-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: keymaster@town.hall.org Originator-Key-Asymmetric: MFkwCgYEVQgBAQICAgADSwAwSAJBALeWW4xDV4i7+b6+UyPn5RtObb1cJ7VkACDq pKb9/DClgTKIm08lCfoilvi9Wl4SODbR1+1waHhiGmeZO8OdgLUCAwEAAQ== MIC-Info: RSA-MD5,RSA, bWRDG0RxBOxnUHYh5Jp7TsGJcgUUORUGoAtAFwr8fW7fQ9+JBZzxlE3BEIgGIinj dcpnCReae3YbbiKyUEWBoQ== 0000935886-95-000001.txt : 19950511 0000935886-95-000001.hdr.sgml : 19950511 ACCESSION NUMBER: 0000935886-95-000001 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19950509 SROS: NYSE SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: FIRST UNION REAL ESTATE EQUITY & MORTGAGE INVESTMENTS CENTRAL INDEX KEY: 0000037008 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 346513657 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-19676 FILM NUMBER: 95535553 BUSINESS ADDRESS: STREET 1: 55 PUBLIC SQUARE STREET 2: SUITE 1910 CITY: CLEVELAND STATE: OH ZIP: 44113 BUSINESS PHONE: 2167814030 MAIL ADDRESS: STREET 1: 55 PUBLIC SQUARE SUITE 1910 CITY: CLEVELAND STATE: OH ZIP: 44113 FORMER COMPANY: FORMER CONFORMED NAME: FIRST UNION REALTY DATE OF NAME CHANGE: 19691012 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: TURKEY VULTURE FUND XIII LTD CENTRAL INDEX KEY: 0000935886 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 7001 CENTER STREET CITY: MENTOR STATE: OH ZIP: 44060 BUSINESS PHONE: 2169511111 MAIL ADDRESS: STREET 2: 7001 CENTER ST CITY: MENTOR STATE: OH ZIP: 44060 SC 13D/A 1 TURKEY VULTURE FUND XIII, LTD. SC 13D/A 1 UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities and Exchange Act of 1934 (Amendment No. 5)* First Union Real Estate Equity and Mortgage Investments - ------------------------------------------------------------------------------- (Name of Issuer) Shares of Beneficial Interest - ------------------------------------------------------------------------------- (Title of Class of Securities) 337400-10-5 - ------------------------------------------------------------------------------- (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) May 8, 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). 2 CUSIP NO. 337400-10-5 SCHEDULE 13D - ------------------------------------------------------------------------------- 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) [ ] (b) [x] - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* BK,WC,OO - ------------------------------------------------------------------------------- 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 1,690,500 ------------------------------------------------------ BENEFICIALLY 8 SHARED VOTING POWER OWNED BY ------------------------------------------------------ EACH 9 SOLE DISPOSITIVE POWER REPORTING 1,690,500 ------------------------------------------------------ PERSON 10 SHARED DISPOSITIVE POWER WITH - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,690,500 - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*[ ] - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 9.3% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* OO - -------------------------------------------------------------------------------
3 CUSIP No. 337400-10-5 This Amendment No. 5 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 (1) certain changes with respect to the financing of shares of beneficial interest, $1.00 par value (the "Stock"), of First Union Real Estate Equity and Mortgage Investments ("First Union") previously reported as having been acquired by the Fund, (2) events relating to litigation commenced by First Union, and (3) certain other matters. Item 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. In connection with the purchase by the Fund of certain other securities (the "Non-First Union Stock"), the Fund transferred to its account at Smith Barney, Inc. ("Smith Barney") 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. The First Union Shares had been held in the Fund's account at Kemper Securities, Inc., as previously reported in the Schedule 13D Statement filed by the Fund on January 17, 1995 and Amendments No. 1 and 2 thereto filed by the Fund on February 13, 1995 and March 2, 1995, respectively ("Amendment No. 1" and "Amendment No. 2"). With respect to the margin debt at Smith Barney, interest thereon 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 First Union Shares. 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 hereto as Exhibit 7.13. 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. 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 the Non- First Union Stock 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 4 CUSIP No. 337400-10-5 distributions relating to securities in the Smith Barney account will be deposited into and credited to the account. A copy of the agreement is attached hereto as Exhibit 7.14. 