EXHIBIT 10.12
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CREDIT ENHANCEMENT AGREEMENT
among
MASSACHUSETTS PORT AUTHORITY
and
XXXXX HARBORSIDE ASSOCIATES II LIMITED PARTNERSHIP
and
SHAWMUT BANK, N.A., AS TRUSTEE
Dated as of June 27, 1991
$40,000,000
Massachusetts Port Authority
Special Project Revenue Bonds, Series 1990
(Harborside Hyatt Conference Center and Hotel Project)
INDEX
PAGE
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Section 1. Definitions . . . . . . . . . . . . . . . . . . 2
1.1. Master Lease. . . . . . . . . . . . . . . . . . 2
1.2. Obligations . . . . . . . . . . . . . . . . . . 2
1.3. Related Agreements. . . . . . . . . . . . . . . 3
1.4. Supplemental Mortgage . . . . . . . . . . . . . 3
Section 2. Agreement to Lend . . . . . . . . . . . . . . . 3
2.1. Maximum Amount of Credit. . . . . . . . . . . . 3
2.2. Method of Advances. . . . . . . . . . . . . . . 4
2.3. Evidence of Indebtedness. . . . . . . . . . . . 4
2.4. Reduction of Maximum Amount of Credit . . . . . 4
Section 3. Borrower Obligations. . . . . . . . . . . . . . 6
3.1. Interest; Repayment . . . . . . . . . . . . . . 6
3.2. Fees. . . . . . . . . . . . . . . . . . . . . . 7
3.3. Expenses; Indemnification . . . . . . . . . . . 8
3.4. Obligations Absolute. . . . . . . . . . . . . . 8
Section 4. Credit Enhancement Account. . . . . . . . . . . 9
4.1. Administration and Investment . . . . . . . . . 9
4.2. Reductions of Credit Enhancement Account. . . . 9
4.3. Uses of Credit Enhancement Account. . . . . . . 10
Section 5. Conditions. . . . . . . . . . . . . . . . . . . 10
5.1. Related Agreements. . . . . . . . . . . . . . . 10
5.2. Supplemental Mortgage . . . . . . . . . . . . . 10
5.3. Mortgage Documentation. . . . . . . . . . . . . 10
5.4. Phase A Option. . . . . . . . . . . . . . . . . 10
5.5. Construction Contract . . . . . . . . . . . . . 11
5.6. Certain Payments. . . . . . . . . . . . . . . . 11
5.7. Developer Costs . . . . . . . . . . . . . . . . 11
5.8. Cross Reference . . . . . . . . . . . . . . . . 11
5.9. Legal Opinions. . . . . . . . . . . . . . . . . 11
Section 6. Certain Covenants . . . . . . . . . . . . . . . 11
6.1. Hyatt FF&E Funds. . . . . . . . . . . . . . . . 12
6.2. Local Tax Payments. . . . . . . . . . . . . . . 12
6.3. Recording of Phase A Option . . . . . . . . . . 12
6.4. Additional Debt . . . . . . . . . . . . . . . . 13
6.5. Supplemental Equity Fund. . . . . . . . . . . . 13
Section 7. Administration of Supplemental Mortgage . . . . 13
Section 8. Maintenance of Supplemental Mortgage. . . . . . 14
Section 9. Reversion of Phase B and Phase D. . . . . . . . 14
Section 10. Representations of Borrower . . . . . . . . . . 15
10.1. Existence . . . . . . . . . . . . . . . . . . . 15
10.2. Valid Obligations . . . . . . . . . . . . . . . 15
10.3. Legal Proceedings . . . . . . . . . . . . . . . 15
10.4. Compliance with Law; Consents, etc. . . . . . . 15
Section 11. Events of Default . . . . . . . . . . . . . . . 16
Section 12. Remedies. . . . . . . . . . . . . . . . . . . . 17
Section 13. Termination of Agreement. . . . . . . . . . . . 17
Section 14. Concerning the Trustee. . . . . . . . . . . . . 18
Section 15. Notices . . . . . . . . . . . . . . . . . . . . 18
Section 16. Amendments. . . . . . . . . . . . . . . . . . . 18
Section 17. Extend of Credit Enhancer Covenants;
No Personal Liability . . . . . . . . . . . . 18
Section 18. Exculpation of Related Persons of Borrower. . . 18
Section 19. Limitation of Rights. . . . . . . . . . . . . . 19
Section 20. Severability. . . . . . . . . . . . . . . . . . 19
Section 21. Counterparts. . . . . . . . . . . . . . . . . . 19
Section 22. Governing Law; Sealed Instrument. . . . . . . . 19
Section 23. Agreements to Constitute Covenants. . . . . . . 19
Section 24. Captions; Index . . . . . . . . . . . . . . . . 19
Section 25. Successors. . . . . . . . . . . . . . . . . . . 19
Exhibit 2.3 Form of Borrower Note
CREDIT ENHANCEMENT AGREEMENT
This CREDIT ENHANCEMENT AGREEMENT (as from time to time in effect,
the "Agreement") is entered into as of June 27, 1991 by the Massachusetts
Port Authority (the "Credit Enhancer"), a body corporate and politic and a
public instrumentality of The Commonwealth of Massachusetts (the
"Commonwealth") duly created by Chapter 465 of the Acts of 1956 of the
Commonwealth, as heretofore amended and supplemented (the "Enabling Act"),
Xxxxx Harborside Associates II Limited Partnership (the "Borrower"), a
Massachusetts limited partnership, and Shawmut Bank, N.A., a national
banking association, as trustee (the "Trustee") under the Loan and Trust
Agreement dated as of December 15, 1990, as amended and restated as of June
27, 1991 (as from time to time in effect, the "1990 Trust Agreement") among
the Credit Enhancer, as issuer of the Special Project Bonds defined below,
the Borrower and the Trustee.
RECITALS
Pursuant to the 1990 Trust Agreement on December 31, 1990 the Credit
Enhancer issued $40,000,000 of its special project revenue bonds (the
"Special Project Bonds"), the proceeds of which were to be lent to the
Borrower for the purpose of financing costs of constructing, equipping and
furnishing a 270-room conference and hotel (the "Project") to be erected on
property in the Bird Island Flats section of Boston-Xxxxx International
Airport that is leased by the Borrower from the Credit Enhancer. The
Special Project Bonds do not and shall not constitute a debt or liability,
or a pledge of the faith and credit, of the Credit Enhancer or of the
Commonwealth or any political subdivision thereof. The principal of and
premium, if any, and interest on the Special Project Bonds are and shall be
payable solely from the revenues of the Project and other funds
specifically pledged for such purpose and not from any other revenues or
properties of the Credit Enhancer.
