<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES AND EXCHANGE ACT
OF 1934 (AMENDMENT NO. 2 )*
-------
Prudential Realty Trust
- -------------------------------------------------------------------------------
(Name of Issuer)
Income Shares of Beneficial Interest
- -------------------------------------------------------------------------------
(Title of Class of Securities)
74435P-10-4
- -------------------------------------------------------------------------------
(CUSIP Number)
Marc C. Krantz, Kohrman Jackson & Krantz, 1375 East 9th Street, Cleveland, Ohio
44114, 216-736-7204
- -------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
April 18, 1995
- -------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Check the following box if a fee is being paid with the statement [ ]. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of five percent or less of such class.)
(See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities,
and for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
<PAGE> 2
SCHEDULE 13D
<TABLE>
CUSIP NO. 74435P-10-4
<S> <C>
- -----------------------------------------------------------------------------------------------------------
| 1 | NAME OF REPORTING PERSON |
| | S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON |
| | |
| | TURKEY VULTURE FUND XIII, LTD. |
|-----|---------------------------------------------------------------------------------------------------|
| 2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ x ] |
| | ---- |
| | (b) [ ] |
| | ---- |
|-----|---------------------------------------------------------------------------------------------------|
| 3 | SEC USE ONLY |
| | |
|-----|---------------------------------------------------------------------------------------------------|
| 4 | SOURCE OF FUNDS* |
| | |
| | WC, 00 |
| | |
| | |
|-----|---------------------------------------------------------------------------------------------------|
| 5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT |
| | TO ITEMS 2(d) OR 2(e) [ ] |
| | ---- |
| | |
| | |
|-----|---------------------------------------------------------------------------------------------------|
| 6 | CITIZENSHIP OR PLACE OF ORGANIZATION |
| | |
| | OHIO |
|-------------------------------|-------|-----------------------------------------------------------------|
| NUMBER OF | 7 | SOLE VOTING POWER |
| | | |
| SHARES | | 1,873,300 |
| |-------|-----------------------------------------------------------------|
| BENEFICIALLY | 8 | SHARED VOTING POWER |
| | | |
| OWNED BY | | |
| |-------|-----------------------------------------------------------------|
| EACH | 9 | SOLE DISPOSITIVE POWER |
| | | |
| REPORTING | | 1,873,300 |
| | | |
| PERSON |-------|-----------------------------------------------------------------|
| | 10 | SHARED DISPOSITIVE POWER |
| WITH | | |
| | | |
|-------------------------------|-------|-----------------------------------------------------------------|
| 11 | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON |
| | |
| | 1,873,300 |
|-----|---------------------------------------------------------------------------------------------------|
| 12 | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN |
| | SHARES* [ ] |
| | ---- |
|-----|---------------------------------------------------------------------------------------------------|
| 13 | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) |
| | |
| | 16.8% |
|-----|---------------------------------------------------------------------------------------------------|
| 14 | TYPE OF REPORTING PERSON* |
| | |
| | OO |
- -----------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE> 3
CUSIP No. 74435P-10-4
This Amendment No. 2 to Schedule 13D Statement is filed on behalf of
TURKEY VULTURE FUND XIII, LTD., an Ohio limited liability company (the "Fund"),
for the purpose of reporting the acquisition by it of 861,400 income shares of
beneficial interest, $0.01 par value (the "Income Stock"), of Prudential Realty
Trust, a Massachusetts business trust ("Prudential"), in one transaction on
April 18, 1995.
Item 3. Source and Amount of Funds or Other Consideration.
--------------------------------------------------
The Income Stock reported herein as having been acquired by the Fund
was acquired for an aggregate purchase price of approximately $4.1 million,
$1.3 million of which was from working capital of the Fund and $2.8 million of
which was in the form of margin debt from Smith Barney, Inc. ("Smith Barney").
Interest on the margin debt is charged in accordance with Smith Barney's
policy. Interest charges, if not paid, are added to the debit balance for the
next interest period. Smith Barney has a lien on the Income Stock reported
herein as having been acquired by the Fund. Smith Barney may impose margin
requirements more stringent than those required by law or exchange regulations.
A copy of the agreement setting forth the terms of the margin debt is attached
as Exhibit 7.1 to Amendment No. 1 to Schedule 13D Statement filed by the Fund
on April 19, 1995 ("Amendment No. 1").
On April 26, 1995, the Fund, Smith Barney and Richard M. Osborne, the
sole managing member of the Fund ("RMO"), entered into an agreement regarding
the margin debt. Under the agreement, the Fund transferred to its Smith Barney
account certain other securities beneficially owned by the Fund. These
securities consisted of 965,500 shares of beneficial interest of First Union
Real Estate Equity and Mortgage Investments (the "First Union Shares"), which
were subject to a margin debt of approximately $2.8 million. RMO and the Fund
agreed that while the First Union Shares are held as collateral for the Smith
Barney margin debt neither RMO nor the Fund would cause the First Union Shares
to become subject to Rule 144 under the Securities Act of 1933, as amended
("Securities Act"). In the event the First Union Shares cease to be freely
saleable under the Securities Act, RMO and the Fund are required to pay to
Smith Barney the margin debt in the Smith Barney account no later than three
business days after the occurrence of such event. Smith Barney will not call
for additional maintenance margin (except to the extent required by law or in
the event the Fund purchases additional securities on margin) if the Fund meets
the following equity requirements in the margin account: (1) 35% on the First
Union Shares and 40% on the shares of beneficial interest of Prudential for the
six month period commencing April 11, 1995, (2) 45% for the entire account for
the following six months thereafter; and (3) 50% for the entire account by
April 11, 1996. As of April 27, 1995, the aggregate equity percentage in the
account was approximately 41%. On or after May 11, 1996, Smith Barney has the
right to set new margin maintenance requirements in accordance with Smith
Barney's margin maintenance policy. All dividends and distributions relating
to securities in the Smith Barney account will be deposited into and credited
to the account. A copy of the agreement setting forth the terms of the
agreement is attached hereto as Exhibit 7.2.
<PAGE> 4
CUSIP No. 74435P-10-4
RMO has irrevocably guaranteed the prompt and complete payment and
performance, when due, of all obligations and liabilities of the Fund in
connection with all transactions and positions now or hereafter existing in the
Smith Barney account. A copy of the guarantee is attached hereto as Exhibit
7.3.
The $1.3 million in working capital of the Fund used to purchase the
Income Stock was contributed to the Fund by RMO. The sources of the
contribution were the personal funds of RMO in the amount of approximately
$925,000 and two separate bank loans to RMO in the aggregate amount of
$375,000. Neither bank loan is secured by the Income Stock, and each loan was
obtained prior to the purchase of the Income Stock. The first loan, with
American National Bank of Parma, Ohio, is a line of credit used for business
investment, dated June 24, 1994, in the principal amount of $300,000 (the
"American Loan"). The American Loan matures June 24, 1995. Interest on the
American Loan is payable monthly at the rate of 8.5% per annum subject to
adjustment quarterly at the discretion of American National Bank. A copy of
the American Loan is attached hereto as Exhibit 7.4.
