secondamdmt112508.htm


     

    
      

      

    

     

    SECOND
AMENDMENT TO MASTER REPURCHASE AGREEMENT

    


    


    This Second Amendment to Master
Repurchase Agreement (this “Amendment”), dated as
of November 25, 2008, between NATIXIS REAL ESTATE CAPITAL INC.
(“Buyer”) and RCC REAL ESTATE SPE 3, LLC
(“Seller”).

    


    WITNESSETH

    


               WHEREAS, Buyer and Seller have
entered into a Master Repurchase Agreement, dated as of April 12, 2007 (as
amended or modified, the “Agreement”), between
Buyer and Seller, which Agreement has been amended by that certain First
Amendment to Master Repurchase Agreement, dated as of September 25, 2008,
between Buyer and Seller;

    


    WHEREAS, the Purchased Assets that are
subject to Transactions under the Agreement as of the date hereof are set forth
on Exhibit A
(the “Existing
Assets”);

    


    WHEREAS, capitalized terms used but not
otherwise defined in this Amendment shall have the respective meanings assigned
thereto in the Agreement; and

    


    WHEREAS, the parties wish to amend the
Agreement upon the terms and subject to the conditions hereinafter set
forth.

    


    NOW THEREFORE, in consideration of the
mutual promises contained herein, and other valuable consideration, and
intending to be legally bound, the parties hereby amend the Agreement as
follows:

    


    1.           Section
2 of the Agreement is hereby amended by:

    


     (a) deleting the terms:
“Designated Purchase Percentage”, “Extension Conditions”, “Extension Fee” and
“Non-Usage Fee”;

    


     (b) adding the following
terms:

    


    “Existing Assets”
shall mean the Purchased Assets set forth on Exhibit A to the
Second Amendment.

    


    “Second Amendment”
shall mean that certain Second Amendment to Master Repurchase Agreement, dated
as of November 25, 2008, between Seller and Buyer.

    


    “Underwritten Net Operating
Income” shall mean the underwritten net operating income for any
Mortgaged Property or Underlying Mortgaged Property as determined by Buyer in
its commercially reasonable discretion based upon the difference between (i) and
(ii) below:

     

    (i)           Effective
Gross Income shall be calculated as the sum of:

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    a.           the
annualized in-place residential rent from the preceding three months of the
applicable property’s rent rolls, plus,

     

    b.           if
applicable, commercial rents from the trailing-twelve month operating statement,
less

     

    c.           any
concessions or other collection losses from the preceding three months of the
applicable property’s operating statements annualized.

     

    (ii)           Operating
Expenses for each property shall be equal to the product of Effective Gross
Income for such property (as calculated above) by the Expense Ratio for the
applicable asset set forth below:

     

    a.           Keystone
Expense Ratio of 45%

     

    b.           Lembi
IV Expense Ratio of 45%

     

    c.           Lembi
I Expense Ratio of 40%

     

    The
Underwritten Net Operating Income for the Mortgaged Properties and Underlying
Mortgaged Properties relating to the Existing Assets as of the date of the
Second Amendment are set forth on Exhibit A
thereto.

     

    (c)
deleting the defined terms set forth below in their entirety and replacing same
with the following:

     

    “Applicable Spread”
shall mean, with respect to any Transaction (other than the Transactions
relating to the Existing Assets), the percentage specified by Buyer (in its sole
discretion) and set forth in a Confirmation.

    


    “Eligible Preferred Equity
Assets” shall mean a Preferred Equity Asset which is acceptable to Buyer
in its sole discretion.

    


    “Facility Amount”
shall mean $100,000,000; provided that on the Outside Purchase Date, the
Facility Amount shall be reduced to the aggregate Repurchase Price (excluding
accrued Price Differential) for all Purchased Assets then subject to
Transactions hereunder; and provided, further, that it is acknowledged and
agreed that the aggregate Repurchase Price (excluding accrued Price
Differential) for the Existing Assets subject to Transactions hereunder as of
the date of the Second Amendment is $17,000,000 and, notwithstanding anything to
the contrary contained herein, Buyer shall not be required to advance any
additional amount of the Facility Amount for the purchase of additional Assets
hereunder after the date of the Second Amendment unless and until Buyer has
approved any future Eligible Assets and all of the terms and conditions of any
future Transactions related thereto in its sole and absolute
discretion.

