Exhibit 7.2
AGREEMENT
This Agreement, dated April 26, 1995, is entered into among Xxxxxxx
Xxxxxxx ("Xxxxxxx"), Turkey Vulture Fund XIII, Ltd.("TVF") and Xxxxx Xxxxxx,
Inc. ("Xxxxx Xxxxxx") with respect to margin maintenance requirements for the
securities brokerage account maintained at Xxxxx Xxxxxx by TVF (the "Account").
1) Xxxxxxx will wire transfer to Xxxxx Xxxxxx $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 Xxxxxxx represent that (a) Xxxxxxx 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 Xxxxx Xxxxxx on April 26, 1995 of
TVF's securities brokerage account at Xxxxxx 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. Xxxxxxx and TVF represent and warrant that (a) the Shares are
freely saleable under the Securities Act of 1933 ("Act") and neither Xxxxxxx
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, Xxxxxxx and TVF shall be required,
jointly and severally, to pay to Xxxxx Xxxxxx 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) Xxxxx Xxxxxx 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, Xxxxx Xxxxxx may review the circumstances
concerning the Account and shall have the right to set new margin maintenance
requirements in accordance with Xxxxx Barney's margin maintenance policy. No
change of policy shall occur without fourteen (14)calendar days written notice.
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6) Xxxxxxx will execute a personal guaranty, in the form attached
hereto, no later than April 26, 1995 pursuant to which Xxxxxxx 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
Xxxxx Xxxxxx. 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 Xxxxx Xxxxxx
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 Xxxxxxx or TVF without Xxxxx
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.
XXXXX XXXXXX, INC. TURKEY VULTURE FUND XIII, LTD.
By:/s/ Xxx X. Xxxxxxxxx By: /s/ Xxxxxxx X. Xxxxxxx
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Managing Member
XXXXXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxxxx
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