exv10w40



 



Exhibit 10.40


THIRD AMENDMENT

TO

SENIOR CONVERTIBLE LOAN AND SECURITY AGREEMENT



     THIS THIRD AMENDMENT TO SENIOR CONVERTIBLE LOAN AND SECURITY AGREEMENT is
made and entered into as of November 19, 2003, by and between I-Link
Incorporated, a Florida corporation (the “Borrower”) and Counsel Corporation,
an Ontario corporation (“Counsel Corp”), and Counsel Capital Corporation, an
Ontario corporation (“Counsel Capital”), (collectively hereinafter referred to
as the “Parties”).


     WHEREAS, Counsel Communications, LLC, a Delaware limited liability company
(“CCOM”) having assigned ninety percent (90%) of its right title and interests
in the Loan Agreement (as hereinafter defined) subject to the Amended Debt
Restructuring Agreement (as hereinafter defined) on October 31, 2001, to
Counsel Corp and ten percent (10%) of its right, title and interests to Counsel
Capital (hereinafter Counsel Corp and Counsel Capital collectively referred to
as the “Lender"); and


     WHEREAS, the Borrower and the Lender are Parties to a Senior Convertible
Loan and Security Agreement, dated March 1, 2001 as amended by the First and
Second Amendments to Senior Convertible Loan and Security Agreement, dated May
8, 2001 and March 1, 2003 (collectively the “Loan Agreement”) and subject of
the Amended and Restated Debt Restructuring Agreement dated October 15, 2002
between Borrower, Counsel Corporation (US), a Delaware corporation, and CCOM
(the “Amended Debt Restructuring Agreement”); and


     WHEREAS, the Parties, inter alia, desire to amend the Loan Agreement
effective as of July 1, 2003 (the “Effective Date”) as provided herein.


     NOW, THEREFORE, for good and valuable consideration, the receipt and
adequacy of which is hereby acknowledged, the Parties agree as follows:


     1.     Extension of Maturity Date. Effective as of the Effective Date,
Section 4 of the Loan Agreement is hereby amended and restated in its entirety
to read as follows:



	 	 	“Section 4. Term. This Agreement shall be effective from the
date hereof and shall terminate on June 30, 2005, unless terminated
earlier pursuant to the default provisions of this Agreement (the
“Maturity Date”). Principal and interest shall be due and payable on the
Maturity Date.”



     2.     Modification of Periodic Finance Charges. Effective as of the
Effective Date, Section 2 of the Loan Agreement is hereby amended and restated
in its entirety to read as follows:



	 	 	“Section 2. Periodic Finance Charges. All principal and interest
then outstanding shall bear interest as a rate of 9.0% per annum (based
on a 360 day year), compounded quarterly and shall result in a
corresponding increase in the principal amount of the Note. All past due
principal and accrued interest on this Note shall bear interest from the
Maturity Date (whether at scheduled maturity, upon acceleration of
maturity following a Default (as defined below) or otherwise) until paid
at the lesser of (i) the rate of 18% per annum or (ii) the highest rate
for which Borrower may legally contract under applicable









 







	 	 	 law.All payments hereunder shall be payable in lawful money of the
United States of America which shall be legal tender for public and
private debts at the time of payments.”



     3.     Modification of Default. Effective as of the Effective Date,
Section 19 of the Loan Agreement is amended and restated in its entirety to
read as follows:


     “Section 19. Events of Default. When any of the following events
or conditions (each an “Event of Default”) occurs, Payee may give written
notice of Event of Default to Maker and Maker shall have thirty (30) days after
receipt of such written notice within which to cure such Event of Default. If
the Event of Default is not cured within the thirty (30) days, then the Lender
may, at its option, elect to declare Borrower to be in default (a “Default”):


     (a)  The Borrower shall fail to pay any of the Secured Obligations pursuant
to terms of this Agreement;


     (b)  The Borrower fails to comply with any term, obligation, covenant, or
condition contained in this Agreement;


     (c)  Any warranty or representation made to the Lender by the Borrower
under this Agreement or the Ancillary Documents proves to have been false when
made or furnished;