Because the Borrower had advised the Credit Enhancer that it had been
unable to market the Special Project Bonds but that it expected that it
would be able to find investors during the first few months of 1991, the
Special Project Bonds were issued with the understanding that the proceeds
would be held in escrow for the benefit of the Bondholders while the
Borrower and its placement agent pursued efforts to remarket the Special
Project Bonds. The escrow is currently scheduled to terminate on June 27,
1991. If the remarketing is not accomplished on or before June 27, 1991
the Special Project Bonds will have to be redeemed.
The Borrower had advised the Credit Enhancer that the Special Project
Bonds cannot be remarketed without the support of an increased equity
investment or significant credit enhancement and that the Borrower and its
equity partners are unable or unwilling to provide such support from their
own resources. Consequently, the Borrower has requested that the Credit
Enhancer provide credit enhancement for the Special Project Bonds in the
form of a commitment to advance up to $10,000,000 if, when and as needed to
pay debt service on the Special Project Bonds. In consideration for such
support, the Borrower has offered the Credit Enhancer the credit
enhancement fees, security and terms of repayment more fully described
herein.
The Credit Enhancer has found and determined that the construction of
the Project is necessary and appropriate for the development of the Airport
Properties (as defined in the Enabling Act). The Credit Enhancer has
further found and determined, on the basis of the advice of its staff and
financial advisors, that the proposed credit enhancement is advisable,
absent additional equity provided by the Borrower, with respect to the
remarketing of the Special Project Bonds. The Credit Enhancer is satisfied
that the consideration and security for the proposed credit enhancement are
appropriate to the situation.
In consideration of the mutual agreements and representations
contained in this Agreement and for other good and valuable consideration,
the receipt of which is hereby acknowledged, the parties hereby agree as
follows:
Section 1. DEFINITIONS. Terms defined in this Agreement are used as
defined herein. Terms defined in the 1990 Trust Agreement and not
otherwise defined in this Agreement are used as defined in the 1990 Trust
Agreement. Unless otherwise indicated, references to Sections are to
Sections of this Agreement.
1.1. MASTER LEASE. As used herein, the term "Master Lease"
means the lease dated as of May 1, 1983 between the Credit Enhancer, as
ground lessor, and Massachusetts Technology Center Associates, a
Massachusetts limited partnership ("MTCA"), as from time to time amended
and supplemented, the interest of the tenant under which has been assigned
to Xxxxx Harborside Associates I Limited Partnership, a Massachusetts
limited partnership ("LHA I").
1.2. OBLIGATIONS. As used herein, the term "Obligations"
shall mean the obligation of the Borrower to repay advances made from the
Credit Enhancement Account hereunder, the interest therein, all fees,
reimbursement of expenses, indemnifications and other amounts payable by
the Borrower under this Agreement or any Related Agreement to or for the
benefit of the Credit Enhancer or the Trustee, all
reimbursements of expenses, indemnifications and other amounts
payable under a Supplemental Mortgage or any other Related Agreement by LHA
I or any other grantor of a Supplemental Mortgage, and all reimbursement of
expenses, indemnifications and other amounts payable under the Phase A
Option or any other Related Agreement by MTCA.
1.3. RELATED AGREEMENTS. As used herein, the term "Related
Agreements" shall mean each of (a) the Borrower Note, (b) the Phase C
Second Mortgage, (c) each Supplemental Mortgage, (d) the Equity Escrow
Agreement, (e) the Phase A Option and (f) any other agreement or instrument
securing the Obligations, each as from time to time in effect.
1.4. SUPPLEMENTAL MORTGAGE. As used herein, the term
"Supplemental Mortgage" shall mean the leasehold mortgage and security
agreement on Phase B and Phase D referred to in Section 5.2 hereof and any
substitute, successor or replacement mortgage and security agreement
securing the Obligations delivered under Section 7 hereof.
Section 2. AGREEMENT TO LEND. The Credit Enhancer hereby agrees to
lend to the Borrower the principal sum at any one time outstanding of up to
the Maximum Amount of Credit then in effect solely for the purpose of
paying principal of and premium (in the case of the occurrence of a
Determination of Taxability) and interest on the Special Project Bonds in
the event that the Cash Flow Available for Debt Service of the Project
shall not be sufficient therefor and in the event that all of the
Construction and Operating Costs Contingency Fund, the Equity Reserve Fund,
the Supplemental Equity Fund and the Debt Service Reserve Fund established
under the 1990 Trust Agreement shall have been exhausted; and provided that
no such loan shall be made on or prior to the Completion Date unless the
Project Fund shall have been exhausted. The commitment of the Credit
Enhancer under this Section 2 to make such advances shall be irrevocable,
shall not be affected by the occurrence or continuation of any event or
condition constituting an Event of Default hereunder or under any Related
Agreement and shall not be subject to reduction or setoff on account of any
obligation owed by the Borrower or any other Person to the Credit Enhancer.
2.1. MAXIMUM AMOUNT OF CREDIT. As used herein, the "Maximum
Amount of Credit" shall mean initially $10,000,000 and thereafter shall
mean the amount to which the Maximum Amount of Credit shall have been
reduced as provided in Sections 2.4 and 2.5 hereof.
2.2. METHOD OF ADVANCES. Advances hereunder shall be effected
by the Trustee withdrawing the amount to be advanced, not earlier than one
Business Day preceding the
applicable Payment Date, from the Credit Enhancement Account
established under Section 4 hereof and depositing the same to the credit of
the Bond Fund established under Section 502 of the 1990 Trust Agreement,
all as provided under Section 505B of the 1990 Trust Agreement.
2.3. EVIDENCE OF INDEBTEDNESS. The outstanding advances
hereunder and interest thereon shall be evidenced by a promissory note
substantially in the form of Exhibit 2.3 hereto (the "Borrower Note")
issued by the Borrower, as payor, in favor of the Credit Enhancer, as
payee. The Trustee shall maintain on its books a record of all advances
hereunder and of all amounts of interest paid and principal repaid under
Section 3 hereof. As of the last day of each calendar month, commencing
July 31, 1991, the Trustee shall furnish to each of the Credit Enhancer and
the borrower a statement in writing of the Trustee's calculation of the
outstanding principal amount, if any, of advances hereunder and accrued
interest thereon (including compounded interest as provided in Section 3.1
hereof). In the absence of demonstrable error, such calculation shall be
binding upon all of the parties hereto.
