exv10w36



 





Exhibit 10.36




AMENDED AND RESTATED

STOCK PLEDGE AGREEMENT




     FOR VALUE RECEIVED and in consideration of the loan, or other financial
accommodations now or hereafter made by Counsel Corporation (US), a Delaware
corporation (“Secured Party”), on the one hand, to Acceris Communications Inc.,
formerly known as I-Link Incorporated, a Florida corporation (“Pledgor”), on
the other hand, including specifically the loan to Pledgor of up to Nine
Million Seven Hundred Forty Three Thousand, Four Hundred Seventy Nine and
16/100ths Dollars ($9,743,479.16) evidenced by the Promissory Note of Pledgor
dated as of October 1, 2003 (the “Note”) and to induce Secured Party to make
such extensions of credit or financial accommodations to Pledgor, Pledgor does
hereby convey and grant a security interest to Secured Party as of October 1,
2003 in accordance with the terms set forth below in this Stock Pledge
Agreement (the “Agreement”). It is specifically understood and agreed that
nothing in this Agreement shall impair or hinder the rights of Foothill Capital
Corporation (“Foothill”) as the secured party pursuant to the Stock Pledge
Agreement dated as of December 10, 2001 between CPT-1 Holdings, Inc. as pledgor
and Foothill (the “Foothill Pledge”).



     I. Definitions. When used in this agreement:



          A. “Collateral” shall mean the following personal property:



          All of the 291 shares of common stock, no par value, of WorldxChange
Corp., a Delaware corporation, issuable or issued to and subscribed for and
owned by the Pledgor (the “Shares”) and all distributions of property, whether
or not in cash, made to Pledgor on account of its interest in the
above-described property, including stock dividends as well as all other
property so distributed, together with all documents, instruments, and share
certificates of Pledgor relating to the above, and all other property of
Pledgor now or hereafter in the possession or control of Secured Party, and all
proceeds of the foregoing and all cash and additional securities or other
property at any time and from time to time receivable or otherwise
distributable in respect of, exchange for or as substitution for any and all of
the foregoing.



          B. “Default” shall mean any of the following: (1) the occurrence or
existence of a “Default,” as that term is defined in the Loan Agreement or the
Note; (2) the sale, transfer or exchange, either directly or indirectly, of a
controlling stock interest of any Obligor, if such Obligor is a corporation;
(3) appointment of a receiver for the Collateral or for any property in which
any Obligor has an interest; or (4) seizure of the Collateral by any third
party.



          C. “Liabilities” shall mean all obligations of Pledgor hereunder, under
the Note, and any and all other obligations of Pledgor to Secured Party, direct
or indirect, however and whenever arising, created or evidenced, joint or
several, whether absolute, contingent or otherwise, original, renewed or
extended, whether originally to Secured Party or endorsed or assigned to
Secured Party, now or hereafter existing, or due or to become due, including,
without limitation, all principal, interest, costs and other indebtedness owed
thereunder.



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          D. “Loan Agreement” shall mean that Loan Agreement dated as of October 1,
2003, as amended or modified from time to time, between Pledgor and Secured
Party.



          E. “Obligor” shall mean Pledgor and each other individual or entity
primarily or secondarily, directly or indirectly, liable on or directly or
indirectly securing any of the Liabilities.



     II. Grant of Security Interest. As security for the payment and
performance of the Note, Pledgor hereby grants to Secured Party a security
interest in and security title to the Collateral, all substitutions therefor
and replacements thereof and all proceeds thereof in any form. Unless and until
there shall have occurred a Default and such Default is continuing, Pledgor
shall be entitled to vote or consent with respect to the Collateral in any
manner not inconsistent with this Agreement or the Loan Agreement, as amended.



     III. Representations, Warranties and Covenants.



     1. Pledgor hereby warrants, represents, and covenants that:



          A. The Pledgor (i) is a corporation duly organized, validly existing and
in good standing under the laws of the State of Florida, and (ii) has all
requisite power and authority to execute, deliver and perform this Agreement.




