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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. )*
Koger Equity, Inc.
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(Name of Issuer)
Shares of Common Stock
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(Title of Class of Securities)
50022 81 01
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(CUSIP Number)
Marc C. Krantz, Kohrman Jackson & Krantz,
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)
February 8, 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. 50022 81 01
<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) [ ]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
AF,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 889,200*
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BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
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EACH 9 SOLE DISPOSITIVE POWER
REPORTING 889,200*
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PERSON 10 SHARED DISPOSITIVE POWER
WITH
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
889,200*
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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)
5.0%*
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14 TYPE OF REPORTING PERSON*
OO
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</TABLE>
*Includes 23,700 warrants to purchase shares of common stock
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CUSIP No. 50022 81 01
This original Schedule 13D Statement is filed on behalf of Turkey Vulture
Fund XIII, Ltd. (the "Fund"), an Ohio limited liability company, for the
purpose of reporting certain acquisitions by the Fund of (i) shares of common
stock, $0.01 par value per share, of Koger Equity, Inc., a Florida real estate
investment trust; and (ii) warrants to purchase shares of common stock, $0.01
par value per share, of Koger Equity, Inc. (the "Warrants").
Item 1. Security and Issuer.
This Schedule 13D Statement relates to the shares of common stock, $0.01
par value per share (the "Shares"), of Koger Equity, Inc., a Florida real
estate investment trust ("Koger"), which has its principal executive offices at
3986 Boulevard Center Drive, Suite 101, Jacksonville, Florida 32207.
Item 2. Identity and Background.
(a) The person filing this Schedule 13D is Turkey Vulture Fund XIII, Ltd.
(the "Fund"). Richard M. Osborne is the sole manager of the Fund.
(b) The business address of the Fund and Mr. Osborne 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. 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 and Mr. Osborne.
(e) Negative with respect to the Fund and Mr. Osborne.
(f) The Fund is an Ohio limited liability company. Mr. Osborne is a
citizen of the United States of America.
Item 3. Source and Amount of Funds or Other Consideration.
The Shares and Warrants reported herein as having been acquired by the
Fund were acquired for the aggregate purchase price of approximately $9.3
million. The 18,700 Warrants reported herein as having been acquired by the
Fund on January 15, 1996 and February 5, 1996 were contributed to the Fund by
the Richard M. Osborne Trust (the "Trust"), which is a member of the Fund. The
Trust paid the approximate aggregate price of $80,000 for such Warrants, which
consideration was comprised of Trust funds and margin debt from Everen
Securities, Inc. ("Everen"). The Trust funds used to acquire such Warrants
were contributed to the Trust by Mr. Osborne from his personal funds. The
Warrants acquired by the Trust were contributed by the Trust to the Fund for a
combination of Fund working capital and the Fund's assumption of the Trust's
Everen margin debt. The Fund acquired the other Shares and Warrants with a
combination of working capital of the Fund and margin debt from Everen;
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CUSIP No. 50022 81 01
Donaldson, Lufkin & Jenrette Securities Corporation ("DLJ"); and Smith Barney,
Inc. ("Smith Barney").
Interest on the Smith Barney margin debt is charged in accordance with
Smith Barney's policy. Interest charges, if not paid, are added to the debit
balance for the next interest period. Smith Barney has a lien on certain
Shares reported herein as having been acquired by the Fund. Smith Barney may
impose margin requirements more stringent than those required by law or
exchange regulations. A copy of the agreement setting forth the general terms
of the Smith Barney margin debt is attached hereto as Exhibit 7.1.
On April 26, 1995, the Fund, Smith Barney and Mr. Osborne entered into a
separate agreement regarding the Smith Barney margin debt. Under that
agreement, Smith Barney will not call for additional maintenance margin if the
Fund meets the minimum equity requirement in its Smith Barney account (the
"Account") of 45%. Pursuant to the terms of the agreement, the minimum equity
requirement increases to 50% on April 11, 1996. As of January 28, 1996, the
aggregate equity percentage in the Account was in excess of 70%. On or after
May 11, 1996, Smith Barney has the right to set new margin maintenance
requirements in accordance with Smith Barney's margin maintenance policy. A
copy of the agreement setting forth these additional terms of the Smith Barney
margin debt is attached hereto as Exhibit 7.2.
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 the Warrants and certain of the
Shares reported herein as having been acquired by the Fund. A copy of the
agreements setting forth the terms of the Trust and the Fund's Everen margin
debt is attached hereto as Exhibit 7.3 and 7.4, respectively.
Interest on the DLJ margin debt is charged in accordance with DLJ's usual
custom, at a rate permitted by the laws of the State of New York. Interest
charged at the close of a charge period is added to the opening balance for the
next charge period unless paid. DLJ has a lien on certain Shares reported
herein as having been acquired by the Fund. A copy of the agreement setting
forth the terms of the DLJ margin debt is attached hereto as Exhibit 7.5.
Item 4. Purpose of Transaction.
The Fund purchased the Shares and Warrants for the purposes of investment.
Depending on market conditions, developments with respect to Koger's business
and other factors, the Fund reserves the right to dispose of or acquire
additional Shares or Warrants. Pursuant to the instructions for items (a)
through (j) of Item 4 of Schedule 13D, the Fund does not presently have any
plans or proposals that relate to or would result in any of the following:
(i) an extraordinary corporate transaction, such as a merger,
reorganization or liquidation, involving Koger or any of its subsidiaries;
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CUSIP No. 50022 81 01
(ii) the sale or disposition of a material amount of assets of Koger or
any of its subsidiaries;
(iii) a change in the present board of directors or management of Koger;
(iv) a material change in the present capitalization or dividend policy of
Koger;
(v) a material change in the business or corporate structure of Koger;
(vi) a change to the articles of incorporation or bylaws of Koger or an
impediment to the acquisition of control of Koger by any person;
(vii) the delisting from any national securities exchange of the Shares or
the Warrants;
(viii) a class of equity securities of Koger becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934, as amended; or
(ix) any action similar to any of those enumerated in (i) through (viii)
above.
