Exhibit 99.1

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

EXECUTION
5/1/02

AMENDED AND RESTATED NOTE PURCHASE AGREEMENTEDUCATION
ONE LOAN PROGRAM

          This Amended and Restated Note Purchase Agreement, by and between BANK ONE, NATIONAL ASSOCIATION ("Bank One"), a national banking association organized under the laws of the United States and having a principal office located at 100 East Broad Street, Columbus, Ohio 43215, and THE FIRST MARBLEHEAD CORPORATION, a Delaware corporation having a principal place of business at 30 Little Harbor, Marblehead, Massachusetts ("FMC"), dated as of May 1, 2002;

W I T N E S S E T H:

          WHEREAS, Bank One is in the business of making education loans under education lending programs, including, without limitation, the EDUCATION ONE Loan Program (as hereinafter defined); and

          WHEREAS, FMC exists to provide funds for education loans for the benefit of students at Participating Institutions; and

          WHEREAS, pursuant to a Note Purchase Agreement between FMC and Bank One dated April 30, 2001, as amended by two Amendments to Note Purchase Agreement dated August 1, 2001, and an Amendment to Program Agreements dated October 1, 2001 ("Old Note Purchase Agreement"), Bank One has agreed to sell, from time to time, pools containing Bank One private education loans originated by Bank One under a program known as EDUCATION ONE ("EDUCATION ONE") to FMC or a Purchaser Trust (all as hereinafter defined); and

          WHEREAS, the EDUCATION ONE Loans are made by Bank One and purchased by FMC or a Purchaser Trust on the condition that they qualify for and in fact are covered by a guaranty issued by The Education Resources Institute, Inc., a Massachusetts nonprofit corporation having its principal offices at 330 Stuart Street, Boston, MA 02216 ("TERI"); and

          WHEREAS the parties wish to amend and restate the Old Note Purchase Agreement and to enter this Amended and Restated Note Purchase Agreement to take effect as of May 1, 2002 (the "Effective Date"); and

          WHEREAS the parties intend that this Amended and Restated Note Purchase Agreement supersedes and replaces the Old Note Purchase Agreement in its entirety and that the purchase of any and all EDUCATION ONE Conforming Loans on or after the Effective Date will be made under the terms and conditions of this Amended and Restated Note Purchase Agreement and not under the Old Note Purchase Agreement;

          NOW, THEREFORE, in consideration of these presents and the covenants contained herein, the parties hereto hereby agree as follows:

I.        Definitions .

          "Affiliate" shall mean, as to any person, any other person which, directly or indirectly, is in control of, is controlled by, or is under common control with, such person. A person shall be deemed to control another person if the controlling person possesses, directly or indirectly, the power to direct or to cause the direction of the management and policies of the other person, whether through the ownership of voting securities, by contract or otherwise.

          "Agent" means State Street Bank & Trust Company, or a successor agent under the Deposit and Security Agreement.

          "Ambac" means Ambac Assurance Corporation.

          "Bond Insurer" means Ambac, or any other provider of credit insurance with respect to the obligations of the Purchaser Trust.

          "Business Day" shall mean any day other than: (a) a Saturday or Sunday, or (b) a day on which banking institutions in the state in which Bank One is headquartered are required or authorized by law or executive order to be closed.

          "Closing Period" means, with respect to any EDUCATION ONE Loan, the [**]days immediately following a Purchase Period with respect to such loan or such longer period as may be permitted to schedule a Purchase Date under Section 2.03.

          "Collateral" has the meaning set forth in the Deposit and Security Agreement.

          "Deposit and Security Agreement" means the agreement of that name among Bank One, Agent, TERI and FMC dated as of April 30, 2001.

          "Education One" means Education One Group, a subsidiary of USA Education, Inc., f/k/a SLM Holding Corporation, organized under the laws of the State of Indiana.

          "EDUCATION ONE Loan Pool" or "Pool" shall mean and refer to a group of EDUCATION ONE Notes purchased and pledged or intended to be purchased and pledged as collateral in a particular Securitization Transaction.

          "EDUCATION ONE Loans" shall mean loans (a) that at the time they were made were in compliance in all material respects with the requirements of the Program Guidelines, (b) serviced by the Servicer in substantial compliance with the Program Guidelines at all times prior to the Purchase Date, and (c) covered by and subject to all the benefits of the Guaranty Agreement.

          "EDUCATION ONE Notes" or "Notes" shall mean notes evidencing EDUCATION ONE Loans.

          "EDUCATION ONE Program" shall mean the EDUCATION ONE Loan Program described in the Program Guidelines.

          "First Marblehead" or "FMC" shall mean The First Marblehead Corporation, a Delaware corporation.

          "Guaranty Agreement" means the Amended and Restated Guaranty Agreement between Bank One and TERI dated as of the Conversion Date (as that term is defined in the Guaranty Agreement).

          "Loan Data" means Loan Information deidentified as to both personal borrower information and Bank One identity that is shared for the purpose of analyzing loan programs, including without limitation underwriting criteria, default histories, and portfolio performance.

          "Loan Information" means non-public, personal borrower information pertaining to any EDUCATION ONE Loan included in a Securitization Transaction.

          "Market Disruption Event" means any of the following: (a) any suspension or limitation on trading in securities generally on the New York Stock Exchange or the National Association of Securities Dealers National Market system; (b) any banking moratorium declared by federal, Massachusetts, or New York authorities or authorities of the state in which Bank One is headquartered; (c) any outbreak or escalation of major hostilities or armed conflict, or any declaration of war by Congress; or (d) the closing of the market for commercial paper or asset-backed securities or significant disruption in the functioning of those markets, if, in the judgment of FMC, the effect of any such event in (a) – (d) above makes it impractical or inadvisable to proceed with the completion of a Securitization Transaction; or (e) the occurrence of a TERI Insolvency Event.

          "Minimum Purchase Price" has the meaning set forth in Section 2.05.

          "New Loans" means EDUCATION ONE Loans for which applications are received on or after the Conversion Date (as that term is defined in the Guaranty Agreement).

          "Offering Material" has the meaning set forth in Section 3.10.

          "Old Loans" means EDUCATION ONE Loans for which applications are received prior to the Conversion Date (as that term is defined in the Guaranty Agreement).

          "Origination Agreement" refers to (a) the Amended and Restated Loan Origination Agreement with respect to the origination of EDUCATION ONE Loans entered into between TERI and Bank One and dated as of the Conversion Date, as amended from time to time, and (b) any subsequent agreement relating to origination services provided to Bank One with respect to EDUCATION ONE Loan Notes purchased under this Agreement that is reasonably acceptable in form and substance to each of FMC and TERI.

          "Origination Records" means and refers to the original EDUCATION ONE Loan application and Note, a form of cosigner notice when required under 16 C.F.R. § 444, and any other standardized documentation specified from time to time in the Program Guidelines as required to be received by the Servicer from Bank One in order to service EDUCATION ONE Loans adequately and accurately.

          "Participating Institution" means an educational institution approved by TERI for receipt of EDUCATION ONE Loan funds; provided that Bank One shall have the opportunity to review lists of existing Participating Institutions and institutions proposed for inclusion as Participating Institutions and consult with TERI regarding any concerns Bank One has about including any institution as a Participating Institution. FMC will use its best efforts to cause TERI to exclude from EDUCATION ONE Loans any loan made to finance costs of education at an institution that Bank One designates as "unacceptable."

          "Pledged Account" has the meaning set forth in the Deposit and Security Agreement.

          "Program Guidelines" means the Program Guidelines attached to the Amended and Restated Guaranty Agreement, as amended from time to time by mutual agreement of Bank One and TERI.

          "Program Lender" means Bank One, National Association, a national banking association or an Affiliate that is a successor through merger or an Affiliate to whom the rights and obligations of Bank One are assigned under the terms of this Agreement.

