EXHIBIT 10-2
AGREEMENT FOR SALE AND TRANSFER OF
PROMISSORY NOTE
THIS AGREEMENT FOR SALE AND TRANSFER OF PROMISSORY NOTE is entered into
as of September 29, 1998, by and between ILX Resorts Incorporated, an Arizona
corporation ("ILX") and Martori Enterprises Incorporated, an Arizona corporation
("MEI").
RECITALS:
A. MEI desires to sell to ILX, and ILX desires to purchase from MEI,
all of MEI's interest in that certain Installment Promissory Note, in the amount
of $1,300,000.00, dated August 8, 1997 (the "Note") a true copy of which is
attached to this Agreement, subject to the terms and conditions set forth in
this Agreement.
AGREEMENTS:
NOW, THEREFORE, for good and valuable consideration, the sufficiency
and receipt of which are hereby acknowledged, the parties hereto agree as
follows:
1. Transfer of MEI Interest. MEI hereby sells to ILX and ILX hereby
purchases from MEI, all of MEI's right, title and interest in, to, and under the
Note.
2. Consideration. In consideration for MEI's transfer of the Note, ILX
shall:
a. Pay to MEI One Hundred Thousand Dollars ($100,000.00)
on the date of this Agreement;
b. Pay to MEI Seven Hundred Eleven Thousand Four Hundred
Seventy-Eight and 78/xx ($711,478.78) on or before
October 20, 1998.
3. Representations and Warranties of MEI. MEI represents and warrants
to ILX as follows:
3.1 Ownership of the Note. MEI has, or will have on or before
October 31, 1998, good and marketable title to the Note free of any lien,
security interest, lease, or encumbrance whatsoever. Upon delivery of
appropriate instruments evidencing transfer of the Note, ILX will own all right,
title and interest in and to the Note free and clear of any liens, encumbrances,
equities or claims.
3.2 Capacity. MEI has full power and authority to enter into
this Agreement and to carry out its obligations hereunder. This Agreement
constitutes a valid and legally binding obligation of MEI. To MEI's actual
knowledge, neither the execution and delivery of this Agreement nor the
consummation of the transactions contemplated hereby nor compliance by MEI with
any of the provisions hereof will (i) violate, or conflict with, or result in a
breach of
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any provision of, or constitute a default (or an event which, with the giving of
notice or the lapse of time or both, would constitute a default) under, or
result in the termination of, or accelerate the performance required by, or
result in the creation of any lien, security interest, charge or encumbrance
upon the Note, under any term, condition or provision of any agreement or other
instrument or obligation to which MEI is bound, or (ii) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to the Note.
3.3 No Breach of Statute, Decree or Order. To MEI's actual
knowledge no material claim, action or proceeding is pending or threatened
against MEI with respect to a default under, or a violation or breach in any
material respect of, any applicable statute, law, ordinance, decree, order, rule
or regulation of any governmental body, nor, to MEI's actual knowledge, is there
any basis for such a claim, action or proceeding. To MEI's actual knowledge the
consummation of this Agreement and the sale of the Note contemplated hereby will
not constitute or result in any such default, breach or violation.
4. Miscellaneous
4.1 No Broker. Each Party represents and warrants to the other
that no person has acted in the capacity of broker or finder on their behalf to
bring about the negotiation or consummation of this Agreement. Each party shall
indemnify and hold harmless each other against every claim or liability asserted
against any of them by any person acting or claiming to act as a broker or
finder on behalf of each other.
4.2 Notices. Any notice or other communication required or
permitted hereunder shall be sufficiently given if delivered in person or sent
by registered mail, postage prepaid, addressed to the appropriate party as
follows:
In the case of MEI:
Joseph P. and Edward J. Martori
2111 East Highland, Suite 210
Phoenix, Arizona 85016
In the case of ILX:
ILX Resorts Incorporated
2111 East Highland, Suite 210
Phoenix, Arizona 85016
Attention: Nancy J. Stone, President
or such substituted address as any party (or other party to whom a copy is to be
sent) shall have given notice to the other in writing.
4.3 Amendment. This Agreement may be amended or modified in
whole or in part only by an agreement in writing executed in the same manner as
this Agreement and making specific reference hereto.
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4.4 Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall constitute an original, but all of which
taken together shall constitute one instrument.
4.5 Binding on Successors and Assigns. This Agreement shall be
binding upon, inure to the benefit of and be enforceable by and against the
parties hereto and their respective successors, assigns, executors and personal
representatives.
