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EXHIBIT 2
SECOND AMENDMENT TO
LOAN AND SECURITY AGREEMENT
THIS SECOND AMENDMENT TO LOAN AND SECURITY AGREEMENT (this "Amendment")
is made and dated as of November 1, 2000 among ▇▇▇ ENTERPRISES, INCORPORATED, a
Delaware corporation (the "Lender"), ▇▇▇▇▇▇▇▇▇▇.▇▇▇ Corp., a Florida corporation
("CityXpress"), and its wholly-owned subsidiaries Xceedx Technologies Inc.
("Xceedx") and WelcomeTo Search Engine Inc. ("WelcomeTo"), corporations
organized under the laws of the Province of British Columbia, Canada
(CityXpress, Xceedx and Welcome to are collectively, the "Borrowers"), and
amends that certain Loan and Security Agreement dated as of August 16, 2000,
among the Borrowers and the Lenders (the "Agreement"). All terms used herein
shall have the same meanings as in the Agreement unless otherwise defined
herein. All references to the Agreement shall mean the Agreement as hereby
amended.
WHEREAS, parties hereto have entered into the Agreement, which
provides, among other things, for the Lender to extend credit to Borrowers in
accordance with the terms of the Notes; and
WHEREAS, the parties hereto desire to amend the Agreement in certain
respects as hereinafter set forth;
NOW THEREFORE, for good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties hereby agree as follows:
1. AMENDMENTS. Effective as of November 1, 2000, Agreement shall
be amended in accordance with Sections 1.1 and 1.5.
1.1 Recitals. Recital A of the Agreement is hereby
amended to state in its entirety as follows:
"Recital A. Lender shall advance to Borrowers three separate
advances consisting of: (x) an advance on August 17, 2000 in
the amount of $125,000 in accordance with the terms of this
Agreement and Promissory Note attached hereto as EXHIBIT 1;
(y) an advance as of August 28, 2000 in the amount of $125,000
in accordance with the terms of this Agreement and Promissory
Note attached hereto as EXHIBIT 2; (z) an advance on September
19, 2000 in the amount of $40,000 in accordance with the terms
of this Agreement and Promissory Note attached hereto as
EXHIBIT 2.1 (EXHIBITS 1, 2, and 2.1 are collectively the
"Notes"). Lender is purchasing from CityXpress $250,000 Series
A-F Floating Rate Subordinated Convertible Debentures,
Authorized Aggregate Issue $1,500,000, Convertible for Common
Stock of the Borrowers (the "Debenture" or "Debentures"),
which Debentures are convertible into shares of Common Stock,
par value $.001 per share, of CityXpress (the "Common Stock"),
as contemplated by that certain Investment Agreement dated as
of November 1, 2000 (the "Investment Agreement") by and
between CityXpress and the Lender, and attached hereto as
EXHIBIT 3."
1.2 Terms. Section 2.1 of the Agreement is hereby amended
to state in its entirety as follows:
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"1.2 Terms. Lender shall advance to Borrowers three separate
advances (the "Loans") consisting of: (x) an advance on August
17, 2000 in the amount of $125,000; (y) advance as of August
28, 2000 in the amount of $125,000; (z) an advance on
September 19, 2000 in the amount of $40,000. The Notes shall
be due and payable on October 31, 2002."
1.3 Defaults. Section 9.1.1(m) is hereby added to state
in its entirety as follows:
"9.1.1(m) Borrowers or any of them fail to pay the principal
or any interest or other amount due under the Debentures or
Investment Agreement; or"
1.4 Defaults. Section 9.1.1(n) is hereby added to state
in its entirety as follows:
"9.1.1(n) Borrowers or any of them fail or neglect to perform,
keep or observe any of their covenants, conditions, agreements
or suffer a Default or Event of Default (or words of similar
import) under the Investment Agreement, Debentures, or
Registration Rights Agreement by and between Lender and
CityXpress dated as of November 1, 2000."
1.5 Exhibits.
"Exhibits 1 and 2 are hereby deleted, and the Notes are added
to the Agreement as EXHIBITS 1, 2 and 2.1 in substituted
therefor. EXHIBIT 3 of the Agreement captioned "Common Stock
Subscription Warrant" is hereby deleted and the Investment
Agreement is substituted therefor."
