GENERAL CONTINUING GUARANTY
Exhibit 10.14
This GENERAL CONTINUING GUARANTY (this “Guaranty”), dated as of June 10, 2010, is
executed and delivered by Fortegra Financial Corporation, a Georgia corporation
(“Guarantor”), in favor of Xxxxx Fargo Capital Finance, LLC., a Delaware limited liability
company (“Lender”), in light of the following:
WHEREAS, South Bay Acceptance Corporation, a California corporation (“Borrower”), and
Lender are, contemporaneously herewith, entering into that certain Loan and Security Agreement of
even date herewith (as amended, restated, amended and restated, modified, renewed or extended from
time to time, the “Loan Agreement”);
WHEREAS, pursuant to the Loan Agreement, Lender has agreed to make certain loans or other
financial accommodations on the Closing Date to or for the benefit of Borrower;
WHEREAS, Borrower is a wholly-owned subsidiary of Guarantor;
WHEREAS, Guarantor will benefit by virtue of the financial accommodations extended to Borrower
by Lender pursuant to the Loan Agreement; and
WHEREAS, in order to induce Lender to enter into the Loan Agreement and the other Loan
Documents and to extend the financial accommodations to Borrower pursuant to the Loan Agreement,
and in consideration thereof, Guarantor has agreed to guaranty the Guarantied Obligations subject
to the terms and conditions set forth in this Guaranty.
NOW, THEREFORE, in consideration of the foregoing, Guarantor hereby agrees as follows:
1. Definitions and Construction.
(a) Definitions. Capitalized terms used herein and not otherwise defined herein shall
have the meanings ascribed to them in the Loan Agreement. The following terms, as used in this
Guaranty, shall have the following meanings:
“Borrower” has the meaning set forth in the preamble to this Guaranty.
“Guarantied Losses” has the meaning set forth in Section 2 of this Guaranty.
“Guarantied Obligations” means the Obligations (other than Bank Product Obligations)
owed by Borrower to Lender pursuant to the terms of the Loan Agreement or any other Loan Document.
“Guarantor” has the meaning set forth in the preamble to this Guaranty.
“Guaranty” has the meaning set forth in the preamble to this Guaranty.
“Lender” has the meaning set forth in the preamble to this Guaranty.
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“Loan Agreement” has the meaning set forth in the recitals to this Guaranty.
“Voidable Transfer” has the meaning set forth in Section 9 of this Guaranty.
(b) Construction. Unless the context of this Guaranty clearly requires otherwise,
references to the plural include the singular, references to the singular include the plural, the
terms “includes” and “including” are not limiting, and the term “or” is not exclusive. The words
“hereof,” “herein,” “hereby,” “hereunder,” and similar terms in this Guaranty refer to this
Guaranty as a whole and not to any particular provision of this Guaranty. Section, subsection,
clause, schedule, and exhibit references herein are to this Guaranty unless otherwise specified.
Any reference in this Guaranty to any agreement, instrument, or document shall include all
alterations, amendments, restatements, amendments and restatements, changes, extensions,
modifications, renewals, replacements, substitutions, joinders, and supplements, thereto and
thereof, as applicable (subject to any restrictions on such alterations, amendments, restatements,
amendments and restatements, changes, extensions, modifications, renewals, replacements,
substitutions, joinders, and supplements set forth herein). Neither this Guaranty nor any
uncertainty or ambiguity herein shall be construed against Lender or Borrower, whether under any
rule of construction or otherwise. On the contrary, this Agreement has been reviewed by all
parties and shall be construed and interpreted according to the ordinary meaning of the words used
so as to accomplish fairly the purposes and intentions of all parties hereto. Any reference herein
to the satisfaction or payment in full of the Guarantied Obligations shall mean the payment in full
in cash of all Guarantied Obligations other than any contingent indemnification Guarantied
Obligations. Any reference herein to any Person shall be construed to include such Person’s
successors and assigns. Any requirement of a writing contained herein shall be satisfied by the
transmission of a Record and any Record transmitted shall constitute a representation and warranty
as to the accuracy and completeness of the information contained therein.
