<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(RULE 13d-101)
INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT
TO RULE 13D-1(a) AND AMENDMENTS THERETO FILED PURSUANT TO
RULE 13d-2(a)
(AMENDMENT NO. 1)*
GLB Bancorp, Inc.
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(Name of Issuer)
Common Stock
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(Title of Class of Securities)
361778 10 3
--------------------------------------------------------------------------------
(CUSIP Number)
Marc C. Krantz, Kohrman Jackson & Krantz P.L.L., 1375 East 9th Street,
Cleveland, Ohio 44114, 216-736-7204
--------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
August 1, 2000
--------------------------------------------------------------------------------
(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(e), 13d- 1(f) or 13d-1(g), check the
following box. [ ]
Note: Schedules filed in paper format shall include a signed original
and five copies of the schedule, including all exhibits. See Rule 13d-7 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 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).
Page 1 of 9 Pages
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SCHEDULE 13D
CUSIP NO. 361778 10 3 PAGE 2 OF 9 PAGES
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
RICHARD M. OSBORNE TRUST
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ X ]
(b) [___]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS*
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [___]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
OHIO
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NUMBER OF 7 SOLE VOTING POWER
SHARES 329,996
---------------------------------------
BENEFICIALLY
8 SHARED VOTING POWER
OWNED BY
---------------------------------------
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 329,996
---------------------------------------
PERSON
10 SHARED DISPOSITIVE POWER
WITH
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
329,996
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [___]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
15.5%
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14 TYPE OF REPORTING PERSON*
OO
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SCHEDULE 13D
CUSIP NO. 361778 10 3 PAGE 3 OF 9 PAGES
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TURKEY VULTURE FUND XIII, LTD.
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ X ]
(b) [___]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [___]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
OHIO
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NUMBER OF 7 SOLE VOTING POWER
SHARES 24,800
---------------------------------------
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY ---------------------------------------
9 SOLE DISPOSITIVE POWER
EACH
24,800
REPORTING ---------------------------------------
PERSON 10 SHARED DISPOSITIVE POWER
WITH
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
24,800
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [___]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.2%
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14 TYPE OF REPORTING PERSON*
OO
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<PAGE> 4
SCHEDULE 13D
CUSIP NO. 361778 10 3 PAGE 4 OF 9 PAGES
1 NAME OF REPORTING PERSON
S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
RICHARD M. OSBORNE
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ X ]
(b) [___]
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [___]
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
UNITED STATES OF AMERICA
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NUMBER OF 7 SOLE VOTING POWER
SHARES 80(1)
---------------------------------------
BENEFICIALLY
8 SHARED VOTING POWER
OWNED BY
---------------------------------------
EACH
9 SOLE DISPOSITIVE POWER
REPORTING
80(1)
PERSON ----------------------------------------
WITH 10 SHARED DISPOSITIVE POWER
--------------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
80(1)
--------------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES* [___]
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
LESS THAN 1%
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14 TYPE OF REPORTING PERSON*
IN
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(1) Vested options to purchase 80 shares of common stock at an exercise price of
$13.00 per share.
<PAGE> 5
CUSIP NO. 361778 10 3
This Amendment No. 1 to Schedule 13D Statement ("Amendment No. 1") is
filed on behalf of the Richard M. Osborne Trust, an Ohio trust, Turkey Vulture
Fund XIII, Ltd., an Ohio limited liability company and Richard M. Osborne, an
individual, for the purpose of reporting acquisitions of shares of common stock,
without par value (the "Shares"), of GLB Bancorp, Inc. an Ohio corporation ("GLB
Bancorp").
Item 2. Identity and Background.
-----------------------
Item 2 of Schedule 13D is hereby amended and supplemented as follows:
(a) The persons filing this Amendment No. 1 are (i) the Richard M.
Osborne Trust, an Ohio Trust (the "Trust"), (ii) Turkey Vulture Fund XIII, Ltd.,
an Ohio limited liability company (the "Fund"), and (iii) Richard M. Osborne, an
individual. Richard M. Osborne is the sole trustee of the Trust and the sole
manager of the Fund.
(b) The address of the Trust and the Fund, and the business address of
Mr. Osborne, is 8500 Station Street, Suite 113, Mentor, Ohio 44060.
(c) The Trust was established by Mr. Osborne for estate planning
purposes, and the principal business of the Fund is to acquire, hold, sell or
otherwise invest in all types of securities and other instruments. Mr. Osborne's
principal occupation is President of OsAir, Inc., a property developer and
manufacturer of industrial gases for pipeline delivery. OsAir, Inc. is located
at 8500 Station Street, Suite 113, Mentor, Ohio 44060. Mr. Osborne is also Vice
Chairman and a director of GLB Bancorp.
(d) Negative with respect to the Trust, the Fund and Mr. Osborne.
(e) Negative with respect to the Trust, the Fund and Mr. Osborne.
(f) The Trust is a trust organized under the laws of the State of Ohio,
and the Fund is a limited liability company organized under the laws of the
State of Ohio. Mr. Osborne is a citizen of the United States of America.
Item 3. Source and Amount of Funds or Other Consideration.
