EXHIBIT 4.42


 


AMENDMENT NO. 3 TO SERIES 2009-1 SUPPLEMENT


 


THIS AMENDMENT NO. 3, dated
as of April 23, 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 definition
of “Base Rate” in Section 101 of the Agreement is hereby amended and
restated in its entirety to read as follows:


 


““Base Rate” means on any date, a fluctuating
rate of interest per annum equal to the highest of (a) the Prime Rate, (b) the
Federal Funds Rate plus 0.50% per annum, and (c) if a Series 2009-1
Noteholder has notified the Issuer in writing that Market Disruption Pricing
Event is then continuing with respect to a Series 2009-1 Noteholder, an
interest rate per annum solely with respect to such Series 2009-1
Noteholder equal to the lesser of (x) one and one half of one percent
(1.50%) over the then Adjusted Eurodollar Rate (determined in accordance with
the terms of this Supplement) and (y) the Actual Cost of Funds (as such
term is set forth in the definition of Market Disruption Pricing Event).  Such Series 2009-1 Noteholder shall
notify the Issuer in writing of its Actual Cost of Funds for such Interest
Accrual Period, which notification shall be determinative absent manifest
error.”


 


(b)                                                                                             The definition
of “Eurodollar Disruption Event” in Section 101 of the Agreement is hereby
amended and restated in its entirety to read as follows:


 


““Eurodollar Disruption Event” means as of any date of
determination, the existence of any of the following events or conditions: (a) a
reasonable determination by a Series 2009-1 Noteholder that it would be
contrary to law, or to the directive of any central bank or other governmental
authority (whether or not having the force of law), to obtain Dollars in the
London 


 

















 


interbank market to make, fund or maintain its investment in any Series 2009-1
Note, (b) the inability of a Series 2009-1 Noteholder (due to no fault
of its own) to obtain Dollars in the London interbank market to make, fund or
maintain its investment in any Series 2009-1 Note, (c) a
determination by a Series 2009-1 Noteholder (or any of its assignees or
participants) or the related Deal Agent that the Adjusted Eurodollar Rate does
not accurately reflect the rate at which deposits of Dollars are being offered
to such Series 2009-1 Noteholder in the London interbank market, or (d) any
Series 2009-1 Noteholder (or any of its assignees or participants) shall
have notified the Deal Agent of the inability, for any reason, of such Series 2009-1
Noteholder (or any of its assignees or participants) to determine the Adjusted
Eurodollar Rate.


 


(c)                                                                                              The definition
of “Majority of Holders” in Section 101 of the Agreement is hereby amended
and restated in its entirety to read as follows:


 


““Majority of Holders” means, with respect
to the Series 2009-1 Notes, one of the following:


 


(A)                                          if there are
two or fewer Series 2009-1 Noteholders, Series 2009-1 Noteholders
representing one hundred percent (100%) of the then Aggregate Series 2009-1
Principal Balance;


 


(B) if there are at
least three Series 2009-1 Noteholders but not more than five Series 2009-1
Noteholders, Series 2009-1 Noteholders representing in aggregate more than
sixty-six and two-thirds percent (66 2/3%) of the then Aggregate Series 2009-1
Principal Balance; or


 


(C) at all times not
covered by clause (A) or clause (B), one or more Series 2009-1
Noteholders representing in aggregate more than fifty percent (50%) of the then
Aggregate Series 2009-1 Principal Balance.”


 


(d)                                                                                             The definition
of “Market Disruption Pricing Event” is inserted in Section 101 of the
Agreement in the appropriate alphabetical order.


 


“Market
Disruption Pricing Event” means, with respect to a Series 2009-1
Noteholder, the existence of all of the following events or conditions on the
date on which the applicable interest rate for the immediately succeeding
Interest Accrual Period is being determined:


 


(i)                                     a determination
is made by such Series 2009-1 Noteholder (or any of its assignees or
participants) or the related Deal Agent that the Adjusted Eurodollar Rate (as
determined in accordance with the terms of this Supplement) does not accurately
reflect the actual cost of funds (the “Actual Cost of Funds”) to such Series 2009-1
Noteholder (or assignee or participants) of making, funding or maintaining any Series 2009-1
Advance for such Interest Accrual Period;


 


(ii)                                  the Actual Cost
of Funds for such Interest Accrual Period exceeds the Adjusted Eurodollar Rate
by more than one percent (1.00%);


 


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(iii)                               a Market
Disruption Pricing Event was not in effect for such Series 2009-1
Noteholder on more than six occasions during the immediately preceding fifteen
(15) months;


 


(iv)                              the Adjusted
Eurodollar Rate is determinable in accordance with the terms of this
Supplement; and


 


(v)                                 such Series 2009-1
Noteholder does not typically use in its normal operation either the Prime Rate
or the Federal Funds Rate as a means of measuring interest rates payable by
borrowers or other obligors.


 


(e)                                                                                              Section 209
of the Supplement is amended to read as follows:


 


“In
the event (i) any Series 2009-1 Noteholder (or any Indemnified Party
with respect to any Series 2009-1 Noteholder) delivers a certificate
requesting compensation pursuant to Section 206 or Section 207 or Section 208
hereof or declaring a Market Disruption Pricing Event, (ii) the Issuer is
required to pay any additional amount to any Series 2009-1 Noteholder (or
any Indemnified Party with respect to any Series 2009-1 Noteholder) or any
Governmental Authority on account of any Series 2009-1 Noteholder (or any
Indemnified Party with respect to any Series 2009-1 Noteholder) pursuant
to Section 206 or (iii) any Series 2009-1 Noteholder does not
consent (or fails to respond) to a proposed amendment, modification or waiver
to any provision of this Supplement or any other Transaction Document requested
by the Issuer (and the Issuer has satisfied all other conditions precedent to
such amendment or waiver but for receiving the consent of such Series 2009-1
Noteholder), the Issuer may, at its sole expense and effort, upon notice to
such Series 2009-1 Noteholder, require such Series 2009-1 Noteholder
to transfer and assign, without recourse (in accordance with and subject to the
restrictions contained in the Indenture), all of its interests, rights and
obligations under this Supplement and the other Transaction Documents to an
assignee that shall assume such assigned obligations (which assignee may be
another Series 2009-1 Noteholder, if a Series 2009-1 Noteholder
accepts such assignment); provided that:


 


(i)                                     such Series 2009-1
Noteholder shall have received payment of an amount equal to the outstanding
principal of its Series 2009-1 Note, accrued interest thereon, accrued
fees and all other amounts payable to it hereunder and under the other
Transaction Documents from the Issuer or the assignee (to the extent of such
outstanding principal and accrued interest and fees) or the Issuer (in the case
of all other amounts);


 


(ii)                                  in the case of
any such assignment resulting from a claim for compensation under Section 207
or 208 or payments required to be made pursuant to Section 206, such
assignment will result in a reduction in such compensation or payments
thereafter; and


 


(iii)                               such assignment
does not conflict with Applicable Law.”


 


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 


 


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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.


 


[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
3 to Series 2009-1 Supplement


 

















 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION, as Indenture Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Amendment
3 to Series 2009-1 Supplement


 

















 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL ASSOCIATION, as the Control Party for Series 2009-1

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Amendment
3 to Series 2009-1 Supplement