OPINION {¶ 1} FIFTH THIRD BANK OF WESTERN OHIO ("FIFTH THIRD") APPEALS FROM AN ORDER OF THE MIAMI COUNTY COURT OF COMMON PLEAS, WHICH GRANTED THE MOTION OF SHEPARD GRAIN COMPANY, INC. ("SHEPARD GRAIN"), BYRON M. SHEPARD AND MARK B. SHEPARD FOR RELIEF FROM JUDGMENT, PURSUANT TO CIV.R. 60(B)(5).
{¶ 2} ON SEPTEMBER 30, 1994, FIFTH THIRD AND SHEPARD GRAIN ENTERED INTO A REVOLVING CREDIT AND SECURITY AGREEMENT ("THE 1994 AGREEMENT"), WHEREBY SHEPARD GRAIN WAS ABLE TO BORROW, BY MEANS OF A REVOLVING CREDIT LINE, THE LESSER OF $6,500,000 OR THE VALUE OF ITS "BORROWING BASE," AS CALCULATED BY A FORMULA SET FORTH IN SECTION 2.1 OF THE AGREEMENT. UNDER SECTION 8.2, IF ANY DEFAULT OCCURRED, FIFTH THIRD WAS PERMITTED TO DECLARE ALL OBLIGATIONS TO BE DUE AND PAYABLE IMMEDIATELY. THE 1994 AGREEMENT AND THE CORRESPONDING COGNOVIT NOTE HAD AN ORIGINAL MATURITY DATE OF DECEMBER 31, 1995. HOWEVER, FIFTH THIRD AND SHEPARD GRAIN REPEATEDLY RENEGOTIATED THE EXPIRATION DATE OF THE 1994 AGREEMENT AND THE MATURITY DATE OF ANY ACCOMPANYING COGNOVIT NOTES.
{¶ 3} IN 2002, SHEPARD GRAIN EXPERIENCED FINANCIAL DIFFICULTIES, MAINLY DUE TO THE INCREASING FAILURE OF ITS HOG OPERATIONS. IN AUGUST 2002 (PRIOR TO THE NOVEMBER 1, 2002, EXPIRATION DATE OF THE 1994 AGREEMENT, AS AMENDED), SHEPARD GRAIN AND FIFTH THIRD HELD DISCUSSIONS ABOUT EXTENDING THE LOAN ON BOTH SHEPARD GRAIN'S GRAIN AND HOG OPERATIONS, WITH THE HOG OPERATIONS CEASING IN APRIL 2003. IN LATE 2002, THE PARTIES ENTERED INTO TWO AMENDED AGREEMENTS.1 THE FIRST, WHICH WAS DATED AS OF NOVEMBER 1, 2002 ("THE NOVEMBER 2002 AGREEMENT"), AMENDED SECTION 2.1(A) OF THE 1994 AGREEMENT AND PERMITTED SHEPARD GRAIN TO BORROW (1) $840,000, BY MEANS OF A TERM NOTE, FOR LIVESTOCK OPERATIONS, AND (2) THE LESSER OF $4,500,000 OR THE VALUE OF THE BORROWING BASE FOR GRAIN OPERATIONS. THIS AGREEMENT ADDED THAT SHEPARD GRAIN WOULD PROVIDE, AS ADDITIONAL COLLATERAL, 5,022 SHARES OF FIFTH THIRD BANKCORP COMMON STOCK OWNED BY BYRON SHEPARD AND PLEDGED TO FIFTH THIRD UNDER A SEPARATE PLEDGE AND THIRD PARTY COLLATERAL AGREEMENT. IN ADDITION, THE NOVEMBER 2002 AGREEMENT WAIVED SHEPARD GRAIN'S DEFAULTS OF SECTIONS 6.11, 6.12, AND 6.13 FOR THE PERIOD ENDING MAY 31, 2002; MODIFIED THE REQUIREMENTS REGARDING THE MINIMUM TANGIBLE NET WORTH AND RATIO OF CURRENT ASSETS TO CURRENT LIABILITIES IN THOSE SECTIONS; AND EXTENDED THE AGREEMENT UNTIL APRIL 1, 2003.
{¶ 4} THE SECOND AGREEMENT, DATED AS OF DECEMBER 18, 2002 AND EFFECTIVE AS OF NOVEMBER 1, 2002 ("THE DECEMBER 2002 AGREEMENT"), MADE ADDITIONAL AMENDMENTS, INCLUDING AMENDMENTS TO THE AMOUNT OF THE BORROWING BASE THAT IS REQUIRED TO BE MAINTAINED AND THE CALCULATION OF THE BORROWING BASE IN SECTION 2.1 AND TO THE SECURITY INTEREST PROVISIONS IN SECTION 3. THE PARTIES EMPHASIZE THAT THE DECEMBER 2002 AGREEMENT MODIFIED THE 1994 AGREEMENT, AS AMENDED, TO ALLOW SHEPARD GRAIN TO BORROW AN ADDITIONAL $500,000 UNDER THE TERMS OF THE BORROWING BASE.2
{¶ 5} IN JANUARY 2002, FIFTH THIRD RECEIVED A BORROWING BASE REPORT FROM SHEPARD GRAIN, DATED JANUARY 15, 2002, WHICH INDICATED THAT THE COMPANY WAS