Subject to applicable laws and regulations, the Fund may formulate plans
and proposals that may result in the occurrence of an event set forth in (i)
through (ix) above.
Item 5. Interest in Securities of the Issuer.
(a) According to the most recently available filing with the Securities
and Exchange Commission by Koger, there are 17,750,515 Shares actually
outstanding. If the Fund exercised the Warrants, there would be 17,774,215
Shares outstanding.
The Fund beneficially owns 865,500 Shares and 23,700 Warrants, or
approximately 5.0% of the Shares that would be outstanding if the Warrants were
exercised. As the sole manager of the Fund, Mr. Osborne may be deemed to
beneficially own such Shares and Warrants.
(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, the Shares owned by the Fund.
(c) During the past 60 days, the Fund purchased 650,800 Shares and
23,700 Warrants. 18,700 of the Warrants were contributed to the Fund by the
Trust in two private transactions on January 15, 1996 and February 5, 1996.
All of the Shares and 5,000 of the Warrants were purchased by the Fund in open
market transactions. During the past 60 days, the Fund has made the following
open market purchases:
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CUSIP No. 50022 81 01
<TABLE>
Approx.
Per Share Price
Number of Shares Excluding Description of
Date or Warrants Commission Securities*
---------------- ---------------- --------------- --------------
<S> <C> <C> <C>
December 18, 1995 4,000 $ 9.75 S
December 18, 1995 1,900 $ 9.63 S
December 19, 1995 4,000 $ 9.69 S
December 19, 1995 1,700 $ 9.75 S
December 20, 1995 4,600 $ 10.00 S
December 20, 1995 400 $ 9.94 S
December 21, 1995 28,600 $ 9.94 S
December 22, 1995 16,100 $ 10.00 S
December 22, 1995 4,000 $ 10.00 S
December 26, 1995 700 $ 10.00 S
December 26, 1995 2,000 $ 9.94 S
December 27, 1995 10,000 $ 10.25 S
December 28, 1995 3,500 $ 10.25 S
December 29, 1995 62,500 $ 10.50 S
December 29, 1995 500 $ 10.25 S
December 29, 1995 700 $ 10.38 S
January 2, 1996 10,000 $ 10.88 S
January 2, 1996 10,100 $ 11.00 S
January 5, 1996 3,000 $ 4.38 W
January 7, 1996 225,500 $ 10.89 S
January 9, 1996 170,000 $ 11.00 S
January 11, 1996 2,000 $ 4.38 W
January 15, 1996 23,000 $ 11.25 S
January 17, 1996 1,900 $ 11.38 S
January 18, 1996 500 $ 11.38 S
January 19, 1996 3,000 $ 11.50 S
January 22, 1996 2,000 $ 11.50 S
January 23, 1996 500 $ 11.50 S
January 24, 1996 1,700 $ 11.50 S
January 25, 1996 500 $ 11.50 S
January 26, 1996 1,000 $ 11.50 S
February 2, 1996 1,200 $ 12.00 S
February 6, 1996 30,700 $ 12.13 S
February 8, 1996 1,500 $ 12.00 S
February 8, 1996 2,500 $ 12.13 S
</TABLE>
* "S" represents Shares and "W" represents Warrants.
The Trust acquired the Warrants reported herein as having been acquired by
it in the following open market purchases:
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CUSIP No. 50022 81 01
<TABLE>
Approx. Per Share Price
Date Number of Warrants (Excluding Commissions)
--------------- ------------------ -----------------------
<S> <C> <C>
January 3, 1996 1,000 $4.13
January 3, 1996 1,000 $4.25
January 4, 1996 3,000 $4.38
January 4, 1996 3,000 $4.38
January 4, 1996 2,000 $4.38
January 4, 1996 4,000 $4.38
January 8, 1996 2,000 $4.31
January 8, 1996 2,500 $4.31
January 15, 1996 200 $4.38
</TABLE>
(d) Not Applicable.
(e) Not Applicable.
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 -- Smith Barney Client Agreement
Exhibit 7.2 -- Agreement among Mr. Osborne, the Fund and Smith
Barney, dated April 26, 1995
Exhibit 7.3 -- General Account Agreement Letter to Everen from
the Richard M. Osborne Trust
Exhibit 7.4 -- General Account Agreement Letter to Kemper
Securities, Inc. (predecessor-in-interest to
Everen) from Turkey Vulture Fund XIII, Ltd.
Exhibit 7.5 -- DLJ Customer Agreement
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CUSIP No. 50022 81 01
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: February 13, 1996 Turkey Vulture Fund XIII, Ltd.
/s/Richard M. Osborne
------------------------------
Richard M. Osborne, Manager
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Exhibit Index
Exhibit 7.1 -- Smith Barney Client Agreement
Exhibit 7.2 -- Agreement among Mr. Osborne, the Fund and Smith
Barney, dated April 26, 1995
Exhibit 7.3 -- General Account Agreement Letter to Everen from the
Richard M. Osborne Trust
Exhibit 7.4 -- General Account Agreement Letter to Kemper Securities,
Inc. (predecessor-in-interest to Everen) from Turkey
Vulture Fund XIII, Ltd.
