Substitute Performance. A TopCo may perform some or all of its obligations hereunder by providing for substitute performance thereof by another Person (including a Borrower or a Transferor, a “Performing Person” for the purposes of this Section 9.11), provided that a TopCo’s obligations hereunder shall be absolute and unconditional and shall not be released, discharged, diminished, limited or in any way affected by any matter, act, failure to act, or circumstance whatsoever prior to the satisfaction of such obligations in full, including: (a) any lack of power, incapacity or disability of a Performing Person; (b) any lack of validity, illegality, unenforceability, impossibility, impracticability, frustration of purpose, force majeure or act of government or governmental authority of or relating to such obligations or the Performing Person; (c) any irregularity, defect or informality, or any fraud, on the part of the Performing Person; (d) the financial condition, insolvency or bankruptcy or, where applicable, reorganization or winding-up of the Performing Person; (e) any defence, right of set-off, counterclaim, combination of accounts, cross-claim or other right or privilege available to, or a discharge of, the Performing Person with respect to such obligations; or (f) any loss or impairment of any right of any Person to claim subrogation, reimbursement, contribution or indemnity from another Person; which circumstances shall not reduce, relieve or excuse TopCo’s obligations hereunder or permit any delay in the performance thereof. For greater certainty, this provision shall not constitute the Counterparty’s consent to an assignment to or an assumption by a Performing Person of a TopCo’s obligations hereunder, but rather is only intended to permit a TopCo to satisfy its obligations hereunder through the actual performance of such obligations by to or by another Person. No actions, omissions, conduct or dealings by the Counterparty in relation to, in respect of or with a Performing Person shall constitute the substitution or replacement of a TopCo’s obligations hereunder or the waiver thereof. The acceptance by the Counterparty of any performance by a Performing Person in respect of an obligation hereunder shall not preclude, diminish, limit or in any way affect the exercise of rights against the TopCo by the Counterparty hereunder.
Appears in 3 contracts
Sources: Sharing in Transfers and Refinancings Agreement, Sharing in Transfers and Refinancings Agreement, Power Sharing in Transfers and Refinancings Agreement