Exhibit 10.43
FINANCING AGREEMENT
between
THE CITY OF BECKLEY, WEST VIRGINIA
and
BECKLEY HEALTH CARE CORP.
Dated as of September 1, 1996
NOTE: THIS FINANCING AGREEMENT AND A PROMISSORY NOTE IN THE FORM AS
DESCRIBED HEREIN HAVE BEEN ASSIGNED TO, AND ARE SUBJECT TO A
SECURITY INTEREST IN FAVOR OF ONE VALLEY BANK, NATIONAL
ASSOCIATION, AS TRUSTEE UNDER AN INDENTURE OF TRUST DATED AS
OF SEPTEMBER 1, 1996, WITH THE COMMON COUNCIL OF THE CITY OF
BECKLEY BY AND ON BEHALF OF CITY OF BECKLEY, WEST VIRGINIA, AS
AMENDED OR SUPPLEMENTED FROM TIME TO TIME. INFORMATION
CONCERNING SUCH SECURITY INTEREST MAY BE OBTAINED FROM THE
TRUSTEE AT ITS PRINCIPAL TRUST OFFICE IN CHARLESTON, WEST
VIRGINIA.
This FINANCING AGREEMENT, made as of the first day of October, 1996,
between THE COMMON COUNCIL OF THE CITY OF BECKLEY BY AND ON BEHALF OF CITY OF
BECKLEY, WEST VIRGINIA, a political subdivision of the State of West Virginia,
(the "Issuer"), and BECKLEY HEALTH CARE CORP., a corporation duly organized
under and validly existing by virtue of the laws of the State of West Virginia
(the "Company");
W I T N E S S E T H :
WHEREAS, the Issuer in a duly organized political subdivision of the
State of West Virginia and is authorized by Chapter 13, Article 2C, Code of West
Virginia of 1931, as amended (the "Act"), (a) to issue its revenue bonds for the
purpose of providing funds (i) to pay the cost of acquiring, constructing,
furnishing and equipping a commercial facility comprising a health care facility
and (ii) to refund one or more series of revenue bonds previously issued
pursuant to the Act to finance any such facility, in either case by lending the
proceeds of such revenue bonds or otherwise making such proceeds available for
such purposes to any person, firm or private corporation which will operate and
maintain such facility in such a manner as shall effectuate the purposes of the
Act and (b) to secure its revenue bonds by a trust agreement between the issuer
and a corporate trustee including therein the pledge and assignment of revenues
from any such loan to the payment of such revenue bonds; and
WHEREAS, pursuant to such authorization and in order to further the
purposes of the Act, the Issuer intends to issue and sell its Nursing Facility
Refunding Revenue Bonds (Beckley Health Care Corp. Project), Series 1996 in the
original principal amount of $2,830,000 (the "Bonds") and refund in full the
outstanding principal amount of its $2,830,000 First Mortgage Refunding Revenue
Bonds (Beckley Health Care Corp. Project) Series 1986 (the "Prior Bonds"), the
proceeds of which were used to refund those certain City of Beckley First
Mortgage Medical Facilities Revenue Bonds (Beckley Health Care Corp.), Series
1982, the proceeds of which were used to pay the cost of the acquisition,
construction and equipping of a 120-bed skilled and intermediate care nursing
home facility operated by the Company and situate within the City of Beckley,
West Virginia (the "Facility"); and
WHEREAS, by issuing the Bonds to refund the Prior Bonds, the Issuer and
the Company expect to finance the Facility more economically and thereby to
achieve interest cost savings; and
WHEREAS, in return for the use of the proceeds of the sale of the Bonds
by the Issuer to refund the Prior Bonds, the Company has agreed to repay the
amounts so used on the terms and conditions hereinafter set forth; and
WHEREAS, the Company has determined to issue its promissory note to the
Issuer in the principal amount of the Bonds (the "Note") to evidence the
Company's obligation to repay such amounts under the terms and conditions set
forth herein; and
WHEREAS, all things necessary to constitute the Note a valid and
binding obligation and to constitute this Financing Agreement a valid and
binding agreement securing the payments under the Note have been done and
performed and the execution and delivery of the Note and this Financing
Agreement, subject to the terms hereof, have in all respects been duly
authorized;
NOW, THEREFORE, for and in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto covenant and agree as
follows:
ARTICLE I
DEFINITIONS AND RULES OF CONSTRUCTION
Section 1.1. Definitions. The following terms shall have the meaning
set forth hereinafter. All other defined terms used but not defined herein shall
have the same meaning as set forth elsewhere herein or in Article I of the
Indenture unless the context clearly indicates to the contrary.
"Agreement" or "Financing Agreement" shall mean this Financing
Agreement, including any amendments hereto.
"Financing Instruments" shall mean this Financing Agreement, the
Indenture, the Note, the Escrow Agreement, the Reimbursement Agreement and the
Bond Purchase Agreement.
"Indenture" shall mean the Indenture of Trust dated as of the date
hereof between the Issuer and the Trustee, as amended from time to time.
"1954 Code" shall mean the Internal Revenue Code of 1954, as amended.
"1982 Bonds" shall mean the revenue bonds issued by the Issuer under
the Act in 1982 in order to pay the cost of the acquisition, construction and
equipping of the Facility and refunded in full with the proceeds of the Prior
Bonds.
"Prime Rate" shall mean the rate per year announced from time to time
by the Trustee, as its prime rate, with any change in the Prime Rate being
effective as of the date such announced prime rate is changed.
