Exhibit 99.23
AMENDMENT AGREEMENT
MEMORANDUM OF AGREEMENT made as of the 9th day of December, 2004.
BETWEEN:
CIBC CAPITAL PARTNERS, A DIVISION OF CANADIAN
IMPERIAL BANK OF COMMERCE
(hereinafter referred to as "CIBC")
- and -
POINTS INTERNATIONAL LTD.,
(hereinafter referred to as "Points")
WHEREAS Points has issued to, and CIBC is the holder of, an 11%
$6,000,000 convertible debenture, amended and restated as of February 8, 2002,
and amended effective April 11, 2003 by agreement dated March 21, 2003 (the
"Debenture");
AND WHEREAS CIBC and Points desire to amend the maturity date of the
Debenture and CIBC's right of postponement under the Debenture;
NOW THEREFORE, in consideration of the premises, covenants and
agreements herein contained and other good and valuable consideration the
receipt and sufficiency of which are hereby acknowledged by each of the parties
hereto, the parties covenant and agree as follows:
ARTICLE I
INTERPRETATION
1.1 DEFINITIONS
Except as otherwise expressly set out herein, capitalized terms shall
have the meaning ascribed thereto in the Debenture. References in this Agreement
to the "parties" shall mean the parties to this Agreement and a reference to a
"party" shall mean one of the parties to this Agreement.
1.2 CONSTRUCTION
In this Agreement, unless otherwise expressly stated or the context
otherwise requires:
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(a) references to "herein", "hereby", "hereunder", "hereof" and similar
expressions are references to this Agreement and not to any particular
Article or Section;
(b) references to an "Article" or "Section" are references to an article,
section or schedule of or to this Agreement;
(c) words importing the singular shall include the plural and vice versa,
words importing gender shall include the masculine, feminine and
neuter genders, and references to a "person" or "persons" shall
include individuals, corporations, partnerships, associations, bodies
politic and other entities, all as may be applicable in the context;
and
(d) the use of headings is for convenience of reference only and shall not
affect the construction or interpretation hereof.
ARTICLE II
CURRENT AMENDMENTS
2.1 MATURITY DATE
Subject to Section 2.3, the Debenture is hereby amended by deleting
the reference to "March 15, 2004" in the preamble and replacing it with "July 4,
2005".
2.2 RIGHT OF POSTPONEMENT
Subject to Section 2.3, the Debenture is hereby amended by deleting
the existing section 2.4 and replacing it as follows:
"The Lender shall be entitled to elect to extend the term of the
Debenture to March 15, 2006, which shall then be the Maturity Date, by
providing to the Borrower, no later than March 31, 2005, a written
notice to that effect. Provided that the Lender shall have exercised
its right to extend the term of the Debenture to March 15, 2006, the
Lender shall be entitled to elect to extend the term of the Debenture
(the "Right of Postponement") for a maximum of two (2) successive one
year periods by providing up to two (2) notices (each, an "Extension
Notice") to the Borrower, in each case no later than 95 days prior to
the then Maturity Date. Each Extension Notice shall extend the term of
the Debenture (and, as a result, the Maturity Date) by one year (for
greater certainty, if the Lender delivers an Extension Notice prior to
December 10, 2005, the Maturity Date shall be extended to March 15,
2007 and if the Lender delivers a second Extension Notice prior to
December 10, 2006, the Maturity Date shall be extended to March 15,
2008)."
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2.3 EXCHANGE APPROVAL
The amendments to the Debenture set out herein shall not be effective
until, and shall automatically become effective without any further formality or
acts of the parties on, the date of receipt by Points of approval by the Toronto
Stock Exchange of the amendments (the "Required Approval").
2.4 CONFIRMATION
The parties hereby confirm and agree that, except as amended hereby,
the provisions of the Debenture remain in full force and effect.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1 REPRESENTATIONS AND WARRANTIES
Points represents and warrants to CIBC that:
(a) Points is validly existing under the laws of the Province of Ontario
and has full corporate power and authority to own its assets and conduct its
business as now owned and conducted.
