Common use of Exclusive Contingent Liabilities Clause in Contracts

Exclusive Contingent Liabilities. (a) Except as otherwise provided in this Section 6.3, each Exclusive Contingent Liability or Related Exclusive Contingent Liability shall constitute a Liability for which indemnification is provided by AT&T, Lucent or NCR, as the case may be, pursuant to Article V hereof and shall be subject to the procedures set forth in Article V with respect thereto. (b) Notwithstanding anything to the contrary in this Agreement, except as set forth in paragraph (f) of this Section 6.3, if the aggregate Value of all amounts paid by AT&T, Lucent or NCR (in each case, together with any members of its respective Group) in respect of any single Exclusive Contingent Liability of such Group or any Related Exclusive Contingent Liabilities of such Group is in excess of $100 million, each of AT&T, Lucent or NCR, as the case may be, shall be entitled to reimbursement from 54 each of the others for a share of the Excess Portion in accordance with the following percentages: (i) in the case of Exclusive AT&T Contingent Liabilities, AT&T shall bear 75 percent of such Excess Portion, Lucent shall bear 22 percent of such Excess Portion, and NCR shall bear 3 percent of such Excess Portion; (ii) in the case of Exclusive NCR Contingent Liabilities, NCR shall bear 50 percent of such Excess Portion, AT&T shall bear 37 percent of such Excess Portion and Lucent shall bear 13 percent of such Excess Portion; and (iii) in the case of Exclusive Lucent Contingent Liabilities, Lucent shall bear 50 percent of such Excess Portion, AT&T shall bear 47 percent of such Excess Portion and NCR shall bear 3 percent of such Excess Portion. (c) In the event that after any payment is made by any party to any other party in accordance with the allocation set forth in Section 6.3(b), any party or any member of such party's Group receives any Insurance Proceeds, obtains any recovery pursuant to an RBOC Agreement or obtains any other amounts that, in any such case, would reduce the Value of all amounts paid by such party and the members of its Group in respect of the applicable Exclusive Contingent Liability or Liabilities, such party will promptly notify each other party of the receipt of such Insurance Proceeds or recovery of such amount pursuant to an RBOC Agreement or otherwise and will promptly reimburse each other party for the amount of any payment that such first party would not have been entitled to receive if it had received such Insurance Proceeds or obtained such recovery pursuant to an RBOC Agreement or otherwise on or prior to the date it received a payment pursuant to this Section. Each such repayment will be accompanied by interest accruing from the date of receipt of the original payment pursuant to this Section to the date of such repayment at a rate equal to the Prime Rate plus 2% per annum. (d) Each party agrees to use its reasonable best efforts to advise each other party if it becomes aware of one or more Exclusive Contingent Liabilities that may result in a Value of $100 million or more; provided, however, that no failure to give any such notice shall relieve any other party of any obligation pursuant to this Agreement. In the event of any such notice, or if any other party otherwise determines that any such risk may exist, the other parties will be entitled at their own expense to monitor any such Action. In any such event, the parties will enter into a mutually acceptable joint defense agreement so as to maintain to the extent reasonably practicable the attorney-client privilege with respect thereto. (e) It shall not be a defense to any obligation by any party to pay any amount in respect of any Excess Portion that such party was not consulted in the defense thereof, that such party's views or opinions as to the conduct of such defense were not accepted or adopted, that such party does not approve of the quality or manner of the defense thereof or that such Excess Portion was incurred by reason of a settlement rather than by a judgment or other determination of liability (even if, subject to Section 5.5(g), such settlement was effected without the consent or over the objection of such party). (f) Neither AT&T nor Lucent (nor any member of their respective Groups) will be entitled to reimbursement pursuant to this Section 6.3 for a share of the Excess Portion in respect of any Exclusive Contingent Liability or Related Exclusive Contingent Liabilities that would be subject to sharing with the RBOCs pursuant to any 55 RBOC Agreement, unless the applicable party shall have pursued in good faith any recovery to which it or any member of its Group may be entitled under such RBOC Agreement in respect of such Exclusive Contingent Liability or Related Exclusive Contingent Liabilities.

