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AMENDMENT NO. 5 TO
NOTE PURCHASE AGREEMENT
AMENDMENT NO. 5 TO NOTE PURCHASE AGREEMENT (this "Amendment"),
dated as of July 20, 2001, among KITTY HAWK FUNDING CORPORATION, a Delaware
corporation, as a secured party (together with its successors and assigns, the
"Company"), CAC FUNDING CORP., a Nevada corporation, as issuer (together with
its successors and assigns, the "Issuer") and BANK OF AMERICA, N.A., a national
banking association ("Bank of America"), individually and as agent for the
Company and the Bank Investors (together with its successors and assigns in such
capacity, the "Agent"), amending that certain Note Purchase Agreement (as
amended to the date hereof, the "Note Purchase Agreement"), dated as of July 7,
1998, among the Company, the Issuer and Bank of America (known under the Note
Purchase Agreement as "NationsBank, N.A."), individually and as the Agent.
WHEREAS, on the terms and conditions set forth herein, the
parties thereto wish to amend the Note Purchase Agreement as provided herein.
NOW, THEREFORE, the parties HEREBY AGREE AS FOLLOWS:
SECTION 1. DEFINED TERMS. AS USED IN THIS AMENDMENT
CAPITALIZED TERMS HAVE THE SAME MEANINGS ASSIGNED THERETO IN THE NOTE PURCHASE
AGREEMENT.
SECTION 2. AMENDMENTS.
(1) SECTION 1.1 OF THE NOTE PURCHASE AGREEMENT IS HEREBY AMENDED
BY DELETING THE REFERENCE TO "MARCH 11, 2002" IN THE DEFINITION OF "COMMITMENT
TERMINATION DATE" AND REPLACING SUCH REFERENCE WITH "JULY 19, 2002".
(2) Section 1.1 of the Note Purchase Agreement is hereby amended
by deleting THE REFERENCE TO "MARCH 11, 2002" IN CLAUSE (VIII) OF THE DEFINITION
OF "TERMINATION DATE" AND REPLACING SUCH REFERENCE WITH "JULY 19, 2002".
(3) Section 2.1(e)(i)(4) of the Note Purchase Agreement is hereby
amended by deleting the reference to "June 30, 2009" and replacing such
reference with "October 30, 2009".
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SECTION 3. Representations and Warranties. The Issuer hereby
makes to the Agent, the Company and the Bank Investors, on and as of the date
hereof, all of the representations and warranties set forth in Section 4.1 of
the Note Purchase Agreement and Sections 3.1 and 3.2 of the Security Agreement,
except that to the extent that any of such representations and warranties
expressly relate to an earlier date, such representations and warranties shall
be true and correct as of such earlier date.
SECTION 4. Effectiveness. This Amendment shall become
effective on July 20, 2001.
SECTION 5. CONDITION PRECEDENT TO SUBSEQUENT FUNDING. PRIOR TO
THE SUBSEQUENT FUNDING ON OR NEXT SUCCEEDING THE DATE HEREOF, THE DEBTOR SHALL
OBTAIN AND, UNLESS OTHERWISE CONSENTED TO BY THE AGENT, HAVE AT ALL TIMES IN
EFFECT, AN INTEREST RATE CAP AGREEMENT (THE "INTEREST RATE CAP") WITH A
FINANCIAL INSTITUTION (THE "CAP COUNTERPARTY"), WHICH SHALL AT ALL TIMES DURING
THE TERM OF THE INTEREST RATE CAP BE ACCEPTABLE TO THE AGENT AND SHALL HAVE AT
ALL TIMES A RATING OF AT XXXXX "X0" FROM MOODY'S AND "A-" FROM STANDARD & POOR'S
AND WHICH HAS IRREVOCABLY AND UNCONDITIONALLY AGREED THAT, PRIOR TO THE DATE
WHICH IS ONE YEAR AND ONE DAY AFTER THE PAYMENT IN FULL OF ALL COMMERCIAL PAPER
ISSUED BY THE COMPANY, IT WILL NOT ACQUIESCE, PETITION OR OTHERWISE INVOKE OR
CAUSE THE DEBTOR TO INVOKE THE PROCESS OF ANY GOVERNMENTAL AUTHORITY FOR THE
PURPOSE OF COMMENCING OR SUSTAINING A CASE AGAINST THE DEBTOR UNDER ANY FEDERAL
OR STATE BANKRUPTCY, INSOLVENCY OR SIMILAR LAW OR APPOINTING A RECEIVER,
LIQUIDATOR, ASSIGNEE, TRUSTEE, CUSTODIAN, SEQUESTRATOR OR OTHER SIMILAR OFFICIAL
OF THE DEBTOR OR ANY SUBSTANTIAL PART OF ITS PROPERTY OR ORDERING THE WINDING-UP
OR LIQUIDATION OF THE AFFAIRS OF THE DEBTOR. THE INTEREST RATE CAP SHALL BE IN
FORM AND SUBSTANCE ACCEPTABLE TO THE AGENT AND SHALL PROVIDE (I) THAT ALL
AMOUNTS PAYABLE THEREUNDER SHALL BE PAID BY THE CAP COUNTERPARTY DIRECTLY TO THE
COLLECTION ACCOUNT, (II) THAT THE DEBTOR'S RIGHTS THEREUNDER HAVE BEEN
IRREVOCABLY ASSIGNED TO, AND A SECURITY INTEREST THEREIN HAS BEEN GRANTED TO,
THE COLLATERAL AGENT FOR THE BENEFIT OF THE SECURED PARTIES, (III) FOR A STRIKE
RATE OF NOT MORE THAN 7.50% PER ANNUM, AND (IV) THAT IT COVERS A NOTIONAL AMOUNT
CORRESPONDING TO AN AMORTIZATION SCHEDULE PROVIDED BY THE COLLATERAL AGENT AND
ATTACHED HERETO AS EXHIBIT A. NOTHING IN THIS SECTION SHALL BE INTERPRETED AS
LIMITING IN ANY WAY THE OTHER CONDITIONS TO FUNDING IN THE NOTE PURCHASE
AGREEMENT OR THE SECURITY AGREEMENT.
