SALES AGENCY FINANCING AGREEMENT

Exhibit 1.1 SALES AGENCY FINANCING AGREEMENT      Sales Agency Financing Agreement (this "Agreement"), dated as of December 3, 2008 between DEVELOPERS DIVERSIFIED REALTY CORPORATION, an Ohio corporation (the "Company"), and BNY MELLON CAPITAL MARKETS, LLC, a registered broker-dealer organized under the laws of Delaware ("BNYMCM"). W I T N E S S E T H:      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 upon the terms and subject to the conditions contained herein; and      WHEREAS, BNYMCM has been appointed by the Company as its agent to sell the Shares and agrees to use its commercially reasonable efforts to sell the Shares offered by the Company upon the terms and subject to the conditions contained herein.      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 Amount" means the number of Issuance Shares that BNYMCM has sold during the 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.      "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 shall have sold the Maximum Program Amount pursuant to this Agreement, (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 3.19.      "Delayed Settlement Issuance Price" means, in the context of a Delayed Settlement Date, the Standard Settlement Issuance Price less, in the event that (x) any day in the applicable Selling Period has been designated by the Company as a record date for the payment of dividends on the Common Shares, (y) BNYMCM has sold Issuance Shares in such Selling Period on or prior to such record date and (z) any such Issuance Shares did not, or are not entitled to, receive such dividends, an amount equal to any dividends paid or payable to the holders of Common Shares but not paid or payable to holders of such Issuance Shares.      "Delayed Settlement Date" means a Settlement Date subsequent to the Standard Settlement Date relating to all sales for the applicable Selling Period that is on or before the third business day following the last day of such Selling Period, whereon the Company shall deliver to BNYMCM the amount of Shares sold during such Selling Period and BNYMCM shall deliver to the Company the Delayed Settlement Issuance Price received on such sales.      "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 becomes 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.      "Environmental Laws" has the meaning set forth in Section 3.22.      "Exchange Act" means the Securities Exchange Act of 1934, as amended.      "FINRA" has the meaning set forth in Section 5.01(f).

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     "Floor Price" means the minimum price set by the Company in the Issuance Notice below which BNYMCM shall not sell Shares 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 $1.00 without the prior written consent of BNYMCM, which may be withheld in BNYMCM’s sole discretion.      "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 3.22.      "Indemnified Party" has the meaning set forth in Section 6.03.      "Indemnifying Party" has the meaning set forth in Section 6.03.      "Issuance" means each occasion the Company elects to exercise its right to deliver an Issuance Notice requiring BNYMCM to use its commercially reasonable efforts to sell the Common Shares as specified in such Issuance 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, 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 an Issuance Notice is delivered or deemed to be delivered pursuant to Section 2.03(b).      "Issuance Notice" means a written notice to BNYMCM delivered in accordance with this Agreement in the form attached hereto as Exhibit A.      "Issuance Price" means either the Standard Settlement Issuance Price or the Delayed Settlement Issuance Price, as the case may be.      "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.      "Issuance Supplement" has the meaning set forth in Section 3.01.      "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).      "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.

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     "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 3.19.      "preliminary prospectus" has the meaning set forth in Section 3.01.      "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 Price" means the actual sale execution price of each Share sold by BNYMCM on the Principal Market hereunder in the case of ordinary brokers’ transactions, or as otherwise agreed by the parties in other methods of sale.      "Securities Act" means the Securities Act of 1933, as amended.      "Selling Commission" means 1.0% of the Sales Price of Shares sold during a Selling Period.      "Selling Period" means the period of one to twenty consecutive Trading Days (as determined by the Company in the Company’s sole discretion and specified in the applicable Issuance Notice) following the Trading Day on which an Issuance Notice is delivered or deemed to be delivered pursuant to Section 2.03(b).      "Settlement Date" means either a Standard Settlement Date or a Delayed Settlement Date; it being understood that the Company shall determine, in its sole discretion, whether the Settlement Date(s) in any Selling Period shall be a Standard Settlement Date or a Delayed Settlement Date.      "Shares" shall mean the Company’s Common Shares issued or issuable pursuant to this Agreement.      "Significant Subsidiary" has the meaning set forth in Section 3.09.      "Standard Settlement Date" means the third business day following each Trading Day during the applicable Selling Period, when the Company shall deliver to BNYMCM the amount

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of Shares sold on such Trading Day and BNYMCM shall deliver to the Company the Standard Settlement Issuance Price received on such sales.      "Standard Settlement Issuance Price" means, in the context of a Standard Settlement Date, the Sales Price less the Selling Commission.      "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.      "Voting Stock" of any Person as of any date means the capital stock or other equity interests of such Person that is at the time entitled to vote in the election of the board of directors or other similar governing body of such Person. ARTICLE II
ISSUANCE AND SALE OF COMMON SHARES      Section 2.01 (a) Issuance . Upon the terms and subject to the conditions of this Agreement, the Company may issue Shares through BNYMCM and BNYMCM shall use its commercially reasonable efforts to sell Shares, with an aggregate Sales Price of up to the Maximum Program Amount, based on and in accordance with such number of Issuance Notices as the Company in its sole discretion shall choose to deliver, during the Commitment Period. Subject to the foregoing and the other terms and conditions of this Agreement, upon the delivery of an Issuance Notice, 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 Issuance Notice into the Principal Market, and otherwise in accordance with the terms of such Issuance 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 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 (i) there can be no assurance that BNYMCM will be successful in selling Issuance Shares and (ii) 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.      (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 either party to agree to the method of offer

