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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_____________________
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
___________________
July 17, 1995
(Date of Report; Date of Earliest Event Reported)
PRUDENTIAL REALTY TRUST
(Exact Name of Registrant as specified in its Charter)
Massachusetts 1-8965 22-6400284
(State of Incorporation) (Commission File Number) (IRS Employer
Identification No.)
Prudential Plaza, Newark, New Jersey 07102
(Address of Principal Executive Offices) (Zip Code)
(201) 802-4302
(Registrant's telephone no., including area code)
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Items 1-4. Not Applicable.
Item 5. Other Events.
a. On August 3, 1995, Prudential Realty Trust announced that
its Board of Trustees declared a dividend of $0.09 per Income Share
(NYSE symbol - PRTpfd) from Distributable Cash. The dividend is payable on
September 1, 1995 to Income Shareholders of record on August 17, 1995.
The Trust announced a Net Loss for the quarter ended
June 30, 1995 of approximately $-577,000 and Distributable Cash of
approximately $1,002,150. The amount of cash available for distribution
exceeded the Net Loss due primarily to non-cash charges for depreciation of
properties. The Trust realized a Net Loss per Income Share (PRTpfd) of
approximately $-0.05 and Distributable Cash per Income share (PRTpfd) of
$0.09.
A summary of the Trust's comparative financial results
follows:
Quarter Ended June 30,
1995 1994
Net (Loss) Income $ -577,223 $ 240,570
Distributable Cash $1,002,150 $ 668,100
Net (Loss) Income per Income Share $-0.05 $0.02
Distributable Cash per Income Share $ 0.09 $0.06
Six Months Ended June 30,
1995 1994
Net (Loss) Income $ -495,448 $ 94,413
Distributable Cash $2,004,300 $1,224,850
Net (Loss) Income per Income Share $-0.04 $0.01
Distributable Cash per Income Share $ 0.18 $0.11
The net loss of $-495,448 for the six months ended June 30, 1995 was
primarily attributable to approximately $1.1 million in costs related to
the liquidation of the Trust, including the litigation and tender offer
with Mr. Richard Osborne and related parties.
b. Settlement and Standstill Agreement.
On July 17, 1995, the Trust, The Prudential Realty Advisors,
Inc. (the "Advisor") and the trustees of the Trust (the "Trustees" and
together with the Trust and the Advisor, the "Trust Parties") entered into
a Settlement and Standstill Agreement (the "Settlement Agreement") with
Richard M. Osborne ("Osborne"), Turkey Vulture Fund XIII, Ltd. (the "Fund")
and Black Bear Realty, Ltd. (the "Bidder" and, together with Osborne and
the Fund, the "Osborne Parties"). Pursuant to the Settlement Agreement,
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the parties agreed, among other things, to execute a stipulation of dismissal
with prejudice of all claims, counterclaims and/or third party claims that
were asserted by the parties (the "Stipulation of Dismissal") and a joint
motion for dismissal (the "Joint Motion for Dismissal") in the Probate
Action and the Superior Court Action (collectively, the "Trial Court
Actions"); each of Osborne and the Fund withdrew their request that a
special meeting of the shareholders of the Trust be called to consider
certain matters relating to the liquidation of the Trust; and the Bidder
agreed not to extend the expiration date of the Offer beyond the expiration
date of 11:59 p.m., New York City time, on July 17, 1995.
The Settlement Agreement provides that each of the Osborne
Parties will not, without the prior written consent of the Trustees,
acquire any additional voting securities of the Trust ("Trust Stock") and
that none of the Osborne Parties will, without the prior written consent of
the Trustees, transfer any shares of Trust Stock except (i) pursuant to a
publicly announced tender offer for any shares of Trust Stock by a person
(other than any of the Osborne Parties or their affiliates), which tender
offer the Trustees have voted to recommend to holders of any shares of
Trust Stock, (ii) subject to certain volume limitations, pursuant to open
market sales effected in accordance with brokers' transactions and the
restrictions of Rule 144(f) and (g) of the Securities Act of 1933, as
amended, or (iii) after first notifying the Trust of the terms of a
proposed sale to a third party and giving the Trust the opportunity (as set
forth in the Settlement Agreement) to purchase on such terms all of the
Trust Stock proposed to be transferred to such third party.
Under the terms of the Settlement Agreement, each of the
Osborne Parties has agreed that neither it nor its affiliates will directly
or indirectly: (i) form, join in or in any other way participate in a
"partnership, limited partnership, syndicate or other group" within the
meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), with respect to shares of Trust Stock or
deposit any shares of Trust Stock in a voting trust or similar arrangement;
(ii) solicit proxies or written consents of shareholders with respect to
Trust Stock or make or participate in any proxy solicitation relating to
shares of Trust Stock or become a participant in any election contest with
respect to the Trust; (iii) seek to call or to request the call of a
special meeting of shareholders of the Trust or seek to make or make a
shareholder proposal at any meeting of the shareholders of the Trust; (iv)
commence or announce any intention to
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commence any tender offer for any shares of Trust Stock or file a Schedule
13D under the Exchange Act with respect to Trust Stock or, except under
certain limited circumstances, file any amendment to any Schedule 13D filed
by any of the Osborne Parties with the SEC prior to the date of the
execution of the Settlement Agreement (a "Current Schedule 13D"); (v) make
a proposal or bid with respect to, or announce any intention or desire to
make a proposal with respect to, the acquisition of any substantial portion
of the assets of the Trust or of all or any portion of outstanding Trust
Stock, or any merger, consolidation or other business combination,
restructuring, recapitalization, liquidation or other extraordinary
transaction involving the Trust; (vi) take any action or form any intention
requiring an amendment to a Current Schedule 13D (with certain exceptions);
(vii) arrange or participate in any financing for any transaction
prohibited by the terms of the Settlement Agreement; or (viii) publicly
disclose any request for or otherwise seek to obtain any waiver or
amendment of the Agreement. Each of the Osborne Parties also agreed that
neither it nor its affiliates will directly or indirectly otherwise act to
seek to control, influence in any way or interfere with the management, the
Trustees or the business, operations or affairs of the Trust or commence,
join in or in any way participate in any action, suit or proceeding
involving or relating to the Trust (except in the case where an Osborne
Party is a defendant in any such action, suit or proceeding or is required
to respond to or appear before the court in which such action, suit or
proceeding has been brought), or commence any appeal in respect of the
Trial Court Actions.
Under the Settlement Agreement, the Osborne Parties agreed to
release each of the Trust Parties and their affiliates from all claims and
causes of action that the Osborne Parties have or ever had against the
Trust Parties, including, without limitation, all claims and causes of
action which were asserted or which could have been asserted in the Trial
Court Actions, and from all claims and causes of action that the Osborne
Parties may have in the future which concern the facts relating to or the
subject matter of the Trial Court Actions. Each of the Trust Parties
agreed to release each of the Osborne Parties on the same terms and to the
same extent as the release of the Trust Parties by the Osborne Parties. In
addition, the Trust Parties executed mutual releases with Robert G. Stern
and Christopher Jarrett, the terms of which are similar to the releases of
the Trust parties and the Osborne Parties contained in the Settlement
Agreement.
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In consideration of the foregoing and for other good and
valuable consideration, the Trust agreed to pay the Osborne Parties an
aggregate amount of $550,000.
A copy of the Settlement Agreement is filed as Exhibit 99
hereto and is incorporated herein by reference. The foregoing description
of the Settlement Agreement is qualified in its entirety by reference to
the text of such document.
Pursuant to a Letter Agreement, dated July 13, 1995, between
the Advisor and the Trust, in order to facilitate the timely settlement of
the litigation with Osborne and his affiliates, the Advisor agreed to
reimburse the Trust for settlement costs that were paid to Osborne or his
affiliates pursuant to the Settlement Agreement. Pursuant to the terms of
such letter agreement, the amount of the reimbursement from the Advisor
will not exceed $150,000 and will be paid only to the extent that the
settlement costs pursuant to the Settlement Agreement exceed $400,000 net
of any reimbursement received from the Trust's Directors and Officers
liability insurance carrier. Any reimbursement due from the Advisor shall
be paid promptly after a final determination is made by such insurance
carrier with respect to the Trust's claims under its Directors and Officers
insurance policy.
Item 6. Not Applicable.
Item 7. Financial Statements,
Pro Forma Financial Information and Exhibits.
(a)-(b) Not applicable.
(c) Exhibits Required by Item 601 of Regulation S-K.
Exhibit
No.
99 Settlement and Standstill Agreement, dated July 17,
1995, among Prudential Realty Trust, The Prudential
Realty Advisors, Inc., Jeffrey L. Danker, Joseph M.
Selzer, Richard J. Boyle, Francis L. Bryant, Thomas
F. Murray, Richard M. Osborne, Turkey Vulture Fund
XIII, Ltd. and Black Bear Realty, Ltd.
Item 8. Not Applicable.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
Dated: July 19, 1995
PRUDENTIAL REALTY TRUST
By: /s/ James W. McCarthy
Name: James W. McCarthy
Title: Vice President,
Comptroller and Principal
Accounting Officer
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EXHIBIT INDEX
Sequential
Exhibit No. Description Page No.
99 Settlement and Standstill Agreement, dated
July 17, 1995, among Prudential Realty Trust,
The Prudential Realty Advisors, Inc., Jeffrey
L. Danker, Joseph M. Selzer, Richard J. Boyle,
Francis L. Bryant, Thomas F. Murray, Richard
M. Osborne, Turkey Vulture Fund XIII, Ltd. and
Black Bear Realty, Ltd.