The second loan, dated June 2, 1994, is from Society National Bank of
Cleveland, Ohio in the principal amount of $250,000 (the "Society Loan"),
$75,000 of which was used to purchase the Income Stock. The Society Loan is
due and payable on demand. Interest on the Society Loan is payable quarterly
at 0.5% percent over the prime rate of Society National Bank in effect from
time to time. A copy of the Society Loan is attached hereto as Exhibit 7.5.
Item 5. Interest in Securities of the Issuer.
-------------------------------------
(a) According to the most recently available filing with
the Securities and Exchange Commission by Prudential, there are 11,135,000
shares of Income Stock outstanding. The Fund beneficially owns 1,873,300
shares of Income Stock, or approximately 16.8% of the outstanding Income Stock.
As reported on his Amendment No. 9 to Schedule 13D Statement being filed
concurrently herewith, RMO beneficially owns 2,160,100 capital shares of
beneficial interest of Prudential (the "Capital Stock"), representing
approximately 19.4% of the outstanding Capital Stock. RMO is the sole managing
member of the Fund. Under Section 13d(3) of the Securities Exchange Act of
1934, as amended, RMO and the Fund may be deemed members of a group.
(b) The Fund, and RMO as sole managing member thereof,
has sole power to vote, or to direct the voting of, and the sole power to
dispose or to direct the disposition of, the 1,873,300 shares of Income Stock
owned by the Fund.
(c) During the past sixty days and in addition to the
transactions reported on the Schedule 13D filed by the Fund on January 17, 1995
and Amendment No. 1, the Fund has purchased the Income Stock in an open market
transaction as set forth below:
<PAGE> 5
CUSIP No. 74435P-10-4
<TABLE>
<S> <C> <C>
Date Number of Shares Approximate Per Share Price
------------------------------ ---------------- ---------------------------
April 18, 1995 861,400 $4.75
</TABLE>
Although the April 18, 1995 transaction took place on the open market,
the Fund believes that 852,400 of the shares of Income Stock were sold by
Magten Asset Management Corp. on behalf of their clients as follows: 372,600
shares of Income Stock were sold for GM M/R/T Magten Fixed Hourly; 150,400
shares of Income Stock were sold for the Hughes Master Retirement Trust; 57,900
shares of Income Stock were sold for the Navy Exchange Service Command; 78,500
shares of Income Stock were sold for the Western Union Pension Trust and
193,000 shares of Income Stock were sold for the Los Angeles Fire and Police
Pension System.
Item 6. Contracts, Arrangements, Understandings or Relationships With
Respect to Securities of the Issuer.
___________________________________________________________________
Of the shares of Income Stock reported herein as having been
acquired by the Fund, 852,400 shares were acquired with voting and proxy rights
that entitle the Fund to vote such shares of Income Stock at the May 4, 1995
annual meeting of the beneficiaries of Prudential. Such shares may be voted by
the Fund for all matters presented to the beneficial holders at the annual
meeting. Copies of the agreements granting such rights between the Fund and GM
M/R/T Magten Fixed Hourly, Hughes Master Retirement Trust, Navy Exchange
Service Command, Western Union Pension Trust and Los Angeles Fire and Police
Pension System are attached as Exhibits 7.6, 7.7, 7.8, 7.9 and 7.10 hereto,
respectively.
Item 7. Material to be Filed as Exhibits.
---------------------------------
<TABLE>
<S> <C> <C>
Exhibit 7.2 -- Agreement between Smith Barney, the Fund and RMO
Exhibit 7.3 -- RMO Guarantee
Exhibit 7.4 -- American National Bank Note
Exhibit 7.5 -- Society National Bank Note
Exhibit 7.6 -- Agreement, Proxy and Limited Power of
Attorney, dated April 18, 1995, between the
Fund and GM M/R/T Magten Fixed Hourly
Exhibit 7.7 -- Agreement, Proxy and Limited Power of
Attorney, dated April 18, 1995, between the
Fund and Hughes Master Retirement Trust
</TABLE>
<PAGE> 6
CUSIP No. 74435P-10-4
<TABLE>
<S> <C> <C>
Exhibit 7.8 -- Agreement, Proxy and Limited Power of
Attorney, dated April 18, 1995, between the
Fund and Navy Exchange Service Command
Exhibit 7.9 -- Agreement, Proxy and Limited Power of
Attorney, dated April 18, 1995, between the
Fund and Western Union Pension Trust
Exhibit 7.10 -- Agreement, Proxy and Limited Power of
Attorney, dated April 18, 1995, between the
Fund and Los Angeles Fire and Police Pension System
</TABLE>
<PAGE> 7
CUSIP No. 74435P-10-4
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
TURKEY VULTURE FUND XIII, LTD.
Dated: April 28, 1995 /s/ Richard M. Osborne
-----------------------
Richard M. Osborne
Managing Member
<PAGE> 8
EXHIBIT INDEX
<TABLE>
<S> <C> <C>
Exhibit 7.2 -- Agreement between Smith Barney, the Fund and RMO
Exhibit 7.3 -- RMO Guarantee
Exhibit 7.4 -- American National Bank Note
Exhibit 7.5 -- Society National Bank Note
Exhibit 7.6 -- Agreement, Proxy and Limited Power of
Attorney, dated April 18, 1995, between the
Fund and GM M/R/T Magten Fixed Hourly
Exhibit 7.7 -- Agreement, Proxy and Limited Power of
Attorney, dated April 18, 1995, between the
Fund and Hughes Master Retirement Trust
Exhibit 7.8 -- Agreement, Proxy and Limited Power of
Attorney, dated April 18, 1995, between the
Fund and Navy Exchange Service Command
Exhibit 7.9 -- Agreement, Proxy and Limited Power of
Attorney, dated April 18, 1995, between the
Fund and Western Union Pension Trust
Exhibit 7.10 -- Agreement, Proxy and Limited Power of
Attorney, dated April 18, 1995, between the
Fund and Los Angeles Fire and Police Pension System
</TABLE>
<PAGE> 1
Exhibit 7.2
<PAGE> 2
AGREEMENT
This Agreement, dated April 26, 1995, is entered into among Richard
Osborne ("Osborne"), Turkey Vulture Fund XIII, Ltd.("TVF") and Smith Barney,
Inc. ("Smith Barney") with respect to margin maintenance requirements for the
securities brokerage account maintained at Smith Barney by TVF (the "Account").
1) Osborne will wire transfer to Smith Barney $1.3 million in
Federal Funds no later than 5:00 p.m. on April 26, 1995. These funds shall be
deposited in the Account.