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 7.15. In addition, in connection with the purchase by the Fund of the Non-First Union Stock, RMO contributed working capital to the Fund, the source of which was, in part, a line of credit from American National Bank of Parma, Ohio, dated June 24, 1994, in the principal amount of $300,000 (the "American Loan"). Initially, the American Loan had been used by RMO as the source of working capital for the Fund to purchase certain shares of Stock reported as having been acquired by the Fund in Amendments No. 3 and 4 to the Schedule 13D Statement filed by the Fund on March 13, 1995 and March 28, 1995, respectively ("Amendment No. 3" and "Amendment No. 4"). Following such initial use of the proceeds of the American Loan, RMO repaid the American Loan from personal funds. Item 4. PURPOSE OF TRANSACTION. As previously reported, on February 3, 1995, First Union commenced an action (the "First Union Action") in the U.S. District Court for the Northern District of Ohio, Eastern Division, against RMO, the Fund, The Wolstein Group, Inc., Bert Wolstein, Scott Wolstein, Heritage Capital Corporation, Developers Diversified Realty Corporation, 2000 OCC Corp., 1600 CNB Corp., Mark P. Escaja, Gerald E. Wedren and Craig Capital Co. (No. 1:95CV 0274) alleging that the named defendants were conspiring to take control of First Union, violated federal and state securities laws and breached certain obligations to other First Union shareholders. The allegations set forth in the First Union complaint are included in Amendment No. 1, the First Union complaint is attached as Exhibit 7.2 to Amendment No. 2 and the First Union amended complaint is attached as Exhibit 7.12 to Amendment No 4. On April 27, 1995, the Fund and RMO filed its answer and counterclaims to First Union's amended complaint. RMO and the Fund denied all charges made by First Union. In their counterclaims, RMO and the Fund allege that (1) First Union and its trustees failed to comply with the requirements of Section 14(a) of the Securities Exchange Act of 1934 and the corresponding rules adopted by the Securities and Exchange Commission, including by making false and misleading statements in violation of Rule 14a-9, in connection with various proxy solicitation materials distributed by First Union in connection with the April 11, 1995 annual meeting of First Union shareholders, (2) the trustees violated their fiduciary obligation to exercise reasonable prudence in investing the Trust's assets by paying an excessive amount for a property in Buffalo Grove, Illinois, known as "Woodland Commons," (3) the trustees have wasted First Union's assets by authorizing the prosecution of the First Union 5 CUSIP No. 337400-10-5 action against the Fund, RMO and others, and (4) First Union and its trustees have by commencing the First Union Action committed abuse of process. The Fund and RMO are seeking (1) an order nullifying the results of the vote from the April 11, 1995 annual meeting of First Union shareholders and requiring First Union to conduct a new election, (2) an order requiring First Union and its trustees to provide the Fund with a list of its shareholders, (3) an award of damages to First Union in the amount of $4.5 million, jointly and severally from each trustee for the alleged overpayment for Woodland Commons, (4) an award of damages to First Union in the amount of $950,000, jointly and severally from each trustee for the alleged abuse of process, (5) an award to the Fund and RMO of compensatory damages in the amount of $500,000 and punitive damages in the amount $1.0 million, jointly and severally from First Union and each trustee, and (6) an order declaring invalid the provisions in First Union's By-Laws that prohibit any person from owning more than 9.8% of the outstanding shares of Stock and First Union's Rights Agreement, dated March 7, 1990, which Rights Agreement is commonly known as a poison pill. The trial date for the First Union Action is October 31, 1995. Item 5. INTEREST IN SECURITIES OF THE ISSUER. In connection with the First Union Action, RMO and the Fund have previously provided First Union with the names of the members of the Fund and the names of such members were reported in Amendments No. 2 and No. 4. In addition to the members previously reported, new members of the Fund are as follows: Maureen E. Osborne and Jerome T. Osborne, Jr. Trust "B." RMO is one of the trustees of the Jerome T. Osborne, Jr. Trust "B." As previously reported, RMO, as sole managing member of the Fund, may be deemed to beneficially own the shares of Stock owned directly by the Fund, and under Section 13d(3), RMO and the Fund may be deemed members of a group. RMO and the Fund disclaim that they are members of a group, and nothing in this Amendment No. 5 to Schedule 13D Statement shall be deemed an admission that they are members of a group. In addition, RMO and the Fund disclaim that they or either of them are members of a group with the members of the Fund, and nothing in this Amendment No. 5 to Schedule 13D Statement shall be deemed an admission that they or either of them are members of a group. Item 7. MATERIAL TO BE FILED AS EXHIBITS. Exhibit 7.13 -- Client Agreement between Smith Barney and the Fund Exhibit 7.14 -- Agreement between Smith Barney, the Fund and RMO Exhibit 7.15 -- RMO Guarantee
6 CUSIP No. 337400-10-5 After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. TURKEY VULTURE FUND XIII, LTD. Dated: May 8, 1995 /s/ Richard M. Osborne ----------------------- Richard M. Osborne Managing Member 7 EXHIBIT INDEX Exhibit 7.13 -- Client Agreement between Smith Barney and the Fund Exhibit 7.14 -- Agreement between Smith Barney, the Fund and RMO Exhibit 7.15 -- RMO Guarantee
