Common use of EXCLUSIVITY; NONCOMPETITION Clause in Contracts

EXCLUSIVITY; NONCOMPETITION. (a) Except as otherwise provided below, FMC will not, during the term of this Agreement, enter into any agreement with any other financial institution or other regulated or nonregulated lender (a “Competing Lender”) which calls for FMC to design, market and arrange the purchase of alternative education loans or otherwise in contemplation of the participation of such Competing Lender in making Bank of America Private Conforming Loans without first offering to Program Lender the first opportunity to participate as the program lender for any such product. If within thirty (30) days after the offer is made, Program Lender declines participation or if FMC and Program Lender are unable to reach agreement as to the terms of Program Lender’s participation as a lender for the product, then FMC shall be free of any restriction under this Agreement with respect to such product. Notwithstanding the above, (a) FMC will be permitted to arrange a securitization transaction for any XXXX-guaranteed program, regardless of the identity of the lender; (b) FMC will be permitted to provide customer product pricing and repayment terms, together with other program terms necessary for future securitizations, to current and prospective XXXX Lenders under any XXXX Private Label Program; (c) FMER may market XXXX-guaranteed loans to lenders and educational institutions; and (d) FMER may contract to provide full outsourcing support for all current XXXX functions, including, without limitation, loan underwriting and origination, guaranty claim processing and defaulted loan collection. During the term of this Agreement, Program Lender will offer FMC the first opportunity to participate as the secondary market for any Competing Product. If within thirty (30) days after the offer is made, FMC declines participation or if FMC and Program Lender are unable to reach agreement as the terms of FMC’s participation as a secondary market for the Competing Product, then Program Lender shall be free of any restriction under this Agreement with respect to such Competing Product. Nothing in this Paragraph 6(a) governs any activity with respect to the GATE Student Loan Program or alters any exclusivity arrangement in the Student Umbrella Agreement. (b) Prior to the sale of a Note relating to a Common Customer under the Note Purchase Agreement, FMC shall not, with respect to the Common Customers whose Notes are sold in such sale, (i) solicit such Common Customers, or (ii) market any products to Common Customers. After any sale of Notes under the Note Purchase Agreement, Program Lender shall not, with respect to the Common Customers whose Notes are sold in such sale, (i) solicit Common Customers for Competing Products, or (ii) market Competing Products to Common Customers, pursuant to a promotional scheme that is targeted specifically to Bank of America SC Conforming Loan borrowers, without the prior written consent of FMC, given in FMC’s sole and absolute discretion. Nothing in this Paragraph 6(c) shall require Program Lender to delete the names of Common Customers from general lists of Program Lender’s customers, lists of customers of Program Lender’s Affiliates, or purchased lists of prospects used for solicitation.

EXCLUSIVITY; NONCOMPETITION. (a) Except as otherwise provided below, FMC will not, during the term of this Agreement, enter into any agreement with any other financial institution or other regulated or nonregulated lender (a “"Competing Lender”") which calls for FMC to design, market and arrange the purchase of alternative education loans or otherwise in contemplation of the participation of such Competing Lender in making Bank of America Private GATE Conforming Loans without first offering to Program Lender the first opportunity to participate as the program lender for any such product. If within thirty (30) days after the offer is made, Program Lender declines participation or if FMC and Program Lender are unable to reach agreement as to the terms of Program Lender’s 's participation as a lender for the product, then FMC shall be free of any restriction under this Agreement with respect to such product. Notwithstanding the above, (a) FMC will be permitted to arrange a securitization transaction for any XXXX-guaranteed program, regardless of the identity of the lender; (b) FMC will be permitted to provide customer product pricing and repayment terms, together with other program terms necessary for future securitizations, to current and prospective XXXX Lenders under any XXXX Private Label Program; (c) FMER and XXXX Marketing Services may market XXXX-guaranteed loans XXXX Loans to lenders and educational institutions; and (d) FMER may contract to provide full outsourcing support for all current XXXX functions, including, without limitation, loan underwriting and origination, guaranty claim processing and defaulted loan collection. During the term of this Agreement, Program Lender will offer FMC the first opportunity to participate as the secondary market for any Competing Product. If within thirty (30) days after the offer is made, FMC declines participation or if FMC and Program Lender are unable to reach agreement as the terms of FMC’s 's participation as a secondary market for the Competing Product, then Program Lender shall be free of any restriction under this Agreement with respect to such Competing Product. Nothing in this Paragraph Section 6(a) governs any activity with respect to the GATE Student Loan Program or alters any exclusivity arrangement in the Student Umbrella Agreement. (b) Prior to the sale of a Note note relating to a Common Customer under the Note Purchase Agreement, FMC shall not, with respect to the Common Customers whose Notes are sold in such sale, (i) solicit such Common Customers, or (ii) market any products to Common Customers. After any sale of Notes under the Note Purchase Agreement, Program Lender shall not, with respect to the Common Customers whose Notes are sold in such sale, (i) solicit Common Customers for Competing Products, or (ii) market Competing Products to Common Customers, pursuant to a promotional scheme that is targeted specifically to Bank of America SC GATE Conforming Loan borrowers, without the prior written consent of FMC, given in FMC’s 's sole and absolute discretion. Nothing in this Paragraph Section 6(c) shall require Program Lender to delete the names of Common Customers from general lists of Program Lender’s 's customers, lists of customers of Program Lender’s 's Affiliates, or purchased lists of prospects used for solicitation.

