Exhibit 10.27


 


AMENDED AND RESTATED

DEBT RESTRUCTURING AGREEMENT


 


This Debt
Restructuring Agreement is entered into this 15th day of October
2002 between I-Link Incorporated, a Florida corporation (“I-Link”), Counsel
Corporation (US), a Delaware corporation (“Counsel”), and Counsel Springwell
Communications LLC, a Delaware limited liability company formerly known as
Counsel Communications LLC (“Counsel Springwell”).


 


RECITALS:


 


A.                                   Counsel
Springwell and I-Link entered into a Senior Convertible Loan and Security
Agreement dated as of March 1, 2001 as amended (the “March 1st
Loan Agreement”), pursuant to which Counsel Springwell has advanced to I-Link
the aggregate principal amount of $12,000,000.


 


B.                                     Counsel,
an affiliate of Counsel Springwell, and I-Link entered into a Loan and Security
Agreement dated as of June 6, 2001 (the “June 6th Loan
Agreement”).  The June 6th
Loan Agreement was amended on June 27, 2002 to increase the total
borrowing to $24,306,865.91.


 


C.                                     In
addition to the principal amount outstanding under the June 6th Loan
Agreement, Counsel Springwell has advanced additional amounts to I-Link since
July 25, 2002 (the “Interim Advances”).


 


D.                                    Pursuant
to a Loan and Security Agreement dated as of June 4, 2001 (the “June 4th
Loan Agreement”), Counsel advanced the principal amount of $14,850,000 to
WorldxChange Corp., a Delaware corporation and wholly-owned subsidiary of
I-Link (“WxC”), of which amount $12,350,000 remains outstanding.


 


E.                                      The
Board of directors of I-Link will be meeting in the weeks following the
execution of this Agreement to adopt a new operating plan (the “Operating
Plan”).


 


F.                                      Counsel
Springwell and Counsel Corporation have committed to fund, through long-term
intercompany advances or equity contributions, all capital investment, working
capital or other operational cash requirements of I-Link through April 15, 2003
as set forth in that certain letter to I-Link, dated April 30, 2002 (the “Keep
Well Letter”).


 


G.                                     The
parties previously entered into a Debt Restructuring Agreement dated July 25,
2002 (the “Debt Restructuring Agreement”).


 


I.                                         The
parties wish to amend certain provisions of the Debt Restructuring Agreement.


 


Accordingly,
the parties hereby agree that the Debt Restructuring Agreement is hereby
amended and restated in its entirety to read as follows:


 


1.                                       Closing
Date.  The closing of the
transactions contemplated by this Agreement (the “Closing”) shall take place at
the offices of I-Link, or such other place as the parties may mutually agree,
on or before the third business day (the “Closing Date”) following the day on
which the Proposals (as defined below) are approved by the stockholders of
I-Link and become effective in accordance with the Amended and Restated
Articles of Incorporation of I-Link, as amended through the date of the
Stockholders Meeting (as defined below).


 


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2.                                       Actions
to be taken at the Closing.  The
parties hereby agree that, at the Closing and in exchange for and in
satisfaction of (i) the aggregate principal amount outstanding as of the
Closing Date under the June 6th Loan Agreement, and all accrued and
unpaid interest thereon through the Closing Date, (ii) the outstanding
principal amount of the Interim Advances, together with interest thereon at the
rate of ten percent (10%) per annum from the date of each such advance through
the Closing Date and (iii) the principal amount of additional advances made by
Counsel Springwell to I-Link after the date hereof pursuant to the Keep Well
Letter or the Operating Plan (as defined below), together with interest thereon
at the rate of ten percent (10%) per annum from the date of each such advance
through the Closing Date (the amounts in clauses (i), (ii) and (iii) being
hereinafter referred to as the “Aggregate Amount”) I-Link shall issue to
Counsel Springwell the number of shares of Common Stock equal to the quotient
of (i) the Aggregate Amount, divided by (ii) $0.18864 (the “Effective
Price”).  Counsel represents and
warrants to I-Link that it has not assigned, pledged or otherwise transferred
or encumbered its rights under the June 6th Loan Agreement.


