Exhibit 10.38


 


ADDENDUM TO CREDIT LINE
ACCOUNT APPLICATION AND AGREEMENT


 


	
  Credit
  Line Account

  	
  Account Number

  
	
   

  	
   

  
	
  Collateral
  Account

  	
  Account Number

  



 


This Addendum (this “Addendum”) is attached to,
incorporated by reference into and is fully a part of the Credit Line Account
Application and Agreement between UBS Bank USA (the “Bank”) and the borrower
named in the signature area below (the “Borrower”), dated as of the date hereof
(as amended or otherwise modified from time to time, the “Agreement”). This
Addendum and the Agreement shall not become effective and binding upon the Bank
until this Addendum has been executed by the Borrower and accepted by the Bank
at its home office. Any conflict between the terms of the Agreement and this
Addendum shall be resolved in accordance with the terms of this Addendum.
Defined terms used herein to have the respective meanings set forth in the
Agreement unless otherwise defined in this Addendum.


 


A.    The
Bank, UBS Financial Services Inc. and the Borrower each acknowledge and agree
that:


 


Definitions


 


1.               The
Agreement is amended by adding the following definitions in Section 1:


 


“·            “Additional
Payments” has the meaning specified in Section 5 g).


 


·                  “ARS
Collateral” means any and all Collateral consisting of Auction Rate Securities.


 


·                  “ARS
Payments” has the meaning specified in Section 5 g).


 


·                  “Auction
Rate Securities” means any and all securities determined by the Bank, in its
sole and absolute discretion, as being commonly referred to as “Auction Rate
Securities,” which, for greater certainty, include, without limitation, debt
securities on which the interest rate payable is periodically re-set by an
auction process and/or equity securities on which any dividend payable is
periodically re-set by an auction process.


 


·                  “Taxable
SLARC Maximum Auction Rate” means the applicable “reset rate,” “maximum auction
rate” or other similar rate as may be specified in the prospectus or other
documentation governing any applicable Taxable Student Loan Auction Rate
Securities as representing the failed auction rate or similar rate payable on
such Auction Rate Securities, in each case expressed as a per-annum rate and as
calculated in the Bank’s sole and absolute discretion.


 


·                  “Taxable
Student Loan Auction Rate Securities” means any and all Auction Rate Securities
Collateral consisting of securities determined by the Bank, in its sole and
absolute discretion, as being commonly referred to as “Student Loan Auction
Rate Securities” and on which the interest or dividend rate paid or payable to
the Borrower by the issuer of such securities is taxable to the Borrower.”


 


Terms of Advances


 


2.               The
Agreement is amended by adding the following as Section 3 e):


 


“The Borrower acknowledges that the Bank
will not make an Advance against the ARS Collateral in amounts equal to the
fair market or par value of the ARS Collateral unless the Borrower arranges for
another person or entity to provide additional collateral or assurances on
terms and conditions satisfactory to the Bank. In requesting an Approved Amount
equal to the par value of the ARS Collateral, the Borrower has arranged for UBS
Financial Services Inc. to provide, directly or through a third party, the
pledge of additional collateral and/or assurances to the Bank so that the Bank
will consider making Advances from time to time in accordance with the terms of
this Agreement and in amounts equal to, in the aggregate, the par value of the
ARS Collateral at the date of an Advance. In addition, the Borrower, the Bank
and UBS Financial Services Inc. acknowledge and agree that if (a) the Bank
is repaid all of the Credit Line Obligations due to the Bank under the
Agreement and this Addendum and (b) as part of such repayment, the Bank
realizes on the additional collateral and/or assurances pledged or otherwise
provided by UBS Financial Services and/or any
such third party to the Bank, then the Agreement shall not terminate
and the Bank shall automatically assign to UBS Financial Services Inc. and any
such third party, and UBS Financial Services Inc. and any such third party
shall automatically assume and be subrogated to, all of the Bank’s rights,
claims and interest in and under the Agreement and this Addendum, including
without limitation, the security interest in the Collateral, including without
limitation the ARS Collateral, granted the Bank under the Agreement and this
Addendum (further including, without limitation, interest, dividends,
distributions, premiums, other income and payments received in respect of any
and all such Collateral) to the extent of the amount that the Bank has realized
on all or any part of the additional collateral and/or assurances pledged or
otherwise provided by UBS Financial Services and/or any such third party to the
Bank in order to effect the repayment of the Credit Line Obligations due to the
Bank under the Agreement. Upon such automatic assignment and subrogation, UBS
Financial Services Inc. and any such third party shall be entitled to directly
exercise any and all rights and remedies afforded the Bank under the Agreement,
this Addendum and any and all other documents and agreements entered into in
connection with the Agreement and/or this Addendum.”


