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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. )*
Meridian Point Realty Trust '83
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(Name of Issuer)
Shares of Beneficial Interest
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(Title of Class of Securities)
589949106
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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 12, 1996
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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 [ ].
Check the following box if a fee is being paid with the statement [X]. (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).
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<TABLE>
SCHEDULE 13D
CUSIP NO. 589949106
<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 153,500
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BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
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EACH 9 SOLE DISPOSITIVE POWER
REPORTING 153,500
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PERSON 10 SHARED DISPOSITIVE POWER
WITH
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
153,500
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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)
5.1%
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14 TYPE OF REPORTING PERSON*
OO
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</TABLE>
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<TABLE>
SCHEDULE 13D
CUSIP NO. 589949106
<S> <C>
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
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*
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
Ohio
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NUMBER OF 7 SOLE VOTING POWER
SHARES 113,844
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BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
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EACH 9 SOLE DISPOSITIVE POWER
REPORTING 113,844
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PERSON 10 SHARED DISPOSITIVE POWER
WITH
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
153,844
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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)
3.8%
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14 TYPE OF REPORTING PERSON*
OO
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</TABLE>
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CUSIP No. 589949106
Pursuant to Rule 13d-1(f)(1), this original Schedule 13D Statement is
filed jointly on behalf of Turkey Vulture Fund XIII, Ltd. and the Richard M.
Osborne Trust, for the purpose of reporting certain acquisitions by such
reporting persons of shares of beneficial interest, without par value, of
Meridian Point Realty Trust '83, a California real estate investment trust.
Item 1. Security and Issuer.
This Schedule 13D Statement relates to the shares of beneficial interest,
without par value (the "Shares"), of Meridian Point Realty Trust '83, a
California real estate investment trust ("Meridian"), which has its principal
executive offices at 655 Montgomery Street, Suite 800, San Francisco, CA 94111.
Item 2. Identity and Background.
(a) This Schedule 13D is filed by Turkey Vulture Fund XIII, Ltd., an Ohio
limited liability company (the "Fund"), and the Richard M. Osborne Trust (the
"Trust"), which is a member of the Fund. Richard M. Osborne is the sole
manager of the Fund and the sole trustee of the Trust.
(b) The business address of the Fund and the address of the Trust is 7001
Center Street, Mentor, Ohio 44060.
(c) The principal business of the Fund is to acquire, hold, sell or
otherwise invest in all types of securities and other instruments. The Trust
was established by Mr. Osborne for estate planning purposes. Mr. Osborne is
President and Chairman of the Board of OsAir, Inc., a property developer and
manufacturer of industrial gases for pipeline delivery. OsAir, Inc. is located
at 7001 Center Street, Mentor, Ohio 44060.
(d) Negative with respect to the Fund, the Trust and Mr. Osborne.
(e) Negative with respect to the Fund, the Trust and Mr. Osborne.
(f) The Fund is an Ohio limited liability company, and the Trust is a
trust organized under the laws of the state of Ohio. Mr. Osborne is a citizen
of the United States of America.
Item 3. Source and Amount of Funds or Other Consideration.
The Shares reported herein as having been acquired by the Fund were
acquired for the aggregate purchase price of approximately $350,000. The Fund
purchased such Shares with its working capital.
The Shares reported herein as having been acquired by the Trust were
acquired for the aggregate purchase price of approximately $275,000. The Trust
purchased such Shares with a combination of margin debt from Everen Securities,
Inc. ("Everen"), and the personal funds of Mr. Osborne, which were contributed
to the Trust by Mr. Osborne. Interest on the Everen margin debt is computed at
a select rate above the rate banks charge securities brokers ("brokers call
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CUSIP No. 589949106
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 the Trust. A
copy of the agreement setting forth the terms of the Everen margin debt is
attached hereto as Exhibit 7.1.
Item 4. Purpose of Transaction.
The Fund and the Trust purchased the Shares to acquire a significant
minority interest in Meridian for the purposes of investment. Mr. Osborne
has had discussions, and intends to meet, with the management of Meridian to
discuss its business strategies. He intends to seek representation on the
Board of Trustees of Meridian. In connection with seeking such representation,
Mr. Osborne may, upon review of relevant information about the business and
operations of Meridian, propose changes in the business strategies and
structure of Meridian. Depending on Mr. Osborne's review, future market
conditions, developments with respect to Meridian's business and other factors,
the Fund and the Trust may seek to acquire additional Shares.
