EXHIBIT 10.20
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT is made and entered into as of August __, 2003,
by and between DEL MAR MORTGAGE, INC., a Nevada corporation, having an address
of 0000 Xx Xxxxxx Xxxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxx 00000 ("Del Mar"), on the
one hand, and VESTIN GROUP, INC., a Delaware corporation, and VESTIN MORTGAGE,
INC., a Nevada corporation (together, "Indemnitees"), each with an address of
0000 Xx Xxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxx 00000, on the other hand.
RECITALS
WHEREAS, Indemnitees and Del Mar are named as defendants in that certain
lawsuit brought by Desert Land, L.L.C., Casa Malaga Hotel, Inc., and Xxxxxx
Xxxxxxx against Del Mar, Indemnitees, and others, now pending in the United
States District Court for the District of Nevada, Case Number CV-S-00-1406-JCM
(the "Action").
WHEREAS, a judgment was entered in the Action on April 11, 2003, in the
amount of $5,047,815.21, plus interest from March 26, 2003, against Del Mar and
Indemnitees, jointly and severally (the "Judgment").
WHEREAS, Indemnitees have demanded that they be indemnified by Del Mar for
claims, liabilities, and costs arising out of or connected with the Action, and,
to compromise the disputes between Indemnitees and Del Mar arising out of the
events underlying the Action, Del Mar is willing to indemnify Indemnitees,
subject to the terms and conditions of this Agreement.
WHEREAS, due to the amount of the Judgment, Indemnitees have required Del
Mar to obtain the guaranty by its shareholder of Del Mar's obligations under
this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the
covenants contained herein, Del Mar and Indemnitees hereby agree as follows:
1. Indemnification by Del Mar. Del Mar shall indemnify, defend and hold
Indemnitees, and each of them, harmless from and against, and reimburse
Indemnitees for, any and all claims, Obligations, liabilities, losses, damages,
fines, penalties, actions, suits, settlements, judgments, costs and expenses
(including reasonable attorneys' fees) of whatever kind or nature, whether or
not well founded, meritorious or unmeritorious, demanded, asserted or claimed
against Indemnitee (collectively, "Claims") in any way relating to, or arising
out of or in connection with the Action, to the fullest extent permitted by
California law.
2. Selection of Counsel. In the event Del Mar shall be obligated under
Section 1 hereof to pay the expenses of any proceeding against Indemnitees, Del
Mar shall be entitled to assume the defense of such proceeding upon the delivery
to
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Indemnitees of written notice of Del Mar's election so to do. After delivery of
such notice and the retention of such counsel by Del Mar, Del Mar will be
responsible for payment of counsel's fees and court costs but will not be liable
to Indemnitees under this Agreement for any fees or court costs of counsel
incurred by counsel retained by Indemnitees with respect to the same proceeding;
provided, however, that: (a) Indemnitees shall have the right to employ their
counsel in any such proceeding at Indemnitees' expense; and (b) if (i) Del Mar
shall have reasonably concluded that there may be a conflict of interest between
Del Mar and Indemnitees in the conduct of any such defense or (ii) Del Mar has
not, in fact, have employed counsel to assume the defense of such proceeding,
then the fees and expenses of Indemnitees' counsel shall be at the expense of
Del Mar.
3. Representations of Indemnitees. To induce Del Mar to enter into this
Agreement, Indemnitees each hereby represent and warrant to Del Mar that they
reasonably believed that their actions in connection with the facts and
circumstances that are being litigated in the Action were at all times in good
faith with respect to such facts and circumstances.
4. Advancement of Expenses; Undertakinq of Indemnitees. Del Mar hereby
agrees to advance expenses incurred or to be incurred by Indemnitees that would
be covered by this Agreement, in advance of any final disposition of the Action
on the merits or in settlement. In consideration of Del Mar's agreement to
advance expenses in this Section, Indemnitees hereby agree to reimburse Del Mar
if they are ultimately found by a decision of a court of competent jurisdiction
not to be entitled to reimbursement for their expenses under California law or
under this Agreement.
5. Partial Indemnity. If Indemnitee is entitled to partial, but not
complete indemnification under this Agreement, Del Mar shall nevertheless
indemnify Indemnitees for the portion of the Claims to which Indemnitees is
entitled to indemnity hereunder.
6. Subrogation of Del Mar. Upon payment of any Claim by Del Mar pursuant
to Section 1 of this Agreement, Del Mar, without any further action, shall be
subrogated to any and all claims that Indemnitees may have relating thereto, and
Indemnitees shall cooperate with Del Mar and give such further assurances as are
necessary or advisable to enable Del Mar vigorously to pursue such claims.
7. Successors and Assigns. This Agreement shall inure to the benefit of
the successors and assigns of Indemnitees. This Agreement is binding upon Del
Mar and its successors and assigns.
8. Headings. The section headings in this Agreement are for the
convenience of reference only and shall not affect the meaning or construction
of any provision hereof.
9. Counterparts. This Agreement may be executed in any number of
counterparts, and each counterpart shall be deemed an original, but all such
separate counterparts together shall constitute only one and the same
instrument.
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10. Severability. Any provision of this Agreement which is held to be
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof or affecting the validity or
enforceability of such provision in any other jurisdiction.
11. Waiver. Failure by any party at any time to require the other party's
performance of any obligation under this Agreement shall not affect its right to
require performance of that obligation. Any waiver of any breach of any
provision of this Agreement shall not be construed as a waiver of any continuing
or succeeding breach of such provision, a waiver or modification of the
provision itself, or a waiver or modification of any right under this Agreement.
No waiver shall be binding unless executed in writing by the party making the
waiver.
12. Modifications. No modification, amendment or supplement to this
Agreement shall be effective for any purpose unless in writing and signed by
each party, and then such modification, amendment or supplement shall be
effective only in the specific instances and the specific purposes for which
given.
13. Legal Fees and Costs. If any legal action or other proceeding is
commenced to enforce this Agreement, the successful or prevailing party will be
entitled to recover its reasonable attorneys' fees and other costs incurred in
any such action or proceeding, in addition to any other relief to which it may
be entitled.
14. Entire Agreement. This Agreement constitutes the entire agreement
between the parties pertaining to the subject matter of this Agreement, and
supersedes all prior and contemporaneous agreements, representations, and
understandings of the parties, No party is relying upon any warranties,
representations, definitions, or inducements not set forth in this Agreement.
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IN WITNESS WHEREOF, Del Mar and Indemnitees have caused this Agreement to
be duly executed and delivered as of the date first written above.
DEL MAR MORTGAGE, INC., a Nevada
corporation
By:
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Name: Xxxxxxx Xxxxxxx
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Title: President
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VESTIN GROUP, INC., a Delaware
corporation
By:
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Name: Xxxxxxx Xxxxxxx
----------------------------
Title: CEO
----------------------------
VESTIN MORTGAGE, INC., a Nevada
corporation
By:
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Name: Xxxxxxx Xxxxxxx
----------------------------
Title: Director
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