UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES AND EXCHANGE ACT OF 1934
(AMENDMENT NO. 3 )*
First Union Real Estate Equity and Mortgage Investments
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(Name of Issuer)
Shares of Beneficial Interest
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(Title of Class of Securities)
337400-10-5
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(CUSIP Number)
Marc C. Krantz, Kohrman Jackson & Krantz,
1375 East 9th Street, Cleveland, Ohio 44114, 216-736-7204
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(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
March 10, 1995
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with the statement [ ]. (A fee is
not required only if the reporting person: (1) has a previous statement on file
reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be
filed with the Commission. See Rule 13d-1(a) for other parties to whom copies
are to be sent.
* The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
<PAGE>
SCHEDULE 13D
CUSIP NO. 337400-10-5
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Turkey Vulture Fund XIII, Ltd.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ x ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC, OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e)
(b ) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
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NUMBER OF | 7 SOLE VOTING POWER
SHARES | 1,690,500
BENEFICIALLY | 8 SHARED VOTING POWER
OWNED BY |
EACH | 9 SOLE DISPOSITIVE POWER
REPORTING | 1,690,500
PERSON | 10 SHARED DISPOSITIVE POWER
WITH |
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,690,500
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
9.3%
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14 TYPE OF REPORTING PERSON*
OO
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<PAGE>
SCHEDULE 13D
CUSIP NO. 337400-10-5
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Steven A. Calabrese
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP*
(a) [ ]
(b) [ x ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
PF, OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) OR 2(e)
(b) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
United States of America
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NUMBER OF | 7 SOLE VOTING POWER
SHARES | 17,000
BENEFICIALLY | 8 SHARED VOTING POWER
OWNED BY |
EACH | 9 SOLE DISPOSITIVE POWER
REPORTING | 17,000
PERSON | 10 SHARED DISPOSITIVE POWER
WITH |
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
17,000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES*
[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Less than 0.1%
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14 TYPE OF REPORTING PERSON*
IN
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<PAGE>
CUSIP NO. 337400-10-5
This Amendment No. 3 to Schedule 13D Statement is filed on behalf
of TURKEY VULTURE FUND XIII, LTD., an Ohio limited liability company (the
"Fund"), and Steven A. Calabrese, an United States citizen, for the purpose of
reporting (1) the acquisition by the Fund of 725,000 shares of beneficial
interest, $1.00 par value (the "Stock"), of First Union Real Estate Equity and
Mortgage Investments ("First Union"), which together with the other Stock
beneficially owned by the Fund represents approximately 9.3% of the Stock
currently outstanding, and (2) certain other matters.
Item 2. Identity and Background.
As previously reported, on March 1, 1995, the Committee to Unlock
the Value of First Union Real Estate Investments (the "Committee") filed a
Schedule 14A with the Securities and Exchange Commission (the "SEC") containing
soliciting material published, sent or given to First Union shareholders prior
to the furnishing of the written proxy statement. The Committee consists of
Steven A. Calabrese, who is managing partner of R-C Enterprises, a general
partnership, which is a member of the Fund ("R-C Enterprises"); Richard M.
Osborne, the sole managing member of the Fund ("RMO"); and James R. Webb. In
the event that, as of March 1, 1995, RMO and Steven A. Calabrese by serving
together as nominees of the Committee may be deemed to be members of a group
even though there is no agreement that they will vote for each other or James
C. Webb, the following disclosure is provided by Mr. Calabrese:
(a) Mr. Calabrese's full name is Steven A. Calabrese.
(b) The business address of Mr. Calabrese is 1110 Euclid Avenue, Suite
300, Cleveland, Ohio 44115.
(c) The principal business of Mr Calabrese is Executive Vice
President and a Director of Calabrese, Racek and Markos, Inc. ("CRM"), a
commercial-industrial Cleveland, Ohio real estate appraisal company located in
Cleveland, Ohio. He is also an executive officer and a Director of CR
Management, Inc., CRM Construction Services, Inc. and CRM Environmental
Services, Inc., affiliates of CRM, that are located in Cleveland and provide
full-service real estate property management, construction and environmental
services. The address of CRM and its affiliates is 1110 Euclid Avenue, Suite
300, Cleveland, Ohio 44115.
(d) Negative with respect to Mr. Calabrese.
(e) Negative with respect to Mr. Calabrese.
(f) Mr. Calabrese is a citizen of the United States of America.
CUSIP NO. 337400-10-5
Item 3. Source and Amount of Funds or Other Consideration.
The Stock reported herein as having been acquired by the Fund was
acquired for an approximate aggregate purchase price of approximately $5.8
million, $2.9 million of which will be from working capital of the Fund and
$2.9 million of which will be in the form of margin debt from Donaldson, Lufkin
& Jenrette Securities Corporation ("DLJ"). The working capital of the Fund will
be contributed by RMO and the other members of the Fund. The exact proportions
of such contributions have not been finally determined. Interest on the margin
debt is charged, in accordance with DLJ's usual custom, at a rate permitted by
the laws of the State of New York. Interest charged at the close of a charge
period is added to the opening balance for the next charge period unless paid.
DLJ has a lien on the Stock reported herein as having been acquired by the
Fund. A copy of the agreement setting forth the terms of the margin debt is
attached hereto as Exhibit 7.5.
The Stock reported herein as having been acquired by Mr.
Calabrese was acquired for an approximate aggregate purchase price of
approximately $133,000, $82,000 of which was from personal funds and $51,000 of
which was in the form of margin debt from Merrill Lynch, Pierce, Fenner & Smith
Incorporated ("Merrill"). Of the 17,000 shares of Stock purchased by Mr.
Calabrese, the 13,200 shares of Stock purchased on January 17, 1995 were
purchased by Mr. Calabrese and his wife and subject to a margin agreement with
Merrill. The $51,000 margin debt was incurred in the transactions regarding
said 13,200 shares. On or about March 9, 1995, said 13,200 shares were
transferred by Mr. Calabrese to R-C Enterprises subject to a margin agreement
between R-C Enterprises and Merrill. Pursuant to such agreement, interest on
the margin debt is charged, in accordance with Merrill's usual custom, at a
rate permitted by the laws of the State of New York. The interest charge made
at the close of a charge period is, unless paid, added to the opening balance
for the next charge period, and interest is charged upon such opening balance,
including all interest so added. Merrill has a lien on the Stock reported
herein as having been acquired by Mr. Calabrese. A copy of the agreement
setting forth the terms of the margin debt of R-C Enterprises is attached as
Exhibit 7.6 hereto.
Item 4. Purpose of Transaction.
As previously reported, on March 1, 1995, the Committee to
Unlock the Value of First Union Real Estate Investments (the "Committee"),
which consists of RMO, James R. Webb and Mr. Calabrese, filed a Schedule 14A
with the Securities and Exchange Commission (the "SEC") containing soliciting
material published, sent or given to First Union shareholders prior to the
furnishing of the written proxy statement. A copy of the soliciting material is
attached as Exhibit 7.4 to Amendment No. 2 to the Schedule 13D Statement filed
by the Fund on March 2, 1995. On March 3, 1995, the Committee filed a
preliminary proxy statement on Schedule 14A with the SEC, and on March 9, 1995,
the Committee filed an amendment to the preliminary proxy statement with the
SEC.
