Exhibit 6.2
FIRST AMENDMENT TO AGREEMENT TO TRANSFER ASSETS
This First Amendment to Agreement to Transfer Assets (the "First
Amendment") is entered into as of this 16th day of October, 2001, by and among
ProShot Golf, Inc. ("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"), with reference to the following facts and circumstances:
RECITALS
A. ProShot, Inforetech, the Guarantors and Xxxxxx entered into that certain
Agreement to Transfer Assets dated as of September 21, 2001 (the
"Original Agreement"), pursuant to which, among other things, ProShot
agreed to cooperate in the transfer of certain of its assets encumbered
by a lien in favor of the Bank (as defined in the Original Agreement), on
the terms and conditions set forth therein; and
B. ProShot, Inforetech, the Guarantors and Xxxxxx desire to modify the First
Amendment as set forth hereinbelow.
NOW, THEREFORE, in consideration of the foregoing, and other valuable
consideration, the parties hereto hereby agree as follows:
AGREEMENT
1. Except as otherwise defined in this First Amendment, capitalized
terms used herein shall have the meanings ascribed to such terms in
the Original Agreement. From and after the date hereof, all
references in the Original Agreement to that agreement shall be
deemed to be references to the Original Agreement as modified by this
First Amendment.
2. Paragraphs 3 and 4 of the Original Agreement are hereby deleted in
their entirety and the following is substituted in their place:
3. On or before December 31, 2001, Xxxxxx shall pay to Guarantors
an amount equal to the amount (the "Payroll Tax Amount") with
respect to which the Guarantors present evidence of payment to
Xxxxxx on or before December 31, 2001 of any and all of the
following: delinquent payroll taxes through August 31, 2001 for
the employees of ProShot located in the San Juan Capistrano,
California office, together with interest and penalties, if
applicable, and any and all costs and expenses relating to the
reopening and rerunning of the payroll for such employees (such
taxes are currently estimated to be $62,626.00, excluding
interest and penalties, and the cost of reopening and rerunning
such payroll is currently estimated to be $2000.00). The Payroll
Tax Amount owed by Xxxxxx to the Guarantors shall be reduced on a
dollar for dollar basis by the amount of any sales and property
taxes owed by ProShot for the period prior to the date hereof
that Xxxxxx has actually paid and provided that Xxxxxx has
presented satisfactory evidence of such payment or payments to
the Guarantors on or before December 31, 2001.
4. Provided that (a) there is no default by Inforetech or Xxxxxx
(or any party related to Inforetech or Xxxxxx) under this
agreement, and (b) the possession of all assets of ProShot is
transferred expeditiously as contemplated by that certain
Collateral Management Agreement of even date herewith, by and
among ProShot, ProShot Investors, LLC and the Bank, with the full
cooperation of ProShot, Inforetech and Xxxxxx, and (c) a
foreclosure sale of the Bank's security interest in the assets of
ProShot (the "Assets") has been successfully consummated without
delay caused by or resulting from any action or inaction on the
part of ProShot or Inforetech or any officers or directors
thereof or the voluntary or involuntary bankruptcy of ProShot,
and (d) Xxxxxx has fulfilled all obligations required of Xxxxxx
pursuant to paragraph 3 above on or before December 31, 2001, 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 possession of or
title to the 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,
restricted Class A Common Shares of Inforetech Wireless
Technology, Inc. (WYRE) at 80% of the five (5) day average
closing price for the Inforetech's common stock for the five (5)
days immediately preceding the date of the release of Inforetech
and Xxxxxx.
3. Except as expressly modified hereby, the Original Agreement shall
remain in full force and effect, without modification or impairment.
4. This First Amendment may be executed in counterparts and by facsimile
signature and shall be effective upon the execution hereof by all
parties hereto.
5. Xxxxxx X. Xxxxxx, Xx., by his signature hereon, certifies and
warrants that he has full approval and authority to enter into this
First Amendment 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 First Amendment on behalf of the
Guarantors.
6. This First Amendment shall be governed by California Law. Except as
expressly stated to the contrary herein or in the Original Agreement
as modified hereby, nothing contained in this First Amendment 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.
IN WITNESS WHEREOF, the parties hereto have entered into this First
Amendment as of the date first above written.
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.
