EXHIBIT 1.8
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: /s/ Xxxxx X. Murumets
---------------------------------
Name: Xxxxx X. Murumets
Title: President
COUNSEL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Sr. VP & Secretary
COUNSEL CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Secretary
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