"Prior Bonds Trustee" shall mean One Valley Bank, National Association
(formerly, Kanawha Valley Bank, N.A.), Charleston, West Virginia, as indenture
trustee for the Prior Bonds.
"Prior Indenture" shall mean the Trust Indenture dated as of July 1,
1986 between the Issuer and the Prior Bonds Trustee pursuant to which the
Prior Bonds were issued and secured.
"Regulations" shall mean the income tax regulations promulgated
pursuant to the 1954 Code, as such applicable proposed, temporary or final
regulations may be amended or supplemented from time to time.
Section 1.2. Rules of Construction. Unless the context clearly
indicates to the contrary, the following rules shall apply to the construction
of this Financing Agreement:
(a) Words importing the singular number shall include the plural
number and vice versa.
(b) Words importing the redemption or calling for redemption of Bonds
shall not be deemed to refer to or connote the payment of Bonds at their stated
maturity.
(c) All references herein to particular articles or sections are
references to articles or sections of this Financing Agreement unless otherwise
indicated.
(d) The headings and Table of Contents herein are solely for
convenience of reference and shall not constitute a part of this Financing
Agreement nor shall they affect its meaning, construction or effect.
(e) Accounting terms not otherwise defined have the meaning assigned to
them in accordance with generally accepted accounting principles.
ARTICLE II
REPRESENTATIONS
Section 2.1. Representations by Issuer. The Issuer makes the following
representations:
(a) The Issuer is a political subdivision of the State of West Virginia
and has the power to enter into the Financing Instruments to which it is a party
and the transactions contemplated thereby and to perform its obligations
thereunder, to issue the Bonds to refund the Prior Bonds, and to assign the Note
to the Trustee.
(b) By proper action in the form of resolutions adopted by The Common
Council of the City of Beckley, West Virginia, the Issuer has duly authorized
the execution and delivery of the Financing Instruments to which it is a party,
and the Bonds, the performance of its obligations thereunder and the issuance of
the Bonds and, simultaneously with the execution and delivery of this Financing
Agreement, the Issuer has duly executed and delivered the Financing Instruments
to which it is a party and issued and sold the Bonds.
(c) To the best of its knowledge, the Issuer is not in default in the
payment of the principal of or interest on any of its indebtedness for borrowed
money and is not in default under any instrument under or subject to which any
indebtedness for borrowed money has been incurred, and no event has occurred and
is continuing under the provisions of any such instrument that with the lapse of
time or the giving of notice, or both, would constitute an event of default
thereunder; provided, however, that no representation is expressed concerning
previously issued revenue bonds for private parties under the Act, the status of
which have no adverse effect on the Issuer's power or authority to carry out the
transactions contemplated by this Financing Agreement.
(d) The Issuer is not (1) in violation of the Act or any existing law,
rule or regulation applicable to it or (2) in default under any indenture,
mortgage, deed of trust, lien, lease, contract, note, order, judgment, decree or
other agreement, instrument or restriction of any kind to which any of its
assets are subject; provided, however, that no representation is expressed
concerning previously issued revenue bonds for private parties under the Act,
the status of which have no adverse effect on the Issuer's power or authority to
carry out the transactions contemplated by this Financing Agreement. The
execution and delivery by the Issuer of the Financing Instruments to which it is
a party and the Bonds and the compliance with the terms and conditions thereof
will not conflict with or result in the breach of or constitute a default under
any of the above described documents or other restrictions.
(e) No further approval, consent or withholding of objection on the
part of any regulatory body, federal, state or local, is required in connection
with (1) the issuance and delivery of the Bonds by the Issuer, (2) the execution
or delivery of or compliance by the Issuer with the terms and conditions of the
Financing Instruments to which it is a party, or (3) the assignment and pledge
by the Issuer pursuant to the Indenture of its rights under this Financing
Agreement including the Note and the payments thereon by the Company, as
security for payment of the principal of and interest on the Bonds. The
consummation by the Issuer of the transactions set forth in the manner and under
the terms and conditions as provided herein will comply with all applicable
state, local or federal laws and any rules and regulations promulgated
thereunder by any regulatory authority or agency.
(f) No litigation, inquiry or investigation of any kind in or by any
judicial or administrative court or agency is pending or, to its knowledge,
threatened against the Issuer with respect to (1) the organization and existence
of the Issuer, (2) its authority to execute or deliver the Financing Instruments
to which it is a party, the Indenture or the Bonds or the assignment of the
Note, (3) the validity or enforceability of any of such instruments or the
transactions contemplated hereby or thereby, (4) the title of any officer of the
Issuer who executed such instruments, or (5) any authority or proceedings
related to the execution and delivery of such instruments on behalf of the
Issuer. No such authority or proceedings have been repealed, revoked, rescinded
or amended, and all are in full force and effect.
(g) The Issuer hereby finds that the refunding of the Prior Bonds is
advisable and will serve the purposes of the Act.
(h) The issuance of the Prior Bonds was approved by the Issuer at a
meeting duly called and held on July 22, 1986, notice of which meeting was
published in a newspaper having general circulation in City of Beckley, West
Virginia on July 8, 1986.
Section 2.2. Representations by Company. The Company makes the
following representations:
(a) The Company is a corporation duly organized and validly existing
under the laws of the State of West Virginia; has the power to enter into the
Financing Instruments to which it is a party and the transactions contemplated
thereunder; and by proper action has duly authorized the execution and delivery
of such Financing Instruments and the Note and the performance of its
obligations thereunder.