Exclusive Contingent Liabilities. (a) Except as otherwise provided in this Section 6.3, each Exclusive Contingent Liability or Related Exclusive Contingent Liability shall constitute a Liability for which indemnification is provided by AT&T, Lucent or NCRAvaya, as the case may be, pursuant to Article V hereof and shall be subject to the procedures set forth in Article V with respect thereto. (b) Notwithstanding anything to the contrary in this Agreement, except as set forth in paragraph (f) of this Section 6.3, if the aggregate Value of all amounts paid by AT&T, Lucent or NCR Avaya (in each case, together with any members of its respective Group) in respect of any single Exclusive Contingent Liability of such Group or any Related Exclusive Contingent Liabilities of such Group is in excess of $100 50 million, each of AT&T, Lucent or NCRAvaya, as the case may be, shall be entitled to reimbursement from 54 each of the others for a share of the Excess Portion in accordance with the following percentages: : (i) in the case of Exclusive AT&T Contingent Liabilities, AT&T shall bear 75 percent of such Excess Portion, Lucent shall bear 22 percent of such Excess Portion, and NCR shall bear 3 percent of such Excess Portion; (ii) in the case of Exclusive NCR Contingent Liabilities, NCR shall bear 50 percent of such Excess Portion, AT&T shall bear 37 percent of such Excess Portion and Lucent shall bear 13 percent of such Excess Portion; and (iii) in the case of Exclusive Lucent Contingent Liabilities, Lucent shall bear 50 percent of such Excess Portion, AT&T shall bear 47 percent [90]% of such Excess Portion and NCR Avaya shall bear 3 percent [10]% of such Excess Portion; and (ii) in the case of Exclusive Avaya Contingent Liabilities, Avaya shall bear 50% of such Excess Portion and Lucent shall bear 50% of such Excess Portion. (c) In the event that after any payment is made by any party to any the other party in accordance with the allocation set forth in Section 6.3(b), any either party or any member of such party's Group receives any Insurance Proceeds, obtains any recovery pursuant to an RBOC Agreement Proceeds or obtains any other amounts that, in any such case, would reduce the Value of all amounts paid by such party and the members of its Group in respect of the applicable Exclusive Contingent Liability or Liabilities, such party will promptly notify each the other party of the receipt of such Insurance Proceeds or recovery of such amount pursuant to an RBOC Agreement or otherwise and will promptly reimburse each the other party for the amount of any payment that such first party would not have -42- 48 been entitled to receive if it had received such Insurance Proceeds or obtained such recovery pursuant to an RBOC Agreement or otherwise on or prior to the date it received a payment pursuant to this Section. Each such repayment will be accompanied by interest accruing from the date of receipt of the original payment pursuant to this Section to the date of such repayment at a rate equal to the Prime Rate plus 2% per annum. (d) Each party agrees to use its reasonable best efforts to advise each the other party if it becomes aware of one or more Exclusive Contingent Liabilities or Related Exclusive Contingent Liabilities that may result in a Value of $100 50 million or more; provided, however, that no failure to give any such notice shall relieve any the other party of any obligation pursuant to this Agreement. In the event of any such notice, or if any the other party otherwise determines that any such risk may exist, the other parties party will be entitled at their its own expense to monitor any such Action. In any such event, the parties will enter into a mutually acceptable joint defense agreement so as to maintain to the extent reasonably practicable the attorney-client privilege privilege, attorney work product and other judicially recognized protections and privileges with respect thereto. (e) It shall not be a defense to any obligation by any party to pay any amount in respect of any Excess Portion that such party was not consulted in the defense thereof, that such party's views or opinions as to the conduct of such defense were not accepted or adopted, that such party does not approve of the quality or manner of the defense thereof or that such Excess Portion was incurred by reason of a settlement rather than by a judgment or other determination of liability (even if, subject to Section 5.5(g5 .5(g), such settlement was effected without the consent or over the objection of such party). (f) Neither AT&T nor Lucent (nor any member of their respective Groups) will be entitled to reimbursement pursuant to this Section 6.3 for a share of the Excess Portion in respect of any Exclusive Contingent Liability or Related Exclusive Contingent Liabilities that would be subject to sharing with the RBOCs pursuant to any 55 RBOC Agreement, unless the applicable party shall have pursued in good faith any recovery to which it or any member of its Group may be entitled under such RBOC Agreement in respect of such Exclusive Contingent Liability or Related Exclusive Contingent Liabilities.

