APPROVAL COVENANTS FOR HUD SECTION 242 MORTGAGE …€¦ ·  · 2012-02-07FOR HUD SECTION 242...

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1 Not For Profit rev. 09/23/2010 APPROVAL COVENANTS FOR HUD SECTION 242 MORTGAGE INSURANCE [NOT FOR PROFIT OR GOVERNMENTAL HOSPITAL] (“MORTGAGOR”) FHA Project No. XXX DATE A. Special Conditions 1. Application of Cost Savings Any cost savings identified upon completion of the project and verified during the cost certification process shall be used to reduce the mortgage in the ratio of the mortgage loan proceeds amount (as reflected on line 2 Estimated Requirements for completion of the Project of the FHA Replacement Cost and Maximum Insurable Mortgage Form 2264 (“Form 2264”) in the HUD mortgage insurance commitment attached thereto as may be amended from time to time) to the total estimated replacement cost of the project (as reflected on line 1 Estimated Requirements for completion of the Project of Form 2264), unless the Mortgagor elects to have a greater portion of the savings used to reduce the mortgage. 2. Intentionally Omitted 3. Non-Interference By Parent [or Intentionally Omitted](required if a parent entity exists) The Parent Corporation (“Parent”), as the sole member of the mortgagor, must execute a non-interference agreement before initial endorsement, either as an amendment to the Regulatory Agreement or as a separate document, substantially in the following format: a. Parent acknowledges the duties and obligations of the Mortgagor under the Mortgage Note, Security Agreement, HUD Regulatory Agreement, Mortgage Reserve Fund Agreement and other instruments relating to the HUD insured mortgage transaction (collectively the “Loan Documents”) and hereby warrants, represents, and agrees that Parent shall not take any action, including, without limitation, interfering with the day-to-day operations of the Mortgagor and/or the Project, which would directly or indirectly cause the Mortgagor to violate the terms of the Loan Documents, nor knowingly fail to take any action if such failure would be reasonably expected to result in such violation, and b. Parent shall not without prior HUD approval take any action or knowingly fail to take any action if such action or failure to take action, would be reasonably expected to cause a transfer of assets of the Mortgagor other than as permitted in Section 23 of the Rider to the Regulatory Agreement, and c. Parent shall not take any action or knowingly fail to take any action if such action or failure to take action would be reasonably expected to

Transcript of APPROVAL COVENANTS FOR HUD SECTION 242 MORTGAGE …€¦ ·  · 2012-02-07FOR HUD SECTION 242...

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APPROVAL COVENANTS FOR HUD SECTION 242 MORTGAGE INSURANCE

[NOT FOR PROFIT OR GOVERNMENTAL HOSPITAL] (“MORTGAGOR”) FHA Project No. XXX

DATE

A. Special Conditions

1. Application of Cost Savings

Any cost savings identified upon completion of the project and verified during the cost certification process shall be used to reduce the mortgage in the ratio of the mortgage loan proceeds amount (as reflected on line 2 Estimated Requirements for completion of the Project of the FHA Replacement Cost and Maximum Insurable Mortgage Form 2264 (“Form 2264”) in the HUD mortgage insurance commitment attached thereto as may be amended from time to time) to the total estimated replacement cost of the project (as reflected on line 1 Estimated Requirements for completion of the Project of Form 2264), unless the Mortgagor elects to have a greater portion of the savings used to reduce the mortgage.

2. Intentionally Omitted

3. Non-Interference By Parent [or Intentionally Omitted](required if a parent entity exists)

The Parent Corporation (“Parent”), as the sole member of the mortgagor, must execute a non-interference agreement before initial endorsement, either as an amendment to the Regulatory Agreement or as a separate document, substantially in the following format:

a. Parent acknowledges the duties and obligations of the Mortgagor under the Mortgage Note, Security Agreement, HUD Regulatory Agreement, Mortgage Reserve Fund Agreement and other instruments relating to the HUD insured mortgage transaction (collectively the “Loan Documents”) and hereby warrants, represents, and agrees that Parent shall not take any action, including, without limitation, interfering with the day-to-day operations of the Mortgagor and/or the Project, which would directly or indirectly cause the Mortgagor to violate the terms of the Loan Documents, nor knowingly fail to take any action if such failure would be reasonably expected to result in such violation, and

b. Parent shall not without prior HUD approval take any action or knowingly fail to take any action if such action or failure to take action, would be reasonably expected to cause a transfer of assets of the Mortgagor other than as permitted in Section 23 of the Rider to the Regulatory Agreement, and

c. Parent shall not take any action or knowingly fail to take any action if such action or failure to take action would be reasonably expected to

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impair the ability of the Mortgagor to pay the debts owed, and/or otherwise meet its obligations, under the Loan Documents, and

d. HUD shall have all rights in law and equity to enforce this Agreement against parent and shall further have, without limitation, the right to enforce directly against the Mortgagor all enforcement rights and remedies set forth and/or inferred in the loan documents without interference by Parent.

4. Length of Lease Term [or Intentionally Omitted](50-year option)

Initial Endorsement of the Note shall constitute a waiver by the Director of the Office of Insured Health Care Facilities of HUD Handbook 4615.2 Figure 5, which requires that a lease on the fee simple interest must have 75 years to run from the date of the endorsement of the Mortgage for insurance or it must be a lease for 99 years that is renewable. In lieu of the 75 year requirement and in accordance with Section 207 of the National Housing Act, the lease term may not be less than 50 years from the date of Initial Endorsement.

5. Intentionally Omitted

6. Replacement of Previous Covenants [or Intentionally Omitted]( When prior agreement exists)

The Regulatory Agreements and supplemental agreements executed by the Mortgagor and HUD in connection with HUD Project No. XXX-XXXXXX shall be modified to conform to the covenants and agreements set forth in Sections B and E of these covenants. Notwithstanding this paragraph, the MRF Agreement executed in connection with the FHA 242 mortgage shall remain in place. However, there shall be a new MRF schedule for the FHA 242 mortgage and FHA 241 mortgage.

7. Intentionally Omitted

8. Initial Operating Capital Fund [or Intentionally Omitted][Start Up Hospital]

The organizers of the Mortgagor shall establish a special reserve fund with the Mortgagee for initial operating capital in a specially designated account in the amount of $___________. The purpose of the account is to provide additional liquidity for the start-up hospital until positive cash flow can be achieved.

a) The account must be funded at initial endorsement.

b) The Mortgagor may not use borrowed funds to establish the fund.

c) All releases from the fund must be approved in writing by HUD.

d) The mortgagor may request release of the initial operating capital remaining in the fund to the Mortgaged Entity after:

i. 12 full months of operations and,

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ii. in the absence of any draws from the initial operating capital fund for at least six months and,

iii. provision of a certified statement of cash flows to HUD broken out by month showing that positive cash flows have been achieved in each month of the six month period.

