exv10w35



 



Exhibit 10.35


LOAN AGREEMENT



     THIS LOAN AGREEMENT (“Agreement”) is made and entered into as of October
1, 2003, by and between ACCERIS COMMUNICATIONS INC., formerly known as I-Link
Incorporated, a Florida corporation (the “Borrower”), and COUNSEL CORPORATION
(US), a Delaware corporation (the “Lender”).


RECITALS



     WHEREAS, WorldxChange Corp., a Delaware corporation (“WorldxChange”),
Lender and I-Link entered into a Loan and Security Agreement dated June 4,
2001, as heretofore amended (the “2001 Loan Agreement”); and


     WHEREAS, pursuant to an Assignment and Assumption Agreement dated as of
October 1, 2003, between Lender and Borrower, Lender assigned to Borrower the
total principal plus accrued interest of the indebtedness represented by and
subject to the 2001 Loan Agreement and the Promissory Note of even date issued
by WorldxChange in the principal amount of Nine Million Seven Hundred
Forty-Three Thousand Four Hundred Seventy-Nine and 16/100ths Dollars
($9,743,479.16) (the “Assigned Debt”); and


     WHEREAS, Borrower and WorldxChange entered into that Stock Subscription
and Purchase Agreement dated as of October 1, 2003 (the “Subscription
Agreement”) pursuant to which Borrower contributed the Assigned Debt to
WorldxChange in partial consideration for the issuance by WorldxChange of 221
shares of WorldxChange common stock; and


     WHEREAS, Borrower issued its Secured Promissory Note as of October 1,
2003, in the principal amount of Nine Million Seven Hundred Forty-Three
Thousand Four Hundred Seventy-Nine and 16/l00ths Dollars ($9,743,479.16) to
Lender, which indebtedness is subject to the terms and conditions of this Loan
Agreement; and


     WHEREAS, the repayment of the indebtedness represented by the Secured
Promissory Note, (as the same may be amended, modified, extended or restated,
the “Secured Promissory Note”) is secured pursuant to that Stock Pledge
Agreement (as the same may be amended, modified, extended or restated, the
“Stock Pledge Agreement”) between the Lender and the Borrower pursuant to which
the Borrower granted to Lender a security interest in the Collateral described
therein including all of the shares of common stock of WorldxChange issuable or
issued to Borrower. Hereinafter this Agreement, the Secured Promissory Note
and the Stock Pledge Agreement are sometimes referred to collectively as the
“Loan Documents”.


AGREEMENTS



     IN CONSIDERATION of the mutual promises and agreements herein contained,
Lender and Borrower agree as follows:


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ARTICLE ONE

AMOUNT AND TERMS OF THE LOAN



     Section 1.1 The Loan. Lender agrees, upon the terms and conditions
hereinafter set forth, to make a loan to Borrower in an aggregate principal
amount of Nine Million Seven Hundred Forty Three Thousand Four Hundred Seventy
Nine and 16/100ths Dollars ($9,743,479.16) (the “Loan”).


     Section 1.2 The Secured Promissory Note. The Loan shall be
evidenced by and subject to the terms of a Secured Promissory Note, dated as of
October 1, 2003, substantially in the form set forth as Exhibit 1.2
hereto (as amended, renewed, restated, increased, consolidated or substituted
from time to time, (the “Secured Promissory Note”), payable to the order of
Lender.


     Section 1.3 Interest. The Loan shall bear interest on the unpaid
principal amount thereof at a rate per annum at all times equal to ten percent
(10%). Interest shall be calculated on the basis of a year of 360 days and the
actual number of days elapsed during the period for which such interest is
payable. Interest shall begin to accrue on the outstanding principal amount of
the Loan as of October 1, 2003. Interest shall accrue and be compounded
quarterly and shall result in a corresponding increase in the principal amount
of the Loan. Upon the occurrence of any Default (as defined herein), the
entire outstanding principal amount of the Loan and (to the extent permitted by
law) unpaid interest thereon and all other amounts due hereunder shall bear
interest, from the date of occurrence of such Default until the earlier of the
date the Loan is paid in full and the date on which such Default is cured or
waived in writing, at an interest rate equal of twelve percent (12%) per annum,
which shall be payable upon demand. Lender may waive in writing Borrower’s
obligation to make one or more cash interest payments in which case interest
shall continue to accrue.


