EXHIBIT 2.3 MEDIUM TERM PARTICIPATION AGREEMENT Fog Cap L.P. ("the Bank")
hereby offers to ( See attached Schedule 1) ("the Participant") a participation
in respect of the Loan (as hereinafter defined) upon the terms and conditions
set out overleaf and by its execution hereof the Participant hereby ...
MEDIUM TERM PARTICIPATION AGREEMENT
Fog Cap L.P. ("the Bank") hereby offers to ( See attached Schedule 1) ("the
Participant") a participation in respect of the Loan (as hereinafter defined)
upon the terms and conditions set out overleaf and by its execution hereof the
Participant hereby accepts such offer.
/s/ R. Scott Stevenson (SEE ATTACHED SIGNATURE PAGE)
for and on behalf of the Bank for and on behalf of the Participant
Date of signature by the Participant: March 6, 2002
Address of Participant: (SEE ATTACHED SCHEDULE 1)
Attention: Jordan D. Schnitzer
Telephone: (503) 248-2000
Telex: (503) 248-9140
1.01 In this Agreement the words and phrases set out below shall have the
meanings ascribed to them below.
"ADVANCE" means the Loan or, if the Loan is divided into two or more amounts
which are treated separately for the purpose of calculating interest, any such
"BANK'S PARTICIPATION" means: in relation to an Advance, the portion thereof
owed to the Bank.
"BORROWER" means the person named as such in the Schedule.
"COMMENCEMENT DATE" means the date specified as such in the Schedule.
"GUARANTEE" means any guarantee described in the Schedule.
"GUARANTOR" means any person named as such in the Schedule.
"LOAN" means the principal amount from time to time outstanding under the
"LOAN AGREEMENT" means the loan agreement described in the Schedule.
"LOAN DOCUMENTS" means the Loan Agreement, any Guarantee and any document
"PARTICIPANT'S MARGIN" means, in relation to any interest, commission or fee,
the percentage rate specified in relation thereto in the Schedule.
"PARTICIPANT'S PERCENTAGE" means, the percentage specified as such in the
"PARTICIPATED FACILITY" means either the facility granted to the Borrower under,
or the financial arrangements contained in, the Loan Agreement or a sub-division
thereof as specified in the Schedule.
1.02 Any reference in this Agreement to:
(i) default interest is a reference to interest payable
on a sum as the result of payment or repayment
thereof not being made on the due date therefor;
(ii) interest shall, unless otherwise stated, be construed
as including default interest;
(iii) the Bank is a reference to the Bank in its capacity
as holder of such rights and obligations as have been
or may be obtained by the Bank in its capacity as a
lender under the Loan Agreement and as the Bank in
such capacity may be granted to have obtained under
any other Loan Documents and, for the purposes of
this Agreement, no account shall be taken of any
other rights or obligations under or relating to any
Loan Documents which the Bank may from time to time
(iv) an affiliate of the Bank is a reference to a
subsidiary or holding company, or a subsidiary of a
holding company, of the Bank; and
(v) another agreement is a reference to that other
agreement as the same may have been, or may from time
to time be, amended.
1.03 Clause headings are for ease of references only.
2. THE PARTICIPATION
2.01 Save as provided in Clause 2.02, the Participant shall pay to the Bank on
the Commencement Date the consideration provided in the Loan Option Agreement
between the parties in exchange for the Participant's Percentage of, and in the
same currency as, the Bank's Participation in each Advance then outstanding
under the Participated Facility.
2.02 Intentionally omitted.
2.03 Intentionally omitted.
2.04 Subject to compliance by the Participant with its obligations under this
Agreement and to Clause 2.05, the Bank shall promptly pay to the Participant an
amount equal to the Participant's Percentage of, and in the same currency as,
each amount applied by the Bank in or towards satisfaction of any amount owing
to it in respect of:
(a) the principal of or interest on or relating to any Advance
outstanding under the Participated Facility;
(b) if so specified in the Schedule, any commitment commission or
fee on any undrawn portion of the Participated Facility; or
(c) any other fee specified in the Schedule.
2.05 In Calculating the amount from time to time payable by either party hereto
under this Clause 2, no account shall be taken of:
(a) any commitment commission or fee payable by the Borrower in
respect of the period before the Commencement Date;
(b) any portion of any Advance which falls due from, or is repaid
by, the Borrower on or before the date upon which a payment in
respect thereof falls due from the Participant under Clause
2.01 or 2.02 or any interest or fee at any time payable in
respect of such portion;
(c) in relation to any Advance in respect of which the Participant
is obliged to make a payment pursuant to Clause 2.01. 2.01 or
2.03, any interest payable by the Borrower on the whole or any
part of such Advance in respect of the period before the
Participant satisfies its obligations in relation thereto
under Clause 2.01, 2,02 or as the case may be 2.03.
