STOCK PURCHASE AGREEMENT between Mr. Alexander Otto "Purchaser" and Developers Diversified Realty Corporation "Issuer" Dated as of February 23, 2009

Exhibit 10.1

STOCK PURCHASE AGREEMENT

between

Mr. Alexander Otto

“Purchaser”

and

Developers Diversified Realty Corporation

“Issuer”

Dated as of February 23, 2009

TABLE OF CONTENTS

SCHEDULE INDEX

EXHIBIT INDEX

STOCK PURCHASE AGREEMENT

      THIS STOCK PURCHASE AGREEMENT (this “ Agreement ”) is made and entered into as of February 23, 2009, between Mr. Alexander Otto (“ Purchaser ”) and Developers Diversified Realty Corporation (“ Issuer ”).

     Issuer desires to sell and Purchaser desires to purchase 30,000,000 of Issuer’s common shares, $0.10 par value per share (the “ Common Stock ”), for the consideration and on the terms set forth in this Agreement.

     Certain capitalized terms used in this Agreement are defined in Section 11.1 of this Agreement.

     In consideration of the mutual representations, warranties, covenants and agreements contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

ARTICLE 1 PURCHASE AND SALE OF THE SHARES

1.1 Purchase and Sale of the Shares.

     (a) Subject to Section 1.1(c), on and subject to the terms and conditions of this Agreement, Issuer shall sell, and Purchaser shall purchase the Purchased Shares; and Issuer shall transfer and convey, and Purchaser shall purchase, the Purchased Shares free and clear of any and all Liens (other than those imposed by the Articles of Incorporation and federal and state securities Laws).

     (b) Purchaser shall purchase the Purchased Shares in two tranches (“ Tranches ”). The number of shares of Common Stock to be purchased shall be 15,000,000 shares in the first Tranche (the “ First Tranche Shares ”) and 15,000,000 shares in the second Tranche (the “ Second Tranche Shares ” and together with the First Tranche Shares, the “ Purchased Shares ”).

     (c) In the event that, after giving effect to the purchase of any Purchased Shares, the Otto Family would Beneficially Own more than 29.8% of the outstanding shares of Common Stock, the number of Purchased Shares to be purchased by Purchaser shall be reduced by such number of Purchased Shares necessary to maintain the Beneficial Ownership of Common Stock by the Otto Family at a number of shares of Common Stock equal to 29.8% of the outstanding shares of Common Stock on the relevant Closing Date.

     (d) As additional consideration for the purchase of the First Tranche Shares, Issuer shall grant Purchaser a warrant representing the right to purchase 5,000,000 shares of Common Stock, and as additional consideration for the purchase of the Second Tranche Shares, Issuer shall grant Purchaser a second warrant (each a “ Warrant ” and together, the “ Warrants ”) representing the right to purchase 5,000,000

shares of Common Stock (collectively, the “ Warrant Shares ” and together with the Purchased Shares, the “ Shares ”) in the form attached hereto as Exhibit A , without deviation.

     (e) The provisions of Section 11.4 notwithstanding, Purchaser shall have the right to assign its rights and obligations under this Agreement to purchase the Purchased Shares and to receive the Warrants to one or more Persons who are members of the Otto Family; provided, however, that if any assignee breaches its obligation to purchase any Purchased Shares, Purchaser shall remain obligated to purchase such Purchased Shares.

1.2 Purchase Price.

     Subject to Section 1.6, the purchase price per share for the First Tranche Shares shall be US$3.50 (the “ First Tranche Purchase Price ”), and the purchase price per share for the Second Tranche Shares shall be US$4.00 (the “ Second Tranche Purchase Price ” and together with the First Tranche Purchase Price, the “ Purchase Price ”).

1.3 Payment of Purchase Price

     On the relevant Closing Date, and subject to the satisfaction or waiver of the conditions set forth in Article 7 and Article 8 below, Purchaser shall pay or deliver to Issuer an amount in cash equal to the product of (a) the relevant Purchase Price and (b) the number of Purchased Shares being purchased by wire transfer in immediately available funds in U.S. dollars to an account designated in writing at least two Business Days prior to such Closing Date by Issuer. A Federal Reserve Reference Number shall be requested by Purchaser at the time of the transfer for the purpose of assisting Issuer in confirming receipt of the transfer.

1.4 Purchaser Restrictions

     Excluding any shares of Common Stock Beneficially Owned by the Otto Family as of the date hereof as set forth in Section 4.4, Purchaser hereby agrees not to purchase or otherwise become the Beneficial Owner of, and shall cause the Otto Family not to purchase or otherwise become the Beneficial Owner of, any shares of Common Stock other than those pursuant to this Agreement from the date hereof through the first to occur of the Non-Tranche Closing Date or the Second Closing Date. Purchaser acknowledges that it shall be responsible for any filings required by it or any member of the Otto Family under Sections 13 or 16 of the Exchange Act in connection with the purchase or acquisition of any shares of Common Stock, and that Purchaser shall provide Issuer with a copy of any such filing contemporaneously with such filing being submitted to the Commission.

1.5 Anti-Dilution

     From the date hereof through the relevant Closing Date, the Purchased Shares shall be adjusted to avoid dilution as provided herein.  At each Closing Date, in consideration for the Purchase Price, in addition to the Purchased Shares Purchaser shall

receive that number of shares of Common Stock issuable in connection with any dividend declared on shares of Common Stock that would have been issued to Purchaser if the Purchased Shares to be purchased on the relevant Closing Date had been owned of record by Purchaser as of the date hereof and Purchaser had elected to receive the maximum amount of such dividends in shares of Common Stock.

1.6 Purchase Price Adjustment

     On each Closing Date, Purchaser and Issuer shall calculate the New Purchase Price, and if the New Purchase Price is less than the Floor Price, then the relevant Purchase Price shall be adjusted by subtracting from it the difference between the Floor Price and the New Purchase Price.

ARTICLE 2 PROCEDURE FOR CLOSING

2.1 Time and Place of Closing.

     The consummation of the purchase and sale of the Purchased Shares contemplated by this Agreement shall be held at the offices of Alston & Bird LLP, 90 Park Avenue, New York, New York 10016, or such other location that is mutually agreed upon by the Parties.

     (a) In the event Purchaser waives in writing its right under Section 1.1(b) to purchase the Purchased Shares in Tranches, the Purchased Shares shall be purchased by Purchaser on the fifth Business Day following the satisfaction or waiver of the conditions set forth in Article 7 and Article 8 below (excluding the conditions that, by their terms, cannot be satisfied until the Closing Date), or such other date as the parties shall mutually agree in writing (the “ Non-Tranche Closing Date ”).

     (b) In the event Purchaser retains its right to purchase the Purchased Shares in Tranches pursuant to Section 1.1(b), the First Tranche Shares shall be purchased by Purchaser on the fifth Business Day following the satisfaction or waiver of the conditions set forth in Article 7 and Article 8 below (excluding the conditions that, by their terms, cannot be satisfied until the Closing Date), or such other date as the Parties shall mutually agree in writing (the “ First Closing Date ”). After the First Closing Date, the Second Tranche Shares shall be purchased by Purchaser in one transaction at any time during the period ending on the six-month anniversary of the date that Issuer’s shareholders approve the Articles Amendment as set forth in Section 7.10, upon five Business Days notice from Purchaser to Issuer (the “ Second Closing Date ,” and together with the First Closing Date and the Non-Tranche Closing Date, each a “ Closing Date ”).

2.2 Transactions at the Closing.

     On a Closing Date, each of the following shall be delivered:

     (a) Issuer shall deliver to Purchaser (i) the Purchased Shares issuable on such Closing Date in book-entry form at the broker designated by Purchaser, (ii) a Warrant

or Warrants, as applicable, to purchase 5,000,000 Shares, and (iii) to the extent not previously delivered, the items required to be delivered by Issuer set forth in Article 7. The documents and certificates to be delivered hereunder by or on behalf of Issuer on a Closing Date shall be in form and substance reasonably satisfactory to Purchaser and its counsel.

     (b) Purchaser shall deliver to Issuer (i) by wire transfer of immediately available funds to an account designated by Issuer, as set forth in Section 1.3 above, an amount equal to the product of (A) the relevant Purchase Price and (B) the number of Purchased Shares to be delivered on such Closing Date and (ii) the items set forth in Article 8. The documents and certificates to be delivered hereunder by or on behalf of Purchaser on the Closing Date shall be in form and substance reasonably satisfactory to Issuer and its counsel.

ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF ISSUER

     Issuer hereby represents and warrants to Purchaser that:

3.1 Listing; Filing and Effectiveness of Registration Statement.

     (a) The Common Stock is registered pursuant to Section 12(b) of the Exchange Act and is currently listed and quoted on the New York Stock Exchange under the trading symbol “DDR.” As of the date hereof, Issuer 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 issuance of the Purchased Shares contemplated by this Agreement.

     (b) Issuer has filed with the Commission an automatic shelf registration statement on Form S-3 (No. 333-139118), which registers the issuance and sale by Issuer of the Purchased Shares under the Securities Act. Such registration statement, together with any information deemed to be a part thereof pursuant to Rule 430B under the Securities Act, and 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 a prospectus supplement filed with the Commission pursuant to Rule 424(b) under the Securities Act relating to the Purchased Shares, and 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, are referred to herein as the “ Prospectus .” 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 Issuer 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.

     (c) 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.

     (i) At the time of the initial filing of the Registration Statement and (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), Issuer was 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 relevant Closing Date. Issuer 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.

3.3 Compliance with Securities Act Regulations.

     (a) The Registration Statement became effective upon filing under Rule 462(e) under the Securities Act on December 4, 2006. 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 Issuer, have been threatened.

     (b) As of the date hereof and as of each Closing Date (as applicable), the Registration Statement, as amended as of such date 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, 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 date hereof and as of each Closing Date (as applicable), the Prospectus, as amended as of such date, 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, 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.