2) TVF and Osborne represent that(a) Osborne is a Managing Member
of TVF with authority to bind TVF, and (b) TVF is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of Ohio, and that the execution and delivery of this Agreement by TVF
are duly authorized under the Operating Agreement and will not violate or
conflict with any judgment, order, document or instrument to which TVF is a
party or by which it is bound.
3) TVF will direct the transfer to Smith Barney on April 26, 1995
of TVF's securities brokerage account at Kemper Securities. Such account
contains 965,500 shares ("Shares") of the common stock of First Union Real
Estate Equity and Mortgage Investment, which is subject to a margin debit of
approximately $2.8 million. Osborne and TVF represent and warrant that (a) the
Shares are freely saleable under the Securities Act of 1933 ("Act") and neither
Osborne nor TVF will take any action while the Shares are held as collateral
for the margin debit to cause the Shares to become subject to Rule 144 under
the Act or otherwise not to be freely saleable under the Act, and in the event
the Shares cease to be freely saleable under the Act, Osborne and TVF shall be
required, jointly and severally, to pay to Smith Barney the remaining margin
debit in the Account no later than three (3) business days after the occurrence
of any such action, and (b) the Shares are free of any liens and encumbrances,
except the margin debit referred to above.
4) Smith Barney will not call for additional maintenance margin
with respect to securities in the Account (except to the extent required by law
or in the event TVF purchases additional securities on margin) if TVF meets for
the duration of this Agreement the following minimum equity requirements in the
account:
a) 35% on the First Union Real Estate and Mortgage
Investment and 40% on the Prudential Realty Trust for
the six month period commencing April 11, 1995;
b) 45% for the entire account for the following six
months thereafter; and
c) 50% for the entire account by April 11, 1996.
5) On or after May 11, 1996, Smith Barney may review the
circumstances concerning the Account and shall have the right to set new margin
maintenance requirements in accordance with Smith Barney's margin maintenance
policy. No change of policy shall occur without fourteen (14) calendar days
written notice.
6) Osborne will execute a personal guaranty, in the form
attached hereto, no later than April 26, 1995 pursuant to which Osborne
unconditionally guarantees payment of the margin debit in the Account.
<PAGE> 3
7) All dividends (including a dividend relating to the Shares
payable in April or May of 1995) and distributions relating to all securities
in the Account, will be deposited into and credited to the Account.
8) Any assets deposited into the Account after April 26, 1995,
will be in the form of cash, cash equivalents or securities that have been
approved by Smith Barney. TVF shall not have the right to withdraw assets from
the Account to the extent such withdrawals would cause the margin debit in the
Account to increase. In the event TVF sells securities in the Account, the net
proceeds of such sale must be applied to eliminate the margin debit in the
Account prior to withdrawal of such proceeds from the Account. TVF may not
transfer any securities out of the Account without written authorization from
Smith Barney unless the debit in the Account has been eliminated.
9) In the event of a conflict between the provisions of this
Agreement and the provisions of the Client Agreement governing the Account, the
provisions of this Agreement shall prevail. In all other respects, the
provisions of the Client Agreement shall govern the operation of the Account.
10) This Agreement may not be assigned by Osborne or TVF without
Smith Barney's prior written consent.
11) This Agreement may be amended from time to time by mutual
agreement in writing among the parties. There shall be no oral modification of
this Agreement.
12) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York without regard to the
conflict of laws provisions thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date set forth above.
SMITH BARNEY, INC. TURKEY VULTURE FUND XIII, LTD.
By:/s/ Don S. Schechter By: /s/ Richard M. Osborne
- ----------------------- --------------------------
Managing Member
RICHARD M. OSBORNE
/s/ Richard M. Osborne
----------------------
<PAGE> 1
Exhibit 7.3
<PAGE> 2
April 25, 1995
Smith Barney, Inc.
388 Greenwich Street
New York, N.Y. 10012
Re: Turkey Vulture Fund XIII, Ltd.
Dear Sirs:
The undersigned, Richard M. Osborne, hereby irrevocably and in
accordance with the terms of the letter agreement dated April 25, 1995,
guarantees the prompt and complete payment and performance when due, of all
obligations and liabilities of The Turkey Vulture Fund XIII, Ltd. account
number 224-43061-1-0-005 at Smith Barney, Inc. in connection with all
transactions and positions now or hereafter existing in said account.
This is a continuing guarantee of payment and shall remain in full
force and effect until all obligations of Turkey Vulture Fund XIII, Ltd. under
the Client Agreement and letter agreement dated April 25, 1995 have been
satisfied.
This guaranty shall bind the heirs, successors and assigns of
Guarantor. Guarantor shall not assign this guaranty without the prior written
consent of Smith Barney, Inc.
This guaranty, shall be governed by and construed in accordance with
the laws of the State of New York.
Very truly yours,
/s/ Richard M. Osborne
Richard M. Osborne
<PAGE> 1
Exhibit 7.4
<PAGE> 2
RICHARD M. OSBORNE AMERICAN NATIONAL BANK ACCOUNT #80059
8060 JACKSON STREET 5603 RIDGE ROAD Loan No. 49510
MENTOR, OH 44060 PARMA, OH 44129 Date June 24, 1994
Maturity Date June 24, 1995
Loan Amount $300,000.00
Renewal Of
BORROWER'S NAME AND LENDER'S NAME AND ADDRESS
ADDRESS "You" means the lender,
"I" includes each its successors and assigns
borrower above,
jointly and severally
For value received, I promise to pay to you, or your order, at your address
listed above the PRINCIPAL sum of THREE HUNDRED THOUSAND AND NO/100
*********************Dollars $300,000.00.
[ ] Single Advance: I will receive all of this principal sum on
_______________. No additional advances are contemplated under this note.
[x] Multiple Advance: The principal sum shown above is the maximum amount of
principal I can borrow under this note. On June 24, 1994 I will receive
the amount of $_____________ and future principal advances are contemplated.
Conditions: The conditions for future advances are
_______________________________________________________________________
[x] Open End Credit: You and I agree that I may borrow up to the maximum amount
of principal more than one time. This feature is subject to all other
conditions and expires on June 24, 1995.
[ ] Closed End Credit: You and I agree that I may borrow up to the maximum only
one time (and subject to all other conditions).
INTEREST: I agree to pay interest on the outstanding principal balance
from June 24, 1994 at the rate of 8.500% per year until SEPTEMBER 1, 1994.
[X] Variable Rate: This rate may then change as stated below.
[ ] Index Rate: The future rate will be ______________ the following
index rate: _________________________________________
[x] No Index: The future rate will not be subject to any internal or
external index. It will be entirely in your control.
[x] Frequency and Timing: The rate on this note may change as often
as QUARTERLY.
A change in the interest rate will take effect QUARTERLY COMMENCING
SEPTEMBER 1, 1994.
[ ] Limitations: During the term of this loan, the applicable annual
interest rate will not be more than _______% or less than __________%.
