, with respect to the subject matter hereof.

Section 9.06 Amendment and Waiver. This Agreement may not be amended, modified, supplemented, restated or waived except by a writing executed by the party against which such amendment, modification, supplement, restatement or waiver is sought to be enforced. Waivers may be made in advance or after the right waived has arisen or the breach or default waived has occurred. Any waiver may be conditional. No waiver of any breach of any agreement or provision herein contained shall be deemed a waiver of any preceding or succeeding breach thereof nor of any other agreement or provision herein contained. No waiver or extension of time for performance of any obligations or acts shall be deemed a waiver or extension of the time for performance of any other obligations or acts.

Section 9.07 No Assignment; No Third-Party Beneficiaries. This Agreement and the rights, duties and obligations hereunder may not be assigned or delegated by the Company or BNYMCM, the Forward Seller or the Forward Purchaser. Any purported assignment or delegation of rights, duties or obligations hereunder shall be void and of no effect. This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties hereto and their respective successors and, to the extent provided in Article VI, the Controlling Persons, officers, directors, employees and agents referred to in Article VI. This Agreement is not intended to confer any rights or benefits on any Persons other than as set forth in Article VI or elsewhere in this Agreement.

Section 9.08 Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.

Section 9.09 Further Assurances. Each party hereto, upon the request of any other party hereto, shall do all such further acts and execute, acknowledge and deliver all such further instruments and documents as may be necessary or desirable to carry out the transactions contemplated by this Agreement.

Section 9.10 Titles and Headings. Titles, captions and headings of the articles and sections of this Agreement are for convenience of reference only and shall not affect the construction of any provision of this Agreement. Unless indicated otherwise, references to articles, sections, subsections and exhibits throughout this Agreement are to the corresponding articles, sections, subsections and exhibits of this Agreement.

Section 9.11 Governing Law; Jurisdiction. THIS AGREEMENT SHALL BE GOVERNED BY, INTERPRETED UNDER AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAWS THEREOF. Any action, suit or proceeding to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby shall be brought in any federal court located in the Southern District of the State of New York or any New York state court located in the Borough of Manhattan, and the Company agrees to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) and each party hereto waives (to the full extent permitted by law) any objection it may have to the laying of venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding has been brought in an inconvenient forum.

Section 9.12 Waiver of Jury Trial. Each of the Company, BNYMCM, the Forward Seller and the Forward Purchaser hereby irrevocably waives any right it may have to a trial by jury in respect of any claim based upon or arising out of this Agreement or the Master Forward Confirmation or any transaction contemplated hereby or thereby.

Section 9.13 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which taken together shall constitute one and the same instrument. Delivery of an executed Agreement by one party to the other may be made by facsimile transmission.

Section 9.14 Adjustments for Share Splits, etc. The parties hereto acknowledge and agree that share related numbers contained in this Agreement (including the minimum Floor Price) shall be equitably adjusted to reflect share splits, share dividends, reverse share splits, combinations and similar events.

Section 9.15 No Fiduciary Duty. The Company acknowledges and agrees that each of the Forward Purchaser, BNYMCM and the Forward Seller is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Shares contemplated hereby (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 other Person and will not claim that the Forward Purchaser, BNYMCM or the Forward Seller is acting in such capacity in connection with the offering of the Shares contemplated hereby. Additionally, none of the Forward Purchaser, BNYMCM or the Forward Seller is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. 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 none of the Forward

Purchaser, BNYMCM or the Forward Seller shall have any responsibility or liability to the Company with respect thereto. Any review by the Forward Purchaser, BNYMCM or the Forward Seller of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Forward Purchaser, BNYMCM or the Forward Seller, as the case may be and shall not be on behalf of the Company.

Section 9.16 Termination of Prior Agreement. The parties hereto agree that this Agreement hereby supersedes and replaces the Prior Agreement and further agree that the Prior Agreement was terminated effective as of the date of the Initial Agreement; provided, however, that Article VI, Article VIII and Article IX of the Prior Agreement shall survive such termination of the Prior Agreement without limitation.

[Signature Page Follows]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above.


DDR CORP.

By:	/s/ David J. Oakes
	Name:	David J. Oakes, CFA
	Title:	Senior Executive Vice President & Chief Financial Officer

BNY MELLON CAPITAL MARKETS, LLC

By:	/s/ Daniel C. de Menocal, Jr.
	Name:	Daniel C. de Menocal, Jr.
	Title:	Managing Director

THE BANK OF NEW YORK MELLON

By:	/s/ Stephen M. Lawler
	Name:	Stephen M. Lawler
	Title:	Managing Director

EXHIBIT A

TRANSACTION NOTICE

, 201

[BNY Mellon Capital Markets, LLC 32 Old Slip, 15th Floor, New York, New York 10286]

[The Bank of New York Mellon 32 Old Slip, 15th Floor, New York, New York 10286]¹

[Attn: Daniel C. de Menocal, Jr.]

[Attn: Art Condodina]²

Reference is made to the Amended and Restated Sales Agency Financing Agreement (the “Sales Agency Agreement”) among DDR CORP. (the “Company”), BNY MELLON CAPITAL MARKETS, LLC (in its capacity as agent for the Company in connection with the offering and sale of any Issuance Shares thereunder, “BNYMCM,” and in its capacity as agent for the Forward Purchaser in connection with the offering and sale of any Forward Hedge Shares thereunder, the “Forward Seller”), and THE BANK OF NEW YORK MELLON, as counterparty under any Forward Contract (the “Forward Purchaser”). Capitalized terms used in this Transaction Notice without definition shall have the respective definitions ascribed to them in the Sales Agency Agreement. This Transaction Notice relates to [an “Issuance”]² [a “Forward”].³ The Company confirms that all conditions to the delivery of this Transaction Notice are satisfied as of the date hereof.

[The Company confirms that it has not declared and will not declare any dividend, or caused or cause there to be any distribution, on the Common Shares if the ex-dividend date or ex-date, as applicable, for such dividend or distribution will occur during the period from, but excluding, the first Trading Day of the Forward Hedge Selling Period to, and including, the last Trading Day of the Forward Hedge Selling Period.]⁴

Effective Date of Delivery of Transaction Notice (determined pursuant to Section 2.03(b) of the Sales Agency Agreement):

Number of Days in [Issuance]⁵ [Forward]⁶ Selling Period:

First Date of [Issuance]⁷ [Forward]⁸ Selling Period:

¹	Insert for a Transaction Notice that relates to a “Forward.”

²	Insert for a Transaction Notice that relates to a “Forward.”

³	Insert for a Transaction Notice that relates to an “Issuance.”

⁴	Insert for a Transaction Notice that relates to a “Forward.”

⁵	Insert for a Transaction Notice that relates to a “Forward.”

⁶	Insert for a Transaction Notice that relates to an “Issuance.”

⁷	Insert for a Transaction Notice that relates to a “Forward.”

⁸	Insert for a Transaction Notice that relates to an “Issuance.”

⁹	Insert for a Transaction Notice that relates to a “Forward.”

A-1


[Issuance]¹⁰ [Forward]¹¹ Amount:		$
[Forward Price Reduction Dates		Forward Price Reduction Amounts
[Trade Date:]		USD [ ]
[ ]		USD [ ]
[ ]		USD [ ]
[ ]		USD [ ]
[Maturity Date:]		USD [ ]
[Thereafter:]		USD [ ]
Term: [Days] [Months]¹²

Last Date of [Issuance]¹³ [Forward Hedge]¹⁴ Selling Period:

Floor Price (Adjustable by Company during the [Issuance]¹⁵ [Forward]¹⁶ Selling Period, and in no event less than $2.00 without the prior written consent of BNYMCM, which consent may be withheld in BNYMCM’s sole discretion): $ per share

Comments:


DDR CORP.

By:
Name:
Title:

¹⁰	Insert for a Transaction Notice that relates to an “Issuance.”

¹¹	Insert for a Transaction Notice that relates to a “Forward.”

¹²	Insert for a Transaction Notice that relates to an “Forward.”

¹³	Insert for a Transaction Notice that relates to a “Issuance.”

¹⁴	Insert for a Transaction Notice that relates to a “Forward.”

¹⁵	Insert for a Transaction Notice that relates to an “Issuance.”

¹⁶	Insert for a Transaction Notice that relates to a “Forward.”

EXHIBIT B

Form of Opinion of Jones Day, Counsel for the Company

B-1

SCHEDULE 1

BNYMCM, FORWARD SELLER OR FORWARD PURCHASER


Daniel C. de Menocal, Jr.

	Telephone:	(212) 804-5094
	Facsimile:	(212) 804-5057
	E-mail:	daniel.de.menocal@bnymellon.com
	Address:	32 Old Slip, 15th Floor
		New York, New York 10286

Harry Skirlis

	Telephone:	(201) 804-2380
	Facsimile:	(201) 804-5057
	E-mail:	harold.skirlis@bnymellon.com
DDR CORP.

David J. Oakes

	Telephone:	(216) 755-6453
	Facsimile:	(216) 755-3453
	E-mail:	doakes@ddr.com
	Address:	3300 Enterprise Parkway
		Beachwood, Ohio 44122

Tammy Battler

	Telephone:	(216) 755-5770
	Facsimile:	(216) 755-1700
	E-mail:	tbattler@ddr.com
	Address:	3300 Enterprise Parkway
		Beachwood, Ohio 44122

S-1

EX-1.2 3 d446809dex12.htm EX-1.2 EX-1.2

Exhibit 1.2

EXECUTION COPY

AMENDED AND RESTATED SALES AGENCY FINANCING AGREEMENT

Amended and Restated Sales Agency Financing Agreement (this “Agreement”), dated as of December 4, 2012, between DDR CORP., an Ohio corporation (the “Company”), and KEYBANC CAPITAL MARKETS INC., a registered broker-dealer organized under the laws of Ohio (in its capacity as agent for the Company in connection with the offering and sale of any Issuance Shares hereunder, “KBCM”, in its capacity as agent for the Forward Purchaser in connection with the offering and sale of any Forward Hedge Shares hereunder, the “Forward Seller”, and in its capacity as counterparty under any Forward Contract, the “Forward Purchaser”).

W I T N E S S E T H:

WHEREAS, the Company and KBCM entered into a Sales Agency Financing Agreement dated October 2, 2012 (the “Initial Agreement”);

WHEREAS, the Company and KBCM desire to amended and restate the Initial Agreement in its entirety;

WHEREAS, KBCM has been appointed by the Company as its agent to sell the Issuance Shares and agrees to use its commercially reasonable efforts to sell the Issuance Shares offered by the Company upon the terms and subject to the conditions contained herein;

WHEREAS, the Company has also entered into an amended and restated sales agency financing agreement (the “Alternative Sales Agency Agreement”), dated as of even date herewith, with BNY Mellon Capital Markets, LLC (in its capacity as sales agent and forward seller thereunder, the “Alternative Sales Agent”) and The Bank of New York Mellon, for the issuance (in the case of the Issuance Shares) or borrowing (in the case of Forward Hedge Shares) and sale from time to time through the Alternative Sales Agent of Shares on the terms set forth in the Alternative Sales Agency Agreement. This Agreement and the Alternative Sales Agency Agreement are collectively referred to herein as the “Sales Agency Agreements.” The aggregate Sales Price of Shares to be sold pursuant to the Sales Agency Agreements shall not exceed the Maximum Program Amount.

ARTICLE I

DEFINITIONS

Section 1.01 Certain Definitions. For purposes of this Agreement, capitalized terms used herein and not otherwise defined shall have the following respective meanings:

“Actual Sold Issuance Amount” means, for any Issuance Selling Period for any Issuance, the number of Issuance Shares that KBCM has sold during such Issuance Selling Period.

“Agreement” has the meaning set forth in the introductory paragraph of this Agreement.

“Alternative Sales Agency Agreement” has the meaning set forth in the recitals to this Agreement.

“Alternative Sales Agent” has the meaning set forth in the recitals to this Agreement.

“Anti-Money Laundering Laws” has the meaning set forth in Section 3.31.

“Applicable Time” means the time of sale of any Shares pursuant to this Agreement.

“Closing” has the meaning set forth in Section 2.02.

“Closing Date” means the date on which the Closing occurs.

“Code” has the meaning set forth in Section 3.15.

“Code of Regulations” has the meaning set forth in Section 3.13.

“Comfort Letter Trigger Event” has the meaning set forth in Section 4.08.

“Commission” means the United States Securities and Exchange Commission.

“Commitment Period” means the period commencing on the Closing Date and expiring on the earliest to occur of (x) the date on which KBCM, the Forward Seller and the Alternative Sales Agent, in the aggregate, shall have sold the Maximum Program Amount pursuant to the Sales Agency Agreements, (y) the date this Agreement is terminated pursuant to Article VII and (z) the third anniversary of the Closing Date.

“Common Shares” shall mean the Company’s common shares, $0.10 par value per share.

“Company” has the meaning set forth in the introductory paragraph of this Agreement.

“Controlling Persons” has the meaning set forth in Section 6.01.

“Defects” has the meaning set forth in Section 3.20.

“Effective Date” means the date and time as of which the Original Registration Statement and each amendment thereto (including amendments filed for the purpose of complying with Section 10(a)(3) of the Securities Act) became or become effective, including each deemed effective date with respect to KBCM pursuant to Rule 430B(f)(2) under the Securities Act.

“EDGAR” has the meaning set forth in Section 4.05.

“Entity” has the meaning set forth in Section 3.32.

“Environmental Laws” has the meaning set forth in Section 3.23.

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

“FINRA” has the meaning set forth in Section 5.01(f).

“Floor Price” means the minimum price set by the Company in the Transaction Notice below which KBCM (in the case of an Issuance) or the Forward Seller (in the case of a Forward) shall not sell Issuance Shares or Forward Hedge Shares, as the case may be, during the applicable Selling Period, which may be adjusted by the Company at any time during the Selling Period and which in no event shall be less than $2.00 without the prior written consent of KBCM, which may be withheld in KBCM’s sole discretion.

“Forward Date” means any Trading Day during the Commitment Period that a Transaction Notice specifying that it relates to a “Forward” is deemed delivered pursuant to Section 2.03(b) hereof.

“Forward Hedge Selling Commission Rate” means, for any Forward Contract, a rate mutually agreed to between the Company and the Forward Seller, not to exceed 2.0%.

“Forward Hedge Settlement Date” means the third (3rd) Trading Day immediately following the sale of any Forward Hedge Shares pursuant to this Agreement.

“Forward Purchaser” has the meaning set forth in the introductory paragraph of this Agreement.

“Forward Seller” has the meaning set forth in the introductory paragraph of this Agreement.

“Free Writing Prospectus” has the meaning set forth in Section 2.05.

“GAAP” has the meaning set forth in Section 3.06.

“Hazardous Materials” has the meaning set forth in Section 3.23.

“Indemnified Party” has the meaning set forth in Section 6.03.

“Indemnifying Party” has the meaning set forth in Section 6.03.

“Initial Agreement” has the meaning set forth in the recitals to this Agreement.

“Issuance” means each occasion the Company elects to exercise its right to deliver a Transaction Notice that does not involve a Forward and that specifies that it relates to an “Issuance” and requires KBCM to use its commercially reasonable efforts to sell the Issuance Shares as specified in such Transaction Notice, subject to the terms and conditions of this Agreement.

“Issuance Amount” means the aggregate Sales Price of the Issuance Shares to be sold by KBCM with respect to any Issuance as specified in the Transaction Notice for such Issuance, which may not exceed $100,000,000 without the prior written consent of KBCM, which may be withheld in KBCM’s sole discretion.

“Issuance Price” means the Sales Price less the Issuance Selling Commission.

“Issuance Selling Commission” means a mutually agreed rate, not to exceed 2.0% of the Sales Price of Issuance Shares sold during a Selling Period.

“Issuance Settlement Date” means the third business day following each Trading Day during the applicable Issuance Selling Period, when the Company shall deliver to KBCM the amount of Issuance Shares sold on such Trading Day and KBCM shall deliver to the Company the Issuance Price received on such sales.

“KBCM” has the meaning set forth in the introductory paragraph of this Agreement.

“Master Forward Confirmation” means the Master Confirmation for Forward Stock Sale Transactions, dated as of the date hereof, by and between the Company and the Forward Purchaser.

“Material Adverse Effect” has the meaning set forth in Section 3.05.

“Maximum Program Amount” means Common Shares with an aggregate Sales Price of $200,000,000 (or, if less, the aggregate amount of Shares registered under the Registration Statement).

“OFAC” has the meaning set forth in Section 3.32.

“Officers’ Certificate Trigger Event” has the meaning set forth in Section 4.09.

“Opinion Trigger Event” has the meaning set forth in Section 4.07.

“Original Registration Statement” has the meaning set forth in Section 3.01.

“Portfolio Properties” has the meaning set forth in Section 3.20.

“preliminary prospectus” has the meaning set forth in Section 3.01.

“Pricing Supplement” has the meaning set forth in Section 3.01.

“Prior Agreement” means the Sales Agency Financing Agreement, dated April 28, 2011, between the Company and KBCM.

“Principal Market” means the New York Stock Exchange.

“Prospectus” has the meaning set forth in Section 3.01.

“Prospectus Supplement” has the meaning set forth in Section 5.01(k).

“Registration Statement” has the meaning set forth in Section 3.01.

“REIT” has the meaning set forth in Section 3.15.

“Representation Date” has the meaning set forth in the introductory paragraph of Article III.

“Sales Agency Agreements” has the meaning set forth in the recitals to this Agreement.

“Sales Price” means, for each Forward or each Issuance hereunder, the actual sale execution price of each Forward Share or Issuance Share, as the case may be, sold by KBCM or the Forward Seller on the Principal Market hereunder in the case of ordinary brokers’ transactions, or as otherwise agreed by the parties in other methods of sale. Where the context requires, the term “Sales Price” as used herein shall include the definition of the same under the Alternative Sales Agency Agreement.

“Sanctions” has the meaning set forth in Section 3.32.

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

“Selling Period” means any Forward Hedge Selling Period or any Issuance Selling Period.

“Settlement Date” means any Forward Hedge Settlement Date or any Issuance Settlement Date.

“Significant Subsidiary” has the meaning set forth in Section 3.09.

“Stand Off Period” has the meaning set forth in Section 4.10.

“Trading Day” means any day which is a trading day on the Principal Market, other than a day on which trading is scheduled to close prior to its regular weekday closing time.

“Transaction” means any Issuance or any Forward.

“Transaction Date” means any Issuance Date or any Forward Date.

“Transaction Notice” means a written notice to KBCM or the Forward Seller delivered in accordance with this Agreement in the form attached hereto as Exhibit A.

ARTICLE II

ISSUANCES AND FORWARDS

Section 2.01 (a) Transactions. (i) Upon the terms and subject to the conditions of this Agreement, the Company may issue Issuance Shares through KBCM, and KBCM shall use its commercially reasonable efforts to sell Issuance Shares, with an aggregate Sales Price of up to the Maximum Program Amount, less the aggregate Sales Price for any Forward Hedge Shares previously sold under the Sales Agency Agreements, based on and in accordance with such number of Transaction Notices, each specifying that it relates to an “Issuance,” as the Company in its sole discretion shall choose to deliver during the Commitment Period until the aggregate Sales Price of the Issuance Shares sold under the Sales Agency Agreements, plus the aggregate Sales Prices for any Forward Hedge Shares previously sold under the Sales Agency Agreements, equals the Maximum Program Amount, or this Agreement is otherwise terminated. Subject to the foregoing and the other terms and conditions of this Agreement, upon the delivery of a Transaction Notice specifying that it relates to an “Issuance,” and unless the sale of the Issuance Shares described therein has been suspended, cancelled or otherwise terminated in accordance with the terms of this Agreement, KBCM will use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares up to the amount specified in such Transaction Notice into the Principal Market, and otherwise in accordance with the terms of such Transaction Notice. KBCM will provide written confirmation to the Company

no later than the opening of the Trading Day next following the Trading Day on which it has made sales of Issuance Shares hereunder setting forth the portion of the Actual Sold Issuance Amount for such Trading Day, the corresponding Sales Price and the Issuance Price payable to the Company in respect thereof. KBCM may sell Issuance Shares in the manner described in Section 2.01(b). The Company acknowledges and agrees that (A) there can be no assurance that KBCM will be successful in selling Issuance Shares and (B) KBCM will incur no liability or obligation to the Company or any other Person if it does not sell Issuance Shares for any reason other than a failure by KBCM to use its commercially reasonable efforts consistent with its normal trading and sales practices to sell such Issuance Shares as required under this Section 2.01. In acting hereunder, KBCM will be acting as agent for the Company and not as principal.

for the Forward Purchaser and not as principal. No later than the opening of the Trading Day next following the last Trading Day of each Forward Hedge Selling Period (or, if earlier, the date on which any Forward Hedge Selling Period is suspended or terminated pursuant to Section 5.03), the Forward Purchaser shall execute and deliver to the Company a “Supplemental Confirmation” in respect of the Forward for such Forward Hedge Selling Period, which “Supplemental Confirmation” shall set forth the “Trade Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the last Trading Day of such Forward Hedge Selling Period), the “Effective Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the date one Settlement Cycle (as such term is defined in the Master Forward Confirmation) immediately following the last Trading Day of such Forward Hedge Selling Period), the initial number of “Base Shares” for such Forward (which shall be the Actual Sold Forward Amount for such Forward Hedge Selling Period), the “Maturity Date” for such Forward (which shall, subject to the terms of the Master Forward Confirmation, be the date that follows the last Trading Day of such Forward Hedge Selling Period by the number of days or months set forth opposite the caption “Term” in the Transaction Notice for such Forward, which number of days or months shall in no event be less than 10 days nor more than six months), the number of Forward Hedge Shares sold on each Trading Day of the Forward Hedge Selling Period for such Forward, the Sales Prices of the Forward Hedge Shares sold on each Trading Day of the Forward Hedge Selling Period for such Forward, the “Forward Price Reduction Dates” for such Forward (which shall be each of the dates set forth below the caption “Forward Price Reduction Dates” in the Transaction Notice for such Forward) and the “Forward Price Reduction Amounts” corresponding to such Forward Price Reduction Dates (which shall be each amount set forth opposite each “Forward Price Reduction Date” and below the caption “Forward Price Reduction Amounts” in the Transaction Notice for such Forward) and the “Initial Forward Price” for such Forward. Notwithstanding anything herein to the contrary, (x) in no event shall the Forward Purchaser be required to borrow any Forward Hedge Shares to the extent it (or its affiliate) would incur a stock loan cost of more than 45 basis points per annum and (y) the Forward Purchaser shall in no event be deemed to have failed to use its commercially reasonable efforts to borrow any Forward Hedge Shares if the Forward Purchaser fails to borrow any Forward Hedge Shares because it (or its affiliate) would incur a stock loan cost of more than 45 basis points per annum.

of Capital Markets of the Company, to KBCM. The number of Issuance Shares that KBCM shall use its commercially reasonable efforts to sell pursuant to such Issuance shall have an aggregate Sales Price equal to the Issuance Amount. Each Issuance will be settled on the applicable Settlement Date following the Issuance Date.

Section 2.02 Effectiveness. The effectiveness of this Agreement (the “Closing”) shall be deemed to take place concurrently with the execution and delivery of this Agreement by the parties hereto and the completion of the closing transactions set forth in the immediately following sentence. At the Closing, the following closing transactions shall take place, each of which shall be deemed to occur simultaneously with the Closing: (i) the Company shall deliver to KBCM and the Forward Seller a certificate executed by the Secretary of the Company, signing in such capacity, dated the Closing Date and (A) certifying that attached thereto are true and complete copies of the resolutions duly adopted by the Board of Directors of the Company or an authorized committee or subcommittee thereof authorizing the execution and delivery of this Agreement, the Master Forward Confirmation and the consummation of the transactions contemplated hereby and thereby, which authorization shall be in full force and effect on and as of the date of such certificate, and (B) certifying and attesting to the office, incumbency, due authority and specimen signatures of each Person who executed this Agreement and the Master Forward Confirmation for or on behalf of the Company; (ii) the Company shall deliver to KBCM and the Forward Seller a certificate executed by (A) the President and Chief Executive Officer or the Senior Executive Vice President and Chief Financial Officer or any Senior Executive Vice President or the Chief Accounting Officer of the Company and (B) the President and Chief Executive Officer or the Senior Executive Vice President and Chief Financial Officer or any Senior Executive Vice President or the Chief Accounting Officer (in each case, only if such officer had not executed the certificate pursuant to clause (ii)(A) above) or the Senior Vice President of Capital Markets of the Company, signing in such respective capacities, dated the Closing Date, confirming that the representations and warranties of the Company contained in this Agreement and the Master Forward Confirmation are true and correct and that the Company has performed, in all material respects, all of its obligations hereunder to be performed on or prior to the Closing Date and as to the matters set forth in Section 5.01(a) hereof; (iii) Jones Day, counsel to the Company, shall deliver to KBCM and the Forward Seller an opinion, dated the Closing Date and addressed to KBCM and the Forward Seller, substantially in the form of Exhibit B; (iv) Sidley Austin LLP, counsel to KBCM and the Alternative Sales Agent, shall

deliver to KBCM and the Forward Seller an opinion, dated the Closing Date and addressed to KBCM and the Forward Seller, in form and substance satisfactory to KBCM and the Forward Seller (and the Company shall have furnished to such counsel such documents as it may request for the purpose of enabling such counsel to pass upon such matters, and, in giving its opinion, such counsel may rely as to matters involving the laws of the State of Ohio upon the opinion of even date of Jones Day); and (v) PricewaterhouseCoopers LLP shall deliver to KBCM and the Forward Seller a letter, dated the Closing Date, in form and substance reasonably satisfactory to KBCM and the Forward Seller.

Section 2.03 Mechanics of Issuances.

