UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 15)
First Union Real Estate Equity and Mortgage Investments
- ------------------------------------------------------------------------
(Name of Issuer)
Shares of Beneficial Interest, $1.00 par value
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(Title of Class of Securities)
337400105
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(CUSIP Number)
Stephen Fraidin, P.C.
Fried, Frank, Harris, Shriver & Jacobson
One New York Plaza
New York, New York 10004
(212) 859-8140
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(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications)
February 3, 1998
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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).
SEC1746(12-91)
SCHEDULE 13D
CUSIP No. 337400105 Page 2 of 5 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
Gotham Partners, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York, U.S.A.
NUMBER OF 7 SOLE VOTING POWER
2,501,951 Shares
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
0
OWNED BY EACH
REPORTING 9 SOLE DISPOSITIVE POWER
2,501,951 Shares
PERSON WITH
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,501,951 Shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
8.89%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS
SCHEDULE 13D
CUSIP No. 337400105 Page 3 of 5 Pages
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS
Gotham Partners II, L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [X]
(b) [ ]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
WC
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) or 2(e) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
New York, U.S.A.
NUMBER OF 7 SOLE VOTING POWER
30,449 Shares
SHARES
BENEFICIALLY 8 SHARED VOTING POWER
0
OWNED BY EACH
REPORTING 9 SOLE DISPOSITIVE POWER
30,449 Shares
PERSON WITH
10 SHARED DISPOSITIVE POWER
0
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
30,449 Shares
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ]
EXCLUDES CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.11%
14 TYPE OF REPORTING PERSON*
PN
*SEE INSTRUCTIONS
This Amendment No. 15 amends and supplements the Statement on
Schedule 13D (the "Schedule 13D") relating to the shares of Beneficial
Interest, par value $1.00 per share ("Shares"), of First Union Real
Estate Equity and Mortgage Investments, an Ohio business trust (the
"Company") previously filed by Gotham Partners, L.P. ("Gotham") and
Gotham Partners II, L.P. ("Gotham II" and together with Gotham, the
"Reporting Persons"), both New York limited partnerships. Capitalized
terms used and not defined in this Amendment have the meanings set
forth in the Schedule 13D.
Except as specifically provided herein, this Amendment does not
modify any of the information previously reported on the Schedule 13D.
Item 4 is hereby amended to add the following information:
"Item 4. Purpose of the Transaction
On January 30, 1998, Gotham sent a letter to the Secretary of the
Company. A copy of such letter is attached as Exhibit 31 hereto and
incorporated herein by this reference.
On February 3, 1998, the Secretary of the Company sent a letter
to Gotham in response to Gotham's letter to the Secretary of the
Company, dated January 30, 1998. A copy of such letter is attached as
Exhibit 32 hereto and incorporated herein by this reference."
Item 7 is hereby amended to add the following information:
"Item 7. Material to be Filed as Exhibits
31. Letter, dated January 30, 1998, from Gotham to the Secretary
of the Company.
32. Letter, dated February 3, 1998, from the Secretary of the
Company to Gotham.
After reasonable inquiry and to the best of our knowledge and
belief, the undersigned certify that the information set forth in this
statement is true, complete and correct.
February 3, 1998
GOTHAM PARTNERS, L.P.
By: Section H Partners, L.P.,
its general partner
By: Karenina Corporation,
a general partner of Section H Partners, L.P.
By: /s/ William A. Ackman
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William A. Ackman
President
By: DPB Corporation,
a general partner of Section H Partners, L.P.
By: /s/ David P. Berkowitz
----------------------
David P. Berkowitz
President
GOTHAM PARTNERS II, L.P.
By: Section H Partners, L.P.,
its general partner
By: Karenina Corporation,
a general partner of Section H Partners, L.P.
By: /s/ William A. Ackman
---------------------
William A. Ackman
President
By: DPB Corporation,
a general partner of Section H Partners, L.P.
By: /s/ David P. Berkowitz
----------------------
David P. Berkowitz
President
EXHIBIT 31
Gotham Partners, L.P.
110 East 42nd Street, 18th Floor
New York, New York 10017
January 30, 1998
BY FAX AND OVERNIGHT MAIL
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Paul F. Levin, Esq.
Secretary
First Union Real Estate Equity
and Mortgage Investments
55 Public Square, Suite 1900
Cleveland, Ohio 44113-1937
Dear Mr. Levin:
Gotham Partners, L.P. ("Gotham") is a holder of record of
shares of Beneficial Interest, par value $1.00 per share ("Shares"),
of First Union Real Estate Equity and Mortgage Investments (the
"Company"), and is entitled to vote its Shares at the 1998 Annual
Meeting of Beneficiaries of or any special meeting held in lieu
thereof (the "Annual Meeting"). In connection with its proposal and
nominations to be presented for consideration at the Annual Meeting,
Gotham hereby requests that, pursuant to Rule 14a-7 promulgated under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
the Company elect to either provide Gotham with a list of all of the
record holders of Shares (in such form as is required by Rule 14a-7
and as is set forth below) or to mail Gotham's soliciting materials
(including proxy statements, forms of proxy and other soliciting
materials to be furnished by Gotham) to the record holders of Shares.