EXCLUSIVITY; NONCOMPETITION. (a) Except The parties agree that subsection 4(a) of the GATE Universal Umbrella Agreement is hereby deleted in its entirety and that the remaining subsections of Section 4 of the GATE Universal Umbrella Agreement shall only apply to Program Lender Right of First Refusal Schools (as otherwise provided defined in subsection (b) below, FMC ). (i) Section 9 of the GATE Universal Umbrella Agreement is hereby amended by deleting the first sentence thereof and inserting in lieu thereof the following: “Neither NCT nor Marblehead will not, during the term of this Agreement, enter into any agreement with any other financial institution or other regulated or nonregulated lender (a “Competing Lender”) to conduct a program for the origination and funding of GATE Universal Conforming Loans that would be a Lender Competing Program (as defined below) if conducted by Program Lender, with respect to any educational institution listed on Schedule 1 to the Amendment to Umbrella Agreements (the “November 2005 Umbrella Amendment”) dated as of November 29, 2005, by and among Program Lender, Marblehead and NCT (each such institution a “Program Lender Right of First Refusal School”), unless Program Lender shall have rejected such Program Lender Right of First Refusal School pursuant to Section 4 hereof. NCT and Marblehead shall each be entitled to enter into agreements with Competing Lenders for Lender Competing Programs with respect to any educational institution which calls for FMC to design, market and arrange the purchase of alternative education loans or otherwise is a Transition School (as defined in contemplation Section 2(c) of the participation November 0000 Xxxxxxxx Amendment) or with respect to a Program Lender Right of First Refusal School upon rejection of same by Program Lender as provided above. NCT and Marblehead shall not be entitled to enter into agreements with Competing Lenders for Lender Competing Programs with respect to any Participating Institution (other than as provided above) that has entered into a GATE Universal Program agreement or form with Program Lender.” (ii) Section 9 of the GATE Universal Umbrella Agreement is hereby further amended by adding the following at the end of such Competing Lender section: “Notwithstanding the foregoing, in making Bank the event that the Termination Date occurs as a result of America Private Conforming Loans without first offering a Without Cause Termination by Marblehead, the prohibition set forth above with respect to Program Lender the first opportunity to participate as the program lender for any such product. If within thirty (30) days after the offer is made, Program Lender declines participation or if FMC and Program Lender are unable to reach agreement as to the terms of Program Lender’s participation as ability to originate a lender for Lender Competing Program during the product, then FMC [**] following the Termination Date shall be free of not apply to any restriction under this Agreement with respect to such product. Notwithstanding educational institution that was a Participating Institution on the above, (a) FMC will be permitted to arrange a securitization transaction for any XXXX-guaranteed program, regardless date on which Marblehead provided notice of the identity of the lender; (b) FMC will be permitted to provide customer product pricing Without Cause Termination, and repayment terms, together with other program terms necessary for future securitizations, to current and prospective XXXX Lenders under any XXXX Private Label Program; (c) FMER may market XXXX-guaranteed loans to lenders and educational institutions; and (d) FMER may contract to provide full outsourcing support for all current XXXX functions, including, without limitation, loan underwriting and origination, guaranty claim processing and defaulted loan collection. During the term of this Agreement, Program Lender will offer FMC the first opportunity to participate as the secondary market for any Competing Product. If within thirty (30) days after the offer is made, FMC declines participation or if FMC and Program Lender are unable to reach agreement as the terms of FMC’s participation as a secondary market for the Competing Product, then Program Lender shall be free to continue to offer a Lender Competing Program with such Participating Institutions.” (c) Program Lender shall, on or before December 31, 2005, provide Marblehead with a list of the existing Participating Institutions