Common use of Covenant to Enforce Clause in Contracts

Covenant to Enforce. (i) If either of SLM BankCo or Navient becomes aware of potential infringement by a third party of the ATLAS Software (including Joint Materials developed pursuant to Section 5.9(b)) or the SLM BankCo Licensed Systems, then that Party will notify the other Party as soon as possible, and the Parties agree to discuss and determine how best to secure the cessation of such infringement. If the Parties agree to begin an action for infringement against a third party, then prior to asserting such action, the Parties shall negotiate in good faith to determine the allocation of the expenses and disbursements paid in connection with such action and the allocation of all monies actually received as a result of the infringement action. If the Parties cannot agree to begin such an action or cannot agree on the allocation of expenses and disbursements, then either Party will have the right to prosecute the infringement action, and that Party will bear all the expense and be entitled to retain all monies received from such action. In such a case, the non-enforcing Party shall not be obligated to provide any assistance to the enforcing Party in connection with such lawsuit, and in the event that the non-enforcing Party provides prior written consent to being named as a party to the lawsuit in order for the enforcing Party to sustain jurisdiction or standing of the action, the enforcing Party shall solely bear the expenses of the non-enforcing Party’s participation. If during a joint infringement action either Party decides to discontinue its participation in the action, then if the other Party wishes to continue it shall pay all future expenses associated with such action and will retain all monies or consideration from such action after first reimbursing any action-related expenses incurred by the discontinuing Party at a rate equal to the percentage of total expenses contributed by the discontinuing Party up to the date of discontinuance. Neither SLM BankCo nor any of its Affiliates will join or attempt to join Navient or any Navient Affiliate, and Navient and its Affiliates will not be joined, to any litigation alleging infringement by a third party of the ATLAS Software (including Joint Materials) unless Navient has provided prior written consent. Neither Navient nor any of its Affiliates will join or attempt to join SLM BankCo or any SLM BankCo Affiliate, and SLM BankCo and its Affiliates will not be joined, to any litigation alleging infringement by a third party of the ATLAS Software (including Joint Materials), unless SLM BankCo has provided prior written consent. (ii) If at any time, SLM BankCo (on its behalf or on the behalf of any member of the SLM BankCo Group) brings to the attention of Navient any unlicensed infringement of the Navient Licensed Materials or the Navient Licensed Systems (as they exist as of the Effective Time and excluding any modifications or enhancements made by SLM BankCo or the members of the SLM BankCo Group) that is affecting or could reasonably be expected to affect SLM BankCo’s or the other members of the SLM BankCo Group’s rights hereunder, including SLM BankCo and the other members of the SLM BankCo Group’s rights to use the Navient Licensed Materials or the Navient Licensed Systems, then Navient will (i) use commercially reasonable efforts to secure cessation of the infringement and (ii) if commercially reasonable under the circumstances (taking into consideration, among other things, costs and expected financial outcome), bring and diligently prosecute a lawsuit against the infringer. Navient in its own name will bring and prosecute such suit. SLM BankCo will join in such suit with Navient to the extent required by Law, but may otherwise join in such suit at its option. Further, if at any time, Navient (on its behalf or on the behalf of any member of the Navient Group) brings to the attention of SLM BankCo any unlicensed infringement of the SLM BankCo Licensed Systems (as they exist as of the Effective Time and excluding any modifications or enhancements made by Navient or the other members of the Navient Group) that is affecting or could reasonably be expected to affect Navient’s or the other members of the Navient Group’s rights hereunder, including Navient’s and the other members of the Navient Group’s rights to use the SLM BankCo Licensed Systems, then SLM BankCo will (i) use commercially reasonable efforts to secure cessation of the infringement and (ii) if commercially reasonable under the circumstances (taking into consideration, among other things, costs and expected financial outcome), bring and diligently prosecute a lawsuit against the infringer. SLM BankCo in its own name will bring and prosecute such suit. Navient will join in such suit with SLM BankCo to the extent required by Law, but may otherwise join in such suit at its option. (iii) If the Parties join in any suit covered by paragraph (ii), the