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.

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.

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.