Exhibit 6.1
AGREEMENT TO TRANSFER ASSETS
Revised September 21, 2001
An agreement, dated as of the 21st day of September, 2001, for the orderly
transfer of all assets of ProShot Golf, Inc. ("ProShot") and other related
matters is hereby entered into between ProShot, Inforetech Wireless Technology,
Inc. ("Inforetech"), the Guarantors ("Guarantors") as that term is defined in
that certain AMENDED AND RESTATED FINANCIAL AGREEMENT dated MAY 19, 2000 between
ProShot and the Guarantors (the "Financial Agreement"), and Xxxxxx X. Xxxxxx,
Xx. ("Xxxxxx").
WHEREAS, ProShot is in default under the terms of that certain Business Loan
Agreement between ProShot and First Bank and Trust of Newport Beach ("Bank")
dated November 17, 1998 as amended ("Loan Agreement"), and
WHEREAS, the Guarantors have guaranteed the obligations of ProShot under the
terms of the Loan Agreement, and
WHEREAS, the Bank has advised ProShot and the Guarantors of its intention to
declare an event of default under the terms of the Loan Agreement and to
exercise the remedies available to the Bank under the terms of the Loan
Agreement, related loan documents (including but not limited to a Commercial
Security Agreement given by ProShot to the Bank ("Security Agreement")) and the
guaranties of the obligations of ProShot to the Bank provided by the Guarantors,
and
WHEREAS, ProShot is in default under the Financial Agreement as amended and the
related Security Agreement as amended (Guarantor Security Agreement), and
WHEREAS, ProShot and Inforetech are in default under the AMENDMENT TO THE
AMENDED AND RESTATED FINANCIAL AGREEMENT dated APRIL 24, 2001 (the "Amendment"),
and
WHEREAS, Inforetech and ProShot have received written notice from the Guarantors
on numerous occasions of such defaults, the latest notice having been sent on
August 2, 2001, and Inforetech has, as of this date, failed to cure such
defaults, and
WHEREAS, the Guarantors have received numerous notices of defaults on the part
of Inforetech regarding the guaranteed indebtedness as defined in the Financial
Agreement, and
WHEREAS, Inforetech has notified the Guarantors that it will be unable to cure
the defaults regarding the guaranteed indebtedness, and
WHEREAS, with respect to ProShot's indebtedness to the Bank, the Guarantors have
been forced to make payments of past due interest and late fees in the amount of
$92,932.81, and
WHEREAS, Inforetech has notified the Guarantors that unless steps are taken to
protect the assets currently held in ProShot, the value of such assets will be
significantly diminished because of Inforetech's inability to pay payroll and
other required payments, and
WHEREAS, Inforetech has notified the Guarantors that unless there is an
agreement and plan of action with the Guarantors, that Inforetech intends to
close the doors of ProShot on September 21, 2001,
NOW THEREFORE, IT IS HEREBY AGREED between Inforetech, the Guarantors and Xxxxxx
that the following plan of action will be implemented:
1. ProShot hereby agrees (and Inforetech agrees to immediately take all steps
necessary to cause ProShot to comply with such agreement) to expeditiously
transfer any and all of ProShot's assets constituting collateral for the
obligations of ProShot under the Loan Agreement and all proceeds thereof to
the Bank pursuant to the terms of the Security Agreement. ProShot,
Inforetech and Xxxxxx shall cooperate fully with the Bank and the Bank's
legal counsel to execute whatever documents are necessary to assign and/or
transfer such collateral to the Bank and to permit the Bank to dispose of
such assets in accordance with the provisions of the Uniform Commercial Code
and other applicable law. To the extent any ProShot Assets which constitute
collateral under the Guarantor Security Agreement are not also collateral
under the terms of the Security Agreement, ProShot hereby agrees (and
Inforetech agrees to immediately take all steps necessary to cause ProShot
to comply with such agreement) to expeditiously transfer any and all of such
additional ProShot assets constituting collateral for the obligations of
ProShot under the Financing Agreement and all proceeds thereof to the Bank
for the benefit of the Guarantors pursuant to the terms of the Guarantor
Security Agreement. Inforetech and Xxxxxx shall cooperate fully with the
Guarantors and the Guarantors' legal counsel to execute whatever documents
are necessary to assign and/or transfer such additional collateral to the
Guarantor's and to permit the Guarantors' to dispose of such assets in
accordance with the provisions of the Uniform Commercial Code and other
applicable law.
2. The Guarantors may advance funds on their behalf and on behalf of the Bank
for the specific purposes of protecting the value of the collateral
described in the preceding paragraph which funds may include amounts
necessary for paying payrolls for the employees of ProShot located in the
San Juan Capistrano, California office, together with associated payroll
taxes, employee expenses, employee health, dental and disability insurance.
Except as provided below, Xxxxxx and Inforetech shall have no responsibility
for advancing any further payroll and related expenses to ProShot or
ProShot's employees.