[Note: the required dollar amount should be in the range of four to six months operating expenses depending on the specific facts and circumstances.]

9. Environmental Special Condition

MORTGAGOR will comply with all environmental requirements as noted on the form HUD-4128 dated [FILL IN DATE]. The form HUD-4128 is attached and made a part of these Approval Covenants for HUD Section 242 Mortgage Insurance, for the collateral property to be located in [FILL IN PLACE], for all currently proposed and future construction or renovation projects on the HUD insured collateral.

10. Intentionally Omitted

11. Intentionally Omitted

12. Start-Up Plan [or Intentionally Omitted] (for Start up Hospitals)

[ fill in number ] months after initial endorsement, [ABC Hospital] management must submit a board-approved “Start-Up Plan” to the U.S. Department of Housing and Urban Development (“HUD”) Account Executive who has responsibility for the project. The Start-Up Plan will detail the plans for commencement of operations and for operating the hospital during the start-up period and for the first two years of operations. The Start-Up Plan must be acceptable to HUD.

13. Intentionally Omitted

14. Intentionally Omitted

15. Modification of Handbook Requirement for Ninety Percent Discount on Leasehold Interest [or Intentionally Omitted]

HUD agrees to a discount of five percent in lieu of subtracting ninety percent of the value of the leased fee interest in the property in accordance with the HUD Handbook 4615.1(3-3)(c), in exchange for the Mortgagor obtaining a 50 year leasehold interest on the property located at (fill in address _______) of leased property. This lease must include an option to renew the lease for an additional forty nine years at no additional cost in the event of (a) a monetary default on the FHA insured loan, or (b) in the event that a transfer of the FHA insured loan is necessary in order to avoid a monetary default. The option to renew shall automatically transfer to successor organizations. The option may provide for an increase in rents paid over time, in accordance with the consumer price index or some other index approved by HUD.

16. (Hospital Specific Condition #1 or Delete)

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B. Collateral

The HUD Insured Note shall be secured by a first priority lien on all current and future properties as further described herein:

1. The first lien Mortgage on all of Mortgagor’s real property identified in Exhibit A.

2. The first lien security interest over all current and future personal property of the Mortgagor, including, but not limited to, all equipment and fixtures (except leased or financed equipment and fixtures while covered by lease or financing arrangements), to be located at: [ADDRESS, CITY, STATE, ZIP], and as further described in Schedule A to the Security Agreement. [IF APPLICABLE] Excepted from the collateral property, plant, and equipment are items noted in Exhibit B.

3. The collateral shall include, without limitation, all receipts, revenues, income, profits, proceeds, accounts receivable and unrestricted cash and investments derived from properties owned or leased by the Mortgagor. [IF APPLICABLE] Excepted from this collateral are items noted in Exhibit B.

4. Any leased or financed equipment or fixtures that are initially excluded from the insured mortgage will become collateral for the FHA insured mortgage (in a first lien position) when the title to such equipment or fixtures becomes vested in the Mortgagor free of the security interest of others.

5. All current or future properties (which includes both personal property and real property) or receipts, revenues, income, profits or proceeds from the operation of the Mortgagor on or off mortgaged real estate will be considered part of the Mortgaged Property and subject to all provisions of the HUD Regulatory Agreement and Schedule A of the Security Agreement.

6. If the Mortgagor purchases or otherwise acquires any real estate property (“After-Acquired Real Estate Property”), the Mortgagor shall promptly execute and deliver a [Mortgage] [Deed of Trust][Security Deed], and other documents or instruments to the Mortgagee and HUD as the Mortgagee and/or HUD shall require to perfect and record the Mortgagee’s security interest with respect to such After-Acquired Real Estate Property. Such After-Acquired Real Estate Property shall be considered as part of the Mortgaged Property and subject to all provisions of the HUD Regulatory Agreement.

C. Conditions to be Satisfied Prior to Initial Closing

1. Existing Leased Equipment

The Mortgagor shall provide a listing of all property (land, buildings, and equipment), which is subject to financing arrangements, including all leased equipment.

2. Closing Documents

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All documents that must be reviewed by HUD shall be submitted no later than ten (10) business days prior to initial closing. At a minimum, the Mortgagor shall submit: one copy to HUD Field Counsel, two copies to the HUD Office of Healthcare Programs and one copy to the Account Executive of a complete closing packet, including, but not limited to, the following documents:

a. Regulatory Agreement

b. Mortgage Note

c. Mortgage

d. Building Loan Agreement (Construction deals only)

e. Security Agreement (including a list of all accounts)

f. Mortgage Reserve Fund Agreement

g. Mortgage Reserve Fund Trust Agreement

h. Draft Title Policy (Final Title Policy at closing)

i. Certification that the Hospital has established a cost accounting system to monitor Project costs and to facilitate Final Cost Certification

j. Mortgagor shall provide evidence of funding for ________________ at least thirty (30) days prior to closing. [Optional][or Intentionally Omitted]

A separate packet of construction related documents shall be submitted to the HUD Office of Healthcare Programs Office of Architecture and Engineering.

3. Confirmation of Property

The Mortgagor shall warrant that the items identified in the collateral Section B (Collateral) include all of the property (land, buildings, and fixed and moveable equipment) of the Mortgagor, its subsidiaries, and controlled organizations.

4. Maintenance of Integrity of Collateral and Project

Prior to initial closing, the Mortgagor shall not without the permission of HUD, unless permitted under the proposed loan covenants and HUD is informed of such action in writing: (1) transfer any assets outside of the Mortgagor corporation; (2) loan any money to any other organization; (3) make any investment in any other organization (including affiliated companies); (4) incur any debt or obligation other than trade payables in the ordinary course of business; (5) guarantee the debts of any other organization; or (6) reorganize its corporate structure (including the creation of parent, subsidiary, or affiliate organizations).

Any actions that the Mortgagor has already taken that conflict with this condition shall be fully explained to HUD’s satisfaction prior to initial closing.

5. Capitalized Interest

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No less than ten (10) business days prior to the initial closing, the Mortgagor shall provide an updated capitalized interest draw schedule that clearly shows when each phase of the project is expected to start and finish. Any additional payments that may be required as a result of cost overruns must be made with additional cash equity.

6. Reporting Requirements

The Mortgagor shall on a monthly basis until initial closing provide its monthly interim financial statements and utilization statistics to HUD no later than thirty (30) days after the close of the period.

