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HomeMy WebLinkAboutMaster Agreement MASTER AGREEMENT This Master Agreement(the"Agreement"), entered into this 31 st day of August, 2004, by and between the City of Carmel Redevelopment Commission ("CRC") and Clarian Health Partners, Inc. ("Clarian"),Witnesses: Recitals WHEREAS,to stimulate and induce economic development in the Area, CRC has agreed to complete the Infrastructure Improvements, subject to the terms and conditions of the Economic Development Agreement; WHEREAS, pursuant to the Economic Development Agreement, Clarian has committed to construct the Project on the Real Estate; WHEREAS, to finance completion of the Infrastructure Improvements, CRC has agreed, subject to the terms and conditions of the Economic Development Agreement, to issue TIF Bonds; WHEREAS, as a condition to issuing the TIF Bonds and constructing the Infrastructure Improvements, CRC, pursuant to the Economic Development Agreement, has required Clarian to enter into the Covered Agreements; WHEREAS, Clarian this day is executing the Covered Agreements; WHEREAS, there are certain representations, indemnities, obligations, and other terms and conditions that are to be applicable to all of the Covered Agreements; and WHEREAS, rather than set forth all of the foregoing representations, indemnities, obligations, and other terms and conditions in each of the Covered Agreements, CRC and Clarian desire to enter into this Agreement,to which all of the Covered Agreements shall be subject; Agreement NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which hereby are acknowledged, CRC and Clarian agree as follows: 1. Defined Terms. Each of the following terms shall have the meanings set forth below: Act shall mean, collectively, Indiana Code §36-7-14 and Indiana Code §36-7-25, each as amended from time to time. Active Operation shall mean that Clarian (or its Affiliate) is actively operating the entirety of the Minimum Space for a Permitted Use either on: (a) a day-to-day basis; and/or (b) such other basis as is customary and normal for the specific Permitted Use for which the Minimum Space is being operated. Ad Valorem Taxes shall mean all ad valorem real property taxes that are being levied, imposed, or charged on, against,for,or with respect to the Property by or for all Taxing Authorities. Affiliate shall mean a person or entity that directly or indirectly controls, is controlled by, or is under common control with Clarian. Agreement Regarding Appeals shall mean that certain Agreement Not to Appeal Assessed Value of even date herewith executed by and between CRC and Clarian. Agreement Regarding Remonstrances shall mean that certain Agreement Not to Remonstrate of even date herewith executed by and between CRC and Clarian. Agreement to Make Payments shall mean that certain Agreement to Make Payments in Lieu of Taxes of even date herewith executed by and between CRC and Clarian. Allocation Area shall mean the portion of the Area that has been designated as a tax increment finance allocation pursuant to the Act. Alternate Payments shall mean annual payments required to be made by Clarian under the Agreement to Make Payments, which payments shall be in an aggregate annual amount equal to the annual amount of Real Estate Taxes that would have been due and payable for or with respect to the Property if: (a) the Property were not Tax-Exempt; and (b) Real Estate Taxes were being levied, imposed, and charged on, against, for, and with respect to the Property on the basis that the Assessed Value had been determined as if the Property were Fully Assessed, without reduction in any levy, imposition, or charge. Annual Payment shall mean the actual annual amount of all Ad Valorem Taxes that is being paid by Clarian for or with respect to the Property. Applicable Rate shall mean the standard tax rates then being applied and used at the time to and for other non-obsolete commercial properties in the jurisdiction of the applicable Taxing Authority. Area shall mean an economic development area to be known as the "Illinois Street Economic Development Area"and more particularly described in the Economic Development Agreement. Assessed Value shall mean the value of the Project assessed by the applicable Taxing Authorities for the purpose of determining the Ad Valorem Taxes. Assessment Date shall mean the date on which the Assessed Value first is established by the Applicable Taxing Authorities. Beneficiary shall mean CRC and/or the TIF Bond trustee, and