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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. )*
Cardinal Realty Services, Inc.
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
141538 10 08
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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 26, 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. 141538 10 08
<S> <C>
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Turkey Vulture Fund XIII, Ltd.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
WC,OO,AF
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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 214,311
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BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
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EACH 9 SOLE DISPOSITIVE POWER
REPORTING 214,311
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PERSON 10 SHARED DISPOSITIVE POWER
WITH
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
214,311
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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)
5.7%
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14 TYPE OF REPORTING PERSON*
OO
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</TABLE>
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<TABLE>
SCHEDULE 13D
CUSIP NO. 141538 10 08
<S> <C>
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1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Richard M. Osborne Trust
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [x]
(b) [ ]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
PF,AF
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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 100,000
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BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY
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EACH 9 SOLE DISPOSITIVE POWER
REPORTING 100,000
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PERSON 10 SHARED DISPOSITIVE POWER
WITH
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
100,000
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*[ ]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
2.6%
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14 TYPE OF REPORTING PERSON*
OO
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</TABLE>
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CUSIP No. 141538 10 08
This original Schedule 13D Statement is filed on behalf of the Richard M.
Osborne Trust and Turkey Vulture Fund XIII, Ltd., an Ohio limited liability
company, for the purpose of reporting an acquisition by Turkey Vulture Fund
XIII, Ltd., and certain dispositions by the Richard M. Osborne Trust, of shares
of common stock, without par value, of Cardinal Realty Services, Inc., an Ohio
corporation.
Item 1. Security and Issuer.
This Schedule 13D Statement relates to the shares of common stock (the
"Shares"), without par value, of Cardinal Realty Services, Inc., an Ohio
corporation ("Cardinal"), which has its principal executive offices at 6954
Americana Parkway, Reynoldsburg, Ohio 43068.
Item 2. Identity and Background.
(a) The persons filing this Schedule 13D are Turkey Vulture Fund XIII,
Ltd. (the "Fund") and the Richard M. Osborne Trust (the "Trust"). Richard M.
Osborne is the sole manager of the Fund and the sole Trustee of the Trust. The
Trust is a member of the Fund.
(b) The address of the Trust and 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. The Trust
was established by Mr. Osborne for estate planning purposes. Mr. Osborne is
President and Chairman of the Board of OsAir, Inc. ("OsAir"), a property
developer and manufacturer of industrial gases for pipeline delivery. OsAir is
located at 7001 Center Street, Mentor, Ohio 44060.
(d) Negative with respect to each reporting person and Mr. Osborne.
(e) Negative with respect to each reporting person and Mr. Osborne.
(f) The Fund is an Ohio limited liability company and the Trust is trust
organized under the laws of Ohio. Mr. Osborne is a citizen of the United
States of America.
Item 3. Source and Amount of Funds or Other Consideration.
The Shares reported herein as having been acquired by the Fund were
purchased for the aggregate purchase price of approximately $3.3 million. The
Fund acquired such Shares with a combination of (i) $300,000 in working capital
of the Fund, and (ii) approximately $3.0 Million in margin debt. The margin
debt is held by Everen Securities, Inc. ("Everen") and Donaldson, Lufkin &
Jenrette Securities Corporation ("DLJ"). The Shares reported herein as being
owned by the Trust were previously reported in the Schedule 13D Statement dated
January 13, 1994 and the five amendments thereto filed by Mr. Osborne. Such
Shares were contributed to the Trust by Mr. Osborne subsequent to the filing of
the January 13, 1994 Schedule 13D and the amendments thereto.
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CUSIP No. 141538 10 08
Interest on the Everen margin debt is computed at a select rate above the
rate banks charge securities brokers ("brokers call money rate") and is subject
to change, without notice, if the brokers call money rate changes. To the
extent permitted by law, Everen has a lien on certain of the Shares reported
herein as having been acquired by the Fund and certain other securities owned
by the Fund. A copy of the agreement setting forth the terms of the Everen
margin debt is attached hereto as Exhibit 7.1.