Exclusive Contingent Liabilities. (a) Except as otherwise provided in this Section 6.3, each Exclusive Contingent Liability or Related Exclusive Contingent Liability shall constitute a Liability for which indemnification is provided by AT&T, Lucent or NCR, as the case may be, pursuant to Article V hereof and shall be subject to the procedures set forth in Article V with respect thereto. (b) Notwithstanding anything to the contrary in this Agreement, except as set forth in paragraph (f) of this Section 6.3, if the aggregate Value of all amounts paid by AT&T, Lucent or NCR (in each case, together with any members of its respective Group) in respect of any single Exclusive Contingent Liability of such Group or any Related Exclusive Contingent Liabilities of such Group is in excess of $100 million, each of AT&T, Lucent or NCR, as the case may be, shall be entitled to reimbursement from 54 each of the others for a share of the Excess Portion in accordance with the following percentages: : (i) in the case of Exclusive AT&T Contingent Liabilities, AT&T shall bear 75 percent of such Excess Portion, Lucent shall bear 22 percent of such Excess Portion, and NCR shall bear 3 percent of such Excess Portion; ; (ii) in the case of Exclusive NCR Contingent Liabilities, NCR shall bear 50 percent of such Excess Portion, AT&T shall bear 37 percent of such Excess Portion and Lucent shall bear 13 percent of such Excess Portion; and and (iii) in the case of Exclusive Lucent Contingent Liabilities, Lucent shall bear 50 percent of such Excess Portion, AT&T shall bear 47 percent of such Excess Portion and NCR shall bear 3 percent of such Excess Portion. (c) In the event that after any payment is made by any party to any other party in accordance with the allocation set forth in Section 6.3(b), any party or any member of such party's Group receives any Insurance Proceeds, obtains any recovery pursuant to an RBOC Agreement or obtains any other amounts that, in any such case, would reduce the Value of all amounts paid by such party and the members of its Group in respect of the applicable Exclusive Contingent Liability or Liabilities, such party will promptly notify each other party of the receipt of such Insurance Proceeds or recovery of such amount pursuant to an RBOC Agreement or otherwise and will promptly reimburse each other party for the amount of any payment that such first party would not have been entitled to receive if it had received such Insurance Proceeds or obtained such recovery pursuant to an RBOC Agreement or otherwise on or prior to the date it received a payment pursuant to this Section. Each such repayment will be accompanied by interest accruing from the date of receipt of the original payment pursuant to this Section to the date of such repayment at a rate equal to the Prime Rate plus 2% per annum. (d) Each party agrees to use its reasonable best efforts to advise each other party if it becomes aware of one or more Exclusive Contingent Liabilities that may result in a Value of $100 million or more; provided, however, that no failure to give any such notice shall relieve any other party of any obligation pursuant to this Agreement. In the event of any such notice, or if any other party otherwise determines that any such risk may exist, the other parties will be entitled at their own expense to monitor any such Action. In any such event, the parties will enter into a mutually acceptable joint defense agreement so as to maintain to the extent reasonably practicable the attorney-client privilege with respect thereto. (e) It shall not be a defense to any obligation by any party to pay any amount in respect of any Excess Portion that such party was not consulted in the defense thereof, that such party's views or opinions as to the conduct of such defense were not accepted or adopted, that such party does not approve of the quality or manner of the defense thereof or that such Excess Portion was incurred by reason of a settlement rather than by a judgment or other determination of liability (even if, subject to Section 5.5(g), such settlement was effected without the consent or over the objection of such party). (f) Neither AT&T nor Lucent (nor any member of their respective Groups) will be entitled to reimbursement pursuant to this Section 6.3 for a share of the Excess Portion in respect of any Exclusive Contingent Liability or Related Exclusive Contingent Liabilities that would be subject to sharing with the RBOCs pursuant to any 55 RBOC Agreement, unless the applicable party shall have pursued in good faith any recovery to which it or any member of its Group may be entitled under such RBOC Agreement in respect of such Exclusive Contingent Liability or Related Exclusive Contingent Liabilities.

