Free Opposition (Other) - District Court of Colorado - Colorado

Case 1:04-cr-00153-LTB

Document 406-4

Filed 01/12/2006

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the above, Purchaser shall be deemed to suffer loss, costs, expense or other damage if he, or after

Closing, Twentieth Century, suffers loss, costs,expense other damage.Further, Seller shaU or
indemnify and hold Purchaser harmless against and in respect of any and all liabHities or obligations of or claims against Twentieth Century of any nature, whether accrued, absolute, contingent, or otherwise, existing or assertedto exist as of the Closing to the extent the liability, obligation, or daim is not disclosed on or reserved against io full on the unaudited balance sheet of Twentieth Century as of September 30, 2003, as set forth in Schedule 2.6 or is not incurred il1 the ordinary course of business by TWeJltieth Century subsequent to September 30, 2003 and is not disclosed in Section 2.6. Notwithstanding the foregoing, until Purchaser has suffered adverse consequences by reason of all such breaches in excess of $10,000 Aggregate Deductible, the SeHershall have no obligation to indemnify the Purchaser. After the Aggregate. Deductible has been paid by Purchaser, the SeHcr will be obligated to indemnify the Purchaser from and against further adverse consequences.

10.3 Ind~Jlli.lificatiQ.nJ2~.J?.\Jrchaser, Purchaser indemnifyandhold harmless shall Seller
for and will pay to Seller the amount of any damages arising, directly or indirectiy, from or in connection with any breach of any representation or warranty made by Purchaser in this Agreement or in any other certificate, schedule or document delivered by Purchaser pursuant to this Agreement; and allY breach by Purchaser of any covenant of Purchaser in this Agreement or in the Purchaser Questionnaire attached hereto as Schedule. 3.5.3. Notwithstanding the foregoing, until Seller has suffered adverse consequences by reason of all such breaches in excessof $10,000 Aggregate Deductible. the Purchaser shall have no obligation to indemnify the SeHer.After the Aggregate Deductible has been paid by Seller, the Purchaser will be obligated to indemnify the Seller from and against further adverseconsequences.

10.4 IndemnificationProcedure.

10.4.1If anythird party shannotify a Party(the "Indemnified Pant') with respect
to any matter(a "Third Party Claimll) which may give rise to a claim for indemnificationagainst the other Party (the "Indemnifying Party") under this § 10, then the Indemnified Party shall promptly (and ill any event within five business days after receiving notice of the Third Party Claim) notify the Indemnifying Party thereofin writing, 10.4.2 The Indemnifying Partywill havethe right to assume thereafterconduct and the defenseof the Third Party Claim with counsel of his or its choice which is reasonably satisfactoryto the Indemnified Party; provided, however,that the Indemnifying Party will not consentto the entry of anyjudgment or entcrinto any settlementwith respectto the Third Party Claim without the prior written consentof the IndemnifiedParty which shall not to be withheld unreasonably unlessthe judgment or proposedsettlementinvolves only the paymentof money damages doesnot imposean injunction or otherequitablerelief upon the IndemnifiedParty. and 10.4.3 Unless and until an Indemnifying Party assumes defenseof the Third the PartyClaim as provided in § 10.4.2 above,however,the Indemnified Party may defendagainst theThird PartyClaim in any mannerhe or it reasonably may deemappropriate. 10.4.4 In no event will the IndemnifiedParty consentto the entry of anyjudgment or enter into any settlementwith respectto the Third Party Claim without the prior written consent the Indemnifying Partieswhich shaH to be withheld unreasonably. of not Section11 MiscellaneousProvisions.
11.1 Amendment and Modification, Subjectto applicable law, this Agreementmaybe amended,modified, or supplementedonly by a written agreementsigned by Purchaser and Seller.

11.2 Expensc$. 11.2,1 Except as otherwiseexpressly provided berein,eachof the partiesshall bear and pay all direct costs and expenses incurred by him or on his behalf in connectionwith the

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transactions contemplated hereunderand the negotiationand consummation this Agreement, of includingfeesandexpenses its own financial,legalOfother representatives. of 11.2.2 Nothing containedin this Section11.2shal.lconstituteor shaHbe deemed to constitute liquidateddamage.s the breach a party of the t.erms this Agreement for by of or otherwise limit therights of the non*breaching part.y. 1L3 Waiver of CompIian~e, Consents. 11.3,1 Any failure of anypmty to comply with any obligation, covenant,agreement, or condition herein may be waived by the party entitled to the performanceof suchobligation, covenant,or agreement who has the benefit of suchcondition, but such waiver or failure to or insist upon strict compliancewith such obligation, covenant,agreement, condition will not or operate a waiverof Ofestoppelwith respect any subsequent other failure. as to, or 11.3.2Wheneverthis Agreement requiresor permitsconsentby or on behalf of any party hereto, such consentwilt be given in a mannerconsistent with the requirementsfor a waiverof compliance set forth above. as 11.4 Notices. All notices, requests,demands,and other communications required or permitted here.under wiII be in writing and will be deemedto have been duly given when deliveredby handor threedays after being mailedby ce,rtifiedor registeredmail, return receipt requested, postage with prepaid: If to Purchaser. to TwentiethCentury or after the Closing.to: ChadHeinrich 16000OakAvenue
Oak Forest, Illinois 60452-4007

Copyto: Steven McDonald,Esq. W. BerlinerMcDonald P,C.
5670 Greenwood Plaza Blvd., Suite 418 Greenwood Village, CO 80111-2408

or to such other person or address a.sPurchaserfurnishes to Seller pursuant to the above. If to Seller: ~oPy to~ --

TreveW, Kinsey 7130S. Espana Way Aurora,Colorado80016

Robertp, Horen,Esq, Schmidt& Horen,LLP 10S0-17th Street,Suite 1700 Denver,Colorado80265-2207

or to such other addressas Seller furnishes to Purchaserpursuant to the above.