-------------------------------------------------
Item 3 of Schedule 13D is hereby amended and supplemented as follows:
The Shares reported herein as having been acquired by the Fund were
acquired with working capital of the Fund for the aggregate purchase price of
approximately $209,400 (excluding commissions).
5 of 9 Pages
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CUSIP NO. 361778 10 3
Item 4. Purpose of Transaction.
----------------------
Item 4 of Schedule 13D is hereby amended and supplemented as follows:
The Fund acquired the Shares for the purpose of investment. The Fund
and Mr. Osborne reserve the right to dispose of or acquire additional Shares
from time to time. Other than set forth in this Item 4, neither the Fund nor Mr.
Osborne currently has any plans or proposals concerning corporate affairs or
transactions of GLB Bancorp of the type listed in items (a) through (j) of Item
4 of Schedule 13D (except as such transactions and affairs may be considered by
Mr. Osborne in his capacity as Vice Chairman and a director of GLB Bancorp).
Item 5. Interest in Securities of the Issuer
------------------------------------
Item 5 of Schedule 13D is hereby amended and supplemented as follows:
(a) According to the most recently available filing with the Securities
and Exchange Commission by GLB Bancorp, there are 2,133,906 Shares outstanding.
The Trust beneficially owns 329,996 Shares, or 15.5% of the outstanding
Shares. The Fund beneficially owns 24,800 Shares, or approximately 1.2% of the
outstanding Shares. Mr. Osborne beneficially owns 80 Shares, or less than 1% of
the outstanding Shares, which Shares Mr. Osborne has the right to acquire by
exercise of vested options granted under GLB Bancorp's 1998 Stock Option and
Incentive Plan (a copy of which is included as Exhibit 10.A to GLB Bancorp's
Form SB- 2 Registration Statement). As sole trustee of the Trust and sole
manager of the Fund, Mr. Osborne may be deemed to beneficially own all 354,876
Shares, or approximately 16.6% of the outstanding Shares.
(b) Mr. Osborne, as sole trustee of the Trust and sole manager of the
Fund, has the 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 Trust and
the Fund.
(c) Since the filing of the Schedule 13D Statement on May 22, 1998, the
Trust has not acquired any Shares.
During the past 60 days, the Fund purchased 9,800 Shares in open
market transactions as set forth below:
6 of 9 Pages
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CUSIP NO. 361778 10 3
Approximate Per
Share Price
Date Number of Shares (Excluding Commissions)
----- ---------------- -----------------------
7/24/00 1,000 $8.13
7/25/00 1,000 $8.50
7/25/00 1,000 $8.75
7/27/00 1,200 $9.00
7/31/00 1,000 $9.00
7/31/00 1,000 $9.00
8/1/00 2,600 $9.00
8/1/00 1,000 $9.00
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
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to Securities of the Issuer.
------------------------
Item 6 of Schedule 13D is hereby amended and supplemented as follows:
175,950 Shares owned by the Trust are pledged as security
for a $2.0 million Promissory Note, payable on demand, executed by Mr. Osborne
in favor of Huntington National Bank ("Huntington"). The Promissory Note,
attached hereto as Exhibit 7.1, bears interest at the prime rate announced by
Huntington from time to time. The pledge of the 175,950 Shares is evidenced by a
Commercial Pledge and Security Agreement, attached hereto as Exhibit 7.2.
Item 7. Material to be Filed as Exhibits.
--------------------------------
Item 7 of Schedule 13D is hereby amended and supplemented as follows:
Exhibit 7.1 Promissory Note, dated October 6, 1998, executed by
Richard M. Osborne in favor of Huntington National
Bank
Exhibit 7.2 Commercial Pledge and Security Agreement among Richard
M. Osborne, Richard M. Osborne Trust and Huntington
National Bank
Exhibit 7.3 Joint Filing Agreement
7 of 9 Pages
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CUSIP NO. 361778 10 3
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: August 23, 2000 TURKEY VULTURE FUND XIII, LTD.
By: /s/ Richard M. Osborne
------------------------------
Richard M. Osborne, Manager
RICHARD M. OSBORNE TRUST
By: /s/ Richard M. Osborne
------------------------------
Richard M. Osborne, Trustee
/s/ Richard M. Osborne
---------------------------------
Richard M. Osborne, Individually
8 of 9 Pages
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CUSIP NO. 361778 10 3
Exhibit Index
Exhibit 7.1 Promissory Note, dated October 6, 1998, executed by
Richard M. Osborne in favor of Huntington National
Bank
Exhibit 7.2 Commercial Pledge and Security Agreement among Richard
M. Osborne, Richard M. Osborne Trust and Huntington
National Bank
Exhibit 7.3 Joint Filing Agreement
9 of 9 Pages
<PAGE> 10
Exhibit 7.1
PROMISSORY NOTE
Borrower: Richard M. Osborne Lender: The Huntington National Bank
7001 Center Street 917 Euclid Avenue
Mentor, OH 44081-1020 Cleveland, OH 44115
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Principal Amount: $2,000,000.00 Initial Rate: 8.250% Date of Note: 10-6-98
-------
PROMISE TO PAY. RICHARD M. OSBORNE ("Borrower") promised to pay to THE
HUNTINGTON NATIONAL BANK ("Lender"), or order, in lawful money of the Unites
States of America, on demand, the principal amount of Two Million & 00/100
Dollars ($2,000,000.00) or so much as may be outstanding, together with interest
on the unpaid outstanding principal balance of each advance. Interest shall be
calculated from the date of each advance until repayment of each advance.