<PAGE>
CUSIP No. 337400-10-5
The 725,000 shares of Stock reported herein as having been
acquired by the Fund were acquired with voting and proxy rights that entitle
the Fund to vote such shares of Stock at the April 11, 1995 annual meeting of
the beneficiaries of First Union. Such shares may be voted by the Fund in the
election for trustees of First Union. A copy of each of the agreements granting
such rights is attached as Exhibits 7.7 and 7.8 hereto, respectively.
Item 5. Interest in Securities of the Issuer.
As previously reported, RMO, as sole managing member of the
Fund, may be deemed to beneficially own the shares of Stock owned directly by
the Fund, and under Section 13d(3), RMO and the Fund may be deemed members of a
group. RMO and the Fund disclaim that they are members of a group, and nothing
in this Amendment No. 3 to Schedule 13D Statement shall be deemed an admission
that they are members of a group. In addition, RMO, the Fund and Mr. Calabrese
disclaim that they or any of them are members of a group with the members of
the Fund, and nothing in this Amendment No. 3 to Schedule 13D Statement shall
be deemed an admission that they or any of them are members of a group. The
information reported herein by Mr. Calabrese is made solely in the event that,
as of March 1, 1995, RMO and Steven A. Calabrese by serving together as
nominees of the Committee may be deemed to be members of a group even though
there is no agreement that they will vote for each other or James C. Webb.
(a) According to the most recently available filing with the
SEC by First Union, there are 18,262,725 shares of the Stock outstanding. The
Fund beneficially owns 1,690,500 shares of Stock, or approximately 9.3% of the
outstanding Stock. Mr. Calabrese beneficially owns 17,000 shares of Stock, or
less than 0.1% of the outstanding Stock.
(b) The Fund, and RMO as sole managing member thereof, has
sole power to vote, or to direct the voting of, and the sole power to dispose
or to direct the disposition of, the 1,690,500 shares of Stock owned by the
Fund. Mr. Calabrese has sole power to vote, or to direct the voting of, and the
sole power to dispose or to direct the disposition of, the 17,000 shares of
Stock owned by him.
(c) During the past 60 days and in addition to the
transactions reported on the Schedule 13D Statement filed by the Fund on January
17, 1995, Amendment No. 1 to the Schedule 13D Statement filed by the Fund on
February 13, 1995 and Amendment No. 2 to the Schedule 13D Statement filed by the
Fund on March 2, 1995, the Fund has purchased the Stock in open market
transactions as set forth below:
Date Number of Shares Approximate Per Share Price
--------------- ---------------- ---------------------------
March 10, 1995 725,000 $8.00
<PAGE>
CUSIP No. 337400-10-5
Although the March 10, 1995 transactions took place on the open market, the
Fund believes that 287,191 shares of Stock were sold by Mees Pierson Global
Service, N.V., as custodian, and the other 437,809 shares of Stock were sold by
Kas Depository Trust Company, as custodian. Neither RMO nor the Fund has
knowledge of the former beneficial owners of said 725,000 shares of Stock.
During the past 60 days Mr. Calabrese has purchased the Stock in
open market transactions as set forth below. The Stock purchased on January 17,
1995, were purchased by Mr. Calabrese and his wife, and transferred by Mr.
Calabrese to R-C Enterprises on or about March 9, 1995.
Date Number of Shares Approximate Per Share Price
- ------------------- ---------------- ---------------------------
January 17, 1995 13,200 $7.50
January 19, 1995 3,800 $7.63
Item 6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer.
The 725,000 shares of Stock reported herein as having been
acquired by the Fund were acquired with voting and proxy rights that entitle
the Fund to vote such shares of Stock at the April 11, 1995 annual meeting of
the beneficiaries of First Union. Such shares may be voted by the Fund in the
election for trustees of First Union. One agreement, with respect to 287,191
shares of Stock is between the Fund and Mees Pierson Global Service, N.V., and
the other, with respect to 437,809 shares of Stock, is between the Fund and Kas
Depository Trust Company. Copies of the agreements granting such rights are
attached as Exhibits 7.7 and 7.8 hereto, respectively.
Item 7. Material to be Filed as Exhibits.
Exhibit 7.5 Customer Agreement (DLJ)
Exhibit 7.6 Working Capital Management
Account II Agreement (Merrill)
Exhibit 7.7 Agreement, Proxy and Limited Power of
Attorney, dated March 10, 1995, between the
Fund and Mees Pierson Global Service, N.V.
Exhibit 7.8 Agreement, Proxy and Limited Power of
Attorney, dated March 10, 1995, between the
Fund and Kas Depository Trust Company
<PAGE>
CUSIP No. 337400-10-5
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
TURKEY VULTURE FUND XIII, LTD.
Dated: March 13, 1995 /s/ Richard M. Osborne
-----------------------
Richard M. Osborne
Managing Member
<PAGE>
CUSIP No. 337400-10-5
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: March 13, 1995 /s/ Steven A. Calabrese
------------------------
Steven A. Calabrese
EXHIBIT INDEX
Exhibit 7.5 Customer Agreement (DLJ)
Exhibit 7.6 Working Capital Management
Account II Agreement (Merrill)
Exhibit 7.7 Agreement, Proxy and
Limited Power of Attorney, dated
March 10, 1995, between the Fund
and Mees Pierson Global Service,
N.V.
Exhibit 7.8 Agreement, Proxy and Limited Power of
Attorney, dated March 10, 1995, between the
Fund and Kas Depository Trust Company
<PAGE>
EXHIBIT 7.5
DONALDSON, LUFKIN & JENRETTE
Securities Corporation
140 Broadway
New York, New York 10005
CUSTOMER AGREEMENT
In consideration of your accepting and carrying for the undersigned
one or more accounts, the undersigned hereby consents and agrees that:
APPLICABLE RULES AND REGULATIONS
1. All transactions for the undersigned shall be subject to the constitution,
rules, regulations, customs and usages of the exchange or market and its
clearing house, if any, where executed by you or your agents, including your
subsidiaries and affiliates.
DEFINITION
2. For purposes of this agreement "securities, commodities and other property,"
as used herein shall include, but not be limited to money, securities and
commodities of every kind and nature and all contracts and options relating
thereto, whether for present or future delivery.
LIEN
3. All securities, commodities and other property now or hereafter held,
carried or maintained by you in your possession and control for any purpose, in
or for, any of the accounts of the undersigned, now or hereafter opened,
including accounts in which the undersigned may have an interest, shall be
subject to a lien for the discharge of all the indebtedness and other
obligations of the undersigned to you, and are to be held by you as security
for the payment of any liability or indebtedness of the undersigned to you in
any of said accounts. You shall have the right to transfer securities,
commodities and other property so held by you from or to any other of the
accounts of the undersigned whenever in your judgment you consider such a
transfer necessary for your protection. In enforcing your lien, you shall have
the discretion to determine which securities and property are to be sold and
which contracts are to be closed.
LIQUIDATION
4. You shall have the right, in accordance with your general policies regarding
your margin maintenance requirements, as such may be modified, amended or
supplemented from time to time, or if, in your discretion you consider it
necessary for your protection to require additional collateral at an earlier or
later point in time than called for by said general policies, or in the event
that a petition in bankruptcy, or for appointment of a receiver is filed by or
against the undersigned, or an attachment is levied against the accounts of the
undersigned, or in the event of the death of the undersigned, to sell any or
all securities, commodities and other property in the accounts of the
undersigned with you, whether carried individually or jointly with others, to
buy any or all securities, commodities and other property which may be short in
such accounts, to cancel any open orders and to close any or all outstanding
contracts, all without demand for margin or additional margin, notice of sale
or purchase or other notice or advertisement. Any such sales or purchases may
be made at your discretion on any exchange or other market where such business
is usually transacted, or at public auction or private sale, and you may be the
purchasers for your own account, it being understood that a prior demand, or
call, or prior notice of the time and place of such sale or purchase shall not
be considered a waiver of your right to sell or buy without demand or notice as
herein provided.