2. Guarantied Obligations. Guarantor hereby irrevocably and unconditionally
guaranties to Lender, for the benefit of Lender, as and for its own debt, until payment in full
thereof has been made, the payment of the Guarantied Obligations, when and as the same shall become
due and payable, whether at maturity, pursuant to a mandatory prepayment requirement, by
acceleration, or otherwise; it being the intent of Guarantor that the guaranty set forth herein
shall be a guaranty of payment and not a guaranty of collection; provided, however,
that the liability of Guarantor under this Guaranty shall be limited to the amount of all losses in
respect of the Guarantied Obligations incurred by Lender that are the result of fraudulent activity
by Borrower or any of its Affiliates as determined by a court of competent jurisdiction in a final
judgment (“Guarantied Losses”).
3. Continuing Guaranty. This Guaranty includes Guarantied Losses arising under
successive transactions continuing, extending, increasing, modifying, or renewing the Guarantied
Obligations, changing the interest rate, payment terms, or other terms and conditions thereof, or
creating new or additional Guarantied Obligations after prior Guarantied Obligations have been
satisfied in whole or in part. To the maximum extent permitted by law, Guarantor hereby waives any
right to revoke this Guaranty as to future Guarantied Obligations. If such a revocation is
effective notwithstanding the foregoing waiver, Guarantor acknowledges and agrees that (a) no such
revocation shall be effective until written notice thereof has been received by Lender, (b) no
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such revocation shall apply to any Guarantied Obligations in existence on such date (including
any subsequent continuation, extension, or renewal thereof, or change in the interest rate, payment
terms, or other terms and conditions thereof), and (c) no such revocation shall apply to any
Guarantied Obligations made or created after such date to the extent made or created pursuant to a
legally binding commitment of Lender in existence on the date of such revocation.
4. Performance Under this Guaranty. In the event that any Guarantied Losses are
incurred by Lender, Guarantor immediately upon written demand therefor setting forth in reasonable
detail the calculation of the Guarantied Losses shall pay to Lender, in immediately available
funds, the respective amount(s) of such Guarantied Losses.
5. Other Guarantors. Guarantor hereby agrees (a) that the obligations of Guarantor
hereunder are independent of the obligations of any other guarantor, and (b) that a separate action
may be brought against Guarantor, whether such action is brought against any other guarantor or
whether any other guarantor is joined in such action. Guarantor hereby agrees that its liability
hereunder shall be immediate and shall not be contingent upon the exercise or enforcement by Lender
of whatever remedies Lender may have against any other guarantor. Guarantor hereby agrees that any
release which may be given by Lender to any other guarantor shall not release Guarantor. Guarantor
consents and agrees that Lender shall not be under any obligation to marshal any property or assets
of any other guarantor in favor of Guarantor, or against or in payment of any or all of the
Guarantied Obligations.
6. Waivers.
(a) To the fullest extent permitted by applicable law, Guarantor hereby waives: (i) notice of
acceptance hereof; (ii) notice of any loans or other financial accommodations made or extended
under the Loan Agreement, or the creation or existence of any Guarantied Obligations; (iii) notice
of the amount of the Guarantied Obligations, subject, however, to Guarantor’s right to make inquiry
of Lender to ascertain the amount of the Guarantied Obligations at any reasonable time; (iv) notice
of any adverse change in the financial condition of Borrower or of any other fact that might
increase Guarantor’s risk hereunder; (v) notice of presentment for payment, demand, protest, and
notice thereof as to any instrument among the Loan Documents; (vi) notice of any Default or Event
of Default under the Loan Agreement; and (vii) all other notices (except if such notice is
specifically required to be given to Guarantor under this Guaranty or any other Loan Documents to
which Guarantor is a party) and demands to which Guarantor might otherwise be entitled.
(b) Guarantor agrees that it is bound to the payment of each and all Guarantied Losses,
whether now existing or hereafter arising, as fully as if the Guarantied Losses were directly owing
to Lender by Guarantor. Guarantor further waives any defense arising by reason of any disability
or other defense (other than the defense that the Guarantied Obligations shall have been performed
and paid in cash, to the extent of such payment) of Borrower or by reason of the cessation from any
cause whatsoever of the liability of Borrower in respect thereof.