3.4 Incorporated Documents.

     The documents incorporated or deemed to be incorporated by reference in the Registration Statement and the Prospectus, at the time they were filed 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 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.

3.5 No Material Adverse Change in Business.

     Since the respective dates as of which information is provided in the Registration Statement and the Prospectus, (i) there has not occurred any material adverse change or any development that is reasonably likely to have a material adverse effect on the condition (financial or otherwise), results of operations, business, properties or assets (tangible and intangible) of Issuer and its subsidiaries considered as one enterprise (other than changes or developments relating to (a) changes in general economic conditions in the United States, other than changes which adversely affect Issuer and its subsidiaries to a materially greater extent than their competitors, (b) the execution or the announcement of this Agreement, or the consummation of the transactions contemplated hereby, or (c) changes in GAAP or the accounting rules or regulations of the Commission) (a “ Material Adverse Effect ”), (ii) except for regular quarterly distributions on the Common Stock (whether payable in cash, shares of Common Stock or a combination thereof), and regular distributions declared, paid or made in accordance with the terms of any class or series of Issuer preferred shares, there has been no dividend or distribution of any kind declared, paid or made by Issuer on any class of its capital shares, (iii) there has been no change in one or more of the Executive Officers listed on Schedule 1 other than as a result of the disability or death of such Executive Officer, (iv) there has not been an announcement by Issuer of an allegation made by a Governmental Body of fraud or malfeasance on the part of an Executive Officer of Issuer, without regard to its impact on the results of operations, business, properties or assets of Issuer and its subsidiaries, (v) there has not been an announcement by Issuer of a breach of a covenant in the indebtedness of Issuer set forth on Schedule 2 , or an announcement of the receipt by Issuer of a notice of default issued by any lender of the indebtedness set forth on Schedule 2 , (vi) none of the tenants of Issuer listed on Schedule 3 have filed a voluntary petition for bankruptcy protection under the United States Bankruptcy Code, or (vii) there has not occurred a decrease of more than 50% in Issuer’s market capitalization over any three consecutive trading day period when compared to Issuer’s market capitalization as of the close of business on February 19, 2009 (3.5(i) through (vii) together, a “ Material Adverse Change ”).

3.6 Financial Statements.

     The consolidated financial statements and supporting schedules of Issuer 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 Issuer 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 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 Regulation S-X 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), if any, 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.

3.7 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.

3.8 Good Standing of Issuer.

     Issuer 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; and Issuer is duly qualified to do business and is 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 the failure to qualify and be in good standing could not reasonably be expected to have or result in a Material Adverse Effect.

3.9 Subsidiaries.

     Each Subsidiary listed on Schedule 4 (“ 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, except where the failure to qualify and be in good standing could not reasonably be expected to have or result in a Material Adverse Effect.

3.10 Capitalization.

     (a) On the date hereof, the authorized capital stock of Issuer consists of (i) 300,000,000 common shares, par value $0.10, of which 129,316,003 shares are issued and outstanding; (ii) 750,000 Class A Cumulative Preferred Shares, without par value, of which no shares are issued and outstanding; (iii) 750,000 Class B Cumulative Preferred Shares, without par value, of which no shares are issued and outstanding; (iv) 750,000 Class C Cumulative Preferred Shares, without par value, of which no shares are issued and outstanding; (v) 750,000 Class D Cumulative Preferred Shares, without par value, of which no shares are issued and outstanding; (vi) 750,000 Class E Cumulative Preferred Shares, without par value, of which no shares are issued and outstanding; (vii) 750,000 Class F Cumulative Preferred Shares, without par value, of which no shares are issued and outstanding; (viii) 750,000 Class G Cumulative Preferred Shares, without par value, of which 600,000 shares are issued and outstanding; (ix) 750,000 Class H Cumulative Preferred Shares, without par value, of which 410,000 shares are issued and outstanding; (x) 750,000 Class I Cumulative Preferred Shares, without par value, of which 340,000 shares are issued and outstanding; (xi) 750,000 Class J Cumulative Preferred Shares, without par value, of which no shares are issued and outstanding; (xii) 750,000 Class K Cumulative Preferred Shares, without par value, of which no shares are issued and outstanding; (xiii) 750,000 Noncumulative Preferred Shares, without par value, of which no shares are issued and outstanding; and (xiv) 2,000,000 Cumulative Voting Preferred Shares, without par, of which no shares are issued and outstanding. All of the issued and outstanding shares of capital stock of each class of Issuer on the date hereof have been

duly authorized and validly issued and are fully paid and non-assessable. On the date hereof, Issuer has issued 398,700.435 operating partnership units. On the date hereof, other than shares of Common Stock reserved for issuance under Issuer’s equity compensation plans or arrangements for officers, directors and other Employees, outstanding convertible debt securities and outstanding operating partnership units, and in connection with dividends declared on shares of Common Stock payable in shares of Common Stock, no shares of the capital stock of Issuer are reserved for issuance. On the date hereof, other than the Shares and shares of Common Stock to be issued under Issuer’s equity compensation plans or arrangements for officers, directors and other Employees, outstanding convertible debt securities and outstanding operating partnership units, and in connection with dividends declared on shares of Common Stock payable in shares of Common Stock, Issuer has no obligation to issue any additional shares of its capital stock, or securities convertible into or exchangeable for shares of its capital stock. None of the shares of capital stock of Issuer outstanding on the date hereof has been issued in violation of any preemptive rights of the current or past shareholders of Issuer. On the date hereof, other than as set forth above, no rights relating to the purchase of capital stock of any class or series of Issuer are issued or outstanding nor are there any agreements, written or oral, providing for the issuance of any rights relating to the capital stock of any class or series of Issuer. All dividends required to be paid on Issuer’s capital stock have been paid.

     (b) All of the issued and outstanding capital stock, membership interests or partnership interests of Issuer’s wholly-owned Significant Subsidiaries have been duly authorized and validly issued, are fully paid and non-assessable and are owned directly or indirectly by Issuer, free and clear of any Liens, except as set forth in the Prospectus and except for such Liens that could not reasonably be expected to have or result in a Material Adverse Effect.

3.11 Shares.

     The Shares, after receipt of the approval by Issuer’s shareholders of (a) the issuance of the Shares for purposes of Section 312.03 of the New York Stock Exchange Listing Manual and (b) the Articles Amendment as set forth in Section 7.10 (collectively, the “ Requisite Shareholder Approval ”), will have been duly authorized 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.

3.12 Litigation.

     There is no Litigation before or by any court or other Governmental Body currently pending, or, to the knowledge of Issuer, threatened against or adversely affecting Issuer or its Subsidiaries, their business or any of their respective assets or properties, at law or in equity, which is required to be disclosed in the Prospectus (other than as disclosed therein), or which could reasonably be expected to have or result in a Material Adverse Effect or would materially and adversely affect the consummation of this Agreement or the transactions contemplated herein.

3.13 No Conflicts.

     Neither Issuer 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, or in default in the performance or observance of any 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 respective properties may be bound, where such defaults could reasonably be expected to have or result in a Material Adverse Effect; and the execution and delivery of this Agreement have been, and, after receipt of the Requisite Shareholder Approval, the consummation of the issuance and sale of the Purchased Shares contemplated herein will have been, duly authorized by all necessary corporate action, and compliance by Issuer with its obligations hereunder will not conflict with or constitute a breach of, or default under (or constitute a default which with the passage of time or giving of notice, or both, would constitute an event of a default), or result in the creation or imposition of any Lien upon any properties or assets of Issuer or its Significant Subsidiaries pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which Issuer 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 Issuer or any of its Significant Subsidiaries is subject, nor will such action result in any violation of the provisions of their respective articles of incorporation or other organizational document, or their respective code of regulations or bylaws, as the case may be, or, to the knowledge of Issuer, any Law or Order; and no Consent or Order of any court or Governmental Body is required for the consummation by Issuer of the issuance and sale of the Purchased Shares contemplated by this Agreement, except such as has been or will be obtained or as may be required under the Securities Act, the Exchange Act, the HSR Act, and state securities Laws in connection with the transactions contemplated hereby.

3.14 Compliance with Laws; Permits and Orders.

     Neither Issuer nor any of its Significant Subsidiaries is engaged in any activity or has omitted to take any action that is or creates a violation of any Law applicable to Issuer or such Significant Subsidiary, except where such violation could not reasonably be expected to have or result in a Material Adverse Effect. Neither Issuer nor any of its Significant Subsidiaries is subject to any Order which has had or could reasonably be expected to result in a Material Adverse Effect. Issuer and its Significant Subsidiaries possess all Permits necessary for the lawful operation of their business as presently conducted and are in compliance with all such Permits and all applicable Laws and Orders where a failure to have such Permits or to so comply could reasonably be expected to have or result in a Material Adverse Effect. Neither Issuer nor any of its Significant Subsidiaries has received any written notice of proceedings relating to the revocation or modification of any Permit which, singly or in the aggregate, if the subject of an unfavorable decision, ruling or finding, could reasonably be expected to have or result in a Material Adverse Effect. To the knowledge of Issuer, no officer, director or Employee of Issuer or any of its Significant Subsidiaries is subject to any Order that prohibits such officer, director or Employee from engaging in or continuing any conduct, activity, or practice relating to Issuer, its Significant Subsidiaries or their respective

businesses except where such prohibition could not reasonably be expected to have or result in a Material Adverse Effect. To the knowledge of Issuer, neither Issuer nor any of its Significant Subsidiaries has at any time during the last five years (i) made any unlawful contribution to any political candidate, or failed to disclose fully any contribution in violation of Law, or (ii) made any payment to any federal, state or local governmental, regulatory or administrative officer or official, or other Person charged with similar public or quasi-public duties, other than payments required or permitted by the Laws of the United States or any jurisdiction thereof. Neither Issuer nor any of its Significant Subsidiaries has received at any time any written notice or other written communication from any Governmental Body or any other Person regarding (i) any actual, alleged, possible, or potential violation of, or failure to comply with, any Law, or (ii) any actual, alleged, possible, or potential obligation on the part of Issuer or any of its Significant Subsidiaries to undertake, or to bear all or any portion of any Liability related to, any non-environmental remedial action of any nature, where such violation or obligation could reasonably be expected to have or result in a Material Adverse Effect.