the successors and assigns of each. Bond Period shall mean the period: (a) beginning on the date that the TIF Bonds are issued; and (b) ending on the date that is 20 years thereafter. Buildings shall mean the hospital facility and medical office building to be constructed on the Real Estate. Cessation Date shall mean the first date of an Operation Cessation. Cessation Period shall mean a period commencing on the Cessation Date and expiring on the Expiration Date. City shall mean the City of Carmel, Indiana, or any applicable commission, agency, authority, or instrumentality of the City of Carmel, Indiana, that such City has designated as being or constituting the "City"for any purpose under any Transaction Document. Collateral Assignment shall mean that certain Collateral Assignment and Pledge of even date herewith executed by CRC in favor of the TIF Bond trustee. Competing Improvements shall mean improvements being made in response to, or in conjunction with, a particular project being undertaken by another full-service or specialty hospital. Covered Agreements shall mean the Guaranty, the Agreement Regarding Appeals, the Agreement to Make Payments,the Demolition or Reuse Agreement, and the Agreement Regarding Remonstrances. Cure Period shall mean a period of 30 days after Clarian receives notice specifying the nature of any failure by it to perform or observe any term or condition of the Transaction Documents to be performed or observed by it; provided that, if the failure: (a) is not of an obligation to pay money; and (b) is of such a nature that it cannot be remedied within 30 days, despite reasonably diligent efforts; then the 30 day period shall be extended as reasonably may be necessary Clarian to remedy the failure, so long as Clarian: (a) commences to remedy the failure within the 30 day period; and (b) diligently pursues such remedy to completion. Deficit shall mean the difference between the Guaranteed Amount and the amount of the Increment that is available for repayment of the TIF Bonds. Demolition or Reuse Agreement shall mean that certain Demolition or Reuse Agreement of even date herewith executed by and between CRC and Clarian. Economic Development Agreement shall mean that certain Economic Development Agreement entered into by and between CRC and Clarian and dated August 29, 2003, as amended by that certain Amendment to Economic Development Agreement entered into by and between CRC and Clarian and dated August 31,2004. Event of Default shall mean a failure by Clarian to perform or observe any term or condition of any of the Transaction Documents to be performed or observed by it, if such failure is not cured within the Cure Period. Excess shall mean the amount by which the Increment that is available for repayment of the TIF Bonds exceeds$1,100,000.00. Expiration Date shall mean the date that is two years after the Cessation Date, subject to extension as provided in Section 2 of the Demolition or Reuse Agreement. Express Assumption shall mean an express assumption of the obligations of Clarian under all of the Transaction Documents, which assumption shall be in form and substance reasonably acceptable to CRC. Financial Information shall mean balance sheets, financial statements, and such other financial information as CRC reasonably may request. Fully Assessed shall mean that, for the purposes of levying, imposing, and charging Real Estate Taxes, the value of the Property is being assessed and determined in the same manner,with the same methods, and under the same rules as are being applied and used at the time to and for other non-obsolete commercial properties in the jurisdiction of the applicable Taxing Authority. Guaranteed Amount shall mean the annual amount of$1,100,000.00. Guaranteed Obligations shall mean all of Clarian's obligations under the Guaranty and Section 3 of this Agreement. Guaranty shall mean that certain Guaranty of even date herewith executed by Clarian in favor of CRC. Guaranty Payment shall mean a payment required to be made by Clarian under the Guaranty because the Increment for a calendar year will be less than the Guaranteed Amount, the amount of which payment shall be determined as set forth in Section 4 of this Agreement. Guaranty Period shall mean the period: (a) beginning on the date that the TIF Bonds are issued; and(b) continuing until the earlier of: (i) the Termination Date; or (ii) the expiration of the Bond Period, subject to extension of such period as provided in Section 1 of the Guaranty. Increment