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Exhibit 4.4
AMENDMENT NO. 1 TO
WCG NOTE REMARKETING AND
REGISTRATION RIGHTS AGREEMENT
AMENDMENT dated as of April 26, 2001 (this "Amendment") to the WCG NOTE
REMARKETING AND REGISTRATION RIGHTS AGREEMENT, dated as of March 28, 2001 (the
"Agreement"), among (i) THE XXXXXXXX COMPANIES, INC., a Delaware corporation;
(ii) XXXXXXXX COMMUNICATIONS GROUP, INC., a Delaware corporation; (iii) XXXXXXXX
COMMUNICATIONS, LLC, a Delaware limited liability company; (iv) WCG NOTE TRUST,
a statutory business trust formed under the Trust Act; (v) UNITED STATES TRUST
COMPANY OF NEW YORK, as Indenture Trustee and WCG Note Indenture Trustee; and
(vi) CREDIT SUISSE FIRST BOSTON CORPORATION.
W I T N E S S E T H :
WHEREAS, the parties hereto desire to amend the Agreement to extend the
period for preparing, filing and declaring effective a Shelf Registration
Statement for an offering of the WCG Note;
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Defined Terms; References. Unless otherwise specifically
defined herein, each capitalized term used herein which is defined in the
Agreement has the meaning assigned to such term in the Agreement and capitalized
terms used herein and not defined in the Agreement shall have the meanings
assigned to them in Annex A to the Participation Agreement dated as of March 22,
2001 among Xxxxxxxx, the Issuer, the Co-Issuer, WCG, WCL, the Share Trust,
United States Trust Company of New York and Wilmington Trust Company (each as
defined therein).
SECTION 2. Amendments. The definition of "WCG Failed Registration" in
Section 1 of the Agreement is hereby amended to read in its entirety as follows:
"WCG Failed Registration" means a failure by WCG to (i) file a
Registration Statement no later than 60 days following the Closing Date
or otherwise have an effective Registration Statement available in
accordance with Section 3(a); (ii) use its reasonable best efforts to
diligently pursue the registration of the WCG Note when so required by
this Agreement; or (iii) use its reasonable best efforts to cause the
Registration Statement to be declared effective no later than 90 days
following the Closing Date.
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Subsections (a) and (b) of Section 3 of the Agreement are hereby
amended to read in their entirety as follows:
(a) Unless an effective Registration Statement of WCG would
permit the remarketing and/or sale of the WCG Note as contemplated by
this Agreement, WCG shall prepare and file with the SEC, as soon as
practicable (taking into account the legal requirements for
registration at such time) but in any event no later than 60 days
following the Closing Date, a Shelf Registration Statement for an
offering of the WCG Note to be made by the Issuer and/or the Indenture
Trustee on a continuous basis. Any Shelf Registration Statement shall
be filed on Form S-3 or another appropriate form permitting
registration of the offer and sale of the WCG Note by the Issuer and/or
the Indenture Trustee for remarketing or sale in the manner designated
herein. WCG shall undertake no offer or sale of securities under any
such outstanding Shelf Registration Statement such that the WCG Note
Remarketing Agents, the Issuer or the Indenture Trustee can no longer
rely on such outstanding Shelf Registration Statement to remarket
and/or sell the WCG Note.
(b) WCG shall use its reasonable best efforts to cause any
Shelf Registration Statement to be declared effective under the
Securities Act as soon as practicable (taking into account the legal
requirements for registration at such time) but in any event no later
than 90 days following the Closing Date and to keep any such Shelf
Registration Statement continuously effective under the Securities Act
during the WCG Effectiveness Period.
SECTION 3. Effect of Amendment. In all other respects and except as
amended herein, the Agreement shall remain unchanged and its provisions are
hereby confirmed and ratified. All references to the Agreement shall be deemed
to mean the Agreement as amended by this Amendment.
Section 4. Counterparts. This Amendment may be executed in several
counterparts, each of which shall be regarded as an original, and all of which
shall constitute one and the same document.
SECTION 5. Governing Law. This Amendment shall be governed by and
construed in accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as of the date first above written.
THE XXXXXXXX COMPANIES, INC.
By /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: Treasurer
XXXXXXXX COMMUNICATIONS GROUP, INC.
By /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
XXXXXXXX COMMUNICATIONS, LLC
By /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Vice President
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WCG NOTE TRUST
By: WILMINGTON TRUST COMPANY,
not in its individual capacity but solely
in its capacity as Issuer Trustee
By /s/ Xxxxx X. Xxxxxx
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Name: Xxxxx X. Xxxxxx
Title: Financial Services Officer
UNITED STATES TRUST COMPANY OF NEW YORK, not
in its individual capacity, but solely as
Indenture Trustee and WCG Note Indenture
Trustee
By /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON CORPORATION
By /s/ Xxxxx Xxxxxx
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Name: Xxxxx Xxxxxx
Title: Managing Director
