Exhibit 10.2
ACKNOWLEDGMENT AND INDEMNIFICATION AGREEMENT
ACKNOWLEDGMENT AND INDEMNIFICATION AGREEMENT, dated as of
April 10, 2004 between and among Xxxxx Xxxxx ("Xxxxx"), Xxxxxx X. Xxxxx
("Xxxxx") Xxxxxxx Xxxxx ("Xxxxx"), Xxxxx X. Xxx ("Xxx"), Raceway Ventures, LLC,
a Florida limited liability company ("Ventures"), Xxxxxxx Xxxxxx ("Mercer") and
International Housing Development Group, Corp. ("International" and Cohen,
Danan, Xxx, Ventures Mercer and International collectively the "Indemnitors").
WITNESSETH
WHEREAS, on June 30, 2003, Xxxxx executed a Guarantee (the
"Xxxxx Guarantee") in favor of Vestin with respect to principal and interest
payable under a certain Consolidated Secured Promissory Note dated June 30, 2003
(the "Note")executed by Mid-State Raceway, Inc. ("Raceway") in favor of Vestin;
and
Whereas, in connection with the acquisition by Ventures of all
of the securities (including warrants) of Raceway owned by All Capital LLC
("Capital", an entity owned by Xxxxx), the Indemnitors are required to cause
Vestin to release Xxxxx from any liability under or with respect to the Xxxxx
Guarantee; and
Whereas, Xxxxx is prepared to waive the requirement that he be
released from any liability under or with respect to the Xxxxx Guarantee subject
to and conditioned upon the agreement by the Indemnitors to indemnify and hold
harmless Xxxxx from any loss or liability arising out of or relating to the
execution, delivery and/or performance by Xxxxx of the Xxxxx Guarantee, and in
connection therewith the execution and delivery by the Indemnitors to Xxxxx of
this Acknowledgment and Indemnification Agreement and a modification to that
certain Stock Pledge and Security Agreement between Ventures and Capital of even
date herewith.
NOW THEREFORE, in consideration of the premises, the terms,
covenants and conditions herein contained and the sum of One ($1.00) Dollar and
other good and valuable consideration each to the other in hand paid, the
parties hereto do hereby agree as follows:
1. In order to induce Xxxxx to waive the requirement that he be released
from all liability under or with respect to the Xxxxx Guarantee each of
the Indemnitors does hereby jointly and severally agree to indemnify
and hold harmless Xxxxx from and against any and all costs, expenses,
losses, liabilities, claims and judgements of every kind, nature and
description (including, without limitation, attorneys fees) which may
be incurred by Xxxxx arising out of or relating to the execution,
delivery and/or performance by Xxxxx of the Xxxxx Guarantee and/or the
failure and/or refusal of Raceway to repay, in whole or in part, the
Note.
2. In furtherance and not in limitation of the provisions of Paragraph 1
hereof, each of the Indemnitors does hereby jointly and severally: (a)
acknowledge and confirm that Vestin
shall have the right, in its sole and absolute discretion, to exercise
any or all of its rights against the Indemnitors, or any of them,
arising out of or relating to any and all instruments of guaranty
executed by the any of the Indemnitors in favor Vestin and/or with the
respect to the real and personal property of Raceway securing the Note:
(i) in any order or priority designated by Vestin in its sole and
absolute discretion and (ii) prior to exercising any or all of its
rights against Xxxxx under the Xxxxx Guarantee, or otherwise; (b)
consents to the exercise by Vestin of its discretion and enforcement of
its rights pursuant to the provisions of clause (a) hereof~ and (c)
waives and releases any and all claims, of every kind, nature or
description he or it has, or may have against Vestin, arising out of or
relating to the exercise by Vestin of its discretion and enforcement of
its rights pursuant to the provisions of clause (a) hereof
3. In consideration for and in reliance upon the execution and delivery of
the within Acknowledgment and Indemnification Agreement Xxxxx does
hereby waive the requirement that he be released from all liability
under or with respect to the Xxxxx Guarantee.
3. In order to induce Xxxxx to execute and deliver this Acknowledgment and
Indemnification Agreement each of the Indemnitors does hereby jointly
and severally represent, warrant, covenant and agree (which
representations, warranties, covenants and agreements shall survive the
execution and delivery of this Indemnification Agreement) that:(a) each
of the Indemnitors has the power and authority to execute and deliver
this agreement; (b) the execution and delivery of this agreement does
not violate the constitutional documents of Ventures or International
or any agreement to which any of the Indemnitors is a party or by which
any of them is bound or any law; (c) the execution, delivery and
performance of this agreement has been authorized by the taking of all
required corporate and other action; and (d) upon the execution and
delivery of this agreement by an officer of Ventures and International
and each of the individual Indemnitors, this agreement shall be duly
and properly authorized, executed and delivered by each of the
Indemnitors, respectively, and valid and binding upon each of the
Indemnitors and fully enforceable in accordance with its terms.
4. This agreement sets forth the entire agreement among the parties hereto
with respect to the subject matter herein contained; shall be governed
and construed in accordance with the laws of the State of Nevada;
cannot be altered, amended, modified, terminated or rescinded except by
a writing executed by all of the parties hereto; and shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors, transferees and assigns.
IN WITNESS WHEREOF, the parties hereto have executed this
Acknowledgment and Indemnification Agreement as of the day and year first above
written.
Raceway Ventures, LLC
By: /s/ Xxxxxx X. Xxxxx
--------------------
International Housing Development Group, Corp.
By: /s/ Xxxxxxx Xxxxxx
--------------------
/s/ Xxxxxx X. Xxxxx, Individually
/s/ Xxxxxxx Xxxxx, Individually
/s/ Xxxxx X. Xxx, Individually
/s/ Xxxxxxx Xxxxxx, Individually
All Capital, LLC
By: /s/ Xxxxx Xxxxx
