Exhibit 4.5



 






Exhibit 4.5




DEPOSIT AGREEMENT




     DEPOSIT AGREEMENT, dated as of December 10, 2004, among ASSOCIATED ESTATES
REALTY CORPORATION, an Ohio corporation, NATIONAL CITY BANK, a national banking
association, as Depositary, and all holders from time to time of Receipts (as
hereinafter defined) issued hereunder.



WITNESSETH:




     WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit of the Company’s Preferred Shares (as
hereinafter defined) with the Depositary for the purposes set forth in this
Deposit Agreement and for the issuance hereunder of the Receipts evidencing
Depositary Shares representing a fractional interest in the Preferred Shares
deposited; and



     WHEREAS, the Receipts are to be substantially in the form of Exhibit A
annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement;



     NOW, THEREFORE, in consideration of the premises contained herein, it is
agreed by and among the parties hereto as follows:



ARTICLE I




DEFINITIONS




     The following definitions shall apply to the respective terms (in the
singular and plural forms of such terms) used in this Deposit Agreement and the
Receipts:



     SECTION 1.01. “Amendment to the Articles” shall mean the Amendment to the
Second Amended and Restated Articles of Incorporation of the Company, as
amended from time to time, establishing the 8.70% Class B Series II Cumulative
Redeemable Preferred Shares as Preferred Shares of the Company.



     SECTION 1.02. “Articles of Incorporation” shall mean the Second Amended
and Restated Articles of Incorporation, as amended from time to time, of the
Company.



     SECTION 1.03. “Common Shares” shall mean the Company’s Common Shares,
without par value.



     SECTION 1.04. “Company” shall mean Associated Estates Realty Corporation,
an Ohio corporation, and its successors.



     SECTION 1.05. “Corporate Office” shall mean the corporate office of the
Depositary at which at any particular time its business in respect of matters
governed by this Deposit Agreement shall be administered, which at the date of
this Deposit Agreement is located at 1900 East Ninth Street, Cleveland, Ohio
44114.



     SECTION 1.06. “Deposit Agreement” shall mean this agreement, as the same
may be amended, modified or supplemented from time to time.



 









 





     SECTION 1.07. “Depositary” shall mean National City Bank, a national
banking association having its principal office in the United states and having
a combined capital and surplus of at least $100,000,000, and any successor as
depositary hereunder.



     SECTION 1.08. “Depositary Share” shall mean a fractional interest of 1/10
of a Preferred Share deposited with the Depositary hereunder and the same
proportionate interest in any and all other property received by the Depositary
in respect of such Preferred Share and held under this Deposit Agreement, all
as evidenced by the Receipts issued hereunder. Subject to the terms of this
Deposit Agreement, each owner of a Depositary Share is entitled,
proportionately, to all the rights, preferences and privileges of the Preferred
Share represented by such Depositary Share, including the dividend, voting,
redemption, conversion and liquidation rights contained in the Amendment to the
Articles and the Articles of Incorporation.



     SECTION 1.09. “Depositary’s Agent” shall mean an agent appointed by the
Depositary as provided, and for the purposes specified, in Section 7.05.



     SECTION 1.10. “Excess Preferred Shares” shall mean Preferred Shares which
are Excess Preferred Shares as defined in the Articles of Incorporation.



     SECTION 1.11. “Going Private Put Option” shall mean the right of the
holder of Preferred Shares to cause the Company to repurchase such Preferred
Shares for cash in the event of a Going Private Transaction (as defined below)
in accordance with the Amendment to the Articles and the corresponding right of
the holder of Depositary Shares representing such Preferred Shares to cause the
Depositary to repurchase such holder’s Depositary Shares upon terms equivalent
to those set forth in the Articles Amendment for the Preferred Shares.



     SECTION 1.12. “Going Private Transaction” shall have the meaning set
forth in the Amendment to the Articles.



     SECTION 1.13. “Preferred Shares” shall mean the Company’s 8.70% Class B
Series II Cumulative Redeemable Preferred Shares, without par value, heretofore
validly issued, fully paid and nonassessable.



     SECTION 1.14. “Receipt” shall mean a Depositary Receipt issued hereunder
to evidence one or more Depositary Shares, whether in definitive or temporary
form, substantially in the form set forth as Exhibit A hereto.



     SECTION 1.15. “record date” shall mean the date fixed pursuant to Section
4.04.



     SECTION 1.16. “record holder” or “holder” as applied to a Receipt shall
mean the person in whose name a Receipt is registered on the books maintained
by the Depositary for such purpose.



     SECTION 1.17. “Registrar” shall mean National City Bank or any bank or
trust company appointed to register ownership and transfers of Receipts, the
deposited Preferred Shares or Excess Preferred Shares, as the case may be, as
herein provided.



     SECTION 1.18. “Securities Act” shall mean the Securities Act of 1933, as
amended.



     SECTION 1.19. “Transfer Agent” shall mean National City Bank or any bank
or trust company appointed to transfer the Receipts, the deposited Preferred
Shares, as the case may be, as herein provided.








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ARTICLE II




FORM OF RECEIPTS; DEPOSIT OF PREFERRED SHARES;

EXECUTION AND DELIVERY, TRANSFER,

SURRENDER AND REDEMPTION OF RECEIPTS




     SECTION 2.01. Form and Transferability of Receipts. (a) Definitive
Receipts shall be engraved or printed or lithographed with steel-engraved
borders and underlying tint and shall be substantially in the form set forth in
Exhibit A annexed to this Deposit Agreement, with appropriate insertions,
modifications and omissions, as hereinafter provided. Pending the preparation
of definitive Receipts, the Depositary, upon the written order of the Company,
delivered in compliance with Section 2.02, shall execute and deliver temporary
Receipts which may be printed, lithographed, typewritten, mimeographed or
otherwise substantially of the tenor of the definitive Receipts in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the persons executing such Receipts may
determine, as evidenced by their execution of such Receipts. If temporary
Receipts are issued, the Company and the Depositary will cause definitive
Receipts to be prepared without unreasonable delay. After the preparation of
definitive Receipts, the temporary Receipts shall be exchangeable for
definitive Receipts upon surrender of the temporary Receipts at the Corporate
Office or such other offices, if any, as the Depositary may designate, without
charge to the holder. Upon surrender for cancellation of any one or more
temporary Receipts, the Depositary shall execute and deliver in exchange
therefor definitive Receipts representing the same number of Depositary Shares
as represented by the surrendered temporary Receipt or Receipts. Such exchange
shall be made at the Company’s expense and without any charge therefor. Until
so exchanged, the temporary Receipts shall in all respects be entitled to the
same benefits under this Deposit Agreement, and with respect to the Preferred
Shares deposited, as definitive Receipts.



     (b) Receipts shall be executed by the Depositary by the manual or
facsimile signature of a duly authorized signatory of the Depositary, provided
that if a Registrar (other than the Depositary) shall have been appointed then
such Receipts shall also be countersigned by manual or facsimile signature of a
duly authorized signatory of the Registrar. No Receipt shall be entitled to
any benefits under this Deposit Agreement or be valid or obligatory for any
purpose unless it shall have been executed as provided in the preceding
sentence. The Depositary shall record on its books each Receipt executed as
provided above and delivered as hereinafter provided.



     (c) Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Depositary Shares. All Receipts shall be
dated the date of their issuance.



     (d) Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of
this Deposit Agreement as may be required by the Depositary or required to
comply with any applicable law or regulation or with the rules and regulations
of any securities exchange upon which the Preferred Shares, the Depositary
Shares or the Receipts may be listed or to conform with any usage with respect
thereto, or to indicate any special limitations or restrictions to which any
particular Receipts are subject.



     (e) Title to any Receipt (and the beneficial ownership of the Depositary
Shares evidenced by such Receipt) that is properly endorsed or accompanied by a
properly executed instrument of transfer or endorsement shall be transferable
by delivery with the same effect as in the case of a negotiable instrument;
provided, however, that until a Receipt shall be transferred on the books of
the Depositary as provided in Section 2.05, the Depositary may, notwithstanding
any notice to the contrary, treat the record holder thereof at such time as the
absolute owner thereof for all purposes, including without limitation,








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for the purpose of determining the person entitled to (i) distribution of
dividends or other distributions, (ii) the exercise of any conversion rights or
(iii) any notice provided for in this Deposit Agreement and for all other
purposes.




