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EXHIBIT 7.5
COMMERCIAL PLEDGE AGREEMENT
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Principal Loan Date Maturity Loan No. Call/Col. Account Officer Initials
$2,000,000.00 12-27-2002 12-30-2009 67 8407955008
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References in the shaded are for Lender's use only and do not limit the applicability of this
document to any particular loan or item.
Any item above containing ***** has been omitted due to tax length limitations.
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Borrower: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Lender: THE HUNTINGTON NATIONAL BANK
7001 Center Street Middleburg Heights Commercial Lending
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇ - ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Grantor: Turkey Vulture Fund XIII, Ltd.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
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THIS COMMERCIAL PLEDGE AGREEMENT dated 1-30-03, is made and executed among
Turkey Vulture Fund XIII, Ltd, ("Grantor"); ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("Borrower");
and THE HUNTINGTON NATIONAL BANK ("Lender").
GRANT OF SECURITY INTEREST. For valuable consideration, Grantor grants to Lender
a Security Interest in the Collateral to secure the Indebtedness and agrees that
Lender shall have the rights stated in this Agreement with respect to the
Collateral. In addition to all other rights which Lender may have law.
COLLATERAL DESCRIPTION. The word "Collateral" as used in this Agreement means
all of Grantor's property (however owned if more than one), in the possession of
Lender (or in the possession of a third party subject to the control of Lender),
whether existing now or later and whether tangible or intangible in character,
including without limitation each and all of the following:
Wachovia Securities Account No. 7905-7955 with an approximate balance of
$7,401,109
In addition, the word "Collateral" includes all of Grantor's property (however
owned), in the in the possession of Lender (or in the possession of a third
party subject to the control of Lender), whether now or hereafter existing and
whether tangible or intangible in character, including without limitation each
of the following:
(A) All property to which Lender acquires this or documents of this.
(B) All property assigned to Lender.
(C) All promissory notes, bills of exchange, stock certificates, bonds,
savings passbooks, time certificates of deposit, insurance policies, and
all other instruments and evidences of an obligation.
(D) All records relating to any of the property described in this
Collateral section, whether in the form of a writing, microfilm,
microfiche, or electronic media.
(E) All Income and Proceeds from the Collateral as defined herein.
CROSS-COLLATERALIZATION. In addition to the Note, this Agreement secures all
obligations, debts and liabilities, plus interest thereon, of Borrower to
Lender, or any one or more of them, as well as all claims by Lender against
Borrower or any one of more of them, whether now existing or hereafter arising,
whether related or unrelated to the purpose of the Note, whether voluntary or
otherwise, whether due or not due, direct or indirect, determined or
undetermined, absolute or contigent, liquidated or unliquidated whether Borrower
or Grantor may be liable individually or jointly with others, whether obligated
as guarantor, surety, accommodation party or otherwise, and whether recovery
upon such amounts may be or hereafter may become barred by any statute of
limitations, and whether the obligation to repay such amounts may be or
hereafter may become otherwise unenforceable.
BORROWER'S WAIVERS AND RESPONSIBILITIES. Except as otherwise required under this
Agreement or by applicable law, (A) Borrower agrees that Lender need not tell
Borrower about any action or inaction Lender takes in connection with this
Agreement; (B) Borrower assumes the responsibility for being and keeping
informed about the Collateral; and (C) Borrower waives any defenses that may
arise because of any action or inaction of Lender, including without limitation
any failure of Lender to realize upon the Collateral or any delay by Lender in
realizing upon the Collateral; and Borrower agrees to remain liable under the
Note no matter what action Lender takes or fails to take under this Agreement.
GRANTOR'S REPRESENTATIONS AND WARRANTIES. Grantor warrants that: (A) this
Agreement is executed at Borrower's request and no at the request of Lender; (B)
Grantor has the full right, power and authority to enter into this Agreement and
to pledge the Collateral to Lender; (C) Grantor has established adequate means
of obtaining from Borrower on a continuing basis information about Borrower's
financial condition; and (D) Lender has made no representation to Grantor about
Borrower or Borrower's creditworthiness.