(b) The Company is licensed by the appropriate West Virginia state and
local authorities and is authorized to operate the Facility in the manner in
which it is currently operated.
(c) The Company is not in default in the payment of the principal of or
interest on any of its indebtedness for borrowed money and is not in default
under any instrument under and subject to which any indebtedness has been
incurred, and no event has occurred and is continuing under the provisions of
any such agreement that with the lapse of time or the giving of notice, or both,
would constitute an event of default thereunder.
(d) There is no litigation at law or in equity or any proceeding before
any governmental agency involving the Company pending or, to the knowledge of
the Company, threatened against the Company in which any liability of the
Company is not adequately covered by insurance or for which adequate reserves
are not provided or for which any judgment or order would have a material
adverse effect upon the business or assets of the Company or affect its
existence or authority to do business, the operation of the Facility, the
validity of the Financing Instruments to which it is a party or the performance
of its obligations thereunder.
(e) The execution and delivery of the Financing Instruments to which it
is a party, the performance by the Company of its obligations thereunder and the
consummation of the transactions contemplated therein do not and will not
conflict with, or constitute a breach or result in a violation of, the Company's
articles of incorporation or bylaws, any agreement or other instrument to which
the Company is a party or by which it is bound or any constitutional or
statutory provision or order, rule, regulation, decree or ordinance of any
court, government or governmental authority having jurisdiction over the Company
or its property.
(f) The Company has obtained all consents, approvals, authorizations
and orders of any governmental or regulatory authority that are required to be
obtained by the Company as a condition precedent to the issuance of the Bonds,
the execution and delivery of the Financing Instruments to which it is a party
and the performance by the Company of its obligations thereunder, or that are
required for the operation of the Facility.
(g) The Facility complies with all presently applicable ordinances and
licensure and environmental protection laws, the noncompliance with which would
have a material adverse effect on the business or operations of the Company
conducted at the Facility.
(h) To the best of its knowledge, interest paid or accrued on the 1982
Bonds was at all times exempt from federal income taxation under Section 103 of
the 1954 Code. To the best of its knowledge, interest paid or accrued on the
Prior Bonds was at all times excluded from the gross income of the owners
thereof for purposes of federal income taxation.
(i) The Company intends to continue to cause the Facility to be
operated as a nursing home facility meeting all of the requirements of the Act
for so long as the Bonds are outstanding.
(j) To the best of its knowledge, at least 98% of the proceeds of the
Prior Bonds, together with other available moneys, were applied to redeem the
1982 Bonds in full within 90 days of the date the Prior Bonds were issued. To
the best of its knowledge, no more than 2% of the proceeds of the Prior Bonds
were applied to pay their costs of issuance.
ARTICLE III
ISSUANCE OF THE BONDS AND USE OF PROCEEDS;
EXECUTION AND DELIVERY OF THE NOTE
Section 3.1. Agreement to Issue Bonds; Application of Bond Proceeds.
The Issuer, concurrently with the execution and delivery of this Financing
Agreement, will issue, sell and deliver the Bonds and will deposit the proceeds
thereof with the Trustee. In accordance with the Indenture, the Trustee will
deliver or will cause the Underwriter to deliver all of such proceeds to the
Prior Bonds Trustee to be applied, together with other moneys provided by the
Company, to defease and redeem the Prior Bonds in full and discharge the Prior
Indenture.
Section 3.2. Refunding by the Issuer. Upon the terms and conditions of
this Financing Agreement and the Indenture, the Issuer agrees to use the
proceeds of the sale of the Bonds to refund the Prior Bonds.
Section 3.3. Execution and Delivery of the Note prior to or
simultaneously with the issuance of the Bonds, to evidence its repayment
obligations hereunder, the Company shall execute and deliver the Note in
substantially the form of Exhibit A to the Issuer for assignment to the Trustee
as security for the payment of the Bonds.
Section 3.4. No Lien on or Security Interest in Facility. This
Financing Agreement is not intended to create and does not create a lien on or
security interest in any part of the Facility as security for the payment of
amounts payable hereunder or under the Note.
ARTICLE IV
PAYMENTS ON THE NOTE
Section 4.1. Amounts Payable. (a) The Company shall make all
payments required by the Note as and when they become due and shall promptly
pay all other amounts necessary to enable the Trustee to make the transfers
required by Article IV of the Indenture.
(b) The Company shall also pay, as and when the same become due:
(1) To the Trustee, its reasonable fees for services rendered and for
expenses reasonably incurred by it as Trustee under the Indenture, including the
reasonable fees and disbursements of its counsel, the reasonable fees and
expenses of other paying agents and all other amounts that the Company herein
assumes or agrees to pay, including any cost or expense necessary to cancel and
discharge the Indenture upon payment of the Bonds.
(2) To the Issuer and its reasonable costs and expenses directly
related to the Bonds and the Facility, including the reasonable fees and
expenses of Bond Counsel and the Issuer's counsel (provided, however, that such
amounts so paid to the Issuer shall not equal or exceed an amount which would
cause the "yield" on the Note, this Financing Agreement or any other "acquired
purpose obligation" to be "materially higher" than the "yield" on the Bonds, as
such terms are defined in the Code).
(3) Amounts described in Section 4.6.
