Common use of Performance Undertaking Clause in Contracts

Performance Undertaking. (a) Parent hereby unconditionally and irrevocably undertakes and assures (as a primary obligor and not merely as surety) for the benefit of Purchaser the due and punctual performance and observance by each Seller (together with their respective successors and assigns, collectively, the “Covered Entities”, and each, a “Covered Entity”) of the terms, covenants, indemnities, conditions, agreements, undertakings and obligations on the part of such Covered Entity to be performed or observed by it under this Agreement, the related Participation Agreement and each of the other Transaction Documents to which such Covered Entity is a party, including any agreement or obligation of such Covered Entity to make any payment in respect of any Repurchase Event or indemnity, in each case on the terms and subject to the conditions and limitations set forth in this Agreement, the related Participation Agreement and the applicable Transaction Documents as the same shall be amended, restated, supplemented or otherwise modified and in effect from time to time (all such terms, covenants, indemnities, conditions, agreements, undertakings and obligations on the part of the Covered Entities to be paid, performed or observed by them, collectively the “Guaranteed Obligations”). Without limiting the generality of the foregoing, Parent agrees that if any Covered Entity shall fail in any manner whatsoever to perform or observe any of its Guaranteed Obligations when the same shall be required to be performed or observed under this Agreement, the related Participation Agreement and any applicable Transaction Document, then Parent will itself duly and punctually perform or observe, or cause to be performed or observed, such Guaranteed Obligations. (b) Parent expressly agrees that its obligations hereunder shall be absolute, irrevocable and unconditional, and as such, it shall not be a condition to the accrual of any obligation of Parent hereunder to perform or to observe, or to cause to be performed or observed any Guaranteed Obligation that Purchaser or any other Person shall have first made any request of or demand upon or given any notice to Parent, any Covered Entity or any of their respective successors and assigns or have initiated any action or proceeding against Parent, any Covered Entity or any of their respective successors and assigns in respect thereof. Purchaser may proceed to enforce the obligations of Parent under this Section 13.19 without first pursuing or exhausting any right or remedy which Purchaser may have against any Covered Entity, any other Person, the Purchased Receivables or any other property. (c) Parent hereby expressly waives any defenses it may have as a guarantor or a surety generally or otherwise based upon suretyship, impairment of collateral or otherwise in connection with the Guaranteed Obligations whether in equity or at law or by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect. Parent hereby also expressly waives acceptance, diligence, presentment, demand, protest or notice of any kind whatsoever, as well as any requirement that the Purchaser exhausts any right to take any action against any Seller or any other Person (including the filing of any claims in the event of a receivership or bankruptcy of any of the foregoing), or with respect to any property, collateral or collateral security at any time securing any of, or related to, the Guaranteed Obligations, and hereby consents to any and all extensions of time of the due performance or observance of any or all of the Guaranteed Obligations and that its obligations hereunder remain irrespective of any change of the time, manner or place of performance or observance of, or in any other term of any of the Guaranteed Obligations at any time, and from time to time. Parent also expressly waives, and agrees that the Guaranteed Obligations will not be impaired by, any ineffectiveness of any agreement of, or consent, amendment or other modification by, any Covered Entity that is executed by Parent on such Covered Entity’s behalf. (d) Parent agrees that it shall not (i) exercise or assert any right which it may acquire by way of law, contract or subrogation with respect to its undertaking described in this Section 13.19 or otherwise related to the Guaranteed Obligations against any Seller, (ii) claim any setoff, recoupment or counterclaim against any Seller in respect of any liability of Parent to such Seller with respect to the Guaranteed Obligations or (iii) exercise or assert any contractual, statutory or legal or equitable rights of contribution, reimbursement, indemnification and similar rights and “claims” (as that term is defined in the Federal Bankruptcy Code) which Parent might now have or hereafter acquire against any Seller that arise from the existence or performance of Parent’s obligations under this Section 13.19, unless and until, in each case, all Guaranteed Obligations shall have been indefeasibly performed or observed in full. Parent hereby confirms, and agrees, that each Seller is, and will be, a Parent Affiliate. Parent represents and warrants to the Purchaser that it has adequate means to obtain from the Sellers, on a continuing basis, all information concerning the financial condition of the Sellers, and that it is not relying on the Purchaser to provide such information either now or in the future. (e) This Section 13.19 shall survive the insolvency of any Seller or any other Person and the commencement of any case or proceeding by or against any Seller or any other Person under any bankruptcy, insolvency, reorganization or other similar law. Parent’s obligations hereunder shall continue in full force and effect until all Guaranteed Obligation are finally and indefeasibly performed, observed and satisfied in full and this Agreement is terminated. (f) It is expressly acknowledged that Parent’s obligations under this Section 13.19 do not constitute a guarantee of the payment of any Purchased Receivables and there shall be no recourse to Parent for any non-payment, reduced payment or slow payment of any Purchased Receivables to the extent resulting from a Credit Risk Event or for any Guaranteed Obligations the payment of which could otherwise constitute recourse to Parent for Purchased Receivables that are or become uncollectible to the extent resulting from a Credit Risk Event.