3.15 Authorization.

     Issuer’s Board of Directors has approved the Articles Amendment, the Ancillary Agreements, and the Code Amendment, and has adopted resolutions recommending that Issuer’s shareholders approve the Articles Amendment and the Code Amendment. Issuer has the full right, power and authority to execute and deliver this Agreement and the Ancillary Agreements and, after receipt of the Requisite Shareholder Approval, will have the power and authority to perform its obligations hereunder to issue and sell the Purchased Shares to Purchaser; and all corporate action required to be taken for the due and proper authorization, execution and delivery of this Agreement and the Ancillary Agreements has been duly and validly taken and, after receipt of the Requisite Shareholder Approval, all corporate action required to be taken for the consummation of the issuance and sale of the Purchased Shares to Purchaser will have been duly and validly taken. This Agreement and the Ancillary Agreements represent valid and binding obligations of Issuer, enforceable against Issuer in accordance with its terms, except as enforceability may be limited by applicable equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar Laws affecting creditors’ rights generally, by the exercise of judicial discretion in accordance with equitable principles and by public policy to the extent that any provision relates to indemnification, contribution or exculpation.

3.16 REIT Status.

     (a) Issuer has been subject to taxation as a real estate investment trust (“ REIT ”) within the meaning of Sections 856 and 857 of the Code and has qualified as a REIT for all of its taxable years ended December 31, 1993 through December 31, 2008, has been organized and operated since December 31, 2008 to the date of this representation and intends to continue be organized and to operate in such a manner as to qualify as a REIT for its taxable year ending December 31, 2009, and has not taken or failed to take any action which would reasonably be expected to result in a challenge to its taxation as a REIT, and no such challenge is pending or threatened.

     (b) As of the date hereof, to Issuer’s knowledge based on its reasonable inquiry as set forth in Section 7.16, Issuer is, and after giving effect to the issuance by Purchaser of all the Shares, will be, a “domestically controlled qualified investment entity” within the meaning of Section 897(h)(4) of the Code.

3.17 Investment Company Act.

     Neither Issuer nor any of its Subsidiaries is, or will be immediately after the consummation of the issuance and sale of the Shares contemplated by this Agreement, required to be registered as an investment company under the Investment Company Act of 1940, as amended.

3.18 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.

3.19 No Stabilization or Manipulation.

     None of Issuer or any of its Subsidiaries or, to Issuer’s knowledge, any of the officers and directors thereof acting on Issuer’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 Stock.

3.20 Property.

     Except as described in the Prospectus, (i) Issuer or its Subsidiaries have good and marketable title or leasehold interest, as the case may be, to the Portfolio Properties described in the Registration Statement and the Prospectus as being owned by Issuer or its Subsidiaries (except with respect to properties described in the Registration Statement and the Prospectus as being held by Issuer through joint ventures), in each case free and clear of all Liens and defects (collectively, “ Defects ”), except where such Defects could not reasonably be expected to have or result in a Material Adverse Effect; (ii) the joint venture interest in each Portfolio Property described in the Registration Statement and the Prospectus, as being held by Issuer through a joint venture, is owned free and clear of all Defects except for such Defects that could not reasonably be expected to have or result in a Material Adverse Effect; (iii) all Liens on or affecting the Portfolio Properties of Issuer or its Subsidiaries are disclosed in the Registration Statement and the Prospectus, except for any such interests that could not reasonably be expected to have or result in a Material Adverse Effect; (iv) none of Issuer, its Subsidiaries or, to the knowledge of Issuer, any lessee of any of the Portfolio Properties is in default under any of the leases governing the Portfolio Properties, except such defaults that could not reasonably be expected to have or result in a Material Adverse Effect, and Issuer 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 could not reasonably be expected to have or

result in a Material Adverse Effect; (v) assuming that the contracts are valid and binding obligations of the Third Parties party thereto, all contracts of Issuer and any Subsidiary to provide leasing, property management and construction management services, general contractor services for third parties and real estate development, construction and miscellaneous tenant services businesses, are enforceable by and in the name of Issuer or a Subsidiary, as the case may be, except as could not reasonably be expected to have or result in a Material Adverse Effect; (vi) each of the Portfolio Properties complies with all applicable Laws, except for such failures to comply that could not reasonably be expected to have or result in a Material Adverse Effect; and (vii) neither Issuer nor any Subsidiary has any knowledge of any pending or threatened condemnation proceedings, zoning change or other proceeding or action that would in any manner affect the size of, use of, improvements on, construction or access to the Portfolio Properties, except such proceedings, changes, or actions that could not reasonably be expected to have or result in a Material Adverse Effect. The sale and issuance of the Purchased Shares to Purchaser will not create or constitute a default under any leasehold interest of Issuer or any of its Subsidiaries, except such defaults that could not reasonably be expected to have or result in a Material Adverse Effect.

3.21 Title Insurance.

     Issuer 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 Issuer through a joint venture): (i) insuring that Issuer or the applicable Subsidiary has good and marketable title (or leasehold interest) to the applicable Portfolio Property, free and clear of all Defects other than such Defects as could not reasonably be expected to have or result in a Material Adverse Effect, and (ii) in an amount at least equal to the greater of (x) the cost of acquisition of such Portfolio Property and (y) the cost of construction of the improvements located on such Portfolio Property except, in each case, where the failure to have such title insurance could not reasonably be expected to have or result in a Material Adverse Effect. The joint venture owning each property described in the Prospectus as held by Issuer through a joint venture has title insurance on such property: (i) insuring that such joint venture has good and marketable title (or leasehold interest) to the applicable Portfolio Property, free and clear of all Defects other than such Defects as could not reasonably be expected to have or result in a Material Adverse Effect, and (ii) in an amount at least equal to the greater of (x) the cost of acquisition of such Portfolio Property by such joint venture and (y) the cost of construction of the improvements located on such Portfolio Property, except in each case, where the failure to have such title insurance could not reasonably be expected to have or result in a Material Adverse Effect.

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 Issuer through a joint venture) are not convertible, 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, could not reasonably be expected to have or result in a Material Adverse Effect.

3.23 Environmental Laws.

     Except as disclosed in writing to Purchaser, (a) with respect to the Portfolio Properties there (i) is, to Issuer’s knowledge, no unlawful presence of any Hazardous Materials in violation of Environmental Laws, and (ii) are, to Issuer’s knowledge, no spills, releases, discharges or disposals of Hazardous Materials in violation of Environmental Laws that have occurred or are presently occurring as a result of any construction on or operation and use of the Portfolio Properties, which presence or occurrence in (i) or (ii) above could reasonably be expected to have or result in a Material Adverse Effect; (b) in connection with the construction on or operation and use of the Portfolio Properties, Issuer represents that Issuer has no knowledge of (i) any failure to comply with all applicable Environmental Laws except where such failure could not reasonably be expected to have or result in a Material Adverse Effect, (ii) the receipt by Issuer or any Subsidiary of any written notice of a claim pursuant to any Environmental Law or under common law pertaining to Hazardous Materials on or originating from any Portfolio Property that could reasonably be expected to have or result in a Material Adverse Effect, (iii) the receipt by Issuer or any Subsidiary of any written notice from any Governmental Body claiming any material violation of any Environmental Law that could reasonably be expected to have or result in a Material Adverse Effect, or (iv) the inclusion or proposed inclusion of any Portfolio Property on the National Priorities List issued pursuant to the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 9601 et seq., by the EPA, on the Comprehensive Environmental Response, Compensation, and Liability Information System database maintained by the EPA, or on any similar list published by any Governmental Body of contaminated sites potentially requiring removal, remediation, or response action pursuant to any other Environmental Law, except where such inclusion could not reasonably be expected to have or result in a Material Adverse Effect; and (c) to Issuer’s knowledge, Issuer has received and is in compliance with all Environmental Permits in connection with Issuer’s operation and use of the Portfolio Properties, except where such noncompliance could not reasonably be expected to have or result in a Material Adverse Effect. The representations and warranties in this Section 3.23 are the sole and exclusive representations in this Agreement relating to compliance with or liability under Environmental Laws.

3.24 Internal Accounting and Other Controls.

     Issuer 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. Issuer has no material

weaknesses in its internal control over financial reporting and, except as described in the Prospectus, since the end of Issuer’s most recent audited fiscal year, there has been no change in Issuer’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, Issuer’s internal control over financial reporting.

3.25 Disclosure Controls.

     Issuer has established and maintains 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.

3.26 Insolvency; Financial Covenants.

     (a) After giving effect to the issuance and sale of the Purchased Shares contemplated by this Agreement, neither Issuer nor any of its Subsidiaries will: (i) be insolvent (either because its financial condition is such that the sum of its debts is greater than the fair market value of its assets or because the fair saleable value of its assets is less than the amount required to pay its probable liabilities on its existing debts as they mature); (ii) have unreasonably small capital with which to engage in its business; or (iii) have incurred debts beyond its ability to pay as they become due. Further, to Issuer’s knowledge, Issuer will not receive an opinion from PricewaterhouseCoopers LLP with respect to its financial statements as of and for the year ended December 31, 2008, containing a “going concern” determination, whereby the independent auditors expressed substantial doubt as to Issuer’s ability to continue to meet its obligations for the next 12 months.