Effect of Variable Rate: A change in the interest rate will have the
following effect on the payments:
[x] The amount of each scheduled payment will change.
[x] The amount of the final payment will change.
[ ] ___________________________________________________.
ACCRUAL METHOD: Interest will be calculated on a ACTUAL/360 basis.
POST MATURITY RATE: I agree to pay interest on the unpaid balance of this note
owing after maturity, and until paid in full, as stated below:
<PAGE> 3
[x] On the same fixed or variable rate basis in effect before maturity
(as indicated above).
[ ] at a rate equal to ________________________________.
[x] LATE CHARGE: If a payment is made more than 10 days after it is due, I
agree to pay a late charge of 10.000% OF THE LATE PAYMENT WITH A MAXIMUM OF
$30.00.
[ ] ADDITIONAL CHARGES: In addition to interest, I agree to pay the following
charges which [ ] are [ ] are not included in the principal amount above:
________________________________________.
PAYMENTS: I agree to pay this note as follows:
[x] Interest: I agree to pay accrued interest MONTHLY BEGINNING JULY 24, 1994.
[x] Principal: I agree to pay the principal JUNE 24, 1995.
[ ] Installments: I agree to pay this note in ______ payments. The first
payment will be in the amount of $_____________________ and will be due
___________________. A payment of $_____________ will be due
________________________________ thereafter. The final payment of the entire
unpaid balance and interest will be due ______________________________.
ADDITIONAL TERMS:
SIGNATURES: I AGREE TO THE TERMS OF THIS
NOTE (INCLUDING THOSE ON PAGE 2). I have
received a copy on today's date.
FOR THIS NOTICE "YOU" MEANS THE BORROWER.
WARNING: BY SIGNING THIS PAPER YOU GIVE
UP YOUR RIGHT TO NOTICE AND COURT TRIAL.
IF YOU DO NOT PAY ON TIME A COURT JUDGMENT
MAY BE TAKEN AGAINST YOU WITHOUT YOUR
PRIOR KNOWLEDGE AND THE POWERS OF A COURT
PURPOSE: The purpose of this CAN BE USED TO COLLECT FROM YOU REGARDLESS
loan is BUSINESS: ANNUAL OF ANY CLAIMS YOU MAY HAVE AGAINST THE
REVIEW-LINE USED FOR BUSINESS CREDITOR WHETHER FOR RETURNED GOODS,
INVEST. FAULTY GOODS, FAILURE ON HIS PART TO
COMPLY WITH THE AGREEMENT, OR ANY OTHER
CAUSE.
Signature for Lender /s/ Richard M. Osborne
----------------------
RICHARD M. OSBORNE
/s/ Richard B. Wise
- --------------------------
RICHARD B. WISE, PRESIDENT
<PAGE> 4
[PAGE 2 OF NOTE]
APPLICABLE LAW: The law of the state of Ohio will govern this note. Any term
of this note which is contrary to applicable law will not be effective, unless
the law permits you and me to agree to such a variation. If any provision of
this agreement cannot be enforced according to its terms, this fact will not
affect the enforceability of the remainder of this agreement. No modification
of this agreement may be made without your express written consent. Time is of
the essence in this agreement.
PAYMENTS: Each payment I make on this note will first reduce the amount I owe
you for charges which are neither interest nor principal. The remainder of
each payment will then reduce accrued unpaid interest, and then unpaid
principal. If you and I agree to a different application of payments, we will
describe our agreement on this note. I may prepay a part of, or the entire
balance of this loan without penalty, unless we specify to the contrary on this
note. Any partial prepayment will not excuse or reduce any later scheduled
payment until this note is paid in full (unless, when I make the prepayment,
you and I agree in writing to the contrary).
INTEREST: If I receive the principal in more than one advance, each advance
will start to earn interest only when I receive the advance. The interest rate
in effect on this note at any given time will apply to the entire principal
advance at that time. Notwithstanding anything to the contrary, I do not agree
to pay and you do not intend to charge any rate of interst that is higher than
the maximum rate of interest you could charge under applicable law for the
extension of credit that is agreed to here (either before or after maturity).
If any notice of interest accrual is sent and is in error, we mutually agree to
correct it, and if you actually collect more interest than allowed by law and
this agreement, you agree to refund it to me.
INDEX RATE: The index will serve only as a device for setting the rate on this
note. You do not guarantee by selecting this index, or the margin, that the
rate on this note will be the same rate you charge on any other loans or class
of loans to me or other borrowers.
ACCRUAL METHOD: The amount of interest that I will pay on this loan will be
calculated using the interest rate and accrual method stated on page 1 of this
note. For the purpose of interest calculation, the accrual method will
determine the number of days in a "year." If no accrual method is stated, then
you may use any reasonable accrual method for calculating interest.
POST MATURITY RATE: For purposes of deciding when the "Post Maturity Rate"
(shown on page 1) applies, the term "maturity" means the date of the last
scheduled payment indicated on page 1 of this note or the date you accelerate
payment on the note, whichever is earlier.
SINGLE ADVANCE LOANS: If this is a single advance loan, you and I expect that
you will make only one advance of principal. However, you may add other
amounts to the principal if you make any payments described in the "PAYMENTS BY
LENDER" paragraph below.
MULTIPLE ADVANCE LOANS: If this is a multiple advance loan, you and I expect
that you will make more than one advance of principal. If
<PAGE> 5
this is closed end credit, then repaying a part of the principal will not
entitle me to additional credit.
PAYMENTS BY LENDER: If you are authorized to pay, on my behalf, charges I am
obligated to pay (such as property insurance premiums), then you may treat
those payments made by you as advances and add them to the unpaid principal
under this note, or you may demand immediate payment of the charges.
SET-OFF: I agree that you may set off any amount due and payable under this
note against any right I have to receive money from you.
"Right to receive money from you" means:
(1) any deposit account balance I have with you;
(2) any money owed to me on an item presented to you or in your possession
for collection or exchange; and
(3) any repurchase agreement or other nondeposit obligation.
"Any amount due and payable under this note" means the total amount of which
you are entitled to demand payment under the terms of this note at the time you
set off. This total includes any balance the due date for which you properly
accelerate under this note.
If my right to receive money from you is also owned by someone who has not
agreed to pay this note, your right of set-off will apply to my interest in the
obligation and to any other amounts I could withdraw on my sole request or
endorsement. Your right of set-off does not apply to an account or other
obligation where my rights are only as a representative. It also does not
apply to any Individual Retirement Account or other tax-deferred retirement
account.
You will not be liable for the dishonor of any check when the dishonor
occurs because you set off this debt against any of my accounts. I agree to
hold you harmless from any such claims arising as a result of your exercise of
your right of set-off.
