FIRST AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT
OF
VISTANA WGV, LTD.
THIS FIRST AMENDMENT TO LIMITED PARTNERSHIP AGREEMENT OF VISTANA WGV,
LTD. ("First Amendment") is made and entered into as of the 30th day of June
1998, by and among VISTANA WGV HOLDINGS, INC., a Florida corporation ("General
Partner"), VISTANA WGV INVESTMENT, INC., a Florida corporation ("Vistana"),
UNITED TIMESHARES, INC., a Florida corporation ("United"), A. ZIMAND WGV
INVESTMENT, INC., a Florida corporation ("Zimand") and NATIONAL COAL COMPANY, a
Virginia general partnership ("NCC"). Any capitalized terms used in this First
Amendment which are not defined herein shall have the same definitions as set
forth in the Limited Partnership Agreement of Vistana WGV, Ltd. entered into as
of June 28, 1996, among General Partner, Vistana WGV Investment, Ltd., United
and Zimand (the "Partnership Agreement").
RECITALS
A. General Partner, Vistana WGV Investment, Ltd. (the predecessor of
Vistana), United and Zimand executed the Partnership Agreement in order to form
Vistana WGV, Ltd. (the "Partnership").
B. On December 31, 1997, Vistana WGV Investment, Ltd. was converted
from a Florida limited partnership to a Florida corporation known as "Vistana
WGV Investment, Inc.," all of the stock of which is owned by Vistana, Inc.
C. On June 30, 1998, United assigned all of its rights, obligations
and responsibilities as a limited partner in the Partnership to NCC, a Virginia
general partnership consisting of James W. McGlothlin, W. W. McGlothlin and
N. D. Street (who also collectively own all of the stock of The United Company,
which in turn owns all of the stock of United).
D. The Partners wish to amend the Partnership Agreement to reflect
the substitution of Vistana for Vistana WGV Investment, Ltd. as a Limited
Partner in the Partnership, and the substitution of NCC for United as a Limited
Partner in the Partnership, both in accordance with the terms and conditions set
forth below, and to make certain other modifications as hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
set forth and for other good and valuable considerations, the receipt and
sufficiency of which are hereby acknowledged, it is AGREED as follows:
1. Recitals. The statements of facts set forth in Recitals A through
D above are true and correct and are incorporated herein and made a part hereof.
2. Assignment of Partnership Interests and Substitution of Limited
Partners.
(a) Vistana. The assignment by Vistana WGV Investment, Ltd. to
Vistana WGV Investment, Inc. (pursuant to the conversion of Vistana WGV
Investment, Ltd. from a Florida limited partnership to a Florida corporation) of
all of its rights, obligations and responsibilities as a Limited Partner in the
Partnership is hereby consented to by the General Partner, and Vistana is hereby
substituted as a Limited Partner for Vistana WGV Investment, Ltd. effective as
of the beginning of business on January 1, 1998. Vistana hereby affirms that it
has assumed all of the rights, obligations and responsibilities of Vistana WGV
Investment, Ltd. as a Limited Partner in the Partnership as of the beginning of
business on January 1, 1998, and Vistana further agrees to be bound by all of
the terms and conditions of the Partnership Agreement as amended hereby.
(b) United. The assignment by United of all of its rights,
obligations and responsibilities as a Limited Partner in the Partnership to NCC
effective as of the close of business on June 30, 1998, is hereby consented to
by the General Partner, and NCC is hereby substituted as a Limited Partner for
United effective as of the beginning of business on July 1, 1998. NCC hereby
affirms that it has assumed all of the rights, obligations and responsibilities
of United as a Limited Partner in the Partnership, including, but not limited
to, the loan obligations described in Section 5.4 of the Partnership Agreement,
and NCC further agrees to be bound by all of the terms and conditions of the
Partnership Agreement as amended hereby.
(c) References. Any and all references to "Vistana" in the
Partnership Agreement shall be deemed to refer to Vistana WGV Investment, Inc.
effective as of the beginning of business on January 1, 1998. Any and all
references to "United" in the Partnership Agreement shall be deemed to refer to
NCC effective as of the beginning of business on July 1, 1998.
(d) Covenant Not to Compete. As a result of the substitution of
NCC for United and the assumption by NCC of all of United's obligations and
responsibilities as a Limited Partner in the Partnership, NCC acknowledges that
it is bound by all the terms of covenant not to compete set forth in Section 7.8
of the Partnership Agreement. Likewise, United acknowledges that it is an
"Affiliate" (as defined in Subsection 1.6.E. of the Partnership Agreement) of
NCC and that, as such, it will continue to be bound by all the terms and
conditions of the non-compete provisions set forth in Section 7.8 of the
Partnership Agreement after June 30, 1998, even though it will no longer be a
Partner after that date.
(e) Waiver of Opinion of Tax Counsel. In light of the changes
made to Section 12.4 and Subsection 12.6.B. below, the requirement for an
opinion of tax counsel as a
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condition precedent to the admission of Vistana and NCC as additional and
substitute Limited Partners in the Partnership is hereby waived.
3. Amendment to Section 3.2. Section 3.2 of the Partnership
Agreement is hereby deleted in its entirety and the following is substituted in
lieu thereof:
SECTION 3.2 Limited Partners. The names and addresses of the
Limited Partners are:
Vistana WGV Investment, Inc.