under each of the Umbrella Agreements that Program Lender desires to remain Participating Institutions thereunder (the Participating Institutions not so identified on such list being the “Transition Schools”). Upon receipt of such list, Marblehead shall use best efforts to transition the Transition Schools to a Competing Lender on or before April 1, 2006. In the event that Marblehead is able to identify a Competing Lender for any restriction under this Agreement with respect such Transition Schools, the parties shall cooperate in providing for an orderly transition of such Transition Schools from Program Lender to such Competing ProductLender pursuant to agreements reasonably satisfactory to the parties. Nothing in this Paragraph 6(aIn the event that Marblehead is not able to identify a Competing Lender for any of the Transition Schools on or before April 1, 2006 notwithstanding its best efforts to do so, any such Transition School shall remain a Participating Institution under the applicable Umbrella Agreement until such time, if any, as Marblehead shall identify a Competing Lender therefor. (d) governs any activity with respect to The parties agree that Section 3 of the GATE Student Loan Umbrella Agreement shall only apply to Program or alters any exclusivity arrangement in the Student Umbrella AgreementLender Right of First Refusal Schools. (bi) Prior The first sentence of Section 6 of the GATE Student Umbrella Agreement is deleted and the following is inserted in lieu thereof: “Neither NCT nor Marblehead will enter into any agreement with any other financial institution or other regulated or nonregulated lender (a “Competing Lender”) to conduct a program for the sale origination and funding of GATE Student Conforming Loans that would be a Note relating to a Common Customer under the Note Purchase Agreement, FMC shall notLender Competing Program (as defined below) if conducted by Program Lender, with respect to any educational institution listed on Schedule 1 to the Common Customers whose Notes are sold Amendment to Umbrella Agreements (the “November 2005 Umbrella Amendment”) dated as of November 29, 2005, by and among Program Lender, Marblehead and NCT (each such institution a “Program Lender Right of First Refusal School”), unless Program Lender shall have rejected such Program Lender Right of First Refusal School pursuant to Section 3 hereof. NCT and Marblehead shall each be entitled to enter into agreements with Competing Lenders for Lender Competing Programs with respect to any educational institution which is a Transition School (as defined in such sale, Section 2(c) of the November 0000 Xxxxxxxx Amendment) or with respect to a Right of First Refusal School upon rejection of same by Program Lender as provided above. NCT and Marblehead shall not be entitled to enter into agreements with Competing Lenders for Lender Competing Programs with respect to any Participating Institution (iother than as provided above) solicit such Common Customers, or that has entered into a GATE Program agreement with Program Lender.” (ii) market Section 6 of the GATE Student Umbrella Agreement is hereby further amended by adding the following at the end of such section: “Notwithstanding the foregoing, in the event that the Termination Date occurs as a result of a Without Cause Termination by Marblehead, the prohibition set forth above with respect to Program Lender’s ability to originate a Lender Competing Program during the [**] following the Termination Date shall not apply to any products to Common Customers. After any sale educational institution that was a Participating Institution on the date on which Marblehead provided notice of Notes under the Note Purchase AgreementWithout Cause Termination, and Program Lender shall not, be free to continue to offer a Lender Competing Program with respect to the Common Customers whose Notes are sold in such sale, (i) solicit Common Customers for Competing Products, or (ii) market Competing Products to Common Customers, pursuant to a promotional scheme that is targeted specifically to Bank of America SC Conforming Loan borrowers, without the prior written consent of FMC, given in FMC’s sole and absolute discretion. Nothing in this Paragraph 6(c) shall require Program Lender to delete the names of Common Customers from general lists of Program Lender’s customers, lists of customers of Program Lender’s Affiliates, or purchased lists of prospects used for solicitationParticipating Institutions.”