     SECTION 2.02. Deposit of Preferred Shares; Execution and Delivery of
Receipts in Respect Thereof. (a) Concurrently with the execution of this
Deposit Agreement, the Company is delivering to the Depositary a certificate or
certificates, registered in the name of the Depositary and evidencing 232,000
Preferred Shares, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, together with (i) all such certifications as
may be required by the Depositary in accordance with the provisions of this
Deposit Agreement and (ii) a written order of the Company directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order a Receipt or Receipts for the Depositary Shares
representing such deposited Preferred Shares. The Depositary acknowledges
receipt of the deposited Preferred Shares and related documentation and agrees
to hold such deposited Preferred Shares in an account to be established by the
Depositary at the Corporate Office or at such other office as the Depositary
shall determine. The Company hereby appoints the Depositary as the Registrar
and Transfer Agent for the Preferred Shares deposited hereunder and any Excess
Preferred Shares issued pursuant to Section 2.10, and the Depositary hereby
accepts such appointment and, as such, will reflect changes in the number of
deposited Preferred Shares (including any fractional shares) held by it by
notation, book-entry or other appropriate method.



     (b) If required by the Depositary, Preferred Shares presented for deposit
by the Company at any time, whether or not the register of shareholders of the
Company is closed, shall also be accompanied by an agreement or assignment, or
other instrument satisfactory to the Depositary, that will provide for the
prompt transfer to the Depositary or its nominee of any dividend or any right
to subscribe for additional Preferred Shares or to receive other property that
any person in whose name the Preferred Shares is or has been registered may
thereafter receive upon or in respect of such deposited Preferred Shares, or in
lieu thereof such agreement of indemnity or other agreement as shall be
satisfactory to the Depositary.



     (c) Upon receipt by the Depositary of a certificate or certificates for
Preferred Shares deposited hereunder, together with the other documents
specified above, and upon registering such Preferred Shares in the name of the
Depositary, the Depositary, subject to the terms and conditions of this Deposit
Agreement, shall execute and deliver to, or upon the order of, the person or
persons in the written order delivered to the Depositary referred to in the
first paragraph of this Section 2.02, a Receipt or Receipts for the number of
whole Depositary Shares representing the Preferred Shares so deposited and
registered in such name or as may be requested by such person or persons. The
Depositary shall execute and deliver such Receipt or Receipts at the Corporate
Office, except that, at the request, risk and expense of any person requesting
such delivery, such delivery may be made at such other place as may be
designated by such person.



     (d) Other than in the case of splits, combinations or other
reclassifications affecting the Preferred Shares, or in the case of dividends
or other distributions of Preferred Shares, if any, there shall be deposited
hereunder not more than the number of Preferred Shares as set forth in the
Amendment to the Articles, as such may be amended.



     (e) The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary
to perform its obligations under this Deposit Agreement.








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     SECTION 2.03. Optional Redemption of Preferred Shares For Cash. (a)
Whenever the Company shall elect to redeem deposited Preferred Shares for cash
in accordance with the provisions of the Amendment to the Articles, it shall
(unless otherwise agreed with the Depositary) give the Depositary not less than
10 days prior written notice of the date of by which the Depositary shall
distribute notice of such proposed redemption and of the number of such
Preferred Shares held by the Depositary to be redeemed and the applicable
redemption price, determined pursuant to the Amendment to the Articles,
including the amount, if any, of accrued and unpaid dividends to the date of
such redemption. The Depositary shall mail, first-class postage prepaid,
notice of the redemption of Preferred Shares and the proposed simultaneous
redemption of the Depositary Shares representing the Preferred Shares to be
redeemed, not less than 30 and not more than 60 days prior to the date fixed
for redemption of such Preferred Shares and Depositary Shares (the “cash
redemption date”), to the holders of record on the record date fixed for such
redemption pursuant to Section 4.04 of the Receipts evidencing the Depositary
Shares to be so redeemed, at the addresses of such holders as the same appear
on the records of the Depositary; but neither failure to mail any such notice
to one or more such holders nor any defect in any such notice shall affect the
sufficiency of the proceedings for redemption as to other holders. The Company
shall provide the Depositary with such notice in a timely manner sufficient to
enable such notice to be mailed in accordance with this Section, and each such
notice shall state: the cash redemption date; the cash redemption price; the
number of deposited Preferred Shares and Depositary Shares to be redeemed; if
fewer than all the Depositary Shares held by any holder are to be redeemed, the
number of such Depositary Shares held by such holder to be so redeemed; the
place or places where Receipts evidencing Depositary Shares to be redeemed are
to be surrendered for payment of the cash redemption price; and that from and
after the cash redemption date dividends in respect of the Preferred Shares
represented by the Depositary Shares to be redeemed will cease to accrue. If
fewer than all the outstanding Depositary Shares are to be redeemed the
Depositary Shares to be redeemed shall be selected pro rata (as nearly as may
be practicable without creating fractional Depositary Shares) or by any other
equitable method determined by the Company that will not result in the issuance
of any Excess Preferred Shares.



     (b) In the event that notice of redemption has been made as described in
Section 2.03(a) and the Company shall then have paid in full to the Depositary
the cash redemption price (determined pursuant to the Amendment to the
Articles) of the Preferred Shares deposited with the Depositary to be redeemed
(including any accrued and unpaid dividends to the date of redemption), the
Depositary shall redeem the number of Depositary Shares representing such
Preferred Shares so called for redemption by the Company and from and after the
cash redemption date (unless the Company shall have failed to redeem the
Preferred Shares to be redeemed by it as set forth in the Company’s notice
provided for in Section 2.03(a)), all dividends in respect of the Preferred
Shares called for redemption shall cease to accrue, the Depositary Shares
called for redemption shall be deemed no longer to be outstanding and all
rights of the holders of Receipts evidencing such Depositary Shares (except the
right to receive the cash redemption price and any money or other property to
which holders of such Receipts were entitled upon such redemption) shall, to
the extent of such Depositary Shares, cease and terminate. Upon surrender in
accordance with said notice of the Receipts evidencing such Depositary Shares
(properly endorsed or assigned for transfer, if the Depositary shall so
require), such Depositary Shares shall be redeemed at a cash redemption price
of $25.00 per Depositary Share plus any other money and other property payable
in respect of such Preferred Shares. The foregoing shall be further subject to
the terms and conditions of the Amendment to the Articles.



     (c) If fewer than all of the Depositary Shares evidenced by a Receipt are
called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary, together with payment of the cash
redemption price for and all other amounts payable in respect of the Depositary
Shares called for redemption, a new Receipt evidencing the Depositary Shares
evidenced by such prior Receipt and not called for redemption.