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EXHIBIT 99
SETTLEMENT AND STANDSTILL AGREEMENT
AGREEMENT, dated as of July 17, 1995, by and among Prudential Realty
Trust, a Massachusetts business trust (the "Trust"), The Prudential Realty
Advisors, Inc., a New Jersey corporation ("PRA"), Jeffrey L. Danker
("Danker"), Thomas F. Murray ("Murray"), Joseph M. Selzer ("Selzer"),
Richard J. Boyle ("Boyle") and Francis L. Bryant ("Bryant" and together
with Danker, Murray, Selzer and Boyle in their respective capacities as
Trustees of the Trust, the "Trustees"), and each of Richard M. Osborne, an
Ohio resident ("Osborne"), Turkey Vulture Fund XIII, Ltd., an Ohio limited
liability company (the "Fund") and Black Bear Realty, Ltd., an Ohio limited
liability company ("Black Bear"). For purposes of this Agreement, Osborne,
the Fund and Black Bear may collectively be referred to herein as the
"Osborne Parties."
WHEREAS, the Osborne Parties are the beneficial owners of Capital
Shares (as hereinafter defined) and Income Shares (as hereinafter defined)
of the Trust; and
WHEREAS, the Osborne Parties assert that the best interest of the
Trust would be served by extending the term of the Trust and/or changing
the Trust to an infinite life trust, and the Osborne Parties retained
counsel, consultants and an investment banker to study the Trust and
formulate a proposal with respect thereto; and
WHEREAS, on May 17, 1995, Black Bear commenced a tender offer to
purchase all outstanding Capital Shares at $.30 net per share (the "Tender
Offer"), which Tender Offer currently expires at 11:59 p.m., New York City
time, on July 17, 1995; and
WHEREAS, the Trustees unanimously concluded, among other things, that
since the policy and intention of the Declaration of Trust dated June 19,
1985 and amended August 20, 1985 (the "Declaration") is for the Trust to be
completely liquidated 101/2 to 12 years after its inception (unless there
was a change in the Trust's policies and such change was approved by 75% of
each class of shareholders, voting separately as a class), the Tender Offer
represented a first step in a plan designed by Black Bear to prevent the
liquidation of the Trust and is in direct conflict with the long-standing
policy and intent of the Trust; and
WHEREAS, PRA has served as an advisor to the Trust since the
inception of the Trust; and
WHEREAS, the Trustees have carefully considered the Trust's business,
financial condition and prospects, the terms and conditions of the Tender
Offer and other matters, including presentations by the Trust's legal and
financial advisors and, after receiving advice from its management and
professional advisors, including without limitation, PRA, unanimously
determined to reject the Tender Offer; and
WHEREAS, on June 2, 1995, in furtherance of the Trustees' desire to
comply with the long-standing policy and intent of the Trust and in
accordance with the Declaration, the Trustees adopted a series of
resolutions establishing a plan to effect the liquidation and termination
of the Trust (as such plan may be amended, supplemented or modified from
time to time hereafter, the "Plan of Liquidation"), effective immediately
prior to completion of the sale of the Trust's Park 100 property located in
Indianapolis, Indiana ("Park 100"), which resolutions, among other things,
authorize certain officers of the Trust to sell Park 100 and to sell or
otherwise liquidate the remaining properties of the Trust upon such terms
as may be approved by a majority of the Unaffiliated Trustees (as defined
in the Declaration), and require that, after paying or adequately providing
for the payment of all liabilities of the Trust, the Trustees shall
distribute the remaining Trust Estate (as defined in the Declaration), in
cash or in kind or partly each, among the shareholders of the Trust
according to their respective rights under the Declaration; and
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WHEREAS, Osborne and the Fund have requested in that certain letter
dated June 14, 1995, that a special meeting of the shareholders of the
Trust be called for the purposes set forth in such letter; and
WHEREAS, the Trustees concluded, after consultation with the Trust's
legal advisors, that the purposes of the meeting as stated in the June 14,
1995 letter are not purposes permitted by the Declaration or the Trustees'
Regulations, nor are they purposes upon which the shareholders of the Trust
can lawfully act under applicable law, and that as such, the chief
executive officer of the Trust is under no duty to call a special meeting
pursuant to Section 6.12 of the Declaration and has refused to call such a
meeting; and
WHEREAS, the Trust and Richard M. Osborne and Robert G. Stern
("Stern" and together with Osborne, the "Plaintiffs") are parties in the
actions entitled Richard M. Osborne and Robert G. Stern v. Prudential
Realty Trust and Jeffrey L. Danker, Thomas F. Murray, Joseph M. Selzer,
Richard J. Boyle and Francis L. Bryant in the Probate Court Department of
the Trial Court of The Commonwealth of Massachusetts for the County of
Suffolk (the "Probate Court"), Docket No. 95-E-0016 (the "Probate Court
Action") and Richard M. Osborne and Robert G. Stern v. Prudential Realty
Trust and Jeffrey L. Danker, Thomas F. Murray, Joseph M. Selzer, Richard J.
Boyle and Francis L. Bryant in the Superior Court Department of the Trial
Court of The Commonwealth of Massachusetts for the County of Suffolk (the
"Superior Court"), Civil Action No. 95-2095-A (the "Superior Court Action"
and together with the Probate Court Action, the "Trial Court Actions"); and
WHEREAS, the Probate Court has denied the temporary restraining order
sought by the Plaintiffs to prevent the liquidation of the Trust and
approximately 3.0 million Capital Shares sought pursuant to the Tender
Offer have been tendered and not withdrawn; and
WHEREAS, the Osborne Parties and the Trust have both spent
substantial financial resources supporting their respective positions and
further financial resources will of necessity be required to be expended if
the matters which are the subject of the Lawsuits (as defined below) are
not resolved; and
WHEREAS, it is the desire of all of the parties hereto to compromise
and settle all matters and issues in dispute between them in order to avoid
the uncertainties, inconvenience and expense of further litigation.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereby agree as
follows:
Section 1. Representations.
(a) Binding Agreement. The Trust hereby represents to each of the
Osborne Parties, and each of the Osborne Parties hereby severally
represents to the Trust, that this Agreement has been duly authorized,
executed and delivered by it or him, respectively, and is a valid and
binding obligation of it or him, respectively, enforceable against it or
him, respectively, in accordance with its terms.
(b) Share Ownership of the Osborne Parties. Each of the Osborne
Parties hereby jointly and severally represents to the Trust that as of the
date hereof: (i) the Osborne Parties and their Affiliates (as hereinafter
defined) are the beneficial owners of an aggregate of 2,160,100 shares of
the Trust's Capital Shares (the "Capital Shares") and an aggregate of
1,873,300 shares of the Trust's Income Shares (the "Income Shares" and
together with the Capital Shares, the "Shares"), in the respective amounts
set forth on Exhibit A hereto; (ii) the Osborne Parties and their
Affiliates own beneficially and of record the Shares set forth on Exhibit A
hereto free and clear of any liens, restrictions, encumbrances or claims of
any kind, except as disclosed in filings previously made with the
Securities and Exchange Commission (the "SEC");
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and (iii) except for the Shares, none of the Osborne Parties or their
Affiliates owns any voting securities, or any securities convertible into
or exchangeable for any voting securities, or options, warrants,
contractual rights or other rights of any kind to acquire or vote any
voting securities, of the Trust (collectively, and together with the Shares
and any voting securities, or any securities convertible into or
exchangeable for any voting securities, or options, warrants, contractual
rights or other rights of any kind to acquire or vote any voting
securities, of the Trust which may be issued or granted or which become
outstanding hereafter, the "Trust Stock"). For purposes of this Agreement,
an "Affiliate" of any person, entity or corporation shall mean and include:
(i) any person, entity or corporation, now or hereafter, directly or
indirectly through one or more intermediaries, controlling, controlled by
or under common control with (through the ownership of voting securities or
interests, by contract or otherwise) such person, entity or corporation, or
acting in concert with such person, entity or corporation in connection
with the Trust with respect to any matter referred to in Section 4 of this
Agreement or clauses (a)-(j) of Item 4 of Schedule 13D under the Securities
Exchange Act of 1934, as amended (the "1934 Act"), or with respect to
acquiring, holding, voting or disposing of any Trust Stock; and (ii) any
Associate (as that term is defined in Rule 14a-1(a) under the 1934 Act) of
any Osborne Party, provided, however, that for purposes of this Agreement,
with respect to the Osborne Parties, the term "Affiliate" shall not include
any members of the Fund solely in their capacity as such. Each of the
Osborne Parties acknowledges and agrees that a breach of any provision of
this Agreement by any Osborne Party or any Affiliate thereof shall
constitute a breach by each Osborne Party and that each Osborne Party shall
be fully liable for any breach of this Agreement by any other Osborne Party
or by any Affiliate of any Osborne Party, it being understood that
notwithstanding any other provision of this Agreement, any of the Osborne
Parties and their Affiliates shall be entitled to act in concert with one
another with respect to any action which an Osborne Party or an Affiliate
of an Osborne Party would be permitted to take individually hereunder.
For the purposes of this Agreement, beneficial ownership shall be
determined pursuant to Rule 13d-3 ("Rule 13d-3") promulgated by the SEC
pursuant to the 1934 Act.