Mr. Osborne is aware that because Meridian is a real estate investment
trust ("REIT") the Internal Revenue Code of 1986, as amended (the "Code"), may
govern the acquisition of additional Shares by the Fund or the Trust. In
particular, the Code provides that to qualify as a REIT an entity must (i)
throughout each taxable year have at least 100 shareholders and (ii) 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. In addition, Meridian's Amended and Restated Declaration of
Trust, as modified by the Board of Trustees of Meridian, effective May 3, 1996
(the "Declaration of Trust"), purports to prohibit any person from acquiring
more than 9.8% of the lesser of the number or value of the outstanding Shares.
In the event that the Fund or the Trust determines to make additional purchases
of the Shares, it will continue to review such provisions of the Code and the
Declaration of Trust.
Pursuant to the instructions for items (a) through (j) of Item 4 of
Schedule 13D and except as set forth above in this Item, neither the Fund, the
Trust nor Mr. Osborne presently has plans or proposals that relate to or would
result in any of the following:
(i) a merger, consolidation or other business combination involving
Meridian or the reorganization or liquidation of Meridian;
(ii) the sale or disposition of a material amount of assets of Meridian;
(iii) a material change in the present capitalization or dividend
policy of Meridian;
(iv) a material change in the business or corporate structure of Meridian;
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CUSIP No. 589949106
(v) a change to the Declaration of Trust or other similar instruments of
Meridian, or the impediment of the acquisition of control of Meridian by any
person;
(vi) the cessation of authorization to be quoted in an inter-dealer
quotation system of a registered national securities association;
(vii) a class of equity securities of Meridian becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); and
(viii) any action similar to any of those enumerated in (i) through
(viii) above.
Mr. Osborne, the Fund and the Trust 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 (i) through (viii) above.
Item 5. Interest in Securities of the Issuer.
(a) According to the most recently available filing with the Securities
and Exchange Commission by Meridian, there are 3,031,618 Shares outstanding.
The Fund beneficially owns 153,500 Shares, or approximately 5.1% of the
outstanding Shares, and the Trust beneficially owns 113,844 Shares, or
approximately 3.8% of the outstanding Shares. Because Mr. Osborne is sole
manager of the Fund and sole trustee of the Trust, (i) Mr. Osborne may be
deemed to beneficially own such Shares, and (ii) the Trust and the Fund may be
deemed members of a group under Section 13(d)(3) of the Exchange Act.
Together, the Fund and the Trust beneficially own 267,344 Shares, or
approximately 8.8% of the outstanding Shares.
(b) Mr. Osborne, as sole manager of the Fund and sole trustee of the
Trust, has sole power to vote, or to direct the voting of, and the sole power
to dispose or to direct the disposition of, the 267,344 Shares owned by the
Fund and Trust.
(c) During the past 60 days, the Fund purchased 153,500 Shares, at a
price per share of $2.25 (excluding commissions), in one open market
transaction on July 12, 1996. No transactions in Shares were effected by the
Trust in the past 60 days.
(d) Not Applicable.
(e) Not Applicable.
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CUSIP No. 589949106
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer.
Not applicable.
Item 7. Material to be Filed as Exhibits.
Exhibit 7.1 -- General Account Agreement Letter to Everen Securities,
Inc. from the Richard M. Osborne Trust
Exhibit 7.2 -- Agreement of Joint Filing
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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 19, 1996 THE RICHARD M. OSBORNE TRUST
By: /s/ Richard M. Osborne
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Richard M. Osborne, Trustee
TURKEY VULTURE FUND XIII, LTD.
By: /s/ Richard M. Osborne
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Richard M. Osborne, Manager
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CUSIP No. 589949106
Exhibit Index
Exhibit 7.1 -- General Account Agreement Letter to Everen Securities,
Inc. from the Richard M. Osborne Trust
Exhibit 7.2 -- Agreement of Joint Filing
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Exhibit 7.1
GENERAL ACCOUNT AGREEMENT
To: Everen Securities, Inc.
in account with Everen Clearing Corp.
Gentlemen:
In consideration of your accepting one or more accounts of the undersigned, it
is agreed as follows:
1. All transactions under this Agreement shall be subject to the
constitution, rules, regulations, customs, usages, rulings and interpretations
of the exchange or market and its clearing house, if any, where executed, and
to all governmental acts and statutes and to rules and regulations made
thereunder insofar as applicable. Whenever any act or statute shall be
enacted, or any regulation shall be made under any act or statute or any rule
or regulation shall be made by any exchange or market of which you are a
member, which shall be applicable to and affect in any manner or be
inconsistent with any of the provisions hereof, the provisions of this
Agreement so affected shall be deemed modified or superseded, as the case may
be, by such act, statute, rule or regulation and all other provisions of this
Agreement and the provisions as so modified shall in all respects continue and
be in full force and effect.
