ELEVENTH FORBEARANCE & MODIFICATION AGREEMENT
ELEVENTH
FORBEARANCE & MODIFICATION AGREEMENT
THIS
ELEVENTH FORBEARANCE & MODIFICATION AGREEMENT (“Agreement”)
is
entered into effective as of the 31st day of October, 2008 by and among M&I
Xxxxxxxx & Xxxxxx Bank (for itself, as successor to Gold Bank, and for its
successors and assigns, the “Lender”),
Crescent Oil Company, Inc. (“Crescent
Oil”),
Crescent Stores Corporation (“Crescent
Stores”),
Titan
Global Holdings, Inc. (“Titan”)
and
Phil Near, an individual (“Near”),
all
in reference to certain loans made by Lender to Crescent Oil and Crescent
Stores
pursuant to and in connection with a Loan and Security Agreement dated May
18,
2005 (“Base
Agreement”),
as
amended by that certain Amendment No. 1 to Loan and Security Agreement and
Other
Transaction Documents dated August 17, 2005 (“1st
Amendment”);
Amendment No. 2 to Loan and Security Agreement and Other Transaction Documents
dated January 18, 2006 (“2nd
Amendment”);
Amendment No. 3 to Loan and Security Agreement and Other Transaction Documents
dated May 31, 2006 (“3rd
Amendment”);
Amendment No. 4 to Loan and Security Agreement and Other Transaction Documents
dated August 28, 2006 (“4th
Amendment”);
Amendment No. 5 to Loan and Security Agreement and Other Transaction Documents
dated August 31, 2006 (“5th
Amendment”);
Amendment No. 6 to Loan and Security Agreement and Other Transaction Documents
dated May 10, 2007 (“6th
Amendment”);
Amendment No. 7 to Loan and Security Agreement and Other Transaction Documents
dated June 21, 2007 (“7th
Amendment”);
a
Forbearance and Modification Agreement dated December 31, 2007 (“First
FMA”);
a
Second Forbearance and Modification Agreement dated January 18, 2008
(“Second
FMA”);
a
Third Forbearance and Modification Agreement dated February 22, 2008
(“Third
FMA”);
a
Fourth Forbearance and Modification Agreement dated March 7, 2008, 2008
(“Fourth
FMA”);
a
Fifth Forbearance and Modification Agreement dated March 24, 2008 (“Fifth
FMA”);
and a
Sixth Forbearance and Modification Agreement dated May 15, 2008 (“Sixth
FMA”);
and a
Seventh Forbearance and Modification Agreement dated June 27, 2008
(“Seventh
FMA”);
an
Eighth Forbearance and Modification Agreement dated July 21, 2008 (“Eighth
FMA”);
a
Ninth Forbearance and Modification Agreement dated August 29, 2008
(“Ninth
FMA”);
and a
Tenth Forbearance and Modification Agreement dated September 16, 2008
(“Tenth
FMA”)
(the
Base Agreement, 1st
Amendment, 2nd
Amendment, 3rd
Amendment, 4th
Amendment, 5th
Amendment, 6th
Amendment, 7th
Amendment, First FMA, Second FMA, Third FMA, Fourth FMA, Fifth FMA, Sixth
FMA,
Seventh FMA, Eighth FMA, Ninth FMA and the Tenth FMA are collectively referred
to herein as the “Loan
Agreement”).
Capitalized terms not otherwise defined herein will have the meaning given
to
them in the Loan Agreement. Near is the guarantor of the payment and performance
of all obligations of Borrowers (as hereinafter defined) under the Loan
Agreement and other Transaction Documents pursuant to an Unlimited Continuing
Guaranty delivered by Near to Lender dated May 18, 2005 (the “Guaranty”).
As
used herein, the term “Borrowers”
means
Crescent Oil and Crescent Stores on a joint and several basis.
WHEREAS,
several
defaults and events of default have occurred under the Loan Agreement, which
defaults and events of defaults entitle Lender to exercise its rights and
remedies under the Loan Agreement, including without limitation, the
acceleration of all Notes and the foreclosure against all Collateral;
and
WHEREAS,
Lender
has notified Borrowers and Guarantor of the existence of certain such defaults
and events of defaults by correspondence dated December 27, 2007 and as
described in the First FMA, Second FMA, Third FMA, Fourth FMA, Fifth FMA,
Sixth
FMA, Seventh FMA, Eighth FMA, Ninth FMA and Tenth FMA and the Borrower has
further defaulted on the Transaction Documents by requesting and allowing
to
exist Special Advances in excess of the Special Advance Cap through October
31,
2008 (the “Specific
Defaults”);
and
WHEREAS,
the
Tenth FMA expires on the effective date of this Agreement; and
WHEREAS,
Borrowers desire for Lender, among other things, to (a) continue to make
advances to Borrowers, (b) extend the maturity date of the Notes, and (c)
forbear from exercising its rights and remedies in respect of the Specific
Defaults all through the Forbearance Period (as hereinafter defined);
and
WHEREAS,
Borrowers and Guarantor acknowledge and agree that each will derive benefit
from, and desires for itself and for the other parties hereto to be bound
by the
terms of this Agreement; and
WHEREAS,
Titan
has acquired 100% of the issued and outstanding capital stock of Crescent
Fuels,
Inc. (“Crescent
Fuels”),
which
such stock Titan recognizes and acknowledges is subject to Lender’s first
perfected security interest; and
WHEREAS,
Crescent Fuels owns 100% of the issued and outstanding capital stock of Crescent
Oil and Crescent Stores; and
WHEREAS,
the
outstanding principal balance plus
accrued
and unpaid interest plus
unpaid
fees, costs and expenses owed by Borrowers to Lender under the Transaction
Documents was approximately $38,747,781
(the
“Outstanding
Balance”)
as of
September 30, 2008.