(c) No Litigation or Proceedings. Each of the Osborne Parties
represents and warrants that, other than the Lawsuits (as defined below),
there is no litigation or governmental or administrative proceeding or
investigation pending or, to the best knowledge of any of the Osborne
Parties, threatened or contemplated by any Osborne Party or any other
person or entity other than Robert Huiskamp, against the Trust or any of
its subsidiaries or their Affiliates, or the Trustees or the officers of
the Trust, which may involve or relate to the properties, assets,
prospects, financial condition or business of the Trust or any subsidiary
or any of the subject matter of the Lawsuits, or which would prevent or
hinder the consummation of the Plan of Liquidation or any of the
transactions contemplated thereby.
Section 2. Settlement of Claims; Termination of Certain Actions.
(a) Upon execution of this Agreement, each of Osborne (at his own
cost) and Stern (at his own cost) within one (1) business day thereafter
shall (i) execute and deliver to the Trust a stipulation of dismissal with
prejudice of all claims, counterclaims and/or third party claims that were
asserted by that party (a "Stipulation of Dismissal") and a joint motion
for dismissal (a "Joint Motion for Dismissal") in the Trial Court Actions
in the forms attached hereto as Exhibit B, Exhibit C, Exhibit D and Exhibit
E, and (ii) execute and file Stipulations of Dismissal in all other
actions, suits or proceedings relating to the Trial Court Actions,
including, without limitation, the action entitled Richard M. Osborne and
Robert G. Stern v. Prudential Realty Trust and Jeffrey L. Danker, Thomas F.
Murray, Joseph M. Selzer, Richard J. Boyle and Francis L. Bryant in the
District Court, City and County of Denver, Colorado, Case No. 95CV2674 and
the action entitled In the Matter of the Application of Richard M. Osborne
and Robert G. Stern,
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in the Supreme Court of the State of New York, County of New York, Index
No. 115485/95 (such actions, suits and proceedings referred to in clauses
(i) and (ii) above, together with the matters referred to in Section 2(b)
hereof, are referred to herein as the "Lawsuits"). Upon execution of the
Stipulations of Dismissal and Joint Motion for Dismissal in the Trial Court
Actions, neither the Osborne Parties nor their attorneys shall pursue or
conduct any discovery in the Lawsuits and shall withdraw all pending
discovery requests served or issued by any of the Osborne Parties or their
attorneys in the Lawsuits.
(b) Upon execution of this Agreement, each of Osborne and Stern
shall execute and file within one (1) business day thereafter notices of
release of lis pendens and notices of release and dissolution ("Notices of
Release") of any and all lis pendens notices, including, without
limitation, the Lis Pendens Notice filed in the Probate Court Action on
June 27, 1995 and in the Marion Circuit Court, No. 9500095, on June 27,
1995, attachments of any kind, including, without limitation, real estate
attachments, restraining orders, injunctions or similar notices and notices
of claim, which relate to the subject matter of the actions, suits or
proceedings referred to in Section 2(a) hereof or to the Trust or to the
assets of the Trust.
(c) Simultaneously with the execution of this Agreement, the
Osborne Parties shall cause to be delivered to the Trust general releases
in the forms attached hereto as Exhibit F of each of Stern and Christopher
Jarrett (the "General Releases").
(d) The Trust hereby agrees to pay to the Osborne Parties the
amounts set forth in Exhibit G hereto, such amounts aggregating FIVE
HUNDRED FIFTY THOUSAND DOLLARS ($550,000.00), by certified check, bank
draft or wire transfer of immediately available funds pursuant to wire
transfer instructions provided to the Trust in writing by an authorized
representative of the Osborne Parties, one (1) business day after the date
on which the last Stipulation of Dismissal or Notice of Release and a Joint
Motion for Dismissal (i) dismissing with prejudice all claims,
counterclaims and third party claims referred to in Section 2(a) above in
respect of the Lawsuits and (ii) releasing and dissolving any and all
notices of claims referred to in Section 2(b) above in respect of the
Lawsuits, is executed by each of Osborne and Stern (or their authorized
representative(s)) and filed in the Superior Court, Probate Court or other
court of competent jurisdiction, as the case may be; provided, however,
that no such payments shall be made hereunder by the Trust to any of the
Osborne Parties until such time as the Osborne Parties have performed all
obligations required to be performed by them on or prior to the date on
which this Agreement is fully executed by all of the parties hereto and
have executed and/or delivered all documents required to be executed and/or
delivered by them on or prior to the date on which this Agreement is fully
executed by all of the parties hereto, including, without limitation, the
General Releases.
(e) Each of Osborne and the Fund hereby withdraws its request, made
pursuant to that certain letter dated June 14, 1995, that a special meeting
of the shareholders of the Trust be called to consider the matters set
forth in such letter.
(f) Black Bear hereby agrees that it shall not extend the
expiration date of the Tender Offer beyond the current expiration date of
11:59 p.m., New York City time, on July 17, 1995.
Section 3. Acquisition and Disposition of Trust Stock.
(a) Each of the Osborne Parties hereby jointly and severally
covenants and agrees that none of the Osborne Parties or their Affiliates
will, without the prior written consent of the Trustees specifically
expressed in a vote adopted by the Trustees, directly or indirectly,
purchase or cause to be purchased or otherwise acquire (other than pursuant
to a stock split, stock dividend or similar transaction) or agree to
acquire, or become or agree to become the beneficial owner of, any
additional Trust Stock. Each of the Osborne Parties agrees that none of
the Osborne Parties or their Affiliates
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will, without the prior written consent of the Trustees specifically
expressed in a vote adopted by the Trustees, directly or indirectly,
transfer any shares of Trust Stock now owned or hereafter acquired by them,
except for transfers made: (i) pursuant to the provisions of Section 3(b)
below, (ii) pursuant to a publicly announced tender offer for any shares of
Trust Stock by any corporation, entity, person or group (other than any of
the Osborne Parties or their Affiliates) which the Trustees have voted to
recommend to holders of any shares of Trust Stock, or (iii) pursuant to
open market sales of not more than (A) 100,000 Capital Shares or (B)
100,000 Income Shares or (C) 100,000 shares of any other class or series of
Trust Stock, respectively, in any thirty (30) day period (calculated in the
aggregate with respect to all sales by the Osborne Parties and their
Affiliates, other than sales made pursuant to any of clauses (i) or (ii) of
this Section 3(a)) effected in accordance with the "brokers' transactions"
restrictions of subsections (f) (excluding the last sentence thereof) and
(g) of Rule 144 promulgated under the Securities Act of 1933, as amended.
For purposes of this Agreement, "transfer" shall mean and include any sale,
assignment, gift, pledge, the imposition of any other encumbrance or any
other disposition or any agreement or obligation to do any of the
foregoing.
(b) If any Osborne Party or any Affiliate thereof desires to sell
any shares of Trust Stock (a "Selling Stockholder") (other than pursuant to
clause (ii) or (iii) of Section 3(a) hereof), the following requirements
shall be satisfied:
(i) The Selling Stockholder shall notify the Trust in writing
of the proposed sale (the "Notice of Proposed Transfer"). The Notice of
Proposed Transfer shall identify and provide reasonable information
concerning the background, business experience and business affiliations of
the proposed transferee (the "Transferee"), the purchase price or other
consideration, if any, the number of shares and type of Trust Stock to be
transferred and the complete terms of the proposed transaction.
(ii) For a period of five (5) business days following the
receipt of the Notice of Proposed Transfer, the Trust and/or any substitute
purchaser(s) as designated by the Trust (the Trust and/or such substituted
purchaser is hereinafter sometimes called the "Buyer") shall have the
option to purchase all, but not less than all, the Trust Stock specified in
the Notice of Proposed Transfer at the price and upon the terms set forth
in the Notice of Proposed Transfer; provided, however, that if the type of
consideration that was to be paid was non-cash consideration, then the
amount paid by the Buyer for such Trust Stock shall be determined in good
faith by the Trustees of the Trust, after consultation with the Trust's
investment banker. In the event that Buyer elects to purchase all, but not
less than all, of the Trust Stock specified in the Notice of Proposed
Transfer, it shall give written notice to the Selling Stockholder of its
election, in which case settlement for said Trust Stock shall be made and
the Buyer shall purchase such Trust Stock for such price, in cash within
five (5) business days after the later of the date the Trust receives (i)
the Notice of Proposed Transfer or (ii) any Further Information requested
by the Trust. In the event that Buyer elects not to purchase all of the
Trust Stock specified in the Notice of Proposed Transfer, the Selling
Stockholder may consummate the proposed transfer of said Trust Stock with
the Transferee, provided, however, that such transfer shall not be
consummated unless and until such Transferee agrees in writing to be bound
by all of the terms of and to perform all of the obligations of the Osborne
Parties contained in this Section 3 and in Section 4 of this Agreement in
the same manner as if such Transferee were a party to this Agreement.
Section 4. Standstill Arrangements.