     (b) After giving effect to the transactions contemplated by this Agreement, neither Issuer nor any of its Subsidiaries is or will be in breach of any financial covenant contained in any indebtedness set forth on Schedule 2 that could reasonably be expected to have or result in a Material Adverse Effect; nor does Issuer have knowledge of any existing condition, including the transactions contemplated by this Agreement, that will, with the passage of time, result in a default under any indebtedness set forth on Schedule 2 .

3.27 Absence of Labor Dispute.

     No labor problem, dispute or Litigation with the Employees exists or, to the knowledge of Issuer, is threatened or imminent, that could reasonably be expected to have or result in a Material Adverse Effect.

3.28 Use of Proceeds.

     Issuer will use the net proceeds from the offering of Shares for general corporate purposes, including, without limitation, the repayment of indebtedness.

3.29 No Finder’s Fees.

     Except as previously disclosed to Purchaser, Issuer 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 transactions contemplated hereby.

3.30 Insurance.

     Issuer and its Subsidiaries, their assets and properties and their Employees are insured under various policies of general liability and other forms of insurance, which policies are of the type and in the amounts customary and adequate for their business.

3.31 Absence of Undisclosed Liabilities.

     Issuer and its Subsidiaries have no material Undisclosed Liabilities.

3.32 Taxes.

     (a) All Tax Returns required to be filed by or on behalf of Issuer or any Subsidiary have been duly and timely filed with the appropriate Taxing Authority in all jurisdictions in which such Tax Returns are required to be filed (after giving effect to any valid extensions of time in which to make such filings), and all such Tax Returns are true, complete, and correct in all respects, except, other than with respect to federal income tax returns of Issuer, where such failure to file or failure to be true, complete, and correct could not reasonably be expected to have or result in a Material Adverse Effect. All Taxes payable by or on behalf of Issuer or any Subsidiary have been fully and timely paid (whether or not shown on any Tax Return), except where such failure to fully and/or timely pay could not reasonably be expected to have or result in a Material Adverse Effect. With respect to any period for which Tax Returns of or relating to Issuer or any of its subsidiaries have not yet been filed or for which Taxes are not yet due or owing, Issuer has made due and sufficient accruals for such material Taxes on the face of the most recent balance sheet included in the financial statements of Issuer and on its Books and Records. All required estimated Tax payments sufficient to avoid any underpayment penalties have been made by or on behalf of Issuer and each Subsidiary, except where such failure to make such payments could not reasonably be expected to have or result in a Material Adverse Effect. Issuer has not incurred any Liability for Taxes under Section 857(b), 860(c), or 4981 of the Code. There are no Liens as a result of any unpaid Taxes upon any of the assets of Issuer or any of its subsidiaries, except for such Liens as could not reasonably be expected to have or result in a Material Adverse Effect. Neither Issuer nor any of its subsidiaries is the subject of any audit, examination or other proceeding in respect of Taxes, and neither Issuer nor any of its subsidiaries has received written notice that it is the subject of any audit, examination or other proceeding in respect of Taxes by any Taxing Authority. No deficiencies for any Taxes have been proposed, asserted or assessed against Issuer or any of its subsidiaries, and no requests for waivers of the time to assess any such Taxes

are pending, except where such deficiencies could not reasonably be expected to have or result in a Material Adverse Effect.

     (b) Each of Issuer and its subsidiaries has complied in all respects with all applicable Laws relating to the payment and withholding of Taxes and has duly and timely withheld and paid over to the appropriate Taxing Authority all amounts required to be so withheld and paid under all applicable Laws, except where such failure to comply, withhold or pay could not reasonably be expected to have or result in a Material Adverse Effect.

     (c) Issuer and its subsidiaries have disclosed on their federal income tax returns all positions taken therein that could give rise to substantial understatement of federal income tax within the meaning of Section 6662 of the Code.

     (d) Neither Issuer nor any of its subsidiaries have participated in any reportable transaction, as defined in Treasury Regulation Section 1.6011-4(b)(1), or a transaction substantially similar to a reportable transaction.

     (e) Issuer is “diversified” within the meaning of paragraph 4 of Article 10 of the income tax treaty between the United States and Germany, as amended by the Protocol signed on June 1, 2006.

     (f) For purposes of this Section 3.32, any reference to Issuer or its subsidiaries shall be deemed to include any Person which merged with or was liquidated into Issuer or any Subsidiary of Issuer.

3.33 Certain Information

     All information provided by Issuer to Purchaser or Purchaser’s representatives in connection with the transactions contemplated by this Agreement, regardless of when provided, is true and correct in all material respects.

ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF PURCHASER

     Purchaser hereby represents and warrants to Issuer as follows:

4.1 Authority.

     Purchaser has full power and authority to enter into this Agreement. The Agreement is a valid and binding obligation of Purchaser enforceable against Purchaser in accordance with its terms, except as enforceability may be limited by applicable equitable principles or by bankruptcy, insolvency, reorganization, moratorium, or similar Laws affecting creditors’ rights generally, and by the exercise of judicial discretion in accordance with equitable principles.

4.2 Brokers and Finders.

     Neither Purchaser nor any Related Person of Purchaser has incurred any Liability to any party for any brokerage fees, agent’s commissions, or finder’s fees in connection with the transactions contemplated by this Agreement.

4.3 Securities Act.

     Purchaser is acquiring the Shares for its own account and not with a view towards their distribution within the meaning of Section 2(a)(11) of the Securities Act in any manner that would be in violation of the Securities Act.

4.4 Beneficial Ownership of Common Stock.

     As of the date hereof, neither Purchaser nor the Otto Family is the Beneficial Owner of (i) any Common Stock or (ii) any securities or other instruments representing the right to acquire Common Stock, except that Purchaser is the Beneficial Owner of 6,171,061 shares of Common Stock. Other than pursuant to the Voting Agreement, neither Purchaser nor the Otto Family has a formal or informal agreement, arrangement or understanding with any Person (other than Issuer) to acquire, dispose of or vote any securities of Issuer.

4.5 Availability of Funds.

     Purchaser has, and at each Closing Date, Purchaser will have, available cash in an amount sufficient for Purchaser to timely pay the aggregate Purchase Price for the Purchased Shares and all fees, expenses and other amounts contemplated to be paid by Purchaser in connection with the transactions contemplated by this Agreement.

4.6 Assignee Representations and Warranties.

     To the extent Purchaser transfers its right and obligation under this Agreement to purchase the Purchased Shares, if any, in whole or in part, to one or more Persons who are members of the Otto Family, the representations and warranties in Article 4 shall be deemed to also be made by Purchaser in respect of each such Person and the representations and warranties in Article 4 shall be deemed to be made in respect of Purchaser and such Person collectively.

ARTICLE 5 COVENANTS OF ISSUER

     Issuer covenants and agrees with Purchaser as follows:

5.1 Access and Information.

     Subject to the confidentiality restrictions set forth in Section 9.1 hereof, from the date hereof to each Closing Date (as applicable) and during normal business hours, Issuer shall afford to Purchaser, its lenders, counsel, accountants, and other representatives that need Information with respect to assisting Purchaser with the evaluation or financing of

the purchase of the Purchased Shares, reasonable access to the offices, properties, books, contracts, commitments, and records of Issuer. Issuer shall furnish such Persons with all Information (including financial and operating data) concerning Issuer as they reasonably may request.

5.2 Conduct of Business Prior to Closing.

     From the date hereof to each Closing Date (as applicable), except as set forth in Section 5.2, and except to the extent that Purchaser shall otherwise consent in writing, which shall not be withheld unreasonably:

     (a) Issuer and its Subsidiaries shall operate substantially as previously operated and only in the regular and Ordinary Course of Business;

     (b) Issuer and its Subsidiaries shall comply with all applicable Laws where the failure to so comply would have a Material Adverse Effect;

     (c) Issuer and its Subsidiaries shall maintain the Books and Records in the usual, regular, and ordinary manner, on a basis consistent with past practices, and prepare and file all Tax Returns and amendments thereto required to be filed by Issuer after taking into account any extensions of time granted by any Taxing Authorities;

     (d) not grant any waiver of, or approve any increases in, the restrictions on Beneficial Ownership contained in the Articles of Incorporation, other than as contemplated by this Agreement or the Articles Amendment; and

     (e) otherwise report periodically to Purchaser concerning the status of the business, operations and finances of Issuer.

5.3 Shareholders’ Meeting; Proxy Statement; Listing.

     (a) Issuer shall call a meeting of Issuer’s shareholders to adopt the Articles Amendment and the Code Amendment (the “ Shareholders’ Meeting ”) and shall prepare and file a proxy statement with the Commission related to the notice of the Shareholders’ Meeting and the adoption of the Articles Amendment, and the Code Amendment, as soon as reasonably practicable (the “ Proxy Statement ”). The Proxy Statement will comply in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, 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, in the light of the circumstances under which they were made, not misleading.

     (b) Upon approval of the Articles Amendment and the Code Amendment by the shareholders, Issuer shall prepare and file an application with the New York Stock Exchange to register the Shares for listing thereon.

5.4 Notification of Changes; Supplemental Disclosure.

     Between the date hereof and each Closing Date (as applicable), Issuer shall promptly notify Purchaser in writing of (i) any change or development that constitutes a Material Adverse Effect or, (ii) the institution of or, if known by Issuer, the threat of institution of Litigation against Issuer or a Subsidiary where such Litigation could reasonably be expected to have or result in a Material Adverse Effect, and any Litigation related to this Agreement.