(c) To the fullest extent permitted by applicable law, Guarantor hereby waives: (i) any right
to assert against Lender any defense (legal or equitable), set-off, counterclaim, or claim which
Guarantor may now or at any time hereafter have against Borrower
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or any other party liable to Lender; (ii) any defense, set-off, counterclaim, or claim, of any
kind or nature, arising directly or indirectly from the present or future lack of perfection,
sufficiency, validity, or enforceability of the Guarantied Obligations or any security therefor;
(iii) any right or defense arising by reason of any claim or defense based upon an election of
remedies by Lender; (iv) the benefit of any statute of limitations affecting Guarantor’s liability
hereunder or the enforcement thereof, and any act which shall defer or delay the operation of any
statute of limitations applicable to the Guarantied Obligations shall similarly operate to defer or
delay the operation of such statute of limitations applicable to Guarantor’s liability hereunder.
(d) Until such time as all of the Obligations have been finally paid in full: (i) Guarantor
hereby waives and postpones any right of subrogation Guarantor has or may have as against Borrower
with respect to the Guarantied Obligations; (ii) Guarantor hereby waives and postpones any right to
proceed against Borrower or any other Person, now or hereafter, for contribution, indemnity,
reimbursement, or any other suretyship rights and claims (irrespective of whether direct or
indirect, liquidated or contingent), with respect to the Guarantied Obligations; and
(iii) Guarantor also hereby waives and postpones any right to proceed or to seek recourse against
or with respect to any property or asset of Borrower.
(e) If any of the Guarantied Obligations or the obligations of Guarantor under this Guaranty
at any time are secured by a mortgage or deed of trust upon real property, Lender may elect, in its
sole discretion, upon a default with respect to the Guarantied Obligations or the obligations of
Guarantor under this Guaranty, to foreclose such mortgage or deed of trust judicially or
nonjudicially in any manner permitted by law, before or after enforcing this Guaranty, without
diminishing or affecting the liability of Guarantor hereunder. Guarantor understands that (a) by
virtue of the operation of antideficiency law applicable to nonjudicial foreclosures, an election
by Lender to nonjudicially foreclose on such a mortgage or deed of trust probably would have the
effect of impairing or destroying rights of subrogation, reimbursement, contribution, or indemnity
of Guarantor against Borrower or other guarantors or sureties, and (b) absent the waiver given by
Guarantor herein, such an election would estop Lender from enforcing this Guaranty against
Guarantor. Understanding the foregoing, and understanding that Guarantor hereby is relinquishing a
defense to the enforceability of this Guaranty, Guarantor hereby waives any right to assert against
Lender any defense to the enforcement of this Guaranty, whether denominated “estoppel” or
otherwise, based on or arising from an election by Lender to nonjudicially foreclose on any such
mortgage or deed of trust. Guarantor understands that the effect of the foregoing waiver may be
that Guarantor may have liability hereunder for amounts with respect to which Guarantor may be left
without rights of subrogation, reimbursement, contribution, or indemnity against Borrower or other
guarantors or sureties. Guarantor also agrees that the “fair market value” provisions of
Section 580a of the California Code of Civil Procedure or any similar laws of any other applicable
jurisdiction shall have no applicability with respect to the determination of Guarantor’s liability
under this Guaranty.
(f) Without limiting the generality of any other waiver or other provision set forth in this
Guaranty, Guarantor waives all rights and defenses that Guarantor may have if all or part of the
Guarantied Obligations are secured by real property. This means, among other things:
(i) Lender may collect from Guarantor without first foreclosing on any real or personal
property collateral that may be pledged by Guarantor or any other guarantor.
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(ii) If Lender forecloses on any real property collateral that may be pledged by Guarantor,
Borrower or any other guarantor:
(1) The amount of the Guarantied Obligations or any obligations of any Guarantor in respect
thereof may be reduced only by the price for which that collateral is sold at the foreclosure sale,
even if the collateral is worth more than the sale price.
(2) Lender may collect from Guarantor even if Lender, by foreclosing on the real property
collateral, has destroyed any right Guarantor may have to collect from Borrower or any other
Guarantor.
