EXHIBIT 3
AMENDMENT NO. 1 TO
NOMINEE AND VOTING RIGHTS AGREEMENT
THIS AMENDMENT NO. 1 TO NOMINEE AND VOTING RIGHTS AGREEMENT ("Amendment
No. 1") dated as of November 8, 2001, is entered into by and between THE
XXXXXXXX COMPANIES, INC., a Delaware corporation ("Seller"), and QUATRO FINALE
IV LLC, a Delaware limited liability company ("Buyer").
RECITALS:
A. Seller and Buyer entered into that certain NOMINEE AND VOTING RIGHTS
AGREEMENT dated as of August 11, 2000 (the "Existing Voting Agreement") under
and pursuant to which (1) Seller was appointed as nominee for Buyer to hold
record title to 3,568,791 Units of beneficial interest (the "Subject Trust
Units") in the Xxxxxxxx Coal Seam Gas Royalty Trust, a Delaware business trust
(the "Trust') and (2) Seller was granted certain voting rights in the Subject
Trust Units with reference to matters submitted to Unitholders for a vote.
B. In order to facilitate exercises by Seller of the Call Option
provided for under the Purchase and Sale Agreement between Seller and Buyer
dated as of August 11, 2000, as amended (the "Purchase Agreement"), Seller and
Buyer have decided to herein effectively terminate the appointment of Seller
under the Existing Voting Agreement as nominee for Buyer to hold record title to
the Subject Trust Units.
NOW, THEREFORE, in consideration of the foregoing recitals, the
agreements set forth herein and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Seller and Buyer
mutually agree as follows:
ARTICLE I
Unless otherwise defined or the context otherwise requires, terms used
herein have the meanings provided for in the Existing Voting Agreement.
ARTICLE II
AMENDMENTS TO EXISTING VOTING AGREEMENT
Effective as of November 8, 2001, the Existing Voting Agreement is
amended in accordance with the terms of this Article II; except as so amended,
the Existing Voting Agreement shall continue to remain in all respects in full
force and effect.
Section 2.1 Recital C of the Existing Voting Agreement is hereby
deleted in its entirety and the following substituted therefore:
"C. Seller and Buyer desire that Seller be granted certain rights to
direct the vote with respect to the Subject Trust Units with reference to
matters submitted to Unitholders (as defined in the Trust Agreement) for a vote
having a Voting Record Date (as herein defined) occurring until the Voting
Period Termination Date."
Section 2.2 Section 2 Appointment of Nominee of the Existing Voting
Agreement is hereby deleted in its entirety and the following substituted
therefore:
"2. Record Title
(a) Buyer shall hold record title to the Subject Trust Units
and shall request that the Subject Trust Units be registered on the record books
of the Trust in the name 'Quatro Finale IV LLC' and that certificates evidencing
the Subject Trust Units and bearing such record title be issued by the Transfer
Agent to Buyer, and Seller hereby agrees to execute any and all instruments,
assignments and other documents reasonably necessary for Buyer to effect such
requested registration of such certificates. Seller hereby acknowledges that
Seller owns no beneficial title or interest in or to the Subject Trust Units,
other than the Call Option, and that the beneficial ownership and title to the
Subject Trust Units is held by Buyer.
(b) In order to effectuate Seller's voting and written consent
rights as further delineated below, Buyer shall promptly advise Seller of any
and all matters submitted to a vote by, or with respect to which a written
consent is requested from, Unitholders and shall provide copies to Seller of all
proxy statements or other information submitted to Unitholders, and Buyer shall
vote the Subject Trust Units in accordance with the requirements of Section 3."
Section 2.3 Section 3(a) of the Existing Voting Agreement is hereby
deleted in its entirety and the following substituted therefore:
"(a) Commencing at the Effective Time, Seller shall have the
right to, in its sole discretion, direct Buyer to vote the Subject Trust Units
with reference to any matter submitted to a vote or written consent of the
Unitholders with a Voting Record Date, or to execute a written consent with
respect to the Subject Trust Units with respect to any matter, occurring prior
to the Voting Period Termination Date; provided, however, that Seller shall not
have the right to direct Buyer to vote or execute a written consent in favor of
any proposed amendment to the Trust Agreement, the Gas Purchase Agreement or the
Gas Gathering Agreement to which Buyer, in its sole discretion, does not agree."
Section 2.4 The following language is added to the Existing Voting
Agreement as a new Section 17 thereto:
"17. Stock Power. Buyer hereby consents to Seller's providing, and
Seller hereby agrees to provide, a Stock Power to the transfer agent for the
Subject Trust Units solely for the purpose of transferring record title from
Seller to Buyer in accordance with this Amendment No. 1."
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ARTICLE III
MISCELLANEOUS
Section 3.1 Except as amended hereby, the Existing Voting Agreement
shall remain unmodified and in full force and effect. The parties hereby ratify
and confirm the Existing Voting Agreement, as amended concurrently herewith.
Section 3.2 This Amendment No. 1 may be executed in any number of
counterparts. Each counterpart shall be deemed an original and all counterparts
shall be deemed the same instrument with the same effect as if all parties
hereto had signed the same signature page. Any signature page of this Amendment
No. 1 may be detached from any identical counterpart of this Amendment No. 1
having attached to it one or more additional signature pages.
Section 3.3 No provision of this Amendment No. 1 may be changed or
modified except by an instrument in writing signed by Seller and Buyer.
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IN WITNESS WHEREOF, the duly authorized representatives of the parties
hereto have executed this Amendment No. 1 as of the date first above written.
THE XXXXXXXX COMPANIES. INC.,
a Delaware corporation
By:
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Name: Xxxxxxx X. xxx Xxxxx
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Title: Senior Vice President
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QUATRO FINALE IV LLC,
a Delaware limited liability company
By:
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Name:
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Title:
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