 


Interest


 


3.               The
Agreement is amended by adding the following as a new Section 4 d), Section 4
e) and Section 4 f):


 


	
  “d)

  	
  Notwithstanding
  anything to the contrary in this Agreement, and subject to the provisions of
  Sections 4 e) and f) of this Agreement, the interest rate charged on any and
  all outstanding Variable Rate Advances shall be the lesser of (i) the
  amount prescribed by Sections 4 a), b), or c) of this Agreement, as
  applicable, and (ii) the then applicable weighted average rate of
  interest or dividend rate paid to the Borrower by the issuer of the ARS Collateral.

  
	
   

  	
   

  
	
  e)

  	
  The Bank and the
  Borrower acknowledge and agree that the Bank shall be entitled to determine
  or adjust, at any time and from time to time, the interest rate payable by
  the Borrower to the Bank on all or any part of the outstanding Variable Rate
  Advances to reflect any changes in the composition of the ARS Collateral, to
  address any inability to determine interest rates, or for any other reason
  that, in the Bank’s sole and absolute discretion, is necessary to give effect
  to the intent of the provisions of this Agreement, including, without
  limitation, this Section 4 (it being acknowledged and agreed that the
  provisions of this Section 4 are intended to cause the interest payable
  by the Borrower under this Agreement to equal the interest or dividend rate
  payable to the Borrower by the issuer of any ARS Collateral) and any and all
  such adjustments by the Bank hereunder shall be conclusive and binding on the
  Bank and the Borrower absent manifest error.

  
	
   

  	
   

  
	
  f)

  	
  If and to the extent that any or all of the ARS Collateral
  consists of Taxable Student Loan Auction Rate Securities, then
  notwithstanding anything to the contrary in this Agreement, when calculating
  such weighted average interest rate, the interest rate paid to the Borrower
  with respect to such Taxable Student Loan Auction Rate Securities shall be
  deemed to be equal to (i) for the period from the date of this Addendum
  through and including January 21, 2009, the applicable coupon
  rate(s) and (ii) from January 22, 2009 and thereafter, the
  then applicable Taxable SLARC Maximum Auction Rate, for, and to the extent
  of, such Taxable Student Loan Auction Rate Securities. The Borrower will be
  charged interest on the Loan in months in which the Borrower does not receive
  interest on the Taxable Student Loan Auction Rate Securities.”

  



 

















 


Payments


 


4.               The
Agreement is amended by adding the following as Section 5 g):


 


“The Borrower will make additional
payments (“Additional Payments”) as follows:


 


·                  The
proceeds of any liquidation, redemption, sale or other disposition of all or
part of the ARS Collateral will be automatically transferred to the Bank as
payments. The amount of these payments will be determined by the proceeds
received in the Collateral Account, and may be as much as the total Credit Line
Obligations.