ARTICLE 6 MUTUAL COVENANTS

6.1 Governmental Filings.

     To the extent required by the HSR Act, each of the Parties will, within a reasonable period of time, file with the United States Federal Trade Commission (“ FTC ”) and the United States Department of Justice (“ DOJ ”) the notification and report form required for the transactions contemplated hereby, will promptly file any supplemental or additional information that reasonably may be requested in connection therewith pursuant to the HSR Act, and will comply in all material respects with the requirements of the HSR Act. In the event any Litigation is threatened or instituted challenging the transactions contemplated by this Agreement as violative of Antitrust Laws, each Party shall use its commercially reasonable efforts to avoid the filing of, or resist or resolve such Litigation. Each Party shall use its commercially reasonable efforts to take such action as may be required by: (i) the FTC and/or the DOJ in order to resolve such objections as either of them may have to the transactions contemplated by this Agreement under the Antitrust Laws, or (ii) any federal or state court of the United States, or similar court of competent jurisdiction in any foreign jurisdiction, in any Litigation brought by any Governmental Body or any other Person challenging the transactions contemplated by this Agreement as violative of the Antitrust Laws, in order to avoid the entry of any Order (whether temporary, preliminary or permanent) that has the effect of preventing the consummation of the transactions contemplated by this Agreement and to have vacated, lifted, reversed or overturned any such Order. Commercially reasonable efforts shall not include the willingness of Purchaser to accept an Order agreeing to the divestiture, or the holding separate, of any assets of Purchaser or Issuer or any of their respective Related Persons that Purchaser reasonably determines to be material to Purchaser or to the benefits of the transaction for which it has bargained hereunder. Purchaser shall be entitled to direct any proceedings or negotiations with any Governmental Body relating to any of the foregoing, provided that it shall afford Issuer a reasonable opportunity to participate therein.

6.2 Further Mutual Covenants.

     Purchaser and Issuer shall each take all actions contemplated by this Agreement, and, subject to Purchaser’s and Issuer’s, as applicable, right to terminate this Agreement pursuant to Article 10 hereof, do all things reasonably necessary to effect the consummation of the transactions contemplated by this Agreement. Except as otherwise provided in this Agreement, Purchaser and Issuer shall each refrain from knowingly

taking or failing to take any action which would render any of the representations or warranties contained in Article 3 or Article 4, as applicable, of this Agreement inaccurate in any material respect as of a Closing Date (as applicable). Each Party shall promptly notify the other Party of any Litigation that shall be instituted or threatened against such Party to restrain, prohibit, or otherwise challenge the legality of any transaction contemplated by this Agreement.

6.3 Commercially Reasonable Efforts.

     Issuer and Purchaser will use commercially reasonable efforts to cause the conditions in Article 7 and Article 8 to be satisfied.

ARTICLE 7 CONDITIONS PRECEDENT TO OBLIGATIONS OF
PURCHASER

     The obligation of Purchaser to consummate the transactions contemplated by this Agreement shall be subject to the satisfaction, on or before the relevant Closing Date (as applicable), of each of the following conditions, all or any of which may be waived in writing, in whole or in part, by Purchaser:

7.1 Representations and Warranties.

     The representations and warranties of Issuer (i) contained in Section 3.5 and Section 3.26 shall be true and correct in all respects, both when made and as of the Closing Date, (ii) contained in Section 3.10(a) shall be true and correct in all respects both when made and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date), and (iii) contained elsewhere in Article 3 shall be true and correct in all respects (without giving effect to any materiality or Material Adverse Effect qualifications contained therein) both when made and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date), except, with regard to Section 7.1(iii) only, where the failure of such representations and warranties to be so true and correct could not reasonably be expected to have or result in a Material Adverse Effect; and Purchaser shall have received a certificate dated as of such Closing Date executed by an authorized officer of Issuer to such effect.

7.2 Compliance by Issuer.

     Issuer shall have duly performed in all material respects all of the covenants, agreements, and conditions contained in this Agreement to be performed by Issuer on or prior to each Closing Date (as applicable) and Purchaser shall have received a certificate dated such Closing Date, executed by an authorized officer of Issuer to such effect. Purchaser shall have received from Issuer such certificates or other evidence, dated as of such Closing Date, as Purchaser or its counsel shall reasonably request to evidence the performance of all covenants and the fulfillment by Issuer, or such other satisfaction at or prior to such Closing Date, of the terms and conditions of this Agreement.

7.3 No Injunction; Litigation.

     No Litigation, regulation, or legislation shall be pending or overtly threatened by a Third Party which seeks to enjoin, restrain, or prohibit Purchaser in respect of the consummation of the transactions contemplated hereby.

7.4 Consents; Authorizations; Approval of Legal Matters.

     All authorizations, Orders, or Consents of any Governmental Body required to consummate the issuance and sale of the Purchased Shares to Purchaser shall have been obtained. Purchaser shall have received a certificate dated as of the relevant Closing Date, executed by Issuer to the foregoing effect, and Purchaser shall be reasonably satisfied with the terms, conditions, and restrictions of and obligations under each such authorization, Order, or Consent.

7.5 Certified Resolutions.

     Purchaser shall have received a certificate of the Secretary or Assistant Secretary of Issuer containing a true and correct copy of the resolutions duly adopted by the Board of Directors of Issuer, approving and authorizing the Agreement. The Secretary or Assistant Secretary of Issuer shall also certify that such resolutions have not been rescinded, revoked, modified, or otherwise affected and remain in full force and effect.

7.6 Incumbency.

     Purchaser shall have received a certificate of incumbency of Issuer executed by the Secretary or Assistant Secretary of Issuer listing the officers of Issuer authorized to execute the Agreement, and certifying the authority of each such officer to execute the agreements, documents, and instruments on behalf of Issuer in connection with the consummation of the transactions contemplated hereby.

7.7 Certified Documents.

     Purchaser shall have received (a) the Articles of Incorporation, including the Articles Amendment, of Issuer, certified as of a recent date by the Secretary of State of the State of Ohio and a copy of the Code of Regulations of Issuer, as amended by the Code Amendment, certified as of the relevant Closing Date by the Secretary or Assistant Secretary of Issuer, (b) the articles of incorporation or similar organizational document, as amended, of each Significant Subsidiary, certified as of a recent date by the Secretary of State of the state under the Laws of which the Significant Subsidiary is incorporated or organized, and a copy of the code of regulations, bylaws, or similar operating document of each Significant Subsidiary, as amended, certified as of the relevant Closing Date by the Secretary or Assistant Secretary of the Significant Subsidiary; and (c) a certificate of status, good standing or existence with respect to Issuer and each Significant Subsidiary from the Secretary of State of the state under the laws of which Issuer or such Significant Subsidiary is incorporated, organized, as applicable, and of each other state in which Issuer is qualified or registered to do business, dated as of a recent date.

7.8 Going Concern Opinion.

     Issuer shall have received from PricewaterhouseCoopers LLP an audit report on Issuer’s consolidated financial statements as of December 31, 2007 and 2008 and for the three years ended December 31, 2008, and such report shall not include a “going concern” determination, whereby the independent auditors expressed substantial doubt as to Issuer’s ability to continue to meet its obligations for the next 12 months.

7.9 New York Stock Exchange Approval.

     The shareholders of Issuer shall have approved the issuance and sale of the Shares to Purchaser for purposes of Section 312.03 of the New York Stock Exchange Listed Company Manual.

7.10 Articles of Incorporation.

     The Articles Amendment in the form attached hereto as Exhibit B , without deviation, shall have been (i) adopted by the shareholders of Issuer in accordance with applicable Law, and (ii) filed with the Secretary of State of the State of Ohio.

7.11 Code of Regulations.

     The Code Amendment in the form attached hereto as Exhibit C , without deviation, shall have been approved by the shareholders of Issuer in accordance with applicable Law.

7.12 Waiver Agreement.

     A waiver agreement in the form attached hereto as Exhibit D , without deviation (the “ Waiver Agreement ”), relating to a waiver of the Related Party Limit (as defined in the Articles of Incorporation), shall have been executed by a duly authorized officer of Issuer.

7.13 Opinions of Issuer’s Counsel.

     (a) Purchaser shall have received the opinion of Jones Day, counsel to Issuer, in substantially the form of Exhibit E hereto, and otherwise in form and substance (including the exhibits thereto) reasonably satisfactory to Purchaser.

     (b) Purchaser shall have received the opinion of Jones Day, counsel to Issuer, substantially in the form of Exhibit F hereto, that commencing with the taxable year ended December 31, 1993, Issuer was organized and has operated in conformity with the requirements for qualification and taxation as a REIT under the Code and that Issuer’s organization (taking into account the purchase of the Purchased Shares and the Articles Amendment contemplated by this Agreement) and proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT (with customary exceptions, assumptions and qualifications and based upon customary representations).

7.14 Investor Rights Agreement.

     An investor rights agreement in the form attached hereto as Exhibit G , without deviation (the “ Investor Rights Agreement ”), addressing Purchaser’s rights to representation on Issuer’s Board of Directors and to the registration of the resale of the Purchased Shares under the Securities Act shall have been executed by a duly authorized officer of Issuer.

7.15 Voting Agreement.

     A voting agreement in the form attached hereto as Exhibit H , without deviation (the “ Voting Agreement ”), relating to the agreement of certain key shareholders to vote in favor of Purchaser’s nominees to Issuer’s Board of Directors, shall have been executed by the parties thereto (other than Purchaser).

7.16 Certificate Regarding Domestically Controlled Qualified Investment Entity Status.

     Issuer shall have delivered to Purchaser a certification dated the Closing Date that, to Issuer’s knowledge, after reasonable inquiry, Issuer is a “domestically controlled qualified investment entity” within the meaning of Section 897(h)(4) of the Code as of the date thereof. For purposes of such certification, reasonable inquiry shall be deemed to be a review of all Schedule 13D and 13G filings made under the Exchange Act with the Commission with respect to Issuer after December 31, 2006, and all IRS Form 1042 filings made by or on behalf of Issuer since December 31, 2006. Such certificate shall be accompanied by copies of information that have been obtained or relied upon by Issuer for purposes of such certificate.