NOW,
THEREFORE,
for and
in consideration of the sum of Ten Dollars ($10.00) and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
and
of the mutual covenants and agreements contained herein, the parties hereto
agree as follows:
1. Recitals
and Ratification.
The
recitals to this Agreement are a part of this Agreement for all purposes,
and
are true and accurate in all respects. Borrower, Titan and Guarantor hereby
ratify, confirm and affirm the legality, binding nature and enforceability
of
the Loan Agreement (as modified hereby) and all of the Transaction Documents,
all in accordance with their respective terms.
2. Defaults.
The
Borrowers, Titan and Guarantor acknowledge the existence of the Specific
Defaults.
3. Forbearance
Period.
Subject
to Borrowers’ and Titan’s continuing compliance with the terms and conditions of
this Agreement, Lender will forbear from exercising the remedies available
to it
based on the Specific Defaults from the date hereof through the earlier of
(a) a
breach or default by the Borrowers, Titan or Guarantor under this Agreement
or
under any other Transaction Document (other than the Specific Defaults) or
(b)
3:00 PM Kansas City, Missouri local time on December 15, 2008. (hereinafter,
the
“Forbearance
Period”).
4. Maturity
Date.
The due
date in respect of Term Note #2, the Maturity Date and the Revolving Credit
Termination Date shall each be extended until the earlier to occur of (a)
a
breach or default by the Borrowers, Titan or Guarantor under this Agreement
or
under any other Transaction Document (other than the Specific Defaults) or
(b)
the conclusion of the Forbearance Period.
5. Borrowing
Capacity:
The
definition of “Borrowing Capacity” contained in Section 1.1(e) of the Loan
Agreement is hereby deleted and the following is substituted
therefor:
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“(e) BORROWING
CAPACITY means $25,500,000; less
the
undrawn amount of all outstanding Letters of Credit; less
any pay
downs made in respect of the Revolving Credit Loans occurring after July
21,
2008.”
6. LIBOR
Index:
A new
definition of “LIBOR Index” is hereby added to Section 1.1 of the Loan Agreement
as follows:
“”LIBOR
Index” shall mean the London interbank offered rate per annum for 30-day
deposits in United States dollars, as determined by the British Banker’s
Association average of interbank offered rates for United States dollar deposits
in the London market based on quotations at 16 major banks, as published
in the
“Money Rates” Section of the Wall Street Journal as of the applicable
determination date; provided, if Lender determines that the foregoing source
is
unavailable for 30-day deposits or does not accurately reflect Lender’s cost of
funds, Lender shall determine the LIBOR Index based on a different index
more
reflective of its costs of funds.”
7. Interest
Rate.
Subject
to Lender’s right to implement the default rate of interest as provided in the
Loan Agreement (and as described herein), from and after the date hereof,
the
Notes (other than the Special Advance Note) and all other obligations of
Borrowers to Lender will bear interest at the per annum non-default rate
equal
to the LIBOR Index plus
three
hundred fifty (350) basis points.
8. Reporting
Requirements.
Without
limiting Borrowers’ other reporting obligations to Lender under the Loan
Agreement,
(a) Borrowers
shall deliver to Lender not later than 1:00 p.m. Kansas City local time on
Thursday of each week (i) a Borrowing Base Certificate in form and substance
acceptable to Lender showing the true and correct Borrowing Capacity calculation
as of 11:59 p.m. on the immediately preceding Sunday, (ii) a report of cash
disbursements for any Capital Expenditures (as used herein, “Capital
Expenditures”
shall
mean, any expenditure of money for the lease, purchase or other acquisition
or
construction of or with respect to any capital asset, or for the lease of
any
other asset whether payable currently or in the future) through 11:59 p.m.
on
the immediately
preceding Sunday of each week; and (iii) a report showing budgeted to actual
weekly cash flow based on the calendar week ending on the immediately preceding
Friday, all in form and substance acceptable to Lender in its sole discretion;
and
(b) Borrowers
shall deliver to Lender, the monthly balance sheets and profit and loss
statements for October, 2008, on or before 3:00 p.m. Kansas City local time,
November 21, 2008.