7. Articles of Incorporation

Mortgagor shall take the necessary corporate action to amend its articles of incorporation, partnership agreement, or other organization documents to include subparagraphs (a) through (e) below, and also file the amendment to the certificate with the Secretary of State:

Mortgagor’s Certificate of Incorporation must be amended to expressly indicate that:

a. The Corporation shall provide on a nonprofit basis hospital facilities and services for the care and treatment of persons who are acutely ill who otherwise require medical and related services of the kind customarily furnished most effectively by hospitals, pursuant to Section 242 of the National Housing Act, as amended.

b. The Corporation shall have the power to mortgage or otherwise hypothecate its real and personal property and to do and perform all acts reasonably necessary to accomplish the purposes of the Corporation including the execution of a Regulatory Agreement with the Secretary of Housing and Urban Development, acting by and through the Federal Housing Commissioner, and of such other instruments and undertakings as may be necessary to enable the Corporation to secure the benefits of financing with the assistance of mortgage insurance under the provisions of the National Housing Act. Such Regulatory Agreement and other instruments and undertakings shall remain binding upon the Corporation, its successor and assigns, so long as a mortgage on the Corporation’s property is insured or held by the Secretary of Housing and Urban Development.

c. So long as a mortgage on the Corporation’s property is insured or held by the Secretary of Housing and Urban Development, these Articles may not be amended without the prior written approval of the said Secretary.

d. In the event of a conflict between any of the provisions of these Articles and any of the provisions of the Note, Mortgage, Security Agreement, or

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the Regulatory Agreement (the “HUD Loan Documents”), the provisions of the HUD Loan Documents shall govern and be controlling in all aspects.

e. The Corporation may adopt Bylaws at any regular meeting of the Corporation or at any special meeting called for that purpose, so long as they are not inconsistent with these Articles or with the Regulatory Agreement between the Corporation and the Secretary of Housing and Urban Development.

D. Special Conditions to be Satisfied at Initial Closing

1. Mortgage Reserve Fund (MRF) Trust Agreement

Mortgagee shall assure that the Mortgagor shall deliver at initial endorsement an agreement evidencing the establishment of a MRF trust account in accordance with the Mortgage Reserve Fund Agreement. The MRF Trust Agreement shall be in form and substance satisfactory to HUD.

2. Certification as to No Cross Defaults

Mortgagor shall deliver at initial endorsement a statement that there are no cross default provisions in any agreement undertaken by or with an affiliate of the Mortgagor that would cause a default on the part of the Mortgagor if the affiliate were to default on its obligations.

3. Deposit Accounts

a) At Initial Endorsement Mortgagor will obtain a control agreement(s) (“DACA”) in a

form necessary to perfect Mortgagee’s security interest in all of Mortgagor’s accounts pursuant to the applicable Uniform Commercial Code. At Initial Endorsement,

i. Mortgagor shall certify that each of its Deposit Accounts is subject to a DACA executed by Mortgagor, Mortgagee, and Mortgagor’s depository institution(s); and

ii. Mortgagor shall covenant that any new Deposit Account will be made subject to a DACA, unless HUD permits otherwise.

iii. Additionally, Mortgagor shall deliver an opinion of counsel that provides the following:

To the extent that a security interest in the Deposit Account(s) can be perfected under the law of the State by the execution and delivery of a control agreement, Mortgagee’s security interest in Mortgagor’s Deposit Accounts (as defined in the Uniform Commercial Code in effect in the State) will be perfected upon the (i) execution and delivery of the Security Agreement by all parties thereto and (ii) execution and delivery of the DACA(s) by all parties thereto.

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b) In the case of accounts into which healthcare receivables from governmental entities are deposited (“Governmental Receivable Account”), Mortgagor shall, along with the required DACA, provide its depository bank instructions to sweep the Governmental Receivable Account into an account upon which a DACA can and has been obtained. Such instructions must be satisfactory to HUD.

c) In the case of Mortgagors that are not subject to the Uniform Commercial Code,

Mortgagor shall provide all of the items stated above provided that the opinion may be qualified to indicate that the Uniform Commercial Code does not apply to Mortgagor.

d) Additionally, Mortgagee shall certify to HUD that it has obtained control agreements

on all accounts that Mortgagor has certified it maintains, excluding those accounts upon which HUD has not required a DACA.

4. Escrow Account [Optional – if required]

Mortgagor shall establish at or before initial endorsement a special escrow account in the total amount of $xxx,xxxx to be held by the Mortgagee, to be used for ….

E. To be Included in a Rider to the HUD Regulatory Agreement

(Note: As used herein the term “HUD” shall mean the U.S. Department of Housing and Urban Development.)

The following provisions are added at the end of the Regulatory Agreement to which this Rider I is attached (together, the “Regulatory Agreement”). Capitalized terms shall have the definition given those terms in Section 41 or elsewhere in this Rider I. Any capitalized terms not otherwise defined in Section 41 or elsewhere in this Rider I shall have such meaning given said term in the Regulatory Agreement to which this Rider I is attached.

20. Current and Future Property

a. All current or future properties (which includes both personal property and real property) and revenues of Mortgagor on or off the Mortgaged Property, including accounts receivable derived from whatever source shall be considered part of the Mortgaged Property and subject to all provisions of the Regulatory Agreement, except

i. Donations specifically restricted by donors, and/or

ii. Any other items of real or personal property excepted from the lien of the Mortgage or that certain Security Agreement of even date herewith (the “Security Agreement”) by and between Mortgagor and Mortgagee, which excluded property is described in Schedule A to the Security Agreement.

b. If the Mortgagor plans to purchase or otherwise acquire any real estate property (“After-Acquired Real Estate Property”), the Mortgagor shall:

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i. Not later than 30 days prior to the purchase or acquisition of such After-Acquired Real Estate Property provide a written notice to HUD and the Mortgagee; and

ii. Promptly execute, record, and deliver a [Mortgage] [Deed of Trust][Security Deed], and other documents or instruments to the Mortgagee and HUD as HUD or the Mortgagee shall request with respect to such After-Acquired Real Estate Property as FHA-insured loan security. Such After-Acquired Real Estate Property shall be considered as part of the Mortgaged Property and subject to all provisions of the HUD Regulatory Agreement.”

21. Mortgage Reserve Fund

Mortgagor agrees to establish and maintain a Mortgage Reserve Fund (“MRF”) in accordance with the requirements and conditions of HUD pursuant to the terms of that certain Mortgage Reserve Fund Agreement of even date herewith (the “MRF Agreement”) between HUD and Mortgagor, and to fund the MRF in accordance with the MRF Schedule (the “MRF Schedule”) attached to the MRF Agreement. No distribution that would result in a fund balance lower than that appearing in the MRF Schedule shall be made without the prior written approval of HUD.