2.4. REDUCTION OF MAXIMUM AMOUNT OF CREDIT. The Maximum
Amount of Credit at no time shall exceed an amount equal to $10,000,000
less the value of payments made and investment earnings realized with
respect to the Equity Reserve Fund established under Section 505A of the
1990 Trust Agreement; PROVIDED, HOWEVER, that at no time shall the Maximum
Amount of Credit be reduced pursuant to this Section 2.4 to an amount less
than the lesser of (a) $4,000,000 and (b) the aggregate principal amount of
Special Project Bonds then outstanding. As of the last day of each
calendar month, commencing July 31, 1991, the Trustee shall calculate the
Maximum Amount of Credit and shall furnish each of the Credit Enhancer and
the Borrower a written statement of the same. In the absence of
demonstrable error, such calculation shall be binding upon all of the
parties hereto. No reduction of the Maximum Amount of Credit effected
hereunder shall be reversed, and the Maximum Amount of Credit shall not be
increased at any time.
2.5. ADDITIONAL REDUCTIONS OF MAXIMUM AMOUNT OF CREDIT. In
addition to reductions effected pursuant to Section 2.4, the Maximum Amount
of Credit also shall be subject to reduction to the extent that the Debt
Service Coverage Ratio shall equal or exceed 140% for certain periods, as
follows:
(a) In the event that the Project shall have achieved a
Debt Service Coverage Ratio equal to or in
excess of 140% for each of four consecutive calendar years,
provided that the last day of such period shall not be earlier than
February 28, 2001, then as of the last day of such period, the Maximum
Amount of Credit shall be reduced by an amount equal to 25% of the Maximum
Amount of Credit as in effect on such date (the "Reduction Amount").
(b) In the event that the Project thereafter shall
achieve for any subsequent calendar year a Debt Service Coverage Ratio
equal to or in excess of 140%, then as of the last day of such year the
Maximum Amount of Credit shall be reduced by an amount equal to the lesser
of (i) an amount equal to the dollar amount of the reduction previously
effected under subsection (a) above and (ii) the entire Maximum Amount of
Credit then in effect minus $500,000; provided, however, that in the event
that the Debt Service Coverage Ratio for any calendar year following a
period or year for which a reduction in the Maximum Amount of Credit was
effected pursuant to subsection (a) above or this subsection (b) fails to
equal or exceed 1.40 to 1, then no further reduction in the Maximum Amount
of Credit shall be made under this Section 2.5 until the Debt Service
Coverage Ratio shall have been equal to or greater than 1.40 to 1 for each
of four consecutive calendar years; and PROVIDED, FURTHER, that it shall be
a condition of any reduction of the Maximum Amount of Credit to $500,000
under this Section 2.5(b) that there shall be on deposit in the
Supplemental Equity Fund under the 1990 Trust Agreement an amount of not
less than $500,000, and in the event that this condition is not met, such
reduction shall be delayed until the next day on which this condition is
met.
(c) In the event that for any reason the principal
balance of the Debt Service Reserve Fund (calculated as provided in Section
506 of the 1990 Trust Agreement) shall be less than the Required Debt
Service Reserve Amount on the day that any reduction of the Maximum Amount
of Credit under subsection (a) or (b) above is to be effected, then such
reduction shall be delayed until the next day on which such principal
balance shall equal or exceed the Required Debt Service Reserve Amount.
(d) In the event that the principal balance of the
Equity Reserve Fund shall be less than the total amount of credit
enhancement fees theretofore required to have been deposited therein
pursuant to Section 3.2 of this Agreement (without regard to any deferral
permitted thereby) or there shall have been any draw from the
Equity Reserve Fund under Section 505A(a) or (b) that shall not have been
reimbursed on the day that any reduction of the Maximum Amount of Credit
under subsection (a) or (b) above is to be effected, the such reduction
shall be delayed until the next day on which such principal balance shall
equal or exceed such total amounts and/or such reimbursement shall have
been made.
(e) No reduction of the Maximum Amount of Credit
effected under this Section 2.5 shall be reversed, and the Maximum Amount
of Credit shall not be increased at any time.
(f) For the purpose of this Section 2.5, the
calculation of the Debt Service Coverage Ratio shall be certified by the
Borrower to the Trustee based on an audited financial statement for each
applicable calendar year and in such detail as may be reasonably required
by the Trustee.
Section 3. BORROWER OBLIGATIONS. In consideration of the Credit
Enhancer's commitment to make the advances provided for above, the borrower
agrees as follows:
3.1. INTEREST; REPAYMENT. All advances under Section 2 hereof
shall bear interest at the rate of 10% per annum calculated on the basis of
a year of 365 days and the number of days elapsed. If unpaid, accrued
interest shall be compounded and added to the principal amount due as of
the last day of each calendar month. Each advance, together with all
interest thereon, shall be paid in full not later than three years
following the date of such advance; PROVIDED, HOWEVER, that in the event of
acceleration of the maturity of the Special Project Bonds under Section
1102 of the 1990 Trust Agreement, all advances hereunder and interest
thereon shall be due and payable in full immediately. Until payment in
full of all outstanding advances and interest thereon, all Cash Flow
Available for Debt Service for each calendar month (excluding only $12,500
per month accrued for the purpose of paying the credit enhancement fee
provided in Section 3.2 hereof) remaining after payment of any amounts then
due and payable under Sections 1001A, 1001B, 1001D and 1001E of the 1990
Trust Agreement shall be applied to pay such advances and interest therein
not later than five days after receipt from Hyatt Corporation of each
payment under Section 4.3 of the Hyatt Management Agreement. All such
payments shall be applied first to the accrued interest, then to compounded
interest and then to amounts advanced. All payments of accrued
interest and compounded interest shall be paid to the Trustee and
paid over by the Trustee to the Credit Enhancer. All repayments of amounts
advanced shall be paid to the Trustee for deposit into the Credit
Enhancement Account established under Section 4 hereof; and amounts so
deposited may be reborrowed under Section 2 hereof, subject to the terms
and conditions thereof.