     Section 1.4 Principal Repayment. The outstanding principal balance
of the Loan plus any accrued and unpaid interest thereon, together with any and
all other Liabilities (as such term is defined in the Stock Pledge Agreement
(collectively, the “Secured Obligations”), shall be due and payable on June 30,
2005 (the “Maturity Date”).


     Section 1.5 Prepayments.



		
	 	     Section 1.5.1 Voluntary Prepayments. By written notice to
Lender no later than 12:00 noon, New York time on the business day prior
to such prepayment, Borrower may, at its option, prepay the Loan in whole
at any time or in part from time to time without penalty or premium.
	 
	 	     Section 1.5.2 Mandatory Prepayments. By written notice to
Borrower from Lender, Borrower shall be required to make the following
prepayments:




	 	(i)	 	Receivable Lending or Debt
Issuance. Borrower shall make a mandatory
prepayment of the Loan in an amount equal to one hundred
percent (100%) of the cash proceeds, net of any directly
related reasonable fees and expenses incurred, from:
(a) the initial 



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	 	 	 	purchase of Borrower’s accounts receivable
pursuant to a third-party financing arrangement (“A/R
Financing”); or (b) future debt issuance of Borrower to
a third party unrelated to Lender. Such prepayment(s)
shall be made concurrently with the funding of such
transaction(s).
	 
	 	(ii)	 	Proceeds of Asset Sales.
Borrower shall make a mandatory prepayment of the Loan
in an amount equal to one hundred percent (100%) of the
cash proceeds in excess of one million dollars
($1,000,000) of any sale(s) by Borrower to a third party
unrelated to Lender of any of Borrower’s material
assets, net of any reasonable costs directly incurred in
connection with such sale(s) and any taxes payable in
connection with such sale(s). Together with any
prepayment required by this Section, Borrower shall
deliver to Lender a certificate executed by Borrower’s
chief financial officer setting forth the calculation of
the net cash proceeds of such sale(s), including a
calculation of the taxes payable in respect of such
sale(s). Such prepayment(s) shall be made concurrently
with the funding of such sale(s).
	 
	 	(iii)	 	If Borrower issues or sells any
shares of its capital stock or other equity interests or
securities convertible into or exercisable for any share
of its capital stock or other equity interests, it
shall, within five (5) days of such sale or issuance,
make a mandatory prepayment of the Loan in an amount
equal to fifty percent (50%) of the cash proceeds
thereof, net of: (a) any reasonable costs directly
incurred in connection with such sale or issuance; (b)
proceeds used by Borrower to acquire businesses or
business assets; and (c) proceeds used to fund any
Lender approved expanded business plan, provided,
however, that no such prepayment shall be
required in connection with any such issuance or sale:
(i) to a subsidiary of Borrower or Borrower’s parent or
an affiliate thereof, including the Lender; (ii) in
connection with any acquisition (including by way of
merger or consolidation or share exchange) by Borrower
of the stock or assets of another person or entity in a
transaction pursuant to which the purchase price is paid
in whole or in part by the delivery of capital stock of
Borrower to the seller; or (iii) to officers, directors,
employees or agents of Borrower or any of its
subsidiaries pursuant to stock option or other benefit
or incentive plans.



     Section 1.6 Application of Prepayments. All voluntary and
mandatory prepayments of the Loan shall be applied first to accrued interest
and then to the principal outstanding under the Loan.


     Section 1.7 Payment on Non-Business Days. Whenever any payment to
be made hereunder or under the Secured Promissory Note shall be due on a
Saturday, Sunday or public


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holiday, such payment may be made on the next succeeding business
day, and such extension of time in such case shall be included in the
computation of interest hereunder and under the Secured Promissory Note.


     Section 1.8 Taxes. All sums payable by Borrower hereunder or under
the Secured Promissory Note, whether of principal, interest, fees, expenses or
otherwise, shall be paid in full, free of any deductions or withholdings for
any and all present and future taxes, levies, imposts, stamps, duties, fees,
assessments, deductions, withholdings, and other governmental charges and all
liabilities with respect thereto. If Borrower is prohibited by law from making
payments hereunder or under the Secured Promissory Note free of such deductions
or withholdings, then Borrower shall pay such additional amount as may be
necessary in order that the actual amount received by Lender after such
deduction or withholding shall equal the full amount stated to be payable
hereunder or under the Secured Promissory Note.