GRANTOR'S WAIVERS. Grantor waives all requirements of presentment, protest,
demand, and notice of dishonor or non-payment to Borrower or Grantor, or any
other party to the indebtedness or the Collateral. Lender may do any of the
following with respect to any obligation of any Borrower, without first
obtaining the consent of Grantor: (A) grant any extension of time for any
payment, (B) grant any renewal, (C) permit any modification of payment terms or
other terms, or (D) exchange or release any Collateral or other security. No
such act or failure to act shall affect Lender's rights against Grantor or the
Collateral.
RIGHT OF SETOFF. To the extent permitted by applicable law, Lender reserves a
right of setoff in all Grantor's accounts with Lender (whether checking,
savings, or some other account). This includes all accounts Grantor holds
jointly with someone else and all accounts Grantor may open in the future.
However, this does not include any ▇▇▇ or ▇▇▇▇▇ accounts, or any trust accounts
for which setoff would be prohibited by law. Grantor authorizes Lender, to the
extent permitted by applicable law, to charge or setoff all sums owing on the
indebtedness against any and all such accounts.
REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE COLLATERAL. Grantor
represents and warrants to Lender that:
OWNERSHIP. Grantor is the lawful owner of the Collateral free and clear
of all security interests, liens, encumbrances and claims of others
except as disclosed to and accepted by Lender in writing prior to
execution of this Agreement.
RIGHT TO PLEDGE. Grantor has the full right, power and authority to
enter into this agreement and to pledge the Collateral.
AUTHORITY; BINDING EFFECT. Grantor has the full right, power and
authority to enter into this Agreement and to grant a security interest
in the Collateral to Lender. This Agreement is binding upon Grantor as
well as Grantor's successor and assigns, and is legally enforceable in
accordance with its terms. The foregoing representations and warranties
and all other representations and warranties contained in this Agreement
are and shall be continuing in nature and shall remain in full force and
effect until such time as this Agreement is terminated or cancelled as
provided herein.
NO FURTHER ASSIGNMENT. Grantor has not, and shall not, sell, assign,
transfer, encumber or otherwise dispose of any of Grantor's rights in
the Collateral except as provided in this Agreement.
NO DEFAULTS. There are no defaults existing under the Collateral, and
there are no offsets or counterclaims to the same. Grantor will strictly
and promptly perform each of the terms, conditions, covenants and
agreements. If any, contained in the Collateral which are to be
performed by Grantor.
NO VIOLATION. The execution and delivery of this Agreement will not
violate any law or agreement governing Grantor or to which Grantor is a
party, and its membership agreement does not prohibit any term or
condition of this Agreement.
FINANCING STATEMENTS. Grantor authorizes Lender to file a UCC-1
financing statement, or alternatively, a copy of this Agreement to
perfect Lender's security interest. At Lender's request, Grantor
additionally agrees to sign all other documents that are necessary to
perfect, protect, and continue Lender's security interest in the
Property. Grantor will pay all filing fees, title transfer fees, and
other fees and costs involved unless prohibited by law or unless Lender
is required by law to pay such fees and costs. Grantor irrevocably
appoints Lender to execute financing statements and documents of title
in Grantor's name and to execute all documents necessary to transfer
this if that is a default. Lender may file a copy of this Agreement as
a financing statement. If Grantor changes Grantor's name or address, or
the name or address of any person granting a security interest under
this Agreement changes, Grantor will promptly notify the Lender of such
change.
LENDER'S RIGHTS AND OBLIGATIONS WITH RESPECT TO THE COLLATERAL. Lender may hold
the Collateral until all indebtedness has been paid and satisfied. Thereafter
Lender may deliver the Collateral to Grantor or to any other owner of the
Collateral. Lender shall have the following rights in addition to all other
rights Lender my have by law:
MAINTENANCE AND PROTECTION OF COLLATERAL. Lender may, but shall not be
obligated to, take such steps as it deems necessary or desirable to
protect, maintain, insure, store, or care for the Collateral, including
paying of any liens or claims against the Collateral. This may include
COMMERCIAL PLEDGE AGREEMENT
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such things as hiring other people, such as attorneys, appraisers or
other experts. Lender may charge Grantor for any cost incurred in so
doing. When applicable law provides more than one method of perfection
of Lender's security interest, Lender may choose the method(s) to be
used. If the Collateral consists of stock, bonds, or other investment
property for which no certificate has been issued, Grantor agrees, at
Lender's request, either to request issuance of an appropriate
certificate or to give instructions on Lender's forms to the issuer,
transfer agent, mutual fund company, or broker, as the case may be, to
record on its books or records Lender's security interest in the
Collateral.