7.17 Tax Agreement.

     A tax agreement in the form attached hereto as Exhibit I , without deviation (the “ Tax Agreement ”), pursuant to which Issuer will agree to provide Purchaser information and take certain actions on an ongoing basis relating to Issuer’s status as a “domestically controlled qualified investment entity” and providing information relating to withholding tax on dividends, shall have been executed by a duly authorized officer of Issuer.

7.18 No Material Adverse Change.

     There shall not have occurred any change or development that would constitute a Material Adverse Change, and Purchaser shall have received a certificate dated as of the relevant Closing Date, executed by a duly authorized officer of Issuer to such effect.

7.19 Change of Control.

     Purchaser has received a waiver from each of the officers of Issuer set forth on Schedule 5 that the acquisition by the Otto Family of “beneficial ownership” (as defined in Section 13(d) of the Exchange Act) of 20% or more of the outstanding shares of

Common Stock will not constitute a “change in control” for purposes of such officer’s change in control agreement with Issuer.

7.20 Investor Rights of Purchaser.

     (a) In the event Purchaser does not purchase the Purchased Shares in Tranches, Issuer’s Board of Directors shall have appointed two directors identified by Purchaser and reasonably satisfactory to Issuer, to fill vacancies on the Board of Directors, and shall have expanded the Board of Directors if necessary to create such vacancies.

     (b) In the event Purchaser purchases the Purchased Shares in Tranches, (i) on the First Closing Date, Issuer’s Board of Directors shall have appointed one director identified by Purchaser and reasonably satisfactory to Issuer, to fill a vacancy on the Board of Directors, and shall have expanded the Board of Directors if necessary to create such vacancy, and (ii) on the Second Closing Date, Issuer’s Board of Directors shall have appointed one director identified by Purchaser (for purposes of clarification, the Second Closing Date director would be the second of two directors named by Purchaser and appointed by Issuer’s Board of Directors pursuant to the terms hereof) and reasonably satisfactory to Issuer, to fill a vacancy on the Board of Directors, and shall have expanded the Board of Directors if necessary to create such vacancy; provided, however, that if the Second Closing Date occurs after a definitive proxy statement for the 2008 annual meeting of shareholders has been mailed to Issuer’s shareholders but prior to the annual meeting of Issuer’s shareholders, Issuer’s Board of Directors shall appoint Purchaser’s nominee immediately following the annual meeting of Issuer’s shareholders.

7.21 Term Loan.

     Issuer or one of its wholly owned Subsidiaries shall have obtained and entered into a term loan that provides Issuer with financing as of the First Closing Date or Non-Tranche Closing Date, as applicable, in the aggregate amount of at least US$60 million. As of the date hereof, Issuer has obtained a non-binding commitment for such funding, the terms and conditions of which are set forth on Schedule 6 hereto.

7.22 Financing.

     In addition to the term loan provided for in Section 7.21, Issuer or one of its wholly owned Subsidiaries shall have obtained and entered into one or more debt financing arrangements that provides Issuer or its wholly owned Subsidiaries with aggregate debt financing as of the First Closing Date or Non-Tranche Closing Date, as applicable, that is at least equal to the total Purchase Price, and each such debt financing arrangement shall be under substantially the same terms and conditions as set forth on Schedule 7 hereto.

ARTICLE 8 CONDITIONS PRECEDENT TO OBLIGATIONS OF ISSUER

     The obligation of Issuer to consummate the transactions contemplated by this Agreement shall be subject to the satisfaction, on or before the relevant Closing Date (as

applicable) hereunder, of each of the following conditions, all or any of which may be waived, in whole or in part, by Issuer.

8.1 Certificate Regarding Representations and Warranties.

     The representations and warranties of Purchaser contained in Article 4 shall be true and correct in all respects both when made and as of the Closing Date (except to the extent expressly made as of an earlier date, in which case as of such date), except where the failure of such representations and warranties to be so true and correct could not reasonably be expected to have or result in a material adverse effect on the ability of Purchaser to consummate the purchase of the Purchased Shares, and Issuer shall have received a certificate dated as of such Closing Date, executed by Purchaser, to such effect.

8.2 Compliance by Purchaser.

     Purchaser shall have duly performed in all material respects all of the covenants, agreements, and conditions contained in this Agreement to be performed by Purchaser on or before the relevant Closing Date, and Issuer shall have received a certificate dated as of such Closing Date, executed by Purchaser, to such effect. Issuer shall have received from Purchaser all applicable closing deliveries, and such certificates or other evidence, duly executed by Purchaser, dated as of such Closing Date, as Issuer or its counsel shall reasonably request to evidence the performance of all covenants and the fulfillment by Purchaser, or such other satisfaction at or prior to such Closing Date, of the terms and conditions of this Agreement.

8.3 No Injunction, Litigation.

     No Litigation, regulation, or legislation shall be pending or overtly threatened by a Third Party which seeks to enjoin, restrain, or prohibit Issuer, in respect of the consummation of the transactions contemplated hereby.

8.4 New York Stock Exchange Approval.

     The shareholders of Issuer shall have approved the issuance and sale of the Shares to Purchaser for purposes of Section 312.03 of the New York Stock Exchange Listed Company Manual.

8.5 Articles of Incorporation.

     The Articles Amendment in the form attached hereto as Exhibit B , without deviation, shall have been: (i) adopted by the shareholders of Issuer in accordance with applicable Law, and (ii) filed with the Secretary of State of the State of Ohio.

8.6 Code of Regulations.

     The Code Amendment in the form attached hereto as Exhibit C , without deviation, shall have been approved by the shareholders of Issuer in accordance with applicable Law.

8.7 Payment of Purchase Price.

     Issuer shall have received an amount equal to the product of the Purchase Price and the number of Purchased Shares purchased on such Closing Date (as applicable) from Purchaser.

ARTICLE 9 CONFIDENTIALITY; PUBLIC ANNOUNCEMENTS

9.1 Confidentiality.

     The Information is disclosed to Purchaser solely for Purchaser’s use in completing its analysis incidental to this Agreement, and Purchaser agrees that its use of the Information will be governed by the terms and conditions of the Confidentiality Agreement.

9.2 Public Announcements.

     Issuer and Purchaser will consult with each other before issuing any press releases or otherwise making any public statements or filings with any Governmental Body with respect to this Agreement or the transactions contemplated hereby, shall modify any portion thereof if the other Party reasonably objects thereto, and shall not issue any press releases or make any public statements or filings with any Governmental Body prior to such consultation, unless the same may be required by applicable Law or the rules and regulations of the New York Stock Exchange. Notwithstanding anything to the contrary in the foregoing, Issuer shall not be required to consult with Purchaser before disclosing or describing this Agreement or transactions contemplated hereby in (a) filings with the Commission other than (i) a Current Report on Form 8-K announcing the entry into this Agreement, (ii) a preliminary proxy statement and definitive proxy statement relating to Issuer shareholder approvals required as conditions by the terms of this Agreement, (iii) the prospectus supplement relating to the issuance of the Purchased Shares, and (iv) communications made pursuant to Rule 14a-12 under the Exchange Act, or (b) non-scripted conference calls not specifically designed to discuss this Agreement or the transactions contemplated hereby or analyst conference or meetings.

ARTICLE 10 TERMINATION

          (a) This Agreement may be terminated:

          (i) by the mutual consent of Purchaser and Issuer;

          (ii) by Purchaser if any condition in Article 7 becomes impossible to perform or satisfy (other than as a result of a breach or default by Purchaser in the

performance of its obligations hereunder) and the performance of such condition has not been waived by Purchaser in writing at or prior to the relevant Closing Date;

          (iii) by Issuer if any condition in Article 8 becomes impossible to perform or satisfy (other than as a result of a breach or default by Issuer in the performance of its obligations hereunder) and the performance of such condition has not been waived by Issuer in writing at or prior to the relevant Closing Date; or

          (iv) by either Party (other than a Party that is in material default of its obligations under this Agreement) if the Non-Tranche Closing Date or the First Closing Date, as applicable, shall not have occurred on or before July 15, 2009.

     (b) Upon termination, each provision of this Agreement shall have no further force and effect, except for Article 9 (Confidentiality; Public Announcements) and Article 11.2 (Fees and Expenses), each of which shall survive.

ARTICLE 11 GENERAL PROVISIONS

11.1 Definitions.

     (a) The terms set forth below shall have the meanings ascribed thereto in the referenced sections:

     (b) Except as otherwise provided herein, the capitalized terms set forth below shall have the following meanings:

          (i) “ Aggregate Stock Issuances ” shall mean the aggregate number of shares of Common Stock issued and sold by Issuer, including Stock Equivalents deemed to have been issued by Issuer, but not including (A) Excluded Stock, (B) other issuances of Common Stock provided in Section 1.5 that have occurred from and after the date hereof and to and including the relevant Closing Dates, (C) shares of Common Stock issued in connection with the exercise, conversion or exchange of Stock Equivalents to the extent that the issuance of such Stock Equivalents has previously been deemed an issuance and sale of shares of Common Stock for purposes of this definition, and (D) the Shares.

          (ii) “ Ancillary Agreements ” means the Waiver Agreement, the Investor Rights Agreement, and the Tax Agreement.

          (iii) “ Antitrust Laws ” means the HSR Act, the Sherman Act, as amended, the Clayton Act, as amended, the Federal Trade Commission Act, as amended, and any other federal, state or foreign Law or Order designed to prohibit, restrict or regulate actions in order to promote or enhance competition and/or prevent monopolization or restraint of trade.

          (iv) “ Articles Amendment ” means the amendment to the Articles of Incorporation, without deviation, in the form attached hereto as Exhibit B .

          (v) “ Articles of Incorporation ” means the Second Amended and Restated Articles of Incorporation of Issuer.