(4) All other amounts that the Company agrees to pay under the
terms of this Financing Agreement and the Indenture.
Section 4.2. Payments Assigned. The Company consents to the assignment
made by the Indenture of the Note and of the rights of the Issuer under this
Financing Agreement to the Trustee and agrees to pay to the Trustee all amounts
payable by the Company pursuant to the Note and this Financing Agreement, except
for payments made to the Issuer pursuant to Sections 4.1(b)(2) and 5.6.
Section 4.3. Default in Payments. If the Company fails to make any
payments required by the Note or this Financing Agreement when due, the Company
shall pay to the Trustee interest thereon until paid at a rate equal to the
highest rate on any Bonds then outstanding or, in case of the payment of any
amounts not to be used to pay principal of or interest on Bonds, at a rate equal
to the Prime Rate plus one percent per year.
Section 4.4. Obligations of Company Unconditional. The obligation of
the Company to make the payments on the Note and to observe and perform all
other covenants, conditions and agreements hereunder shall be absolute and
unconditional, irrespective of any rights of setoff, recoupment or counterclaim
it might otherwise have against the Issuer, the Bank or the Trustee. Subject to
the prepayment of the Note as provided therein, the Company shall not suspend or
discontinue any payment on the Note or hereunder or fail to observe and perform
any of its other covenants, conditions or agreements hereunder for any cause,
including without limitation, any acts or circumstances that may constitute an
eviction or constructive eviction, failure of consideration, failure of title to
any part or all of the Facility or commercial frustration of purpose, or any
damage to or destruction or condemnation of all or any part of the Facility, or
any change in the tax or other laws of the United States of America, the State
of West Virginia or any political subdivision of either, or any failure of the
Issuer, the Bank or the Trustee to observe and perform any covenant, condition
or agreement, whether express or implied, or any duty, liability or obligation
arising out of or in connection with any Financing Instrument. The Company may,
after giving to the Issuer and the Trustee 10 days' notice of its intention to
do so, at its own expense and in its own name, or in the name of the Issuer if
procedurally required, prosecute or defend any action or proceeding or take any
other action involving third persons that the Company reasonably deems necessary
to secure or protect any of its rights hereunder. In the event the Company takes
any such action, the Issuer shall cooperate fully with the Company and shall
take all necessary action to substitute the Company for the Issuer in such
action or proceeding if the Company shall so request.
Section 4.5. Advances by Issuer or Trustee. If the Company fails to
make any payment or perform any act required of it hereunder, the Issuer or the
Trustee, without prior notice or demand on the Company and without waiving or
releasing any obligation or default, may (but shall be under no obligation to)
make such payment or perform such act. All amounts so paid by the Issuer or the
Trustee and all costs, fees and expenses so incurred shall be payable by the
Company on demand as an additional obligation under the Note, together with
interest thereon at the Prime Rate plus one percent per year until paid.
Section 4.6. Rebate Requirement. (a) At its sole expense on behalf of
the Issuer, the Company shall determine and pay to the United States the Rebate
Amount, hereinafter defined, as and when due in accordance with the "rebate
requirement" described in Section 148(f) of the Code and Regulations thereunder,
including without limitation, Regulations Section 1.148-3. The Company shall
retain records of all such determinations until six years after Payment of the
Bonds.
(b) Reference is made to Exhibit B hereto for additional details of the
rebate requirement. Exhibit B may be amended or substituted without compliance
with Article XI of the Indenture or Section 8.3 hereof and without any action of
the Issuer upon the Company's delivery to the Trustee of the proposed amendment
or substitution together with an opinion of Bond Counsel that compliance with
this section and Exhibit B, as amended, will not adversely affect the exclusion
of interest on the Bonds from gross income for federal income tax purposes.
(c) Notwithstanding anything contained herein to the contrary, no such
payment will be required if the Company receives and delivers to the Issuer and
the Trustee an opinion of Bond Counsel that such payment is not required under
the Code to prevent any Bonds from becoming "arbitrage bonds" within the meaning
of Section 148 of the Code.
(d) The Issuer shall not be liable to the Company by way of
contribution, indemnification, counterclaim, set-off or otherwise for any
payment made or expense incurred by the Company pursuant to this section or the
Indenture.
Section 4.7. Letter of Credit. The Company shall provide for the
payment of amounts due under Section 4.1 (a) from Available Moneys, including,
delivery to the Trustee on the date of initial authentication and delivery of
the Bonds of a Letter of Credit in favor of the Trustee and for the benefit of
the holders of the Bonds. The Company shall be entitled to provide a Substitute
Letter of Credit under certain circumstances as provided in the Indenture. Any
extension of the Letter of Credit shall be for a period of at least one year or,
if less, the fifteenth day after the maturity date of the Bonds.
ARTICLE V
SPECIAL COVENANTS
Section 5.1. Operation of Facility by the Company; No Warranty of
Condition or Suitability by the Issuer. (a) The Company shall operate the
Facility, or cause it to be operated, as a nursing home facility or other
purposes contemplated by the Act.
(b) The Issuer makes no warranty, either express or implied, as to the
Facility or the condition thereof, or that the Facility has been or will be
suitable for the purposes or needs of the Company.