Parties shall jointly control such suit and cooperate with each other with respect to such suit. If either Navient or SLM BankCo fails to jointly diligently prosecute any such suit, the other Party may solely prosecute such suit and the Party failing to jointly bring or prosecute shall use commercially reasonable efforts to cooperate with the other Party if it determines to proceed with such suit. (iv) Navient and SLM BankCo will be entitled to any separate recoveries from such suit as may be awarded to each of them, respectively. (v) If Navient, as licensor of the Navient Licensed Materials and the Navient Licensed Systems, or SLM BankCo, as licensor of the SLM BankCo Licensed Systems (each, a “Licensor”) fails to (x) secure cessation of the infringement or bring and diligently prosecute suit against the infringer within 60 days after the receipt by Navient, as licensee of the SLM BankCo Licensed Systems, or SLM BankCo, as licensee of the Navient Licensed Materials and the Navient Licensed Systems (each, a “Licensee”), of the notice by the Licensor pursuant to paragraph (ii) above, or (y) diligently prosecute any suit joined by the Licensee pursuant to paragraph (ii) above, then, subject to paragraph (iii) above, the Licensee shall be entitled to bring and prosecute actions or claims against such infringer on behalf of the Licensor and its Affiliates. (vi) Each Party will bear its own costs and expenses (including legal fees and expenses) incurred in connection with any suits brought pursuant to this paragraph (b), including suits brought by either Party pursuant to subparagraphs (iii) and (v) above.

Covenant to Enforce. (i) If either of SLM BankCo or Navient becomes aware of potential infringement by a third party of the ATLAS Software (including Joint Materials developed pursuant to Section 5.9(b)) or the SLM BankCo Licensed Systems, then that Party will notify the other Party as soon as possible, and the Parties agree to discuss and determine how best to secure the cessation of such infringement. If the Parties agree to begin an action for infringement against a third party, then prior to asserting such action, the Parties shall negotiate in good faith to determine the allocation of the expenses and disbursements paid in connection with such action and the allocation of all monies actually received as a result of the infringement action. If the Parties cannot agree to begin such an action or cannot agree on the allocation of expenses and disbursements, then either Party will have the right to prosecute the infringement action, and that Party will bear all the expense and be entitled to retain all monies received from such action. In such a case, the non-enforcing Party shall not be obligated to provide any assistance to the enforcing Party in connection with such lawsuit, and in the event that the non-enforcing Party provides prior written consent to being named as a party to the lawsuit in order for the enforcing Party to sustain jurisdiction or standing of the action, the enforcing Party shall solely bear the expenses of the non-enforcing Party’s participation. If during a joint infringement action either Party decides to discontinue its participation in the action, then if the other Party wishes to continue it shall pay all future expenses associated with such action and will retain all monies or consideration from such action after first reimbursing any action-related expenses incurred by the discontinuing Party at a rate equal to the percentage of total expenses contributed by the discontinuing Party up to the date of discontinuance. Neither SLM BankCo nor any of its Affiliates will join or attempt to join Navient or any Navient Affiliate, and Navient and its Affiliates will not be joined, to any litigation alleging infringement by a third party of the ATLAS Software (including Joint Materials) unless Navient has provided prior written consent. Neither Navient nor any of its Affiliates will join or attempt to join SLM BankCo or any SLM BankCo Affiliate, and SLM BankCo and its Affiliates will not be joined, to any litigation alleging infringement by a third party of the ATLAS Software (including Joint Materials)Software, unless SLM BankCo has provided prior written consent. (ii) If at any time, SLM BankCo (on its behalf or on the behalf of any member of the SLM BankCo Group) brings to the attention of Navient any unlicensed infringement of the Navient Licensed Materials or the Navient Licensed Systems (as they exist as of the Effective Time and excluding any modifications or enhancements made by SLM BankCo or the members of the SLM BankCo Group) that is affecting or could reasonably be expected to affect SLM BankCo’s or the other members of the SLM BankCo Group’s rights hereunder, including SLM BankCo and the other members of the SLM BankCo Group’s rights to use the Navient Licensed Materials or the Navient Licensed SystemsMaterials, then Navient will (i) use commercially reasonable efforts to secure cessation