Each of the Osborne Parties hereby jointly and severally agrees with
the Trust that, prior to the Termination Date (as defined below), none of
the Osborne Parties or their Affiliates will, directly or indirectly, or
will solicit, request, advise, assist or encourage
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others, directly or indirectly, to:
(a) form, join in or in any other way participate in a
"partnership, limited partnership, syndicate or other group" within
the meaning of Section 13(d)(3) of the 1934 Act with respect to
shares of Trust Stock or deposit any Trust Stock in a voting trust or
similar arrangement or subject any Trust Stock to any voting
agreement or pooling arrangement;
(b) solicit proxies or written consents of shareholders with
respect to Trust Stock under any circumstances, or make, or in any
way participate in, any "solicitation" of any "proxy" to vote any
shares of Trust Stock, or become a "participant" in any election
contest with respect to the Trust (as such terms are defined or used
in Rules 14a-1 and 14a-11 under the 1934 Act);
(c) seek to call, or to request the call of, a special
meeting of the shareholders of the Trust or seek to make, or make, a
shareholder proposal at any meeting of the shareholders of the Trust;
(d) commence or announce any intention to commence any tender
offer for any shares of Trust Stock, or file with or send to the SEC
a Schedule 13D under the 1934 Act with respect to Trust Stock or any
amendment to the Schedule 13D, as amended, under the 1934 Act which
has been filed by any of the Osborne Parties with the SEC prior to
the date hereof (the "Current Schedule 13D"), except amendments to
the Current Schedule 13D solely to (i) reflect the execution of this
Agreement, (ii) reflect acquisitions of Trust Stock permitted by this
Agreement (and the financing thereof to the extent required by Item 3
of Schedule 13D), dispositions of Trust Stock permitted by this
Agreement, changes in the identity and background of the reporting
and other persons (to the extent such changes are permitted by this
Agreement and are required by Item 2 of Schedule 13D) and contracts,
arrangements, understandings or relationships (legal or otherwise)
among the persons named in Item 2 of Schedule 13D with respect to any
securities of the Trust (to the extent permitted by this Agreement
and required by Item 6 of Schedule 13D), (iii) include any additional
exhibits to the extent required by Item 7 of Schedule 13D solely as a
result of the foregoing changes, or (iv) comply with applicable
federal securities laws to the extent such changes are permitted by
this Agreement (such permitted amendments and additional exhibits to
the Current Schedule 13D being referred to as the "Permitted Schedule
13D Amendments");
(e) make a proposal or bid with respect to, announce any
intention or desire to make, or discuss with any person, or publicly
make or disclose, cause to be made or disclosed publicly, facilitate
the making public or public disclosure of, any proposal or bid with
respect to, the acquisition of any substantial portion of the assets
of the Trust or any of its subsidiaries or of all or any portion of
the outstanding Trust Stock (except, subject to the other provisions
of this Agreement, the Osborne Parties may file an amendment to the
Current Schedule 13D containing only the Permitted Schedule 13D
Amendments), or any merger, consolidation, other business
combination, restructuring, recapitalization, liquidation or other
extraordinary transaction involving the Trust or any of its
subsidiaries;
(f) otherwise act to seek to control, influence in any manner
or object to or delay or interfere with the management, the Trustees
(including the composition thereof) or the business, operations or
affairs of the Trust, including, without limitation, the Plan of
Liquidation;
(g) take any action or form any intention which would require
an amendment to the Current Schedule 13D (other than amendments
containing only the Permitted Schedule 13D Amendments);
<PAGE>
<PAGE> 7
(h) commence, join in or in any way participate in any
action, suit or proceeding of any kind (except in the case where an
Osborne Party (i) is a defendant in any such action, suit or
proceeding, provided, however, that such participation shall in every
case be limited to the defense by such Osborne Party of the
allegations made or claims brought against such Osborne Party
pursuant to such action, suit or proceeding, or (ii) is required, by
subpoena, court order or otherwise, to respond to or appear before
the court in which such action, suit or proceeding has been brought),
or commence any appeal in respect of the Lawsuits, or, directly or
indirectly, support or encourage any administrative or investigative
action or proceeding of any nature, against, involving or relating to
the Trust, or any subsidiary, Affiliate or division of the Trust, the
Trustees, the officers of the Trust, or any agent or advisor of the
Trust (including, without limitation, attorneys, accountants, bankers
and financial advisors) or any purchaser or prospective purchaser of
any asset or assets of the Trust;
(i) arrange, or in any way participate in, any financing for
any transaction referred to in clauses (a) through (h) above
inclusive; or
(j) make public, or cause or facilitate the making public
(including by disclosure to any journalist or other representative of
the media) of, any request, or otherwise seek, to obtain any waiver
or amendment of any provision of this Agreement, or to take any
action restricted hereby.
Notwithstanding the foregoing, the Osborne Parties may (i) make such
amendments to the Schedule 14D-1, as amended, under the 1934 Act filed with
the SEC prior to the date hereof to comply with applicable federal
securities laws (to the extent such changes reflect action taken by the
Osborne Parties which is not inconsistent with the provisions of this
Agreement) and (ii) make such filings with the SEC pursuant to Section
16(a) of the 1934 Act to reflect changes in the beneficial ownership of any
shares of Trust Stock of any Osborne Party (to the extent such changes
reflect action taken by such Osborne Party which is permitted by this
Agreement).
Each of the Osborne Parties hereby jointly and severally covenants
and agrees that each Osborne Party will promptly notify the Trust when and
if such Osborne Party receives or learns of (i) any oral or written request
to any of the Osborne Parties or any of their Affiliates to participate in
any of the transactions or actions referred to in paragraphs (a) through
(i) above inclusive or (ii) any oral or written communication from or by
any person or entity (other than the Trust) with respect to any of the
transactions or actions referred to in paragraphs (a) through (i) above
inclusive, if such person or entity could reasonably be deemed to be
capable of effecting, participating in or materially assisting in such an
action or transaction (through one or more Affiliates or otherwise) and
such oral or written communication was of a nature that could reasonably be
deemed to indicate a serious interest in effecting, participating in or
materially assisting in such an action or transaction.
Section 5. Releases.
(a) Each of the Osborne Parties and their Affiliates hereby
remises, releases and forever discharges each of the Trust, PRA and the
Trustees, its or their respective successors in interest and subsidiaries
thereof, and the past, present and future officers, trustees, shareholders,
partners, members, agents, representatives, advisors (including without
limitation, attorneys, accountants, bankers and financial advisors), heirs,
successors and assigns of each of them (collectively, the "Trust
Releasees") of and from all actions, causes of action, contributions,
indemnities, apportionments, duties, debts, sums, sums of money, suits,
omissions, bonds, bond specialties, covenants, contracts, controversies,
restitutions, understandings, agreements, promises, commitments, damages,
responsibilities and any and all claims,
<PAGE>
<PAGE> 8
demands, executions, liabilities and accounts of whatsoever kind, nature or
description, direct or indirect, oral or written, known or unknown, matured
or unmatured, suspected or unsuspected at the present time, in law or in
equity (including, without limitation, those in contract or in tort or
otherwise, or under the laws and regulations of the United States or any
state or other jurisdiction or public administrative board or agency), that
any of the Osborne Parties (i) now has or ever had from time to time
through the date hereof, including, without limiting the generality of the
foregoing, all claims or causes of action which were asserted or which
could have been asserted in the Lawsuits, and (ii) may have at any time in
the future which concern the facts relating to or the subject matter of the
Lawsuits; provided, however, that nothing contained in this Section 5(a)
shall be deemed to release any Trust Releasee from its, his or her
obligations under this Agreement.
(b) Each of the Trust, PRA and the Trustees hereby remises,
releases and forever discharges each of the Osborne Parties, their
successors in interest and subsidiaries thereof, and the past, present and
future officers, trustees, shareholders, partners, members, agents,
representatives, advisors (including without limitation, attorneys,
accountants, bankers and financial advisors), heirs, successors and assigns
of each of them (collectively, the "Osborne Releasees") of and from all
actions, causes of action, contributions, indemnities, apportionments,
duties, debts, sums, sums of money, suits, omissions, bonds, bond
specialties, covenants, contracts, controversies, restitutions,
understandings, agreements, promises, commitments, damages,
responsibilities and any and all claims, demands, executions, liabilities
and accounts of whatsoever kind, nature or description, direct or indirect,
oral or written, known or unknown, matured or unmatured, suspected or
unsuspected at the present time, in law or in equity (including, without
limitation, those in contract or in tort or otherwise, or under the laws
and regulations of the United States or any state or other jurisdiction or
public administrative board or agency), that the Trust, PRA and the
Trustees (i) now have or ever had from time to time through the date
hereof, including, without limiting the generality of the foregoing, all
claims or causes of action which were asserted or which could have been
asserted in the Lawsuits, and (ii) may have at any time in the future which
concern the facts relating to or the subject matter of the Lawsuits;
provided, however, that nothing contained in this Section 5(b) shall be
deemed to release any Osborne Releasee from its, his or her obligations
under this Agreement.
Section 6. Termination of Certain Obligations.
The obligations of the Osborne Parties under this Agreement shall
commence on and as of the date first set forth above and shall remain in
effect indefinitely thereafter. Notwithstanding the foregoing, the
obligations of the Osborne Parties under Section 3 and Sections 4(a), 4(b),
4(c), 4(d), 4(e), 4(g) and 4(i) of this Agreement shall terminate on the
date which is the earliest to occur of (A) the date which is the fifth
anniversary of the date of this Agreement, (B) the date on which the
liquidation of the Trust is completed in accordance with the Trust's
Declaration of Trust and the Plan of Liquidation, which date shall not be
deemed to have occurred until the date on which the Trust has fully
distributed all of the proceeds from liquidation and/or all of its
remaining assets to its shareholders in complete liquidation of the Trust
and the Trust has been terminated, or (C) the effective date of a
Termination Notice (as defined below) from the Osborne Parties (the
earliest of such dates being referred to herein as the "Termination Date").