REAL ESTATE OR RESIDENCE SECURITY: If this note is secured by real estate or a
residence that is personal property, the existence of a default and your
remedies for such a default will be determined by applicable law, by the terms
of any separate instrument creating the security interest and, to the extent
not prohibited by law and not contrary to the terms of the separate security
instrument, by the "Default" and "Remedies" paragraphs herein.
DEFAULT: I will be in default if any one or more of the following occur: (1) I
fail to make a payment on time or in the amount due; (2) I fail to keep the
property insured, if required; (3) I fail to pay, or keep any promise on any
debt or agreement I have with you; (4) any other creditor of mine attempts to
collect any debt I owe him through court proceedings; (5) I die, am declared
incompetent, make an assignment for the benefit of creditors, or become
insolvent (either because my liabilities exceed my assets or I am unable to pay
my debts as they become due); (6) I make any written statement or provide any
financial information that is untrue or inaccurate at the time it was provided;
(7) I do or fail to do something which causes you to believe that you will have
difficulty collecting the amount I owe you; (8) any collateral securing this
note is used in a manner or for a purpose which threatens confiscation by a
legal authority; (9) I change my name or assume an additional name without
first notifying you before making such
<PAGE> 6
a change; (10) I fail to plant, cultivate and harvest crops in due season; (11)
any loan proceeds are used for a purpose that will contribute to excessive
erosion of highly erodible land or to the conversion of wetlands to produce an
agricultural commodity, as further explained in 7 C.F.R. Part 1940, Subpart G,
Exhibit M.
REMEDIES: If I am in default on this note you have, but are not limited to, the
following remedies:
(1) You may demand immediate payment of all I owe you under this note
(principal, accrued unpaid interest and other charges).
(2) You may set off this debt against any right I have to the payment of
money from you, subject to the terms of the "Set-Off" paragraph herein.
(3) You may demand security, additional security, or additional parties to be
obligated to pay this note as a condition for not using any other remedy.
(4) You may refuse to make advances to me or allow purchases on credit by me.
(5) You may use any remedy you have under state or federal law.
By selecting any one or more of these remedies, you do not give up your right
to later use any other remedy. By waiving your right to declare an event to be
a default, you do not waive your right to later consider the event as a default
if it continues or happens again.
COLLECTION COSTS AND ATTORNEY'S FEES: I agree to pay all costs of collection,
replevin or any other or similar type of cost if I am in default. In addition,
if you hire an attorney to collect this note, I also agree to pay any fee you
incur with such attorney plus court costs (except where prohibited by law). To
the extent permitted by the United States Bankruptcy Code, I also agree to pay
the reasonable attorney's fees and costs you incur to collect this debt as
awarded by any court exercising jurisdiction under the Bankruptcy Code.
WAIVER: I give up my rights to require you do to certain things. I will not
require you to:
(1) demand payment of amounts due (presentment);
(2) obtain official certification of nonpayment (protest); or
(3) give notice that amounts due have not been paid (notice of dishonor).
OBLIGATIONS INDEPENDENT: I understand that I must pay this note even if someone
else has also agreed to pay it (by, for example, signing this form or a
separate guarantee or endorsement). You may sue me alone, or anyone else who
is obligated on this note, or any number of us together, to collect this note.
You may do so without any notice that it has not been paid (notice of
dishonor). You may without notice release any party to this agreement without
releasing any other party. If you give up any of your rights, with or without
notice, it will not affect my duty to pay this note. Any extension of new
credit to any of us, or renewal of this note by all or less than all of us will
not release me from my duty to pay it. (Of course, you are entitled to only one
payment in full.) I agree that you may at your option extend this note or the
debt represented by this note, or any portion of the note or debt, from time to
time without limit or notice and for any term without affecting my liability
for payment of the note. I will not assign
<PAGE> 7
my obligation under this agreement without your prior written approval.
CREDIT INFORMATION: I agree and authorize you to obtain credit information
about me from time to time (for example, by requesting a credit report) and to
report to others your credit experience with me (such as a credit reporting
agency). I agree to provide you, upon request, any financial statement or
information you may deem necessary. I warrant that the financial statements
and information I provide to you are or will be accurate, correct and complete.
NOTICE: Unless otherwise required by law, any notice to me shall be given by
delivering it or by mailing it by first class mail, addressed to me at my last
known address. My current address is on page 1. I agree to inform you in
writing of any change in my address. I will give any notice to you by mailing
it first class to your address stated on page 1 of this agreement, or to any
other address that you have designated.
CONFESSION OF JUDGMENT: In addition to your remedies listed herein, I authorize
any attorney to appear in a court of record and confess judgment, without
process, against me, in favor of you, for any sum unpaid and due on this note,
together with costs of suit.
<PAGE> 1
Exhibit 7.5
<PAGE> 2
DEMAND PROMISSORY NOTE
$250,000.00 June 2, 1994
ON DEMAND AFTER DATE, FOR VALUE RECEIVED, the undersigned (herein
called the "Borrower") jointly and severally promises to pay to the order of
SOCIETY NATIONAL BANK, 127 Public Square, Cleveland, Ohio 44114 (herein called
the "Bank") the principal amount of Two Hundred Fifty Thousand and 00/100
Dollars or the unpaid principal balance shown on any allonge attached hereto,
or any ledger or other record of the Bank, which shall be rebutably presumptive
evidence at the principal amount owing and unpaid on this Note.
The Borrower agrees to pay to the Bank interest on the unpaid balance
of principal hereunder at a floating rate per annum equal to .50% in excess of
the Prime Rate in effect from time to time. The interest rate hereon will
change immediately and correspondingly with each change in the Prime Rate.
Interest hereon shall be payable quarterly on the first day of Sep, Dec, May,
Jun in each year, commencing on the first such date after the date hereof, and
on demand. Prior to demand for payment of the Note, for any payment of
principal or interest not paid when due, the Borrower shall pay a late charge
of an amount equal to the greater of $25.00 or 10% of the payment. In
addition, if this Note is not fully paid as to principal and interest upon
demand, the entire unpaid balance shall thereafter bear interest at the greater
of 3.50% in excess of the Prime Rate, which rate shall be immediately and
correspondingly adjusted with each change in the Prime Rate or 10.75%. In no
event shall the interest rate exceed the maximum permitted by law, interest
shall be calculated upon a year of 360 days for the actual number of days
elapsed. In no event shall the interest rate hereon exceed the highest rate
permitted by law. Loans evidenced by this Note shall at all times be made at
the sole discretion of Bank, and Bank shall not have any obligation whatsoever
to make any such loans.
The Prime Rate is defined as that interest rate established from time
to time by Bank as Bank's Prime Rate, whether or not such rate is publicly
announced. The Prime Rate may not be the lowest interest rate charged by Bank
for commercial or other extensions of credit.
The principal of this Note may be prepaid, in whole or in part, at any
time and from time to time.