Performance Undertaking. (a) Parent We hereby unconditionally and irrevocably undertakes agree with and assures undertake to the Seller and its assigns that we will ensure that the Originator shall at all times have sufficient funds, whether it be by capital contribution, loan to the Originator, arrangement with third parties to provide funds to the Originator or otherwise (as a primary obligor and not merely as surety) in each case remitted to an account specified by the Seller for the benefit of Purchaser the due Originator), to enable the Originator to make full and punctual performance prompt payment and observance perform and observe all covenants, agreements, terms, conditions and indemnities under and pursuant to the Purchase Agreement and each other document executed and delivered by each Seller the Originator pursuant to or in connection with the Purchase Agreement (together with their respective successors and assigns, collectively, the “Covered Entities”"Obligations"). The Obligations shall include, and eachwithout limitation, a “Covered Entity”) all obligations of the termsOriginator as "Sub-Servicer" under the Purchase Agreement. The Seller shall be at liberty, covenants, indemnities, conditions, agreements, undertakings without giving notice to us or obtaining our assent and obligations on the part without relieving us of such Covered Entity to be performed or observed by it any of our liabilities under this Agreement, to deal with the related Participation Agreement Originator and with each of other party who now is or after the other Transaction Documents to which such Covered Entity is a party, including any agreement or obligation of such Covered Entity to make any payment in respect of any Repurchase Event or indemnity, in each case on the terms and subject to the conditions and limitations set forth in this Agreement, the related Participation Agreement and the applicable Transaction Documents as the same shall be amended, restated, supplemented or otherwise modified and in effect from time to time (all such terms, covenants, indemnities, conditions, agreements, undertakings and obligations on the part of the Covered Entities to be paid, performed or observed by them, collectively the “Guaranteed Obligations”). Without limiting the generality of the foregoing, Parent agrees that if any Covered Entity shall fail date hereof becomes obligated in any manner whatsoever to perform or observe for any of the Obligations, in such manner as the Seller in its Guaranteed Obligations when sole discretion deems fit, and to this end we agree that the same validity and enforceability of this Agreement shall not be required to be performed impaired or observed under this Agreementaffected by any of the following: (a) any waiver, extension, modification or renewal of, or indulgence with respect to, or substitutions for, the related Participation Agreement and Obligations or any applicable Transaction Document, then Parent will itself duly and punctually perform part thereof or observe, or cause to be performed or observed, such Guaranteed Obligations. any agreement relating thereto at any time; (b) Parent expressly agrees that its obligations hereunder shall be absoluteany failure or omission to enforce any right, irrevocable and unconditional, and as such, it shall not be a condition power or remedy with respect to the accrual of any obligation of Parent hereunder to perform or to observe, or to cause to be performed or observed any Guaranteed Obligation that Purchaser Obligations or any other Person shall have first made any request of or demand upon or given any notice to Parent, any Covered Entity part thereof or any of their respective successors and assigns or have initiated any action or proceeding against Parent, any Covered Entity or any of their respective successors and assigns in respect thereof. Purchaser may proceed to enforce the obligations of Parent under this Section 13.19 without first pursuing or exhausting any right or remedy which Purchaser may have against any Covered Entity, any other Person, the Purchased Receivables or any other property. (c) Parent hereby expressly waives any defenses it may have as a guarantor or a surety generally or otherwise based upon suretyship, impairment of collateral or otherwise in connection with the Guaranteed Obligations whether in equity or at law or by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect. Parent hereby also expressly waives acceptance, diligence, presentment, demand, protest or notice of any kind whatsoever, as well as any requirement that the Purchaser exhausts any right to take any action against any Seller or any other Person (including the filing of any claims in the event of a receivership or bankruptcy of any of the