-----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, gHnQl/6ZTfqdf4USq0lIm0Vtq2zzWMS6Pr+9QyIlCuE+yLw9X+1sjdgRKAU0gp+9 KxUfE18B6BRvj9mmkrWzxA== 0000950136-95-000091.txt : 19950615 0000950136-95-000091.hdr.sgml : 19950615 ACCESSION NUMBER: 0000950136-95-000091 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 19950313 SROS: NONE 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: 95520438 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 AMENDED SCHEDULE 13D UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D UNDER THE SECURITIES AND EXCHANGE ACT OF 1934 (AMENDMENT NO. 3 )* First Union Real Estate Equity and Mortgage Investments - ------------------------------------------------------------------------------- (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) March 10, 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). SCHEDULE 13D CUSIP NO. 337400-10-5 - ------------------------------------------------------------------------------- 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* WC, OO - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) (b ) [ ] - ------------------------------------------------------------------------------- 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 - ------------------------------------------------------------------------------- SCHEDULE 13D CUSIP NO. 337400-10-5 - ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Steven A. Calabrese - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ x ] - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* PF, OO - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) OR 2(e) (b) [ ] - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION United States of America - ------------------------------------------------------------------------------- NUMBER OF | 7 SOLE VOTING POWER SHARES | 17,000 BENEFICIALLY | 8 SHARED VOTING POWER OWNED BY | EACH | 9 SOLE DISPOSITIVE POWER REPORTING | 17,000 PERSON | 10 SHARED DISPOSITIVE POWER WITH | - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 17,000 - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) Less than 0.1% - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* IN - ------------------------------------------------------------------------------- CUSIP NO. 337400-10-5 This Amendment No. 3 to Schedule 13D Statement is filed on behalf of TURKEY VULTURE FUND XIII, LTD., an Ohio limited liability company (the "Fund"), and Steven A. Calabrese, an United States citizen, for the purpose of reporting (1) the acquisition by the Fund of 725,000 shares of beneficial interest, $1.00 par value (the "Stock"), of First Union Real Estate Equity and Mortgage Investments ("First Union"), which together with the other Stock beneficially owned by the Fund represents approximately 9.3% of the Stock currently outstanding, and (2) certain other matters. Item 2. Identity and Background. As previously reported, on March 1, 1995, the Committee to Unlock the Value of First Union Real Estate Investments (the "Committee") filed a Schedule 14A with the Securities and Exchange Commission (the "SEC") containing soliciting material published, sent or given to First Union shareholders prior to the furnishing of the written proxy statement. The Committee consists of Steven A. Calabrese, who is managing partner of R-C Enterprises, a general partnership, which is a member of the Fund ("R-C Enterprises"); Richard M. Osborne, the sole managing member of the Fund ("RMO"); and James R. Webb. In the event that, as of March 1, 1995, RMO and Steven A. Calabrese by serving together as nominees of the Committee may be deemed to be members of a group even though there is no agreement that they will vote for each other or James C. Webb, the following disclosure is provided by Mr. Calabrese: (a) Mr. Calabrese's full name is Steven A. Calabrese. (b) The business address of Mr. Calabrese is 1110 Euclid Avenue, Suite 300, Cleveland, Ohio 44115. (c) The principal business of Mr Calabrese is Executive Vice President and a Director of Calabrese, Racek and Markos, Inc. ("CRM"), a commercial-industrial Cleveland, Ohio real estate appraisal company located in Cleveland, Ohio. He is also an executive officer and a Director of CR Management, Inc., CRM Construction Services, Inc. and CRM Environmental Services, Inc., affiliates of CRM, that are located in Cleveland and provide full-service real estate property management, construction and environmental services. The address of CRM and its affiliates is 1110 Euclid Avenue, Suite 300, Cleveland, Ohio 44115. (d) Negative with respect to Mr. Calabrese. (e) Negative with respect to Mr. Calabrese. (f) Mr. Calabrese is a citizen of the United States of America. CUSIP NO. 337400-10-5 Item 3. Source and Amount of Funds or Other Consideration. The Stock reported herein as having been acquired by the Fund was acquired for an approximate aggregate purchase price of approximately $5.8 million, $2.9 million of which will be from working capital of the Fund and $2.9 million of which will be in the form of margin debt from Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ"). The working capital of the Fund will be contributed by RMO and the other members of the Fund. The exact proportions of such contributions have not been finally determined. Interest on the margin debt is charged, in accordance with DLJ's usual custom, at a rate permitted by the laws of the State of New York. Interest charged at the close of a charge period is added to the opening balance for the next charge period unless paid. DLJ has a lien on the Stock reported herein as having been acquired by the Fund. A copy of the agreement setting forth the terms of the margin debt is attached hereto as Exhibit 7.5. The Stock reported herein as having been acquired by Mr. Calabrese was acquired for an approximate aggregate purchase price of approximately $133,000, $82,000 of which was from personal funds and $51,000 of which was in the form of margin debt from Merrill Lynch, Pierce, Fenner & Smith Incorporated ("Merrill"). Of the 17,000 shares of Stock purchased by Mr. Calabrese, the 13,200 shares of Stock purchased on January 17, 1995 were purchased by Mr. Calabrese and his wife and subject to a margin agreement with Merrill. The $51,000 margin debt was incurred in the transactions regarding said 13,200 shares. On or about March 9, 1995, said 13,200 shares were transferred by Mr. Calabrese to R-C Enterprises subject to a margin agreement between R-C Enterprises and Merrill. Pursuant to such agreement, interest on the margin debt is charged, in accordance with Merrill's usual custom, at a rate permitted by the laws of the State of New York. The interest charge made at the close of a charge period is, unless paid, added to the opening balance for the next charge period, and interest is charged upon such opening balance, including all interest so added. Merrill has a lien on the Stock reported herein as having been acquired by Mr. Calabrese. A copy of the agreement setting forth the terms of the margin debt of R-C Enterprises is attached as Exhibit 7.6 hereto. Item 4. Purpose of Transaction. As previously reported, on March 1, 1995, the Committee to Unlock the Value of First Union Real Estate Investments (the "Committee"), which consists of RMO, James R. Webb and Mr. Calabrese, filed a Schedule 14A with the Securities and Exchange Commission (the "SEC") containing soliciting material published, sent or given to First Union shareholders prior to the furnishing of the written proxy statement. A copy of the soliciting material is attached as Exhibit 7.4 to Amendment No. 2 to the Schedule 13D Statement filed by the Fund on March 2, 1995. On March 3, 1995, the Committee filed a preliminary proxy statement on Schedule 14A with the SEC, and on March 9, 1995, the Committee filed an amendment to the preliminary proxy statement with the SEC. CUSIP No. 337400-10-5 The 725,000 shares of Stock reported herein as having been acquired by the Fund were acquired with voting and proxy rights that entitle the Fund to vote such shares of Stock at the April 11, 1995 annual meeting of the beneficiaries of First Union. Such shares may be voted by the Fund in the election for trustees of First Union. A