EXHIBIT 1.9
FOURTH AMENDMENT
TO
SENIOR CONVERTIBLE LOAN AND SECURITY AGREEMENT
THIS FOURTH AMENDMENT TO SENIOR CONVERTIBLE LOAN AND SECURITY AGREEMENT
is made and entered into as of June 30, 2004 , by and between Acceris
Communications Inc. (formerly known as 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, Second and Third Amendments to Senior Convertible Loan and Security
Agreement, dated May 8, 2001, March 1, 2003 and November 19, 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 June 30, 2004 (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 December 31, 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. Effect on Loan Agreement and Loan Note. This Fourth 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. 2.
[See attached signature page]
SIGNATURE PAGE
TO
FOURTH AMENDMENT TO SENIOR CONVERTIBLE LOAN AND SECURITY AGREEMENT
DATED AS OF JUNE 30, 2004
IN WITNESS WHEREOF, the Borrower and the Lender have executed this
Fourth Amendment as the date first set forth above.
ACCERIS COMMUNICATIONS INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: SVP & Secretary
COUNSEL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: SVP & Secretary
COUNSEL CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: SVP & Secretary
