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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities and Exchange Act of 1934
(Amendment No. 1)*
USP Real Estate Investment Trust
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(Name of Issuer)
Shares of Beneficial Interest
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(Title of Class of Securities)
903370-10-4
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(CUSIP Number)
Marc C. Krantz, Kohrman Jackson & Krantz P.L.L.,
1375 East 9th Street, Cleveland, Ohio 44114, 216-736-7204
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(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
July 1, 1997
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(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 [ ].
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).
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<TABLE>
SCHEDULE 13D
CUSIP NO. 903370-10-4
<S> <C>
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Turkey Vulture Fund XIII, Ltd.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC,OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
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NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
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BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 240,000
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EACH 9 SOLE DISPOSITIVE POWER
REPORTING 190,200
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PERSON 10 SHARED DISPOSITIVE POWER
WITH -0-
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
240,000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.1%
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14 TYPE OF REPORTING PERSON*
OO
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</TABLE>
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<TABLE>
SCHEDULE 13D
CUSIP NO. 903370-10-4
<S> <C>
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
The Richard M. Osborne Trust
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
OO, PF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
Ohio
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NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
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BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 240,000
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EACH 9 SOLE DISPOSITIVE POWER
REPORTING 9,000
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PERSON 10 SHARED DISPOSITIVE POWER
WITH -0-
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
240,000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.1%
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14 TYPE OF REPORTING PERSON*
OO
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</TABLE>
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<TABLE>
SCHEDULE 13D
CUSIP NO. 903370-10-4
<S> <C>
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Steven A. Calabrese
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
PF,OO
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT
TO ITEMS 2(d) or 2(e) [ ]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
US
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NUMBER OF 7 SOLE VOTING POWER
SHARES -0-
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BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY 240,000
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EACH 9 SOLE DISPOSITIVE POWER
REPORTING 40,800
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PERSON 10 SHARED DISPOSITIVE POWER
WITH -0-
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
240,000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
6.1%
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14 TYPE OF REPORTING PERSON*
IN
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</TABLE>
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CUSIP No. 903370-10-4
Pursuant to Rule 13d-1(f)(1), this amendment No.1 to Schedule 13D
Statement is filed jointly on behalf of Turkey Vulture Fund XIII, Ltd., an Ohio
limited liability company (the "Fund"), the Richard M. Osborne Trust (the
"Trust") and Steven A. Calabrese for the purpose of reporting a voting
agreement entered into on July 1, 1997, and to report certain acquisitions of
shares of beneficial interest, $1.00 par value per share (the "Shares"), of USP
Real Estate Investment Trust, an Iowa corporation ("USP"), by Mr. Calabrese.
Item 2. Identity and Background.
Item 2 of Schedule 13D is hereby amended and supplemented as follows:
(a) The persons filing this Schedule 13D are the Richard M. Osborne
Trust, Turkey Vulture Fund XIII, Ltd., and Steven A. Calabrese.
(b) Mr. Calabrese's business address is 1110 Euclid Avenue, Suite 300,
Cleveland, Ohio 44115-1603.
(c) Mr. Calabrese's principal business is serving as an officer of
Calabrese, Racek and Markos, Inc., a real estate services corporation that
provides appraisals, management and other related services for various
commercial and industrial properties.
(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.
Item 3. Source and Amount of Funds or Other Consideration.
Item 3 of Schedule 13D is hereby amended and supplemented as follows:
The Shares reported herein as having been acquired by Mr. Calabrese were
acquired for the aggregate purchase price of approximately $180,000 with a
combination of personal funds contributed by Mr. Calabrese and margin debt from
Everen Securities, Inc. ("Everen").
Interest on the Everen margin debt is computed at a select rate above the
rate banks charge securities brokers ("brokers call money rate") and is subject
to change, without notice, if the brokers call money rate changes. To the
extent permitted by law, Everen has a lien on certain of the Shares reported
herein as having been acquired by Mr. Calabrese. A copy of the agreements
setting forth the terms of Mr. Calabrese's Everen margin debt is attached
hereto as Exhibit 7.4.
Item 4. Purpose of Transaction.
Item 4 of Schedule 13D is hereby amended and supplemented as follows:
Mr. Calabrese affirms and restates the purpose of, and the plans or
proposals related to, the Fund and Trust's acquisitions as set forth in the
original Schedule 13D as if fully restated herein with respect to his
acquisitions.
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CUSIP No. 903370-10-4
Item 5. Interest in Securities of the Issuer.
Item 5 of Schedule 13D is hereby amended and supplemented as follows:
(a) According to the most recently available filing with the Securities
and Exchange Commission by USP, there are 3,880,000 Shares outstanding.
The Fund beneficially owns 190,200 Shares, or approximately 4.9% of the
outstanding Shares, the Trust owns 9,000 Shares, or approximately 0.2% of the
outstanding Shares, and Mr. Calabrese owns 40,800 Shares, or approximately 1.0%
of the outstanding Shares. As sole Manager of the Fund and sole trustee of the
Trust, Mr. Osborne may be deemed to beneficially own all Shares owned by the
Fund and the Trust.