3.2. FEES. The Borrower shall pay a credit enhancement fee
equal to $150,000 per annum payable as follows: (a) $300,000 shall be
payable at closing, and (b) $75,000 shall be due and payable on each March
1 and September 1, commencing September 1, 1993, until the date on which
the Maximum Amount of Credit is reduced to $500,000 pursuant to Section
2.5(b) hereof; provided, however, that to the extent that the Cash Flow
Available for Debt Service of the Project shall be insufficient to pay any
installment of the fee under clause (b) when due, then payment of such
installment may be deferred until the earlier of (i) the date sufficient
Cash Flow Available for Debt Service becomes available and (ii) the third
anniversary of the date on which such installment originally was due,
whereupon payment of such installment shall be made together with interest
thereon at the rate of 8% per annum, compounded semi-annually on March 1
and September 1. Such amounts shall be paid into the Equity Reserve Fund
established under Section 505A of the 1990 Trust Agreement and invested and
administered as therein provided. On the Credit Enhancement Termination
Date there shall be paid to the Credit Enhancer an amount equal to the
aggregate amount of all Credit Enhancement Fees required to have been paid
into the Equity Reserve Fund pursuant to this Section 3.2 (without regard
to any deferral permitted by the proviso to clause (b) above) plus interest
thereon from the date that each payment was required to have been made
(without regard to any deferral permitted by the proviso to clause (b)
above) at the rate of the greater of (i) the actual investment earnings
realized on such amounts and (ii) 8% per annum, compounded semi-annually on
each March 1 and September 1. Such amount shall be paid first from the
Equity Reserve Fund and then from other available funds of the Borrower.
It is agreed that the fee provided above shall not be distributed to the
Credit Enhancer until the occurrence of the earlier of the date on which
the Maximum Amount of Credit is reduced to $500,000 pursuant to Section
2.5(b) hereof or payment in full of the Special Project Bonds, and until
such time the right of the Credit Enhancer to receive such fee shall remain
subordinate to the rights of the holders of the Special Project Bonds as
provided in the 1990 Trust Agreement with respect to the uses of the Equity
Reserve Fund. From and after the date on which the Maximum Amount
of Credit is reduced to $500,000 pursuant to Section 2.5(b) hereof
and until the Credit Enhancement Termination Date, the Borrower shall pay
to the Credit Enhancer a fee of $7,500.00 per annum, payable in semiannual
installments of $3,750.00 on each March 1 and September 1.
3.3. EXPENSES; INDEMNIFICATION. The Borrower will bear all
out-of-pocket expenses (including the reasonable fees and disbursements of
counsel and financial advisors) incurred by the Credit Enhancer and the
Trustee in connection with the preparation of this Agreement and the
related documents pertaining to the credit enhancement of the Special
Project Bonds, the transactions contemplated hereby and thereby and
operations (and enforcement of the rights of the Credit Enhancer and the
Trustee) hereunder or thereunder; PROVIDED, that the amount to be paid by
the Borrower to reimburse the Credit Enhancer for out-of-pocket expenses
incurred through the date hereof (including the fees and disbursements of
Ropes & Xxxx as Bond Counsel and as special counsel to the Credit Enhancer
in its capacity as issuer of the Special Project Bonds and the fees and
disbursements of financial advisors to the Credit Enhancer) shall not
exceed $335,000 (including the $85,000 paid in connection with the issuance
of the Special Project Bonds on December 31, 1990). In addition, the
Borrower shall indemnify and hold harmless the Credit Enhancer and the
Trustee, and their respective members, directors, officers, employees and
agents, and the liabilities of all such Persons shall be limited, as and to
the extent provided in Section 1003 of the 1990 Trust Agreement. The
covenants contained in this Section 3.3 shall survive the termination of
this Agreement.
3.4. OBLIGATIONS ABSOLUTE. The obligations of the Borrower
under this Section 3 to pay the Obligations shall be absolute,
unconditional and irrevocable. The Obligations shall be paid strictly in
accordance with the terms of this Agreement under all circumstances
whatsoever, including without limitation any error of the Trustee in the
application of funds under the 1990 Trust Agreement or in making or failing
to make an advance form the Credit Enhancement Account as provided in
Section 505B of the 1990 Trust Agreement.
Section 4. CREDIT ENHANCEMENT ACCOUNT. Reference is made to the
Trust Agreement dated as of August 1, 1978, as from time to time amended
and supplemented (as from time to time in effect, the "1978 Trust
Agreement"), between the Credit Enhancer and State Street Bank and Trust
Company. Pursuant to Section 503 of the 1978 Trust Agreement, the Credit
Enhancer has established in the Improvement and Extension Fund created
under said Section 503
an account to be known as the "Credit Enhancement Account" and has funded
such account in the amount of $10,000,000. Pursuant to Section 518 of the
1978 Trust Agreement and subject to the terms and conditions of this
Agreement and the 1990 Trust Agreement, in order to provide security for
its obligation to make the advances committed under Section 2 hereof, the
Credit Enhancer hereby transfers, grants, pledges and assigns to the
Trustee for the benefit of the Bondholders and the Credit Enhancement
Account and the funds and investments credited thereto.
4.1. ADMINISTRATION AND INVESTMENT. The funds constituting
the Credit Enhancement Account shall be deposited in an account of that
name held by the Trustee and shall be invested at the direction of the
Credit Enhancer, confirmed in writing with notice to the Borrower, in
investments which constitute Investment Securities as defined in the 1978
Trust Agreement; PROVIDED, that amounts in the Credit Enhancement Account
shall be invested to produce a Yield not higher than the Yield on the
Special Project Bonds unless the Trustee is provided with an opinion of
Bond Counsel or a ruling of the Internal Revenue Service that investment of
such amounts without such restriction will not adversely affect the
exclusion from gross income for federal income tax purposes of the
interest paid on the Special Project Bonds. All investment earnings
realized on the Credit Enhancement Account shall be transferred upon
receipt to the Credit Enhancer free of any lien hereunder or under the
1990 Trust Agreement.
4.2. REDUCTIONS OF CREDIT ENHANCEMENT ACCOUNTS. The principal
balance of the Credit Enhancement Account (valued at the lesser of cost and
market value) at no time shall exceed the Maximum Amount of Credit. Before
the close of business on the Remarketing Date, the Trustee shall transfer
to the Credit Enhancer from the Credit Enhancement Account the sum of
$300,000, representing an amount equal to the amount required to be
deposited on that date by the Borrower into the Equity Reserve Fund.
