Common use of Indemnification by NCR Clause in Contracts

Indemnification by NCR. NCR shall indemnify, defend and hold harmless AT&T, each member of the AT&T Services Group and each of their respective directors, officers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the "AT&T Indemnitees"), from and against any and (a) the failure of NCR or any other member of the NCR Group or any other Person to pay, perform or otherwise promptly discharge any Liabilities of any member of the NCR Group in accordance with their respective terms, whether prior to or after the NCR Distribution Date or the date hereof (including any Liabilities assumed or retained by any member of the NCR Group pursuant to any Transaction Agreement); (b) the NCR Business (including any claim by, or resulting from a claim by, any creditor of AT&T UK Holdings Ltd. to the extent relating to the NCR Business conducted by such entity), any Liability of any member of the NCR Group or any NCR Covered Liability; (c) any Asset (including contracts, agreements, real property and leasehold interests) of any member of the NCR Group at any time (other than Assets transferred to any member of the AT&T Services Group prior to the NCR Distribution Date), and any contract, agreement, letter of credit or other commitment or obligation listed on Schedule 4.2(c) hereof; (d) the operation of the NCR Business, as conducted at any time prior to, on or after the NCR Distribution Date (including any Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such Person's authority)); (e) any guarantee, indemnity, representation, warranty or other Liability of or made by any member of the AT&T Services Group in respect of any Liability or alleged Liability of any member of the NCR Group; (f) any breach by NCR or any member of the NCR Group of this Agreement, the Separation and Distribution Agreement, any Ancillary Agreement, any of the NCR Ancillary Agreements or any other agreement or contract that survives the NCR Distribution Date; (g) any Liabilities relating to, arising out of or resulting from the NCR Business (including any NCR Covered Liabilities) for which AT&T has agreed to indemnify and hold harmless the Lucent Indemnitees pursuant to Section 5.3(a) of the Separation and Distribution Agreement; (h) actions taken by any member of the AT&T Group on behalf of any member of the NCR Group pursuant to the Separation and Distribution Agreement or any Ancillary Agreement; (i) any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, with respect to all information contained in the NCR Information Statement or NCR Form 10; (j) any Liability relating to, arising out of or resulting from any actual or threatened Action or other claim alleging that any Liability was improperly allocated to the NCR Group or that any Asset was improperly withheld from the NCR Group, in each case pursuant to any of the Transaction Agreements; (k) any Liability relating to, arising out of or resulting from any Action or other claim filed on or after March 1, 1996 and on or prior to the NCR Distribution Date against any member of the NCR Group unless either (i) any member of the AT&T Services Group has also been duly served as a party to such Action or other claim prior to the date hereof, (ii) NCR establishes that such Action or other claim relates exclusively to the AT&T Services Business, or (iii) such matter is listed on Schedule 4.2(k) hereto (it being understood that the applicability of any of the exceptions set forth in clause (i), (ii) or (iii) shall not eliminate any Liability of any member of the NCR Group pursuant to any other provision of this Agreement or any other Transaction Agreement). For purposes of clarification, the parties agree that this paragraph (k) will control the allocation of Liability with respect to any Action or other claim to which this paragraph (k) by its terms applies and that, to the extent this paragraph (k) does not by its terms apply to any Action or other claim, the allocation of Liability with respect thereto will be controlled by the Separation and Distribution Agreement to the extent it applies by its terms and, otherwise, will be controlled by any other applicable terms of this Agreement and the other Transaction Agreement. Nothing in this Agreement shall be deemed to amend or modify Article V (including Section 5.3(c) thereof) or Article VI of the Separation and Distribution Agreement and the provisions of the Separation and Distribution Agreement shall govern matters covered thereby.

