0000950144-05-001532.txt : 20120705 0000950144-05-001532.hdr.sgml : 20120704 20050216111412 ACCESSION NUMBER: 0000950144-05-001532 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 6 FILED AS OF DATE: 20050216 DATE AS OF CHANGE: 20050216 GROUP MEMBERS: COUNSEL CAPITAL CORPORATION GROUP MEMBERS: COUNSEL COMMUNICATIONS LLC GROUP MEMBERS: COUNSEL CORPORATION GROUP MEMBERS: COUNSEL LLC GROUP MEMBERS: COUNSELCARE LTD SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ACCERIS COMMUNICATIONS INC CENTRAL INDEX KEY: 0000849145 STANDARD INDUSTRIAL CLASSIFICATION: TELEGRAPH & OTHER MESSAGE COMMUNICATIONS [4822] IRS NUMBER: 592291344 STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-40638 FILM NUMBER: 05619620 BUSINESS ADDRESS: STREET 1: 9775 BUSINESSPARK AVENUE CITY: SAN DIEGO STATE: CA ZIP: 92131 BUSINESS PHONE: 8585475700 MAIL ADDRESS: STREET 1: 1001 BRINTON ROAD CITY: PITTSBURGH STATE: PA ZIP: 15221 FORMER COMPANY: FORMER CONFORMED NAME: I LINK INC DATE OF NAME CHANGE: 19971020 FORMER COMPANY: FORMER CONFORMED NAME: MEDCROSS INC DATE OF NAME CHANGE: 19920703 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: COUNSEL CORP CENTRAL INDEX KEY: 0000939897 STANDARD INDUSTRIAL CLASSIFICATION: TELEPHONE COMMUNICATIONS (NO RADIO TELEPHONE) [4813] IRS NUMBER: 086762309 FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: EXCHANGE TOWER STE 1300 STREET 2: 2 FIRST CANADIAN PL CITY: TORONTO ONTARIO CANA STATE: A6 BUSINESS PHONE: 4168663000 MAIL ADDRESS: STREET 1: EXCHANGE TOWER STE 1300 STREET 2: 2 FIRST CANADIAN PL CITY: TORONTO ONTARIO STATE: A6 ZIP: 000000 SC 13D/A 1 g93276a3sc13dza.htm ACCERIS COMMUNICATION INC. Acceris Communication Inc.
 

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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

SCHEDULE 13D

Under the Securities Exchange Act of 1934
(Amendment No. 3)*

ACCERIS COMMUNICATIONS INC.
(Name of Issuer)

COMMON STOCK
(Title of Class of Securities)

449927-10-2
(CUSIP Number)

COUNSEL CORPORATION
40 KING STREET WEST
SCOTIA PLAZA, SUITE 3200
TORONTO, ONTARIO, CANADA M5H 3Y2
(416) 866-3000
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)

November 30, 2003
(Date of Event Which Requires Filing of this Statement)

If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o

Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.

* The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.

The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).

 

             
CUSIP No. 449927-10-2 Page 2 of 14
  1. Name of Reporting Person:
COUNSEL COMMUNICATIONS LLC		 I.R.S. Identification Nos. of above persons (entities only):
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) o  
    (b) o  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
OO
  5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
DELAWARE
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
4,088,777 (SEE ITEM 5)
8. Shared Voting Power:
0 (SEE ITEM 5)
9. Sole Dispositive Power:
4,088,777 (SEE ITEM 5)
10.Shared Dispositive Power:
0 (SEE ITEM 5)
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
4,088,777 SHARES OF COMMON STOCK (SEE ITEM 5)
  12.Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
þ
  13.Percent of Class Represented by Amount in Row (11):
21.3% (SEE ITEM 5)
  14.Type of Reporting Person (See Instructions):
OO

2

 

             
CUSIP No. 449927-10-2 Page 3 of 14
  1. Name of Reporting Person:
COUNSEL LLC		 I.R.S. Identification Nos. of above persons (entities only):
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) o  
    (b) o  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
OO
  5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
DELAWARE
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
0 (SEE ITEM 5)
8. Shared Voting Power:
0 (SEE ITEM 5)
9. Sole Dispositive Power:
0 (SEE ITEM 5)
10.Shared Dispositive Power:
0 (SEE ITEM 5)
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
4,088,777 SHARES OF COMMON STOCK (SEE ITEM 5)
  12.Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
þ
  13.Percent of Class Represented by Amount in Row (11):
21.3% (SEE ITEM 5)
  14.Type of Reporting Person (See Instructions):
OO

3

 