This is an unconditional and irrevocable waiver of any rights and defenses Guarantor may have
if all or part of the Guarantied Obligations are secured by real property.
(g) Without limiting the generality of any other waiver or other provision set forth in this
Guaranty, Guarantor hereby waives, to the maximum permitted by law, any and all benefits or
defenses arising directly or indirectly under any one or more of California Civil Code §§ 2787
through and including § 2855, California Code of Civil Procedure §§ 580a, 580b, 580c, 580d,
and 726, and Chapter 2 of Title 14 of the California Civil Code or any similar laws of any other
applicable jurisdiction,
(h) Without limiting the generality of any other waiver or other provision set forth in this
Guaranty, Guarantor waives all rights and defenses arising out of an election of remedies by
Lender, even though such election of remedies, such as a nonjudicial foreclosure with respect to
security for the Guarantied Obligations, has destroyed Guarantor’s rights of subrogation and
reimbursement against Borrower by the operation of applicable law, including §580d of the
California Code of Civil Procedure or any similar laws of any other applicable jurisdiction.
(i) Without limiting the generality of any other waiver or other provision set forth in this
Guaranty, Guarantor hereby agrees as follows:
(1) Lender’s right to enforce this Guaranty is absolute and is not contingent upon the
genuineness, validity or enforceability of any of the Loan Documents. Guarantor waives all
benefits and defenses it may have under California Civil Code Section 2810 or any similar laws in
any other applicable jurisdiction and agrees that Lender’s rights under this Guaranty shall be
enforceable even if Borrower had no liability at the time of execution of the Loan Documents or
later ceases to be liable.
(2) Guarantor waives all benefits and defenses it may have under California Civil Code
Section 2809 or any similar laws in any other applicable jurisdiction with respect to its
obligations under this Guaranty and agrees that Lender’s rights under the Loan Documents will
remain enforceable even if the amount secured by the Loan Documents is larger in amount and more
burdensome than that for which Borrower is responsible. The enforceability of this Guaranty
against Guarantor shall continue until all sums due under the Loan Documents have been paid in full
and such enforceability shall not be limited or affected in any way by any impairment or any
diminution or loss of value of any security or collateral for Borrower’s obligations under the Loan
Documents, from whatever cause, by the failure of any security
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interest in any such security or collateral or by any disability or other defense of Borrower,
any other guarantor of Borrower’s obligations under any other Loan Document, any pledgor of
collateral for any Person’s obligations to Lender or any other Person in connection with the Loan
Documents.
(3) Guarantor waives the right to require Lender to (A) proceed against any guarantor of
Borrower’s obligations under any Loan Document, any other pledgor of collateral for any Person’s
obligations to Lender or any other Person in connection with the Guarantied Obligations,
(B) proceed against or exhaust any other security or collateral Lender may hold, or (C) pursue any
other right or remedy for Guarantor’s benefit, and agrees that Lender may exercise its right under
this Guaranty without taking any action against any other guarantor of Borrower’s obligations under
the Loan Documents, any pledgor of collateral for any Person’s obligations to Lender or any other
Person in connection with the Guarantied Obligations, and without proceeding against or exhausting
any security or collateral Lender holds.
(4) The paragraphs in this Section 6 which refer to certain sections of the California
Civil Code are included in this Guaranty solely out of an abundance of caution and shall not be
construed to mean that any of the above-referenced provisions of California law are in any way
applicable to this Guaranty.
7. Releases. Guarantor consents and agrees that, without notice to or by Guarantor
and without affecting or impairing the obligations of Guarantor hereunder, Lender may, by action or
inaction, compromise or settle, extend the period of duration or the time for the payment, or
discharge the performance of, or may refuse to, or otherwise not enforce, or may, by action or
inaction, release all or any one or more parties to, any one or more of the terms and provisions of
the Loan Agreement or any other Loan Document or may grant other indulgences to Borrower in respect
thereof, or may amend or modify in any manner and at any time (or from time to time) any one or
more of the Loan Agreement or any other Loan Document, or may, by action or inaction, release or
substitute any other guarantor, if any, of the Guarantied Obligations, or may enforce, exchange,
release, or waive, by action or inaction, any security for the Guarantied Obligations or any other
guaranty of the Guarantied Obligations, or any portion thereof.
8. No Election. Lender shall have the right to seek recourse against Guarantor for
the Guarantied Losses to the fullest extent provided for herein and no election by Lender to
proceed in one form of action or proceeding, or against any party, or on any obligation, shall
constitute a waiver of Lender’s right to proceed in any other form of action or proceeding or
against other parties unless Lender has expressly waived such right in writing. Specifically, but
without limiting the generality of the foregoing, no action or proceeding by Lender under any
document or instrument evidencing the Guarantied Obligations shall serve to diminish the liability
of Guarantor under this Guaranty except to the extent that Lender shall have realized payment in
full of the Guarantied Obligations by such action or proceeding.
9. Revival and Reinstatement. If the incurrence or payment of the Guarantied
Obligations or the obligations of Guarantor under this Guaranty by Guarantor or the transfer by
Guarantor to Lender of any property of Guarantor should for any reason subsequently be
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declared to be void or voidable under any state or federal law relating to creditors’ rights,
including provisions of the Bankruptcy Code relating to fraudulent conveyances, preferences, or
other voidable or recoverable payments of money or transfers of property (collectively, a
“Voidable Transfer”), and if Lender is required to repay or restore, in whole or in part,
any such Voidable Transfer, or elects to do so upon the reasonable advice of its counsel, then, as
to any such Voidable Transfer, or the amount thereof that Lender is required or elects to repay or
restore, and as to all reasonable costs, expenses, and attorneys fees of Lender related thereto,
the liability of Guarantor automatically shall be revived, reinstated, and restored and shall exist
as though such Voidable Transfer had never been made.
10. Financial Condition of Borrower. Guarantor represents and warrants to Lender that
it is currently informed of the financial condition of Borrower and of all other circumstances
which a diligent inquiry would reveal and which bear upon the risk of nonpayment of the Guarantied
Obligations. Guarantor further represents and warrants to Lender that it has read and understands
the terms and conditions of the Loan Agreement and each other Loan Document. Guarantor hereby
covenants that it will continue to keep itself informed of Borrower’s financial condition, the
financial condition of other guarantors, if any, and of all other circumstances which bear upon the
risk of nonpayment or nonperformance of the Guarantied Obligations.
11. Payments; Application. All payments to be made hereunder by Guarantor shall be
made in Dollars, in immediately available funds, and without deduction (whether for taxes or
otherwise) or offset and shall be applied to the Guarantied Obligations in accordance with the
terms of the Loan Agreement.
12. Attorneys’ Fees and Costs. Guarantor agrees to pay, on demand, all reasonable and
documented out-of-pocket attorneys’ fees and other costs and expenses which may be incurred by
Lender in connection with the enforcement of this Guaranty, irrespective of whether suit is
brought.
13. Notices. All notices and other communications hereunder to Lender shall be in
writing and shall be mailed, sent, or delivered in accordance with Section 12 of the Loan
Agreement. All notices and other communications hereunder to Guarantor shall be in writing and
shall be mailed, sent, or delivered to the address of Guarantor set forth in the Loan Agreement in
accordance with Section 12 of the Loan Agreement.
14. Cumulative Remedies. No remedy under this Guaranty, under the Loan Agreement, or
any other Loan Document is intended to be exclusive of any other remedy, but each and every remedy
shall be cumulative and in addition to any and every other remedy given under this Guaranty, under
the Loan Agreement, or any other Loan Document, and those provided by law. No delay or omission by
Lender to exercise any right under this Guaranty shall impair any such right nor be construed to be
a waiver thereof. No failure on the part of Lender to exercise, and no delay in exercising, any
right under this Guaranty shall operate as a waiver thereof; nor shall any single or partial
exercise of any right under this Guaranty preclude any other or further exercise thereof or the
exercise of any other right.
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15. Severability of Provisions. Each provision of this Guaranty shall be severable
from every other provision of this Guaranty for the purpose of determining the legal enforceability
of any specific provision.