copy of each of the agreements granting such rights is attached as Exhibits 7.7 and 7.8 hereto, respectively. Item 5. Interest in Securities of the Issuer. As previously reported, RMO, as sole managing member of the Fund, may be deemed to beneficially own the shares of Stock owned directly by the Fund, and under Section 13d(3), RMO and the Fund may be deemed members of a group. RMO and the Fund disclaim that they are members of a group, and nothing in this Amendment No. 3 to Schedule 13D Statement shall be deemed an admission that they are members of a group. In addition, RMO, the Fund and Mr. Calabrese disclaim that they or any of them are members of a group with the members of the Fund, and nothing in this Amendment No. 3 to Schedule 13D Statement shall be deemed an admission that they or any of them are members of a group. The information reported herein by Mr. Calabrese is made solely in the event that, as of March 1, 1995, RMO and Steven A. Calabrese by serving together as nominees of the Committee may be deemed to be members of a group even though there is no agreement that they will vote for each other or James C. Webb. (a) According to the most recently available filing with the SEC by First Union, there are 18,262,725 shares of the Stock outstanding. The Fund beneficially owns 1,690,500 shares of Stock, or approximately 9.3% of the outstanding Stock. Mr. Calabrese beneficially owns 17,000 shares of Stock, or less than 0.1% of the outstanding Stock. (b) The Fund, and RMO as sole managing member thereof, has sole power to vote, or to direct the voting of, and the sole power to dispose or to direct the disposition of, the 1,690,500 shares of Stock owned by the Fund. Mr. Calabrese has sole power to vote, or to direct the voting of, and the sole power to dispose or to direct the disposition of, the 17,000 shares of Stock owned by him. (c) During the past 60 days and in addition to the transactions reported on the Schedule 13D Statement filed by the Fund on January 17, 1995, Amendment No. 1 to the Schedule 13D Statement filed by the Fund on February 13, 1995 and Amendment No. 2 to the Schedule 13D Statement filed by the Fund on March 2, 1995, the Fund has purchased the Stock in open market transactions as set forth below: Date Number of Shares Approximate Per Share Price --------------- ---------------- --------------------------- March 10, 1995 725,000 $8.00 CUSIP No. 337400-10-5 Although the March 10, 1995 transactions took place on the open market, the Fund believes that 287,191 shares of Stock were sold by Mees Pierson Global Service, N.V., as custodian, and the other 437,809 shares of Stock were sold by Kas Depository Trust Company, as custodian. Neither RMO nor the Fund has knowledge of the former beneficial owners of said 725,000 shares of Stock. During the past 60 days Mr. Calabrese has purchased the Stock in open market transactions as set forth below. The Stock purchased on January 17, 1995, were purchased by Mr. Calabrese and his wife, and transferred by Mr. Calabrese to R-C Enterprises on or about March 9, 1995. Date Number of Shares Approximate Per Share Price - ------------------- ---------------- --------------------------- January 17, 1995 13,200 $7.50 January 19, 1995 3,800 $7.63 Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer. The 725,000 shares of Stock reported herein as having been acquired by the Fund were acquired with voting and proxy rights that entitle the Fund to vote such shares of Stock at the April 11, 1995 annual meeting of the beneficiaries of First Union. Such shares may be voted by the Fund in the election for trustees of First Union. One agreement, with respect to 287,191 shares of Stock is between the Fund and Mees Pierson Global Service, N.V., and the other, with respect to 437,809 shares of Stock, is between the Fund and Kas Depository Trust Company. Copies of the agreements granting such rights are attached as Exhibits 7.7 and 7.8 hereto, respectively. Item 7. Material to be Filed as Exhibits. Exhibit 7.5 Customer Agreement (DLJ) Exhibit 7.6 Working Capital Management Account II Agreement (Merrill) Exhibit 7.7 Agreement, Proxy and Limited Power of Attorney, dated March 10, 1995, between the Fund and Mees Pierson Global Service, N.V. Exhibit 7.8 Agreement, Proxy and Limited Power of Attorney, dated March 10, 1995, between the Fund and Kas Depository Trust Company CUSIP No. 337400-10-5 After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. TURKEY VULTURE FUND XIII, LTD. Dated: March 13, 1995 /s/ Richard M. Osborne ----------------------- Richard M. Osborne Managing Member CUSIP No. 337400-10-5 After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: March 13, 1995 /s/ Steven A. Calabrese ------------------------ Steven A. Calabrese EXHIBIT INDEX Exhibit 7.5 Customer Agreement (DLJ) Exhibit 7.6 Working Capital Management Account II Agreement (Merrill) Exhibit 7.7 Agreement, Proxy and Limited Power of Attorney, dated March 10, 1995, between the Fund and Mees Pierson Global Service, N.V. Exhibit 7.8 Agreement, Proxy and Limited Power of Attorney, dated March 10, 1995, between the Fund and Kas Depository Trust Company EX-7.5 2 CUSTOMER AGREEMENT EXHIBIT 7.5 DONALDSON, LUFKIN & JENRETTE Securities Corporation 140 Broadway New York, New York 10005 CUSTOMER AGREEMENT In consideration of your accepting and carrying for the undersigned one or more accounts, the undersigned hereby consents and agrees that: APPLICABLE RULES AND REGULATIONS 1. All transactions for the undersigned shall be subject to the constitution, rules, regulations, customs and usages of the exchange or market and its clearing house, if any, where executed by you or your agents, including your subsidiaries and affiliates. DEFINITION 2. For purposes of this agreement "securities, commodities and other property," as used herein shall include, but not be limited to money, securities and commodities of every kind and nature and all contracts and options relating thereto, whether for present or future delivery. LIEN 3. All securities, commodities and other property now or hereafter held, carried or maintained by you in your possession and control for any purpose, in or for, any of the accounts of the undersigned, now or hereafter opened, including accounts in which the undersigned may have an interest, shall be subject to a lien for the discharge of all the indebtedness and other obligations of the undersigned to you, and are to be held by you as security for the payment of any liability or indebtedness of the undersigned to you in any of said accounts. You shall have the right to transfer securities, commodities and other property so held by you from or to any other of the accounts of the undersigned whenever in your judgment you consider such a transfer necessary for your protection. In enforcing your lien, you shall have the discretion to determine which securities and property are to be sold and which contracts are to be closed. LIQUIDATION 4. You shall have the right, in accordance with your general policies regarding your margin maintenance requirements, as such may be modified, amended or supplemented from time to time, or if, in your discretion you consider it necessary for your protection to require additional collateral at an earlier or later point in time than called for by said general policies, or in the event that a petition in bankruptcy, or for appointment of a receiver is filed by or against the undersigned, or an attachment is levied against the accounts of the undersigned, or in the event of the death of the undersigned, to sell any or all securities, commodities and other property in the accounts of the undersigned with you, whether carried individually or jointly with others, to buy any or all securities, commodities and other property which may be short in such accounts, to cancel any open orders and to close any or all outstanding contracts, all without demand for margin or additional margin, notice of sale or purchase or other notice or advertisement. Any such sales or purchases may be made at your discretion on any exchange or other market where such business is usually transacted, or at public auction or private sale, and you may be the purchasers