of the infringement and (ii) if commercially reasonable under the circumstances (taking into consideration, among other things, costs and expected financial outcome), bring and diligently prosecute a lawsuit against the infringer. Navient in its own name will bring and prosecute such suit. SLM BankCo will join in such suit with Navient to the extent required by Law, but may otherwise join in such suit at its option. Further, if at any time, Navient (on its behalf or on the behalf of any member of the Navient Group) brings to the attention of SLM BankCo any unlicensed infringement of the SLM BankCo Licensed Systems (as they exist as of the Effective Time and excluding any modifications or enhancements made by Navient or the other members of the Navient Group) that is affecting or could reasonably be expected to affect Navient’s or the other members of the Navient Group’s rights hereunder, including Navient’s and the other members of the Navient Group’s rights to use the SLM BankCo Licensed Systems, then SLM BankCo will (i) use commercially reasonable efforts to secure cessation of the infringement and (ii) if commercially reasonable under the circumstances (taking into consideration, among other things, costs and expected financial outcome), bring and diligently prosecute a lawsuit against the infringer. SLM BankCo in its own name will bring and prosecute such suit. Navient will join in such suit with SLM BankCo to the extent required by Law, but may otherwise join in such suit at its option. (iii) If the Parties join in any suit covered by paragraph (ii), the Parties shall jointly control such suit and cooperate with each other with respect to such suit. If either Navient or SLM BankCo fails to jointly diligently prosecute any such suit, the other Party may solely prosecute such suit and the Party failing to jointly bring or prosecute shall use commercially reasonable efforts to cooperate with the other Party if it determines to proceed with such suit. (iv) Navient and SLM BankCo will be entitled to any separate recoveries from such suit as may be awarded to each of them, respectively. (v) If Navient, as licensor of the Navient Licensed Materials and the Navient Licensed SystemsMaterials, or SLM BankCo, as licensor of the SLM BankCo Licensed Systems (each, a “Licensor”) fails to (x) secure cessation of the infringement or bring and diligently prosecute suit against the infringer within 60 days after the receipt by Navient, as licensee of the SLM BankCo Licensed Systems, or SLM BankCo, as licensee of the Navient Licensed Materials and the Navient Licensed Systems Materials,, (each, a “Licensee”), of the notice by the Licensor pursuant to paragraph (ii) above, or (y) diligently prosecute any suit joined by the Licensee pursuant to paragraph (ii) above, then, subject to paragraph (iii) above, the Licensee shall be entitled to bring and prosecute actions or claims against such infringer on behalf of the Licensor and its Affiliates. (vi) Each Party will bear its own costs and expenses (including legal fees and expenses) incurred in connection with any suits brought pursuant to this paragraph (b), including suits brought by either Party pursuant to subparagraphs (iii) and (v) above.

Covenant to Enforce. (i) If either of SLM BankCo or Navient NewCo becomes aware of potential infringement by a third party of the ATLAS Software (including Joint Materials developed pursuant to Section 5.9(b)) or the SLM BankCo Licensed SystemsSoftware, then that Party will notify the other Party as soon as possible, and the Parties agree to discuss and determine how best to secure the cessation of such infringement. If the Parties agree to begin an action for infringement against a third party, then prior to asserting such action, the Parties shall negotiate in good faith to determine the allocation of the expenses and disbursements paid in connection with such action and the allocation of all monies actually received as a result of the infringement action. If the Parties cannot agree to begin such an action or cannot agree on the allocation of expenses and disbursements, then either Party will have the right to prosecute the infringement action, and that Party will bear all the expense and be entitled to retain all monies received from such action. In such a case, the non-enforcing Party shall not be obligated to provide any assistance to the enforcing Party in connection with such lawsuit, and in the event that the non-enforcing Party provides prior written consent to being named as a party to the lawsuit in order for the enforcing Party to sustain jurisdiction or standing of the action, the enforcing Party shall solely bear the expenses of the non-enforcing Party’s participation. If during a joint infringement action either Party decides to discontinue its participation in the action, then if the other Party wishes to continue it shall pay all future expenses associated with such action and will retain all monies or consideration from such