9. Capital
Expenditures.
Notwithstanding anything to the contrary contained in the Loan Agreement,
Borrowers will not incur Capital Expenditures which are either (a) not in
the
Budget, or (b) in excess of Fifty Thousand Dollars ($50,000.00) during any
calendar week measured from Monday through Sunday.
10. Restated
Special Advance Facility.
The
Special Advance Facility and Budget described in Section
10
of the
Eighth FMA modified and restated as described below.
(a) General
Terms.
Subject
to the terms hereof, so long as no defaults or events of default have occurred
under the Loan Agreement (other than the Specific Defaults), commencing on
the
effective date hereof and ending on the Business Day immediately preceding
the
end of the Forbearance Period, Lender will make advances (each a “Special
Advance”,
collectively, the “Special
Advances”)
to
Borrowers on a revolving basis in an amount not to exceed Twelve Million
Dollars
($12,000,000.00) less
any
permanent reduction of the Special Advances Cap pursuant to Section 12(c)
below
(“Special
Advances Cap”).
The
Special Advances will continue to be evidenced by a Special Advance Note
executed by Borrower on or about August 29, 2008 (the “Special
Advance Note”).
The
Special Advances shall be Loans under the Loan Agreement for all purposes
(except as and to the extent modified by the terms hereof). The Special Advance
Note is a Transaction Document and a Note for all purposes under the Loan
Agreement.
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(b) Security
for Special Advances.
The
Special Advances are secured by, and entitled to all of the benefits of all
of
the Collateral, and, without limiting any other security interests granted
by
Borrowers to Lender to secure the payment and performance of the Borrowers’
obligations under the Loan Agreement, Borrowers hereby grant to Lender a
continuing security interest in and to all of the Collateral in order to
secure
the Borrowers’ payment and performance of all of their respective and collective
obligations under the Loan Agreement and the other Transaction Documents,
including without limitation, the Special Advance Note.
(c) Suspension
of Revolving Credit Advances.
New
Advances under the Revolving Credit Note shall remain unavailable and shall
not
be available to Borrowers notwithstanding any pay down of the Revolving Credit
Loan.
(d) Special
Advance Borrowing Requests.
On the
effective date hereof, all amounts which have been advanced to Borrowers
in
excess of the Borrowing Capacity in effect immediately prior to this Agreement
will be converted to Special Advances (the “Initial
Special Advances”).
After
giving effect to the Initial Special Advances, requests for additional Special
Advances shall be limited to expenditures detailed in the Budget, subject
to the
Variance Percent (as hereinafter defined). Each request for a Special Advance
(each a “Special
Advance Request”)
will
identify in detail acceptable to Lender in its sole and absolute discretion,
the
amount of the Special Advances being requested, the payee(s) for each Special
Advance, the Budget line item detailing the Special Advance and confirmation
that the Special Advances being requested conform to the Budget, subject
to the
Variance Percent. The foregoing Special Advance Request will be on a form
prescribed by Lender from time to time (the current form of which is attached
hereto as Exhibit
A)
(as
amended and modified form time to time in the sole and absolute discretion
of
the Lender, the “Special
Advance Request Form”)
and
shall be certified to Lender as true, accurate, complete and correct by the
Borrower and the Chief Executive Officer of the Borrowers in his or her
individual capacity. The Special Advance Request Form will constitute a
representation, warranty and covenant as to the matters contained therein,
all
of which shall bind the Borrowers and the Chief Executive Officer of the
Borrowers in his or her individual capacity. In the event any representation
or
warranty in any Special Advance Request Form is or becomes untrue, or in
the
event any covenant contained therein is breached, without limiting any of
Lender’s rights and/or remedies available at law or in equity, Lender may
immediately and without notice cease any further Special Advances and accelerate
all indebtedness and obligations of all Borrowers and Guarantors under the
Loan
Agreement and under any Transaction Document. Special Advance Requests may
be
made on a basis as frequently as daily by Borrowers’ submission to Lender of a
fully executed Special Advance Request Form at or before 4:00 PM (Kansas
City,
Missouri local time) on the Business Day prior to the Business Day upon which
Borrowers desire for the Special Advance to be made. In the event Lender
denies
the Special Advance Request, it will notify Borrowers of such denial reasonably
promptly upon such determination.
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(e) Special
Advance Borrowing Capacity.
In no
event shall Borrower request, and in no event shall Lender be obligated to
fund
any Special Advance Requests which would result in outstanding Special Advances
in excess of the Special Advance Cap.
(f) Interest;
Fees and Costs.
Subject
to Lender’s right to implement the default rate of interest as provided in the
Loan Agreement, from and after the date hereof, the Special Advance Note
and all
other obligations of Borrowers to Lender will bear interest at the per annum
non-default rate equal to the LIBOR Index plus
five
hundred fifty (550) basis points.