ARTICLE TWO

CLOSING



     Section 2.1 Closing. The full disbursement of the Loan and the
other transactions contemplated hereby shall take place as of October 1, 2003.


ARTICLE THREE

SECURITY



     Section 3.1 Sale or Removal of Collateral Prohibited. Except as
provided in the Stock Pledge Agreement, the Borrower shall not sell, lease,
encumber, pledge, mortgage, assign, grant a security interest in, or otherwise
transfer the Collateral (as the term “Collateral” is defined in the Stock
Pledge Agreement).


     Section 3.2 Perfection of Security Interest. From the date hereof,
Borrower agrees to execute and file financing statements, and do whatever may
be necessary under the applicable Uniform Commercial Code in the state where
the Collateral is located, to perfect and continue the Lender’s interest in the
Collateral, all at the Borrower’s expense.


     Section 3.3 Taxes and Assessments. The Borrower will pay or cause
to be paid promptly when due all taxes and assessments on the Borrower’s assets
or the Collateral, this Agreement and the Secured Promissory Note. The
Borrower may, however, withhold payment of any tax, assessment or claim if a
good faith dispute exists as to the obligation to pay.


     Section 3.4 Protection of Lender’s Security. If the Borrower fails
to perform any of its respective covenants and agreements contained or
incorporated in this Agreement, or if any action or proceeding is commenced
which affects the Collateral or title thereto or the interest of the Lender
therein, including, but not limited to insolvency, or arrangements or
proceedings involving a bankrupt or decedent, then the Lender, at the Lender’s
option, may make such appearance, disburse such sums, and take such action as
the Lender deems necessary, in its sole discretion, to protect the Lender’s
interest, including but not limited to (i) disbursement of attorneys’ fees,
(ii) entry upon the Borrower’s property to make repairs to the Borrower’s
assets, and (iii) procurement of satisfactory insurance. Any amounts disbursed
by Lender pursuant to


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this Section, with interest thereon, shall become additional indebtedness
of the Borrower secured by this Agreement. Unless the Borrower and the Lender
agree to other terms of payment, such amounts shall be immediately due and
payable and shall bear interest from the date of disbursement at the rate
stated in the Secured Promissory Note. Nothing contained in this Section shall
require the Lender to incur any expense or take any action.


     Section 3.5 Borrower and Lien Not Released. From time to time, the
Lender may, at the Lender’s option, without giving notice to or obtaining the
consent of the Borrower, the Borrower’s successors or assigns or of any other
lienholder, without liability on the Lender’s part, and notwithstanding the
Borrower’s breach of any covenant or agreement of the Borrower in this
Agreement, extend the time for payment of said indebtedness or any part
thereof, reduce the payments thereon, release anyone liable on any of said
indebtedness, accept a renewal note or notes therefor, modify the terms and the
time of payment of said indebtedness, release from the lien of this Agreement
any part of the Collateral, take or release other or additional security,
reconvey any part of the Collateral, consent to the granting of any easement,
join in any extension or subordination agreement, and agree in writing with the
Borrower to modify the rate of interest or period of amortization of the
Secured Promissory Note or change the amount of any installments payable
thereunder. Any actions taken by the Lender pursuant to the terms of this
Section shall not affect the obligation of the Borrower or the Borrower’s
successors or assigns to pay the sums secured by this Agreement and to observe
the covenants of the Borrower contained herein, shall not affect the guaranty
of any person, corporation, partnership, or other entity for payment of the
indebtedness secured hereby, and shall not affect the lien or priority of lien
hereof on the Collateral. The Borrower shall pay the Lender a reasonable
service charge, together with attorneys’ fees as may be incurred, at the
Lender’s option for any such action if taken at the Borrower’s request.