SECTION 6. COSTS AND EXPENSES. THE ISSUER SHALL PAY ALL OF THE
COMPANY'S, THE BANK INVESTORS' AND THE AGENT'S COST AND EXPENSES (INCLUDING OUT
OF POCKET EXPENSES AND REASONABLE ATTORNEYS FEES AND DISBURSEMENTS) INCURRED BY
THEM IN CONNECTION WITH THE PREPARATION, EXECUTION AND DELIVERY OF THIS
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AMENDMENT.
SECTION 7. GOVERNING LAW. THIS AMENDMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 8. SEVERABILITY; COUNTERPARTS. THIS AMENDMENT MAY BE
EXECUTED IN ANY NUMBER OF COUNTERPARTS AND BY DIFFERENT PARTIES HERETO IN
SEPARATE COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED SHALL BE DEEMED TO BE AN
ORIGINAL AND ALL OF WHICH WHEN TAKEN TOGETHER SHALL CONSTITUTE ONE AND THE SAME
INSTRUMENT. ANY PROVISIONS OF THIS AMENDMENT WHICH ARE PROHIBITED OR
UNENFORCEABLE IN ANY JURISDICTION SHALL, AS TO SUCH JURISDICTION, BE INEFFECTIVE
TO THE EXTENT OF SUCH PROHIBITION OR UNENFORCEABILITY WITHOUT INVALIDATING THE
REMAINING PROVISIONS HEREOF, AND ANY SUCH PROHIBITION OR UNENFORCEABILITY IN ANY
JURISDICTION SHALL NOT INVALIDATE OR RENDER UNENFORCEABLE SUCH PROVISION IN ANY
OTHER JURISDICTION.
SECTION 9. CAPTIONS. THE CAPTIONS IN THIS AMENDMENT ARE FOR
CONVENIENCE OF REFERENCE ONLY AND SHALL NOT DEFINE OR LIMIT ANY OF THE TERMS OR
PROVISIONS HEREOF.
SECTION 10. RATIFICATION. EXCEPT AS EXPRESSLY AFFECTED BY THE
PROVISIONS HEREOF, THE NOTE PURCHASE AGREEMENT AS AMENDED SHALL REMAIN IN FULL
FORCE AND EFFECT IN ACCORDANCE WITH ITS TERMS AND RATIFIED AND CONFIRMED BY THE
PARTIES HERETO. ON AND AFTER THE DATE HEREOF, EACH REFERENCE IN THE NOTE
PURCHASE AGREEMENT TO "THIS AGREEMENT", "HEREUNDER", "HEREIN" OR WORDS OF LIKE
IMPORT SHALL MEAN AND BE A REFERENCE TO THE AGREEMENT AS AMENDED BY THIS
AMENDMENT.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, THE PARTIES HERETO HAVE EXECUTED AND
DELIVERED THIS AMENDMENT NO. 5 TO THE NOTE PURCHASE AGREEMENT AS OF THE DATE
FIRST WRITTEN ABOVE.
CAC FUNDING CORP., AS ISSUER
BY: /S/ XXXXXXX X. XXXX
---------------------------------------------
NAME: CHIEF FINANCIAL OFFICER
KITTY HAWK FUNDING
CORPORATION,
AS COMPANY
BY: /S/ XXXX XXX
---------------------------------------------
NAME: XXXX XXX
TITLE: VICE PRESIDENT
BANK OF AMERICA, N.A., INDIVIDUALLY AND
AS COLLATERAL AGENT
BY: /S/ XXXXXXXXXXX X. XXXXX
---------------------------------------------
NAME: XXXXXXXXXXX X. XXXXX
TITLE: VICE PRESIDENT