for your own account, it being understood that a prior demand, or call, or prior notice of the time and place of such sale or purchase shall not be considered a waiver of your right to sell or buy without demand or notice as herein provided. PAYMENT OF INDEBTEDNESS UPON DEMAND 5. The undersigned shall at all times be liable for the payment upon demand of any debit balance or other obligations owing in any of the accounts of the undersigned with you and, the undersigned shall be liable to you for any deficiency remaining in any such accounts in the event of the liquidation thereof, in whole or in part, by you or by the undersigned; and, the undersigned shall make payment of such obligations and indebtedness upon demand. LIABILITY FOR COSTS OF COLLECTION 6. The reasonable costs and expenses of collection of the debit balance and any unpaid deficiency in the accounts of the undersigned with you, including, but not limited to, attorney's fees, incurred and payable or paid by you shall be payable to you by the undersigned. PLEDGE OF SECURITIES, COMMODITIES AND OTHER PROPERTY 7. All securities, commodities and other property now or thereafter held, carried or maintained by you in your possession in any of the accounts of the undersigned may be pledged and repledged by you from time to time, without notice to the undersigned, either separately or in common with other such securities, commodities and other property for any amount due in the accounts of the undersigned, or for any greater amount, and you may do so without retaining to your possession or control for delivery a like amount of similar securities, commodities or other property. MARGIN REQUIREMENTS, CREDIT CHARGES AND CREDIT INVESTIGATION 8. The undersigned will at all times maintain such securities, commodities and other property in the accounts of the undersigned for margin purposes as you shall require from time to time and the monthly debit balances or adjusted balances in the accounts of the undersigned with you shall be charged, in accordance with your usual custom, with interest at a rate permitted by the laws of the State of New York. It is understood that the interest charge made to the undersigned's account at the close of a charge period will be added to the opening balance for the next charge period unless paid. You may exchange credit information about the undersigned with others. You may request a credit report on the undersigned and upon request, you will state the name and address of the consumer reporting agency that furnished it. If you extend, update or renew the undersigned's credit, you may request a new credit report without telling the undersigned. PRESUMPTION OF RECEIPT OF COMMUNICATIONS 9. Communications may be sent to the undersigned at the address of the undersigned or at such other address as the undersigned may hereafter give you in writing, and all communications so sent, whether by mail, telegraph, messenger or otherwise, shall be deemed given to the undersigned personally, whether actually received or not. NON-INVESTMENT ADVICE 10. The undersigned acknowledges that you will not provide the undersigned with any legal, tax or accounting advice, that your employees are not authorized to give any such advice and that the undersigned will not solicit or rely upon any such advice from you or your employees whether in connection with transactions in or for any of the accounts of the undersigned or otherwise. In making legal, tax or accounting decisions with respect to transactions in or for the accounts of the undersigned or any other matter, the undersigned will consult with and rely upon its own advisors and not you, and you shall have no liability therefor. SCOPE AND TRANSFERABILITY 11. This agreement shall cover individually and collectively all accounts which the undersigned may open or reopen with you, and shall inure to the benefit of your successors whether by merger, consolidation or otherwise and assigns, and you may transfer the accounts of the undersigned to your successors and assigns, and this agreement shall be binding upon the heirs, executors, administrators, successors and assigns of the undersigned. EXTRAORDINARY EVENTS 12. You shall not be liable for loss caused directly or indirectly by government restrictions, exchange or market rulings, suspension of trading, war, strikes or other conditions beyond your control. REPRESENTATIONS AS TO CAPACITY TO ENTER INTO AGREEMENT 13. The undersigned, if an individual represents that the undersigned is of full age, that unless otherwise disclosed to you in writing, the undersigned is not an employee of any exchange, or of any corporation of which any exchange owns a majority of the capital stock, or of a member firm or member corporation registered on any exchange or of a bank, trust company, insurance company or of any corporations, firm or individual engaged in the business of dealing either as a broker or as principal in securities, bills of exchange, acceptances or other forms of commercial paper. The undersigned further represents that no one except the undersigned has an interest in the account or accounts of the undersigned with you. JOINT AND SEVERAL LIABILITY 14. If the undersigned shall consist of more than one individual, their obligations under this agreement shall be joint and several. The undersigned have executed the Joint Account Agreement and made the election required therein. OPTION TRANSACTIONS 15. If at any time the undersigned shall enter into any transaction for the purchase or resale of an option contract, the undersigned hereby agrees to abide by the rules of any national securities association, registered securities exchange or clearing organization applicable to the trading of option contracts and, acting alone or in concert, will not violate the position or exercise limitation rules of any such association or exchange or of the Options Clearing Corporation or other clearing organization. SEPARABILITY 16. If any provision or condition of this agreement shall be held to be invalid or unenforceable by any court, or regulatory or self-regulatory agency or body, such invalidity or unenforceability shall attach only to such provision or condition. The validity of the remaining provisions and conditions shall not be affected thereby and this agreement shall be carried out as if any such invalid or unenforceable provision or condition were not contained herein. HEADINGS ARE DESCRIPTIVE 17. The heading of each provision hereof is for descriptive purposes only and shall not be deemed to modify or qualify any of the rights or obligations set forth in each such provision. ARBITRATION DISCLOSURES 18. * ARBITRATION IS FINAL AND BINDING ON THE PARTIES. * THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO JURY TRIAL. * PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND DIFFERENT FROM COURT PROCEEDINGS. * THE ARBITRATORS' AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR LEGAL REASONING AND ANY PARTY'S RIGHT TO APPEAL OR TO SEEK MODIFICATION OF RULINGS BY THE ARBITRATORS IS STRICTLY LIMITED. * THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY. AGREEMENT TO ARBITRATE CONTROVERSIES 19. IT IS AGREED THAT ANY CONTROVERSY BETWEEN US ARISING OUT OF YOUR BUSINESS OR THIS AGREEMENT, SHALL BE SUBMITTED TO ARBITRATION CONDUCTED BEFORE THE NEW YORK STOCK EXCHANGE, INC. OR ANY OTHER NATIONAL SECURITIES EXCHANGE ON WHICH A TRANSACTION GIVING RISE TO THE CLAIM TOOK PLACE (AND ONLY BEFORE SUCH EXCHANGE) OR THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC., AS THE UNDERSIGNED MAY ELECT AND IN ACCORDANCE WITH THE RULES OBTAINING OF THE SELECTED ORGANIZATION, ARBITRATION MUST BE COMMENCED BY SERVICE UPON THE OTHER PARTY OF A WRITTEN DEMAND FOR ARBITRATION OR A WRITTEN NOTICE OF INTENTION TO ARBITRATE, THEREIN ELECTING THE ARBITRATION TRIBUNAL. IN THE EVENT THE UNDERSIGNED DOES NOT MAKE SUCH ELECTION WITHIN FIVE (5) DAYS OF SUCH DEMAND OR NOTICE, THEN THE UNDERSIGNED AUTHORIZES YOU TO DO SO ON BEHALF OF THE UNDERSIGNED. NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO ARBITRATION, NOR SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION AGREEMENT AGAINST ANY PERSON WHO HAS INITIATED IN COURT A PUTATIVE CLASS