shall mean the incremental revenue from Ad Valorem Taxes that actually is generated by the completed Project and paid by Clarian. Improvements shall mean the Buildings and other facilities on the Real Estate, including parking garages. Infrastructure Improvements shall mean certain public infrastructure improvements in connection with the Project, as more specifically described in the Economic Development Agreement; Laws shall mean any applicable federal, state, or local law, statute, ordinance, rule, or regulation, or any order of decree of any court, agency, or regulatory body. Master Indenture shall mean that certain Series 2004A Supplemental Master Indenture dated as of August 1, 2004, between Clarian and J.P. Morgan Trust Company, National Association, as Master Trustee, Maturity Date shall mean the date on which the TIF Bonds mature. Medical Complex shall mean hospital facilities, cancer center, medical office buildings, and related improvements. Minimum Space shall mean 67% of the space in the Buildings; provided that, purposes of this definition, during the period commencing on the date hereof and expiring on the date that is four years hereafter,the Buildings shall not include the second and third floors of the cancer center that is part of the Medical Complex. Non-Payment Expenses shall mean: (a) all expenses that may be paid or incurred by or on behalf of CRC (or the TIF Bonds trustee as assignee of CRC) in connection with the enforcement of the Note, including, without limitation, reasonable attorney's fees; and (b) all fees, interest, and expenses that may be due and owing to CRC (or the TIF Bonds trustee as assignee of CRC) in connection with a failure by Clarian to perform or observe any term or condition of any of the Transaction Documents to be performed or observed by it. Note shall mean that certain Master Note Obligation, Series 2004A, of even date by Clarian in favor of the Beneficiaries, which note has been issued pursuant to the Master Indenture, and which note includes an endorsement including the Obligated Group as obligors. Obligated Group shall mean the parties specified on Exhibit B. Operation Cessation shall mean that Clarian (or its Affiliate) has ceased Active Operation, notwithstanding that Clarian (or its Affiliate) either: (a) is in Active Operation of a portion of the Buildings for a Permitted Use, but such portion is of less square footage than the Minimum Space; or (b) operates the Minimum Space for a Permitted Use, but such operation is less than Active Operation. Payment Period shall mean the period: (a) beginning on the date that the TIF Bonds are issued; and (b) ending on the date that is 62 years thereafter; Permitted Use shall mean a use of the Improvements and the Real Estate that is permitted by: (a) the zoning ordinances of the City currently in effect as applicable to the Real Estate on the date on which the Economic Development Agreement was executed; or (b) the Clarian North Hospital Campus Planned Unit Development District (Ordinance No. Z-409-03), as finally passed by the Common Council of the City; including, without limitation, a Medical Complex. Prime Rate shall mean that rate of interest quoted by The Bank of New York, located in New York, New York,from time to time as its "prime rate" or"base rate". Project shall mean a new hospital facility, medical office building, and related improvements to be constructed by Clarian within the Area, as more particularly described in the Economic Development Agreement. Property shall mean Real Estate and/or the Project. Qualified Re-Use shall mean, after an Operation Cessation occurs: (a) Clarian (or its Affiliate) subsequently again engages in Active Operation; and (b) such Active Operation continues for at least six consecutive months. Real Estate shall mean that certain real estate more particularly described in the attached Exhibit A. Real Estate Taxes shall mean all Ad Valorem Taxes that would be levied, imposed, or charged on, against, for, or with respect to, the Property by or for all Taxing Authorities if the Property were to be Fully Assessed at the Applicable Rates, in all cases without any credits, exemptions, deductions, or other reductions; provided that all taxes, assessments, levies, impositions, duties, imposts, fees, contributions, and charges of any nature that, in whole or in part, are levied, imposed, or charged in substitution or replacement for or of Ad Valorem Taxes shall be deemed to be "Real Estate Taxes" for all purposes under all of