PAYMENT OF INDEBTEDNESS UPON DEMAND
5. The undersigned shall at all times be liable for the payment upon demand of
any debit balance or other obligations owing in any of the accounts of the
undersigned with you and, the undersigned shall be liable to you for any
deficiency remaining in any such accounts in the event of the liquidation
thereof, in whole or in part, by you or by the undersigned; and, the
undersigned shall make payment of such obligations and indebtedness upon
demand.
LIABILITY FOR COSTS OF COLLECTION
6. The reasonable costs and expenses of collection of the debit balance and any
unpaid deficiency in the accounts of the undersigned with you, including, but
not limited to, attorney's fees, incurred and payable or paid by you shall be
payable to you by the undersigned.
PLEDGE OF SECURITIES, COMMODITIES AND OTHER PROPERTY
7. All securities, commodities and other property now or thereafter held,
carried or maintained by you in your possession in any of the accounts of the
undersigned may be pledged and repledged by you from time to time, without
notice to the undersigned, either separately or in common with other such
securities, commodities and other property for any amount due in the accounts
of the undersigned, or for any greater amount, and you may do so without
retaining to your possession or control for delivery a like amount of similar
securities, commodities or other property.
MARGIN REQUIREMENTS, CREDIT CHARGES AND CREDIT INVESTIGATION
8. The undersigned will at all times maintain such securities, commodities and
other property in the accounts of the undersigned for margin purposes as you
shall require from time to time and the monthly debit balances or adjusted
balances in the accounts of the undersigned with you shall be charged, in
accordance with your usual custom, with interest at a rate permitted by the
laws of
<PAGE>
the State of New York. It is understood that the interest charge made to the
undersigned's account at the close of a charge period will be added to the
opening balance for the next charge period unless paid.
You may exchange credit information about the undersigned with others.
You may request a credit report on the undersigned and upon request, you will
state the name and address of the consumer reporting agency that furnished it.
If you extend, update or renew the undersigned's credit, you may request a new
credit report without telling the undersigned.
PRESUMPTION OF RECEIPT OF COMMUNICATIONS
9. Communications may be sent to the undersigned at the address of the
undersigned or at such other address as the undersigned may hereafter give you
in writing, and all communications so sent, whether by mail, telegraph,
messenger or otherwise, shall be deemed given to the undersigned personally,
whether actually received or not.
NON-INVESTMENT ADVICE
10. The undersigned acknowledges that you will not provide the undersigned with
any legal, tax or accounting advice, that your employees are not authorized to
give any such advice and that the undersigned will not solicit or rely upon any
such advice from you or your employees whether in connection with transactions
in or for any of the accounts of the undersigned or otherwise. In making legal,
tax or accounting decisions with respect to transactions in or for the accounts
of the undersigned or any other matter, the undersigned will consult with and
rely upon its own advisors and not you, and you shall have no liability
therefor.
SCOPE AND TRANSFERABILITY
11. This agreement shall cover individually and collectively all accounts which
the undersigned may open or reopen with you, and shall inure to the benefit of
your successors whether by merger, consolidation or otherwise and assigns, and
you may transfer the accounts of the undersigned to your successors and
assigns, and this agreement shall be binding upon the heirs, executors,
administrators, successors and assigns of the undersigned.
EXTRAORDINARY EVENTS
12. You shall not be liable for loss caused directly or indirectly by
government restrictions, exchange or market rulings, suspension of trading,
war, strikes or other conditions beyond your control.
REPRESENTATIONS AS TO CAPACITY TO ENTER INTO AGREEMENT
13. The undersigned, if an individual represents that the undersigned is of
full age, that unless otherwise disclosed to you in writing, the undersigned is
not an employee of any exchange, or of any corporation of which any exchange
owns a majority of the capital stock, or of a member firm or member corporation
registered on any exchange or of a bank, trust company, insurance company or of
any corporations, firm or individual engaged in the business of dealing either
as a broker or as principal in securities, bills of exchange, acceptances or
other forms of commercial paper. The undersigned further represents that no one
except the undersigned has an interest in the account or accounts of the
undersigned with you.
JOINT AND SEVERAL LIABILITY
14. If the undersigned shall consist of more than one individual, their
obligations under this agreement shall be joint and several. The undersigned
have executed the Joint Account Agreement and made the election required
therein.
OPTION TRANSACTIONS
15. If at any time the undersigned shall enter into any transaction for the
purchase or resale of an option contract, the undersigned hereby agrees to
abide by the rules of any national securities association, registered
securities exchange or clearing organization applicable to the trading of
option contracts and, acting alone or in concert, will not violate the position
or exercise limitation rules of any such association or exchange or of the
Options Clearing Corporation or other clearing organization.
SEPARABILITY
16. If any provision or condition of this agreement shall be held to be invalid
or unenforceable by any court, or regulatory or self-regulatory agency or body,
such invalidity or unenforceability shall attach only to such provision or
condition. The validity of the remaining provisions and conditions shall not be
affected thereby and this agreement shall be carried out as if any such invalid
or unenforceable provision or condition were not contained herein.
HEADINGS ARE DESCRIPTIVE
17. The heading of each provision hereof is for descriptive purposes only and
shall not be deemed to modify or qualify any of the rights or obligations set
forth in each such provision.
ARBITRATION DISCLOSURES
18. * ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
* THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING
THE RIGHT TO JURY TRIAL.
* PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND DIFFERENT
FROM COURT PROCEEDINGS.
* THE ARBITRATORS' AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR
LEGAL REASONING AND ANY PARTY'S RIGHT TO APPEAL OR TO SEEK MODIFICATION OF
RULINGS BY THE ARBITRATORS IS STRICTLY LIMITED.
* THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF
ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
AGREEMENT TO ARBITRATE CONTROVERSIES
19. IT IS AGREED THAT ANY CONTROVERSY BETWEEN US ARISING OUT OF YOUR BUSINESS
OR THIS AGREEMENT, SHALL BE SUBMITTED TO ARBITRATION CONDUCTED BEFORE THE NEW
YORK STOCK EXCHANGE, INC. OR ANY OTHER NATIONAL SECURITIES EXCHANGE ON WHICH A
TRANSACTION GIVING RISE TO THE CLAIM TOOK PLACE (AND ONLY BEFORE SUCH EXCHANGE)
OR THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC., AS THE UNDERSIGNED MAY
ELECT AND IN ACCORDANCE WITH THE RULES OBTAINING OF THE SELECTED ORGANIZATION,
ARBITRATION MUST BE COMMENCED BY SERVICE UPON THE OTHER PARTY OF A WRITTEN
DEMAND FOR ARBITRATION OR A WRITTEN NOTICE OF INTENTION TO ARBITRATE, THEREIN
ELECTING THE ARBITRATION TRIBUNAL. IN THE EVENT THE UNDERSIGNED DOES NOT MAKE
SUCH ELECTION WITHIN FIVE (5) DAYS OF SUCH DEMAND OR NOTICE, THEN THE
UNDERSIGNED AUTHORIZES YOU TO DO SO ON BEHALF OF THE UNDERSIGNED.
NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO
ARBITRATION, NOR SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION AGREEMENT AGAINST
ANY PERSON WHO HAS INITIATED IN COURT A PUTATIVE CLASS ACTION; OR WHO IS A
MEMBER OF A PUTATIVE CLASS WHO HAS NOT OPTED OUT OF THE CLASS WITH RESPECT TO
ANY CLAIMS ENCOMPASSED BY THE PUTATIVE CLASS ACTION UNTIL: (i) THE CLASS
CERTIFICATION IS DENIED; OR (ii) THE CLASS IS DECERTIFIED; OR (iii) THE
CUSTOMER IS EXCLUDED FROM THE CLASS BY THE COURT. SUCH FORBEARANCE TO ENFORCE
AN AGREEMENT TO ARBITRATE SHALL NOT CONSTITUTE A WAIVER OF ANY RIGHTS UNDER
THIS AGREEMENT EXCEPT TO THE EXTENT STATED HEREIN.
THE LAWS OF THE STATE OF NEW YORK GOVERN
20. THIS AGREEMENT AND ITS ENFORCEMENT SHALL BE GOVERNED BY THE LAWS OF
THE STATE OF NEW YORK.
LOAN CONSENT
21. BY SIGNING THIS AGREEMENT, THE UNDERSIGNED ACKNOWLEDGES THAT SECURITIES NOT
FULLY PAID FOR BY THE UNDERSIGNED MAY BE LOANED TO YOU OR LOANED OUT TO OTHERS.
THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE IN PARAGRAPH 19
ON THIS PAGE. I ACKNOWLEDGE RECEIVING A COPY OF THIS AGREEMENT.
SIGNATURES
(If a Corporation, Partnership or Other Entity) (If Individuals)
Turkey Vulture Fund XIII, Ltd.
- ----------------------------------------------- ------------------------------
(Name of Entity)
------------------------------
(Second Party, If Joint Account)
By /s/ Richard M. Osborne
------------------------------
Title Managing Member
------------------------------
SEAL
DATED _______________ ACCOUNT NO.___________
<PAGE>
EXHIBIT 7.6
WORKING CAPITAL MANAGEMENT(SM) ACCOUNT II AGREEMENT
This Agreement ("WCMA(R) II Agreement") sets forth the terms and
conditions governing the Working Capital Management Account II ("WCMA II")
financial service (the "WCMA II Program") to which the undersigned customer
(hereinafter the "Customer") is subscribing with MERRILL LYNCH, PIERCE, FENNER
& SMITH INCORPORATED ("MLPF&S"). "MLB&T" means Merrill Lynch Bank & Trust Co.
"Bank One" means Bank One, Columbus, N.A. "Chase" means The Chase Manhattan
Bank, N.A. MLB&T, Bank One and Chase are referred to collectively as "Banks."
It is understood that before the WCMA II Program, as hereinafter described, is
provided, it will be necessary: (a) for MLPF&S to open a conventional [ ] Cash
Securities Account or [X] Margin Securities Account (please check one) for the
Customer (the "Securities Account"). A Merrill Lynch WCMA II Margin Account is
known as the WCMA II Investor CreditLine(SM) Service; and (b) for a bank or
banks designated by MLPF&S (the "Bank") to open a zero balance account (the
"WCMA II Check Account") in connection with which the Customer may request and
receive checks ("WCMA II Checks") to be used in conjunction with the WCMA II
Program.
For purposes of this WCMA II Agreement, the Customer agrees that "securities
and other property" shall include, but not be limited to, money, securities,
financial instruments and commodities of every kind and nature and all
contracts and options relating thereto, whether for present or future delivery.
The Customer hereby acknowledges that the WCMA II Program will operate
substantially as follows, and consents and agrees to the following terms and
conditions:
1. Description of the WCMA II Program
The WCMA II Program is an integrated financial service linking three
components: the Securities Account, which, if applicable, also permits the
Customer to obtain loans based on the current margin loan value of securities
in the Securities Account, no-load money market mutual funds (the "Money
Funds") and the WCMA II Check Account.
(a) Securities Account. The Securities Account may be used to purchase and sell
securities, including options, on a fully paid basis. If the Securities Account
includes the WCMA II Investor CreditLine service, it may also be utilized to
purchase and sell securities on credit. The Customer agrees to pay normal
brokerage fees for securities transactions in the Securities Account.
(b) CMA Money Funds. The Customer acknowledges receipt of copies of the
Prospectuses of the CMA no-load money market mutual funds (the "CMA Funds")
which contains a more complete description of the CMA Money Funds, and of the
"Merrill Lynch Cash Management Account(R) Program Description for the Working
Capital Management(SM) Account," which documents, as amended from time to time,
are incorporated herein by reference and made a part hereof.
(c) Money Fund Investments/Deposits. Available free credit balances (i.e., any
cash that may be transferred out of the Securities Account without giving rise
to interest charges) will be automatically invested in the Money Fund
designated by the Customer as its "Primary Money Fund" on each Business Day (as
defined below), except as otherwise provided in this WCMA II Agreement with
respect to the application of funds to repay advances made, if applicable, from
the WCMA II Investor CreditLine, or pay other charges. (The money may be
referred to in some documents provided to the Customer as the "Primary Money
Account.") Investments in Money Fund shares will be made at their current net
asset value under the circumstances described in the Prospectuses of the CMA
Money Funds under "Purchase and Redemption of Shares."
Free credit balances will be invested in shares of the Primary Money Fund in
the following manner: (i) with respect to (x) the proceeds of sales of
securities, (y) deposits made by wire transfer, or (z) dividend or interest
receipts on the next Business Day following receipt; and (ii) with respect to
deposits from any other source, on the second Business Day following receipt,
unless the deposit is made after the cut-off time for such deposits, in which
case, on the third Business Day following receipt.
The Customer agrees that its Money Fund shares, may be automatically redeemed
to satisfy obligations arising in the Customer's Securities Account, including
amounts necessary to satisfy minimum equity requirements.
(d) Securities Transactions. The Customer agrees that under no circumstances
shall the WCMA II Check Account be used to purchase shares of the Money Funds
or to effect transactions in the Securities Account or other MLPF&S accounts.
2. WCMA II Availability and Payment Procedures.
For purposes of this WCMA II Agreement, the total of: (i) any available free
credit balances in the Securities Account; (ii) the available redemption value
of shares of the Customer's Money Funds subject to any delays in availability
for redemption of such shares as previously described; and (iii) if applicable,
the available margin loan value of the Customer's WCMA II Investor CreditLine
service constitutes the Customer's "WCMA II Availability." (WCMA II
Availability may be referred to in some documents provided to the Customer as
"Purchasing Power.") The Customer's WCMA II Availability is used to determine
the total amount available to the Customer for the payment of WCMA II Checks
and other transfers of funds. MLPF&S may delay increasing WCMA II Availability
for up to 10 business days after the receipt of checks or other negotiable
instruments used to reduce any applicable margin loan balance of the Customer's
WCMA II Investor CreditLine service account.
(a) WCMA II Check Account. The Customer authorizes MLPF&S to open a WCMA II
Check Account for the Customer with the Bank and agrees the WCMA II Checks
shall be used solely in conjunction with the WCMA II Program and subject to the
terms and conditions of this WCMA II Agreement. The representatives of the
Customer designated in WCMA II Check Imprint Instructions (the "Instructions")
are authorized to write WCMA II Checks on the Customer's WCMA II Check Account.