     Section 3.6 Forbearance by Lender Not a Waiver. Any forbearance by
the Lender in exercising any right or remedy hereunder, or otherwise afforded
by applicable law, shall not be a waiver of or preclude the exercise of any
right or remedy. The acceptance by the Lender of payment of any sum secured by
this Agreement after the due date of such payment shall not be a waiver of the
Lender’s right to either require prompt payment when due of all other sums so
secured or to declare a default for failure to make prompt payment. The
procurement of insurance or the payment of taxes, rents or other liens or
charges by the Lender shall not be a waiver of the Lender’s right to accelerate
the maturity of the indebtedness secured by this Agreement, nor shall the
Lender’s receipt of any awards, proceeds or damages as provided in this
Agreement operate to cure or waive the Borrower’s default in payment of sums
secured by the Loan Documents.


ARTICLE FOUR

REPRESENTATIONS AND WARRANTIES



     In order to induce Lender to enter into this Agreement and make the Loan,
Borrower represents and warrants as follows:


     Section 4.1 Existence and Standing. Borrower is a corporation duly
incorporated, validly existing and in good standing under the laws of the State
of Florida, is qualified to do business and in good standing under the laws of
each other jurisdiction in which it conducts its


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business, and has all requisite power and authority,
corporate or otherwise, to conduct its business, to own its properties and to
execute and deliver, and to perform all of its obligations under the Loan
Documents.


     Section 4.2 Authorizations, Compliance with Laws. The execution,
delivery and performance by the Borrower of each Loan Document to which it is a
party, and of each other document required to be executed and delivered by it
pursuant to this Agreement or any other Loan Document, have been duly
authorized by all necessary corporate action and do not and will not (i)
violate (A) any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award presently in effect having
applicability to Borrower or (B) any provision of the Certificate of
Incorporation, By-Laws or other organizational documents of Borrower; or (ii)
result in a breach of or constitute a default under any agreement or instrument
to which Borrower is a party or by which any of its properties may be affected;
or (iii) result in the creation of a lien, charge or encumbrance of any nature
upon Borrower’s properties or assets other than as contemplated by the Loan
Documents.


     Section 4.3 Approvals. No authorization, consent, approval,
license, exemption of or filing or registration with any court or governmental
department or agency or any other person is or will be necessary for the valid
execution, delivery and performance by Borrower of this Agreement, the Secured
Promissory Note, the Stock Pledge Agreement or any other document required to
be executed and delivered by Borrower pursuant to this Agreement.


     Section 4.4 Binding Obligations. This Agreement, the Secured
Promissory Note, the Stock Pledge Agreement and all other documents required to
be executed and delivered by Borrower pursuant to this Agreement have been
executed and delivered by a duly authorized officer of Borrower and constitute
legal, valid and binding obligations of Borrower, enforceable in accordance
with their respective terms.


     Section 4.5 Compliance with Laws. The Borrower has complied and is
in compliance in all material respects with all applicable federal, state and
local laws. The Borrower has obtained all necessary licenses and permits
required for the conduct of its business and operations or such licenses and
permits have been applied for and are now being diligently pursued.


     Section 4.6 Taxes. Except as set forth on Schedule 4.6 attached
hereto, the Borrower has filed all tax returns and reports (federal, state and
local) required to be filed by it, and has paid all taxes shown thereon,
including interest and penalties, and all assessments received by it (except to
the extent that the same are being contested in good faith by appropriate
proceedings diligently prosecuted and as to which adequate reserves have been
set aside on the books of Borrower and its subsidiaries, as appropriate, in
conformity with generally accepted accounting principles).


     Section 4.7 Title to Properties. The Borrower has title to all of
its property and assets and valid and enforceable leasehold interests in the
property which it holds under lease. The Borrower owns or possesses the valid
right to use all the patents, patent applications, patent and know-how
licenses, inventions, technology, permits, trademark registrations and
applications, trademarks, service marks, trade names, copyrights, product
designs, applications, formulae,


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processes, circulation, and other subscriber lists, industrial
property rights and licenses and rights in respect of the foregoing used in or
necessary for the conduct of its business (collectively “proprietary rights”).
Except as set forth in Schedule 4.7, the Borrower is not aware of any existing
or threatened infringement or misappropriation of (a) any such proprietary
rights of others by Borrower or (b) any proprietary rights of Borrower by
others.