 


·                  All
other interest, dividends, distributions, premiums, other income and payments
that are received in the Collateral Account in respect of any ARS Collateral
will be automatically transferred to the Bank as payments. These are referred
to as “ARS Payments.” The amount of each ARS Payment will vary, based on the
proceeds received in the Collateral Account. The Bank estimates that the ARS
Payments will range from zero to fifteen ($15.00) dollars per month per $1,000
in par value of Pledged ARS. The Bank will notify the Borrower at least ten (10) days
in advance of any ARS Payment that falls outside of this range. If the Borrower
would prefer to have advance notice of each payment to be made to Advances, the
Borrower may cancel ARS Payments as described below.


 


·                  The
Borrower agrees that any cash, check or other deposit (other than a deposit of
securities) made to the Collateral Account is an individual authorization to
have such amount transferred to the Bank as a payment. The amount of each
payment is the amount of the deposit.


 


Each Additional Payment will be applied,
as of the date received by the Bank, in the manner set forth in the last
sentence of Section 5 d). The Borrower acknowledges that neither the Bank
nor UBS Financial Services Inc. sets or arranges for any schedule of Additional
Payments. Instead, Additional Payments will be transferred automatically from
the Collateral Account whenever amounts are received in the Collateral Account,
generally on the second Business Day after receipt.


 


The Borrower may elect to stop ARS
Payments at any time, and this election will cancel all ARS Payments that would
occur three (3) Business Days or more after the Bank receives such notice.
If the Borrower stops ARS Payments, the Borrower will continue to be obligated
to pay principal, interest, and other amounts pursuant to the Agreement. If the
Borrower elects to cancel ARS Payments, all other Additional Payments will be
cancelled. Cancelling ARS Payments and Additional Payments may result in higher
interest charges by the Bank because amounts received in the Collateral Account
will not be automatically transferred and credited. Any amounts received in the
Collateral Account will remain in the Collateral Account unless the Bank
permits you to withdraw all or part of such amounts. Your notice to cancel must
be sent to: Attention; Head of Credit Risk Monitoring, UBS Bank USA, 299 South
Main Street, Suite 2275, Salt Lake City, Utah 84111, or call (801)
741-0310.


 


Important
Disclosure About Required Payments.
If Additional Payments are sufficient to pay all accrued interest on Advances
on or before a due date, then the Borrower need not make an additional interest
payment. Excess Additional Payments will be applied against principal. However,
if Additional Payments are not sufficient to pay all accrued interest on
Advances on or before a due date, then the Bank may, in its sole discretion (1) capitalize
unpaid interest as an additional Advance, or (2) require the Borrower to
make payment of all accrued and unpaid interest.”


 


Remedies


 


5.               The
Agreement is amended by adding the following as Section 10 e):


 


“The Borrower agrees
that in the event the Bank determines to liquidate or sell any Collateral, the
Bank shall, to the fullest extent permitted by applicable law, have the right
to do so in any manner, including, without limitation, the sale of Collateral
individually or in a block, for cash or for credit, in a public or private
sale, with or without public notice, through the use of sealed bids or
otherwise, with the aid of any advisor or agent who may be an affiliate of the
Bank or in any other manner as the Bank in its sole discretion shall choose.
The Borrower acknowledges that the price the Bank obtains for Collateral in the
Bank’s chosen method of sale may be lower than might be otherwise obtained in
another method of sale, and the Borrower hereby agrees that any such sale shall
not be considered to be not commercially reasonable solely because of such
lower price. The Borrower understands that there may not be a liquid market for
the Collateral and that, as a result, the price received for the Collateral
upon liquidation or sale by the Bank may be substantially less than the
Borrower paid for such Collateral or than the last market value available for
it, if any. The Borrower further agrees that any sale by the Bank shall not be
considered to be not commercially reasonable solely because there are few
(including only one) or no third parties who submit bids or otherwise offer to
buy the Collateral. The Borrower understands that the Bank’s sale of any of the
Collateral may be subject to various state and federal property and/or
securities laws and regulations, and that compliance with such laws and
regulations may result in delays and/or a lower price being obtained for the
Collateral. The Borrower agrees that the Bank shall have the right to restrict
any prospective purchasers to those who, in the Bank’s sole discretion, the
Bank deems to be qualified. The Borrower acknowledges that the Bank shall have
sole authority to determine, without limitation, the time, place, method of
advertisement and manner of sale and that the Bank may delay or adjourn any
such sale in its sole discretion. The Borrower expressly authorizes the Bank to
take any action with respect to the Collateral as the Bank deems necessary or
advisable to facilitate any liquidation or sale, and the Borrower agrees that
the Bank shall not be held liable for taking or failing to take any such
action, regardless if a greater price may have been obtained for the Collateral
if such action was or was not taken, as applicable. The Borrower hereby waives,
to the fullest extent permitted by law, any legal right of appraisal, notice,
valuation, stay, extension, moratorium or redemption that the Borrower would
otherwise have with respect to a sale of the Collateral.”