Payment of the principal of, and interest on, this Note shall be made
in lawful money of the United States of America, at any office of the Bank, or
at such other place as the Bank or any subsequent holder hereof shall have
designated to the Borrower in writing. Any reference to the Bank as used in
this Note shall include in its meaning any subsequent holder of this Note.
In order to secure the principal of and interest on this Note and all
other liabilities of the Borrower or any of them, whether now existing or
hereafter contracted, and whether due or to become due and in whatsover way
acquired by or accruing to the Bank (all of which are herein collectively
called the "Liabilities"), the following documents have been executed
Unsecured.
All of the foregoing are hereinafter called the "Related Loan
Documents". This Note shall further be secured by any other document that may
already have been executed or that may hereafter be executed, including,
without limitation, Related Loan Documents for other Liabilities, which are
designed to give or grant unto the Bank a security interest. The above
described security interests
<PAGE> 3
shall survive the payment of this Note as to all Liabilities outstanding
on the date this Note is paid and the Bank may thereafter retain this Note and
the Related Loan Documents to evidence the grant of said security interests.
The Borrower waives demand, presentment for payment, notice of
dishonor, protest and notice of protest, and diligence in the collection and
bringing suit and agrees to the application of any bank balance as payment or
part payment of this Note, or as an offset thereto, and that the Bank may
extend the time for payment, accept partial payment, take security therefor, or
exchange or release any collateral, without discharging or releasing the
Borrower.
The Borrower hereby acknowledges that this Note was signed in Mentor,
Ohio.
8635 East Avenue /s/ Richard M. Osborne
Mentor, Ohio 44060 ________________________
Richard M. Osborne
<PAGE> 1
Exhibit 7.6
<PAGE> 2
April 18, 1995
Richard M. Osborne
Turkey Vulture Fund XIII, Ltd.
7001 Center Street
Mentor, Ohio 44060
Re: AGREEMENT, PROXY AND LIMITED POWER OF ATTORNEY
Dear Mr. Osborne:
In consideration of the purchase by Turkey Vulture Fund XIII, Ltd., an
Ohio limited liability company ("TVF"), of 372,600 Income Shares
of Beneficial Interest, stated value $8.00 per share (the "Shares"), of
Prudential Realty Trust, a Massachusetts business trust ("Prudential"), from
GM M/R/T MAGTEN FIXED HOURLY ("Owner"), the undersigned hereby agrees as
follows:
1. The undersigned hereby represents and warrants that (i) Owner
was the record holder of the Shares on March 16, 1995, (ii)
Owner is the legal and beneficial owner of the Shares on the
date hereof, (iii) the undersigned has full legal right and
authority to vote the Shares on behalf of Owner, and (iv) the
undersigned is duly authorized, and has the full legal right,
to sign any proxies with respect to the Shares on behalf of
Owner and to enter into this agreement.
2. The undersigned hereby irrevocably grants to TVF all rights
that it has to vote, and to execute and deliver written
consents or otherwise act with respect to, the Shares on
behalf of Owner at any annual or special meeting of
shareholders of Prudential occurring from the date hereof
through December 31, 1995, or any adjournment thereof, as
fully, to the same extent as we might or could do if the
undersigned were present and voting such Shares at such
meeting.
3. The undersigned hereby represents and warrants that it shall
(i) notify Richard M. Osborne, as promptly as practicable by
telephone or telecopier, of its receipt of any and all proxies
and related materials from or with respect to Prudential from
the date hereof through the later to occur of July 1, 1995 or
the date of any annual or special meeting of shareholders of
Prudential occurring thereafter through December 31, 1995, or
adjournment thereof, to which such proxies and related
materials relate, and (ii) complete, sign and deliver (at
TVF's expense) any such proxies on behalf of Owner only as
specifically directed by TVF. The undersigned acknowledges
and agrees that, as of the date set forth above, neither it
nor Owner has any authority to vote any of the Shares or to
sign any proxies relating to the Shares other than as may be
specifically requested by TVF.
4. The undersigned hereby irrevocably constitutes and appoints
Richard M. Osborne, with full power of substitution and re-
substitution, as the undersigned's true and lawful agent,
proxy and attorney-in-fact, and empower and authorize such
attorney, in the undersigned's name, place and stead, to
execute, deliver and do any and all acts necessary or
desirable in connection with any and all proxies received and
delivered by the undersigned to TVF hereunder with respect to
matters to be voted on by the stockholders of Prudential at
any meeting described in paragraph 3 above.
<PAGE> 3
Mr. Richard M. Osborne
Turkey Vulture Fund XIII, Ltd.
April 18, 1995
Page Two
5. The undersigned hereby agrees to immediately notify Owner of
the terms of this Agreement and to use its best efforts to
cause Owner to comply with the terms of this Agreement as if
it were a party hereto.
In the event that settlement of the purchase by TVF of the Shares does
not occur by the close of business on April 25, 1995, this agreement shall be
null, void and of no effect unless the undersigned agrees to an extension of
the settlement date.
Please indicate your agreement to the foregoing by executing and
delivering the enclosed copy of this letter to TVF.
Very truly yours,
GM M/R/T MAGTEN FIXED HOURLY
/s/Robert J. Capozzi
------------------------------------
By: Magten Asset Management Corp.
As Attorney-In-Fact for
GM M/R/T Magden Fixed Hourly
ACCEPTED AND AGREED TO BY:
TURKEY VULTURE FUND XIII, LTD.
By: /s/Richard M. Osborne
-----------------------------------------
Richard M. Osborne, its Managing Member
<PAGE> 1
Exhibit 7.7
<PAGE> 2
April 18, 1995
Richard M. Osborne
Turkey Vulture Fund XIII, Ltd.
7001 Center Street
Mentor, Ohio 44060
Re: AGREEMENT, PROXY AND LIMITED POWER OF ATTORNEY
Dear Mr. Osborne:
In consideration of the purchase by Turkey Vulture Fund XIII, Ltd., an
Ohio limited liability company ("TVF"), of 150,400 Income Shares
of Beneficial Interest, stated value $8.00 per share (the "Shares"), of
Prudential Realty Trust, a Massachusetts business trust ("Prudential"), from
HUGHES MASTER RETIREMENT TRUST ("Owner"), the undersigned hereby agrees as
follows:
1. The undersigned hereby represents and warrants that (i) Owner
was the record holder of the Shares on March 16, 1995, (ii)
Owner is the legal and beneficial owner of the Shares on the
date hereof, (iii) the undersigned has full legal right and
authority to vote the Shares on behalf of Owner, and (iv) the
undersigned is duly authorized, and has the full legal right,
to sign any proxies with respect to the Shares on behalf of
Owner and to enter into this agreement.
2. The undersigned hereby irrevocably grants to TVF all rights
that it has to vote, and to execute and deliver written
consents or otherwise act with respect to, the Shares on
behalf of Owner at any annual or special meeting of
shareholders of Prudential occurring from the date hereof
through December 31, 1995, or any adjournment thereof, as
fully, to the same extent as we might or could do if the
undersigned were present and voting such Shares at such
meeting.