INCOME AND PROCEEDS FROM THE COLLATERAL. Lender may receive all income
and Proceeds and add it to the Collateral. Grantor agrees to deliver to
Lender immediately upon receipt, in the exact form received and without
commingling with other property, all income and Proceeds from the
Collateral which may be received by, paid, or delivered to Grantor or
for Grantor's account, whether as an addition to, in discharge of, in
substitution of, or in exchange for any of the Collateral.
APPLICATION OF CASH. At Lender's option, Lender may apply any cash,
whether included in the Collateral or received as Income and Proceeds or
through liquidations, sale, or retirement, of the Collateral, to the
satisfaction of the indebtedness or such portion thereof as Lender shall
choose, whether or not matured.
TRANSACTIONS WITH OTHERS. Lender may (1) extend time for payment or
other performance, (2) grant a renewal or change in terms or conditions,
or (3) compromise, compound or release any obligation, with any one or
more Obligors, endorsers, or Guarantors of the indebtedness as Lender
deems advisable, without obtaining the prior written consent of Grantor,
and no such act or failure to act shall affect Lender's rights against
Grantor or the Collateral.
ALL COLLATERAL SECURES INDEBTEDNESS. All Collateral shall be security
for the indebtedness, whether the Collateral is located at one or more
offices or branches of Lender. This will be the case whether or not the
office or branch where Grantor obtained Grantor's loan knows about the
Collateral or relies upon the Collateral as security.
COLLECTION OF COLLATERAL. Lender at Lender's option may, but need not,
collect the Income and Proceeds directly from the Obligors. Grantor
authorizes and directs the Obligors, if Lender decides to collect the
Income and Proceeds, to pay and deliver to Lender all Income and
Proceeds from the Collateral and to accept Lender's receipt for the
payments.
POWER OF ATTORNEY. Grantor irrevocably appoints Lender as Grantor's
attorney-in-fact, with full power of substitution, (a) to demand,
collect, receive, receipt for, ▇▇▇ and recover all Income and Proceeds
and other sums of money and other property which may now or hereafter
become due, owing or payable from the Obligors in accordance with the
terms of the Collateral; (b) to execute, sign and endorse any and all
instruments, receipts, checks, drafts and warrants issued in payment for
the Collateral; (c) to settle or compromise any and all claims arising
under the Collateral, and in the place and stead of Grantor, execute and
deliver Grantor's release and acquittance for Grantor; (d) to file any
claim or claims or to take any action or institute or take part in any
proceedings, either in Lender's own name or in the name of Grantor, or
otherwise, which in the discretion of Lender may seem to be necessary or
advisable; and (e) to execute in Grantor's name and to deliver to the
Obligors on Grantor's behalf, at the time and in the manner specified by
the Collateral, any necessary instruments or documents.
PERFECTION OF SECURITY INTEREST. Upon Lender's request, Grantor will
deliver to Lender any and all of the documents evidencing or
constituting the Collateral. When applicable law provides more than one
method of perfection of Lender's security interest, Lender may choose
the method(s) to be used. Upon Lender's request, Grantor will sign and
deliver any writings necessary to perfect Lender's security interest.
Grantor hereby appoints Lender as Grantor's irrevocable attorney-in-fact
for the purpose of executing any documents necessary to perfect, amend,
or to continue the security interest granted in this Agreement or to
demand termination of filings of other secured parties.
