-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, UHMEIGDBuB49A5L85atQ4DHLIh8pvndqZy6Ogs0AQD1h0ymsoHKBzlhrUssz72Yj +Lioz1Px9orL1XN25b42iw== 0000935886-96-000006.txt : 19960216 0000935886-96-000006.hdr.sgml : 19960216 ACCESSION NUMBER: 0000935886-96-000006 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 19960214 SROS: AMEX SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: KOGER EQUITY INC CENTRAL INDEX KEY: 0000835664 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 592898045 STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: 1934 Act SEC FILE NUMBER: 005-39744 FILM NUMBER: 96518265 BUSINESS ADDRESS: STREET 1: 3986 BLVD CTR DR STE 101 CITY: JACKSONVILLE STATE: FL ZIP: 32207 BUSINESS PHONE: 9043983403 MAIL ADDRESS: STREET 1: 3986 BLVD CTR DR STREET 2: SUITE 101 CITY: JACKSONVILLE STATE: FL ZIP: 32207 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: TURKEY VULTURE FUND XIII LTD CENTRAL INDEX KEY: 0000935886 STANDARD INDUSTRIAL CLASSIFICATION: [] FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: 7001 CENTER STREET CITY: MENTOR STATE: OH ZIP: 44060 BUSINESS PHONE: 2169511111 MAIL ADDRESS: STREET 2: 7001 CENTER ST CITY: MENTOR STATE: OH ZIP: 44060 SC 13D 1 TURKEY VULTURE FUND XIII, LTD SC 13D 1 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. - ------------------------------------------------------------------------------- (Name of Issuer) Shares of Common Stock - ------------------------------------------------------------------------------- (Title of Class of Securities) 50022 81 01 - ------------------------------------------------------------------------------- (CUSIP Number) Marc C. Krantz, Kohrman Jackson & Krantz, 1375 East 9th Street, Cleveland, Ohio 44114, 216-736-7204 - ------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) February 8, 1996 - ------------------------------------------------------------------------------- (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). 2 SCHEDULE 13D CUSIP NO. 50022 81 01 - ------------------------------------------------------------------------------- 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Turkey Vulture Fund XIII, Ltd. - ------------------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ] (b) [ ] - ------------------------------------------------------------------------------- 3 SEC USE ONLY - ------------------------------------------------------------------------------- 4 SOURCE OF FUNDS* AF,WC,OO - ------------------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [ ] - ------------------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Ohio - ------------------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES 889,200* ------------------------------------------------------ BENEFICIALLY 8 SHARED VOTING POWER OWNED BY ------------------------------------------------------ EACH 9 SOLE DISPOSITIVE POWER REPORTING 889,200* ------------------------------------------------------ PERSON 10 SHARED DISPOSITIVE POWER WITH - ------------------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 889,200* - ------------------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES*[ ] - ------------------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.0%* - ------------------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* OO - -------------------------------------------------------------------------------
*Includes 23,700 warrants to purchase shares of common stock 3 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; 4 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; 5 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: 6 CUSIP No. 50022 81 01 Approx. Per Share Price Number of Shares Excluding Description of Date or Warrants Commission Securities* ---------------- ---------------- --------------- -------------- 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
* "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: 7 CUSIP No. 50022 81 01 Approx. Per Share Price Date Number of Warrants (Excluding Commissions) --------------- ------------------ ----------------------- 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
(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 8 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 9 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 EX-7.1 2 TURKEY VULTURE FUND XIII, LTD. EX-7.1 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, 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: 3 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' 4 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 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. 6 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. 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 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 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. EX-7.2 3 TURKEY VULTURE FUND XIII, LTD. EX-7.2 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. 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 ----------------------------- EX-7.3 4 TURKEY VULTURE FUND XIII, LTD. 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. 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 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 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. 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. 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. 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 EX-7.4 5 TURKEY VULTURE FUND XIII, LTD. EX-7.4 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. 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 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 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. 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. 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. 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 EX-7.5 6 TURKEY VULTURE FUND XIII, LTD. EX-7.5 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 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. 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. 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. 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. 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.___________ -----END PRIVACY-ENHANCED MESSAGE-----