16. Entire Agreement; Amendments. This Guaranty constitutes the entire agreement
between Guarantor and Lender pertaining to the subject matter contained herein. This Guaranty may
not be altered, amended, or modified, nor may any provision hereof be waived or noncompliance
therewith consented to, except by means of a writing executed by Guarantor and Lender. Any such
alteration, amendment, modification, waiver, or consent shall be effective only to the extent
specified therein and for the specific purpose for which given. No course of dealing and no delay
or waiver of any right or default under this Guaranty shall be deemed a waiver of any other,
similar or dissimilar, right or default or otherwise prejudice the rights and remedies hereunder.
17. Successors and Assigns. This Guaranty shall be binding upon Guarantor and its
successors and assigns and shall inure to the benefit of the successors and permitted assigns of
Lender; provided, however, Guarantor shall not assign this Guaranty or delegate any
of its duties hereunder without Lender’s prior written consent and any unconsented to assignment
shall be absolutely void. In the event of any permitted assignment or other transfer of rights by
Lender under the Loan Documents, the rights and benefits herein conferred upon Lender shall
automatically extend to and be vested in such assignee or other transferee.
18. No Third Party Beneficiary. This Guaranty is solely for the benefit of Lender,
and each of its successors and permitted assigns, and may not be relied on by any other Person.
19. CHOICE OF LAW AND VENUE; JURY TRIAL WAIVER.
THE VALIDITY OF THIS GUARANTY, THE CONSTRUCTION, INTERPRETATION, AND ENFORCEMENT HEREOF, AND
THE RIGHTS OF THE PARTIES HERETO WITH RESPECT TO ALL MATTERS ARISING HEREUNDER OR RELATED HERETO
SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.
THE PARTIES AGREE THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THIS GUARANTY
SHALL BE TRIED AND LITIGATED ONLY IN THE STATE AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
FEDERAL COURTS LOCATED IN THE COUNTY OF NEW YORK, STATE OF NEW YORK; PROVIDED, HOWEVER, THAT ANY
SUIT SEEKING ENFORCEMENT AGAINST ANY COLLATERAL OR OTHER PROPERTY MAY BE BROUGHT, AT LENDER’S
OPTION, IN THE COURTS OF ANY JURISDICTION WHERE SUCH COLLATERAL OR OTHER PROPERTY MAY BE FOUND.
GUARANTOR AND LENDER WAIVE, TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, ANY RIGHT EACH MAY HAVE
TO ASSERT THE DOCTRINE OF FORUM NON CONVENIENS OR TO OBJECT TO VENUE TO THE EXTENT ANY PROCEEDING
IS BROUGHT IN ACCORDANCE WITH THIS SECTION 19.
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GUARANTOR AND LENDER HEREBY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED
HEREIN, INCLUDING CONTRACT CLAIMS, TORT CLAIMS, BREACH OF DUTY CLAIMS, AND ALL OTHER COMMON LAW OR
STATUTORY CLAIMS. GUARANTOR AND LENDER REPRESENT THAT EACH HAS REVIEWED THIS WAIVER AND EACH
KNOWINGLY AND VOLUNTARILY WAIVES ITS JURY TRIAL RIGHTS FOLLOWING CONSULTATION WITH LEGAL COUNSEL.
IN THE EVENT OF LITIGATION, A COPY OF THIS GUARANTY MAY BE FILED AS A WRITTEN CONSENT TO A TRIAL BY
THE COURT.
20. Counterparts; Electronic Execution. Delivery of an executed version of this
Guaranty by either (a) facsimile transmission or (b) electronic transmission in either Tagged Image
Format Files (TIFF) or Portable Document Format (PDF), shall be equally as effective as delivery of
a manually executed counterpart of this Guaranty. Any party delivering an executed version of this
Guaranty by facsimile transmission or electronic transmission also shall deliver an original
manually executed counterpart of this Guaranty but the failure to deliver an original executed
version shall not affect the validity, enforceability, and binding effect of this Guaranty.
[Signature page to follow]
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IN WITNESS WHEREOF, the undersigned has executed and delivered this General Continuing
Guaranty as of the date first written above.
| FORTEGRA FINANCIAL CORPORATION, a Georgia corporation |
||||
| By: | /s/ Xxxxxxx Xxxxx | |||
| Name: | Xxxxxxx Xxxxx | |||
| Title: | Treasurer | |||
