<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13D
Information to be included in statements filed pursuant to
Rule 13d-1(a) and amendments thereto filed
pursuant to Rule 13d-2(a)
Under the Securities Exchange Act of 1934
(Amendment No. 5 )*
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)
June 11, 1998
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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 that is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box [ ].
NOTE: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Rule 13d-7(b) 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).
1 of 6 Pages
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13D
CUSIP NO. 903370-10-4 PAGE 2 OF 6 PAGES
<TABLE>
<CAPTION>
<S> <C> <C>
1 NAME OF REPORTING PERSON
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
TURKEY VULTURE FUND XIII, LTD.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [_]
(b) [_]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC
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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 408,381
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BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -0-
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EACH 9 SOLE DISPOSITIVE POWER
REPORTING 408,381
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PERSON 10 SHARED DISPOSITIVE POWER
WITH -0-
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
408,381
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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)
10.5%
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14 TYPE OF REPORTING PERSON*
OO
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</TABLE>
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CUSIP No. 903370-10-4
This Amendment No. 5 to Schedule 13D Statement is filed on behalf of
Turkey Vulture Fund XIII, Ltd., an Ohio limited liability company (the "Fund")
for the purpose of reporting acquisitions by the Fund of shares of beneficial
interest, $1.00 par value per share (the "Shares"), of USP Real Estate
Investment Trust, an Iowa trust ("USP").
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 the Fund were
acquired for the aggregate purchase price of approximately $207,100 with working
capital of the Fund.
Item 4. Purpose of the Transaction.
---------------------------
Item 4 is hereby amended and supplemented as follows:
Mr. Osborne intends to seek a more active role in USP. Mr. Osborne may
contact other shareholders to discuss matters of mutual interest regarding the
operations, business strategies and performance of USP, and he may seek a
meeting with the management of USP to discuss similar matters. At this time, Mr.
Osborne has no plans or proposals relating to a change in the operations or
business strategies of USP, but would consider proposing changes after
discussions with other shareholders and management of USP.
For purposes of Section 13(d) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), the purchases of Shares reported herein bring
the beneficial ownership of Shares by the Fund to more than 10% of the
outstanding Shares. The Fund is aware that, because USP is a real estate
investment trust (a "REIT"), the Internal Revenue Code of 1986, as amended (the
"Code"), may govern the acquisition of additional Shares by the Fund. In
particular, the Code provides that to qualify as a REIT an entity must (1)
throughout each taxable year have at least 100 shareholders and (2) during the
last half of each taxable year have not more than 50% in value of the
outstanding shares of the entity owned, directly or indirectly, by five or fewer
individuals. The Fund is also aware that Section 2.6 of the Amended and Restated
Declaration of Trust of USP, as amended (the "Declaration of Trust"), purports
to provide the Trustees of USP with the power to prevent any transfer that would
result, under the applicable Federal laws and regulations, in a person or
persons owning more than 10% of the beneficial interest in USP, or in 5 or less
persons acquiring more than 50% of the beneficial interest in USP.
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CUSIP No. 903370-10-4
Because the Fund is a "pass-thru" vehicle for purposes of Section 544
and Section 856(h) of the Code, the Fund believes that its ownership of Shares
should be ignored for purposes of the Code's REIT requirements, and that Mr.
Osborne, as sole Manager of the Fund, is deemed to own the amount of Shares that
is equal to Mr. Osborne's percentage interest in the Fund multiplied by the
number of Shares owned by the Fund. Because Mr. Osborne's current percentage
interest in the Fund is approximately 59%, Mr. Osborne is deemed to own
approximately 241,210 Shares (59% multiplied by the 408,381 Shares owned by the
Fund), or approximately 6.2% of the outstanding Shares. Therefore, the Fund and
Mr. Osborne believe that the purchases of Shares reported herein comply with the
Code's REIT requirements and the terms of Section 2.6 of the Declaration of
Trust. The Fund and Mr. Osborne retain the right to challenge the legality of
Section 2.6 of the Declaration of Trust in the event the Trustees of USP take a
different view. In the event that the Fund determines to make additional
purchases of the Shares, it will continue to review the REIT requirements of the
Code to insure that the REIT status of USP is not jeopardized.
Depending on market conditions, developments with respect to USP's
business, any discussions among Mr. Osborne and other shareholders or
management, and other factors, the Fund and Mr. Osborne reserve the right to
acquire additional Shares. As noted in the original Schedule 13D filed by the
Fund and Mr. Osborne on June 27, 1997 with respect to USP, the Fund and Mr.
Osborne reserve the right to modify their plans and proposals described in this
Item 4. Further, subject to applicable laws and regulations, they may formulate
plans and proposals that may result in the occurrence of an event set forth in
Item 4 of Schedule 13D.
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.
For purposes of Section 13(d) of the Exchange Act, the Fund
beneficially owns 408,381 Shares, or approximately 10.5%, of the outstanding
Shares. As sole Manager of the Fund, Mr. Osborne may be deemed for purposes of
Section 13(d) of the Exchange Act to beneficially own all the Shares owned by
the Fund.
(b) Mr. Osborne, as 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, any Shares owned by the Fund.
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CUSIP NO. 903370-10-4
(c) Since the filing of Amendment No. 4 to the Schedule 13D Statement
filed on April 24, 1998, the Fund has purchased 44,700 Shares in open market
transactions as set forth below:
<TABLE>
<CAPTION>
Approximate Per Share Price
Date Number of Shares (Excluding Commissions)
--------------- ---------------- -----------------------
<S> <C> <C>
May 4, 1998 5,000 $4.55
May 5, 1998 6,100 $4.50
May 18, 1998 10,000 $4.59
May 20, 1998 5,000 $4.75
May 27, 1998 3,600 $4.69
June 9, 1998 7,500 $4.69
June 11, 1998 7,500 $4.69
</TABLE>
(d) Not Applicable.
(e) Not Applicable.
5 of 6 Pages
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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: June 22, 1998 TURKEY VULTURE FUND XIII, LTD.
By: /s/ Richard M. Osborne
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Richard M. Osborne, Manager
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