3. The undersigned hereby represents and warrants that it shall
(i) notify Richard M. Osborne, as promptly as practicable by
telephone or telecopier, of its receipt of any and all proxies
and related materials from or with respect to Prudential from
the date hereof through the later to occur of July 1, 1995 or
the date of any annual or special meeting of shareholders of
Prudential occurring thereafter through December 31, 1995, or
adjournment thereof, to which such proxies and related
materials relate, and (ii) complete, sign and deliver (at
TVF's expense) any such proxies on behalf of Owner only as
specifically directed by TVF. The undersigned acknowledges
and agrees that, as of the date set forth above, neither it
nor Owner has any authority to vote any of the Shares or to
sign any proxies relating to the Shares other than as may be
specifically requested by TVF.
4. The undersigned hereby irrevocably constitutes and appoints
Richard M. Osborne, with full power of substitution and re-
substitution, as the undersigned's true and lawful agent,
proxy and attorney-in-fact, and empower and authorize such
attorney, in the undersigned's name, place and stead, to
execute, deliver and do any and all acts necessary or
desirable in connection with any and all proxies received and
delivered by the undersigned to TVF hereunder with respect to
matters to be voted on by the stockholders of Prudential at
any meeting described in paragraph 3 above.
<PAGE> 3
Mr. Richard M. Osborne
Turkey Vulture Fund XIII, Ltd.
April 18, 1995
Page Two
5. The undersigned hereby agrees to immediately notify Owner of
the terms of this Agreement and to use its best efforts to
cause Owner to comply with the terms of this Agreement as if
it were a party hereto.
In the event that settlement of the purchase by TVF of the Shares does
not occur by the close of business on April 25, 1995, this agreement shall be
null, void and of no effect unless the undersigned agrees to an extension of
the settlement date.
Please indicate your agreement to the foregoing by executing and
delivering the enclosed copy of this letter to TVF.
Very truly yours,
HUGHES MASTER RETIREMENT TRUST
/s/Robert J. Capozzi
-------------------------------------
By: Magten Asset Management Corp.
As Attorney-In-Fact for
Hughes Master Retirement Trust
ACCEPTED AND AGREED TO BY:
TURKEY VULTURE FUND XIII, LTD.
By: /s/Richard M. Osborne
-----------------------------------------
Richard M. Osborne, its Managing Member
<PAGE> 1
Exhibit 7.8
<PAGE> 2
April 18, 1995
Richard M. Osborne
Turkey Vulture Fund XIII, Ltd.
7001 Center Street
Mentor, Ohio 44060
Re: AGREEMENT, PROXY AND LIMITED POWER OF ATTORNEY
Dear Mr. Osborne:
In consideration of the purchase by Turkey Vulture Fund XIII, Ltd., an
Ohio limited liability company ("TVF"), of 57,900 Income Shares of
Beneficial Interest, stated value $8.00 per share (the "Shares"), of Prudential
Realty Trust, a Massachusetts business trust ("Prudential"), from NAVY EXCHANGE
SERVICE COMMAND ("Owner"), the undersigned hereby agrees as follows:
Retirement Trust
1. The undersigned hereby represents and warrants that (i) Owner
was the record holder of the Shares on March 16, 1995, (ii)
Owner is the legal and beneficial owner of the Shares on the
date hereof, (iii) the undersigned has full legal right and
authority to vote the Shares on behalf of Owner, and (iv) the
undersigned is duly authorized, and has the full legal right,
to sign any proxies with respect to the Shares on behalf of
Owner and to enter into this agreement.
2. The undersigned hereby irrevocably grants to TVF all rights
that it has to vote, and to execute and deliver written
consents or otherwise act with respect to, the Shares on
behalf of Owner at any annual or special meeting of
shareholders of Prudential occurring from the date hereof
through December 31, 1995, or any adjournment thereof, as
fully, to the same extent as we might or could do if the
undersigned were present and voting such Shares at such
meeting.
3. The undersigned hereby represents and warrants that it shall
(i) notify Richard M. Osborne, as promptly as practicable by
telephone or telecopier, of its receipt of any and all proxies
and related materials from or with respect to Prudential from
the date hereof through the later to occur of July 1, 1995 or
the date of any annual or special meeting of shareholders of
Prudential occurring thereafter through December 31, 1995, or
adjournment thereof, to which such proxies and related
materials relate, and (ii) complete, sign and deliver (at
TVF's expense) any such proxies on behalf of Owner only as
specifically directed by TVF. The undersigned acknowledges
and agrees that, as of the date set forth above, neither it
nor Owner has any authority to vote any of the Shares or to
sign any proxies relating to the Shares other than as may be
specifically requested by TVF.
4. The undersigned hereby irrevocably constitutes and appoints
Richard M. Osborne, with full power of substitution and re-
substitution, as the undersigned's true and lawful agent,
proxy and attorney-in-fact, and empower and authorize such
attorney, in the undersigned's name, place and stead, to
execute, deliver and do any and all acts necessary or
desirable in connection with any and all proxies received and
delivered by the undersigned to TVF hereunder with respect to
matters to be voted on by the stockholders of Prudential at
any meeting described in paragraph 3 above.
<PAGE> 3
Mr. Richard M. Osborne
Turkey Vulture Fund XIII, Ltd.
April 18, 1995
Page Two
5. The undersigned hereby agrees to immediately notify Owner of
the terms of this Agreement and to use its best efforts to
cause Owner to comply with the terms of this Agreement as if
it were a party hereto.
In the event that settlement of the purchase by TVF of the Shares does
not occur by the close of business on April 25, 1995, this agreement shall be
null, void and of no effect unless the undersigned agrees to an extension of
the settlement date.
Please indicate your agreement to the foregoing by executing and
delivering the enclosed copy of this letter to TVF.
Very truly yours,
NAVY EXCHANGE SERVICE COMMAND
RETIREMENT TRUST
/s/Robert J. Capozzi
-------------------------------------
By: Magten Asset Management Corp.
As Attorney-In-Fact for
Navy Exchange Service Command
Retirement Trust
ACCEPTED AND AGREED TO BY:
TURKEY VULTURE FUND XIII, LTD.
By: /s/Richard M. Osborne
-----------------------------------------
Richard M. Osborne, its Managing Member
<PAGE> 1
Exhibit 7.9
<PAGE> 2
April 18, 1995
Richard M. Osborne
Turkey Vulture Fund XIII, Ltd.