 


Representations, Warranties and Covenants by the Loan
Parties:


 


6.               The
Agreement is amended by adding the following as Section 11 g):


 


	
  “g)

  	
  If at any time there
  are Credit Line Obligations outstanding under the Credit Line, then in
  connection with any ARS Collateral, if at any time any such ARS Collateral
  may be sold, exchanged, redeemed, transferred or otherwise conveyed by the
  Borrower for gross proceeds that are, in the aggregate, not less than the par
  value of such Auction Rate Securities to any party, including, without
  limitation, to UBS Financial Services Inc. and/or any of its affiliates (any
  such sale, exchange, redemption, transfer or conveyance referred to herein as
  an “ARS Liquidation”), the Borrower agrees (i) to immediately effect
  such ARS Liquidation to the extent necessary to satisfy all Credit Line
  Obligations in full and (ii) that the proceeds of any such ARS
  Liquidation so effected shall be immediately and automatically used to pay
  down any and all such outstanding Credit Line Obligations to the extent of
  such proceeds. The Borrower hereby acknowledges and agrees with the Bank and
  directs UBS Financial Services Inc. that to the extent permitted by
  applicable law, this Section 11 g) shall constitute an irrevocable
  instruction, direction and standing sell order to UBS Financial Services Inc.
  to effect an ARS Liquidation to the extent it is possible to do so at any
  time during the term of this Agreement. The Borrower further agrees with the
  Bank and UBS Financial Services Inc. to execute and deliver to the Bank
  and/or UBS Financial Services Inc. such further documents and agreements as
  may be necessary in the sole and absolute discretion of the Bank and/or UBS
  Financial Services Inc. to effect the foregoing irrevocable instruction,
  direction and standing sell order.”

  



 

















 


Waivers


 


7.               The
Agreement is amended by adding the following as Section 21:


 


“The Borrower hereby (i) acknowledges and admits
its indebtedness and obligations to the Bank under the Agreement; and (ii) acknowledges,
admits and agrees that it has no and shall assert no defenses, offsets,
counterclaims or claims in respect of its obligations under the Agreement, in
each  case notwithstanding any
claim or asserted claim that it may have, or purport to have, against any
affiliate of the Bank.”


 


Schedules
I and II


 


8.               a)              Schedule
I of the Agreement is amended in its entirety to read as follows:


 


	
  $25,001
  to $499,999

  	
   

  	
  2.750

  	
  %

  
	
  $500,000
  to $999,999

  	
   

  	
  1.750

  	
  %

  
	
  $1,000,000
  to $4,999,999

  	
   

  	
  1.500

  	
  %

  
	
  $5,000,000
  and over

  	
   

  	
  1.250

  	
  %

  



 


b)             Schedule
II of the Agreement is deleted in its entirety and replaced with:  “[Intentionally Omitted].”


 


No Fixed Rate Advances/Prime Credit Lines


 


9.               The
Bank and the Borrower acknowledge and agree that notwithstanding anything to
the contrary in the Agreement: (a) the Borrower shall not request and the
Bank shall not make a Fixed Rate Advance; and (b) there shall be no Prime
Credit Line facilities available under the Agreement.


