EX-10.2








EXHIBIT 10.2




WAIVER AGREEMENT




     THIS
WAIVER AGREEMENT (this “Agreement”) is made and
entered into as of May 11th 2009, by and among Mr. Alexander Otto (the “Purchaser”) and Developers Diversified Realty
Corporation (the “Company”).



RECITALS




     A. WHEREAS, on February 23, 2009, the Purchaser and the Company entered into a Stock Purchase
Agreement (the “Stock Purchase Agreement”), which provides for the purchase and sale of
those certain shares of the Company as defined therein;



     B. WHEREAS, as an inducement to enter into the Stock Purchase Agreement, and as one of the
conditions to the consummation of the transactions contemplated by the Stock Purchase Agreement,
the parties agreed to enter into a waiver agreement relating to a waiver of the Related Party Limit
(as defined below);



     C. WHEREAS, the number of shares to be purchased by the Purchaser pursuant to the Stock
Purchase Agreement and owned by the Purchaser as of the date hereof would exceed the Related Party
Limit;



     D. WHEREAS, the Board of Directors of the Company (the “Board”) has agreed to waive
application of the Related Party Limit (as defined below) on the terms and conditions set forth
below; and



     E. WHEREAS, the purpose of this Agreement is to set forth the parties’ agreements and
respective obligations regarding the waiver of the Related Party Limit.



     Unless otherwise provided, all capitalized terms shall have the meaning ascribed to them in
Section 1.



     NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:



     1. Definitions. For purposes of this Agreement:



     (a) “Articles” means the Second Amended and Restated Articles of Incorporation of the Company,
as amended, attached hereto as Exhibit A.



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



     (c) “Code” means the United States Internal Revenue Code of 1986, as amended.



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     (d) “Common Shares” has the meaning set forth in the Articles.



     (e) “Constructive Ownership” has the meaning set forth in Section 4(b) of Division B of the
Articles.



     (f) “Exempt Holder” has the meaning set forth in Section 4(a) of Division B of the Articles.



     (g) “Person” has the meaning set forth in Section 4(a) of Division B of the Articles.



     (h) “Related Party Limit” has the meaning set forth in Section 4a) of Division B of the
Articles.



     2. Purchaser Representations and Agreements.



     (a) As of the date hereof, the Purchaser represents that none of (i) the Purchaser, (ii) any
Person who is listed in the definition of Exempt Holder in the Articles (each a “Member”),
or (iii) any Person who Constructively Owns Common Shares in excess of the Related Party Limit as a
result of Constructively Owning Common Shares Constructively Owned by the Purchaser or a Member
(Persons described in clauses (i), (ii), and (iii) being collectively referred to herein as the
“Owners”), Constructively Owns 10% or more of any interest described in Section
856(d)(2)(B) of the Code (an such interest described in Section 856(d)(2)(B) being referred to
herein as a “Relevant Equity Interest”) of any Person that is (A) a tenant of the Company,
a tenant of any entity the income of which is included in the determination of the Company’s REIT
taxable income, or a tenant of any real estate investment trust in which the Company owns a
Relevant Equity Interest of at least 10% and (B) listed on Schedule 1 hereto (the “Original
Tenant Schedule”). Each tenant listed in the Original Tenant Schedule or any updates of the
Original Tenant Schedule (collectively and individually, such updated schedules and the Original
Tenant Schedules are referred to herein as a “Tenant Schedule”) shall be referred to herein
as a (“Disclosed Tenant”). Each tenant identified as an owned tenant on Schedule 1 is
referred to herein as an (“Owned Tenant”).



     (b) At the end of each calendar quarter of the Company, the Company shall provide the
Purchaser an updated Tenant Schedule. The Purchaser, within twenty Business Days of receipt of an
updated Tenant Schedule, shall inform the Company of any tenant on such updated Tenant Schedule in
which any Owner Constructively Owns a Relevant Equity Interest of at least 10%. If the Purchaser
informs the Company of any such tenant, such tenant shall also be considered an Owned Tenant (i) if
such tenant appeared on such updated Tenant Schedule for the first time (i.e., the tenant was not
listed on the Original Tenant Schedule, a previous updated Tenant Schedule or on a notice of new
tenants under the procedure set forth in Section 2(c)) or (ii) with respect to leases entered into
with such tenant after such tenant has been identified by the Purchaser.



     (c) The Company will notify the Purchaser from time to time of material (individually or in
the aggregate) prospective leases with tenants not previously identified as Disclosed Tenants
(including tenants of properties the Company is considering



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acquiring, directly or indirectly). The Purchaser, within five Business Days of receipt of
such notice, shall inform the Company of any such tenant in which any Owner Constructively Owns a
Relevant Equity Interest of at least 10% (an “Identified Tenant”). If the Company executes
a lease with such Identified Tenant, such tenant shall be considered an Owned Tenant. If the
Purchaser does not inform the Company that such tenant is an Identified Tenant within five Business
Days of receiving notice and if the Company executes a lease with such tenant, the Company shall
notify the Purchaser of such lease and such tenant will thereafter be considered a Disclosed
Tenant. If the Company enters into a lease with a tenant not previously identified as a Disclosed
Tenant without notifying Purchaser in accordance with this Section 2(c) and if any Owner
Constructively Owns a Relevant Equity Interest of at least 10% in such tenant, such tenant shall be
considered an Owned Tenant.