(a) Transaction Notice. On any Trading Day during the Commitment Period, the Company may deliver a Transaction Notice to KBCM (in the case of an Issuance) or the Forward Seller and the Forward Purchaser (in the case of a Forward), subject to the satisfaction of the conditions set forth in Sections 5.01 and 5.02; provided, however, that (i) the Issuance Amount or Forward Hedge Amount, as the case may be, for each Transaction as designated by the Company in the applicable Transaction Notice shall in no event exceed $100,000,000 for any Issuance or $50,000,000 for any Forward without the prior written consent of KBCM or the Forward Seller, which may be withheld in KBCM’s or the Forward Seller’s sole discretion and (ii) notwithstanding anything in this Agreement or the Master Forward Confirmation to the contrary, neither the Forward Purchaser, KBCM nor the Forward Seller shall have any further obligations with respect to any Transaction Notice if and to the extent the aggregate Sales Price of the Shares sold pursuant thereto, together with the aggregate Sales Price of the Shares previously sold under the Sales Agency Agreements, shall exceed the Maximum Program Amount. The Company shall have the right, in its sole discretion, to amend at any time and from time to time any Transaction Notice; provided, however, that (i) the Company may not amend the Issuance Amount or Forward Hedge Amount, as the case may be, if such amended Issuance Amount or Forward Hedge Amount, as applicable, is less than the Actual Sold Issuance Amount or Actual Sold Forward Amount, as the case may be, as of the date of such amendment; (ii) the Company shall not have the right to amend a Transaction Notice specifying that it relates to a “Forward” after the related “Supplemental Confirmation” has been delivered to the Company; and (iii) no reduction in the Floor Price shall cause any sales of Shares executed pursuant to such Transaction Notice prior to the date of receipt of such amendment to be a breach of the terms hereof.

(b) Delivery of Transaction Notice. A Transaction Notice or any amendment thereto shall be deemed delivered on the Trading Day that it is received by facsimile or e-mail (and the Company confirms such delivery by telephone (including voicemail message)) by KBCM (in the case of a Transaction Notice specifying that it relates to an “Issuance”) or by the Forward Seller and the Forward Purchaser (in the case of a Transaction Notice specifying that it relates to a “Forward”). No Transaction Notice or any amendment thereto may be delivered other than on a Trading Day during the Commitment Period, no Transaction Notice may be delivered during an Issuance Selling Period or Forward Hedge Selling Period specified in a previously delivered Transaction Notice, no more than one Transaction Notice may be delivered on any single Trading Day and no Transaction Notice specifying that it relates to a “Forward” may be delivered if an ex-dividend date or ex-date, as applicable for any dividend or distribution payable by the Company on the Common Shares is scheduled to occur during the period from, but excluding, the first scheduled Trading Day of the related Forward Hedge Selling Period to, and including, the last scheduled Trading Day of such Forward Hedge Selling Period.

(c) Floor Price. Neither KBCM nor the Forward Seller shall sell Issuance Shares or Forward Hedge Shares, as the case may be, below the Floor Price during the applicable Selling Period, and, subject to clause (iii) of the proviso to the last sentence of Section 2.3(a), such Floor Price may be adjusted by the Company at any time during the applicable Selling Period upon notice to KBCM or the Forward Seller and confirmation by KBCM or the Forward Seller to the Company.

(d) Reserved.

(e) Trading Guidelines. Each of KBCM and the Forward Seller may, to the extent permitted under the Securities Act and the Exchange Act, purchase and sell Common Shares for its own account while this Agreement is in effect provided that (i) no such purchase or sale shall take place while a Transaction Notice under this Agreement is in effect (except to the extent (x) KBCM may engage in sales of Issuance Shares purchased or deemed purchased from the Company as a “riskless principal” or in a similar capacity, (y) the Forward Seller may engage in sales of Forward Hedge Shares borrowed by the Forward Seller, as agent for the Forward Purchaser; and (z) nothing in this Agreement shall prohibit the Forward Purchaser or its affiliates from engaging in such transactions as are necessary or desirable to unwind the Forward Purchaser’s hedge in connection with any settlement under the Master Forward Confirmation), (ii) in no circumstances shall KBCM or the Forward Seller have a short position in the Common Shares for its own account and (iii) the Company shall not be deemed to have authorized or consented to any such purchases or sales by KBCM or the Forward Seller. In addition, the Company hereby acknowledges and agrees that KBCM’s or the Forward Seller’s Affiliates, subject to compliance with Regulation M under the Exchange Act, may make markets in the Common Shares or other securities of the Company, in connection with which they may buy and sell, as agent or principal, for long or short account, Common Shares or other securities of the Company, at the same time KBCM or the Forward Seller is acting as agent pursuant to this Agreement; provided, however, that the Company shall not be deemed to have authorized or consented to any such purchases or sales by KBCM’s or the Forward Seller’s Affiliates.

Section 2.04 (a) Settlements. Subject to the provisions of Article V, on or before each Issuance Settlement Date, the Company will, or will cause its transfer agent to, electronically transfer the Issuance Shares being sold by crediting KBCM or its designee’s account at The Depository Trust Company through its Deposit/Withdrawal At Custodian (“DWAC”) System, or by such other means of delivery as may be mutually agreed upon by the parties hereto and, upon receipt of such Issuance Shares, which in all cases shall be freely tradeable, transferable, registered shares in good deliverable form, KBCM will deliver the related Issuance Price in same day funds delivered to an account designated by the Company prior to the Issuance Settlement Date. If the Company defaults in its obligation to deliver Issuance Shares on an Issuance Settlement Date, the Company agrees that it will (i) hold KBCM harmless against any loss, claim, damage or expense (including, without limitation, penalties, interest and reasonable legal fees and expenses), as incurred, arising out of or in connection with such default by the Company, and (ii) pay to KBCM any Issuance Selling Commission to which it would otherwise have been entitled absent such default. The parties hereto acknowledge and agree that, in performing its obligations under this Agreement, KBCM may borrow Common Shares from stock lenders, and may use the Issuance Shares to settle or close out such borrowings.

Section 2.05 Use of Free Writing Prospectus. Neither the Company nor KBCM nor the Forward Seller has prepared, used, referred to or distributed, or will prepare, use, refer to or distribute, without the other party’s prior written consent, any “written communication” that constitutes a “free writing prospectus” as such terms are defined in Rule 405 under the Securities Act with respect to the offering contemplated by this Agreement (any such free writing prospectus being referred to herein as a “Free Writing Prospectus”).

Section 2.06 Alternative Sales Agent. The Company agrees that any offer to sell, any solicitation of an offer to buy or any sales of Shares shall be effected by or through only one of KBCM and the Alternative Sales Agent on any single given day, but in no event more than one of KBCM and the Alternative Sales Agent, and the Company shall in no event request that KBCM and the Alternative Sales Agent sell Shares on the same day.

Section 2.07 Material Non-Public Information. Notwithstanding any other provision of this Agreement, KBCM and the Forward Seller shall not be obligated to sell any Shares hereunder during any period in which it reasonably believes that the Company is in possession of material non-public information.

Section 2.08 Exemption from Regulation M. If KBCM or the Forward Seller reasonably believes that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act (applicable to securities with an average daily trading volume value of at least $1,000,000 that are issued by an issuer whose common equity securities have a public float value of at least $150,000,000) are not satisfied with respect to the Company or the Common Shares, it shall promptly notify the Company of such belief and sales of Common Shares under the Sales Agency Agreements shall be suspended until that or other exemptive provisions have been satisfied in the reasonable judgment of the Company and KBCM. If, either immediately prior to delivery of a Transaction Notice or during a Selling Period, the Company reasonably believes that the exemptive provisions set forth in Rule 101(c)(1) of Regulation M under the Exchange Act are not satisfied with respect to the Company or the Common Shares, it shall promptly notify KBCM and the Forward Seller of such belief and sales of Common Shares under the Sales Agency Agreements and the Master Forward Confirmation shall be suspended until that or other exemptive provisions have been satisfied in the reasonable judgment of the Company and KBCM.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

The Company represents and warrants to, and agrees with, KBCM, the Forward Purchaser and the Forward Seller, that as of the Closing Date, as of each Transaction Date, as of each Settlement Date and as of any time that the Registration Statement or the Prospectus shall be amended or supplemented (each of the times referenced above is referred to herein as a “Representation Date”), except as may be disclosed in the Prospectus (including any documents incorporated by reference therein and any supplements thereto) on or before a Representation Date:

The Company has filed with the Commission an automatic shelf registration statement on Form S-3 (No. 333-184221), including the related preliminary prospectus or prospectuses. Such registration statement registers the issuance and sale by the Company of the Shares under the Securities Act. Such registration statement (and any further registration statements that may be filed by the Company for the purpose of registering additional Shares to be sold pursuant to this Agreement and the Master Forward Confirmation or for the purpose of complying with Rule 415(a)(5) under the Securities Act with respect to the registration of the Shares under the Securities Act), including any information deemed to be a part thereof pursuant to Rule 430B under the Securities Act, including all documents incorporated or deemed to be incorporated therein by reference pursuant to Item 12 of Form S-3 under the Securities Act as from time to time amended or supplemented, is herein referred to as the “Registration Statement,” and the prospectus constituting a part of such registration statement, together with the Prospectus Supplement and any pricing supplement filed with the Commission pursuant to Rule 424(b) under the Securities Act relating to the Shares (each, a “Pricing Supplement”), including all documents incorporated or deemed to be incorporated therein by reference pursuant to Item 12 of Form S-3 under the Securities Act, in each case, as from time to time amended or supplemented, is referred to herein as the “Prospectus,” except that if any revised prospectus is provided to KBCM or the Forward Seller by the Company for use in connection with the offering of the Shares that is not required to be filed by the Company pursuant to Rule 424(b) under the Securities Act, the term “Prospectus” shall refer to such revised prospectus from and after the time it is first provided to KBCM or the Forward Seller for such use. The Registration Statement at the time it originally became effective is herein called the “Original Registration Statement.”

The term “preliminary prospectus” means any preliminary form of the Prospectus. As used in this Agreement, the terms “amendment” or “supplement” when applied to the Registration Statement or the Prospectus shall be deemed to include the filing by the Company with the Commission of any document under the Exchange Act after the date hereof that is or is deemed to be incorporated therein by reference.

Section 3.03 Compliance with Securities Act Regulations. The Original Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on October 1, 2012, and any post-effective amendment thereto also became effective upon filing under Rule 462(e) under the Securities Act. No stop order suspending the effectiveness of the Registration Statement has been issued under the Securities Act and no proceedings for that purpose have been instituted, are pending or, to the knowledge of the Company, have been threatened.

At each deemed effective date with respect to KBCM or the Forward Seller pursuant to Rule 430B(f)(2) under the Securities Act, at the Closing Date, at each Applicable Time within the applicable Selling Period, at the Issuance Date or Forward Date with respect to the applicable Selling Period and at each Settlement Date with respect to the applicable Selling Period, the Registration Statement, as amended as of such date, complied, complies and will comply in all material respects with the requirements of the Securities Act and the rules and regulations thereunder, 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 (except that the foregoing shall not apply to those parts of the Registration Statement that constitute the Statements of Eligibility (Forms T-1) under the Trust Indenture Act of 1939). As of the Closing Date, as of the date of any filing of a Pricing Supplement pursuant to Rule 424(b) under the Securities Act and as of each Applicable Time within the applicable Selling Period, the Prospectus, as amended as of such date, conformed, conforms and will conform in all material respects to the requirements of the Securities Act and the rules and regulations thereunder and, as of such respective dates, did not, does not and will not contain an untrue statement of a material fact or omit to state a material fact necessary 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 3.03 shall not apply to statements in or omissions from the Registration Statement or any post-effective amendment thereto or the Prospectus or any amendments or supplements thereto made in reliance upon and in conformity with information furnished to the Company in writing by KBCM expressly for use in the Registration Statement or any post-effective amendment thereto or the Prospectus or any amendment or supplement thereto.

Section 3.11 Shares. The Shares (in an amount up to the Maximum Program Amount) have been, or will have been at the time such Shares are issued, duly authorized by the Company

for issuance and sale pursuant to this Agreement, the Master Forward Confirmation or the Alternative Sales Agency Agreement, as the case may be, and, when issued and delivered pursuant to this Agreement and the Master Forward Confirmation against payment of the consideration therefor specified herein or therein, will be validly issued, fully paid and non-assessable. The Shares conform in all material respects to all statements relating thereto contained in the Prospectus. The issuance of the Shares is not subject to preemptive or other similar rights.

obligations hereunder and thereunder; and all corporate action required to be taken for the due and proper authorization, execution and delivery of this Agreement and the Master Forward Confirmation and the consummation of the transactions contemplated hereby and thereby has been duly and validly taken.

Section 3.19 Actively-Traded Security. Except under circumstances where the Company has provided KBCM and the Forward Seller with the notice required pursuant to Section 2.08 of this Agreement, the Common Shares are an “actively–traded security” exempted from the requirements of Rule 101 of Regulation M under the Exchange Act by subsection (c)(1) of such rule.

Section 3.20 Title to Property. (i) Except as described in the Registration Statement 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 (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 and the Prospectus as being owned by the Company or its subsidiaries (except with respect to properties described in the Registration Statement 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 (collectively, “Defects”), except where such Defects would not have a Material Adverse Effect; (ii) the joint venture interest in each property described in the Registration Statement 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; (iii) all liens, charges,

encumbrances, claims or restrictions on or affecting the properties and assets of the Company or its subsidiaries are disclosed in the Registration Statement and the Prospectus, except for any such interests that would not have a Material Adverse Effect; and (iv) 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.

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 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.

Section 3.27 Use of Proceeds. The Company will use the net proceeds from the offering of Shares in the manner specified in the Prospectus under “Use of Proceeds.”

Section 3.30 Anti-Corruption Laws. 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.

ARTICLE IV

COVENANTS

The Company covenants and agrees during the term of this Agreement and the Master Forward Confirmation with KBCM, the Forward Seller and the Forward Purchaser as follows:

soon as reasonably practicable prior to the filing of such report) after the date of delivery of a Transaction Notice and prior to the related Settlement Date at any time prior to having afforded KBCM a reasonable opportunity to review and comment thereon; (ii) to prepare, with respect to any Shares to be sold pursuant to this Agreement and the Master Forward Confirmation, a Pricing Supplement with respect to such Shares in a form previously approved by KBCM and to file such Pricing Supplement pursuant to Rule 424(b) under the Securities Act within the time period required thereby and to deliver such number of copies of each Pricing Supplement to each exchange or market on which such sales were effected, in each case unless delivery and filing of such a Pricing Supplement is not required by applicable law or by the rules and regulations of the Commission; (iii) to make no amendment or supplement to the Registration Statement or the Prospectus (other than (x) an amendment or supplement relating solely to the issuance or offering of securities other than the Shares and (y) by means of an Annual Report on Form 10-K, a Quarterly Report on Form 10-Q, a Current Report on Form 8-K or a Registration Statement on Form 8-A or any amendments thereto filed with the Commission under the Exchange Act and incorporated or deemed to be incorporated by reference into the Registration Statement or the Prospectus except to the extent required by Section 4.01(i)) at any time prior to having afforded KBCM and the Forward Seller a reasonable opportunity to review and comment thereon and to advise KBCM and the Forward Seller promptly when any such amendment to the Registration Statement has been filed or has become effective or any such amendment or supplement to the Prospectus has been filed with the Commission; (iv) to file within the time periods required by the Exchange Act all reports and any definitive proxy or information statements required to be filed by the Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act for so long as the delivery of a prospectus is required under the Securities Act or under the blue sky or securities laws of any jurisdiction in connection with the offering or sale of the Shares, and during such same period to advise KBCM and the Forward Seller, promptly after the Company receives notice thereof, of the issuance by the Commission of any stop order or of any order preventing or suspending the use of any prospectus relating to the Shares, of the suspension of the qualification of the Shares for offering or sale in any jurisdiction, of the initiation or threatening of any proceeding for any such purpose, of any request by the Commission for the amendment or supplement of the Registration Statement or the Prospectus or for additional information relating thereto, or the receipt of any comments from the Commission with respect to the Registration Statement or the Prospectus; (v) in the event of the issuance of any such stop order or of any such order preventing or suspending the use of any such prospectus or suspending any such qualification during a Selling Period, to use promptly its commercially reasonable efforts to obtain its withdrawal; in the event any such stop order or such other order is issued outside a Selling Period, the Company will promptly advise KBCM and the Forward Seller as to the issuance thereof and as to whether it intends to seek to obtain its withdrawal; and (vi) to pay the required Commission filing fees relating to the Shares within the time required by Rule 456(b)(1)(i) under the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) under the Securities Act (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 or any Pricing Supplement filed pursuant to Rule 424(b)).

done so, a new automatic shelf registration statement or shelf registration statement, as applicable, relating to the Shares, and, if such registration statement is not an automatic shelf registration statement, will use its reasonable best efforts to cause such registration statement to be declared effective as soon as practicable, and will take all other reasonable actions necessary or appropriate to permit the offering and sale of Shares to continue as contemplated in the expired registration statement relating to such Shares and the Sales Agency Agreements. References herein to the “Registration Statement” shall include such new automatic shelf registration statement or shelf registration statement, as applicable.

Section 4.02 Blue Sky. To use its commercially reasonable efforts to cause the Shares to be listed on the Principal Market and promptly from time to time to take such action as KBCM or the Forward Seller may reasonably request; to cooperate with KBCM or the Forward Seller in the qualification of the Shares for offering and sale under the blue sky or securities laws of such jurisdictions within the United States of America and its territories as KBCM or the Forward Seller may reasonably request; and to use its commercially reasonable efforts to comply with such laws so as to permit the continuance of sales and dealings therein for as long as may be necessary to complete the sale of the Shares; provided, however, that in connection therewith the Company shall not be required to qualify as a foreign corporation, to file a general consent to service of process or to subject itself to taxation in respect of doing business in any jurisdiction.

Section 4.03 Copies of Registration Statement and Prospectus. To furnish KBCM with copies (which may be electronic copies) of the Registration Statement and each amendment thereto, and with copies of the Prospectus and each amendment or supplement thereto in the form in which it is filed with the Commission pursuant to the Securities Act or Rule 424(b) under the Securities Act, both in such quantities as KBCM may reasonably request from time to time; and, if the delivery of a prospectus is required under the Securities Act or under the blue sky or securities laws of any jurisdiction at any time on or prior to the applicable Settlement Date for any Selling Period in connection with the offering or sale of the Shares and if at such time any event has occurred as a result of which the Prospectus as then amended or supplemented would include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made when such Prospectus is delivered, not misleading, or, if for any other reason it is necessary during such same period to amend or supplement the Prospectus or to file under the Exchange Act any document incorporated by reference in the Prospectus in order to comply with the Securities Act or the Exchange Act, to notify KBCM and to request that KBCM suspend offers to sell Shares (and, if so notified, KBCM shall cease such offers as soon as practicable); and if the Company decides to amend or supplement the Registration Statement or the Prospectus as then amended or supplemented, to advise KBCM promptly by telephone (with confirmation in writing or e-mail) and to prepare and cause to be filed promptly with the Commission an amendment or supplement to the Registration Statement or the Prospectus as then amended or supplemented that will correct such statement or omission or effect such compliance; provided, however, that if during such same period KBCM is required to deliver a prospectus in respect of transactions in the Shares, the Company shall promptly prepare and file with the Commission such an amendment or supplement.

Section 4.04 Rule 158. To make generally available to its holders of the Shares as soon as practicable, but in any event not later than 18 months after the effective date of the

Registration Statement (as defined in Rule 158(c) under the Securities Act), an earnings statement of the Company and its consolidated subsidiaries (which need not be audited) complying with Section 11(a) of the Securities Act and the rules and regulations of the Commission promulgated thereunder (including the option of the Company to file periodic reports in order to make generally available such earnings statement, to the extent that it is required to file such reports under Section 13 or Section 15(d) of the Exchange Act, pursuant to Rule 158 under the Securities Act).

Section 4.05 Information. Except where such reports, communications, financial statements or other information is available on the Commission’s Electronic Data Gathering Analysis and Retrieval (“EDGAR”) system, to furnish to KBCM (in paper or electronic format) copies of all publicly available reports or other communications (financial or other) furnished by the Company generally to shareholders and filed by the Company with the Commission pursuant to the Exchange Act, and deliver to KBCM (in paper or electronic format) (i) promptly after they are available, copies of any publicly available reports and financial statements furnished to or filed by the Company with the Commission or any national securities exchange on which any class of securities of the Company is listed; and (ii) such additional publicly available information concerning the business and financial condition of the Company as KBCM may from time to time reasonably request (such financial statements to be on a consolidated basis to the extent the accounts of the Company and its subsidiaries are consolidated in reports furnished to its shareholders generally or to the Commission).

Section 4.06 Representations and Warranties. That each delivery of a Transaction Notice and each delivery of Shares on a Settlement Date shall be deemed to be (i) an affirmation to KBCM or both the Forward Seller and the Forward Purchaser, as the case may be, that the representations and warranties of the Company contained in or made pursuant to this Agreement and the Master Forward Confirmation are true and correct as of the date of such Transaction Notice or of such Settlement Date, as the case may be, as though made at and as of each such date, except as may be disclosed in the Prospectus, and (ii) an undertaking that the Company will advise KBCM or both the Forward Seller and the Forward Purchaser, as the case may be, if any of such representations and warranties will not be true and correct as of the Settlement Date for the Shares relating to such Transaction Notice, as though made at and as of each such date (except that such representations and warranties shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented relating to such Shares).

Section 4.07 Opinions of Counsel. That each time the Registration Statement or the Prospectus is amended or supplemented (other than by means of (x) an amendment or supplement relating solely to the offering of securities other than the Shares, (y) a Pricing Supplement or (z) a Current Report on Form 8-K, unless, in the case of (y) or (z) filed during a Selling Period, reasonably requested by KBCM within five days of the filing thereof with the Commission; provided, that, notwithstanding the foregoing, such request must be made prior to the final Settlement Date of the applicable Selling Period), including by means of an Annual Report on Form 10-K or a Quarterly Report on Form 10-Q filed with the Commission under the Exchange Act and incorporated or deemed to be incorporated by reference into the Prospectus (each such amendment or supplement, an “Opinion Trigger Event”), the Company shall at any time selected by the Company on or following the date of such Opinion Trigger Event (except that during a Selling Period or any other period in which a prospectus relating to the Shares is

required to be delivered to KBCM under the Securities Act, such time shall be as soon as practicable after each Opinion Trigger Event that occurs during such Selling Period) furnish or cause to be furnished to KBCM and the Forward Seller a written opinion of Jones Day, counsel to the Company, dated the date of delivery and in form reasonably satisfactory to KBCM and the Forward Seller, (i) if such counsel has previously furnished an opinion to the effect set forth in Exhibit B, to the effect that KBCM and the Forward Seller may rely on such previously furnished opinion of such counsel to the same extent as though it were dated the date of such letter authorizing reliance (except that the statements in such last opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to such date) or (ii) if such counsel has not previously furnished an opinion to the effect set forth in Exhibit B, of the same tenor as such an opinion of such counsel but modified to relate to the Registration Statement and the Prospectus as amended and supplemented to such date; provided, however, that the Company shall not be obligated to deliver any such opinion unless and until such time as the Company delivers a Transaction Notice or the Opinion Trigger Event occurs during a Selling Period.

Section 4.08 Comfort Letters. That each time the Registration Statement or the Prospectus is amended or supplemented, including by means of an Annual Report on Form 10-K, a Quarterly Report on Form 10-Q or a Current Report on Form 8-K (but only a Current Report on Form 8-K that contains financial statements filed with the Commission under the Exchange Act and incorporated or deemed to be incorporated by reference into the Prospectus), other than an amendment or supplement relating solely to the issuance or offering of securities other than the Shares, in any case to set forth financial information included in or derived from the Company’s financial statements or accounting records (each such amendment or supplement, a “Comfort Letter Trigger Event”), the Company shall at any time selected by the Company on or following the date of such Comfort Letter Trigger Event (except that during a Selling Period or any other period in which a prospectus relating to the Shares is required to be delivered by KBCM or the Forward Seller under the Securities Act, such time shall be as soon as practicable after each Comfort Letter Trigger Event that occurs during such Selling Period) cause the independent registered public accounting firm who has audited the financial statements so included or incorporated by reference in the Registration Statement to furnish to KBCM and the Forward Seller a letter, dated the date of delivery, in form reasonably satisfactory to KBCM and the Forward Seller, of the same tenor as the letter referred to in Section 5.01(g) but modified to relate to the Registration Statement and the Prospectus as amended or supplemented to the date of such letter, with such changes as may be necessary to reflect changes in the financial statements and other information derived from the accounting records of the Company, to the extent such financial statements and other information are available as of a date not more than five business days prior to the date of such letter; provided, however, that, with respect to any financial information or other matters, such letter may reconfirm as true and correct at such date as though made at and as of such date, rather than repeat, statements with respect to such financial information or other matters made in the letter referred to in Section 5.01(g) that was last furnished to KBCM and the Forward Seller; provided, however, that the Company shall not be obligated to deliver any such comfort letter unless and until such time as the Company delivers a Transaction Notice or the Comfort Letter Trigger Event occurs during a Selling Period.

Section 4.09 Officers’ Certificate. That each time the Registration Statement or the Prospectus is amended or supplemented (other than by means of (x) an amendment or supplement relating solely to the offering of securities other than the Shares, (y) a Pricing Supplement or (z) a Current Report on Form 8-K, unless, in the case of (y) or (z) filed during a Selling Period, reasonably requested by KBCM or the Forward Seller within five days of the filing thereof with the Commission; provided, that, notwithstanding the foregoing, such request must be made prior to the final Settlement Date of the applicable Selling Period), including by means of an Annual Report on Form 10-K or a Quarterly Report on Form 10-Q filed with the Commission under the Exchange Act and incorporated or deemed to be incorporated by reference into the Prospectus (each such amendment or supplement, an “Officers’ Certificate Trigger Event”), the Company shall at any time selected by the Company on or following the date of such Officers’ Certificate Trigger Event (except that during a Selling Period or any other period in which a prospectus relating to the Shares is required to be delivered by KBCM or the Forward Seller under the Securities Act, such time shall be as soon as practicable after each Officers’ Certificate Trigger Event that occurs during such period) furnish or cause to be furnished forthwith to KBCM, the Forward Seller and the Forward Purchaser a certificate, dated the date of delivery, in such form and executed by such officers of the Company as is reasonably satisfactory to KBCM, the Forward Seller and the Forward Purchaser, of the same tenor as the certificate referred to in Section 2.02(ii) but modified to relate to the Registration Statement and the Prospectus as amended and supplemented to such date; provided, however, that the Company shall not be obligated to deliver any such officers’ certificate unless and until such time as the Company delivers a Transaction Notice or the Officers’ Certificate Trigger Event occurs during a Selling Period.