Exhibit 7.5 -- DLJ Customer Agreement
<PAGE>
Exhibit 7.1
SMITH BARNEY
CLIENT AGREEMENT
Account Number 224-43061-1-0-005
Before you sign this Agreement, please read it carefully. Instructions for the
completion of this Agreement are contained in the accompanying booklet entitled
"Important New Account Information." After you have completed and signed this
Agreement, please return it in the enclosed postage-paid envelope. Note:
Signatures are MANDATORY in either Sections A and C OR Section B and C.
Account Title Turkey Vulture Fund XIII Ltd
Street Address 7001 Center Street
City Mentor
State Ohio
ZIP Code 44060
In consideration of Smith Barney Inc. accepting an account for me, (us), I
(we), hereby acknowledge that I (we) have read, understand and agree to the
terms of this Agreement contained in the sections numbered 1 through 11. If
this is a margin account, I (we) further acknowledge that I (we) have read,
understand and agree to the terms of this Agreement contained in the sections
numbered 15 through 17. If this is a joint account, we further acknowledge
that we have read, understand and agree to the terms of this Agreement
contained in the sections numbered 12 through 14. Note: Texas residents with
joint accounts must also execute a Texas Joint Account Supplement agreement
(form 3882).
A. Cash Accounts.
I (We) acknowledge that I (we) have received a copy of this Agreement which
contains a pre-dispute arbitration clause at section 6.
If this is a joint account, all parties must sign.
Account Owner's Signature /s/ Richard M. Osborne
B. Margin Accounts.
By signing this Agreement, I (we) acknowledge that my (our) securities may be
loaned to you or loaned out to others. I (We) acknowledge that I (we) have
received a copy of this Agreement which contains a pre-dispute arbitration
clause at section 6.
If this is a joint account, all parties must sign.
Account Owner's Signature /s/ Richard M. Osborne
C. Tax Certification (See instructions on the last page of this form). Under
penalties of perjury, I certify that the number shown below is my correct
taxpayer identification number or if not, then the number I have entered below
is my correct tax identification number,
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<PAGE> 2
and that I am not subject to backup withholding because: (a) I have not
been notified by the Internal Revenue Service (IRS) that I am subject to backup
withholding as a result of failure to report all interest or dividends, or
(b) the IRS has notified me that I am no longer subject to backup withholding
(see below), or, (c) I am exempt from backup withholding (see below). Note:
You must cross out (b) above if you are currently subject to backup withholding
because of underreporting interest or dividends on your tax return.
For those exempt from backup withholding, write the word "EXEMPT" here:
The Social Security Number or Tax Identification Number on Smith Barney's
records is: 341786314
The Social Security Number or Tax Identification Number shown to the left is
incorrect. The CORRECT number is:
Note for joint accounts: The Social Security Number of this account is the
number of the client whose name appears first in the account title. Do not
enter the number of any other account owner.
Account Owner's Signature /s/ Richard M. Osborne
D. Name Disclosure.
Please indicate your choice as to the release or withholding of your name,
address and securities positions to issuing corporations.
[X] NO, I do not want
[ ] YES, I do want
My name, address and securities positions disclosed to any companies, upon
their request, in which I own securities that we are being held for me at Smith
Barney Inc.
E. Money Market Fund Agreement.
Available cash in your account will automatically be invested or "swept" into
the money market fund of your choice. If you do NOT elect to have the
automatic money market fund sweep, please check the "NO" box below. If you
wish to change your choice of money market fund, please contact your Financial
Consultant.
Note to Wisconsin residents: You must indicate below specifically whether or
not you wish to have a money market sweep for your account.
[ ] NO, I do not want cash balances in my account to be automatically swept
into a money market fund.
[X] YES, I would like the cash balances in my account to be automatically swept
into the fund of my choice.
F. Tenancy In Common. DO NOT Complete This Section If You Wish To Establish
A Joint Account With Rights of Survivorship. In the event of the death of
either or any of the undersigned, the interest in the account as of the close
of business on the date of the death of the decedent, or on the following
business day if the date of death is not a business day, shall be as follows:
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Note: Texas residents with joint accounts must also execute a Texas Joint
Account Supplement agreement (form 3882).
In consideration of your opening one or more accounts for me ("we", "us" and
"our" are each substituted for "I", "me" and "my", respectively, in the case
of multiple account holders, corporations and other entities), and your
agreeing to act as broker/dealer for me for the extension of credit and in the
purchase or sale of securities, commodities, options and other property, it is
agreed in respect to any and all accounts, whether upon margin or otherwise,
which I now have or may at any future time have with Smith Barney Inc. or your
successors (hereinafter referred to as "you" or "your" or "SB"), that:
1. All transactions entered into under this Agreement shall be subject to any
applicable constitution, rules, regulations, customs and usages of the exchange
or market and its clearinghouse, if any, where such transactions are executed
by SB or its agents and to all applicable laws, rules and regulations of
governmental authorities and self-regulatory agencies. Such reference to the
"constitution, rules, regulations, customs and usages of the exchange" shall in
no way be construed to create a cause of action arising from any violation of
such constitution, rules, regulations, customs and usages. If any provision is
enacted that would be inconsistent with any of the provisions of this
Agreement, the provision so affected shall be deemed modified or superseded by
the enactment, but the remaining provisions of this Agreement shall remain in
effect. Except as herein provided, no provision of this Agreement may be
waived, altered, modified or amended unless the same is in writing and signed
by an authorized official of SB.
2. I agree that all property of mine, whether owned individually, jointly, or
in the name of another, 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 of all of my
indebtedness and other obligations to SB, and will be held by SB as security
for the payment of any of my indebtedness or obligations to SB. In enforcing
your security interest, you shall have the discretion to determine which
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 New York
Uniform Commercial Code. 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.