2. All orders for the purchase or sale of any property are given by the
undersigned and executed with the express understanding that an actual purchase
or sale is intended and that it is the undersigned's intention and obligation
in every case to deliver certificates or commodities to cover any and all of
the undersigned's sales and in the case of purchases to receive and pay for
certificates or commodities and that the undersigned will do so in compliance
with all applicable regulations.
3. Except as herein otherwise expressly provided, no provision of this
Agreement may be waived, altered, modified, or amended unless such waiver,
alteration, modification or amendment is in writing and signed by a duly
authorized officer of your corporation.
4. All monies, securities, commodities or other property which you may
at any time be carrying for the undersigned or which may at any time be in your
possession for any purpose, including safekeeping, shall be held by you as
security for the payment of any liability of the undersigned to you,
irrespective of whether or not you have made advances in connection with such
securities, commodities or other property, and irrespective of the number of
accounts the undersigned may have with you.
5. All securities and commodities or any other property, now or
hereafter held by you, or carried by you for the undersigned (either
individually or jointly with others) or deposited to secure the same, may be
held in your name or that of any nominee, and may from time to time and without
notice to the undersigned, be carried in your general loans and may be pledged,
re-pledged, hypothecated, or re-hypothecated, or loaned by you to either
yourselves as brokers or to others, separately or in common with other
securities and commodities or any other property, for the sum due to you from
the undersigned or for a greater sum and without retaining in your possession
and control for delivery a like amount of similar securities, commodities, or
other property.
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6. You are authorized to make such advances and to expend such monies as
in your opinion may be required in respect of all transactions hereunder. The
undersigned agrees to pay customary brokerage and commission charges. Debit
balances of the accounts of the undersigned shall be charged with interest in
accordance with your usual custom, and with any increases in rates caused by
money market conditions, and with such other charges as you may make to cover
your facilities and extra services. Credit balances shall not earn interest.
It is understood and agreed that the interest charge made to the undersigned's
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 this Agreement, but is subject to change from time to time as set forth
therein.
7. All securities, other property and collateral deposited for the
protection of the undersigned's 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 the undersigned shall demand and become entitled to
delivery thereof; you shall have a reasonable time after such a 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 the undersigned, and shall only be required to deliver securities,
other property or collateral of the same kind and character as originally
deposited.
8. You shall not be responsible for delays in the transmission of orders
due to breakdown or failure of transmission or communication facilities, and
you shall not be liable for loss caused directly or indirectly by governmental
restrictions, war, strikes, or any other cause or causes beyond your reasonable
control or anticipation.
9. All orders given by the undersigned for the purchase or sale of
securities or other property, which may be listed on more than one exchange or
market, may be executed on any exchange or market selected by you.
10. Whenever in your discretion you consider it necessary for your
protection, or in the event that one or more of the undersigned be 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 the
undersigned, or an assignment is made by one or more of the undersigned for the
benefit of creditors, or an attachment is levied against one or more of the
undersigned's accounts, or the collateral deposited to protect the
undersigned's 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 the 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 the undersigned, or you may buy in any securities, commodities
or property of which the account or accounts of the undersigned may be short,
or cancel any outstanding orders in order to close out the account or accounts
of the undersigned in whole or in part in order to close out any commitment
made on behalf of the undersigned. Such sale, purchase or cancellation may be
made according to your judgement and may be made, at your discretion, on the
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exchange or other market where such business is then usually transacted, or at
public auction or at private sale without advertising the same and without
notice to the undersigned or to the personal representatives of the
undersigned, and without prior tender, demand or call of any kind upon the
undersigned or upon the personal representative of the undersigned, and you may
purchase the whole or any part thereof free from any right of redemption, and
the undersigned shall remain liable for any deficiency; it being understood
that a prior tender, demand or call of any kind from you, or prior notice from
you, of the time and place of such sale or purchase shall not be considered a
waiver of your right to sell or buy any securities and/or commodities and/or
other property held by you, or owed you by the undersigned, at any time without
prior tender, demand, call or notice. All costs and expenses of such
transaction(s), including commissions and transfer and stamp taxes, shall be
charged to the undersigned.
11. The undersigned understands that you require the maintenance of
certain margin levels in said accounts and that you may, in your discretion,
periodically increase or decrease such requirements. The undersigned will at
all times maintain margins for said accounts in accordance with the then
existing maintenance requirements.