          "Public Transaction" means a Securitization Transaction involving the offering and sale of securities pursuant to an effective registration under the Securities Act of 1933, as amended, or an exemption from such act (other than an exemption provided under section 3(a)(3) of such Act).

          "Purchase Date" shall mean the (a) the date of consummation of a Securitization Transaction with respect to a particular Pool of EDUCATION ONE Loans, which date: (i) shall be set by written notice from FMC to Bank One, given to Bank One not less than five (5) Business Days in advance of the specified date, and (ii) shall occur [**]for each loan in the Pool in question, or (b) the date on which FMC or a designee Purchaser Trust purchases EDUCATION ONE Loan pursuant to the Right of First Refusal.

          "Purchase Period" means, with respect to any particular EDUCATION ONE Loan, the period beginning on the first date such loan becomes a "Seasoned Loan" and ending [**] days thereafter.

          "Purchaser Trust" shall mean and refer to a trust or other SPE formed for the purpose of purchasing EDUCATION ONE Loans by FMC or by any Affiliate of FMC. Any action required or permitted to be taken by FMC hereunder may be taken by a Purchaser Trust with respect to a particular Pool.

          "Rating Agencies" shall mean and refer to Standard and Poor's Corporation and/or Moody's Investors Service, Inc., and/or Fitch IBCA, Duff & Phelps, together with the successors in interest of any of them engaged in the business of issuing a credit rating for obligations issued in a Securitization Transaction.

          "Right of First Refusal Period" means for an EDUCATION ONE Loan, the earlier of (i)[**] days after expiration of the relevant [**] or (ii) [**] days after notice that a bona fide written offer has been received by Bank One under Section 2.03 with respect to such EDUCATION ONE Loan, provided that no such notice may be given until after expiration of [**].

          "Seasoned Loan" means an EDUCATION ONE Loan as of fifteen (15) days after the disbursement on the EDUCATION ONE Loan but shall exclude any loan disbursed by paper check if the paper check has not yet been paid by the drawee. In the event a disbursement check is paid by the drawee more than fifteen days after it is written, the Loan shall become a Seasoned Loan on the date of such payment. For purposes of computation of the Minimum Purchase Price, the term also includes (a) defaulted loans not yet purchased by TERI, and (b) the rights and obligations of Bank One with respect to defaulted EDUCATION ONE Loans purchased by TERI that would have been Seasoned Loans but for such purchase.

          "Securitization Costs" means the actual costs and expenses incurred by FMC, the Purchaser Trust, and all others entitled to payment for expenses by the Purchaser Trust or FMC, in connection with a Securitization Transaction including, without limitation, the following:

(Structuring and Origination Fees; Copy/Binding Costs) (Underwriting Expenses) (Rating Fee) (Owner Trustee and Indenture Trustee Transaction and First Year Fees; Expenses) (Counsel for Indenture Trustee) (Counsel for FMC) (Servicer Auditor) (Bond Insurer) (Counsel for TERI) (Counsel for Bank One) (SEC Filing Fees, if any)

          "Securitization Transaction" shall mean and refer to the purchase of a Pool of EDUCATION ONE Loans by a Purchaser Trust funded through the issuance and sale of commercial paper, certificates, bonds or other evidences of indebtedness, the repayment of which is supported by payments on the EDUCATION ONE Loans included in such Pool. A Securitization Transaction may include, without limitation, a continuing series of transactions occurring on a periodic basis in which Bank One makes a true sale of then-outstanding Seasoned Loans to a Purchaser Trust, which Purchaser Trust in turn either utilizes the Pool directly as collateral for its own debt or resells the Pool (in whole or in part) in further sales to a securitization conduit providing financing to the Purchaser Trust.

          "Servicer" shall mean and refer to Pennsylvania Higher Education Assistance Agency, or such other servicer as may be approved by FMC, TERI and the holder of the EDUCATION ONE Loans in question and retained by the holder of EDUCATION ONE Loans in accordance with the terms hereof and of the Guaranty Agreement.

          "Servicing Agreement" refers to: (a) the Servicing Agreement of substantially even date herewith to be entered into between Servicer and Bank One with respect to servicing of EDUCATION ONE Loans, as amended from time to time, and (b) any subsequent servicing agreement between Bank One and the Servicer governing servicing of EDUCATION ONE Loans purchased under this Agreement, in either case such agreement and any amendment thereto to be in good faith satisfactory in form and substance to FMC and its counsel.

          "SPE" means a special purpose entity formed and operated for the sole purpose of acting as purchaser and owner of EDUCATION ONE Loans.

          "TERI Insolvency Event" means (1) the commencement by TERI of a voluntary case under the federal bankruptcy law, as now constituted or hereafter amended, or any other applicable federal or state bankruptcy, insolvency or other similar law, (2) the consent by TERI to the appointment of or taking possession by a receiver, liquidator, trustee, custodian (or other similar official) of or for TERI or for any substantial part of its property, (3) the making by TERI of any assignment for the benefit of creditors, (4) the insolvency or the failure of TERI generally to pay its debts as such debts become due, or (5) a default under one or more guaranty agreements to which TERI is a party because of a failure to pay claims, or the taking of action by TERI in furtherance of any of the foregoing.

          "Term" shall mean the period commencing on the Effective Date and ending upon termination hereof, all as set forth in Article X (and subject to Section 11.06).

          "Total Principal Amount" means the total principal amount of Seasoned Loans available to be sold and purchased, plus [**]; provided, however, that [**] Bank One consents to or waives the condition in Section 3.01(c)(5) and signs a Co-Lender Indemnification Agreement substantially in the form of Exhibit B if requested by a lender of Other Loans.

           "Trust Agreement" means, with respect to any particular Securitization Transaction, the agreement pursuant to which a Purchaser Trust is formed, and any amendments.

          "Trust Indenture" means, with respect to any particular Securitization Transaction, the agreement pursuant to which FMC or a Purchaser Trust issues evidences of indebtedness secured by the payments on the related EDUCATION ONE Loans.

II.       Agreement for Purchase and Sale of Notes .

          2.01.    Purchase and Sale .

          [**]    during the Term of this Agreement and subject to Section 2.03 and the conditions set forth in this Agreement, Bank One shall sell to FMC or a designee Purchaser Trust, and FMC or such Purchaser Trust shall purchase, every Seasoned Loan owned by Bank One on the Purchase Date.

          2.02.    Marketing .

          Bank One shall be responsible for the design and execution of a program for marketing EDUCATION ONE Loans to consumers and shall bear all costs thereof. At the beginning of an academic year, Bank One shall share with FMC its marketing plan for EDUCATION ONE, which plan shall describe any direct mail inserts, internet messaging and other marketing initiatives. For the first three (3) years of this Agreement, Bank One shall maintain at least substantially the same amount of investment and level of effort in marketing EDUCATION ONE Loans and the EDUCATION ONE Program that Bank One made with respect to its EDUCATION ONE products in academic year 2000-2001.

          2.03.    Pre-Closing Information; FMC Purchase .

          (a)    Loan Information . Bank One will cause Servicer to inform FMC periodically of information reasonably requested by FMC, subject to the confidentiality provisions of Section 11.09 , in anticipation of a Securitization Transaction, including, without limitation, the number of Seasoned Loans ready for purchase, principal and accrued interest with respect to each such EDUCATION ONE Loan, payment status (including defaulted loans presented for guaranty payment), and the identity of Participating Institutions affected by the Securitization, together with the information contained in the model reports set forth in Exhibits C through E, at the intervals set forth in said Exhibits. The reports described in Exhibits C through E shall be provided in electronic media in the Servicer's standard format. Bank One shall also cause Servicer to provide to FMC, monthly, its AMR report series.