(b) Except as described in the following paragraph, Mr. Osborne, as sole
trustee of the Trust and sole Manager of the Fund, has sole power to vote, or
to direct the voting of, and the sole power to dispose or to direct the
disposition of, the Shares owned by the Trust and Fund. Except as described
in the following paragraph, 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 Shares owned by him.
Pursuant to a voting agreement, dated July 1, 1997 (the "Voting
Agreement"), between Messrs. Osborne and Calabrese regarding the Shares
beneficially owned by each of them, the Trust, the Fund and Mr. Calabrese may
be deemed a group under Rule 13d-5(b), promulgated under the Exchange Act with
respect to all 240,000 of such Shares. Pursuant to the terms of the Voting
Agreement, Mr. Osborne and Mr. Calabrese have agreed to vote together, as they
mutually agree on any matter submitted to a vote of the shareholders of USP
during the term of the agreement. A copy of the Voting Agreement is attached
hereto as Exhibit 7.5 and is incorporated herein by reference.
(c) Since the original filing of Schedule 13D on June 27, 1997, the Fund
has not purchased any Shares in open market transactions.
During the past 60 days, Mr. Calabrese purchased 36,800 Shares in open
market transactions as set forth below:
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CUSIP No. 903370-10-4
<TABLE>
Approximate Per Share Price
Date Number of Shares (Excluding Commissions)
---- ---------------- ---------------------------
<S> <C> <C>
May 23, 1997 15,000 $4.25
May 28, 1997 3,500 $4.31
May 28, 1997 5,000 $4.38
June 27, 1997 12,000 $4.75
June 30, 1997 1,300 $4.75
</TABLE>
(d) Not Applicable.
(e) Not Applicable.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer.
Reference is hereby made to the Voting Agreement attached hereto as
Exhibit 7.5.
Item 7. Material to be Filed as Exhibits.
Exhibit 7.4 Client Agreement between Everen and Steven A. Calabrese
Exhibit 7.5 Voting Agreement between Steven A. Calabrese and Richard M.
Osborne
Exhibit 7.6 Joint Filing Agreement
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CUSIP No. 903370-10-4
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: July 11, 1997 TURKEY VULTURE FUND XIII, LTD.
By: /s/ Richard M. Osborne
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Richard M. Osborne, Manager
RICHARD M. OSBORNE TRUST
By:/s/ Richard M. Osborne
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Richard M. Osborne, Trustee
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CUSIP No. 903370-10-4
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated: July 11, 1997 STEVEN A. CALABRESE
/s/ Steven A. Calabrese
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CUSIP No. 903370-10-4
Exhibit Index
Exhibit 7.4 Client Agreement between Everen and Steven A. Calabrese
Exhibit 7.5 Voting Agreement between Steven A. Calabrese and Richard M.
Osborne
Exhibit 7.6 Joint Filing Agreement
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<PAGE>
EVEREN Account Application and Client Agreement
EVEREN Account Information
Primary Account [Confidential] Name: Steven A. Calabrese
Related Household Accounts
Margin Account
An EVEREN Margin Account allows you to borrow against securities or purchase
securities on margin
Check here if you want the Margin Account.
I have read section 20 of the attached Client Agreement and agree to the terms
and conditions SC
Initial Date
AAA Money Market Sweep
In an AAA account, your idle cash will sweep daily, down to the penny, into the
money market fund of your choice. Yes, I would like my cash balances
swept daily into my money market fund.
AAA Checking
Check writing privileges provide you with easy access to your money. Checks
may be written for any dollar amount, and there is no per check charge. AAA
Checking includes detailed information on monthly and year-end summary
statements by expense code.
Check here if you want AAA Checking and please fill out the reverse side
of this page.
AAA Visa Gold Card
A Visa Gold debit card provides access to your available cash through over 25
million merchants worldwide and more than 250,000 ATM Machines.
1. Please indicate how many Visa Gold Cards you want:
In primary name 0 1 In secondary name 0 1
2. Mother's Maiden Name (Required for security/card activation)
EVEREN Advantage Account
Yes, I want my account to be established as an EVEREN Advantage account.
As an EVEREN Advantage account, I benefit from all the features of the AAA
account plus: fee waivers on up to 52 ATM withdrawals per year with the Visa
Gold debit card, a complimentary IRA linked to my account, and an enhanced
statement with gain/loss detail.
Complimentary IRA
Since I have elected to have an EVEREN Advantage account, please waive the
set-up and annual fees on my EVEREN Custodial IRA #
EVEREN Online Service
Yes, since I have elected to establish my account as an EVEREN Advantage
account, I would like the EVEREN Online Service. EVEREN Online will provide
you with the capability to review account balances, securities positions, the
associated profit and losses and recent activity detail.