             
CUSIP No. 449927-10-2 Page 4 of 14
  1. Name of Reporting Person:
COUNSEL CAPITAL CORPORATION		 I.R.S. Identification Nos. of above persons (entities only):
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) o  
    (b) o  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
OO
  5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
ONTARIO, CANADA
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
0 (SEE ITEM 5)
8. Shared Voting Power:
0 (SEE ITEM 5)
9. Sole Dispositive Power:
0 (SEE ITEM 5)
10.Shared Dispositive Power:
0 (SEE ITEM 5)
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
4,088,777 SHARE OF COMMON STOCK (SEE ITEM 5)
  12.Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
þ
  13.Percent of Class Represented by Amount in Row (11):
21.3% (SEE ITEM 5)
  14.Type of Reporting Person (See Instructions):
CO

4

 

             
CUSIP No. 449927-10-2 Page 5 of 14
  1. Name of Reporting Person:
COUNSEL CORPORATION (US)		 I.R.S. Identification Nos. of above persons (entities only):
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) o  
    (b) o  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
OO
  5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
DELAWARE
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
13,428,492 (SEE ITEM 5)
8. Shared Voting Power:
0 (SEE ITEM 5)
9. Sole Dispositive Power:
13,428,492 (SEE ITEM 5)
10.Shared Dispositive Power:
0 (SEE ITEM 5)
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
13,428,492 SHARES OF COMMON STOCK (SEE ITEM 5)
  12.Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o
  13.Percent of Class Represented by Amount in Row (11):
69.8% (SEE ITEM 5)
  14.Type of Reporting Person (See Instructions):
CO

5

 

             
CUSIP No. 449927-10-2 Page 6 of 14
  1. Name of Reporting Person:
COUNSELCARE LTD		 I.R.S. Identification Nos. of above persons (entities only):
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) o  
    (b) o  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
CO
  5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
DELAWARE
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
0 (SEE ITEM 5)
8. Shared Voting Power:
0 (SEE ITEM 5)
9. Sole Dispositive Power:
0 (SEE ITEM 5)
10.Shared Dispositive Power:
0 (SEE ITEM 5)
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
13,428,492 SHARES OF COMMON STOCK (SEE ITEM 5)
  12.Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o
  13.Percent of Class Represented by Amount in Row (11):
69.8% (SEE ITEM 5)
  14.Type of Reporting Person (See Instructions):
CO

6

 

             
CUSIP No. 449927-10-2 Page 7 of 14
  1. Name of Reporting Person:
COUNSEL CORPORATION		 I.R.S. Identification Nos. of above persons (entities only):
  2. Check the Appropriate Box if a Member of a Group (See Instructions):
    (a) o  
    (b) o  
  3. SEC Use Only:
  4. Source of Funds (See Instructions):
OO
  5. Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o
  6. Citizenship or Place of Organization:
ONTARIO, CANADA
Number of
Shares
Beneficially
Owned by
Each Reporting
Person With
7. Sole Voting Power:
3,329,482 (SEE ITEM 5)
8. Shared Voting Power:
0 (SEE ITEM 5)
9. Sole Dispositive Power:
3,329,482 (SEE ITEM 5)
10.Shared Dispositive Power:
0 (SEE ITEM 5)
  11.Aggregate Amount Beneficially Owned by Each Reporting Person:
20,846,751 SHARES OF COMMON STOCK (SEE ITEM 5)
  12.Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
o
  13.Percent of Class Represented by Amount in Row (11):
92.3% (SEE ITEM 5)
  14.Type of Reporting Person (See Instructions):
CO

7

 

CUSIP NO.  449927-10-2   13D   PAGE 8 OF 14 PAGES

ITEM 1.  SECURITY AND ISSUER.

     This Schedule 13D/A-3 relates to the common stock, par value $.01 per share (the “Common Stock”), of Acceris Communications Inc., a Florida corporation (the “Issuer”), formerly known as I-Link Incorporated, whose principal executive office is located at 9775 Business Park Avenue, San Diego, California 92131, and amends and restates the Schedule 13D filed by the Reporting Persons with the Securities and Exchange Commission (the “SEC”) on March 13, 2001 as later amended and restated on the Schedule 13D filed by the Reporting Persons with the SEC on May 2, 2001 and again on June 4, 2001 (the “Schedule 13D”).

ITEM 2.  IDENTITY AND BACKGROUND.

