# **Exhibit 10.1**

 

**Confidential Materials omittedand filed separately with the Securities and Exchange Commission. Asterisks denote omissions.**

 

 

**FIFTH SUPPLEMENT TO**

**MASTER LOAN GUARANTY AGREEMENT**

 

This Fifth Supplement to Master Loan GuarantyAgreement (this “Supplement”) is made as of this 6th day of October,2005, by and between The Education Resources Institute, Inc., a privatenon-profit corporation organized under Chapter 180 of the Massachusetts GeneralLaws, with its principal place of business at Park Square Building, 4th Floor,31 St. James Avenue, Boston, Massachusetts 02116 (“TERI”), and The FirstMarblehead Corporation, a Delaware corporation having a principal place ofbusiness at 800 Boylston Street, 34th Floor, Boston, Massachusetts 02199 (“FMC”),and amends and supplements that certain Master Loan Guaranty Agreement dated asof February 2, 2001 by and between TERI and FMC, as amended (the “Master LoanGuaranty Agreement”).  Capitalized termsused herein without definition have the meaning set for the in the Master LoanGuaranty Agreement.

 

WHEREAS, pursuant to that certain Master Loan GuarantyAgreement, numerous FMC Purchase Programs have been created and have resultedin the origination of loans for purchase by FMC or its designee;

 

WHEREAS, pursuant to the Fourth Supplement to MasterLoan Guaranty Agreement dated June 1, 2004 (the “Fourth Supplement”), TERI andFMC agreed to amend the Master Loan Guaranty Agreement to adjust the amount ofguaranty fees that are held in the Pledged Account and the relative ownershippercentages of residual equity interests in the Purchaser Trust; and

 

 WHEREAS, theparties desire to make further amendments to the Master Loan Guaranty Agreementas provided herein.

 

NOW, THEREFORE, in consideration of these presents andthe covenants contained herein and for valuable consideration, the receipt andsufficiency of which are hereby acknowledged, the parties hereto hereby agreeas follows:

 

1.                                       For any Securitization closing from andafter the date hereof through and including June 30, 2006 (each, a “2006Securitization”), the parties agree as follows:

 

(a)(i)  The amount of guaranty fees that are held inthe Pledged Account for any 2006 Securitization shall be reduced (suchreduction, the “[**] Reduction”) by [**] basis points ([**]%) multiplied by theprincipal amount of loans included in the applicable Securitization which are,in the case of the first 

 

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2006 Securitization originated and guaranteed, and inthe case of each other 2006 Securitization, guaranteed by TERI (“TERI Loans”).

 

                (ii)  The ownership percentages of residual equityinterests in the Purchaser Trust for each 2006 Securitization shall be adjustedas follows:  TERI hereby agrees totransfer to FMC a portion of its residual equity interest, the present value ofwhich (using a [**]% discount factor) equals the amount of the [**] Reduction.

 

(b)(i)  TERI shall be deemed to have made theelection set forth in Section 2 of the Fourth Supplement to receive theAdditional Administrative Fee for each 2006 Securitization.  Such election provides that pursuant toSection 1 of the Fourth Supplement, the amount of guaranty fees that are heldin the Pledged Account for any 2006 Securitization shall be reduced (suchreduction, the “[**] Reduction”) by [**] basis points ([**]%) multiplied by theprincipal amount of TERI Loans included in the applicable Securitization.

 

(ii)  Section 4 of the Fourth Amendment shall notapply to any 2006 Securitization. Instead, the ownership percentages of residual equity interests in thePurchaser Trust for each 2006 Securitization shall be adjusted as follows:  TERI hereby agrees to transfer to FMC aportion of its residual equity interest, the present value of which (using a[**]% discount factor) equals the amount of the [**] Reduction.

 

(c)  FMC shall structure each 2006 Securitizationsuch that the [**] Reduction and the [**] Reduction shall be released to TERIfrom the Pledged Account at the time the Pledged Account is transferred to theapplicable Purchaser Trust.  The [**] Reductionand the [**] Reduction shall be calculated based upon the principal amount ofthe TERI Loans as estimated on the closing date of the applicable 2006Securitization and shall be reconciled based on final portfolio information inconnection with the customary reconciliation procedures for such 2006Securitization.

 

2.                                       TERI agrees that notwithstanding anythingto the contrary contained in any Loan Origination Agreement, TERI shall notincrease any origination fees payable to TERI by the lenders thereunder(excluding so-called “make and hold” lenders) from and after [**] (it beingunderstood that an increase may go into effect on or after [**]).

 

3.                                       FMC agrees that it shall pay to TERI [**]dollars ($[**]) (the “$[**] Payment”), such payment to be made from the closingof the 2006 Securitizations on a proportional basis based upon the loan volumesecuritized in such transactions.  To theextent that the $[**] Payment does not equal the sum of the [**] Reduction andthe [**] Reduction, multiplied by the principal amount of non TERI originatedloans that are included in the first 2006 Securitization, then the parties willadjust the $[**] payment to accurately reflect such sum. Upon each suchpayment, the ownership percentages of residual equity interests in thePurchaser Trust for such 2006 Securitizations shall be adjusted to reflect suchpayment using the same methodology provided in Section 1(a)(ii) above.

 

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4.                                       Except as amended and supplementedhereby, the Master Loan Guaranty Agreement shall continue in full force andeffect.

 

5.                                       This Supplement shall be governed by andconstrued in accordance with the laws of The Commonwealth of Massachusetts(without reference to choice-of-law rules).

 

6.                                       This Supplement may be executed in anynumber of counterparts, all of which together shall constitute one agreement.

 

 

IN WITNESS WHEREOF, the parties hereto have causedthis Supplement to be executed under seal as of the date above first written.

 

 

THE EDUCATION RESOURCES

INSTITUTE, INC.

 

 
| By:  | /s/ Willis Hulings III |                |
|-----------|------------------------|---------------------|
|      | Name:             | Willis Hulings III  |
|      | Title:            | President & CEO |
|           |                        |                     |  |

 

 

THE FIRST MARBLEHEADCORPORATION

 

 
| By:  | /s/ Anne P. Bowen |                     |
|-----------|-------------------|--------------------------|
|      | Name:        | Anne P. Bowen            |
|      | Title:       | Executive Vice President |
|           |                   |                          |  |

 

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