If at any time subsequent to the execution of this Agreement the Trust
announces publicly that a majority of the Trustees have voted, voluntarily
and without any order of any court or governmental body and without any
suit or action being on file requesting or seeking any termination of the
Plan of Liquidation, to abandon or otherwise terminate the Plan of
Liquidation, the Osborne Parties may give written notice to the Trust,
executed by each of the Osborne Parties, of the Osborne Parties' desire to
terminate their obligations under Section 3 and Sections 4(a), 4(b), 4(c),
4(d), 4(e), 4(g) and 4(i) of this Agreement (a "Termination Notice");
provided, however, that such Termination Notice shall not become effective
until the date which is
<PAGE>
<PAGE> 9
sixty (60) days after the date on which the Trust receives such Termination
Notice, unless prior to the expiration of such sixty (60) day period, a
majority of the Trustees have (i) voted to reinstate the Plan of
Liquidation or otherwise approve a plan of liquidation of the Trust, which
plan may be different from the terms and conditions of the Plan of
Liquidation, and (ii) publicly announced such vote, in which case, the
Termination Notice shall be null and void.
Section 7. Remedies.
(a) Each party hereto hereby acknowledges and agrees that
irreparable harm would occur in the event any of the provisions of this
Agreement were not performed in accordance with their specific terms or
were otherwise breached. It is accordingly agreed that the parties shall
be entitled to specific relief hereunder, including, without limitation, an
injunction or injunctions to prevent and enjoin breaches of the provisions
of this Agreement and to enforce specifically the terms and provisions
hereof in any state or federal court in The Commonwealth of Massachusetts,
in addition to any other remedy to which they may be entitled at law or in
equity.
(b) The parties hereto hereby irrevocably and unconditionally
consent to and submit to the exclusive jurisdiction of the courts of The
Commonwealth of Massachusetts and of the United States of America located
in The Commonwealth of Massachusetts for any actions, suits or proceedings
arising out of or relating to this Agreement, the transactions contemplated
hereby or any document referred to herein (and the parties agree not to
commence any action, suit or proceeding relating thereto except in such
courts), and further agree that service of any process, summons, notice or
document by U.S. registered mail to the respective addresses set forth in
Section 11 hereof shall be effective service of process for any such
action, suit or proceeding brought against any party in any such court.
The parties irrevocably and unconditionally waive any objection to the
laying of venue of any action, suit or proceeding arising out of this
agreement or the transactions contemplated hereby, in the courts of The
Commonwealth of Massachusetts or the United States of America located in
The Commonwealth of Massachusetts, and hereby further irrevocably and
unconditionally waive and agree not to plead or claim in any such court
that any such action, suit or proceeding brought in any such court has been
brought in any inconvenient forum.
Section 8. Entire Agreement.
This Agreement contains the entire understanding of the parties with
respect to the subject matter hereof and may be amended only by an
agreement in writing executed by the parties hereto.
Section 9. Headings.
Descriptive headings are for convenience only and shall not control
or affect the meaning or construction of any provision of this Agreement.
Section 10. Number; Gender.
Whenever the singular number is used herein, the same shall include
the plural where appropriate, and words of any gender shall include each
other gender where appropriate.
Section 11. Notices.
All notices, consents, requests, instructions, approvals and other
communications provided for herein and all legal process in regard hereto
shall be validly given, made or served, if in writing and sent by U.S.
registered mail, return receipt requested:
<PAGE>
<PAGE> 10
if to the Trust:
Jeffrey L. Danker
Prudential Realty Trust
c/o The Prudential Realty Group
751 Broad Street
Newark, NJ 07102
with copies to:
Donna Dellechiae, Esq.
Prudential Realty Group
3 Gateway Center
100 Mulberry Street, 14th Floor
Newark, NJ 07102-4077
William B. King, P.C.
Stephen D. Poss, P.C.
Goodwin, Procter & Hoar
Exchange Place
Boston, Massachusetts 02109
Irvine D. Flinn, Esq.
Michael M. Maney, Esq.
Sullivan & Cromwell
125 Broad Street
New York, NY 10004
if to any of the
Osborne Parties:
Richard M. Osborne
7001 Center Street
Mentor, Ohio 44060
in each case, with a copy to:
Edwin A. McCabe, Esq.
Cuddy Bixby
One Financial Center
Boston, MA 02111
Byron S. Krantz, Esq.
Kohrman Jackson & Krantz
20th Floor, One Cleveland Center
Cleveland, OH 44114
Section 12. Enforceability.
If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated. It is hereby
stipulated and declared to be the intention of the parties that the parties
would have executed the remaining terms, provisions, covenants and
restrictions without including any of such which may be hereafter declared
invalid, void or unenforceable. In addition, the parties agree to use
their best efforts to agree upon and substitute a valid and enforceable
term, provision, covenant or restriction for any of such that is held
invalid, void or unenforceable by a court of competent jurisdiction.
Section 13. Law Governing.
This Agreement shall be governed by and construed and enforced in
accordance with the laws of The Commonwealth of Massachusetts, without
regard to any conflict of laws provisions thereof.
<PAGE>
<PAGE> 11
Section 14. Binding Effect.
This Agreement shall be binding upon and inure to the benefit of and
be enforceable by the successors and assigns of the parties hereto.
Section 15. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
Section 16. Acknowledgment
Each of the undersigned parties hereby acknowledges that it has freely
and voluntarily executed this Agreement, and in so doing, has not relied on
any inducements, promises or representations of any other party or its
representatives which are not described herein. Each of the undersigned
parties has been advised by its legal counsel as to the meaning and
consequences of this Agreement and the releases contained herein and
acknowledges his or its understanding of the terms contained herein and the
consequences thereof.
Section 17. No Presumption Against Draftsman.
Each of the undersigned parties hereby acknowledges the undersigned
parties fully negotiated the terms of this Agreement, that each such party
had an equal opportunity to influence the drafting of the language
contained in this Agreement and that there shall be no presumption against
any such party on the ground that such party was responsible for preparing
this Agreement or any part hereof.
Section 18. Third Party Beneficiaries.
The provisions of Sections 4(h) and 5 are expressly intended to
benefit the Osborne Releasees and the Trust Releasees and any such
releasees may enforce such provisions for its benefit.
Section 19. Indemnification by Osborne Parties.
Each of the Osborne Parties agrees to indemnify, defend and hold
harmless each of the Trust, PRA and the Trustees and the officers,
directors, trustees, employees, agents, partners and controlling persons of
the Trust, PRA and the Trustees (collectively, the "Trust Indemnitees")
from and against any and all expenses, losses, claims, damages and
liabilities (including, without limitation, reasonable attorneys' fees and
expenses) incurred or threatened against the Trust Indemnitees or any of
them which are caused by, or in any way result from or relate to any
conduct or action taken by any member of the Fund which conduct or action
would constitute a breach of any of the provisions of this Agreement if
such conduct or action were undertaken by any of the Osborne Parties.
[END OF TEXT]
<PAGE>
<PAGE> 12
IN WITNESS WHEREOF, each of the parties hereto has executed this
Agreement, or caused the same to be executed, under seal, individually or
by its duly authorized representative, as of the date first above written.
PRUDENTIAL REALTY TRUST
ATTEST:
_________________________ By: /s/ Jeffrey L. Danker
Name: Jeffrey L. Danker
Title: President
THE PRUDENTIAL REALTY
ADVISORS, INC.
ATTEST:
_________________________ By: /s/ Jeffrey L. Danker
Name: Jeffrey L. Danker
Title: President
ATTEST:
_________________________ /s/ Jeffrey L. Danker
JEFFREY L. DANKER, as Trustee of
Prudential Realty Trust
ATTEST:
_________________________ /s/ Thomas F. Murray
THOMAS F. MURRAY, as Trustee of
Prudential Realty Trust
ATTEST:
_________________________ /s/ Joseph M. Selzer
JOSEPH M. SELZER, as Trustee of
Prudential Realty Trust
<PAGE>
<PAGE> 13
ATTEST:
_________________________ /s/ Richard J. Boyle
RICHARD J. BOYLE, as Trustee of
Prudential Realty Trust
ATTEST:
_________________________ /s/ Francis L. Bryant
FRANCIS L. BRYANT, as Trustee of
Prudential Realty Trust
ATTEST:
_________________________ /s/ Richard M. Osborne
RICHARD M. OSBORNE
TURKEY VULTURE FUND XIII, LTD.
By: Richard M. Osborne, its Managing
ATTEST: Member
_________________________ /s/ Richard M. Osborne
Richard M. Osborne
BLACK BEAR REALTY, LTD.
By: Richard M. Osborne, its Managing
Member
ATTEST:
_________________________ /s/ Richard M. Osborne
Richard M. Osborne
<PAGE>
<PAGE> 1
EXHIBIT A
<TABLE>
Ownership of Shares by Osborne Parties and Affiliates
Name No. of Capital Shares No. of Income Shares
<S> <C> <C>
Richard M. Osborne 2,160,100 1,873,300(a)
Turkey Vulture Fund XIII, Ltd. 0 1,873,300(b)
Black Bear Realty, Ltd. 0 0
</TABLE>
(a) This number includes 1,873,300 Income Shares beneficially owned by
Turkey Vulture Fund XIII, Ltd.
(b) This number includes 1,873,300 Income Shares beneficially owned by
Richard M. Osborne.
<PAGE>
<PAGE> 1
EXHIBIT B
Form of Stipulation of Dismissal (Probate Court)
COMMONWEALTH OF MASSACHUSETTS
THE TRIAL COURT
SUFFOLK, ss. PROBATE COURT DEPT.