ARTICLE FIVE

COVENANTS OF BORROWER



     Section 5.1 Covenants. So long as the Secured Promissory Note
shall remain unpaid and this Agreement shall not have been terminated, Borrower
hereby agrees, unless Lender shall otherwise consent in writing and except as
otherwise provided in the Stock Pledge Agreement, to:



		
	 	     Section 5.1.1 Payment of Obligations. Pay punctually and
discharge when due: (i) all indebtedness heretofore or hereafter
incurred; (ii) all taxes, assessments and governmental charges or levies
imposed upon it or its income or profits, or upon any properties
belonging to it; and (iii) all claims or demands of materialmen,
mechanics, carriers, warehousemen, landlords and other like persons
which, if unpaid, might become a lien or charge upon the property of
Borrower; provided that this covenant shall not require the payment of
any of the matters set forth in (i), (ii) and (iii) above if the same
shall be contested in good faith and by proper proceedings diligently
pursued and as to which adequate reserves have been set aside on the
books of Borrower in accordance with generally accepted accounting
principles.
	 
	 	     Section 5.1.2 Preservation of Existence. Preserve and
maintain Borrower’s respective corporate existence, and all material
rights, franchises, licenses and privileges used or useful in the
operation of its business.
	 
	 	     Section 5.1.3 Maintenance of Properties. Maintain and
preserve all of its properties necessary or useful in the proper conduct
of its business in good working order and condition, ordinary wear and
tear excepted.
	 
	 	     Section 5.1.4 Compliance with Laws. Comply in all material
respects with the requirements of all applicable laws, rules, regulations
and orders of any governmental authority.
	 
	 	     Section 5.1.5 Perfection of Liens. Do all things requested
by Lender to preserve and perfect the security interests of Lender
arising pursuant to this Agreement or any other agreement required
hereunder.
	 
	 	     Section 5.1.6 Governmental Approval. If counsel to Lender
reasonably determines that the consent of the Federal Communications
Commission or any other federal, state or local governmental or licensing
authority is required in connection with the execution, delivery and
performance of this Agreement, the Secured Promissory Note, the Stock
Pledge Agreement or any other document delivered to Lender in



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	 	connection herewith or therewith or as a result of any action which
may be taken pursuant hereto or thereto, then Borrower, at its sole cost
and expense, agrees to use its good faith reasonable efforts to secure
such consent and to cooperate with Lender in any action commenced by
Lender to secure such consent.
	 
	 	     Section 5.17 Agreements. Comply with its obligations under
the Loan Documents.
	 
	 	     Section 5.18 Insurance. The Borrower shall have and
maintain, or cause to be maintained, insurance at all times with respect
to all Borrower’s assets except accounts receivable, against such risks
as the Lender may reasonably require, in such form, for such periods, and
written by such companies as may be satisfactory to the Lender. In the
event of failure to provide insurance as herein provided, the Lender may,
at the Lender’s option, provide such insurance at the Borrower’s expense.



ARTICLE SIX

ORDER OF PAYMENTS



     Section 6.1 Order of Payments. Any and all amounts actually
received by the Lender in connection with the enforcement of this Agreement,
including the proceeds of any collection, sale or other disposition of all or
any part of the Collateral (collectively, the “Proceeds”), shall, promptly upon
receipt by the Lender, be applied:



	 	(i)	 	first, to the payment in full of the Loan, or in
the event that such Proceeds are insufficient to pay in full
the Loan, to the Lender in the following order of priority:




	 	(A)	 	to all interest (including default
interest) owing to the Lender on the Loan;
	 
	 	(B)	 	to principal amounts owing to the
Lender on the Loan;
	 
	 	(C)	 	any other fees or expenses incurred
hereunder; and




	 	(ii)	 	second, to the Borrower or in the manner that a
court of competent jurisdiction shall direct.