22. Affiliate Transactions

a. All transactions with affiliates that are arms-length will be allowed and will not require approval. Notwithstanding Section 9(c) of the Regulatory Agreement, transactions that are not arms-length shall be considered a distribution of assets and are subject to the "Distribution of Assets" provisions in Section 23 below.

b. For purposes of this Section 22 (Affiliate Transactions), an affiliate shall be defined according to generally accepted accounting principles (“GAAP”) and includes, but is not limited to the following organization(s): [If none so state].

c. Any transaction involving the sale or exchange of property or the rendering of any service by the Mortgaged Entity to any affiliate shall be deemed to be an arms-length transaction if the property sold or exchanged or the service rendered is made available or provided at the lower of the market value or the fully allocated cost thereof to Mortgagor.

d. Any transaction involving the purchase of any property or service by the Mortgaged Entity from an affiliate shall be deemed to be an arms-length transaction if the actual cost thereof to Mortgagor is equal to or less than the amount ordinarily paid for such services, supplies, or materials in the area where the services are rendered or the supplies or materials furnished.

e. Payment for any service provided by Mortgagor to an affiliate must be received within ninety (90) days. If timely payments are not received, then Mortgagor must cease providing services to that affiliate until such

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time as the account is brought current (where current is defined as ninety (90) days or less).

f. If the Mortgagor has any business or activity other than the Project and operation of the mortgaged property per Section 9(a) of the Regulatory Agreement, the Mortgaged Entity may conduct business on the same terms as described in this Section 22 with such businesses and/or activities.

23. Corporate Distribution of Assets

a. Notwithstanding Section 4, or anything to the contrary in Section 9(a) of the Regulatory Agreement, assets, including cash, may be distributed to other organizations affiliated with Mortgagor (including related business activities as described in Section 9(a) of the Regulatory Agreement), or a parent organization with which Mortgagor is also affiliated, or stockholders, without HUD’s approval, if all of the following conditions are met:

(1) Final Endorsement of the HUD insured Deed of Trust Note (the “Note”);

(2) Mortgage payments for the preceding 12 months have been made when due, including any grace period;

(3) The Debt Service Coverage Ratio (“DSCR”) is greater than or equal to 1.50 in the Most Recent Audited Financial Statements and as of the date of distribution;

(4) Days in Accounts Receivable is less than or equal to 80 days in the Most Recent Audited Financial Statements and as of the date of the distribution;

(5) The Average Payment Period is less than or equal to 80 days in the Most Recent Audited Financial Statements and as of the date of the distribution;

(6) The MRF is fully funded as of the date of the distribution in conformity with the MRF Schedule;

(7) All income, property, and statutory employer payroll taxes and employee payroll withholding contributions (including penalties and interest if applicable) have been deposited as required as of the date of the distribution;

(8) The Current Ratio is greater than or equal to 1.50 in the Most Recent Audited Financial Statements and immediately after the distribution;

(9) Enhanced Days of Cash on Hand are greater than or equal to 21 days in the Most Recent Audited Financial Statements and immediately after the distribution;

(10) The distribution may not be more than fifty percent (50%) of Net Income as reflected in the Most Recent Audited Financial Statements

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unless Mortgagor has an Equity Financing Ratio equal to or greater than twenty percent (20%) in the Most Recent Audited Financial Statements and immediately after the distribution; and

(11) The Equity less any assets excluded from Mortgaged Property is greater than 0.00 in the Most Recent Audited Financial Statements and immediately after the distribution is made.

b. Distributions may occur upon the receipt by HUD of the prior year’s audited financial statement and compliance with the conditions in Section 23(a)(1) through 23(a)(11) listed above.

c. Prior to any distributions, Mortgagor shall furnish to HUD a certification signed by the Chairperson of the governing board, the Chief Executive Officer, and Chief Financial Officer, stating that (1) the required standards permit the proposed distribution, (2) the calculations confirming the permitted distribution, and (3) the actual amount of the distribution.

d. This covenant does not permit a “surplus cash” note without the prior written permission of HUD. A “surplus cash” note is defined as a note that requires or permits principal repayments only when there is cash available by satisfying the conditions in Section 23(a)(1) through 23(a)(11) listed above.

e. [OPTIONAL SPECIAL CONDITION IN LIMITED CIRCUMSTANCES] Condition 23(a)(1) requiring final endorsement of the insured note is waived with regard to payments to XXXXXXXX for an amount not to exceed _____________ for the period up to and including [fill date certain for approximately six months past commencement of amortization date] if all of the other conditions of this section are met. All conditions must be met after XXXXXXXXXXXX.

[The dollar amount is determined by the underwriting team and based on what the team and the hospital agree is a necessary transfer and for which the underwriting team has established is well below the expected net income for the time in question.]

24. New Corporations, Subsidiaries, and Affiliations

Mortgagor shall not establish, develop, organize, acquire, become the sole member of, or acquire an interest sufficient to require disclosure on the audited financial statements of Mortgagor, in any corporation, subsidiary, or affiliate organization other than those with which Mortgagor was affiliated as of the date the application for insurance of mortgage proceeds was filed with HUD on behalf of Mortgagor, without the prior written approval of HUD. Mortgagor shall not change its Articles of Incorporation without the prior written approval of HUD.

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25. Mergers

Mortgagor shall obtain HUD written approval for all future mergers, reorganizations, and/or consolidations.

26. Financial Reports

Section 9(f) of the Regulatory Agreement is hereby deleted in its entirety and replaced with the following new Section 9(f):

9(f)(1) Mortgagor shall file with HUD:

a. Annual audited financial statements and management letters (together, the “Management Letter”) from a certified public accountant or other person acceptable to HUD, in accordance with Sections 9(f)(2) through 9(f)(5) below;

b. Quarterly, or more frequently if requested by HUD, interim financial statements, including FTE’s and utilization statistics (see Exhibit C of the Commitment for Insurance of Advances issued by HUD dated [MONTH, DAY, YEAR], as said exhibit may be updated from time to time), within forty (40) days following the close of the reporting period;

c. Board-certified annual financial results within 120 days following the close of Mortgagor’s fiscal year (if the annual audited financial statement has not yet been filed with HUD) and at such other times as HUD may designate on a case-by-case basis;

d. Annual budget, including at a minimum, a balance sheet, income and expense statement, statement of cash flows, FTE's, and utilization statistics within thirty (30) days following the start of Mortgagor’s fiscal year;

e. Response to the Management Letter, within sixty (60) days following the date of the Management Letter;

f. Upon request, Mortgagor shall provide to HUD a copy of the Medicare Cost Report most recently submitted to the Centers for Medicare and Medicaid Services (an agency of the Department of Health and Human Services) or its successor, along with related financial documents;

g. During the construction period until1 the Mortgage has gone to Final Endorsement, Mortgagor shall provide to HUD on a monthly basis unaudited balance sheets, statement of operations, budget progress reports, FTE’s and statistics on the utilization of the services of Mortgagor within forty (40) days of the end of the month; and

h. Such other financial and utilization reports as HUD may require.

1 For start up hospitals insert “the later of three years following Commencement of Amortization, or ”

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9(f)(2) States, local governments, and not-for-profit organizations shall conduct audits in accordance with the Consolidated Audit Guide for Audits of HUD Programs (Handbook 2000.04) and OMB Circular A-133 (Audits of States, Local Governments and non-profit Organizations) in effect at the time of the Audit.