(a)   The reporting persons are (i) Counsel Corporation, an Ontario, Canada corporation (“Counsel”), (ii) Counsel Capital Corporation, an Ontario, Canada corporation and wholly-owned subsidiary of Counsel (“Counsel Capital”), (iii) Counsel LLC, a Delaware limited liability company that is owned jointly by Counsel and Counsel Capital (“Counsel LLC”), (iv) Counsel Communications, LLC f/k/a Counsel Springwell Communications, LLC, a Delaware limited liability company that is owned by Counsel LLC (“Counsel Communications”), (v) CounselCare Ltd, a Delaware corporation and wholly-owned subsidiary of Counsel (“CounselCare”), and (vi) Counsel Corporation (US), a Delaware corporation and wholly-owned subsidiary of CounselCare (“Counsel (US)”). Allan C. Silber, an individual citizen of Ontario, Canada, was included in prior Schedule 13D filings as a reporting person due to his ownership of Counsel capital stock and his position as Chief Executive Officer of Counsel. In such prior filings, Mr. Silber disclaimed beneficial ownership of the securities owned by Counsel and its affiliates. Due to the issuance of additional equity interests of capital stock by Counsel, Mr. Silber’s ownership percentage of Counsel has been reduced to approximately 7.7%. Accordingly, Mr. Silber is no longer included as a reporting person in this Schedule 13D. The directors and executive officers of Counsel, Counsel Capital, Counsel LLC, Counsel Communications, CounselCare and Counsel (US) as of the date hereof are set forth on Schedule A attached to the Schedule 13D and are incorporated herein by reference (“Schedule A”).

(b)   The principal business address of each of Counsel and Counsel Capital is: Scotia Plaza, Suite 3200, 40 King Street West, Toronto, Ontario M5H 3Y2. The principal business address of each of Counsel LLC, Counsel Communications, CounselCare and Counsel (US) is 500 Atrium Drive, First Floor, Somerset, New Jersey 08873. The principal business address of each of the directors and executive officers of Counsel, Counsel Capital, Counsel LLC, Counsel Communications, CounselCare, and Counsel (US) is set forth on Schedule A.

(c)   Counsel is a diversified company that currently focuses on acquiring and building businesses in two specific sectors: telecommunications and real estate. Counsel Capital is a wholly-owned subsidiary of Counsel. 11.05% of Counsel LLC is owned by Counsel Capital and the remaining 88.95% of Counsel LLC is owned by Counsel. Counsel Communications is a wholly-owned subsidiary of Counsel LLC. CounselCare is a

 

 

CUSIP NO.  449927-10-2   13D   PAGE 9 OF 14 PAGES

        wholly-owned subsidiary of Counsel, and Counsel (US) is a wholly-owned subsidiary of CounselCare. The principal occupation of each director and executive officer of Counsel, Counsel Capital, Counsel LLC, Counsel Communications, CounselCare, and Counsel (US), including the principal business address and the address of any organization in which such employment is conducted, is set forth on Schedule A attached hereto and is incorporated herein by reference.

(d)   During the last five years, neither Counsel, Counsel Capital, Counsel LLC, Counsel Communications, CounselCare nor Counsel (US), nor any of their current directors or executive officers, has been convicted in a criminal proceeding.

(e)   During the last five years, neither Counsel, Counsel Capital, Counsel LLC, Counsel Communications, CounselCare nor Counsel (US), nor any of their directors or executive officers, has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations, or prohibiting or mandating activities subject to federal or state securities laws or finding any violation with respect to such laws.

(f)   With the exception of Mr. Furlong, Mr. Lomicka, Mr. Shimer and Mr. Wollmuth, who are U.S. citizens, all of the directors and executive officers listed on Schedule A are Canadian citizens.

ITEM 3.  SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.

     Counsel Communications purchased shares of Series M and Series N preferred stock of the Issuer (the “Preferred Stock”) from Winter Harbor, LLC, pursuant to the terms of a Securities Purchase Agreement by and between Winter Harbor and Counsel Communications dated March 1, 2001, that is attached to the Schedule 13D as Exhibit 1.2 (the “Purchase Agreement”) and is incorporated herein by reference. All share totals and the conversion prices referenced herein give effect to the 1:20 reverse stock split effected by the Issuer on December 9, 2003. The Preferred Stock purchased pursuant to the Purchase Agreement was purchased with an intent to convert it into shares of Common Stock, and on March 7, 2001, it was converted into 3,098,303 shares (post-split) of Common Stock. Pursuant to the Purchase Agreement, certain shares of Common Stock were held in escrow. Pursuant to an agreement between Counsel Communications and Winter Harbor, LLC, effective August 29, 2003, 118,750 shares (post-split) of Common Stock were released from escrow and delivered to Counsel Communications.

     In connection with its purchase of an equity interest in the Issuer pursuant to the Purchase Agreement, Counsel Communications further agreed to lend the Issuer up to ten million dollars ($10,000,000) pursuant to a convertible promissory note (the “Note”). The Note was later amended so as to increase the amount that Counsel Communications may lend to Issuer up to twelve million dollars ($12,000,000). The terms of the Note provide that Counsel Communications may convert the outstanding balance of the Note plus accrued interest at a conversion price of $5.02 per share (post-split) of Common Stock. As of December 31, 2004, the total outstanding debt under the Note (including principal and accrued interest) was

 

 

CUSIP NO.  449927-10-2   13D   PAGE 10 OF 14 PAGES

$16,714,000, which is convertible into 3,329,482 shares (post-split) of Common Stock (the conversion price for this debt was 5.02 as of December 31, 2004). Pursuant to certain intra-company transfers, the Note was transferred to Counsel, and Counsel Communications was granted a call option to repurchase the Note from Counsel at face value, at any time prior to the conversion of the Note.