          B. The execution, delivery and performance by the Pledgor of this
Agreement (i) have been duly authorized by all necessary corporate action, (ii)
do not and will not contravene its charter or by-laws, law or any contractual
restriction binding on or affecting the Pledgor or any of its properties, and
(iii) except as herein specifically provided, do not and will not result in or
require the creation of any lien, security interest or other charge or
encumbrance upon or with respect to any of its properties.



          C. Pledgor will at all times hereafter keep the Collateral free of all
security interests, liens and claims whatsoever, other than the Foothill Pledge
and the security interest and security title granted herein.



          D. Pledgor will, from time to time, on request of Secured Party, execute
such financing statements, statements of assignment, notices and other
documents and pay the costs of filing or recording the same in all public
offices deemed necessary by Secured Party and do such other acts as Secured
Party may request to establish and maintain a valid security interest in and
security title to the Collateral, including, without limitation, delivery to
Secured Party of any stock certificate, note, deed to secure debt, security
agreement, or other instrument issuable with respect to any of the Collateral.



          E. Pledgor will not sell, pledge, transfer or otherwise dispose of any of
the Collateral or any interest therein other than pursuant to the Foothill
Pledge.



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          F. Pledgor shall account fully and faithfully for and promptly pay or turn
over to Secured Party proceeds in whatever form received in disposition in any
manner of any of the Collateral, but nothing in this Agreement shall be deemed
to authorize any such disposition.



          G. Pledgor shall at all times keep accurate and complete records of the
Collateral and its proceeds, and should any Collateral come into the possession
of Pledgor, it shall hold it in trust for Secured Party and keep it separate
and distinct from his other property.



          H. All information now or hereafter furnished by Pledgor to Secured Party
relating in any way to the Collateral is and will be true and correct as of the
date furnished.



     2. Secured Party hereby covenants that during the term of this Agreement,
Secured Party (i) shall not take any action which would jeopardize the rights,
titles and interests transferred and assigned to Secured Party pursuant to this
Agreement; (ii) shall immediately notify Pledgor of any pending or threatened
action by any governmental authority or body or any court or governmental
agency or third party to suspend, revoke, terminate or challenge such rights,
titles and interests; and (iii) shall not take any action that would result in
the violation of any covenant or agreement, or otherwise constitute a default
under the agreements or instruments evidencing any indebtedness of the Pledgor.



     IV. Power of Attorney. Pledgor hereby grants to Secured Party a power of
attorney, which being coupled with an interest is irrevocable while any of the
Liabilities remain unpaid, whereby it constitutes and appoints Secured Party or
its designee as Pledgor’s true and lawful attorney-in-fact and agent, for
Pledgor and in its name and, upon the occurrence and the continuance of a
Default, to vote any shares of stock which may be or become Collateral at any
and all meetings in which the owners of such stock are entitled to vote, to
waive notice of any such meeting, to take part in any consent action in lieu of
any such meeting, to execute any and all documents in connection with said
stock, to exercise any and all powers which may be exercised by the owners of
said stock and to accomplish such actions necessary to transfer and reissue
said stock in the name of Pledgor. Pledgor hereby further grants to Secured
Party a power of attorney, which being coupled with an interest is irrevocable
while any of the Liabilities remain unpaid, whereby it constitutes Secured
Party or its designee as Pledgor’s attorney-in-fact: to endorse Pledgor’s name
upon any notes, acceptances, checks, drafts, money orders and other remittances
received by Pledgor or Secured Party on account of the Collateral and to do all
other acts and things necessary to carry out this Agreement. All acts of
Secured Party as attorney-in-fact as so constituted above are hereby authorized
and ratified, and said attorney-in-fact or designee shall not be liable for any
acts of omission or commission, nor for any error of judgment or mistake of
fact or law, other than acts of gross negligence or intentional misconduct.