Section 5.2. Reference to Bonds Ineffective after Bonds Paid and Other
Obligations Satisfied. Upon payment of the Bonds and upon payment of all
obligations under this Financing Agreement and the Note, subject to Section 8.1,
all references in this Financing Agreement to the Bonds, the Trustee and the
Issuer shall be ineffective, and neither the Trustee, the holder of the Note,
the Issuer nor the holders of any of the Bonds shall thereafter have any rights
hereunder except as provided in Sections 4.1(b), 4.6 and 5.6.
Section 5.3. Certificate as to No Default. The Company shall deliver to
the Issuer and the Trustee within 120 days after the close of each of its Fiscal
Years a certificate signed by the chief executive officer, the chief
administrative officer or the chief financial officer of its corporate general
partner stating that (a) (1) the Company is not in default under the Note or
this Financing Agreement, and (2) the Company has no knowledge of any violation
of any of the terms or provisions of the Note or this Financing Agreement or of
the occurrence of any condition, event or act that, with or without notice or
lapse of time or both, would constitute an event of default hereunder or
thereunder, or (b) if it is in default, specifying the nature and period of
default and what action the Company is taking or proposes to take with respect
thereto.
Section 5.4. [Reserved)
Section 5.5. Tax Exemption. (a) Unless the Company shall deliver to the
Trustee an opinion of Bond Counsel to the effect that such use, occupation or
ownership will not adversely affect the exclusion of interest on the Bonds from
gross income for federal income tax purposes, the Company shall not:
(1) take any action or approve the Trustees taking any action or making
any investment or use of the proceeds of the Bonds that would cause the Bonds to
be "arbitrage bonds" within the meaning of Section 148 of the Code.
(2) barring unforeseen circumstances, approve the use of the proceeds
of any Bonds or any other funds other than in accordance with its
"non-arbitrage" certificate with respect to such use given immediately prior to
the delivery of the Bonds;
(3) take or permit any action that would result in more than 5% of the
proceeds of the 1982 Bonds, the Prior Bonds or the Bonds being used directly or
indirectly to make or finance loans to any person who is not an "exempt person"
within the meaning of Section 103(b)(3) of the 1954 Code or a "governmental
unit" within the meaning of Section 141(c) of the Code or otherwise cause the
1982 Bonds, the Prior Bonds or the Bonds to be or become "consumer loan bonds"
within the meaning of Section 103(o) of the 1954 Code.
(4) permit any component of the Facility to be used or occupied by the
United States of America or an agency or instrumentality thereof in any manner
for compensation, including any entity with statutory authority to borrow from
the United States of America in any case within the meaning of Section 149(b) of
the Code, or in any way cause the Bonds to be "federally guaranteed" within the
meaning of Section 103(h) of the 1954 Code or Section 149(b) of the Code.
(5) permit the addition of any "principal user" of the Facility
within the meaning of Section 103(b)(6) of the 1954 Code or Section 144(a) of
the Code; or
(6) take any other action that would adversely affect the
exclusion of interest on the Bonds from gross income.
(b) The Company shall not take or omit to take any action the taking or
omission of which would result in any of the proceeds of the Bonds, within the
meaning of Section 147(g) of the Code, being used to finance the costs of
issuance of the Bonds.
(c) The Company represents and warrants that (i) the original principal
amount of the Prior Bonds, plus any amounts held as a sinking fund for payment
of the principal of the 1982 Bonds, did not exceed the aggregate outstanding
principal amount of the 1982 Bonds as determined on the date of issuance of the
Prior Bonds, and (ii) the principal amount of the Bonds, plus any amounts held
by the Prior Bonds Trustee as a sinking fund for payment of the principal of the
Prior Bonds, do not exceed the outstanding principal amount of the Prior Bonds
as determined on the date of issuance of the Bonds.
(d) The Company represents and warrants that, within the meaning of
Section 147(b) of the Code and comparable provisions of the 1954 Code, the
"average maturity" of the Bonds does not exceed 120% of the remaining "average
reasonably expected economic life" of the Facility, such "average maturity" and
remaining "average reasonably expected economic life" being computed in the
manner contemplated by Section 147(b) of the Code and comparable provisions of
the 1954 Code. The Company further represents and warrants that the "average
maturity" of the Bonds is less than the remaining "average maturity" of the
Prior Bonds.
(e) The Company represents, covenants and agrees that not more than 25%
of the proceeds of the 1982 Bonds, the Prior Bonds or the Bonds have been or
will be used to provide a facility the primary purpose of which is one of the
following: retail food and beverage services, automobile sales or service, or
the provision of recreation or entertainment. The Company further covenants and
agrees that no part of the proceeds of the 1982 Bonds, the Prior Bonds or the
Bonds have been or will be used to provide any of the following and that no part
of the Facility will be used for any of the following purposes or activities:
any airplane, skybox or other private luxury box, health club facility, facility
used primarily for gambling, store the principal business of which is the sale
of alcoholic beverages for consumption off premises, private or commercial golf
course, country club, massage parlor, tennis club, skating facility (including
roller skating, skateboard and/or ice skating), racquet sports facility
(including any handball or racquetball court), hot tub facility, suntan
facility, racetrack or residential real property for family units.
(f) The Company represents, covenants and agrees that (i) substantially
all (90% or more) of the proceeds of the 1982 Bonds (exclusive of such proceeds
applied to redeem other 1982 Bonds) were used for the acquisition, construction,
reconstruction or improvement of land or property of a character subject to the
allowance for depreciation within the meaning of Section 103(b)(6) of the 1954
Code, (ii) less than 25% of the proceeds of the 1982 Bonds, the Prior Bonds or
the Bonds have been or will be used directly or indirectly for the acquisition
of land or an interest in land, including mineral reserves, and (iii) none of
such proceeds were or will be used for the acquisition of land or an interest in
land to be used for farming purposes.