foregoing)agreement relating thereto, or with respect to any propertycollateral securing the Obligations or any part thereof, collateral (c) the existence of any claim, set-off or collateral security other rights which we may have at any time securing against the Originator in connection herewith or any ofunrelated transaction; or (d) any failure on the part of the Originator to perform or comply with any term of the Purchase Agreement or any other document executed in connection therewith or delivered thereunder, all whether or related tonot we shall have had notice or knowledge of any act or omission referred to in the foregoing clauses (a) through (d). This Agreement is absolute, unconditional and continuing and is in no way conditioned upon any requirement that the Seller first take any action against the Originator with respect to the Obligations or proceed against any collateral security, any balance of any deposit account or credit on the books of the Seller in favor of the Originator, any guarantor of the Obligations or any other Person. Our liability under this Agreement shall be absolute and unconditional irrespective of (i) any lack of validity or enforceability of any material provision of the Purchase Agreement, the Guaranteed ObligationsInvestor Agreement or any other document executed in connection therewith or delivered thereunder, and hereby consents to any and all extensions of time of the due performance or observance of any or all of the Guaranteed Obligations and that its obligations hereunder remain irrespective of (ii) any change of in the time, manner or place of performance or observance payment of, or in any other term of of, all or any of the Guaranteed Obligations, or any other amendment or waiver of or any consent to departure from the Purchase Agreement, the Investor Agreement or any other document executed in connection therewith or delivered thereunder, (iii) any taking, exchange, release or non- perfection of any collateral, or any taking, release or amendment or waiver of or consent to departure from any other guaranty, for all or any of the Obligations, (iv) any law, regulation or order of any jurisdiction affecting any term of all or any Obligations at or the rights of the Seller, (v) any timemanner of application of collateral, or proceeds thereof to all or any of the Obligations, or any manner of sale or other disposition of any collateral for all or any of the Obligations or any other assets of the Originator, (vi) any change, restructuring or termination of the corporate structure or existence of the Originator, or (vii) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Originator or a guarantor. Our Obligations hereunder shall not be stayed, discharged or modified by any insolvency, bankruptcy or reorganization of the Originator. This Agreement shall be in addition to any guaranty or security for the Obligations, and from time to time. Parent also expressly waives, and agrees that the Guaranteed Obligations will not be impaired by, any ineffectiveness of any agreement of, or consent, amendment or other modification by, any Covered Entity that is executed by Parent on such Covered Entity’s behalf. (d) Parent agrees that it shall not (i) exercise be rendered unenforceable by the invalidity, release or assert modification at any right which it may acquire by way of law, contract or subrogation with respect to its undertaking described in this Section 13.19 or otherwise related to the Guaranteed Obligations against any Seller, (ii) claim any setoff, recoupment or counterclaim against any Seller in respect time of any liability of Parent to such Seller with respect to the Guaranteed Obligations guaranty or (iii) exercise or assert any contractualsecurity. We, statutory or legal or equitable rights of contribution, reimbursement, indemnification and similar rights and “claims” (as agree that term is defined in the Federal Bankruptcy Code) which Parent might now have or hereafter acquire against any Seller that arise from the existence or performance of Parent’s our obligations under this Section 13.19, unless and until, in each case, all Guaranteed Obligations shall have been indefeasibly performed or observed in full. Parent hereby confirms, and agrees, that each Seller is, and will be, a Parent Affiliate. Parent represents and warrants to the Purchaser that it has adequate means to obtain from the Sellers, on a continuing basis, all information concerning the financial condition of the Sellers, and that it is not relying on the Purchaser to provide such information either now or in the future. (e) This Section 13.19 shall survive the insolvency of any Seller or any other Person and the commencement of any case or proceeding by or against any Seller or any other Person under any