ACTION; OR WHO IS A MEMBER OF A PUTATIVE CLASS WHO HAS NOT OPTED OUT OF THE CLASS WITH RESPECT TO ANY CLAIMS ENCOMPASSED BY THE PUTATIVE CLASS ACTION UNTIL: (i) THE CLASS CERTIFICATION IS DENIED; OR (ii) THE CLASS IS DECERTIFIED; OR (iii) THE CUSTOMER IS EXCLUDED FROM THE CLASS BY THE COURT. SUCH FORBEARANCE TO ENFORCE AN AGREEMENT TO ARBITRATE SHALL NOT CONSTITUTE A WAIVER OF ANY RIGHTS UNDER THIS AGREEMENT EXCEPT TO THE EXTENT STATED HEREIN. THE LAWS OF THE STATE OF NEW YORK GOVERN 20. THIS AGREEMENT AND ITS ENFORCEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF NEW YORK. LOAN CONSENT 21. BY SIGNING THIS AGREEMENT, THE UNDERSIGNED ACKNOWLEDGES THAT SECURITIES NOT FULLY PAID FOR BY THE UNDERSIGNED MAY BE LOANED TO YOU OR LOANED OUT TO OTHERS. THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE IN PARAGRAPH 19 ON THIS PAGE. I ACKNOWLEDGE RECEIVING A COPY OF THIS AGREEMENT. SIGNATURES (If a Corporation, Partnership or Other Entity) (If Individuals) Turkey Vulture Fund XIII, Ltd. - ----------------------------------------------- ------------------------------ (Name of Entity) ------------------------------ (Second Party, If Joint Account) By /s/ Richard M. Osborne ------------------------------ Title Managing Member ------------------------------ SEAL DATED _______________ ACCOUNT NO.___________ EX-7.6 3 WORKING CAPITAL MANAGEMENT AGREEMENT EXHIBIT 7.6 WORKING CAPITAL MANAGEMENT(SM) ACCOUNT II AGREEMENT This Agreement ("WCMA(R) II Agreement") sets forth the terms and conditions governing the Working Capital Management Account II ("WCMA II") financial service (the "WCMA II Program") to which the undersigned customer (hereinafter the "Customer") is subscribing with MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED ("MLPF&S"). "MLB&T" means Merrill Lynch Bank & Trust Co. "Bank One" means Bank One, Columbus, N.A. "Chase" means The Chase Manhattan Bank, N.A. MLB&T, Bank One and Chase are referred to collectively as "Banks." It is understood that before the WCMA II Program, as hereinafter described, is provided, it will be necessary: (a) for MLPF&S to open a conventional [ ] Cash Securities Account or [X] Margin Securities Account (please check one) for the Customer (the "Securities Account"). A Merrill Lynch WCMA II Margin Account is known as the WCMA II Investor CreditLine(SM) Service; and (b) for a bank or banks designated by MLPF&S (the "Bank") to open a zero balance account (the "WCMA II Check Account") in connection with which the Customer may request and receive checks ("WCMA II Checks") to be used in conjunction with the WCMA II Program. For purposes of this WCMA II Agreement, the Customer agrees that "securities and other property" shall include, but not be limited to, money, securities, financial instruments and commodities of every kind and nature and all contracts and options relating thereto, whether for present or future delivery. The Customer hereby acknowledges that the WCMA II Program will operate substantially as follows, and consents and agrees to the following terms and conditions: 1. Description of the WCMA II Program The WCMA II Program is an integrated financial service linking three components: the Securities Account, which, if applicable, also permits the Customer to obtain loans based on the current margin loan value of securities in the Securities Account, no-load money market mutual funds (the "Money Funds") and the WCMA II Check Account. (a) Securities Account. The Securities Account may be used to purchase and sell securities, including options, on a fully paid basis. If the Securities Account includes the WCMA II Investor CreditLine service, it may also be utilized to purchase and sell securities on credit. The Customer agrees to pay normal brokerage fees for securities transactions in the Securities Account. (b) CMA Money Funds. The Customer acknowledges receipt of copies of the Prospectuses of the CMA no-load money market mutual funds (the "CMA Funds") which contains a more complete description of the CMA Money Funds, and of the "Merrill Lynch Cash Management Account(R) Program Description for the Working Capital Management(SM) Account," which documents, as amended from time to time, are incorporated herein by reference and made a part hereof. (c) Money Fund Investments/Deposits. Available free credit balances (i.e., any cash that may be transferred out of the Securities Account without giving rise to interest charges) will be automatically invested in the Money Fund designated by the Customer as its "Primary Money Fund" on each Business Day (as defined below), except as otherwise provided in this WCMA II Agreement with respect to the application of funds to repay advances made, if applicable, from the WCMA II Investor CreditLine, or pay other charges. (The money may be referred to in some documents provided to the Customer as the "Primary Money Account.") Investments in Money Fund shares will be made at their current net asset value under the circumstances described in the Prospectuses of the CMA Money Funds under "Purchase and Redemption of Shares." Free credit balances will be invested in shares of the Primary Money Fund in the following manner: (i) with respect to (x) the proceeds of sales of securities, (y) deposits made by wire transfer, or (z) dividend or interest receipts on the next Business Day following receipt; and (ii) with respect to deposits from any other source, on the second Business Day following receipt, unless the deposit is made after the cut-off time for such deposits, in which case, on the third Business Day following receipt. The Customer agrees that its Money Fund shares, may be automatically redeemed to satisfy obligations arising in the Customer's Securities Account, including amounts necessary to satisfy minimum equity requirements. (d) Securities Transactions. The Customer agrees that under no circumstances shall the WCMA II Check Account be used to purchase shares of the Money Funds or to effect transactions in the Securities Account or other MLPF&S accounts. 2. WCMA II Availability and Payment Procedures. For purposes of this WCMA II Agreement, the total of: (i) any available free credit balances in the Securities Account; (ii) the available redemption value of shares of the Customer's Money Funds subject to any delays in availability for redemption of such shares as previously described; and (iii) if applicable, the available margin loan value of the Customer's WCMA II Investor CreditLine service constitutes the Customer's "WCMA II Availability." (WCMA II Availability may be referred to in some documents provided to the Customer as "Purchasing Power.") The Customer's WCMA II Availability is used to determine the total amount available to the Customer for the payment of WCMA II Checks and other transfers of funds. MLPF&S may delay increasing WCMA II Availability for up to 10 business days after the receipt of checks or other negotiable instruments used to reduce any applicable margin loan balance of the Customer's WCMA II Investor CreditLine service account. (a) WCMA II Check Account. The Customer authorizes MLPF&S to open a WCMA II Check Account for the Customer with the Bank and agrees the WCMA II Checks shall be used solely in conjunction with the WCMA II Program and subject to the terms and conditions of this WCMA II Agreement. The representatives of the Customer designated in WCMA II Check Imprint Instructions (the "Instructions") are authorized to write WCMA II Checks on the Customer's WCMA II Check Account. The Customer shall, on a continuing basis, be responsible for the care and safekeeping of WCMA II Checks provided by the Bank and shall permit only those persons authorized in the Instructions (which persons are deemed to be the Customer's agents and attorneys-in-fact) to prepare and issue WCMA II Checks on its behalf or to have access to unissued WCMA II Checks. The Customer shall be responsible for any and all losses and damages, direct, indirect or consequential, that arise from or are attributable to the breach of the Customer's undertaking to safeguard its WCMA II Checks. The Customer agrees to notify MLPF&S immediately if it believes or has reason to believe that the Customer's WCMA II Checks have