Unlimited Continuing Guaranty
Exhibit 2.3
This Unlimited Continuing Guaranty (the “Guaranty”) is made as of the 23rd day of
April, 2010, by Arcadia Resources, Inc., a Nevada corporation (the “Guarantor”), in favor
of H. D. ▇▇▇▇▇ Wholesale Drug Co., a Delaware corporation (the “Lender”), pursuant to that
certain Line of Credit and Security Agreement, as it may be amended, modified or supplemented from
time to time (the “Credit Agreement”) of even date herewith, between PrairieStone Pharmacy,
LLC, a Delaware limited liability company (the “Borrower”), and Lender. Unless otherwise
defined herein, capitalized terms used herein shall have the meanings ascribed to them in the
Credit Agreement.
Section 1. Guaranty.
(a) For value received and in consideration of any loan, advance or financial accommodation of
any kind whatsoever now or heretofore or hereafter made or granted to the Borrower by the Lender
pursuant to the Credit Agreement, the Guarantor, in accordance with this Guaranty, hereby
absolutely, unconditionally and irrevocably guarantees to the Lender, as if the Guarantor was the
principal debtor, the punctual payment and performance when due of all Obligations (which for
purposes of this Guaranty shall also be deemed to include all reasonable commissions, fees,
charges, costs and other expenses arising out of or incurred by the Lender in connection with the
enforcement of this Guaranty).
(b) This Guaranty and the obligations of the Guarantor hereunder are secured by the Pledge
Agreement by the Guarantor in favor of the Lender dated of even date herewith (the “Pledge
Agreement”).
Section 2. Continuing Guaranty; No Right of Set-Off; Independent Obligation.
(a) This Guaranty shall be a continuing guaranty of the payment and performance of all
Obligations and shall remain in full force and effect until the payment in full of all of the
Obligations and shall apply to and secure any ultimate balance due or remaining unpaid to the
Lender; and this Guaranty shall not be considered as wholly or partially satisfied by the payment
or liquidation at any time or from time to time of any sum of money for the time being due or
remaining unpaid to the Lender. The Guarantor covenants and agrees to comply with all obligations,
covenants, agreements and provisions applicable to it in this Guaranty. Without limiting the
generality of the foregoing, the Guarantor’s liability shall extend to all amounts which constitute
part of the Obligations and would be owed by the Borrower pursuant thereto but for the fact that
they are unenforceable, reduced, limited, impaired, suspended or not allowable due to the existence
of a bankruptcy, reorganization or similar proceeding involving the Borrower.
(b) The Guarantor hereby guarantees that the Obligations will be paid to the Lender without
set-off or counterclaim or other reduction whatsoever (whether for taxes, withholding or otherwise)
in lawful currency of the United States of America.
(c) All payments by the Guarantor under this Guaranty shall be made free and clear of, and
without deduction or withholding for, any present or future Taxes.
(d) The Guarantor guarantees that the Obligations shall be paid strictly in accordance with
their terms regardless of any law, regulation or order now or hereafter in effect in any
jurisdiction affecting any of such terms or the rights of the Lender.
(e) The Guarantor’s liability to pay or perform or cause the performance of the Obligations
shall arise forthwith after demand for payment or performance by the Lender has been given to the
Guarantor in the manner prescribed in Section 24 hereof.
(f) Except as provided herein, the provisions of this Guaranty cover all agreements between
the parties hereto relative to this Guaranty and none of the parties shall be bound by any
representation, warranty or promise made by any Person relative thereto which is not embodied
herein; and it is specifically acknowledged and agreed that this Guaranty has been delivered by the
Guarantor free of any conditions whatsoever and that no representations, warranties or promises
have been made to the Guarantor affecting its liabilities hereunder, and that the Lender shall not
be bound by any representations, warranties or promises now or at any time hereafter made by the
Borrower to the Guarantor.
(g) This Guaranty is a guarantee of payment, performance and compliance and not of
collectability and is in no way conditioned or contingent upon any attempt to collect from or
enforce performance or compliance by the Borrower or upon any event or condition whatsoever.
(h) The obligations of the Guarantor set forth herein constitute the full recourse obligations
of the Guarantor enforceable against it to the full extent of all its assets and properties.
Section 3. Guaranty Absolute.