     On April 17, 2001, Counsel Communications, Issuer, WebToTel Inc., a Delaware corporation and a subsidiary of Counsel Communications (“WebToTel”) and I-Link Acquisition Corp., a Delaware corporation and wholly-owned subsidiary of Issuer (the “Merger Sub”), entered into an Agreement and Plan of Merger (“Merger Agreement”), whereby Issuer acquired Nexbell Communications (“Nexbell”) through the exchange of all of the shares of Nexbell’s parent company, WebToTel, for which Counsel Communications received 871,724 shares (post-split) of the Common Stock of Issuer in consideration for its ownership interest in WebToTel (the “Merger”). Prior to the Merger, Counsel Communications owned 99.89% of WebToTel.

     On June 4, 2001, the Issuer, through its wholly-owned subsidiary WorldxChange Corp. (f/k/a PT-1 Long Distance Inc., f/k/a PT-I Counsel Inc.) (the “Subsidiary”, and together with the Issuer, the “Buyer”), entered in a Multi-Party Agreement (the “Multi-Party Agreement”) pursuant to which Buyer purchased certain assets of WorldxChange Communications, Inc. (“WorldxChange”) out of bankruptcy proceedings for a purchase price of $13,000,000 (the “Assets”). The Assets included all of the assets employed in WorldxChange’s operations in the United States and consisted of WorldxChange’s equipment, inventory, retail long distance business, accounts receivable, authorizations, software programs and related technology. To enable Buyer to purchase the Assets and operate the related business, an affiliate of Counsel loaned Buyer $14,850,000 pursuant to a Loan and Security Agreement dated June 4, 2001 (the “WorldxChange Loan Agreement”).

     In connection with the WorldxChange Loan Agreement and the purchase of the Assets by Buyer, an affiliate of Counsel and the Issuer entered into a Warrant Agreement dated June 4, 2001 (the “Warrant Agreement”). The Warrant Agreement provided that in consideration of the $14,850,000 loan made under the WorldxChange Loan Agreement, the Issuer would issue three series of warrants to a Counsel affiliate (the “Warrants”). Each of these Warrants has expired and is no longer exercisable.

     On October 15, 2002, Counsel Communications and the Issuer entered into an Amended and Restated Debt Restructuring Agreement (the “Restructuring Agreement”). Pursuant to the Restructuring Agreement, on November 30, 2003, Counsel Corporation (US) converted an aggregate of $32,721,391.92 of outstanding debt (principal plus accrued interest) into 8,681,096 shares (post-split) of Common Stock at a conversion rate of $3.7728 per share (post-split). Also, pursuant to the Restructuring Agreement, on November 30, 2003, Counsel Corporation (US) converted $7,951,887.71 of outstanding debt (principal plus accrued interest) into 4,747,396 shares (post-split) of Common Stock at a conversion rate of $1.6750 per share (post-split).

 

 

CUSIP NO.  449927-10-2   13D   PAGE 11 OF 14 PAGES

ITEM 4.  PURPOSE OF TRANSACTION.

     The Issuer’s securities that are presently beneficially owned by Counsel, Counsel Capital, Counsel LLC, Counsel Communications, CounselCare and Counsel (US) were acquired and are currently being held for investment purposes. The reporting persons may acquire additional shares on the open market, in privately negotiated transactions or otherwise. Subject to certain transfer restrictions set forth under federal and state securities laws, the reporting persons may attempt to dispose of the shares owned by it on the open market, in privately negotiated transactions or otherwise.

     Pursuant to the terms of a Securities Support Agreement by and between the Issuer and Counsel Communications dated as of March 1, 2001 (the “Support Agreement”), the Issuer agreed to appoint two (2) designees of Counsel, reasonably acceptable to the Issuer, to the Issuer’s Board of Directors. The Support Agreement also obligated the Issuer, following the initial funding of the Note, to increase the size of the Board of Directors to no more than nine (9) members and, as soon as reasonably possible, to solicit the proxies of the Company’s shareholders to elect three (3) additional board nominees designated by Counsel. As of February 14, 2005, the Issuer’s Board of Directors consisted of eight members, four of whom are affiliated with Counsel.