The Customer shall, on a continuing basis, be responsible for the care and
safekeeping of WCMA II Checks provided by the Bank and shall permit only those
persons authorized in the Instructions (which persons are deemed to be the
Customer's agents and attorneys-in-fact) to prepare and issue WCMA II Checks on
its behalf or to have access to unissued WCMA II Checks. The Customer shall be
responsible for any and all losses and damages, direct, indirect or
consequential, that arise from or are attributable to the breach of the
Customer's undertaking to safeguard its WCMA II Checks. The Customer agrees to
notify MLPF&S immediately if it believes or has reason to believe that the
Customer's WCMA II Checks have been or may be issued by an unauthorized person.
If the Customer requests that WCMA II Checks be printed with two or more
signature lines for counter signature purposes, the Customer agrees that the
requirement for more than one signature is for the Customer's internal purposes
only, and neither MLPF&S nor the Bank shall have any responsibility or
liability for the payment of any check without a counter signature or with an
unauthorized counter signature.
(b) Transactions Exceeding WCMA II Availability. If a transaction exceeds the
Customer's WCMA II Availability, Chase or any successor to or assign of Chase
may accept such transaction as an overdraft and advance funds to MLPF&S or the
Banks in the amount exceeding the Customer's WCMA II Availability. Any
overdraft, together with any finance charges ["Finance Charge(s)"] incurred, is
immediately due and payable to Chase.
In each overdraft statement cycle, Finance Charges are figured by applying a
daily periodic rate to the Average Daily Balance of overdrafts and by
multiplying the resulting figure by the number of days in that statement cycle.
A daily overdraft balance is calculated each day by starting with the beginning
balance of amounts owed, adding any new overdrafts, and subtracting any
payments or credits received that day and unpaid Finance Charges. The Average
Daily Balance is then calculated by adding all of the daily balances of
overdrafts in that statement cycle and dividing the total by the number of days
in the overdraft statement cycle. Finance Charges accrue from the date Chase
accepts an overdraft until the date payment is made.
The Average Daily Balance is multiplied by a Daily Periodic Rate of .049315%
(18% Annual Percentage Rate), unless a Customer's address of record is in
Colorado, North Carolina, Puerto Rico, or Iowa. If such address is in Colorado,
Chase will multiply the Average Daily Balance by a Daily Periodic Rate of
.032877% (12% Annual Percentage Rate). If such address is in North Carolina,
Chase will multiply the Average Daily Balance by a Daily Periodic Rate of
.043836% (16% Annual Percentage Rate).
If such an address is in Puerto Rico, Chase will multiply the Average Daily
Balance by a Daily Periodic Rate of .041096% (15% Annual Percentage Rate).
If such address in Iowa, the Daily Periodic Rate that will be applied on
overdrafts may vary since it will be determined by applying a variable interest
rate which is computed as follows: The interest rate on overdrafts will be the
monthly average 10-year constant maturity interest rate of United States
government notes and bonds, plus two percentage points. This index may change
monthly. If there is a change in the index in any month, the new Daily Periodic
Rate will be effective on the first day of the following month. However, in any
overdraft statement cycle in which the daily Periodic Rate changes, a client
will be charged the lesser of the two Daily Periodic Rates in effect during
that statement cycle. Based on this index, as of October 1, 1991 Chase would
multiply the Average Daily Balance by a Daily Periodic Rate of .027397% (10.00%
Annual Percentage Rate). An increase or decrease in the Daily Periodic Rate to
be paid on overdrafts will result in an increase or decrease in the amount owed
Chase for overdrafts.
If a Customer's address of record changes to Colorado, North Carolina, Puerto
Rico, or Iowa, then, without prior notice, if a new overdraft is incurred after
the address changes on our records, Chase will apply the Daily Periodic Rate
described above that is applicable in the state moved to, to the entire
outstanding balance and to any new overdrafts incurred. If a Customer's address
of record is in Colorado, North Carolina, Puerto Rico, or Iowa and then it
changes to any state other than one of those states or Puerto Rico, then
without prior notice, if a new overdraft is incurred after the address changes
on our records, Chase will apply the Daily Periodic Rate of .049315% (18%
Annual Percentage Rate) to the entire outstanding balance and to any new
overdrafts incurred.
(c) Periodic Overdraft Billing Statement. The Customer will receive a periodic
overdraft billing statement from Chase which will detail among other
disclosures any overdraft(s) plus Finance Charges on the overdraft(s), payments
and credits and the balance due.
(d) Payment Procedure. MLPF&S will promptly, upon receipt or notice, make
payment to the Bank for any WCMA II Check transactions, or initiate other
transfers on the Customer's behalf to the extent of the Customer's WCMA II
Availability. Payments, including without limitation any fees payable in
connection with the WCMA II Program, will be made in the following order:
first, from any available free credit balances in the Securities Account;
second, from the proceeds of redemption of shares of the Customer's Money
Funds; and third, from any applicable margin loans up to the available margin
loan value of the Customer's WCMA II Investor CreditLine service account.
3. Termination of the Customer's Subscription to the WCMA II Program.
MLPF&S may terminate the Customer's subscription to the WCMA II Program at any
time in its sole discretion. The Customer may terminate its subscription to the
WCMA II Program at any time upon notice to MLPF&S. Without limiting MLPF&S's
rights in this regard, the deposit of checks followed by the prompt withdrawal
of funds, for the primary purposes of earning dividends on Money Fund shares
from the time MLPF&S advances funds to the Money Funds for investment on the
Customer's behalf until checks so deposited are collected, is inconsistent with
the WCMA II Program. MLPF&S may terminate the Customer's subscription to the
WCMA II Program if, in its sole judgment, it appears to MLPF&S that the
Customer is so acting.
Should the Customer's subscription to the WCMA II Program be terminated, MLPF&S
may and is hereby authorized to redeem all shares of the Money Funds owned by
the Customer and to direct the liquidation of any securities or commodities,
including futures contracts and options thereon or relating thereto, held by
MLPF&S on behalf of the Customer, and apply the proceeds thereof to repay any
amount payable by the Customer pursuant to this WCMA II Agreement. MLPF&S shall
have the right to set off any amount owing under this WCMA II Agreement against
any monies due the Customer and any monies held in an account of the Customer
with MLPF&S or any of its affiliates.
All rights and remedies of MLPF&S existing at termination of the Customer's
subscription to the WCMA II Program shall survive and shall be in addition to
all other rights and remedies available at law or in equity.
Upon termination of the Customer's subscription to the WCMA II Program, the
Customer shall promptly return all unused WCMA II Checks to MLPF&S. Failure to
return such WCMA II Checks to MLPF&S may result in a delay in complying with
the Customer's instructions as to the disposition of the proceeds from the
redemption of the Customer's Money Fund shares and its Securities Account
assets.
4. Authorization with Respect to Credit Information.
The Customer hereby authorizes MLPF&S and the Banks to obtain and disclose any
and all financial and other information relating to the Customer and to each
other and to any affiliates of MLPF&S.