(g) The Company represents and warrants that except for the Prior Bonds
and the Bonds, no bonds, notes or other obligations of any state, territorial
possession or any political subdivision of the United States of America or any
political subdivision of any of the foregoing or of the District of Columbia
have been issued since April 30, 1968, and are now outstanding, the proceeds of
which have been or are to be used primarily with respect to projects (i) the
"principal user" of which is or will be the Company or any "related persons," as
defined in Section 103(b)(6) of the 1954 Code or Section 144(a) of the Code and
(ii) that are located within City of Beckley, West Virginia or are integrated
facilities located outside of City of Beckley within one-half mile of the
Facility. The Company further represents and warrants that (i) obligations have
not been assumed, expenditures have not been made and outstanding obligations do
not exist, including, without limitation, the leasing of equipment (pursuant to
leases which do not qualify as "true" leases within the meaning of the Code),
which would cause the "aggregate face amount" of the Bonds as computed under the
provisions of Section 103(b)(6) of the 1954 Code or 144(a)(4) of the Code and
the Regulations to exceed $10,000,000 and (ii) that, within three years after
the date any of the 1982 Bonds or the Prior Bonds were issued, the Company did
not make nor permit any user of the Facility to make any expenditure, assume any
obligations or take or permit any other action to be taken which caused the
"aggregate face amount" of any of the 1982 Bonds or the Prior Bonds as computed
under the provisions of Section 103(b)(6) of the 1954 Code to exceed
$10,000,000.
(h) The Company represents and warrants that the Facility is located
only at the place or places specified in the notice of public hearing published
with respect to the Prior Bonds pursuant to Section 103(k)(2) of the 1954 Code
and Section 147(f) of the Code.
(i) The Company represents and warrants that neither the Company
(including any "related person," within the meaning of Section 144(a)(3) of the
Code) nor any other "principal user" of the Facility (including any related
person), within the meaning of Section 144(a)(2) of the Code, is a principal
user of any facility other than the Facility that is financed with (i) an
"industrial development bond," within the meaning of Section 103(b) of the 1954
Code, (ii) a "qualified small issue bond," within the meaning of Section 144(a)
of the Code, or (iii) any other "outstanding tax-exempt facility-related bonds,"
within the meaning of Section 144(a)(10) of the Code. The Company covenants and
agrees that the aggregate authorized face amount of the bonds described in the
preceding sentence (including the Bonds) which can be allocated to any "test
period beneficiary" as such term is defined either in Section 103(b)(15)(D) of
the 1954 Code or in Section 144(a)(10)(D) of the Code (including, but not
limited to the Company) will not exceed $40,000,000. The Company further
covenants and agrees that it will not permit the use of the Facility by any
person (other than the Company or a "related person" within the meaning of
Section 103(b)(6) of the 1954 Code or Section 144 of the Code) to whom any part
of the 1982 Bonds, the Prior Bonds or the Bonds would be allocated pursuant to
Section 103(b)(15) of the 1954 Code or Section 144(a)(10) of the Code, if the
amount allocated, when increased as provided in Section 103(b)(15)(A) of the
1954 Code or Section 144(a)(10)(A) of the Code, would exceed $40,000,000.
(j) The Company represents and warrants that none of the proceeds of
the 1982 Bonds issued subsequent to 1983 were used to acquire any property or an
interest therein (other than land or an interest in land) unless:
(i) the first use of such property was pursuant to such
acquisition; or
(ii) "rehabilitation expenditures," within the meaning of Section
103(b)(17)(c) of the 1954 Code with respect to that part of such property
constituting:
(A) a building (and the equipment therefor), equalled or exceeded
fifteen percent (15%) of that portion of the cost of acquiring such building
(and the equipment therefor) that was financed with the proceeds of such 1982
Bonds; and
(B) a facility other than a building, equalled or exceeded one hundred
percent (100%) of that portion of the cost of acquiring such facility that was
financed with the proceeds of such 1982 Bonds.
(1) The Issuer covenants and agrees that, prior to the issuance of the
Bonds, it shall duly elect to have the provisions of Section 103(b)(6)(D) of the
1954 Code and Section 144(a)(4) of the Code apply to such issue and such
election shall be made in accordance with the applicable Regulations or
procedures of the Internal Revenue Service. The Company covenants and agrees
that it shall furnish to the Issuer whatever information is necessary for the
Issuer to make such election and shall compile such supplemental statements and
other information as required by the applicable Regulations and procedures of
the Internal Revenue Service.
(l) The Company will comply with, and make all filings required by, all
effective rules, rulings or Regulations promulgated by the Department of the
Treasury or the Internal Revenue Service, with respect to obligations issued
under Section 103(b)(6) of the 1954 Code as a "small issue industrial
development bond" the interest on which is exempt from federal income taxation
or issued under Section 144(a) of the Code as a "qualified small issue bond" the
interest on which is excludable from gross income for federal income tax
purposes.
(m) The Company represents and warrants that the Facility does not
share common facilities (such as an enclosed mall, heating and cooling
facilities or parking facilities) with any other part of the same building,
other portions of an enclosed shopping mall or a strip of offices, stores or
warehouses that were financed with tax-exempt small issue industrial development
bonds under Section 103(b)(6) of the 1954 Code or qualified small issue bonds
under Section 144(a) of the Code.