4.6 Severability. If any one or more of the provisions
contained in this Agreement or any application thereof shall be invalid, illegal
or unenforceable in any respect, the validity, legality or enforceability of the
remaining provisions of this Agreement and any other application thereof shall
not in any way be affected or impaired thereby; provided, however, that to the
extent permitted by applicable law, any invalid, illegal or nonenforceable
provision may be considered for the purpose of determining the intent of the
parties in connection with the other provisions of this Agreement.
4.7 Waivers. The parties may, solely by written agreement, (a)
extend the time for the performance of any of the obligations or other acts of
the parties hereto, (b) waive any inaccuracy in any of the representations
contained in this Agreement or in any document delivered pursuant to this
Agreement, (c) waive compliance with, or modify, any covenant or condition
contained in this Agreement, and (d) waive or modify performance of any of the
obligations of any of the parties hereto; provided, that no such waiver or
failure to insist upon strict compliance with such obligation, covenant,
agreement or condition shall operate as a waiver of, or an estoppel with respect
to, any subsequent or other matter or failure.
4.8 Headings. The headings of the Articles and Sections of
this Agreement are inserted for convenience only and in no way alter, amend,
modify, limit or restrict the contractual obligations of the parties.
4.9 Documentation Expenses. Each party shall share equally in
the costs and legal fees associated with the documentation of the transactions
contemplated hereby.
4.10 Expenses. Except to the extent provided herein to the
contrary, each party hereto shall bear its own expenses and no party shall be
responsible for any debt, liability or obligation, cost, expense or fee of any
nature whatsoever (including, without limitation, any and all legal, accounting
and other professional fees and expenses) incurred by any other party in
connection with the negotiation, execution or performance of this Agreement.
4.11 Attorney's Fees in Dispute. Notwithstanding the
foregoing, should either party hereto institute any action or proceeding against
the other to enforce any provision hereof, for injunction or for damages by
reason of any alleged breach of any provision of this Agreement or for a
declaration of such party's rights or obligations hereunder, or any judicial
remedy, the prevailing party shall be entitled to receive from the losing party
such amount as the court or arbiter may adjudge to be reasonable for attorneys'
fees, costs and expenses of the prevailing party. Should relief be awarded to
both parties, such attorneys' fees, costs and expenses shall be
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adjudged against the parties in any manner the court or arbiter shall deem
equitable.
4.12 Representation by Counsel. Each party acknowledges that
it has had the opportunity to consult with, and has consulted with, independent
counsel regarding this Agreement and the transactions contemplated hereby, and
that the fact that this Agreement or other document or instrument that is part
of this transaction was prepared by counsel for any one or more of them shall
not affect the interpretation of this Agreement, or such other document or
instrument.
4.13 Entire Agreement; Law Governing. All prior negotiations
and agreements between the parties hereto are superseded by this Agreement, and
there is no representation, warranty, understanding or agreement other than
those expressly set forth herein or in an Exhibit or Schedule delivered pursuant
hereto, except as modified in writing concurrently herewith or subsequent
hereto. This Agreement shall be governed by and construed and interpreted
according to the laws of the State of Arizona.
4.15 Further Assurances. After the Closing hereunder, each of
the parties hereto shall execute, acknowledge and deliver or cause to be
executed, acknowledged and delivered such instruments and documents and take
such action as may be necessary or advisable to carry out its obligations under
this Agreement and under any schedule, exhibit, document, agreement, certificate
or other instrument delivered pursuant hereto, and with respect to any filing or
other documentation required in connection with the Note.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement to be effective as of the date set forth above.
ILX RESORTS INCORPORATED MARTORI ENTERPRISES INCORPORATED
By: /s/ Nancy J. Stone By: /s/ Joseph P. Martori
------------------------------- -------------------------------
Nancy J. Stone Joseph P. Martori
Its: President Its: Chairman
------------------------------ ------------------------------
President Chairman
STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this 29th day of
September 1998, by Joseph P. Martori, as Chairman of Martori Enterprises
Incorporated, on behalf of the corporation.
Stephanie D. Castronova
--------------------------------------
Notary Public
My Commission Expires:
March 20, 2002
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STATE OF ARIZONA )
) ss.
County of Maricopa )
The foregoing instrument was acknowledged before me this 29th day of
September 1998, by Nancy J. Stone, as President of ILX Resorts Incorporated, on
behalf of the corporation.
Stephanie D. Castronova
--------------------------------------
Notary Public
My Commission Expires:
March 20, 2002
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