     

    “Market Value” shall
mean (A) with respect to any Purchased Security, Mortgaged Property or
Underlying Mortgaged Property (other than the Existing Assets) as of any
relevant date, the market value for such Purchased Security, Mortgaged Property
or Underlying Mortgaged Property on such date, as determined by Buyer in its
sole discretion, exercised in good faith, or (B) with respect to any Purchased
Loan or Purchased Preferred Equity Asset  (other than the Existing
Assets) as of any relevant date, the lesser of (x) the market value for such
Purchased Loan or Purchased Preferred Equity Asset on such date, as determined
by Buyer in its sole discretion, exercised in good faith, and (y) the par amount
of such Purchased Loan or Purchased Preferred Equity Asset; provided, that the
value of any Hedging Transactions pledged with such Purchased Asset where the
Buyer or an Affiliate of the Buyer is the counterparty shall be included in the
determination of Market Value.  It is acknowledged and agreed that the
Market Value for any Asset may be determined by Buyer to be zero.

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    “Original Purchase
Percentage” shall mean, with respect to any Transaction the percentage
designated for such Transaction by Buyer in its sole discretion and set forth in
a Confirmation; and

     

    (d)
amending the term “Eligible Loans” by deleting the words: “in the good faith
exercise of its sole discretion” in the third (3rd) line
thereof and replacing same with the words: “in its sole
discretion”.

     

    2.           Section
3(a) of the Agreement is hereby amended by (a) deleting the words “reasonably
determines” at the end of the third (3rd)
sentence thereof and replacing same with the words “determines in its sole
discretion” and (b) deleting the words “the exercise of its good faith business
judgment” in the fourth (4th)
sentence thereof and replacing same with the words: “its sole
discretion”.

     

    3.           Section
3(d)(ii) is hereby amended by (a) deleting “, and” at the end of such paragraph,
and adding the following:

     

    “;
provided, however, that if Seller shall wish to terminate a Transaction relating
to an Existing Asset by early repurchase, Seller shall be required to pay to
Buyer on the Early Repurchase Date 120% of the Repurchase Price for the Keystone
or Lembi IV Existing Assets or $1,000,000 for the early repurchase of the Lembi
Mezz Existing Asset in lieu of the Repurchase Price for such Assets (in addition
to the other amounts required to be paid above), but in no event shall the
amount paid to repurchase any Asset under this Section 3(d)(ii) exceed the
aggregate Repurchase Prices for all Assets then subject to Transactions
hereunder, and”;

     

    and (b)
adding the following sentence at the end of Section 3(d):

     

    “Any amount paid by Seller in
connection with the early repurchase of an Asset under Section 3(d)(ii) in
excess of the Repurchase Price for such Asset shall be applied by Buyer to
reduce the Repurchase Prices for all remaining Assets then subject to
Transactions hereunder on a pro rata basis (provided, that in no
event shall the $1,000,000 required for the early repurchase of the Lembi Mezz
Existing Asset be so reduced).”

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

    4.           Section
3(e) of the Agreement is hereby amended by deleting the entirety of such
provision other than the first (1st)
sentence thereof.

     

    5.           Section
3(f)(ii) is hereby deleted in its entirety.

     

    6.           Section
3(l) is hereby deleted in its entirety.

     

    7.           Section
4(a) is hereby deleted in its entirety and replaced with the
following:

     

    “(a)           If
at any time, (i) (A) the aggregate Market Value for all Purchased Assets then
subject to Transactions hereunder (other than the Existing Assets) shall be less
than (B) the aggregate Market Value of such Purchased Assets as of the
respective Purchase Dates therefor or (ii) the Underwritten Net Operating Income
for the Mortgaged Property or Underlying Mortgaged Property relating to any
Existing Asset as of any period (the “Measurement Period Existing
Asset UNOI”) shall have decreased by ten percent (10%) or more from the
Underwritten Net Operating Income for such Mortgaged Property or Underlying
Mortgaged Property for such Existing Asset as of the date of the Second
Amendment (the “Original Existing Asset
UNOI”), then Buyer may by notice to Seller require Seller to transfer to
Buyer (x) cash or (y) additional collateral acceptable to Buyer in its sole and
absolute discretion, in the amount of the sum of (1) the amount (if any) by
which the amount in clause (i)(B) above exceeds the amount in clause (i)(A)
above and (2) for each one percent (1%)  reduction between the
Measurement Period Existing Asset UNOI and the Original Existing Asset UNOI for
any Existing Asset, an amount equal to    two percent (2%)
of the Repurchase Price of such Existing Asset (the sum of the foregoing clauses
(1) and (2), a “Margin
Deficit”).”