EX-7.13 2 FIRST UNION EX-7.13 1 EXHIBIT 7.13 SMITH BARNEY CLIENT AGREEMENT Account Number 224-43061-1-0-005 Before you sign this Agreement, please read it carefully. Instructions for the completion of this Agreement are contained in the accompanying booklet entitled "Important New Account Information." After you have completed and signed this Agreement, please return it in the enclosed postage-paid envelope. Note: Signatures are MANDATORY in either Sections A and C OR Section B and C. Account Title Turkey Vulture Fund XIII Ltd Street Address 7001 Center Street City Mentor State Ohio ZIP Code 44060 In consideration of Smith Barney Inc. accepting an account for me, (us), I (we), hereby acknowledge that I (we) have read, understand and agree to the terms of this Agreement contained in the sections numbered 1 through 11. If this is a margin account, I (we) further acknowledge that I (we) have read, understand and agree to the terms of this Agreement contained in the sections numbered 15 through 17. If this is a joint account, we further acknowledge that we have read, understand and agree to the terms of this Agreement contained in the sections numbered 12 through 14. Note: Texas residents with joint accounts must also execute a Texas Joint Account Supplement agreement (form 3882). A. Cash Accounts. I (we) acknowledge that I (we) have received a copy of this Agreement which contains a pre-dispute arbitration clause at section 6. If this is a joint account, all parties must sign. Account Owner's Signature /s/ Richard M. Osborne B. Margin Accounts. By signing this Agreement, I (we) acknowledge that my (our) securities may be loaned to you or loaned out to others. I (We) acknowledge that I (we) have received a copy of this Agreement which contains a pre-dispute arbitration clause at section 5. If this is a joint account, all parties must sign. Account Owner's Signature /s/ Richard M. Osborne 2 C. Tax Certification (See Instructions on the last page of this form). Under penalties of perjury, I certify that the number shown below is my correct taxpayer identification number or if not, then the number I have entered below is my correct tax identification number, and that I am not subject to backup withholding because: (a) I have not been notified by the Internal Revenue Service (IRS) that I am subject to backup withholding as a result of a failure to report all interest or dividends, or (b) the IRS has notified me that I am no longer subject to backup withholding (see below), or, (c) I am exempt from backup withholding (see below). Note: you must cross out (b) above if you are currently subject to backup withholding because of underreporting interest or dividends on your tax return. For those exempt from backup withholding, write the word "EXEMPT" here: The Social Security Number or Tax Identification Number on Smith Barney's records is: 341786314 The Social Security Number or Tax Identification Number shown to the left is incorrect. The CORRECT number is: Note for joint accounts: The Social Security Number of this account is the number of the client whose name appears first in the account title. Do not enter the number of any other account owner. Account Owner's Signature /s/ Richard M. Osborne D. Name Disclosure. Please indicate your choice as to the release or withholding of your name, address and securities positions to issuing corporations. [X] NO, I do not want [ ] YES, I do want My name, address and securities positions disclosed to any companies, upon their request, in which I own securities that we are being held for me at Smith Barney Inc. E. Money Market Fund Agreement. Available cash in your account will automatically be invested or "swept" into the money market fund of your choice. If you do not elect to have the automatic money market fund sweep, please check the "NO" box below. If you wish to change your choice of money market fund, please contact your Financial Consultant. Note to Wisconsin residents: You must indicate below specifically whether or not you wish to have a money market sweep for your account. [ ] NO, I do not want cash balances in my account to be automatically spent into a money market fund [X] YES, I would like the cash balances in my account to be automatically swept into the fund of my choice 3 F. Tenancy In Common. DO NOT Complete This Section If You Wish To Establish A Joint Account With Rights of Survivorship. In the event of the death of either or any of the undersigned, the interest in the account as of the close of business on the date of the death of the decedent, or on the following business day if the date of death is not a business day shall be as follows: Note: Texas residents with joint account must also execute a Texas Joint Account Supplement agreement (form 3882). In consideration of your opening one or more accounts for me ("we", "us" and "our", are each substituted for "I", "me" and "my", respectively, in the case of multiple account holders, corporations and other entities), and your agreeing to act as broker/dealer for me for the extension of credit and in the purchase or sale of securities, commodities, options and other property, it is agreed in respect to any and all accounts, whether upon margin or otherwise, which I now have or may at any future time have with Smith Barney Inc. or your successors (hereinafter referred to as "you" or "your", or "SB"), that; 1. All transactions entered into under this Agreement shall be subject to any applicable