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     SECTION 2.04. Exercise of
Going Private Put Option by the Holder of
Preferred Shares. (a) In the event of a Going Private Transaction, the Company shall give the Depositary notice, not less
than 45 days prior to the date on which the Company will repurchase any Preferred Shares or
Depositary Shares tendered by holders exercising their Going Private Put Option (the “Put Option
Payment Date”), of the occurrence of such Going Private Transaction, the Put Option Payment Date
and the applicable repurchase price per Preferred Share and equivalent amount per Depositary Share,
determined pursuant to the Amendment to the Articles, including the amount, if any, of accrued and
unpaid dividends to the Put Option Payment Date. The Depositary shall mail, first-class postage
prepaid, to the holders of record of the Receipts on the record date fixed for such notice of
repurchase pursuant to Section 4.04 hereof, at the addresses of such holders as the same appear on
the records of the Depositary, notice of the Going Private Transaction and the ability of holders
of Receipts to exercise the Going Private Put Option with respect to the Preferred Shares
represented by such holder’s Depositary Shares, not less than 30 and not more than 40 days prior to
the Put Option Payment Date; but neither failure to mail any such notice to one or more such
holders nor any defect in any such notice shall affect the sufficiency of the proceedings for
repurchase as to other holders. Each such notice shall state: the Put Option Payment
Date; the cash repurchase price; the date by which the Going Private Put Option
must be exercised, the place or places where Receipts evidencing Depositary
Shares to be repurchased are to be surrendered for payment of the cash
repurchase price; and that from and after the Put Option Payment Date dividends
in respect of the Preferred Shares represented by the Depositary Shares to be
repurchased will cease to accrue. To exercise the Going Private Put Option, a
holder of Receipts must deliver, on or before the third business day preceding
the Put Option Payment Date, written notice to the Depositary of the holder’s
exercise of the Going Private Put Option, indicating the number of Depositary
Shares to be repurchased by the Company (the “Exercise Notice”). The holder
may withdraw, in whole or in part, a tender of Receipts pursuant to an exercise
of its Going Private Put Option by delivering to the Depositary on or before
the second business day preceding the Put Option Payment Date a telegram,
telex, facsimile transmission or letter stating the name of the holder, the
number of Depositary Shares representing by Receipts initially to be delivered
for repurchase, and a statement that the holder is withdrawing its exercise of
the Going Private Put Option as to all or part of the tendered Depositary
Shares. The Depositary shall give notice to the Company on or before the
second business day preceding the Put Option Payment Date of the number of
Preferred Shares represented by Depositary Shares to be repurchased pursuant to
properly delivered Exercise Notices that were not properly withdrawn (the
“Preferred Repurchase Shares”).



     (b) In the event that one or more Exercise Notices are properly delivered
to the Depositary and not properly withdrawn as described in Section 2.04(a)
and the Company shall then have paid in full to the Depositary the cash
repurchase price (determined pursuant to the Amendment to the Articles) of the
Preferred Repurchase Shares (including any accrued and unpaid dividends to the
Put Option Payment Date), the Depositary shall repurchase such number of
Depositary Shares properly tendered and not properly withdrawn pursuant to the
Exercise Notices and from and after the Put Option Payment Date (unless the
Company shall have failed to repurchase the Preferred Repurchase Shares), all
dividends in respect of the Preferred Repurchase Shares shall cease to accrue,
the Depositary Shares tendered for repurchase shall be deemed no longer to be
outstanding and all rights of the holders of Receipts evidencing such
Depositary Shares (except the right to receive the cash repurchase price and
any money or other property to which holders of such Receipts were entitled
upon such repurchase) shall, to the extent of such Depositary Shares, cease and
terminate. Upon surrender in accordance with said notice of the Receipts
evidencing such Depositary Shares (properly endorsed or assigned for transfer,
if the Depositary shall so require), such Depositary Shares shall be
repurchased at a cash repurchase price of $25.00 per Depositary Share plus any
other money and other property payable in respect of such Preferred Repurchase
Shares represented thereby. The foregoing shall be further subject to the
terms and conditions of the Amendment to the Articles.








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     (c) If fewer than all of the Depositary Shares evidenced by a Receipt are
tendered for repurchase or any or all of such tendered Depositary Shares are
properly withdrawn, the Depositary will deliver to the holder of such Receipt
upon its surrender to the Depositary, together with payment of the cash
repurchase price for and all other amounts payable in respect of the Depositary
Shares properly tendered for repurchase and not properly withdrawn, a new
Receipt evidencing the Depositary Shares evidenced by such prior Receipt and
not tendered for repurchase or tendered for repurchase and properly withdrawn.



     SECTION 2.05. Registration of Transfers of Receipts. The Company hereby
appoints the Depositary as the Registrar and Transfer Agent for the Receipts,
and the Depositary hereby accepts such appointment and, as such, shall register
on its books from time to time transfers of Receipts upon any surrender thereof
by the holder in person or by a duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer or endorsement,
together with evidence of the payment of any transfer taxes as may be required
by law. Upon such surrender, the Depositary shall execute a new Receipt or
Receipts and deliver the same to or upon the order of the person entitled
thereto evidencing the same aggregate number of Depositary Shares evidenced by
the Receipt or Receipts surrendered.



     SECTION 2.06. Combinations and Split-Ups of Receipts. Upon surrender of a
Receipt or Receipts at the Corporate Office or such other office as the
Depositary may designate for the purpose of effecting a split-up or combination
of Receipts, subject to the terms and conditions of this Deposit Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts in the
authorized denominations requested evidencing the same aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.



     SECTION 2.07. Surrender of Receipts and Withdrawal of Preferred Shares.
(a) Any holder of a Receipt or Receipts may withdraw any or all of the
deposited Preferred Shares represented by the Depositary Shares evidenced by
such Receipt or Receipts and all money and other property, if any, represented
by such Depositary Shares by surrendering such Receipt or Receipts at the
Corporate Office or at such other office as the Depositary may designate for
such withdrawals, provided that a holder of a Receipt or Receipts may not
withdraw such Preferred Shares (or money and other property, if any,
represented thereby) which have previously been called for redemption or which
have been converted to Excess Preferred Shares in accordance with Section 2.11.
After such surrender, without unreasonable delay, the Depositary shall deliver
to such holder, or to the person or persons designated by such holder as
hereinafter provided, the number of whole or fractional Preferred Shares and
all such money and other property, if any, represented by the Depositary Shares
evidenced by the Receipt or Receipts so surrendered for withdrawal, but holders
of such whole or fractional Preferred Shares will not thereafter be entitled to
deposit such Preferred Shares hereunder or to receive Depositary Shares
therefor. If the Receipt or Receipts delivered by the holder to the Depositary
in connection with such withdrawal shall evidence a number of Depositary Shares
in excess of the number of Depositary Shares representing the number of whole
or fractional shares of deposited Preferred Shares to be withdrawn, the
Depositary shall at the same time, in addition to such number of whole or
fractional Preferred Shares and such money and other property, if any, to be
withdrawn, deliver to such holder, or (subject to Section 2.05) upon his order,
a new Receipt or Receipts evidencing such excess number of Depositary Shares.
Delivery of such Preferred Shares and such money and other property being
withdrawn may be made by the delivery of such certificates, documents of title
and other instruments as the Depositary may deem appropriate, which, if
required by the Depositary, shall be properly endorsed or accompanied by proper
instruments of transfer.



     (b) If the deposited Preferred Shares and the money and other property
being withdrawn are to be delivered to a person or persons other than the
record holder of the Receipt or Receipts being








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surrendered for withdrawal of Preferred Shares, such holder shall execute
and deliver to the Depositary a written order so directing the Depositary and
the Depositary may require that the Receipt or Receipts surrendered by such
holder for withdrawal of such Preferred Shares be properly endorsed in blank or
accompanied by a properly executed instrument of transfer or endorsement in
blank.




     (c) The Depositary shall deliver the deposited Preferred Shares and the
money and other property, if any, represented by the Depositary Shares
evidenced by Receipts surrendered for withdrawal at the Corporate Office,
except that, at the request, risk and expense of the holder surrendering such
Receipt or Receipts and for the account of the holder thereof, such delivery
may be made at such other place as may be designated by such holder.



     SECTION 2.08. Limitations on Execution and Delivery, Transfer, Split-Up,
Combination, Surrender and Exchange of Receipts. (a) As a condition precedent
to the execution and delivery, transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary’s Agents or the
Company may require any or all of the following: (i) payment to it of a sum
sufficient for the payment (or, in the event that the Depositary or the Company
shall have made such payment, the reimbursement to it) of any tax or other
governmental charge with respect thereto (including any such tax or charge with
respect to the Preferred Shares being deposited or withdrawn); (ii) the
production of proof satisfactory to it as to the identity and genuineness of
any signature (or the authority of any signature); and (iii) compliance with
such regulations, if any, as the Depositary or the Company may establish
consistent with the provisions of this Deposit Agreement as may be required by
any securities exchange upon which the deposited Preferred Shares, the
Depositary Shares or the Receipts may be included for quotation or listed.



