Performance Guaranty (2015)Full Document 

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PERFORMANCE GUARANTY

This Performance Guaranty (this "Guaranty") is entered into as of April 27, 2015, by FC HoldCo LLC (the "Guarantor"), in favor of Wells Fargo Bank, National Association, as administrative agent under the Warehouse Agreement (as defined below) (in such capacity, the "Administrative Agent").

WHEREAS, FCA Funding I LLC, as borrower (the "Borrower"), Flagship Credit Acceptance LLC ("Flagship"), as servicer (in such capacity, the "Servicer"), CarFinance Capital LLC, a Delaware limited liability company ("CarFinance"), as Subservicer, the Conduit Lenders from time to time party thereto, the Committed Lenders from time to time party thereto, the Lender Group Agents from time to time party thereto, Wells Fargo Bank, National Association ("Wells Fargo"), as backup servicer (in such capacity, the "Backup Servicer"), Deutsche Bank National Trust Company, as collateral custodian (in such capacity, the "Collateral Custodian"), and Wells Fargo Bank, National Association, as the Administrative Agent, as paying agent (in such capacity, the "Paying Agent") and as Securities Intermediary (as amended, restated, supplemented or otherwise modified from time to time, the "Warehouse Agreement");

WHEREAS, the Borrower, as purchaser, FC Funding LLC, as seller (in such capacity, the "Seller") and Flagship and CarFinance, as Originators, are parties to that certain Purchase Agreement, dated as of April 27, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the "Purchase Agreement");

WHEREAS, the Guarantor will receive substantial direct and indirect benefits from the consummation of the transactions contemplated by the Transaction Documents; and

NOW, THEREFORE, in consideration of the premises and the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the Guarantor, the parties hereto agree as follows:

Section 1. Definitions. Unless otherwise defined in this Guaranty, all defined terms used in this Guaranty shall have the meanings ascribed to such terms in the Warehouse Agreement.

Section 2. Guaranty of Obligations.

(a) The Guarantor hereby absolutely, irrevocably and unconditionally guarantees for the benefit of the Administrative Agent and the other Secured Parties, the due and punctual performance by each of Flagship (as Servicer, as Originator and/or in its individual capacity), CarFinance (as Subservicer, as Originator and/or in its individual capacity) and FC Funding (as Seller and/or in its individual capacity) of its covenants, agreements and obligations contained in the Transaction Documents to which Flagship, CarFinance and/or FC Funding, as applicable, is a party (the "Obligations").

(b) For the avoidance of doubt, the Guarantor shall have no obligation to guaranty (and does not guaranty) any obligations of the Obligors under the Receivables or any obligation of the Borrower under the Warehouse Agreement.


Section 3. Unconditionality; Irrevocability. (a) This is an absolute, unconditional and continuing guaranty of payment and performance of all Obligations, and the Guarantor agrees that its obligations under this Guaranty shall be irrevocable. The dissolution, insolvency or adjudication of bankruptcy of the Guarantor shall not revoke this Guaranty.

(b) No act or thing need occur to establish the liability or obligation of the Guarantor hereunder, and no act or thing, except full payment, discharge and performance of all Obligations, shall in any way exonerate the Guarantor hereunder or modify, reduce, limit or release the liability of the Guarantor hereunder. The Administrative Agent and the other Secured Parties shall not be required first to resort to payment of the Obligations by Flagship, CarFinance, FC Funding or any other Person, or their properties, before enforcing this Guaranty. Until payment in full of the Obligations, the Obligations of the Guarantor under this Guaranty shall not be affected, modified or impaired upon the happening from time to time of any event, including, without limitation, the events described in Section 4 herein, whether or not with notice to or the consent of the Guarantor.

(c) The Guarantor further agrees that, if any payment applied hereunder to the Obligations is thereafter set aside, recovered, rescinded or required to be returned for any reason (including, without limitation, the bankruptcy, insolvency or reorganization of Flagship, CarFinance, FC Funding or any other obligor) or declared to be fraudulent or preferential, the Obligations to which such payment was applied shall for the purpose of this Guaranty be deemed to have continued in existence, notwithstanding such payment, and this Guaranty shall be enforceable as to such Obligations as fully as if such payment had never been made. The provisions of this Section 3(c) hereof shall survive any termination of this Guaranty.

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