7001 Center Street
Mentor, Ohio 44060
Re: AGREEMENT, PROXY AND LIMITED POWER OF ATTORNEY
Dear Mr. Osborne:
In consideration of the purchase by Turkey Vulture Fund XIII, Ltd., an
Ohio limited liability company ("TVF"), of 78,500 Income Shares of
Beneficial Interest, stated value $8.00 per share (the "Shares"), of Prudential
Realty Trust, a Massachusetts business trust ("Prudential"), from WESTERN UNION
PENSION TRUST ("Owner"), the undersigned hereby agrees as follows:
1. The undersigned hereby represents and warrants that (i) Owner
was the record holder of the Shares on March 16, 1995, (ii)
Owner is the legal and beneficial owner of the Shares on the
date hereof, (iii) the undersigned has full legal right and
authority to vote the Shares on behalf of Owner, and (iv) the
undersigned is duly authorized, and has the full legal right,
to sign any proxies with respect to the Shares on behalf of
Owner and to enter into this agreement.
2. The undersigned hereby irrevocably grants to TVF all rights
that it has to vote, and to execute and deliver written
consents or otherwise act with respect to, the Shares on
behalf of Owner at any annual or special meeting of
shareholders of Prudential occurring from the date hereof
through December 31, 1995, or any adjournment thereof, as
fully, to the same extent as we might or could do if the
undersigned were present and voting such Shares at such
meeting.
3. The undersigned hereby represents and warrants that it shall
(i) notify Richard M. Osborne, as promptly as practicable by
telephone or telecopier, of its receipt of any and all proxies
and related materials from or with respect to Prudential from
the date hereof through the later to occur of July 1, 1995 or
the date of any annual or special meeting of shareholders of
Prudential occurring thereafter through December 31, 1995, or
adjournment thereof, to which such proxies and related
materials relate, and (ii) complete, sign and deliver (at
TVF's expense) any such proxies on behalf of Owner only as
specifically directed by TVF. The undersigned acknowledges
and agrees that, as of the date set forth above, neither it
nor Owner has any authority to vote any of the Shares or to
sign any proxies relating to the Shares other than as may be
specifically requested by TVF.
4. The undersigned hereby irrevocably constitutes and appoints
Richard M. Osborne, with full power of substitution and re-
substitution, as the undersigned's true and lawful agent,
proxy and attorney-in-fact, and empower and authorize such
attorney, in the undersigned's name, place and stead, to
execute, deliver and do any and all acts necessary or
desirable in connection with any and all proxies received and
delivered by the undersigned to TVF hereunder with respect to
matters to be voted on by the stockholders of Prudential at
any meeting described in paragraph 3 above.
<PAGE> 3
Mr. Richard M. Osborne
Turkey Vulture Fund XIII, Ltd.
April 18, 1995
Page Two
5. The undersigned hereby agrees to immediately notify Owner of
the terms of this Agreement and to use its best efforts to
cause Owner to comply with the terms of this Agreement as if
it were a party hereto.
In the event that settlement of the purchase by TVF of the Shares does
not occur by the close of business on April 25, 1995, this agreement shall be
null, void and of no effect unless the undersigned agrees to an extension of
the settlement date.
Please indicate your agreement to the foregoing by executing and
delivering the enclosed copy of this letter to TVF.
Very truly yours,
WESTERN UNION PENSION TRUST
/s/Robert J. Capozzi
-------------------------------------
By: Magten Asset Management Corp.
As Attorney-In-Fact for
Western Union Pension Trust
ACCEPTED AND AGREED TO BY:
TURKEY VULTURE FUND XIII, LTD.
By: /s/Richard M. Osborne
-----------------------------------------
Richard M. Osborne, its Managing Member
<PAGE> 1
Exhibit 7.10
<PAGE> 2
April 18, 1995
Richard M. Osborne
Turkey Vulture Fund XIII, Ltd.
7001 Center Street
Mentor, Ohio 44060
Re: AGREEMENT, PROXY AND LIMITED POWER OF ATTORNEY
Dear Mr. Osborne:
In consideration of the purchase by Turkey Vulture Fund XIII, Ltd., an
Ohio limited liability company ("TVF"), of 193,000 Income Shares
of Beneficial Interest, stated value $8.00 per share (the "Shares"), of
Prudential Realty Trust, a Massachusetts business trust ("Prudential"), the
undersigned hereby agrees as follows:
1. The undersigned hereby represents and warrants that he, she or
it (i) was the record holder of the Shares on March 16, 1995,
(ii) is the legal and beneficial owner of the Shares on the
date hereof, (iii) has full legal right and authority to vote
the Shares, and (iv) is duly authorized, and has the full
legal right, to sign any proxies with respect to the Shares
and to enter into this agreement.
2. The undersigned hereby irrevocably grants to TVF all rights
that he, she or it has to vote, and to execute and deliver
written consents or otherwise act with respect to, the Shares
at any annual or special meeting of shareholders of Prudential
occurring from the date hereof through December 31, 1995, or
any adjournment thereof, as fully, to the same extent as we
might or could do if he, she or it were present and voting
such Shares at such meeting.
3. The undersigned hereby represents and warrants that he, she or
it shall (i) notify Richard M. Osborne, as promptly as
practicable by telephone or telecopier, of his, her or its
receipt of any and all proxies and related materials from or
with respect to Prudential from the date hereof through the
later to occur of July 1, 1995 or the date of any annual or
special meeting of shareholders of Prudential occurring
thereafter through December 31, 1995, or adjournment thereof,
to which such proxies and related materials relate, and (ii)
complete, sign and deliver (at TVF's expense) any such proxies
only as specifically directed by TVF. The undersigned
acknowledges and agrees that, as of the date set forth above,
he, she or it has no authority to vote any of the Shares or to
sign any proxies relating to the Shares other than as may be
specifically requested by TVF.
4. The undersigned hereby irrevocably constitutes and appoints
Richard M. Osborne, with full power of substitution and re-
substitution, as the undersigned's true and lawful agent,
proxy and attorney-in-fact, and empower and authorize such
attorney, in the undersigned's name, place and stead, to
execute, deliver and do any and all acts necessary or
desirable in connection with any and all proxies received and
delivered by the undersigned to TVF hereunder with respect to
matters to be voted on by the stockholders of Prudential at
any meeting described in paragraph 3 above.
<PAGE> 3
Mr. Richard M. Osborne
Turkey Vulture Fund XIII, Ltd.
April 18, 1995
Page Two
In the event that settlement of the purchase by TVF of the Shares does
not occur by the close of business on April 25, 1995, this agreement shall be
null, void and of no effect unless the undersigned agrees to an extension of
the settlement date.
Please indicate your agreement to the foregoing by executing and
delivering the enclosed copy of this letter to TVF.
Very truly yours,
LOS ANGELES FIRE & POLICE PENSION
SYSTEM
/s/Gary Mattingly
---------------------------------------
Printed Name: GARY MATTINGLY
-------------------------
GENERAL MANAGER
ACCEPTED AND AGREED TO BY:
TURKEY VULTURE FUND XIII, LTD.
By: /s/Richard M. Osborne
-----------------------------------------
Richard M. Osborne, its Managing Member