     (b) The deposit of Preferred Shares may be refused, the delivery of
Receipts against Preferred Shares may be suspended, the transfer of Receipts
may be refused, and the transfer, split-up, combination, surrender, exchange or
redemption of outstanding Receipts may be suspended (i) during any period when
the register of shareholders of the Company is closed or (ii) if any such
action is deemed reasonably necessary or advisable by the Depositary, any of
the Depositary’s Agents or the Company at any time or from time to time because
of any requirement of law or of any government or governmental body or
commission, or under any provision of this Deposit Agreement.



     SECTION 2.09. Lost Receipts, etc. In case any Receipt shall be mutilated
or destroyed or lost or stolen, the Depositary in its discretion may execute
and deliver a Receipt of like form and tenor in exchange and substitution for
such mutilated Receipt or in lieu of and in substitution for such destroyed,
lost or stolen Receipt, provided that the holder thereof provides the
Depositary with (i) evidence reasonably satisfactory to the Depositary of such
destruction, loss or theft of such Receipt, of the authenticity thereof and of
his ownership thereof and (ii) reasonable indemnification satisfactory to the
Depositary and the Company.



     SECTION 2.10. Cancellation and Destruction of Surrendered Receipts. All
Receipts surrendered to the Depositary or any Depositary’s Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy such Receipts so cancelled.



     SECTION 2.11. Conversion of Preferred Shares into Excess Preferred Shares.
(a) As provided in the Articles of Incorporation, upon the happening of
certain events, certain Preferred Shares shall be automatically converted into
Excess Preferred Shares. In the event of such a conversion, the Receipt
representing the deposited Preferred Shares so converted shall no longer
represent, to the extent of the shares so converted, such deposited Preferred
Shares. Promptly upon its knowledge of the conversion of such deposited
Preferred Shares into Excess Preferred Shares, the Company shall notify the








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Depositary of such conversion, the number of deposited Preferred Shares so
converted, and the identity of the holder of the Receipt(s) so affected,
whereupon the Depositary shall promptly notify the holder of such Receipt(s) to
surrender such Receipt(s) to the Depositary for cancellation of the number of
Depositary Shares evidenced thereby equal to the converted deposited Preferred
Shares represented thereby.




     (b) If fewer than all of the Depositary Shares evidenced by a Receipt are
required to be surrendered for cancellation, the Depositary will deliver to the
holder of such Receipt upon its surrender to the Depositary a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not
required to be surrendered for cancellation of the Depositary Shares
represented thereby, and the Depositary will make appropriate adjustments in
its records (as contemplated in Section 2.02) to reflect such conversion and
cancellation (including the reduction of any fractional share of deposited
Preferred Shares and the issuance of any Excess Preferred Shares).



ARTICLE III

CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY




     SECTION 3.01. Filing Proofs, Certificates and Other Information. Any
person presenting Preferred Shares for deposit or any holder of a Receipt may
be required from time to time to file such proof of residence or other
information, to execute such certificates and to make such representations and
warranties as the Depositary or the Company may reasonably deem necessary or
proper. The Depositary or the Company may withhold or delay the delivery of
any Receipt, the transfer, redemption or exchange of any Receipt, the
withdrawal of the deposited Preferred Shares represented by the Depositary
Shares evidenced by any Receipt, the distribution of any dividend or other
distribution or the sale of any rights or of the proceeds thereof, until such
proof or other information is filed, such certificates are executed or such
representations and warranties are made.



     SECTION 3.02. Payment of Fees and Expenses. Holders of Receipts shall be
obligated to make payments to the Depositary of certain fees and expenses, as
provided in Section 5.07, or provide evidence reasonably satisfactory to the
Depositary that such fees and expenses have been paid. Until such payment is
made, transfer of any Receipt or any withdrawal of the Preferred Shares or
money or other property, if any, represented by the Depositary Shares evidenced
by such Receipt may be refused, any dividend or other distribution may be
withheld, and any part or all of the Preferred Shares or other property
represented by the Depositary Shares evidenced by such Receipt may be sold for
the account of the holder thereof (after attempting by reasonable means to
notify such holder a reasonable number of days prior to such sale). Any
dividend or other distribution so withheld and the proceeds of any such sale
may be applied to any payment of such fees or expenses, the holder of such
Receipt remaining liable for any deficiency.



     SECTION 3.03. Representations and Warranties as to Preferred Shares. In
the case of the initial deposit of the Preferred Shares hereunder, the Company
and, in the case of subsequent deposits thereof, each person so depositing
Preferred Shares under this Deposit Agreement shall be deemed thereby to
represent and warrant that such Preferred Shares and each certificate therefor
are valid and that the person making such deposit is duly authorized to do so.
The Company hereby further represents and warrants that such Preferred Shares,
when issued, will be validly issued, fully paid and nonassessable. Such
representations and warranties shall survive the deposit of the Preferred
Shares and the issuance of Receipts.



     SECTION 3.04. Representation and Warranties as to Receipts and Depositary
Shares. The Company hereby represents and warrants that the Receipts, when
issued, will evidence valid and binding interests in the Depositary Shares and
each Depositary Share will represent a valid and binding








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1/10 fractional interest in a deposited Preferred Share. Such
representation and warranty shall survive the deposit of the Preferred Shares
and the issuance of Receipts evidencing the Depositary Shares.




ARTICLE IV

THE PREFERRED SHARES; NOTICES




     SECTION 4.01. Cash Distributions. Whenever the Depositary shall receive
any cash dividend or other cash distribution on the deposited Preferred Shares,
including any cash received upon redemption of any Preferred Shares pursuant to
Section 2.03 or upon repurchase of any Preferred Shares pursuant to Section
2.04, the Depositary shall, subject to Section 3.02, distribute to record
holders of Receipts on the record date fixed pursuant to Section 4.04 such
amounts of such dividend or distribution as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders; provided, however, that (i) in case the Company
or the Depositary shall be required to and shall withhold from any cash
dividend or other cash distribution in respect of the Preferred Shares
represented by the Receipts held by any holder an amount on account of taxes,
the amount made available for distribution or distributed in respect of
Depositary Shares represented by such Receipts subject to such withholding
shall be reduced accordingly and (ii) no cash dividends will be paid in respect
of any Depositary Share to the extent that it represents any Preferred Shares
converted into Excess Preferred Shares. The Depositary shall distribute or
make available for distribution, as the case may be, such amount as can be
distributed without attributing to any holder of Receipts a fraction of one
cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated
as part of the next sum received by the Depositary for distribution to record
holders of Receipts then outstanding.



     SECTION 4.02. Distributions Other Than Cash. Whenever the Depositary
shall receive any distribution other than cash on the deposited Preferred
Shares, the Depositary shall, subject to Section 3.02, distribute to record
holders of Receipts on the record date fixed pursuant to Section 4.04 such
amounts of the securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders, in any manner that the
Depositary and the Company may deem equitable and practicable for accomplishing
such distribution, except that no distribution will be made in respect of any
Depositary Share to the extent that it represents any Preferred Shares
converted into Excess Preferred Shares. If, in the opinion of the Depositary
after consultation with the Company, such distribution cannot be made
proportionately among such record holders, or if for any other reason
(including any requirement that the Company or the Depositary withhold an
amount on account of taxes), the Depositary deems, after consultation with the
Company, such distribution not to be feasible, the Depositary may, with the
approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or any
part thereof, at such place or places and upon such terms as it may deem
proper. The net proceeds of any such sale shall, subject to Section 3.02, be
distributed or made available for distribution, as the case may be, by the
Depositary to record holders of Receipts as provided by Section 4.01 in the
case of a distribution received in cash. The Company shall not make any
distribution of such securities or property to the holders of Receipts unless
the Company shall have provided to the Depositary an opinion of counsel stating
that the distribution of such securities or property has been registered under
the Securities Act or that registration is not required. The Company shall
advise the Depositary of the nature of any property, and if the Depositary in
its reasonable judgement determines that it may incur liability by reason of
being deemed an owner thereof, the Depositary shall have the right to refuse
such property, but the Depositary shall assist the Company in determining an
appropriate means of distributing such property.