The obligations of the Guarantor hereunder are independent of the obligations of the Borrower
under the Obligations and the Credit Agreement and the H. D. ▇▇▇▇▇ Primary Vendor Agreement between
the Borrower and the Lender (the “Prime Vendor Agreement”) and a separate action or actions may be
brought and prosecuted against the Guarantor whether or not an action or proceeding is brought
against the Borrower and whether or not the Borrower is joined in any such action or proceeding.
The liability of the Guarantor hereunder is irrevocable, absolute and unconditional and (to the
extent permitted by law) the liability and obligations of the Guarantor hereunder shall not be
released, discharged, mitigated, waived, impaired or affected in whole or in part by:
(a) any defect or lack of validity or enforceability in respect of any Indebtedness or other
obligation of the Borrower or any other Person under the Credit Agreement or the Prime Vendor
Agreement or the Obligations, or any agreement or instrument relating to any of the foregoing;
(b) any grants of time, renewals, extensions, indulgences, releases, discharges or
modifications which the Lender may extend to, or make with, the Borrower, the Guarantor or any
other Person, or any change in the time, manner or place of payment of, or in any other term of,
all or any of the Obligations, or any other amendment or waiver of, or any consent to or departure
from, this Guaranty, the Credit Agreement, the Prime Vendor Agreement or the Obligations, including
any increase or decrease in the Obligations;
(c) the taking of security from the Borrower, the Guarantor or any other Person, and the
release, discharge or alteration of, or other dealing with, such security;
(d) the occurrence of any change in the laws, rules, regulations or ordinances of any
jurisdiction by any present or future action of any governmental authority or court amending,
varying, reducing or otherwise affecting, or purporting to amend, vary, reduce or
otherwise affect, the Credit Agreement, the Prime Vendor Agreement any of the Obligations and
the obligations of the Guarantor hereunder;
(e) the abstention from taking security from the Borrower, the Guarantor or any other Person
or from perfecting, continuing to keep perfected or taking advantage of any security;
(f) any loss, diminution of value or lack of enforceability of any security received from the
Borrower, the Guarantor or any other Person, and including any other guarantees received by the
Lender;
(g) any other dealings with the Borrower, the Guarantor or any other Person, or with any
security;
(h) the Lender’s acceptance of compositions from the Borrower or the Guarantor;
(i) the application by the Lender of all monies at any time and from time to time received
from the Borrower, the Guarantor or any other Person on account of any indebtedness and liabilities
owing by the Borrower or the Guarantor to the Lender, in such manner as the Lender deems best and
the changing of such application in whole or in part and at any time or from time to time, or any
manner of application of collateral, or proceeds thereof, to all or any of the Obligations, or the
manner of sale of any collateral;
(j) the release or discharge of the Borrower or the Guarantor or of any Person liable directly
as surety or otherwise by operation of law or otherwise for the Obligations, other than an express
release in writing given by the Lender of the liability and obligations of the Guarantor hereunder;
(k) any change in the name, business, capital structure or governing instrument of the
Borrower or the Guarantor or any refinancing or restructuring of any of the Obligations;
(l) the sale of either Borrower’s business or any part thereof;
(m) any merger or consolidation, arrangement or reorganization of the Borrower, any Person
resulting from the merger or consolidation of the Borrower with any other Person or any other
successor to such Person or merged or consolidated Person or any other change in the corporate
existence, structure or ownership of the Borrower or any change in the corporate relationship
between the Borrower and the Guarantor, or any termination of such relationship;
(n) the insolvency, bankruptcy, liquidation, winding-up, dissolution, receivership,
arrangement, readjustment, assignment for the benefit of creditors or distribution of the assets of
the Borrower or its assets or any resulting discharge of any obligations of the Borrower (whether
voluntary or involuntary) or of the Guarantor (whether voluntary or involuntary) or the loss of
corporate existence;
(o) any arrangement or plan of reorganization affecting the Borrower or the Guarantor;
(p) any failure, omission or delay on the part of the Borrower to conform or comply with any
term of the Credit Agreement or the Prime Vendor Agreement;
(q) any limitation on the liability or obligations of the Borrower or any other Person under
this Guaranty, or any discharge, termination, cancellation, distribution, irregularity, invalidity
or unenforceability in whole or in part of this Guaranty;
(r) any other circumstance (including any statute of limitations) that might otherwise
constitute a defense available to, or discharge of, the Borrower or the Guarantor; or
(s) any modification, compromise, settlement or release by the Lender, or by operation of law
or otherwise, of the Obligations or the liability of the Borrower or any other obligor under the
Obligations, in whole or in part, and any refusal of payment by the Lender, in whole or in part,
from any other obligor or other guarantor in connection with any of the Obligations, whether or not
with notice to, or further assent by, or any reservation of rights against, the Guarantor.
