Exhibit 10.1


 


Confidential Materials omitted
and filed separately with the 

Securities and Exchange Commission. 
Asterisks denote omissions.


 


 


FIFTH SUPPLEMENT TO


MASTER LOAN GUARANTY AGREEMENT


 


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


 


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


 


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


 


 WHEREAS, the
parties desire to make further amendments to the Master Loan Guaranty Agreement
as provided herein.


 


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


 


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


 


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


 





















 


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


 


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


 


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


 


(ii)  Section 4 of the Fourth Amendment shall not
apply to any 2006 Securitization. 
Instead, the ownership percentages of residual equity interests in the
Purchaser Trust for each 2006 Securitization shall be adjusted as follows:  TERI hereby agrees to transfer to FMC a
portion 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 Securitization
such that the [**] Reduction and the [**] Reduction shall be released to TERI
from the Pledged Account at the time the Pledged Account is transferred to the
applicable Purchaser Trust.  The [**] Reduction
and the [**] Reduction shall be calculated based upon the principal amount of
the TERI Loans as estimated on the closing date of the applicable 2006
Securitization and shall be reconciled based on final portfolio information in
connection with the customary reconciliation procedures for such 2006
Securitization.


 


2.                                       TERI agrees that notwithstanding anything
to the contrary contained in any Loan Origination Agreement, TERI shall not
increase any origination fees payable to TERI by the lenders thereunder
(excluding so-called “make and hold” lenders) from and after [**] (it being
understood 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 closing
of the 2006 Securitizations on a proportional basis based upon the loan volume
securitized in such transactions.  To the
extent that the $[**] Payment does not equal the sum of the [**] Reduction and
the [**] Reduction, multiplied by the principal amount of non TERI originated
loans that are included in the first 2006 Securitization, then the parties will
adjust the $[**] payment to accurately reflect such sum. Upon each such
payment, the ownership percentages of residual equity interests in the
Purchaser Trust for such 2006 Securitizations shall be adjusted to reflect such
payment using the same methodology provided in Section 1(a)(ii) above.


 


2





















 


4.                                       Except as amended and supplemented
hereby, the Master Loan Guaranty Agreement shall continue in full force and
effect.


 


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


 


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


 


 


IN WITNESS WHEREOF, the parties hereto have caused
this 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 MARBLEHEAD
CORPORATION


 


 


	
  By: 

  	
  /s/ Anne P. Bowen

  	
   

  
	
   

  	
  Name: 

  	
  Anne P. Bowen

  
	
   

  	
  Title: 

  	
  Executive Vice President

  
				



 


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