EXHIBIT 4.39


 


AMENDMENT NO. 2 TO SERIES 2009-1 SUPPLEMENT


 


THIS AMENDMENT NO. 2, dated
as of April 9, 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 Wells
Fargo Bank, National Association, as Control Party for Series 2009-1 (“WFBNA”).


 


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 as set forth herein;


 


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)                                                                                              The following
sentence is hereby added immediately after the first sentence in Section 205(c) of
the Agreement:


 


“The
Commitment Fee shall also include any additional fee which is designated as
such in any side letter between the Issuer and any Series 2009-1
Noteholder.”


 


(b)                                                                                             Section 205(d) of
the Agreement is hereby amended and restated as follows:


 


“(d)                                     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 April 9, 2011, 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”) having an aggregate Series 2009-1 Note Existing
Commitment in an amount agreed to by any such Additional Series 2009-1
Noteholder.  Notwithstanding the
foregoing, however, in the event that one or more Additional Series 2009-1
Noteholders shall become a party to the Note Purchase Agreement pursuant to Section 2.3(c) thereof
(other than the initial Additional Series 2009-1 Noteholder having a Series 2009-1
Note Existing Commitment of not more than 


 

















 


$50,000,000 that becomes a
party to the Note Purchase Agreement on or prior to May 9, 2010, the “Excluded
Incremental Series 2009-1 Noteholder”), then, until a Successful
Syndication is completed, Wells Fargo Bank, National Association, as Series 2009-1
Noteholder (“WFBNA”), shall assign to each such Additional Series 2009-1
Noteholder (i) a portion of the then Series 2009-1 Note Existing
Commitment of WFBNA in an amount equal to the Series 2009-1 Note Existing
Commitment of each such Additional Series 2009-1 Noteholder (and WFBNA’s Series 2009-1
Note Existing Commitment shall concurrently be reduced by a proportionate
amount), and (ii) a proportionate amount of the aggregate Series 2009-1
Principal Balance of the Series 2009-1 Notes then owned by WFBNA (and
WFBNA’s Series 2009-1 Principal Balance shall concurrently be reduced by a
payment in such amount from such Additional Series 2009-1 Noteholder to
WFBNA (which payment shall include any accrued interest thereon)).  In this regard, a “Successful Syndication”
means the Series 2009-1 Note Existing Commitment of Wells Fargo Bank,
National Association shall be reduced to One Hundred Fifty Million Dollars
($150,000,000) or less.”


 


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 


 


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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]


 


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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 2 to
Series 2009-1 Supplement


 

















 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION,

  
	
   

  	
  as
  Indenture Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Amendment 2 to Series 2009-1 Supplement


 

















 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION,

  
	
   

  	
  as
  the Control Party for Series 2009-1

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Amendment 2 to Series 2009-1 Supplement