PAYMENT. Borrower will pay this loan immediately upon Lender's demand. In
addition, Borrower will pay regular monthly payments of all accrued unpaid
interest due as of each payment date, beginning October 30, 1998, with all
subsequent interest payments to be due on the same day of each month after that.
The annual interest rate for this Note is computed on a 355/360 basis; that is,
by applying the ratio of the annual interest rate over a year of 360 days,
multiplied by the outstanding principal balance, multiplied by the actual number
of days the principal balance is outstanding. Borrower will pay Lender at
Lender's address shown above or at such other place as Lender may designate in
writing. Unless otherwise agreed or required by applicable law, payments will be
applied first to accrued unpaid interest, then to principal, and any remaining
amount to any unpaid collection costs and late charges.
VARIABLE INTEREST RATE. The interest rate on this Note is subject to change from
time to time based on changes in an index which is the Huntington National Bank
Prime Commercial Rate (the "Index"). As used herein, Prime Commercial Rate shall
meet the rate established by the Bank from time to time based on its
consideration of economic, money market, business and competitive factors, and
it is not necessarily the Bank's most favored rate. Subject to any maximum or
minimum interest rate limitation specified herein or by applicable law, any
variable rate of interest on the obligation evidenced hereby shall change
automatically without notice to the undersigned immediately with each change in
the Prime Commercial Rate. Lender will tell Borrower the current Index rate upon
Borrower's request. Borrower understands that Lender may make loans based on
other rates as well. The interest rate change will not occur more often than
each day. The Index currently is 8.250% per annum. The interest rate to be
applied to the unpaid principal balance of this Note will be at a rate equal to
the Index, resulting in an initial rate of 8.250% per annum. NOTICE: Under no
circumstances will the interest rate on this Note be more than the maximum rate
allowed by applicable law.
<PAGE> 11
PREPAYMENT. Borrower agrees that all loan fees and other prepaid finance charges
are earned fully as of the date of the loan and will not be subject to refund
upon early payment whether voluntary or as a result of default, except as
otherwise required by law. Except for the foregoing, Borrower may pay without
penalty all or a portion of the amount owed earlier than due. Early payments
will not, unless agreed to by Lender in writing, relieve Borrower of Borrower's
obligation to continue to make payments of accrued unpaid interest. Rather, they
will reduce the principal balance due.
LATE CHARGE. If a regular scheduled interest payment is 11 days or more late,
Borrower will be charged 6.000% of the regular scheduled payment. If Lender
demands payment of this loan, and Borrower does not pay the loan within 11 days
after Lender's demand, Borrower also will be charged 5.000% of the sum of the
unpaid principal plus accrued unpaid interest.
DEFAULT. Borrower will be in default if any of the following happens: (1)
Borrower fails to make any payment when due, (b) Borrower breaks any promise
Borrower has made to Lender, or Borrower fails to comply with or to perform when
due, any other term, obligation, covenant, or condition contained in this Note
or any agreement related to this Note, or in any other agreement or loan
Borrower has with Lender, (c) Borrower defaults under any loan, extension of
credit, security agreement, purchase or sales agreement, or any other agreement,
in favor of any other creditor or person that may materially affect any of
Borrower's property at Borrower's ability to repay this Note or perform
Borrower's obligation under this Note or any of the Related Documents, (d) Any
representation or statement made or furnished to Lender by Borrower or on
Borrower's behalf is false or misleading in any material respect either now or
at the time made or furnished, (e) Borrower dies or becomes insolvent, a
receiver is appointed for any part of Borrower's property, Borrower makes an
assignment for the benefit of creditors, or any proceeding is commenced by
Borrower or against Borrower under any bankruptcy or insolvency laws, (f) Any
creditor tried to take any of Borrower's property on or in which Lender has a
lien or security interest. This includes a garnishment of any of Borrower's
accounts with Lender, (g) Any of the events described in this default section
occurs with respect to any guarantor of this Note, (h) A material adverse change
occurs in Borrower's financial condition, or Lender believes the prospect of
payment or performance of the indebtedness is impaired, (i) Lender in good faith
deems itself insecure.
LENDER'S RIGHTS. Upon default, Lender may declare the entire unpaid principal
balance on the Note and all accrued unpaid interest immediately due, without
notice, and then Borrower will pay that amount. Upon default, including failure
to pay upon final maturity, Lender, at its option, may also, if permitted under
applicable law, increase the variable interest rate on this Note to 3.000
percentage points over the Index. The interest rate will not exceed the maximum
rate permitted by applicable law. Lender may hire or pay someone else to help
collect this Note if Borrower does not pay. Borrower also will pay Lender that
amount. This includes, subject to any limits under applicable law, Lender's
attorney's fees and Lender's 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 injunctions, appeals
and any anticipated post-judgement collection services. If not prohibited by
applicable law, Borrower also will pay any court costs, in addition to all other
sums provided by law. This Note has been delivered to Lender and accepted by
Lender in the State of Ohio. If there is a lawsuit, Borrower agrees upon
Lender's request to submit to the jurisdiction of the courts of CUYAHOGA County,
the State of Ohio. Lender and
2
<PAGE> 12
Borrower hereby waive the right to any jury trial in any action, proceeding, or
counterclaim brought by either Lender or Borrower against the other. This Note
shall be governed by and construed in accordance with the laws of the State of
Ohio.