been or may be issued by an unauthorized person. If the Customer requests that WCMA II Checks be printed with two or more signature lines for counter signature purposes, the Customer agrees that the requirement for more than one signature is for the Customer's internal purposes only, and neither MLPF&S nor the Bank shall have any responsibility or liability for the payment of any check without a counter signature or with an unauthorized counter signature. (b) Transactions Exceeding WCMA II Availability. If a transaction exceeds the Customer's WCMA II Availability, Chase or any successor to or assign of Chase may accept such transaction as an overdraft and advance funds to MLPF&S or the Banks in the amount exceeding the Customer's WCMA II Availability. Any overdraft, together with any finance charges ["Finance Charge(s)"] incurred, is immediately due and payable to Chase. In each overdraft statement cycle, Finance Charges are figured by applying a daily periodic rate to the Average Daily Balance of overdrafts and by multiplying the resulting figure by the number of days in that statement cycle. A daily overdraft balance is calculated each day by starting with the beginning balance of amounts owed, adding any new overdrafts, and subtracting any payments or credits received that day and unpaid Finance Charges. The Average Daily Balance is then calculated by adding all of the daily balances of overdrafts in that statement cycle and dividing the total by the number of days in the overdraft statement cycle. Finance Charges accrue from the date Chase accepts an overdraft until the date payment is made. The Average Daily Balance is multiplied by a Daily Periodic Rate of .049315% (18% Annual Percentage Rate), unless a Customer's address of record is in Colorado, North Carolina, Puerto Rico, or Iowa. If such address is in Colorado, Chase will multiply the Average Daily Balance by a Daily Periodic Rate of .032877% (12% Annual Percentage Rate). If such address is in North Carolina, Chase will multiply the Average Daily Balance by a Daily Periodic Rate of .043836% (16% Annual Percentage Rate). If such an address is in Puerto Rico, Chase will multiply the Average Daily Balance by a Daily Periodic Rate of .041096% (15% Annual Percentage Rate). If such address in Iowa, the Daily Periodic Rate that will be applied on overdrafts may vary since it will be determined by applying a variable interest rate which is computed as follows: The interest rate on overdrafts will be the monthly average 10-year constant maturity interest rate of United States government notes and bonds, plus two percentage points. This index may change monthly. If there is a change in the index in any month, the new Daily Periodic Rate will be effective on the first day of the following month. However, in any overdraft statement cycle in which the daily Periodic Rate changes, a client will be charged the lesser of the two Daily Periodic Rates in effect during that statement cycle. Based on this index, as of October 1, 1991 Chase would multiply the Average Daily Balance by a Daily Periodic Rate of .027397% (10.00% Annual Percentage Rate). An increase or decrease in the Daily Periodic Rate to be paid on overdrafts will result in an increase or decrease in the amount owed Chase for overdrafts. If a Customer's address of record changes to Colorado, North Carolina, Puerto Rico, or Iowa, then, without prior notice, if a new overdraft is incurred after the address changes on our records, Chase will apply the Daily Periodic Rate described above that is applicable in the state moved to, to the entire outstanding balance and to any new overdrafts incurred. If a Customer's address of record is in Colorado, North Carolina, Puerto Rico, or Iowa and then it changes to any state other than one of those states or Puerto Rico, then without prior notice, if a new overdraft is incurred after the address changes on our records, Chase will apply the Daily Periodic Rate of .049315% (18% Annual Percentage Rate) to the entire outstanding balance and to any new overdrafts incurred. (c) Periodic Overdraft Billing Statement. The Customer will receive a periodic overdraft billing statement from Chase which will detail among other disclosures any overdraft(s) plus Finance Charges on the overdraft(s), payments and credits and the balance due. (d) Payment Procedure. MLPF&S will promptly, upon receipt or notice, make payment to the Bank for any WCMA II Check transactions, or initiate other transfers on the Customer's behalf to the extent of the Customer's WCMA II Availability. Payments, including without limitation any fees payable in connection with the WCMA II Program, will be made in the following order: first, from any available free credit balances in the Securities Account; second, from the proceeds of redemption of shares of the Customer's Money Funds; and third, from any applicable margin loans up to the available margin loan value of the Customer's WCMA II Investor CreditLine service account. 3. Termination of the Customer's Subscription to the WCMA II Program. MLPF&S may terminate the Customer's subscription to the WCMA II Program at any time in its sole discretion. The Customer may terminate its subscription to the WCMA II Program at any time upon notice to MLPF&S. Without limiting MLPF&S's rights in this regard, the deposit of checks followed by the prompt withdrawal of funds, for the primary purposes of earning dividends on Money Fund shares from the time MLPF&S advances funds to the Money Funds for investment on the Customer's behalf until checks so deposited are collected, is inconsistent with the WCMA II Program. MLPF&S may terminate the Customer's subscription to the WCMA II Program if, in its sole judgment, it appears to MLPF&S that the Customer is so acting. Should the Customer's subscription to the WCMA II Program be terminated, MLPF&S may and is hereby authorized to redeem all shares of the Money Funds owned by the Customer and to direct the liquidation of any securities or commodities, including futures contracts and options thereon or relating thereto, held by MLPF&S on behalf of the Customer, and apply the proceeds thereof to repay any amount payable by the Customer pursuant to this WCMA II Agreement. MLPF&S shall have the right to set off any amount owing under this WCMA II Agreement against any monies due the Customer and any monies held in an account of the Customer with MLPF&S or any of its affiliates. All rights and remedies of MLPF&S existing at termination of the Customer's subscription to the WCMA II Program shall survive and shall be in addition to all other rights and remedies available at law or in equity. Upon termination of the Customer's subscription to the WCMA II Program, the Customer shall promptly return all unused WCMA II Checks to MLPF&S. Failure to return such WCMA II Checks to MLPF&S may result in a delay in complying with the Customer's instructions as to the disposition of the proceeds from the redemption of the Customer's Money Fund shares and its Securities Account assets. 4. Authorization with Respect to Credit Information. The Customer hereby authorizes MLPF&S and the Banks to obtain and disclose any and all financial and other information relating to the Customer and to each other and to any affiliates of MLPF&S. 5. Periodic Statements and Notices. The Customer will receive a statement on a monthly basis from MLPF&S on its own behalf and as agent for the Bank and the Money Funds, which statement will describe transactions relating to the Customer's participation in the WCMA II Program. In no event shall MLPF&S, the Bank, or the Money Funds be responsible for or be bound by clerical or any other errors in any statement that is rendered. The statement of account, as stated, shall be deemed conclusive as to the Customer if not objected to within ten (10) days of mailing. It is therefore understood that the Customer should carefully and promptly review each monthly statement. Any notices or other communications by MLPF&S to the Customer's address listed herein or to such other address as may be designated from time to time in writing by the Customer, and all notices and other communications so sent by whatever means, shall be deemed to have been given personally to the Customer, upon such sending, whether or not actually received. 