Premier Client Status
Yes, I qualify as an EVEREN Premier Client with individual assets at
EVEREN in excess of $500,000 (or combined household assets at EVEREN in excess
<PAGE>
<PAGE> 2
of $500,000)
Please WAIVE THE ANNUAL FEE on the following EVEREN Advantage account:
Acceptance of Terms and Conditions of Agreements
In consideration of EVEREN Securities, Inc. (EVEREN) accepting an account for
me/us, I/we ("I") acknowledge that I have read, understand and agree to the
terms of sections 1 through 18 of the attached Client Agreement and the
applicable portions of the Full Service Disclosure Document. If this is a
multiple party account, I further acknowledge that I have read, understand and
agree to the terms of section 19 of the attached Client Agreement. If I have
requested any of the service referenced in the AAA sections above, I agree to
the terms of the AAA Service as set forth in the Full Service Disclosure
Document that has been provided to me. I authorize EVEREN to establish
checking privileges, the Funds Transfer Service, and to have the Visa Gold
debit card(s) issued as instructed on this Account Application, and I affirm
that I have the authority to open this account. I authorize EVEREN, Bank One
and Visa to have Visa Gold debit card(s) issued as indicated. I understand
that this account is governed by the Client Agreement, the Full Service
Disclosure Document, and/or other agreements I may have with EVEREN or other
providers of services related to the AAA Service. I have read all those
documents and agree to their terms.
If I have selected any AAA services, I understand that an account minimum
balance and annual fee applies. If I choose to use AAA electronic services, by
signing this application I agree that the portions of the Full Service
Disclosure Document relating to AAA electronic services contains certain
provisions limiting my rights and remedies, including, where permitted by law,
a limitation on consequential, special and indirect damages and on losses
arising from the negligence of EVEREN and/or its agents.
If this account is established with margin privileges, I further acknowledge
that I have read, understand and agree to the terms of section 20 of the
attached Client Agreement and the portions of the Full Service Disclosure
Document describing margin terms and conditions and acknowledge that my
securities may be loaned to you or loaned out to others.
I acknowledge that I have received and read the attached Client Agreement which
contains a pre-dispute arbitration clause in section 10.
ALL ACCOUNT OWNERS MUST SIGN BELOW REGARDLESS OF THE OPTIONS THEY ARE CHOOSING.
IF ACCOUNT IS A TRUST, ALL TRUSTEES MUST SIGN. IF AAA CHECKING IS REQUESTED,
PLEASE SIGN AS YOU WILL NORMALLY SIGN YOUR CHECKS.
SIGN
HERE /s/ Steven A. Calabrese
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Signature (Account Holder) Date Title (For Special Accounts,
e.g., Trustee/Executor)
---------------------------------------------------------------------
Signature (Joint Account Holder, If Joint Account) Date Title (For
Special Accounts, e.g., Co-trustee/Co-executor)
<PAGE>
<PAGE> 3
1. INTRODUCTION
This Client Agreement ("Agreement") contains the terms and conditions
governing EVEREN Securities, Inc.'s financial account services, including both
cash and margin accounts. Prior to signing the Application, I have read this
Agreement and I will keep it for my records. By signing the Application I am
agreeing to all the terms contained in the Application, this Agreement, the
Full Service Disclosure Document, any prospectuses provided to me, and any
other documents provided to me related to any and all accounts, margin or
otherwise, which I now have or may have at any future time with EVEREN
(collectively, the "Account Documents"). I agree that the Account Documents
are incorporated herein by reference. In the event there are inconsistencies
between this Agreement and the Full Service Disclosure Document, the Full
Service Disclosure Document shall control. I agree to those terms in
consideration of your opening one or more accounts for me and your agreeing to
act as broker/dealer for me in the purchase or sale of securities and other
property and/or in the extension of credit.
2. DEFINITIONS
(a) In this Agreement, "I," "me," "my," "customer," or "accountholder"
means such person who signs the Application. "We," "us," "our," "customers"
and "accountholders" are each substituted in the case of plural entities.
"You," "your," or "EVEREN" means EVEREN Securities, Inc., its successor firms,
direct or indirect subsidiaries, correspondents, affiliates or assigns,
including but not limited to EVEREN Clearing Corp.
(b) For purposes of this Agreement, "securities and other property"
means, but is not limited to, money, securities, financial instruments and
commodities of every kind and nature and related contracts and options,
distributions, proceeds, products and accessions of all property. This
definition includes securities and other property currently or hereafter held,
carried or maintained by you, in your possession and control, for any purpose,
in and for any of my accounts now or hereafter opened, including any account in
which I may have an interest.
3. THE SECURITIES ACCOUNT
(a) The Securities Account is a conventional EVEREN cash and/or margin
account which can be used to purchase or sell securities.
(b) All orders authorized by me for the purchase or sale of securities
and other property, which may be listed on more than one exchange or market,
may be executed on any exchange or market selected by you, unless otherwise
specifically directed by me.
(c) If you provide recommendations to me, I recognize that these
recommendations are merely opinions because such suggestions deal with future
developments that cannot be predicted with certainty. You are under no
obligation to keep me informed about developments in the market concerning
securities, options and commodities, or contracts related thereto, and I will
be responsible for remaining informed as to those securities, options, and
commodities and contracts related thereto.