(b) Subject to obtaining the Required Approval, the execution and delivery
of this Agreement by Points and the consummation by Points of the transactions
contemplated hereby have been duly authorized by all necessary corporate action
on the part of Points and no other corporate proceedings on the part of Points
are necessary to authorize this Agreement and the transactions contemplated
hereby.
(c) Upon the due execution and delivery by CIBC of this Agreement, this
Agreement will constitute a legal, valid and binding obligation of Points
enforceable against it in accordance with its terms (subject to bankruptcy,
insolvency and other laws affecting the rights of creditors generally and
subject to the qualification that equitable remedies may only be granted in the
discretion of a court of competent jurisdiction).
(d) Subject to obtaining the Required Approval, neither the entering into
nor the delivery of this Agreement nor the completion of the transactions
contemplated hereby by Points will result in the violation of (i) any of the
provisions of the constating documents or by-laws of Points, (ii) any agreement
or other instrument to which Points is a party or by which Points is bound or
(iii) any applicable law, rule or regulation.
(e) No notice is required to be given by Points to any person and no
consent, approval or authorization of any person is required on the part of
Points in connection with the execution and delivery of this Agreement and the
performance of its obligations hereunder other than notice to and the consent of
the Toronto Stock Exchange with respect to the amendments contemplated hereby.
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3.2 SURVIVAL
The representations and warranties of Points set out under Section 3.1
shall survive and continue in full force and effect for the term of the
Debenture.
ARTICLE IV
GENERAL
4.1 BINDING EFFECT
This Agreement shall be binding upon and shall enure to the benefit of
the parties hereto and their respective successors and assigns under section 9.6
of the Debenture. The Debenture, as amended by this Agreement, constitutes one
and the same agreement and supersedes any and all prior agreements, negotiations
and understandings.
4.2 GOVERNING LAW
This Agreement shall governed by and construed in accordance with the
laws of the Province of Ontario and the laws of Canada applicable therein and
shall be treated in all respects as an Ontario contract.
4.3 AMENDMENTS IN WRITING
No amendment, variation or waiver of the provisions of this Agreement
shall be effective unless made in writing and signed by each of the parties
hereto, either individually by counterpart or collectively. Any amendment,
variation or waiver shall take effect on the date specified in the amendment,
variation or waiver or, if not so specified, on the date on which the last party
executes and delivers the amendment, variation or waiver.
4.4 COUNTERPARTS
This Agreement and any amendment, supplement or restatement thereof
may be executed in one or more counterparts, each of which shall be deemed to
constitute an original.
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IN WITNESS WHEREOF the parties hereto have executed this Agreement as
of the date first written above.
CIBC CAPITAL PARTNERS, a division of
CANADIAN IMPERIAL BANK OF COMMERCE
by (signed) Christopher Payne
-------------------------------------
Name: Christopher Payne
Title: Director
(signed) Todd Worsley
-------------------------------------
Name: Todd Worsley
Title: Managing Director
POINTS INTERNATIONAL LTD.
by (signed) Rob MacLean
-------------------------------------
Name: Robert MacLean
Title: Chief Executive Officer
(signed) Doug Carty
-------------------------------------
Name: Douglas Carty
Title: Chairman
(INDUSTRY CANADA LOGO) Industrie Canada
CERTIFICATE OF CONTINUANCE CERTIFICAT DE PROROGATION
CANADA BUSINESS CORPORATIONS ACT LOI CANADIENNE SUR LES SOCIETES PAR ACTIONS
POINTS INTERNATIONAL LTD. 426791-5
Name of corporation-Denomination de la societe Corporation number-Numero de la societe
I hereby certify that the above-named Je certifie que la societe
corporation was continued under section 187 of susmentionnee a ete prorogee en vertu
the Canada Business Corporations Act, as set de l'article 187 de la Loi canadienne
out in the attached articles of continuance. sur les societes par actions, tel qu'il
est indique dans les clauses de
prorogation ci-jointes.
/s/ Illegible NOVEMBER 10, 2004 / LE 10 NOVEMBRE 2004
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Director - Directeur Date of Continuance - Date de la
prorogation
(CANADA LOGO)