     As a majority holder of the Issuer’s Common Stock, the Reporting Persons may seek to exercise control over the Issuer by taking a variety of actions including, but not limited to, causing the Issuer to enter into extraordinary corporate transactions, causing the composition of the Issuer’s Board of Directors and/or management to change, and/or causing a material change in the Issuer’s present capitalization. In addition, the Reporting Persons may seek to acquire additional shares of Common Stock in open market transactions from the Issuer or other persons, and may seek to engage in an acquisition, disposition or other transaction involving the Issuer. Alternatively, the Reporting Persons may retain their existing interest in the Issuer and not engage in any of the foregoing transactions.

ITEM 5.  INTEREST IN SECURITIES OF THE ISSUER.

     As of the close of business on December 31, 2004, Counsel beneficially owned an aggregate of 20,846,751 shares of the Issuer’s Common Stock, which, upon conversion (as described below), constituted approximately 92.3% of the outstanding shares of Issuer’s Common Stock, of which Counsel is directly entitled to acquire, subject to the exercise of the call option of Counsel Communications described in Item 3 and pursuant to the conversion of the Note, 3,329,482 shares of Issuer’s Common Stock, which would constitute approximately 14.8% of the outstanding shares of Issuer’s Common Stock (after giving effect to such conversion). Counsel Capital, Counsel LLC and Counsel Communications beneficially owned an aggregate of 4,088,777 shares of the Issuer’s Common Stock, which constituted approximately 21.3% of the outstanding shares of Issuer’s Common Stock. CounselCare and Counsel (US) beneficially owned an aggregate of 13,428,492 shares of the Issuer’s Common Stock, which constituted approximately 69.8% of the outstanding shares of Issuer’s Common Stock. Counsel and Counsel Capital are reporting persons for purposes of this Schedule 13D by virtue of their ownership interests in Counsel LLC, which is a reporting person by virtue of its ownership

 

 

CUSIP NO.  449927-10-2   13D   PAGE 12 OF 14 PAGES

    interest in Counsel Communications. Counsel is also a reporting person for purposes of this Schedule 13D by virtue of its ownership in CounselCare, which is a reporting person by virtue of its ownership interest in Counsel (US). The voting percentages shown on pages 2 through 7 of the Schedule 13D are incorporated herein by reference. Each of Counsel, Counsel Communications, and Counsel (US) have the sole power to vote and to dispose of all of the shares of Issuer Common Stock held by it. Neither Counsel Capital, Counsel LLC nor CounselCare have the power to directly vote or dispose of any of the shares of Issuer Common Stock to which this Schedule 13D relates.

ITEM 6.  CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER.

See Item 3

ITEM 7.  MATERIAL TO BE FILED AS EXHIBITS.

     1.1 Agreement to File Jointly dated March 5, 2004 by and among the Reporting Persons.

     1.2 Securities Purchase Agreement dated March 1, 2001 by and between Winter Harbor, LLC and Counsel Communications, LLC (incorporated by reference to the Schedule 13D filed by the Reporting Persons on March 13, 2001).

     1.3 Securities Support Agreement dated March 1, 2001 by and between I-Link Incorporated and Counsel Communications, LLC (incorporated by reference to the Schedule 13D filed by the Reporting Persons on March 13, 2001).

     1.4 Agreement and Plan of Merger dated April 17, 2001 by and among WebToTel, Inc. Counsel Communications, LLC, I-Link Incorporated and I-Link Acquisition Corp., and certain other shareholders (incorporated by reference to the Schedule 13D filed by the Reporting persons on May 2, 2001).

     1.5 Multi-Party Agreement dated June 4, 2001, by and among Counsel Corporation, PT-1 Counsel, Inc., George Farley, in his capacity as Trustee of the D&K Grantor Retained Annuity Trust (incorporated by reference to Exhibit 2.1 of the current report filed by Issuer on Form 8-K on June 19, 2001).

     1.6 Amended and Restated Debt Restructuring Agreement dated October 15, 2002, by and among Counsel Corporation (US), Counsel Communications, LLC, and the Issuer (incorporated by reference to Appendix B of the definitive proxy filed by Issuer on Schedule 14A on October 31, 2003).

     1.7 Second Amendment to Senior Convertible Loan and Security Agreement dated March 1, 2003 by and among the Issuer, Counsel Corporation and Counsel Capital Corporation.

 

 

CUSIP NO.  449927-10-2   13D   PAGE 13 OF 14 PAGES

     1.8 Third Amendment to Senior Convertible Loan and Security Agreement dated November 19, 2003, by and among the Issuer, Counsel Corporation and Counsel Capital Corporation.

     1.9 Fourth Amendment to Senior Convertible Loan and Security Agreement dated June 30, 2004, by and among the Issuer, Counsel Corporation and Counsel Capital Corporation.