(g) Payment
of Interest; Repayment of Special Advances.
Borrower will pay interest on the Special Advances on the first day of each
calendar month in arrears. Interest will be computed in the same manner as
it is
calculated on the Advances under the Revolving Credit Note. All Special Advances
(together with all accrued and unpaid interest) will be due and payable in
full
upon the earlier of (i) the conclusion of the Forbearance Period, or (ii)
Lender’s earlier acceleration thereof pursuant to the terms of the Loan
Agreement and other Transaction Documents.
(h) Budget.
For
purposes hereof and for purposes of the Special Advance Request Form,
“Budget”
means
the budget of Borrowers for the period from October 1, 2008 through December
31,
2008, which is attached hereto as Exhibit
B,
together with extensions and modifications thereof as may be approved by
Lender
in its sole but reasonable discretion. Borrower covenants to provide a new
13-week Budgets acceptable to Lender in its sole but reasonable discretion,
not
less than ten (10) days prior to the end of the then current Budget. The
then-current version of the foregoing (to the extent approved by Lender)
will be
the “Budget” for purposes hereof.
Borrowers
and Titan represent and warrant to Lender that the Budget reflects, on a
line-item basis, anticipated cash receipts and expenditures on a weekly basis
and includes all necessary and required expenses which Borrowers expect to
incur
during each month of the Budget. Borrowers shall use the proceeds of the
Special
Advances only for payment of such items as is set forth in the Budget and
subject to the terms and conditions set forth in the Transaction Documents.
Borrower shall revise the Budget by the end of each month during the Forbearance
Period, and the Budget shall remain subject to the consent of the Lender
each
month. Not later than the fourth (4th) Business
Day of each week, Borrowers shall provide to the Lender a variance report
reflecting, on a line-item basis, the actual cash disbursements for the
preceding week and the percentage variance (the “Variance
Percent”) of
such actual disbursements from those reflected in the Budget for that period.
Any disbursement by Borrowers other than for budgeted amounts as set forth
in
the Budget shall constitute an Event of Default in accordance with the
provisions of this Agreement and the Transaction Documents unless
the Lender consents to those changes in writing;
provided,
however,
that
subject to the Special Advance Cap, Borrowers may make payments in excess
of the
total budgeted disbursements so long as the Variance Percent of the aggregate
of
all actual disbursements for each week shall not exceed five (5%) percent
of the
budgeted disbursements for that week.
Borrowers hereby acknowledge and agree that Lender may, from time to time
through consultants and professionals selected and retained by Lender in
its
sole discretion, the cost of which will be paid by Borrowers, review and
confirm
Budget compliance (and may deny Special Advance Requests that Lender reasonably
believes to be outside of the Budget, subject to the Variance
Percent.
11. Titan
Guaranty.
On or
before 12:00 Noon (Kansas City, Missouri local time) on November 10, 2008,
Titan
will have executed and delivered to Lender, a Guaranty of $19,000,000
of
Borrowers’ indebtedness to Lender under the Loan Agreement and other Transaction
Documents (“Titan
Guaranty”)
in
form and substance acceptable to Lender in its sole but reasonable discretion,
together with such documentation, instruments and certificates as Lender
may
require in order to secure the Titan Guaranty with a pledge of 100% of the
issued and outstanding capital stock of Crescent Fuels (“Titan
Stock Pledge”).
Titan
and Lender acknowledge and agree that Lender currently holds the first position
security interest in the foregoing collateral and that the Titan Stock pledge
would be the second position security interest.
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12. Conoco
Contract Payment.
(a) Delivery
of Proceeds.
On or
before 12:00 Noon (Kansas City, Missouri local time) on November 10, 2008,
Borrowers and Titan covenant to deliver to Lender, all of the Upfront BIP
proceeds from the Third Amendment to Branded Marketer Agreement between Crescent
Oil and ConocoPhillips Company dated October 1, 2008 (“Conoco
Proceeds”),
which
Conoco Proceeds will not be in an amount not less than $6,300,000.
(b) Application
of Funds.
Upon
receipt, the Conoco Proceeds will first be applied against outstanding Special
Advances and thereafter, to other any other indebtedness of Borrower to Lender,
all in such order and manner as Lender determines in its sole
discretion.
(c) Permanent
Reduction in Special Advance Facility.
Upon
the earlier of (a) Lender’s receipt of the Conoco Proceeds, or (b) November 10,
2008, the Special Advance Cap will permanently reduce by
$5,000,000.
13. Partial
Payoff.
(a) Partial
Payoff.
On or
before 12:00 Noon (Kansas City, Missouri local time) on November 28, 2008,
Borrowers and Titan covenant and agree to deliver to Lender, a partial payoff
of
the Outstanding Balance in an amount not less than $2,500,000 (“Partial
Payoff Amount”).