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 and certain other securities owned
by the Fund. A copy of the agreement setting forth the terms of the DLJ margin
debt is attached hereto as Exhibit 7.2.
Item 4. Purpose of Transaction.
The Fund and Trust purchased the Shares for the purpose of investment.
Depending on market conditions, developments with respect to Cardinal's
business and other factors, the Fund, Mr. Osborne and the Trust reserve the
right to dispose of or acquire additional Shares. Pursuant to the instructions
for items (a) through (j) of Item 4 of Schedule 13D, none of the Fund, the
Trust, nor Mr. Osborne presently has 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 Cardinal or any of its subsidiaries;
(ii) the sale or disposition of a material amount of assets of Cardinal or
any of its subsidiaries;
(iii) a change in the present board of directors or management of Cardinal;
(iv) a material change in the present capitalization or dividend policy of
Cardinal;
(v) a material change in the business or corporate structure of Cardinal;
(vi) a change to the articles of incorporation or bylaws of Cardinal or an
impediment to the acquisition of control of Cardinal by any person;
(vii) the delisting of the Shares from any inter-dealer quotation system of
a nationally registered securities association;
(viii) a class of equity securities of Cardinal becoming eligible for
termination of registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"); or
(ix) any action similar to any of those enumerated in (i) through (viii)
above.
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CUSIP No. 141538 10 08
Subject to applicable laws and regulations, the Fund reserves the right to
formulate plans and proposals that may result in the occurrence of an event set
forth in (i) through (ix) above.
The Fund and Mr. Osborne are aware that Article 8 of Cardinal's Amended
Articles of Incorporation purports to prohibit and declare null and void
certain acquisitions of Shares that would result in a person becoming a "5
percent shareholder" within the meaning of Section 382 of the Internal Revenue
Code of 1986, as amended. The Fund and Mr. Osborne believe that Cardinal has
waived and is estopped from asserting any rights it may have had to prohibit or
declare null and void the purchase of Shares by the Fund. After careful
review, the Fund and Mr. Osborne do not believe that there is any legal or
factual basis for Cardinal to assert any rights under Article 8 with respect to
the Shares. Therefore, the Fund and Mr. Osborne would contest vigorously any
attempt to declare null and void the Fund's acquisition of Shares, or any
portion thereof, or to restrict the rights of the Fund with respect to those
Shares, or any portion thereof. In the event that either the Fund, the Trust
or Mr. Osborne determine to make additional purchases of the Shares, they will
continue to review Article 8 of Cardinal's Amended Articles of Incorporation.
The Fund, the Trust and Mr. Osborne may consider, but have no present plans or
proposals for challenging the legality of the prohibitions purportedly imposed
in the Articles.
Item 5. Interest in Securities of the Issuer.
(a) According to the most recently available filing with the Securities
and Exchange Commission by Cardinal, there are 3,790,569 Shares outstanding.
The Fund beneficially owns 214,311 Shares, or approximately 5.7% of
the outstanding Shares. As the sole manager of the Fund, Mr. Osborne may be
deemed to beneficially own such Shares.
The Trust beneficially owns 100,000 Shares, or approximately 2.6% of
the outstanding Shares. As the sole trustee of the Trust, Mr. Osborne may be
deemed to beneficially own such Shares. Because Mr. Osborne is the sole
manager of the Fund and sole trustee of the Trust, the Fund and the Trust may
be deemed members of a group under Section 13(d)(3) of the Exchange Act.
(b) Mr. Osborne, as sole manager of the Fund and sole trustee of the
Trust, has sole power to vote, or to direct the voting of, and the sole power
to dispose or to direct the disposition of, the Shares owned by the Fund and
the Trust.
(c) The Fund purchased all the Shares reported herein as having been
acquired by it for $15.51 per share in a private transaction on February 26,
1996.