constitution, rules, regulations, customs and usages of the exchange or market and its clearinghouse, if any, where such transactions are executed by SB or its agents and to all applicable laws, rules and regulations of governmental authorities and self-regulatory agencies. Such reference to the "constitution, rules, regulations, customs and usages of the exchange" shall in no way be construed to create a cause of action arising from any violation of such constitution, rules, regulations, customs and usages. If any provision is enacted that would be inconsistent with any of the provisions of this Agreement, the provision so affected shall be deemed modified or superseded by the enactment, but the remaining provisions of this Agreement shall remain in effect. Except as herein provided, no provision of this Agreement may be waived, altered, modified or amended unless the same is in writing and signed by an authorized official of SB. 2. I agree that all property of mine, whether owned individually, jointly or in the name of another, which at any time may be in your possession or control for any purpose, including safekeeping, shall be subject to a continuing security interest, lien and right of set-off for the discharge of all of my indebtedness and other obligations to SB, and will be held by SB as security for the payment of any of my indebtedness or obligations to SB. In enforcing your security interest, you shall have the discretion to determine which property is to be sold and the order in which it is to be sold and shall have all the rights and remedies available to a secured party under the New York Uniform Commercial Code. Without your prior written consent, I will not cause or allow any of the collateral held in my account(s), whether now consent, I will not cause or allow any of the collateral held in my account(s), whether now owned or hereafter acquired, to be or become subject to any liens, security interests, mortgages or encumbrances of any nature other than your security interest. 4 Without limiting the generality of the foregoing, I hereby authorize SB to automatically liquidate any money market funds available in my account(s) from time to time to cover any of my indebtedness or obligations to SB including non-trade related debts. You are further authorized to liquidate any other property held in my account(s) to satisfy any such indebtedness or obligations whenever in your discretion you consider it necessary for your protection. "Property" as used anywhere in this Agreement shall include, but not be limited to, securities of all kinds, money, certificates of deposit, bankers' acceptances, commercial paper, options, commodities, and contracts for the future delivery of commodities or relating to commodities or securities, and the distributions, proceeds, products and accessions of any of the above. 3. In case of the sale of any security, commodity, or other property at my direction and the inability of SB to deliver the same to the purchaser by reason of my failure to supply them to SB, I authorize SB to borrow any security, commodity, or other property necessary to make delivery thereof, and I hereby agree to be responsible for any loss which SB may sustain thereby and any premiums, interest or other costs which SB may be required to pay as a result of such borrowing, and for any loss or cost which SB may sustain by reason of its inability to borrow the security, commodity, or other property sold. You may charge my account(s) with such usual and customary charges as you may determine to cover your services and facilities, including, but not limited to, custody and transaction fees. I will promptly pay SB any deficiency that might arise in my account(s). I understand and agree that a finance charge may be charged on any debit balance in any cash account I have with SB in accordance with the SB policy described in the accompanying literature regarding new accounts. You may transfer excess funds between any of my accounts (including commodity accounts) for any reason not in conflict with the Commodity Exchange Act or any other applicable law. If any transactions are effected on an exchange in which a foreign currency is used, any profit or loss as a result of a fluctuation in the exchange rate will be charged or credited to my account(s). 4. Communications may be sent to the mailing address on file with you, or at such other address as I may hereafter give in writing, and all communications so sent, whether by mail, telegraph, messenger or otherwise, shall be deemed given to me personally, whether actually received or not. Transactions entered into for my account(s) shall be confirmed in writing to me where required by applicable law or regulation. In addition, SB shall provide me with periodic statements reflecting activity in such account(s). I agree the transactions reflected on such confirmations and statements shall be conclusively deemed accurate as stated unless I notify SB in writing within three (3) days and ten (10) days of receipt, respectively, that the information contained in such confirmation or statement is inaccurate. Such notice must be sent by me to SB by telegram or letter directed to the attention of the Branch Office Manager of the office servicing the account. Failure to so notify SB shall also preclude me from asserting at any later date that such transaction was unauthorized. 