Amendment To Amended And Restated Agreement

Sixth Amendment to Amended and Restated Agreement of Limited Partnership of Net 3 Acquisition L.P.

SIXTH AMENDMENT TO
AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF
NET 3 ACQUISITION L.P.

This SIXTH AMENDMENT TO AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF NET 3 ACQUISITION L.P. (this “Amendment”) is made as of April 24, 2009 and effective as of March 26, 2009 by and among the entities and individuals signatory hereto.
 
A.           Net 3 Acquisition L.P., a Delaware limited partnership (the “Partnership”), is governed by that certain Amended and Restated Agreement of Limited Partnership, dated effective as of November 28, 2001, as amended by that certain First Amendment effective as of November 28, 2001, that certain Second Amendment effective as of June 19, 2003, that certain Third Amendment effective as of June 30, 2003, that certain Fourth Amendment effective as of December 8, 2004, and that certain Fifth Amendment effective as of January 3, 2005 (the “Agreement”).  Unless otherwise defined, all capitalized terms used herein shall have such meaning ascribed such terms in the Agreement.
 
B.           Lex GP-1 Trust, a Delaware statutory trust, is the General Partner of the Partnership.
 
C.           Pursuant to Section 14.1.B.2 of the Agreement, the General Partner has the power, without the consent of any other Partner, to amend the Agreement as may be required to cure an ambiguity, correct or supplement any provision in the Agreement not inconsistent with law or with other provisions.
 
NOW, THEREFORE, the undersigned, being desirous of effectuating the foregoing and amending the Agreement accordingly, hereby enter into this Amendment, and amend the Agreement and any supplement to the Agreement entered into prior to the date hereof, as follows:
 
1.           Amendment to Article 1.  The defined term “Redemption Factor” and “Special Limited Partner Unit Distribution Amounts” are hereby deleted in their entirety and replaced with the following:
 
Redemption Factor” means 1.0, provided that in the event that LXP (i) declares or pays a dividend on its outstanding REIT Shares in REIT Shares or makes a distribution to all holders of its outstanding REIT Shares in REIT Shares, (ii) subdivides its outstanding REIT Shares, or (iii) combines its outstanding REIT Shares into a smaller number of REIT Shares, the Redemption Factor shall be adjusted by multiplying the Redemption Factor in effect immediately before such event by a fraction, the numerator of which shall be the number of REIT Shares issued and outstanding on the record date for such dividend, distribution, subdivision or combination (assuming for such purposes that such dividend, distribution, subdivision or combination has occurred as of such time), and the denominator of which shall be the actual number of REIT Shares (determined without the above assumption) issued and outstanding on the record date for such dividend distribution, subdivision or combination.  Any adjustment to the Redemption Factor (i) with respect to clause (i) of the immediately preceding sentence, shall become effective immediately after the effective date of such event retroactive to the day after the record date, if any, for such event, and (ii) with respect to clauses (ii) or (iii) of the immediately preceding sentence, shall become effective immediately after the effective date of such event retroactive to the record date, if any, for such event.
 
 
 

 
 
Special Limited Partner Unit Distribution Amounts” means such amounts of distributions for each Special Limited Partner Unit that is equal to (x) the amount of cash distributions made in respect of one REIT Share outstanding on any given date multiplied by (y) the Redemption Factor on the applicable record date, such amount of Special Limited Partner Unit Distribution Amounts being adjusted from time to time in accordance with the Redemption Factor.
 
2.      Amendment to Section 6.1(c).  Section 6.1(c) of the Agreement is hereby deleted in its entirety and replaced with the following:
 
For purposes of Reg Section 1.752-3(a)(3), the Partners agree that Nonrecourse Liabilities of the Partnership in excess of the sum of the amount of Partnership Minimum Gain and the total amount of Nonrecourse Built In Gain shall be allocated first to account for any income or gain to be allocated to the Special Limited Partners pursuant to Sections 2B and 2D of Exhibit C and then among the Partners in accordance with their respective Percentage Interests, or as is otherwise permissible in accordance with Regulation Section 1.752-3(a)(3).
 
3.      Miscellaneous.  Except as amended hereby, the Agreement shall remain unchanged and in full force and effect.
 

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IN WITNESS WHEREOF, the parties hereto have executed this Amendment on behalf of the Partnership in accordance with the provisions of Section 14.1 of the Agreement as of the date first written above.
 
  GENERAL PARTNER:  
     
  LEX GP-1 TRUST  
       
 
By:
/s/ T. Wilson Eglin  
    T. Wilson Eglin  
    President  
 

Consented to by a Majority of the Special Limited Partners:

THE LCP GROUP L.P.

By: Third Lero Corp., its general partner
 
           
By:    
 
 
E. Robert Roskind    
 
 
President    
 
 

 
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