Thereafter, in the event that as of the last day of any calendar month the
Maximum Amount of Credit shall exceed the principal balance of the Credit
Enhancement Account (valued at the lesser of cost and market value),
because of the realization of investment earnings on the Credit Enhancement
Account or any reduction of the Maximum Amount of Credit under Section 2.4
or 2.5 hereof, or for any other reason, then on such day or as soon
thereafter as feasible the Trustee shall transfer to the Credit Enhancer
from the Credit Enhancement Account an amount equal to such excess.
4.3. USES OF CREDIT ENHANCEMENT ACCOUNT. It is agreed that
the Credit Enhancement Account shall not be used to
secure additional bonds, should any ever be issued with respect to
the Project, or any other indebtedness other than the Special Project Bonds
except with the written consent of the Holders of the Special Project
Bonds.
Section 5. CONDITIONS. The obligation of the Credit Enhancer under
this Agreement shall be conditioned upon the satisfaction in full on the
date hereof of each of the following conditions:
5.1. RELATED AGREEMENTS. The Borrower shall have executed and
delivered the amendment and restatement of the 1990 Trust Agreement,
amendments to the Ground Lease and the Master Lease, a second leasehold
mortgage and security agreement in favor of the Credit Enhancer on the
Project junior only to the Leasehold Mortgage (as from time to time in
effect, the "Phase C Second Mortgage") and an equity escrow agreement (as
from time to time in effect, the "Equity Escrow Agreement"), each in form
and substance satisfactory to the Credit Enhancer.
5.2. SUPPLEMENTAL MORTGAGE. LHA I shall have executed and
delivered a first priority leasehold mortgage and security agreement
securing the Obligations in favor of the Credit Enhancer on Phase B and
Phase D of the property subject to the Master Lease in form and substance
satisfactory to the Credit Enhancer and shall have executed and delivered
the Equity Escrow Agreement.
5.3. MORTGAGE DOCUMENTATION. The Phase C Second Mortgage and
the initial Supplemental Mortgage shall have been duly recorded in all
offices to perfect the lien thereof, and any necessary consents of third
parties relating thereto shall have been attained.
5.4. PHASE A OPTION. MTCA shall have executed and delivered
to the Credit Enhancer an option (the "Phase A Option") to purchase the
Option Premises (as defined therein) in form and substance satisfactory to
the Credit Enhancer.
5.5. CONSTRUCTION CONTRACT. The Borrower shall have entered
into a guaranteed maximum price construction contract with Xxxxxx X.X.
Xxxxxxxx Company, Incorporated or other general contractor approved by the
Credit Enhancer and the Remarketing Agent and shall have obtained and
delivered to the Credit Enhancer and the Trustee payment and performance
bonds, in form and substance satisfactory to both the Credit Enhancer and
the Remarketing Agent, to the extent described under "THE PROJECT --
Construction" in the
Remarketing Official Statement dated June 27, 1991 relating to the
Special Project Bonds.
5.6. CERTAIN PAYMENTS. The Borrower shall have made the
initial payment of $300,000 to the Equity Reserve Fund required under
Section 3.2 hereof, shall have deposited $3,500,036.31 to the credit of the
Construction and Operating Costs Contingency Fund and shall have paid or
reimbursed the Credit Enhancer for the reasonable fees and expenses of its
special counsel and financial advisors accrued through the date hereof (or
such earlier date as the Credit Enhancer may agree), subject to the
limitation set forth in the proviso to the first sentence of Section 3.3
hereof.
5.7. DEVELOPER COSTS. The Borrower shall have furnished to
the Credit Enhancer, the Remarketing Agent and the Trustee a certificate
(the "Equity Costs Certificate") in form and substance satisfactory to the
Credit Enhancer and the Remarketing Agent identifying not less than
$2,699,963.69 of eligible Project costs and costs of issuance and
remarketing incurred and paid by or on behalf of the Borrower prior to the
Remarketing Date.
5.8. CROSS REFERENCE. All conditions set forth in Sections 7
and 8 of the Remarketing Agreement shall have been satisfied.
5.9. LEGAL OPINIONS. The Credit Enhancer shall have received
the favorable legal opinions of special counsel to the Borrower, to LHA I
and to MTCA with respect to this Agreement and the Related Agreements
referred to in Section 5.1 and 5.2 above, each such opinion to be
reasonably satisfactory in form and substance to the Credit Enhancer and
its special counsel.
Section 6. CERTAIN COVENANTS. In addition to its covenants
contained in the Ground Lease, the 1990 Trust Agreement and the Related
Agreements, the Borrower covenants and agrees as follows:
6.1. HYATT FF&E FUND. So long as this Agreement remains in
effect, no monies in the "Fund for Replacement of and Additions to
Furnishings and Equipment" established pursuant to Section 5.4 of the Hyatt
Management Agreement shall be paid to the Borrower unless each of the
following conditions is met (or, in the case of subsection (b) below, shall
be met after giving effect to the simultaneous application of such funds by
the Borrower): (a) Hyatt Corporation or any successor manager approved by
the Credit Enhancer shall have consented to such payment; (b) the amount on
deposit in the Equity Reserve Fund shall equal or
exceed the aggregate amount to be paid thereto under Section 3.2
hereof (without regard to any deferral or limitation permitted under
Section 3.2 hereof), together with all investment earnings thereon, the
amount on deposit in the Debt Reserve Fund shall equal or exceed the
Required Debt Service Reserve Amount and no advances or interest thereon
shall be outstanding and unpaid under the Credit Enhancement Agreement; (c)
at least five years shall have passed since the Completion Date; and (d) no
Event of Default hereunder shall have occurred and be continuing. In the
event that the Hyatt Management Agreement shall be terminated at a time
when any of the foregoing conditions shall not have been met, all moneys in
such fund shall be delivered to a successor manager approved by the Credit
Enhancer or shall be delivered to the Trustee to be held in escrow for use
in connection with the operation of the Project in a manner reasonably
satisfactory to the Credit Enhancer.
6.2. LOCAL TAX PAYMENTS. So long as this Agreement remains in
effect, the borrower shall not make any payments of real estate taxes or
other ad valorem taxes or payments in lieu thereof to the City of Boston,
except as required under the statutes of the Commonwealth or ordinances of
the City of Boston duly adopted in accordance with such statutes.
