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/ X. Xxxxxx Eglin | |
| X. Xxxxxx 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: |
/s/E.
Xxxxxx Xxxxxxx
|
|
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| E. Xxxxxx Xxxxxxx |
|
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| President |
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