12. You may at any time terminate any accounts of the undersigned with
you and thereupon all amounts advanced by you and other balances owing, with
interest at the current rate, and any and all commissions due under your
current rate schedule, shall be immediately due and payable upon demand. The
undersigned undertakes, at any time upon your demand, to discharge obligations
of the undersigned to you, including obligations with respect to any account
guaranteed by the undersigned, or, in the event of a closing of any account of
the undersigned in whole or in part by you or the undersigned, and/or a similar
closing of any account guaranteed by the undersigned, to pay the deficiency, if
any, and the undersigned agrees to reimburse you for any costs or expenses
incurred by you in collecting such amounts, including reasonable attorney's
fees. No oral agreement or instructions to the contrary shall be recognized.
13. All transactions for or in connection with the account of the
undersigned shall be deemed to be included in a single account notwithstanding
the fact that such transactions may be segregated on your records into separate
accounts, either severally or jointly with others; and at any time and from
time to time, in your discretion, you may without notice to the undersigned,
apply and/or transfer any or all monies, securities, commodities and/or other
property of the undersigned interchangeably between any accounts of the
undersigned or from any of the undersigned's accounts to any account guaranteed
by the undersigned (other than from Regulated Commodity Accounts.)
14. When placing with you any sell order for short account, the
undersigned will designate it as such and hereby authorizes you to mark such
order as being "short", and when placing with you any order for long account,
will designate it as such and hereby authorizes you to mark such order as being
"long". Any sell order which the undersigned shall designate as being for long
account as above provided, is for securities then owned by the undersigned and,
if such securities are not then deliverable by you from any account of the
undersigned, the placing of such an order shall constitute a representation by
the undersigned that he will deliver them forthwith. Further, in case of the
sale of any security, commodity or other property by you at the direction of
the undersigned and your inability to deliver the same to the purchaser by
reason of failure of the undersigned to supply you therewith in deliverable
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form subject to no restrictions on transfer, then and in such event the
undersigned authorizes you, in your discretion to borrow or to buy in any
security, commodity, or other property necessary to make delivery thereof, and
the undersigned hereby agrees to be responsible for any loss which you may
sustain thereby and any premiums which you may be required to pay thereon, and
for any loss which you may sustain by reason of your inability to borrow or as
a result of your buy in of such security, commodity or other property sold.
15. In all transactions between you and the undersigned, the undersigned
understands that you are acting as the brokers of the undersigned, except when
you disclose to the undersigned 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. You may
employ sub-brokers or other agents, as your agents or as agents of the
undersigned, 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.
16. Reports of the execution of orders and statements of the accounts of
the undersigned shall be conclusive if not objected to in writing at once.
17. Communications may be sent to the undersigned at the address of the
undersigned indicated on the last page of this Agreement 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.
18. The provisions of this Agreement shall in all respects be construed
according to, and the rights and liabilities of the parties hereto shall in all
respects be governed by, the laws of the State of Illinois.
19. The provisions of this Agreement shall be continuous and shall cover
individually and collectively all accounts which the undersigned may open or
reopen with you, and shall enure to the benefit of yourselves, your successors
and assigns and shall be binding upon the undersigned, and/or the estate,
executors, administrators and assigns of the undersigned.
20. Any order given to you by the undersigned shall be binding upon the
undersigned and his personal representative until you have actual notice of his
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 the undersigned had
not died.
21. You shall not be liable for refusing to obey any orders given by or
for the undersigned with respect to an account(s) which has or have been the
subject of attachment or sequestration in any legal proceeding against the
undersigned, and you shall be under no obligation to contest the validity of
any such attachment or sequestration.
22. The undersigned agrees to indemnify and to hold you harmless from any
loss, damage or liability arising out of any transaction in which you act,
directly or indirectly as agent of the undersigned, absent any willful or
grossly negligent conduct.
23. Should any valid federal or state law or final determination of any
administrative agency or court of competent jurisdiction affect any provision
of this Agreement, the provision or provisions so affected shall be
automatically conformed to the law or determination and otherwise this
Agreement shall continue in full force and effect.
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<PAGE> 5
24. The undersigned understands in connection with this Agreement an
investigation may be made whereby information is obtained through personal
interviews with neighbors, friends or others with whom he is acquainted. This
inquiry includes information as to his character, general reputation, personal
characteristics and mode of living. The undersigned has the right to make a
written request within a reasonable period of time for a complete and accurate
disclosure of additional information concerning the nature and scope of this
investigation.
25. Arbitration Disclosures
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 arbitrator's award is not required to include factual findings or legal
reasoning and any party's right to appeal or 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.