ARTICLE SEVEN

EVENTS OF DEFAULT AND REMEDIES



     Section 7.1 Events of Default. The occurrence of any of the
following events or conditions shall constitute an event of default (each an
“Event of Default”):



		
	 	     Section 7.1.1 Borrower shall fail to pay all principal due under the
Secured Promissory Note on or before the Maturity Date; or




		
	 	     Section 7.1.2 Borrower shall fail to pay any of the Secured
Obligations (other than payment of principal due under the Secured
Promissory Note on or before the



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	 	Maturity Date) pursuant to the terms of this Agreement and such
failure is not remedied within five (5) days of Lender’s written notice
to Borrower; or




		
	 	     Section 7.1.3 Any representation or warranty made by Borrower (or
any of its officers) herein, in this Agreement or any other Loan Document
or in any certificate, agreement, instrument or statement contemplated by
or made or delivered pursuant to or in connection with this Agreement or
any other Loan Document shall prove to have been incorrect in any
material respect when made; or




		
	 	     Section 7.1.4 Borrower shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement or any other Loan
Document, and any such failure remains unremedied for a period of thirty
(30) days after receipt of written notice from Lender; or




		
	 	     Section 7.1.5 (i) Borrower shall file a petition commencing a
voluntary case concerning it under any Chapter of Title 11 of the United
States code entitled “Bankruptcy”; or (ii) Borrower shall apply for or
consent to the appointment of any receiver, trustee, custodian or similar
officer for it or for all or any substantial part of its property; or
(iii) such receiver, trustee, custodian or similar officer shall be
appointed without the application or consent of Borrower and such
appointment shall continue undischarged for a period of forty five (45)
days; or (iv) an involuntary case is commenced against Borrower under any
Chapter of the aforementioned Title 11 and an order for relief under such
Title 11 is entered or the petition commencing the case is controverted
but is not dismissed within forty five (45) days after the commencement
of the case; or (v) Borrower shall institute (by petition, application,
answer, consent or otherwise) any bankruptcy, insolvency, reorganization,
arrangement, readjustment of debt, dissolution, liquidation or similar
proceeding relating to it under the laws of any jurisdiction; or (vi) any
such proceeding shall be instituted against Borrower and shall remain
undismissed for a period of forty five (45) days; or (vii) Borrower shall
take any action for the purpose of effectuating any of the foregoing; or




		
	 	     Section 7.1.6 Any court, government, or government agency shall
condemn, seize or otherwise appropriate or take custody or control of all
or a substantial portion of the property or assets of Borrower; or




		
	 	     Section 7.1.7 Borrower defaults under any funded indebtedness,
including but not limited to indebtedness evidenced by notes or capital
leases, of Borrower other than the amounts loaned pursuant to this
Agreement; or
	 	 
	 	     
Section 7.1.8 Any money judgment, writ or warrant of attachment, or
similar process involving, either individually or in the aggregate, an
amount in excess of $100,000, and in either case not adequately covered
by insurance as to which the insurance company has acknowledged coverage,
shall be entered or filed against Borrower or its assets and shall remain
undischarged, unvacated, unbonded or unstayed for a period of thirty (30)
days or in any event later than five (5) days prior to the date of any
proposed sale thereunder.





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     Section 7.2 Acceleration. Upon an Event of Default, the Lender
may give written notice to the Borrower of the occurrence of such Event of
Default and Borrower shall have the shorter of (i) thirty (30) days or (ii)
such remedy period as set forth in the applicable provisions of Sections 7.1.1
through 7.1.8 inclusive within which to cure such Event of Default. If the
Event of Default is not cured within the thirty (30) day cure period, then, at
the option of the Lender, Lender may declare the Borrower in default (a
“Default”) and all sums due hereunder shall become immediately due and payable.


     Any written notification from Lender to Borrower 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
Agreement.


     Lender by notice thereof to Borrower may rescind an acceleration and its
consequences if all existing Events of Default have been cured or waived in
writing.


ARTICLE EIGHT

MISCELLANEOUS PROVISIONS



     Section 8.1 Expenses. Borrower agrees to pay on demand all costs
and expenses incurred by Lender directly in the enforcement of this Agreement,
or any other Loan Document, and other instruments and documents to be delivered
hereunder, including, without limitation, the reasonable fees and expenses of
any attorney to whom the Secured Promissory Note is referred for collection
(whether or not litigation is commenced) or for representation out of court, in
trial, on appeal or in proceedings under any bankruptcy or insolvency law or
otherwise. In addition, Borrower shall pay any and all taxes and fees payable
or determined to be payable in connection with the execution, delivery or
recordation of any instruments and documents to be delivered hereunder.