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CUSIP No. 141538 10 08
During the past 60 days, the Trust disposed of Shares in open market
transactions as set forth below:
<TABLE>
Approx. Per Share Price
Date Number of Shares (Excluding Commissions)
<S> <C> <C>
January 30, 1996 5,000 $17.75
February 2, 1996 5,000 $18.00
February 13, 1996 7,500 $18.50
February 14, 1996 10,000 $18.25
February 16, 1996 2,500 $18.25
</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 -- General Account Agreement Letter to Kemper
Securities, Inc. (predecessor-in-interest to
Everen) from Turkey Vulture Fund XIII, Ltd.
Exhibit 7.2 -- DLJ Customer Agreement
Exhibit 7.3 -- Joint Filing Agreement
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CUSIP No. 141538 10 08
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: March 5, 1996 RICHARD M. OSBORNE TRUST
/s/ Richard M. Osborne Trustee
------------------------------
Richard M. Osborne, Trustee
TURKEY VULTURE FUND XIII, LTD.
/s/ Richard M. Osborne
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Richard M. Osborne, Manager
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Exhibit Index
Exhibit 7.1 -- General Account Agreement Letter to Kemper Securities,
Inc.(predecessor-in-interest to Everen) from Turkey
Vulture Fund XIII, Ltd.
Exhibit 7.2 -- DLJ Customer Agreement
Exhibit 7.3 -- Joint Filing Agreement
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Exhibit 7.1
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.
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6. You are authorized to make such advances and to expend such monies as
in your opinion may be required in respect of all transactions hereunder. The
undersigned agrees to pay customary brokerage and commission charges. Debit
balances of the accounts of the undersigned shall be charged with interest in
accordance with your usual custom, and with any increases in rates caused by
money market conditions, and with such other charges as you may make to cover
your facilities and extra services. Credit balances shall not earn interest.
It is understood and agreed that the interest charge made to the undersigned's
account at the close of one charge period will be compounded, that is, added to
the opening balance for the next charge period unless paid, thereby becoming
part of the principal amount and bearing like interest. A statement disclosing
your credit terms currently applicable to margin transactions is set forth as
part of this Agreement, but is subject to change from time to time as set forth
therein.
7. All securities, other property and collateral deposited for the
protection of the undersigned's collateral and/or margin account may be
deposited with the Depository Trust Company or any other recognized clearing
corporation or depository trust company, and may be held in street name and
used there by you until the undersigned shall demand and become entitled to
delivery thereof; you shall have a reasonable time after such a demand for
delivery to ship securities, other property or collateral from New York or from
any other place where they may be to the place where the same are to be
delivered to the undersigned, and shall only be required to deliver securities,
other property or collateral of the same kind and character as originally
deposited.
8. You shall not be responsible for delays in the transmission of orders
due to breakdown or failure of transmission or communication facilities, and
you shall not be liable for loss caused directly or indirectly by governmental
restrictions, war, strikes, or any other cause or causes beyond your reasonable
control or anticipation.
9. All orders given by the undersigned for the purchase or sale of
securities or other property, which may be listed on more than one exchange or
market, may be executed on any exchange or market selected by you.