Section 4.10 Stand Off Agreement. Without the written consent of KBCM and the Forward Seller, the Company will not, directly or indirectly, offer to sell, sell, contract to sell, grant any option to sell or otherwise dispose of any Common Shares or securities convertible into or exchangeable for Common Shares (other than Shares hereunder), warrants or any rights to purchase or acquire Common Shares during the period beginning on the first Trading Day specified in any Transaction Notice delivered to KBCM or the Forward Seller and the Forward Purchaser, as the case may be, hereunder and ending on the last Settlement Date with respect to Shares sold pursuant to such Transaction Notice (the “Stand Off Period”); provided, however, that such restriction will not be required in connection with the Company’s issuance or sale of (i) Issuance Shares pursuant to any Transaction Notice (or the sale of Forward Hedge Shares by the Forward Seller, on behalf of the Company, pursuant to any Transaction Notice, if applicable), (ii) Common Shares, options to purchase Common Shares or Common Shares issuable upon the exercise of options or other equity awards pursuant to any employee or director share option, incentive or benefit plan, share purchase or ownership plan, long-term incentive plan, distribution reinvestment plan or other compensation plan of the Company or its subsidiaries, whether currently existing or adopted hereafter, (iii) Common Shares issuable upon conversion of securities or the exercise of warrants, options or other rights disclosed in the Company’s Commission filings, (iv) Common Shares issuable as consideration in connection with acquisitions of business, assets or securities of other Persons and (v) Common Shares issuable by the Company upon settlement of any Forward Contract. For the avoidance of doubt, this Section 4.10 shall not prohibit the sale of Common Shares by the Forward Purchaser.

Section 4.11 Market Activities. The Company will not, directly or indirectly, (i) take any action designed to cause or result in, or that constitutes or might reasonably be expected to constitute, the stabilization or manipulation of the price of any security of the Company to facilitate the sale or resale of the Shares or (ii) during the Stand Off Period, sell, bid for or purchase the Shares, or pay anyone any compensation for soliciting purchases of the Shares other than KBCM, the Forward Seller or the Forward Purchaser; provided, however that this Section 4.11 shall not prohibit the Company from electing to net share or cash settle any Forward Contract.

Section 4.12 Maximum Program Amount. The Company will promptly notify KBCM, the Forward Seller and the Alternative Sales Agent when the Maximum Program Amount has been sold pursuant to the Sales Agency Agreements.

ARTICLE V

CONDITIONS TO DELIVERY OF TRANSACTION

NOTICES AND TO SETTLEMENT

Section 5.01 Conditions Precedent to the Right of the Company To Deliver a Transaction Notice and the Obligation of KBCM and the Forward Seller to Sell Shares During the Selling Period(s). The right of the Company to deliver a Transaction Notice hereunder is subject to the satisfaction, on the date of delivery of such Transaction Notice, and the obligations of each of KBCM to sell Issuance Shares and the Forward Seller to sell, on behalf of the Company, and the Forward Purchaser to borrow the Forward Hedge Shares during the applicable Selling Period is subject to the satisfaction, on the applicable Transaction Date and Settlement Date, of each of the following conditions:

(a) Effective Registration Statement and Authorizations. The Registration Statement shall remain effective and sales of all of the Shares (including all of the Shares issued with respect to all prior Issuances and Forwards and all of the Shares expected to be issued in connection with the Issuance or Forward specified by the current Transaction Notice) may be made by KBCM, the Forward Seller or the Alternative Sales Agent thereunder, and (i) no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceeding for that purpose shall have been initiated or, to the Company’s knowledge, threatened by the Commission; (ii) no other suspension of the use or withdrawal of the effectiveness of the Registration Statement or Prospectus shall exist; (iii) all requests for additional information on the part of the Commission shall have been complied with to the reasonable satisfaction of KBCM and the Forward Seller; and (iv) no event specified in Section 4.03 shall have occurred and be continuing without the Company amending or supplementing the Registration Statement or the Prospectus, as the case may be, as provided in Section 4.03. The authorizations referred to in this Agreement and the Master Forward Confirmation shall have been issued and shall be in full force and effect, and such authorizations shall not be the subject of any pending or, to the Company’s knowledge, threatened application for rehearing or petition for modification, and are sufficient to authorize the issuance and sale of the Shares.

(f) No Suspension of Trading In or Delisting of Common Shares; Other Events. The trading of the Common Shares (including without limitation the Shares) shall not have been suspended by the Commission, the Principal Market or the Financial Industry Regulatory Authority (“FINRA”) since the immediately preceding Settlement Date or, if there has been no Settlement Date, the Closing Date, and the Shares shall have been approved for listing or quotation on and shall not have been delisted from the Principal Market. There shall not have occurred (and be continuing in the case of occurrences under clauses (i) and (ii) below) any of the following: (i) if trading generally on the Principal Market or The Nasdaq Stock Market has been suspended or materially limited, or minimum and maximum prices for trading have been fixed, or maximum ranges for prices have been required, by such exchange or by such system or by order of the Commission, FINRA or any other governmental authority, or a material disruption has occurred in commercial banking or securities settlement or clearance services in the United States; (ii) a general moratorium on commercial banking activities in New York declared by either federal or New York state authorities; or (iii) any material adverse change in the financial markets in the United States or in the international financial markets, any outbreak or escalation of hostilities or other calamity or crisis involving the United States or the declaration by the United States of a national emergency or war or any change or development involving a prospective change in national or international political, financial or economic

conditions, if the effect of any such event specified in this clause (iii) in the sole judgment of KBCM or the Forward Purchaser makes it impracticable or inadvisable to proceed with the sale of Shares.

(g) Comfort Letter. The independent registered public accounting firm who has audited the financial statements included or incorporated by reference in the Registration Statement shall have furnished to KBCM and the Forward Seller a letter required to be delivered pursuant to Section 4.08 on or before the date on which satisfaction of this condition is determined.

(k) Prospectus Supplement and Pricing Supplement. (i) A supplement or supplements to the prospectus included in the Registration Statement related to the offering and sale of Shares pursuant to this Agreement (a “Prospectus Supplement”), in form and substance to be agreed upon by the parties, setting forth information regarding this Agreement and the Master Forward Confirmation including, without limitation, the Maximum Program Amount, shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the time period required thereby and sufficient copies thereof delivered to KBCM and the Forward Seller on or prior to the date of sale of the Issuance Shares or Forward Hedge Shares, as applicable.

(ii) To the extent required by Section 4.01(ii), a Pricing Supplement, in form and substance to be agreed upon by the parties hereto, shall have been filed with the Commission pursuant to Rule 424(b) under the Securities Act within the time period required thereby and sufficient copies thereof delivered to KBCM and the Forward Seller on or prior to the date of sale of the Issuance Shares or Forward Hedge Shares, as applicable.

(l) Counsel Opinions. The counsel specified in Section 4.07, or other counsel selected by the Company and reasonably satisfactory to KBCM and the Forward Seller, shall have furnished to KBCM and the Forward Seller their written opinion required to be delivered pursuant to Section 4.07 on or before the date on which satisfaction of this condition is determined. In addition, Sidley Austin LLP, counsel for KBCM and the Forward Seller and the Alternative Sales Agent, or other counsel selected by KBCM and the Forward Seller, shall have furnished to KBCM and the Forward Seller its written opinion, dated on or before the date of the opinion(s) delivered pursuant to Section 4.07, in form and substance satisfactory to KBCM and the Forward Seller and of the same tenor as the opinion referred to in Section 2.02(iv) but modified as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such opinion; provided, that if such counsel has previously furnished an opinion of the same tenor as the opinion referred to in Section 2.02(iv), such counsel shall have furnished to KBCM and the Forward Seller a letter or letters to the effect that KBCM and the Forward Seller may rely on such previously furnished opinion of such counsel to the same extent as though it were dated the date of such letter authorizing reliance (except that the statements in such last opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to such date). In connection with the foregoing, 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, and Sidley Austin LLP may rely as to matters involving the laws of the State of Ohio upon the opinion of even date of Jones Day.

(m) Officers’ Certificate. The Company shall have furnished or caused to be furnished to KBCM and the Forward Seller an officers’ certificate executed by (A) the President and Chief Executive Officer or the Senior Executive Vice President and Chief Financial Officer or any Senior Executive Vice President or the Chief Accounting Officer of the Company and (B) the President and Chief Executive Officer or the Senior Executive Vice President and Chief Financial Officer or any Senior Executive Vice President or the Chief Accounting Officer (in each case, only if such officer had not executed the certificate pursuant to clause (A) above) or the Senior Vice President of Capital Markets of the Company, signing in such respective capacities, required to be delivered pursuant to Section 4.09 on or before the date on which satisfaction of this condition is determined, as to the matters specified in Section 2.02(ii).

(n) Other Documents. On the Closing Date and prior to each Transaction Date and Settlement Date, KBCM, the Forward Purchaser and the Forward Seller and their counsel shall have been furnished with such documents as they may reasonably request in order to evidence the accuracy and completeness of any of the representations or warranties, or the fulfillment of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and/or sale of the Shares as herein contemplated shall be satisfactory in form and substance to KBCM, the Forward Seller and the Forward Purchaser and their counsel.

Section 5.02 Documents Required To Be Delivered on each Transaction Date. KBCM’s and the Forward Seller’s obligation to sell Shares pursuant to an Issuance or Forward hereunder shall additionally be conditioned upon the delivery to KBCM and the Forward Seller on or before the Transaction Date of a certificate in form and substance reasonably satisfactory to KBCM and the Forward Seller, executed by the Chief Executive Officer, the President, the Chief Financial Officer, the Chief Investment Officer, any Senior Executive Vice President or the Senior Vice President of Capital Markets of the Company, to the effect that all conditions to the delivery of such Transaction Notice shall have been satisfied as at the date of such certificate (which certificate shall not be required if the foregoing representations shall be set forth in the Transaction Notice).

Section 5.03 Suspension of Sales. The Company, the Forward Purchaser, KBCM or the Forward Seller may, upon notice to the other parties in writing, including by e-mail or by telephone (confirmed immediately by verifiable facsimile transmission), suspend any sale of Shares, and the applicable Selling Period shall immediately terminate; provided, however, that such suspension and termination shall not affect or impair either party’s obligations with respect to any Shares sold hereunder prior to the receipt of such notice (and, in the case of any Forward Hedge Shares, the resulting Forward Contract). The Company agrees that no such notice shall be effective against the Forward Purchaser, KBCM or the Forward Seller unless it is made to one of the individuals named on Schedule 1 annexed hereto, as such Schedule may be amended from time to time. Each of the Forward Purchaser, KBCM and the Forward Seller agrees that no such notice shall be effective against the Company unless it is made to one of the individuals named on Schedule 1 annexed hereto, as such Schedule 1 may be amended from time to time.

ARTICLE VI

INDEMNIFICATION AND CONTRIBUTION

Section 6.01 Indemnification by the Company. The Company agrees to indemnify and hold harmless each of the Forward Purchaser, KBCM, and the Forward Seller, each of their respective officers, directors, employees and agents, and each Person, if any, who controls the Forward Purchaser, KBCM or the Forward Seller within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, together with each such Person’s respective officers, directors, employees and agents (collectively, the “Controlling Persons”), from and against any and all losses, claims, damages or liabilities, and any action or proceeding in respect thereof, to which the Forward Purchaser, KBCM, or the Forward Seller, as the case may be, and each of their officers, directors, employees and agents, and any such Controlling Person may become subject under the Securities Act, the Exchange Act or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Prospectus, any Free Writing Prospectus or any other prospectus relating to the Shares, or any amendment or supplement thereto, or any preliminary prospectus, or arise out of, or are based upon, any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus or any amendment or supplement thereto or any Free Writing Prospectus or preliminary prospectus, in light of the circumstances in which they were made) not misleading, except insofar as the same are made in reliance upon and in conformity with information related to the Forward Purchaser, KBCM or the Forward Seller or their plan of distribution furnished in

writing to the Company by or on behalf of the Forward Purchaser, KBCM or the Forward Seller, as the case may be, expressly for use therein, and the Company shall reimburse the Forward Purchaser, KBCM or the Forward Seller, as the case may be, their officers, directors, employees and agents, and each Controlling Person for any reasonable legal and other expenses incurred thereby in investigating or defending or preparing to defend against any such losses, claims, damages or liabilities, or actions or proceedings in respect thereof, as such expenses are incurred.

Section 6.02 Indemnification by the Forward Purchaser, KBCM and the Forward Seller. Each of the Forward Purchaser, KBCM and the Forward Seller agrees to indemnify and hold harmless the Company, its officers, directors, employees and agents and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, together with each such Person’s respective officers, directors, employees and agents, from and against any losses, claims, damages or liabilities, and any action or proceeding in respect thereof, to which the Company, its officers, directors, employees or agents, any such controlling Person and any officer, director, employee or agent of such controlling Person may become subject under the Securities Act, the Exchange Act or otherwise, insofar as losses, claims, damages or liabilities (or action or proceeding in respect thereof) arise out of, or are based upon, any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Prospectus, any Free Writing Prospectus or any other prospectus relating to the Shares, or any amendment or supplement thereto, or any preliminary prospectus, or arise out of, or are based upon, any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, any Free Writing Prospectus or any other prospectus relating to the Shares, or any amendment or supplement thereto or any preliminary prospectus, in light of the circumstances in which they were made) not misleading in each case to the extent, but only to the extent that such untrue statement or alleged untrue statement or omission or alleged omission was made therein in reliance upon and in conformity with written information related to the Forward Purchaser, KBCM and the Forward Seller or its respective plan of distribution furnished to the Company by or on behalf of the Forward Purchaser, KBCM and the Forward Seller, as the case may be, expressly for use therein and the Forward Purchaser, KBCM and the Forward Seller shall reimburse the Company, its officers, directors, employees and agents and each Controlling Person of the Company for any reasonable legal and other expenses incurred thereby in investigating or defending or preparing to defend against any such losses, claims, damages or liabilities, or actions or proceedings in respect thereof, as such expenses are incurred.

Party shall not relieve it from any liability that it may have to an Indemnified Party otherwise than under Section 6.01 or 6.02. If any such claim or action shall be brought against an Indemnified Party, the Indemnifying Party shall be entitled to participate therein, and, to the extent that it wishes, jointly with any other similarly notified Indemnifying Party, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified Party of its election to assume the defense of such claim or action, the Indemnifying Party shall not be liable to the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense thereof other than reasonable costs of investigation; provided, that the Indemnified Party shall have the right to employ separate counsel to represent the Indemnified Party, but the fees and expenses of such counsel shall be for the account of such Indemnified Party unless (i) the Indemnifying Party and the Indemnified Party shall have mutually agreed to the retention of such counsel or (ii) such Indemnified Party reasonably concludes that representation of both parties by the same counsel would be inappropriate due to actual or potential conflicts of interest with the Company, it being understood, however, that the Indemnifying Party shall not, in connection with any one such claim or action or separate but substantially similar or related claims or actions in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for all Indemnified Parties or for fees and expenses that are not reasonable. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement of any claim or pending or threatened proceeding in respect of which the Indemnified Party is or could have been a party and indemnification could have been sought hereunder by such Indemnified Party unless such settlement includes an unconditional release of each such Indemnified Party from all losses, claims, damages or liabilities arising out of such claim or proceeding and such settlement does not admit or constitute an admission of fault, guilt, failure to act or culpability on the part of any such Indemnified Party. Whether or not the defense of any claim or action is assumed by an Indemnifying Party, such Indemnifying Party will not be subject to any liability for any settlement made without its prior written consent, which consent will not be unreasonably withheld.

Section 6.04 Contribution. If for any reason the indemnification provided for in this Article VI is unavailable to the Indemnified Parties in respect of any losses, claims, damages or liabilities referred to herein, then each Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such losses, claims, damages or liabilities among the Company, on the one hand, and KBCM, the Forward Seller and the Forward Purchaser, on the other, in such proportion as is appropriate to reflect the relative benefits received by the Company, on the one hand, and KBCM, the Forward Seller and the Forward Purchaser, on the other from the offering of the Shares to which such losses, claims, damages or liabilities relate. If, however, the allocation provided by the immediately preceding sentence is not permitted by applicable law, then each Indemnifying Party shall contribute to such amount paid or payable by such Indemnifying Party in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of each of the Company, KBCM, the Forward Seller and the Forward Purchaser in connection with such statements or omissions, as well as any other relevant equitable considerations. The relative benefits received by each of the Company, KBCM, the Forward Seller and the Forward Purchaser, shall be equal to the sum, for each Transaction under this

Agreement, of, (a) in the case of the Company, (x) the Actual Sold Forward Amount for each Forward under this Agreement, multiplied by the Forward Hedge Price for such Forward, and (y) the Actual Sold Issuance Amount for each Issuance under this Agreement, multiplied by the Issuance Price for such Issuance, (b) in the case of KBCM, the Actual Sold Issuance Amount for each Issuance under this Agreement, multiplied by the Issuance Selling Commission for such Issuance, (c) in the case of the Forward Seller, the Actual Sold Forward Amount for each Forward under this Agreement, multiplied by the Forward Hedge Selling Commission for such Forward, and (d) in the case of the Forward Purchaser, the net Spread (as such term is defined in the Master Forward Confirmation and net of any related stock borrow costs actually incurred) by such Forward Purchaser for all Forward Contracts executed in connection with this Agreement. The relative fault of the Company, on the one hand, and KBCM, the Forward Seller and the Forward Purchaser, 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 each such party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

Each of the Company, KBCM, the Forward Seller and the Forward Purchaser agrees that it would not be just and equitable if contribution pursuant to this Section 6.04 were determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in the immediately preceding paragraph. The amount paid or payable by an Indemnified Party as a result of the losses, claims, damages or liabilities referred to in the immediately preceding paragraph shall be deemed to include, subject to the limitations set forth above, any reasonable 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 6.04, (i) neither KBCM nor the Forward Seller shall in any event be required to contribute any amount in excess of the aggregate Issuance Selling Commissions or the aggregate Forward Hedge Selling Commissions, as the case may be, received by it under this Agreement and (ii) the Forward Purchaser shall in no event be required to contribute any amount in excess of the net Spread for all Forward Contracts entered into pursuant to this Agreement. No Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation. For purposes of this Section 6.04, each officer, director, employee and agent of the Forward Purchaser, KBCM or the Forward Seller, and each Controlling Person of each, shall have the same rights to contribution as the Forward Purchaser, KBCM or the Forward Seller, as the case may be, and each director of the Company, each officer of the Company who signed the Registration Statement, and each Person, if any, who controls the Company within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act shall have the same rights to contribution as the Company. The obligations of the Company, KBCM, the Forward Seller and the Forward Purchaser under this Article VI shall be in addition to any liability that each may otherwise have.

ARTICLE VII

TERMINATION

Section 7.01 Term. Subject to the provisions of this Article VII, the term of this Agreement shall run until the end of the Commitment Period.

Section 7.02 Termination by KBCM. KBCM may terminate the right of the Company to effect any Issuances or Forwards under this Agreement upon one Trading Day’s notice if any of the following events shall occur:

(a)

(b)

(c)

The Company shall fail to maintain the listing of the Common Shares on the Principal Market;

(d)

(e)

KBCM shall have given ten days’ notice of its election to terminate this Agreement, in its sole discretion, at any time.

Section 7.04 Liability; Provisions that Survive Termination. If this Agreement is terminated pursuant to this Article VII, such termination shall be without liability of any party hereto to any other party hereto except as provided in Section 9.02 and for the Company’s, KBCM’s and the Forward Seller’s respective obligations in respect of all prior Transaction Notices; and provided, further, that in any case the provisions of Article VI, Article VIII and Article IX shall survive termination of this Agreement without limitation.

ARTICLE VIII

REPRESENTATIONS AND WARRANTIES TO SURVIVE DELIVERY

All representations and warranties of the Company herein or in certificates delivered pursuant hereto shall remain operative and in full force and effect regardless of (i) any investigation made by or on behalf of KBCM, the Forward Seller or the Forward Purchaser or any of the respective officers, directors, employees and agents and any Controlling Persons, (ii) delivery and acceptance of the Shares and payment therefor, (iii) the settlement of any Forward Contract or (iv) any termination of this Agreement or the Master Forward Confirmation.

ARTICLE IX

MISCELLANEOUS

Section 9.01 Press Releases and Disclosure. The Company may issue a press release describing the material terms of the transactions contemplated hereby as soon as practicable following the Closing Date, and may file with the Commission a Current Report on Form 8-K describing the material terms of the transactions contemplated hereby, and the Company shall consult with KBCM prior to making such disclosures, and the parties hereto shall use all commercially reasonable efforts, acting in good faith, to agree upon a text for such disclosures that is reasonably satisfactory to all parties hereto. No party hereto shall issue thereafter any press release or like public statement (including, without limitation, any disclosure required in reports filed with the Commission pursuant to the Exchange Act) related to this Agreement or the Master Forward Confirmation or any of the transactions contemplated hereby or thereby that includes information related to this Agreement or the Master Forward Confirmation or transactions contemplated hereby or thereby that has not been previously disclosed without the prior written approval of the other party hereto, except as may be necessary or appropriate in the opinion of the party seeking to make disclosure to comply with the requirements of applicable law or stock exchange rules. If any such press release or like public statement is so required, the party making such disclosure shall consult with the other party prior to making such disclosure, and the parties shall use all commercially reasonable efforts, acting in good faith, to agree upon a text for such disclosure that is reasonably satisfactory to all parties hereto.

Section 9.02 Expenses. The Company covenants and agrees with KBCM, the Forward Seller and the Forward Purchaser that the Company shall pay or cause to be paid the following: (i) the fees, disbursements and expenses of the Company’s counsel and accountants in connection with the preparation, printing and filing of the Registration Statement, the Prospectus and any Pricing Supplements and all other amendments and supplements thereto and the mailing and delivery of copies thereof to KBCM and the Forward Seller and the Principal Market; (ii) KBCM’s, the Forward Seller’s and the Forward Purchaser’s reasonable documented out-of-pocket expenses (up to, together with the Alternative Sales Agent’s reasonable documented out-of-pocket expenses incurred in connection with the Alternative Sales Agency Agreement, $70,000 in the aggregate (in addition to the reimbursement provided for in Section 9.02 of the Initial Agreement)) including the reasonable fees, disbursements and expenses of counsel and special counsel for KBCM, the Forward Seller and the Forward Purchaser (including in connection with the qualification of the Shares for offering and sale under state securities laws as provided in Section 4.02 and in connection with preparing any blue sky survey), incurred in connection with this Agreement and the Master Forward Confirmation and the Registration Statement and any Issuances or Forwards hereunder and ongoing services in connection with the transactions contemplated hereunder; (iii) the cost (other than those expenses described in clause (ii) above) of printing, preparing or reproducing this Agreement and the Master Forward Confirmation and any other documents in connection with the offering, purchase, sale and delivery of the Shares; (iv) all filing fees and expenses (other than those expenses described in clause (ii) above) in connection with the qualification of the Shares for offering and sale under state securities laws as provided in Section 4.02; (v) the cost of preparing the Shares; (vi) the fees and expenses of any transfer agent of the Company; (vii) the cost of providing any CUSIP or other identification numbers for the Shares; (viii) the fees and expenses incurred in connection with the listing or qualification of the Shares on the Principal Market and any filing fees incident

to any required review by FINRA of the terms of the sale of the Shares in connection with this Agreement and the Master Forward Confirmation and the Registration Statement; and (ix) all other costs and expenses incident to the performance of the Company’s obligations hereunder that are not otherwise specifically provided for in this Section. During the term of this Agreement, the Company shall pay KBCM’s attorneys’ fees for its quarterly or other periodic due diligence review in connection with the delivery by the Company of a Transaction Notice and review of the opinions, letters and certificates delivered pursuant to Sections 4.07, 4.08 and 4.09 and related matters (amount not to exceed, together with the Alternative Sales Agent’s attorneys’ fees for its quarterly or other periodic reviews pursuant to the Alternative Sales Agency Agreement, $15,000 in the aggregate for any fiscal quarter, unless otherwise agreed by the parties hereto).

Section 9.03 Notices. All notices, demands, requests, consents, approvals or other communications required or permitted to be given hereunder or that are given with respect to this Agreement shall be in writing and shall be personally served or deposited in the mail, registered or certified, return receipt requested, postage prepaid or delivered by reputable air courier service with charges prepaid, or transmitted by hand delivery, telegram, telex or facsimile, addressed as set forth below, or to such other address as such party shall have specified most recently by written notice: (i) if to the Company to: DDR Corp. at 3300 Enterprise Parkway, Beachwood, Ohio 44122, Attention: David J. Oakes, Senior Executive Vice President and Chief Financial Officer, Facsimile No.: 216-755-3453, E-mail: doakes@ddr.com, with a copy (which shall not constitute notice) to: DDR Corp. at 3300 Enterprise Parkway, Beachwood, Ohio 44122, Attention: David E. Weiss, Executive Vice President and General Counsel, Facsimile No.: 216-755-1650, E-mail: dweiss@ddr.com, and to: Jones Day, North Point, 901 Lakeside Avenue, Cleveland, Ohio 44114, Attention: Michael J. Solecki, Facsimile No.: 216-579-0212, E-mail: mjsolecki@jonesday.com; and (ii) if to KBCM or the Forward Purchaser, KeyBanc Capital Markets Inc., 127 Public Square, Cleveland, Ohio 44114, Attention: David Gruber, E-mail: dgruber@keybanccm.com, John Horrigan, E-mail: jhorrigan@keybanccm.com, and Paul Hodermarsky, E-mail: phodermarsky@keybanccm.com, with a copy (which shall not constitute notice) to: Sidley Austin LLP, 787 Seventh Avenue, New York, New York 10019, Attention J. Gerard Cummins, Facsimile No.: 212-839-5599, E-mail: jcummins@sidley.com. Except as set forth in Sections 2.03, 4.03 and 5.03, notice shall be deemed given on the date of service or transmission if personally served or transmitted by telegram, telex or confirmed facsimile. Notice otherwise sent as provided herein shall be deemed given on the third business day following the date mailed or on the next business day following delivery of such notice to a reputable air courier service for next day delivery.