     Section 8.2 No Waiver; Cumulative Remedies. No failure or delay on
the part of Lender in exercising any right, power or remedy hereunder shall
operate as a waiver, nor shall any single or partial exercise of any such
right, power or remedy hereunder operate as a waiver. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.


     Section 8.3 Amendments. No amendment, modification, termination or
waiver of any provision of the Agreement or any other Loan Document, nor
consent to any departure by Borrower, shall in any event be effective unless in
writing, signed by Lender and then only in the specific instance and for the
specific purpose for which given. No notice to or demand on Borrower in any
case shall entitle it to any other or further notice or demand in similar or
other circumstances except as expressly provided herein or in another Loan
Document.


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     Section 8.4 Notices. All notices and other communications under
this Agreement shall be in writing and shall be delivered in person or by
mailing a copy thereof by registered or certified U.S. mail, return receipt
requested, to the applicable party at the addresses indicated below:



	 	 	 
	If to Borrower:	 	
Acceris Communications Inc.
	 	 	
9775 Business Park Avenue
	 	 	
San Diego, CA 92131
	 	 	
Attn: Gary Clifford, CFO
	 	 	 
	If to Lender:	 	
Counsel Corporation (US)
	 	 	
500 Atrium Drive, First Floor
	 	 	
Somerset, NJ 08873
	 	 	
Attn: Stephen Weintraub



or at such other address as may be designated by either party in a written
notice to the other complying as to delivery with the terms of this Section.
All such notices and other communications shall be effective when deposited in
the mails.


     Section 8.5 Binding Effect. This Agreement shall become effective
when executed and thereafter shall be binding upon and inure to the benefit of
Borrower, Lender and their respective successors and assigns, except that
Borrower shall not have the right to assign any rights or obligations hereunder
without the prior written consent of Lender. Lender shall be permitted to
assign, without Borrower’s consent, all or any portion of Lender’s rights and
interests hereunder and under each other document executed in connection with
this Agreement.


     Section 8.6 Governing Law. This Agreement, the Secured Promissory
Note, the Stock Pledge Agreement and related documents shall be governed by,
and construed in accordance with, the laws of the State of New York with the
exception of its conflicts of laws provisions; provided that the effect of any
recordation shall be determined by the State thereof.


     Section 8.7 Severability of Provisions. Any provision of this
Agreement, the Secured Promissory Note, or the Stock Pledge Agreement that is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions or affecting the validity or
enforceability of any provisions in any other jurisdiction.


     Section 8.8 Headings. Article and Section headings in this
Agreement are included for convenience of reference only and shall not
constitute a part of this Agreement for any other purpose.


     Section 8.9 Rights Affected by Extensions. The rights of Lender
and its assigns shall not be impaired by any indulgence, release, renewal,
extension or modification which Lender may grant with respect to the
indebtedness or any part thereof, or with respect to the Collateral or with
respect to any endorser, guarantor, or surety without notice or consent of
Borrower or any endorser, guarantee or surety.


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     Section 8.10 Survival of Representations and Warranties. All
representations and warranties made in this Agreement and in any agreements,
documents or certificates delivered pursuant hereto or thereto shall survive
the execution and delivery of this Agreement and the Secured Promissory Note
and the making of the Loan hereunder and continue in full force and effect, as
of the respective dates as of which they were made, until all of the
obligations of Borrower to Lender hereunder have been paid in full.


     Section 8.11 Further Assurances. From time to time, Borrower shall
execute and deliver, or cause to be executed and delivered, to Lender such
additional documents as Lender may reasonably require to carry out the purposes
of this Agreement or any of the documents entered into in connection herewith,
or to preserve and protect the rights of Lender hereunder or thereunder.


     Section 8.12 Indemnification. Borrower hereby indemnifies and
holds harmless Lender and its partners, directors, officers, shareholders,
employees, agents, counsel, subsidiaries and affiliates (the “Indemnified
Persons”) from and against any and all losses, liabilities, obligations,
damages, penalties, actions, judgments, suits, costs, expenses of disbursements
of any kind or nature whatsoever which may be imposed on, incurred by, or
asserted against any Indemnified Person in any way relating to or arising out
of this Agreement, the other Loan Documents, the documents entered into in
connection herewith or therewith, or any of them or any of the transactions
contemplated hereby or thereby, the making of the Loan, the use of the proceeds
of the Loan or the ownership or operation of the business or assets of Borrower
or any of its subsidiaries; provided, however, that Borrower shall not be
liable to any Indemnified Person, if there is a judicial determination that
such losses, liabilities, obligations, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting solely from the negligence or
willful misconduct of such Indemnified Person.