9(f)(3) For-profit organizations shall conduct audits in accordance with the Consolidated Audit Guide for Audits of HUD Programs (Handbook 2000.04) in effect at the time of the audit.

9(f)(4) The annual audited financial statements shall identify any change in accounting policies and its effect on the balance sheet and on the income statement. In the event consolidated financial statements are required under GAAP or Generally Accepted Governmental Auditing Standards (“GAGAS”) and/or such financial statements include assets, liabilities, net assets, revenues, and/or expenses excluded from the Mortgage or the Security Agreement, then the audited financial statements shall contain separate schedules including the Balance Sheet, Income and Expense Statement, Statement of Cash Flows, and any clarifications to the footnotes in the financial statements that may be required had the footnotes been prepared for only the Mortgaged Entity; subject to audit procedures; including only the Mortgaged Entity; and reconciled to the consolidated financial statements. If substantial assets are held outside of the Mortgaged Entity, materiality levels for the separate schedule shall be based on the Mortgaged Entity alone or the consolidated financial statements, whichever provides the highest degree of assurance.

9(f)(5) The books and records of management agents, lessees, operators, managers and affiliates, as they pertain to the operations of Mortgagor, shall be maintained in accordance with GAAP, or for certain governmental entities GAGAS, and shall be available for inspection by HUD after reasonable prior notice during normal business hours at the Hospital or other mutually agreeable location.

9(f)(6) Every contract executed on behalf of Mortgagor with any of the aforesaid parties shall include a provision that the books and records of such entities shall be properly maintained and open to inspection during normal business hours by HUD at the Hospital or other mutually agreeable location.

27. Business Plan/Consultant’s Report

a. The Governing Board of Mortgagor (the “Board”) shall, not less frequently than twice a year, review the financial statements of Mortgagor, including but not limited to, the fiscal year audited financial statements, any board-certified financial statements, and the six-month interim financial statements. Such Board review shall occur no later than thirty (30) days after its publication. Further, the Board shall provide HUD with a written report (“Report”) within thirty (30) days after its review as to what measures are being taken to improve Mortgagor’s financial operations if any of the conditions listed below exist:

(1) Loss from operations equal to or greater than one (1.0) percent of the total operating revenues;

(2) Net Income is less than 0.0; or

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(3) Failure to fully fund the MRF in accordance with the MRF Schedule.

b. Upon receipt of the Report, HUD may request Mortgagor to submit a business plan (the “Business Plan”), reviewed and approved by the Board as evidenced by a corporate resolution, within sixty (60) days of HUD’s request.

c. The Business Plan shall be updated yearly in conjunction with

Mortgagor's preparation of an annual budget and provided to HUD, along with the budget, no later than thirty (30) days after the start of each fiscal year until audited financial statements show two consecutive years in which Net Income is positive and the Loss from Operations is no greater than one percent (1%) of Total Operating Revenue. The Business Plan and each update shall include the following information:

(1) A detailed analysis of the major factors contributing to the negative

financial results; and

(2) A turnaround plan addressing the measures Mortgagor has taken or will take to rectify each of Mortgagor’s problem areas, projected timeline for implementation of the measures, and key officials accountable for the achievement of each measure; and

(3) Projections of the cost savings and/or revenue increases resulting from each step and a projected timeline for the realization of the cost savings and/or revenue enhancements (as a part of the turnaround plan), and

(4) Financial forecast, including significant assumptions and utilization statistics, of no less than twelve (12) months displaying the expected results and including:

(a) Pro forma balance sheets and revenue and expense projections on a monthly basis;

(b) Cash flow projections on a monthly basis; and

(c) Assumptions for all major line item projections in sufficient detail to show how the projections were derived.

d. The Business Plan shall include an approval resolution by the Board. HUD will monitor Mortgagor's compliance with the Business Plan.

e. If HUD does not receive the Business Plan within the required sixty (60) days, or if the Business Plan is not acceptable to HUD, or if Mortgagor is not attaining the goals of the Business Plan, HUD may require that Mortgagor engage, within forty-five (45) calendar days, at Mortgagor’s expense, an independent consultant (the “Review Consultant”), acceptable to HUD. The Review Consultant shall review Mortgagor's

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previously submitted Business Plan (if any) and performance and make recommendations in a written report (the “Review Consultant’s Report”) for corrective action that address: (a) the adequacy and sufficiency of the Business Plan in returning Mortgagor to a profitable operation, and (b) the operational or financial problems that have caused Mortgagor's operating losses and cash flow deficiencies.

f. If the Review Consultant's Report is not submitted on time, or if the Review Consultant's Report is not acceptable to HUD, or Mortgagor is not making progress toward implementing or achieving the recommendations contained in the Review Consultant's Report and/or the Business Plan as affirmed by the Review Consultant, HUD may require that Mortgagor engage, within forty-five (45) calendar days at Mortgagor’s expense, a separate, independent consultant, acceptable to HUD. This separate independent consultant will conduct a review of management performance and make recommendations for corrective action that address governance, organizational structure and management.

g. In the event any consultant's report has been required by HUD, the Board agrees to provide HUD with a detailed implementation plan of the consultant's recommendations, including reasons, if any, for not implementing the consultant's recommendations. A copy of the consultant's report shall be submitted to HUD immediately upon its completion. The implementation plan shall be done in the above Business Plan format and shall be given to HUD within forty-five (45) calendar days of Mortgagor's receipt of the consultant's report. HUD will monitor Mortgagor's compliance with the implementation plan.

28. Submission of Construction and Performance Review Report

a. Between HUD’s Initial Endorsement of the Note (the “Initial Endorsement”) and the Final Endorsement of the Note (the “Final Endorsement”), the Board shall on a quarterly basis furnish HUD with a report, within forty (40) days of the close of the period, addressing at a minimum:

(1) The progress of the construction;

(2) Adherence to the construction budget and the projected schedule,; and

(3) Anticipated issues, if any, including project scope change, change orders, and/or cost overruns, and how such challenges will be addressed.

b. Mortgagor shall provide evidence in the form of a certification delivered at or prior to Initial Endorsement attesting that it has established, and shall update on an ongoing basis not less frequently than monthly, a cost accounting system (the “System”) to monitor the project’s costs. The System is to facilitate timely final cost certification to meet a Final Endorsement date of no later than the commencement of amortization of the Note.

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29. Additional Indebtedness and Leasing

Notwithstanding Section 4(a) of the Regulatory Agreement, Mortgagor may incur additional indebtedness pursuant to the following:

a. Long Term Debt

(1) Additional Long Term Debt over one year in term (“Long Term Debt”), either secured or unsecured, for acquisition of capital assets or for improvements to the Mortgaged Property, either by capital leases, loans, or installment purchase contracts, may be incurred without the prior approval of HUD if Mortgagor can demonstrate an Historical Pro Forma DSCR of 1.50 or greater for each of the two (2) most recent past fiscal years and a DSCR of 1.50 or greater for the current fiscal year and that the new debt will not cause the DSCR to go below 1.50.