2. CONDITION PRECEDENT. This Agreement shall become effective
when each of the conditions precedent set forth in this Section 2 shall have
been satisfied, and notice thereof shall have been given by the Lender to the
Borrowers.
2.1 Receipt of Documents. The Lender shall have received
all of the following documents duly executed, dated the date hereof or such
other date as shall be acceptable to the Lender, and in form and substance
satisfactory to the Lender:
(a) Amendment. This Amendment, duly executed by
the Borrowers and the Lender.
(b) Notes. The Notes, duly executed by the
Borrowers.
2.2 Compliance with Warranties, No Default, etc. Both
before and after giving effect to the effectiveness of this Amendment, the
following statements by the Borrowers shall be true and correct (and the
Borrowers, by its execution of this Agreement, hereby represent and warrant unto
the Lender that such statements are true and correct as at such times):
(a) the representations and warranties set forth
in Section 4 of the Agreement shall be true
and correct with the same effect as if then
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made (unless stated to relate solely to an
earlier date, in which case such
representations and warranties shall be true
and correct as of such earlier date); and
(b) no Event of Default or unmatured Event of
Default shall have then occurred and be
continuing.
3. REPRESENTATIONS AND WARRANTIES. To induce the Lender to
entered into this Agreement, the Borrowers hereby represents and warrants to the
Lender as follows:
3.1 Due Authorization, Non-Contravention, etc. The
execution, delivery and performance by the Borrowers of this Agreement are
within the Borrowers' corporate powers, have been duly authorized by all
necessary corporate action, and do not:
(a) contravene the Borrowers' charter or
by-laws; or
(b) contravene any contractual restriction, law
or governmental regulation or court decree
or order binding on or affecting the
Borrowers.
3.2 Government Approval, Regulation, etc. No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body or other Person is required for
the due execution, delivery or performance by the Borrowers of this Amendment.
3.3 Validity, etc. This Agreement constitutes the legal,
valid and building obligation of the Borrowers enforceable in accordance with
its terms and each document executed pursuant hereto by the Borrowers will, on
the due execution and delivery thereof by the Borrowers, be the legal, valid and
binding obligation of the Borrowers.
4. MISCELLANEOUS.
4.1 Continuing Effectiveness, etc. This Agreement shall
be deemed to be an amendment to the Agreement, and the Agreement, as amended
hereby, shall remain in full force and effect and is hereby ratified, approved
and confirmed in each and every respect. After the effectiveness of this
Amendment in accordance with its terms, all references to the Agreement in any
other document, instrument, agreement or writing shall be deemed to refer to the
Agreement as amended hereby.
4.2 Severability. Any provision of this Amendment which
is prohibited or unenforceable in any jurisdiction shall, as to such provision
and such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions of this Amendment
or affecting the validity or enforceability of such provision in any other
jurisdiction.
4.3 Headings. The various headings of this Amendment are
inserted for convenience only and shall not affect the meaning or interpretation
of this Amendment or any provisions hereof.
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4.4 Execution in Counterparts. This Amendment may be
executed by the parties hereto in several counterparts, each of which shall be
deemed to be an original and all of which shall constitute together but one and
the same agreement.
4.5 Jurisdiction. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED UNDER THE LAWS OF THE STATE OF IOWA.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be duly executed and delivered as of the date first written above.
BORROWERS: LENDER:
▇▇▇▇▇▇▇▇▇▇.▇▇▇ CORP. ▇▇▇ ENTERPRISES, INCORPORATED
/s/ ▇▇▇▇ ▇▇▇▇▇▇
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By: ▇▇▇▇ ▇. ▇▇▇▇▇▇ By: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
------------------------- Title: Vice President-Interactive Media
Title: President & CEO
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XCEEDX TECHNOLOGIES INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇
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By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: President & CEO
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WELCOME TO SEARCH ENGINE INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇
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By: ▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: President & CEO
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EXHIBIT 1
PROMISSORY NOTE DATED AUGUST 17, 2000
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EXHIBIT 2
PROMISSORY NOTE DATED AS OF AUGUST 28, 2000
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EXHIBIT 2.1
PROMISSORY NOTE DATED SEPTEMBER 19, 2000
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EXHIBIT 3
INVESTMENT AGREEMENT