Section 9.04 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)), KBCM is required to obtain, verify and record information that identifies its clients, including the Company, which information may include the name and address of its clients, as well as other information that will allow KBCM to properly identify its clients.

Section 9.07 No Assignment; No Third-Party Beneficiaries. This Agreement and the rights, duties and obligations hereunder may not be assigned or delegated by the Company or KBCM, the Forward Seller or the Forward Purchaser. Any purported assignment or delegation of rights, duties or obligations hereunder shall be void and of no effect. This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties hereto and their respective successors and, to the extent provided in Article VI, the Controlling Persons, officers, directors, employees and agents referred to in Article VI. This Agreement is not intended to confer any rights or benefits on any Persons other than as set forth in Article VI or elsewhere in this Agreement.

of such courts (and of the appropriate appellate courts therefrom) and each party hereto waives (to the full extent permitted by law) any objection it may have to the laying of venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding has been brought in an inconvenient forum.

Section 9.12 Waiver of Jury Trial. Each of the Company, KBCM, the Forward Seller and the Forward Purchaser hereby irrevocably waives any right it may have to a trial by jury in respect of any claim based upon or arising out of this Agreement or the Master Forward Confirmation or any transaction contemplated hereby or thereby.

Section 9.15 No Fiduciary Duty. The Company acknowledges and agrees that each of the Forward Purchaser, KBCM and the Forward Seller is acting solely in the capacity of an arm’s length contractual counterparty to the Company with respect to the offering of Shares contemplated hereby (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 other Person and will not claim that the Forward Purchaser, KBCM or the Forward Seller is acting in such capacity in connection with the offering of the Shares contemplated hereby. Additionally, none of the Forward Purchaser, KBCM or the Forward Seller is advising the Company or any other person as to any legal, tax, investment, accounting or regulatory matters in any jurisdiction with respect to the transactions contemplated hereby. 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 none of the Forward Purchaser, KBCM or the Forward Seller shall have any responsibility or liability to the Company with respect thereto. Any review by the Forward Purchaser, KBCM or the Forward Seller of the Company, the transactions contemplated hereby or other matters relating to such transactions will be performed solely for the benefit of the Forward Purchaser, KBCM or the Forward Seller, as the case may be and shall not be on behalf of the Company.

[Signature Page Follows]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by the undersigned, thereunto duly authorized, as of the date first set forth above.


DDR CORP.

By:	/s/ David J. Oakes
	Name:	David J. Oakes, CFA
	Title:	Senior Executive Vice President & Chief Financial Officer

KEYBANC CAPITAL MARKETS INC., as agent, Forward Seller and Forward Purchaser

By:	/s/ John Horrigan
	Name:	John Horrigan
	Title:	Managing Director

EXHIBIT A

TRANSACTION NOTICE

, 201

[KeyBanc Capital Markets Inc., 127 Public Square, Cleveland, Ohio 44114]

[KeyBanc Capital Markets Inc., as Forward Purchaser, 127 Public Square, Cleveland, Ohio 44114]¹

Attn:

David Gruber

John Horrigan

Paul Hodermarsky

Reference is made to the Amended and Restated Sales Agency Financing Agreement (the “Sales Agency Agreement”) between DDR CORP. (the “Company”) and KEYBANC CAPITAL MARKETS INC. (in its capacity as agent for the Company in connection with the offering and sale of any Issuance Shares thereunder, “KBCM,” in its capacity as agent for the Forward Purchaser in connection with the offering and sale of any Forward Hedge Shares thereunder, the “Forward Seller”), and in its capacity as counterparty under any Forward Contract (the “Forward Purchaser”). Capitalized terms used in this Transaction Notice without definition shall have the respective definitions ascribed to them in the Sales Agency Agreement. This Transaction Notice relates to [an “Issuance”]² [a “Forward”].³ The Company confirms that all conditions to the delivery of this Transaction Notice are satisfied as of the date hereof.

Effective Date of Delivery of Transaction Notice (determined pursuant to Section 2.03(b) of the Sales Agency Agreement):

Number of Days in [Issuance]⁵ [Forward]⁶ Selling Period:

First Date of [Issuance]⁷ [Forward]⁸ Selling Period:

¹	Insert for a Transaction Notice that relates to a “Forward.”

²	Insert for a Transaction Notice that relates to an “Issuance.”

³	Insert for a Transaction Notice that relates to a “Forward.”

⁴	Insert for a Transaction Notice that relates to a “Forward.”

⁵	Insert for a Transaction Notice that relates to an “Issuance.”

⁶	Insert for a Transaction Notice that relates to a “Forward.”

⁷	Insert for a Transaction Notice that relates to an “Issuance.”

⁸	Insert for a Transaction Notice that relates to a “Forward.”

A-1


[Issuance]⁹ [Forward]¹⁰ Amount:		$
[Forward Price Reduction Dates		Forward Price Reduction Amounts
[Trade Date:]		USD [ ]
[ ]		USD [ ]
[ ]		USD [ ]
[ ]		USD [ ]
[Maturity Date:]		USD [ ]
[Thereafter:]		USD [ ]
Term: [Days] [Months]¹¹

Last Date of [Issuance]¹² [Forward Hedge]¹³ Selling Period:

Floor Price (Adjustable by Company during the [Issuance]¹⁴ [Forward]¹⁵ Selling Period, and in no event less than $2.00 without the prior written consent of KBCM, which consent may be withheld in KBCM’s sole discretion): $ per share

Comments:


DDR CORP.

By:
Name:
Title:

⁹	Insert for a Transaction Notice that relates to an “Issuance.”

¹⁰	Insert for a Transaction Notice that relates to a “Forward.”

¹¹	Insert for a Transaction Notice that relates to an “Forward.”

¹²	Insert for a Transaction Notice that relates to a “Issuance.”

¹³	Insert for a Transaction Notice that relates to a “Forward.”

¹⁴	Insert for a Transaction Notice that relates to an “Issuance.”

¹⁵	Insert for a Transaction Notice that relates to a “Forward.”

EXHIBIT B

Form of Opinion of Jones Day, Counsel for the Company

B-1

SCHEDULE 1


KBCM, FORWARD SELLER OR FORWARD PURCHASER

David Gruber

	Telephone:	(216) 689-0444
	E-mail:	dgruber@keybanccm.com
	Address:	127 Public Square
		6^th Floor
		Cleveland, Ohio 44114

John Horrigan

	Telephone:	(216) 689-4615
	E-mail:	jhorrigan@keybanccm.com
	Address:	127 Public Square
		6^th Floor
		Cleveland, Ohio 44114

Paul Hodermarsky

	Telephone:	(216) 689-3910
	E-mail:	phodermarsky@keybanccm.com
	Address:	127 Public Square
		4^th Floor
		Cleveland, Ohio 44114

DDR CORP.

David J. Oakes

	Telephone:	(216) 755-6453
	Facsimile:	(216) 755-3453
	E-mail:	doakes@ddr.com
	Address:	3300 Enterprise Parkway
		Beachwood, Ohio 44122

Tammy Battler

	Telephone:	(216) 755-5770
	Facsimile:	(216) 755-1700
	E-mail:	tbattler@ddr.com
	Address:	3300 Enterprise Parkway
		Beachwood, Ohio 44122

S-1

EX-1.3 4 d446809dex13.htm EX-1.3 EX-1.3

Exhibit 1.3

EXECUTION COPY

December 4, 2012

Master Confirmation for Forward Stock Sale Transactions

To:

DDR Corp.

3300 Enterprise Parkway

Beachwood, Ohio 44122

Telefax No.: 216-755-1827

Attention:

Luke Petherbridge

Senior Vice President of Capital Markets

From:

The Bank of New York Mellon

32 Old Slip

15th Floor

New York, New York 10286

Telefax No.: 212-495-1015

Dear Sir/Madam:

The purpose of this letter agreement (this “Master Confirmation”) is to confirm the terms and conditions of the transactions to be entered into from time to time between The Bank of New York Mellon (“BNYM”) and DDR Corp. (“Party B”) in accordance with the terms of the Amended and Restated Sales Agency Financing Agreement, dated as of December 4, 2012, among BNY Mellon Capital Markets, LLC, BNYM and Party B (the “Sales Agency Financing Agreement”) on the Trade Dates specified below (collectively, the “Transactions”, and each, a “Transaction”). Each Transaction will be evidenced by a supplemental confirmation (each, a “Supplemental Confirmation,” and each such Supplemental Confirmation, together with this Master Confirmation, a “Confirmation” for purposes of the Agreement specified below) substantially in the form of Exhibit A hereto.

The definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions (as published by the International Swaps and Derivatives Association, Inc. (“ISDA”)) (the “Equity Definitions”) are incorporated into each Confirmation. In the event of any inconsistency between the Equity Definitions and any Confirmation, such Confirmation will govern to the extent of such inconsistency. Any reference to a currency shall have the meaning contained in Annex A to the 1998 ISDA FX and Currency Option Definitions, as published by ISDA.

Each Confirmation evidences a complete and binding agreement between BNYM and Party B as to the terms of the Transaction to which such Confirmation relates. Each Confirmation shall supplement, form a part of, and be subject to an agreement in the form of the 2002 ISDA Master Agreement (the “Agreement”) as if BNYM and Party B had executed an agreement in such form on the date hereof (but without any Schedule except for the election of the laws of the State of New York as the governing law); provided that in no event shall Party B be required to pay an additional amount to BNYM under Section 2(d)(i)(4) of the Agreement; provided further that, prior to any assignment or transfer by BNYM any of its rights, or any delegation by BNYM any of its duties, under this Master Confirmation and any Supplemental Confirmation relating to a Transaction, in each case, pursuant to the provisions set forth under the heading “Assignment” below, in no event shall BNYM be required to pay an additional amount to Party B under Section 2(d)(i)(4) of the Agreement. In the event of any inconsistency between provisions of the Agreement and any Confirmation, such Confirmation will prevail for the purpose of the Transaction to which such Confirmation relates. In the event of any inconsistency between provisions of this Master Confirmation and any Supplemental Confirmation, such Supplemental Confirmation will prevail to the extent of such inconsistency. The parties hereby agree that no Transaction other than the Transactions to which the Confirmations relate shall be governed by the Agreement. For purposes of the Equity Definitions, each Transaction is a Share Forward Transaction.

2.	The terms of the particular Transactions to which this Master Confirmation relates are as follows:

GENERAL TERMS:


Seller:		Party B

Buyer:		BNYM

Trade Date:		Subject to the provisions under the heading “Acceleration Events” below, for each Transaction, the last Trading Day (as defined in the Sales Agency Financing Agreement) of the Forward Hedge Selling Period (as defined in the Sales Agency Financing Agreement) for such Transaction, as specified in the Supplemental Confirmation for such Transaction.

Effective Date:		For each Transaction, the date that follows the Trade Date for such Transaction by one Settlement Cycle, as specified in the Supplemental Confirmation for such Transaction.

Base Shares:		For each Transaction, the number of Shares equal to the Actual Sold Forward Amount (as defined in the Sales Agency Financing Agreement) for the Forward Hedge Selling Period for such Transaction, as specified in the Supplemental Confirmation for such Transaction. Immediately after the open of business on each Settlement Date for a Transaction, the number of Base Shares for such Transaction shall be reduced by the number of Settlement Shares for such Settlement Date.

Maturity Date:		For each Transaction, the date that follows the Trade Date for such Transaction by the number of months set forth in the Transaction Notice (as defined in the Sales Agency Financing Agreement) for such Transaction, as specified in the Supplemental Confirmation for such Transaction (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day); provided that if the Maturity Date for any Transaction is a Disrupted Day, then such Maturity Date shall be the first succeeding Scheduled Trading Day that is not a Disrupted Day.

Forward Price:		For each Transaction, on the Effective Date for such Transaction, the Initial Forward Price for such Transaction, and on any other day, the Forward Price for such Transaction as of the immediately preceding calendar day multiplied by the sum of (i) 1 and (ii) the Daily Rate for such day; provided that, on each Forward Price Reduction Date for such Transaction that occurs on or after the Effective Date for such Transaction, the Forward Price for such Transaction in effect on such date shall be such Forward Price otherwise in effect on such date minus the Forward Price Reduction Amount for such Forward Price Reduction Date.

Initial Forward Price:		For each Transaction, the product of (i) an amount equal to 1 minus the Forward Hedge Selling Commission Rate (as defined in the Sales Agency Financing Agreement) applicable to such Transaction; and (ii) the Volume-Weighted Hedge Price.

Volume-Weighted Hedge Price:		For each Transaction, the USD amount per Share equal to the volume-weighted average of the Sales Prices (as defined in the Sales Agency Financing Agreement) per share of Forward Hedge Shares (as defined in the Sales Agency Financing Agreement) sold on each Trading Day (as defined in the Sales Agency Financing Agreement) of the Forward Hedge Selling Period for such Transaction, as specified in the Supplemental Confirmation for such Transaction; provided that, solely for the purposes of calculating the Initial Forward Price, each such Sales Price (other than the Sales Price for the last day of the relevant Forward Hedge Selling Period) shall be subject to adjustment in the same manner as the Forward Price pursuant to the definition thereof during the period from, but excluding, the date one Settlement Cycle immediately

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		following the Trading Day of the relevant Forward Hedge Selling Period on which the Forward Hedge Shares related to such Sales Price are sold to, and including, the Effective Date of such Transaction. The Initial Forward Price for each Transaction shall be specified in the Supplemental Confirmation for such Transaction.

Daily Rate:		For any day, (i)(A) USD-Federal Funds Rate for such day minus (B) the Spread divided by (ii) 360.

USD-Federal Funds Rate:		For any day, the rate set forth for such day opposite the caption “Federal funds”, as such rate is displayed on the page “FedsOpen <Index> <GO>” on the BLOOMBERG Professional Service, or any successor page; provided that if no rate appears on any day on such page, the Calculation Agent shall determine the rate for such day in a commercially reasonable manner from any publicly available source (including any Federal Reserve Bank); provided, however, that if, after using its commercially reasonable efforts, the Calculation Agent is unable to find such a rate, then the rate for the immediately preceding day (determined in the manner provided above) shall be used for such day.

Spread:		0.50%

Settlement Commission:		As set forth in Exhibit B hereto.

Forward Price Reduction Date:		For each Transaction, each date set forth under the heading “Forward Price Reduction Date” in the Transaction Notice for such Transaction, as specified in Schedule I to the Supplemental Confirmation for such Transaction.

Forward Price Reduction Amount:		For each Forward Price Reduction Date for any Transaction, the Forward Price Reduction Amount set forth opposite such date on Schedule I to the Supplemental Confirmation for such Transaction.

Shares:		Common Shares, $0.10 par value per share, of DDR Corp. (the “Issuer”) (Exchange identifier: “DDR”).

Prepayment:		Not Applicable

Exchange:		New York Stock Exchange, subject to clause (e) under the heading “Acceleration Events” below.

Related Exchange(s):		All Exchanges.

Clearance System:		The Depository Trust Company (or its successor).

Calculation Agent:		BNYM. Upon execution of this Master Confirmation, Party B hereby requests the Calculation Agent to provide, and the Calculation Agent shall provide, Party B with a schedule of all calculations, adjustments and determinations in reasonable detail and in a timely manner.

Determining Party:		BNYM

Exchange Act:		The Securities Exchange Act of 1934, as amended from time to time.

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SETTLEMENT TERMS:

Settlement Date:		With respect to any Transaction, subject to the provisions under “Acceleration Events” and “Termination Settlement” below, any Scheduled Trading Day following the Effective Date for such Transaction and up to, and including, the Maturity Date for such Transaction, as designated by Party B in a written notice (a “Settlement Notice”) that satisfies the Settlement Notice Requirements and that (a) if related to any Cash Settlement or Net Share Settlement, is delivered to BNYM at least ten Scheduled Trading Days prior to such Settlement Date and (b) if related to Physical Settlement, is delivered at any time before the Maturity Date for such Transaction, and settlement will be completed as promptly as reasonably practicable thereafter; provided that (i) subject to clause (ii) below and after giving effect to any other Settlement occurring on the Maturity Date for such Transaction, the Maturity Date for such Transaction shall be a Settlement Date for such Transaction if the number of Base Shares for such Transaction immediately before the open of business on such Maturity Date is greater than zero; (ii) if Cash Settlement or Net Share Settlement applies, any Settlement Date for any Transaction shall, if BNYM is unable to completely unwind its hedge during the originally scheduled Unwind Period due to (A) an inability to comply with the provisions of Rule 10b-18 under the Exchange Act (assuming that Rule 10b-18 applied to BNYM’s purchases during the Unwind Period as if BNYM were Party B), (B) the existence of any Suspension Day or Disrupted Day, or (C) the inability of BNYM, in its commercially reasonable judgment after using its commercially reasonable efforts, to unwind its hedge during the originally scheduled Unwind Period, be deferred until the third Scheduled Trading Day following the date on which BNYM is able to completely unwind its hedge (provided that such deferral shall not extend beyond the earlier of (x) the Maturity Date and (y) the 20th Scheduled Trading Day after the Settlement Date designated in the Settlement Notice, and such deferred date shall be a Settlement Date for such Transaction to which (1) Cash Settlement or Net Share Settlement, as applicable, will apply with respect to the portion of the applicable Settlement Shares as to which BNYM has unwound its hedge during the Unwind Period (for avoidance of doubt, such portion of such Settlement Shares to be a number of Settlement Shares with respect to which BNYM would be deemed, pursuant to the immediately following paragraph, to have completely unwound its hedge), and (2) Physical Settlement will apply with respect to the remainder of such Settlement Shares), and (iii) with respect to any Transaction, no more than 20 Settlement Dates other than the Maturity Date for such Transaction may be designated by Party B; provided further that if BNYM shall fully unwind its hedge by a date that is more than one Settlement Cycle prior to the related Settlement Date specified above, BNYM may, by written notice to Party B, specify any Scheduled Trading Day prior to such original Settlement Date as the Settlement Date; provided further that if any Settlement Date specified above is not a Scheduled Trading Day, the Settlement Date shall instead be the next Scheduled Trading Day. Notwithstanding anything herein to the contrary, if any Settlement Date is not a Clearance System Business Day, then such Settlement Date shall instead occur on the next succeeding day that is a Clearance System Business Day.

		With respect to any Settlement Date of a Transaction, BNYM will be deemed to have completely unwound its hedge upon such time that BNYM shall have acquired a number of Shares (i) in the case of Cash Settlement, equal to the number of Settlement Shares for such Settlement Date, and (ii) in the case of Net Share Settlement, for which BNYM has paid an aggregate purchase price (inclusive of a per Share commission equal to the Settlement Commission) equal to (1) the product of (A) the number of Settlement Shares for such Settlement Date and (B) the Forward Price for such Transaction as of the first day of the applicable Unwind Period minus (2) the product of (A) the Forward Price Reduction Amount for each Forward Price Reduction Date for such Transaction

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		that occurs during such Unwind Period and (B) the number of Settlement Shares with respect to which BNYM has not unwound its hedge as of the close of business on such Forward Price Reduction Date.

Settlement Shares:		For any Settlement Date of a Transaction, subject to the provisions under “Acceleration Events” and “Termination Settlement” below, the number of Shares so designated by Party B in the applicable Settlement Notice, provided such number of Shares shall not exceed the number of Base Shares for such Transaction immediately before the open of business on such Settlement Date, less the number of Shares previously designated as Settlement Shares for such Transaction for which a Settlement Date has not yet occurred; provided that, on the Maturity Date for any Transaction, the number of Settlement Shares for such Transaction shall be equal to the number of Base Shares for such Transaction immediately before the open of business on such Maturity Date, less the number of Shares previously designated as Settlement Shares for such Transaction for which a Settlement Date has not yet occurred; provided further that the number of Settlement Shares shall not be less than the lesser of (i) the number of Base Shares for such Transaction immediately before the open of business on such Settlement Date, less the number of Shares previously designated as Settlement Shares for such Transaction for which a Settlement Date has not yet occurred; and (ii) 1,000 Shares.

Settlement Method:		Subject to the provisions under “Settlement Date” above and “Acceleration Events” and “Termination Settlement” below, Physical, Cash, or Net Share, at the election of Party B as set forth in a Settlement Notice that satisfies the Settlement Notice Requirements. Party B hereby irrevocably elects Physical Settlement to apply to any Settlement Date for a Transaction that occurs on the Maturity Date for such Transaction pursuant to clause (i) of the first proviso opposite the caption “Settlement Date” above for which a Settlement Notice meeting the requirements hereof has not been delivered. Furthermore, if Party B designates a Settlement Date but fails to elect a Settlement Method for such Settlement Date, Party B shall be deemed to have irrevocably elected for Physical Settlement to apply on such Settlement Date.

Settlement Notice Requirements:		Notwithstanding any other provisions hereof, a Settlement Notice delivered by Party B that specifies Cash Settlement or Net Share Settlement will not be effective to establish a Settlement Date or require Cash Settlement or Net Share Settlement (as applicable) unless Party B delivers to BNYM with such Settlement Notice a representation signed by Party B substantially in the following form: “As of the date of this Settlement Notice, DDR Corp is not aware of any material nonpublic information concerning itself or the Shares, and is designating the date contained herein as a Settlement Date in good faith and not as part of a plan or scheme to evade compliance with the federal securities laws.” In addition, notwithstanding any other provisions hereof, a Settlement Notice delivered by Party B that specifies Cash Settlement or Net Share Settlement will not be effective to establish a Settlement Date or require Cash Settlement or Net Share Settlement (as applicable) if, as of the date of such Settlement Notice, any Shares (other than the Settlement Shares designated in such Settlement Notice) have been designated as Settlement Shares for a Cash Settlement or a Net Share Settlement for which the last Unwind Date is not before the date of such Settlement Notice.

Unwind Period:		The period from, and including, the first Scheduled Trading Day following the date on which Party B elects Cash Settlement or Net Share Settlement in respect of a Settlement Date through the third Scheduled Trading Day preceding such Settlement Date (it being understood that such Settlement Date may be deferred pursuant to clause (ii) of the first proviso under “Settlement Date” above, thereby lengthening the related Unwind Period).

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Unwind Daily Share Amount:		On each Scheduled Trading Day during the Unwind Period relating to a Settlement Date, other than a Suspension Day or a Disrupted Day, BNYM will, in accordance with the principles of best execution, use commercially reasonable efforts to purchase a number of Shares equal to the least of (i) 100% of the volume limitation of Rule 10b-18 applicable to BNYM (assuming that Rule 10b-18 applied to BNYM’s purchases during the Unwind Period as if BNYM were Party B) for the Shares on such Scheduled Trading Day, without reference to any block purchases, (ii) 25% of the daily trading volume for the Shares on the Exchange on such Scheduled Trading Day, and (iii) the number of Shares required, pursuant to the second paragraph under “Settlement Date” above, to be purchased by BNYM in order to completely unwind its hedge with respect to the Settlement Shares relating to such Settlement Date. In connection with bids and purchases of Shares in connection with any Net Share Settlement or Cash Settlement of any Transaction hereunder, BNYM shall conduct its activities, or cause its affiliates to conduct their activities, in a manner consistent with the requirements of the safe harbor provided by Rule 10b-18 under the Exchange Act (as if such provisions were applicable to such purchases), subject to applicable Securities and Exchange Commission or Staff no-action letters or interpretations as appropriate and subject to any delays between execution and reporting of a trade of the Shares on the applicable securities exchange or quotation system and other circumstances reasonably beyond BNYM’s or such affiliates’ control. For avoidance of doubt, in no event shall BNYM be required to make any such purchases during any Unwind Period (or during overlapping Unwind Periods for one or more Settlement Dates of one or more Transactions) that exceed the volume limitations set forth in Rule 10b-18.

Physical Settlement:		In lieu of the obligations set forth in Section 9.2 of the Equity Definitions, on any Settlement Date in respect of which Physical Settlement applies, Party B shall deliver, through the Clearance System, to BNYM a number of Shares equal to the Settlement Shares for such Settlement Date, and BNYM shall deliver to Party B, by wire transfer of immediately available funds to an account designated by Party B, an amount in cash equal to the Physical Settlement Amount for such Settlement Date, on a delivery versus payment basis.

Physical Settlement Amount:		With respect to any Transaction, for any Settlement Date in respect of which Physical Settlement applies, an amount in cash equal to the product of the Forward Price for such Transaction on such Settlement Date and the number of Settlement Shares for such Settlement Date.

Cash Settlement:		In lieu of the obligations set forth in Sections 8.4 and 8.5 of the Equity Definitions, on any Settlement Date in respect of which Cash Settlement applies, (i) if the Cash Settlement Amount is a positive number, BNYM will pay the Cash Settlement Amount to Party B; and (ii) if the Cash Settlement Amount is a negative number, Party B will pay the absolute value of the Cash Settlement Amount to BNYM. Such amounts shall be paid on the Settlement Date by wire transfer of immediately available funds to an account designated by the party to receive such amounts.

Cash Settlement Amount:		With respect to any Transaction, for any Settlement Date for such Transaction in respect of which Cash Settlement applies, an amount determined by the Calculation Agent equal to: (1) the product of (i) (A) the Forward Price for such Transaction as of the first day of the applicable Unwind Period minus (B) the Settlement Price for such Cash Settlement, and (ii) the number of Settlement

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		Shares for such Settlement Date that are subject to Cash Settlement minus (2) the product of (i) the Forward Price Reduction Amount for each Forward Price Reduction Date for such Transaction that occurs during such Unwind Period and (ii) the number of Settlement Shares for such Settlement Date that are subject to Cash Settlement and with respect to which BNYM has not unwound its hedge as of such Forward Price Reduction Date.