(d) When placing with you any order to sell short, I will designate it as
such and I hereby authorize you to mark such order as being "short." I
understand that your execution of such "short sale" is contingent on your
affirmative determination that you have made arrangements to borrow the
<PAGE> 4
necessary stock or you have obtained assurances that delivery can be made on
the settlement date. When placing with you any sell order for a long position,
I will designate it as such and I hereby authorize you to mark such order as
being "long." Any sell order which I designate as being for a long position as
above provided is for securities then owned by me and, if such securities are
not then deliverable by you from my account, the placing of such an order shall
constitute a representation by me that I will deliver them forthwith. When
placing with you an order to "sell short against the box," I understand that
you will borrow the necessary stock to make delivery on the settlement date and
that my long position in such stock will be unavailable to me so long as such
short position remains open.
(e) I agree that all securities and other property which I own or in
which I have an ownership interest, whether owned individually, jointly or in
the name of another person or entity, 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
and satisfaction of any debts or obligations however arising that I may owe at
any time and for any reason, to the maximum extent permitted by law. You may
hold at your discretion such securities and other property until my debts or
obligations to you are fully satisfied or you may apply such securities and
other property and the proceeds of the liquidation of such securities and other
property toward the satisfaction of my debts and obligations and I will remain
liable to you for any deficiency. In enforcing your security interest, you
shall have the discretion to determine which securities and other 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 Illinois Uniform
Commercial Code.
4. THE PRIMARY FUND (Money Market Mutual Fund)
(a) You are authorized without further direction from me to invest
available free credit cash balances in my Securities Account, from time to time
in accordance with your procedures, in shares of a participating money market
fund designated by me (the "Primary Fund"). Those investments are commonly
known as "sweeps." The timing of sweeps and the types of available free credit
balances that are "swept" are described more fully in the Full Service
Disclosure Documents. If I fail to choose a Primary Fund, you are authorized
but not required to make this choice on my behalf in your sole discretion. I
understand that if you elect not to choose a fund on my behalf, my account will
not be "swept." I further understand that I will not receive interest on any
available free credit cash balances in my Securities Account that are not
swept.
(b) I acknowledge that I have been provided with and have read a current
copy of the prospectus for the Primary Fund which contains a more complete
description of the Primary Fund and its operation. I understand that you may
select another participating money market fund by providing me with prior
notice and sending me a copy of the prospectus for such fund or you may
terminate the use of a money market fund that is linked to my account.
(c) I agree that shares of the Primary Fund may automatically be redeemed
by you at net asset value to satisfy amounts that I owe in connection with my
accounts, such as debit balances in my Securities Account, amounts owning in my
accounts or investments or deposits made for me that are later reversed.
<PAGE>
<PAGE> 5
5. ACCOUNTHOLDER'S INTENT TO CONSUMMATE TRANSACTIONS
(a) All orders for the purchase or sale of any securities and other
property for me are executed with the express understanding that I intend an
actual purchase or sale and that it is my intention and obligation in every
case to deliver certificated or commodities to cover any and all of my sales
and in the case of purchases to receive and pay for certificates or commodities
and that I will do so in compliance with all applicable regulations. In case
you make a short sale of any securities and other property at my direction or
in case I fail to deliver to you any property which you have sold at my
direction, then and in such event I authorize you, in your discretion, to
buy-in (and, if I have a margin account, to borrow) any securities and other
property necessary to make delivery thereof, and I hereby agree to be
responsible for any loss which you may sustain thereby and any premium which
you may be required to pay thereon, and for any loss which you may sustain as a
result of your buy-in of (and, if I have a margin account, by reason of your
inability to borrow) such securities and other property sold.
(b) Whenever I do not, on or before the settlement date, pay you in full
for any securities and other property purchased for my account, or deliver to
you any securities and other property sold for my account, you are authorized,
(i) to pledge, repledge, hypothecate, rehypothecate or loan to yourself as
broker or to others, without notice, any and all securities and other property
(except, in the case of a cash account, fully paid-for securities) which you
may hold for me (either individually, jointly or in the name of another person
or entity), separately or in common with other securities and other property,
for the sum then due or for a greater or lesser sum and, without retaining in
your possession and control for delivery, a like amount of similar securities
and other property, until payment is made in full, and (ii) to buy-in (and, if
I have a margin account, to borrow) any securities and other property necessary
to make delivery thereof, and (iii) to sell any or all securities and other
property (except, in the case of a cash account, fully paid-for securities)
which you may hold for me (either individually, jointly or in the name of
another person), and (iv) cancel any or all outstanding orders or commitments
for my account.