(2) The new Long Term Debt may be secured only by:

(a) Assets that are not pledged as collateral for the Mortgage, or

(b) Assets that are being acquired with the new debt.

(3) For equipment to be acquired through financing permitted by this covenant that is pledged as collateral as part of a financing agreement, Mortgagor shall:

(a) Obtain a provision in the financing agreement that states, in substance, that upon a default under the Mortgage, HUD, any mortgagee in possession, or successor organization has the right to assume the obligations of Mortgagor and use the financed assets for Hospital-related activities so long as such party agrees to be bound by all of the terms and conditions of the financing agreement (such provision is hereinafter referred to as the “Financing Successor Clause”);

(b) Obtain for all renewals of existing financing agreements the Financing Successor Clause. If the lender refuses to include the Financing Successor Clause, Mortgagor shall not enter into the new agreement without the prior approval of HUD;

(c) If requested by the financing lender, have Mortgagee enter into a subordination agreement or execute a release, as appropriate, and file a UCC Financing Statement Amendment (UCC-3) subordinating or releasing only those assets covered by the financing for the term of the finance period only, and have Mortgagee forward an information copy of such subordination agreement or release to HUD. If a release is utilized, at the expiration of the financing term, Mortgagor

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shall immediately notify Mortgagee, and have Mortgagee file a UCC-1 financing statement covering the financed equipment; and

(d) Have Mortgagee file UCC-1 financing statements or continuation statements, as appropriate, immediately after the lender has filed its first priority financing statement such that at the conclusion of the finance period the previously financed assets shall then be in a first lien security position under the Mortgage.

(4) For equipment that is to be leased under this covenant, Mortgagor shall:

(a) Obtain a provision in the leasing agreement that states, in substance, that upon a default under the Mortgage, HUD, any mortgagee in possession, or successor organization shall have the right to assume the obligations of Mortgagor and use the leased asset for Hospital-related activities so long as such party agrees to be bound by all of the terms and conditions of the leasing agreement (such provision is hereinafter referred to as the “Personalty Lease Successor Clause”);

(b) Obtain for all renewals of existing leasing agreements the Personalty Lease Successor Clause. If the Lessor refuses to include the Personalty Lease Successor Clause, Mortgagor shall not enter into the new lease without the prior approval of HUD;

(c) If requested by the lessor, have Mortgagee file a subordination agreement under the UCC releasing only those assets covered by the lease for the term of the lease period only, and have Mortgagee forward an information copy of such subordination agreement or release to HUD. If a release is utilized, at the expiration of the lease term, Mortgagor shall immediately notify Mortgagee, and have Mortgagee file a UCC-1 financing statement covering the financed equipment; and

(d) Have Mortgagee file UCC financing statements or amendment statements, as appropriate, so that at the conclusion of the lease period the previously leased assets shall then be in a first lien security position under the Mortgage and the Security Agreement.

b. Short Term Debt

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(1) Short Term Debt of under one year (“Short Term Debt”), either secured or unsecured, may be incurred, without prior approval, up to an amount in the current fiscal year that does not exceed five percent (5%) of the average Adjusted Operating Revenue for the three most recent fiscal years and if the DSCR is 1.50 or greater for the current fiscal year.

(2) As part of Short Term Debt, there can be a line of credit (“Short Term LOC”) in an amount not to exceed fifteen (15) days of Adjusted Operating Expenses, as reflected on the Most Recent Audited Financial Statements that can be secured by patient accounts receivable only, which shall not exceed 150 percent of the Short Term LOC.

(3) All Short Term Debt must be “paid down” to zero for at least 20 consecutive days during each fiscal year. An exception to this “paid down” requirement will be permitted for an amount of the working line of credit that the chief financial officer of Mortgagor certifies is outstanding to offset a temporary delay in receipt of funds from third party payers. The exempt amount shall not exceed two percent (2%) of the average Adjusted Operating Revenue for the three most recent fiscal years.

c. Limitation on Total Debt Service Payments

In addition to satisfying the separate requirements for Long Term Debt and Short Term Debt, the combined debt service payments for all Long Term Debt and Short Term Debt in the current year shall not exceed 10 percent of the average Adjusted Operating Revenue for the three most recent fiscal years.

d. Reporting Requirements

If additional indebtedness is undertaken, the chief financial officer of Mortgagor shall certify to HUD compliance with:

(1) If Long Term Debt is undertaken pursuant to the terms of Section 29(a) above, the Historical Pro Forma DSCR of 1.50 or greater for the previous 2 years and the current year’s DSCR of 1.50 or greater;

(2) If any additional indebtedness is undertaken pursuant to the terms of Section 29 above, the combined debt service payments for all Long Term Debt and Short Term Debt in the current year is not projected to exceed 10 percent of the average Adjusted Operating Revenue for the three most recent fiscal years;

(3) If Short Term Debt is undertaken pursuant to the terms of Section 29(b) above, the amount of the line of credit does not exceed fifteen (15) days of Adjusted Operating Expenses as reflected on the Most Recent Audited Financial Statements nor does the collateral for the Short Term LOC exceed 150 percent of the amount of the line of credit. This certification will be consistent with GAAP and the definitions stated below; and

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(4) If any additional indebtedness is undertaken pursuant to the terms of Section 29 above, the type, the amount, the annual principal and the annual interest payments for both the new and existing indebtedness shall be provided to HUD.

e. Existing Leases for Property and Equipment

(1) For existing property lease(s) having an expiration of more than 1 year from the date of the Regulatory Agreement, Mortgagor shall use all reasonable efforts to obtain a provision in the lease(s) that states, in substance, that upon a default under the Mortgage, HUD, any mortgagee-in-possession, or any successor organization would have a right to occupy the leased premises for Hospital-related activities so long as such party agrees to be bound by all of the terms and conditions of the lease (such provision in the lease is hereinafter referred to as the “Realty Lease Successor Clause”).

(2) For all renewals of existing leases for property hereafter entered into by Mortgagor, the Realty Lease Successor Clause shall be obtained. If the Lessor refuses to include the Realty Lease Successor Clause, Mortgagor shall not enter into the new lease without the prior approval of HUD.

(3) For existing capitalized lease(s) of equipment having an expiration of more than one (1) year from the date of the Regulatory Agreement, Mortgagor shall use all reasonable efforts to obtain the Personalty Lease Successor Clause.

(4) For all future capitalized equipment leases or renewals of existing capitalized equipment leases hereafter entered into by Mortgagor, the Personalty Lease Successor Clause shall be obtained, otherwise Mortgagor shall not enter into the new or renewal lease without the prior approval of HUD.