Settlement Price:		With respect to any Transaction for any Settlement Date for such Transaction in respect of which Cash Settlement or Net Share Settlement applies, the sum of (x) the weighted average price per Share at which BNYM purchased Shares during the Unwind Period applicable to such Cash Settlement or Net Share Settlement to unwind its hedge in connection with the portion of such Transaction to be settled on such Settlement Date, in compliance with the second sentence under “Unwind Daily Share Amount” above and (y) a per Share commission equal to the Settlement Commission and (ii) the number of Settlement Shares for such Settlement Date that are subject to Cash Settlement

Net Share Settlement:		On any Settlement Date in respect of which Net Share Settlement applies, if the number of Net Share Settlement Shares is a (i) positive number, BNYM shall deliver, through the Clearance System, a number of Shares to Party B equal to the Net Share Settlement Shares, and (ii) negative number, Party B shall deliver, through the Clearance System, a number of Shares to BNYM equal to the absolute value of the Net Share Settlement Shares; provided that if BNYM determines in its good faith judgment that it would be required to deliver Net Share Settlement Shares to Party B, BNYM may elect to deliver a portion of such Net Share Settlement Shares on one or more dates prior to the applicable Settlement Date.

Net Share Settlement Shares:		On any Settlement Date of a Transaction in respect of which Net Share Settlement applies, an amount equal to (A) the number of Shares acquired in the Unwind Period applicable the portion of such Transaction to be settled on such Settlement Date pursuant to Net Share Settlement minus (B) the number of Settlement Shares for such Settlement Date that are subject to Net Share Settlement.

Settlement Currency:		USD

Failure to Deliver:		Not Applicable

Other Applicable Provisions:		To the extent BNYM is obligated to deliver Shares hereunder, the provisions of Sections 9.9 and 9.11 of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction; provided that the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws that exist as a result of the fact that Party B is the issuer of the Shares.

SUSPENSION OF CASH OR NET SHARE SETTLEMENT:

Suspension Day:		Any day on which BNYM determines, in its commercially reasonable discretion and based on the advice of counsel, that it is appropriate with respect to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by BNYM generally in connection with its business) for BNYM or its affiliates to refrain from engaging in transactions in the Shares. BNYM shall notify Party B if it makes a

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		determination that any day in an Unwind Period is a Suspension Day, but such notice need not specify the reason for BNYM’s determination. If BNYM shall subsequently determine that such day is no longer a Suspension Day, then BNYM shall notify Party B of the same as soon as reasonably practicable, which notice need not specify the reason for BNYM’s determination.

ADJUSTMENTS:

Method of Adjustment:		Calculation Agent Adjustment. Notwithstanding anything in the Equity Definitions to the contrary, for each Transaction, the Calculation Agent may make an adjustment pursuant to Calculation Agent Adjustment to any one or more of the Base Shares for such Transaction, the Forward Price for such Transaction and any other variable relevant to the settlement or payment terms of such Transaction to preserve the economic intent of the parties.

EXTRAORDINARY EVENTS:

Extraordinary Events:		In lieu of the applicable provisions contained in Article 12 of the Equity Definitions, the consequences of any applicable Extraordinary Event shall be as specified in “Acceleration Events” and “Termination Settlement” hereunder.

ACCOUNT DETAILS:

Payments to BNYM:		To be advised under separate cover or telephone, confirmed prior to each Settlement Date.

Payments to Party B:		To be advised under separate cover or telephone, confirmed prior to each Settlement Date.

Delivery of Shares to BNYM:		To be advised

Delivery of Shares to Party B:		To be advised

3.	Other Provisions:

Conditions to Effectiveness:

The effectiveness of each Supplemental Confirmation on the Effective Date for such Supplemental Confirmation shall be subject to (i) the condition that the representations and warranties of Party B contained in Section 3(a) of the Agreement and in the Sales Agency Financing Agreement, and any certificate delivered pursuant to the Sales Agency Financing Agreement by Party B, be true and correct on such Effective Date as if made as of such Effective Date, (ii) the condition that the representations and warranties of BNYM contained in Section 3(a) of the Agreement be true and correct on such Effective Date as if made as of such Effective Date, (iii) the condition that Party B have delivered to BNYM an opinion of counsel (which may include internal counsel to Party B and which may, at Party B’s election, be an opinion of counsel required to be delivered pursuant to the Sales Agency Financing Agreement, provided such opinion of counsel satisfies the requirements hereof) dated on or prior to the first Trade Date for a Transaction hereunder with respect to matters set forth in Section 3(a)(ii) and Section 3(a)(v) of the Agreement (as if references therein to “this Agreement” were instead references to “this Master Confirmation”), (iv) the condition that Party B have performed all of the obligations required to be performed by it under the Sales Agency Financing Agreement on or prior to such Effective Date, (v) delivery by BNYM to Party B of a properly executed Internal Revenue Service Form W-9 or similar documentation establishing an exemption from backup withholding under the Internal Revenue Code of 1986, as amended, (vi) the satisfaction of all of the conditions set forth in Section 5.01 of the Sales Agency Financing Agreement. For purposes hereof, the representation in Section 3(a)(iv) of the Agreement shall, for avoidance of doubt, extend to this Master Confirmation and each Supplemental Confirmation; and (vii) the non-occurrence of any event that would cause an Acceleration Event to be in effect upon the effectiveness of such Supplemental Confirmation.

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Representations and Warranties of Party B: Party B hereby represents and warrants to BNYM (each of such representations to be deemed part of Section 3(a) of the Agreement) as of the date hereof and on the Effective Date of each Transaction, and, in the case of clause (b), on such dates and on each Settlement Date for such Transaction, that:

(a)

The execution, delivery and the performance by Party B of this Master Confirmation or the Supplemental Confirmation for such Transaction (including, without limitation, the issuance and delivery of Shares on any Settlement Date for such Transaction), as the case may be, and compliance by Party B with its obligations under this Master Confirmation or such Supplemental Confirmation, as the case may be, (i) has been duly authorized by all necessary corporate action and does not and will not result in any violation of the provisions of the articles of incorporation or by-laws of Party B or any applicable law, statute, rule, regulation, judgment, order, writ or decree of any government instrumentality or court, domestic or foreign, having jurisdiction over Party B or any of its assets, properties or operations and (ii) will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, any material indenture, mortgage or deed of trust or other material agreement or instrument, in each case filed (or incorporated by reference) as an exhibit to Party B’s then most recent Form 10-K or Party B’s Form 8-Ks or Form 10-Qs filed after the end of the latest fiscal year of Party B covered by such Form 10-K and on or prior to such date on which Party B makes or is deemed to make these representations and warranties and to which Party B or any of its subsidiaries is a party or by which Party B or any of its subsidiaries or any of their respective properties is bound.

(b)

No filing with, or authorization, approval, consent, license, order, registration, qualification or decree of, any court or governmental authority or agency is necessary or required for the execution, delivery and performance by Party B of this Master Confirmation or the Supplemental Confirmation for such Transaction, as the case may be, and, if applicable, the consummation of such Transaction (including, without limitation, the issuance and delivery of Shares on any Settlement Date for such Transaction) except (i) such as have been obtained under the Securities Act of 1933, as amended (the “Securities Act”), (ii) such as may be required pursuant to the periodic reporting obligations of the Exchange Act and (iii) as may be required to be obtained under state securities law.

(c)

Party B is as of the date hereof, and after giving effect to the transactions contemplated hereby and by the relevant Supplemental Confirmation will be, Solvent. As used in this paragraph, the term “Solvent” means, with respect to a particular date, that on such date (A) the present fair market value (or present fair saleable value) of the assets of Party B is not less than the total amount required to pay the liabilities of Party B on its total existing debts and liabilities (including contingent liabilities) as they become absolute and matured, (B) Party B is able to realize upon its assets and pay its debts and other liabilities, contingent obligations and commitments as they mature and become due in the normal course of business, (C) assuming consummation of the transactions as contemplated by this Master Confirmation, Party B is not incurring debts or liabilities beyond its ability to pay as such debts and liabilities mature, (D) Party B is not engaged in any business or transaction, and does not propose to engage in any business or transaction, for which its property would constitute unreasonably small capital after giving due consideration to the prevailing practice in the industry in which Party B is engaged and (E) Party B is not a defendant in any civil action that could reasonably be expected to result in a judgment that Party B is or would become unable to satisfy.

(d)

Neither Party B nor any “affiliated purchaser” of Party B (as defined in Rule 10b-18 under the Exchange Act) shall take any action (including, without limitation, the purchase of any Shares) that would cause any purchases of Shares by BNYM or its affiliates during any Unwind Period relating to any Cash Settlement or Net Share Settlement of any Transaction not to comply with Rule 10b-18 under the Exchange Act (assuming that Rule 10b-18 applied to BNYM’s or its affiliates purchases during the Unwind Period as if BNYM or its affiliates were Party B).

(e)

Party B is at all times an “eligible contract participant” within the meaning of Section 1a of the Commodity Exchange Act, as amended, by virtue of being a corporation, partnership, proprietorship, organization, trust, or other entity that has total assets exceeding $10,000,000, and such Transaction will have been subject to individual negotiation.

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(f)

The representations and warranties of Party B contained in the Sales Agency Financing Agreement and any certificate delivered pursuant thereto by Party B shall be true and correct on such Effective Date as if made as of such Effective Date.

(g)

Party B is not and has not been the subject of any civil proceeding of a judicial or administrative body of competent jurisdiction that could reasonably be expected to impair materially Party B’s ability to perform its obligations under this Master Confirmation or the Supplemental Confirmation for such Transaction, as the case may be.

(h)

Party B has not and will not enter into any agreement similar to any Transaction hereunder where any valuation or unwind period (however defined) in such other transaction will overlap at any time (including as a result of acceleration, postponement or extension in such valuation period as provided in the relevant agreement) with any Unwind Period of any Transaction hereunder. For the avoidance of doubt, Party B hereby covenants not to take any action that, pursuant to the terms of or contemplated by that certain Master Confirmation for Forward Stock Sale Transactions, of even date herewith, between Party B and KeyBanc Capital Markets Inc. (the “Other Master Confirmation”), would result in any “Unwind Period” (as defined in the Other Master Confirmation) overlapping with any Unwind Period hereunder. In the event that the valuation or unwind period in any other similar transaction overlaps with any Unwind Period of any Transaction hereunder as a result of any Acceleration Event hereunder, Party B shall promptly amend such transaction to avoid any such overlap.

(i)

Party B at all times is not a (i) Federal agency; (ii) State, State agency, city, county, municipality, or other political subdivision of a State; (iii) employee benefit plan, as defined in section 3 of Employee Retirement Income Security Act of 1974, as amended (“ERISA”); (iv) governmental plan, as defined in section 3 of ERISA; or (v) endowment, including an endowment that is an organization described in section 501(c)(3) of the Internal Revenue Code of 1986, as amended, (any such entity, a “Special Entity,” as defined in Section 4s(h)(2)(C) of the Commodity Exchange Act, as amended).

(j)

Party B’s LEI/CICI is as follows: W2AVA6SODOQ1LCYJQR54. “LEI/CICI” means a “legal entity identifier” satisfying the requirements of U.S. Commodity Futures Trading Commission (“CFTC”) Regulation 45.6 or such other entity identifier as will be provided by the CFTC pending the availability of such legal entity identifiers.

(k)

Party B is an “accredited investor” as defined in Rule 501 of Regulation D under the Securities Act.

(l)

Party B is not entering into this Master Confirmation or any Confirmation (and with respect to any election of Cash Settlement or Net Share Settlement, it is not making such election) to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for Shares).

Covenants of Party B: Party B hereby agrees that, so long as either party has or may have any obligation under any Transaction, that:

(a)

Each Share, when issued and delivered in accordance with the terms of such Transaction, will be duly authorized and validly issued, fully paid and nonassessable, and the issuance(s) thereof will not be subject to any preemptive or similar rights.

(b)

Party B will keep available and free from preemptive rights, out of its authorized but unissued Shares, solely for the purpose of issuance upon any settlement of such Transaction as herein provided, the full number of Shares as shall then be issuable upon Physical Settlement of such Transaction.

(c)

Prior to any Settlement Date, the Shares to be delivered by Party B (if any) with respect to that Settlement Date shall have been approved for listing or quotation on the Exchange, subject to official notice of issuance.

(d)

Party B agrees not to repurchase any Shares if, immediately following such repurchase, the aggregate Base Shares for all Transactions would be equal to or greater than 15% of the number of then-outstanding Shares.

(e)

Party B will not engage in any “distribution” (as defined in Regulation M under the Exchange Act) other than distributions meeting the requirements of the exceptions set forth in Rule 102(b) or Rule 102(c) of Regulation M under the Exchange Act during any Unwind Period for such Transaction.

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(f)

In addition to any other requirements set forth herein, Party B agrees not to elect Cash Settlement or Net Share Settlement in respect of such Transaction if such settlement would result in a violation of the U.S. federal securities laws or any other federal or state law or regulation applicable to Party B. Party B will not directly or indirectly take any action that would cause any purchase of Shares by BNYM during any Unwind Period to fail to comply with the requirements of Rule 10b5-1 under the Exchange Act.

(g)

Party B will, by the fifth succeeding Exchange Business Day, notify BNYM upon obtaining knowledge of the occurrence of any event that would, with the giving of notice, the passage of time or the satisfaction of any condition, constitute an Event of Default, a Potential Event of Default or a Potential Adjustment Event.

(h)

The parties acknowledge and agree that any Shares delivered by Party B to BNYM on any Settlement Date for such Transaction will be newly issued Shares and, when delivered by BNYM (or an affiliate of BNYM) to securities lenders from whom BNYM (or an affiliate of BNYM) borrowed Shares in connection with hedging its exposure to such Transaction, will be freely saleable without further registration or other restrictions under the Securities Act in the hands of those securities lenders, irrespective of whether such stock loan is effected by BNYM or an affiliate of BNYM so long as it was effected to hedge BNYM’s exposure with respect to such Transaction. Accordingly, Party B agrees that the Shares that it delivers to BNYM on each Settlement Date for such Transaction shall not bear a restrictive legend and that such Shares will be deposited in, and the delivery thereof shall be effected through the facilities of, the Clearance System.

In addition, Party B covenants to notify BNYM in writing (which shall include email) at least ten Exchange Business Days prior to the ex-dividend or ex date, as applicable, of a distribution, issue or dividend to existing holders of the Shares, which ex-dividend date or ex date occurs at any time from, and including, the date hereof and ends on the final Settlement Date under this Master Confirmation; provided, however, Party B shall have no obligation to notify BNYM of the ex-dividend date that will occur on December 13, 2012 in respect of the dividend announced by Party B on November 8, 2012, provided the terms of such dividend are not modified on or after the date hereof.

Covenants and Representation of BNYM:

(a)

BNYM shall use any Settlement Shares for any Transaction delivered by Party B to BNYM to return to securities lenders to close out borrowings created by BNYM (or an affiliate of BNYM) in connection with its hedging activities related to exposure under such Transaction.

(b)

In connection with bids and purchases of Shares in connection with any Cash Settlement or Net Share Settlement of any Transaction, BNYM shall comply, or cause compliance, with the provisions of Rule 10b-18 under the Exchange Act, as if such provisions were applicable to such purchases, subject to applicable Securities and Exchange Commission or Staff no-action letters or interpretations as appropriate and subject to any delays between execution and reporting of a trade of the Shares on the applicable securities exchange or quotation system and other circumstances reasonably beyond BNYM’s or such affiliates’ control.

(c)

BNYM is at all times an “eligible contract participant” within the meaning of Section 1a of the Commodity Exchange Act, as amended, by virtue of being a financial institution (as a depository institution), and all Transactions will be subject to individual negotiation.

Acceleration Events: An Acceleration Event shall occur if:

(a)

Stock Borrow Events. Notwithstanding anything to the contrary herein, in the Agreement or in the Equity Definitions, if, after using commercially reasonable efforts, BNYM (or its affiliate) is unable to hedge (or maintain a hedge of) BNYM’s exposure to any Transaction (a “Stock Borrow Event”) because (i) of the lack of sufficient Shares being made available for Share borrowing by lenders or (ii) it (or its affiliate) would incur a stock loan cost of more than 45 basis points per annum, BNYM shall

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have the right to designate any Scheduled Trading Day to be a Settlement Date in respect of such Transaction on at least three Scheduled Trading Days’ notice, and to select the number of Settlement Shares for such Settlement Date; provided that (x) prior to the effectiveness of the designation of a Stock Borrow Event under this paragraph (a), Party B may refer BNYM to a lending party reasonably acceptable to BNYM that will lend BNYM (or its affiliate) Shares within such three Scheduled Trading Day period, on terms reasonably acceptable to BNYM and at a stock loan cost of no more than 45 basis points per annum and (y) the number of Settlement Shares for any Settlement Date so designated by BNYM shall not exceed the number of Shares as to which such inability to, or cost limitation with respect to, borrow exists; or

(b)

Dividends and Other Distributions. Notwithstanding anything to the contrary herein, in the Agreement or in the Equity Definitions, with respect to any Transaction, if on any day Party B declares a distribution, issue or dividend to existing holders of Shares of (i) any cash dividend to the extent that the aggregate amount of all cash dividends having an ex-dividend date during the period from, and including, any Forward Price Reduction Date for such Transaction to, but excluding, the next subsequent Forward Price Reduction Date for such Transaction (with each of the Trade Date and the Maturity Date for such Transaction being a Forward Price Reduction Date for such Transaction for purposes of this clause (b) only) exceeds, on a per Share basis, the Forward Price Reduction Amount set forth opposite the first date of such period on Schedule I to the Supplemental Confirmation for such Transaction or (ii) share capital or securities of another issuer acquired or owned (directly or indirectly) by Party B as a result of a spin-off or other similar transaction which has a record date on or after the Effective Date for such Transaction and on or prior to the final Settlement Date for such Transaction or (iii) any other type of securities (other than Shares), rights or warrants or other assets, which distribution, issue or dividend has a record date on or after the Effective Date for such Transaction and on or prior to the final Settlement Date for such Transaction, then BNYM shall have the right to designate any Scheduled Trading Day to be a Settlement Date for such Transaction for the entire Transaction on at least three Scheduled Trading Day’s notice to Party B; or

(c)

ISDA Early Termination Date. Notwithstanding anything to the contrary herein, in the Agreement or in the Equity Definitions, if BNYM has the right to designate an Early Termination Date with respect to any Transaction pursuant to Section 6 of the Agreement, then, in lieu of such right, BNYM shall instead have the right to designate any Scheduled Trading Day to be a Settlement Date for such Transaction for the entire Transaction on at least three Scheduled Trading Days’ notice to Party B; or

(d)

Board Approval of Merger. Notwithstanding anything to the contrary herein, in the Agreement or in the Equity Definitions, with respect to any Transaction, if on any day occurring on or after the first Trading Day of the Forward Hedge Selling Period for such Transaction, the board of directors of Party B votes to approve, or there is a public announcement by Party B of, any action that, if consummated, would constitute a Merger Event (as defined in the Equity Definitions; provided that the language in such definition after the clause “(a “Reverse Merger”)” shall be deleted and replaced with “, in each case if the Merger Date is on or before the Maturity Date for any Transaction under this Master Confirmation”), Party B shall notify BNYM of any such vote or announcement within three Scheduled Trading Days (and, in the case of any such vote, Party B also covenants and agrees to publicly announce the occurrence of such vote within three Scheduled Trading Days thereof). Thereafter, BNYM shall have the right to designate any Scheduled Trading Day to be a Settlement Date for such Transaction for the entire Transaction on at least three Scheduled Trading Days’ notice to Party B, and if a Settlement Date so designated by BNYM is to occur prior to the date that is one Settlement Cycle after the last day of the Forward Hedge Selling Period relating to such Transaction, then the day immediately following the date Party B so notifies BNYM shall, for purposes of such Settlement Date so designated by BNYM, be deemed to be the Trade Date for such Transaction; or

(e)

Other Events. Notwithstanding anything to the contrary herein, in the Agreement or in the Equity Definitions, with respect to any Transaction, if an Insolvency, an Insolvency Filing, a Nationalization, a Delisting (as provided further in the next sentence) or a Change in Law (other than as specified in clause (Y) of the definition thereof) occurs, BNYM shall have the right to designate any Scheduled Trading Day to be a Settlement Date for such Transaction for the entire Transaction on at least three Scheduled Trading Days’ notice to Party B. In addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock

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Exchange, NYSE Amex Equities, The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any such exchange, such exchange shall be deemed to be the Exchange; provided that (i) for purposes of determining whether an event has occurred that permits BNYM to designate a Settlement Date pursuant to this clause (e), the first day of the Forward Hedge Selling Period relating to such Transaction shall be deemed to be the Trade Date for such Transaction; and (ii) for purposes of any such Settlement Date so designated by BNYM to occur prior to the date that is one Settlement Cycle after the last day of the Forward Hedge Selling Period relating to such Transaction, the day immediately following the date BNYM so notifies Party B of such designation shall be deemed to be the Trade Date for such Transaction.

Notwithstanding anything to the contrary herein, in the Agreement or in the Equity Definitions, if BNYM designates, pursuant to clause (d) or clause (e) above, a Settlement Date with respect to a Transaction and such Settlement Date is to occur before the date that is one Settlement Cycle after the last day of the Forward Hedge Selling Period for such Transaction, then, for purposes of such Settlement Date, (i) a Supplemental Confirmation relating to such Transaction shall, notwithstanding the provisions under “Conditions to Effectiveness” above, be deemed to be effective; and (ii) the Forward Price shall be deemed to be the Initial Forward Price (calculated assuming that the last Trading Day of such Forward Hedge Selling Period occurs on the date that is deemed, pursuant to clause (d) or clause (e) above, as applicable, to be the Trade Date for such Transaction for purposes of such Settlement Date).

The definition of “Change in Law” set forth in Section 12.9(a)(ii) of the Equity Definitions is hereby amended such that the phrase “any applicable law or regulation” therein shall be deemed to include the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, any rules and regulations promulgated thereunder and any similar law or regulation, without regard to Section 739 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 or any similar legal certainty provision in any legislation enacted or rule or regulation promulgated.

In the event of a Stock Borrow Event, BNYM shall, upon request of Party B, provide Party B with reasonable documentation in its possession regarding its determination that a Stock Borrow Event has occurred, provided that in no event shall BNYM be obligated to provide any proprietary or confidential information.

Termination Settlement:

If a Settlement Date with respect to any Transaction is specified following an Acceleration Event with respect to such Transaction (a “Termination Settlement Date”), Party B will be deemed to have irrevocably elected that Physical Settlement shall apply to such Transaction with respect to such Termination Settlement Date as set forth above, subject to the provisions described under “Limit on Beneficial Ownership” below. If, upon designation of a Termination Settlement Date by BNYM with respect to any Transaction, Party B fails to deliver the Settlement Shares relating to such Termination Settlement Date when due or otherwise fails to perform its obligations in connection therewith, it shall be an Event of Default where Party B is the Defaulting Party for purposes of the Agreement (including, without limitation, Section 6 thereof, which shall apply to such Transaction). If an Acceleration Event occurs during an Unwind Period of any Transaction relating to a number of Settlement Shares of such Transaction to which Cash Settlement or Net Share Settlement applies, then on the Termination Settlement Date of such Transaction relating to such Acceleration Event, notwithstanding any election to the contrary by Party B, Cash Settlement or Net Share Settlement shall apply to the portion of the Settlement Shares relating to such Unwind Period as to which BNYM has unwound its hedge (for avoidance of doubt, such portion of such Settlement Shares to be a number of Settlement Shares with respect which BNYM would be deemed, pursuant to the second paragraph under “Settlement Date” above, to have completely unwound it hedge) and Physical Settlement shall apply in respect of (x) the remainder (if any) of such Settlement Shares and (y) the Settlement Shares designated by BNYM with respect to such Transaction in respect of such Termination Settlement Date. If BNYM designates a Termination Settlement Date (other than pursuant to clause (a) under “Acceleration Events” above), then all Settlement Dates theretofore designated by Party B to occur after such Termination Settlement Date shall instead occur on such Termination Settlement Date and shall, except to the extent (and only to the extent) provided in the immediately preceding sentence, be subject to Physical Settlement, notwithstanding any election to the contrary by Party B.

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Certain Changes In Law:

If there shall occur any Change In Law specified in clause (Y) of the definition thereof, BNYM will, in lieu of immediately exercising rights under clause (e) under the heading “Acceleration Events” above, notify Party B of the relevant change and provide in reasonable detail the reason for the “materially increased cost” referred to in the definition of Change In Law, and BNYM and Party B will negotiate in good faith for at least 30 calendar days to amend this Master Confirmation to take account of such “materially increased cost.” Such amendment may, if agreed by BNYM and Party B, result in a Change In Law specified in clause (Y) of the definition thereof being treated as if it were a Change In Law specified in clause (X) of the definition thereof, as described in clause (e) under the heading “Acceleration Events” above. During the continuance of such negotiations, the parties will continue to perform all of their respective duties and obligations under this Master Confirmation and in respect of each Transaction. If BNYM and Party B are able to agree on a mutually acceptable amendment, such amendment will be effective from the date of such agreement, and the relevant Change In Law shall not constitute an Acceleration Event for purposes of this Master Confirmation (it being understood, for the avoidance of doubt, that nothing in this sentence shall prevent a subsequent event from being deemed to constitute a Change In Law). If, after negotiating in good faith for at least 30 calendar days to so amend this Master Confirmation, BNYM and Party B do not agree on such an amendment, the relevant Change In Law specified in clause (Y) of the definition thereof shall treated as if it were a Change In Law specified in clause (X) of the definition thereof, and BNYM may treat such Change in Law as an Acceleration Event and exercise its rights under clause (e) under the heading “Acceleration Events” above.

Rule 10b5-1:

It is the intent of BNYM and Party B that the purchase of Shares by BNYM during any Unwind Period of any Transaction comply with the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act and that this Master Confirmation and each Supplemental Confirmation be interpreted to comply with the requirements of Rule 10b5-1(c).

Party B acknowledges that, except as otherwise provided herein, (i) during any Unwind Period of any Transaction, Party B does not have, and shall not attempt to exercise, any influence over how, when or whether to effect purchases of Shares by BNYM (or its agent or affiliate) in connection with this Master Confirmation or the Supplemental Confirmation for such Transaction and (ii) Party B is entering into the Agreement and this Master Confirmation and will enter into all Supplemental Confirmations in good faith and not as part of a plan or scheme to evade compliance with federal securities laws including, without limitation, Rule 10b-5 under the Exchange Act.