3. Xxxxxx will deposit in the trust account of Loeb & Loeb LLP, Attorneys at
Law, an amount sufficient to pay all delinquent payroll taxes through August
31, 2001 for the employees of ProShot located in the San Juan Capistrano,
California office (currently estimated to be $62,626.00, plus interest and
penalties if applicable). Such amount will be released and paid to the
appropriate jurisdictional agencies upon the
consummation of the transfer of the ProShot assets as described above and
the releases of Inforetech and Xxxxxx as described below.
4. Provided that there is no default by Inforetech or Xxxxxx (or any party
related to Inforetech or Xxxxxx) under this agreement and all such assets of
ProShot are transferred expeditiously as contemplated hereby with the full
cooperation of ProShot, Inforetech and Xxxxxx, then upon the actual transfer
of such assets and the concurrent payment of delinquent payroll taxes from
the funds deposited by Xxxxxx in the trust account of Loeb & Loeb, Attorneys
at Law, the Guarantors hereby agree to release Inforetech and Xxxxxx from
certain financial obligations and convert such obligations to stock in
Inforetech; provided, however, that such release shall be of no force or
effect should the transfer of assets (or any later transfer of title
thereto) be set aside, reversed or otherwise successfully attacked for any
reason by ProShot, Inforetech, Xxxxxx, or any of their respective successors
or assigns, or any third party (other than the Guarantors or the Bank). The
obligations to be released and converted are the obligation of Inforetech
under the Amendment to indemnify the Guarantors for any losses or payments
under the Loan agreement with the Bank up to $1,000,000 and the personal
obligation of Xxxxxx from his personal guarantee of one-sixth of the total
of Letters of Credit outstanding in favor of The Associates and Xxxxxxx
Navigation, Ltd. currently totaling $708,000. Upon such releases in the
total amount of $1,118,000, Inforetech shall issue to the Guarantors, or
their designees, 11,180,000 shares of restricted Inforetech Common Stock.
5. Upon the satisfaction of all other provisions of this agreement, the
Guarantors agree to use their best efforts to cause the Bank or any party
acquiring the former assets of ProShot to issue a non-exclusive license to
Inforetech for use of the GAT patent (a current asset of ProShot) during the
life of the GAT patent, on terms and conditions no less favorable than any
other party to which such a license is issued.
6. ProShot, Xxxxxx and Inforetech hereby acknowledge the defaults of ProShot
under the terms of the Loan Agreement and the Financing Agreement and hereby
waive any and all of the following rights under the Uniform Commercial Code
or any agreement between any such party and either the Bank or the
Guarantors, both with respect to disposition of the collateral securing
ProShot's obligations to the Bank and the Guarantors: the right to receive
notice of disposition of collateral under Section 9-611 of the Uniform
Commercial Code or any such agreement, the right to require mandatory
disposition of collateral under Section 9-620(e) of the Uniform Commercial
Code or any such agreement, and the right to redeem collateral under Section
9-623 of the Uniform Commercial Code or any such agreement.
7. Guarantors will use their best efforts (without any obligation to pay money
therefor or to incur any liability therefor) to obtain from Bank a release
of ProShot from its obligations to the Bank upon the consummation of
transfer of title of all assets of ProShot to Bank. Guarantors will waive
subrogation rights against ProShot with respect to any liabilities the
Guarantors may have to the Bank, provided that such release shall be void
and of no force or effect if the transfers pursuant to this agreement or the
transfers of title to or for the benefit of the Bank are set aside, reversed
or otherwise successfully attacked for any reason by ProShot, Inforetech,
Xxxxxx, or any of their respective successors or assigns, or any third party
(other than the Guarantors or the Bank).
While it is anticipated that this agreement may be superceded by a detailed and
more definitive agreement, the terms of this agreement are in full force and
effect and fully binding upon the parties until and unless superceded by an
amendment or agreement executed by all parties hereto.
This agreement shall be governed by California Law. Except as expressly stated
to the contrary, nothing contained in this agreement shall in any way affect or
diminish any rights of the Guarantors or the Bank under any other agreement
either has with Inforetech, ProShot or Xxxxxx and shall not alter or limit any
remedies available to the Guarantors or the Bank under any such agreements.
Xxxxxx X. Xxxxxx, Xx., by his signature hereon, certifies and warrants that he
has full approval and authority to enter into this agreement on behalf of
Inforetech. Xxxxx X. Xxxx, Xx., by his signature hereon, certifies and warrants
that he has full approval and authority to enter into this agreement on behalf
of the Guarantors.
This Agreement may be executed in counterparts and by facsimile signature and
shall be effective upon the execution hereof by all parties hereto.
[Signature page for Agreement to Transfer Assets]
AGREED:
Inforetech Wireless Technology, Inc.
By:___________________________
Xxxxxx X. Xxxxxx, Xx.
Chief Executive Officer
____________________________________
Xxxxxx X. Xxxxxx, Xx., an individual
ProShot Golf, Inc.
By:_________________________________
Its ____________________________
The Guarantors
By:_________________________________
Xxxxx X. Xxxx, Xx.