Section 4. Right to Demand Full Performance.
In the event of any demand for payment or performance by the Lender from the Guarantor
hereunder, the Lender shall have the right to demand its full claim and to receive all dividends or
other payments in respect thereof until the Obligations have been paid in full, and the Guarantor
shall continue to be liable hereunder for any balance which may be owing to the Lender by the
Borrower under the Obligations. The retention by the Lender of any security, prior to the
realization by the Lender of its rights to such security upon foreclosure thereon, shall not, as
between the Lender, on one hand, and the Guarantor, on the other hand, be considered as a purchase
of such security, or as payment, satisfaction or reduction of the Obligations due to the Lender by
the Borrower or any part thereof. The Guarantor, promptly after demand, will reimburse the Lender
for all costs and expenses of collecting such amount under, or enforcing this Guaranty, including,
without limitation, the reasonable fees and expenses of counsel.
Section 5. Waivers.
(a) The Guarantor hereby expressly waives (to the extent permitted by law) notice of the
acceptance of this Guaranty and notice of the existence, renewal, extension or the non-performance,
non-payment, or non-observance on the part of the Borrower of any of the terms, covenants,
conditions and provisions of the Credit Agreement, the Prime Vendor Agreement or the Obligations or
any other notice whatsoever to or upon the Borrower or the Guarantor with respect to the
Obligations. The Guarantor hereby acknowledges communication to it of the terms of the Credit
Agreement, the Prime Vendor Agreement and the Obligations and all of the provisions therein
contained and consents to and approves the same. The Guarantor hereby expressly waives (to the
extent permitted by law) diligence, presentment, protest and demand for payment with respect to (i)
any notice of sale, transfer or other disposition of any right, title to or interest in the
Obligations by the Lender or in this Guaranty, (ii) any release of the Guarantor from its
obligations hereunder resulting from any loss by it of its rights of subrogation hereunder and
(iii) any other circumstances whatsoever that might otherwise constitute a legal or equitable
discharge, release or defense of a guarantor or surety or that might otherwise limit recourse
against the Guarantor.
(b) Without prejudice to any of the rights or recourses which the Lender may have against the
Borrower, the Guarantor hereby expressly waives (to the extent permitted by law) any right to
require the Lender to:
| (i) | enforce, assert, exercise, initiate or exhaust
any rights, remedies or recourse against the Borrower, the Guarantor or
any other Person under this Guaranty or the Credit Agreement or the
Prime Vendor Agreement or otherwise; |
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| (ii) | value, realize upon, or dispose of any security
of the Borrower or any other Person held by the Lender; |
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| (iii) | initiate or exhaust any other remedy which the
Lender may have in law or equity; or |
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| (iv) | mitigate the damages resulting from any default
under the Obligations or the Credit Agreement or the Prime Vendor
Agreement; |
before requiring or becoming entitled to demand payment from the Guarantor under this Guaranty.
Section 6. The Guarantor Remains Obligated in Event the Borrower is no Longer Obligated to
Discharge Obligations.
It is the express intention of the Lender and the Guarantor that if for any reason the
Borrower has no legal existence, or becomes under no legal obligation to discharge the Obligations
owing to the Lender by the Borrower or if any of the Obligations owing by the Borrower to the
Lender becomes irrecoverable from the Borrower by operation of law or for any reason whatsoever,
this Guaranty and the covenants, agreements and obligations of the Guarantor contained in this
Guaranty shall nevertheless be binding upon the Guarantor, as principal debtor, until such time as
all such Obligations have been paid in full to the Lender and all Obligations owing to the Lender
by the Borrower have been discharged, and the Guarantor shall be responsible for the payment
thereof to the Lender upon demand.
Section 7. Fraudulent Conveyance; Subrogation.
(a) Any term or provision of this Guaranty to the contrary notwithstanding, the aggregate
amount of the Obligations guaranteed hereunder shall be reduced to the extent necessary to prevent
this Guaranty from violating or becoming voidable under applicable law relating to fraudulent
conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
(b) The Guarantor Hereby Agrees Not To Assert Any Rights Of Subrogation Or Contribution,
Whether Arising By Contract Or Operation Of Law (Including, Without Limitation, Any Such Right
Arising Under Federal Bankruptcy Law) Or Otherwise By Reason Of Any Payment By It Pursuant To The
Provisions Of This Guaranty Until And Unless All Of The Obligations Have Been Paid In Full.