DOCKET NO. 95-E-0016
* * * * * * * * * * * * * * * * * * * * * *
*
RICHARD M. OSBORNE, et al., *
*
Plaintiffs, *
*
v. *
*
PRUDENTIAL REALTY TRUST, et al. *
*
Defendants. *
*
* * * * * * * * * * * * * * * * * * * * * *
STIPULATION FOR DISMISSAL
Plaintiffs Richard M. Osborne and Robert G. Stern, and defendants
Prudential Realty Trust and its Trustees, stipulate that this action shall
be dismissed with prejudice, with each party to bear its own fees, expenses
and costs.
<PAGE>
<PAGE> 2
For the plaintiffs, For the defendants,
RICHARD M. OSBORNE and PRUDENTIAL REALTY TRUST, A
ROBERT G. STERN MASSACHUSETTS BUSINESS TRUST, and
JEFFREY L. DANKER, THOMAS F. MURRAY,
JOSEPH M. SELZER, RICHARD J. BOYLE,
FRANCIS L. BRYANT, AS TRUSTEES OF THE
PRUDENTIAL REALTY TRUST
By their attorneys, By their attorneys,
________________________________ _______________________________
Brian D. Bixby (BBO No. 044140) Stephen D. Poss, P. C. (BBO No. 551760)
Edwin A. McCabe (BBO No. 327040) Dana L. McAlister (BBO No. 565398)
Joseph P. Davis III (BBO No. 551111) Gus P. Coldebella (BBO No. 566918)
CUDDY BIXBY GOODWIN, PROCTER & HOAR
One Financial Center Exchange Place
Boston, Massachusetts 02116 Boston, Massachusetts 02109-2881
(617) 348-3600 (617) 570-1000
DATED: July __, 1995
<PAGE>
<PAGE> 1
EXHIBIT C
Form of Stipulation of Dismissal (Superior Court)
COMMONWEALTH OF MASSACHUSETTS
THE TRIAL COURT
SUFFOLK, ss. SUPERIOR COURT DEPT.
DOCKET NO. 95-2095-A
* * * * * * * * * * * * * * * * * * * * *
*
RICHARD M. OSBORNE, et al., *
*
Plaintiffs, *
*
v. *
*
PRUDENTIAL REALTY TRUST, et al. *
*
Defendants. *
*
* * * * * * * * * * * * * * * * * * * * *
STIPULATION OF DISMISSAL
Plaintiffs Richard M. Osborne and Robert G. Stern, and defendants
Prudential Realty Trust and its Trustees, stipulate that this action shall
be dismissed with prejudice, with each party to bear its own fees, expenses
and costs.
<PAGE>
<PAGE> 2
For the plaintiffs, For the defendants,
RICHARD M. OSBORNE and PRUDENTIAL REALTY TRUST, A
ROBERT G. STERN MASSACHUSETTS BUSINESS TRUST, and
JEFFREY L. DANKER, THOMAS F. MURRAY,
JOSEPH M. SELZER, RICHARD J. BOYLE,
FRANCIS L. BRYANT, AS TRUSTEES OF THE
PRUDENTIAL REALTY TRUST
By their attorneys, By their attorneys,
________________________________ _________________________________
Brian D. Bixby (BBO No. 044140) Stephen D. Poss, P. C. (BBO No. 551760)
Edwin A. McCabe (BBO No. 327040) Dana L. McAlister (BBO No. 565398)
Joseph P. Davis III (BBO No. 551111) Gus P. Coldebella (BBO No. 566918)
CUDDY BIXBY GOODWIN, PROCTER & HOAR
One Financial Center Exchange Place
Boston, Massachusetts 02116 Boston, Massachusetts 02109-2881
(617) 348-3600 (617) 570-1000
DATED: July __, 1995
<PAGE>
<PAGE> 1
EXHIBIT D
Form of Joint Motion for Dismissal (Superior Court)
COMMONWEALTH OF MASSACHUSETTS
THE TRIAL COURT
SUFFOLK, ss. SUPERIOR COURT DEPT.
DOCKET NO. 95-2095-A
* * * * * * * * * * * * * * * * * * * * *
*
RICHARD M. OSBORNE, et al., *
*
Plaintiffs, *
*
v. *
*
PRUDENTIAL REALTY TRUST, et al. *
*
Defendants. *
*
* * * * * * * * * * * * * * * * * * * * *
JOINT MOTION OF PLAINTIFFS AND DEFENDANTS FOR DISMISSAL
Pursuant to Mass. R. Civ. P. 41(a)(2), plaintiffs Richard M. Osborne
and Robert G. Stern ("plaintiffs"), and defendants Prudential Realty Trust
("Trust") and its Trustees ("defendants"), jointly move this Court to
dismiss this action with prejudice, with each party to bear its own fees,
expenses and costs.(1) As grounds for this motion, the parties assert:
1. Plaintiffs and defendants entered into a settlement agreement
on July __, 1995 (the "Settlement Agreement") under which plaintiffs agreed
to dismiss all claims against defendants, plaintiff Osborne agreed not to
extend his tender offer for the capital shares of the Trust, and defendants
agreed to dismiss all counterclaims against plaintiffs. Pursuant to the
Settlement Agreement, plaintiffs and defendants have executed mutual
general releases which include all claims which were asserted or could have
been asserted in this action. Said Settlement Agreement was approved by a
majority of the Trust's trustees, including a majority of its independent
trustees, as being in the best interest of the Trust's shareholders.
___________________
(1) Plaintiffs and defendants have filed a similar Joint
Motion for Dismissal in the nearly identical Probate Court
action brought by plaintiffs.
<PAGE>
<PAGE> 2
2. Plaintiffs and defendants have executed and filed herewith a
stipulation of dismissal under Mass. R. Civ. P. 41(a)(1)(ii). However,
this Court granted the motion to intervene of Philip V. Oppenheimer, et al.
("intervenors") on June 26, 1995, and therefore plaintiffs and defendants
are bringing this Motion to ensure complete dismissal of the action.
3. The interests of the intervenors are protected by the
Settlement Agreement. The avowed reason that the intervenors sought to be
parties to this suit was that plaintiff Osborne, through his tender offer,
could have "seiz[ed] control of the Trust by removing all of the current
Trustees (without cause) and replacing them with persons of his choosing.
Thereafter, the plaintiff could dismiss the counterclaims brought against
him and his affiliates by the Trust in this action, and/or dismiss this
case in its entirety." Intervenors' Motion para. 4, at 4-5. As stated
earlier, as part of the Settlement Agreement, plaintiff Osborne has agreed
not to extend his tender offer for the capital shares of the Trust.
Moreover, insufficient shares have been tendered to enable Osborne to take
such actions. Therefore, intervenors' counterclaims--which involve
interpretation of the Declaration if Osborne's tender offer were to be
successful--are rendered moot by the settlement. Intervenors' interests,
after settlement, are no longer in jeopardy.
<PAGE>
<PAGE> 3
For all the foregoing reasons, this Court should dismiss this action
with prejudice, with each party to bear its own fees, expenses and costs.
For the plaintiffs, For the defendants,
RICHARD M. OSBORNE and PRUDENTIAL REALTY TRUST, A
ROBERT G. STERN MASSACHUSETTS BUSINESS TRUST, and
JEFFREY L. DANKER, THOMAS F.
MURRAY, JOSEPH M. SELZER, RICHARD
J. BOYLE, FRANCIS L. BRYANT, AS
TRUSTEES OF THE PRUDENTIAL REALTY
TRUST
By their attorneys, By their attorneys,
________________________________ ______________________________
Brian D. Bixby (BBO No. 044140) Stephen D. Poss, P. C. (BBO No. 551760)
Edwin A. McCabe (BBO No. 327040) Dana L. McAlister (BBO No. 565398)
Joseph P. Davis III (BBO No. 551111) Gus P. Coldebella (BBO No. 566918)
CUDDY BIXBY GOODWIN, PROCTER & HOAR
One Financial Center Exchange Place
Boston, Massachusetts 02116 Boston, Massachusetts 02109-2881
(617) 348-3600 (617) 570-1000
DATED: July __, 1995
<PAGE>
<PAGE> 1
EXHIBIT E
Form of Joint Motion for Dismissal (Probate Court)
COMMONWEALTH OF MASSACHUSETTS
THE TRIAL COURT
SUFFOLK, ss. PROBATE COURT DEPT.
DOCKET NO. 95-E-0016
* * * * * * * * * * * * * * * * * * * * *
*
RICHARD M. OSBORNE, et al., *
*
Plaintiffs, *
*
v. *
*
PRUDENTIAL REALTY TRUST, et al. *
*
Defendants. *
*
* * * * * * * * * * * * * * * * * * * * *
JOINT MOTION OF PLAINTIFFS AND DEFENDANTS FOR DISMISSAL
Pursuant to Mass. R. Civ. P. 41(a)(2), plaintiffs Richard M. Osborne
and Robert G. Stern ("plaintiffs"), and defendants Prudential Realty Trust
("Trust") and its Trustees ("defendants"), jointly move this Court to
dismiss this action with prejudice, with each party to bear its own fees,
expenses and costs.(2) As grounds for this motion, the parties assert:
1. Plaintiffs and defendants entered into a settlement agreement
on July __, 1995 (the "Settlement Agreement") under which plaintiffs agreed
to dismiss all claims against defendants, plaintiff Osborne agreed not to
extend his tender offer for the capital shares of the Trust, and defendants
agreed to dismiss all counterclaims against plaintiffs. Pursuant to the
Settlement Agreement, plaintiffs and defendants have executed mutual
general releases which include all claims which were asserted or could have
been asserted in this action. Said Settlement Agreement was approved by a
majority of the Trust's trustees, including a majority of its independent
trustees, as being in the best interest of the Trust's shareholders.