     

    8.           Section
4(b) is hereby deleted in its entirety.

     

    9.           The
third (3rd) and
fourth (4th)
sentences of Section 4(c) are hereby deleted in their entirety and replaced with
the following:

     

    “The
failure of Buyer, on any one or more occasions, to exercise its rights under
Section 4(a) of this Agreement shall not change or alter the terms and
conditions to which this Agreement is subject or limit the right of Buyer to do
so at a later date.  Seller agrees that any failure or delay by Buyer
to exercise its rights under Section 4(a) of this Agreement shall not limit such
Buyer’s rights under this Agreement or otherwise existing at law or in
equity.”

     

    10.           It
shall be a condition precedent to the effectiveness of this Amendment that, on
or before the date hereof, Seller shall have paid to Buyer $41,491,569 (the
“Partial Repurchase
Amount”), which amount shall be applied by Buyer (a) as payment in full
of the Repurchase Prices with respect to certain Purchased Assets being
repurchased by Seller on the date hereof (and the Transactions relating to such
Purchased Assets shall be terminated as of the date hereof) and (b) in reduction
of the Repurchase Prices of the Existing Assets to result in the current
Repurchase Prices for such Existing Assets as set forth on Exhibit
A.  Seller and Buyer acknowledge and agree that, as of the date
hereof, the Applicable Spreads and the Repurchase Prices (exclusive of any
accrued and unpaid Price Differential and after giving effect to application of
the Partial Repurchase Amount) of the Existing Assets are as set forth on Exhibit
A.

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

    11.           Except
as otherwise set forth herein, the Agreement shall remain unchanged and in full
force and effect. From and after the date hereof, any reference to the Agreement
shall be a reference to the Agreement as amended hereby.

     

    12.           This
Amendment shall be governed by, and construed in accordance with the substantive
laws of the State of New York.

    


    13.           This
Amendment may be executed in counterparts, each of which shall be an original
and all of which shall constitute one and the same agreement.

    


    


    14.                 This
Amendment shall be binding upon and inure to the benefit of Seller and Buyer and
their respective permitted successors and assigns.

    


    IN WITNESS WHEREOF, the undersigned
have caused this Amendment to be duly executed and delivered as of the day and
year first written above.

    


    
      
         

      

      
         

        
          

        

      

      
         

      

    

    


     

    
      
        	 NATIXIS
      REAL ESTATE	 	 RCC
      REAL ESTATE SPE 3, LLC
	 CAPITAL
      INC.	 	 
	
                By:

              	 	
                By:

              
	
                Name

              	 	
                Name 

              
	
                Title 

              	 	
                Title

              


      

    

     

     

    
      
         

      

      
         

        
          

        

      

      
         

      

    

     

    EXHIBIT
A

    


    EXISTING
ASSETS

    


    


    


    
      	
               

              Name

            	
               

              Type

            	
              Applicable Spread

            	
              Current Repurchase Price

            	
               

              Current UNOI

            
	
                   Keystone

              Apartments

            	
              Mortgage
      Asset

            	
               

              1.75%

            	
               

              $9,500,000

            	
               

              $1,164,852

            
	
              Lembi
      IV

              Mortgage
      Portfolio

            	
              B
      Note

              (pari
      passu senior participation)

            	
               

              3.00%

            	
               

              $7,500,000

            	
               

              $1,270,919

            
	
              Lembi
      I Mezzanine Portfolio

            	
              Mezzanine
      Loan Participation

            	
               

              N/A

            	
               

              -0-

            	
               

              $1,880,039