The Company is required to notify Gotham of its election within five
business days of the date hereof.
In the event that the Company elects to provide Gotham with a
list of the record holders of Shares, Gotham hereby requests, and the
Company is required to deliver to Gotham within five business days of
the date hereof, (i) a reasonably current list of the names, addresses
and security positions of all of the record holders, including banks,
brokers and similar entities, holding Shares and other securities of
the Company in the same class or classes as holders which have been or
are to be solicited on management's behalf; and (ii) the most recent
list of names, addresses and security positions of beneficial owners
as specified in Rule 14a-13(b) promulgated under the Exchange Act, in
the possession of the Company, or which subsequently comes into the
possession of the Company. In addition, if the Company makes this
election, the Company shall furnish Gotham with updated record holder
information on a daily basis or, if not available on a daily basis, at
the shortest reasonable interval, through the record date of the
Annual Meeting.
In the event that the Company elects to mail Gotham's
soliciting materials, the Company shall mail copies of any proxy
statement, form of proxy or other soliciting material furnished by
Gotham to all of the record holders of Shares, including banks,
brokers or similar entities. The Company is required to mail a
sufficient number of copies to the banks, brokers and similar entities
for distribution to all beneficial owners of Shares. The Company is
further required to mail Gotham's materials with reasonable promptness
after tender of the material to be mailed, envelopes or other
containers therefor, postage or payment for postage and other
reasonable expenses of effecting such mailing.
Gotham also requests, pursuant to clause (a)(1) of Rule
14a-7, that the Company provide Gotham with the following information
within five business days of the date hereof:
(i) a statement of the approximate number of record holders
and beneficial holders of the Company's securities, separated by type
of holder and class, owning Shares or other securities in the same
class or classes as holders which have been or are to be solicited on
management's behalf; and
(ii) the estimated cost of mailing a proxy statement, form of
proxy or other communication to such holders, including to the extent
known or reasonably available, the estimated costs of any bank,
broker, and similar person through whom the Company has or intends to
solicit beneficial owners in connection with the Annual Meeting.
Enclosed herewith is the certification of Gotham given
pursuant to clause (c)(2) of Rule 14a-7.
Very truly yours,
GOTHAM PARTNERS, L.P.
By: Section H Partners, L.P.,
its general partner
By: Karenina Corporation,
a general partner of Section H Partners, L.P.
By: /s/ Willaim A. Ackman
---------------------------------------
William A. Ackman
President
By: DPB Corporation,
a general partner of Section H Partners, L.P.
By: /s/ David P. Berkowitz
---------------------------------------
David P. Berkowitz
President
CERTIFICATE
The undersigned, Gotham Partners, L.P. ("Gotham"), hereby certifies
as follows:
1. The list of security holders of First Union Real Estate
Equity and Mortgage Investments (the "Company") which Gotham has
requested from the Company will be used to solicit proxies in
connection with its proposal and nominations to be presented for
consideration at the 1998 Annual Meeting of Beneficiaries of the
Company or any special meeting held in lieu thereof (the "Annual
Meeting"), which are set forth in Gotham's Notice to the Secretary of
the Company dated January 8, 1998.
2. Gotham will not use the information contained in such list
of security holders for any purpose other than to communicate with or
solicit security holders regarding the Annual Meeting.
3. Gotham will not disclose the information contained in such
list of security holders to any person other than an employee or agent
of Gotham to the extent necessary to effectuate such communication or
solicitation.
GOTHAM PARTNERS, L.P.
By: Section H Partners, L.P.,
its general partner
By: Karenina Corporation,
a general partner of Section H Partners, L.P.
By: /s/ Willaim A. Ackman
---------------------------------------
William A. Ackman
President
By: DPB Corporation,
a general partner of Section H Partners, L.P.
By: /s/ David P. Berkowitz
---------------------------------------
David P. Berkowitz
President
EXHIBIT 32
February 3, 1998
VIA FACSIMILE & FEDERAL EXPRESS
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William A. Ackman
David P. Berkowitz
Gotham Partners, L.P.
110 East 42nd St., 18th Floor
New York, NY 10017
Gentlemen:
In response to your request that First Union notify Gotham
whether First Union will provide Gotham a shareholder list or mail
Gotham's soliciting materials, First Union has no plans to do either.
As you know, First Union's Board of Trustees has determined,
pursuant to the Declaration of Trust and By-Laws, that Gotham's shares
are "Excess Securities." As provided in Article VI, Section 8 of the
By-Laws:
As the equivalent of treasury Securities for such purposes, the
Excess Securities shall not be entitled to any voting
rights; shall not be considered to be outstanding for
quorums or voting purposes; and shall not be entitled to
receive interest or any other distribution with respect to
the Securities.
Consequently, under the Declaration of Trust and By-Laws, your Excess
Securities are really treasury shares and are outside the coverage of
Regulation 14(a)-7.
Very truly yours,
/s/ Paul F. Levin