6. Limitations on Liability. MLPF&S, the Bank and any third party providing services pursuant to this WCMA II Agreement make no representations, warranties or guarantees, express or implied, with respect to the WCMA II Program or any services provided in accordance therewith, except as otherwise set forth in this WCMA II Agreement. In no event shall MLPF&S, the bank, or any third party providing services pursuant to this WCMA II Agreement be liable for lost profits or any special, consequential, or exemplary damages of any nature resulting from the conduct of the WCMA II Program, even if MLPF&S, the Bank, or any such third party has been notified of the possibility of such losses or damages. 7. Extraordinary Events. MLPF&S shall have no obligation to provide services in connection with the WCMA II Program when and to the extent that MLPF&S or any party that provides services or facilities to MLPF&S in connection with the WCMA II Program is prevented from doing so by government restrictions, exchange or market rulings, suspension of trading, electronic or telephone failures, labor dispute, war, or any other cause not within MLPF&S's or any such other party's reasonable control. 8. Miscellaneous (a) Separability. If any provisions of this WCMA II Agreements are held to be invalid, illegal, void or unenforceable by reason of any law, rule, administrative order, or judicial decision, all other provisions of this WCMA II Agreement shall nevertheless remain in full force and effect. (b) Joint and Several Liability. If there is more than one Customer signing this WCMA II Agreement, their obligations under this WCMA II Agreement shall be joint and several. (c) Costs of Collection. To the extent permitted by applicable law, the Customer agrees to pay the reasonable costs and expenses of collection, including attorney's fees, for any unpaid balance in the Securities Account or other amounts owed by the Customer to MLPF&S or the Bank pursuant to this WCMA II Agreement. (d) Business Day. For purposes of this WCMA II Agreement, "Business Day" means any day on which MLPF&S is open to the public for carrying on substantially all its business functions. (e) Captions and Headings. Captions and headings of this WCMA II Agreement are not part of this WCMA II Agreement and shall not be considered in its interpretation. (f) Amendments. The Customer agrees that MLPF&S shall have the right to amend this WCMA II Agreement, by modifying or rescinding any of its existing provisions or by adding any new provisions. Any such amendment shall be effective as of a date to be established by MLPF&S, which shall not be earlier than thirty (30) days after notice of such amendment is sent to the Customer. (g) Integration. This WCMA II Agreement, together with all other documents incorporated therein by reference or required by MLPF&S in connection herewith constitutes the entire understanding of the parties with respect to the subject matter hereof and may not be modified or altered except by a writing signed by the party or parties against which such modification or alteration is sought to be enforced. (h) Applicable Rules and Regulations. All transactions in the Securities Account and all WCMA II Margin transactions shall be subject to the constitution, rules, regulations, customs and usages of the exchange or market and its clearing house, if any, on which such transactions are executed by MLPF&S or its agents, including subsidiaries and affiliates of MLPF&S. Paragraph 9 below applies only if the Customer requests that the Securities Account be established with the WCMA II Investor CreditLine service. 9. WCMA II Investor CreditLine Service Account. The WCMA II Margin Account (which may be referred to in some documents provided to the Customer as the "WCMA Investor CreditLine Service") permits the Customer to obtain advances from MLPF&S secured by eligible marginable and exempt securities. (a) Margin Requirements and Credit Charges. The Customer will maintain such securities and other property in the Securities Account for margin purposes as MLPF&S shall require from time to time; and the monthly debit balance of the Securities Account shall be charged, in accordance with MLPF&S's usual custom, with interest at a rate permitted by the laws of the State of New York. It is understood that the interest charges made to the Customer's Securities Account at the close of a charge period will, unless paid, be added to the opening balance for the next charge period and that interest will be charged upon such opening balance, including all interest so added. (b) Security Interest. All securities or other property now or hereafter held, carried or maintained by MLPF&S or by any of its affiliates in MLPF&S's possession and control, or in the possession and control of any such affiliate, for any purpose, in or for any account of the Customer, now or hereafter opened, including any account in which the Customer may have an interest, shall be subject to a lien for the discharge of all the indebtedness and other obligations of the Customer to MLPF&S, are to be held by MLPF&S as security for the payment of any liability or indebtedness of the Customer to MLPF&S in any of said accounts. MLPF&S shall have the right to transfer securities and other property so held by MLPF&S from or to any of the accounts of the Customer whenever in its judgment MLPF&S considers such a transaction necessary for its protection. In enforcing its lien, MLPF&S shall have the discretion to determine which securities and property are to be sold and which contracts are to be closed. (c) Representations as to Beneficial Ownership and Control. The Customer represents that with respect to securities against which margin credit is or may be extended by MLPF&S: (i) the Customer is not the beneficial owner of more than three percent (3%) of the number of outstanding shares of any class of equity securities; and (ii) does not control, is not controlled by, and is not under common control with, the issuer of any such securities. In the event that any of the foregoing representations is inaccurate or becomes inaccurate, the Customer will promptly so advise MLPF&S in writing. (d) Calls for Additional Collateral Liquidation Rights. (i) MLPF&S, in addition to and not in lieu of any other rights or remedies it may have under this WCMA II Agreement, shall have the right to require additional collateral: (A) in accordance with its general policies regarding its margin maintenance and requirements, as such may be modified, amended or supplemental from time to time; or (B) if in its discretion MLPF&S considers it necessary for its protection at an earlier or later point in time than called for by said general policies; or (C) in the event that a petition in bankruptcy or for an appointment of a receiver is filed by or against the Customer; or (D) if an attachment is levied against the accounts of the Customer; or (E) in the event of the death or dissolution of the Customer; (ii) If the Customer does not provide MLPF&S with additional collateral as MLPF&S may require in accordance with (A) or (B), or should an event described in (C), (D) or (E) occur (whether or not MLPF&S elects to require additional collateral), MLPF&S shall have the right: (A) to sell any or all securities and other property in the accounts of the Customer with MLPF&S or with any of its affiliates, whether carried individually or jointly with others; (B) to buy any or all securities and other property which may be short in such accounts; and (C) to cancel any open orders and to close any or all outstanding contracts. MLPF&S may exercise any or all of its rights under (ii)(A), (B) and (C) without further demand for additional collateral, or notice of sale or purchase, or other notice or advertisement. Any such sales or purchases may be made at the discretion of MLPF&S on any exchange or other market where such business is usually transacted, or at public auction or private sale and MLPF&S may be the purchaser for its own account. It is understood that the giving of any prior demand or call or