     1.10 Fifth Amendment to Senior Convertible Loan and Security Agreement dated December 7, 2004, by and among the Issuer, Counsel Corporation and Counsel Capital Corporation.

 

 

CUSIP NO.  449927-10-2   13D   PAGE 14 OF 14 PAGES

SIGNATURES

     After reasonable inquiry and to the best knowledge and belief of each of the undersigned, the undersigned certify that the information set forth in this statement is true, complete and correct.

Date: February 14, 2005
         
  COUNSEL CORPORATION
COUNSEL LLC
COUNSEL COMMUNICATIONS, LLC
COUNSEL CAPITAL CORPORATION
COUNSELCARE LTD
COUNSEL CORPORATION (US)
 		  
  By:      
    Stephen A. Weintraub   
    Officer of Each Reporting Person   
 

 

 

Schedule A
To Schedule 13D

Board of Directors of Counsel:

     
Name   Address
Allan C. Silber
  Scotia Plaza, Suite 3200
Chairman, President & Chief Executive Officer
  40 King Street West
Counsel Corporation
  Toronto, ON M5H 3Y2
 
    
Stephen A. Weintraub
  Scotia Plaza, Suite 3200
Senior Vice President & Secretary
  40 King Street West
Counsel Corporation
  Toronto, ON M5H 3Y2
 
    
Frank Anderson
  330 Bay Street, Suite 1120
President
  Toronto, ON M5H 2S8
LIN Solutions Inc.
    
 
    
Anthony F. Griffiths
  95 Wellington St. West, Suite 800
Corporate Director.
  Toronto, ON M5J 2N7
 
    
William H. Lomicka
  7406 North Secret Canyon Drive
Chairman, Coulter Ridge Capital Inc.
  Tucson, AZ 85718
 
    
Philip Reichmann
  1 First Canadian Place
Chief Executive Officer
  Suite 3300
O & Y Properties Corporation
  Toronto, ON M5X 1B1

Executive Officers of Counsel:

     
Name   Address
Allan C. Silber
  Scotia Plaza, Suite 3200
Chairman, President & Chief Executive Officer
  40 King Street West
Counsel Corporation
  Toronto, ON M5H 3Y2
 
    
Gary Clifford
  Scotia Plaza, Suite 3200
Chief Financial Officer
  40 King Street West
Counsel Corporation
  Toronto, ON M5H 3Y2
 
    
Kelly Murumets
  Scotia Plaza, Suite 3200
Executive Vice President
  40 King Street West
Counsel Corporation
  Toronto, ON M5H 3Y2
 
    
Stephen A. Weintraub
  Scotia Plaza, Suite 3200
Senior Vice President & Secretary
  40 King Street West
Counsel Corporation
  Toronto, ON M5H 3Y2

 

 

Board of Directors of Counsel Capital:

     
Name   Address
Allan C. Silber
  Scotia Plaza, Suite 3200
Chairman, President & Chief Executive Officer
  40 King Street West
Counsel Corporation
  Toronto, ON M5H 3Y2

Executive Officers of Counsel Capital:

     
Name   Address
Allan C. Silber
  Scotia Plaza, Suite 3200
President
  40 King Street West
  Toronto, ON M5H 3Y2
 
    
Stephen A. Weintraub
  Scotia Plaza, Suite 3200
Senior Vice President & Secretary
  40 King Street West
  Toronto, ON M5H 3Y2

Board of Directors of Counsel LLC

     
Name   Address
Joseph F. Furlong, III
  5200 Maryland Way, Suite 400
President & Chief Executive Officer
  Brentwood, TN 37027
American HomePatient Inc.
    
 
    
Allan C. Silber
  Scotia Plaza, Suite 3200
Chairman, President & Chief Executive Officer
  40 King Street West
Counsel Corporation
  Toronto, ON M5H 3Y2
 
    
David H. Wollmuth, Esq.
  500 Fifth Avenue
Wollmuth Maher & Deutsch, LLP
  New York, NY 10110

Executive Officers of Counsel LLC

     
Name   Address
Allan C. Silber
  Scotia Plaza, Suite 3200
President
  40 King Street West
  Toronto, ON M5H 3Y2
 
    
Stephen A. Weintraub
  Scotia Plaza, Suite 3200
Secretary
  40 King Street West
  Toronto, ON M5H 3Y2

 

 

Board of Directors of Counsel Communications:

     
Name   Address
Samuel L. Shimer
  177 Broad Street, 15th Floor
Partner, Whitney & Co., LLC
  Stamford, CT 06901
 
    
Allan C. Silber
  Scotia Plaza, Suite 3200
Chairman, President & Chief Executive Officer
  40 King Street West
Counsel Corporation
  Toronto, ON M5H 3Y2