5. Periodic Statements and Notices.
The Customer will receive a statement on a monthly basis from MLPF&S on its own
behalf and as agent for the Bank and the Money Funds, which statement will
describe transactions relating to the Customer's participation in the WCMA II
Program. In no event shall MLPF&S, the Bank, or the Money Funds be responsible
for or be bound by clerical or any other errors in any statement that is
rendered. The statement of account, as stated, shall be deemed conclusive as to
the Customer if not objected to within ten (10) days of mailing. It is
therefore understood that the Customer should carefully and promptly review
each monthly statement.
Any notices or other communications by MLPF&S to the Customer's address listed
herein or to such other address as may be designated from time to time in
writing by the Customer, and all notices and other communications so sent by
whatever means, shall be deemed to have been given personally to the Customer,
upon such sending, whether or not actually received.
6. Limitations on Liability.
MLPF&S, the Bank and any third party providing services pursuant to this WCMA
II Agreement make no representations, warranties or guarantees, express or
implied, with respect to the WCMA II Program or any services provided in
accordance therewith, except as otherwise set forth in this WCMA II Agreement.
In no event shall MLPF&S, the bank, or any third party providing services
pursuant to this WCMA II Agreement be liable for lost profits or any special,
consequential, or exemplary damages of any nature resulting from the conduct of
the WCMA II Program, even if MLPF&S, the Bank, or any such third party has been
notified of the possibility of such losses or damages.
7. Extraordinary Events.
MLPF&S shall have no obligation to provide services in connection with the WCMA
II Program when and to the extent that MLPF&S or any party that provides
services or facilities to MLPF&S in connection with the WCMA II Program is
prevented from doing so by government restrictions, exchange or market rulings,
suspension of trading, electronic or telephone failures, labor dispute, war, or
any other cause not within MLPF&S's or any such other party's reasonable
control.
8. Miscellaneous
(a) Separability. If any provisions of this WCMA II Agreements are held to be
invalid, illegal, void or unenforceable by reason of any law, rule,
administrative order, or judicial decision, all other provisions of this WCMA
II Agreement shall nevertheless remain in full force and effect.
(b) Joint and Several Liability. If there is more than one Customer signing
this WCMA II Agreement, their obligations under this WCMA II Agreement shall be
joint and several.
(c) Costs of Collection. To the extent permitted by applicable law, the
Customer agrees to pay the reasonable costs and expenses of collection,
including attorney's fees, for any unpaid balance in the Securities Account or
other amounts owed by the Customer to MLPF&S or the Bank pursuant to this WCMA
II Agreement.
(d) Business Day. For purposes of this WCMA II Agreement, "Business Day"
means any day on which MLPF&S is open to the public for carrying on
substantially all its business functions.
(e) Captions and Headings. Captions and headings of this WCMA II Agreement are
not part of this WCMA II Agreement and shall not be considered in its
interpretation.
(f) Amendments. The Customer agrees that MLPF&S shall have the right to amend
this WCMA II Agreement, by modifying or rescinding any of its existing
provisions or by adding any new provisions. Any such amendment shall be
effective as of a date to be established by MLPF&S, which shall not be earlier
than thirty (30) days after notice of such amendment is sent to the Customer.
(g) Integration. This WCMA II Agreement, together with all other documents
incorporated therein by reference or required by MLPF&S in connection herewith
constitutes the entire understanding of the parties with respect to the subject
matter hereof and may not be modified or altered except by a writing signed by
the party or parties against which such modification or alteration is sought to
be enforced.
(h) Applicable Rules and Regulations. All transactions in the Securities
Account and all WCMA II Margin transactions shall be subject to the
constitution, rules, regulations, customs and usages of the exchange or market
and its clearing house, if any, on which such transactions are executed by
MLPF&S or its agents, including subsidiaries and affiliates of MLPF&S.
Paragraph 9 below applies only if the Customer requests that the Securities
Account be established with the WCMA II Investor CreditLine service.
9. WCMA II Investor CreditLine Service Account.
The WCMA II Margin Account (which may be referred to in some documents provided
to the Customer as the "WCMA Investor CreditLine Service") permits the Customer
to obtain advances from MLPF&S secured by eligible marginable and exempt
securities.
(a) Margin Requirements and Credit Charges. The Customer will maintain such
securities and other property in the Securities Account for margin purposes as
MLPF&S shall require from time to time; and the monthly debit balance of the
Securities Account shall be charged, in accordance with MLPF&S's usual custom,
with interest at a rate permitted by the laws of the State of New York. It is
understood that the interest charges made to the Customer's Securities Account
at the close of a charge period will, unless paid, be added to the opening
balance for the next charge period and that interest will be charged upon such
opening balance, including all interest so added.
(b) Security Interest. All securities or other property now or hereafter held,
carried or maintained by MLPF&S or by any of its affiliates in MLPF&S's
possession and control, or in the possession and control of any such affiliate,
for any purpose, in or for any account of the Customer, now or hereafter
opened, including any account in which the Customer may have an interest, shall
be subject to a lien for the discharge of all the indebtedness and other
obligations of the Customer to MLPF&S, are to be held by MLPF&S as security for
the payment of any liability or indebtedness of the Customer to MLPF&S in any
of said accounts. MLPF&S shall have the right to transfer securities and other
property so held by MLPF&S from or to any of the accounts of the Customer
whenever in its judgment MLPF&S considers such a transaction necessary for its
protection. In enforcing its lien, MLPF&S shall have the discretion to
determine which securities and property are to be sold and which contracts are
to be closed.
(c) Representations as to Beneficial Ownership and Control. The Customer
represents that with respect to securities against which margin credit is or
may be extended by MLPF&S: (i) the Customer is not the beneficial owner of more
than three percent (3%) of the number of outstanding shares of any class of
equity securities; and (ii) does not control, is not controlled by, and is not
under common control with, the issuer of any such securities. In the event that
any of the foregoing representations is inaccurate or becomes inaccurate, the
Customer will promptly so advise MLPF&S in writing.
(d) Calls for Additional Collateral Liquidation Rights. (i) MLPF&S, in
addition to and not in lieu of any other rights or remedies it may have under
this WCMA II Agreement, shall have the right to require additional collateral:
(A) in accordance with its general policies regarding its margin maintenance
and requirements, as such may be modified, amended or supplemental from time to
time; or
(B) if in its discretion MLPF&S considers it necessary for its protection at an
earlier or later point in time than called for by said general policies; or
(C) in the event that a petition in bankruptcy or for an appointment of a
receiver is filed by or against the Customer; or
(D) if an attachment is levied against the accounts of the Customer; or
(E) in the event of the death or dissolution of the Customer;
(ii) If the Customer does not provide MLPF&S with additional collateral as
MLPF&S may require in accordance with (A) or (B), or should an event described
in (C), (D) or (E) occur (whether or not MLPF&S elects to require additional
collateral), MLPF&S shall have the right:
(A) to sell any or all securities and other property in the accounts of the
Customer with MLPF&S or with any of its affiliates, whether carried
individually or jointly with others;
(B) to buy any or all securities and other property which may be short in
such accounts; and
(C) to cancel any open orders and to close any or all outstanding contracts.
MLPF&S may exercise any or all of its rights under (ii)(A), (B) and (C) without
further demand for additional collateral, or notice of sale or purchase, or
other notice or advertisement. Any such sales or purchases may be made at the
discretion of MLPF&S on any exchange or other market where such business is
usually transacted, or at public auction or private sale and MLPF&S may be the
purchaser for its own account. It is understood that the giving of any prior
demand or call or prior notice of the time and place of such sale or purchase
by MLPF&S shall not be considered a waiver of its right to sell or buy without
any such demand, call or notice as herein provided.
