EXHIBIT 4.38


 


AMENDMENT NO. 2 TO SERIES 2009-1 NOTE PURCHASE AGREEMENT


 


THIS AMENDMENT NO. 2, 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”), Wachovia Bank N.A., as a Purchaser and
Control Party for Series 2009-1 (“WBNA”), and Wells Fargo
Securities, LLC, as a Deal Agent for WBNA (in such capacity, a “Deal Agent”).


 


WITNESSETH:


 


WHEREAS, the Issuer has
previously entered into the SERIES 2009-1 NOTE PURCHASE AGREEMENT, dated as of October 23,
2009 (as amended, supplemented and otherwise modified from time to time, the “Agreement”),
with the Purchasers and Deal Agents named therein; and


 


WHEREAS, the parties hereto
desire to amend the Agreement in order to (A) increase the Purchase Limit
of WBNA from One Hundred Million Dollars ($100,000,000) to One Hundred Fifty
Million Dollars ($150,000,000) and (B) amend Section 2.3(c) 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.               Amendments to Agreement.


 


(a)                               Section 2.3(c) of
the Agreement is hereby amended and restated as follows:


 


“              (c)           The
Issuer may, by means of a letter delivered to Administrative Agent and the
Indenture Trustee 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), 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.”


 

















 


(b)                               Schedule 2
to the Agreement is hereby amended and restated as Schedule 2 attached
to this Amendment.


 


SECTION 3.               Representations and Warranties.  The Issuer hereby confirms that each of the
representations and warranties set forth in Section 4.1 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 Deal Agents, the Purchasers 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.


 


[Signature Pages Follow]


 


2

















 


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.


 


	
  THE
  ISSUER:

  	
  TAL
  ADVANTAGE III LLC

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
   

  
	
   

  	
   

  	
  Name:
  

  
	
   

  	
   

  	
  Title:

  



 


Amendment
No. 1 to Note Purchase Agreement


 

















 


	
   

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

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  Series 2009-1 Note
  Commitment:     $150,000,000

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  

  
	
   

  	
   

  	
  Title:

  



 


Amendment No. 1 to Note Purchase Agreement


 

















 


	
   

  	
  WELLS
  FARGO SECURITIES, LLC, as a Deal Agent

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
   

  
	
   

  	
   

  	
  Name:
  

  
	
   

  	
   

  	
  Title:

  



 


Amendment
No. 1 to Note Purchase Agreement


 

















 


SCHEDULE 2


 


PURCHASE LIMITS


 


	
  Purchaser

  	
   

  	
  Purchase Limit

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Wachovia
  Bank, National Association

  	
   

  	
  $

  	
  150,000,000