LENDER'S EXPENDITURES. If any action or proceeding is commenced that would
materially affect Lender's interest in the Collateral or if Grantor fails to
comply with any provision of this Agreement or any Related Documents, including
but not limited to Grantor's failure to discharge or pay when due any amounts
Grantor is required to discharge or pay under this Agreement or any Related
Documents, Lender on Grantor's behalf may (but shall not be obligated to) take
any action that Lender deems appropriate, including but not limited to
discharging or paying all taxes, liens, security interests, encumbrances and
other claims, at any time levied or placed on the Collateral and paying all
costs for insuring, maintaining and preserving the Collateral. All such
expenditures incurred or paid by Lender for such purposes will then bear
interest at the rate charged under the Note from the date incurred or paid by
Lender to the date of repayment by Grantor. All such expenses will become a part
of the indebtedness and, at Lender's option, will (A) be payable on demand; (B)
be added to the balance of the Note and be apportioned among and be payable with
any installment payments to become due during either (1) the term of any
applicable insurance policy; or (2) the remaining term of the Note; or (C) be
treated as a balloon payment which will be due and payable at the Note's
maturity. The Agreement also will secure payment of these amounts. Such right
shall be in addition to all other rights and remedies to which Lender may be
entitled upon Default.
LIMITATIONS ON OBLIGATIONS OF LENDER. Lender shall use ordinary reasonable care
in the physical preservation and custody of the Collateral in Lender's
possession, but shall have no other obligation to protect the Collateral or its
value. In particular, but without limitation, Lender shall have no
responsibility for (A) any depreciation in value of the Collateral or for the
collection or protection of any income and Proceeds from the Collateral, (B)
preservation of rights against parties to the Collateral or against third
persons, (C) ascertaining any maturities, calls, conversions, exchanges, offers,
tenders, or similar matters relating to any of the Collateral, or (D) informing
Grantor about any of the above, whether or not Lender has or is deemed to have
knowledge of such matters. Except as provided above, Lender shall have no
liability for depreciation or deterioration of the Collateral.
DEFAULT. Each of the following shall constitute an Event of Default under this
Agreement;
PAYMENT DEFAULT. Borrower fails to make any payment when due under the
indebtedness.
OTHER DEFAULTS. Borrower or Grantor fails to comply with or to perform
any other term, obligation, covenant or condition contained in this
Agreement or in any of the Related Documents or to comply with or to
perform any term, obligation, covenant or condition contained in any
other agreement between Lender and Borrower or Grantor.
FALSE STATEMENTS. Any warranty, representation or statement made or
furnished to Lender by Borrower or Grantor or on Borrower's or Grantor's
behalf under this Agreement or the Related Documents is false or
misleading in any material respect, either now or at the time made or
furnished or becomes false or misleading at any time thereafter.
DEFECTIVE COLLATERALIZATION. This Agreement or any of the Related
Documents causes to be in full force and effect (including failure of
any collateral document to create a valid and perfected security
interest or lien) at any time and for any reason.
DEATH OR INSOLVENCY. The death of Borrower or Grantor or the dissolution
or termination of Borrower's or Grantor's existence as a going business,
the insolvency of Borrower or Grantor, the appointment of a receiver for
any part of Borrower's or Grantor's property, any assignment for the
benefit of creditors, any type of creditor workout, or the commencement
of any proceedings under any bankruptcy or insolvency laws by or
against Borrower or Grantor.
CREDITOR OR FORFEITURE PROCEEDINGS. Commencement of foreclosure or
forfeiture proceedings, whether by judicial proceeding, self-help,
repossession or any other method, by any creditor of Borrower or Grantor
or by any governmental agency against any collateral securing the
indebtedness. This includes a garnishment of any of Borrower's or
Grantor's accounts, including deposit accounts, with Lender. However,
this Event of Default shall not apply if there is a good faith dispute
by Borrower or Grantor as to the validity or reasonableness of the claim
which is the basis of the creditor or forfeiture proceeding and if
Borrower or Grantor gives Lender written notice of the creditor or
forfeiture proceeding and deposits with Lender monies or a surety bond
for the creditor or forfeiture proceeding, in an amount determined by
Lender, in its sole discretion, as being an adequate reserve or bond for
the dispute.