          (vi) “ Beneficial Ownership ” shall have the meaning ascribed to it in Issuer’s Articles of Incorporation. The terms “ Beneficial Owner ,” “ Beneficially Own ,” and “ Beneficially Owned ” shall have the correlative meanings.

          (vii) “ Board of Directors ” shall mean Issuer’s Board of Directors.

          (viii) “ Books and Records ” means all existing data, databases, books, records, correspondence, business plans and projections, tenant and vendor lists, files, papers, and, to the extent permitted under applicable Law, copies of historical personnel, payroll and medical records of each of the Employees in the possession of Issuer, including employment applications, employment agreements, confidentiality and non-compete agreements, corrective action reports, disciplinary reports, notices of transfer, notices of rate changes, other similar documents, and any summaries of such documents regularly prepared by Issuer; all reported medical claims made for each Employee; and all manuals and printed instructions of Issuer.

          (ix) “ Business Day ” means any day on which national banks are open for business in the City of New York.

          (x) “ Code ” means the Internal Revenue Code of 1986, as amended.

          (xi) “ Code Amendment ” means the amendment to Issuer’s Code of Regulations granting Issuer’s Board of Directors the authority to fix the number of the

members of the Board of Directors, without deviation, in the form attached hereto as Exhibit C .

          (xii) “ Code of Regulations ” means the Amended and Restated Code of Regulations of Issuer.

          (xiii) “ Commission ” shall mean the United States Securities and Exchange Commission.

          (xiv) “ Confidentiality Agreement ” means that certain confidentiality agreement, dated as of February 9, 2009, between Purchaser and Issuer.

          (xv) “ Consent ” means any consent, approval, authorization, clearance, exception, waiver or similar affirmation by any Person required pursuant to any contract, Law, Order or Permit.

          (xvi) “ Employees ” means all employees of Issuer or any Subsidiary of Issuer.

          (xvii) “ Environmental Law ” means any and all statutes, codes, laws (including common law), ordinances, agency rules, regulations, and reporting or licensing requirements relating to pollution or protection of human health (with respect to exposure to Hazardous Materials) or the environment (including ambient air, surface water, ground water, land surface, or subsurface strata), or emissions, discharges, releases, or threatened releases of, or the manufacture, processing, distribution, use, treatment, storage, disposal, transport, or handling of, any Hazardous Material, including, (A) the Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §§9601 et seq. ; (B) the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, as amended, 42 U.S.C. §§6901 et seq.; (C) the Emergency Planning and Community Right to Know Act (42 U.S.C. §§11001 et seq.); (D) the Clean Air Act (42 U.S.C. §§ 7401 et seq.); (E) the Clean Water Act (33 U.S.C. §1251 et seq.); (F) the Toxic Substances Control Act (15 U.S.C. §2601 et seq.); (G) the Hazardous Materials Transportation Act (49 U.S.C. §§ 5101 et seq.); (H) the Safe Drinking Water Act (41 U.S.C. §300f et seq.); (I) any state, county, municipal or local Laws similar or analogous to the federal Laws listed in parts (A)-(H) of this subparagraph, (J) any amendments to the Laws listed in parts (A)-(I) of this subparagraph, and (K) any Laws or Orders adopted pursuant to or implementing the Laws listed in parts (A)-(J) of this subparagraph.

          (xviii) “ Environmental Permits ” means Permits, Licenses, approvals, Consents, Orders, and authorizations which are required under Environmental Laws in connection with Issuer’s operations and business or the ownership, use, or lease of Issuer’s assets or properties.

          (xix) “ EPA ” means the United States Environmental Protection Agency.

          (xx) “ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended.

          (xxi) “ Excluded Stock ” means (i) shares of Common Stock, or options or other equity awards for shares of Common Stock, issued or issuable pursuant to equity compensation plans or arrangements for officers, directors and other Employees of Issuer, (ii) shares of Common Stock issued or issuable upon the conversion or exchange of any security of Issuer or its Subsidiaries convertible into or exchangeable for Common Stock outstanding on the date hereof, including, without limitation, upon conversion of Issuer’s convertible debt securities and operating partnership units, and (iii) shares of Common Stock issued in connection with any dividends declared on shares of Common Stock.

          (xxii) “ Executive Officer ” means, with respect to Issuer, any “officer” (as such term is defined in Rule 16a-1(f) under the Exchange Act) of Issuer.

          (xxiii) “ Existing Holder ” has the meaning ascribed to it in the Articles of Incorporation.

          (xxiv) “ Existing Holder Limit ” has the meaning ascribed to it in the Articles of Incorporation.

          (xxv) “ Floor Price ” means US$2.94.

          (xxvi) “ GAAP ” means generally accepted accounting principles as employed in the United States of America, applied consistently with prior periods and with Issuer’s historical practices and methods, provided that standards of materiality applicable to Issuer shall be employed without regard to standards of materiality used by Issuer in prior periods, and provided further, that Issuer’s historical practices and methods shall not be consistently applied to the extent they are not in accordance with GAAP.

          (xxvii) “ Governmental Body ” means any government or governmental entity or political subdivision thereof, whether federal, state, local or foreign, or any agency, instrumentality or authority thereof, or any court or arbitrator (public or private).

          (xxviii) “ Hazardous Materials ” means (A) any hazardous substance, hazardous material, hazardous waste, regulated substance, or toxic substance (as those terms are defined by any applicable Environmental Laws) and (B) any chemicals, pollutants, contaminants, petroleum, petroleum products, or oil, asbestos-containing materials and any polychlorinated biphenyls.

          (xxix) “ HSR Act ” means Section 7A of the Clayton Act, as added by Title II of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

          (xxx) “ Information ” means information or documentation owned by Issuer which information may include, but is not necessarily limited to, financial data, business plans, personnel information (to the extent permitted under applicable Law), drawings, samples, devices, trade secrets, technical information, results of research and other data in either oral or written form; provided, however, that “Information” does not include information which (A) is or becomes generally available to the public other than

as a result of a disclosure by Purchaser or its representatives, (B) was lawfully within Purchaser’s possession prior to its being furnished to Purchaser by or on behalf of Issuer, provided further that the source of such information was not known by Purchaser to be bound by a confidentiality agreement with or other contractual, legal or fiduciary obligation of confidentiality to Issuer or any other Person with respect to such information, or (C) is developed by Purchaser after initial disclosure by Issuer.

          (xxxi) “ IRS ” means the Internal Revenue Service of the United States of America.

          (xxxii) “ Law ” means any code, directive, law (including common law), ordinance, regulation, reporting or licensing requirement, rule, or statute, including those promulgated, interpreted, or enforced by any Governmental Body.

          (xxxiii) “ Liability ” means any direct or indirect, primary or secondary, liability, indebtedness, obligation, penalty, cost or expense (including costs of investigation, collection and defense), claim, deficiency, guaranty or endorsement of or by any Person (other than endorsements of notes, bills, checks, and drafts presented for collection or deposit in the Ordinary Course of Business) of any type, secured or unsecured whether accrued, absolute or contingent, direct or indirect, liquidated or unliquidated, matured or unmatured, known or unknown or otherwise.

          (xxxiv) “ License ” means any license, franchise, notice, permit, easement, right, certificate, authorization, or approval to which any Person is a party or that is or may be binding on any Person or its securities, property or business.

          (xxxv) “ Lien ” means any conditional sale agreement, default of title, easement, encroachment, encumbrance, hypothecation, lien, mortgage, pledge, reservation, restriction, right of way, security interest, title retention or other security arrangement, on, or with respect to any property or property interest.

          (xxxvi) “ Litigation ” means any suit, action, administrative or other audit (other than regular audits of financial statements by outside auditors), proceeding, arbitration, cause of action, charge, claim, complaint, compliance review, criminal prosecution, grievance inquiry, hearing, inspection, investigation (governmental or otherwise), before any Governmental Body.

          (xxxvii) “ New Purchase Price ” shall mean and be calculated as follows:

NPP = (P1) (Q1) + (P2) (Q2)
Q1 + Q2

where:

NPP = New Purchase Price

P1 = Floor Price

Q1 = number of shares of Common Stock outstanding and Stock Equivalents at the Closing Date, other than the Excluded Stock and issuances of Common Stock provided in Section 1.5

P2 = weighted average price per share received for the Aggregate Stock Issuances

Q2 = number of shares in the Aggregate Stock Issuances since the date of this Agreement

          (xxxviii) “ Order ” means any decree, injunction, judgment, order, ruling, writ, quasi-judicial decision or award or administrative decision or award of any federal, state, local, foreign or other court, arbitrator, mediator, tribunal, administrative agency or Governmental Body to which any Person is a party or that is or may be binding on any Person or its securities, assets or business.

          (xxxix) “ Ordinary Course of Business ” means the following: an action taken by a Person will be deemed to have been taken in the Ordinary Course of Business only if that action: (A) is consistent in nature, scope and magnitude with the past practices of such Person and is taken in the ordinary course of the normal, day-to-day operations of such Person; and (B) does not require authorization by the shareholders of such Person (or by any Person or group of Persons exercising similar authority).

          (xl) “ Otto Family ” means (i) Professor Werner Otto, his wife Maren Otto and/or all descendants of Professor Werner Otto, including without limitation Purchaser (illegitimate descendants only if they have obtained the status of a legitimate descendant by legitimation or adoption by Professor Werner Otto or one of his legitimate descendants, or if they are children of a female legitimate descendant of Professor Werner Otto); (ii) any trust or any family foundation which has exclusively been established in favor of one or several of the individuals named under (i) above; and (iii) any partnership, firm, corporation, association, trust, unincorporated organization, joint venture, limited liability company or other legal entity, in which the individuals or entities named under (i) and (ii) hold (either directly or indirectly) more than 50% of the voting rights or more than 50% of the equity capital of any such partnership, firm, corporation, association, trust, unincorporated organization, joint venture, limited liability company or other legal entity.