Indemnification by NCR. NCR shall indemnify, defend and hold harmless AT&T, each member of the AT&T Services Group and each of their respective directors, officers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the "AT&T Indemnitees"), from and against any andand all Liabilities of the AT&T Indemnitees relating to, arising out of or resulting from any of the following items (without duplication), in each case whether arising before, on or after the NCR Distribution Date: (a) the failure of NCR or any other member of the NCR Group or any other Person to pay, perform or otherwise promptly discharge any Liabilities of any member of the NCR Group in accordance with their respective terms, whether prior to or after the NCR Distribution Date or the date hereof (including any Liabilities assumed or retained by any member of the NCR Group pursuant to any Transaction Agreement); (b) the NCR Business (including any claim by, or resulting from a claim by, any creditor of AT&T UK Holdings Ltd. to the extent relating to the NCR Business conducted by such entity), any Liability of any member of the NCR Group or any NCR Covered Liability; (c) any Asset (including contracts, agreements, real property and leasehold interests) of any member of the NCR Group at any time (other than Assets transferred to any member of the AT&T Services Group prior to the NCR Distribution Date), and any contract, agreement, letter of credit or other commitment or obligation listed on Schedule 4.2(c) hereof; (d) the operation of the NCR Business, as conducted at any time prior to, on or after the NCR Distribution Date (including any Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such Person's authority)); (e) any guarantee, indemnity, representation, warranty or other Liability of or made by any member of the AT&T Services Group in respect of any Liability or alleged Liability of any member of the NCR Group; (f) any breach by NCR or any member of the NCR Group of this Agreement, the Separation and Distribution Agreement, any Ancillary Agreement, any of the NCR Ancillary Agreements or any other agreement or contract that survives the NCR Distribution Date; (g) any Liabilities relating to, arising out of or resulting from the NCR Business (including any NCR Covered Liabilities) for which AT&T has agreed to indemnify and hold harmless the Lucent Indemnitees pursuant to Section 5.3(a) of the Separation and Distribution Agreement; (h) actions taken by any member of the AT&T Group on behalf of any member of the NCR Group pursuant to the Separation and Distribution Agreement or any Ancillary Agreement; (i) any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, with respect to all information contained in the NCR Information Statement or NCR Form 10; (j) any Liability relating to, arising out of or resulting from any actual or threatened Action or other claim alleging that any Liability was improperly allocated to the NCR Group or that any Asset was improperly withheld from the NCR Group, in each case pursuant to any of the Transaction Agreements; (k) any Liability relating to, arising out of or resulting from any Action or other claim filed on or after March 1, 1996 and on or prior to the NCR Distribution Date against any member of the NCR Group unless either (i) any member of the AT&T Services Group has also been duly served as a party to such Action or other claim prior to the date hereof, (ii) NCR establishes that such Action or other claim relates exclusively to the AT&T Services Business, or (iii) such matter is listed on Schedule 4.2(k) hereto (it being understood that the applicability of any of the exceptions set forth in clause (i), (ii) or (iii) shall not eliminate any Liability of any member of the NCR Group pursuant to any other provision of this Agreement or any other Transaction Agreement). For purposes of clarification, the parties agree that this paragraph (k) will control the allocation of Liability with respect to any Action or other claim to which this paragraph (k) by its terms applies and that, to the extent this paragraph (k) does not by its terms apply to any Action or other claim, the allocation of Liability with respect thereto will be controlled by the Separation and Distribution Agreement to the extent it applies by its terms and, otherwise, will be controlled by any other applicable terms of this Agreement and the other Transaction Agreement. Nothing in this Agreement shall be deemed to amend or modify Article V (including Section 5.3(c) thereof) or Article VI of the Separation and Distribution Agreement and the provisions of the Separation and Distribution Agreement shall govern matters covered thereby.