          (b)    Purchase Scheduling . FMC will use its best efforts to specify Purchase Dates that fall within each May and each November, [**] subject to Section 3.02(b), purchase or cause a Purchaser Trust to purchase [**] all of the Seasoned Loans held by Bank One [**]. FMC shall have the sole and exclusive right to purchase all EDUCATION ONE Loans during the [**] with respect to each Loan, which right may be assigned to one or more Purchaser Trusts. FMC may reschedule the Purchase Date without penalty of any kind, [**]. The [**] with respect to any Loan may be extended for a failure to comply with one or more conditions as set forth in Section 3.01(b). Bank One agrees, in consideration of FMC's undertaking pursuant to this section, not to sell or offer to sell to any third person any interest in any EDUCATION ONE Loan originated by Bank One [**] with respect to such Loan; provided, however , that after expiration of [**] with respect to any EDUCATION ONE Loan, Bank One shall use reasonable efforts to arrange the sale of such EDUCATION ONE Loan and, upon receipt of any bona fide third-party written offer to purchase such EDUCATION ONE Loan received by Bank One [**] with respect to such Loan, Bank One shall provide a copy of the same to FMC, and, in the event that FMC (or a Purchaser Trust) shall fail to purchase such EDUCATION ONE Loan on the terms of such third-party offer or other mutually acceptable terms [**], Bank One shall within its sole discretion be entitled to (i) sell such EDUCATION ONE Loan to any third party or to retain such EDUCATION ONE Loan, in whole or in part, for its own account free and clear of any claim under this Agreement, and/or (ii) immediately terminate this Agreement. If FMC or a Purchaser Trust purchases EDUCATION ONE Loans [**] on the terms of a bona fide third-party written offer or other mutually acceptable terms, FMC shall have no further liability to Bank One with respect to its obligation to purchase such loans [**].

          (c)    Extension of Purchase Period and Closing Period Due to lack of Volume . In the event that the Total Principal Amount of loans eligible for a Securitization Transaction [**], FMC may, but need not, declare [**] — with respect to each EDUCATION ONE Loan that is then a Seasoned Loan extended by [**] days. FMC may continue to declare such extensions, in its discretion, until [**] this Agreement expires or is terminated (in which event FMC shall schedule a Purchase Date for all outstanding EDUCATION ONE Loans, to occur prior to the expiration of the Closing Period for the last loan made subject to this Agreement; provided, however , that if this Agreement is terminated under subsection 2.03(b)(ii) on account of FMC's failure to purchase Seasoned Loans, then Bank One shall not be required to sell loans hereunder and shall have recourse to its remedies under Section 2.03(d)).

          (d)    Damages from Failure to Purchase. If FMC or a Purchaser Trust fails to purchase within a Closing Period (as the same may be extended pursuant to Section 2.03(c)), and the corresponding Right of First Refusal Period, all Seasoned Loans held by Bank One at the beginning of the Closing Period, to the extent such failure is not excused under Section 3.02(b), FMC shall pay to Bank One the lesser of: (i) [**]% of the total principal amount of all Seasoned Loans as to which the Right of First Refusal Period has expired or (ii) the difference between the Minimum Purchase Price and the price Bank One obtains for such Seasoned Loans pursuant to any transaction entered into by Bank One during the Right of First Refusal Period. If a failure to purchase is continuing, additional damages may become payable at thirty-day intervals as the Right of First Refusal Period expires as to additional loans. Such payments shall constitute liquidated damages in full satisfaction of FMC's obligations with respect to the purchase of such loans. Once the Right of First Refusal Period for an EDUCATION ONE Loan has expired, Bank One shall be under no further obligation to offer such EDUCATION ONE Loan to FMC (or a Purchaser Trust) for purchase.

          (e)    FMC Reliance on Program Guidelines . Bank One further agrees, in consideration of FMC's undertaking pursuant to this section, that no change will be made in either the Program Guidelines or the interest rate and terms, as well as other consumer loan terms and conditions of EDUCATION ONE Loans without FMC's prior written consent, which consent shall not be unreasonably withheld.

          2.04.    Pool Supplement .

          Each purchase and sale of the EDUCATION ONE Loans included in a Pool on a Purchase Date shall be made pursuant to a Pool Supplement substantially in the form of Exhibit A which shall: (1) set forth the Minimum Purchase Price for the EDUCATION ONE Loans included in the Pool, (2) incorporate by reference the terms and conditions of this Agreement applicable to sales of EDUCATION ONE Loans, and (3) include a schedule of EDUCATION ONE Loans setting forth the details and characteristics of such Pool. Each Pool Supplement shall be executed by an authorized agent of each Purchaser Trust and Bank One and shall be delivered on the related Purchase Date. The Purchaser Trust shall provide a preliminary settlement sheet in the form of Exhibit 1 to the Pool Supplement not less than two (2) Business Days prior to the Purchase Date.

          2.05.    Minimum Purchase Price .

          On the Purchase Date, Bank One shall assign and convey all EDUCATION ONE Loans included in the Pool to FMC, or a Purchaser Trust, in consideration of receipt of the Minimum Purchase Price therefor.

           For Old Loans , the term "Minimum Purchase Price" shall mean the sum of:

(a)	The unpaid principal amount of the EDUCATION ONE Loans in question [**]; plus

 

(b)	all accrued and unpaid interest on such EDUCATION ONE Loans, [**]; plus

 

(c)	all fees paid by Bank One to TERI with respect to such EDUCATION ONE Loans [**]; plus

 

(d)	a marketing fee and loan premium, [**], as follows:

 

(A)

With respect to [**] as described in Schedule 3.3 to the Guaranty Agreement:

 

(i)

[**]% with respect to Undergraduate Cosigned Loans;

 

(ii)

[**]% with respect to Graduate Cosigned Loans;

 

(iii)

[**]% with respect to Continuing Education Loans (both Cosigned and Creditworthy);

 

(iv)

[**]% with respect to K-12 loans.

 

(B)

With respect to [**] as described in schedule 3.3 to the Guaranty Agreement:

 

(i)

[**]% with respect to Undergraduate Cosigned Loans;

 

(ii)

[**]% with respect to Graduate Cosigned Loans;

 

(iii)

[**]% with respect to Continuing Education Loans (both Cosigned and Creditworthy);

 

(iv)

[**]% with respect to K-12 loans;

 

(e)	in either case, plus; the amount of any Guaranty Fees [**] at the time of the [**] pursuant to [**] any such Guaranty Fees [**].

           For New Loans , the term "Minimum Purchase Price" shall mean the sum of:

(a)	The unpaid principal amount [**] of the Seasoned Loans in the Pool; plus

(b)	all accrued and unpaid interest on such EDUCATION ONE Loans, in accordance with[**]; plus

(c)	all fees paid by Bank One to TERI with respect to such EDUCATION ONE Loans [**], plus

(d)	a marketing fee and loan premium, [**] of EDUCATION ONE Loans, as follows (for tier references, see Schedule 3.3 of the Guaranty Agreement):

 

(i)

with respect to Undergraduate Creditworthy Loans, [**]% [**]%[**];

 

(ii)

with respect to Graduate Creditworthy Loans, [**]%[**]%[**];

 

(iii)

with respect to Continuing Education Loans (both Cosigned and Creditworthy), [**]%[**]%[**];

 

(iv)

with respect to K-12 loans, [**]%, plus;

(e)	the amount of [**] at the time of the [**] pursuant to column 6 of Schedule 3.3 of the Guaranty Agreement. [**] such [**] or any [**] any such [**].

          2.06.    Transition .

          The parties agree that this Amended and Restated Note Purchase Agreement supersedes and replaces the Old Note Purchase Agreement in its entirety and the purchase of any and all EDUCATION ONE Conforming Loans after the Effective Date will be made under the terms and conditions of this Amended and Restated Note Purchase Agreement and not under the Old Note Purchase Agreement; provided, however, that the Third Amendment to Program Agreements, dated November 1, 2001, remains in full force and effect.