The
Partial Payoff Amount will come from new equity investment in the Borrowers
or
from new unsecured indebtedness of the Borrower, which such new unsecured
indebtedness will be deeply subordinated to Lender pursuant to a subordination
agreement acceptable to Lender in its sole and absolute discretion, which
agreement will, among other things, provide for no payments of principal
or
interest to the subordinated creditor, no lien rights to the subordinated
creditor and no enforcement rights to the subordinated creditor, all until
all
indebtedness of every kind and nature of Borrower, Guarantor, Titan and their
respective affiliates is indefeasibly paid and performed in full. In no event
will the Partial Payoff Amount be sourced from (i) new indebtedness except
as
described above or (ii) funds from the operations of Borrowers. Titan and
Borrowers will provide to Lender evidence of the source of the Partial Payoff
Amount in form, substance and detail acceptable to Lender in its sole
discretion, all on or before 12:00 Noon (Kansas City, Missouri local time)
November 25, 2008.
(b) Application
of Funds.
Upon
receipt, the Partial Payoff Amount will first be applied against outstanding
Special Advances and thereafter, to other any other indebtedness of Borrower
to
Lender, all in such order and manner as Lender determines in its sole
discretion.
14. Restructuring
of Loans.
On or
before 12:00 Noon (Kansas City, Missouri local time) on November 28, 2008,
Borrower, Titan and Guarantor will have executed and delivered to Lender,
in
form, detail and substance acceptable to Lender in its sole but reasonable
discretion, a term sheet for the complete restructuring of the Loan Agreement
and Transaction Documents which will provide for, among other things, (a)
forgiveness by Lender of $19,000,000 of the Outstanding Balance as of the
date
of such restructured loan, (b) a closing date not later than December 15,
2008
and (c) a maturity date of not later than June 30, 2009. Provided that no
defaults or events of default have occurred hereunder or under such restructured
indebtedness, and provided that Borrower is otherwise ready, willing and
able to
repay Lender in full on or before the foregoing maturity date, Lender will,
in
good faith, negotiate such further debt forgiveness as it deems reasonable
and
appropriate under at the time and under the circumstances.
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15. Forbearance
and Special Advance Extension Fee.
As a
condition to the effectiveness of this Agreement, Borrowers will pay to Lender
a
Forbearance and Special Advance Extension Fee in the amount of $250,000
(“Extension
Fee”).
The
Extension Fee will come from new equity investment in the Borrowers and will
expressly not be sourced from (i) new indebtedness or (ii) funds from the
operations of Borrowers. Titan and Borrowers will, together with the payment
thereof, provide to Lender evidence of the source of the extension Fee in
form,
substance and detail acceptable to Lender in its sole discretion. The Extension
Fee is not a deposit and will be fully earned, due and payable upon the
execution of this Agreement by Borrower and Lender, will be retained for
Lender’s account, will not reduce the Outstanding Balances and will not be
refundable.
16. Defaults.
The
continuation, occurrence or discovery of any default or event of default
(whether now or in the hereafter existing) in respect of the Loan Agreement
or
any other Transaction Document other than the Specific Defaults will constitute
a default under this Agreement, and will constitute a default, breach and
event
of default under each and every Transaction Document without exception. The
failure of Borrowers, Titan or the Guarantor to perform any and all obligations
under this Agreement as and when due and without notice (except where notice
is
expressly required) will constitute a default under this Agreement. Any default
hereunder by Borrowers, Titan or the Guarantor will constitute a default,
breach
and event of default under each and every Transaction Document without
exception.
17. Expenses.
Borrowers hereby request an advance under the Revolving Credit Loan in an
amount
sufficient to pay all expenses and costs of Lender (including, without
limitation, the attorney fees, costs and expenses for Lender’s outside counsel)
in connection with the continuing analysis and legal administration of the
Transaction Documents, the Specific Defaults, and other matters relating
to the
Transaction Documents, and in connection with the preparation, negotiation,
execution, approval and administration of this Agreement and any and all
other
documents, instruments and other things now or hereafter deemed necessary
or
desirable by Lender in connection with or related to the Loan Agreement and
the
other Transaction Documents. The foregoing request by the Borrowers is
continuous and will survive the conclusion of the Forbearance
Period.
18. Default
Interest.
Borrowers, Titan and Guarantor acknowledge and agree that based upon the
Specific Defaults, Lender is entitled to implement the default rate of interest
in respect of all of the Loans (“Default
Interest”).
At
this time, but subject to the new interest rate otherwise provided herein,
Lender is electing to defer Default Interest so long as the Borrowers and
Guarantor remain in compliance with the terms of this Agreement. In the event
any Borrower, Titan and/or any Guarantor fails to comply with any term,
provision or condition of this Agreement or any of the Transaction Documents
during the Forbearance Period, the condition to the waiver will not have
been
satisfied, in which case, Lender will be under no obligation of any kind
to
waive Default Interest. Lender hereby expressly reserves the right to implement
Default Interest at any time upon such failure.