Without limiting the generality of the foregoing, I hereby authorize SB to
automatically liquidate any money market funds available in my account(s) from
time to time to cover any of my indebtedness or obligations to SB including
non-trade related debts. You are further authorized to liquidate any 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.
"Property" as used anywhere in this Agreement shall include, but not be limited
to, securities of all kinds, money, certificates of deposit, bankers'
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acceptances, commercial paper, options, commodities, and contracts for the
future delivery of commodities or relating to commodities or securities, and
the distributions, proceeds, products and accessions of any of the above.
3. In case of the sale of any security, commodity, or other property at my
direction and the inability of SB to deliver the same to the purchaser by
reason of my failure to supply them to SB, I authorize SB to borrow any
security, commodity, or other property necessary to make delivery thereof, and
I hereby agree to be responsible for any loss which SB may sustain thereby and
any premiums, interest or other costs which SB may be required to pay as a
result of such borrowing, and for any loss or cost which SB may sustain by
reason of its inability to borrow the security, commodity, or other property
sold.
You may charge my account(s) with such usual and customary charges as you may
determine to cover your services and facilities, including, but not limited to,
custody and transaction fees. I will promptly pay SB 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 SB in accordance
with the SB policy described in the accompanying literature regarding new
accounts. You may transfer excess 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. 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).
4. Communications may be sent to the mailing address on file with you, or at
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. Transactions entered
into for my account(s) shall be confirmed in writing to me where required by
applicable law or regulation. In addition, SB shall provide me with periodic
statements reflecting activity in such account(s). I agree the transactions
reflected on such confirmations and statements shall be conclusively deemed
accurate as stated unless I notify SB in writing within three (3) days and ten
(10) days of receipt, respectively, that the information contained in such
confirmation or statement is inaccurate. Such notice must be sent by me to SB
by telegram or letter directed to the attention of the Branch Office Manager of
the office servicing the account. Failure to so notify SB shall also preclude
me from asserting at any later date that such transaction was unauthorized.
I authorize you at your discretion 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.
5. I hereby represent that I am of the age of majority. 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
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<PAGE> 5
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 any corporation, firm or
individual engaged in the business of dealing, either as a broker or as
principal, in securities, bills of exchange, acceptances or other forms of
commercial paper. I further represent that no one except those signing this
agreement has an interest in my account.
If my account has been introduced to you and is carried by you only as a
clearing broker, I agree that you are not responsible for the conduct of the
introducing broker and your only responsibilities to me relate to the
execution, clearing and bookkeeping of transactions in my accounts.
6. ARBITRATION.
Arbitration is final and binding on the parties.
The parties are waiving their right to seek remedies in court, including the
right to jury trial.
Pre-arbitration discovery is generally more limited than and different from
court proceedings.
The arbitrators' award is not required to include factual findings or legal
reasoning, and any party's right to appeal or to seek modification of rulings
by the arbitrators is strictly limited.
The panel of arbitrators will typically include a minority of arbitrators who
were or are affiliated with the securities industry.
I agree that all claims or controversies, whether such claims or controversies
arose prior, on or subsequent to the date hereof, between me and SB and/or any
of its present or former officers, directors, or employees concerning or
arising from (i) any account maintained by me with SB individually or jointly
with others in any capacity; (ii) any transaction involving SB 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, any duty arising from the business of SB or otherwise, shall be determined
by arbitration before, and only before, any self-regulatory organization or
exchange of which SB is a member. I may elect which of these arbitration
forums shall hear the matter by sending a registered letter or telegram
addressed to Smith Barney Inc. at 388 Greenwich Street, New York, N.Y. 10013-
2396, Attn: Law Department. If I fail to make such election before the
expiration of five (5) days after receipt of a written request from SB to make
such election, SB shall have the right to choose the forum.
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; (ii) the class is decertified; or (iii) the customer is excluded from
the class by the court.
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Such forbearance to enforce an agreement to arbitrate shall not constitute a
waiver of any rights under this agreement except to the extent stated herein.
The 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 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 limitations as a bar to the arbitration by applying to
any court of competent jurisdiction, and I expressly agree that any issues
relating to the application of a statute of limitations or other time bar, are
referable to such court. The failure to assert such bar by application to a
court, however, shall not preclude its assertion before the arbitrators.
7. The provisions of this Agreement shall be continuous, shall cover
individually and collectively all accounts which I may open or reopen with SB,
and shall inure to the benefit of SB's present organization, and any successor
organization or assigns. Should any term or provision of this Agreement be
deemed or held to be invalid or unenforceable, the remaining terms and
provisions shall continue in full force and effect. This Agreement, all the
terms herein, and all controversies described in Paragraph 6 shall be governed
and construed in accordance with the laws of the State of New York, including,
but not limited to, the law of New York regarding the permissible rates of
interest that may be charged and the law of New York regarding damages
recoverable in arbitration, without giving effect to principles of conflicts of
law. This choice of law clause shall not govern the choice of statues of
limitations applicable to claims and controversies described in Paragraph 6,
and the statute of limitations applicable to any such claim or
controversy shall be that which would be applied by the federal district court
for the district in which I reside.
8. I understand that you may in your sole discretion prohibit or restrict
trading of securities or substitution of securities in any of my accounts. You
have the right to terminate any of my accounts (including multiple owner
accounts) at any time by notice to me. The provisions of this agreement shall
survive the termination of any account.
9. Your failure to insist at any time upon strict compliance with any term of
this Agreement, or any delay or failure on your part to exercise any power or
right given to you in this Agreement, 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. All
rights and remedies given to you in this Agreement are cumulative and not
exclusive of any other rights or remedies which you otherwise have.