the Transaction Documents, notwithstanding the denomination or characterization of such taxes, assessments, levies, impositions, duties, imposts,fees,contributions, or charges. Savings shall mean the amount by which the net proceeds from the purchase and sale of the TIF Bonds exceed the costs of constructing the Infrastructure Improvements. Supplemental Payments shall mean annual payments required to be made Clarian under the Agreement Regarding Appeals if Clarian: (i) breaches or violates the terms and conditions of Section 1 of the Agreement Regarding Appeals; and (ii) as a result of such breach, or violation, the Assessed Value is or becomes less than $135,000,000.00. Surviving Entity shall mean the entity that: (A) survives after a merger or consolidation involving Clarian; or(B) acquires all or substantially all of Clarian's assets. Tax-Exempt shall mean, in the case of the Property, that the full amount of the Real Estate Taxes are not being: (a) levied, imposed, or charged on, against, for, or with respect to, the Property; or (b) paid by Clarian for or with respect to the Property; notwithstanding the basis or reason that the Property or Clarian is exempt in full or part from the levy, imposition, or charge of Real Estate Taxes or the payment thereof. Taxing Authority shall mean the State or Indiana or any county, township, school corporation, library district, special district, municipality, or other governmental agency or authority in or of the State of Indiana, including, without limitation,the City, when applicable. Termination Date the first to occur of the date on which: (a) the Bond Period expires, subject to extension of such period as provided in Section 1 of the Guaranty; or(b)the TIF Bonds are paid in full. TIF Bonds shall mean tax increment revenue bonds being issued to finance the construction of the Infrastructure Improvements. Transaction Documents shall mean, collectively, this Agreement, the Agreement Regarding Appeals, the Agreement to Make Payments, the Demolition or Reuse Agreement, the Agreement Regarding Remonstrances,the Note, and the Guaranty. Transaction Payments shall mean payments required to be made by Clarian under any of the Transaction Documents. 2. Transfer. (a) If Clarian intends to convey or transfer fee simple title to the Property, then Clarian shall give CRC notice of such intended conveyance or transfer at least 30 days prior to the closing thereof, which notice shall specify: (i) the person or entity to which Clarian is conveying or transferring fee simple title; and (ii) whether there has been a change in the contact person for Clarian, and, if so, the contact information for such person. CRC shall not be required to release Clarian from its obligations under any Transaction Document, unless: (i) Clarian provides to CRC Financial Information with respect to the transferee that establishes, to CRC's reasonable satisfaction, that the net worth of the transferee is equal to or greater than that of Clarian on either the date hereof or the date of the transfer, whichever is greater; and (ii) the transferee executes and delivers the Express Assumption; provided that no release of Clarian by CRC shall be effective unless and until, at all times for a period of two consecutive years: (i) the net worth of the transferee is maintained or increased from its net worth on the date of the transfer; and (ii) there is no material breach under the terms and conditions of any of the Transaction Documents. (b) If: (i) Clarian is merged into, or consolidated with, another entity; or (ii) there is a sale of all or substantially all of Clarian's assets; in either case regardless of whether Clarian is the Surviving Entity; then: (i) Clarian shall give CRC notice of such merger, consolidation, or sale at least 30 days prior to the occurrence thereof, which notice shall specify: (A) the Surviving Entity; and (B) whether there has been a change in the contact person for Clarian, and, if so, the contact information for such person; and (ii) if: (A) such merger, consolidation, or sale occurs during the Bond Period; and (B) Clarian is not the Surviving Entity; then the Surviving Entity shall execute an express assumption of the obligations of Clarian under the Agreement Regarding Appeals, which assumption shall be in form and substance reasonably acceptable to CRC. (c) If there is a change in the corporate structure of Clarian that results in a change of control, then Clarian immediately shall provide written notice of such change to