 


3.                                       Commitment
to Provide Additional Funding


 


(a)                                  In
addition to providing funding under the Keep Well Letter, Counsel Springwell
shall fund the operations of I-Link through the date of adoption of the
Operating Plan, and hereafter shall fund the operating cash flow deficit, if
any, inherent in the Operating Plan hereafter adopted by the I-Link Board of
Directors.  Counsel Springwell shall
also (i) subject to stockholder approval of the Proposals, advance to I-Link
any and all amounts paid or payable by I-Link to stockholders of I-Link that
exercise their dissenters’ rights in connection with the transactions subject
to this Agreement and (ii) advance to I-Link the annual premium to renew the
existing Directors and Officers insurance coverage (which is and shall be
separate and distinct from insurance policies maintained by Counsel or their
affiliated entities) for an additional one year from the current date of its
expiration in November 2002, and Counsel and Counsel Springwell represent and
covenant that they will do any and all things reasonably necessary to cause
such insurance to be continued in effect until at least November 2003 in types
and amounts that are, at a minimum, currently in force, so long as such
insurance is available on commercially reasonable terms.  In addition, Counsel Springwell shall
advance to I-Link all costs and fees incurred relating to the work of the current
special committee of I-Link’s board of directors (“Special Committee”) and its
legal, accounting and financial advisors in connection with the transaction
contemplated by this Agreement and all accounting, legal and regulatory costs,
investment banking fees and expenses, all costs incident to I-Link’s annual
stockholder meeting and any special stockholder meetings for soliciting and
obtaining stockholder approval of the transactions contemplated hereby, and all
other direct costs incurred by I-Link in connection with consummating the
transaction contemplated by this Agreement (the “Special Committee
Costs”).  The parties acknowledge and
agree that Counsel Springwell’s payment of the amounts specified in the
preceding sentence of this Section 3(a) shall not reduce Counsel
Springwell’s funding obligations under this Agreement.


 


Any such
funding provided by Counsel Springwell pursuant to this Section 3(a)
(other than the amounts referenced in the penultimate sentence of the prior
paragraph and any amounts advanced for acquisitions) prior to December 31, 2002
shall constitute a purchase of additional shares of Common Stock for a purchase
price per share equal to the Effective Price; provided that in the event that
the Board of Directors of I-Link hereafter determines to acquire the assets or
equity interests of any other entity, I-Link and Counsel Springwell agree that
any acquisition cost related to such acquisition will be financed, at the
option of Counsel Springwell, either by way of equity from Counsel Springwell
constituting a purchase of additional shares of Common stock for a purchase
price per share equal to the average closing transaction price of a share of
I-Link common stock on the twenty (20) trading days preceding the funding or
alternatively a purchase money loan arrangement similar in form and substance
to the June 6th Loan Agreement. 
Counsel Springwell shall cause each disbursement to be made within ten
(10) calendar days of the receipt by Counsel Springwell of a written request to
fund.  I-Link shall issue certificates


 


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representing the purchased
shares concurrently with or subsequent to such fundings.  All funding referenced in this
Section 3(a) shall be provided from time to time, when, as and if
requested in writing by I-Link.


 


(b)                                 Any
additional funding provided by Counsel Springwell pursuant to the Operating
Plan in each month during the 2003 calendar year shall constitute a purchase of
additional shares of Common Stock for a purchase price per share equal to the
average closing transaction price of a share of I-Link common stock on the
twenty (20) trading days preceding the funding.


 


4.                                       I-Link
Financial Obligations Surviving This Agreement.  Counsel and Counsel Springwell, jointly and severally, represent,
warrant and agree that from and after the Closing Date I-Link shall owe no
amounts to Counsel, Counsel Springwell or WxC except (i) those amounts that
will become due and owing to Counsel under the March 1st Loan
Agreement and (ii) such amounts as may be payable from time to time under the
WxC Agreement; and that there is no default under the March 1st Loan
Agreement as of the date hereof.


 


5.                                       Amendments
to the March 1st Loan Agreement.  The parties represent, warrant and agree that the issuance of
Common Stock by I-Link pursuant to this Agreement results in weighted-average
conversion price adjustment pursuant to the provisions of the March 1st
Loan Agreement and that the existing conversion price shall be adjusted in
accordance with the terms of the March 1st Loan Agreement.