Page 10




 









 





     SECTION 4.03. Subscription Rights, Preferences or Privileges. (a) If the
Company shall at any time offer or cause to be offered to the persons in whose
names deposited Preferred Shares are registered on the books of the Company any
rights, preferences or privileges to subscribe for or to purchase any
securities or any rights, preferences or privileges of any other nature, such
rights, preferences or privileges shall in each such instance be made available
by the Depositary to the record holders of Receipts in such manner as the
Company shall instruct (including by the issue to such record holders of
warrants representing such rights, preferences or privileges); provided,
however, that (a) if at the time of issue or offer of any such rights,
preferences or privileges the Company determines upon advice of its legal
counsel that it is not lawful or feasible to make such rights, preferences or
privileges available to the holders of Receipts (by the issue of warrants or
otherwise) or (b) if and to the extent instructed by holders of Receipts who do
not desire to exercise such rights, preferences or privileges, the Depositary
shall then, if so instructed by the Company, and if applicable laws or the
terms of such rights, preferences or privileges so permit, sell such rights,
preferences or privileges of such holders at public or private sale, at such
place or places and upon such terms as it may deem proper. The net proceeds of
any such sale shall, subject to Section 3.01 and Section 3.02, be distributed
by the Depositary to the record holders of Receipts entitled thereto as
provided by Section 4.01 in the case of a distribution received in cash. The
Company shall not make any distribution of such rights, preferences or
privileges, unless the Company shall have provided to the Depositary an opinion
of counsel stating that the distribution of such rights, preferences or
privileges has been registered under the Securities Act or that registration is
not required.



     (b) If registration under the Securities Act of the securities to which
any rights, preferences or privileges relate is required in order for holders
of Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees that it will promptly file
a registration statement pursuant to the Securities Act with respect to such
rights, preferences or privileges and securities and use its best efforts and
take all steps available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such rights, preferences
or privileges to enable such holders to exercise such rights, preferences or
privileges. In no event shall the Depositary make available to the holders of
Receipts any right, preference or privilege to subscribe for or to purchase any
securities unless and until such a registration statement shall have become
effective or unless the offering and sale of such securities to such holders
are exempt from registration under the provisions of the Securities Act and the
Company shall have provided to the Depositary an opinion of counsel to such
effect.



     (c) If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to
holders of Receipts, the Company agrees to use its best efforts to take such
action or obtain such authorization, consent or permit sufficiently in advance
of the expiration of such rights, preferences or privileges to enable such
holders to exercise such rights, preferences or privileges.



     SECTION 4.04. Notice of Dividends; Fixing of Record Date for Holders of
Receipts. Whenever any cash dividend or other cash distribution shall become
payable, any distribution other than cash shall be made, or any rights,
preferences or privileges shall at any time be offered, with respect to the
deposited Preferred Shares, or whenever the Depositary shall receive notice of
(i) any meeting at which holders of such Preferred Shares are entitled to vote
or of which holders of such Preferred Shares are entitled to notice, (ii) any
election on the part of the Company to redeem any such Preferred Shares or
(iii) the occurrence of any Going Private Transaction, the Depositary shall in
each such instance fix a record date (which shall be the same date as the
record date fixed by the Company with respect to the Preferred Shares) for the
determination of the holders of Receipts who shall be entitled to receive such
notices, dividend, distribution, rights, preferences or privileges or the net
proceeds of the sale thereof, to give








Page 11




 









 





instructions for the exercise of voting rights at any such meeting or to
receive notice of such meeting or the determination of which Depositary Shares
are to be so redeemed.




     SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting at
which the holders of deposited Preferred Shares are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the record holders
of Receipts a notice, which shall be provided by the Company and which shall
contain (i) such information as is contained in such notice of meeting, (ii) a
statement that the holders of Receipts at the close of business on a specified
record date fixed pursuant to Section 4.04 will be entitled, subject to any
applicable provision of law, to instruct the Depositary as to the exercise of
the voting rights pertaining to the amount of Preferred Shares represented by
their respective Depositary Shares and (iii) a brief statement as to the manner
in which such instructions may be given. Upon the written request of a holder
of a Receipt on such record date, the Depositary shall vote or cause to be
voted the amount of Preferred Shares represented by the Depositary Shares
evidenced by such Receipt in accordance with the instructions set forth in such
request. To the extent any such instructions request the voting of a
fractional interest of a share of deposited Preferred Shares, the Depositary
shall aggregate such interest with all other fractional interests resulting
from requests with the same voting instructions and shall vote the number of
whole votes resulting from such aggregation in accordance with the instructions
received in such requests. Each Preferred Share is entitled to one vote on all
matters as to which the Preferred Shares vote and, accordingly, each Depositary
Share is entitled to 1/10 of a vote on such matters. The Company hereby agrees
to take all reasonable action that may be deemed necessary by the Depositary in
order to enable the Depositary to vote such Preferred Shares or cause such
Preferred Shares to be voted. In the absence of specific instructions from the
holder of a Receipt, the Depositary will abstain from voting to the extent of
the Preferred Shares represented by the Depositary Shares evidenced by such
Receipt. The Depositary shall not be required to exercise discretion in voting
any Preferred Shares represented by the Depositary Shares evidenced by such
Receipt.



     SECTION 4.06. Changes Affecting Preferred Shares and Reclassifications,
Recapitalizations, etc. Upon any change in par or stated value, split-up,
combination or any other reclassification of Preferred Shares, or upon any
recapitalization, reorganization, merger or consolidation affecting the Company
or to which it is a party or sale of all or substantially all of the Company’s
assets, the Depositary shall, upon the instructions of the Company, (i) make
such adjustments in (a) the fraction of an interest represented by one
Depositary Share in one Preferred Share and (b) the ratio of the redemption
price per Depositary Share to the redemption price of a Preferred Share, in
each case as may be required by or as is consistent with the provisions of the
Amendment to the Articles and the Articles of Incorporation to fully reflect
the effects of such change in par or stated value, split-up, combination or
other reclassification, or of such recapitalization, reorganization, merger,
consolidation or sale and (ii) treat any shares or other securities or property
(including cash) that shall be received by the Depositary in exchange for or
upon conversion of or in respect of the Preferred Shares as new deposited
property under this Deposit Agreement, and Receipts then outstanding shall
thereafter represent the proportionate interests of holders thereof in the new
deposited property so received in exchange for or upon conversion or in respect
of such Preferred Shares. In any such case the Depositary may, in its
discretion, with the approval of the Company, execute and deliver additional
Receipts, or may call for the surrender of all outstanding Receipts to be
exchanged for new Receipts specifically describing such new deposited property.
Anything to the contrary herein notwithstanding, holders of Receipts shall
have the right from and after the effective date of any such change in par or
stated value, split-up, combination or other reclassification of the Preferred
Shares or any such recapitalization, reorganization, merger or consolidation or
sale of substantially all the assets of the Company to surrender such Receipts
to the Depositary with instructions to convert, exchange or surrender the
Preferred Shares represented thereby only into or for, as the case may be, the
kind and amount of shares and other securities and property and cash into which
the deposited Preferred Shares evidenced by such Receipts might have been
converted or for which such Preferred Shares might have been exchanged or
surrendered immediately prior to the








Page 12




 









 





effective date of such transaction. The Company shall cause an effective
provision to be made in the corporate charter of the resulting or surviving
corporation (if other than the Company) for protection of such rights as may be
applicable upon exchange of the deposited Preferred Shares for securities or
property or cash of the surviving corporation in connection with the
transactions set forth above. The Company shall cause any such surviving
corporation (if other than the Company) expressly to assume the obligations of
the Company hereunder.




     SECTION 4.07. Inspection of Reports. The Depositary shall make available
for inspection by holders of Receipts at the Corporate Office and at such other
places as it may from time to time deem advisable during normal business hours
any reports and communications received from the Company that are both received
by the Depositary as the holder of deposited Preferred Shares and made
generally available to the holders of the Preferred Shares. In addition, the
Depositary shall transmit certain notices and reports to the holders of
Receipts as provided in Section 5.05.



     SECTION 4.08. Lists of Receipt Holders. Promptly upon request from time
to time by the Company, the Depositary shall furnish to the Company a list, as
of a recent date specified by the Company, of the names, addresses and holdings
of Depositary Shares of all persons in whose names Receipts are registered on
the books of the Depositary.