(e) Payment of Indebtedness Upon Demand. The Customer shall at all times be
liable for the payment upon demand of any debit balance or other obligation
owing in any of the accounts of the Customer with MLPF&S and the Customer shall
be liable to MLPF&S for any deficiency remaining in any such accounts in the
event of the liquidation thereof, in whole or in part, by MLPF&S or by the
Customer, and the Customer shall make payment of such obligations upon demand.
(f) Pledge of Securities and Other Property. All securities and other property
now or hereafter held, carried or maintained by MLPF&S in its possession or
control in any of the accounts of the Customer may be pledged and repledged by
MLPF&S from time to time, without notice to the Customer either separately or
in common with other such securities and other property, for any amount due in
the accounts of the Customer; or for any greater amount, and MLPF&S may do so
without retaining in its possession or under its control for delivery a like
amount of similar securities or other property.
(g) Lending Agreement. Within the limitations imposed by applicable laws, rules
and regulations, MLPF&S is hereby authorized to lend itself, as principal or
otherwise, or to others, any securities held by MLPF&S on margin for any
accounts of the Customer as collateral therefore either separately or with
other securities. It is recognized that any losses or other detriments, or
gains or other benefits, arising from any such lending of securities shall not
accrue to the account of the Customer.
10. Representations as to Capacity to Enter Into Agreement.
The Customer represents that no one except the Customer has an interest in the
account or accounts of the Customer with MLPF&S. If a natural person, the
Customer represents that the Customer is of full age, is not an employee of any
exchange, nor of any corporation of which any exchange owns a majority of the
capital stock, nor of a member of any exchange, nor of a member firm or member
corporation registered on an exchange, nor of a bank, trust company, insurance
company or any corporation, firm or individual engaged in the business of
dealing either as broker or as principal in securities, bills of exchange,
acceptances or other forms of commercial paper. If any of the foregoing
representations is inaccurate or becomes inaccurate, the Customer will promptly
so advise in writing.
11. Applicable Laws
This WCMA II Agreement, with respect to all positions of the WCMA II Program,
including margin interest charges, shall be governed by and construed in
accordance with the laws of the State of New York. The terms of the Customer's
Agreement with Chase, including those relating to finance charges, are governed
by Federal and New York law. The terms of the Customer's Agreement with Bank
One are governed by Ohio law.
12. Arbitration of Controversies with MLPF&S
* Arbitration is final and binding on the parties.
* The parties are waiving their right to seek remedies in court,
including the right to jury trial.
* Pre-arbitration discovery is generally more limited than and
different from court proceedings.
* The arbitrators' award is not required to include factual findings
or legal reasoning, and any party's right to appeal or to seek
modification of rulings by the arbitrators is strictly limited.
* The panel of arbitrators will typically include a
minority of arbitrators who were or are affiliated with the
securities industry.
The Customer agrees that all controversies which may arise between the Customer
and MLPF&S, including, but not limited to, those involving any transaction or
the construction, performance, or breach of this or any other agreement between
the Customer and MLPF&S, whether entered into prior, on or subsequent to the
date hereof, shall be determined by arbitration. Any arbitration under this
agreement shall be conducted only before the New York Stock Exchange, Inc., the
American Stock Exchange, Inc., or arbitration facility provided by any other
exchange of which MLPF&S is a member, the National Association of Securities
Dealers, Inc., or the Municipal Securities Rulemaking Board and in accordance
with its arbitration rules then in force. The Customer may elect in the first
instance whether arbitration shall be conducted before the New York Stock
Exchange, Inc., the American Stock Exchange, Inc., other exchanges of which
MLPF&S is a member, the National Association of Securities Dealers, Inc., or
the Municipal Securities Rulemaking Board but if the Customer fails to make
such an election, by registered letter or telegrams, addressed to MLPF&S at the
office where the Customer maintains the account, before the expiration of five
days after receipt of a written request from MLPF&S to make such election, then
MLPF&S may make such election. Judgment upon the award of arbitrators may be
entered in any court, state or federal, having jurisdiction.
BY SIGNING THIS AGREEMENT, THE UNDERSIGNED CUSTOMER CONSENTS AND AGREES TO ALL
OF THE FOREGOING TERMS AND CONDITIONS AND ACKNOWLEDGES (1) THAT, IN ACCORDANCE
WITH PARAGRAPH 12 ON PAGE 6, THE CUSTOMER IS AGREEING IN ADVANCE TO ARBITRATE
ANY CONTROVERSIES WHICH MAY ARISE WITH MLPF&S; (2) THAT, IF THE ACCOUNT IS
BEING ESTABLISHED WITH THE INVESTOR CREDTLINE SERVICE, THEN PURSUANT TO
PARAGRAPH 9(g), CERTAIN OF THE CUSTOMER'S SECURITIES MAY BE LOANED TO MLPF&S OR
LOANED OUT TO OTHERS, AND (3) RECEIPT OF A COPY OF THIS AGREEMENT.
R-C Enterprises
- -------------------------------------------
Name of Business
/s/ Eric M. Calabrese, David S. Calabrese
- -------------------------------------------
Signature
Eric M. Calabrese, David S. Calabrese
- -------------------------------------------
Printed Name
General Partner General Partner
- -------------------------------------------
Title (Examples: Chairman, President,
Vice President, Managing Director, all
General partners, Sole Owner)
Note: If this agreement is with a Partnership,
all general partners must sign this page
(continue below if necessary)
1110 Euclid Ave. #300 Cleveland, OH 44115
- ----------------------------------------------
Address
Partners:
/s/ Steven A. Calabrese
- ------------------------------
/s/ David S. Calabrese
- ------------------------------
/s/ D. J. Calabrese
- ------------------------------
Steven A. Calabrese
- ------------------------------
General Partner
David S. Calabrese
- ------------------------------
Co-trustee AJC Trust
Donna J. Calabrese
- ------------------------------
Co-trustee AJC Trust
Note: [X] Check here if you want your
WCMA II account processed to
request automatic borrowing power
through the WCMA II Investor
CreditLine Service.
Fiscal Year End: 12-93
<PAGE>
EXHIBIT 7.7
March 10, 1995
Richard M. Osborne
Turkey Vulture Fund XIII, Ltd.
7001 Center Street
Mentor, Ohio 44060
Re: AGREEMENT, PROXY AND LIMITED POWER OF ATTORNEY
Dear Mr. Osborne:
In consideration of the purchase by Turkey Vulture Fund XIII, Ltd.
("TVF") of 287,191 shares of beneficial interest, par value $1.00 per share, in
First Union Real Estate Equity and Mortgage Investments (the "Shares"), we
hereby agree as follows:
1. We hereby represent and warrant that, in our capacity as
custodians, we shall use our best efforts to cause the entity
that was the record holder of the Shares on February 10, 1995
(the "Record Holder") to, deliver to TVF, as promptly as
practicable by overnight courier at the address set forth above
and at the sole expense of TVF, any and all proxies and related
materials received by us or the Record Holder from or with
respect to First Union from March 1, 1995 through the later to
occur of July 1, 1995 or the date of the 1995 annual meeting of
shareholders of First Union, or adjournment thereof, to which
such proxies and related materials relate. We agree to advise
the Record Holder and any other (sub)custodian of the Shares
that it has no authority to vote any of the Shares as of the
date set forth above and, at the request of TVF, to use our best
efforts to cause the Record Holder to sign any such proxies as
directed by TVF.