III.       Procedures and Conditions for Transfer .

          3.01.    Conveyances of EDUCATION ONE Loans; Conditions to Purchase .

          (a)    On each Purchase Date, upon execution and delivery of the related Pool Supplement, Bank One shall sell, transfer, assign, set over and otherwise convey to FMC or a Purchaser Trust, without recourse, all right, title and interest of Bank One in and to:

(1)

The EDUCATION ONE Loans included in the related Securitization Transaction and all payments due or to become due thereon;

 

(2)

Any proceeds with respect to the EDUCATION ONE Loans originated by Bank One included in such Pool from recourse to TERI under the Origination Agreement regarding origination of such loans;

 

(3)

All claims of Bank One with respect to past servicing of such EDUCATION ONE Loans under the Servicing Agreement;

 

(4)

The proceeds of any and all of the foregoing received after the Purchase Date or received prior thereto and not credited against the Minimum Purchase Price as computed on the Purchase Date; and

 

(5)

All rights of Bank One under the Guaranty Agreement with respect to the EDUCATION ONE Loans in the Pool.

          (b)    The obligation of FMC and/or any Purchaser Trust to purchase the EDUCATION ONE Loans originated by Bank One on the related Purchase Date shall be subject to satisfaction of the following conditions (each and all of which may be waived by such Purchaser Trust, in whole or in part in its sole discretion). In the event of a failure of a condition that is not waived, the Purchase Date shall be rescheduled by FMC to (i) the earlier of: (A) the date when such failure of any of the following conditions is cured, or (B) ninety (90) days after the Purchase Date that would have occurred but for such failure (provided that FMC shall have up to 180 days to reschedule on account of a Market Disruption Event), or (ii) such other date as mutually agreed upon by the parties. FMC, without penalty or liability hereunder, may refuse to purchase any EDUCATION ONE Loans as to which any failure of conditions precedent are not cured within such ninety (90) days (or other agreed upon period) or as to which such failure cannot reasonably be expected to be cured.

(1)

Bank One shall have delivered to FMC or the Purchaser Trust a duly authorized and executed Pool Supplement;

 

(2)

Each of the representations and warranties made by Bank One with respect to the EDUCATION ONE Loans included in such Pool shall be true and correct in all material respects as of the related Purchase Date;

 

(3)

Bank One shall have entered into an Origination Agreement and a Servicing Agreement [**] satisfactory in form and substance to FMC and such agreements shall be in full force and effect as of the Purchase Date and shall not have been modified except with the express written consent of FMC;

 

(4)

Bank One shall have in all material respects, performed and observed the terms and conditions of this Agreement, the Origination Agreement and the Servicing Agreement;

 

(5)

The EDUCATION ONE Loans to be purchased shall have been originated and serviced in [**] conformity with the Program Guidelines and shall be covered by the Guaranty Agreement;

 

(6)

TERI shall have executed and delivered a confirmatory Guaranty Agreement, covering all loans being purchased, for the benefit of the Purchaser Trust and the indenture trustee in the Securitization Transaction;

 

(7)

The Agent pursuant to the Deposit and Security Agreement, shall have transferred to the indenture trustee in the Securitization Transaction the portion of the Pledged Account and the Collateral specified in Section 4 of the Deposit and Security Agreement;

 

(8)

If required by any other Lender whose loans are included in the Securitization Transaction, Bank One shall have executed and delivered a Co-Lender Indemnification Agreement substantially in the form of Exhibit B;

 

(9)

Bank One shall, at its own expense, on or prior to the Purchase Date, indicate in computer files relating to EDUCATION ONE Loans that the EDUCATION ONE Loans identified in the related Pool Supplement have been sold to the Purchaser Trust pursuant to this Agreement and such Pool Supplement;

 

(10)

Bank One shall have executed and delivered for filing a UCC-1 financing statement, in a form which, assuming a court or other forum recharacterized the sale of EDUCATION ONE Notes hereunder as the creation of a security interest, would be sufficient to perfect all security interests created by this Agreement with respect to the EDUCATION ONE Loans originated by Bank One included in such Pool in the appropriate office of the jurisdiction in which the chief executive office of Bank One is located (or, in the event of a change of law, Bank One shall have taken, but at no additional cost or expense to the Bank One, such action as may be reasonably required by the Purchaser Trust);

 

(11)

As of such Purchase Date: (i) Bank One was not insolvent and will not become insolvent as a result of the transfer of EDUCATION ONE Loans on such Purchase Date, (ii) Bank One did not intend to incur or believe that it would incur debts that would be beyond Bank One's ability to pay as such debts matured, (iii) such transfer was not made with actual intent to hinder, delay or defraud any Person, and (iv) Bank One was "Adequately Capitalized," as such term is defined by the Office of the Comptroller of the Currency on the Purchase Date; and

 

(12)

In the reasonable judgment of FMC, no Market Disruption Event has occurred; provided that if satisfaction of the condition set forth in this Section 3.01(b)(12) is the only outstanding condition to closing, FMC shall schedule a new Purchase Date as soon as is reasonably practicable after the Market Disruption Event has ceased.

          (c)    The obligation of Bank One to sell EDUCATION ONE Loans included in the Pool on a related Purchase Date is subject to satisfaction of the following conditions (each and all of which may be waived by Bank One in whole or in part, in its sole discretion):

(1)

FMC or Purchaser Trust shall have delivered to Bank One a duly authorized and executed Pool Supplement;

 

(2)

FMC or Purchaser Trust shall have paid the Minimum Purchase Price to Bank One by wire transfer of immediately available funds;

 

(3)

Subject to Section 3.01(c)(5) hereof, FMC or the Purchaser Trust shall have delivered to Bank One a Co-Lender Indemnification Agreement substantially in the form of Exhibit B duly executed by any other Lender whose loans are properly included in the Securitization Transaction; and

 

(4)

[**] FMC shall [**] Bank One (i) [**] in such form from FMC [**] Bank One [**] and (ii) such [**] Bank One shall [**] which are [**].

 

(5)

EDUCATION ONE Loans will not be included in a particular Securitization Transaction with loans originated by one or more other financial institutions unless (i) all the financial institutions are on the most recent list submitted to and approved by Bank One on an annual basis, or (ii) Bank One has provided its prior written consent with respect to the particular Securitization Transaction. The list for the year ending on the first anniversary date of this Agreement is comprised of Chase Manhattan Bank, Bank of America, and Citibank.

 

          (d)    Subject to the terms and conditions provided in this Agreement and to applicable legal requirements, each of the parties to this Agreement agrees to use reasonable efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other party to this Agreement in doing, as promptly as practicable, all things necessary, proper or advisable under applicable Law to ensure that the conditions set forth in Section 3.01 hereof are satisfied and to consummate and make effective the transactions contemplated by this Agreement.

          3.02.    Delivery of Documents .

          On the Purchase Date, Bank One shall deliver to FMC or the Purchaser Trust or to the Servicer, as agent for FMC or the Purchaser Trust and/or the trustee of the Trust Indenture, each Bank One Note originated by Bank One included in the Pool and the related Origination Records (or such alternative evidence of the Loans as is acceptable to the Guarantor and all parties to the Securitization Transaction). If a Co-Lender Indemnification Agreement is required as a condition of FMC's obligations under Section 3.01(b)(8) hereof, Bank One shall execute and deliver a Co-Lender Indemnification Agreement to each requesting lender selling loans in the Securitization Transaction.

          3.03.    Confirmation of Representations and Warranties .

          In each Pool Supplement, Bank One shall confirm its representations and warranties contained herein with respect to the EDUCATION ONE Loans in such Pool.