___________________
(2) Plaintiffs and defendants have filed a similar Joint
Motion for Dismissal in the nearly identical Superior Court
action brought by plaintiffs.
<PAGE>
<PAGE> 2
2. Plaintiffs and defendants have executed and filed herewith a
stipulation of dismissal under Mass. R. Civ. P. 41(a)(1)(ii). However, a
motion to intervene has been filed by Philip V. Oppenheimer, et al.
("intervenors") on June 26, 1995, and therefore plaintiffs and defendants
therefore bring this Motion to ensure complete dismissal of the action.
3. The interests of the intervenors are protected by the
Settlement Agreement. The avowed reason that the intervenors sought to be
parties to this suit was that plaintiff Osborne, through his tender offer,
could have "seiz[ed] control of the Trust by removing all of the current
Trustees (without cause) and replacing them with persons of his choosing.
Thereafter, the plaintiff could dismiss the counterclaims brought against
him and his affiliates by the Trust in this action, and/or dismiss this
case in its entirety." Intervenors' Motion para. 4, at 4-5. As stated
earlier, as part of the Settlement Agreement, plaintiff Osborne has agreed
not to extend his tender offer for the capital shares of the Trust.
Moreover, insufficient shares have been tendered to enable Osborne to take
such actions. Therefore, intervenors' counterclaims--which involve
interpretation of the Declaration if Osborne's tender offer were to be
successful--are rendered moot by the settlement. Intervenors' interests,
after settlement, are no longer in jeopardy.
<PAGE>
<PAGE> 3
For all the foregoing reasons, this Court should dismiss this action
with prejudice, with each party to bear its own fees, expenses and costs.
For the plaintiffs, For the defendants,
RICHARD M. OSBORNE and PRUDENTIAL REALTY TRUST, A
ROBERT G. STERN MASSACHUSETTS BUSINESS TRUST, and
JEFFREY L. DANKER, THOMAS F. MURRAY,
JOSEPH M. SELZER, RICHARD J. BOYLE,
FRANCIS L. BRYANT, AS TRUSTEES OF THE
PRUDENTIAL REALTY TRUST
By their attorneys, By their attorneys,
________________________________ _______________________________
Brian D. Bixby (BBO No. 044140) Stephen D. Poss, P. C. (BBO No. 551760)
Edwin A. McCabe (BBO No. 327040) Dana L. McAlister (BBO No. 565398)
Joseph P. Davis III (BBO No. 551111) Gus P. Coldebella (BBO No. 566918)
CUDDY BIXBY GOODWIN, PROCTER & HOAR
One Financial Center Exchange Place
Boston, Massachusetts 02116 Boston, Massachusetts 02109-2881
(617) 348-3600 (617) 570-1000
DATED: July __, 1995
<PAGE>
<PAGE> 1
EXHIBIT F
Form of Release for Robert G. Stern
MUTUAL GENERAL RELEASE
MUTUAL GENERAL RELEASE made this ____ day of July, 1995, by and
between Robert G. Stern ("Stern") and each of Prudential Realty Trust, a
Massachusetts business trust (the "Trust"), The Prudential Realty Advisors,
Inc., a New Jersey corporation ("PRA"), Jeffrey L. Danker ("Danker"),
Thomas F. Murray ("Murray"), Joseph M. Selzer ("Selzer"), Richard J. Boyle
("Boyle") and Francis L. Bryant ("Bryant" and together with Danker, Murray,
Selzer and Boyle, the "Trustees").
WHEREAS, Stern, the Trust and the Trustees are parties (i) in the
actions entitled Richard M. Osborne and Robert G. Stern v. Prudential
Realty Trust and Jeffrey L. Danker, Thomas F. Murray, Joseph M. Selzer,
Richard J. Boyle and Francis L. Bryant in the Probate Court Department of
the Trial Court of The Commonwealth of Massachusetts for the County of
Suffolk, Docket No. 95-E-0016 (the "Probate Court Action") and Richard M.
Osborne and Robert G. Stern v. Prudential Realty Trust and Jeffrey L.
Danker, Thomas F. Murray, Joseph M. Selzer, Richard J. Boyle and Francis L.
Bryant in the Superior Court Department of the Trial Court of The
Commonwealth of Massachusetts for the County of Suffolk, Civil Action No.
95-2095-A (the "Superior Court Action" and together with the Probate Court
Action, the "Trial Court Actions") and (ii) in certain other actions, suits
or proceedings relating to the Trial Court Actions, including, without
limitation, the action entitled Richard M. Osborne and Robert G. Stern v.
Prudential Realty Trust and Jeffrey L. Danker, Thomas F. Murray, Joseph M.
Selzer, Richard J. Boyle and Francis L. Bryant in the District Court, City
and County of Denver, Colorado, Case No. 95CV2674 and the action entitled
In the Matter of the Application of Richard M. Osborne and Robert G. Stern,
in the Supreme Court of the State of New York, County of New York, Index
No. 115485/95 (such actions, suits and proceedings referred to in clauses
(i) and (ii) above, together with any and all notices of lis pendens
(including, without limitation, the Lis Pendens Notice filed in the Probate
Court Action on June 27, 1995 and in the Marion Circuit Court, No. 9500095,
on June 27, 1995), attachments of any kind, including, without limitation,
real estate attachments, restraining orders, injunctions or similar notices
and notices of claim, which relate to the subject matter of such actions,
suits or proceedings, are referred to herein as the "Lawsuits").
WHEREAS, the execution and delivery of this Mutual General Release is
a condition precedent to the obligations of the Trust, PRA, the Trustees,
Richard M. Osborne ("Osborne"), Turkey Vulture Fund XIII, Ltd. (the "Fund")
and Black Bear Realty Ltd. ("Black Bear" and together with Osborne and the
Fund, the "Osborne Parties") under that certain Settlement and Standstill
Agreement by and between the Trust, PRA, the Trustees and the Osborne
Parties dated as of July __, 1995 (the "Settlement Agreement").
NOW, THEREFORE, in consideration of the Settlement Agreement and for
other good and valuable consideration the receipt and sufficiency of which
is hereby acknowledged by each of the undersigned parties:
Stern hereby remises, releases and forever discharges each of the
Trust, PRA, the Trustees, its or their respective successors in interest
and subsidiaries thereof, and the past, present and future officers,
trustees, shareholders, partners, members, agents, representatives,
advisors (including without limitation, attorneys, accountants, bankers and
financial advisors), heirs, successors and assigns of each of them
(collectively, the "Trust Releasees") of and from all actions, causes of
action, contributions, indemnities, apportionments, duties, debts, sums,
sums of money, suits, omissions, bonds, bond specialties, covenants,
contracts, controversies, restitutions, understandings, agreements,
promises, commitments, damages, responsibilities and any and all claims,
demands, executions, liabilities and accounts of whatsoever kind, nature or
description, direct or indirect, oral or written, known or unknown, matured
or unmatured, suspected or unsuspected at the present time, in law or in
equity (including, without limitation, those in contract or in tort or
otherwise, or under the laws and regulations of the United States or any
state or other jurisdiction or
<PAGE>
<PAGE> 2
public administrative board or agency), that Stern (i) now has or ever had
from time to time through the date hereof, including, without limiting the
generality of the foregoing, all claims or causes of action which were
asserted or which could have been asserted in the Lawsuits, and (ii) may
have at any time in the future which concern the facts relating to or the
subject matter of the Lawsuits.
Stern hereby agrees that neither he nor his attorneys will pursue or
conduct any discovery in the Lawsuits and hereby withdraws all discovery
requests served or issued by him or his attorneys in the Lawsuits.
Each of the Trust, PRA and the Trustees (in their respective
capacities as Trustees of the Trust) hereby remises, releases and forever
discharges each of Stern, his heirs, successors and assigns (collectively,
the "Stern Releasees") of and from all actions, causes of action,
contributions, indemnities, apportionments, duties, debts, sums, sums of
money, suits, omissions, bonds, bond specialties, covenants, contracts,
controversies, restitutions, understandings, agreements, promises,
commitments, damages, responsibilities and any and all claims, demands,
executions, liabilities and accounts of whatsoever kind, nature or
description, direct or indirect, oral or written, known or unknown, matured
or unmatured, suspected or unsuspected at the present time, in law or in
equity (including, without limitation, those in contract or in tort or
otherwise, or under the laws and regulations of the United States or any
state or other jurisdiction or public administrative board or agency), that
the Trust, PRA and the Trustees (in their respective capacities as Trustees
of the Trust) (i) now have or ever had from time to time through the date
hereof, including, without limiting the generality of the foregoing, all
claims or causes of action which were asserted or which could have been
asserted in the Lawsuits, and (ii) may have at any time in the future which
concern the facts relating to or the subject matter of the Lawsuits.
This Mutual General Release is freely and voluntarily executed by
each of the undersigned parties who, in executing this Mutual General
Release, does not rely on any inducements, promises or representations of
any other party or its representatives which are not described herein.