10. I understand that SB shall not be liable for loss caused directly or
indirectly by government restrictions, exchange or market rulings, suspension
of trading, war, strikes or other conditions, commonly known as "acts of God,"
beyond SB's control.
<PAGE>
<PAGE> 7
11. From time to time you may at your discretion, make loans to me for a
purpose other than purchasing, carrying or trading in securities ("Express
Credit Loans"). Express Credit Loans will be made in a nonsecurities credit
account ("Express Credit Account"). The minimum and maximum amount of any
particular loan may be established by you in your discretion regardless of the
amount of collateral delivered to you and you may change such minimum and
maximum amounts from time to time.
I agree not to use the proceeds of any Express Credit Loan to purchase, carry
or trade in securities. I also agree not to use Express Credit Loan proceeds
directly or indirectly to repay other debt that I incur for the purpose of
purchasing, carrying or trading in securities.
JOINT ACCOUNT AGREEMENT
PARAGRAPHS 12 THROUGH 14 APPLY ONLY TO JOINT ACCOUNTS
12. If this is a joint account, in consideration of you and your successors
carrying a joint account on margin or otherwise for the undersigned, 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. Any of us
has full power and authority to make purchases and sales, including short
sales, to withdraw monies and securities from, or to do anything else with
reference to our account, either individually or in our joint names, and 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. 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.
13. Each of us agrees to hold SB harmless from and indemnify SB against any
losses, causes of action, damages and expenses arising from or as the result of
SB following the instructions of either or any of us. SB, in its sole
discretion, may at any time suspend all activity in the joint account pending
instructions from a court of competent jurisdiction or require that
instructions pertaining to the joint account or the property therein be in
writing signed by both or all of us. SB 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.
14. Each of us agrees that, in the event of the death of either or any of us,
the survivor or survivors 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 shall be liable and each survivor 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 the written notice of the death of the
<PAGE>
<PAGE> 8
decedent, or incurred in the liquidation of the account or the adjustment of
the interests of the respective parties.
If this account is a joint tenancy account with rights of survivorship, and not
a tenancy in common, in the event of the death of either or any of us, the
entire interest in the joint tenancy account shall be vested in the survivor or
survivors on the same terms and conditions as previously held, without in any
manner releasing the decedent's estate from the liability provided for herein.
If this account is a tenancy in common, in the event of the death of either or
any of us, the interests in the account shall be determined as specified on the
signature section of this Agreement and shall be held upon the same terms and
conditions as previously held, without in any manner releasing the decedent's
estate from the liability provided for herein.
SB will assume that our account is a joint account with right of survivorship
unless we elect a tenancy in common by completing Section F on Page 1 of this
Agreement
MARGIN AGREEMENT
PARAGRAPHS 15 THROUGH 17 APPLY ONLY TO MARGIN ACCOUNTS
15. 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.
16. I agree to pay ON DEMAND any balance owing with respect to any of my
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 from 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.
Whenever you deem it necessary or appropriate for your protection, you are
authorized in your sole discretion, to sell, assign, transfer and deliver all
or any part of my property which may be in your possession or control in any
manner you deem appropriate, make any necessary purchases to cover short sales
and/or any open commodity contract position and/or to cancel any outstanding
orders in order to close out the account. Without limiting the generality of
the foregoing, such sale, purchase or cancellation may be made, in your sole
discretion, on the exchange or other market where such business is then usually
<PAGE>
<PAGE> 9
transacted, at public auction or at private sale without advertising the same.
All of the above may be done without demand for margin or notice of purchase,
sale or cancellation to me. No demand for margin, or notice given to me of
intent to purchase 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 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. Upon any such sale, you may purchase the
whole or any part thereof free from any right of redemption. In the event of
my death or incompetency, the authority given by this Paragraph shall continue
effective and shall be binding upon my personal representatives and heirs.
17. I will at all times maintain such margin for my account maintained by SB,
as SB may require from time to time, and any debit balances arising in such
account shall be charged interest in accordance with the SB policy described in
the accompanying literature regarding new accounts provided by you under Rule
10b-16 of the Securities Exchange Act of 1934, as amended from time to time. I
am aware that interest charges, if not paid, will be added to the debit balance
in my account for the next interest period. 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.
<PAGE>
Exhibit 7.2
AGREEMENT
This Agreement, dated April 26, 1995, is entered into among Richard
Osborne ("Osborne"), Turkey Vulture Fund XIII, Ltd.("TVF") and Smith Barney,
Inc. ("Smith Barney") with respect to margin maintenance requirements for the
securities brokerage account maintained at Smith Barney by TVF (the "Account").
1) Osborne will wire transfer to Smith Barney $1.3 million in Federal
Funds no later than 5:00 p.m. on April 26, 1995. These funds shall be
deposited in the Account.
2) TVF and Osborne represent that (a) Osborne is a Managing Member of
TVF with authority to bind TVF, and (b) TVF is a limited liability company duly
organized, validly existing and in good standing under the laws of the State of
Ohio, and that the execution and delivery of this Agreement by TVF are duly
authorized under the Operating Agreement and will not violate or conflict with
any judgment, order, document or instrument to which TVF is a party or by which
it is bound.