CRC, which notice shall specify: (i) the person or entity in control of Clarian; and (ii) whether there has been a change in the contact person for Clarian, and, if so, the contact information for such person. (d) Except as expressly provided in this Section, Clarian shall not be released from any of its obligations under any of the Transaction Documents, notwithstanding any conveyance, transfer, merger, consolidation, change in corporate structure, execution and delivery of an Express Assumption, other event or occurrence, or operation of Law. 3. Remedies. (a) If there is an Event of Default, then, in addition to any other rights or remedies available to it at law or in equity, and without further notice or demand, CRC may exercise the equitable remedies of injunction or specific performance. (b) If Clarian is delinquent in making any Transaction Payments, then: (i) CRC may exercise any right or remedy available to it in law or in equity to collect or enforce payment of the delinquent Transaction Payment; and (ii)from the date that such payment is due until the date that such payment is made by Clarian, Clarian shall pay to CRC interest on such amount at an annual rate equal to the greater of: (A) the highest rate of interest borne by the TIF Bonds; or(B)the Prime Rate plus 3%. (c) Clarian, upon receipt of written demand from CRC, shall reimburse CRC (and the TIF Bonds trustee as assignee of CRC) for all expenses, including, without limitation, reasonable attorneys' fees, incurred by CRC (or the TIF Bonds trustee as assignee of CRC): (i) to enforce the terms and conditions of the Transaction Documents; and/or(ii) in connection with: (A) exercising any rights or remedies available to CRC(or the TIF Bonds trustee as assignee of CRC) under the Transaction Documents; and/or (B) collecting or enforcing payment of any delinquent Transaction Payment. CRC, upon receipt of written demand from Clarian, shall reimburse Clarian for all expenses, including, without limitation, reasonable attorneys' fees, incurred by Clarian: (i) to enforce the terms and conditions of the Transaction Documents; and/or (ii) in connection with exercising any rights or remedies available to Clarian under the Transaction Documents. (d) Each of CRC and Clarian shall indemnify and hold harmless the other from and against all claims, judgments, liabilities, losses, costs, and expenses (including, without limitation, reasonable attorneys' fees) arising from, or in connection with, a default by CRC or Clarian, respectively, under the Transaction Documents (including, without limitation, any misrepresentation therein) and/or the exercise by CRC or Clarian, respectively, of its rights and remedies with respect to such default. 4. Priority of Agreements. (a) Agreement to Make Payments. At such times as: (i) the Property is partially or wholly Tax-Exempt; and (ii) Clarian is making the full amount of the Alternate Payments as required under the Agreement to Make Payments; then (i) any Supplemental Payments required to be made by Clarian under the Agreement Regarding Appeals for each year during the Bond Period shall be an amount (not less than zero) determined by subtracting: (A)the amount of the Alternate Payments made by Clarian for that year;from (B) the amount of the Supplemental Payments that otherwise would be required to be made by Clarian under the Agreement Regarding Appeals for that year; and (ii) any Guaranty Payments required to be made by Clarian under the Guaranty for each year during the Bond Period shall be an amount (not less than zero) determined by subtracting: (A) the amount of the Alternate Payments and Supplemental Payments made by Clarian for that year; from (B) the amount of the Guaranty Payments that otherwise would be required to be made by Clarian under the Guaranty for that year. (b) Agreement Regarding Appeals. At such times during the Bond Period as: (i) the Agreement to Make Payments does not apply because the Property is not Tax-Exempt; (ii) Clarian is in breach or violation of the Agreement Regarding Appeals; and (iii) Clarian is making the full amount of the Supplemental Payments as required under the Agreement Regarding Appeals; then any Guaranty Payments required to be made by Clarian under the Guaranty for each year shall be an amount (not less than zero) determined by subtracting: (i) the amount of the Supplemental Payments made by Clarian for that year;from (ii)the amount of the Guaranty Payments that otherwise would be required to be made by Clarian under the