EVENTS AFFECTING GUARANTOR. Any of the preceding events occurs with
respect to guarantor, endorser, surety, or accommodation party of any of
the indebtedness or guarantor, endorser, surety, or accommodation party
dies or becomes incompetent or revokes or disputes the validity of, or
liability under, any Guaranty of the indebtedness.
ADVERSE CHANGE. A material adverse change occurs in Borrower's or
Grantor's financial condition, or Lender believes the prospect of
payment or performance of the indebtedness is impaired.
INSECURITY. Lender in good faith believes itself insecure.
RIGHTS AND REMEDIES ON DEFAULT. If an Event of Default occurs under this
Agreement, at any time thereafter, Lender may exercise any one or more of the
following rights and remedies:
ACCELERATE INDEBTEDNESS. Declare all indebtedness, including any
prepayment penalty which Borrower would be required to pay,
immediately due and payable, without notice of any kind to Borrower or
Grantor.
COLLECT THE COLLATERAL. Collect any of the Collateral and, at Lender's
option and to the extent permitted by applicable law, retain possession
of the Collateral while suing on the indebtedness.
COMMERCIAL PLEDGE AGREEMENT
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SELL THE COLLATERAL. Sell the Collateral, at Lender's discretion, as a
unit or in parcels, at one or more public or private sales. Unless the
Collateral is perishable or threatens to decline speedily in value or is
of a type customarily sold on a recognized market, Lender shall give or
mail to Grantor, and other persons as required by law, notice at least
ten (10) days in advance of the time and place of any public sale, or of
the time after which any private sale may be made. However, no notice
need be provided to any person who, after an Event of Default occurs,
enters into and authenticates an agreement waiving that person's right
to notification of sale. Grantor agrees that any requirement of
reasonable notice as to Grantor is satisfied if Lender mails notice by
ordinary mail addressed to Grantor at the last address Grantor has given
Lender in writing. If a public sale is held, there shall be sufficient
compliance with all requirements of notice to the public by a single
publication in any newspaper of general circulation in the county where
the Collateral is located, setting forth the time and place of sale and
a brief description of the property to be sold. Lender may be a
purchaser at any public sale.
SELL SECURITIES. Sell any securities included in the Collateral in a
manner consistent with applicable federal and state securities laws. If,
because of restrictions under such laws, Lender is unable, or believes
Lender is unable, to sell the securities in an open market transaction,
Grantor agrees that Lender will have no obligation to delay sale until
the securities can be registered. Then Lender may make a private sale to
one or more persons or to a restricted group of persons, even though
such sale may result in a price that is less favorable than might be
obtained in an open market transaction. Such a sale will be considered
commercially reasonable. If any securities held as Collateral are
"restricted securities" as defined in the Rules of the Securities and
Exchange Commission (such as Regulation D or Rule 144) or the rules of
state securities departments under state "Blue Sky" laws, or if Grantor
or any other owner of the Collateral is an affiliate of the Issuer of
the securities, Grantor agrees that neither Grantor, nor any member of
Grantor's family, nor any other person signing this Agreement will sell
or dispose of any securities of such Issuer without obtaining Lender's
prior written consent.