3) TVF will direct the transfer to Smith Barney on April 26, 1995 of
TVF's securities brokerage account at Kemper Securities. Such account contains
965,500 shares ("Shares") of the common stock of First Union Real Estate Equity
and Mortgage Investment, which is subject to a margin debit of approximately
$2.8 million. Osborne and TVF represent and warrant that (a) the Shares are
freely saleable under the Securities Act of 1933 ("Act") and neither Osborne
nor TVF will take any action while the Shares are held as collateral for the
margin debit to cause the Shares to become subject to Rule 144 under the Act or
otherwise not to be freely saleable under the Act, and in the event the Shares
cease to be freely saleable under the Act, Osborne and TVF shall be required,
jointly and severally, to pay to Smith Barney the remaining margin debit in the
Account no later than three (3) business days after the occurrence of any such
action, and (b) the Shares are free of any liens and encumbrances, except the
margin debit referred to above.
4) Smith Barney will not call for additional maintenance margin with
respect to securities in the Account (except to the extent required by law or
in the event TVF purchases additional securities on margin) if TVF meets for
the duration of this Agreement the following minimum equity requirements in the
account:
a) 35% on the First Union Real Estate and Mortgage Investment and
40% on the Prudential Realty Trust for the six month period
commencing April 11, 1995;
b) 45% for the entire account for the following six months
thereafter; and
c) 50% for the entire account by April 11, 1996.
5) On or after May 11, 1996, Smith Barney may review the circumstances
concerning the Account and shall have the right to set new margin maintenance
requirements in accordance with Smith Barney's margin maintenance policy. No
change of policy shall occur without fourteen (14)calendar days written notice.
<PAGE>
<PAGE> 2
6) Osborne will execute a personal guaranty, in the form attached
hereto, no later than April 26, 1995 pursuant to which Osborne unconditionally
guarantees payment of the margin debit in the Account.
7) All dividends (including a dividend relating to the Shares payable in
April or May of 1995) and distributions relating to all securities in the
Account, will be deposited into and credited to the Account.
8) Any assets deposited into the Account after April 26, 1995, will be
in the form of cash, cash equivalents or securities that have been approved by
Smith Barney. TVF shall not have the right to withdraw assets from the Account
to the extent such withdrawals would cause the margin debit in the Account to
increase. In the event TVF sells securities in the Account, the net proceeds
of such sale must be applied to eliminate the margin debit in the Account prior
to withdrawal of such proceeds from the Account. TVF may not transfer any
securities out of the Account without written authorization from Smith Barney
unless the debit in the Account has been eliminated.
9) In the event of a conflict between the provisions of this Agreement
and the provisions of the Client Agreement governing the Account, the
provisions of this Agreement shall prevail. In all other respects, the
provisions of the Client Agreement shall govern the operation of the Account.
10) This Agreement may not be assigned by Osborne or TVF without Smith
Barney's prior written consent.
11) This Agreement may be amended from time to time by mutual agreement
in writing among the parties. There shall be no oral modification of this
Agreement.
12) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York without regard to the conflict of laws
provisions thereof.
IN WITNESS WHEREOF, the parties have executed this Agreement on the date
set forth above.
SMITH BARNEY, INC. TURKEY VULTURE FUND XIII, LTD.
By:/s/ Don S. Schechter By: /s/ Richard M. Osborne
- ----------------------------- ---------------------------------
Managing Member
RICHARD M. OSBORNE
/s/ Richard M. Osborne
-----------------------------
<PAGE>
Exhibit 7.3
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.
<PAGE>
<PAGE> 2
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
<PAGE>
<PAGE> 3
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
<PAGE>
<PAGE> 4
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.
<PAGE>
<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.
<PAGE>
<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 7.4
GENERAL ACCOUNT AGREEMENT
To: Kemper Securities, Inc.
in account with Kemper 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.
<PAGE>
<PAGE> 2
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
<PAGE>
<PAGE> 3
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
<PAGE>
<PAGE> 4
reason of failure of the undersigned to supply you therewith in deliverable
form subject to no restrictions on transfer, then and in such event the
undersigned authorizes you, in your discretion to borrow or 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 broker 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.
<PAGE>
<PAGE> 5
24. The undersigned understands in connection with this Agreement an
investigation may be made whereby information is obtained through personal
interviews with his 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 Kemper 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 Kemper 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.
Credit Terms in Margin Transactions
A finance charge is made by Kemper Clearing Corp. ("KCC") for extensions
of credit to its customers for the purposes of enabling them to purchase, carry
or trade in any security. These finance charges are described in KCC's monthly
statements as "interest". The following is a statement concerning the method
of computation of total finance charges on credit extended to customers.
<PAGE>
<PAGE> 6
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 charges 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 KCC. A lien is
created by these debits to secure the amount of money owed KCC. 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. KCC 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.
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.
<PAGE>
<PAGE> 7
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
/s/ E. Tammy Daye /s/ Richard M. Osborne
- ---------------------------- ----------------------
Witness Signature
Turkey Vulture Fund XIII Ltd. WYO7-7905-7985
- ----------------------------- -----------------------------
Account Name Branch I. D. & Account Number
___________________________________________________________________
Home Address
/s/ David Van Duesen
- ------------------------------
Investment Broker's Signature
<PAGE>
Exhibit 7.5
DONALDSON, LUFKIN & JENRETTE
Securities Corporation
140 Broadway
New York, New York 10005
CUSTOMER AGREEMENT
In consideration of your accepting and carrying for the undersigned one or
more accounts, the undersigned hereby consents and agrees that:
APPLICABLE RULES AND REGULATIONS
1. All transactions for the undersigned shall be subject to the constitution,
rules, regulations, customs and usages of the exchange or market and its
clearing house, if any, where executed by you or your agents, including your
subsidiaries and affiliates.
DEFINITION
2. For purposes of this agreement "securities, commodities and other
property," as used herein shall include, but not be limited to money,
securities and commodities of every kind and nature and all contracts and
options relating thereto, whether for present or future delivery.