30. Annual Verification of Compliance with Loan Covenants/Conditions

a. Annually, Mortgagor shall have its independent auditor provide an unqualified opinion that in connection with the annual audit, nothing came to the auditor's attention to cause the auditor to believe that Mortgagor is not in compliance with the applicable covenants of the Regulatory Agreement, or, if the auditor is unable to provide an unqualified opinion, the auditor shall provide a listing of any items of noncompliance along with an explanation. The opinion or explanation can be accomplished either:

(1) If not required to be included in the audit itself, through a letter directly from the auditor to HUD sent when the audited financial statements are finalized; or

(2) Through a separate report referred to in the Independent Auditor’s Report attached to the audited financial statements.

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b. The letter or report shall include a statement listing:

(1) the amount required in the MRF as of the balance sheet date;

(2) the actual balance of the MRF as of the balance sheet date; and

(3) a calculation for DSCR, Current Ratio, Average Payment Period, and Equity Financing Ratio, as such terms are defined at the end of this Rider.

31. Cost Containment/Revenue Increases

Mortgagor agrees that in the event shortfalls in revenue, reductions in rates of reimbursement or other circumstances cause the facility to incur a net loss (defined as negative Net Income), action will be taken to increase revenues and/or reduce operating costs in order to compensate for the resulting losses and restore the facility to positive Net Income.

32. Changes in Reimbursement

In the event that the Legislature of the State in which the Hospital is located or the U.S. Congress enact substantial changes in Medicaid and/or Medicare reimbursement that could cause a Significant Negative Impact on Mortgagor’s financial condition, Mortgagor commits to report to HUD its assessment of the impact of the change within thirty (30) days following the enactment of such changes. Mortgagor shall take appropriate actions to mitigate any significant negative impacts of such changes, including executing a Board approved plan of expense curtailments and revenue increases. Mortgagor shall submit its plan of action, as approved by the Board, to HUD within sixty (60) days following a request by HUD for such a plan. HUD, as part of its normal oversight, will monitor Mortgagor’s financial performance and may request a Business Plan/Consultant’s Report under the circumstances outlined in Section 27 (Business Plan/Consultant’s Report) above. The purpose of these actions would be to assure that Mortgagor will continue to serve the health needs of its community and meet its Mortgage obligations.

33. Verification of Equipment

Upon completion of the Project, and in conjunction with final cost certification, an authorized representative of Mortgagor (or the auditing firm performing the cost certification) shall submit a letter to HUD, stating that all equipment included in the final equipment list is on Mortgagor’s premises and located within buildings included in the Mortgage.

34. Loan Guarantee

Mortgagor shall not be involved in any debt other than the Mortgage, as a co-signer, obligee, guarantor, etc., of any organization without the approval of HUD.

35. Indemnification of Board Members, Directors and Officers Liability Insurance and Related Matters

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a. Mortgagor may indemnify the Board members to the extent permitted or required by State law. This may be reflected in Mortgagor's Certificate or Articles of Incorporation and/or Bylaws. If Mortgagor elects to indemnify the Board members, the primary vehicle for indemnification shall be insurance. Whether or not Mortgagor elects to corporately indemnify the Board members, Mortgagor shall secure directors and officers (“D&O”) insurance and maintain such insurance all times. Such D&O insurance shall be of a type and amount customary in the health care industry and determined by an independent insurance consultant to be adequate to protect the interests of Mortgagor, Mortgagee, and HUD.

b. Mortgagor shall provide evidence that D&O insurance is in place at Initial Endorsement and Final Endorsement. Evidence of insurance will also be required in conjunction with closing of significant loan modifications, such as mergers and bond refundings.

c. Mortgagor shall maintain at all times liability, boiler, vehicle, and medical malpractice insurance of a type and amount customary in the health care industry and determined by an independent insurance consultant to be adequate to protect the interests of Mortgagor, Mortgagee, and HUD.

d. Mortgagor shall annually report and certify all its insurance coverages, including but not limited to: hazard, liability, boiler, vehicle, medical malpractice, and D&O insurance. This report and certification must be submitted to HUD in conjunction with the filing of Mortgagor's annual audited financial statements. Mortgagee, and its servicer, if applicable, is responsible for monitoring Mortgagor's insurance policies to ensure that coverage remains in force at all times, as required by HUD Handbook 4350.1 REV-1 and this Section 35 (Indemnification of Board Members, Directors and Officers Liability Insurance and Related Matters).

e. If an incident occurs where an insurance company refuses to provide legal defense or coverage under Mortgagor's D&O policy, Mortgagor shall immediately notify Mortgagee and HUD. If requested by HUD, Mortgagor shall also notify the State Insurance Commissioner of the D&O insurance carrier’s refusal to provide legal defense or coverage. In any case where an insurance company arbitrarily or capriciously refuses to provide legal defense or coverage under Mortgagor’s D&O policy, the Board must vigorously pursue its rights under the insurance contract and remedies at law.

36. Amendment of Section 13 of the Regulatory Agreement

Amend Section (13)(2) to replace “and charges” with “, receivables, charges, income, and other revenues.”

37. Swaps

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Swaps of interest rates are not “usual operating expenses and necessary repairs” for a Hospital under Section 4(b) of the Regulatory Agreement. Mortgagor shall not enter into an interest rate swap related to the loan secured by the Mortgage, or any financial instrument that is directly or indirectly related to said loan without prior written permission from HUD.

38. Compensation for Certain Key Officers

Section 4(d) of the Regulatory Agreement is amended to insert at the end thereof the following: “; except to the extent of compensation paid that represents the normal and customary value of services rendered in his or her capacity as an employee of Mortgagor;”

39. Cross Defaults

Mortgagor warrants that there are no cross default provisions in any agreement undertaken by or with an affiliate of Mortgagor that would cause a default on the part of Mortgagor under the Regulatory Agreement, the Mortgage, the MRF Agreement, or any other document executed in connection with the Mortgage if the affiliate were to default on its obligations.

40. Amendments

The parties hereto agree that the Regulatory Agreement and the Rider 1 attached thereto may be modified from time to time by written agreement executed by both parties hereto.

41. Definitions

For the purpose of determining compliance with these covenants, the DSCR, Current Ratio, Average Payment Period, Total Operating Revenue, Loss from Operations, Net Loss, and other ratios/measures referred to in this Regulatory Agreement shall be based on information contained in the latest audited annual financial statements and calculated in the annual compliance letter or report from Mortgagor's independent auditor unless specifically stated otherwise.

All financial thresholds, ratios, and account balances in the Regulatory Agreement and/or any subsequent agreements are to be calculated or determined after excluding assets, liabilities, net assets, revenues, and expenses that are not encumbered by the Mortgage or the Security Agreement, unless specifically stated otherwise.

The following definitions shall be used:

Adjusted Operating Expenses is defined as: total operating expenses less depreciation and bad debt expense.