6.3. RECORDING OF PHASE A OPTION. Unless its recording is
prohibited under the Travelers' Mortgage (as defined in the Phase A
Option(, the Phase A Option shall be recorded in priority to all
encumbrances on the Option Premises excepting only the Travelers' Mortgage
(and/or any other Priority Mortgage, as defined in the Ground Lease (Phase
A) for Bird Island Flats Development dated as of May 26, 1983, as amended).
The Borrower shall use best efforts to obtain permission for the Phase A
Option to be recorded. In the event that such permission is not obtained,
then, so long as such condition persists, (a) the initial Supplemental
Mortgage on the leasehold on Phases B and D shall remain in effect and the
Borrower shall not be entitled to release of the initial Supplemental
Mortgage as provided in Section 7, and (b) if the Borrower, LHA I or any
affiliate of the Borrower or LHA I shall grant and/or suffer liens or other
encumbrances on the Option Premises which secure indebtedness for borrowed
money other than a Priority Mortgage (defined as provided above) or, unless
the Travelers' Mortgage has been or is in the process of being foreclosed,
suffers to exist any lien or other encumbrance on the Option Premises which
secures an obligation or indebtedness not for borrowed money and which
would interfere with the maintenance or exercise of the rights of the
Credit Enhancer under the Phase A Option (other than
such a lien or encumbrance which the Borrower is contesting with due
diligence by appropriate legal proceedings and execution of which has not
been attempted or has been stayed), then the leasehold interest of LHA I in
Phases B and D immediately shall terminate, as more fully provided in the
Master Lease as amended as of the date hereof, and all right, title and
interest in and to Phases B and D automatically shall revert to the Credit
Enhancer without further compensation or consideration of any kind to the
Borrower, LHA I or any other Person and with no reduction in any amount
then or thereafter owing to the Credit Enhancer under Section 3 of this
Agreement.
6.4. ADDITIONAL DEBT. Without the prior written consent of
the Credit Enhancer, which may be given or withheld at the discretion of
the Credit Enhancer, the Borrower shall not issue "Parity Indebtedness" as
defined in the Leasehold Mortgage.
6.5. SUPPLEMENTAL EQUITY FUND. On each date on which the
Borrower shall have achieved a Debt Service Coverage Ratio for a period
sufficient to support a reduction of the Maximum Amount of Credit under
Section 2.5, the Borrower shall pay to the Trustee for deposit into the
Supplemental Equity Fund the amount of $125,000. In the event that the
requirements for reducing the Maximum Amount of Credit to $500,000 under
Section 2.5(b) shall have been met except for the condition that $500,000
be on deposit in the Supplemental Equity Fund, then no distribution of
moneys in the Revenue Fund shall be made to the Borrower until such
condition shall have been satisfied.
Section 7. ADMINISTRATION OF SUPPLEMENTAL MORTGAGE. At its option
exercisable on any date on or before December 26, 1995 on which there shall
exist no Event of Default under this Agreement and no event or condition
which, with the passage of time or the giving of notice or both, would
constitute an Event of Default, and subject to Section 6.3 hereof, the
Borrower may deliver to the Credit Enhancer as security for the Obligations
in substitution for the initial Supplemental Mortgage (a) a mortgage and
security interest on the Option Premises junior only to the Travelers'
Mortgage or other Priority Mortgage (defined as provided in Section 6.3) or
(b) other collateral satisfactory to the Credit Enhancer in its sole
judgment, but only so long as such other collateral shall have a current
appraised value (net of any prior secured debt) of not less than
$5,000,000. The documentation for such junior interest or other substitute
collateral shall be substantially in the form of the Phase C Second
Mortgage with such modifications as the Credit Enhancer may approve, and
shall be delivered together with the favorable opinion of the Borrower's
special counsel and other documentation
reasonably satisfactory to the Credit Enhancer and its special counsel
(including in the case of real property collateral, title insurance in an
amount note to exceed the lesser of $5,000,000 and the Maximum Amount of
Credit then in effect). Upon the delivery of a substitute Supplemental
Mortgage under this Section 7, the initial Supplemental Mortgage shall be
released and discharged.
Section 8. MAINTENANCE OF SUPPLEMENTAL MORTGAGE. In the event that
the Credit Enhancer shall have been provided a substitute Supplemental
Mortgage as provided in Section 7, then in the event that such security
shall be terminated for any reason, including without limitation the sale
of or foreclosure upon the underlying property to or by any Person
(including without limitation the Credit Enhancer), the Borrower shall
within 30 days following such event deliver or cause to be delivered to the
Credit Enhancer (i) replacement or substitute collateral meeting the
requirements of clause (b) and the second sentence of Section 7, or, if
such delivery shall occur before December 27, 1995, (ii) a leasehold
mortgage on Phase B and Phase D in the form of the initial Supplemental
Mortgage delivered pursuant to Section 5.2 hereof and subject to no other
encumbrance.
Section 9. REVERSION OF PHASE B AND PHASE D. In the event that on
December 27, 1995 either or both of the Phase B or Phase D leasehold shall
be subject to a Supplemental Mortgage (whether pursuant to the initial
Supplemental Mortgage or a substitute Supplemental Mortgage delivered under
Section 8), then on December 27, 1995 the leasehold interest of LHA I in
Phase B and/or Phase D, as the case may be, shall terminate, as more fully
provided in the Master Lease as amended as of the date hereof, and all
right, title and interest in and to such property automatically shall
revert to the Credit Enhancer without further compensation or consideration
of any kind to the Borrower, LHA I or any other Person and with no
reduction in any amount then or thereafter owing to the Credit Enhancer or
the Trustee under Section 3 of this Agreement. The occurrence of such
reversion shall not constitute an Event of Default under this Agreement or
any Related Agreement and shall not give rise to any obligation on the part
of the Borrower to provide substitute collateral.
Section 10. REPRESENTATIONS OF BORROWER. The Borrower hereby
represents and warrants to the Credit Enhancer as follows:
10.1. EXISTENCE. It is a limited partnership validly existing
under the laws of the Commonwealth and has full power and authority to
execute, deliver and perform its obligations under this Agreement and the
Related Agreements to which the Borrower is a party.