(d) any default interest payable on a sum if, had such sum been
paid when due, the Participant would not have been entitled to
a payment hereunder.
The Participant acknowledges that the Company and the borrower under
the Loan have entered into a letter agreement dated February 12, 2002, pursuant
to which the borrower has received the right to purchase the entire interest in
the Loan at a price representing 5% principal discount at the time of purchase.
3. INTENTIONALLY OMITTED.
4.01 Subject to Clauses 4.02 and 4.03, on each date upon which an amount falls
due hereunder from either party hereto, that party shall make the same available
to the other party , by payment in United States dollars ("dollars") and in same
day funds (or in such other funds as may for the time being be customary in New
York for the settlement in New York of international banking transactions in
dollars) to such account with such bank as the other party shall have specified
(in the Schedule or otherwise) for such purpose.
4.02 The Bank may, but need not, apply any sum at any time due from it hereunder
in or towards satisfaction of any amount than due from the Participation
hereunder and, for this purpose, the Bank may purchase with the sum so due from
it such amounts of such other currencies as may be necessary to effect such
4.03 Where the obligation of the Bank to make a payment hereunder arises as a
result of its having received an amount from another person, it shall not be
obliged to make such payment until it has been able to establish that it has
actually received such amount, but if it does so and it proves to be the case
that it had not received such amount, then the Participant shall, on demand by
the Bank, repay the sum paid to it together with an amount sufficient to
indemnify the Bank against any cost it may have suffered or incurred in or in
connection with the funding of such sum during the period commencing on the
making by the Bank to the Participant of such payment and ending on the
repayment of the same to the Bank by the Participant.
4.04 If the Bank applies any amount in or towards satisfaction of the Borrower's
obligations under the Loan Agreement and the Bank is, as a result of such
application or any payment to the Bank giving rise to such application, obliged
by law to make any payment to any person, then the Participant shall, upon
demand by the Bank, repay to the Bank any amount paid to the Participant as a
result of such application.
Each of the Bank and the Participant represents that (i) it has power
to enter into, and has duly authorized the execution and delivery of, this
Agreement and (ii) its obligations hereunder constitute its legal, valid and
6. THE BANK AND THE PARTICIPANT
6.01 It is hereby agreed that:
(a) nothing herein shall operate as an assignment of any of the
Bank's rights under or in connection with any Loan Document,
or result in the Participant acquiring any rights enforceable
against, or the benefit of any obligations owed by, the
Borrower or any other person under any Loan Document;
(b) the Bank is not and shall not be deemed to be acting as the
agent or trustee of the Participant in relation to any moneys
received by or owed to the Bank under any Loan Document or in
connection with the exercise of, or the failure to exercise,
any of its rights or powers arising under or in connection
with any Loan Document; and
(c) nothing herein shall oblige the Bank to exercise or refrain
from exercising any rights which the Bank may have to apply
any assets, deposits or other property or any credit balance
on any account with the Bank in or towards satisfaction of any
amount owing to the Bank under the Participated Facility.
6.02 It is further agreed that the Bank is and shall remain entitled to:
(a) exercise or refrain from exercising any or all of its rights
and powers arising under or in connection with any of the Loan
(b) agree to any amendment or waiver of the terms of any of the
Provided that, in exercising or refraining from exercising such rights and
powers or agreeing to any such amendment or waiver, the Bank shall have regard
to all relevant circumstances including the commercial interests of the
Participant and, subject as provided in Clause 6.03, the Bank shall not, without
the prior consent of the Participant, be entitled to agree to any such amendment
or waiver which would directly result in:
(i) the maturity of any Advance or part thereof being
extended or the amount of the Loan being reduced
otherwise than by repayment; or
(ii) the rate of interest payable on any Advance or part
thereof being reduced unless the Bank shall have
previously agreed with the Participant that such
reduction shall not affect the amount of interest
which, but for such reduction, would have been
payable to the Participant hereunder.
6.03-6.05 INTENTIONALLY OMITTED.