Adjusted Operating Revenue is defined as: net patient revenue less bad debt expense plus other income from operations. Income from investments, unrestricted contributions, interest income, gains from the sale of assets, non-operating revenues, and extraordinary gains are excluded from operating revenues.

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Audit shall mean the audit referred to in Section 26 above, which section replaces Section 9(f) of the Regulatory Agreement.

Average Payment Period is defined as: Total Current Liabilities divided by ((Total Operating Expenses minus Depreciation Expense minus Bad Debt Expense) divided by 3652).

Current Ratio is defined as: Current Assets divided by Current Liabilities.

Enhanced Days Cash on Hand is defined as:

Cash plus Current Investments plus Qualified Liquid Investments (Total Operating Expense minus Depreciation Expense minus Bad Debt Expense)

divided by 3651 Days

DSCR (total Debt Service Coverage on all Long Term Debt) is defined as: Net Income plus Interest Expense plus Depreciation Expense plus Amortization Expense all divided by Interest Expense plus Current Portion Long Term Debt (including capital leases) from the previous year's audited financial statement.

Equity is defined as: equity for a for-profit entity, total net assets for a not-for-profit entity, and total net assets for governmental entities.

Equity Financing Ratio is defined as:

Equity minus any assets excluded from the Mortgaged Property Total assets less any assets excluded from the Mortgaged Property

Final Endorsement is defined as: HUD’s Final Endorsement of the HUD insured Deed of Trust Note.

Historical Pro Forma DSCR is defined as: Net Income plus Interest Expense plus Depreciation Expense plus Amortization Expense all divided by Interest Expense (existing and proposed) plus Current Portion Long Term Debt (including capital leases and current portion of the proposed additional debt) from Mortgagor’s previous year's audited financial statement.

Mortgaged Property is defined as: that property of Mortgagor encumbered by the Mortgage and the Security Agreement.

Mortgaged Entity is defined as: the Mortgagor and its assets, liabilities, net assets, revenues, and expenses that are encumbered by the Mortgage or the Security Agreement. It also includes leased equipment that is so identified and located on the Mortgaged Property for the benefit of the Hospital and restricted assets that are so identified.

Most Recent Audited Financial Statements shall refer to the audited financial statement required under the Regulatory Agreement in Section 26 above, which Section replaces Section 9(f) of the Regulatory Agreement, for the year prior to the current fiscal year.

2 Or the number of days in the measurement period if the measurement period is less than 365 days.

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Net Income is defined as: net income for for-profit entities; excess of revenues over expenses for not-for-profit entities; and excess of revenues over expenses before capital grants, contributions, and additions to permanent endowment for governmental entities.

Qualified Liquid Investments is defined marketable securities, CD's, and bond investments that are undesignated and available for general operational use of the hospital within six months or less if so desired. Qualified liquid investments does not include: a) Any accounts, investments, etc. that are part of a self insurance fund; b) Proceeds of any borrowings including without limitation: (1) any internal affiliate loans regardless of the maturity date, (2) proceeds of any outstanding accounts receivable financing; (3) proceeds from lines of credit, or (4) funds supporting a letter of credit, loan guarantee, etc. c) Investments in any related entity or entity controlled by a related entity; d) Pledges receivable; e) Permanently restricted net assets; f) Reserve funds related to an issuance of bonds; g) Amounts shown as an unfunded or under funded reserve(s); h) Mortgage Reserve Fund(s) or other loan reserve funds; or i) Any items that cannot be clearly identified as meeting the criteria of this definition in the financial statements of the organization. Generally, alternative investments are excluded from Qualified Liquid investments.

Significant Negative Impact is defined as: the occurrence of one or more of the following:

(1) A loss from operations equal to or greater than three (3.0) percent of the total operating revenues; or

(2) Net Income less than 0.0

Total Operating Revenue is defined as: Net Patient Service Revenue plus Other Operating Revenue (Income from investments, unrestricted contributions, interest income, gains from the sale of assets, non-operating revenues, and extraordinary gains are excluded from operating revenue.)

42. Critical Access Hospitals

Section 15(i)(2) of the Regulatory Agreement is amended to add the following phrase immediately after word “tuberculosis”: [“except that the 50 percent patient day restriction does not apply to Critical Access Hospitals (hospitals designated as such under the Medicare Rural Hospital Flexibility Program).”]

43. Comparison of Financial Forecast to Actual Results for the Forecast Periods

No later than 120 days following the end of the Mortgagor’s fiscal year, the Mortgagor shall provide HUD with an analysis of its performance (financial and utilization) versus its budget and versus the Financial Feasibility Study (FFS) projections submitted with the Section 242 mortgage insurance application and titled

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“ XXXXXX Hospital” (dated ______________). Deviations from the budget and the FFS shall be discussed in an accompanying statement from the management and Board of the Mortgagor.

44. Intentionally Omitted

45. Intentionally Omitted

46. Intentionally Omitted

47. Intentionally Omitted

48. Intentionally Omitted

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Exhibit A

[AE attaches legal description of property in this space from Volume III, tab 2 of application] [AE attaches organizational chart of Mortgaged Entity showing what is in and what is out in this space.]

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Exhibit B

The following items are excluded from the collateral property.

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Exhibit C

Hospital Name: Fiscal Year: Please provide any of the following items that are not specifically broken out in the audited financial states: Balance Sheet Accounts Payable and Accrued Expenses (excluding Accrued Salaries and Benefits)

Income Statement Inpatient Net Revenue

Outpatient Net Revenue Total Supplies Expense (including utilities and insurance) Total Salaries and Benefits (including professional fees) Non-Operating Revenue Non-Operating Expense Post-Retirement Benefits (FASB 106): Transition Obligation Annual Accrued Expense (excluding Transition Obligation) Annual Cash Expense Mortgage Reserve Fund Required MRF Balance

Actual MRF Balance Inpatient Revenue (Specify whether Gross ___ or Net ___) Medicare

Medicaid Blue Cross Commercial Insurance HMO/Managed Care Self Pay Other Inpatient Utilization Total Licensed Beds Total Staffed Beds (Acute Care, excluding Newborn) (Acute Care, excluding Newborn)

Service # Beds Staffed Discharges Patient Days Acute Medical/Surgical (including Pediatrics, Ob/Gyn, ICU/CCU) (excluding Newborn)

Newborn Other Acute Care (excluding above 2 Lines) Other Non-Acute Care Case Mix Index ALOS Medicare (Acute Care only, excluding Newborn) Non-Medicare (Acute Care only, excluding Newborn) All Patients (Acute Care only, excluding Newborn) Inpatient Cost Per Discharge: $ Outpatient Utilization Emergency Room Visits

Ambulatory Surgery Clinic Visits Other Outpatient Visits Staffing Total Full-Time Equivalents HRSA-906 *U.S. GPO: 1994-377-478/1908

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