ALTERNATIVE RECOVERY. 9.1 The Seller will not be liable in respect of any Claim to the extent of the amount of the Liabilities to which the Claim relates has otherwise been made good or has otherwise been compensated for in full without loss to any Buyer Group member.
9.2 The Seller will not be liable in respect of any Claim (other than a Tax Claim, to which the provisions of Schedule 8 will instead apply) if the Buyer Group has a right of recovery against, or indemnity from, any third party, including pursuant to any insurance policy (whether under provision of law, contract or otherwise) in respect of the Liabilities to which the Claim relates, unless the Buyer Group has first used reasonable endeavours to recover from such third party (an “Alternative Recovery Claim”).
9.3 In respect of any Alternative Recovery Claim, the Buyer shall:
(a) as soon as reasonably practicable give written notice of the Alternative Recovery Claim to the Seller specifying in reasonable detail the material aspects of the Alternative Recovery Claim;
(b) keep the Seller reasonably informed of the progress of the Alternative Recovery Claim;
(c) provide the Seller (at the Seller’s cost and expense) with copies of all material correspondence or other documents relating to the Alternative Recovery Claim requested by the Seller, subject always to legal professional privilege and any confidentiality obligations that are binding on any Buyer Group member; and
(d) use reasonable endeavours to consult with the Seller regarding the conduct of the Alternative Recovery Claim.
9.4 The Buyer will not be precluded from bringing any Claim under this Deed by reason of any breach of the terms of paragraph 9.3, but the Seller will not be liable in respect of any relevant Claim to the extent the Seller’s liability would otherwise arise or be increased by such breach.
ALTERNATIVE RECOVERY. (a) If, before a Seller makes a payment in respect of a Claim, any Group Company or any member of the Purchaser’s Group becomes entitled to receive a sum (whether by payment, discount, credit, relief, insurance or otherwise) from a third party (other than current or former employees, contractors or directors of a Group Company) as a result of the matter or circumstance giving rise to the relevant Claim, then the Purchaser shall take all reasonable steps to recover such sum from such third party before seeking recovery from such Seller in respect of the relevant Claim.
(b) Without prejudice to the Purchaser’s duty to mitigate any Loss or damage in accordance with Clause 12.19, any sum received from a third party (other than current or former employees, contractors or directors of a Group Company) by any Group Company or any member of the Purchaser’s Group, shall be taken into account in calculating the Damages Payment (if any) to be made by such Seller in respect of the relevant Claim.
ALTERNATIVE RECOVERY. (a) If, before the Seller makes a payment in respect of a Claim, the Company or any member of the Purchaser’s Group becomes or is expected to become entitled to receive a sum from a third party (whether by payment, discount, credit, relief, insurance or otherwise) as a result of the matter or circumstance giving rise to the relevant Claim, then the Purchaser shall diligently take all reasonable steps to recover such sum from such third party before seeking recovery from the Seller in respect of the relevant Claim.
(b) Without prejudice to the Purchaser’s duty to mitigate any Loss or damage in accordance with Clause 12.22, any sum to which the Company or any member of the Purchaser’s Group concerned shall or could be entitled and actually receives in respect of a Claim, shall be taken into account in calculating the Damages Payment (if any) to be made by the Seller in respect of the relevant Claim. The Purchaser procures that the Seller shall be subrogated to all rights that the Company or any member of the Purchaser’s Group has or would otherwise have against that third party.
ALTERNATIVE RECOVERY. No Seller shall be liable in respect of any Claim to the extent of the amount of the loss to which the Claim relates has otherwise been made good or has otherwise been compensated for in full without loss to any member of the Buyer Group.