JURY TRIAL WAIVER. EACH OF LENDER AND BORROWER HEREBY AGREE TO WAIVE ITS
RESPECTIVE RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT, ANY OF THE LOAN DOCUMENTS, OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION AND THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. THIS WAIVER IS
IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING,
AND THE WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS,
REPLACEMENTS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT, THE LOAN
DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOAN.


     Section 8.13 Maximum Interest. Lender and Borrower intend that
this Agreement and the other Loan Documents conform to all applicable usury
laws. Accordingly, no provisions of the Loan Documents shall require the
payment or permit the collection of interest in excess of the maximum rate
permitted by applicable law (“Maximum Rate”), or obligate Borrower to pay any
taxes, assessments, charges, insurance premiums or other amounts which are held
to constitute interest to the extent that such payments, when added to the
other obligations under the Loan Documents, would be held to constitute
contracting for, or the
payment by Borrower of, interest at a rate greater than the Maximum Rate.
Lender and Borrower further agree that:


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	 	     Section 8.13.1 if any excess of interest in such respect is herein
or in any such other instrument provided for, or shall be adjudicated to
be so provided for herein or in any such instrument, the provisions of
this subsection shall govern, and neither Borrower nor its successors or
assigns shall be obligated to pay the amount of such interest to the
extent it is in excess of the Maximum Rate;




		
	 	     Section 8.13.2 if at any time the amount of interest under any of
the Loan Documents for a calendar year exceeds the Maximum Rate and the
Maximum Rate at all times been in effect, the interest chargeable under
any such Loan Document shall be limited to the amount of interest that
could have been charged if the Maximum Rate had at all times been in
effect, but any subsequent reductions in the interest due shall not
reduce the rate of interest chargeable under any such Loan Document below
the Maximum Rate until the total amount of interest accrued under any
such Loan Document equals the amount of interest that would have accrued
if the interest provided for in any such Loan Document had at all times
been in effect and collectible;




		
	 	     Section 8.13.3 if the maturity of any Loan Document is accelerated
for any reason, or in the event of any prepayment by Borrower, or in any
other event, earned interest may never include more than the Maximum
Rate, computed from the date of disbursement of the funds evidenced by
such Loan Document until payment, and any interest otherwise payable
under such Loan Document that is in excess of the Maximum Rate shall be
canceled automatically as of such acceleration or such other event and
(if theretofore paid) shall be credited against principal;




		
	 	     Section 8.13.4 if it should be held that any interest payable or
chargeable under any Loan Document is in excess of the Maximum Rate, the
interest payable or chargeable under such Loan Document shall be reduced
to the maximum amount permitted by applicable federal or state law,
whichever shall permit the higher lawful interest, as construed by courts
having jurisdiction thereof; and




		
	 	     Section 8.13.5 the spreading, prorating and amortizing of interest
over the Maturity Date of the Loan Documents shall be allowed to the
fullest extent permitted by applicable law.



[See attached Signature Page]



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Signature page

to Loan Agreement

dated as of October 1, 2003



     IN WITNESS WHEREOF, the parties hereto have caused this Loan Agreement to
be executed by their respective duly authorized officers as of the 30TH day of
January, 2004.



	 	 	 	 	 	 	 
	 	 	ACCERIS COMMUNICATIONS INC.
	 	 	 	 	 	 	 
	 	 	
By:	 	 	 	 
	 	 	 	 	

	 	 	 	 	Name:	 	 
	 	 	 	 	 	 	

	 	 	 	 	Title:	 	 
	 	 	 	 	 	 	

	 	 	COUNSEL CORPORATION (US)
	 	 	 	 	 	 	 
	 	 	
By:	 	 	 	 
	 	 	 	 	

	 	 	 	 	Name:	 	 
	 	 	 	 	 	 	

	 	 	 	 	Title:	 	 
	 	 	 	 	 	 	





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