          3.04.    Rights Transferred .

          The transfer of funds pursuant to Section 2.04 hereof shall constitute, and the delivery to FMC, or its designated Purchaser Trust of each Pool Supplement shall evidence, a sale and assignment to FMC or the Purchaser Trust of the related EDUCATION ONE Loans and of all of Bank One's interest in such EDUCATION ONE Loans. As assignee of such EDUCATION ONE Loans, FMC or the Purchaser Trust shall be [**] of such EDUCATION ONE Loans, [**], such EDUCATION ONE Loans [**].

          3.05.    Subsequent Receipts .

          In the event that Bank One shall receive, subsequent to any such assignment, any amounts whatsoever in respect to the EDUCATION ONE Loans so assigned in the nature of those described in Section 3.04 above, such amounts shall be held by Bank One in trust for FMC or the Purchaser Trust to which it has sold the Notes, and the Bank One shall promptly deliver such amounts to the trustee under the Trust Indenture.

          3.06.    Assignment of Origination Rights .

          Bank One shall transfer its rights under the Origination Agreement with respect to the EDUCATION ONE Loans in each Pool to FMC or the respective Purchaser Trust by execution and delivery of a Pool Supplement.

          3.07.    No Assumption of Liability to Fund Bank One Loan Notes .

          By their purchase of EDUCATION ONE Loan Notes, FMC, and all Purchaser Trusts, shall assume no liability, responsibility or obligation with respect to any disbursements or reimbursements which are due and owing, or which are, or may be alleged to be due and owing, by Bank One to any EDUCATION ONE Loan borrower by reason of the EDUCATION ONE Loan included in the Pool. Notwithstanding the foregoing, FMC or the Purchaser Trust shall assume from Bank One any liability to repurchase from TERI a defaulted Loan upon cure of the default, with respect to any Loan that would be a Seasoned Loan but for such default and purchase by TERI. Such repurchase obligation shall be governed by the confirmatory Guaranty Agreement described in Section 3.01(b)(6), above.

          3.08.    Servicing and Origination Costs.

          Except as expressly set forth in this Agreement, Bank One shall be solely responsible for and shall pay all costs due to any third party from Bank One (including, without limitation, amounts due to TERI or Servicer) with respect to origination of EDUCATION ONE Loans and with respect to loan servicing of EDUCATION ONE Loans incurred prior to purchase of the respective EDUCATION ONE Loans hereunder. [**] in connection with [**] under this Agreement, [**].

          3.09.    Securitization Costs . FMC or the Purchaser Trust shall be solely responsible for and shall pay any Securitization Costs and any and all obligations it has incurred in connection with the purchase, financing of purchase and securitization of the EDUCATION ONE Loans.

          3.10.    Public Transactions. FMC shall notify Bank One if it decides that any Securitization Transaction will take the form of a Public Transaction. Such notification shall occur prior to any announcement of the transaction, release of offering material for the transaction or regulatory filing relating to the transaction which would indicate Bank One's involvement in such a Public Transaction. FMC shall furnish to Bank One for Bank One's review and approval any and all proposed offering material which includes Bank One's name or information on the EDUCATION ONE Loans (the "Offering Material"). FMC shall not use any such Offering Material without Bank One's written approval, which shall not be unreasonably withheld; it being understood that it shall not be deemed unreasonable for Bank One to condition such approval on the provision to Bank One of such certificates, opinions and agreements (including, but not limited to an indemnification agreement) as is ordinary and customary in public securitization transactions.

          3.11    Effect of Loan Cancellations . In the event that the Borrower cancels a Seasoned Loan in a manner and at a time permitted under the Program Guidelines, if that loan has already been purchased under this Agreement, Program Lender will return to the Purchaser Trust all amounts received by it with respect to such purchase. FMC shall prepare an accounting of all such cancellations within 30 days after the last date permitted for cancellation of loans purchased on a particular Purchase Date.

IV.      Obligations of FMC and Purchaser Trust .

          4.01.    Subject to the limitations and conditions in this Agreement, upon the designation of a Purchase Date by FMC, FMC shall [**].

V.      Representations and Warranties .

          5.01.    Representations and Warranties of FMC .

          FMC makes the following representations and warranties as of the date hereof, as of the date of each purchase of EDUCATION ONE Loans and as of any other date specified below. FMC shall cause each Purchaser Trust to make substantially the same representations and warranties in a Pool Supplement as of the date of each purchase of EDUCATION ONE Loans.

          (a)    FMC represents and warrants that it is and shall remain a Delaware corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and has the authority to conduct all activities contemplated by this Agreement.

          (b)    FMC has full power and authority to perform its obligations under this Agreement, and has duly authorized the execution, delivery and performance of, and has duly delivered this Agreement, and this Agreement constitutes the legal, valid and binding obligation of FMC enforceable against FMC in accordance with its terms, except that such enforceability may be limited by bankruptcy, insolvency, reorganization or other similar laws.

          (c)    Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions hereof, will conflict with, or result in a breach of, or constitute a default under, any of the terms, conditions or provisions of any legal restriction or any agreement or instrument to which FMC is now a party or by which it is bound.

          (d)    No action or proceeding is pending or, to FMC's knowledge, threatened against FMC or any Purchaser Trust before any court or administrative agency which might have a materially adverse affect on the ability of FMC to perform its obligations under this Agreement.

          5.02.    Representations and Warranties of Bank One .

          Bank One makes the following representations and warranties as of the date hereof, as of the date of each sale of EDUCATION ONE Loans to FMC or a Purchaser Trust (solely as to the Loans within the respective Pool with regard to Section 5.02(d) through (i)), and as of any other date specified below:

          (a)    Bank One represents and warrants that it is a national bank duly organized, validly existing and in good standing under the laws of the United States, and has the authority to conduct all activities contemplated by this Agreement.

          (b)    Bank One has full power and authority to perform its obligations under this Agreement, and has duly authorized the execution, delivery and performance of, and has duly delivered this Agreement, and this Agreement constitutes the legal, valid and binding obligation of Bank One enforceable against Bank One in accordance with its terms, except as such enforceability may be limited by (i) receivership, conservatorship and supervisory powers of bank regulatory agencies generally, (ii) applicable bankruptcy, receivership, conservatorship, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally from time to time in effect, or (iii) general principles of equity.

          (c)    Neither the execution and delivery of this Agreement, the consummation of the transactions contemplated hereby, nor the fulfillment of or compliance with the terms and conditions hereof, will conflict with, or result in a material breach of, or constitute a material default under, any of the terms, conditions or provisions of any legal restriction or any material agreement or instrument to which Bank One is now a party or by which it is bound.

          (d)    Each of the EDUCATION ONE Loans originated by Bank One sold to FMC or a Purchaser Trust pursuant to any Securitization Transaction: (i) is the valid, binding and enforceable obligation of the borrower executing the same, and of any cosigner thereto, enforceable against each borrower, any student maker named therein, and any cosignor thereunder in accordance with its terms except as enforceability may be affected by bankruptcy, insolvency, moratorium or other similar laws affecting the rights of creditors generally and by equitable principles, (ii) is covered by and entitled to the benefits of the Guaranty Agreement, and (iii) is a "Seasoned Loan" as defined in this Agreement.

          (e)    [**] each EDUCATION ONE Loan originated by Bank One sold hereunder and any accompanying notices and disclosures conforms [**] to all applicable state and federal laws, rules and regulations, (ii) each EDUCATION ONE Loan was documented on forms set forth in the Program Guidelines and contained consumer loan terms and involved guaranty fees payable to TERI in strict conformity with the Program Guidelines, and (iii) the origination of each EDUCATION ONE Loan was conducted in [**] the Program Guidelines and [**] with all applicable state and federal laws [**]; and (iv) Bank One did not discriminate based upon the age, sex, race, national origin, color, religion or handicapped status of any Borrower in making such Loan.