Indemnification by NCR. NCR shall indemnify, defend and hold harmless AT&T, each member of the AT&T Services Group and each of their respective directors, officers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the "AT&T Indemnitees"), from and against any andand all Liabilities of the AT&T Indemnitees relating to, arising out of or resulting from any of the following items (without duplication), in each case whether arising before, on or after the NCR Distribution Date: (a) the failure of NCR or any other member of the NCR Group or any other Person to pay, perform or otherwise promptly discharge any Liabilities of any member mem- ber of the NCR Group in accordance with their respective terms, whether prior to or after the NCR Distribution Date or the date hereof (including any Liabilities assumed or retained by any member of the NCR Group pursuant to any Transaction Agreement)hereof; (b) the NCR Business (including any claim by, or resulting from a claim by, by any creditor of AT&T UK Holdings Ltd. to the extent relating to the NCR Business conducted by such entity), any Liability of any member of the NCR Group or any NCR Covered Liability; (c) any Asset (including contracts, agreements, real property and leasehold interests) of any member of the NCR Group at any time (other than Assets transferred to any member of the AT&T Services Group prior to the NCR Distribution Date), and any contract, agreement, letter of credit or other commitment or obligation listed on Schedule 4.2(c) 4.2 hereof; (d) the operation of the NCR Business, as conducted at any time prior to, on or after the NCR Distribution Date (including any Liability relating to, arising out of or resulting from any act or failure to act by any director, officer, employee, agent or representative (whether or not such act or failure to act is or was within such Person's authority)); (e) any guarantee, indemnity, representation, warranty or other Liability of or made by any member of the AT&T Services Group in respect of any Liability or alleged Liability of any member of the NCR Group; (f) any breach by NCR or any member of the NCR Group of this Agreement, the Separation and Distribution Agreement, any Ancillary Agreement, Agreement or any of the NCR Ancillary Agreements or any other agreement or contract that survives the NCR Distribution DateAgreements; (g) any Liabilities relating to, arising out of or resulting from the NCR Business (including any NCR Covered Liabilities) for which AT&T has agreed to indemnify and hold harmless the Lucent Indemnitees pursuant to Section 5.3(a) of the Separation and Distribution Agreement; (h) actions taken by any member of the AT&T Group on behalf of any member of the NCR Group pursuant to the Separation and Distribution Agreement or any Ancillary Agreement; (i) any untrue statement or alleged untrue statement of a material fact or omission or alleged omission to state a material fact required to be stated therein or necessary to make the statements therein not misleading, with respect to all information contained in the NCR Information Statement or NCR Form 10;; and (j) any Liability relating to, arising out of or resulting from any actual or threatened Action or other claim alleging that any Liability was improperly allocated to the NCR Group or that any Asset was improperly withheld from the NCR Group, in each case pursuant to any of the Transaction Agreements; (k) any Liability relating to, arising out of or resulting from any Action or other claim filed on or after March 1, 1996 and on or prior to the NCR Distribution Date against any member of the NCR Group unless either (i) any member of the AT&T Services Group has also been duly served as a party to such Action or other claim prior to the date hereof, (ii) NCR establishes that such Action or other claim relates exclusively to the AT&T Services Business, or (iii) such matter is listed on Schedule 4.2(k) hereto (it being understood that the applicability of any of the exceptions set forth in clause (i), (ii) or (iii) shall not eliminate any Liability of any member of the NCR Group pursuant to any other provision of this Agreement or any other Transaction Agreement). For purposes of clarification, the parties agree that this paragraph (k) will control the allocation of Liability with respect to any Action or other claim to which this paragraph (k) by its terms applies and that, to the extent this paragraph (k) does not by its terms apply to any Action or other claim, the allocation of Liability with respect thereto will be controlled by the Separation and Distribution Agreement to the extent it applies by its terms and, otherwise, will be controlled by any other applicable terms of this Agreement and the other Transaction Agreement. Nothing in this Agreement shall be deemed to amend or modify Article V (including Section 5.3(c) thereof) or Article VI of the Separation and Distribution Agreement and the provisions of the Separation and Distribution Agreement shall govern matters covered thereby.