exv10w38



 





Exhibit 10.38




AMENDED AND RESTATED

PROMISSORY NOTE



	$7,600,000.00	January 26, 2004







     FOR VALUE RECEIVED, Acceris Communications Inc., formerly known as I-Link
Incorporated (the “Maker”) promises to pay to Counsel Corporation, an Ontario
corporation, or its assigns (the “Payee”), in the lawful money of the United
States of America (“Dollars” or “$”) the principal sum of Seven Million Six
Hundred Thousand Dollars ($7,600,000) funded from time to time by Payee to
Maker, together with interest thereon as set forth herein, on or before the
Maturity Date as provided below and in accordance with the provisions of that
certain Loan Agreement dated as of January 26, 2004, between the Maker and
Payee as the same may be amended, modified, extended or restated, the “Loan
Agreement.” Capitalized terms used herein but not defined shall have the
meanings ascribed to them in the Loan Agreement.



     1. Interest. The outstanding principal amount of this Promissory Note
(the “Note”), evidencing advances to the Maker by Payee in November 2003 and
December 2003 in the aggregate principal amount of Five Million Six Hundred
Thousand Dollars ($5,600,000) and an advance on January 26, 2004 in the
principal amount of Two Million Dollars ($2,000,000), together with unpaid
interest (the “Indebtedness”), shall bear interest at the rate of ten percent
(10%) per annum commencing on the date funded as to principal hereunder, which
interest shall accrue and be compounded quarterly and shall result in a
corresponding increase in the principal amount of the Indebtedness. This Note
supersedes and replaces the Note dated as of October 1, 2003 in the principal
amount of Five Million Six Hundred Thousand Dollars issued by Maker to Payee.



     2. Time and Place of Payment. The Indebtedness shall be due and payable
in full on June 30, 2005 (the “Maturity Date”); provided, however, the Maturity
Date shall be accelerated to the date ten (10) calendar days following closing
under or conclusion of each occurrence of (a) the sale or sales by Maker to a
third party unrelated to Payee of the Buyers United, Inc. Series B Convertible
Preferred Stock and/or the common stock into which such stock is convertible
owned by Maker and held by Payee as security for the performance by Maker
hereunder pursuant to the Stock Pledge Agreement between the Maker and Payee
(as hereinafter defined), or any portion thereof (a “BUI Sale”) or (b) an
equity investment or investments in Maker by a third party unrelated to Payee
through the capital markets, whether pursuant to a registered offering or
unregistered offering or other transaction (an “Equity Investment”); provided,
further, however, that the Maturity Date shall be accelerated with respect only
to the portion of the unpaid Indebtedness equal to the net amount received by
Maker from any such BUI Sale or any such Equity Investment. The Maker may from
time to time, in its discretion, make one or more periodic payments of
Indebtedness to the Payee. All amounts due hereunder are payable in Dollars in
immediately payable funds at the Payee’s principal office (or at such other
office of the Payee as may be designated from time to time in writing by the
Payee) for the account of the Payee, not later than 11:00 a.m., New York City
time, on the due date therefor. If any payment on or with respect to this Note
becomes due and payable on a Saturday, Sunday, or any other day on which
commercial banks are required or authorized by law or regulation to be closed
in New



 









 




York City, such amount shall be payable on the next succeeding day which is not
a Saturday, Sunday or other day on which commercial banks are so required or
authorized to be closed.




     3. The Indebtedness, including that portion of the Indebtedness
represented by this Note, is secured pursuant to that Amended and Restated
Stock Pledge Agreement between the Maker and Payee dated as of January 26,
2004, executed and delivered concurrent herewith as the same has been amended,
modified, extended or restated, the “Stock Pledge Agreement.”



     4. Events of Default. The occurrence of any of the following events or
conditions shall constitute an event of default (each an “Event of Default”):



     (a) Maker shall fail to pay any of the Indebtedness pursuant to terms of
this Note;



     (b) Maker shall fail to comply with any term, obligation, covenant, or
condition contained in any agreement between Maker and Payee (each, an
“Agreement”);



     (c) Any warranty or representation made to Payee by Maker under any
Agreement proves to have been false when made or furnished;



     (d) If Maker voluntarily files a petition under the federal Bankruptcy
Act, as such Act may from time to time be amended, or under any similar or

successor federal statute relating to bankruptcy, insolvency, arrangements or
reorganizations, or under any state bankruptcy or insolvency act, or files an
answer in an involuntary proceeding admitting insolvency or inability to pay
debts, or if Maker is adjudged a bankrupt, or if a trustee or receiver is
appointed for Maker’s property, or if Maker makes an assignment for the benefit
of its creditors, or if there is an attachment, receivership, execution or
other judicial seizure, then Payee may, at Payee’s option, declare all of the
Indebtedness to be immediately due and payable without prior notice to Maker,
and Payee may invoke any remedies permitted by this Note. Any attorneys’ fees
and other expenses incurred by Payee in connection with Maker’s bankruptcy or
any of the other events described in this Section 4 shall be additional
Indebtedness of Maker secured by this Note;