action after first reimbursing any action-related expenses incurred by the discontinuing Party at a rate equal to the percentage of total expenses contributed by the discontinuing Party up to the date of discontinuance. Neither SLM BankCo nor any of its Affiliates will join or attempt to join Navient or any Navient Affiliate, and Navient and its Affiliates will not be joined, to any litigation alleging infringement by a third party of the ATLAS Software (including Joint Materials) unless Navient has provided prior written consent. Neither Navient nor any of its Affiliates will join or attempt to join SLM BankCo or any SLM BankCo Affiliate, and SLM BankCo and its Affiliates will not be joined, to any litigation alleging infringement by a third party of the ATLAS Software (including Joint Materials), unless SLM BankCo has provided prior written consent. (ii) If at any time, SLM BankCo (on its behalf or on the behalf of any member of the SLM BankCo Group) brings to the attention of Navient NewCo any unlicensed infringement of the Navient NewCo Licensed Materials or the Navient Licensed Systems (as they exist as of the Effective Time and excluding any modifications or enhancements made by SLM BankCo or the members of the SLM BankCo Group) that is affecting or could reasonably be expected to affect SLM BankCo’s or the other members of the SLM BankCo Group’s rights hereunder, including SLM BankCo and the other members of the SLM BankCo Group’s rights to use the Navient NewCo Licensed Materials or the Navient Licensed SystemsMaterials, then Navient NewCo will (i) use commercially reasonable efforts to secure cessation of the infringement and (ii) if commercially reasonable under the circumstances (taking into consideration, among other things, costs and expected financial outcome), bring and diligently prosecute a lawsuit against the infringer. Navient NewCo in its own name will bring and prosecute such suit. SLM BankCo will join in such suit with Navient to the extent required by Law, but may otherwise join in such suit at its option. Further, if at any time, Navient (on its behalf or on the behalf of any member of the Navient Group) brings to the attention of SLM BankCo any unlicensed infringement of the SLM BankCo Licensed Systems (as they exist as of the Effective Time and excluding any modifications or enhancements made by Navient or the other members of the Navient Group) that is affecting or could reasonably be expected to affect Navient’s or the other members of the Navient Group’s rights hereunder, including Navient’s and the other members of the Navient Group’s rights to use the SLM BankCo Licensed Systems, then SLM BankCo will (i) use commercially reasonable efforts to secure cessation of the infringement and (ii) if commercially reasonable under the circumstances (taking into consideration, among other things, costs and expected financial outcome), bring and diligently prosecute a lawsuit against the infringer. SLM BankCo in its own name will bring and prosecute such suit. Navient will join in such suit with SLM BankCo NewCo to the extent required by Law, but may otherwise join in such suit at its option. (iii) If the Parties join SLM BankCo joins in any such suit covered by paragraph (ii)with NewCo, the Parties shall jointly control such suit and cooperate with each other with respect to such suit. If either Navient NewCo or SLM BankCo fails to jointly diligently prosecute any such suit, the other Party may solely prosecute such suit and the Party failing to jointly bring or prosecute shall use commercially reasonable efforts to cooperate with the other Party if it determines to proceed with such suit. (iv) Navient NewCo and SLM BankCo will be entitled to any separate recoveries from such suit as may be awarded to each of them, respectively. (v) If Navient, as licensor of the Navient Licensed Materials and the Navient Licensed Systems, or SLM BankCo, as licensor of the SLM BankCo Licensed Systems (each, a “Licensor”) NewCo fails to (xi) secure cessation of the infringement or bring and diligently prosecute suit against the infringer within 60 days after the receipt by Navient, as licensee NewCo of the SLM BankCo Licensed Systems, or SLM BankCo, as licensee of the Navient Licensed Materials and the Navient Licensed Systems (each, a “Licensee”), of the ’s notice by the Licensor pursuant to paragraph (iii) above, or (yii) diligently prosecute any suit joined by the Licensee SLM BankCo pursuant to paragraph (iii) above, then, subject to paragraph (iii) above, the Licensee SLM BankCo shall be entitled to bring and prosecute actions or claims against such infringer on behalf of SLM Bankco, the Licensor members of the SLM BankCo Group and its AffiliatesNewCo. (vi) Each Party will bear its own costs and expenses (including legal fees and expenses) incurred in connection with any suits brought pursuant to this paragraph (b), including suits brought by either Party SLM BankCo pursuant to subparagraphs (iii) and (v) above.