          (f)    At the time of origination, each EDUCATION ONE Loan originated by Bank One sold to FMC or Purchaser Trust is in compliance with any applicable usury laws.

          (g)    There is no defense to payment, counterclaim, or setoff at the time of origination with respect to EDUCATION ONE Loans included in the Pool. To the best of Bank One's information and belief, there is no action before any state or federal court, administrative or regulatory body pending against Bank One and involving EDUCATION ONE Loans in which an adverse result would have a material adverse effect upon the validity or enforceability of EDUCATION ONE Loans.

          (h)    Each and every EDUCATION ONE Loan included in the Pool is owned by Bank One, free and clear of any liens, claims or demands of any person, and Bank One has the absolute right to transfer the same to FMC or a Purchaser Trust.

          (i)    With respect to each EDUCATION ONE Note included in the Pool: (A) the terms thereof have not been impaired, waived, altered or modified in any respect, except pursuant to written forbearance agreements in accordance with the requirements of and in the terms set forth in the Program Guidelines, and (B) such EDUCATION ONE Note has been serviced at all times [**] with the Program Guidelines.

          5.03.    Exclusive Representations and Warranties .

          The representations and warranties set forth in Section 5.02 above are the sole and exclusive representations and warranties made by Bank One, its representatives, agents, officers, directors and other employees, with respect to this Agreement, any Pool Supplement, any EDUCATION ONE Loan, any obligor, and the sale of any EDUCATION ONE Loan to FMC or a Purchaser Trust hereunder.

          5.04.    Remedy for Breach of Representations and Warranties .

          In the event any representation or warranty made by Bank One pursuant to Section 5.02 above shall prove to be inaccurate or incomplete [**] as of the date when made, Bank One shall have the right (but not the obligation) to elect by written notice to FMC to be given by Bank One no later than sixty (60) days after receipt of written notice from FMC of such alleged breach to repurchase the affected EDUCATION ONE Loan or Loans no later than such 60th day for a cash purchase price equal to the outstanding principal balance thereof plus all accrued and unpaid interest, [**]. Upon receipt of said repurchase price, FMC shall, or, if applicable, shall cause the Purchaser Trust or the Servicer to, deliver the Bank One Note and the Origination Records relating thereto to Bank One, duly endorsed or assigned to Bank One or to such person as Bank One may direct, in any such case, without recourse to FMC or the Purchaser Trust. Whether or not Bank One exercises its right of repurchase, Bank One shall indemnify FMC or the Purchaser Trust pursuant to Article VIII. [**].

          In the event any representation or warranty made by FMC or a Purchaser Trust pursuant to Section 5.01 above shall prove to be inaccurate or incomplete in any material and adverse respect as of the date when made, Bank One shall have the right to terminate this Agreement if the deficiency is not cured within thirty (30) days after written notice of the deficiency is given to FMC or the Purchaser Trust. Whether or not Bank One exercises its right to terminate, FMC or the Purchaser Trust shall indemnify Bank One pursuant to Article VIII.

VI.      Survival of Representations, Warranties and Indemnities .

          The representations and warranties contained herein and the indemnifications contained in Article VIII hereof shall survive until each EDUCATION ONE Loan sold hereunder is paid in full.

          VII.      Miscellaneous .

          7.01.    No Assignment .

          No party may assign its rights or obligations under this Agreement without the prior written consent of the parties hereto, provided , however , that: (a) Bank One may assign its rights hereunder to an Affiliate that is a national banking association or state-chartered bank having the legal power and right under applicable law (including, without limitation, usury law in the State where it is located) to make educational loans conforming to the Program Guidelines to borrowers located in all states and territories of the United States and (b) FMC shall have the right to create a Purchaser Trust to exercise FMC's rights to purchase each Pool. No assignment shall relieve the assignor of liability hereunder. Any assignment in violation hereof shall be automatically null and void.

          7.02.    Amendment .

          This Agreement may not be amended nor terms or provisions hereof waived unless such amendment or waiver is in writing and signed by all parties hereto.

          7.03.    No Waiver .

          No delay or failure by any party to exercise any right, power or remedy hereunder shall constitute a waiver thereof by such party, and no single or partial exercise by any party of any right, power or remedy shall preclude other or further exercise thereof or any exercise of any other rights, powers or remedies.

          7.04.    Entire Agreement .

          This Agreement and the documents and agreements referred to herein embody the entire agreement and understanding among the parties hereto and supersede all prior agreements and understandings relating to the subject matter hereof and thereof.

          7.05.    Notices .

          All notices given by any party to the others under this Agreement shall be in writing delivered: (a) personally, (b) by facsimile transmission, (c) by overnight courier, prepaid, or (d) by depositing the same in the United States mail, certified, return receipt requested, with postage prepaid, addressed to the party at the address set forth below. Any party may change the address to which notices are to be sent by notice of such change to each other party given as provided herein. Such notices shall be effective on the date received. Notices shall be given as follows:

If to Bank One: Bank One, N.A. Myra Busch Goetz Vice President 1111 Polarais Parkway OH1-0246 Columbus, OH 43240 Fax No.: 614 217-5781 E-Mail: Myra_Busch_Goetz@bankone.com With a copy to: EDUCATION ONE Group 11100 USA Parkway Indianapolis, Indiana 46038 Attn: Joseph F. Sergi Fax No.: 317-578-6082 E-Mail: jsergi@bank1ed1.com If to FMC: Daniel Maxwell Meyers The First Marblehead Corporation 30 Little Harbor Marblehead, MA 01945 Facsimile: (781) 639-4583 E-Mail: dmeyers@gateloan.com With a copy to: Richard P. Hackett, Esq. Pierce Atwood One Monument Square Portland, ME 04101 Facsimile: (207) 791-1350 E-Mail: rhackett@pierceatwood.com

 

          7.06.    Governing Law .

This Agreement shall be governed by and construed in accordance with the laws of the State of New York (without reference to choice-of-law rules).

          7.07.    Counterparts .

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

          7.08.    No Third Parties Benefited .

          This Agreement is made and entered into for the protection and legal benefit of the parties, and their permitted successors and assigns (including, without limitation, any Purchaser Trust), and each and every Indemnified Person (all of which shall be entitled to enforce the Indemnity contained in Sections 8.01 and 8.02 hereof), and no other person shall be a direct or indirect legal beneficiary of, or have any direct or indirect cause of action or claim in connection with, this Agreement.

          7.09.    Opinions .

          Concurrent with the execution hereof, each party shall deliver to the other the opinion of its corporate counsel (which may be internal counsel) to the effect that this Agreement has been duly authorized by all necessary corporate or other organizational action, this Agreement is within the corporate or other organizational power of such party and that this Agreement has been duly executed and delivered by an authorized officer of the party.

VIII.      Indemnification .

          8.01.    By Bank One .

          Subject to the procedures regarding breach of representations and warranties set forth in Section 5.04 above, Bank One shall indemnify and hold harmless FMC, each Purchaser Trust, and any other purchaser under this Agreement, and any officer, director, employee or agent of any of the foregoing (herein, collectively referred to as the "Indemnified Persons") against any and all liabilities, losses, costs, damages and expenses, including, without limitation, reasonable attorneys' fees and legal expenses and sums paid, liabilities incurred or expenses paid or incurred in connection with settling claims, suits or judgments which such Indemnified Person may sustain or incur by reason of any material breach of any representation, warranty or covenant of Bank One contained herein. This section shall survive any termination of this Agreement.