 


6.                                       Securities
Law Representations.  Counsel
Springwell acknowledges that the issuance of shares of Common Stock pursuant to
the terms of this Agreement (the “Shares”) has not been registered under the
Securities Act of 1933, as amended (the “Securities Act”), the certificates
representing the Shares shall bear customary securities registration
legends.  Counsel Springwell hereby
represents and warrants to I-Link that:


 


(a)                                  The
Shares will be acquired for Counsel Springwell’s own account and not with a view
to, or intention of, distribution thereof in violation of the Securities Act,
or any applicable state securities laws, and the Shares will not be disposed of
in contravention of the Securities Act or any applicable state securities laws.


 


(b)                                 Counsel
Springwell is sophisticated in financial matters and is able to evaluate the
risks and benefits of the investment in the Shares.


 


(c)                                  Counsel
Springwell is able to bear the economic risk of its investment in the Shares
for an indefinite period of time because the Shares have not been registered
under the Securities Act and, therefore, cannot be sold unless subsequently
registered under the Securities Act or an exemption from such registration is
available.


 


7.                                       Proxy
Statement.


 


(a)                                  Subject
to Section 7(b) hereof, I-Link, acting through its Board of Directors,
shall:


 


(i)                                     duly
call, give notice of, convene and hold an annual or special meeting of its
stockholders (the “Stockholders Meeting”) as soon as practicable
following the date hereof for the purpose of considering and taking action upon
the following proposals (the “Proposals”): (A) an amendment to the Amended and
Restated Articles of Incorporation of I-Link to increase the authorized number
of shares of Common Stock from


 


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300,000,000 shares to 900,000,000 shares and (B) an
amendment to the Amended and Restated Articles of Incorporation of I-Link
deleting Article VI thereof.


 


(ii)                                  prepare
and file with the SEC a preliminary proxy relating to this Agreement as soon as
reasonably practicable and obtain and furnish the information required to be
included by the SEC in the Proxy Statement and, after consultation with Counsel
Springwell, use its best efforts to respond promptly to any comments made by
the SEC with respect to the preliminary proxy and cause a definitive proxy (as
amended or supplemented, the “Proxy Statement”) to be mailed to its
stockholders;


 


(iii)                               include
in the definitive Proxy Statement the written opinion of the financial advisor
to the Special Committee of the Board of Directors of I-Link that the
transactions contemplated by this Agreement are fair to the stockholders of
I-Link from a financial point of view;


 


(iv)                              afford
to all of the stockholders of I-Link dissenters’ rights under Florida law
relating to the matters to be presented to them for consideration at the
Stockholder Meeting and relating to the subject matter of this Agreement; and


 


(v)                                 use
its reasonable best efforts to obtain the approval of the Proposals by the
holders of the requisite number of issued and outstanding shares of capital
stock of I-Link.


 


(b)                                 The
Board of Directors of I-Link shall recommend approval and adoption of the
Proposals by I-Link’s stockholders.  The
Board of Directors of I-Link shall not be permitted to withdraw, amend or
modify in a manner adverse to Counsel and Counsel Springwell such
recommendation (or announce publicly its intention to do so), except that prior
to the Stockholder Meeting, the Board of Directors of I-Link shall be permitted
to withdraw, amend or modify its recommendation (or announce publicly its
intention to do so) but only if the Board of Directors of I-Link shall have
determined in its good faith judgment, based upon the advice of outside
counsel, that it is obligated by its fiduciary obligations under applicable law
to withdraw, amend or modify such recommendation.  If the Stockholder Meeting is being held, the recommendation of
the Board of Directors of I-Link shall be included in the Proxy Statement.


 


(c)                                  Each
of Counsel and Counsel Springwell agrees that it will provide I-Link with the
information required to be included in the Proxy Statement and will vote, or
cause to be voted, all of the shares of the Common Stock then owned by it,
directly or indirectly, or over which it has the power to vote, in favor of
approval of the Proposals.  Counsel and
Counsel Springwell shall have the right to review in advance all
characterizations and information related to them, this Agreement and the
transactions contemplated hereby which appear in the Proxy Statement.


 


(d)                                 Each
of Counsel, Counsel Springwell and I-Link agrees promptly to correct any
information provided by it for use in the Proxy Statement as and to the extent
it shall have become false or misleading in any material respect and to supplement
the information provided by it specifically for use in the Proxy Statement to
include any information that shall have become necessary, in order to make
statements contained therein, in light of the circumstances in which they were
made, not misleading, and  each of
Counsel, Counsel Springwell and I-Link further agrees to take all steps
necessary to cause the Proxy Statement, as so corrected or supplemented, to be
filed with the SEC and to be disseminated to its stockholders in each case as
and to the extent required by applicable federal securities laws.