Executive Officers of Counsel Communications:

     
Name   Address
Allan C. Silber
  Scotia Plaza, Suite 3200
President
  40 King Street West
  Toronto, ON M5H 3Y2
 
    
Stephen A. Weintraub
  Scotia Plaza, Suite 3200
Secretary
  40 King Street West
  Toronto, ON M5H 3Y2

Board of Directors of CounselCare:

     
Name   Address
Allan C. Silber
  Scotia Plaza, Suite 3200
Chairman, President & Chief Executive Officer
  40 King Street West
Counsel Corporation
  Toronto, ON M5H 3Y2

Executive Officers of CounselCare:

     
Name   Address
Allan C. Silber
  Scotia Plaza, Suite 3200
President
  40 King Street West
  Toronto, ON M5H 3Y2
 
    
Stephen A. Weintraub
  Scotia Plaza, Suite 3200
Vice President & Secretary
  40 King Street West
  Toronto, ON M5H 3Y2

 

 

Board of Directors of Counsel (US):

     
Name   Address
Allan C. Silber
  Scotia Plaza, Suite 3200
Chairman, President & Chief Executive Officer
  40 King Street West
Counsel Corporation
  Toronto, ON M5H 3Y2

Executive Officers of Counsel (US):

     
Name   Address
Allan C. Silber
  Scotia Plaza, Suite 3200
President
  40 King Street West
  Toronto, ON M5H 3Y2
 
    
Stephen A. Weintraub
  Scotia Plaza, Suite 3200
Vice President & Secretary
  40 King Street West
  Toronto, ON M5H 3Y2

 

 

Exhibit Index

Exhibit No.

     1.1 Agreement to File Jointly dated March 5, 2004 by and among the Reporting Persons.

     1.2 Securities Purchase Agreement dated March 1, 2001 by and between Winter Harbor, LLC and Counsel Communications, LLC (incorporated by reference to the Schedule 13D filed by the Reporting Persons on March 13, 2001).

     1.3 Securities Support Agreement dated March 1, 2001 by and between I-Link Incorporated and Counsel Communications, LLC (incorporated by reference to the Schedule 13D filed by the Reporting Persons on March 13, 2001).

     1.4 Agreement and Plan of Merger dated April 17, 2001 by and among WebToTel, Inc. Counsel Communications, LLC, I-Link Incorporated and I-Link Acquisition Corp., and certain other shareholders (incorporated by reference to the Schedule 13D filed by the Reporting persons on May 2, 2001).

     1.5 Multi-Party Agreement dated June 4, 2001, by and among Counsel Corporation, PT-1 Counsel, Inc., George Farley, in his capacity as Trustee of the D&K Grantor Retained Annuity Trust (incorporated by reference to Exhibit 2.1 of the current report filed by Issuer on Form 8-K on June 19, 2001).

     1.6 Amended and Restated Debt Restructuring Agreement dated October 15, 2002, by and among Counsel Corporation (US), Counsel Communications, LLC, and the Issuer (incorporated by reference to Appendix B of the definitive proxy filed by Issuer on Schedule 14A on October 31, 2003).

     1.7 Second Amendment to Senior Convertible Loan and Security Agreement dated March 1, 2003 by and among the Issuer, Counsel Corporation and Counsel Capital Corporation.

     1.8 Third Amendment to Senior Convertible Loan and Security Agreement dated November 19, 2003, by and among the Issuer, Counsel Corporation and Counsel Capital Corporation.

     1.9 Fourth Amendment to Senior Convertible Loan and Security Agreement dated June 30, 2004, by and among the Issuer, Counsel Corporation and Counsel Capital Corporation.

     1.10 Fifth Amendment to Senior Convertible Loan and Security Agreement dated December 7, 2004, by and among the Issuer, Counsel Corporation and Counsel Capital Corporation.

 