Guaranty for that year. (c) Guaranty. If, for any year during the Bond Period when Clarian is not obligated to make either Alternate Payments or Supplemental Payments, the Increment is less than the Guaranteed Amount, then Clarian shall make a Guaranty Payment in an amount determined by subtracting: (i)the Increment;from (ii)the Guaranteed Amount. (d) Minimum Payments. Notwithstanding anything to the contrary set forth in any Transaction Document, if, for any calendar year: the Increment is less than the Guaranteed Amount; then the total amount payable by Clarian under all Transaction Documents for such calendar year shall not be less than an amount determined by subtracting: (i) the Increment; from (ii) the Guaranteed Amount plus all Non-Payment Expenses. (e) Maximum Payments. Notwithstanding anything to the contrary set forth in any Transaction Document, if, for any calendar year: (i) the Property is not wholly or partially Tax-Exempt; and (ii) Clarian is not in default under the Guaranty or any other Transaction Document; then the total amount payable by Clarian under all Transaction Documents for such calendar year shall not exceed: (i) the Annual Payment; plus (ii) if: (A) such calendar year is during the Guaranty Period; and (B) the Increment for such calendar year is less than the Guaranteed Amount; a Guaranty Payment in the amount determined pursuant to Subsection 4(c); and plus (iii) any Non-Payment Expenses. (f) Other Funds. Only payments made by Clarian in accordance with the terms and conditions of the Transaction Documents shall be applied to satisfy the obligations of Clarian to make payments under the Transaction Documents. Accordingly, funds from any other source or account that may be applied to cover or defray part or all of an Alternate Payment, Supplemental Payment, or Guaranty Payment shall not impair, release, reduce, or affected the obligations of Clarian to make the full Alternate Payment, Supplemental Payment, or Guaranty Payment as if there had been no such application. (f) Disgorgement. If: (i) any claim is ever made on CRC or the TIF Bond trustee for repayment or recovery of any amount or payment made to, or received by, either CRC or the TIF Bond trustee in payment or on account of any of the Guaranteed Obligations; and (ii)either CRC or the TIF Bond trustee repays or disgorges all or any part of such amount or payment, then Clarian shall be and remain liable for the amount or payment so repaid or disgorged to the same extent as if such amount or payment never had been made to, received by, CRC or the TIF Bond trustee, notwithstanding any termination or cancellation of any of the Transaction Documents. 5. Notices. All notices shall be deemed to be delivered if delivered in person, or sent via nationally recognized overnight carrier, in either case as follows: to CRC at One Civic Square, Carmel, Indiana 46032, Attention: President,and Attention: Mayor, with a copy to: (a) Karl P. Haas, Esq.,Wallack Somers & Haas, One Indiana Square, Suite 1500, Indianapolis, Indiana 46204; and (b) the TIF Bond trustee at The Bank of New York Trust Company, N.A., Attention: Corporate Trust Department, 300 North Meridian Street, Suite 910, Indianapolis, Indiana 46204; and to Clarian at 1812 North Capitol Avenue, P.O. Box 1367, Indianapolis, Indiana 46206-1367, Attention: Barrett Evans, with a copy to Norman G. Tabler, Jr., Clarian Health Partners, Inc., 1812 North Capitol Avenue, Room 342, P.O. Box 1367, Indianapolis, Indiana 46206-1367. Any party may change the address to which notices are to be delivered by written notice to the other party in accordance with the terms and conditions of this Section. 6. Miscellaneous. Clarian acknowledges that, pursuant to the Collateral Assignment, CRC is assigning to the TIF Bond Trustee the Guaranty for the purposes and to the extent set forth in the Collateral Assignment, and Clarian consents to both the Collateral Assignment and the assignment of the Guaranty thereunder. This Agreement: (a) shall be governed by the laws of the State of Indiana; and (b) may be amended only by a written amendment executed by both CRC and Clarian. If any term or condition of this Agreement is invalid or unenforceable, then such invalid or enforceable term or condition shall not affect the application, validity, or enforceabilty of any other term or condition. This Agreement may be executed in several counterparts, each of which shall be an original, but all of which shall constitute but one and the same agreement. CRC and