5 I authorize you at your discretion to obtain reports and to provide information to others concerning my credit standing and my business conduct. You may ask credit reporting agencies for consumer reports of my credit history. Upon my request you will inform me whether you have obtained any such consumer reports and if you have, you will inform me of the name and address of the consumer reporting agency that furnished the reports to you. 5. I hereby represent that I am of the age of majority. Unless I advise you to the contrary, in writing, and provide you with a letter of approval from my employer, where required, I represent that I am not an employee of any exchange, or of any corporation of which any exchange owns a majority of the capital stock, or of a member of any exchange, or of a member firm or member corporation registered on any exchange, or of any corporation, firm or individual engaged in the business of dealing, either as a broker or as principal, in securities, bills of exchange, acceptances or other forms of commercial paper. I further represent that no one except those signing this agreement has an interest in my account. If my account has been introduced to you and is carried by you only as a clearing broker, I agree that you are not responsible for the conduct of the introducing broker and your only responsibilities to me relate to the execution, clearing and bookkeeping of transactions in my accounts. 6. ARBITRATION. Arbitration is final and binding on the parties. The parties are waiving their right to seek remedies in court, including the right to jury trial. Pre-arbitration discovery is generally more limited than and different from court proceedings. The arbitrators' award is not required to include factual findings or legal reasoning, and any party's right to appeal or to seek modification of rulings by the arbitrators is strictly limited. The panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry. I agree that all claims or controversies, whether such claims or controversies arose prior, on or subsequent to the date hereof, between me and SB and/or any of its present or former officers, directors, or employees concerning or arising from (i) any account maintained by me with SB individually or jointly with others in any capacity; (ii) any transaction involving SB or any predecessor firms by merger, acquisition or other business combination and me, whether or not such transaction occurred in such account or accounts; or (iii) the construction, performance or breach of this or any other agreement between us, any duty arising from the business of SB or otherwise, shall be determined by arbitration before, and only before, any self-regulatory organization or exchange of which SB is a member. I may elect which of these arbitration forums shall hear the matter by sending a registered letter or telegram addressed to Smith Barney Inc. at 388 Greenwich Street, New York, N.Y. 10013- 2396, Attn: Law Department. If I fail to make such election before the expiration of five (5) days after receipt of a written request from SB to make such election, SB shall have the right to choose the forum. 6 No person shall bring a putative or certified class action to arbitration, nor seek to enforce any pre-dispute arbitration agreement against any person who has initiated in court a putative class action; or who is a member of a putative class who has not opted out of the class with respect to any claims encompassed by the putative class action until: (i) the class certification is denied; (ii) the class is decertified; or (iii) the customer is excluded from the class by court. Such forbearance to enforce an agreement to arbitrate shall not constitute a waiver of any rights under this agreement except to the extent stated herein. The foregoing agreement to arbitrate does not entitle me to obtain arbitration of claims that would be barred by the relevant statutes of limitations if such claims were brought in a court of competent jurisdiction. If, at the time that a demand for arbitration is made or an election or notice of intention to arbitrate is served, the claims sought to be arbitrated would have been barred by the relevant statute of limitations or other time bar, any party to this Agreement may assert the limitations as a bar to the arbitration by applying to any court of competent jurisdiction, and I expressly agree that any issues relating to the application of a statute of limitations or other time bar, are referable to such court. The failure to assert such bar by application to a court, however, shall not preclude its assertion before the arbitrators. 7. The provisions of this Agreement shall be continuous, shall cover individually and collectively all accounts which I may open or reopen with SB, and shall inure to the benefit of SB's present organization, and any successor organization or assigns. Should any term or provision of this Agreement be deemed or held to be invalid or unenforceable, the remaining terms and provisions shall continue in full force and effect. This Agreement, all the terms herein, and all controversies described in Paragraph 6 shall be governed and construed in accordance with the laws of the State of New York, including, but not limited to, the law of New York regarding the permissible rates of interest that may be charged and the law of New York regarding damages recoverable in arbitration, without giving effect to principles of conflicts of law. This choice of law clause shall not govern the choice of statues of limitations applicable to claims and controversies described in Paragraph 6, and the statute of limitations applicable to claims and controversies described in Paragraph 6, and the statute of limitations applicable to any such claim or controversy shall be that which would be applied by the federal district court for the district in which I reside. 