bankruptcy, insolvency, reorganization or other similar law. Parent’s obligations hereunder Agreement shall continue in full force and effect until all Guaranteed Obligation Obligations are finally and indefeasibly performed, observed and satisfied in full and the Purchase Agreement and the Investor Agreement are terminated, but we agree that our undertakings under this Agreement is terminated. (f) It is expressly acknowledged that Parent’s obligations under this Section 13.19 do not constitute a guarantee win be reinstated, if at any time the satisfaction of any of the payment Obligations is rescinded or must otherwise be restored or returned, as though such satisfaction had not occurred. In the event that we fail to perform any of any Purchased Receivables and there shall be no recourse our obligations in this Agreement, we further agree, to Parent for any non-payment, reduced payment or slow payment of any Purchased Receivables pay to the extent resulting from a Credit Risk Event or for any Guaranteed Obligations Seller forthwith upon demand all reasonable costs and expenses (including court costs and legal expenses) incurred by the payment of which could otherwise constitute recourse to Parent for Purchased Receivables that are or become uncollectible to Seller in connection with the extent resulting from a Credit Risk Eventenforcement Of this Agreement.

Performance Undertaking. (a) Parent hereby unconditionally and irrevocably undertakes and assures (as a primary obligor and not merely as surety) for the benefit The provisions of Purchaser the due and punctual performance and observance by each Seller (together with their respective successors and assigns, collectively, the “Covered Entities”this Undertaking are severable, and each, a “Covered Entity”) of the terms, covenants, indemnities, conditions, agreements, undertakings and obligations on the part of such Covered Entity to be performed or observed by it under this Agreement, the related Participation Agreement and each of the other Transaction Documents to which such Covered Entity is a party, including any agreement or obligation of such Covered Entity to make any payment in respect of any Repurchase Event or indemnity, in each case on the terms and subject to the conditions and limitations set forth in this Agreement, the related Participation Agreement and the applicable Transaction Documents as the same shall be amended, restated, supplemented or otherwise modified and in effect from time to time (all such terms, covenants, indemnities, conditions, agreements, undertakings and obligations on the part of the Covered Entities to be paid, performed or observed by them, collectively the “Guaranteed Obligations”). Without limiting the generality of the foregoing, Parent agrees that if any Covered Entity shall fail in any manner whatsoever to perform or observe any of its Guaranteed Obligations when the same shall be required to be performed or observed under this Agreement, the related Participation Agreement and any applicable Transaction Document, then Parent will itself duly and punctually perform or observe, or cause to be performed or observed, such Guaranteed Obligations. (b) Parent expressly agrees that its obligations hereunder shall be absolute, irrevocable and unconditional, and as such, it shall not be a condition to the accrual of any obligation of Parent hereunder to perform or to observe, or to cause to be performed or observed any Guaranteed Obligation that Purchaser or any other Person shall have first made any request of or demand upon or given any notice to Parent, any Covered Entity or any of their respective successors and assigns or have initiated any action or proceeding against Parentinvolving any state corporate law, any Covered Entity or any of their respective successors and assigns in respect thereof. Purchaser may proceed to enforce the obligations of Parent under this Section 13.19 without first pursuing state or exhausting any right or remedy which Purchaser may have against any Covered Entity, any other Person, the Purchased Receivables or any other property. (c) Parent hereby expressly waives any defenses it may have as a guarantor or a surety generally or otherwise based upon suretyship, impairment of collateral or otherwise in connection with the Guaranteed Obligations whether in equity or at law or by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect. Parent hereby also expressly waives acceptance, diligence, presentment, demand, protest or notice of any kind whatsoever, as well as any requirement that the Purchaser exhausts any right to take any action against any Seller or any other Person (including the filing of any claims in the event of a receivership or bankruptcy of any of the foregoing), or with respect to any