Clarian agree that state and federal courts in Indiana shall be the sole proper venue to initiate any legal or equitable action to enforce the terms and conditions of any of the Transactions Documents. At the request either party, accompanied by execution copies, the other party shall execute and deliver an original of this Agreement, or a memorandum of this Agreement,for recording. IN WITNESS WHEREOF,CRC and Clarian have executed this Agreement as of the date set forth above. CITY OF CA L REDEVELOPMENT COMMISS By Richard L. Sh p,Secretary CLARIAN HEALTH PARTNERS,INC. By Printed Norman G. Tabler Title Senior Vice President 3. Corporate Authority. Clarian certifies that it is:(a)a corporation duly organized and existing under the laws of the State of Indiana;and (b)duly authorized to conduct business in each jurisdiction in which such authorization is required. Clarian has determined that the execution and delivery of this Guaranty: (a)is in its best interests;(b)will create a direct benefitto Clarian;(c)within its powers;and(d)in furtherance of its business purposes and objectives. The execution of this Guaranty by the undersigned person has been authorized by all necessary corporate action(including,without limitation,any necessary directors'and shareholders'consents). 4. No Impairment. This Guaranty shall not be impaired, released,or affected by any modification, supplement, extension,or amendment of:(a)any contract or agreement between the parties,whether now existing or hereafter arising (including, without limitation, the Transaction Documents); or (b) any of the Guaranteed Obligations;and the liability of the Clarian hereunder shall apply to the Guaranteed Obligations as so altered, modified, supplemented, extended, or amended. This Guaranty shall not be impaired, released, or affected by the failure by any other party to perform its obligations to CRC or the TIF Bond trustee. This Guaranty shall not be impaired, released, or affected by any deterioration, waste, loss, or impairment of any security held by any Beneficiary in respect of the Guaranteed Obligations (including, without limitation, the failure to perfect any security interest or continue any such perfection). 5. Primary Obligation. No invalidity, irregularity, or unenforceability of all or any part of the Guaranteed Obligations or of any security therefor(including,without limitation:(a)as a result of any partys bankruptcy, reorganization, or insolvency; (b) pursuant to any assignment for the benefit of creditors, receivership, or similar proceeding under any law or with respect to any party; or(c) by any actions of a trustee in any said proceeding)shall impair, release,affect, or be a defense to this Guaranty,and: (a)this Guaranty shall be a primary obligation of Clarian;and (b)nothing shall discharge or satisfy the liability of Clarian hereunder except the full payment and performance of the Guaranteed Obligations. This Guaranty shall be effective notwithstanding any event with respect to the Project(including,without limitation: (a)a casualty or condemnation event; (b)any failure to complete the Project;or(c)any Operation Cessation). 6. Guarantor Insolvency. If: (a) Clarian should at any time become insolvent or make a general assignment for the benefit of creditors; (b) a petition in bankruptcy or any insolvency or reorganization proceedings shall be filed or commenced by, against, or in respect of Clarian;or(c)Clarian should at any time:(i)liquidate,dissolve,wind up its affairs,or cease doing business;or(ii)contest,cancel,or otherwise terminate the obligations under this Guaranty;then,at the option of either CRC or the TIF Bond trustee,any and all of the Guaranteed Obligations, whether or not then due,forthwith shall become due and payable without notice or other action of any kind by CRC,the TIF Bond trustee,or any other party; provided that, if a petition in bankruptcy or any insolvency or reorganization proceedings shall be filed or commenced by, against,or in respect of Clarian,then all of the Guaranteed Obligations,whether or not then due,forthwith shall become due and payable,without notice or other action of any kind by CRC,the TIF Bond trustee,or any other party. 