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and sale specified in clause (i) above, and either party may withhold its consent thereto in such party’s sole discretion.      (c)  Issuances . 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 an Issuance Notice, executed by the Chief Executive Officer, the President, the Chief Financial Officer or the Chief Investment Officer 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.      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 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 authorizing the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby (including, without limitation, the issuance of the Shares pursuant to this Agreement), 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 for or on behalf of the Company; (ii) the Company shall deliver to BNYMCM a certificate executed by the Chief Executive Officer, the President, the Chief Investment Officer or any Executive or Senior Vice President of the Company and by the Chief Financial Officer or Treasurer 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 are true and correct and that the Company has performed, in all material respects, all of it 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 an opinion, dated the Closing Date and addressed to BNYMCM, substantially in the form of Exhibit B; (iv) PricewaterhouseCoopers LLP shall deliver to BNYMCM a letter, dated the Closing Date, in form and substance reasonably satisfactory to BNYMCM; and (v) the Company shall pay the expenses set forth in Section 9.02(ii) by wire transfer to the account designated by BNYMCM in writing prior to the Closing.      Section 2.03 Mechanics of Issuances .      (a)  Issuance Notice . On any Trading Day during the Commitment Period, the Company may deliver an Issuance Notice to BNYMCM, subject to the satisfaction of the conditions set forth in Sections 5.01 and 5.02; provided , however , that (i) the Issuance Amount for each Issuance as designated by the Company in the applicable Issuance Notice shall in no event exceed $100,000,000 without the prior written consent of BNYMCM, which may be withheld in BNYMCM’s sole discretion, and (ii) notwithstanding anything in this Agreement to

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the contrary, BNYMCM shall have no further obligations with respect to any Issuance Notice if and to the extent the aggregate Sales Price of the Issuance Shares sold pursuant thereto, together with the aggregate Sales Price of the Shares previously sold under this Agreement, 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 Issuance Notice; provided , however , that the Company may not amend the Issuance Amount if such amended Issuance Amount is less than the Actual Sold Amount as of the date of such amendment.      (b)  Delivery of Issuance Notice . An Issuance 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. No Issuance Notice or any amendment thereto may be delivered other than on a Trading Day during the Commitment Period.      (c)  Floor Price . BNYMCM shall not sell Shares below the Floor Price during the applicable Selling Period and such Floor Price may be adjusted by the Company at any time during the applicable Selling Period upon notice to BNYMCM and confirmation by BNYMCM to the Company.      (d)  Determination of Issuance Shares to be Sold . The number of Issuance Shares to be sold by BNYMCM with respect to any Issuance shall be the Actual Sold Amount during the Selling Period.      (e)  Trading Guidelines . BNYMCM 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 an Issuance Notice is in effect (except to the extent BNYMCM may engage in sales of Issuance Shares purchased or deemed purchased from the Company as a "riskless principal" or in a similar capacity), (ii) in no circumstances shall BNYMCM 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. In addition, the Company hereby acknowledges and agrees that BNYMCM’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 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 Affiliates.      Section 2.04 Settlements . Subject to the provisions of Article V, on or before each 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 Settlement Date. If the

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Company defaults in its obligation to deliver Issuance Shares on a 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 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.      Section 2.05 Use of Free Writing Prospectus . Neither the Company nor BNYMCM 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"). ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY      The Company represents and warrants to, and agrees with, BNYMCM that as of the Closing Date, as of each Issuance 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 Issuance Notice hereunder, subject to notice of issuance. 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 (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. 333-139118), 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 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

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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 a particular issuance of the Issuance Shares (each, an "Issuance 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 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 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 and schedules and other information 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, 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.

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     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.      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 December 4, 2006, and any post-effective amendment thereto also became effective upon filing under Rule 462(e). No stop order suspending the effectiveness of the Registration Statement has been issued under the 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 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 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 an Issuance 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.

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     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 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 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, 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), 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. 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.

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     Section 3.07 Independent Accountants . PricewaterhouseCoopers LLP, who has expressed its opinion on the audited financial statements and related schedules included in, or incorporated by reference into, the Registration Statement 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 (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 has been duly authorized and validly issued, is fully paid and non-assessable and is 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 duly authorized by the Company for issuance and sale pursuant to this Agreement and, when issued and delivered pursuant to this Agreement against payment of the consideration therefor specified herein, 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.

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     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 or the transactions contemplated herein.      Section 3.13 No Conflicts . Neither the Company nor any of its Significant Subsidiaries is in violation of its respective Articles of Incorporation or other organizational document, or its Code of Regulations or bylaws, as the case may be (the "Code of Regulations"), or in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or its properties may be bound, where such defaults in the aggregate would have a Material Adverse Effect; and the execution and delivery of this Agreement and the consummation of the transactions contemplated herein have been duly authorized by all necessary corporate action, and compliance by the Company with its obligations hereunder 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 Code of Regulations 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, 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.      Section 3.14 Authorization . The Company has the full right, power and authority to execute and deliver this Agreement and to perform its obligations hereunder; and all corporate action required to be taken for the due and proper authorization, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby 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, required to be registered as an investment company under the Investment Company Act of 1940, as amended.

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     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 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 and business centers (including, without limitation, centers owned through unconsolidated joint ventures and others that are otherwise consolidated by the Company) and undeveloped land (the "Portfolio Properties") described in the Registration Statement 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 fre