8801 Vistana Centre Drive
Orlando, FL 32821
Fax No. (407) 239-3222
National Coal Company
c/o The United Company
P. O. Box 1280
Bristol, VA 24203
Fax No. (540) 645-1431
A. Zimand WGV Investment, Inc.
5426 Osprey Isle Lane
Orlando, FL 32819
Fax No. (407) 876-1962
4. Amendment to Section 7.3. Section 7.3 of the Partnership
Agreement shall be amended by: (i) deleting the word "or" at the end of
Subsection 7.3.G.; (ii) changing the period at the end of Subsection 7.3.H. to a
semi-colon and adding the word "or" after the semi-colon; and (iii) adding a new
Subsection 7.3.I. which shall read as follows:
I. File an election under Treasury Regulation (S)301.7701-3 or
under any other provision of the Code or the applicable
Treasury Regulations to have the Partnership classified as
anything other than a partnership for federal income tax
purposes.
5. Amendment to Section 12.4. In recognition of the final adoption
of Treasury Regulation (S)(S)301.7701-2 and 3 relating to the classification of
business entities for federal income tax purposes, it is agreed that the second
paragraph of Section 12.4 of the Partnership Agreement shall be deleted in its
entirety and the following shall be substituted in lieu thereof:
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Each Limited Partner may Assign all or any portion of its interest in
the Partnership as a Limited Partner to an Affiliate of such Limited
Partner; provided, however, that the transferee of such Limited Partner's
interest shall be treated as an assignee of such interest under the
Partnership Law and shall not be admitted as an additional Limited Partner
(i.e., as a substitute Limited Partner) unless such transferee executes and
delivers to the General Partner a joinder to this Agreement in form and
content satisfactory to the General Partner in the reasonable exercise of
its discretion evidencing such transferee's agreement to be bound by all
the terms and conditions of this Agreement (as amended). For purposes of
the authorization for a Limited Partner to Assign its interest in the
Partnership to an Affiliate under this Section 12.4, the term "Affiliate"
in the case of Vistana shall also be deemed to include all of those Persons
identified in Schedule 12.1 attached hereto and made a part hereof.
6. Amendment to Subsection 12.6.B. Subsection 12.6.B. shall be
deleted in its entirety and the following shall be substituted in lieu thereof:
B. The Purchaser of an interest of a Limited Partner pursuant
to this Section 12.6 shall be treated as an assignee of such interest under
the Partnership Law and shall not be admitted as an additional Limited
Partner (i.e., as a substitute Limited Partner) unless such Purchaser
executes and delivers to the General Partner a joinder to this Agreement in
form and content satisfactory to the General Partner in the reasonable
exercise of its discretion evidencing such Purchaser's agreement to be
bound by all the terms and conditions of this Agreement (as amended).
7. Amendment to Section 15.1. The notice provisions applicable to
Vistana and United set forth in Section 15.1 shall be deleted and the following
shall be substituted in lieu thereof:
To Vistana at:
Vistana WGV Investment, Inc.
8801 Vistana Centre Drive
Orlando, FL 32821
With a copy to:
Charles H. Egerton, Esq.
Dean, Mead, Egerton, Bloodworth, Capouano & Bozarth, P.A.
P. O. Box 2346
Orlando, FL 32802
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To NCC at:
National Coal Company
c/o The United Company
P. O. Box 1280
Bristol, VA 24203-1280
With copies to:
Dan B. Miller, Esq.
Jones, Day, Reavis & Pogue
77 West Wacker Drive, Suite 3500
Chicago, IL 60601-1692
and to:
Wayne L. Bell, Esq.
Executive Vice President and General Counsel
The United Company
P. O. Box 1280
Bristol, VA 24203-1280
This First Amendment may be executed in counterparts, each of which
shall be deemed to be an original and shall be binding upon the party or parties
who executed the same, but all of such counterparts shall constitute one and the
same agreement.
Except as set forth above, the terms and conditions of the Partnership
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this First
Amendment the day and year first above written.
Witnesses:
GENERAL PARTNER
VISTANA WGV HOLDINGS, INC.,
a Florida corporation
By: /s/ Susan Werth
-----------------------------------
Susan Werth,
its Senior Vice President - Law
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LIMITED PARTNERS
VISTANA WGV INVESTMENT, INC.,
a Florida corporation
By: /s/ Susan Werth
-----------------------------------
Susan Werth,
its Senior Vice President - Law
NATIONAL COAL COMPANY,
a Virginia General Partnership
By: /s/ James W. McGlothlin
-----------------------------------
James W. McGlothlin, Partner
By: /s/ W.W. McGlothlin
-----------------------------------
W.W. McGlothlin, Partner
By: /s/ N.D. Street
-----------------------------------
N. D. Street, Partner
A. ZIMAND WGV INVESTMENT, INC.,
a Florida corporation
By: /s/ Art Zimand
-----------------------------------
Art Zimand,
its President
FOR PURPOSES OF PARAGRAPH 2(d)
HEREOF ONLY:
UNITED TIMESHARES, INC.,
a Florida corporation
By: /s/ James W. McGlothlin,
-----------------------------------
James W. McGlothlin,
its President