EXCLUSIVITY; NONCOMPETITION. (a) Except as otherwise provided Subject to the proviso set forth below, FMC neither NCT nor Marblehead will not, during the term of this Agreement, enter into any agreement with any other financial institution or other regulated or nonregulated lender (a “"Competing Lender”Leader") which calls for FMC to design, market and arrange in the purchase nature of alternative education loans this Agreement or otherwise in contemplation of the participation of such Competing Lender in making the GATE Program without the prior written consent of the Program Lender, given in the Program Lender's sole and absolute discretion, provided however that: (a) in the event NCT or Marblehead propose an educational institution for inclusion in the GATE Program pursuant. to Paragraph 2 above and the Program Lender elects not to enter into a Loan Packaging and Funding Agreement with such educational institution, then, so long as such educational institution is eligible for inclusion in the GATE Program pursuant to the Program Manual, NCT and Marblehead may enter into such contractual arrangements with such educational institution and a Competing Lender for the origination of GATE Conforming Loans as they may elect and (b) NCT and Marblehead may enter into agreements with a Competing Lender without regard to this Paragraph 6 with respect to students at educational institutions located in any state or territory of the United States except the Program Lender Exclusive States. Upon the occurrence of the Termination Date: (1) if the termination occurred pursuant to the provisions of subparagraphs (a) or (b) of the definition of "Termination Date" or the election of NCT and Marblehead to terminate this Agreement pursuant to subparagraphs (c),'(d), (e), (f) or (g) of the definition of "Termination Date," neither the Program Lender nor Bank of America Private Conforming Loans without first offering to National Trust and Savings Association shall originate student loans in connection with any student loan program in the nature of the GATE Program or otherwise combining the principal elements of the GATE Program consisting of establishing loan proceeds reserves in lieu of relying on governmental or quasi-governmental credit support for the loans and periodically securitizing pools of such student loans (a "Lender Competing Program") with any educational institution that was, at any time during the term of this Agreement, a Participating Institution for period of twelve (12) months following such Termination Date, and (2) if the Termination Date occurred for any other reason, there shall be no restriction on the right of the Program Lender the first opportunity to participate as the program lender for enter into Lender Competing Programs at any such product. If within thirty (30) days after the offer is made, Program Lender declines participation or if FMC and Program Lender are unable to reach agreement as to the terms of Program Lender’s participation as a lender for the product, then FMC shall be free of any restriction under this Agreement with respect to such product. Notwithstanding the above, (a) FMC will be permitted to arrange a securitization transaction for any XXXX-guaranteed program, regardless of the identity of the lender; (b) FMC will be permitted to provide customer product pricing and repayment terms, together with other program terms necessary for future securitizations, to current and prospective XXXX Lenders under any XXXX Private Label Program; (c) FMER may market XXXX-guaranteed loans to lenders and educational institutions; and (d) FMER may contract to provide full outsourcing support for all current XXXX functionstime, including, without limitation, loan underwriting and origination, guaranty claim processing and defaulted loan collectionLender Competing Programs with Participating Institutions. During the term of this Agreement, Agreement the Program Lender will offer FMC the first opportunity to participate as the secondary market for not originate student loans in connection with any Lender Competing Product. If within thirty (30) days after the offer is made, FMC declines participation or if FMC and Program Lender are unable to reach agreement as the terms of FMC’s participation as a secondary market for the Competing Product, then Program Lender shall be free of any restriction under this Agreement with respect to such Competing Product. Nothing in this Paragraph 6(a) governs any activity with respect except pursuant to the GATE Student Loan Program or alters any exclusivity arrangement in the Student Umbrella and this Agreement. (b) Prior to the sale of a Note relating to a Common Customer under the Note Purchase Agreement, FMC shall not, with respect to the Common Customers whose Notes are sold in such sale, (i) solicit such Common Customers, or (ii) market any products to Common Customers. After any sale of Notes under the Note Purchase Agreement, Program Lender shall not, with respect to the Common Customers whose Notes are sold in such sale, (i) solicit Common Customers for Competing Products, or (ii) market Competing Products to Common Customers, pursuant to a promotional scheme that is targeted specifically to Bank of America SC Conforming Loan borrowers, without the prior written consent of FMC, given in FMC’s sole and absolute discretion. Nothing in this Paragraph 6(c) shall require Program Lender to delete the names of Common Customers from general lists of Program Lender’s customers, lists of customers of Program Lender’s Affiliates, or purchased lists of prospects used for solicitation.