Party B hereby agrees with BNYM that during any Unwind Period for any Transaction, Party B shall not communicate, directly or indirectly, any material non-public information (within the meaning of federal securities laws) to any Equity Personnel (as defined below). For the avoidance of doubt and solely by way of illustration, information should be presumed “material” if it relates to such matters as dividend increases or decreases, earnings estimates, changes in previously released earnings estimates, significant expansion or curtailment of operations, a significant increase or decline of orders, significant merger or acquisition proposals or agreements, significant new products or discoveries, extraordinary borrowing, major litigation, liquidity problems, extraordinary management developments, purchase or sale of substantial assets, or other similar information. For purposes of any Transaction, “Equity Personnel” means any employee in The Bank of New York Mellon Global Markets Equity Derivatives Trading Desk but does not include Daniel C. de Menocal, Jr.

Interpretive Letter:

The parties intend for this Master Confirmation and each Supplemental Confirmation to constitute a “Contract” as described in the letter dated October 6, 2003 submitted by Robert W. Reeder and Leslie N. Silverman to Paula Dubberly of the staff of the Securities and Exchange Commission (the “Staff”), to which the Staff responded in an interpretive letter dated October 9, 2003.

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Restricted Shares:

With respect to any Transaction, if Party B is unable to comply with clause (h) of “Covenants of Party B” above in this Section 3 because of a change in law or a change in interpretation or the policy of the Securities and Exchange Commission or its staff, or BNYM otherwise determines in its reasonable, good faith opinion based on the advice of outside counsel that any Shares to be delivered to BNYM by Party B may not be freely returned by BNYM to securities lenders as described in clause (h) of “Covenants of Party B” above in this Section 3, then delivery of any Shares (the “Restricted Shares”) shall be effected as follows:

(i)

Delivery of Restricted Shares by Party B to BNYM (or its agent or affiliate) (a “Private Placement Settlement”) shall be effected in accordance with customary private placement procedures with respect to such Restricted Shares reasonably acceptable to BNYM. On the date of such delivery, Party B shall not have taken, or caused to be taken, any action that would make unavailable either (x) the exemption pursuant to Section 4(2) of the Securities Act for the sale or deemed sale by Party B to BNYM (or any agent or affiliate designated by BNYM) of the Restricted Shares or (y) the exemption pursuant to Section 4(1) or Section 4(3) of the Securities Act for resales of the Restricted Shares by BNYM (or any such agent or affiliate of BNYM). The Private Placement Settlement of such Restricted Shares shall include customary representations, covenants, blue sky and other governmental filings and/or registrations, indemnities to BNYM (and/or any such agent or affiliate of BNYM), due diligence rights (for BNYM or any such agent or affiliate of BNYM or any buyer of the Restricted Shares designated by BNYM or any such agent or affiliate of BNYM), opinions and certificates, and such other documentation as is customary for private placement agreements, all reasonably acceptable to BNYM (or any such agent or affiliate of BNYM). In the case of a Private Placement Settlement, BNYM shall, in its good faith discretion, adjust the number of Restricted Shares to be delivered to BNYM hereunder in a commercially reasonable manner to reflect the fact that such Restricted Shares may not be freely returned to securities lenders by BNYM (or its agent or affiliate) and may only be saleable by BNYM (or its agent or affiliate) at a discount to reflect the lack of liquidity in Restricted Shares. Notwithstanding anything in the Agreement, this Master Confirmation, or any Supplemental Confirmation to the contrary, the date of delivery of such Restricted Shares shall be the Scheduled Trading Day following notice by BNYM to Party B of the number of Restricted Shares to be delivered pursuant to this clause (i).

(ii)

If Party B delivers any Restricted Shares in respect of the Transaction, Party B agrees that (A) such Shares may be transferred freely among BNYM and its agents and/or affiliates and (B) after the minimum “holding period” within the meaning of Rule 144(d) under the Securities Act has elapsed, Party B shall promptly remove, or cause the transfer agent for the Shares to remove, any legends referring to any transfer restrictions from such Shares upon delivery by BNYM (or such agent or affiliate of BNYM) to Party B or such transfer agent of seller’s and broker’s representation letters customarily delivered by BNYM or its affiliates in connection with resales of restricted securities pursuant to Rule 144 under the Securities Act, each without any further requirement for the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document, any transfer tax stamps or payment of any other amount or any other action by BNYM (or such agent or affiliate of BNYM).

Maximum Share Delivery:

Notwithstanding any other provision of this Master Confirmation, in no event will Party B be required to deliver to BNYM in connection with any Transaction (whether pursuant to Physical Settlement, Net Share Settlement, Termination Settlement, pursuant to the provisions set forth below “Restricted Shares” above or otherwise) a number of Shares in excess of an amount (the “Capped Number”) equal to the product of (i) two and (ii) the number of Base Shares of such Transaction, subject to reduction by the aggregate number of Shares delivered by Party B in respect of such Transaction on all prior Settlement Dates of such Transaction. Party B represents and warrants (which shall be deemed to be repeated on each day that any Transaction is outstanding)

- 15 -

that the Capped Number for such Transaction is equal to or less than the number of authorized but unissued Shares of Party B that are not reserved for future issuance in connection with transactions in the Shares (other than such Transaction) on the date of the determination of the Capped Number (such authorized but unissued Shares, the “Available Shares”). If, as a result of this paragraph, Party B shall not have delivered the full number of Shares otherwise deliverable in respect of a Transaction (the resulting deficit, the “Deficit Shares”), then Party B shall be continually obligated to deliver, from time to time until the full number of Deficit Shares have been delivered pursuant to this paragraph, Shares when, and to the extent, that (i) Shares are repurchased, acquired or otherwise received by Party B or any of its subsidiaries after the Trade Date for such Transaction (whether or not in exchange for cash, fair value or any other consideration); (ii) authorized and unissued Shares previously reserved for issuance in respect of other transactions become no longer so reserved; and (iii) Party B authorizes additional unissued Shares. Party B shall immediately notify BNYM of the occurrence of any of the foregoing events (including the number of Shares subject to clause (i), (ii) or (iii) and the corresponding number of Shares to be delivered) and promptly deliver such Shares thereafter. Party B covenants not to take any action to decrease the number of Available Shares below the Capped Number.

Assignment:

BNYM may assign or transfer any of its rights or delegate any of its duties under this Master Confirmation and any Supplemental Confirmation relating to a Transaction to any affiliate of BNYM without the prior written consent of Party B, so long as the senior unsecured debt rating (“Credit Rating”) of such affiliate (or any guarantor of its obligations under such Transaction) is equal to or greater than the Credit Rating of BNYM, as specified by Standard and Poor’s Rating Services or Moody’s Investor Service, Inc., at the time of such assignment or transfer; provided that Party B shall have recourse to BNYM in the event of failure by its assignee to perform any of such duties hereunder; provided, further, that such assignment or transfer will not result in any negative tax or accounting consequences for, or additional payments by, Party B. Notwithstanding the foregoing, the recourse to BNYM shall be limited to recoupment of Party B’s monetary damages and Party B hereby waives any right to seek specific performance by BNYM of its obligations hereunder. In connection with any assignment or transfer pursuant to the first sentence of this paragraph, the guarantee of any guarantor of the relevant transferee’s obligation shall constitute a Credit Support Document under the Agreement. If BNYM so assigns or transfers any of its rights or delegates any of its duties under this Master Confirmation and any Supplemental Confirmation relating to a Transaction, as the case may be, BNYM shall give prompt written notice to Party B of such assignment, transfer or delegation, as applicable.

Notwithstanding anything to the contrary herein, in the Agreement or in the Equity Definitions, (i) BNYM may designate any of its affiliates to purchase or receive such Shares or otherwise to perform BNYM’s obligations in respect of any Transaction and any such designee may assume such obligations, and BNYM shall be discharged of its obligations to Party B only to the extent of any such performance; and (ii) to the extent Physical Settlement applies to any portion of a Transaction (or Net Share Settlement applies to any portion of a Transaction and Party B would be obligated to deliver any Shares to BNYM in connection therewith), such Transaction shall, effective three Business Days prior to the applicable Settlement Date, be deemed to be automatically assigned by BNYM to BNY Mellon Capital Markets, LLC (“BNYMCM”) or any of BNYM’s other broker-dealer affiliates selected by BNYM, and delivery of the Shares shall be made to an account of BNYMCM to be advised.

Indemnity:

Party B agrees to indemnify BNYM and its affiliates and their respective directors, officers, agents and controlling parties (BNYM and each such affiliate or person being an “Indemnified Party”) from and against any and all losses, claims, damages and liabilities, joint or several, incurred by or asserted against such Indemnified BNYM, but only to the extent arising out of, in connection with, or relating to, the failure of a Supplemental Confirmation to become effective pursuant to the provisions set forth under the heading “Conditions to Effectiveness” above on account of any breach of the representations and covenants of Party B set forth thereunder as conditions precedent to such effectiveness. In addition, Party B will reimburse any Indemnified Party for all reasonable expenses (including reasonable legal fees and reasonable expenses) in

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connection with the investigation of, preparation for, or defense of any pending or threatened claim or any action or proceeding arising therefrom (whether or not such Indemnified Party is a party thereto) at the time, and only to the extent, that the relevant loss, claim, damage, liability or expense is found in a final and nonappealable judgment by a court of competent jurisdiction to have resulted from the failure of a Supplemental Confirmation to become effective pursuant to the provisions set forth under the heading “Conditions to Effectiveness” above on account of any breach of the representations and covenants of Party B set forth thereunder as conditions precedent to such effectiveness. For the avoidance of doubt, Party B will not be liable under this “Indemnity” paragraph to the extent that any loss, claim, damage, liability or expense is found in a final and nonappealable judgment by a court of competent jurisdiction to have resulted from BNYM’s gross negligence, fraud, bad faith and/or willful misconduct or a breach of any representation or covenant of BNYM contained in this Master Confirmation, any Supplemental Confirmation or the Agreement.

Miscellaneous:


Non-Reliance:		Applicable

Additional Acknowledgements:		Applicable

Agreements and Acknowledgments Regarding Hedging Activities:		Applicable

Without limiting the generality of Sections 13.1 and 13.4 of the Equity Definitions, Party B acknowledges that BNYM is not making any representations or warranties with respect to the treatment of any Transaction under any accounting rules, policies, guidelines, principles or statements, including, without limitation, Topic 815 of the FASB Accounting Standards Codification.

4.	The Agreement is further supplemented by the following provisions:

Agreement Regarding Set-off and Collateral:

Notwithstanding Section 6(f) or any other provision of the Agreement or any other agreement between the parties to the contrary, the obligations of Party B under this Master Confirmation and any Supplemental Confirmation are not secured by any collateral. Obligations under any Transaction shall not be set off against any other obligations of the parties, whether arising under the Agreement, this Master Confirmation, any Supplemental Confirmation or any other agreement between the parties hereto, by operation of law or otherwise, and no other obligations of the parties shall be set off against obligations under such Transaction, whether arising under the Agreement, this Master Confirmation, any Supplemental Confirmation or any other agreement between the parties hereto, by operation of law or otherwise, and each party hereby waives any such right of setoff. In calculating any amounts under Section 6(e) of the Agreement, notwithstanding anything to the contrary in the Agreement, (a) separate amounts shall be calculated as set forth in such Section 6(e) with respect to (i) any Transaction and (ii) all other Transactions, and (b) such separate amounts shall be payable pursuant to Section 6(d)(ii) of the Agreement.

Status of Claims in Bankruptcy:

BNYM acknowledges and agrees that neither this Master Confirmation nor any Supplemental Confirmation is intended to convey to BNYM rights with respect to the transactions contemplated hereby or by any Supplemental Confirmation that are senior to the claims of common stockholders in any U.S. bankruptcy proceedings of Party B; provided, however, that nothing herein or in any Supplemental Confirmation shall limit or shall be deemed to limit BNYM’s right to pursue remedies in the event of a breach by Party B of its obligations and agreements with respect to this Master Confirmation, any Supplemental Confirmation or the Agreement; and provided further, that nothing herein or in any Supplemental Confirmation shall limit or shall be deemed to limit BNYM’s rights in respect of any transaction other than the Transactions.

- 17 -

Limit on Beneficial Ownership:

With respect to any Transaction, notwithstanding any other provisions in the Agreement, herein or in the Supplemental Confirmation for such Transaction, BNYM shall not be entitled to receive Shares or any other class of voting securities of Party B (whether in connection with the purchase of Shares on any Settlement Date for such Transaction or any Termination Settlement Date for such Transaction or otherwise) to the extent (but only to the extent) that such receipt would result in BNYM and each person subject to aggregation of Shares or other voting securities with BNYM under Section 13 or Section 16 of the Exchange Act and the rules promulgated thereunder (the “BNYM Group”) directly or indirectly beneficially owning (as such term is defined for purposes of Section 13(d) of the Exchange Act) at any time in excess of 4.5% of the outstanding Shares or any other class of voting securities of Party B. Any purported delivery under any Transaction shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the BNYM Group directly or indirectly so beneficially owning in excess of 4.5% of the outstanding Shares or any other class of voting securities of Party B. If any delivery owed to BNYM under any Transaction is not made, in whole or in part, as a result of this provision, Party B’s obligation to make such delivery shall not be extinguished and Party B shall make such delivery as promptly as practicable after, but in no event later than one Clearance System Business Day after, BNYM gives notice to Party B that such delivery would not result in the BNYM Group directly or indirectly so beneficially owning in excess of 4.5% of the outstanding Shares or any other class of voting securities of Party B. If Net Share Settlement in respect of any Transaction would result in the BNYM Group beneficially owning more than 4.5% of the outstanding Shares in connection with closing out its hedge position, BNYM shall be allowed to partially settle such Transaction based on its purchase of that amount of Shares, and then to purchase the amount or amounts of additional Shares necessary to settle the remainder of such Transaction, and to make the associated deliveries at such times as determined by the Calculation Agent.

Severability:

If any term, provision, covenant or condition in this Master Confirmation or any Supplemental Confirmation, or the application thereof to any party or circumstance, shall be held to be invalid or unenforceable in whole or in part for any reason, the remaining terms, provisions, covenants, and conditions hereof or thereof shall continue in full force and effect as if this Master Confirmation and such Supplemental Confirmation had been executed with the invalid or unenforceable provision eliminated, so long as this Master Confirmation and such Supplemental Confirmation as so modified continue to express, without material change, the original intentions of the parties as to the subject matter of this Master Confirmation and such Supplemental Confirmation and the deletion of such portion of this Master Confirmation and such Supplemental Confirmation will not substantially impair the respective benefits or expectations of parties to this Master Confirmation and such Supplemental Confirmation; provided, however, that this severability provision shall not be applicable if any provision of Section 2, 5, 6 or 13 of the Agreement (or any definition or provision in Section 14 to the extent that it relates to, or is used in or in connection with any such Section) shall be so held to be invalid or unenforceable.

Miscellaneous:

(a)

Addresses for Notices. For the purpose of Section 12(a) of the Agreement:

Address for notices or communications to BNYM:


		Address:		The Bank of New York Mellon Global Risk Management Services Global Markets Division 32 Old Slip, 15th Floor New York, New York 10286
		Attention:		Art Condodina
		Telephone No.:		212-804-4891
		Facsimile No.:		212-495-1015

- 18 -


		And with a copy to:

		Address:		The Bank of New York Mellon
				Global Risk Management Services
				Global Markets Division
				32 Old Slip, 15th Floor
				New York, New York 10286
		Attention:		James McAuliffe
		Telephone No.:		212-804-2137
		Facsimile No.:		212-495-1017

		With respect to any notice sent to BNYM under Sections 5, 6 or 13(c) of the Agreement, a copy shall also be sent to:

		Address:		The Bank of New York Mellon
				One Wall Street
				13th Floor
				New York, New York 10286
		Attention:		Legal Department (Global Markets)
		Telephone No.:		212-635-1095
		Facsimile No.:		212-635-1958

		And with a copy to:

		Address:		Latham & Watkins LLP
				355 South Grand Avenue
				Los Angeles, CA 90071
		Attention:		Scott Hodgkins
		Telephone No.:		213-485-1234
		Facsimile No.:		213-891-8763

Address for notices or communications to Party B:


		Address:		DDR Corp.
				3300 Enterprise Parkway
				Beachwood, Ohio 44122
		Attention:		Luke Petherbridge
		Facsimile No.:		216-755-1827

		With a copy to:

		Address:		Jones Day
				901 Lakeside Avenue
				Cleveland, Ohio 44114
		Attention:		Michael J. Solecki
		Telephone No.:		216-586-3939
		Facsimile No.:		216-579-0212

Party B payment instructions:


		To Be Advised.

(b)

Waiver of Right to Trial by Jury. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to this Master Confirmation, any Supplemental Confirmation or the Agreement. Each party (i) certifies that no representative, agent or attorney of the other party has represented, expressly or otherwise, that such other party would not, in the event of such a suit action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party have been induced to enter into this Master Confirmation and, from time to time, any Supplemental Confirmation by, among other things, the mutual waivers and certifications in this Section.

- 19 -

(c)

Binding Contract. (i) This Master Confirmation, and upon execution of any Supplemental Confirmation, this Master Confirmation together with such Supplemental Confirmation, is a “qualified financial contract,” as such term is defined in Section 5-701(b)(2) of the General Obligations Law of New York (the “General Obligations Law”); (ii) such Supplemental Confirmation constitutes a “confirmation in writing sufficient to indicate that a contract has been made between the parties” hereto, as set forth in Section 5-701(b)(3)(b) of the General Obligations Law; and (iii) this Master Confirmation constitutes a prior “written contract” as set forth in Section 5-701(b)(1)(b) of the General Obligations Law, and each party hereto intends and agrees to be bound by this Master Confirmation, and upon execution of such Supplemental Confirmation, this Master Confirmation together with such Supplemental Confirmation. The parties hereto further agree and acknowledge that this Master Confirmation, and upon execution of any Supplemental Confirmation, this Master Confirmation together with such Supplemental Confirmation, constitutes a contract “for the sale or purchase of a security,” as set forth in Section 8-113 of the Uniform Commercial Code of New York.

- 20 -

Please confirm that the foregoing correctly sets forth the terms of our agreement by signing and returning this Master Confirmation.


	Yours faithfully,

	THE BANK OF NEW YORK MELLON

By:	/s/ Stephen M. Lawler
	Name:	Stephen M. Lawler
	Title:	Managing Director

Confirmed as of the date first written above:


DDR CORP.

By:	/s/ David J. Oakes
	Name:	David J. Oakes, CFA
	Title:	Senior Executive Vice President & Chief Financial Officer

EXHIBIT A

[Insert Date]

Supplemental Confirmation for Forward Stock Sale Transaction

To:

DDR Corp.

3300 Enterprise Parkway

Beachwood, Ohio 44122

Telefax No.: 216-755-1827

Attention:

Luke Petherbridge

Senior Vice President of Capital Markets

From:

The Bank of New York Mellon

32 Old Slip

15th Floor

New York, New York 10286

Telefax No.: 212-495-1015

Dear Sir/Madam:

The Bank of New York Mellon (“BNYM” or “BNY”) and DDR Corp. (“Party B”) are parties to the Master Confirmation for Forward Stock Sale Transactions dated December 4, 2012 (the “Master Confirmation”) pursuant to which BNYM and Party B have entered into a Transaction with the terms and conditions set forth therein and herein. This Supplemental Confirmation, together with the Master Confirmation, shall constitute a “Confirmation” for purposes of the Agreement. In the event of any inconsistency between the Master Confirmation and this Supplemental Confirmation, the Master Confirmation shall govern to the extent of such inconsistency. Capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Master Confirmation.

The terms of the Transaction to which this Supplemental Confirmation relates are as follows:


Trade Date:		[	]

Effective Date:		[	]

Base Shares:		[ ] Shares

Maturity Date:		[	]

[Number of Forward Hedge Shares Sold on 1st Trading Day of the Forward Hedge Selling Period:		[	]
Number of Forward Hedge Shares Sold on 2nd Trading Day of the Forward Hedge Selling Period:		[	]
Number of Forward Hedge Shares Sold on 3rd Trading Day of the Forward Hedge Selling Period:		[	]

Number of Forward Hedge Shares Sold on [20th] Trading Day of the Forward Hedge Selling Period:		[	]]¹

[Aggregate Sales Price of Forward Hedge Shares Sold on 1st Trading Day of the Forward Hedge Selling Period:		[	]
Aggregate Sales Price of Forward Hedge Shares Sold on 2nd Trading Day of the Forward Hedge Selling Period:		[	]
Aggregate Sales Price of Forward Hedge Shares Sold on 3rd Trading Day of the Forward Hedge Selling Period:		[	]

Aggregate Sales Price of Forward Hedge Shares Sold on [20th] Trading Day of the Forward Hedge Selling Period:		[	]]²

Initial Forward Price:	USD	[	]

¹	Number of entries should correspond to the number of Trading Days in the Forward Hedge Selling Period.

²	Number of entries should correspond to the number of Trading Days in the Forward Hedge Selling Period.

A-1

Please confirm that the foregoing correctly sets forth the terms of our agreement by signing and returning this Supplemental Confirmation.


		Yours faithfully,

		THE BANK OF NEW YORK MELLON

By:
		Name:
		Title:

Confirmed as of the date first written above:


DDR CORP.

By:
		Name:
		Title:

A-2

EXHIBIT B

The Settlement Commission is equal to USD 0.02 per Share.

B-1

SCHEDULE I


Forward Price Reduction Date	Forward Price Reduction Amount¹
Trade Date	USD	0.00
[ ]	USD	[	]
[ ]	USD	[	]
[ ]	USD	[	]
[ ]	USD	[	]
Maturity Date	USD	0.00
Thereafter	USD	0.00

¹	This table to be filled out from the corresponding table in the Transaction Notice relating to the applicable Supplemental Confirmation.

SI-1

EX-1.4 5 d446809dex14.htm EX-1.4 EX-1.4

Exhibit 1.4

EXECUTION COPY

December 4, 2012

Master Confirmation for Forward Stock Sale Transactions


To:		DDR Corp.
		3300 Enterprise Parkway
		Beachwood, Ohio 44122
		Telefax No.: 216-755-1827
		Attention: Luke Petherbridge
		Senior Vice President of Capital Markets

From:		KeyBanc Capital Markets Inc.
		127 Public Square
		Cleveland, Ohio 44114
		Attention: David Gruber

Dear Sir/Madam:

The purpose of this letter agreement (this “Master Confirmation”) is to confirm the terms and conditions of the transactions to be entered into from time to time between KeyBanc Capital Markets Inc. (“KBCM”) and DDR Corp. (“Party B”) in accordance with the terms of the Amended and Restated Sales Agency Financing Agreement, dated as of December 4, 2012, between KeyBanc Capital Markets Inc. and Party B (the “Sales Agency Financing Agreement”) on the Trade Dates specified below (collectively, the “Transactions”, and each, a “Transaction”). Each Transaction will be evidenced by a supplemental confirmation (each, a “Supplemental Confirmation,” and each such Supplemental Confirmation, together with this Master Confirmation, a “Confirmation” for purposes of the Agreement specified below) substantially in the form of Exhibit A hereto.

Each Confirmation evidences a complete and binding agreement between KBCM and Party B as to the terms of the Transaction to which such Confirmation relates. Each Confirmation shall supplement, form a part of, and be subject to an agreement in the form of the 2002 ISDA Master Agreement (the “Agreement”) as if KBCM and Party B had executed an agreement in such form on the date hereof (but without any Schedule except for the election of the laws of the State of New York as the governing law); provided that in no event shall Party B be required to pay an additional amount to KBCM under Section 2(d)(i)(4) of the Agreement; provided further that, prior to any assignment or transfer by KBCM any of its rights, or any delegation by KBCM any of its duties, under this Master Confirmation and any Supplemental Confirmation relating to a Transaction, in each case, pursuant to the provisions set forth under the heading “Assignment” below, in no event shall KBCM be required to pay an additional amount to Party B under Section 2(d)(i)(4) of the Agreement. In the event of any inconsistency between provisions of the Agreement and any Confirmation, such Confirmation will prevail for the purpose of the Transaction to which such Confirmation relates. In the event of any inconsistency between provisions of this Master Confirmation and any Supplemental Confirmation, such Supplemental Confirmation will prevail to the extent of such inconsistency. The parties hereby agree that no Transaction other than the Transactions to which the Confirmations relate shall be governed by the Agreement. For purposes of the Equity Definitions, each Transaction is a Share Forward Transaction.

2.	The terms of the particular Transactions to which this Master Confirmation relates are as follows:

GENERAL TERMS:


Seller:		Party B

Buyer:		KBCM

Trade Date:		Subject to the provisions under the heading “Acceleration Events” below, for each Transaction, the last Trading Day (as defined in the Sales Agency Financing Agreement) of the Forward Hedge Selling Period (as defined in the Sales Agency Financing Agreement) for such Transaction, as specified in the Supplemental Confirmation for such Transaction.

Effective Date:		For each Transaction, the date that follows the Trade Date for such Transaction by one Settlement Cycle, as specified in the Supplemental Confirmation for such Transaction.

Base Shares:		For each Transaction, the number of Shares equal to the Actual Sold Forward Amount (as defined in the Sales Agency Financing Agreement) for the Forward Hedge Selling Period for such Transaction, as specified in the Supplemental Confirmation for such Transaction. Immediately after the open of business on each Settlement Date for a Transaction, the number of Base Shares for such Transaction shall be reduced by the number of Settlement Shares for such Settlement Date.

Maturity Date:		For each Transaction, the date that follows the Trade Date for such Transaction by the number of months set forth in the Transaction Notice (as defined in the Sales Agency Financing Agreement) for such Transaction, as specified in the Supplemental Confirmation for such Transaction (or, if such date is not a Scheduled Trading Day, the next following Scheduled Trading Day); provided that if the Maturity Date for any Transaction is a Disrupted Day, then such Maturity Date shall be the first succeeding Scheduled Trading Day that is not a Disrupted Day.