10.2. VALID OBLIGATIONS. It has taken all necessary action and has
complied with all provisions of federal, state and local law, required to
make this Agreement and the Related Agreements to which the Borrower is a
party the valid obligations of the Borrower which they purport to be; and,
when executed and delivered by the general partner of the Borrower, this
Agreement and such Related Agreements will constitute valid and binding
agreements of the Borrower and be enforceable in accordance with their
respective terms, except as enforceability may be subject to the exercise
of judicial discretion in accordance with general equitable principles and
to applicable bankruptcy, insolvency, reorganization, moratorium and other
laws for the relief of debtors heretofore or hereafter enacted to the
extent that the same may be constitutionally applied.
10.3. LEGAL PROCEEDINGS. There is no action, suit, proceedings or
investigation at law or in equity before or by any court or public board or
body pending or, to the knowledge of the Borrower, threatened against it,
wherein an unfavorable decision, ruling or finding would in any material
respect adversely affect the business, assets or condition (financial or
otherwise) of the Borrower or the transactions contemplated by this
Agreement and the Related Agreements, or which in any way would adversely
affect the validity of this Agreement or any of the Related Agreements.
10.4. COMPLIANCE WITH LAW; CONSENTS, ETC. The Borrower is not in
violation in any material respect of any term or provision of any mortgage,
lease, agreement or other instrument which is material to its business or
assets, or of any judgment, decree, governmental order, statute, rule or
regulation by which it is bound or to which it or any of its assets is
subject. The execution and delivery by the Borrower of this Agreement and
the Related Agreements to which the Borrower is a party will not violate or
constitute a default of any term or provision of any mortgage, lease,
agreement or other instrument, or of any judgment, decree, governmental
order, statute, rule or regulation by which the Borrower is bound or to
which any of its assets is subject. No approval by, authorization of, or
filing with any federal, state, or municipal or other governmental
commission, board or other governmental authority is necessary in
connection with the execution and delivery by the Borrower of this
Agreement or of any of such Related Agreements that are required to be
executed and delivered on the Remarketing Date.
Section 11. EVENTS OF DEFAULT. Each of the following shall
constitute an "Event of Default" for the purposes of this Agreement:
(a) There shall occur any Event of Default within the meaning
of Section 1101 of the 1990 Trust Agreement; PROVIDED, HOWEVER, that for
the purpose of this Agreement any event or condition described in said
Section 1101 as being an "Event of Default" thereunder only on or after the
occurrence of the Credit Enhancement Termination Date shall constitute an
Event of Default hereunder regardless of whether the Credit Enhancement
Termination Date shall have occurred.
(b) There shall occur any event or condition which entitles
the Ground Lessor to terminate the Ground Lease as provided in Section 11.2
of the Ground Lease.
(c) The Borrower shall fail to make any payment required by
Section 3.1 of this Agreement or, subject to the proviso thereto, any
payment required by Section 3.2 of this Agreement.
(d) The Borrower shall fail to observe or perform any other
covenant, condition or agreement on its part to be performed under this
Agreement, which failure shall have continued for a period of 30 days after
written notice thereof shall have been given to the Borrower by the Credit
Enhancer or any other Person.
(e) The Borrower, LHA I, MTCA or any other grantor of a
Supplemental Mortgage shall fail to observe or perform any covenant,
condition or agreement on its part to be performed under any Related
Agreement then in effect, which failure shall have continued for the period
of grace, if any, provided under such Related Agreement.
(f) At any time the aggregate principal amount of advances
made under Section 2 hereof and not repaid shall equal or exceed
$4,000,000.
Section 12. REMEDIES. Upon the occurrence of any Event of Default
hereunder, the Credit Enhancer may do any one or more of the following:
(a) By written notice to the Borrower declare any and all
advances outstanding under Section 2 hereof to be accelerated, whereupon
such amounts shall be due and payable forthwith.
(b) By written notice too the Borrower require the Borrower
to deliver to the Credit Enhancer cash collateral equal to the unused
Maximum Amount of Credit, if any.
(c) Exercise any remedies available under any Related
Agreement, including without limitation the remedy of ousting the Borrower
under the Phase C Second Mortgage.
(d) Exercise any other remedy available under any other
document delivered in connection herewith or in equity or at law.
No failure on the part of the Credit Enhancer to exercise, and no delay in
exercising, any right or remedy hereunder or under any Related Agreement or
other instrument shall operate as a waiver hereof or thereof. Nor shall
any single or partial exercise of any right or remedy hereunder or
thereunder preclude any other exercise thereof or the exercise of any other
right or remedy. The remedies provided in this Agreement and in the
Related Agreements are cumulative and not exclusive of any remedies
provided at equity or at law.
Section 13. TERMINATION OF AGREEMENT. On the Credit Enhancement
Termination Date the obligation of the Credit Enhancer to make advances
hereunder shall terminate. Thereupon,
(a) the pledge of the Credit Enhancement Account shall
terminate and be discharged and all amounts therein shall be delivered by
the Trustee to the Credit Enhancer free of the lien of this Agreement;
(b) all amounts then owing under Section 3 hereof shall be
paid, including without limitation all advances and interest thereon and
all credit enhancement fees and interest thereon; and
(c) after payment of such amounts and of all outstanding
Obligations, this Agreement and each Related Agreement shall terminate
(except to the extent expressly provided to the contrary in Section 3.3)
and any security for the Obligations then in effect shall be released and
discharged.
Section 14. CONCERNING THE TRUSTEE. The Trustee accepts the trusts
imposed upon it by this Agreement and agrees to perform the same, but only
upon the terms and conditions set forth in Article 12 of the 1990 Trust
Agreement, which is expressly incorporated herein by reference.
Section 15. NOTICES. All notices, certificates or other
communications hereunder shall be sufficiently given and shall be deemed to
be delivered if in writing or in the form of a telex addressed to the
appropriate Notice Address and if either (a) actually delivered at said
address (evidenced in the case of a telex by receipt of the correct answer
back) or (b) in the case
of a letter, three Business Days shall have elapsed after the same shall
have been deposited in the United States mails, first-class postage prepaid
and registered or certified. A copy of each notice, certificate or other
communication given by any party hereto shall also be given to each other
party hereto in the manner provided for in this Section 15.
Section 16. AMENDMENTS. No amendment or waiver of any provision of
this Agreement shall be effective unless in writing and signed by the
parties hereto; PROVIDED, that consent and signature by the Trustee shall
not be required for any amendment or waiver of the terms of any provision
hereof other than the provisions of Sections 2, 4 and 14, of the last
sentence of Section 3.2 hereof and of this Section 16.