6. CHARGES; TRANSFERS AMONG ACCOUNTS;
EXCHANGE RATE FLUCTUATIONS
(a) I understand and agree to pay certain fees (which are subject to
change) which will be charged by EVEREN for the financial services provided by
EVEREN under the Account Documents. Without limiting the foregoing, you may
charge my account(s) with such usual and customary charges as you may determine
to cover your services, including but not limited to custody and transaction
fees and commissions. I will promptly pay you 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 you in accordance with
your usual custom, together with any increases in rates caused by money market
conditions, and with such other charges as you may impose to cover your extra
services. I also agree to pay the reasonable costs and expenses of collection
of any unpaid balance due on my accounts, including but not limited to
attorneys' fees, to the extent allowed by law.
(b) You may transfer 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.
<PAGE>
<PAGE> 6
(c) 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).
7. ELECTRONIC FUNDS TRANSFERS
As an EVEREN accountholder, I may obtain direct services for my payroll
payments and for government payments, as well as EVEREN's CashBuilder service,
which allows me to systematically transfer money from a bank account (not an
EVEREN account) into my EVEREN account.
8. COMMUNICATIONS; CONFIRMATIONS; PERIODIC ACCOUNT
STATEMENTS; CREDIT REPORTS AND INVESTIGATIONS
(a) Communications may be sent to the mailing address on file with you,
or to 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. I
warrant that the address currently on file with you is an address where I
personally receive communications.
(b) Transactions entered into for my account(s) shall be confirmed in
writing to me where required by applicable law or regulation. I understand
that if my Securities Account is linked to a money market fund, neither EVEREN
nor the Primary Fund will send out confirmations on each occasion that shares
of the Primary Fund are either bought or redeemed, and if I participate in a
dividend reinvestment plan, EVEREN will not send out confirmations on each
occasion that shares are purchased through such plan, but my account statements
will describe the transactions in the Primary Fund and purchases through the
dividend reinvestment plan which took place during the preceding period. I
understand that I should carefully review all account statements after receipt
and notify EVEREN of any errors or other problems.
(c) I understand that you will provide me with periodic statements
reflecting activity in my account(s). I agree that statements and
confirmations shall be conclusively deemed accurate as stated unless I notify
you in writing at once, and in no event later than ten (10) days after receipt
for statements and two (2) days after receipt for confirmations, that the
information contained in such statement or confirmation is inaccurate. Such
notice must be sent by me to you by telegram or letter directed to the
attention of the Compliance Department at your main office at 77 W. Wacker,
Chicago, IL 60601. Failure to so notify you shall also preclude me from
asserting at any later date that such transaction was unauthorized.
(d) I authorize you at your discretion, from time to time, 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.
9. ACCOUNTHOLDER REPRESENTATIONS
(a) I hereby represent that before I sign an application for any EVEREN
account I will read all Account Documents provided by EVEREN to me. I further
represent that I am of the age of majority.
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<PAGE> 7
(b) 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 a bank,
trust company or insurance company 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, acceptance or other forms of commercial paper.
(c) I further represent that no one except those signing the Application
has an interest in my account.
(d) I represent that if any of the representations contained herein is or
becomes materially inaccurate, I will promptly so notify you in writing.
10. ARBITRATION
(a) I understand that I am consenting to arbitration of any disputes
between you and me, and I understand the following:
Arbitration is final and binding on all 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.
(b) I agree that all claims or controversies, whether such claims or
controversies arose prior to, on or subsequent to the date hereof, between me
and EVEREN and/or any of its present or former officers, directors, or
employees concerning or arising from (i) any account maintained by me with
EVEREN individually or jointly with others in any capacity; (ii) any
transaction involving EVEREN 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 or any duty arising from the business of
EVEREN or otherwise, shall be submitted to arbitration conducted under (x) the
provisions of the constitution and rules of the Board of Governors of the New
York Stock Exchange, Incorporated as to any matter, or (y) with respect to
transactions effected on any other stock exchanges, under the arbitration rules
of such stock exchange, or (z) pursuant to the Code of Arbitration Procedure of
the National Association of Securities Dealers, Incorporated. Copies of such
arbitration rules may be obtained from EVEREN or any such organization. I may
elect which of these arbitration forums shall bear the matter by sending a
registered letter or telegram addressed to EVEREN Securities, Inc., 77 W.
Wacker Drive, Chicago, Illinois 60601, Attn: Legal Department. If I fail to
make such election before the expiration of five (5) days after receipt of a
written request from EVEREN to make such election, EVEREN shall have the right
to choose the forum. The award of the arbitrators will be final and judgment
upon the award rendered may be entered in any court, state or federal, having
jurisdiction.
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<PAGE> 8
(c) 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 unless and until: (i) the
class certification is denied; (ii) the class is decertified; (iii) the
customer is excluded from the class by the court; or (iv) the customer elects
not to participate in a putative or certified class action or, if applicable,
has complied with any conditions for withdrawing from the class prescribed by
the court.
(d) Forbearance to enforce an agreement to arbitrate shall not constitute
a waiver of any rights under this Agreement except to the extent stated herein.