RIGHTS AND REMEDIES WITH RESPECT TO INVESTMENT PROPERTY, FINANCIAL
ASSETS AND RELATED COLLATERAL. In addition to other rights and remedies
granted under this Agreement and under applicable law, Lender may
exercise any or all of the following rights and remedies: (1) register
with any Issuer or broker or other securities intermediary any of the
Collateral consisting of investment property or financial assets
(collectively herein, "Investment property") In Lender's sole name or in
the name of Lender's broker, agent or nominee; (2) cause any Issuer,
broker or other securities intermediary to deliver to Lender any of the
Collateral consisting of securities, or investment property capable of
being delivered; (3) enter into a control agreement or power of attorney
with any Issuer or securities intermediary with respect to any
Collateral consisting of investment property, on such terms as Lender
may deem appropriate, in its sole discretion, including without
limitation, an agreement granting to Lender any of the rights provided
hereunder without further notice to or consent by Grantor; (4) execute
any such control agreement on Grantor's behalf and in Grantor's name,
and hereby irrevocably appoints Lender as agent and attorney-in-fact,
coupled with an interest, for the purpose of executing such control
agreement of Grantor's behalf; (5) exercise any and all rights of Lender
under any such control agreement or power of attorney; (6) exercise any
voting, conversion, registration, purchase, option, or other rights with
respect to any Collateral; (7) collect, with or without legal action,
and issue receipts concerning any notes, checks, drafts, remittances or
distributions that are paid or payable with respect to any Collateral
consisting of investment property. Any control agreement entered with
respect to any investment property shall contain the following
provisions, at Lender's discretion. Lender shall be authorized to
instruct the Issuer, broker or other securities intermediary to take or
to refrain from taking such actions with respect to the investment
property as Lender may instruct, without further notice to or consent
by Grantor. Such actions may include without limitation the issuance of
entitlement orders, account instructions, general trading or buy or sell
orders, transfers and redemption orders, and stop loss orders. Lender
shall be further entitled to instruct the Issuer, broker or securities
intermediary to sell or to liquidate any investment property, or to pay
the cash surrender or account termination value with respect to any and
all investment property, and to deliver all such payments and
liquidation proceeds to Lender. Any such control agreement shall contain
such authorizations as are necessary to place Lender in "control" of
such investment collateral, as contemplated under the provisions of the
Uniform Commercial Code, and shall fully authorize Lender to issue
"entitlement orders" concerning the transfer, redemption, liquidation or
disposition of investment collateral, in conformance with the provisions
of the Uniform Commercial Code.
FORECLOSURE. Maintain a judicial suit for foreclosure and sale of the
Collateral.
TRANSFER TITLE. Effect transfer of title upon sale of all or part of the
Collateral. For this purpose, Grantor irrevocably appoints Lender as
Grantor's attorney-in-fact to execute endorsements, assignments and
instruments in the name of Grantor and each of them (if more than one)
as shall be necessary or reasonable.
OTHER RIGHTS AND REMEDIES. Have and exercise any or all of the rights
and remedies of a secured creditor under the provisions of the Uniform
Commercial Code, at law, in equity, or otherwise.
APPLICATION OF PROCEEDS. Apply any cash which is part of the Collateral,
or which is received from the collection or sale of the Collateral, to
reimbursement of any expenses, including any costs for registration of
securities, commissions incurred in connection with a sale, attorneys'
fees and court costs, whether or not there is a lawsuit and including
any fees on appeal, incurred by Lender in connection with the collection
and sale of such Collateral and to the payment of the indebtedness of
Borrower to Lender, with any excess funds to be paid to Grantor as the
interests of Grantor may appear. Borrower agrees, to the extent
permitted by law, to pay any deficiency after application of the
proceeds of the Collateral to the indebtedness.
ELECTION OF REMEDIES. Except as may be prohibited by applicable law, all
of Lender's rights and remedies, whether evidenced by this Agreement,
the Related Documents, or by any other writing, shall be cumulative and
may be exercised singularly or concurrently. Election by Lender to
pursue any remedy shall not exclude pursuit of any other remedy, and an
election to make expenditures or to take action to perform an obligation
of Grantor under this Agreement, after Grantor's failure to perform,
shall not affect Lender's right to declare a default and exercise its
remedies.
MISCELLANEOUS PROVISIONS. The following miscellaneous provisions are a part of
this Agreement:
AMENDMENTS. This agreement, together with any Related Documents,
constitutes the entire understanding and agreement of the parties as to
the matters set forth in this Agreement. No alteration of or amendment
to this Agreement shall be effective unless given in writing and signed
by the party or parties sought to be charged or bound by the alteration
or amendment.