CONFESSION OF JUDGMENT. Borrower hereby irrevocably authorizes and empowers any
attorney- at-law, including an attorney hired by Lender, to appear in any court
of record and to confess judgment against Borrower for the unpaid amount of this
Note as evidenced by an affidavit signed by an officer of Lender setting forth
the amount then due, plus attorneys' fees as provided in this Note, plus costs
of suit and to release all errors and waive all rights of appeal. If a copy of
this Note, verified by an affidavit, shall have been filed in the proceeding, it
will not be necessary to file the original as a warrant of attorney. Borrower
waives the right to any stay of execution and the benefit of all exemption laws
now or hereafter in effect. No single exercise of the foregoing warrant and
power to confess judgment will be deemed to exhaust the power, whether or not
any such exercise shall be held by any court to be invalid, voidable, or void;
but the power will continue undiminished and may be exercised from time to time
as Lender may elect until all amounts owing on this Note have been paid in full.
Borrower waives any conflict of interest that an attorney hired by Lender may
have in acting on behalf of Borrower in confessing judgment against Borrower
while such attorney is retained by Lender. Borrower expressly consents to such
attorney acting for Borrower in confessing judgment.
DISHONORED ITEM FEE. Borrower will pay a fee to Lender of $18.00 if Borrower
makes a payment on Borrower's loan and this check or preauthorized charge with
which Borrower pays is later dishonored.
RIGHT OF SETOFF. Borrower grants to Lender a contractual possessory security
interest in, and hereby assigns, conveys, adheres, pledges and transfers to
Lender all Borrower's right, title and interest in and to, Borrower's accounts
with Lender (whether checking, savings, or some other account), including
without limitation all accounts held jointly with someone else and all accounts
Borrower may open in the future, excluding however all IRA and Keough accounts,
and all trust accounts for which the grant of a security interest would be
prohibited by law, Borrower authorizes Lender, to the extent permitted by
applicable law, to charge or set off all sums owing on this Note against any and
all such accounts.
LINE OF CREDIT. This Note evidences a revolving line of credit. Advances under
this Note, as well as directions for payment from Borrower's accounts, may be
requested orally or in writing by Borrower or by an authorized person. Lender
may but need not, require that all oral requests be confirmed in writing.
Borrower agrees to be liable for all sums either: (a) advanced in accordance
with the instructions of an authorized person or (b) credited to any of
Borrower's accounts with Lender. The unpaid principal balance owing on this Note
at any time may be evidenced by endorsement on this Note or by Lender's internal
records, including daily computer print-outs. Lender will have no obligation to
advance funds under this Note if: (a) Borrower or any guarantor is in default
under the terms of this Note or any agreement that Borrower or any guarantor has
with Lender, including any agreement made in connection with the signing of this
Note; (b) Borrower or any guarantor ceases doing business or is insolvent; (c)
any guarantor seeks, claims or otherwise attempts to limit, modify or revoke
such guarantor's guarantee of this Note or any other loan with Lender; (d)
Borrower has applied funds provided pursuant to this Note for
3
<PAGE> 13
purposes other than those authorized by Lender; or (e) Lender in good faith
deems itself insecure under this Note or any other agreement between Lender and
Borrower.
FINANCIAL STATEMENTS. Borrower agrees to furnish from time to time on the
request of the Lender true and complete financial statements and such other
information as the Lender may reasonably require.
YEAR 2000 WARRANTY. Borrower warrants and represents to and covenants with
Lender that on or after the date of this Note, as long as any of the
Indebtedness provided for herein remains unpaid:
(1) Borrower, on behalf of Borrower and any material subsidiaries of
Borrower (hereinafter referred to as the "Organization"), has; (a) undertaken a
detailed inventory, review, and assessment of all areas within and affecting the
Organization's business and operations that could be adversely affected by the
failure of the Organization to be Year 2000 Compliant (as hereinafter defined)
on a timely basis; (b) developed a plan and time line for becoming Year 2000
Compliant on a timely basis; and (c) to date, implemented that plan in
accordance with the specified timetable in all material respects; and
(2) The Organization reasonable anticipated that the Organization will
be Year 2000 Compliant on a timely basis,
(3) Borrower shall deliver to Lender; (a) immediately upon becoming
aware of the existence of any condition or event which constitutes or will
constitute, but for the passage of time or giving of notice of both, an event of
default, a written notices specifying the nature and period of existence thereof
and what action the Organization is taking or proposes to take with respect
thereto; and (b)at the request of Lender, such information, documentation and
materials as Lender may from time to time reasonably require including, but not
limited to, (i) the Organization's Year 2000 plan and time line, (ii) any
management or other letters from the Organization's, accountants addressing or
mentioning the Organization's Year 2000 Compliance or (iii) such other
information, documentation and materials as Lender may reasonably request from
time to time in order to confirm that the Organization is Year 2000 Compliant
and the method(s) used by the Organization to become Year 2000 Compliant.