(e) 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 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 statute of limitations as a bar to the arbitration by
applying to any court of competent jurisdiction, and I expressly agree that any
issue relating to the application of a statute of limitations or other time bar
is referable to such court. The failure to assert such bar by application to a
court, however, shall not preclude its assertion before the arbitrators.
11. STATUS AS ACCOUNTHOLDER'S BROKER
In all transactions between you and me, I understand that you are acting
as my broker, except when you disclose to me by your formal confirmation or
otherwise in writing that you are acting, with respect to a particular
transaction, as dealers for your own account or as brokers for some other
person.
12. RESTRICTIONS ON ACCOUNTS AND TRADING; TERMINATION;
CERTAIN ACTION EVEREN MAY TAKE REGARDING ACCOUNTS
(a) I understand that I may terminate my subscription to any EVEREN
service or account at any time, I agree that I will remain fully responsible
for any charges to any EVEREN account of mine, whether arising before or after
termination.
(b) You have the right to terminate any of my accounts (including
multiple owner accounts) at any time by notice to me. The provisions of the
Account Documents, including this Agreement, shall survive the termination of
any account.
(c) I understand that you may, to clear out my account, in whole or part,
or to close out any commitment made on my behalf, prohibit or restrict trading
of securities or substitution of securities in any of my accounts, or cancel
any outstanding orders, in your sole discretion, without notice to me.
(d) Whenever in your sole discretion you consider it necessary for your
protection, or in the event that one or more of us is judicially declared
incompetent, or dies, or a petition in bankruptcy or for the appointment of a
receiver is filed by or against one or more of us, or an assignment is made by
<PAGE>
<PAGE> 9
one or more of us for the benefit of creditors, or an attachment is levied
against one or more of my accounts, or the collateral deposited to protect my
account is determined by you in your absolute and uncontrolled discretion, and
regardless of current market quotations, to be inadequate to properly secure
the account, then, in any such case, any one of which shall be a default
hereunder, you are authorized to close out my account in whole or in part and
in connection therewith you may sell any or all the securities and commodities
or other property which may be in your possession, or which you may be carrying
for me, or you may buy-in any securities, commodities or property to cover
short sales and/or open commodity contract positions, or cancel any outstanding
orders or close out any open commitment in order to close out the account.
Such sale, purchase, buy-in or cancellation may be made according to your sole
judgment and may be made, at your sole discretion, on the exchange or other
market where such business is then usually transacted, to yourself as
principal, or at public auction or at private sale, without advertising the
same and without notice of such sale, purchase or cancellation to or to my
personal representatives, and without prior tender, demand for margin or call
of any kind upon me or my personal representatives. No demand for margin, or
notice given to me of intent to purchase, by-in 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, buy-in 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 any deficiency. In
the event of my death or incompetency, the authority given by me to EVEREN
shall continue effective and shall be binding upon my personal representatives
and heirs.
13. CONTINUITY OF AGREEMENT; GOVERNING LAW; RULES AND
REGULATIONS; SEVERABILITY; AMENDMENT
(a) The provisions of this Agreement and the other Account Documents
shall be continuous, shall cover individually and collectively all accounts
which I may open or reopen with you, and shall inure to the benefit of your
present organization, and any successor organization or assigns.
(b) This Agreement, all terms herein (including the Account Documents
incorporated herein by reference), and its enforcement shall be governed and
construed in accordance with the law of the State of Illinois (except those
provisions that expressly state that another state's law governs), including
but not limited to the laws of Illinois regarding the permissible rates of
interest that may be charged on debit balances and the law of Illinois
regarding damages recoverable in arbitration, without giving effect to
principles of conflicts of laws.
(c) All transactions entered into under the Account Documents shall be
subject to any applicable constitution, rules, regulations, customs and usages
of the exchange or market and its clearinghouse where securities transactions
are executed by EVEREN or its agents, of clearinghouses where such transactions
are cleared and settled and all applicable laws, rules and regulations of
governmental authorities and self regulatory agencies, including but not
limited to the rules and regulations of the Securities and Exchange Commission,
the Board of Governors of the Federal Reserve System, the New York Stock
Exchange, and the National Association of Securities Dealers, Inc.
(collectively, "Rules and Regulations"). Such reference to "any applicable
<PAGE>
<PAGE> 10
constitution, rules, regulations, customs and usages" shall in no way be
construed to create a cause of action arising from any violation of such
constitution, rules, regulations, customs and usages.
(d) If any provision of the Rules and Regulations is enacted that would
be inconsistent with any of the provisions of this Agreement or other Account
Document(s), the provision in the Account Documents so affected shall be deemed
modified or superseded by the enactment, but the remaining provisions in the
Account Documents shall remain fully in effect.
(e) In the event any provision or clause of any of the Account Documents
shall be deemed invalid or unenforceable for any reason, such provision or
clause shall be deemed to be ineffective to the extent of such invalidity or
unenforceability but without affecting the remainder of the Account Documents,
including this Agreement, which shall continue in full force and effect.