ATTORNEY'S FEES; EXPENSES. Grantor agrees to pay upon demand all of
Lender's costs and expenses, including Lender's attorneys' fees and
Lender's legal expenses, incurred in connection with the enforcement of
this Agreement. Lender may hire or pay someone else to help enforce this
Agreement, and Grantor shall pay the costs and expenses of such
enforcement. Costs and expenses include Lender's attorneys' fees and
legal expenses whether or not there is a lawsuit, including attorneys'
fees and legal expenses for bankruptcy proceedings (including efforts to
modify or vacate any automatic stay or injunction), appeals, and any
anticipated post-judgement collection services. Grantor also shall pay
all court costs and such additional fees as may be directed by the
court.
CAPTION HEADINGS. Caption Headings in this Agreement are for convenience
purposes only and are not to be used to interpret or define the
provisions of this Agreement.
GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY, CONSTRUED AND
ENFORCED IN ACCORDANCE WITH FEDERAL LAW AND THE LAWS OF THE STATE OF
OHIO. THIS AGREEMENT HAS BEEN ACCEPTED BY LENDER IN THE STATE OF OHIO.
JOINT AND SEVERAL LIABILITY. All obligations of Borrower and Grantor
under this Agreement shall be joint and several, and all references to
Grantor shall mean each and every Grantor, and all references to
Borrower shall mean each and every Borrower. This means that each
Borrower and Grantor signing below is responsible for all obligations in
this Agreement. Where any one or more of the parties is a corporation,
partnership, limited liability company or similar entity, it is not
necessary for Lender to inquire into the powers of any of the officers,
directors, partners, members, or other agents acting or purporting to
act on the entity's behalf, and any obligations made or created in
reliance upon the professed exercise of such powers shall be guaranteed
under this Agreement.
NO WAIVER BY LENDER. Lender shall not be deemed to have waived any
rights under this Agreement unless such waiver is given in writing and
signed by Lender. No delay or omission on the part of Lender in
exercising any right shall operate as a waiver of such right or any
other right. A waiver by Lender of a provision of this Agreement shall
not prejudice or constitute a waiver of Lender's right otherwise to
demand strict compliance with that provision or any other provision of
this Agreement. No prior waiver by Lender, nor any course of dealing
between Lender and Grantor, shall constitute a waiver of any of Lender's
rights or of any of Grantor's obligations as to any future
transactions. Whenever the consent of Lender is required under this
Agreement, the granting of such consent by Lender in any instance shall
not constitute continuing consent to subsequent instances where such
consent is required and in all cases such consent may be granted or
withheld in the sole discretion of Lender.
NOTICES. Any notice required to be given under this Agreement shall be
given in writing, and shall be effective when actually delivered, when
actually received by telefacsimile (unless otherwise required by law),
when deposited with a nationally recognized overnight courier, or, if
mailed, when deposited in the United States mail, as first class,
certified or registered mail postage prepaid, directed to the addressee
shown near the beginning of this Agreement. Any party may change its
address for notices under this Agreement by giving formal written notice
to the other parties, specifying that the purpose of the notice is to
change the party's address. For notice purposes, Grantor agrees
COMMERCIAL PLEDGE AGREEMENT
LOAN NO: 67 (CONTINUED) PAGE 4
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to keep Lender informed at all times of Grantor's current address.
Unless otherwise provided or required by law, if there is more than one
Grantor, any notices given by Lender to any Grantor is deemed to be
notice given to all Grantors.
SEVERABILITY. If a court of competent jurisdiction finds any provision
of this Agreement to be illegal, invalid, or unenforceable as to any
circumstance, that finding shall not make the offending provision
illegal, invalid, or unenforceable as to any other circumstance. If
feasible the offending provision shall be considered modified so that it
becomes legal, valid or enforceable. If the offending provision cannot
be so modified, it shall be considered deleted from this Agreement.
Unless otherwise required by law, the illegality, invalidity, or
unenforceability of any provision of this Agreement shall not affect the
legality, validity or enforceability of any other provision of this
Agreement.
SUCCESSORS AND ASSIGNS. Subject to any limitations stated in this
Agreement on transfer of Grantor's interest, this Agreement shall be
binding upon and inure to the benefit of the parties, their successors
and assigns. If ownership of the Collateral becomes vested in a person
other than Grantor, Lender, without notice to Grantor, may deal with
Grantor's successors with reference to this Agreement and the
Indebtedness by way of forbearance or extension without releasing
Grantor from the obligations of this Agreement or liability under the
indebtedness.