prior notice of the time and place of such sale or purchase by MLPF&S shall not be considered a waiver of its right to sell or buy without any such demand, call or notice as herein provided. (e) Payment of Indebtedness Upon Demand. The Customer shall at all times be liable for the payment upon demand of any debit balance or other obligation owing in any of the accounts of the Customer with MLPF&S and the Customer shall be liable to MLPF&S for any deficiency remaining in any such accounts in the event of the liquidation thereof, in whole or in part, by MLPF&S or by the Customer, and the Customer shall make payment of such obligations upon demand. (f) Pledge of Securities and Other Property. All securities and other property now or hereafter held, carried or maintained by MLPF&S in its possession or control in any of the accounts of the Customer may be pledged and repledged by MLPF&S from time to time, without notice to the Customer either separately or in common with other such securities and other property, for any amount due in the accounts of the Customer; or for any greater amount, and MLPF&S may do so without retaining in its possession or under its control for delivery a like amount of similar securities or other property. (g) Lending Agreement. Within the limitations imposed by applicable laws, rules and regulations, MLPF&S is hereby authorized to lend itself, as principal or otherwise, or to others, any securities held by MLPF&S on margin for any accounts of the Customer as collateral therefore either separately or with other securities. It is recognized that any losses or other detriments, or gains or other benefits, arising from any such lending of securities shall not accrue to the account of the Customer. 10. Representations as to Capacity to Enter Into Agreement. The Customer represents that no one except the Customer has an interest in the account or accounts of the Customer with MLPF&S. If a natural person, the Customer represents that the Customer is of full age, is not an employee of any exchange, nor of any corporation of which any exchange owns a majority of the capital stock, nor of a member of any exchange, nor of a member firm or member corporation registered on an exchange, nor of a bank, trust company, insurance company or any corporation, firm or individual engaged in the business of dealing either as broker or as principal in securities, bills of exchange, acceptances or other forms of commercial paper. If any of the foregoing representations is inaccurate or becomes inaccurate, the Customer will promptly so advise in writing. 11. Applicable Laws This WCMA II Agreement, with respect to all positions of the WCMA II Program, including margin interest charges, shall be governed by and construed in accordance with the laws of the State of New York. The terms of the Customer's Agreement with Chase, including those relating to finance charges, are governed by Federal and New York law. The terms of the Customer's Agreement with Bank One are governed by Ohio law. 12. Arbitration of Controversies with MLPF&S * Arbitration is final and binding on the parties. * The parties are waiving their right to seek remedies in court, including the right to jury trial. * Pre-arbitration discovery is generally more limited than and different from court proceedings. * The arbitrators' award is not required to include factual findings or legal reasoning, and any party's right to appeal or to seek modification of rulings by the arbitrators is strictly limited. * The panel of arbitrators will typically include a minority of arbitrators who were or are affiliated with the securities industry. The Customer agrees that all controversies which may arise between the Customer and MLPF&S, including, but not limited to, those involving any transaction or the construction, performance, or breach of this or any other agreement between the Customer and MLPF&S, whether entered into prior, on or subsequent to the date hereof, shall be determined by arbitration. Any arbitration under this agreement shall be conducted only before the New York Stock Exchange, Inc., the American Stock Exchange, Inc., or arbitration facility provided by any other exchange of which MLPF&S is a member, the National Association of Securities Dealers, Inc., or the Municipal Securities Rulemaking Board and in accordance with its arbitration rules then in force. The Customer may elect in the first instance whether arbitration shall be conducted before the New York Stock Exchange, Inc., the American Stock Exchange, Inc., other exchanges of which MLPF&S is a member, the National Association of Securities Dealers, Inc., or the Municipal Securities Rulemaking Board but if the Customer fails to make such an election, by registered letter or telegrams, addressed to MLPF&S at the office where the Customer maintains the account, before the expiration of five days after receipt of a written request from MLPF&S to make such election, then MLPF&S may make such election. Judgment upon the award of arbitrators may be entered in any court, state or federal, having jurisdiction. BY SIGNING THIS AGREEMENT, THE UNDERSIGNED CUSTOMER CONSENTS AND AGREES TO ALL OF THE FOREGOING TERMS AND CONDITIONS AND ACKNOWLEDGES (1) THAT, IN ACCORDANCE WITH PARAGRAPH 12 ON PAGE 6, THE CUSTOMER IS AGREEING IN ADVANCE TO ARBITRATE ANY CONTROVERSIES WHICH MAY ARISE WITH MLPF&S; (2) THAT, IF THE ACCOUNT IS BEING ESTABLISHED WITH THE INVESTOR CREDTLINE SERVICE, THEN PURSUANT TO PARAGRAPH 9(g), CERTAIN OF THE CUSTOMER'S SECURITIES MAY BE LOANED TO MLPF&S OR LOANED OUT TO OTHERS, AND (3) RECEIPT OF A COPY OF THIS AGREEMENT. R-C Enterprises - ------------------------------------------- Name of Business /s/ Eric M. Calabrese, David S. Calabrese - ------------------------------------------- Signature Eric M. Calabrese, David S. Calabrese - ------------------------------------------- Printed Name General Partner General Partner - ------------------------------------------- Title (Examples: Chairman, President, Vice President, Managing Director, all General partners, Sole Owner) Note: If this agreement is with a Partnership, all general partners must sign this page (continue below if necessary) 1110 Euclid Ave. #300 Cleveland, OH 44115 - ---------------------------------------------- Address Partners: /s/ Steven A. Calabrese - ------------------------------ /s/ David S. Calabrese - ------------------------------ /s/ D. J. Calabrese - ------------------------------ Steven A. Calabrese - ------------------------------ General Partner David S. Calabrese - ------------------------------ Co-trustee AJC Trust Donna J. Calabrese - ------------------------------ Co-trustee AJC Trust Note: [X] Check here if you want your WCMA II account processed to request automatic borrowing power through the WCMA II Investor CreditLine Service. Fiscal Year End: 12-93 EX-7.7 4 AGREEMENT, PROXY & POA--MEES PIERSON EXHIBIT 7.7 March 10, 1995 Richard M. Osborne Turkey Vulture Fund XIII, Ltd. 7001 Center Street Mentor, Ohio 44060 Re: AGREEMENT, PROXY AND LIMITED POWER OF ATTORNEY Dear Mr. Osborne: In consideration of the purchase by Turkey Vulture Fund XIII, Ltd. ("TVF") of 287,191 shares of beneficial interest, par value $1.00 per share, in First Union Real Estate Equity and Mortgage Investments (the "Shares"), we hereby agree as follows: 1. We hereby represent and warrant that, in our capacity as custodians, we shall use our best efforts to cause the entity that was the record holder of the Shares on February 10, 1995 (the "Record Holder") to, deliver to TVF, as promptly as practicable by overnight courier at the address set forth above and at the sole expense of TVF, any and all proxies and related materials received by us or the Record Holder from or with respect to First Union from March 1, 1995 through the later to occur of July 1, 1995 or the date of the 1995 annual meeting of shareholders of First Union, or adjournment thereof, to which such proxies and related materials relate. We agree to advise the Record Holder and any other (sub)custodian of the Shares that it has no authority to vote any of the Shares as of the date set forth above and, at the request of TVF, to use our best efforts to cause the Record Holder to sign any such proxies as directed by TVF. 2. We hereby represent and warrant that (i) the Record Holder was a (sub)custodian of the Shares on February 10, 1995 (the "Record Date"), (ii) on the Record Date, we were duly authorized to vote the Shares through the Record Holder, (iii) on the Record Date, we had the full legal right to vote the Shares through the Record Holder, and (iv) we are duly authorized, and have the full legal right, to sign any proxies with respect to the Shares through the Record Holder and to enter into this agreement. 