Section 17. EXTENT OF CREDIT ENHANCER COVENANTS; NO PERSONAL
LIABILITY. No covenant, stipulation, obligation or agreement of the Credit
Enhancer contained in this Agreement or any Related Agreement shall be
deemed to be a covenant, stipulation, obligation or agreement of any
present or future member, director, officer, employee or agent of the
Credit Enhancer in his or her individual capacity; and no such person shall
be liable personally hereunder or thereunder or be subject to any personal
liability by reason or execution, delivery, performance or non-performance
hereof or thereof.
Section 18. EXCULPATION OF RELATED PERSONS OF BORROWER. No partner
of the Borrower, other than LHA-II, Inc. as sole general partner of the
Borrower, and no officer, employee or agent of the Borrower and no
stockholder, director, officer, employee or agent of any partner of the
Borrower, including for this purpose any stockholder, director, officer,
employee or agent of LHA-II, Inc., is personally liable for the Borrower's
obligations hereunder or under any Related Agreement.
Section 19. LIMITATION OF RIGHTS. With the exception of rights
herein expressly conferred, nothing expressed or implied in or inferred
from this Agreement or any Related Agreement shall give to any Person other
than the parties hereto any right or remedy with respect to this Agreement.
This Agreement and all of the covenants, conditions and provisions hereof
are for the sole and exclusive benefit of the parties hereto as herein
provided.
Section 20. SEVERABILITY. In the event that any provision of this
Agreement shall be held to be invalid in any circumstance, such invalidity
shall not affect any other provision or circumstance.
Section 21. COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original and all of which shall
constitute but one and the same agreement.
Section 22. GOVERNING LAW; SEALED INSTRUMENT. The validity and
interpretation of this Agreement shall be governed by the laws of the
Commonwealth. It is intended that this Agreement shall have the effect of
a sealed instrument.
Section 23. AGREEMENTS TO CONSTITUTE COVENANTS. Words of agreement
and promises shall also constitute covenants.
Section 24. CAPTIONS; INDEX. The captions, headings and index in
this Agreement are for convenience only and in no way define or describe
the scope or content of any provision of this Agreement.
Section 25. SUCCESSORS. This Agreement is a continuing obligation
and shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, including without limitation
any successor Trustee under the 1990 Trust Agreement.
IN WITNESS WHEREOF, each of the Borrower, the Credit Enhancer and the
Trustee has caused this Agreement to be executed and delivered as a sealed
instrument in its name and behalf by its authorized officer, all as of the
date appearing on page 1.
[ SEAL ] MASSACHUSETTS PORT AUTHORITY
By: /S/ XXXXXX X. X'XXXXX
------------------------------
Its: Secretary-Treasurer
XXXXX HARBORSIDE ASSOCIATES II
LIMITED PARTNERSHIP
By: LHA-II, Inc.
Its General Partner
By: /s/ XXXXXXX XXXXXXX
----------------------------
Xxxxxxx Xxxxxxx
Its President
SHAWMUT BANK N.A., AS TRUSTEE
By: /S/ XXX XXX XXXXXX
----------------------------
Authorized Officer
EXHIBIT 2.3
-----------
XXXXX HARBORSIDE ASSOCIATES II
LIMITED PARTNERSHIP NOTE
$10,000,000 [ Remarketing Date ]
FOR VALUE RECEIVED, the undersigned Xxxxx Harborside Associates II
Limited Partnership, a Massachusetts limited partnership, (the "Borrower"),
promises to pay to the Massachusetts Port Authority (the "Authority"), or
its order, the sum of TEN MILLION DOLLARS ($10,000,000) or, if less, the
aggregate unpaid principal amount of advances made by the Authority
pursuant to the Credit Enhancement Agreement referred to below and promises
to pay interest at a rate of 10% per annum, computed on the basis of a 365-
day year and the number of days elapsed, on the principal amount of such
advances from time to time unpaid (including without limitation compounded
interest as provided in said Credit Enhancement Agreement) and on overdue
principal thereof and, to the extent not prohibited by applicable law, an
overdue installments of interest. The Borrower will pay such principal and
interest when and as provided in said Credit Enhancement Agreement.
All payments hereunder shall be made to Shawmut Bank, N.A., as
Trustee (the "Trustee"), at Xxx Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, Attention: Corporate Trust Department, or to such other address as
the Authority or the Trustee shall have notified the Borrower in the manner
provided in the notice provision of the Credit Enhancement Agreement.
All advances made by the Authority pursuant to the Credit Enhancement
Agreement referred to below and all amounts of principal repaid and
interest paid shall be recorded on the books of the Trustee.
This Note evidences borrowerings under and is entitled to the
security of, and is subject to the provisions of, a Credit Enhancement
Agreement dated as of June 27, 1991, as from time to time in effect (the
"Credit Enhancement Agreement"), among the Borrower, the Authority and the
Trustee.
In case an Event of Default (as defined in the Credit Enhancement
Agreement) shall occur, the entire principal of this Note may become or be
declared due and payable in the manner and with the effect provided in the
Credit Enhancement Agreement.
No partner of the Borrower, other than LHA-II, Inc. as sole general
partner of the Borrower, and no officer, employee or
2.3-1
agent of the Borrower and no stockholder, director, officer, employee or
agent of any partner of the Borrower, including for this purpose any
stockholder, director, officer, employee or agent of LHA-II, Inc., is
personally liable for the Borrower's obligations under this Note.
This Note shall be governed by and construed in accordance with the
laws (other than the conflict of laws rules) of The Commonwealth of
Massachusetts.
The parties hereto, including the undersigned maker and all
guarantors and endorsers, hereby waive presentment, demand, notice, protest
and all other demands and notices in connection with the delivery,
acceptance, performance and enforcement of this Note, except as
specifically otherwise provided in the Credit Enhancement Agreement, and
assent to extensions of time of payment, or forbearance or other indulgence
without notice.
IN WITNESS WHEREOF, the Borrower has caused this Note to be executed
under its corporate seal by the duly authorized officer of its general
partner as of the date first above written.
XXXXX HARBORSIDE ASSOCIATES II
LIMITED PARTNERSHIP
By: LHA II, Inc.,
its General Partner
By:
------------------------------
Its President
[ Seal ]
2.3-2