(n) The Company represents and warrants that no rebate with respect to
the Prior Bonds is payable to the United States pursuant to the provisions of
Section 148 of the Code.
(o) The Issuer will comply with the information reporting
requirements of Section 149(e) of the Code with respect to the Bonds.
(p) The Company represents and warrants that the information contained
in the certificates or representations for the Company with respect to
compliance with the requirements of Section 149(e) of the Code, including the
information in Form 8038, is true and correct in all material respects.
(q) The Company shall take all action necessary to ensure that interest
on the Bonds, for federal income tax purposes, is not included in gross income
of the owners thereof.
Section 5.6. Indemnification. (a) The Company shall at all times
protect, indemnify and save harmless the Issuer and the Trustee (collectively,
the "Indemnitees") from and against all liabilities, obligations, claims,
damages, penalties, causes of action, costs and expenses (hereinafter referred
to as "Damages"), including without limitation (1) all amounts paid in
settlement of any litigation commenced or threatened against the Indemnitees, if
such settlement is effected with the written consent of the Company, (2) all
expenses reasonably incurred in the investigation of, preparation for or defense
of any litigation, proceeding or investigation of any nature whatsoever,
commenced or threatened against the Company, the Facility or the Indemnitees,
(3) any judgments, penalties, fines, damages, assessments, indemnities or
contributions, and (4) the reasonable fees of attorneys, auditors, and
consultants, provided that the Damages arise out of:
(A) failure by the Company or its partners, employees or agents, to
comply with the terms of this Financing Agreement or the Note, and any
agreements, covenants, obligations, or prohibitions set forth therein;
(B) any action, suit, claim or demand contesting or affecting the
title of the Facility;
(C) any breach by the Company of any representation or warranty set
forth in this Financing Agreement or the Note, or any certificate delivered by
the Company pursuant thereto, and any claim that any representation or warranty
of the Company contains or contained any untrue or misleading statement of fact
or omits or omitted to state any material facts necessary to make the statements
made therein not misleading in light of the circumstances under which they were
made;
(D) any action, suit, claim, proceeding or investigation of a judicial,
legislative, administrative or regulatory nature arising from or in connection
with the ownership, operation, occupation or use of the Facility; or
(E) any suit, action, administrative proceeding, enforcement action, or
governmental or private action of any kind whatsoever commenced against the
Company, the Facility or the Indemnitees that might adversely affect the
validity, enforceability or tax-exempt status of the Bonds, this Financing
Agreement or the Note, or the performance by the Company or any Indemnitee of
any of their respective obligations thereunder;
provided that such indemnity shall be effective only to the extent of any loss
that may be sustained by the Indemnitees in excess of the proceeds net of any
expenses of collection, received by them or from any insurance carried with
respect to such loss and provided further that the benefits of this section
shall not inure to any person other than the Indemnitees.
(b) If any action, suit or proceeding is brought against the
Indemnitees for any loss or damage for which the Company is required to provide
indemnification under this section, the Company, upon request, shall at its
expense resist and defend such action, suit or proceeding, or cause the same to
be resisted and defended by counsel designated by the Company and approved by
the Indemnitees, which approval shall not be unreasonably withheld, provided
that such approval shall not be required in the case of defense by counsel
designated by any insurance company undertaking such defense pursuant to any
applicable policy of insurance. If an Indemnitee shall have reasonably concluded
that there may be defenses available to it that are in conflict with those
available to the Company or to other Indemnitees (in which case the Company
shall not have the right to direct the defense of such action on behalf of such
Indemnitee), such Indemnitee may engage separate counsel and the reasonable
legal and other expenses incurred by such Indemnitee shall be borne by the
Company. The obligations of the Company under this section shall survive any
termination of this Agreement, including prepayment of the Note.
(c) Nothing contained herein shall require the Company to indemnify the
Issuer for any claim or liability resulting from its willful, wrongful acts or
the Trustee for any claim or liability resulting from its negligence (under the
standard of care set forth in Article IX of the Indenture) or its willful,
wrongful acts.
(d) All references in this section to the Issuer and the Trustee,
including references to Indemnitees, shall include their members, commissioners,
directors, officers, employees, representatives and agents.
Section 5.7. Maintenance and Insurance of Facility. (a) The Company
shall, at its own expense, keep the Facility in as reasonably safe condition as
its operations shall permit and shall keep the Facility in good repair and
operating condition, ordinary wear and tear excepted, making from time to time
all necessary repairs, renewals and replacements. The Company shall comply, in
all material respects, with all laws applicable to the Facility.
(b) The Company shall, at its own expense, continuously maintain
insurance in connection with the Facility and the Company's operations against
such risks as are customarily insured against by organizations of the same
general type, including without limitation insurance for property damage,
liability for bodily injury, liability for property damage and workers'
compensation.