 


Alternative Financing


 


10.         If
at any time the Bank exercises its right of demand under Section 5 a), Section 5
b) and Section 10 b) of the Loan Agreement for any reason other than (i) the
occurrence of an Event under Sections 10 a) (iv), (v), (vii), (ix) (if and
to the extent any indebtedness specified thereunder is to the Bank or any of
the Bank’s affiliates), or (xi) of the Agreement; or (ii) in connection
with any termination for cause by UBS Financial Services Inc. of the overall
customer relationship between UBS Financial Services Inc. and the Borrower or
its affiliates, then UBS Financial Services Inc. shall, or shall cause one or
more of its affiliates, to provide as soon as reasonably possible, alternative
financing on substantially the same terms and conditions as those under the
Agreement and the Bank agrees that the Agreement shall remain in full force and
effect until such time as such alternative financing has been established.


 


Margin Calls; Interest Payments


 


11.         Notwithstanding
anything to the contrary in the Agreement, the Bank and the Borrower
acknowledge and agree that UBS Financial Services Inc. or any affiliate thereof
may, in its sole and absolute discretion, elect to (i) provide additional
collateral to the Bank in the form of United States Treasury Securities if and
to the extent that the Borrower does not maintain in a Collateral Account,
Collateral having an aggregate lending value as specified by the Bank from time
to time; and/or (ii) satisfy any and all amounts of accrued and unpaid
interest that are otherwise due and payable by the Borrower to the Bank under
the Agreement, to the extent that the amount of any Additional Payments under
the Agreement are insufficient to satisfy any and all such amounts.


 


Collateral Account Features


 


12.         Section 8
f) of the Agreement is deleted in its entirety and replaced with the following:


 


“If a Collateral Account has margin
features, the margin features will be removed by UBS Financial Services Inc.,
as applicable, so long as there is no outstanding margin debit in the
Collateral Account. If a Collateral Account has Resource Management Account® or
Business Services Account BSA® features, such as check writing, cards, bill
payment, or electronic funds transfer services, all such features shall be
removed by UBS Financial Services Inc., as applicable,”


 


No Credit Line Checks


 


13.         The
Bank and the Borrower acknowledge and agree that notwithstanding anything to
the contrary in the Agreement, the Credit Line shall not have Credit Line
checks.


 


Headings


 


14.         The
headings of each of Section of this Addendum is for descriptive purposes
only and shall not be deemed to modify or qualify the terms, conditions, rights
or obligations described in such Section.


 


B.             This
Addendum may be signed in multiple original counterparts, each of which shall
be deemed an original and all of which together shall constitute one and the
same instrument.


 


[Signature
page(s) follows]


 

















 


IN
WITNESS WHEREOF, each of the parties has signed this Addendum pursuant to due
and proper authority as of the date set forth below.


 


	
  12/22/2009

  	
   

  	
  Francis R.
  Murphy III

  Treasurer and CFO

  	
   

  	
  /s/ Francis R.
  Murphy III

  
	
  Date

  	
   

  	
  Print Name and
  Title

  	
   

  	
  Signature

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  12/22/2009

  	
   

  	
  Bruce J. Mackey
  Jr.

  President and CEO

  	
   

  	
  /s/ Bruce J.
  Mackey Jr.

  
	
  Date

  	
   

  	
  Print Name and
  Title

  	
   

  	
  Signature

  



 


	
   

  	
  UBS
  BANK USA

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jared Cook

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Jared Cook

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  VP UBS Bank USA

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Jeff Abbott

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Jeff Abbott

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  AVP UBS Bank USA

  
	
   

  	
   

  	
   

  
	
   

  	
  UBS
  FINANCIAL SERVICES INC.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Brian Arthur

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Brian Arthur

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director, UBS Financial
  Services Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Scott Hoover

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
  Scott Hoover

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
  Director, UBS Financial
  Services Inc.

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
  1/6/2010