     (e) There exists a material breach by Maker under (or a termination by any
party of) a material contract of Maker (for purposes of this Section 4 a
material contract shall mean any contract resulting in revenues of in excess of
$10,000 per annum);



     (f) Maker is in default under any funded indebtedness, including but not
limited to indebtedness evidenced by notes or capital leases, of Maker other
than the amounts loaned pursuant to this Note; or



     (g) If Maker’s business undergoes a material adverse change in Payee’s
reasonable opinion.



     If an Event of Default specified in Section 4(d) hereof occurs and is
continuing, the principal amount of the Indebtedness, together with all accrued
and unpaid interest thereon, shall automatically become and be immediately due
and payable, without any declaration or other act on the part of Payee.



     5. Acceleration. Upon an Event of Default, the Payee may give written
notice to the Maker of the occurrence of such Event of Default and Maker shall
have the shorter of (i) thirty (30) days or (ii) such remedy period as set
forth in the applicable provisions of Section 4 within which to cure such Event
of Default. If the Event of Default is not cured within the applicable



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cure period, then, at the option of the Payee, Payee may declare the Maker
in default (a “Default”) and all sums due hereunder shall become immediately
due and payable.




     Any written notification from Payee to Maker hereunder shall be deemed to
be written notification of an Event of Default, or Default, or rescission of
Acceleration (as provided below), respectively, only if such notification,
communication or other election shall (a) be clearly and distinctly identified
as such a Notice of Event of Default, Notice of Default, or Notice of
Rescission of Acceleration, respectively, and (b) be given by certified mail,
return receipt requested or overnight delivery requiring acknowledgement of
receipt, and any communication between the parties not so designated and
delivered shall not be construed or deemed to be effective notice under this
Section 5.



     6. Waivers. The Maker hereby waives presentment, demand for payment,
notice of dishonor and any and all other notices or demands in connection with
the delivery, acceptance, performance, default or enforcement of this Note and
hereby consents to any waivers or modifications that may be granted or
consented to by the Payee of this Note. No waiver by the Payee or any breach
of any covenant of the Maker herein contained or any term or condition hereof
shall be construed as a waiver of any subsequent breach of the same or of any
other covenant, term or condition whatsoever.



     7. Enforcement. In the event that Payee of this Note shall institute any
action for the enforcement or the collection of this Note, there shall be
immediately due and payable, in addition to the unpaid balance of this Note,
all late charges, and all costs and expenses of such action including
reasonable attorney’s fees. The Maker waives the right to interpose any
setoff, counterclaim or defense of any nature or description whatsoever.



     8. Replacement of Note. Upon receipt by the Maker of evidence
satisfactory to it of the loss, theft, destruction or mutilation of this Note,
and (in case of loss, theft or destruction) of an indemnity reasonably
satisfactory to it, and upon reimbursement to the Make of all reasonable
expenses incidental thereto, and upon surrender and cancellation of this Note
if mutilated, the Maker will make and deliver a new Note of like tenor in lieu
of this Note.



     9. Amendments. This Note may not be changed, modified, amended, or
terminated except by a writing duly executed by the Maker and the Payee.



     10. Governing Law. This Note shall be governed by, and construed in
accordance with, the laws of the State of New York.



     11. Assignment. This Note may not be assigned, in whole or in part, by
operation of law or otherwise, by the Maker without the prior written consent
of the Payee in its sole and absolute discretion, and any purported assignment
without the express prior written consent of the Payee shall be void ab initio.
The Payee may assign any or all of its rights and interests hereunder to any
party. Subject to the foregoing, this Note shall be binding upon, and inure to
the benefit of, the successors and assigns of the Payee and the Maker.



[See attached Signature Page]




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Signature Page

to Amended and Restated Promissory Note

dated as of January 26, 2004




     IN WITNESS WHEREOF, the Maker has executed this Amended and Restated
Promissory Note by its duly authorized officer as of the 26th day of January,
2004.



	 	 	 	 	 
	 	 	ACCERIS COMMUNICATIONS INC.
	 
	 	 	 	 
	

	 	By:	 	 
	

	 	 	 	
 
	

	 	Name:	 	 
	

	 	 	 	
 
	

	 	Title:	 	 
	

	 	 	 	
 








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