     SECTION 4.09. Tax and Regulatory Compliance. The Depositary shall be
responsible for (i) preparation and mailing of 1099 forms for all open and
closed accounts, (ii) foreign tax withholding, (iii) withholding 28% (or any
withholding as may be required at the then applicable rate) of dividends from
holders of Receipts subject to back-up withholding, (iv) mailing W-9 forms to
new holders of Receipts without a certified taxpayer identification number, (v)
processing certified W-9 forms, (vi) preparation and filing of state
information returns and (vii) escheatment services.



     SECTION 4.10. Withholding. Notwithstanding any other provision of this
Deposit Agreement, in the event that the Depositary determines that any
distribution in property is subject to any tax which the Depositary is
obligated by law to withhold, the Depositary may dispose of all or a portion of
such property in such amounts and in such manner as the Depositary deems
necessary and practicable to pay such taxes, by public or private sale, and the
Depositary shall distribute the net proceeds of any such sale or the balance of
any such property after deduction of such taxes to the holders of Receipts
entitled thereto in proportion to the number of Depositary Shares held by them,
respectively.



ARTICLE V

THE DEPOSITARY AND THE COMPANY




     SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by the
Depositary and the Registrar. (a) The Depositary shall maintain at the
Corporate Office facilities for the execution and delivery, transfer, surrender
and exchange, split-up, combination and redemption of Receipts and for the
deposit and withdrawal of Preferred Shares and at the offices of the
Depositary’s Agents, if any, facilities for the delivery, transfer, surrender
and exchange, split-up, combination and redemption of Receipts and for the
deposit and withdrawal of Preferred Shares, all in accordance with the
provisions of this Deposit Agreement.



     (b) The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books at all reasonable times
shall be open for inspection by the record holders of Receipts as provided by
applicable law. The Depositary may close such books, at any time or from time
to time, when deemed expedient by it in connection with the performance of its
duties hereunder.








Page 13




 









 





     (c) If the Receipts or the Depositary Shares evidenced thereby or the
Preferred Shares represented by such Depositary Shares shall be listed on the
New York Stock Exchange or any other stock exchange, the Depositary may, with
the approval of the Company, appoint a Registrar (acceptable to the Company)
for registration of such Receipts or Depositary Shares in accordance with the
requirements of such exchange. Such Registrar (which may be the Depositary if
so permitted by the requirements of such exchange) may be removed and a
substitute registrar appointed by the Depositary upon the request or with the
approval of the Company. If the Receipts, such Depositary Shares or such
Preferred Shares are listed on one or more other stock exchanges, the
Depositary will, at the request and expense of the Company, arrange such
facilities for the delivery, transfer, surrender, redemption and exchange of
such Receipts, such Depositary Shares or such Preferred Shares as may be
required by law or applicable stock exchange regulations.



     SECTION 5.02. Prevention or Delay in Performance by the Depositary, the
Depositary’s Agents, the Registrar or the Company. Neither the Depositary, any
Depositary’s Agent, any Registrar nor the Company shall incur any liability to
any holder of any Receipt, if by reason of any provision of any present or
future law or regulation thereunder of the United States of America or of any
other governmental authority or, in the case of the Company, the Depositary,
the Depositary’s Agent or the Registrar, by reason of any provision, present or
future, of the Articles of Incorporation or the Amendment to the Articles or,
in the case of the Company, the Depositary, the Depositary’s Agent or the
Registrar, by reason of any act of God or war or other circumstance beyond the
control of the relevant party, the Depositary, any Depositary’s Agent, the
Registrar or the Company shall be prevented or forbidden from doing or
performing any act or thing that the terms of this Deposit Agreement provide
shall be done or performed; nor shall the Depositary, any Depositary’s Agent,
any Registrar or the Company incur any liability to any holder of a Receipt by
reason of any nonperformance or delay, caused as aforesaid, in the performance
of any act or thing that the terms of this Deposit Agreement provide shall or
may be done or performed, or by reason of any exercise of, or failure to
exercise, any discretion provided for in this Deposit Agreement.



     SECTION 5.03. Obligations of the Depositary, the Depositary’s Agents, the
Registrar and the Company. (a) Neither the Depositary, any Depositary’s Agent,
any Registrar nor the Company assumes any obligation or shall be subject to any
liability under this Deposit Agreement or any Receipt to holders of Receipts
other than from acts or omissions arising out of conduct constituting bad
faith, gross negligence or willful misconduct in the performance of such duties
as are specifically set forth in this Deposit Agreement.



     (b) Neither the Depositary, any Depositary’s Agent, any Registrar nor the
Company shall be under any obligation to appear in, prosecute or defend any
action, suit or other proceeding with respect to the deposited Preferred
Shares, Depositary Shares or Receipts that in its reasonable opinion may
involve it in expense or liability, unless indemnity reasonably satisfactory to
it against all expense and liability be furnished as often as may be required.



     (c) Neither the Depositary, any Depositary’s Agent, any Registrar nor the
Company shall be liable for any action or any failure to act by it in reliance
upon the written advice of legal counsel or accountants, or information
provided by any person presenting Preferred Shares for deposit, any holder of a
Receipt or any other person believed by it in good faith to be competent to
give such information. The Depositary, any Depositary’s Agent, any Registrar
and the Company may each rely and shall each be protected in acting upon any
written notice, request, direction or other document believed by it in good
faith to be genuine and to have been signed or presented by the proper party or
parties.



     (d) In the event the Depositary shall receive conflicting claims, requests
or instructions from any holders of Receipts, on the one hand, and the Company,
on the other hand, the Depositary shall








Page 14




 









 





be entitled to act on such claims, requests or instructions received from
the Company and shall be entitled to the full indemnification set forth in
Section 5.06 hereof in connection with any action so taken.




     (e) The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the deposited Preferred Shares or for the manner
or effect of any such vote made, as long as any such action or non-action is in
good faith and does not result from gross negligence or willful misconduct of
the Depositary. The Depositary undertakes, and any Registrar shall be required
to undertake, to perform such duties and only such duties as are specifically
set forth in this Deposit Agreement, and no implied covenants or obligations
shall be read into this Agreement or imposed upon the Depositary or any
Registrar.



     (f) The Depositary, its parent, affiliate, or subsidiaries, any
Depositary’s Agent, and any Registrar may own, buy, sell or deal in any class
of securities of the Company and its affiliates and in Receipts or Depositary
Shares or become pecuniarily interested in any transaction in which the Company
or its affiliates may be interested or contract with or lend money to or
otherwise act as fully or as freely as if it were not the Depositary or the
Depositary’s Agent hereunder. The Depositary may also act as transfer agent or
registrar of any of the securities of the Company and its affiliates or act in
any other capacity for the Company or its affiliates.



     (g) It is intended that neither the Depositary nor any Depositary’s Agent
shall be deemed to be an “issuer” of the securities under the federal
securities laws or applicable state securities laws, it being expressly
understood and agreed that the Depositary and any Depositary’s Agent are acting
only in a ministerial capacity as Depositary for the deposited Preferred
Shares; provided, however, that the Depositary agrees to comply with all
information reporting and withholding requirements applicable to it under law
or this Deposit Agreement in its capacity as Depositary.



     (h) Neither the Depositary (or its officers, directors, employees or
agents) nor any Depositary’s Agent makes any representation or has any
responsibility as to the validity of any registration statement pursuant to
which the Depositary Shares may be registered under the Securities Act, the
deposited Preferred Shares, the Depositary Shares, the Receipts (except its
countersignature thereon) or any instruments referred to therein or herein, or
as to the correctness of any statement made in any such registration statement
or herein; provided, however, that the Depositary is responsible for its
representations in this Deposit Agreement and for the validity of any action
taken or required to be taken by the Depositary in connection with this Deposit
Agreement.



     (i) The Company agrees that it will register the issuance of the Preferred
Shares and the Depositary Shares to the extent required by applicable
securities laws.