(f) Except as herein provided, no provision of the Account Documents may
be waived, altered, modified or amended unless the same is in writing and
signed by EVEREN's Director of Compliance or General Counsel. I agree that
EVEREN may amend the Account Documents by modifying or rescinding any of its
provisions or by adding any new provisions, at any time. In the event EVEREN
determines, in its sole discretion, that such amendment is material, it will
send notice of the amendment to me. Any such amendment shall be effective as
of a date to be established by EVEREN, subject to applicable law.
14. NO WAIVER; CUMULATIVE NATURE OF RIGHTS AND REMEDIES
(a) Your failure to insist at any time upon strict compliance with any
term contained in the Account Documents, or any delay or failure on your part
to exercise any power or right given to you in the Account Documents, 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.
(b) All rights and remedies given to you in the Account Documents are
cumulative and not exclusive of any other rights or remedies which you
otherwise have.
15. RATIFICATION; SUB-BROKERS AND AGENT;
EXTRAORDINARY EVENTS; INDEMNIFICATION
(a) All transactions and dealings with you prior to my execution of the
Application are hereby ratified by me and I agree that all such transactions
and dealings are subject to all terms and provisions of the Account Documents
as if they had been subsequent to the execution of the Application.
(b) You may employ sub-brokers or other agents, as your agents or as my
agents, in connection with the execution of any order or the consummation of
any other transaction hereunder, and you shall be responsible only for
reasonable care in their selection.
(c) I understand that you shall not be liable for loss caused directly or
indirectly by government restrictions, exchange or market rulings, suspension
of trading, war, strikes or any other conditions or causes beyond your control
or anticipation, including but not limited to delays in the transmission of
orders due to breakdown or failure of transmission or communication facilities.
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<PAGE> 11
(d) I agree to indemnify you and to hold you harmless from any loss,
damage or liability arising out of any transaction in which you act, directly
or indirectly, as my agent, absent any willful or grossly negligent conduct by
you.
16. EFFECT OF DEATH OF ACCOUNTHOLDER
Any order given to you by me shall be binding on me and my representative
until you have actual notice of my death, and notice thereof shall not in any
way affect your rights under this Agreement to take any action which you could
have taken if I had not died.
17. EFFECT OF ATTACHMENT OR SEQUESTRATION OF ACCOUNTS
You shall not be liable for refusing to obey any orders given by or for me
with respect to any account(s) which has or have been subject to an attachment
or sequestration in any legal proceeding against me, and you shall be under no
obligation to contest the validity of any such attachment or sequestration.
18. HEADINGS
The heading of such Section of this Agreement and the headings contained
in the other Account Documents are for descriptive purposes only and shall not
be deemed to modify or qualify any of the rights or obligations set forth in
each such document.
19. ADDITIONAL TERMS FOR MULTIPLE PARTY ACCOUNTS
Section 19 applies only to multiple party accounts.
(a) If this is a multiple party account in consideration of you and your
successors carrying a multiple party account on margin or otherwise for us,
each of us (or any person who is authorized to act on behalf of the account
under a separate agreement) shall have authority on behalf of the account, each
does hereby appoint the other his or her agent and attorney-in-fact in regard
to the account, and each of us agrees to be jointly and severally liable for
said account and to pay on demand any debit balance or losses at any time due
in this account. Each of us has full power and authority to make purchases (on
margin or otherwise, if we have a margin account) and sales, including short
sales, to withdraw monies and securities from, or to do anything else with
reference to our account as if each of us were the sole owner of the account.
(b) 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. Each of us agrees that all
securities and other property that you may be holding for any of us, either in
this account or otherwise, shall be subject to a lien, to the fullest extent
permitted by law, for the discharge of the obligations of this account to you,
such lien being in addition to any rights and remedies you may otherwise have.
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.
(c) Each of us agrees to hold you and your employees and agents harmless
from and indemnify same against any losses, causes of action, damages and
expenses (including attorneys' fees) arising from or as the result of you, your
employees or agents following the instructions of either or any of us.
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<PAGE> 12
(d) You, in your sole discretion, may at any time suspend all activity in
the multiple party account pending instructions from a court of competent
jurisdiction or require that instructions pertaining to the multiple party
account or the property therein be in writing signed by both or all of us. You
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.
(e) Each of us agrees that, in the event of the death of either or any of
us, our divorce (if we are married), an assignment of one of our interests or
any other event that causes a change in the ownership of our account, all
remaining accountholders or the survivor or survivors, as the case may be,
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 and restrict
transactions in 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 and a
departing accountholder by assignment or divorce shall be liable and each of
the remaining or surviving accountholders 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 such notice or incurred in the liquidation of the account or the
adjustment of the interests of the respective parties.