7. Clarian Waivers. Clarian herebywaives all rights of notice or demand(including,without limitation: (a) notice of acceptance hereof and notice of any liability to which it may apply; (b)presentment, demand for payment, and protest of any instrument,and notice of dishonor or nonpayment;(c) notice of default or nonpayment by Clarian; and (d)all other notices to which Clarian otherwise may be entitled). In addition, Clarian hereby waives:(a)all suretyship defenses that it may have,whether now or in the future;and(b)any right to seek contribution, indemnification, subrogation, reimbursement, or restitution from any party,until all of the Guaranteed Obligations have been satisfied in full and are not subject to repayment or disgorgement by CRC or the TIF Bond trustee. 8. No Implied Waivers. Without affecting the liability of Clarian hereunder, either CRC or the TIF Bond trustee may consent to or waive,any breach of,or any act,omission,or default under,the Transaction Documents without affecting the liability of Clarian hereunder. Neither: (a)any act, omission, or delay by either CRC or the TIF Bond trustee; nor(b)any course of dealing between CRC and the TIF Bond trustee on the one hand and Clarian on the other hand, shall constitute a waiver of the rights and remedies of any Beneficiary hereunder. No single or partial waiver by a Beneficiary of any right or remedy that it may have hereunder shall operate as a waiver of any other right or remedy or of the same right or remedy on a future occasion. All rights and remedies of the Beneficiaries hereunder shall be cumulative,and no such right or remedy shall be exclusive of any other right or remedy. Neither: (a) any waiver of any right or remedy hereunder;nor(b)any modification or amendment of this Guaranty;shall be effective unless the same shall be in writing and duly signed on behalf of both CRC and the TIF Bond trustee, and each such waiver, modification,or amendment, if any,shall:(a)apply only with respect to the specific instance involved;and (b)in no way impair the rights of CRC or the TIF Bond trustee or the Guaranteed Obligations in any other respect or at any other time. 9. Entire Agreement. This Guaranty:(a)embodies the entire agreement and understanding between the parties hereto with respect to the subject matter hereof; and (b) supersedes all prior oral or written agreements and understandings relating to the subject matter hereof. Except for the provisions of the MasterAgreement,no statement,representation,warranty,covenant,agreement,course of dealing,course of conduct, or course of performance of any kind not expressly set forth in this Guaranty shall affect,or be used to interpret,change or restrict,the express terms and provisions of this Guaranty. 10. Successors and Assigns. This Guaranty and all of the Guaranteed Obligations shall be binding upon the successors and assigns of Clarian and,together with the rights and remedies of the Beneficiaries hereunder,shall inure to the benefit of the Beneficiaries,their endorsees,successors,and assigns. Clarian hereby:(a)consents to the assignment of this Guaranty to the TIF Bond trustee;and(b)agrees that,during the period of any such assignment, the TIF Bond trustee shall have all rights of CRC hereunder. 11. Miscellaneous. All capitalized terms used but not defined herein shall have the meanings ascribed to such terms in that certain Master Agreement of even date herewith executed by and between CRC and Clarian(the"Master Agreement"). This Guaranty:(a)shall be governed by the laws of the State of Indiana and the Master Agreement;and(b)may be amended only by a written amendment executed by both CRC and Clarian. If any term or condition of this Guaranty is invalid or unenforceable, then such invalid or enforceable term or condition shall not affect the application,validity,or enforceabilty of any other term or condition. This Guaranty may be executed in several counterparts,each of which shall be an original, but all of which shall constitute but one and the same agreement CRC and Clarian agree that state and federal courts in Indiana shall be the sole proper venue to initiate any legal or equitable action to enforce the terms and conditions of this Guaranty. This Agreement,when coupled with the Master Agreement,satisfies the requirement set forth in, and supersedes in its entirety, the second to last sentence in Section 4.05 of the Economic Development Agreement(in which sentence the definition of"Guaranty" is contained). 12. JURY TRIAL WAIVER. CLARIAN HEREBY KNOWINGLY,VOLUNTARILY,INTENTIONALLY,AND IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,UNDER OR IN CONNECTION WITH THIS GUARANTY. IN WITNESS WHEREOF,Clarian has executed this Guaranty as of the date set forth above. CLARIAN HEALTH PARTNERS, INC. By: Printed: Norman G, Table Title: Senior Vine President