Exclusive Contingent Liabilities. (a) Except as otherwise provided in this Section 6.3, each Exclusive Contingent Liability or Related Exclusive Contingent Liability shall constitute a Liability for which indemnification is provided by AT&T, Lucent or NCRAvaya, as the case may be, pursuant to Article V hereof and shall be subject to the procedures set forth in Article V with respect thereto. (b) Notwithstanding anything to the contrary in this Agreement, except as set forth in paragraph (f) of this Section 6.3, if the aggregate Value of all amounts paid by AT&T, Lucent or NCR Avaya (in each case, together with any members of its respective Group) in respect of any single Exclusive Contingent Liability of such Group or any Related Exclusive Contingent Liabilities of such Group is in excess of $100 50 million, each of AT&T, Lucent or NCRAvaya, as the case may be, shall be entitled to reimbursement from 54 each of the others for a share of the Excess Portion in accordance with the following percentages: : (i) in the case of Exclusive AT&T Contingent Liabilities, AT&T shall bear 75 percent of such Excess Portion, Lucent shall bear 22 percent of such Excess Portion, and NCR shall bear 3 percent of such Excess Portion; (ii) in the case of Exclusive NCR Contingent Liabilities, NCR shall bear 50 percent of such Excess Portion, AT&T shall bear 37 percent of such Excess Portion and Lucent shall bear 13 percent of such Excess Portion; and (iii) in the case of Exclusive Lucent Contingent Liabilities, Lucent shall bear 50 percent of such Excess Portion, AT&T shall bear 47 percent 90% of such Excess Portion and NCR Avaya shall bear 3 percent 10% of such Excess Portion; and (ii) in the case of Exclusive Avaya Contingent Liabilities, Avaya shall bear 50% of such Excess Portion and Lucent shall bear 50% of such Excess Portion. (c) In the event that after any payment is made by any party to any the other party in accordance with the allocation set forth in Section 6.3(b), any either party or any member of such party's Group receives any Insurance Proceeds, obtains any recovery pursuant to an RBOC Agreement Proceeds or obtains any other amounts that, in any such case, would reduce the Value of all amounts paid by such party and the members of its Group in respect of the applicable Exclusive Contingent Liability or Liabilities, such party will promptly notify each the other party of the receipt of such Insurance Proceeds or recovery of such amount pursuant to an RBOC Agreement or otherwise and will promptly reimburse each the other party for the amount of any payment that such first party would not have been entitled to receive if it had received such Insurance Proceeds or obtained such recovery pursuant to an RBOC Agreement or otherwise on or prior to the date it received a payment pursuant to this Section. Each such repayment will be accompanied by interest accruing from the date of receipt of the original payment pursuant to this Section to the date of such repayment at a rate equal to the Prime Rate plus 2% per annum. (d) Each party agrees to use its reasonable best efforts to advise each the other party if it becomes aware of one or more Exclusive Contingent Liabilities or Related Exclusive Contingent Liabilities that may result in a Value of $100 50 million or more; providedPROVIDED, howeverHOWEVER, that no failure to give any such notice shall relieve any the other party of any obligation pursuant to this Agreement. In the event of any such notice, or if any the other party otherwise determines that any such risk may exist, the other parties will partywill be entitled at their its own expense to monitor any such Action. In any such event, the parties will enter into a mutually acceptable joint defense agreement so as to maintain to the extent reasonably practicable the attorney-client privilege privilege, attorney work product and other judicially recognized protections and privileges with respect thereto. (e) It shall not be a defense to any obligation by any party to pay any amount in respect of any Excess Portion that such party was not consulted in the defense thereof, that such party's views or opinions as to the conduct of such defense were not accepted or adopted, that such party does not approve of the quality or manner of the defense thereof or that such Excess Portion was incurred by reason of a settlement rather than by a judgment or other determination of liability (even if, subject to Section 5.5(g5 .5(g), such settlement was effected without the consent or over the objection of such party). (f) Neither AT&T nor Lucent (nor any member of their respective Groups) will be entitled to reimbursement pursuant to this Section 6.3 for a share of the Excess Portion in respect of any Exclusive Contingent Liability or Related Exclusive Contingent Liabilities that would be subject to sharing with the RBOCs pursuant to any 55 RBOC Agreement, unless the applicable party shall have pursued in good faith any recovery to which it or any member of its Group may be entitled under such RBOC Agreement in respect of such Exclusive Contingent Liability or Related Exclusive Contingent Liabilities.

