Unassociated Document


    
      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
        Marshall & Ilsley 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.

       

      
        
           

        

        
          10

          
            

          

        

        
           

        

      

      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
        Marshall & Ilsley Bank

      
 

      By:
        /s/
        Sam S. Pepper, Jr.

      Printed
        Name: Sam
        S.
        Pepper, Jr.

      Its:
        Executive
        Vice President

       

       

      BORROWERS

       

      Crescent
        Oil Company, Inc.

       

       

      By:
        /s/
        Jon Viets

      Printed
        Name: Jon Viets

      Its:
        Executive
        Vice President

       

       

      Crescent
        Stores Corporation

       

       

      By:
        /s/
        Jon Viets

      Printed
        Name: Jon Viets

      Its:
        President

       

       

      TITAN

       

      Titan
        Global Holdings, Inc.

      
 

      By:
        /s/
        Bryan M. Chance

      Printed
        Name: Bryan
        M. 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/
                  Phillip L.
                  Near                           
                  

              


        	 	Phillip L. Near, an
                individual


      

       

       

       

       

      
        
           

        

        
          13