11.5Titles and C~ption.s. sectiontitles or captionscontainedin this Agreementare for All convenience only and shall not be deemed part of the contextnor effect the interpretation this of Agreement. 11.6 E~Agrecment This Agreement,along with attachedschedules,constitutesthe entire, integratedagreementand understanding betweenthe parties with respectto the subject matter hereof. This Agreement supersedes any and an other Agreements, either oral or in writing, andcontainsall the covenants agreements and betweenthe partiesrelatedto the subject matterhereoLEachparty to this Agreementacknowledges no representations, that inducements, promises agreements, or orally or otherwise,havebeenmadeby either party or anyoneactingon behalf of any party hereto, which are not embodiedherein, and that no other agreement, statement promisenot containedin this Agreement or shallbe valid or binding. 11.7 AgreementBindiu.g.This Agreementshall be binding upon the heirs, executors, administrators, successors assigns the partieshereto. and of 11.8 MitratioI1,

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11.8.1 ALb.i!1.1ltion CO!ltroJI.), The parties hereby agree to submit an controversies, claims and matters of difference to arbitration before a representative of the Judicial Arbiter Group, Inc. of Denver, Colorado, or should such organization be unable to act, such other arbitrator as the parties by agreement may select. Proceedings shaD be conducted in accordance with the Colorado Rules of Civil Procedure and Rules of Evidence, except as modified by agre,ement the parties and order of the arbiter. This submission and agreement to arbitrate shall of be specifically enforceable. 11.8.2 C&!ltrovern~s. For the purposes of this Agreement controversies shall include, but not be limited to, the following: a. AU questions relating to the breach of any obHgation, warranty or condition hereunder; b, FaHure of any party to deny or reject a claim or demandof any other party; and c, All questions as to whether the right to arbitrate in any question exists. 11.8.3 Awgds. Arbitration may proceed in the absenceof any party if notice of the proceedings has been given to such party. The parties agree to abide by all awards rendered in such proceedings. Any award shall be accompanied by findings of fact and conclusions of law and may be enforced through the entry of judgment or issuance of execution in any Colorado court having jurisdiction. No party shall be considered in default hereunder during the pendency of arbitration proceedings relating to such default 11.9. Attorney's Fees. In the. event that any action is necessary in relation to this Agreement, the unsuccessful Party in the. action shall pay to the.successful Party, in addition to all other sums that the Party may be called on to pay, a reasonable sum for the successful Party's attorney's fees. 11.10 CQmp.utationof Time. In computing any period of time pursuant to this Agreement, the day of the act, event or default from which the designated period of time begins to run shall be included, unless it is a Saturday, Sunday, or a legal holiday, in which event the period shall begin to run on the next day which is not a Saturday, Sunday, or legal holiday, in which event the period shall run until the end of the next day thereafter which is not a Saturday, Sunday, or legal holiday. 11.11 Pronouns and Plurals. All pronouns and any variations thereof shall be deemed to refer to the masculine, feminine, neuter, singular, or plural as the identity of the person or persons may require. 11.12 Governing Law. This Agreement shall be governed by and construed in accordance with the law!>of the State of Colorado without regard to any applicable conflicts of laws. 11.13 Interpretation. The parties here,byacknowledge and agree that all parties hereto bear co-exte.nsive and identical responsibility for the language and for any ambiguity or alleged ambiguity contained herein. Any applicable rule of construction to the effect that ambiguities arc to be resolvedagainstthe drafting party shaHnot be appliedin connectionwith the construction or interpretation of this Agreement.

all information and take or forbear from all such action as may be necessary appropriateto or
achieve the purposes of the Agreement.

1L 14 Further Action. The pa.rties hereto shall execute and deliver aU documents, provide

1L 15 Partiesin Interest.Nothing hereinshall be.construed be to the benefit of any third to party, nor is it intendedthat anyprovision shall be for the benefit of any third party. 11.16Savings Cla~. If any provision of this Agreement, or the application of such provision to any personor circumstance, shall be held invalid, the remainderof this Agreement,

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or the applicationof suchprovision to persons circumstances or other than thoseas to which it is held invalid, shall not be affectedthereby. 11.17Eacsimik. Signaturesmay be evidenced by facsimile. Documents with original signatures shall be providedto the otherparty at Closing,or earlier upon requestof anyparty.
11.18 Counterparts. This Agreement may be executed in more than one counterpart, each of which shaIl be deemed an original, but all of which together shall constitute one and the same instrument. In Witness Whereof, year first above written. each of the parties has executed this Agreement as of the day and

PURCHASER:

SELLER:
-..--

c;/~ ~===/
Chad E. Heinrich

TreveW. Kinsey

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