Section 8. Guaranty Is in Addition to Other Security.
This Guaranty shall be in addition to and not in substitution for any other guarantees or
other security which the Lender may now or hereafter hold in respect of the Obligations owing to
the Lender by the Borrower and (except as may be required by law) the Lender shall be under no
obligation to marshal in favor of the Guarantor any other guarantees or other security or any
moneys or other assets which the Lender may be entitled to receive or upon which the Lender may
have a claim.
Section 9. Release of Security Interests.
Without limiting the generality of the foregoing and except as otherwise provided in this
Guaranty, the Guarantor hereby consents and agrees, to the fullest extent permitted by applicable
law, that the rights of the Lender hereunder, and the liability of the Guarantor hereunder, shall
not be affected by any and all releases for any purpose of any collateral, if any, from the Liens
and security interests created by any collateral document and that this Guaranty shall continue to
be effective or be reinstated, as the case may be, if at any time any payment of any of the
Obligations is rescinded or must otherwise be returned by the Lender upon the insolvency,
bankruptcy or reorganization of the Borrower or otherwise, all as though such payment had not been
made.
Section 10. No Bar to Further Actions.
Except as provided by law, no action or proceeding brought or instituted under the Credit
Agreement, the Prime Vendor Agreement or this Guaranty and no recovery or judgment in pursuance
thereof shall be a bar or defense to any further action or proceeding which may be brought under
the Credit Agreement, the Prime Vendor Agreement or this Guaranty by reason of any further default
or defaults under the Credit Agreement, the Prime Vendor Agreement or Guaranty or in the payment of
any of the Obligations owing by the Borrower.
Section 11. Failure to Exercise Rights Shall Not Operate as a Waiver; No Suspension of
Remedies.
(a) No failure to exercise and no delay in exercising, on the part of the Lender, any right,
power, privilege or remedy under the Credit Agreement, the Prime Vendor Agreement or this Guaranty
shall operate as a waiver thereof, nor shall any single or partial exercise of any rights, power,
privilege or remedy preclude any other or further exercise thereof, or the exercise of any other
rights, powers, privileges or remedies. The rights and remedies herein provided for are cumulative
and not exclusive of any rights or remedies provided in law or equity.
(b) Nothing contained in this Guaranty shall limit the right of the Lender to take any action
to accelerate the maturity of the Obligations pursuant to the Credit Agreement or the Prime Vendor
Agreement or to pursue any rights or remedies hereunder or under applicable law.
Section 12. Lender’s Duties; Notice to Lender.
(a) Any provision in this Guaranty allowing the Lender to request any information or to take
any action authorized by, or on behalf of the Guarantor, shall be permissive and shall not be
obligatory on the Lender except where the failure of the Lender to request any such information or
to take any such action arises from the Lender’s gross negligence or willful misconduct.
(b) The Lender shall not be required to inquire into the existence, powers or capacities of
the Borrower, the Guarantor or the officers, directors or agents acting or purporting to act on
their respective behalf.
Section 13. Successors and Assigns.
All terms, agreements and conditions of this Guaranty shall extend to and be binding upon the
Guarantor and its successors and permitted assigns and shall inure to the benefit of and
may be enforced by the Lender and its successors and assigns; provided,
however, that the Guarantor may not assign any of its rights or obligations hereunder.
Section 14. Release of Guaranty.
Concurrently with the payment in full of all of the Obligations, the Guarantor shall be
released from and relieved of its obligations under this Guaranty. If any of the Obligations are
revived and reinstated after the termination of this Guaranty, then all of the obligations of the
Guarantor under this Guaranty shall be revived and reinstated as if this Guaranty had not been
terminated until such time as the Obligations are paid in full, and the Guarantor shall enter into
an amendment to this Guaranty, reasonably satisfactory to the Lender, evidencing such revival and
reinstatement.
Section 15. Representations and Warranties.
The Guarantor represents and warrants to the Lender as of the date hereof that:
| (i) | The Guarantor (a) has the requisite power and
authority to execute, deliver and perform this Guaranty and any other
document required to be delivered by it under the Credit Agreement or
the Prime Vendor Agreement, and (b) has duly executed and delivered
this Guaranty which constitutes the legal, valid and binding obligation
of the Guarantor enforceable against the Guarantor in accordance with
its terms; and |
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| (ii) | The execution, delivery and performance of this
Guaranty does not and will not (a) require any approval or consent of
any other Person or Governmental Authority, (b) result in or require
the creation of any lien or security interest upon or with respect to
any of the properties or assets of the Guarantor, and (c) conflict
with, result in a breach of or constitute a default under any
requirement of law or contractual obligation of the Guarantor. |
Section 16. Setoff.