EX-1.1 2 g93276a3exv1w1.txt EX-1.1 AGREEMENT TO FILE JOINTLY DATED MARCH 5, 2004 EXHIBIT 1.1 LETTER AGREEMENT The undersigned pursuant to Rule 13d-1 promulgated pursuant to the Securities Exchange Act of 1934, hereby execute this Letter Agreement for the purpose of electing to file jointly a schedule 13D pursuant to such act. Date: February 14, 2005 COUNSEL CORPORATION COUNSEL LLC COUNSEL COMMUNICATIONS, LLC COUNSEL CAPITAL CORPORATION COUNSELCARE LTD COUNSEL CORPORATION (US) /s/ Stephen A. Weintraub --------------------------------------- Stephen A. Weintraub Officer of Each Reporting Person EX-1.7 3 g93276a3exv1w7.txt EX-1.7 SECOND AMENDMENT TO SENIOR CONVERTIBLE LOAN AND SECURITY AGREEMENT EXHIBIT 1.7 SECOND AMENDMENT TO SENIOR CONVERTIBLE LOAN AND SECURITY AGREEMENT THIS SECOND AMENDMENT TO SENIOR CONVERTIBLE LOAN AND SECURITY AGREEMENT is made and entered into as of March 1, 2003 (the "EFFECTIVE DATE"), 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") (the Borrower, Counsel Corp and Counsel Capital 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 Amendment to Senior Convertible Loan and Security Agreement, dated May 8, 2001 (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 desire to amend the Loan Agreement as provided herein. NOW, THEREFORE, for good and valuable consideration the receipt and adequacy of which is hereby acknowledged it is agreed 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: This Agreement shall be effective from the date hereof and shall terminate on June 30, 2004, unless terminated earlier pursuant to the default provisions of this Agreement (the "Maturity Date"). 2. Effect on Loan Agreement and Loan Note. This Second Amendment is not intended, nor shall it be construed, as a modification or termination of the Amended and Restated Debt Restructuring Agreement, dated October 15, 2002. 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. [See attached signature page] SIGNATURE PAGE TO SECOND AMENDMENT TO SENIOR CONVERTIBLE LOAN AND SECURITY AGREEMENT IN WITNESS WHEREOF, the Borrower and the Lender have executed this Second Amendment as of the Effective Date. I-LINK INCORPORATED By: /s/ Allan Silber -------------------------------- Name: Allan Silber Title: PRESIDENT & CEO COUNSEL CORPORATION By: /s/ Stephen A. Weintraub -------------------------------- Name: Stephen A. Weintraub Title: SENIOR VICE PRESIDENT & SECRETARY COUNSEL CAPITAL CORPORATION By: /s/ Stephen A. Weintraub -------------------------------- Name: Stephen A. Weintraub Title: SECRETARY EX-1.8 4 g93276a3exv1w8.txt EX-1.8 THIRD AMENDMENT TO SENIOR CONVRETIBLE LOAN AND SECURITY AGREEMENT 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 2 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] 3 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/ Kelly D. Murumets --------------------------------- Name: Kelly D. Murumets Title: President COUNSEL CORPORATION By: /s/ Stephen A. Weintraub --------------------------------- Name: Stephen A. Weintraub Title: Sr. VP & Secretary COUNSEL CAPITAL CORPORATION By: /s/ Stephen A. Weintraub --------------------------------- Name: Stephen A. Weintraub Title: Secretary 4 EX-1.9 5 g93276a3exv1w9.txt EX-1.9 FOURTH AMENDMENT TO SENIOR CONVERTIBLE LOAN AND SECURITY AGREEMENT 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/ Stephen A. Weintraub ------------------------------------------ Name: Stephen A. Weintraub Title: SVP & Secretary COUNSEL CORPORATION By: /s/ Stephen A. Weintraub ------------------------------------------ Name: Stephen A. Weintraub Title: SVP & Secretary COUNSEL CAPITAL CORPORATION By: /s/ Stephen A. Weintraub ----------------------------------------- Name: Stephen A. Weintraub Title: SVP & Secretary EX-1.10 6 g93276a3exv1w10.txt EX-1.10 FIFTH AMENDMENT TO SENIOR CONVERTIBLE LOAN AND SECURITY AGREEMENT EXHIBIT 1.10 FIFTH AMENDMENT TO SENIOR CONVERTIBLE LOAN AND SECURITY AGREEMENT THIS FIFTH AMENDMENT TO SENIOR CONVERTIBLE LOAN AND SECURITY AGREEMENT is made and entered into as of December 7, 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, Third and Fourth Amendments to Senior Convertible Loan and Security Agreement, dated May 8, 2001, March 1, 2003, November 19, 2003 and June 30, 2004 (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 December 7, 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 January 31, 2006, 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 Fifth 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. [See attached signature page] SIGNATURE PAGE TO FIFTH AMENDMENT TO SENIOR CONVERTIBLE LOAN AND SECURITY AGREEMENT DATED AS OF DECEMBER 7, 2004 IN WITNESS WHEREOF, the Borrower and the Lender have executed this Fifth Amendment as the date first set forth above. ACCERIS COMMUNICATIONS INC. By: /s/ Stephen A. Weintraub ------------------------------------------ Name: Stephen A. Weintraub Title: Senior Vice President and Secretary COUNSEL CORPORATION By: /s/ Stephen A. Weintraub ------------------------------------------ Name: Stephen A. Weintraub Title: Senior Vice President and Secretary COUNSEL CAPITAL CORPORATION By: /s/ Stephen A. Weintraub ------------------------------------------ Name: Stephen A. Weintraub Title: Senior Vice President and Secretary