7.01 The Bank makes no representation or warranty and assumes no responsibility
with respect to (a) the due execution, legality, validity, adequacy or
enforceability of any Loan Document, (b) the financial condition of the
Borrower, any Guarantor or any other person or (c) the performance by the
Borrower, any Guarantor or any other person of its obligations under any Loan
Document; in particular, but without limitation, if the Borrower, any Guarantor
or any other person shall fail to perform any of its obligations under any Loan
Document, the Participant shall have no recourse to the Bank in respect of such
7.02 The Participant confirms that (a) it has itself been, and will continue to
be, solely responsible for making its own independent appraisal of and
investigations into the financial condition, creditworthiness, affairs, status
and nature of the Borrower, any Guarantor and each other party to any Loan
Document and (b) it has not relied, and will not hereafter rely, on the Bank or
any other person (including, without limitation, any affiliate of the Bank) to
appraise or keep under review on its behalf the financial condition,
creditworthiness, affairs, status or nature of the Borrower, any Guarantor or
any such other party.
To the extent that it is lawfully able so to do and without acting in
breach of any obligation owed to any person, the Bank shall provide the
Participant with copies of financial and other information sent to it pursuant
to any Loan Document and notify the Participant of the contents of any notice
received by it under any Loan Document as soon as practicable after its receipt
and shall endeavor to keep the Participant informed as to matters arising in
relation to the Loan Documents or any of them.
9. COSTS AND EXPENSES
If at any time on or after the date hereof the Bank incurs any costs or
expenses in connection with any Loan Document and the same are not recovered
from the Borrower upon demand, then the Participant shall pay to the Bank upon
demand the Participant's Percentage of, and in the same currency as, such costs
or expenses or, as the case may be, such portion thereof as is, in the
reasonable opinion of the Bank, incurred under it is attributable to the
Participated Facility Provided that the Bank shall pay to the Participant its
proportionate share of any amounts subsequently recovered by the Bank in respect
of such costs or expenses.
10. BENEFIT OF AGREEMENT
This Agreement shall be binding upon and enure to the benefit of each
of the parties hereto and their respective successors and assigns but neither
party hereto may assign its rights hereunder without the consent of the other
Any notice or other communication to be given or made by either party
to the other hereunder shall be given or made by letter or telex to the
Participant at its address or telex number set out above or, as the case may be,
to the Bank at such address and telex number as it shall specify for this
The Participant agrees that it will treat this Agreement and any
information supplied by the Bank hereunder or in connection herewith as being
strictly confidential and, in particular, but without limitation, will not
disclose to the Borrower, any Guarantor or any other party to any Loan Document
the existence of this Agreement.
13. LAW AND JURISDICTION
13.01 This Agreement shall be governed by and construed in accordance with New
13.02 Each of the parties hereto agrees, without prejudice to the right of
either party to take any proceedings in relation hereto before any other court
of competent jurisdiction, that the courts of New York shall have jurisdiction
to hear and determine any suit, action or proceeding, and to settle any
disputes, which may arise in relation hereto and, for such purposes, irrevocably
submits to the jurisdiction of such courts.
PARTICIPANT: HAROLD AND ARLENE SCHNITZER CARE FOUNDATION
By: /s/ Thomas E. Eyer
HAROLD AND ARLENE SCHNITZER FOUNDATION
By: /s/ Thomas E. Eyer
JORDAN AND MINA SCHNITZER FOUNDATION
By: /s/ Thomas R. Nicolai
N. WAREHOUSING, INC. PENSION PLAN AND TRUST
By: /s/ Jordan D. Schnitzer
Jordan D. Schnitzer, Trustee
A. LOAN AGREEMENT
1. Borrower: French American International School
2. Facility Amount: $5,188,637.73
3. Loan Agreement Date: April 1, 1999
4. Agent: N/A
1. Guarantor: N/A
2. Guarantee Date: N/A
1. Participated Facility: French American International School Loan
dated April 1, 1999
2. Participated Amount: $2,417,905.18
3. Participant's Percentage: 46.60%
4. Commencement Date: January 10, 2002
5. Advances outstanding under the Participated Facility
DESCRIPTION NEXT ROLLOVER DATE APPLICABLE PAYMENT CLAUSE
N/A N/A N/A
6. Participant's Margin for Interest:
PARTICIPANT'S MARGIN PERIOD
100% Each Period
7. Fees to which the Participation Agreement applies:
FEE RELEVANT CLAUSE PARTICIPANT'S MARGIN (%)
N/A N/A N/A
1. Bank's Account(s) N/A
2. Participant's Account(s) N/A