Forward Price:		For each Transaction, on the Effective Date for such Transaction, the Initial Forward Price for such Transaction, and on any other day, the Forward Price for such Transaction as of the immediately preceding calendar day multiplied by the sum of (i) 1 and (ii) the Daily Rate for such day; provided that, on each Forward Price Reduction Date for such Transaction that occurs on or after the Effective Date for such Transaction, the Forward Price for such Transaction in effect on such date shall be such Forward Price otherwise in effect on such date minus the Forward Price Reduction Amount for such Forward Price Reduction Date.

Initial Forward Price:		For each Transaction, the product of (i) an amount equal to 1 minus the Forward Hedge Selling Commission Rate (as defined in the Sales Agency Financing Agreement) applicable to such Transaction; and (ii) the Volume-Weighted Hedge Price.

Volume-Weighted Hedge Price:		For each Transaction, the USD amount per Share equal to the volume-weighted average of the Sales Prices (as defined in the Sales Agency Financing Agreement) per share of Forward Hedge Shares (as defined in the Sales Agency Financing Agreement) sold on each Trading Day (as defined in the Sales Agency Financing Agreement) of the Forward Hedge Selling Period for such Transaction, as specified in the Supplemental Confirmation for such Transaction; provided that, solely for the purposes of calculating the Initial Forward Price, each such Sales Price (other than the Sales Price for the last day of the relevant Forward Hedge Selling Period) shall be subject to adjustment in the same manner as the Forward Price pursuant to the definition thereof during the period from, but excluding, the date one Settlement Cycle immediately following the Trading Day of the relevant Forward Hedge Selling Period on

- 2 -


		which the Forward Hedge Shares related to such Sales Price are sold to, and including, the Effective Date of such Transaction. The Initial Forward Price for each Transaction shall be specified in the Supplemental Confirmation for such Transaction.

Daily Rate:		For any day, (i)(A) USD-Federal Funds Rate for such day minus (B) the Spread divided by (ii) 360.

USD-Federal Funds Rate:		For any day, the rate set forth for such day opposite the caption “Federal funds”, as such rate is displayed on the page “FedsOpen <Index> <GO>” on the BLOOMBERG Professional Service, or any successor page; provided that if no rate appears on any day on such page, the Calculation Agent shall determine the rate for such day in a commercially reasonable manner from any publicly available source (including any Federal Reserve Bank); provided, however, that if, after using its commercially reasonable efforts, the Calculation Agent is unable to find such a rate, then the rate for the immediately preceding day (determined in the manner provided above) shall be used for such day.

Spread:		0.50%

Settlement Commission:		As set forth in Exhibit B hereto.

Forward Price Reduction Date:		For each Transaction, each date set forth under the heading “Forward Price Reduction Date” in the Transaction Notice for such Transaction, as specified in Schedule I to the Supplemental Confirmation for such Transaction.

Forward Price Reduction Amount:		For each Forward Price Reduction Date for any Transaction, the Forward Price Reduction Amount set forth opposite such date on Schedule I to the Supplemental Confirmation for such Transaction.

Shares:		Common Shares, $0.10 par value per share, of DDR Corp. (the “Issuer”) (Exchange identifier: “DDR”).

Prepayment:		Not Applicable

Exchange:		New York Stock Exchange, subject to clause (e) under the heading “Acceleration Events” below.

Related Exchange(s):		All Exchanges.

Clearance System:		The Depository Trust Company (or its successor).

Calculation Agent:		KBCM. Upon execution of this Master Confirmation, Party B hereby requests the Calculation Agent to provide, and the Calculation Agent shall provide, Party B with a schedule of all calculations, adjustments and determinations in reasonable detail and in a timely manner.

Determining Party:		KBCM

Exchange Act:		The Securities Exchange Act of 1934, as amended from time to time.
SETTLEMENT TERMS:

Settlement Date:		With respect to any Transaction, subject to the provisions under “Acceleration Events” and “Termination Settlement” below, any Scheduled Trading Day

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		following the Effective Date for such Transaction and up to, and including, the Maturity Date for such Transaction, as designated by Party B in a written notice (a “Settlement Notice”) that satisfies the Settlement Notice Requirements and that (a) if related to any Cash Settlement or Net Share Settlement, is delivered to KBCM at least ten Scheduled Trading Days prior to such Settlement Date and (b) if related to Physical Settlement, is delivered at any time before the Maturity Date for such Transaction, and settlement will be completed as promptly as reasonably practicable thereafter; provided that (i) subject to clause (ii) below and after giving effect to any other Settlement occurring on the Maturity Date for such Transaction, the Maturity Date for such Transaction shall be a Settlement Date for such Transaction if the number of Base Shares for such Transaction immediately before the open of business on such Maturity Date is greater than zero; (ii) if Cash Settlement or Net Share Settlement applies, any Settlement Date for any Transaction shall, if KBCM is unable to completely unwind its hedge during the originally scheduled Unwind Period due to (A) an inability to comply with the provisions of Rule 10b-18 under the Exchange Act (assuming that Rule 10b-18 applied to KBCM’s purchases during the Unwind Period as if KBCM were Party B), (B) the existence of any Suspension Day or Disrupted Day, or (C) the inability of KBCM, in its commercially reasonable judgment after using its commercially reasonable efforts, to unwind its hedge during the originally scheduled Unwind Period, be deferred until the third Scheduled Trading Day following the date on which KBCM is able to completely unwind its hedge (provided that such deferral shall not extend beyond the earlier of (x) the Maturity Date and (y) the 20th Scheduled Trading Day after the Settlement Date designated in the Settlement Notice, and such deferred date shall be a Settlement Date for such Transaction to which (1) Cash Settlement or Net Share Settlement, as applicable, will apply with respect to the portion of the applicable Settlement Shares as to which KBCM has unwound its hedge during the Unwind Period (for avoidance of doubt, such portion of such Settlement Shares to be a number of Settlement Shares with respect to which KBCM would be deemed, pursuant to the immediately following paragraph, to have completely unwound its hedge), and (2) Physical Settlement will apply with respect to the remainder of such Settlement Shares), and (iii) with respect to any Transaction, no more than 20 Settlement Dates other than the Maturity Date for such Transaction may be designated by Party B; provided further that if KBCM shall fully unwind its hedge by a date that is more than one Settlement Cycle prior to the related Settlement Date specified above, KBCM may, by written notice to Party B, specify any Scheduled Trading Day prior to such original Settlement Date as the Settlement Date; provided further that if any Settlement Date specified above is not a Scheduled Trading Day, the Settlement Date shall instead be the next Scheduled Trading Day. Notwithstanding anything herein to the contrary, if any Settlement Date is not a Clearance System Business Day, then such Settlement Date shall instead occur on the next succeeding day that is a Clearance System Business Day.

		With respect to any Settlement Date of a Transaction, KBCM will be deemed to have completely unwound its hedge upon such time that KBCM shall have acquired a number of Shares (i) in the case of Cash Settlement, equal to the number of Settlement Shares for such Settlement Date, and (ii) in the case of Net Share Settlement, for which KBCM has paid an aggregate purchase price (inclusive of a per Share commission equal to the Settlement Commission) equal to (1) the product of (A) the number of Settlement Shares for such Settlement Date and (B) the Forward Price for such Transaction as of the first day of the applicable Unwind Period minus (2) the product of (A) the Forward Price Reduction Amount for each Forward Price Reduction Date for such Transaction that occurs during such Unwind Period and (B) the number of Settlement Shares with respect to which KBCM has not unwound its hedge as of the close of business on such Forward Price Reduction Date.

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Settlement Shares:		For any Settlement Date of a Transaction, subject to the provisions under “Acceleration Events” and “Termination Settlement” below, the number of Shares so designated by Party B in the applicable Settlement Notice, provided such number of Shares shall not exceed the number of Base Shares for such Transaction immediately before the open of business on such Settlement Date, less the number of Shares previously designated as Settlement Shares for such Transaction for which a Settlement Date has not yet occurred; provided that, on the Maturity Date for any Transaction, the number of Settlement Shares for such Transaction shall be equal to the number of Base Shares for such Transaction immediately before the open of business on such Maturity Date, less the number of Shares previously designated as Settlement Shares for such Transaction for which a Settlement Date has not yet occurred; provided further that the number of Settlement Shares shall not be less than the lesser of (i) the number of Base Shares for such Transaction immediately before the open of business on such Settlement Date, less the number of Shares previously designated as Settlement Shares for such Transaction for which a Settlement Date has not yet occurred; and (ii) 1,000 Shares.

Settlement Method:		Subject to the provisions under “Settlement Date” above and “Acceleration Events” and “Termination Settlement” below, Physical, Cash, or Net Share, at the election of Party B as set forth in a Settlement Notice that satisfies the Settlement Notice Requirements. Party B hereby irrevocably elects Physical Settlement to apply to any Settlement Date for a Transaction that occurs on the Maturity Date for such Transaction pursuant to clause (i) of the first proviso opposite the caption “Settlement Date” above for which a Settlement Notice meeting the requirements hereof has not been delivered. Furthermore, if Party B designates a Settlement Date but fails to elect a Settlement Method for such Settlement Date, Party B shall be deemed to have irrevocably elected for Physical Settlement to apply on such Settlement Date.

Settlement Notice Requirements:		Notwithstanding any other provisions hereof, a Settlement Notice delivered by Party B that specifies Cash Settlement or Net Share Settlement will not be effective to establish a Settlement Date or require Cash Settlement or Net Share Settlement (as applicable) unless Party B delivers to KBCM with such Settlement Notice a representation signed by Party B substantially in the following form: “As of the date of this Settlement Notice, DDR Corp is not aware of any material nonpublic information concerning itself or the Shares, and is designating the date contained herein as a Settlement Date in good faith and not as part of a plan or scheme to evade compliance with the federal securities laws.” In addition, notwithstanding any other provisions hereof, a Settlement Notice delivered by Party B that specifies Cash Settlement or Net Share Settlement will not be effective to establish a Settlement Date or require Cash Settlement or Net Share Settlement (as applicable) if, as of the date of such Settlement Notice, any Shares (other than the Settlement Shares designated in such Settlement Notice) have been designated as Settlement Shares for a Cash Settlement or a Net Share Settlement for which the last Unwind Date is not before the date of such Settlement Notice.

Unwind Period:		The period from, and including, the first Scheduled Trading Day following the date on which Party B elects Cash Settlement or Net Share Settlement in respect of a Settlement Date through the third Scheduled Trading Day preceding such Settlement Date (it being understood that such Settlement Date may be deferred pursuant to clause (ii) of the first proviso under “Settlement Date” above, thereby lengthening the related Unwind Period).

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Unwind Daily Share Amount:		On each Scheduled Trading Day during the Unwind Period relating to a Settlement Date, other than a Suspension Day or a Disrupted Day, KBCM will, in accordance with the principles of best execution, use commercially reasonable efforts to purchase a number of Shares equal to the least of (i) 100% of the volume limitation of Rule 10b-18 applicable to KBCM (assuming that Rule 10b-18 applied to KBCM’s purchases during the Unwind Period as if KBCM were Party B) for the Shares on such Scheduled Trading Day, without reference to any block purchases, (ii) 25% of the daily trading volume for the Shares on the Exchange on such Scheduled Trading Day, and (iii) the number of Shares required, pursuant to the second paragraph under “Settlement Date” above, to be purchased by KBCM in order to completely unwind its hedge with respect to the Settlement Shares relating to such Settlement Date. In connection with bids and purchases of Shares in connection with any Net Share Settlement or Cash Settlement of any Transaction hereunder, KBCM shall conduct its activities, or cause its affiliates to conduct their activities, in a manner consistent with the requirements of the safe harbor provided by Rule 10b-18 under the Exchange Act (as if such provisions were applicable to such purchases), subject to applicable Securities and Exchange Commission or Staff no-action letters or interpretations as appropriate and subject to any delays between execution and reporting of a trade of the Shares on the applicable securities exchange or quotation system and other circumstances reasonably beyond KBCM’s or such affiliates’ control. For avoidance of doubt, in no event shall KBCM be required to make any such purchases during any Unwind Period (or during overlapping Unwind Periods for one or more Settlement Dates of one or more Transactions) that exceed the volume limitations set forth in Rule 10b-18.

Physical Settlement:		In lieu of the obligations set forth in Section 9.2 of the Equity Definitions, on any Settlement Date in respect of which Physical Settlement applies, Party B shall deliver, through the Clearance System, to KBCM a number of Shares equal to the Settlement Shares for such Settlement Date, and KBCM shall deliver to Party B, by wire transfer of immediately available funds to an account designated by Party B, an amount in cash equal to the Physical Settlement Amount for such Settlement Date, on a delivery versus payment basis.

Physical Settlement Amount:		With respect to any Transaction, for any Settlement Date in respect of which Physical Settlement applies, an amount in cash equal to the product of the Forward Price for such Transaction on such Settlement Date and the number of Settlement Shares for such Settlement Date.

Cash Settlement:		In lieu of the obligations set forth in Sections 8.4 and 8.5 of the Equity Definitions, on any Settlement Date in respect of which Cash Settlement applies, (i) if the Cash Settlement Amount is a positive number, KBCM will pay the Cash Settlement Amount to Party B; and (ii) if the Cash Settlement Amount is a negative number, Party B will pay the absolute value of the Cash Settlement Amount to KBCM. Such amounts shall be paid on the Settlement Date by wire transfer of immediately available funds to an account designated by the party to receive such amounts.

Cash Settlement Amount:		With respect to any Transaction, for any Settlement Date for such Transaction in respect of which Cash Settlement applies, an amount determined by the Calculation Agent equal to: (1) the product of (i) (A) the Forward Price for such Transaction as of the first day of the applicable Unwind Period minus (B) the Settlement Price for such Cash Settlement, and (ii) the number of Settlement Shares for such Settlement Date that are subject to Cash Settlement minus (2)

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		the product of (i) the Forward Price Reduction Amount for each Forward Price Reduction Date for such Transaction that occurs during such Unwind Period and (ii) the number of Settlement Shares for such Settlement Date that are subject to Cash Settlement and with respect to which KBCM has not unwound its hedge as of such Forward Price Reduction Date.

Settlement Price:		With respect to any Transaction for any Settlement Date for such Transaction in respect of which Cash Settlement or Net Share Settlement applies, the sum of (x) the weighted average price per Share at which KBCM purchased Shares during the Unwind Period applicable to such Cash Settlement or Net Share Settlement to unwind its hedge in connection with the portion of such Transaction to be settled on such Settlement Date, in compliance with the second sentence under “Unwind Daily Share Amount” above and (y) a per Share commission equal to the Settlement Commission and (ii) the number of Settlement Shares for such Settlement Date that are subject to Cash Settlement

Net Share Settlement:		On any Settlement Date in respect of which Net Share Settlement applies, if the number of Net Share Settlement Shares is a (i) positive number, KBCM shall deliver, through the Clearance System, a number of Shares to Party B equal to the Net Share Settlement Shares, and (ii) negative number, Party B shall deliver, through the Clearance System, a number of Shares to KBCM equal to the absolute value of the Net Share Settlement Shares; provided that if KBCM determines in its good faith judgment that it would be required to deliver Net Share Settlement Shares to Party B, KBCM may elect to deliver a portion of such Net Share Settlement Shares on one or more dates prior to the applicable Settlement Date.

Net Share Settlement Shares:		On any Settlement Date of a Transaction in respect of which Net Share Settlement applies, an amount equal to (A) the number of Shares acquired in the Unwind Period applicable the portion of such Transaction to be settled on such Settlement Date pursuant to Net Share Settlement minus (B) the number of Settlement Shares for such Settlement Date that are subject to Net Share Settlement.

Settlement Currency:		USD

Failure to Deliver:		Not Applicable

Other Applicable Provisions:		To the extent KBCM is obligated to deliver Shares hereunder, the provisions of Sections 9.9 and 9.11 of the Equity Definitions will be applicable as if “Physical Settlement” applied to the Transaction; provided that the Representation and Agreement contained in Section 9.11 of the Equity Definitions shall be modified by excluding any representations therein relating to restrictions, obligations, limitations or requirements under applicable securities laws that exist as a result of the fact that Party B is the issuer of the Shares.
SUSPENSION OF CASH OR NET SHARE SETTLEMENT:

Suspension Day:		Any day on which KBCM determines, in its commercially reasonable discretion and based on the advice of counsel, that it is appropriate with respect to any legal, regulatory or self-regulatory requirements or related policies and procedures (whether or not such requirements, policies or procedures are imposed by law or have been voluntarily adopted by KBCM generally in connection with its business) for KBCM or its affiliates to refrain from engaging in transactions in the Shares. KBCM shall notify Party B if it makes a determination that any day in an Unwind Period is a Suspension Day, but such

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		notice need not specify the reason for KBCM’s determination. If KBCM shall subsequently determine that such day is no longer a Suspension Day, then KBCM shall notify Party B of the same as soon as reasonably practicable, which notice need not specify the reason for KBCM’s determination.
ADJUSTMENTS:

Method of Adjustment:		Calculation Agent Adjustment. Notwithstanding anything in the Equity Definitions to the contrary, for each Transaction, the Calculation Agent may make an adjustment pursuant to Calculation Agent Adjustment to any one or more of the Base Shares for such Transaction, the Forward Price for such Transaction and any other variable relevant to the settlement or payment terms of such Transaction to preserve the economic intent of the parties.
EXTRAORDINARY EVENTS:

Extraordinary Events:		In lieu of the applicable provisions contained in Article 12 of the Equity Definitions, the consequences of any applicable Extraordinary Event shall be as specified in “Acceleration Events” and “Termination Settlement” hereunder.
ACCOUNT DETAILS:

Payments to KBCM:		To be advised under separate cover or telephone, confirmed prior to each Settlement Date.

Payments to Party B:		To be advised under separate cover or telephone, confirmed prior to each Settlement Date.

Delivery of Shares to KBCM:		To be advised

Delivery of Shares to Party B:		To be advised

3.	Other Provisions:

Conditions to Effectiveness:

The effectiveness of each Supplemental Confirmation on the Effective Date for such Supplemental Confirmation shall be subject to (i) the condition that the representations and warranties of Party B contained in Section 3(a) of the Agreement and in the Sales Agency Financing Agreement, and any certificate delivered pursuant to the Sales Agency Financing Agreement by Party B, be true and correct on such Effective Date as if made as of such Effective Date, (ii) the condition that the representations and warranties of KBCM contained in Section 3(a) of the Agreement be true and correct on such Effective Date as if made as of such Effective Date, (iii) the condition that Party B have delivered to KBCM an opinion of counsel (which may include internal counsel to Party B and which may, at Party B’s election, be an opinion of counsel required to be delivered pursuant to the Sales Agency Financing Agreement, provided such opinion of counsel satisfies the requirements hereof) dated on or prior to the first Trade Date for a Transaction hereunder with respect to matters set forth in Section 3(a)(ii) and Section 3(a)(v) of the Agreement (as if references therein to “this Agreement” were instead references to “this Master Confirmation”), (iv) the condition that Party B have performed all of the obligations required to be performed by it under the Sales Agency Financing Agreement on or prior to such Effective Date, (v) delivery by KBCM to Party B of a properly executed Internal Revenue Service Form W-9 or similar documentation establishing an exemption from backup withholding under the Internal Revenue Code of 1986, as amended, (vi) the satisfaction of all of the conditions set forth in Section 5.01 of the Sales Agency Financing Agreement. For purposes hereof, the representation in Section 3(a)(iv) of the Agreement shall, for avoidance of doubt, extend to this Master Confirmation and each Supplemental Confirmation; and (vii) the non-occurrence of any event that would cause an Acceleration Event to be in effect upon the effectiveness of such Supplemental Confirmation.

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Representations and Warranties of Party B: Party B hereby represents and warrants to KBCM (each of such representations to be deemed part of Section 3(a) of the Agreement) as of the date hereof and on the Effective Date of each Transaction, and, in the case of clause (b), on such dates and on each Settlement Date for such Transaction, that:

(a)

(b)

(c)

(d)

Neither Party B nor any “affiliated purchaser” of Party B (as defined in Rule 10b-18 under the Exchange Act) shall take any action (including, without limitation, the purchase of any Shares) that would cause any purchases of Shares by KBCM or its affiliates during any Unwind Period relating to any Cash Settlement or Net Share Settlement of any Transaction not to comply with Rule 10b-18 under the Exchange Act (assuming that Rule 10b-18 applied to KBCM’s or its affiliates purchases during the Unwind Period as if KBCM or its affiliates were Party B).

(e)

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(f)

(g)

(h)

Party B has not and will not enter into any agreement similar to any Transaction hereunder where any valuation or unwind period (however defined) in such other transaction will overlap at any time (including as a result of acceleration, postponement or extension in such valuation period as provided in the relevant agreement) with any Unwind Period of any Transaction hereunder. For the avoidance of doubt, Party B hereby covenants not to take any action that, pursuant to the terms of or contemplated by that certain Master Confirmation for Forward Stock Sale Transactions, of even date herewith, between Party B and The Bank of New York Mellon (the “Other Master Confirmation”), would result in any “Unwind Period” (as defined in the Other Master Confirmation) overlapping with any Unwind Period hereunder. In the event that the valuation or unwind period in any other similar transaction overlaps with any Unwind Period of any Transaction hereunder as a result of any Acceleration Event hereunder, Party B shall promptly amend such transaction to avoid any such overlap.

(i)

(j)

(k)

Party B is an “accredited investor” as defined in Rule 501 of Regulation D under the Securities Act.

(l)

Covenants of Party B: Party B hereby agrees that, so long as either party has or may have any obligation under any Transaction, that:

(a)

(b)

(c)

(d)

(e)

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(f)

In addition to any other requirements set forth herein, Party B agrees not to elect Cash Settlement or Net Share Settlement in respect of such Transaction if such settlement would result in a violation of the U.S. federal securities laws or any other federal or state law or regulation applicable to Party B. Party B will not directly or indirectly take any action that would cause any purchase of Shares by KBCM during any Unwind Period to fail to comply with the requirements of Rule 10b5-1 under the Exchange Act.

(g)

Party B will, by the fifth succeeding Exchange Business Day, notify KBCM upon obtaining knowledge of the occurrence of any event that would, with the giving of notice, the passage of time or the satisfaction of any condition, constitute an Event of Default, a Potential Event of Default or a Potential Adjustment Event.

(h)

The parties acknowledge and agree that any Shares delivered by Party B to KBCM on any Settlement Date for such Transaction will be newly issued Shares and, when delivered by KBCM (or an affiliate of KBCM) to securities lenders from whom KBCM (or an affiliate of KBCM) borrowed Shares in connection with hedging its exposure to such Transaction, will be freely saleable without further registration or other restrictions under the Securities Act in the hands of those securities lenders, irrespective of whether such stock loan is effected by KBCM or an affiliate of KBCM so long as it was effected to hedge KBCM’s exposure with respect to such Transaction. Accordingly, Party B agrees that the Shares that it delivers to KBCM on each Settlement Date for such Transaction shall not bear a restrictive legend and that such Shares will be deposited in, and the delivery thereof shall be effected through the facilities of, the Clearance System.

In addition, Party B covenants to notify KBCM in writing (which shall include email) at least ten Exchange Business Days prior to the ex-dividend or ex date, as applicable, of a distribution, issue or dividend to existing holders of the Shares, which ex-dividend date or ex date occurs at any time from, and including, the date hereof and ends on the final Settlement Date under this Master Confirmation; provided, however, Party B shall have no obligation to notify KBCM of the ex-dividend date that will occur on December 13, 2012 in respect of the dividend announced by Party B on November 8, 2012, provided the terms of such dividend are not modified on or after the date hereof.

Covenants and Representation of KBCM:

(a)

KBCM shall use any Settlement Shares for any Transaction delivered by Party B to KBCM to return to securities lenders to close out borrowings created by KBCM (or an affiliate of KBCM) in connection with its hedging activities related to exposure under such Transaction.

(b)

In connection with bids and purchases of Shares in connection with any Cash Settlement or Net Share Settlement of any Transaction, KBCM shall comply, or cause compliance, with the provisions of Rule 10b-18 under the Exchange Act, as if such provisions were applicable to such purchases, subject to applicable Securities and Exchange Commission or Staff no-action letters or interpretations as appropriate and subject to any delays between execution and reporting of a trade of the Shares on the applicable securities exchange or quotation system and other circumstances reasonably beyond KBCM’s or such affiliates’ control.

(c)

KBCM is at all times an “eligible contract participant” within the meaning of Section 1a of the Commodity Exchange Act, as amended, by virtue of being a financial institution (as a depository institution), and all Transactions will be subject to individual negotiation.