     (d)  If the Borrower 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 the Borrower is adjudged a bankrupt, or if a
trustee or receiver is appointed for the Borrower’s property, or if the
Collateral becomes subject to the jurisdiction of a federal bankruptcy court or
similar state court, or if the Borrower makes an assignment for the benefit of
its creditors, or if there is an attachment, receivership, execution or other
judicial seizer, then the Lender may, at the Lender’s option, declare all of
the sums secured by this Agreement to be immediately due and payable without
prior notice to the Borrower, and the Lender may invoke any remedies permitted
by this Agreement. Any attorneys’ fees and other expenses incurred by the
Lender in connection with the Borrower’s bankruptcy or any of the other events
described in this Section shall be additional indebtedness of the Borrower
secured by this Agreement.


     (e)  There exists a material breach by the Borrower under (or a termination
by any party of) a material contract of the Borrower with the exception of that
certain Cooperation and Framework Agreement with Red Cube International AG (for
purposes of this Section 19(e) a material contract shall mean any contract
resulting in revenues or in excess of $10,000 per annum);


     (f)  Borrower is in default 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;


     (g)  If Borrower breaches any material terms contained in any of the
Ancillary Documents, including, but not limited to, Borrower’s obligation to
perform any of its covenants respecting board representation and corporate
governance;


     (h)  If Borrower’s business undergoes a material adverse change in Lender’s
reasonable opinion;


     (i)  Any levy, seizure, attachment, lien, or encumbrance of or on the
collateral which is not discharged by the Borrower within 10 days or, any sale,
transfer, or disposition of any interest in the Collateral, other than in the
ordinary course of business, without the written consent of the Lender; or


     (j)  If at the end of any month (beginning with the calculation at the end
of April 2001), Cumulative Negative Cash Flow (as defined herein) exceeds 120%
of the forecasted


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amount for such month, as revised from time to time to reflect events
outside of the ordinary course of business. For purposes of this Agreement,
Cumulative Negative Cash Flow means the cumulative negative cash flow for such
month as set forth in the base financial model made available to Lender (such
model to be amended from time to time hereafter upon mutual agreement of
Borrower and Lender).


     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 notice under this Section 19.”


     4.     Acceleration. Section 20 of the Loan Agreement is amended and
restated in its entirety to read as follows:



	 	 	“Section 20. Acceleration. At the option of the Lender, upon a
Default, all sums due hereunder shall become immediately due and
payable. Lender, by notice thereof (a “Notice of Rescission of
Acceleration”) to the Borrower, may rescind an acceleration and
its consequences if all existing Events of Default have been cured
or waived in writing.”



     5.     Rights of Secured Parties. References in Section 21 of the Loan
Agreement to “Event of Default” are hereby modified to read “Default.”


     6.     Effect on Loan Agreement and Loan Note. This Third Amendment is
not intended, nor shall it be construed, as a modification or termination of
the Amended Debt Restructuring Agreement. Except as expressly provided herein,
the Loan Agreement and the Loan Note annexed thereto are hereby ratified and
confirmed and remain in full force and effect in accordance with their
respective terms. Lender and CCOM confirm that no Default under the Loan
Agreement or Loan Note has occurred from October 15, 2002 to the date hereof
and in the interest of specificity and clarity, Lender and CCOM agree with
Borrower that they and each of them waive forever any prior Event of Default
which may have occurred during such period.


[See attached signature page]



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Signature page

to

Third Amendment to Senior Convertible Loan and Security Agreement

dated as of November 19, 2003



     IN WITNESS WHEREOF, the Borrower and the Lender have executed this Third
Amendment as the date first set forth above.



	 	 	 	 	 
	 	 	I-LINK INCORPORATED
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

	 	 	 	 	Name:
	 	 	 	 	Title:
	 	 	 	 	 
	 	 	COUNSEL CORPORATION
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

	 	 	 	 	Name:
	 	 	 	 	Title:
	 	 	 	 	 
	 	 	COUNSEL CAPITAL CORPORATION
	 	 	 	 	 
	 	 	
By:	 	 
	 	 	 	 	

	 	 	 	 	Name:
	 	 	 	 	Title:




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