          8.02.    By FMC .

          Subject to the procedure set forth in Section 5.04, FMC and the respective Purchaser Trusts shall indemnify and hold harmless Bank One and any officer, director, employee or agent of Bank One (herein, collectively referred to as "Indemnified Persons") against any and all liabilities, losses, costs, damages, and expenses, including, without limitation, reasonable attorneys' fees and legal expenses and sums paid, liabilities incurred or expenses paid or incurred in connection with settling claims or judgments or obtaining or attempting to obtain release from liability, which such Indemnified Person may sustain or incur by reason of (i) any material breach of any representation, warranty or covenant of FMC contained herein or the respective Purchaser Trust in the Pool Supplement or (ii) by reason of any untrue statement or alleged untrue statement of a material fact made by FMC or a Purchaser Trust contained in any offering material used in a Securitization Transaction or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. This section shall survive any termination of this Agreement.

IX.     Dispute Resolution

          9.01.    Informal Dispute Resolution .

          Any controversy or claim between the parties arising from or in connection with this Agreement or the relationship of the parties under this Agreement whether based on contract, tort, common law, equity, statute, regulation, order or otherwise, and whether arising before or after the termination of this Agreement ("Dispute") shall be resolved as follows:

          (a)    Upon written request of either party, the parties will each appoint a designated representative whose task it will be to meet for the purpose of endeavoring to resolve such Dispute.

          (b)    The designated representatives shall meet as often as the parties reasonably deem necessary to discuss the problem in an effort to resolve the Dispute without the necessity of any formal proceeding.

          (c)    Arbitration proceedings for the resolution of a Dispute under Section 9.02 may not be commenced until the earlier of:

(i) the designated representatives conclude in good faith that amicable resolution through continued negotiation of the matter does not appear likely; or

(ii) the expiration of the thirty (30) day period immediately following the initial request to negotiate the Dispute.

          9.02.    Arbitration .

          The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Any controversy or claim arising out of or relating to this Agreement, or the breach of the same, shall be settled through consultation and negotiation under Section 9.01. However, if those attempts fail, the parties agree that any misunderstandings or disputes arising from this Agreement shall be decided by binding arbitration which shall be conducted, upon request by either party, in New York, New York or other mutually agreed upon location, before one (1) arbitrator designated by the American Arbitration Association (the "AAA"), in accordance with the terms of the Commercial Arbitration Rules of the AAA, and, to the maximum extent applicable, the United States Arbitration Act (Title 9 of the United States Code. Notwithstanding anything herein to the contrary, either party may proceed to a court of competent jurisdiction to obtain equitable relief at any time.

X.      Term and Termination .

          10.01.    Term .

          This Agreement shall remain in full force and effect until expiration or termination of the Guaranty Agreement and thereafter until the expiration of the Right of First Refusal Period (under Section 2.03 hereof) of all EDUCATION ONE Loans guaranteed pursuant to the Guaranty Agreement. After termination of this Agreement, certain obligations hereunder shall survive as provided in Article VI hereof.

          Provided that the Guaranty Agreement remains in effect, the Agreement shall remain in full force and effect for an initial term of two years from May 1, 2002, and thereafter shall renew for additional one-year terms unless either party gives written notice of termination at least sixty (60) days prior to the then-effective expiration date.

          All Education Loans originated prior to such termination shall be purchased by FMC or a designee Purchaser Trust consistent with the terms of this Agreement.

XI.     MISCELLANEOUS

11.01

Severability . If any provision of this Agreement is declared or found to be illegal, unenforceable or void, then all parties shall be relieved of all obligations arising under such provision, but only to the extent that such provision is illegal, unenforceable or void, it being the intent and agreement of the parties that this Agreement shall be deemed amended by modifying such provision to the extent necessary to make it legal and enforceable while preserving its intent or, if that is not possible, by substituting therefor another provision that is legal and enforceable and achieves the same objective.

11.02

Headings . The headings used in this Agreement and/or any schedule or Exhibit hereto are for reference and convenience purposes only and shall not in any way limit or affect the meaning or interpretation of any of the terms hereof.

11.03

Use of Bank One's Name, Logo and Marks . FMC shall not and shall cause any Purchaser Trust to not use any trade name, trademark, service mark, or any other information which identifies Bank One or EDUCATION ONE in any disclosures or materials provided in connection with any Securitization Transaction or in any sales, marketing, or publicity activities, including, but not limited to, press releases, interviews with representatives of any written publication, television station or network, or radio station or network, without the prior written consent of Bank One.

11.04

Notice of Claims . As a continuing obligation of FMC throughout the term of this Agreement, FMC shall notify Bank One of any claims, either filed or threatened to be filed, which materially affect, or could materially affect its performance under this Agreement. Additionally, in the event FMC is the subject of material litigation or experiences a material adverse change in its financial condition or business, FMC shall provide Bank One with adequate assurance of FMC's ability to perform under this Agreement.

11.05

Limited Exclusive Agreement . This Agreement establishes an exclusive arrangement between FMC and Bank One for the purchase and sale of EDUCATION ONE Loans during the term of this Agreement and Bank One will use and promote the "EDUCATION ONE" brand name and market the EDUCATION ONE Program exclusively in connection with the transactions described in this Agreement. Subject to the foregoing, FMC recognizes that Bank One now and in the future will offer and originate other private education loans. Likewise, Bank One recognizes that FMC will be free now and in the future to promote other education loans and purchase loans from lenders under other programs. The parties expressly agree that this Agreement in no way establishes an exclusive arrangement between FMC and Bank One except as provided in this Section. FMC acknowledges and agrees that it acquires no interest in the name EDUCATION ONE by virtue of this Agreement and that FMC will not use the name EDUCATION ONE after termination of this Agreement.

11.05

Survival . The provisions relating to the following rights and obligations shall survive the termination, cancellation, expiration and/or rescission of this Agreement: Ownership, Privacy of Consumer Financial Information, Warranty, Limitation of Liability, Indemnification, and Confidentiality/Non-Disclosure. In addition, any provisions relating to the enforcement of any of the surviving provisions and any remedies available under this Agreement shall also survive.

11.07

Relationship of Parties . Except as otherwise specifically set forth in this Agreement, this Agreement shall not be construed as authority for either party to act for the other in any agency, partnership, joint venture or any other capacity or to make commitments of any kind for the account of or on behalf of the other.

11.08

Schedules and Exhibits . In the event of a conflict between the terms of this Agreement, as may be amended from time to time, and any schedule or Exhibit, the terms of this Agreement shall govern.