Acceleration Events: An Acceleration Event shall occur if:

(a)

Stock Borrow Events. Notwithstanding anything to the contrary herein, in the Agreement or in the Equity Definitions, if, after using commercially reasonable efforts, KBCM (or its affiliate) is unable to hedge (or maintain a hedge of) KBCM’s exposure to any Transaction (a “Stock Borrow Event”) because (i) of the lack of sufficient Shares being made available for Share borrowing by lenders or (ii) it (or its affiliate) would incur a stock loan cost of more than 45 basis points per annum, KBCM shall have the right to designate any Scheduled Trading Day to be a Settlement Date in respect of such

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Transaction on at least three Scheduled Trading Days’ notice, and to select the number of Settlement Shares for such Settlement Date; provided that (x) prior to the effectiveness of the designation of a Stock Borrow Event under this paragraph (a), Party B may refer KBCM to a lending party reasonably acceptable to KBCM that will lend KBCM (or its affiliate) Shares within such three Scheduled Trading Day period, on terms reasonably acceptable to KBCM and at a stock loan cost of no more than 45 basis points per annum and (y) the number of Settlement Shares for any Settlement Date so designated by KBCM shall not exceed the number of Shares as to which such inability to, or cost limitation with respect to, borrow exists; or

(b)

Dividends and Other Distributions. Notwithstanding anything to the contrary herein, in the Agreement or in the Equity Definitions, with respect to any Transaction, if on any day Party B declares a distribution, issue or dividend to existing holders of Shares of (i) any cash dividend to the extent that the aggregate amount of all cash dividends having an ex-dividend date during the period from, and including, any Forward Price Reduction Date for such Transaction to, but excluding, the next subsequent Forward Price Reduction Date for such Transaction (with each of the Trade Date and the Maturity Date for such Transaction being a Forward Price Reduction Date for such Transaction for purposes of this clause (b) only) exceeds, on a per Share basis, the Forward Price Reduction Amount set forth opposite the first date of such period on Schedule I to the Supplemental Confirmation for such Transaction or (ii) share capital or securities of another issuer acquired or owned (directly or indirectly) by Party B as a result of a spin-off or other similar transaction which has a record date on or after the Effective Date for such Transaction and on or prior to the final Settlement Date for such Transaction or (iii) any other type of securities (other than Shares), rights or warrants or other assets, which distribution, issue or dividend has a record date on or after the Effective Date for such Transaction and on or prior to the final Settlement Date for such Transaction, then KBCM shall have the right to designate any Scheduled Trading Day to be a Settlement Date for such Transaction for the entire Transaction on at least three Scheduled Trading Day’s notice to Party B; or

(c)

ISDA Early Termination Date. Notwithstanding anything to the contrary herein, in the Agreement or in the Equity Definitions, if KBCM has the right to designate an Early Termination Date with respect to any Transaction pursuant to Section 6 of the Agreement, then, in lieu of such right, KBCM shall instead have the right to designate any Scheduled Trading Day to be a Settlement Date for such Transaction for the entire Transaction on at least three Scheduled Trading Days’ notice to Party B; or

(d)

Board Approval of Merger. Notwithstanding anything to the contrary herein, in the Agreement or in the Equity Definitions, with respect to any Transaction, if on any day occurring on or after the first Trading Day of the Forward Hedge Selling Period for such Transaction, the board of directors of Party B votes to approve, or there is a public announcement by Party B of, any action that, if consummated, would constitute a Merger Event (as defined in the Equity Definitions; provided that the language in such definition after the clause “(a “Reverse Merger”)” shall be deleted and replaced with “, in each case if the Merger Date is on or before the Maturity Date for any Transaction under this Master Confirmation”), Party B shall notify KBCM of any such vote or announcement within three Scheduled Trading Days (and, in the case of any such vote, Party B also covenants and agrees to publicly announce the occurrence of such vote within three Scheduled Trading Days thereof). Thereafter, KBCM shall have the right to designate any Scheduled Trading Day to be a Settlement Date for such Transaction for the entire Transaction on at least three Scheduled Trading Days’ notice to Party B, and if a Settlement Date so designated by KBCM is to occur prior to the date that is one Settlement Cycle after the last day of the Forward Hedge Selling Period relating to such Transaction, then the day immediately following the date Party B so notifies KBCM shall, for purposes of such Settlement Date so designated by KBCM, be deemed to be the Trade Date for such Transaction; or

(e)

Other Events. Notwithstanding anything to the contrary herein, in the Agreement or in the Equity Definitions, with respect to any Transaction, if an Insolvency, an Insolvency Filing, a Nationalization, a Delisting (as provided further in the next sentence) or a Change in Law (other than as specified in clause (Y) of the definition thereof) occurs, KBCM shall have the right to designate any Scheduled Trading Day to be a Settlement Date for such Transaction for the entire Transaction on at least three Scheduled Trading Days’ notice to Party B. In addition to the provisions of Section 12.6(a)(iii) of the Equity Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, NYSE Amex Equities, The NASDAQ Global Select Market or The NASDAQ Global

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Market (or their respective successors); if the Shares are immediately re-listed, re-traded or re-quoted on any such exchange, such exchange shall be deemed to be the Exchange; provided that (i) for purposes of determining whether an event has occurred that permits KBCM to designate a Settlement Date pursuant to this clause (e), the first day of the Forward Hedge Selling Period relating to such Transaction shall be deemed to be the Trade Date for such Transaction; and (ii) for purposes of any such Settlement Date so designated by KBCM to occur prior to the date that is one Settlement Cycle after the last day of the Forward Hedge Selling Period relating to such Transaction, the day immediately following the date KBCM so notifies Party B of such designation shall be deemed to be the Trade Date for such Transaction.

Notwithstanding anything to the contrary herein, in the Agreement or in the Equity Definitions, if KBCM designates, pursuant to clause (d) or clause (e) above, a Settlement Date with respect to a Transaction and such Settlement Date is to occur before the date that is one Settlement Cycle after the last day of the Forward Hedge Selling Period for such Transaction, then, for purposes of such Settlement Date, (i) a Supplemental Confirmation relating to such Transaction shall, notwithstanding the provisions under “Conditions to Effectiveness” above, be deemed to be effective; and (ii) the Forward Price shall be deemed to be the Initial Forward Price (calculated assuming that the last Trading Day of such Forward Hedge Selling Period occurs on the date that is deemed, pursuant to clause (d) or clause (e) above, as applicable, to be the Trade Date for such Transaction for purposes of such Settlement Date).

In the event of a Stock Borrow Event, KBCM shall, upon request of Party B, provide Party B with reasonable documentation in its possession regarding its determination that a Stock Borrow Event has occurred, provided that in no event shall KBCM be obligated to provide any proprietary or confidential information.

Termination Settlement:

If a Settlement Date with respect to any Transaction is specified following an Acceleration Event with respect to such Transaction (a “Termination Settlement Date”), Party B will be deemed to have irrevocably elected that Physical Settlement shall apply to such Transaction with respect to such Termination Settlement Date as set forth above, subject to the provisions described under “Limit on Beneficial Ownership” below. If, upon designation of a Termination Settlement Date by KBCM with respect to any Transaction, Party B fails to deliver the Settlement Shares relating to such Termination Settlement Date when due or otherwise fails to perform its obligations in connection therewith, it shall be an Event of Default where Party B is the Defaulting Party for purposes of the Agreement (including, without limitation, Section 6 thereof, which shall apply to such Transaction). If an Acceleration Event occurs during an Unwind Period of any Transaction relating to a number of Settlement Shares of such Transaction to which Cash Settlement or Net Share Settlement applies, then on the Termination Settlement Date of such Transaction relating to such Acceleration Event, notwithstanding any election to the contrary by Party B, Cash Settlement or Net Share Settlement shall apply to the portion of the Settlement Shares relating to such Unwind Period as to which KBCM has unwound its hedge (for avoidance of doubt, such portion of such Settlement Shares to be a number of Settlement Shares with respect which KBCM would be deemed, pursuant to the second paragraph under “Settlement Date” above, to have completely unwound it hedge) and Physical Settlement shall apply in respect of (x) the remainder (if any) of such Settlement Shares and (y) the Settlement Shares designated by KBCM with respect to such Transaction in respect of such Termination Settlement Date. If KBCM designates a Termination Settlement Date (other than pursuant to clause (a) under “Acceleration Events” above), then all Settlement Dates theretofore designated by Party B to occur after such Termination Settlement Date shall instead occur on such Termination Settlement Date and shall, except to the extent (and only to the extent) provided in the immediately preceding sentence, be subject to Physical Settlement, notwithstanding any election to the contrary by Party B.

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Certain Changes In Law:

If there shall occur any Change In Law specified in clause (Y) of the definition thereof, KBCM will, in lieu of immediately exercising rights under clause (e) under the heading “Acceleration Events” above, notify Party B of the relevant change and provide in reasonable detail the reason for the “materially increased cost” referred to in the definition of Change In Law, and KBCM and Party B will negotiate in good faith for at least 30 calendar days to amend this Master Confirmation to take account of such “materially increased cost.” Such amendment may, if agreed by KBCM and Party B, result in a Change In Law specified in clause (Y) of the definition thereof being treated as if it were a Change In Law specified in clause (X) of the definition thereof, as described in clause (e) under the heading “Acceleration Events” above. During the continuance of such negotiations, the parties will continue to perform all of their respective duties and obligations under this Master Confirmation and in respect of each Transaction. If KBCM and Party B are able to agree on a mutually acceptable amendment, such amendment will be effective from the date of such agreement, and the relevant Change In Law shall not constitute an Acceleration Event for purposes of this Master Confirmation (it being understood, for the avoidance of doubt, that nothing in this sentence shall prevent a subsequent event from being deemed to constitute a Change In Law). If, after negotiating in good faith for at least 30 calendar days to so amend this Master Confirmation, KBCM and Party B do not agree on such an amendment, the relevant Change In Law specified in clause (Y) of the definition thereof shall treated as if it were a Change In Law specified in clause (X) of the definition thereof, and KBCM may treat such Change in Law as an Acceleration Event and exercise its rights under clause (e) under the heading “Acceleration Events” above.

Rule 10b5-1:

It is the intent of KBCM and Party B that the purchase of Shares by KBCM during any Unwind Period of any Transaction comply with the requirements of Rule 10b5-1(c)(1)(i)(B) under the Exchange Act and that this Master Confirmation and each Supplemental Confirmation be interpreted to comply with the requirements of Rule 10b5-1(c).

Party B acknowledges that, except as otherwise provided herein, (i) during any Unwind Period of any Transaction, Party B does not have, and shall not attempt to exercise, any influence over how, when or whether to effect purchases of Shares by KBCM (or its agent or affiliate) in connection with this Master Confirmation or the Supplemental Confirmation for such Transaction and (ii) Party B is entering into the Agreement and this Master Confirmation and will enter into all Supplemental Confirmations in good faith and not as part of a plan or scheme to evade compliance with federal securities laws including, without limitation, Rule 10b-5 under the Exchange Act.

Party B hereby agrees with KBCM that during any Unwind Period for any Transaction, Party B shall not communicate, directly or indirectly, any material non-public information (within the meaning of federal securities laws) to any Equity Personnel (as defined below). For the avoidance of doubt and solely by way of illustration, information should be presumed “material” if it relates to such matters as dividend increases or decreases, earnings estimates, changes in previously released earnings estimates, significant expansion or curtailment of operations, a significant increase or decline of orders, significant merger or acquisition proposals or agreements, significant new products or discoveries, extraordinary borrowing, major litigation, liquidity problems, extraordinary management developments, purchase or sale of substantial assets, or other similar information. For purposes of any Transaction, “Equity Personnel” means any persons hereafter designated as such by KBCM to Party B.

Interpretive Letter:

- 14 -

Restricted Shares:

With respect to any Transaction, if Party B is unable to comply with clause (h) of “Covenants of Party B” above in this Section 3 because of a change in law or a change in interpretation or the policy of the Securities and Exchange Commission or its staff, or KBCM otherwise determines in its reasonable, good faith opinion based on the advice of outside counsel that any Shares to be delivered to KBCM by Party B may not be freely returned by KBCM to securities lenders as described in clause (h) of “Covenants of Party B” above in this Section 3, then delivery of any Shares (the “Restricted Shares”) shall be effected as follows:

(i)

Delivery of Restricted Shares by Party B to KBCM (or its agent or affiliate) (a “Private Placement Settlement”) shall be effected in accordance with customary private placement procedures with respect to such Restricted Shares reasonably acceptable to KBCM. On the date of such delivery, Party B shall not have taken, or caused to be taken, any action that would make unavailable either (x) the exemption pursuant to Section 4(2) of the Securities Act for the sale or deemed sale by Party B to KBCM (or any agent or affiliate designated by KBCM) of the Restricted Shares or (y) the exemption pursuant to Section 4(1) or Section 4(3) of the Securities Act for resales of the Restricted Shares by KBCM (or any such agent or affiliate of KBCM). The Private Placement Settlement of such Restricted Shares shall include customary representations, covenants, blue sky and other governmental filings and/or registrations, indemnities to KBCM (and/or any such agent or affiliate of KBCM), due diligence rights (for KBCM or any such agent or affiliate of KBCM or any buyer of the Restricted Shares designated by KBCM or any such agent or affiliate of KBCM), opinions and certificates, and such other documentation as is customary for private placement agreements, all reasonably acceptable to KBCM (or any such agent or affiliate of KBCM). In the case of a Private Placement Settlement, KBCM shall, in its good faith discretion, adjust the number of Restricted Shares to be delivered to KBCM hereunder in a commercially reasonable manner to reflect the fact that such Restricted Shares may not be freely returned to securities lenders by KBCM (or its agent or affiliate) and may only be saleable by KBCM (or its agent or affiliate) at a discount to reflect the lack of liquidity in Restricted Shares. Notwithstanding anything in the Agreement, this Master Confirmation, or any Supplemental Confirmation to the contrary, the date of delivery of such Restricted Shares shall be the Scheduled Trading Day following notice by KBCM to Party B of the number of Restricted Shares to be delivered pursuant to this clause (i).

(ii)

If Party B delivers any Restricted Shares in respect of the Transaction, Party B agrees that (A) such Shares may be transferred freely among KBCM and its agents and/or affiliates and (B) after the minimum “holding period” within the meaning of Rule 144(d) under the Securities Act has elapsed, Party B shall promptly remove, or cause the transfer agent for the Shares to remove, any legends referring to any transfer restrictions from such Shares upon delivery by KBCM (or such agent or affiliate of KBCM) to Party B or such transfer agent of seller’s and broker’s representation letters customarily delivered by KBCM or its affiliates in connection with resales of restricted securities pursuant to Rule 144 under the Securities Act, each without any further requirement for the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document, any transfer tax stamps or payment of any other amount or any other action by KBCM (or such agent or affiliate of KBCM).

Maximum Share Delivery:

Notwithstanding any other provision of this Master Confirmation, in no event will Party B be required to deliver to KBCM in connection with any Transaction (whether pursuant to Physical Settlement, Net Share Settlement, Termination Settlement, pursuant to the provisions set forth below “Restricted Shares” above or otherwise) a number of Shares in excess of an amount (the “Capped Number”) equal to the product of (i) two and (ii) the number of Base Shares of such Transaction, subject to reduction by the aggregate number of Shares delivered by Party B in respect of such Transaction on all prior Settlement Dates of such Transaction. Party B represents and warrants (which shall be deemed to be repeated on each day that any Transaction is outstanding) that the Capped Number for such Transaction is equal to or less than the number of authorized but unissued

- 15 -

Shares of Party B that are not reserved for future issuance in connection with transactions in the Shares (other than such Transaction) on the date of the determination of the Capped Number (such authorized but unissued Shares, the “Available Shares”). If, as a result of this paragraph, Party B shall not have delivered the full number of Shares otherwise deliverable in respect of a Transaction (the resulting deficit, the “Deficit Shares”), then Party B shall be continually obligated to deliver, from time to time until the full number of Deficit Shares have been delivered pursuant to this paragraph, Shares when, and to the extent, that (i) Shares are repurchased, acquired or otherwise received by Party B or any of its subsidiaries after the Trade Date for such Transaction (whether or not in exchange for cash, fair value or any other consideration); (ii) authorized and unissued Shares previously reserved for issuance in respect of other transactions become no longer so reserved; and (iii) Party B authorizes additional unissued Shares. Party B shall immediately notify KBCM of the occurrence of any of the foregoing events (including the number of Shares subject to clause (i), (ii) or (iii) and the corresponding number of Shares to be delivered) and promptly deliver such Shares thereafter. Party B covenants not to take any action to decrease the number of Available Shares below the Capped Number.

Assignment:

KBCM may assign or transfer any of its rights or delegate any of its duties under this Master Confirmation and any Supplemental Confirmation relating to a Transaction to any affiliate of KBCM without the prior written consent of Party B, so long as the senior unsecured debt rating (“Credit Rating”) of such affiliate (or any guarantor of its obligations under such Transaction) is equal to or greater than the Credit Rating of KBCM, as specified by Standard and Poor’s Rating Services or Moody’s Investor Service, Inc., at the time of such assignment or transfer; provided that Party B shall have recourse to KBCM in the event of failure by its assignee to perform any of such duties hereunder; provided, further, that such assignment or transfer will not result in any negative tax or accounting consequences for, or additional payments by, Party B. Notwithstanding the foregoing, the recourse to KBCM shall be limited to recoupment of Party B’s monetary damages and Party B hereby waives any right to seek specific performance by KBCM of its obligations hereunder. In connection with any assignment or transfer pursuant to the first sentence of this paragraph, the guarantee of any guarantor of the relevant transferee’s obligation shall constitute a Credit Support Document under the Agreement. If KBCM so assigns or transfers any of its rights or delegates any of its duties under this Master Confirmation and any Supplemental Confirmation relating to a Transaction, as the case may be, KBCM shall give prompt written notice to Party B of such assignment, transfer or delegation, as applicable.

Notwithstanding anything to the contrary herein, in the Agreement or in the Equity Definitions, KBCM may designate any of its affiliates to purchase or receive such Shares or otherwise to perform KBCM’s obligations in respect of any Transaction and any such designee may assume such obligations, and KBCM shall be discharged of its obligations to Party B only to the extent of any such performance.

Indemnity:

Party B agrees to indemnify KBCM and its affiliates and their respective directors, officers, agents and controlling parties (KBCM and each such affiliate or person being an “Indemnified Party”) from and against any and all losses, claims, damages and liabilities, joint or several, incurred by or asserted against such Indemnified KBCM, but only to the extent arising out of, in connection with, or relating to, the failure of a Supplemental Confirmation to become effective pursuant to the provisions set forth under the heading “Conditions to Effectiveness” above on account of any breach of the representations and covenants of Party B set forth thereunder as conditions precedent to such effectiveness. In addition, Party B will reimburse any Indemnified Party for all reasonable expenses (including reasonable legal fees and reasonable expenses) in connection with the investigation of, preparation for, or defense of any pending or threatened claim or any action or proceeding arising therefrom (whether or not such Indemnified Party is a party thereto) at the time, and only to the extent, that the relevant loss, claim, damage, liability or expense is found in a final and nonappealable judgment by a court of competent jurisdiction to have resulted from the failure of a Supplemental Confirmation to become effective pursuant to the provisions set forth under the heading “Conditions to Effectiveness” above on account of any breach of the representations and covenants of Party B set forth thereunder as conditions precedent to such effectiveness. For the avoidance of doubt, Party B will not

- 16 -

be liable under this “Indemnity” paragraph to the extent that any loss, claim, damage, liability or expense is found in a final and nonappealable judgment by a court of competent jurisdiction to have resulted from KBCM’s gross negligence, fraud, bad faith and/or willful misconduct or a breach of any representation or covenant of KBCM contained in this Master Confirmation, any Supplemental Confirmation or the Agreement.

Miscellaneous:


Non-Reliance:		Applicable

Additional Acknowledgements:		Applicable

Agreements and Acknowledgments Regarding Hedging Activities:		Applicable

Without limiting the generality of Sections 13.1 and 13.4 of the Equity Definitions, Party B acknowledges that KBCM is not making any representations or warranties with respect to the treatment of any Transaction under any accounting rules, policies, guidelines, principles or statements, including, without limitation, Topic 815 of the FASB Accounting Standards Codification.

4.	The Agreement is further supplemented by the following provisions:

Agreement Regarding Set-off and Collateral:

Status of Claims in Bankruptcy:

KBCM acknowledges and agrees that neither this Master Confirmation nor any Supplemental Confirmation is intended to convey to KBCM rights with respect to the transactions contemplated hereby or by any Supplemental Confirmation that are senior to the claims of common stockholders in any U.S. bankruptcy proceedings of Party B; provided, however, that nothing herein or in any Supplemental Confirmation shall limit or shall be deemed to limit KBCM’s right to pursue remedies in the event of a breach by Party B of its obligations and agreements with respect to this Master Confirmation, any Supplemental Confirmation or the Agreement; and provided further, that nothing herein or in any Supplemental Confirmation shall limit or shall be deemed to limit KBCM’s rights in respect of any transaction other than the Transactions.

Limit on Beneficial Ownership:

With respect to any Transaction, notwithstanding any other provisions in the Agreement, herein or in the Supplemental Confirmation for such Transaction, KBCM shall not be entitled to receive Shares or any other class of voting securities of Party B (whether in connection with the purchase of Shares on any Settlement Date for such Transaction or any Termination Settlement Date for such Transaction or otherwise) to the extent (but only to the extent) that such receipt would result in KBCM and each person subject to aggregation of Shares or other voting securities with KBCM under Section 13 or Section 16 of the Exchange Act and the rules promulgated thereunder (the “KBCM Group”) directly or indirectly beneficially owning (as such term is

- 17 -

defined for purposes of Section 13(d) of the Exchange Act) at any time in excess of 4.5% of the outstanding Shares or any other class of voting securities of Party B. Any purported delivery under any Transaction shall be void and have no effect to the extent (but only to the extent) that such delivery would result in the KBCM Group directly or indirectly so beneficially owning in excess of 4.5% of the outstanding Shares or any other class of voting securities of Party B. If any delivery owed to KBCM under any Transaction is not made, in whole or in part, as a result of this provision, Party B’s obligation to make such delivery shall not be extinguished and Party B shall make such delivery as promptly as practicable after, but in no event later than one Clearance System Business Day after, KBCM gives notice to Party B that such delivery would not result in the KBCM Group directly or indirectly so beneficially owning in excess of 4.5% of the outstanding Shares or any other class of voting securities of Party B. If Net Share Settlement in respect of any Transaction would result in the KBCM Group beneficially owning more than 4.5% of the outstanding Shares in connection with closing out its hedge position, KBCM shall be allowed to partially settle such Transaction based on its purchase of that amount of Shares, and then to purchase the amount or amounts of additional Shares necessary to settle the remainder of such Transaction, and to make the associated deliveries at such times as determined by the Calculation Agent.

Severability:

Miscellaneous:

(a)

Addresses for Notices. For the purpose of Section 12(a) of the Agreement:

Address for notices or communications to KBCM:


		Address:		KeyBanc Capital Markets Inc.
				127 Public Square
				Cleveland, Ohio 44114
		Attention:		David Gruber (dgruber@keybanccm.com)
				Thomas R. Wise (thomas_r_wise@keybank.com)

		And with a copy to:

		Address:		Latham & Watkins LLP
				355 South Grand Avenue
				Los Angeles, CA 90071
		Attention:		Scott Hodgkins
		Telephone No.:		213-485-1234
		Facsimile No.:		213-891-8763

Address for notices or communications to Party B:


		Address:		DDR Corp.
				3300 Enterprise Parkway
				Beachwood, Ohio 44122
		Attention:		Luke Petherbridge
		Facsimile No.:		216-755-1827

- 18 -



		With a copy to:

		Address:		Jones Day
				901 Lakeside Avenue
				Cleveland, Ohio 44114
		Attention:		Michael J. Solecki
		Telephone No.:		216-586-3939
		Facsimile No.:		216-579-0212

Party B payment instructions:


		To Be Advised.

(b)

(c)

- 19 -

Please confirm that the foregoing correctly sets forth the terms of our agreement by signing and returning this Master Confirmation.


	Yours faithfully,

	KEYBANC CAPITAL MARKETS INC.

By:	/s/ John Horrigan
	Name:	John Horrigan
	Title:	Managing Director


Confirmed as of the date first written above:

DDR CORP.

By:	/s/ David J. Oakes
	Name:	David J. Oakes, CFA
	Title:	Senior Executive Vice President & Chief Financial Officer

EXHIBIT A

[Insert Date]

Supplemental Confirmation for Forward Stock Sale Transaction


To:	DDR Corp.
	3300 Enterprise Parkway
	Beachwood, Ohio 44122
	Telefax No.: 216-755-1827
	Attention:	Luke Petherbridge
		Senior Vice President of Capital Markets

From:	KeyBanc Capital Markets Inc.
	127 Public Square
	Cleveland, Ohio 44114
	Attention: David Gruber

Dear Sir/Madam:

KeyBanc Capital Markets Inc. (“KBCM”) and DDR Corp. (“Party B”) are parties to the Master Confirmation for Forward Stock Sale Transactions dated December 4, 2012 (the “Master Confirmation”) pursuant to which KBCM and Party B have entered into a Transaction with the terms and conditions set forth therein and herein. This Supplemental Confirmation, together with the Master Confirmation, shall constitute a “Confirmation” for purposes of the Agreement. In the event of any inconsistency between the Master Confirmation and this Supplemental Confirmation, the Master Confirmation shall govern to the extent of such inconsistency. Capitalized terms used but not defined herein shall have the respective meanings assigned to them in the Master Confirmation.

The terms of the Transaction to which this Supplemental Confirmation relates are as follows:


Trade Date:		[	]

Effective Date:		[	]

Base Shares:		[ ] Shares

Maturity Date:		[	]

[Number of Forward Hedge Shares Sold on 1st Trading Day of the Forward Hedge Selling Period:		[	]
Number of Forward Hedge Shares Sold on 2nd Trading Day of the Forward Hedge Selling Period:		[	]
Number of Forward Hedge Shares Sold on 3rd Trading Day of the Forward Hedge Selling Period:		[	]

Number of Forward Hedge Shares Sold on [20th] Trading Day of the Forward Hedge Selling Period:		[	]]¹

[Aggregate Sales Price of Forward Hedge Shares Sold on 1st Trading Day of the Forward Hedge Selling Period:		[	]
Aggregate Sales Price of Forward Hedge Shares Sold on 2nd Trading Day of the Forward Hedge Selling Period:		[	]
Aggregate Sales Price of Forward Hedge Shares Sold on 3rd Trading Day of the Forward Hedge Selling Period:		[	]

Aggregate Sales Price of Forward Hedge Shares Sold on [20th] Trading Day of the Forward Hedge Selling Period:		[	]]²

Initial Forward Price:	USD	[	]

¹	Number of entries should correspond to the number of Trading Days in the Forward Hedge Selling Period.

²	Number of entries should correspond to the number of Trading Days in the Forward Hedge Selling Period.

A-1

Please confirm that the foregoing correctly sets forth the terms of our agreement by signing and returning this Supplemental Confirmation.


		Yours faithfully,

		KEYBANC CAPITAL MARKETS INC.

By:
		Name:
		Title:


Confirmed as of the date first written above:

DDR CORP.

By:
		Name:
		Title:

A-2

EXHIBIT B

The Settlement Commission is equal to USD 0.02 per Share.

B-1

SCHEDULE I


Forward Price Reduction Date	Forward Price Reduction Amount¹
Trade Date	USD	0.00
[ ]	USD	[	]
[ ]	USD	[	]
[ ]	USD	[	]
[ ]	USD	[	]
Maturity Date	USD	0.00
Thereafter	USD	0.00

¹	This table to be filled out from the corresponding table in the Transaction Notice relating to the applicable Supplemental Confirmation.

SI-1