     SECTION 5.04. Resignation and Removal of the Depositary; Appointment of
Successor Depositary. The Depositary may at any time resign as Depositary
hereunder by notice of its election to do so delivered to the Company, such
resignation to take effect upon the appointment of a successor depositary and
its acceptance of such appointment as hereinafter provided. The Depositary may
at any time be removed by the Company by notice of such removal delivered to
the Depositary, such removal to take effect upon the appointment of a successor
depositary and its acceptance of such appointment as hereinafter provided.



     (b) In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor depositary,
which shall be a bank or trust company having its principal office in the
United States of America and having a combined capital and surplus of at least
$100,000,000. If a successor depositary shall not have been appointed in 60
days, the resigning Depositary may petition a








Page 15




 









 





court of competent jurisdiction to appoint a successor depositary. Every
successor depositary shall execute and deliver to its predecessor and to the
Company an instrument in writing accepting its appointment hereunder, and
thereupon such successor depositary, without any further act or deed, shall
become fully vested with all the rights, powers, duties and obligations of its
predecessor and for all purposes shall be the Depositary under this Deposit
Agreement, and such predecessor, upon payment of all sums due it and on the
written request of the Company, shall promptly execute and deliver an
instrument transferring to such successor all rights and powers of such
predecessor hereunder, shall duly assign, transfer and deliver all rights,
title and interest in the deposited Preferred Shares and any moneys or property
held hereunder to such successor and shall deliver to such successor a list of
the record holders of all outstanding Receipts. Any successor depositary shall
promptly mail notice of its appointment to the record holders of Receipts.




     (c) Any corporation or association into or with which the Depositary may
be merged, consolidated or converted shall be the successor of such Depositary
without the execution or filing of any document or any further act. Such
successor depositary may execute the Receipts either in the name of the
predecessor depositary or in the name of the successor depositary.



     SECTION 5.05. Notices, Reports and Documents. The Company agrees that it
will deliver to the Depositary, and the Depositary will, promptly after receipt
thereof, transmit to the record holders of Receipts, in each case at the
address recorded in the Depositary’s books, copies of all notices and reports
(including financial statements) required by law, by the rules of any national
securities exchange upon which the Preferred Shares, the Depositary Shares or
the Receipts are included for quotation or listed or by the Articles of
Incorporation, as amended by the Amendment to the Articles to be furnished by
the Company to holders of the deposited Preferred Shares and, if requested by
the holder of any Receipt, a copy of this Deposit Agreement, the form of
Receipt, the Articles of Incorporation as amended, and the form of Preferred
Shares. Such transmission will be at the Company’s expense and the Company
will provide the Depositary with such number of copies of such documents as the
Depositary may reasonably request. In addition, the Depositary will transmit
to the record holders of Receipts at the Company’s expense such other documents
as may be requested by the Company.



     SECTION 5.06. Indemnification by the Company. The Company agrees to
indemnify the Depositary, any Depositary’s Agent and any Registrar against, and
hold each of them harmless from, any liability, costs and expenses (including
reasonable attorneys’ fees) that may arise out of, or in connection with, its
acting as Depositary, Depositary’s Agent or Registrar, respectively, under this
Deposit Agreement and the Receipts, except for any liability arising out of the
willful misconduct, gross negligence or bad faith on the part of any such
person or persons. The obligations of the Company set forth in this Section
5.06 shall survive any succession of any Depositary, Registrar or Depositary’s
Agent or termination of this Deposit Agreement.



     SECTION 5.07 Fees, Charges and Expenses. No charges and expenses of the
Depositary or any Depositary’s Agent hereunder shall be payable by any person,
except as provided in this Section 5.07. The Company shall pay all transfer
and other taxes and governmental charges arising solely from the existence of
this Deposit Agreement. The Company shall also pay all fees and expenses of
the Depositary in connection with the initial deposit of the Preferred Shares
and the initial issuance of the Depositary Shares evidenced by the Receipts,
any redemption of the Preferred Shares at the option of the Company and all
withdrawals of the Preferred Shares by holders of Depositary Shares. If a
holder of Receipts requests the Depositary to perform duties not required under
this Deposit Agreement, the Depositary shall notify the holder of the cost of
the performance of such duties prior to the performance thereof. Such holder
will be liable for the charges and expenses related to such performance. All
other fees and expenses of the Depositary and any Depositary’s Agent hereunder
and of any Registrar (including, in each case, fees and expenses of counsel)
incident to the performance of their respective








Page 16




 









 





obligations hereunder will be promptly paid as previously agreed between
the Depositary and the Company. The Depositary shall present its statement for
fees and expenses to the Company every quarter or at such other intervals as
the Company and the Depositary may agree.




ARTICLE VI

AMENDMENT AND TERMINATION




     SECTION 6.01. Amendment. The form of the Receipts and any provision of
this Deposit Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect that they may
deem necessary or desirable; provided, however, that no such amendment (other
than any change in the fees of any Depositary, Registrar or Transfer Agent)
which (i) shall materially and adversely alter the rights of the holders of
Receipts or (ii) would be materially and adversely inconsistent with the rights
granted to the holders of the Preferred Shares pursuant to the Articles of
Incorporation as amended by the Amendment to the Articles shall be effective
unless such amendment shall have been approved by the holders of at least a
majority of the Depositary Shares then outstanding. In no event shall any
amendment impair the right, subject to the provisions of Section 2.06 and
Section 2.07 and Article III, of any holder of any Depositary Shares to
surrender the Receipt evidencing such Depositary Shares with instructions to
the Depositary to deliver to the holder the deposited Preferred Shares and all
money and other property, if any, represented thereby, except in order to
comply with mandatory provisions of applicable law. Every holder of an
outstanding Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by this Deposit Agreement as amended thereby.



     SECTION 6.02. Termination. (a) This Deposit Agreement may be terminated
by the Company upon not less than 30 days prior written notice to the
Depositary if (i) such termination is necessary to preserve the Company’s
status as a real estate investment trust under the Internal Revenue Code of
1986, as amended (or any successor provision), or (ii) the holders of a
majority of the Preferred Shares consent to such termination, whereupon the
Depositary shall deliver or make available to each holder of a Receipt, upon
surrender of the Receipt held by such holder, such number of whole or
fractional deposited Preferred Shares as are represented by the Depositary
Shares evidenced by such Depositary Receipt, together with any other property
held by the Depositary in respect of such Receipt. In the event that this
Deposit Agreement is terminated pursuant to clause (i) of the immediately
preceding sentence, the Company hereby agrees to use its best efforts to list
the Preferred Shares issued upon surrender of the Receipt evidencing the
Depositary Shares represented thereby on a national securities exchange. This
Deposit Agreement will automatically terminate if (x) all outstanding
Depositary Shares shall have been redeemed pursuant to Section 2.03 or
repurchased pursuant to Section 2.04 or (y) there shall have been made a final
distribution in respect of the deposited Preferred Shares in connection with
any liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Receipts entitled thereto.



     (b) Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Depositary’s Agent and any Registrar under
Section 5.06 and Section 5.07.



ARTICLE VII

MISCELLANEOUS




     SECTION 7.01. Counterparts. This Deposit Agreement may be executed in any
number of counterparts and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together








Page 17




 









 





shall constitute one and the same instrument. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary’s Agents and
shall be open to inspection during business hours at the Corporate Office and
the respective officer of the Depositary’s Agents, if any, by any holder of a
Receipt.




     SECTION 7.02. Exclusive Benefits of Parties. This Deposit Agreement is
for the exclusive benefit of the parties hereto, and their respective
successors hereunder, and shall not be deemed to give any legal or equitable
right, remedy or claim to any other person whatsoever.



     SECTION 7.03. Invalidity of Provisions. In case any one or more of the
provisions contained in this Deposit Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein
shall in no way be affected, prejudiced or disturbed thereby.



     SECTION 7.04. Notices. (a) Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail, or by telegram or
facsimile transmission (once receipt of such notice by mail, telegram or
facsimile is confirmed by the Company), addressed to the Company at:



     ASSOCIATED ESTATES REALTY CORPORATION

     5025 Swetland Court

     Richmond Heights, Ohio 44143

     Attention: Chief Financial Officer

     Telephone Number: 216-261-5000



or at any other address of which the Company shall have notified the Depositary
in writing.