LIEN
3. All securities, commodities and other property now or hereafter held,
carried or maintained by you in your possession and control for any purpose, in
or for, any of the accounts of the undersigned, now or hereafter opened,
including accounts in which the undersigned may have an interest, shall be
subject to a lien for the discharge of all the indebtedness and other
obligations of the undersigned to you, and are to be held by you as security
for the payment of any liability or indebtedness of the undersigned to you in
any of said accounts. You shall have the right to transfer securities,
commodities and other property so held by you from or to any other of the
accounts of the undersigned whenever in your judgment you consider such a
transfer necessary for your protection. In enforcing your lien, you shall have
the discretion to determine which securities and property are to be sold and
which contracts are to be closed.
LIQUIDATION
4. You shall have the right, in accordance with your general policies
regarding your margin maintenance requirements, as such may be modified,
amended or supplemented from time to time, or if, in your discretion you
consider it necessary for your protection to require additional collateral at
an earlier or later point in time than called for by said general policies, or
in the event that a petition in bankruptcy, or for appointment of a receiver is
filed by or against the undersigned, or an attachment is levied against the
accounts of the undersigned, or in the event of the death of the undersigned,
to sell any or all securities, commodities and other property in the accounts
of the undersigned with you, whether carried individually or jointly with
others, to buy any or all securities, commodities and other property which may
be short in such accounts, to cancel any open orders and to close any or all
<PAGE>
<PAGE> 2
outstanding contracts, all without demand for margin or additional margin,
notice of sale or purchase or other notice or advertisement. Any such sales or
purchases may be made at your discretion on any exchange or other market where
such business is usually transacted, or at public auction or private sale, and
you may be the purchasers for your own account, it being understood that a
prior demand, or call, or prior notice of the time and place of such sale or
purchase shall not be considered a waiver of your right to sell or buy without
demand or notice as herein provided.
PAYMENT OF INDEBTEDNESS UPON DEMAND
5. The undersigned shall at all times be liable for the payment upon demand
of any debit balance or other obligations owing in any of the accounts of the
undersigned with you and, the undersigned shall be liable to you for any
deficiency remaining in any such accounts in the event of the liquidation
thereof, in whole or in part, by you or by the undersigned; and, the
undersigned shall make payment of such obligations and indebtedness upon
demand.
LIABILITY FOR COSTS OF COLLECTION
6. The reasonable costs and expenses of collection of the debit balance and
any unpaid deficiency in the accounts of the undersigned with you, including,
but not limited to, attorney's fees, incurred and payable or paid by you shall
be payable to you by the undersigned.
PLEDGE OF SECURITIES, COMMODITIES AND OTHER PROPERTY
7. All securities, commodities and other property now or thereafter held,
carried or maintained by you in your possession in any of the accounts of the
undersigned may be pledged and repledged by you from time to time, without
notice to the undersigned, either separately or in common with other such
securities, commodities and other property for any amount due in the accounts
of the undersigned, or for any greater amount, and you may do so without
retaining to your possession or control for delivery a like amount of similar
securities, commodities or other property.
MARGIN REQUIREMENTS, CREDIT CHARGES AND CREDIT INVESTIGATION
8. The undersigned will at all times maintain such securities, commodities
and other property in the accounts of the undersigned for margin purposes as
you shall require from time to time and the monthly debit balances or adjusted
balances in the accounts of the undersigned with you shall be charged, in
accordance with your usual custom, with interest at a rate permitted by the
laws of the State of New York. It is understood that the interest charge made
to the undersigned's account at the close of a charge period will be added to
the opening balance for the next charge period unless paid.
<PAGE>
<PAGE> 3
You may exchange credit information about the undersigned with others.
You may request a credit report on the undersigned and upon request, you will
state the name and address of the consumer reporting agency that furnished it.
If you extend, update or renew the undersigned's credit, you may request a new
credit report without telling the undersigned.
PRESUMPTION OF RECEIPT OF COMMUNICATIONS
9. Communications may be sent to the undersigned at the address of the
undersigned or at such other address as the undersigned may hereafter give you
in writing, and all communications so sent, whether by mail, telegraph,
messenger or otherwise, shall be deemed given to the undersigned personally,
whether actually received or not.
NON-INVESTMENT ADVICE
10. The undersigned acknowledges that you will not provide the undersigned
with any legal, tax or accounting advice, that your employees are not
authorized to give any such advice and that the undersigned will not solicit or
rely upon any such advice from you or your employees whether in connection with
transactions in or for any of the accounts of the undersigned or otherwise. In
making legal, tax or accounting decisions with respect to transactions in or
for the accounts of the undersigned or any other matter, the undersigned will
consult with and rely upon its own advisors and not you, and you shall have no
liability therefor.
SCOPE AND TRANSFERABILITY
11. This agreement shall cover individually and collectively all accounts
which the undersigned may open or reopen with you, and shall inure to the
benefit of your successors whether by merger, consolidation or otherwise and
assigns, and you may transfer the accounts of the undersigned to your
successors and assigns, and this agreement shall be binding upon the heirs,
executors, administrators, successors and assigns of the undersigned.
EXTRAORDINARY EVENTS
12. You shall not be liable for loss caused directly or indirectly by
government restrictions, exchange or market rulings, suspension of trading,
war, strikes or other conditions beyond your control.
REPRESENTATIONS AS TO CAPACITY TO ENTER INTO AGREEMENT
13. The undersigned, if an individual represents that the undersigned is of
full age, that unless otherwise disclosed to you in writing, the undersigned is
not an employee of any exchange, or of any corporation of which any exchange
owns a majority of the capital stock, or of a member firm or member corporation
registered on any exchange or of a bank, trust company, insurance company or of
any corporations, firm or individual engaged in the business of dealing either
as a broker or as principal in securities, bills of exchange, acceptances or
other forms of commercial paper. The undersigned further represents that no
one except the undersigned has an interest in the account or accounts of the
undersigned with you.