8. I understand that you may in your sole discretion prohibit or restrict trading of securities or substitution of securities in any of my accounts. You have the right to terminate any of my accounts (including multiple owner accounts) at any time by notice to me. The provisions of this agreement shall survive the termination of any account. 7 9. Your failure to insist at any time upon strict compliance with any term of this Agreement, or any delay or failure on your part to exercise any power or right given to you in this Agreement, or a continued course of such conduct on your part shall at no time operate as a waiver of such power or right, nor shall any single or partial exercise preclude any other further exercise. All rights and remedies given to you in this Agreement are cumulative and not exclusive of any other rights or remedies which you otherwise have. 10. I understand that SB shall not be liable for loss caused directly or indirectly by government restrictions, exchange or market rulings, suspension of trading, war, strikes or other conditions, commonly known as "acts of God," beyond SB's control. 11. From time to time you may at your discretion, make loans to me for a purpose other than purchasing, carrying or trading in securities ("Express Credit Loans"). Express Credit Loans will be made in a nonsecurities credit account ("Express Credit Account"). The minimum and maximum amount of any particular loan may be established by you in your discretion regardless of the amount of collateral delivered to you and you may change such minimum and maximum amounts from time to time. I agree not to use the proceeds of any Express Credit Loan to purchase, carry or trade in securities, I also agree not to use Express Credit Loan proceeds directly or indirectly to repay other debt that I incur for the purpose of purchasing, carrying or trading in securities. JOINT ACCOUNT AGREEMENT PARAGRAPHS 12 THROUGH 14 APPLY ONLY TO JOINT ACCOUNT AGREEMENTS 12. If this is a joint account, in consideration of you and your successors carrying a joint account on margin or otherwise for the undersigned, each of us agrees to be jointly and severally liable for said account and to pay on demand any debit balance of losses at any time due in this account. Any of us has full power and authority to make purchases and sales, including short sales, to withdraw monies and securities from, or to do anything less with reference to our account, either individually or in our joint names, and you and your successors are authorized and directed to act upon instructions received from any of us and to accept payment and securities from any of us for the credit of this account. Any and all notices, communications, or any demands for margin sent to any of us shall be binding upon all, and may be given by mail or other means of communication. 13. Each of us agrees to hold SB harmless from and indemnify SB against any losses, causes of action, damages and expenses arising from or as the result of SB following the instructions of either or any of us. SB, in its sole discretion, may at any time suspend all activity in the joint account pending instructions from a court of competent jurisdiction or require that instructions pertaining to the joint account or the property therein be in writing signed by both or all of us. SB shall be entitled to recover from the account or from any of us prior to distribution of the funds or property therein such costs as it may incur, including reasonable attorney's fees, as the result of any dispute between or among us relating to or arising from the account. 8 14. Each of us agrees that, in the event of the death of either or any of us, the survivor or survivors shall immediately give you written notice thereof, and you may, before or after receiving such notice, take such actions, require such papers, inheritance or estate tax waivers, retain such portion of the account as you may deem advisable to protect you against any tax, liability, penalty or loss under any present or future laws or otherwise. The estate of either or any of us who shall have died shall be liable and each survivor shall continue liable, jointly and severally, to you for any net debit balance or loss in said account in any way resulting from the completion of transactions initiated prior to the receipt by you of the written notice of the death of the decedent, or incurred in the liquidation of the account or the adjustment of the interests of the respective parties. If this account is a joint tenancy account with rights of survivorship, and not a tenancy in common, in the event of the death of either or any of us, the entire interest in the joint tenancy account shall be vested