19. Modification
of Transaction Documents.
Lender,
the Borrowers, Titan and the Guarantor agree that the Transaction Documents
are
hereby modified as the context may require by the terms of this
Agreement.
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20. No
Impairment.
Except
as expressly set forth herein, the terms and provisions set forth in the
Transaction Documents, all of which are incorporated herein, are unmodified
and
shall remain in full force and effect, the Borrowers, Titan and the Guarantor
hereby ratify and confirm such terms and provisions. Nothing in this Agreement
shall be deemed to or shall in any manner prejudice or impair, or act as
a
release or relinquishment of, any of the Transaction Documents or any rights
of
Lender under the Transaction Documents, or any lien, security interest or
assignment granted to and/or held by Lender in connection with the Loans.
The
execution of this Agreement by Lender does not constitute a waiver, limitation
or modification of any of Lender rights or remedies under the Transaction
Documents or applicable law, all of which Lender hereby expressly reserves,
nor
shall the same constitute a waiver of any default which may have heretofore
occurred or which may hereafter occur with respect to the Transaction
Documents.
21. Release.
The
Borrowers, Titan and the Guarantor do hereby release, remise, acquit and
forever
discharge Lender and Lender’s employees, agents, representatives, consultants,
attorneys, fiduciaries, servants, officers, directors, partners, predecessors,
successors and assigns, subsidiary corporations, parent corporation, and
related
corporate divisions (all of the foregoing hereinafter called the “Released
Parties”),
from
any and all action and causes of action, judgments, executions, suits, debts,
claims, demands, liabilities, obligations, damages and expenses of any and
every
character, known or unknown, direct and/or indirect, at law or in equity,
of
whatsoever kind or nature, whether heretofore or hereafter arising, for or
because of any matter or things done, omitted or suffered to be done by any
of
the Released Parties prior to and including the date of execution hereof,
and in
any way directly or indirectly arising out of or in any way connected to
this
Agreement and the Transaction Documents including but not limited to, claims
relating to the Specific Defaults (all of the foregoing hereinafter called
the
“Released
Matters”).
The
Borrowers, Titan and the Guarantor acknowledge that the agreements in this
paragraph are intended to be in full satisfaction of all or any alleged injuries
or damages arising in connection with the Released Matters. The Borrowers,
Titan
and the Guarantor represent and warrant to Lender that none of them have
purported to transfer, assign or otherwise convey any right, title or interest
as a Borrower, related entity or Guarantor in any Released Matter to any
other
person or entity and that the foregoing constitutes a full and complete release
of all Released Matters.
22. Debtor
Relief Proceedings Defined.
Notwithstanding any other provision contained in this Agreement or the
Transaction Documents, Borrowers, Titan, Guarantor and Lender agree that
the
provisions of sections
21-24
hereof
shall be applicable if bankruptcy, reorganization, liquidation, conservatorship,
receivership or other similar proceedings under any state or federal law
now or
hereafter in effect are commenced by or against the Borrowers, Titan and/or
Guarantor, or the Borrowers, Titan and/or the Guarantor otherwise take any
action to restrain, enjoin or otherwise impede Lender’s exercise of the remedies
afforded Lender under this Agreement, the Transaction Documents or at law
or in
equity, all such proceeding and actions hereafter called “Debtor
Relief Proceedings”.
Without limiting any other provision of this Agreement or the Transaction
Documents, the commencement of any Debtor Relief Proceedings will constitute
a
default hereunder and under every Transaction Document.
23. Forbearance
Negotiations.
The
Borrowers, Titan and the Guarantor acknowledge that they and Lender have
negotiated at length and in good faith to reach the arrangements set forth
in
this Agreement.
24. Consent
Judgment, Injunction.
In the
event that Debtor Relief Proceedings are commenced by or against a Borrower,
Titan and/or the Guarantor, such party or parties hereby agree(s) and consent(s)
to the immediate entry of consent judgments against any part of such parties
that are not a debtor in such proceedings. The Borrowers, Titan and Guarantor
each further covenant and agree that they shall not, in any Debtor Relief
Proceeding, seek an injunction under 11 U.S.C. §105 or any similar provision at
law or in equity to enjoin Lender from seeking to have consent judgments
entered
by a court of competent jurisdiction or recorded in such public records as
may
be appropriate.
8
25. Preservation
of Rights, Remedies and Defenses.