10. Whenever in your discretion you consider it necessary for your
protection, or in the event that one or more of the undersigned be judicially
declared incompetent, or dies, or a petition in bankruptcy or for the
appointment of a receiver is filed by or against one or more of the
undersigned, or an assignment is made by one or more of the undersigned for the
benefit of creditors, or an attachment is levied against one or more of the
undersigned's accounts, or the collateral deposited to protect the
undersigned's account is determined by you in your absolute and uncontrolled
discretion, and regardless of current market quotations, to be inadequate to
properly secure the account, then, in any such case, any one of which shall be
a default hereunder, you are authorized to close out the account in whole or in
part and in connection therewith you may sell any or all the securities and
commodities or other property which may be in your possession, or which you may
be carrying for the undersigned, or you may buy in any securities, commodities
or property of which the account or accounts of the undersigned may be short,
or cancel any outstanding orders in order to close out the account or accounts
of the undersigned in whole or in part in order to close out any commitment
made on behalf of the undersigned. Such sale, purchase or cancellation may be
made according to your judgement and may be made, at your discretion, on the
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exchange or other market where such business is then usually transacted, or at
public auction or at private sale, without advertising the same and without
notice to the undersigned or to the personal representatives of the
undersigned, and without prior tender, demand or call of any kind upon the
undersigned or upon the personal representative of the undersigned, and you may
purchase the whole or any part thereof free from any right of redemption, and
the undersigned shall remain liable for any deficiency; it being understood
that a prior tender, demand or call of any kind from you, or prior notice from
you, of the time and place of such sale or purchase shall not be considered a
waiver of your right to sell or buy any securities and/or commodities and/or
other property held by you, or owed you by the undersigned, at any time without
prior tender, demand, call or notice. All costs and expenses of such
transaction(s), including commissions and transfer and stamp taxes, shall be
charged to the undersigned.
11. The undersigned understands that you require the maintenance of
certain margin levels in said accounts and that you may, in your discretion,
periodically increase or decrease such requirements. The undersigned will at
all times maintain margins for said accounts in accordance with the then
existing maintenance requirements.
12. You may at any time terminate any accounts of the undersigned with
you and thereupon all amounts advanced by you and other balances owing, with
interest at the current rate, and any and all commissions due under your
current rate schedule, shall be immediately due and payable upon demand. The
undersigned undertakes, at any time upon your demand, to discharge obligations
of the undersigned to you, including obligations with respect to any account
guaranteed by the undersigned, or, in the event of a closing of any account of
the undersigned in whole or in part by you or the undersigned, and/or a similar
closing of any account guaranteed by the undersigned, to pay the deficiency, if
any, and the undersigned agrees to reimburse you for any costs or expenses
incurred by you in collecting such amounts, including reasonable attorney's
fees. No oral agreement or instructions to the contrary shall be recognized.
13. All transactions for or in connection with the account of the
undersigned shall be deemed to be included in a single account notwithstanding
the fact that such transactions may be segregated on your records into separate
accounts, either severally or jointly with others; and at any time and from
time to time, in your discretion, you may without notice to the undersigned,
apply and/or transfer any or all monies, securities, commodities and/or other
property of the undersigned interchangeably between any accounts of the
undersigned or from any of the undersigned's accounts to any account guaranteed
by the undersigned (other than from Regulated Commodity Accounts.)
14. When placing with you any sell order for short account, the
undersigned will designate it as such and hereby authorizes you to mark such
order as being "short", and when placing with you any order for long account,
will designate it as such and hereby authorizes you to mark such order as being
"long". Any sell order which the undersigned shall designate as being for long
account as above provided, is for securities then owned by the undersigned and,
if such securities are not then deliverable by you from any account of the
undersigned, the placing of such an order shall constitute a representation by
the undersigned that he will deliver them forthwith. Further, in case of the
sale of any security, commodity or other property by you at the direction of
the undersigned and your inability to deliver the same to the purchaser by
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<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.
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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.
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<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 7.2
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.___________
<PAGE>
EXHIBIT 7.3
AGREEMENT OF JOINT FILING
Pursuant to Rule 13d-1(f) promulgated under the Securities Exchange
Act of 1934, as amended, the undersigned persons hereby agree to file with the
Securities and Exchange Commission, the Statement on Schedule 13D (the
"Statement") to which this Agreement is attached as an exhibit, and agree that
such Statement, as so filed, is filed on behalf of each of them.
This Agreement may be executed in counterparts, each of which when so
executed shall be deemed to be an original, and all of which together shall be
deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement.
Dated: March 5, 1996
RICHARD M. OSBORNE TRUST
/s/Richard M. Osborne Trustee
------------------------------
Richard M. Osborne, Trustee
TURKEY VULTURE FUND XIII, LTD.
/s/Richard M. Osborne
------------------------------
Richard M. Osborne, Manager