property, collateral or collateral security at any time securing any of, or related to, the Guaranteed Obligations, and hereby consents to any and all extensions of time of the due performance or observance of any or all of the Guaranteed Obligations and that its obligations hereunder remain irrespective of any change of the time, manner or place of performance or observance of, or in any other term of any of the Guaranteed Obligations at any time, and from time to time. Parent also expressly waives, and agrees that the Guaranteed Obligations will not be impaired by, any ineffectiveness of any agreement of, or consent, amendment or other modification by, any Covered Entity that is executed by Parent on such Covered Entity’s behalf. (d) Parent agrees that it shall not (i) exercise or assert any right which it may acquire by way of law, contract or subrogation with respect to its undertaking described in this Section 13.19 or otherwise related to the Guaranteed Obligations against any Seller, (ii) claim any setoff, recoupment or counterclaim against any Seller in respect of any liability of Parent to such Seller with respect to the Guaranteed Obligations or (iii) exercise or assert any contractual, statutory or legal or equitable rights of contribution, reimbursement, indemnification and similar rights and “claims” (as that term is defined in the Federal Bankruptcy Code) which Parent might now have or hereafter acquire against any Seller that arise from the existence or performance of Parent’s obligations under this Section 13.19, unless and until, in each case, all Guaranteed Obligations shall have been indefeasibly performed or observed in full. Parent hereby confirms, and agrees, that each Seller is, and will be, a Parent Affiliate. Parent represents and warrants to the Purchaser that it has adequate means to obtain from the Sellers, on a continuing basis, all information concerning the financial condition of the Sellers, and that it is not relying on the Purchaser to provide such information either now or in the future. (e) This Section 13.19 shall survive the insolvency of any Seller or any other Person and the commencement of any case or proceeding by or against any Seller or any other Person under any federal bankruptcy, insolvency, reorganization or other similar law. Parentlaw affecting the rights of creditors generally, if the obligations of the Performance Guarantor hereunder would otherwise be held or determined to be avoidable, invalid or unenforceable on account of the amount of Performance Guarantor’s obligations hereunder shall continue in full force and effect until all Guaranteed Obligation are finally and indefeasibly performed, observed and satisfied in full and this Agreement is terminated. (f) It is expressly acknowledged that Parent’s obligations liability under this Section 13.19 do not constitute a guarantee Undertaking, then, notwithstanding any other provision of this Undertaking to the payment contrary, the amount of such liability shall, without any Purchased Receivables further action by Performance Guarantor or Recipient, be automatically limited and there shall reduced to the highest amount that is valid and enforceable as determined in such action or proceeding. Any provisions of this Undertaking which are prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be no recourse to Parent for any non-payment, reduced payment or slow payment of any Purchased Receivables ineffective to the extent resulting from of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Unless otherwise specified, references herein to “Section” shall mean a Credit Risk Event reference to sections of this Undertaking. This Undertaking may be executed in any number of counterparts and by different parties on separate counterparts, each of which, when executed and delivered, shall be deemed to be an original, and all of which, when taken together, shall constitute but one and the same agreement. To the fullest extent permitted by applicable law, delivery of an executed counterpart of this Undertaking by telefacsimile or for any Guaranteed Obligations the payment of which could otherwise constitute recourse to Parent for Purchased Receivables that are or become uncollectible electronic image scan transmission (such as a “pdf” file) will be effective to the same extent resulting from as delivery of a Credit Risk Eventmanually executed original counterpart of this Undertaking. Any party delivering an executed counterpart of this Undertaking by telefacsimile or other electronic method of transmission also shall deliver an original executed counterpart of this Undertaking, but the failure to deliver an original executed counterpart shall not affect the validity, enforceability, and binding effect of this Undertaking.