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Exhibit 4.4(b) [CONFORMED COPY]
WAIVER TO CREDIT AGREEMENT
WAIVER (this "Waiver") dated as of November 12, 1999 to the Credit
Agreement dated as of August 7, 1997 and amended as of October 3, 1999 (the
"Credit Agreement") among CONE XXXXX CORPORATION, the BANKS listed therein and
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK, as Agent. WHEREAS, the parties hereto
previously entered into an Amendment No. 1 and Waiver to the Credit Agreement
dated as of October 3, 1999 pursuant to which, among other things, the Banks
granted to the Borrower a limited waiver of any Default which may exist under
Section 5.10 and 5.11 of the Credit Agreement for a period commencing on the
date thereof and ending on November 30, 1999, on the terms and subject to the
conditions more fully set forth therein (the "First Waiver"); WHEREAS, the Banks
have agreed to extend the period of effectiveness of the First Waiver to January
15, 1999 on the terms and subject to the conditions more fully set forth herein;
NOW, THEREFORE, the parties hereto agree as follows: Section 1. Defined Terms.
Unless otherwise specifically defined herein, each term used herein which is
defined in the Credit Agreement has the meaning assigned to such term in the
Credit Agreement. Section 2. Limited Waiver. At the request of the Borrower, the
Banks hereby waive any Default which may exist under Section 5.10 or Section
5.11 of the Credit Agreement, such waiver to be effective solely for the period
commencing on October 3, 1999 and ending on January 15, 2000. The waiver granted
pursuant to this Section 2 shall be limited precisely as written, and shall not
extend to any Default under any other provision of the Credit Agreement or to
any Default under Section 5.10 or 5.11 of the Credit Agreement which may exist
after the expiration of this waiver (including, for avoidance of doubt, any
Default which may exist at October 3, 1999 but for this waiver and/or the First
Waiver).
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Section 3. Covenant of the Borrower. The Borrower covenants that
it will not make or acquire any Investment in respect of the Mexico II project
except infrastructure capital expenditures scheduled in Addendum I hereto.
Failure to observe this covenant shall be deemed to be an Event of Default under
the Credit Agreement. Section 4. Representations of the Borrower. The Borrower
represents and warrants that after giving effect to the waiver granted pursuant
to Section 2 above, (i) the representations and warranties of the Borrower set
forth in Article 4 of the Agreement will be true on and as of the date hereof
and (ii) no Default will have occurred and be continuing on such date. Section
5. Governing Law. This Waiver shall be governed by and construed in accordance
with the laws of the State of New York. Section 6. Counterparts. This Waiver may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. Section 7. Effectiveness. This Waiver shall become effective on the
first date on which the Agent shall have received (i) counterparts hereof signed
by each of the Required Banks and the Borrower (or, in the case of any party as
to which an executed counterpart shall not have been received, receipt by the
Agent in form satisfactory to it of telegraphic, telex or other written
confirmation from such party of execution of a counterpart hereof by such party)
and (ii) evidence satisfactory to the Agent that the Borrower shall have
received waivers on no less favorable terms of the corresponding covenants in
Paragraphs 6A(2) and 6A(3) its Note Agreement dated as of August 13, 1992, as
amended, with The Prudential Insurance Company of America and in Section 32 of
the Master Lease dated as of October 24, 1994, as amended, between TBC Realty II
Corporation, as lessor, and the Borrower, as lessee.
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IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be duly
executed as of the date first above written.
CONE XXXXX CORPORATION
By: /s/ Xxxxx X. Xxxx
Name: Xxxxx X. Xxxx
Title: Treasurer
XXXXXX GUARANTY TRUST
COMPANY OF NEW YORK,
as Bank and as Agent
By: /s/ Xxxxxxxx X. Xxxxxx
Name: Xxxxxxxx X. Xxxxxx
Title: Vice President
FIRST UNION NATIONAL BANK
By: /s/ Xxxxx Xxxx
Name: Xxxxx Xxxx
Title: Senior Vice President
BANK OF AMERICA, N.A.
(successor to NationsBank, N.A.)
By: /s/ X. Xxxxxx Xxxxx
Name: X. Xxxxxx Xxxxx
Title: Managing Director
WACHOVIA BANK, N.A.
By: /s/ Xxxxxxx Xxxxxxxxx, V
Name: Xxxxxxx Xxxxxxxxx, V
Title: Senior Vice President
SUNTRUST BANK
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Vice President
