EXHIBIT
4.37


 


AMENDMENT NO. 1 TO SERIES 2009-1 SUPPLEMENT


 


THIS AMENDMENT NO. 1, dated
as of February 16, 2010 (the “Amendment”), to the Agreement (as
defined below), is entered into by TAL Advantage III LLC, a Delaware limited
liability company (the “Issuer”), Wells Fargo Bank, National
Association, as indenture trustee (the “Indenture Trustee”), and
consented to by Wachovia Bank N.A., as Control Party for Series 2009-1 (“WBNA”).


 


WITNESSETH:


 


WHEREAS, the Issuer and the
Indenture Trustee have previously entered into the SERIES 2009-1 SUPPLEMENT,
dated as of October 23, 2009 (as amended, supplemented and otherwise
modified from time to time, the “Agreement”); and


 


WHEREAS, the parties hereto
desire to amend the Agreement in order to amend Section 205(d) of the
Agreement to permit the Issuer, upon the terms and conditions described
therein, to increase the aggregate Series 2009-1 Note Existing Commitments
by an amount not to exceed One Hundred Forty-Five Million Dollars
($145,000,000);


 


NOW THEREFORE, in consideration
of the premises and mutual covenants herein contained, the parties hereto agree
as follows:


 


SECTION 1.               Defined Terms.  Unless otherwise amended by the terms of this
Amendment, capitalized terms used in this Amendment shall have the meanings
assigned in the Agreement.


 


SECTION 2.               Amendment to Agreement.  Section 205(d) of the Agreement is
hereby amended and restated as follows:


 


“              (d)           Optional
Increase in Series 2009-1 Note Existing Commitments.  The Issuer may, by means of a letter
delivered to Administrative Agent and the Indenture Trustee (with a copy to
each Interest Rate Hedge Counterparty) on not more than five (5) occasions
prior to the Conversion Date, request that the aggregate Series 2009-1
Note Existing Commitments be increased by an aggregate amount not to exceed One
Hundred Forty-Five Million Dollars ($145,000,000), (a) increasing the
commitment of one or more then existing Series 2009-1 Noteholders that
have agreed to such increase and/or (b) by issuing additional Series 2009-1
Notes to one or more commercial banks, finance companies or other Persons (each
an “Additional Series 2009-1 Noteholder”) with a Series 2009-1
Note Existing Commitment in an amount agreed to by any such Additional Series 2009-1
Noteholder.  Any such increase in the
aggregate Series 2009-1 Note Existing Commitment made in accordance with
this Section 205(d) shall be effective three (3) Business Days
after the date on which Issuer has delivered to the Administrative Agent and
the Indenture Trustee the Increase Letter (as such term is defined in the Series 2009-1
Supplement) (in the case of an increase in the Commitments of an existing Series 2009-1
Noteholder) or Related Group Additional Notice (as such term is defined in the Series 2009-1
Supplement) (in the case of the addition of an Additional  Series 2009-1 Noteholders).  If the Issuer pays or agrees to pay to any Series 2009-1
Noteholder or Additional 


 

















 


Series 2009-1
Noteholder, any increased Commitment Fee and/or Applicable Margin, then the
terms of this Supplement shall automatically be amended with the effect that
the amount of such increased Commitment Fee and/or Applicable Margin shall be
payable on a prospective basis  to all
then existing Series 2009-1 Noteholders.”


 


SECTION 3.               Representations and Warranties.  The Issuer hereby confirms that each of the
representations and warranties set forth in Article VI of the Agreement is
true and correct as of the date first written above with the same effect as
though each had been made as of such date, except to the extent that any of
such representations and warranties expressly relates to earlier dates.


 


SECTION 4.               Effectiveness.


 


(a)           Except as expressly amended by the
terms of this Amendment, all terms and conditions of the Agreement, as amended,
shall remain in full force and effect and are hereby ratified and confirmed by
the parties hereto.


 


(b)           This Amendment shall be effective
upon execution and delivery hereof and shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns.


 


(c)           After the execution and delivery
hereof by the parties hereto, (i) this Amendment shall be a part of the
Agreement, and (ii) each reference in the Agreement to “this Agreement”
and “hereof”, “hereunder” or words of like import, and each reference in any
other document to the Agreement shall mean and be a reference to the Agreement
as amended or modified hereby.


 


(d)           Each party hereto agrees and
acknowledges that this Amendment constitutes a “Transaction Document” under the
Indenture.


 


SECTION 5.               Execution in Counterparts.
This Amendment may be executed by the parties hereto in several counterparts
(which may include facsimile or PDF file), each of which shall be executed by
the Issuer, the Indenture Trustee and the Control Party, and be deemed an
original and all of which shall constitute together but one and the same
agreement.


 


SECTION 6.               Governing Law.  THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT GIVING
EFFECT TO PRINCIPLES OF CONFLICTS OF LAW (EXCEPT SECTIONS 5-1401 AND 5-1402 OF
THE GENERAL OBLIGATIONS LAW).


 


SECTION 7.               Consent to Jurisdiction.  The parties hereto hereby irrevocably consent
to the personal jurisdiction of the state and federal courts located in New
York County, New York, in any action, claim or other proceeding arising out of
any dispute in connection with this Amendment, any rights or obligations
hereunder, or the performance of such rights and obligations.


 


SECTION 8.               Entire Agreement.  This Amendment constitutes the entire
agreement between the parties hereto pertaining to the subject matter hereof.


 


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[Signature Pages Follow]


 


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IN WITNESS WHEREOF, the
parties have caused this Amendment to be executed by their respective officers
thereunto duly authorized, as of the date first above written.


 


	
   

  	
  TAL
  ADVANTAGE III LLC, as Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:
  

  
	
   

  	
   

  	
  Title:

  



 


Amendment
1 to Series 2009-1 Supplement


 

















 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION, as indenture trustee 

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
   

  
	
   

  	
   

  	
  Name:
  

  
	
   

  	
   

  	
  Title:

  



 


Amendment 1 to Series 2009-1 Supplement


 

















 


	
   

  	
  WACHOVIA
  BANK, N.A., as the Control Party for Series 2009-1

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  

  
	
   

  	
   

  	
  Title:

  



 


Amendment 1 to Series 2009-1 Supplement