2. We hereby represent and warrant that (i) the Record Holder was a
(sub)custodian of the Shares on February 10, 1995 (the "Record
Date"), (ii) on the Record Date, we were duly authorized to vote
the Shares through the Record Holder, (iii) on the Record Date,
we had the full legal right to vote the Shares through the Record
Holder, and (iv) we are duly authorized, and have the full legal
right, to sign any proxies with respect to the Shares through the
Record Holder and to enter into this agreement.
3. We hereby irrevocably grant to TVF all rights that we have to
vote, and to execute and deliver written consents or otherwise
act with respect to, all of the Shares at the 1995 annual meeting
of shareholders of First Union, or any adjournment thereof, as
fully, to the same extent as we might or could do if we were
present and voting such Shares at such annual meeting.
<PAGE>
4. We hereby irrevocably constitute and appoint Richard M. Osborne,
with full power of substitution and re-substitution, as our true
and lawful agent, proxy and attorney-in-fact, and empower and
authorize such attorney, in our name, place and stead, to
execute, deliver and do any and all acts necessary or desirable
in connection with any and all proxies received and delivered by
us to TVF hereunder with respect to matters to be voted on by the
stockholders of First Union at such annual meeting.
5. The foregoing is conditioned upon the agreement of TVF to
indemnify and hold us, the Record Holder and any person or entity
for which we have acted as the custodian of the Shares
(collectively, the "Indemnitees") harmless from and against any
and all claims, damage or loss incurred by any of the Indemnitees
with respect to the granting of said proxy and power of attorney.
TVF shall pay all fees and expenses, including the reasonable
legal fees of the Indemnitees' counsel, necessary to defend the
Indemnitees against any and all claims, actions or lawsuits that
may be brought against any of the Indemnitees with respect to the
granting of said proxy and power of attorney.
6. The foregoing is further conditioned upon your agreement not to
disclose our identity or the identity of any person or entity for
which we have acted as the custodian of the Shares to any third
party, unless such disclosure is required of you by law or a
court order; provided that TVF may disclose our identity, but not
the identity of any person or entity for which we have acted as
the custodian of the Shares, by disclosing and attaching a copy
of this letter to a Schedule 13D that TVF is required to file
with the United States Securities and Exchange Commission.
Please indicate your agreement to indemnify and defend the Indemnitees
as provided in paragraph 5 above and to not disclose any identities as provided
in paragraph 6 above by executing and delivering the enclosed copy of this
letter to me.
Very truly yours,
Mees Pierson Global Service N.V.
By: /s/G. Fransen /s/F. v. Kemper
-----------------------------
Its: G. Fransen F. v. Kemper
-----------------------------
and
By: /s/G. Fransen /s/F. v. Kemper
-----------------------------
Its: G. Fransen F. v. Kemper
-----------------------------
<PAGE>
Accepted and agreed to by:
TURKEY VULTURE FUND XIII, LTD.
By: /s/Richard M. Osborne
-----------------------------------------
Richard M. Osborne, its Managing Member
<PAGE>
EXHIBIT 7.8
March 10, 1995
Richard M. Osborne
Turkey Vulture Fund XIII, Ltd.
7001 Center Street
Mentor, Ohio 44060
Re: AGREEMENT, PROXY AND LIMITED POWER OF ATTORNEY
Dear Mr. Osborne:
In consideration of the purchase by Turkey Vulture Fund XIII, Ltd.
("TVF") of 437,809 shares of beneficial interest, par value $1.00 per share, in
First Union Real Estate Equity and Mortgage Investments (the "Shares"), we
hereby agree as follows:
1. We hereby represent and warrant that, in our capacity as
custodians, we shall use our best efforts to cause the entity
that was the record holder of the Shares on February 10, 1995
(the "Record Holder") to, deliver to TVF, as promptly as
practicable by overnight courier at the address set forth above
and at the sole expense of TVF, any and all proxies and related
materials received by us or the Record Holder from or with
respect to First Union from March 1, 1995 through the later to
occur of July 1, 1995 or the date of the 1995 annual meeting of
shareholders of First Union, or adjournment thereof, to which
such proxies and related materials relate. We agree to advise
the Record Holder and any other (sub)custodian of the Shares
that it has no authority to vote any of the Shares as of the
date set forth above, March 10, 1995, and, at the request of
TVF, to use our best efforts to cause the Record Holder to sign
any such proxies as directed by TVF with regard to the Shares
and with regard to the 1995 annual meeting of shareholders of
First Union.
2. We hereby represent and warrant that (i) the Record Holder was a
(sub)custodian of the Shares on February 10, 1995 (the "Record
Date"), (ii) on the Record Date, we were duly authorized to vote
the Shares through the Record Holder, (iii) on the Record Date,
we had the full legal right to vote the Shares through the Record
Holder, and (iv) we are duly authorized, and have the full legal
right, to sign any proxies with respect to the Shares through the
Record Holder and to enter into this agreement.
3. We hereby irrevocably grant to TVF all rights that we have to
vote, and to execute and deliver written consents or otherwise
act with respect to, all of the Shares at the 1995 annual meeting
of shareholders of First Union, or any adjournment thereof, as
fully, to the same extent as we might or could do if we were
present and voting such Shares at such annual meeting.
4. We hereby irrevocably constitute and appoint Richard M. Osborne,
with full power of substitution and re-substitution, as our true
and lawful agent, proxy and attorney-in-fact, and empower and
authorize such attorney, in our name, place and stead, to
execute, deliver and do any and all acts necessary or desirable
in connection with any and all proxies received and delivered by
us to TVF hereunder with respect to matters to be voted on by the
stockholders of First Union at such annual meeting.
5. The foregoing is conditioned upon the agreement of TVF to
indemnify and hold us, the Record Holder and any person or entity
for which we have acted as the custodian of the Shares
(collectively, the "Indemnitees") harmless from and against any
and all claims, damage or loss incurred by any of the Indemnitees
with respect to the granting of said proxy and power of attorney.
TVF shall pay all fees and expenses, including the reasonable
legal fees of the Indemnitees' counsel, necessary to defend the
Indemnitees against any and all claims, actions or lawsuits that
may be brought against any of the Indemnitees with respect to the
granting of said proxy and power of attorney.
6. The foregoing is further conditioned upon your agreement not to
disclose our identity or the identity of any person or entity for
which we have acted as the custodian of the Shares to any third
party, unless such disclosure is required of you by law or a
court order; provided that TVF may disclose our identity, but not
the identity of any person or entity for which we have acted as
the custodian of the Shares, by disclosing and attaching a copy
of this letter to a Schedule 13D that TVF is required to file
with the United States Securities and Exchange Commission.
Please indicate your agreement to indemnify and defend the Indemnitees
as provided in paragraph 5 above and to not disclose any identities as provided
in paragraph 6 above by executing and delivering the enclosed copy of this
letter to me.
Very truly yours,
Kas Depository Trust Company
10-3-95
By: /s/Th.J.M. van Heese /s/M.B. van Moll
--------------------------------------
Its: Th.J.M. van Heese M.B. van Moll
--------------------------------------
Accepted and agreed to by:
TURKEY VULTURE FUND XIII, LTD.
By: /s/Richard M. Osborne
-----------------------------------------
Richard M. Osborne, its Managing Member