     V. Secured Party’s Rights and Remedies Upon Pledgor’s Default. At the
option of Secured Party, immediately upon the occurrence and the continuance of
a Default, the Liabilities, notwithstanding any provisions thereof, without
demand or notice of any kind, shall become immediately due and payable, and
Secured Party may exercise from time to time the rights and



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remedies available to it under the Uniform Commercial Code and other
applicable law, in equity, or under any agreement. Pledgor agrees, in the
event of Default, to deliver at Pledgor’s expense all the Collateral not then
in possession of Secured Party to Secured Party. Without limiting the
generality of the foregoing, the Secured Party may sell the Collateral, or any
part thereof at any public or private sale or at any broker’s board or on any
securities exchange, for cash, upon credit or for future delivery, as the
Secured Party shall deem appropriate. In view of the position of Pledgor in
relation to the Shares, or because of other, present or future circumstances, a
question may arise under the Securities Act of 1933, as amended, as now or
hereafter in effect, or any similar statute hereafter enacted analogous in
purpose or effect or any similar such statute enacted in the State of Florida
(such Act and any such other statute as from time to time in effect being
hereinafter called the “Securities Laws”) with respect to any disposition of
the Shares permitted hereunder, Pledgor understands that compliance with the
Securities Laws may very strictly limit the course of conduct of the Secured
Party if the Secured Party were to attempt to dispose of all or any part of the
Shares and may also limit the extent to which or the manner in which any
subsequent transferee of any of Shares may dispose of the same. Under
applicable law, in the absence of an agreement to the contrary, the Secured
Party may be held to have certain general duties and obligations to Pledgor, to
make some effort towards obtaining a fair price even though the obligations
under the Note may be discharged or reduced by proceeds of a sale at a lesser
price. Pledgor acknowledges that any private sale may be at prices and on terms
less favorable to the seller than the prices and other terms which might have
been obtained at a public sale and, notwithstanding the foregoing, agrees that
such private sales shall be deemed to have been made in a commercially
reasonable manner and that Secured Party shall have no obligation to delay sale
of any such Collateral. Pledgor agrees to pay all costs of Secured Party of
collection of the Liabilities and enforcement of rights hereunder, including,
without limitation, reasonable attorneys’ fees and legal and court expenses,
including the costs of retaining experts.




     VI. Consents. Pledgor hereby consents and agrees that Secured Party may
from time to time:



          A. Retain or obtain a security interest, lien, title or other interest in
any property, whether real, personal, mixed, tangible or intangible, to secure
any of the Liabilities, provided, however, that nothing contained in this
subparagraph A shall be construed or interpreted as granting Secured Party a
security interest, lien, title or other interest in any such property other
than the Collateral;



          B. Retain or obtain the primary or secondary liability of any party or
parties with respect to any of the Liabilities;



          C. Extend or renew for any period (whether or not longer than the original
period), alter, modify or exchange, any of the Liabilities, or any right
evidencing the Liabilities, or any of them;



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          D. Release, discharge, compromise, or enter into any accord and
satisfaction with respect to the Collateral, or any other security for the
Liabilities, any liability of Pledgor hereunder or any liability of any
Obligor;



          E. Release or surrender all or any part of the Collateral or any other
security for the Liabilities, with or without consideration, or exchange or
substitute for all or any part of the Collateral or any other security for the
Liabilities, any other security of like kind, or of any kind; and



          F. Resort to or bring suit against Pledgor to enforce this Agreement for
the collection of any of the Liabilities or otherwise enforce its security
interest in the Collateral, whether or not Secured Party shall have resorted to
or brought suit against any other collateral or any other Obligor, and whether
or not Secured Party shall have exhausted its rights or remedies against any of
the foregoing.