If, at
any time (a) the Borrowers or any of them, Titan and/or Guarantor, or any
third
party creditor of the any of them, or any other person or entity undertakes
any
legal proceeding to rescind or set aside any payments under this Agreement
or
the Transaction Documents or to force the Lender to turnover, return or
otherwise disgorge said payments or any other property received by the Lender
under this Agreement or the Transaction Documents; or (b) any such payments
or
property must be disgorged by Lender due to: 1) the insolvency of the Borrowers
or any of them, Titan and/or Guarantor, 2) the bankruptcy of the Borrowers
or
any of them, Titan and/or Guarantor, 3) the reorganization of the Borrowers
or
any of them, Titan, and/or Guarantor, then in such case, at the option of
Lender, the obligations under the Transaction Documents shall be deemed
unchanged by this Agreement, and any such payment or property disgorged by
Lender shall be added back to the obligations due Lender. Should the provisions
of this paragraph become operative, Lender specifically reserves the right
to
exercise any right, remedy or defense available to it prior to the execution
of
this Agreement and the Transaction Documents.
26. Ratification;
Estoppel; Reaffirmation.
A. Borrowers,
Titan and the Guarantor do hereby reaffirm and ratify the Transaction Documents,
as amended, modified and supplemented.
B. Borrowers,
Titan and the Guarantor do hereby reaffirm to Lender each of the
representations, warranties, covenants and agreements set forth in the
Transaction Documents with the same force and effect as if each were separately
stated herein and made as of the date hereof to Lender.
C. Borrowers,
Titan and the Guarantor further represent and warrant that, as of the date
hereof, they have no counterclaims, defenses or offsets of any nature whatsoever
to the Loan or any of the Transaction Documents, and that, as of the date
hereof, except with respect to payment defaults referred to above, no default
has occurred or exists under any of the Transaction Documents.
D. Borrowers,
Titan and the Guarantor do hereby ratify, affirm, reaffirm, acknowledge,
confirm
and agree that the Transaction Documents, as amended, modified and supplemented
hereby and by this Agreement, represent the valid, enforceable and collectible
obligations of Borrowers, Titan and the Guarantor.
E. Borrowers,
Titan and the Guarantor acknowledge and agree that Lender’s willingness to enter
into this Agreement and extend the Forbearance Period does not create an
expectation on the part of Borrowers, Titan and Guarantor that Lender might
or
would be willing to further extend the Forbearance Period or enter into a
subsequent forbearance agreement or modification. This Agreement expressly
does
not create a course of dealing with respect to Lender’s willingness to further
forbear from exercising any rights and remedies it now has or hereafter may
have
against Borrowers, Titan or Guarantor.
27. Successors
and Assigns.
This
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns and personal
representatives.
28. Governing
Law.
The
terms and conditions of this Agreement and all of the Transaction Documents
shall be governed by the applicable laws of the State of Kansas.
9
29. Counterparts.
This
Agreement may be executed simultaneously in one or more counterparts, each
of
which shall be deemed an original, but all of which shall together constitute
one and the same instrument.
30. No
Waiver.
Nothing
contained in this letter may be construed as a waiver of, or promise to waive
any Default or Event of Default, including without limitation the Specific
Defaults, and, subject to the Forbearance Period, Lender hereby reserves
all
rights and remedies of every kind and nature in respect of all breaches,
defaults and events of default in respect of every Transaction Document,
including without limitation, in respect of the Specific Defaults.
31. Interpretation.
Within
this Agreement, words of any gender shall be held and construed to include
any
other gender, and words in the singular number shall be held and construed
to
include the plural, unless the context otherwise requires. The parties
acknowledge that the parties and their counsel have reviewed and revised
this
Agreement and that the normal rule of construction to the effect that any
ambiguities are to be resolved against the drafting party shall not be employed
in the interpretation of this Agreement or any exhibits or amendments
hereto.
32. Conflict
Between Terms.
In the
event of a conflict between or among the terms, covenants, conditions or
provisions of this Agreement or the Transaction Documents, Lender may elect
to
enforce from time to time those provisions that would afford Lender the maximum
financial benefits and security for such obligations and liabilities thereunder
and/or provide Lender the maximum assurance of payment of such liabilities
and
obligations in full.
33. Revival
of Liability.
To the
extent that any payment or payments made to Lender under this Agreement,
the
Transaction Documents, or any payment or proceeds of any collateral received
by
Lender in the reduction of the indebtedness evidenced therein or with respect
to
any of the allocations evidenced by this Agreement or any related documents
are
subsequently invalidated, declared to be fraudulent or preferential, set
aside
and/or required to be repaid to a trustee, to Borrowers, Titan, Guarantor
or any
other person liable for any of the obligations evidenced and/or secured by
this
Agreement or any other related documents, whether directly or indirectly,
as a
debtor-in-possession or to a receiver or any other party under any bankruptcy
law, state or federal law, common law or equitable cause, then the portion
of
the indebtedness of Borrowers, Titan or Guarantor evidenced hereby or such
other
liable person intended to have been satisfied by such payment or proceeds
will
be revived and will continue in full force and effect as if such payment
or
proceeds had never been received by Lender.
34. Waiver
of Jury Trial.
The
Borrowers, Titan and the Guarantor waive the right to a trial by jury in
any
action or proceeding based upon, or related to, the subject matter of this
Agreement. This waiver is knowingly, intentionally and voluntarily made by
all
parties.
35. Amendment.
The
terms and conditions hereof may not be modified, altered or otherwise amended
except by an instrument in writing executed by the Borrowers, Titan, the
Guarantor and Lender.
36. Severability.
If any
term or provision of this Agreement, or the application thereof to any person
or
circumstances, shall, to any extent, be invalid or unenforceable, the remainder
of this Agreement, or the application of such term or provision to persons
or
circumstances other than those as to which it is held invalid or unenforceable,
shall not be affected thereby, and each term and provision of this Agreement
shall be valid and shall be enforced to the fullest extent permitted by
law.
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37. Statutory
Notice.
THE
FOLLOWING NOTICE IS GIVEN TO COMPLY WITH K.S.A.
16-117 and 16-118
THIS
IS THE FINAL EXPRESSION OF THE MODIFIED CREDIT AGREEMENT AMONG BORROWERS,
TITAN,
GUARANTOR AND LENDER. THIS MODIFICATION TO A CREDIT AGREEMENT CANNOT BE
CONTRADICTED BY EVIDENCE OF ANY PRIOR ORAL CREDIT AGREEMENT OR OF A
CONTEMPORANEOUS ORAL CREDIT AGREEMENT AMONG BORROWERS, TITAN, GUARANTOR AND
LENDER. THE FOLLOWING SPACE (WHICH THE PARTIES HERETO AGREE IS SUFFICIENT
SPACE)
IS PROVIDED FOR THE PLACEMENT OF NONSTANDARD TERMS, IF ANY (IF THERE ARE
NO
NONSTANDARD TERMS TO BE ADDED, STATE "NONE"): --NONE—
***THIS
IS A SPECIALIZED CREDIT DOCUMENT; ALL TERMS AND CONDITIONS SHOULD BE REVIEWED
BY
COMPETENT LEGAL COUNSEL***
BY
SIGNING BELOW, BORROWERS, TITAN, GUARANTOR AND LENDER HEREBY AFFIRM THAT
THERE
IS NO UNWRITTEN ORAL CREDIT AGREEMENT BETWEEN THEMSELVES WITH RESPECT TO
THE
SUBJECT MATTER OF THIS WRITTEN MODIFICATION TO A CREDIT
AGREEMENT.
[REMAINDER
OF PAGE LEFT INTENTIONALLY BLANK, SIGNATURE PAGE FOLLOWS]
11
[signature
page for Eleventh Forbearance and Modification Agreement effective October
31,
2008]
IN
WITNESS WHEREOF, the parties have executed this Agreement effective as of
the
date first written above.
LENDER
M&I
Xxxxxxxx & Xxxxxx Bank
By:
/s/
Xxx X. Xxxxxx, Xx.
Printed
Name: Xxx
X.
Xxxxxx, Xx.
Its:
Executive
Vice President
BORROWERS
Crescent
Oil Company, Inc.
By:
/s/
Xxx Xxxxx
Printed
Name: Xxx Xxxxx
Its:
Executive
Vice President
Crescent
Stores Corporation
By:
/s/
Xxx Xxxxx
Printed
Name: Xxx Xxxxx
Its:
President
TITAN
By:
/s/
Xxxxx X. Chance
Printed
Name: Xxxxx
X. Chance
Its:
President
and CEO
12
ACKNOWLEDGEMENT
AND CONSENT OF GUARANTOR
The
undersigned Guarantor acknowledges that Lender has no obligation to provide
him
with notice of, or to obtain its consent to, the terms of the foregoing Eleventh
Forbearance and Modification Agreement dated October 31, 2008. Guarantor
further
agrees that his consent to the Agreement will expressly not create any
expectation or course of dealing which would require Lender to either notify
or
seek the consent of Guarantor to any subsequent amendment, modification or
forbearance. Notwithstanding the foregoing, Guarantor below hereby (a) confirms
that he has read and consents to and approves of the terms and conditions
of
this Agreement, (b) acknowledges and agrees that the Loan Agreement and
other Transaction Documents continue to be guaranteed pursuant to the terms
of
his Unlimited Continuing Guaranty dated May 18, 2005, (c) ratifies and reaffirms
each and all of the terms and provisions of his Unlimited Continuing Guaranty,
and (d) agrees that the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby, shall not in any way
impair, diminish, extinguish, release, reduce, terminate, discharge or adversely
affect the continuing, absolute and unconditional liability of Guarantor
under
his Unlimited Continuing Guaranty. By execution of this Acknowledgment and
Consent of Guarantor, the undersigned enters into and consents to be bound
by
the terms and conditions of this Agreement, and expressly waives notice of
or
consent to any subsequent amendments, even though such subsequent amendments
may
(subject to the terms of his Unlimited Continuing Guaranty) operate to increase
the obligations guaranteed by Guarantor.
| By: |
/s/
Xxxxxxx X.
Near
|
| Xxxxxxx X. Near, an individual |
13