3. We hereby irrevocably grant to TVF all rights that we have to vote, and to execute and deliver written consents or otherwise act with respect to, all of the Shares at the 1995 annual meeting of shareholders of First Union, or any adjournment thereof, as fully, to the same extent as we might or could do if we were present and voting such Shares at such annual meeting. 4. We hereby irrevocably constitute and appoint Richard M. Osborne, with full power of substitution and re-substitution, as our true and lawful agent, proxy and attorney-in-fact, and empower and authorize such attorney, in our name, place and stead, to execute, deliver and do any and all acts necessary or desirable in connection with any and all proxies received and delivered by us to TVF hereunder with respect to matters to be voted on by the stockholders of First Union at such annual meeting. 5. The foregoing is conditioned upon the agreement of TVF to indemnify and hold us, the Record Holder and any person or entity for which we have acted as the custodian of the Shares (collectively, the "Indemnitees") harmless from and against any and all claims, damage or loss incurred by any of the Indemnitees with respect to the granting of said proxy and power of attorney. TVF shall pay all fees and expenses, including the reasonable legal fees of the Indemnitees' counsel, necessary to defend the Indemnitees against any and all claims, actions or lawsuits that may be brought against any of the Indemnitees with respect to the granting of said proxy and power of attorney. 6. The foregoing is further conditioned upon your agreement not to disclose our identity or the identity of any person or entity for which we have acted as the custodian of the Shares to any third party, unless such disclosure is required of you by law or a court order; provided that TVF may disclose our identity, but not the identity of any person or entity for which we have acted as the custodian of the Shares, by disclosing and attaching a copy of this letter to a Schedule 13D that TVF is required to file with the United States Securities and Exchange Commission. Please indicate your agreement to indemnify and defend the Indemnitees as provided in paragraph 5 above and to not disclose any identities as provided in paragraph 6 above by executing and delivering the enclosed copy of this letter to me. Very truly yours, Mees Pierson Global Service N.V. By: /s/G. Fransen /s/F. v. Kemper ----------------------------- Its: G. Fransen F. v. Kemper ----------------------------- and By: /s/G. Fransen /s/F. v. Kemper ----------------------------- Its: G. Fransen F. v. Kemper ----------------------------- Accepted and agreed to by: TURKEY VULTURE FUND XIII, LTD. By: /s/Richard M. Osborne ----------------------------------------- Richard M. Osborne, its Managing Member EX-7.8 5 AGREEMENT, PROXY & POA--KAS DEP. TRUST EXHIBIT 7.8 March 10, 1995 Richard M. Osborne Turkey Vulture Fund XIII, Ltd. 7001 Center Street Mentor, Ohio 44060 Re: AGREEMENT, PROXY AND LIMITED POWER OF ATTORNEY Dear Mr. Osborne: In consideration of the purchase by Turkey Vulture Fund XIII, Ltd. ("TVF") of 437,809 shares of beneficial interest, par value $1.00 per share, in First Union Real Estate Equity and Mortgage Investments (the "Shares"), we hereby agree as follows: 1. We hereby represent and warrant that, in our capacity as custodians, we shall use our best efforts to cause the entity that was the record holder of the Shares on February 10, 1995 (the "Record Holder") to, deliver to TVF, as promptly as practicable by overnight courier at the address set forth above and at the sole expense of TVF, any and all proxies and related materials received by us or the Record Holder from or with respect to First Union from March 1, 1995 through the later to occur of July 1, 1995 or the date of the 1995 annual meeting of shareholders of First Union, or adjournment thereof, to which such proxies and related materials relate. We agree to advise the Record Holder and any other (sub)custodian of the Shares that it has no authority to vote any of the Shares as of the date set forth above, March 10, 1995, and, at the request of TVF, to use our best efforts to cause the Record Holder to sign any such proxies as directed by TVF with regard to the Shares and with regard to the 1995 annual meeting of shareholders of First Union. 2. We hereby represent and warrant that (i) the Record Holder was a (sub)custodian of the Shares on February 10, 1995 (the "Record Date"), (ii) on the Record Date, we were duly authorized to vote the Shares through the Record Holder, (iii) on the Record Date, we had the full legal right to vote the Shares through the Record Holder, and (iv) we are duly authorized, and have the full legal right, to sign any proxies with respect to the Shares through the Record Holder and to enter into this agreement. 3. We hereby irrevocably grant to TVF all rights that we have to vote, and to execute and deliver written consents or otherwise act with respect to, all of the Shares at the 1995 annual meeting of shareholders of First Union, or any adjournment thereof, as fully, to the same extent as we might or could do if we were present and voting such Shares at such annual meeting. 4. We hereby irrevocably constitute and appoint Richard M. Osborne, with full power of substitution and re-substitution, as our true and lawful agent, proxy and attorney-in-fact, and empower and authorize such attorney, in our name, place and stead, to execute, deliver and do any and all acts necessary or desirable in connection with any and all proxies received and delivered by us to TVF hereunder with respect to matters to be voted on by the stockholders of First Union at such annual meeting. 5. The foregoing is conditioned upon the agreement of TVF to indemnify and hold us, the Record Holder and any person or entity for which we have acted as the custodian of the Shares (collectively, the "Indemnitees") harmless from and against any and all claims, damage or loss incurred by any of the Indemnitees with respect to the granting of said proxy and power of attorney. TVF shall pay all fees and expenses, including the reasonable legal fees of the Indemnitees' counsel, necessary to defend the Indemnitees against any and all claims, actions or lawsuits that may be brought against any of the Indemnitees with respect to the granting of said proxy and power of attorney. 6. The foregoing is further conditioned upon your agreement not to disclose our identity or the identity of any person or entity for which we have acted as the custodian of the Shares to any third party, unless such disclosure is required of you by law or a court order; provided that TVF may disclose our identity, but not the identity of any person or entity for which we have acted as the custodian of the Shares, by disclosing and attaching a copy of this letter to a Schedule 13D that TVF is required to file with the United States Securities and Exchange Commission. Please indicate your agreement to indemnify and defend the Indemnitees as provided in paragraph 5 above and to not disclose any identities as provided in paragraph 6 above by executing and delivering the enclosed copy of this letter to me. Very truly yours, Kas Depository Trust Company 10-3-95 By: /s/Th.J.M. van Heese /s/M.B. van Moll -------------------------------------- Its: Th.J.M. van Heese M.B. van Moll -------------------------------------- Accepted and agreed to by: TURKEY VULTURE FUND XIII, LTD. By: /s/Richard M. Osborne ----------------------------------------- Richard M. Osborne, its Managing Member -----END PRIVACY-ENHANCED MESSAGE-----