Each of the undersigned parties has been advised by his or its legal
counsel as to the meaning and consequences of this Mutual General Release
and the releases contained herein and acknowledges his or its understanding
of the terms contained herein and the consequences thereof. This Mutual
General Release shall be construed under and governed by the laws of The
Commonwealth of Massachusetts.
The failure of any of the undersigned parties to require the
performance of a term or obligation under this Mutual General Release or
the waiver by any of the undersigned parties of any breach hereunder shall
not prevent subsequent enforcement of such term or obligation or be deemed
a waiver of any subsequent breach hereunder. In case any one or more of
the provisions of this Mutual General Release shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Mutual General Release, but this Mutual General Release shall be construed
as if such invalid, illegal or unenforceable provision or part of a
provision had never been contained herein.
[END OF TEXT]
<PAGE>
<PAGE> 3
EXECUTED as of the ___ day of July, 1995.
PRUDENTIAL REALTY TRUST
ATTEST:
_________________________ By:
Name:
Title:
THE PRUDENTIAL REALTY ADVISORS,
INC.
ATTEST:
_________________________ By:
Name:
Title:
ATTEST:
_________________________
JEFFREY L. DANKER
ATTEST:
_________________________
THOMAS F. MURRAY
ATTEST:
_________________________
JOSEPH M. SELZER
ATTEST:
_________________________
RICHARD J. BOYLE
<PAGE>
<PAGE> 4
ATTEST:
_________________________
FRANCIS L. BRYANT
ATTEST:
_________________________
ROBERT G. STERN
<PAGE>
<PAGE> 1
Form of Release for Christopher Jarrett
MUTUAL GENERAL RELEASE
MUTUAL GENERAL RELEASE made this ____ day of July, 1995, by and
between Christopher Jarrett ("Jarrett") and each of Prudential Realty
Trust, a Massachusetts business trust (the "Trust"), The Prudential Realty
Advisors, Inc., a New Jersey corporation ("PRA"), Jeffrey L. Danker
("Danker"), Thomas F. Murray ("Murray"), Joseph M. Selzer ("Selzer"),
Richard J. Boyle ("Boyle") and Francis L. Bryant ("Bryant" and together
with Danker, Murray, Selzer and Boyle, the "Trustees").
WHEREAS, the Trust and the Trustees are parties (i) in the actions
entitled Richard M. Osborne and Robert G. Stern v. Prudential Realty Trust
and Jeffrey L. Danker, Thomas F. Murray, Joseph M. Selzer, Richard J. Boyle
and Francis L. Bryant in the Probate Court Department of the Trial Court of
The Commonwealth of Massachusetts for the County of Suffolk, Docket No. 95-
E-0016 (the "Probate Court Action") and Richard M. Osborne and Robert G.
Stern v. Prudential Realty Trust and Jeffrey L. Danker, Thomas F. Murray,
Joseph M. Selzer, Richard J. Boyle and Francis L. Bryant in the Superior
Court Department of the Trial Court of The Commonwealth of Massachusetts
for the County of Suffolk, Civil Action No. 95-2095-A (the "Superior Court
Action" and together with the Probate Court Action, the "Trial Court
Actions") and (ii) in certain other actions, suits or proceedings relating
to the Trial Court Actions, including, without limitation, the action
entitled Richard M. Osborne and Robert G. Stern v. Prudential Realty Trust
and Jeffrey L. Danker, Thomas F. Murray, Joseph M. Selzer, Richard J. Boyle
and Francis L. Bryant in the District Court, City and County of Denver,
Colorado, Case No. 95CV2674 and the action entitled In the Matter of the
Application of Richard M. Osborne and Robert G. Stern, in the Supreme Court
of the State of New York, County of New York, Index No. 115485/95 (such
actions, suits and proceedings referred to in clauses (i) and (ii) above,
together with any and all notices of lis pendens (including, without
limitation, the Lis Pendens Notice filed in the Probate Court Action on
June 27, 1995 and in the Marion Circuit Court, No. 9500095, on June 27,
1995), attachments of any kind, including, without limitation, real estate
attachments, restraining orders, injunctions or similar notices and notices
of claim, which relate to the subject matter of such actions, suits or
proceedings, are referred to herein as the "Lawsuits").
WHEREAS, the execution and delivery of this Mutual General Release is
a condition precedent to the obligations of the Trust, PRA, the Trustees,
Richard M. Osborne ("Osborne"), Turkey Vulture Fund XIII, Ltd. (the "Fund")
and Black Bear Realty Ltd. ("Black Bear" and together with Osborne and the
Fund, the "Osborne Parties") under that certain Settlement and Standstill
Agreement by and between the Trust, PRA, the Trustees and the Osborne
Parties dated as of July __, 1995 (the "Settlement Agreement").
NOW, THEREFORE, in consideration of the Settlement Agreement and for
other good and valuable consideration the receipt and sufficiency of which
is hereby acknowledged by each of the undersigned parties:
Jarrett hereby remises, releases and forever discharges each of the
Trust, PRA, the Trustees, its or their respective successors in interest
and subsidiaries thereof, and the past, present and future officers,
trustees, shareholders, partners, members, agents, representatives,
advisors (including without limitation, attorneys, accountants, bankers and
financial advisors), heirs, successors and assigns of each of them
(collectively, the "Trust Releasees") of and from all actions, causes of
action, contributions, indemnities, apportionments, duties, debts, sums,
sums of money, suits, omissions, bonds, bond specialties, covenants,
contracts, controversies, restitutions, understandings, agreements,
promises, commitments, damages, responsibilities and any and all claims,
demands, executions, liabilities and accounts of whatsoever kind, nature or
description, direct or indirect, oral or written, known or unknown, matured
or unmatured, suspected or unsuspected at the present time, in law or in
equity (including, without limitation, those in contract or in tort or
otherwise, or under the laws and regulations of the United States or any
state or other jurisdiction or public administrative board or agency), that
Jarrett (i) now has or ever had from time to time through the date hereof,
including, without limiting the
<PAGE>
<PAGE> 2
generality of the foregoing, all claims or causes of action which were
asserted or which could have been asserted in the Lawsuits, and (ii) may
have at any time in the future which concern the facts relating to or the
subject matter of the Lawsuits.
Each of the Trust, PRA and the Trustees (in their respective
capacities as Trustees of the Trust) hereby remises, releases and forever
discharges each of Jarrett, his heirs, successors and assigns
(collectively, the "Jarrett Releasees") of and from all actions, causes of
action, contributions, indemnities, apportionments, duties, debts, sums,
sums of money, suits, omissions, bonds, bond specialties, covenants,
contracts, controversies, restitutions, understandings, agreements,
promises, commitments, damages, responsibilities and any and all claims,
demands, executions, liabilities and accounts of whatsoever kind, nature or
description, direct or indirect, oral or written, known or unknown, matured
or unmatured, suspected or unsuspected at the present time, in law or in
equity (including, without limitation, those in contract or in tort or
otherwise, or under the laws and regulations of the United States or any
state or other jurisdiction or public administrative board or agency), that
the Trust, PRA and the Trustees (in their respective capacities as Trustees
of the Trust) (i) now have or ever had from time to time through the date
hereof, including, without limiting the generality of the foregoing, all
claims or causes of action which were asserted or which could have been
asserted in the Lawsuits, and (ii) may have at any time in the future which
concern the facts relating to or the subject matter of the Lawsuits.
This Mutual General Release is freely and voluntarily executed by
each of the undersigned parties who, in executing this Mutual General
Release, does not rely on any inducements, promises or representations of
any other party or its representatives which are not described herein.
Each of the undersigned parties has been advised by his or its legal
counsel as to the meaning and consequences of this Mutual General Release
and the releases contained herein and acknowledges his or its understanding
of the terms contained herein and the consequences thereof. This Mutual
General Release shall be construed under and governed by the laws of The
Commonwealth of Massachusetts.
The failure of any of the undersigned parties to require the
performance of a term or obligation under this Mutual General Release or
the waiver by any of the undersigned parties of any breach hereunder shall
not prevent subsequent enforcement of such term or obligation or be deemed
a waiver of any subsequent breach hereunder. In case any one or more of
the provisions of this Mutual General Release shall for any reason be held
to be invalid, illegal or unenforceable in any respect, such invalidity,
illegality or unenforceability shall not affect any other provision of this
Mutual General Release, but this Mutual General Release shall be construed
as if such invalid, illegal or unenforceable provision or part of a
provision had never been contained herein.
[END OF TEXT]
<PAGE>
<PAGE> 3
EXECUTED as of the ___ day of ____________, 1995.
PRUDENTIAL REALTY TRUST
ATTEST:
_________________________ By:
Name:
Title:
THE PRUDENTIAL REALTY ADVISORS,
INC.
ATTEST:
_________________________ By:
Name:
Title:
ATTEST:
_________________________
JEFFREY L. DANKER
ATTEST:
_________________________
THOMAS F. MURRAY
ATTEST:
_________________________
JOSEPH M. SELZER
ATTEST:
_________________________
RICHARD J. BOYLE
ATTEST:
_________________________
FRANCIS L. BRYANT
ATTEST:
_________________________
CHRISTOPHER JARRETT
<PAGE>
<PAGE> 1
EXHIBIT G
<TABLE>
Allocation of Payment
<S> <C>
Richard M. Osborne $ 549,800.00
Turkey Vulture Fund XIII, Ltd. $ 100.00
Black Bear Realty, Ltd. $ 100.00
$ 550,000.00
</TABLE>