It is agreed that any claim, dispute or controversy between us or involving any
affiliate of Everen Securities, Inc. shall be submitted to arbitration
conducted under (i) the provisions of the Constitution and Rules of the Board
of Governors of the New York Stock Exchange, Incorporated as to any matter, or
(ii) with respect to transactions effected on any other stock exchanges, under
the arbitration rules of such stock exchange, or (iii) pursuant to the code of
Arbitration procedures of the National Association of Securities Dealers,
Incorporated, as the undersigned may elect. The award of the arbitrators will
be final and judgement upon the award rendered may be entered in any court,
state or federal, having jurisdiction. Copies of such arbitration rules may be
obtained from Everen Securities, Inc., or any such 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 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.
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<PAGE> 6
Credit Terms in Margin Transactions
A finance charge is made by Kemper Clearing Corp. ("ECC") for extensions
of credit to its customers for the purpose of enabling them to purchase, carry
or trade in any security. These finance charges are described in ECC's monthly
statements as "interest". The following is a statement concerning the method
of computation of total finance charges on credit extended to customers.
A. The annual rate of the interest charged on net debit balances is computed
at a select rate above the brokers call money rate. The brokers call
money rate is the rate banks charge securities brokers. A higher charge
may be levied against an account depending on various factors such as the
evaluation of the commission income generated by the account, the service
required for the account, etc.
B. Interest charges will be calculated monthly on the adjusted debit balance
in an account using a 360 day year basis. Interest charged is calculated
on a settlement date basis.
C. Interest rates will be changed without notice to the customer in
accordance with changes in the brokers call money rate. Interest is
charged monthly, just prior to the statement date.
D. The daily net balance is determined by combining the daily closing
statement balances in all general (margin) accounts with any free credit
balance in cash accounts.
E. Any mark-to-the-market as a result of a short position, i.e. any credit
that appears in a statement due to short sales (including short sales
against the box) will be used to reduce any debit balance. Since KCC must
borrow the same security in order to deliver it to the buying broker, this
credit is not available to the customer. Therefore, on a daily basis, the
market value of a short sale is debited against the margin balance in
order to arrive at the adjusted debit balance for interest purposes. The
daily closing price is used to determine any appreciation or depreciation
of a security sold short which will, in turn, adjust the daily net
balance. This practice is known as "marking-to-the-market".
F. The amount of interest charged is based on the following formula:
Adjusted Debit Balance Rate Number of Days
1 X 100 X 360
G. An interest charge (as described in A.) will be charged on all prepayments
resulting from proceeds of sales which are paid to the customer prior to
settlement date of the trade for which negotiable securities have been
received.
H. To the extent permitted by applicable law, all securities in all accounts
are collateral for any debit balances in account with ECC. A lien is
created by these debits to secure the amount of money owed ECC. In
accordance with the terms of the General Account Agreement which is signed
below, securities in accounts can be sold to reduce or liquidate entirely
any debit balances in accounts. The customer may be required to deposit
additional collateral in accordance with the rules and regulations of the
appropriate regulatory bodies and internal requirements. ECC reserves the
right to require additional collateral at any time it is deemed desirable.
I. The net debit balance in an account may be paid in full at any time,
thereby avoiding further interest charges.
<PAGE>
<PAGE> 7
J. The undersigned has read the foregoing in its entirety before signing.
Questions about interest charges should be directed to the Investment
Broker.
BY SIGNING THIS AGREEMENT, I ACKNOWLEDGE THAT MY SECURITIES MAY BE LOANED TO
YOU OR LOANED OUT TO OTHERS TO THE EXTENT PERMITTED BY APPLICABLE LAWS AND
REGULATIONS.
THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE SET FORTH IN PARAGRAPH
25 ABOVE. BY MY SIGNATURE BELOW, I ACKNOWLEDGE THAT I HAVE READ AND AGREE TO
BE BOUND BY ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THAT I HAVE
RECEIVED A COPY OF THIS AGREEMENT.
/s/ Richard M. Osborne
- ------------------------------- -----------------------
Dated Signature
- ------------------------------- -----------------------
Witness Signature
Richard M. Osborne TTEE,
- -------------------------------
Richard M. Osborne Trust WYO7-5999-0411
- ------------------------------- -----------------------------
Account Name Branch I. D. & Account Number
7001 Center Street, Mentor, Ohio 44060
- ---------------------------------------------------------------
Home Address
/s/ David Van Duesen
- --------------------------------
Investment Broker's Signature
<PAGE>
EXHIBIT 7.2
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 19, 1996
TURKEY VULTURE FUND XIII, LTD.
By: /s/ Richard M. Osborne
---------------------------
Richard M. Osborne
Manager
RICHARD M. OSBORNE TRUST
By: /s/ Richard M. Osborne
-----------------------
Richard M. Osborne
Trustee