As used herein, "Year 2000 Compliant" shall mean that all software,
embedded and other processing capabilities utilized by the Organization or the
Organization's key suppliers, vendors and customers will correctly process,
sequence and calculate, without interruption, all date and date related data for
all dates to, through and after, January 1, 2000, including leap year
calculations, and shall recognize, store and transmit date data in a format
which clearly indicates the correct century.
GENERAL PROVISIONS. This Note is payable on demand. The Inclusion of specific
default provisions or rights of Lender shall not preclude Lender's right to
declare payment of this Note on its demand. If any part of this Note cannot be
enforced, this fact will not affect the rest of the Note. In particular, this
section means (among other things) that Borrower does not agree or intend to
pay, and Lendor does not agree or intend to contract for, charge, collect, take,
reserve or receive (collectively referred to herein as "charge or collect"), any
amount in the nature of interest or in the nature of a fee for this loan, which
would in any way or event (including demand, prepayment, or acceleration) cause
Lender to charge or
4
<PAGE> 14
collect more for this loan then the maximum Lender would be permitted to charge
or collect by federal law or the law of the State of Ohio (as applicable). Any
such excess interest or unauthorized fee shall, instead of anything stated to
the contrary, be applied first to reduce the principal balance of the loan, and
when the principal has been paid in full, be refunded to Borrower. Lender may
delay or forgo enforcing any of its rights or remedies under this Note without
losing them. Borrower and any other person who signs, guarantees or endorses
this Note, to the extent allowed by law, waive presentment, demand for payment,
protest and notice of dishonor. Upon any changes in the terms of this Note, and
unless otherwise expressly stated in writing, no party who signs this Note,
whether as maker, guarantor, accommodation maker, or endorser, shall be released
from liability. All such parties agree that Lender may renew or extend
(repeatedly and for any length of time) this loan, or release any party or
guarantor or collateral; or impair, fail to realize upon or perfect Lender's
security interest in the collateral; and take any other action deemed necessary
by Lender without the consent of or notice to anyone. All such parties also
agree that Lender may modify this loan without the consent of or notice to
anyone other than the party with whom the modification is made.
PRIOR TO SIGNING THIS NOTE, BORROWER READ AND UNDERSTOOD ALL THE
PROVISIONS OF THIS NOTE, INCLUDING THE VARIABLE INTEREST RATE PROVISIONS.
BORROWER AGREES TO THE TERMS OF THE NOTE AND ACKNOWLEDGES RECEIPT OF A
COMPLETED COPY OF THE NOTE.
NOTICE: FOR THIS NOTICE "YOU" MEANS THE BORROWER AND "HIS" MEANS
LENDER.
WARNING - BY SIGNING THIS PAPER YOU GIVE UP YOUR RIGHT TO NOTICE AND COURT TRIAL
IF YOU DO NOT PAY ON TIME, A COURT JUDGMENT MAY BE TAKEN AGAINST YOU WITHOUT
YOUR PRIOR KNOWLEDGE AND THE POWERS OF A COURT CAN BE USED TO COLLECT FROM YOU
REGARDLESS OF ANY CLAIMS YOU MAY HAVE AGAINST THE CREDITOR WHETHER FOR RETURNED
GOODS, FAULTY GOODS, FAILURE ON HIS PART TO COMPLY WITH THE AGREEMENT, OR ANY
OTHER CAUSE.
Borrower:
X /s/ Richard M. Osborne
----------------------------
RICHARD M. OSBORNE
5
<PAGE> 15
Exhibit 7.2
COMMERCIAL PLEDGE AND SECURITY AGREEMENT
THIS COMMERCIAL PLEDGE AND SECURITY AGREEMENT is entered into among RICHARD M.
OSBORNE (referred to below as "Borrower"); and RICHARD M. OSBORNE TRUST U/A
DATED JANUARY 13, 1995 (referred to below as "Grantor"); and THE HUNTINGTON
NATIONAL BANK (referred to below as "Lender").
GRANT OF SECURITY INTEREST. For valuable consideration, Grantor grants to Lender
a security interest in the Collateral to secure the indebtedness and agree 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 by law.
DEFINITIONS. The following words shall have the following meanings when used in
this Agreement;
AGREEMENT. The word "Agreement" means this Commercial Pledge and
Security Agreement, as this Commercial Pledge and Security Agreement
may be amended or modified form time to time, together with all
exhibits and schedules attached to this Commercial Pledge and Security
Agreement from time to time.
BORROWER. The word "Borrower" means each and every person or entity
signing the Note, including without limitation RICHARD M. OSBORNE.