in the survivor or survivors on the same terms and conditions as previously held, without in any manner releasing the decedent's estate from the liability provided for herein. If this account is a tenancy in common, in the event of the death of either or any of us, the interests in the account shall be determined as specified on the signature section of this Agreement and shall be held upon the same terms and conditions as previously held, without in any manner releasing the decedent's estate from the liability provided for herein. SB will assume that our account is a joint account with right of survivorship unless we elect a tenancy in common by completing Section F on Page 1 of this Agreement MARGIN AGREEMENT PARAGRAPHS 15 THROUGH 17 APPLY ONLY TO MARGIN ACCOUNTS 15. You are hereby authorized, without notice to me, and without regard as to whether or not you have in your possession or under your control at the time thereof other property of the same kind and amount, to pledge, repledge, hypothecate or rehypothecate my property or any part thereof, either separately or together with other property of other clients, either for the amount due you from me or for a greater sum. 16. I agree to pay ON DEMAND any balance owing with respect to any of my accounts including interest and commissions and any costs of collection (including attorneys' fees if incurred by you). I understand that you may demand full payment of the balance due my account plus any interest charges accrued thereon, at your sole option, at any time without cause and whether or not such demand is made for your protection. I understand that all loans made are not for any specific term or duration but are due and payable at your discretion upon a demand for payment made to me. I agree that all payments received from my account(s) including interest, dividends, premiums, principal or other payments may be applied by you to any balances due in my account(s). If I maintain both a cash and a margin account with you, you are authorized in your discretion to utilize the equity in either type of account in satisfaction of any maintenance margin requirement without the actual transference of funds or securities between such accounts. 9 Whenever you deem it necessary or appropriate for your protection, you are authorized in your sole discretion, to sell, assign, transfer and deliver all or any part of my property which may be in your possession or control in any manner you deem appropriate, make any necessary purchases to cover short sales and/or any open commodity contract position and/or to cancel any outstanding orders in order to close out the account. Without limiting the generality of the foregoing, such sale, purchase or cancellation may be made, in your sole discretion, on the exchange or other market where such business is then usually transacted, at public auction or at private sale without advertising the same. All of the above may be done without demand for margin or notice of purchase, sale or cancellation to me. No demand for margin, or notice given to me of intent to purchase or sell property or to cancel orders in my account, shall impose on you any obligation to make such demand or provide such notice to me. Any such notice or demand is hereby expressly waived, and no specific demand or notice shall invalidate this waiver. After deducting all costs and expenses of the purchase and/or sale and deliveries, including, but not limited to, commissions and transfer and stamp taxes, you shall apply the residue of the proceeds to the payment of any and all of my liabilities to you, and I shall remain liable for an deficiency. Upon any such sale, you may purchase the whole or any part thereof free from any right of redemption. In the event of my death or incompetency, the authority given by this Paragraph shall continue effective and shall be binding upon my personal representatives and heirs. 17. I will at all times maintain such margin for my account maintained by SB, as SB may require from time to time, and any debit balances arising in such account shall be charged interest in accordance with the SB policy described in the accompanying literature regarding new accounts provided by you under Rule 10b-16 of the Securities Exchange Act of 1934, as amended from time to time. I am aware that interest charges, if not paid, will be added to the debit balance in my account for the next interest period. I am aware and agree that you may impose, for my account(s), margin requirements more stringent than those required by law or exchange regulations. I further understand and agree that such margin requirements may be changed and modified by you from time to time without prior notice to me. I further agree that any waiver by your or failure to promptly enforce, as to my account or that of others, such margin requirements shall not in any way prevent you from subsequently enforcing said margin requirements with regard to my account. EX-7.14 3 FIRST UNION EX-7.14 1 EXHIBIT 7.14 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 2 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. 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 ----------------------------- EX-7.15 4 FIRST UNION EX-7.15 1 EXHIBIT 7.15 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 -----END PRIVACY-ENHANCED MESSAGE-----