11.09

Confidentiality . Both FMC and Bank One have made and will continue throughout the term of this Agreement to make available to the other party confidential and proprietary materials and information ("Proprietary Information"). Prospectively, each party shall advise the other of material and information that is confidential and/or proprietary. All material and information provided by Bank One or FMC (including any Purchaser Trust) to the other or any of its Affiliates (including any Purchaser Trust) relating to the business, policies, procedures, customs, forms, customers and strategies of the disclosing party or any of its Affiliates, including information previously divulged or delivered to FMC or any Purchaser Trust by Bank One or to Bank One by FMC regarding the aforementioned subject matter is hereby designated as confidential and proprietary and shall be considered to be Proprietary Information. It is understood that the obligations set forth in this Section do not apply to materials or information that: (i) are already, or otherwise become, generally known by third parties as a result of no act or omission of the receiving party; (ii) subsequent to disclosure hereunder are lawfully received from a third party having the right to disseminate the information without restriction on disclosure; (iii) are generally furnished to others by the disclosing party without restriction on disclosure; (iv) were already known by the receiving party prior to receiving them from the disclosing party and were not received from a third party in breach of that third party's obligations of confidentiality; or (v) are independently developed by the receiving party without the use of Proprietary Information of the disclosing party. Each party shall maintain the confidentiality of the other party's Proprietary Information and will not use or disclose such Proprietary Information without the prior written consent of the other party. Notwithstanding the foregoing, Bank One may disclose FMC's Proprietary Information to its Affiliates, agents, and other third parties to effectuate this Agreement, provided that such parties are under a similar obligation to maintain the confidentiality of FMC's Proprietary Information. Notwithstanding the foregoing, FMC may disclose such Proprietary Information to a Purchaser Trust, to FMC's Affiliates, their agents, and other third parties to effectuate this Agreement, provided that such parties are under a corresponding written obligation to maintain the confidentiality of Bank One's Proprietary Information. Further, the parties may disclose the other's Proprietary Information in a judicial or quasi-judicial proceeding when required to do so by law when responding to a subpoena, deposition notice or similar judicial or governmental demand; in such situations, however, the party being requested to disclose the other's Proprietary Information shall endeavor to provide notice to the other party whereby the other party may intervene in the proceeding, if it wishes, and endeavor to prevent such disclosure. Additionally, the parties may disclose the other's Proprietary Information to their various regulatory agencies. Notwithstanding any contrary provision of this Agreement, as long as each party protects the Proprietary Information of the other, neither the exposure to the other party's Proprietary Information, nor its ownership of work products, shall prevent either party from using ideas, concepts, expressions, know-how, skills and experience possessed by either party prior to its association with the other party or developed by either party during its association with the other party, so long as the Proprietary Information of the other party is not used. Notwithstanding any contrary provision of this Agreement, the parties acknowledge and agree that nothing in this Agreement restricts: (i) sharing Loan Information with FMC or any Purchaser Trust or any of their Affiliates to track loans in preparation for a Securitization Transaction as described in Section 2.03 above, (ii) providing Loan Information to FMC or any Purchaser Trust or any of their Affiliates as a purchaser of loans in a Securitization Transaction, (iii) sharing Loan Information among TERI, FMC, and their Affiliates for purposes of servicing loans under the Origination Agreement or Sub-Servicing Agreement between TERI and Affiliates of FMC, or (iv) using, manipulating, or sharing Loan Data.

          IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written.

BANK ONE, NATIONAL ASSOCIATION (Columbus, Ohio) (Bank One): By: /s/ Myra Busch Goetz Print Name: Myra Busch Goetz Title: Vice President, Education Lending THE FIRST MARBLEHEAD CORPORATION (FMC) By: /s/ Ralph James Print Name: Ralph James Title: President

Note Purchase Agreement
Index to Exhibits

Exhibit A Exhibit B Exhibit C Exhibit D Exhibit E

Pool Supplement Co-Lender Indemnification Agreement Monthly File Report Layout – EOM Servicing Monthly File Report Layout – Transactional Detail Weekly Origination Transmission File Data Elements

EXHIBIT A
Pool Supplement

This Pool Supplement ("Supplement") is entered into pursuant to and forms a part of that certain Amended and Restated Note Purchase Agreement (the "Agreement") dated as of __________, 2002 by and between The First Marblehead Corporation ("FMC") and Bank One, National Association (Columbus, Ohio) ("Bank One"). This Supplement is dated ____________, ____. Capitalized terms used in this Supplement without definitions have the meaning set forth in the Agreement.

           Article 1: Purchase and Sale.

          In consideration of the Minimum Purchase Price set forth in Schedule 1 attached hereto, Program Lender hereby transfers, sells, sets over and assigns to [name of purchasing entity] ("Purchaser Trust"), upon the terms and conditions set forth in the Agreement (which are incorporated herein by reference with the same force and effect as if set forth in full herein), each EDUCATION ONE Loan described in the attached Schedule 2 ("the Transferred EDUCATION ONE Loans") along with all of Program Lender's rights under the Guaranty Agreement relating to the Transferred EDUCATION ONE Loans. Program Lender hereby transfers and delivers to the Purchaser Trust each EDUCATION ONE Note evidencing such EDUCATION ONE Loan and all Origination Records relating thereto, in accordance with the terms of the Agreement. Purchaser Trust hereby purchases said EDUCATION ONE Notes on said terms and conditions.

           Article 2: Price.

          The amounts paid pursuant to this Supplement are:

For Old Loans , the term "Minimum Purchase Price" shall mean the sum of:

(b)   The unpaid principal amount of the EDUCATION ONE Loans in question [**]; plus

(b)   all accrued and unpaid interest on such EDUCATION ONE Loans, [**]; plus

(c)   all fees paid by Bank One to TERI with respect to such EDUCATION ONE Loans [**]; plus

(d)   a marketing fee and loan premium, [**], as follows:

(A)	With respect to [**] as described in Schedule 3.3 to the Guaranty Agreement:

 

(i)

[**]% with respect to Undergraduate Cosigned Loans;

 

(ii)

[**]% with respect to Graduate Cosigned Loans;

 

(iii)

[**]% with respect to Continuing Education Loans (both Cosigned and Creditworthy);

 

(iv)

[**]% with respect to K-12 loans.

 

(B)	With respect to Loans that do not qualify as Premium Loans as described in schedule 3.3 to the Guaranty Agreement:

 

(i)

[**]% with respect to Undergraduate Cosigned Loans;

 

(ii)

[**]% with respect to Graduate Cosigned Loans;

 

(iii)

[**]% with respect to Continuing Education Loans (both Cosigned and Creditworthy);

 

(iv)

[**]% with respect to K-12 loans;

 

          in either case, plus;

          (e)    the amount of any Guaranty Fees [**].

           For New Loans , the term "Minimum Purchase Price" shall mean the sum of:

(a)	The unpaid principal amount [**]; plus

(b)	all accrued and unpaid interest on such EDUCATION ONE Loans, [**]; plus

(c)	all fees paid by Bank One to TERI with respect to such EDUCATION ONE Loans [**], plus

(d)	a marketing fee and loan premium, [**], as follows (for tier references, see Schedule 3.3 of the Guaranty Agreement):

 

(i)

with respect to Undergraduate Creditworthy Loans, [**]% [**] and [**]% for [**];

 

(ii)

with respect to Graduate Creditworthy Loans, [**]% [**] and [**]% for [**];

 

(iii)

with respect to Continuing Education Loans (both Cosigned and Creditworthy), [**]% [**] and [**]% [**];

 

(iv)

with respect to K-12 loans, [**]%, plus;

 

(e)	the amount of any Guaranty Fees [**].

           Article 3: Representations and Warranties.

          3.01.    By Program Lender .

          Bank One repeats the representations and warranties contained in Section 5.02 of the Agreement and confirms the same are true and correct as of the date hereof with respect to the Agreement and to this Supplement.

          3.02.    By Purchaser Trust .

          The Purchaser Trust hereby represents and warrants to the Bank One that at the date of execution and delivery of this Supplement by the Purchaser Trust:

          (a)    The Purchaser Trust is duly organized and validly existing as a business trust under the laws of the State of Delaware with the due power and authority to own its properties and to conduct its business as such properties are currently owned and such business is presently conducted, and had at all relevant times, and has, the power, authority and legal right to acquire and own the Transferred EDUCATION ONE Loans.

          (b)    The Purchaser Trust is duly qualified to do business and has obtained all necessary licenses and approvals, in all jurisdictions in which the ownership or lease of property or the conduct of its business shall require such qualifications.

          (c)    The Purchaser Trust has the power and authority to execute and deliver this Pool Supplement and to carry out its respective terms; the Purchaser Trust has the power and authority to purchase the Transferred EDUCATION ONE Loans and rights relating thereto as provided herein from the Bank One and the Purchaser Trust has duly authorized such purchase from the Bank One by all necessary action; and the execution, delivery and performance of this Pool Supplement has been duly authorized by the Purchaser Trust by all necessary action on the part of the Purchaser Trust.

          (d)    This Pool Supplement, together with the Agreement of which this Supplement forms a part, constitutes a legal, valid and binding obligation of the Purchaser Trust, enforceable in accordance with its terms.

          (e)    The consummation of the transactions contemplated by the Agreement and this Supplement and the fulfillment of the terms he