COLLATERAL. The word "Collateral" means the following specifically
describes property, which Grantor has delivered or agrees to deliver
(or cause to be delivered or appropriate book entries made),
immediately to Lender, together with all Income and Proceeds as
described below;
88,075 shares of GLB BANCORP, INC. CERT# C0008 CUSIP# 361778103
87,875 shares of GLB BANCORP, INC. CERT# C0234 CUSIP# 361778103
In addition, the word "Collateral" includes all property of Grantor, 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
limitiation each of the following:
(a) All property to which Lender requires title or documents
of title,
(b) All property assigned to Lender,
(c) All promissory notes, bills of exchange, stock
certificates, bonds, savings passbooks, time certificates of
deposits, 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 mediafile.
<PAGE> 16
EVENT OF DEFAULT. The words "Event of Default" mean and include without
limitation any of the Events of Default set forth below in the section titled
"Events of Default".
GRANTOR. The word "Grantor" means RICHARD M. OSBORNE TRUST U/A DATED
JANUARY 13, 1995. Any Grantor who signs this Agreement, but does not sign the
Note, is signing this Agreement only to grant a security interest in Grantor's
interest in the Collateral to Lender and is not personally liable under the Note
except as otherwise provided by contract or law (e.g., personal liability under
a guaranty or as a surety).
GUARANTOR. The word "Guarantor" means and includes without verification
each and all of the guarantors, sureties, and accommodation parties in
connection with the Indebtedness.
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,
distributions, 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, including all principal and interest, together with all other
indebtedness and costs and expenses for which Borrower or Grantor is responsible
under this Agreement or under any of the related Documents. In addition, the
word "Indebtedness" includes all other obligations, debts and liabilities, plus
interest thereon, of Borrower, or any one or more of them, to Lender, as well as
all claims by Lender against Borrower, or any one or more of them, whether
existing now or later, whether they are voluntary or involuntary, due or not
due, direct or indirect, absolute or contingent, liquidated or unliquated;
whether Borrower may be liable individually or jointly with others; whether
Borrower may be obligated as guarantor, surety, accommodation party or
otherwise; whether recovery upon such indebtedness may be or hereafter may
become barred by any statute of limitations; and whether such indebtedness may
be or hereafter may become otherwise unenforceable.
LENDER. The word "Lender" means THE HUNTINGTON NATIONAL BANK, its
successors and assigns.
NOTE. The word "Note" means the note or credit agreement dated 10/6/98,
in the principal amount at $2,000,000.00 from Borrower to Lender, 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 and includes without limitation any
and all persons or entities obligated to pay money or to perform some other act
under the Collateral.
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<PAGE> 17
RELATED DOCUMENTS. The words "Related Documents" mean and include
without limitation all promissory notes, credit agreements, loan agreements,
environmental agreements, guaranties, security agreements, mortgages, deeds of
trust and all other instruments, agreements and documents, whether now or
hereafter existing, executed in connection with the Indebtedness.
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 not at the request of the
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 Grantor, Borrower, 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.
If now or hereafter (a) Borrower shall be or become insolvent, and (b) the
Indebtedness shall now and at all times until paid be fully secured by
Collateral pledged by Borrower, Grantor hereby forever waives and relinquishes
in favor of Lender and Borrower, and their respective successors, any claim or
right to payment Grantor may now have or hereafter have or acquire against
Borrower, by subrogation or otherwise, so that at no time shall Grantor be or
become a "creditor" of Borrower within the meaning of 11 U.S.C. section 547(b),
or any successor provision of the Federal bankruptcy laws.
RIGHT OF SETOFF. Grantor hereby grants Lender a contractual possessory security
interest in and hereby assigns, conveys, delivers, pledges, and transfers all of
Grantor's right, title and interests in and to Grantor's accounts with Lender
(whether checking, savings, or some other account), including all accounts held
jointly with someone else and all accounts Grantor may open in the future,
excluding, however, all IRA and Keough accounts, and all trust accounts for
which the grant of a security interest would be prohibited by law. Grantor
authorizes Lender to the extent permitted by applicable law, to charge or setoff
all Indebtedness against any and all such accounts.
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<PAGE> 18
GRANTOR'S 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
execution of this Agreement.
Right to Pledge. Grantor has the full right, power and authority to
enter this Agreement and to pledge the Collateral.
Binding Effect. This Agreement is binding upon Grantor, as well as
Grantor's heirs, successors, representatives and assigns, and is
legally enforceable in accordance with its terms.
No Further Assignment. Grantor has not, and will 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
promptly perform each of the terms, conditions, covenants and
agreements contained in the Collateral which are to be performed by
Grantor, if any.
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 articles or agreements relating to entity incorporation,
organization or existence do not prohibit any term or condition of this
Agreement.
LENDER'S RIGHTS AND OBLIGATIONS WITH RESPECT TO COLLATERAL. Lender may hold
the Collateral until all Indebtedness has been paid and satisfied and thereafter
may deliver the Collateral to any Grantor. Lender shall have the following
rights in addition to all other rights it may 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
payment of any liens or claims against the Collateral. Lender may
charge any cost incurred in so doing to Grantor.
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 liquidation, sale, or retirement, of the
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<PAGE> 19
Collateral, to the satisfaction of the Indebtedness or such portion
thereof as Lender shall choose, whether or not matured.