(f) In the event of such change in ownership of the account, you are
authorized to divide or retitle the account in accordance with the form of
legal ownership of the account as reflected on your records or by written
instructions of the remaining or surviving accountholder(s), or by obtaining a
court order, as you may reasonably determine is appropriate in the
circumstances. Unless agreed otherwise in writing providing to you, joint
accounts designated "with right of survivorship" (e.g., JTWROS) shall vest the
interest of a deceased accountholder in the surviving accountholder(s) and
accounts designated "without right of survivorship" (e.g., TIC) shall entitle
the estate of a deceased accountholder and the surviving accountholder(s) to
equal shares of the account. All accountholders, including the estate of any
decedent accountholder, indemnify you and hold you harmless against any
liability, loss or expense (including attorneys' fees) incurred from acting in
accordance with the Account Documents in the event of a change in ownership of
the account, including any liability for any taxes owed in connection therewith
or any claims by third parties.
(g) Notwithstanding the governing law provisions of Section 13(b) of this
Client Agreement, which shall govern the contractual obligations of the parties
under the Account Documents, the legal ownership of our accounts shall be
governed by and implemented under the internal laws of our state of residence.
20. TERMS APPLICABLE TO MARGIN AGREEMENTS
Section 20 applies only in Margin Accounts.
(a) 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.
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<PAGE> 13
(b) I agree to pay ON DEMAND any balance owing with respect to any
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 in 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 for 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.
(c) All securities, other property and collateral deposited for the
protection of my collateral and/or margin account may be deposited with The
Depository Trust Company or any other recognized clearing corporation or
depository trust company, and may be held in street name and used there by you
until I shall demand and become entitled to delivery thereof; you shall have a
reasonable time after such demand for delivery to ship securities, other
property or collateral from New York or from any other place where they may be
to the place where the same are to be delivered to me, and shall only be
required to deliver securities, other property or collateral of the same kind
and character as originally deposited.
(d) I will at all times maintain such margin for my account maintained by
you, as you may require from time to time, and any debit balances arising in
such account shall be charged interest in accordance with the terms described
in your then current rate schedule. 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 you 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. I am aware that the interest charges imposed on my
account at the close of one charge period will be compounded, that is, added to
the opening balance for the next charge period unless paid, thereby becoming
part of the principal amount and bearing like interest. A statement disclosing
your credit terms currently applicable to margin transactions is set forth as
part of the Full Service Disclosure Document under the heading "Credit Terms in
Margin Transactions," but is subject to change from time to time as set forth
therein.
(e) Without your prior written 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.
(f) Without limiting the generality of the foregoing, I hereby authorize
you to automatically liquidate any of my money market funds available in my
account(s) from time to time to cover any of my indebtedness or obligations to
you, including non-trade related debts. You are further authorized to
liquidate any other securities and 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.
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<PAGE> 14
(g) I represent that, with respect to securities against which credit is
or may be extended by you, that I do not control, am not controlled by, and am
not under common control with, the issuer of any such securities.
<PAGE>
RICHARD M. OSBORNE
7001 CENTER STREET
MENTOR, OHIO 44061-1020
______________________________________________________________________________
Telephone (216) 951-1111
Fax (216) 255-8645
July 1, 1997
Steven A. Calabrese
1110 Euclid Avenue
Suite 300
Cleveland, Ohio 44115
Dear Mr. Calabrese:
This letter sets forth an agreement between us relating to the voting of
shares of Beneficial Interest of USP Real Estate Investment Trust ("USP")
beneficially owned by either of us on the date hereof or as may be acquired by
either of us in the future (such Shares beneficially owned today or in the
future, the "Shares").
Regarding any matter submitted to a vote of the shareholders of USP during
the term of this agreement, you and I agree that we will vote together all
Shares that either you or I own, or over which you or I possess either the
power to vote or control the acquisition or disposition of. Prior to any such
shareholder vote, we will mutually agree to vote our Shares together on any
matter so submitted to a vote of the shareholders of USP. This agreement will
automatically terminate when you and I combined own, or possess either the
power to vote or control the acquisition or disposition of, less than 5% of the
outstanding shares of Beneficial Interest of USP.
Please indicate your approval and agreement to the foregoing terms by
signing this letter in space provided below.
Sincerely yours,
/S/ Richard M. Osborne
----------------------
Richard M. Osborne
AGREED AND ACCEPTED:
/s/ Steven A. Calabrese
- -----------------------
Steven A. Calabrese
Date: 7/1/97
<PAGE>
EXHIBIT 7.6
AGREEMENT OF JOINT FILING
Pursuant to Rule 13d-1(f) promulgated under the Securities Exchange Act of
1934, as amended, the undersigned persons hereby agree to file with the
Securities and Exchange Commission, the Statement on Schedule 13D (the
"Statement") to which this Agreement is attached as an exhibit, and agree that
such Statement, as so filed, is filed on behalf of each of them.
This Agreement may be executed in counterparts, each of which when so
executed shall be deemed to be an original, and all of which together shall be
deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement.
Dated: July 11, 1997 TURKEY VULTURE FUND XIII, LTD.
By: /s/ Richard M. Osborne
---------------------------
RICHARD M. OSBORNE TRUST
By: /s/ Richard M. Osborne
---------------------------
Richard M. Osborne, Trustee
STEVEN A. CALABRESE
/s/ Steven A. Calabrese
--------------------------