At any time after all or any part of the Obligations have become due and payable (by
acceleration or otherwise), the Lender may, without notice to the Guarantor and regardless of the
acceptance of any security or collateral for the payment hereof, appropriate and apply toward the
payment of all or any part of the Obligations (a) any indebtedness due or to become due from the
Lender to the Guarantor, and (b) any moneys, credits or other property belonging to the Guarantor
held by or coming into the possession of the Lender.
Section 17. Subordination.
The Guarantor agrees that any and all claims of the Guarantor against the Borrower, or against
any of their properties, shall be subordinate and subject in right of payment to the prior payment
of the Obligations. Notwithstanding any right of the Guarantor to ask, demand, ▇▇▇ for, take or
receive any payment from the Borrower, all rights, liens and security interests of the Guarantor,
whether now or hereafter arising and howsoever existing, in any assets of the Borrower shall be and
hereby are subordinated to the rights of the Lender in those assets. The Guarantor shall have no
right to possession of any such asset or to foreclose any such lien or security interest, whether
by judicial action or otherwise, unless and until all of the Obligations
shall have been fully paid and satisfied. If all or any part of the assets of the Borrower, or
the proceeds thereof, are subject to any distribution, division or application to the creditors of
the Borrower, whether partial or complete, voluntary or involuntary, and whether by reason of
liquidation, bankruptcy, arrangement, receivership, assignment for the benefit of creditors or any
other action or proceeding, or if the business of each Borrower is dissolved, or if substantially
all of the assets of the Borrower are sold, then, and in any such event, any payment or
distribution of any kind or character, either in cash, securities or other property, which shall be
payable or deliverable upon or with respect to any indebtedness of the Borrower to the Guarantor
shall be paid or delivered directly to the Lender for application on the Obligations due or to
become due until such shall have first been fully paid and satisfied. The Guarantor irrevocably
authorizes and empowers the Lender to demand, ▇▇▇ for, collect and receive every such payment or
distribution and give acquittance therefor and to make and present for and on behalf of the
Guarantor such proofs of claim and take such other action, in the Lender’s own name or in the name
of the Guarantor or otherwise, as the Lender may deem necessary or advisable for the enforcement of
this Guaranty. The Lender may vote such proofs of claim in any such proceeding, receive and collect
any and all dividends or other payments or disbursements made thereon in whatever form the same may
be paid or issued and apply the same on account of any of the Obligations. Should any payment,
distribution, security or instrument or proceeds thereof be received by the Guarantor upon or with
respect to any of Indebtedness or other obligation of the Borrower to the Guarantor prior to the
satisfaction of all of the Obligations, the Guarantor shall receive and hold the same in trust, as
trustee, for the benefit of the Lender and shall forthwith deliver the same to the Lender in
precisely the form received (except for the endorsement or assignment of the Guarantor where
necessary), for application to any of the Obligations, and until so delivered, the same shall be
held in trust by the Guarantor as the property of the Lender. If the Guarantor fails to make any
such endorsement or assignment to the Lender, the Lender is hereby irrevocably authorized to make
the same. The Guarantor agrees that until the Obligations have been paid in full and satisfied, the
Guarantor will not assign or transfer to any Person any claim that the Guarantor has or may have
against the Borrower and will not receive any property or asset of or payment or distribution from
Borrower.
Section 18. Amendments.
No modification or waiver of any of the provisions of this Guaranty shall be binding upon the
Lender, except as expressly set forth in a writing duly signed and delivered by the Lender.
Section 19. Governing Law.
This Guaranty shall be governed by and interpreted and enforced in accordance with the
internal laws (without regard to conflicts of law provisions) of the State of Indiana. Without
limiting the foregoing, any dispute between the Lender and the Guarantor arising out of or related
to the relationship established between them in connection with this Guaranty, whether arising in
contract, tort, equity or otherwise, shall be resolved in accordance with the internal laws, and
not the conflicts of law provisions, of the State of Indiana.
Section 20. Consent to Jurisdiction; Counterclaims; Forum Non Conveniens.