Transactions with Others. Lender may (a) extend time for payment or
other performance, (b) grant a renewal or change in terms or
conditions, or (c) compromise, compound or release any obligation, with
any one or make 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 that Collateral is located at one or more
offices or branches of Lender and whether or not the office or branch
where the Indebtedness is created is aware of or relies upon the
Collateral.
Collection of Collateral. Lender, at Lender's option may, but need not,
collect directly from the Obligors on any of the Collateral or Income
and Proceeds or other sums of money and other property due and to
become due under the Collateral, and Grantor authorizes and directs the
Obligors, if Lender exercises such option, to pay and deliver to Lender
all Income and Proceeds and other sums of money and other property
payable by the terms of 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, sue 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 releases and acquittance for Grantor; (d)
to file any claim or claims or to take any action or institute or take
part in any proceeding, either 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 request of Lender, Grantor will
deliver to Lender any and all of the documents evidencing or
constituting the Collateral. When applicable tax provides more than one
method of perfection of Lender's security interest, Lender may choose
the method(s) to be used. Upon request of Lender, Grantor will sign and
deliver any writing necessary to perfect Lender's security interest. If
the Collateral consists of securities for which no certificate has been
issued, Grantor agrees, at Lender's option, either to request issuance
of an appropriate certificate or to execute appropriate instructions on
Lender's forms instructing the issuer, transfer agent, mutual fund
company, or broker, as the case may be, to record on the books or
records, by book-entry or otherwise, Lender's security interest in the
Collateral. Grantor hereby appoints Lender as Grantor's irrevocable
attorney-in-fact for the purpose of executing any documents necessary
to
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<PAGE> 20
perfect or to continue the security interest granted in this Agreement.
This is a continuing Security Agreement and will continue in effect
even though all of any part of the Indebtedness is paid in full and
even though for a period of time Borrower may not be indebted to
Lender.
EXPENDITURES BY LENDER. If not discharged or paid when due, Lender may (but
shall not be obligated to) discharge or pay any amounts required to be
discharged or paid by Grantor under this Agreement, including without
limitation, all taxes, liens, security interests, encumbrances and other claims,
at any time levied or placed on the Collateral. Lender also may (but shall not
be obligated to) pay all costs for insuring, maintaining and preserving the
Collateral. All such expenditures incurred or paid by Lender for such purpose
will then bear interest at the rate charged under the Note form the date
incurred or paid by Lender to the date of repayment by Grantor. All such
expenses shall 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 (i) the term of any applicable insurance policy or (ii) 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. This Agreement also will secure payment
of these amounts. Such rights shall be in addition to all other rights and
remedies to which Lender may be entitled upon the occurrence of an Event of
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.
EVENTS OF DEFAULT. Each of the following shall continue and Event of Default
under this Agreement:
Default on Indebtedness. Failure of Borrower to make any payment when
due on the Indebtedness.
Other Defaults. Failure of Borrower or Grantor 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 failure of
Borrower to comply with or to perform any term, obligation, covenant or
condition contained in any other agreement between Lender and Borrower.
Default in Favor of Third Parties. Should Borrower or any Grantor
default under any loan, obligation of credit, security agreement,
purchase or sales agreement, or any other agreement, in favor of any
other creditor or person that may materially effect any of Borrower's
property or
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<PAGE> 21
Borrower's or any Grantor's ability to repay the Loans or perform their
respective obligation under this Agreement or any of the Related
Documents.
False Statement. Any warranty, representation or statement made or
furnished to Lender by or on behalf of Borrower or Grantor under this
Agreement, the Note or the Related Documents is false or misleading in
any material of respect, either now or at the time made or furnished.
Defective Collateralization. This Agreement or any of the Related
Documents ceases to be in full force and affect (including failure of
any collateral documents 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 of Grantor's existence as a
going business, the insolvency of Borrower or Grantor, the appointment
of a receiver for any part of Borrower or Grantor's property, any
assignment for the benefits of creditors, any type of creditor workout,
or the commencement of any proceeding 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 processing, self-help,
rescession or any other method, by any creditor of Borrower or Grantor
or by any governmental agency against the Collateral or any other
collateral securing the Indebtedness. This includes a garnishment of
any of Borrower or Grantor's deposit accounts with Lender.
Events Affecting Guarantor. Any of the preceding events occurs with
respect to any Guarantor of any of the Indebtedness or such Guarantor
dies or becomes incompetent.
Adverse Change. A material adverse change occurs in Borrower's
financial condition or Lender believes the prospect of payment or
performance of the Indebtedness is impaired.
Insecurity. Lender, in good faith, deems 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.
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
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<PAGE> 22
or is of a type customarily sold on a recognized market, Lender shall
give or mail to Grantor, or any of them, notice at least ten (10) days
in advance of the time and place of any pubic sale or of the date after
which any private sale may be made. Grantor agrees that any requirement
of reasonable notice is satisfied if Lender mails notice by ordinary
mail addressed to Grantor, or any of them, at the last address Grantor
has given Lender in writing. If a pubic 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.
Register Securities. Register any securities included in the Collateral
in Lender's name and exercise any rights normally incident to the
ownership of securities.