TIME IS OF THE ESSENCE. Time is of the essence in the performance of
this Agreement.
DEFINITIONS. The following capitalized words and terms shall have the
following meanings when used in this Agreement. Unless specifically stated to
the contrary, all references to dollar amounts shall mean amounts in lawful
money of the United States of America. Words and terms used in the singular
shall include the plural, and the plural shall include the singular, as the
context may require. Words and terms not otherwise defined in this Agreement
shall have the meanings attributed to such terms in the Uniform Commercial Code:
AGREEMENT. The word "Agreement" means the Commercial Pledge Agreement,
as this Commercial Pledge Agreement may be amended or modified from time
to time, together with all exhibits and schedules attached to this
Commercial Pledge Agreement from time to time.
BORROWER. The word "Borrower" means ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, and all other
persons and entities signing the Note in whatever capacity.
COLLATERAL. The word "Collateral" means all of Grantor's right, title
and interest in and to all the Collateral as described in the Collateral
Description section of this Agreement.
DEFAULT. The word "Default" means the Default set forth in this
Agreement in the section titled "Default".
EVENT OF DEFAULT. The words "Event of Default" mean any of the events of
default set forth in this Agreement in the default section of this
Agreement.
GRANTOR. The word "Grantor" means Turkey Vulture Fund XIII, Ltd..
GUARANTY. The word "Guaranty" means the guaranty from guarantor,
endorser, surety, or accommodation party to Lender, including without
limitation a guaranty of all or part of the Note.
INCOME AND PROCEEDS. The words "Income and Proceeds" mean all present
and future income, proceeds, earnings, increases, and substitutions from
or for the Collateral of every kind and nature, including without
limitation all payments, interest, profits, distributions, benefits,
rights, options, warrants, dividends, stock dividends, stock splits,
stock rights, regulatory dividends, subscriptions, monies, claims for
money due and to become due, proceeds of any insurance on the
Collateral, shares of stock of different par value or no par value
issued in substitution or exchange for shares included in the
Collateral, and all other property Grantor is entitled to receive on
account of such Collateral, including accounts, documents, instruments,
chattel paper, and general intangibles.
INDEBTEDNESS. The word "Indebtedness" means the Indebtedness evidenced
by the Note or Related Documents, including all principal and interest
together with all other indebtedness and costs and expenses for which
Borrower is responsible under this Agreement or under any of the Related
Documents.
LENDER. The word "Lender" means THE HUNTINGTON NATIONAL BANK, its
successors and assigns.
NOTE. The word "Note" means the Note executed by ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ in
the principal amount of $2,000,000.00 dated 1-30-03, together with all
renewals of, extensions of, modifications of, refinancings of,
consolidations of, and substitutions for the note or credit agreement.
OBLIGOR. The word "Obligor" means without limitation any and all persons
obligated to pay money or to perform some other act under the
Collateral.
PROPERTY. The word "Property" means all of Grantor's right, title and
interest in and to all the Property as described in the "Collateral
Description" section of this Agreement.
RELATED DOCUMENTS. The words "Related Documents" mean all promissory
notes, credit agreements, loan agreements, environmental agreements,
guaranties, security agreements, mortgages, deeds of trust, security
deeds, collateral mortgages, and all other instruments, agreements and
documents, whether now or hereafter existing, executed in connection
with the indebtedness.
BORROWER AND GRANTOR HAVE READ AND UNDERSTOOD ALL THE PROVISIONS OF THIS
COMMERCIAL PLEDGE AGREEMENT AND AGREE TO ITS TERMS. THIS AGREEMENT IS DATED
1-30-03.
GRANTOR:
TURKEY VULTURE FUND XIII, LTD.
BY: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
TRUSTEE OF TURKEY VULTURE FUND XIII, LTD.
BORROWER:
X /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, INDIVIDUALLY