Except as provided hereinbelow, the Lender and the Guarantor agree that all disputes between
them arising out of or related to the relationship established between them in connection
with this Guaranty, whether arising in contract, tort, equity, or otherwise, shall be resolved
only by state or federal courts located in Indianapolis, Indiana, provided however that the parties
acknowledge that any appeals from those courts may be heard by a court located outside of
Indianapolis, Indiana. The Lender shall have the right to proceed against the Guarantor in any
location in order to obtain personal jurisdiction over the Guarantor or to enforce a judgment or
other court order entered against the Guarantor, and the Guarantor shall not assert any permissive
counterclaims arising out of or relating to this Guaranty in any proceeding brought under this
provision. The Guarantor hereby waives any objection that he may now or hereafter have (including,
without limitation, any objection to the laying of venue or based on forum non conveniens) to the
location of the court in which any proceeding with respect to this Guaranty or any other document
executed or delivered in connection herewith is commenced in accordance with this Section 20.
Section 21. Waiver of Jury Trial.
The Guarantor waives any right to trial by jury in any dispute, whether sounding in contract,
tort, or otherwise arising out of or related to the transactions contemplated by this Guaranty or
any other instrument, document or agreement executed or delivered in connection herewith. The
Lender may file an original counterpart or a copy of this Guaranty with any court as written
evidence of the consent of the Guarantor to the waiver of its rights to trial by jury.
Section 22. Waiver of Bond.
The Guarantor waives the posting of any bond otherwise required of the Lender in connection
with any judicial process or proceeding to enforce any judgment or other court order entered in
favor of the Lender, or to enforce by specific performance, temporary restraining order, or
preliminary or permanent injunction, this Guaranty or any other agreement or document between the
Lender and the Guarantor.
Section 23. Advice of Counsel.
The Guarantor represents and warrants that it has consulted with legal counsel regarding all
waivers under this Guaranty, that it fully understands all rights that it is waiving and the effect
of such waivers, that it assumes the risk of any misunderstanding that it may have regarding any of
the foregoing, and that it intends that such waivers shall be a material inducement to the Lender
to extend the Indebtedness guaranteed hereby.
Section 24. Notices.
All notices and other communications required or desired to be served, given or delivered
hereunder shall be in writing and shall be addressed to the party to be notified as follows:
If to Guarantor, at:
|
Arcadia Resources, Inc. | |
| ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ #▇▇▇ | ||
| ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Attention: C.E.O. | ||
If to the Lender, at:
|
H. D. ▇▇▇▇▇ Wholesale Drug Co. | |
| ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ | ||
| ▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ | ||
| Attention: C.E.O. |
| Unlimited Continuing Guaranty | Page 9 |
or, as to each party, at such other address as designated by such party in a written notice to the
other party. All such notices and communications shall be deemed to be validly served, given or
delivered (a) three (3) days following deposit in the United States mail, with proper postage
prepaid; or (b) upon delivery thereof if delivered by hand or by a reputable overnight courier
service.
Section 25. Severability.
Wherever possible, each provision of this Guaranty shall be interpreted in such manner as to
be effective and valid under applicable law, but if any provision of this Guaranty shall be
prohibited by or invalid under such law, such provision shall be ineffective to the extent of such
prohibition or invalidity without invalidating the remainder of the provision or the remaining
provisions of this Guaranty.
Section 26. Merger.
This Guaranty represents the final agreement of the Guarantor with respect to the matters
contained herein and may not be contradicted by evidence of prior or contemporaneous agreements, or
subsequent oral agreement, between the Guarantor and the Lender.
Section 27. Execution in Counterparts.
This Guaranty may be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an original and all of
which taken together shall constitute one and the same agreement. This Guarantee may be delivered
by facsimile or by e-mail in .pdf format and such shall be deemed an original for all purposes.
Section 28. No Strict Construction.
The parties hereto have participated jointly in the negotiation and drafting of this Guaranty.
In the event an ambiguity or question of intent or interpretation arises, this Guaranty shall be
construed as if drafted jointly by the parties hereto and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of any provisions of this
Guaranty.
[Signatures on Following Page.]
| Unlimited Continuing Guaranty | Page 10 |
In Witness Whereof, the Guarantor has caused this Unlimited Continuing Guaranty to be
duly executed, all as of the date and year first written above.
| Arcadia Resources, Inc. |
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| By: | /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||
| Printed: | ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ | |||
| Title: | CEO & President | |||