     (b) Any notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
(once receipt of such notice by mail, telegram or facsimile is confirmed by the
Depositary), addressed to the Depositary at the Corporate Office.



     (c) Any notices given to any record holder of a Receipt hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram or telex or telecopier
confirmed by letter, addressed to such record holder at the address of such
record holder as it appears on the books of the Depositary or, if such holder
shall have filed with the Depositary in a timely manner a written request that
notices intended for such holder be mailed to some other address, at the
address designated in such request.



     (d) Delivery of a notice to the Company or the Depositary sent by mail, or
by telegram or telex or telecopier shall be deemed to be effected at the time
when verbal or written confirmation is received by the person or entity
delivering such notice. The Depositary or the Company may, however, act upon
any notice sent by mail, telegram, telex or telecopier received by it from the
other or from any holder of a Receipt, notwithstanding that such notice shall
not subsequently be confirmed as aforesaid.



     SECTION 7.05. Depositary’s Agents. The Depositary may from time to time
appoint Depositary’s Agents to act in any respect for the Depositary for the
purposes of this Deposit Agreement and may at any time appoint additional
Depositary’s Agents and vary or terminate the appointment of such Depositary’s
Agents. The Depositary will notify the Company of any such action.








Page 18




 









 





     SECTION 7.06. Holders of Receipts Are Parties. The holders of Receipts
from time to time shall be deemed to be parties to this Deposit Agreement and
shall be bound by all of the terms and conditions hereof and of the Receipts by
acceptance of delivery thereof.



     SECTION 7.07. Governing Law. This Deposit Agreement and the Receipts and
all rights hereunder and thereunder provisions hereof and thereof shall be
governed by, and construed in accordance with, the laws of the State of Ohio
without regard to conflicts of laws.



     SECTION 7.08. Inspection of Deposit Agreement. Copies of this Deposit
Agreement shall be filed with the Depositary and the Depositary’s Agents and
shall be open to inspection during business hours at the Corporate Office and
the respective offices of the Depositary’s Agents, if any, by any holder of any
Receipt.



     SECTION 7.09. Headings. The headings of articles and sections in this
Deposit Agreement and in the form of the Receipt set forth in Exhibit A hereto
have been inserted for convenience only and are not to be regarded as a part of
this Deposit Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.



[Remainder of Page Left Blank]









Page 19




 









 








     IN WITNESS WHEREOF, Associated Estates Realty Corporation and National
City Bank have duly executed this Deposit Agreement as of the day and year
first above set forth and all holders of Receipts shall become parties hereto
by and upon acceptance by them of delivery of Receipts issued in accordance
with the terms hereof.



	 	 	 	 	 
	 	 	ASSOCIATED ESTATES REALTY CORPORATION
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	

	

	 	 	 	          Lou Fatica, Vice President, Treasurer and Chief
	

	 	 	 	          Financial Officer
	 
	 	 	 	 
	 	 	NATIONAL CITY BANK
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	

	

	 	 	 	          [Name]
	

	 	 	 	          [Title]





 

Exhibit A

 Form of Receipt







Page 20





 









 





Exhibit A



			
	

	 	

	NUMBER
	 	DEPOSITARY SHARES
	DB	 	 
	

	 	








	 	 	 
	RECEIPT FOR

DEPOSITARY SHARES,

EACH REPRESENTING

1/10 OF A SHARE OF

8.70% CLASS B SERIES II

CUMULATIVE REDEEMABLE

PREFERRED SHARES
	 	THIS CERTIFICATE IS TRANSFERABLE

IN CLEVELAND, OH AND NEW YORK, NY

CUSIP 045604 40 2







ASSOCIATED ESTATES REALTY CORPORATION




(AN OHIO CORPORATION)




National City Bank, as depositary (the “Depositary”), hereby certifies that




	 	 	 
	is the registered owner of
	 	DEPOSITARY SHARES







     (“Depositary Shares”), each Depositary Share representing 1/10 of one
share of 8.70% Class B Series II Cumulative Redeemable Preferred Shares,
without par value (“the Shares”), of Associated Estates Realty Corporation, a
corporation duly organized and existing under the laws of the State of Ohio
(“the Company”), on deposit with the Depositary, subject to the terms and
entitled to the benefits of the Deposit Agreement dated as of December 10, 2004
(“the Deposit Agreement”), among the Company, the Depositary and the holders
from time to time of Receipts for Depositary Shares. By accepting this
Receipt, the holder hereof becomes a party to and agrees to be bound by all the
terms and conditions of the Deposit Agreement. This Receipt shall not be valid
or obligatory for any purpose or entitled to any benefits under the Deposit
Agreement unless it shall have been executed by the Depositary by the manual or
facsimile signature of a duly authorized officer or, if a Registrar in respect
of the Receipts (other than the Depositary) shall have been appointed, by the
manual signature of a duly authorized officer of such Registrar.



      



			
	Dated:
	 	NATIONAL CITY BANK, DEPOSITARY







BY




AUTHORIZED SIGNATURE


 









 




Associated Estates Realty Corporation



     The Depositary Shares evidenced by this Depositary Receipt are subject to
restrictions on ownership and transfer for the purpose of preserving the
Corporation’s status as a Real Estate Investment Trust under the Internal
Revenue Code of 1986, as amended. Subject to the provisions of the
Corporation’s Second Amended and Restated Articles of Incorporation, as
amended, no Person may own, Beneficially Own or Constructively Own Depositary
Shares representing Preferred Shares in excess of 9.8% of the outstanding
Preferred Shares of the Company. Any Person who attempts to own, Beneficially
Own or Constructively Own Depositary Shares representing Preferred Shares in
excess of the above limitations must immediately notify the Corporation. All
capitalized terms in this legend have the meanings defined in the Corporation’s
Second Amended and Restated Articles of Incorporation, as amended, a copy of
which will be sent without charge to each shareholder who so requests. If the
restrictions on ownership are violated, the Preferred Shares represented by the
Depositary Shares evidenced by this Depositary Receipt will be subject to
repurchase by the Corporation on the terms and conditions set forth in the
Corporation’s Second Amended and Restated Articles of Incorporation, as
amended.




     ASSOCIATED ESTATES REALTY CORPORATION WILL FURNISH WITHOUT CHARGE TO EACH
REGISTERED HOLDER OF RECEIPTS WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT
AND A COPY OF THE SECOND AMENDED AND RESTATED ARTICLES OF INCORPORATION, AS
AMENDED, WITH RESPECT TO THE CLASS B SERIES II CUMULATIVE REDEEMABLE PREFERRED
SHARES OF ASSOCIATED ESTATES REALTY CORPORATION, ANY SUCH REQUEST IS TO BE
ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS RECEIPT.








     The following abbreviations when used in the instructions on the face of
this certificate shall be construed as though they were written out in full
according to the applicable laws or regulations:



	 	 	 	 	 	 	 
	TEN COM-
	 	as tenants in common
	 	UNIF GIFT MIN ACT
	 	                     Custodian                     
	TEN ENT-
	 	as tenants by the entireties
	 	 	 	    (Cust)       
                    (Minor)
	JT TEN-
	 	as joint tenant with right	 	 	 	 
	

	 	of survivorship and not as
	 	 	 	under Uniform Gifts to Minors
	

	 	tenants in common
	 	 	 	Act                                         
	

	 	 	 	 	 	(State)                                







Additional abbreviations may also be used though not in the above list.


ASSIGNMENT


     For
value received,
              
               
              
               
   hereby sell(s), assign(s), and transfer(s) unto



	 
	PLEASE INSERT SOCIAL SECURITY OR OTHER

IDENTIFYING NUMBER OF ASSIGNEE

	













(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE,  OF ASSIGNEE)

















Depositary Shares
represented by the within Receipt, and do hereby irrevocably constitute and appoint






Attorney to transfer the said
Depositary shares on the books of the within named Depositary with full power of substitution in the premises.









	 	 	 	 	 
	Dated:                                                 
	 	 
	 	 
	

	 	 
	 	

	

	 	 	 	NOTICE: The Signature to the assignment must correspond with the name as written upon the face of this Certificate in every particular, without alteration or enlargement or any change whatever.