     VII. Waivers. Pledgor hereby expressly waives:



          A. Notice of acceptance of this instrument;



          B. Notice of the existence or creation of all or any of the Liabilities;



          C. Notice of any default, nonpayment, partial payment, presentment,
demand, and all other notices not expressly required under the terms of this
Agreement;



          D. Any invalidity or disability in whole or in part at the time of his
acceptance or at any other time with respect to the Collateral or any part
thereof, as well as with respect to the liability of any Obligor;



          E. All diligence in collection or protection of or realization upon the
Collateral, the Liabilities, or any part thereof, any liability hereunder, any
liability of any Obligor, or any security for any of the foregoing; and



          F. Any duty or obligation on the part of Secured Party to ascertain the
extent or nature of all or any part of the Collateral, or any other security
for the Liabilities, or any insurance or other rights respecting such security,
or the liability of any Obligor, as well as any duty or obligation on the part
of Secured Party to take any steps or actions to safeguard, protect, deal with,
handle, obtain or convey information respecting, or otherwise follow in any
manner, such security or any part thereof, or such insurance, or other rights.



     VIII. Release of Pledge. The pledge set forth in this Agreement shall be
deemed satisfied, and the security interest of Secured Party in the Collateral,
as defined in this Agreement, shall be released upon full satisfaction and
release of the obligations of the Pledgor.



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     IX. Miscellaneous.



          A. Notice. Except as otherwise provided herein, notices required or
permitted hereunder shall be deemed given when made in writing and deposited in
the U.S. mail, with first class postage prepaid and properly addressed, to the
addresses set forth below, or to such other address as one party hereto shall
have notified the other party pursuant hereto:



	 	 	 	 	 
	

	 	If to Pledgor, to:
	 	Acceris Communications Inc.

9775 Business Park Avenue

San Diego, CA 92131

Attn: Gary Clifford, CFO
	 
	 	 	 	 
	

	 	with a copy to:
	 	Ralph De Martino, Esq.

Dilworth Paxson LLP

1818 N Street, N.W.

Suite 400

Washington, DC 20036
	 
	 	 	 	 
	

	 	If to Secured Party, to:
	 	Counsel Corporation (US)

500 Atrium Drive, First Floor

Somerset, NJ 08873

Attn: Stephen Weintraub







          If any notification of intended disposition of the Collateral or of any
other act by Secured Party is required by law and a specific time period is not
stated therein, such notification, if given in accordance with this section at
least five (5) days before such disposition or act, shall be deemed reasonable
and properly given.



          B. Non-Waiver of Rights and Remedies. No delay or failure on the part of
Secured Party in the exercise of any right or remedy shall operate as a waiver
thereof or of the exercise of any other right or remedy. Time is of the
essence of this Agreement.



          C. Construction. This Agreement shall be governed by and construed in and
enforced in accordance with the laws of the State of New York. The terms
“security interest” and “security title” as used herein shall include, and
Secured Party shall have, all the rights, interests, title, liens, claims and
privileges that may be derived hereunder and under the applicable law of the
various states of the United States. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be
prohibited by or invalid under applicable law, said provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions of
this Agreement.



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          D. Modification. This Agreement shall not be modified or amended except
in a writing signed by the parties hereto.



          E. Survival of Representations. All representations, warranties,
covenants, and agreements contained herein or made in writing by Pledgor in
connection herewith shall survive the execution and delivery of this Agreement
and any and all other documents relating to or arising out of any of the
foregoing or any of the Liabilities.



          F. Successors and Assigns. This Agreement shall bind and inure to the
benefit of the parties hereto, and their respective successors, legal
representatives, heirs and assigns.



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     IN WITNESS WHEREOF, the parties executed this Amended and Restated Stock
Pledge Agreement as of this 30TH day of January, 2004.


	 	 	 	 	 
	 	 	PLEDGOR:
	 
	 	 	 	 
	 	 	ACCERIS COMMUNICATIONS INC.
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	
 
	

	 	Name:	 	 
	

	 	 	 	
 
	

	 	Title:	 	 
	

	 	 	 	
 
	 
	 	 	 	 
	 	 	SECURED PARTY:
	 
	 	 	 	 
	 	 	COUNSEL CORPORATION (US)
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	
 
	

	 	Name:	 	 
	

	 	 	 	
 
	

	 	Title: