ex1045.htm


Exhibit 10.45



ASSET INDEMNIFICATION AGREEMENT


 


THIS ASSET INDEMNIFICATION AGREEMENT is made and entered into as of September 29, 2010 (the “Effective Date”) by CAPTERRA FINANCIAL GROUP, INC., a Colorado corporation (the “Company”) and BOCO INVESTMENTS, LLC, a Colorado limited liability company (“BOCO”), and GDBA INVESTMENTS, LLC, a Colorado limited liability company (“GDBA”) (BOCO and GDBA each an “Indemnitor,” and, collectively, the “Indemnitors”).


 


W-I-T-N-E-S-S-E-T-H


 


WHEREAS, Indemnitors are shareholders of the Company; and


 


WHEREAS, the Company has entered into an Interest Purchase Agreement (the “Agreement”) dated September 29, 2010, with NexCore Group LP, a Delaware limited partnership and its partners (“NexCore”), pursuant to which NexCore partners will contribute equity interests to the Company in exchange for the Company issuing shares of its common stock to NexCore partners; and


 


WHEREAS, the Company owns membership interests in the nine limited liability companies set forth on Exhibit A (the “LLCs”); and


 


WHEREAS, one of the premises of the Agreement is that the Indemnitors, as the significant pre-Effective Date owners of the Company, shall be responsible for all liabilities of the Company that relate in any way to the LLCs and indemnify the Company for any such liabilities.


 


NOW, THEREFORE, for valuable consideration, the receipt and adequacy of which are hereby acknowledged, Company and Indemnitors hereby agree as follows:


 


1.           Subject and Purpose.  As a condition to NexCore entering into the Agreement, NexCore requires that Indemnitors fully indemnify the Company from and against all Liabilities (as defined below) that relate to the LLCs.  The purpose of this Indemnification Agreement is to set forth the agreement of the parties as to the indemnification provided to the Company.


 


2.           Indemnification.  Up to an aggregate total of Two Million Dollars ($2,000,000) (the “Cap”), Indemnitors, jointly and severally, hereby absolutely, unconditionally, and irrevocably agree to indemnify and hold harmless the Company from and against any lawsuit, and other claims, losses, liabilities, costs, expenses, damages, fines, penalties, recoupments, and causes of action (including any and all costs, and fees incurred as a result of such claims), and other liabilities (collectively, “Liabilities”) against the Company that relate in any way to the LLCs, whether such Liabilities arose before or after the Effective Date.  This indemnity includes:  (a) acts by Indemnitors, the Company or any other person acting on behalf of Indemnitors or the Company with respect to the ownership and operations of the LLCs; (b) any environmental or similar Liability relating to the LLCs; (c) any and all income, gross income, gross receipts, profits, capital stock, franchise, withholding, payroll, social security, workers compensation, unemployment, disability, property, ad valorem, stamp, excise, severance, occupation, service, sales, use, license, lease, transfer, import, export, value added, alternative minimum, estimated, or other tax of any kind (including any fee, assessment, or other charge in the nature of or in lieu of any tax) imposed by any governmental entity or political subdivision thereof, and any interest, penalties, additions to tax, or additional amounts in respect of the foregoing that relate to the


 






  





  











  








LLCs; and (d) all other Liabilities incurred by the Company that relate to the LLCs; provided, however, that this Indemnification is secondary and excess to any applicable insurance coverage or third-party reimbursements.  In addition, Indemnitors shall not indemnify the Company for any Liabilities resulting decisions made by the Company subsequent to the Effective Date which create a liability for the Company and/or any one of the LLCs.


 


3.           Term.  This Indemnification Agreement shall terminate and expire on March 31, 2015 (the “Expiration Date”).  Any Liability upon which notice has been provided to the Indemnitors, pursuant to the terms hereof, prior to the Expiration Date shall be fully indemnifiable pursuant to the terms of this Agreement even if such Liability is not fully resolved until after the Expiration Date.


 


4.           Settlement.  The Company shall not admit or assume any liability, enter into any settlement agreement, stipulate to any judgment, compromise or prejudice any claim or defense of the Company, or incur any costs, expenses or fees for which it may seek reimburse under this Indemnification without the prior written consent of the Indemnitors, which shall not be unreasonably withheld, delayed or conditioned.  Only those liabilities, settlements, stipulated judgments, costs, expenses, and fees which have been consented to, in writing, by the Indemnitors shall be recoverable under this Indemnification.  For the avoidance of doubt, a final judgment by a court, arbitrator or similar body does not need to be consented to by the Indemnitors to be recoverable under this Indemnification.


 


5.           Counsel.  Indemnitors shall have the right to select the Company’s legal counsel with respect to any legal claims related to the LLCs, subject to the approval of the Company, which approval shall not be unreasonably withheld, delayed or conditioned.  Costs, expenses and fees incurred through legal counsel who has not been selected or approved by Indemnitors, in writing, shall not be recoverable under this Indemnification.


 


6.           Notice.  In order for a Claim to be subject to this Indemnification, the Company shall provide the Indemnitors with written notice of the possible claim or the Indemnitors must otherwise have knowledge of the possible claim.  Such notice shall be provided to the Idemnnitors once the Company reasonably believes that the circumstances may give rise to a claim under this Indemnification.


 


7.           Insurance.  For so long as this Indemnification remains in effect, the Company shall maintain its insurance coverage, with at least the same policy limits as currently in effect, for such Liabilities that could be subject to this Indemnification.


 


8.           General Provisions.


 


(a)           Assignment.  The rights and obligations of a party shall not be assignable or delegable without the prior written consent of the other party, and any such assignment in the absence of such written consent shall, for all purposes, be deemed null and void.


 


(b)           Expenses.  Indemnitors shall pay all reasonable and necessary expenses incurred after the Effective Date by or on behalf of Indemnitors and Company in connection with this Indemnification Agreement.  If a party breaches this Agreement, the non-breaching party shall be entitled to recover from the breaching party all of its costs


 






  





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and expenses incurred in enforcing this Agreement, and such enforcement costs shall not be subject to the Cap.


 


(c)           Further Assurances.  The parties shall, upon written request, execute, acknowledge, and deliver such other instruments and documents and take such further action as may be reasonably necessary to carry out the intent of this Indemnification Agreement.


 


(d)           Modification.  No provision of this Indemnification Agreement may be modified, amended, or waived except by written agreement signed by the party to be bound thereby.


 


(e)           Binding Effect and Benefit.  This Indemnification Agreement shall inure to the benefit of, and shall be binding upon, the heirs, assigns, personal representatives, and successors of the parties hereto.


 


(f)           Headings and Captions.  Subject headings and captions are included for purposes of convenience only and shall not affect the interpretation of this Indemnification Agreement.


 


(g)           Notice.  All notices, requests, demands, and other communications permitted or required herein shall be in writing, and either delivered in person; sent by express mail or other overnight delivery service providing receipt of delivery; or mailed by certified or registered mail, postage prepaid, return receipt requested, restricted delivery to the relevant party.  All such notices and other communications, unless otherwise designated in writing, shall be sent to the following persons:


 


The Company:                                           







 



	 	Capterra Financial Group, Inc. 

1621 Eighteenth Street, Suite 250


Denver, CO 80202


Facsimile:  303-


Attention:  Chief Executive Officer







 


                              







with copies to:








	
  

	
David Wagner & Associates, P.C.








	
  

	
8400 East Prentice Ave.








	
  

	
Penthouse Suite








	
  

	
Greenwood Village, Colorado 80111








	
  

	
Attention: David J. Wagner, Esq.








	
  

	
Telephone: (303) 793-0304








	
  

	
Facsimile: (303) 794-3393


 


And












 






  





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Kutak Rock LLP

1650 Farnam Street










	
  

	
Omaha, NE  68102



Attn:  Jay Gilbert, Esq.


           James C. Creigh, Esq.










	
  

	
Telephone:  (402) 346-6000








	
  

	
Facsimile:  (402) 346-1148













The Investors:   










	
  

	
BOCO Investments, LLC








	
  

	
103 West Mountain Ave.








	
  

	
Fort Collins, Colorado 80524








	
  

	
Facsimile:  (970) 482-6139








	
  

	
Attention:  Chief Executive Officer


 


GDBA Investments, LLLP


1440 Blake Street, Suite 310


Denver, CO 80202


Facsimile:  (720) 932-9397


Attention:  Chief Executive Officer









 


with a copy to:


 




	 	
Davis & Ceriani P.C. 

Suite 400, Market Center


1350 Seventeenth Street


Denver, CO 80202


Facsimile:  (303) 534-4618


Attention:  Patrick J. Kanouff, Esq.











 


(h)           Severability.  Each provision of this Indemnification Agreement is severable from all other provisions.  If any provision is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary to render it valid and enforceable.  If any court of competent jurisdiction determines that any such provision is invalid or unenforceable for any reason, all remaining provisions shall remain in full force and effect.


 


(i)           Time for Performance.  Time is of the essence.


 


(j)           Waiver.  Either party to this Indemnification Agreement may, by written notice to the other party, extend the time for the performance of any obligation by the other party; waive any inaccuracies in this Indemnification Agreement caused by the other party; and waive compliance with any of the covenants of the other party in this Indemnification Agreement.  No waiver of a breach of any provision of this Indemnification Agreement shall operate or be construed as a waiver of any subsequent


 






  





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breach or limit or restrict any right or remedy otherwise available.  Any waiver of any provision shall be in writing and signed by the party to be bound thereby.


 


(k)           Rights and Remedies Cumulative.  The rights and remedies expressed in this Indemnification Agreement are cumulative and not exclusive of any rights and remedies otherwise available.


 


(l)            Governing Law.  This Indemnification Agreement shall be subject to and governed by Colorado law, without giving effect to its choice of laws provisions.


 


(m)          Counterparts.  This Indemnification Agreement may be executed in two or more counterparts each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.


 


(n)           Third-Party Beneficiaries.  Except as provided in this Indemnification Agreement, the parties do not intend to create any rights for the benefit of any third party.


 


(o)           Composition of Agreement.  The parties hereto represent that they have each read this Indemnification Agreement and each has sought and received competent legal counsel prior to its execution.  The parties assume joint responsibility for the form and composition of each provision of this Indemnification Agreement and each acknowledge that this Indemnification Agreement shall be interpreted as though they shared equally in its preparation.


 


(p)           Conflict in Instruments.  To the extent that there is an irreconcilable conflict between the provisions of this Indemnification Agreement and any document delivered in connection herewith, the provisions of this Indemnification Agreement shall prevail.


 


(q)           Arbitration.  Any dispute or claim arising under or with respect to this Indemnification will be resolved by arbitration in Denver, Colorado, conducted in accordance with the Rules for Commercial Arbitration of the American Arbitration Association (“AAA”) before a panel of three (3) arbitrators, one appointed by Indemnitors, one appointed by the Company, and the third selected by the AAA.  The decision or award of the arbitrators will be final and binding upon the parties.


 


(r)           Entire Agreement.  This Indemnification Agreement contains the entire agreement of all parties on the subject matter hereof, and no other oral or written agreements shall be binding upon the parties hereto.  The parties acknowledge that they have neither been influenced to enter into this Indemnification Agreement by any party, nor relied on any representation of any party except for those representations set forth in this Indemnification Agreement.  This Indemnification Agreement supersedes all prior agreements, contracts, and understandings of any kind on the subject matter hereof, either oral or written.


 






  





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This Asset Indemnification Agreement is Executed and Delivered as of the date set forth above.


 







COMPANY







CapTerra Financial Group, Inc.












By:              /s/ Gregory C. Venn                                                        


Name:              Gregory Venn                                                        


Title:              Chief Executive Officer                                                        







INDEMNITORS







BOCO INVESTMENTS, LLC







By:              /s/ Joseph Zimlich                                                        


Name:              Joseph Zimlich                                                        


Title:              President and Managing Member                                                        







GDBA INVESTMENTS, LLC







By:              /s/ G. Brent Backman                                                        


Name:              G. Brent Backman                                                        


Title:              











  





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Schedule of Limited Liability Companies








	
1)  

	
AARD LECA LSS Lonestar, LLC, a Colorado limited liability company;







 



	
2)  

	
AARD LECA VL1, LLC, a Colorado limited liability company ;







 



	
3)  

	
AARD-Charmar Greeley Firestone, LLC, a Colorado limited liability company;







 



	
4)  

	
AARD ECONO LUBE STONEGATE, LLC, a Colorado limited liability company;







 



	
5)  

	
AARD ESTERRA MESA 1, LLC, a Colorado limited liability company;







 



	
6)  

	
Buckeye AZ, LLC, a Colorado limited liability company;







 



	
7)  

	
Cypress Sound, LLC, a Colorado limited liability company;







 



	
8)  

	
South Glen Eagles Drive, LLC, a Colorado limited liability company; and







 



	
9)  

	
Hwy 46 and Bluffton Parkway, LLC, a Colorado limited liability company.







 
















  





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