<PAGE>
<PAGE> 4
JOINT AND SEVERAL LIABILITY
14. If the undersigned shall consist of more than one individual, their
obligations under this agreement shall be joint and several. The undersigned
have executed the Joint Account Agreement and made the election required
therein.
OPTION TRANSACTIONS
15. If at any time the undersigned shall enter into any transaction for the
purchase or resale of an option contract, the undersigned hereby agrees to
abide by the rules of any national securities association, registered
securities exchange or clearing organization applicable to the trading of
option contracts and, acting alone or in concert, will not violate the position
or exercise limitation rules of any such association or exchange or of the
Options Clearing Corporation or other clearing organization.
SEPARABILITY
16. If any provision or condition of this agreement shall be held to be
invalid or unenforceable by any court, or regulatory or self-regulatory agency
or body, such invalidity or unenforceability shall attach only to such
provision or condition. The validity of the remaining provisions and
conditions shall not be affected thereby and this agreement shall be carried
out as if any such invalid or unenforceable provision or condition were not
contained herein.
HEADINGS ARE DESCRIPTIVE
17. The heading of each provision hereof is for descriptive purposes only and
shall not be deemed to modify or qualify any of the rights or obligations set
forth in each such provision.
ARBITRATION DISCLOSURES
18. * ARBITRATION IS FINAL AND BINDING ON THE PARTIES.
* THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT,
INCLUDING THE RIGHT TO JURY TRIAL.
* PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND
DIFFERENT FROM COURT PROCEEDINGS.
* THE ARBITRATORS' AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR
LEGAL REASONING AND ANY PARTY'S RIGHT TO APPEAL OR TO SEEK
MODIFICATION OF RULINGS BY THE ARBITRATORS IS STRICTLY LIMITED.
* THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY OF
ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
<PAGE>
<PAGE> 5
AGREEMENT TO ARBITRATE CONTROVERSIES
19. IT IS AGREED THAT ANY CONTROVERSY BETWEEN US ARISING OUT OF YOUR BUSINESS
OR THIS AGREEMENT, SHALL BE SUBMITTED TO ARBITRATION CONDUCTED BEFORE THE NEW
YORK STOCK EXCHANGE, INC. OR ANY OTHER NATIONAL SECURITIES EXCHANGE ON WHICH A
TRANSACTION GIVING RISE TO THE CLAIM TOOK PLACE (AND ONLY BEFORE SUCH EXCHANGE)
OR THE NATIONAL ASSOCIATION OF SECURITIES DEALERS, INC., AS THE UNDERSIGNED MAY
ELECT AND IN ACCORDANCE WITH THE RULES OBTAINING OF THE SELECTED ORGANIZATION,
ARBITRATION MUST BE COMMENCED BY SERVICE UPON THE OTHER PARTY OF A WRITTEN
DEMAND FOR ARBITRATION OR A WRITTEN NOTICE OF INTENTION TO ARBITRATE, THEREIN
ELECTING THE ARBITRATION TRIBUNAL. IN THE EVENT THE UNDERSIGNED DOES NOT MAKE
SUCH ELECTION WITHIN FIVE (5) DAYS OF SUCH DEMAND OR NOTICE, THEN THE
UNDERSIGNED AUTHORIZES YOU TO DO SO ON BEHALF OF THE UNDERSIGNED.
NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO ARBITRATION,
NOR SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION AGREEMENT AGAINST ANY PERSON
WHO HAS INITIATED IN COURT A PUTATIVE CLASS ACTION; OR WHO IS A MEMBER OF A
PUTATIVE CLASS WHO HAS NOT OPTED OUT OF THE CLASS WITH RESPECT TO ANY CLAIMS
ENCOMPASSED BY THE PUTATIVE CLASS ACTION UNTIL: (i) THE CLASS CERTIFICATION IS
DENIED; OR (ii) THE CLASS IS DECERTIFIED; OR (iii) THE CUSTOMER IS EXCLUDED
FROM THE CLASS BY THE COURT. SUCH FORBEARANCE TO ENFORCE AN AGREEMENT TO
ARBITRATE SHALL NOT CONSTITUTE A WAIVER OF ANY RIGHTS UNDER THIS AGREEMENT
EXCEPT TO THE EXTENT STATED HEREIN.
THE LAWS OF THE STATE OF NEW YORK GOVERN
20. THIS AGREEMENT AND ITS ENFORCEMENT SHALL BE GOVERNED BY THE LAWS OF THE
STATE OF NEW YORK.
LOAN CONSENT
21. BY SIGNING THIS AGREEMENT, THE UNDERSIGNED ACKNOWLEDGES THAT SECURITIES
NOT FULLY PAID FOR BY THE UNDERSIGNED MAY BE LOANED TO YOU OR LOANED OUT TO
OTHERS.
THIS AGREEMENT CONTAINS A PRE-DISPUTE ARBITRATION CLAUSE IN PARAGRAPH 19
ON THIS PAGE. I ACKNOWLEDGE RECEIVING A COPY OF THIS AGREEMENT.
<PAGE>
<PAGE> 6
SIGNATURES
(If a Corporation, Partnership or Other Entity) (If Individuals)
Turkey Vulture Fund XIII, Ltd.
------------------------------
(Name of Entity)
(Second Party, If Joint Account)
By /s/ Richard M. Osborne
-------------------------------
Title Managing Member
-------------------------------
SEAL
DATED _______________ ACCOUNT NO.___________