          (xli) “ Ownership Limit ” has the meaning ascribed to it in the Articles of Incorporation.

          (xlii) “ Party ” means any party hereto and “ Parties ” means all parties hereto.

          (xliii) “ Permit ” means any Governmental Body approval, authorization, certificate, easement, filing, franchise, license, notice, permit, or right to which any Person is a party or that is or may be binding upon or inure to the benefit of any Person or its securities, assets, or business.

          (xliv) “ Person ” means a natural person or any legal, commercial or governmental entity, such as, but not limited to, a corporation, general partnership, joint venture, limited partnership, limited liability company, limited liability partnership, trust, business association, group acting in concert, or any person acting in a representative capacity.

          (xlv) “ Portfolio Properties ” means the portfolio properties, including, without limitation, shopping centers, residential properties, office buildings and business centers (including, without limitation, centers owned through unconsolidated joint ventures and other than are otherwise consolidated by Issuer) and undeveloped land described in the Registration Statement and Prospectus as being owned by Issuer or its subsidiaries.

          (xlvi) “ Related Person ” means with respect to a particular individual: (A) each other member of such individual’s Family; (B) any Person that is directly or indirectly controlled by such individual or any one or more members of such individual’s Family; (C) any Person in which members of such individual’s Family hold (individually or in the aggregate) a Material Interest; and (D) any Person with respect to which one or more members of such individual’s Family serves as a director, officer, partner, executor or trustee (or in a similar capacity). With respect to a specified Person other than an individual: (aa) any Person that directly or indirectly controls, is directly or indirectly controlled by or is directly or indirectly under common control with such specified Person; (bb) any Person that holds a Material Interest in such specified Person; (cc) each Person that serves as a director, officer, partner, executor or trustee of such specified Person (or in a similar capacity); (dd) any Person in which such specified Person holds a Material Interest; and (ee) any Person with respect to which such specified Person serves as a general partner or a trustee (or in a similar capacity). For purposes of this definition, (I) “ control ” (including “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, and shall be construed as such term is used in the rules promulgated under the Securities Act; (II) the “ Family ” of an individual includes (1) the individual, (2) the individual’s spouse, (3) any other natural person who is the parent, child, grandparent, grandchild or sibling of the individual or the individual’s spouse and (4) any other natural person who resides with such individual; and (III) “ Material Interest ” means direct or indirect beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of voting securities or other voting interests representing at least five percent (5%).

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

          (xlviii) “ Stock Equivalents ” means any security, option, warrant, right or claim exercisable into, exchangeable for, or convertible into Common Stock, and if Issuer in any manner grants or issues Stock Equivalents, it shall be deemed to have issued the maximum number of shares of Common Stock such Stock Equivalents are exercisable or exchangeable for or convertible into and for a consideration equal to the consideration, if any, to be received by Issuer upon the issuance of the Stock Equivalents plus the

minimum exercise or conversion price provided in such Stock Equivalents for the Common Stock covered thereby.

          (xlix) “ Subsidiary ” of a Person means any business entity of which the Person either (A) owns or controls 50% or more of the outstanding equity securities, either directly or indirectly, (provided there shall not be included any such entity the equity securities of which are owned or controlled in a fiduciary capacity), (B) in the case of partnerships, serves as a general partner, (C) in the case of a limited liability company, serves as a managing member, or (D) otherwise has the ability to elect a majority of the directors, trustees, managing members or others thereof.

          (l) “ Tax ” means any federal, state, county, local, or foreign tax, charge, fee, levy, impost, duty, or other assessment, including income, gross receipts, excise, employment, sales, use, transfer, recording, License, payroll, franchise, severance, documentary, stamp, occupation, windfall profits, environmental, federal highway use, commercial rent, customs duty, capital stock, paid-up capital, profits, withholding, Social Security, single business and unemployment, disability, real property, personal property, registration, ad valorem, value added, alternative or add-on minimum, estimated, or other tax or governmental fee of any kind whatsoever, imposed or required to be withheld by any Governmental Body, including any interest, penalties, and additions imposed thereon or with respect thereto, and including Liability for the taxes of any other Person under Treas. Reg. 1.1502-6 (or any similar provision of state, local, or foreign Law) as a transferee or successor, by contract, or otherwise.

          (li) “ Tax Return ” means any return (including any informational return) report, statement, schedule, notice, form or other document or information filed with or submitted to, or required to be filed with or submitted to any Taxing Authority in connection with the determination, assessment, collection or payment of any Tax or in connection with the administration, implementation or enforcement of compliance with any legal requirement relating to any Tax.

          (lii) “ Taxing Authority ” means the IRS and any other federal, state, local or foreign Governmental Body responsible for the administration of any Tax.

          (liii) “ Third Party ” means any Person other than a Party.

          (liv) “ Undisclosed Liabilities ” means any Liability that is not fully reflected or reserved against in Issuer’s financial statements.

11.2 Fees and Expenses.

     (a) Except as otherwise specifically provided below or elsewhere in this Agreement, regardless of whether the transactions contemplated by this Agreement are consummated, Issuer and Purchaser each shall pay their respective fees and expenses in connection with the transactions contemplated by this Agreement, including, without limitation, attorneys’ fees in connection with the notification and report form required by the HSR Act.

     (b) Issuer on the one hand, and Purchaser, on the other, shall each pay one-half of the fee payable to the FTC with respect to the notification and report form required by the HSR Act.

     (c) If the condition described in Section 7.10 does not occur by June 30, 2009, Issuer shall reimburse Purchaser for all of Purchaser’s reasonable out-of-pocket expenses related to the transactions contemplated by this Agreement.

11.3 Notices.

     All notices, requests, demands, and other communications hereunder shall be in writing (which shall include communications by e-mail) and shall be delivered (a) in person or by courier or overnight service, or (b) by e-mail with a copy delivered as provided in clause (a), as follows:

          If to Issuer:

3300 Enterprise Parkway
Beachwood, Ohio 44122
Attention: Chief Executive Officer
Telephone: (216) 755-5500
E-mail: SWolstein@ddr.com

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

3300 Enterprise Parkway
Beachwood, Ohio 44122
Attention: General Counsel
Telephone: (216) 755-5500
E-mail: DWeiss@ddr.com

Jones Day
North Point
901 Lakeside Avenue
Cleveland, Ohio 44114
Attention: Michael J. Solecki
Telephone: (216) 586-7103
E-mail: mjsolecki@jonesday.com

          If to Purchaser:

KG CURA Vermögensverwaltung G.m.b.H. & Co.
Wandsbeker Str. 3-7
D-22179 Hamburg
Germany
Attention: Mr. Wilhelm
Telephone: 0049 40 6461 1286

E-mail: wilhelm@kgcura.de

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

Alston & Bird LLP
90 Park Avenue
New York, NY 10016
Attention: Mark F. McElreath
Telephone: (212) 210-9595
E-mail: mark.mcelreath@alston.com

or to such other address as the parties hereto may designate in writing to the other in accordance with this Section 11.3. Any Party may change the address to which notices are to be sent by giving written notice of such change of address to the other parties in the manner above provided for giving notice. If delivered personally or by courier, the date on which the notice, request, instruction or document is delivered shall be the date on which such delivery is made and if delivered by e-mail transmission or mail as aforesaid, the date on which such notice, request, instruction or document is received shall be the date of delivery.

11.4 Assignment

     Any assignment under this Agreement by any of the Parties hereto shall be void, invalid and of no effect without the written consent of the other Party; provided, however, that Purchaser may assign its rights under this Agreement, in whole or in part, to any Person who is a member of the Otto Family so long as the assignee(s) agree to be bound in writing by the terms and conditions of this Agreement; provided, further, that any such assignment shall not release, or be construed to release, Purchaser from its duties and obligations under this Agreement. If any assignee breaches its obligations to purchase the Purchased Shares, Purchaser shall remain obligated to purchase the Purchased Shares and shall be liable for any breaches of any assignees obligations hereunder.

11.5 No Benefit to Others.

     The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the Parties hereto and their respective heirs, executors, administrators, legal representatives, successors and assigns, and they shall not be construed as conferring any Third Party beneficiary or any other rights on any other Persons.

11.6 Headings and Gender; Construction; Interpretation.

     (a) The table of contents and the captions and section headings contained in this Agreement are for convenience of reference only, do not form a part of this Agreement and shall not affect in any way the meaning or interpretation of this Agreement. All references in this Agreement to “Section” or “Article” shall be deemed to be references to a Section or Article of this Agreement.

     (b) Words used herein, regardless of the number and gender specifically used, shall be deemed and construed to include any other number, singular or plural, and any other gender, masculine, feminine, or neuter, as the context requires. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed followed by the words “without limitation.”

     (c) Neither this Agreement nor any uncertainty or ambiguity herein shall be construed or resolved against Purchaser or Issuer , whether under any rule of construction or otherwise. No Party to this Agreement shall be considered the draftsman. On the contrary, this Agreement has been reviewed, negotiated and accepted by all Parties and their attorneys and shall be construed and interpreted according to the ordinary meaning of the words so as fairly to accomplish the purposes and intentions of all the Parties.

11.7 Counterparts.

     This Agreement may be executed in two (2) or more counterparts, all of which shall be considered one and the same Agreement, and shall become effective when one counterpart has been signed by each Party and delivered to the other Party hereto.

11.8 Integration of Agreement.

     (a) This Agreement and the exhibits and the other agreements contemplated by this Agreement, including the Confidentiality Agreement, constitutes the entire agreement between the Parties relating to the subject matter hereof and supersede all prior agreements, oral and written, between the Parties with respect to the subject matter hereof, including that certain Term Sheet Memorandum between the Parties dated January 14, 2009.

     (b) Neither this Agreement, nor any provision hereof, may be changed, waived, discharged, supplemented, or terminated orally, but only by an agreement in writing signed by the Party against which the enforcement