Sell Securities. Sell any securities included in the Collateral in a
manner consistent with applicable federal and state securities laws,
notwithstanding any other provision of this or any other agreement. If,
because of restrictions under such laws, Lender is or believes it is
unable to sell the securities in an open market transaction, Grantor
agrees that Lender shall have no obligation to delay sale until the
securities can be registered, and 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, and such a sale shall 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 14A) or state
securities departments under state "Blue Sky" laws, or if Borrower or
Grantor is an affiliate of the issuer of the securities, Borrower and
Grantor agree that neither Grantor nor any agent of Grantor will sell
or dispose of any securities of such issuer without obtaining Lender's
prior written consent.
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 its 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, attorney fees as provided below, 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
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<PAGE> 23
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.
Cumulative Remedies. All of Lender's rights and remedies, whether
evidenced by this Agreement 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 to 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 changed or bound by the alteration
or amendment.
Applicable Law. This Agreement has been delivered to Lender and
accepted by Lender in the State of Ohio. If there is a lawsuit,
Borrower and Grantor agree upon Lender's request to submit to the
jurisdiction of the courts of CUYAHOGA County, the State of Ohio.
Lender, Borrower and Grantor hereby waive the right to any jury trial
in any action, proceeding, or counterclaim brought by either Lender,
Borrower or Grantor against the other. This Agreement shall be governed
by and construed in accordance with the laws of the State of Ohio.
Attorneys' Fees; Expenses. Borrower and Grantor agree to pay upon
demand all of Lender's costs and expenses, including attorneys' fees
and Lender's legal expenses, incurred in connection with the
enforcement of this Agreement. Lender may pay someone else to help
enforce this Agreement, and Borrower 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
(and including efforts to modify or vacate any automatic stay or
injunction), appeals, and any anticipated post-judgment collection
services. Borrower and Grantor also shall pay all court costs and such
additional fees that 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.
Multiple Parties. All obligations of Borrower and Grantor under this
Agreement shall be joint and several, and all references to Borrower
shall mean each and every Borrower, and all references to Grantor shall
mean each and every Grantor. This means that each of the persons
signing below is responsible for all obligations in this Agreement.
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<PAGE> 24
Notices. All notices required to be given under this agreement shall be
given in writing, may be sent by telefacsimile (unless otherwise
required by law), and shall be effective when actually delivered or
when deposited with a nationally recognized overnight courier or
deposited in the United States mail, first class, postage prepaid,
addressed to the party to whom the notice is to be given at the address
shown above. 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. To the extent permitted by applicable law, if there is more
than one Borrower or Grantor, notice to any Borrower or Grantor will
continue notice to all Borrower and Grantors. For notice purposes,
Borrower and Grantor will keep Lender informed at all times of Borrower
and Grantor's current address(es).
Severability. If a court of competent jurisdiction finds any provision
of this Agreement to be invalid or unenforceable as to any person or
circumstance, such finding shall not render that provision invalid or
unenforceable as to any other persons or circumstances. If feasible,
any such offending provision shall be deemed to be modified to be
within the limits of enforceability or validity, however, if the
offending provision cannot be so modified, it shall be stricken and all
other provisions of this Agreement in all other respects shall remain
valid and enforceable.
Successor Interests. Subject to the limitation set forth above on
transfer of the Collateral, this Agreement shall be binding upon and
inure to the benefit of the parties, their successors and assigns.
Waiver. 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's required under this Agreement, the
granting of such consent by Lender in any instance shall not constitute
continuing consent in subsequent instances where such consent is
required and in all cases such consent may be granted or withheld in
the sole discretion of Lender.
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BORROWER AND GRANTOR ACKNOWLEDGE HAVING READ ALL THE PROVISIONS OF THE PLEDGE
AND SECURITY AGREEMENT, AND BORROWER AND GRANTOR AGREE TO ITS TERMS. THIS
AGREEMENT IS DATED 10/6/98.
BORROWER:
X /s/ Richard M. Osborne
----------------------------
RICHARD M. OSBORNE
GRANTOR:
RICHARD M. OSBORNE TRUST U/A DATED JANUARY 13, 1996
X /s/ Richard M. Osborne
----------------------------
RICHARD M. OSBORNE, TRUSTEE
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EXHIBIT 7.3
AGREEMENT OF JOINT FILING
Pursuant to Rule 13d-1(k) promulgated under the Securities Exchange Act
of 1934, as amended, the undersigned persons hereby agree to file with the
Securities and Exchange Commission, the Statement on Schedule 13D (the
"Statement") to which this Agreement is attached as an exhibit, and agree that
such Statement, as so filed, is filed on behalf of each of them.
This Agreement may be executed in counterparts, each of which when so
executed shall be deemed to be an original, and all of which together shall be
deemed to constitute one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement.
Dated: August 23, 2000
TURKEY VULTURE FUND XIII, LTD.
By: /s/ Richard M. Osborne
-----------------------------
Richard M. Osborne, Manager
RICHARD M. OSBORNE TRUST
By: /s/ Richard M. Osborne
-----------------------------
Richard M. Osborne, Trustee
/s/ Richard M. Osborne
--------------------------------
Richard M. Osborne, Individually
