eB2B Commerce, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
February 29, 2000
DynamicWeb Enterprises, Inc.
000 Xxxxx 00 Xxxx
Xxxxxxxx X, Xxxxx 000
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxxxx, Xx., Chief Executive Officer
Re: Amendment No. 2 to Loan Agreement
Ladies and Gentlemen:
The purpose of this letter is to set forth amendments to certain terms
of the Loan Agreement dated November 12, 1999 between eB2B Commerce, Inc.
("eCom") and DynamicWeb Enterprises, Inc. (the "Company"), as amended by
Amendment No. 1 to Loan Agreement dated November 19, 1999, and as amended hereby
(the "Loan Agreement"). Unless otherwise defined herein, capitalized terms used
in this Amendment shall have the meanings given to them in
the Loan Agreement.
1. Maturity Date. It is acknowledged that, pursuant to the Loan Agreement, eCom
has made the First Loan, the Second Loan and the Third Loan, and collectively,
such loans are referred to in the Loan Agreement and herein as the "Interim
Loan." Section 1 of the Loan Agreement is hereby amended to provide that the
"Maturity Date" applicable to the Interim Loan shall be May 12, 1999.
2. Promissory Note. Section 1 of the Loan Agreement is hereby amended to provide
that there shall be one consolidated promissory note evidencing the Interim
Loan, which shall be substantially in the form of the note attached hereto, and
the term "Promissory Note," as used in the Loan Agreement, shall hereafter mean
such consolidated promissory note. Such Promissory Note shall be delivered to
eCom concurrently with the execution of this Amendment, and any other notes
issued in connection with the Loan Agreement shall thereupon be surrendered and
canceled.
3. Remedies. Section 6.1 of the Loan Agreement is hereby amended by adding the
following at the end thereof, as additional Events of Default:
"6.1.7 Break Up Fee. The Company shall default in the event that the Company
is required to pay eCom the sums due pursuant to Section 8.3 of the Merger
Agreement."
"6.1.8 Failure to Obtain Stockholder Approval. The Company shall default in
the event that the Company is unable to obtain the Requisite Company
Stockholder Approval (as defined in the Merger Agreement)."
1
4. Guaranty; Security. Xxxxxx X. Xxxxxxxxxx, Xx. ("Guarantor") hereby
unconditionally guarantees ("Guaranty") the full and prompt payment and
performance when due, of all obligations and liabilities of the Company to eCom
under the Loan Agreement and Promissory Note ("Obligations"). Guarantor agrees
that this Guaranty may be enforced by eCom, after eCom has first made demand
upon or proceeded against the Company. To secure the Guarantor's obligations in
connection with the foregoing Guaranty, Guarantor hereby agrees to deposit
200,000 shares of common stock of the Company owned by the Guarantor ("Escrow
Shares"), along with a stock power executed by the Guarantor, with Xxxxxx
Xxxxxxx Xxxx Xxxxxx & Co., or such other escrow agent reasonably satisfactory to
the parties hereto as soon as practicable hereafter, to be held in accordance
with an escrow agreement to be executed in connection with the execution of this
Amendment ("Escrow Agreement"). Notwithstanding the foregoing it is understood
that Guarantor's personal liability in connection with the foregoing Guaranty
shall be satisfied solely from the Escrow Shares or any proceeds thereof, and
not from any other property or asset of the Guarantor.
5. Remedies. Upon the occurrence of an Event of Default, and the Event of
Default remains as such for a period of ten (10) days after written notice
thereof has been given to the Company by eCom, it is understood that eCom may
elect, at its sole discretion, to pursue one of the following remedies: (i)
pursue its remedies under Section 6.2 or 6.3 of the Loan Agreement, (ii)
exercise its right to convert all or a portion of the outstanding principal and
accrued and unpaid interest on the Interim Loan, as provided in Section 1 of the
Loan Agreement or (iii) direct the escrow agent to deliver all or portion of the
Escrow Shares to eCom, in accordance with the terms of the Escrow Agreement. To
the extent that all or a portion of the Escrow Shares are delivered to eCom, the
value of such shares (as determined in accordance with the terms of the Escrow
Agreement) shall be deemed applied first, to reduce the Obligations of the
Company for any accrued but unpaid interest under the Interim Loan, and second,
to reduce the Obligations of the Company for the outstanding principal amount of
the lnterim Loan.
6. Ratification of Loan Agreement. Except as amended hereby, the terms and
conditions of the Loan Agreement remain in full force and effect in accordance
with their terms.
7. Miscellaneous. This Amendment shall be governed by and construed in
accordance with the laws of the State of New York. This Amendment may be
executed in any number of counterparts and each counterpart shall constitute an
original instrument, but all such separate counterparts shall constitute one and
the same instrument.
THE REMAINDER OF THIS PAGE LEFT INTENTIONALLY BLANK
Very truly yours,
eB2B COMMERCE, INC.
By : /s/ Xxxxxx Xxxxxxx
-----------------------------
Name: Xxxxxx Xxxxxxx
Title: Chief Financial Officer
ACKNOWLEDGED AND AGREED TO:
This 29th day of February, 2000
DYNAMICWEB ENTERPRISES, INC.
By : /s/ Xxxxxx X. Xxxxxxxxxx, Xx.
------------------------------
Name: Xxxxxx X. Xxxxxxxxxx, Xx.
Title: Chief Financial Officer
ACKNOWLEDGED AND AGREED, AS TO SECTION 4 ONLY:
This 29th day of February, 2000
/s/ Xxxxxx X. Xxxxxxxxxx, Xx.
---------------------------------
Xxxxxx X. Xxxxxxxxxx, Xx.