     (d) The Purchaser agrees not to take any action to acquire, and to cause Owners under his
control not to take any action to acquire, Constructive Ownership of 10% or more of the Relevant
Equity Interest of Disclosed Tenants. The Purchaser will make reasonable efforts to share the
Tenant Schedules with Owners not under his control and to advise them not to acquire Constructive
Ownership of Relevant Equity Interests in Disclosed Tenants and to advise the Purchaser of any such
acquisitions. If the Purchaser determines that any Owner has acquired Constructive Ownership of
10% or more of the Relevant Equity Interests of a Disclosed Tenant, the Purchaser shall inform the
Company as soon as reasonably possible, but in no event more than five Business Days after such
discovery. Such a tenant shall be treated as an Owned Tenant only with respect to leases entered
into after the Purchaser informs the Company of such ownership.



     (e) By the 15th day of each of January, April, July, and October, the Company shall
provide the Purchaser a projection of gross income of the Company (as determined for purposes of
Sections 856(c)(2) and 856(c)(3) of the Code) for that calendar year (“Projected Gross
Income”). The Purchaser agrees that if (i) an Owner is a Constructive Owner of 10% or more of
the Relevant Equity Interests of a Disclosed Tenant that is not an Owned Tenant and (ii) at such
time projected rents (as determined for purposes of Sections 856(c)(2) of the Code) for the
calendar year from Disclosed Tenants in which any Owner Constructively Owns a Relevant Equity
Interest of at least 10% (“Related Tenant Rents”) (the date on which both conditions (i)
and (ii) are satisfied shall constitute the “Default Event”) would exceed 1.0% of Projected
Gross Income as set forth on the most recent projections existing on the Relevant Date, (as
hereinafter defined), the waivers granted pursuant to Section 3 shall be terminated as of the date
immediately prior to the date of the Default Event (the “Relevant Date”) with all resulting
consequences under the Articles; provided, however, that Related Tenant Rents do not include rents
from Owned Tenants.



     (f) The Purchaser and the Company hereby agree to use their best efforts to mutually implement
updated procedures mutually agreed upon to make the procedures for ensuring satisfaction by the
Company and any real estate investment trust described in Section 2(a)(A) of Sections 856(c)(2)
and 856(c)(3) of the Code more effective.



     3. Company Agreements.



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     The Board has granted waivers from the Related Party Limit to the Owners in excess of the
Related Party Limit pursuant to its authority provided in Section 4(l)(iii) of Division B of the
Articles. A copy of the Board resolution granting such waiver is attached as Exhibit B hereto.



     4. Miscellaneous.



     (a) Survival. The representations, warranties, and agreements of the Company and the
Purchaser contained in this Agreement shall survive delivery of this Agreement and shall remain in
full force and effect, regardless of any investigation made by or on behalf of them or any person
controlling them.



     (b) Entire Agreement. This Agreement constitutes the entire agreement among the
parties to this Agreement and supersedes all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof.



     (c) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York, regardless of the laws that might otherwise govern under
applicable principles of conflicts of law thereof.



     (d) Assignment and Successors. This Agreement and all of the provisions hereof shall
be binding upon and inure to the benefit of the parties hereto and their respective successors and
permitted assigns, provided that except as otherwise specifically provided herein, neither this
Agreement nor any of the rights, interests or obligations of the parties hereto may be assigned by
any party hereto without prior written consent of the other party hereto. The Purchaser may assign
his rights and obligations under this Agreement to any Exempt Holder to whom he has transferred
actual ownership of his Common Shares; provided, however that Purchaser shall not be relieved of
his obligations under the first two sentences of Section 2(d) under this Agreement by any such
assignment.



     (e) Termination. This Agreement shall terminate on the date upon which the waiver
granted pursuant to Section 3 terminates pursuant to Section 2.2(d).



     (f) No Third Party Rights. Nothing in this Agreement, express or implied, is intended
to or shall confer upon any Person (other than the parties hereto) any right, benefit or remedy of
any nature whatsoever under or by reason of this Agreement.



     (g) Cooperation. The Company agrees to cooperate fully with the Purchaser and to
execute and deliver such further documents, certificates, agreements and instruments and to take
such other actions as may be reasonably requested by the Purchaser to carry out the intent and
purpose of this Agreement.



     (h) Severability. If any provision of this Agreement is held invalid or unenforceable
by any court of competent jurisdiction, the other provisions of this Agreement will remain in full
force and effect. Any provision of this Agreement held invalid or unenforceable only in part or
degree will remain in full force and effect to the extent not held invalid or unenforceable.



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     (j) Notices. All notices, requests, demands, and other communications hereunder shall
be in writing (which shall include communications by facsimile) and shall be delivered (a) in
person or by courier or overnight service, or (b) by facsimile transmission, as follows:



     If to the Company:


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 the 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




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     or to such other address as the parties hereto may designate in writing to the other in
accordance with this Section 4(i). 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 facsimile transmission or mail as aforesaid, the date on which such notice,
request, instruction or document is received shall be the date of delivery.



     (k) Counterparts. This Agreement may be executed in several counterparts, each of
which shall be deemed an original and all of which shall constitute one and the same instrument,
and shall become effective when counterparts have been signed by each of the parties and delivered
to the other parties; it being understood that all parties need not sign the same counterpart.



     (l) Headings. The headings contained in this Agreement are for the convenience of
reference only, shall not be deemed to be a part of this Agreement and shall not be referred to in
connection with the construction or interpretation of this Agreement.



[Signatures on following page]




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     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.



	 	 	 	 	 
	 	DEVELOPERS DIVERSIFIED REALTY

CORPORATION

 	 
	 	By:  	 /s/
Scott A. Wolstein	 
	 	Name: 	  	 Scott A. Wolstein	 
	 	Title: 	  	 Chief Executive Officer	 
	 



	 	 	 	 	 
	 	MR. ALEXANDER OTTO

 	 
	 	
 /s/ Alexander Otto	 
	 	 	 
	 	 	 
	 




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