Exclusive Contingent Liabilities. (a) Except as otherwise provided in this Section 6.3, each Exclusive Contingent Liability or Related Exclusive Contingent Liability shall constitute a Liability for which indemnification is provided by AT&T, Lucent or NCR, as the case may be, pursuant to Article V hereof and shall be subject to the procedures set forth in Article V with respect thereto. (b) Notwithstanding anything to the contrary in this Agreement, except as set forth in paragraph (f) of this Section 6.3, if the aggregate Value of all amounts paid by AT&T, Lucent or NCR (in each case, together with any members of its respective Group) in respect of any single Exclusive Contingent Liability of such Group or any Related Exclusive Contingent Liabilities of such Group is in excess of $100 million, each of AT&T, Lucent or NCR, as the case may be, shall be entitled to reimbursement from 54 each of the others for a share of the Excess Portion in accordance with the following percentages: (i) in the case of Exclusive AT&T Contingent Liabilities, AT&T shall bear 75 percent of such Excess Portion, Lucent shall bear 22 percent of such Excess Portion, and NCR shall bear 3 percent of such Excess Portion; (ii) in the case of Exclusive NCR Contingent Liabilities, NCR shall bear 50 percent of such Excess Portion, AT&T shall bear 37 percent of such Excess Portion and Lucent shall bear 13 percent of such Excess Portion; and (iii) in the case of Exclusive Lucent Contingent Liabilities, Lucent shall bear 50 percent of such Excess Portion, AT&T shall bear 47 percent of such Excess Portion and NCR shall bear 3 percent of such Excess Portion.from (c) In the event that after any payment is made by any party to any other party in accordance with the allocation set forth in Section 6.3(b), any party or any member of such party's Group receives any Insurance Proceeds, obtains any recovery pursuant to an RBOC Agreement or obtains any other amounts that, in any such case, would reduce the Value of all amounts paid by such party and the members of its Group in respect of the applicable Exclusive Contingent Liability or Liabilities, such party will promptly notify each other party of the receipt of such Insurance Proceeds or recovery of such amount pursuant to an RBOC Agreement or otherwise and will promptly reimburse each other party for the amount of any payment that such first party would not have been entitled to receive if it had received such Insurance Proceeds or obtained such recovery pursuant to an RBOC Agreement or otherwise on or prior to the date it received a payment pursuant to this Section. Each such repayment will be accompanied by interest accruing from the date of receipt of the original payment pursuant to this Section to the date of such repayment at a rate equal to the Prime Rate plus 2% per annum. (d) Each party agrees to use its reasonable best efforts to advise each other party if it becomes aware of one or more Exclusive Contingent Liabilities that may result in a Value of $100 million or more; provided, however, that no failure to give any such notice shall relieve any other party of any obligation pursuant to this Agreement. In the event of any such notice, or if any other party otherwise determines that any such risk may exist, the other parties will be entitled at their own expense to monitor any such Action. In any such event, the parties will enter into a mutually acceptable joint defense agreement so as to maintain to the extent reasonably practicable the attorney-client privilege with respect thereto.otherwise (e) It shall not be a defense to any obligation by any party to pay any amount in respect of any Excess Portion that such party was not consulted in the defense thereof, that such party's views or opinions as to the conduct of such defense were not accepted or adopted, that such party does not approve of the quality or manner of the defense thereof or that such Excess Portion was incurred by reason of a settlement rather than by a judgment or other determination of liability (even if, subject to Section 5.5(g), such settlement was effected without the consent or over the objection of such party). (f) Neither AT&T nor Lucent (nor any member of their respective Groups) will be entitled to reimbursement pursuant to this Section 6.3 for a share of the Excess Portion in respect of any Exclusive Contingent Liability or Related Exclusive Contingent Liabilities that would be subject to sharing with the RBOCs pursuant to any 55 RBOC Agreement, unless the applicable party shall have pursued in good faith any recovery to which it or any member of its Group may be entitled under such RBOC Agreement in respect of such Exclusive Contingent Liability or Related Exclusive Contingent Liabilities.any