 


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8.                                       Covenant.  Counsel Springwell hereby agrees that, if
the Proposals are approved by the stockholders at the Stockholders Meeting, it
shall not take any action under Section 607.1104 of the Florida Business
Corporation Act prior to June 30, 2003.


 


9.                                       Expenses.  Counsel Springwell shall bear all costs,
fees and expenses in connection with this Agreement and the transactions
contemplated hereby.


 


10.                                 Notices.  All notices and other communications
hereunder shall be in writing and shall be deemed given when delivered
personally or when received if sent by registered or certified mail, return
receipt requested, by facsimile (with confirmation of receipt) or by reputable
overnight delivery service, to the parties at the following addresses (or at
such other address as a party may specify by like notice):


 


(a)                                  If
to I-Link:


 


13751 S. Wadsworth Park Dr.

Draper, UT 84020

Attention:                                         Chief Executive Officer

Facsimile:                                            (801) 576-4295


 


with copy to:


 


13751 S. Wadsworth Park Dr.

Draper, UT 84020

Attention:                                         Legal Department

Facsimile:                                            (801) 553-6890


 


(b)                                 If
to Counsel or Counsel Springwell:


 


Counsel Corporation 

The Exchange Tower

Suite 1300, P.O. Box 435

130 King Street West

Toronto, Ontario M5X 1E3

Attention:                                         Chief Executive Officer

Facsimile:                                            (416) 866-3061


 


with a copy to:


 


Counsel Springwell Communications LLC

One Landmark Square

Suite 320

Stamford, CT 06901

Attention:                                         Managing Director

Facsimile:                                            (203) 961-9001


 


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11.                                 No
Waiver.  The failure of any party
hereto to exercise any right, power or remedy provided under this Agreement or
otherwise available in respect hereof at law or in equity, or to insist upon compliance
by any other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not constitute
a waiver by such party of its rights to exercise any such or other right, power
or remedy or to demand such compliance.


 


12.                                 Amendment.  Subject to applicable law, this Agreement
may be amended, modified or supplemented only by written agreement of the
parties.


 


13.                                 Entire
Agreement.  Except as specifically
provided elsewhere in this Agreement, this Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
thereof and supersedes all prior agreements, representations and understandings
among the parties with respect to the subject matter hereof.


 


14.                                 Further
Assurances.  I-Link, Counsel
Springwell and Counsel agree to deliver or cause to be delivered to each other
any such additional instrument or take any action as any of them may reasonably
request for the purpose of carrying out transactions contemplated by this
Agreement.


 


15.                                 Assignment.  This Agreement shall inure to the benefit
of, and be binding upon, the parties and their respective successors and
assigns.  This Agreement may not be
assigned by a party without the prior written consent of the other party.


 


16.                                 Governing
Law.  This Agreement shall be
governed by and construed in accordance with the laws of the State of New York,
except to the extent that the Florida Business Corporation Act is applicable.


 


17.                                 Headings.  The headings and captions in this Agreement
are included for purposes of convenience only and shall not affect the
construction or interpretation of any of its provisions.


 


18.                                 Counterparts.  This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.


 


IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be executed by their
duly authorized representatives as of the date first above written.


 


	
   

  	
  I-LINK
  INCORPORATED

  
	
   

  	
  By

  	
  /s/ Henry
  Y.L. Toh

  
	
   

  	
  Name:

  	
  Henry Y.L.
  Toh

  
	
   

  	
  Title:

  	
  Director

  
	
   

  
	
   

  	
  COUNSEL
  CORPORATION (US)

  
	
   

  	
  By

  	
  /s/ Allan
  Silber

  
	
   

  	
  Name:

  	
  Allan Silber

  
	
   

  	
  Title:

  	
  President

  
	
   

  
	
   

  	
  COUNSEL
  SPRINGWELL COMMUNICATIONS LLC

  
	
   

  	
  By

  	
  /s/ Mufit
  Cinali

  
	
   

  	
  Name:

  	
  Mufit Cinali

  
	
   

  	
  Title:

  	
  Managing
  Director

  



 


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