Section 5.8. Corporate Existence. The Company shall maintain its
existence as a West Virginia corporation and shall not, without the prior
consent of the Trustee, dissolve or otherwise dispose of all or substantially
all of its assets, consolidate with or merge into another domestic partnership
or corporation (i.e. a partnership or corporation created under the laws of the
United States of America, one of the states thereof or the District of Columbia)
or permit one or more other domestic partnerships or corporations to consolidate
with or merge into it; provided, however, that with the prior written consent of
the Bank, the Company may consolidate with or merge into another domestic
partnership or corporation, or permit one or more domestic partnerships or
corporations to consolidate with or merge into it, or sell or otherwise transfer
to another domestic partnership or corporation all or substantially all of its
assets and thereafter dissolve, or sell or assign all or substantially all of
its assets to a governmental unit, if after giving effect to such consolidation,
merger, transfer, sale or assignment the surviving, resulting or transferee
partnership, corporation or governmental unit:
(1) will not be in default under any covenant under this Financing
Agreement;
(2) if it is not the Company, has the power to assume and
assumes in writing all of the obligations of the Company herein and in the
Note; and
(3) if it is not a West Virginia partnership or corporation or a
political subdivision of the State of West Virginia, either qualifies to do
business in West Virginia or files with the Trustee a consent to service of
process reasonably acceptable to the Trustee.
Section 5.9. Obligations Under the Indenture. The Company shall
undertake all actions and carry out all responsibilities prescribed for it
under the Indenture.
ARTICLE VI
EVENTS OF DEFAULT AND REMEDIES
Section 6.1. Event of Default Defined. Each of the following events
shall be an Event of Default:
(a) Failure of the Company to make any payment on the Note when
due and payable;
(b) Failure of the Company to observe and perform any of its other
covenants, conditions or agreements hereunder for a period of 30 days after
notice specifying such failure and requesting that it be remedied, given by the
Issuer or the Trustee to the Company;
(c) (1) Failure of the Company to pay generally its debts as they
become due, (2) commencement by the Company of a voluntary case under the
federal bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or similar law, (3) consent
by the Company to the appointment of a receiver, liquidator, assignee, trustee,
custodian, sequestrator or other similar official for the Company or any
substantial part of its property, or to the taking possession by any such
official of any substantial part of the property of the Company, (4) making by
the Company of any assignment for the benefit of creditors generally, or (5)
taking of corporate action by the Company in furtherance of any of the
foregoing;
(d) The (1) entry of any decree or order for relief by a court having
jurisdiction over the Company or its property in an involuntary case under the
federal bankruptcy laws, as now or hereafter constituted, or any other
applicable federal or state bankruptcy, insolvency or similar law, (2)
appointment of a receiver, liquidator, assignee, trustee, custodian,
sequestrator or similar official for the Company or any substantial part of its
property, or (3) entry of any order for the termination or liquidation of the
Company or its affairs;
(e) Failure of the Company within 60 days after the commencement of any
proceedings against it under the federal bankruptcy laws or other applicable
federal or state bankruptcy, insolvency or similar law, to have such proceedings
dismissed or stayed;
(f) Abandonment of the Facility by the Company for a period in
excess of thirty (30) days; or
(g) An Event of Default under the Indenture.
The foregoing provisions of subsection (b) are subject to the
limitation that if by reason of force majeure the Company is unable in whole or
in part to observe and perform any of its covenants, conditions or agreements
hereunder, other than its obligations contained in Sections 4.1, 4.6, 4.7, 5.1,
5.5, 5.6 and 5.8, the Company shall not be deemed in default during the
continuance of such inability. The term "force majeure" as used herein shall
include without limitation acts of God; strikes, lockouts or other disturbances;
acts of public enemies; orders of any kind of the government of the United
States of America or the State of West Virginia or any political subdivision
thereof or any of their departments, agencies or officials, or any civil or
military authority; insurrections; riots; epidemics; landslides; lightning;
earthquakes; fires; hurricanes; tornadoes; storms; floods; washouts; droughts;
arrests; restraint of government and people; civil disturbances; explosions;
breakage or accident to machinery, transmission pipes or canals; partial or
entire failure of utilities; or any other cause or event not reasonably within
the control of the Company. The Company shall remedy with all reasonable
dispatch the cause or causes preventing the Company from carrying out its
covenants, conditions and agreements, provided that the settlement of strikes,
lockouts and other industrial disturbances shall be entirely within the
discretion of the Company, and the Company shall not be required to make
settlement of strikes, lockouts and other industrial disturbances by acceding to
the demands of any opposing party when such course is in the judgment of the
Company not in its best interests.
Section 6.2. Remedies on Default. Whenever any Event of Default
hereunder shall have occurred and is continuing, the Trustee as the
assignee of the Issuer:
(a) May, and at the written direction of the holders of not less than
25% in aggregate principal amount of Bonds then outstanding, shall declare all
amounts payable as principal and interest on the Note to be immediately due and
payable, whereupon the same shall become immediately due and payable, except
that the Trustee shall not make such a declaration unless the Bank has either
(1) consented to such declaration or (2) has failed to honor any proper drawing
under the Letter of Credit.
(b) Have access to and inspect, examine and copy the financial
books, records and accounts of the Company pertaining to the Facility.
(c) Take whatever action at law or in equity may appear necessary or
desirable to collect the amounts then due and thereafter to become due or to
enforce observance or performance of any covenant, condition or agreement of the
Company under the Note or this Financing Agreement.
Section 6.3. Application of Amounts Realized in Enforcement of
Remedies. Any amounts collected pursuant to action taken under Section 6.2
hereof shall be applied in accordance with the provisions of the Indenture, or,
if payment of the Bonds shall have been made, shall be applied according to the
provisions of Section 8.06 of the Indenture.
Section 6.4. No Remedy Exclusive. No remedy herein conferred upon or
reserved to the Trustee is intended to be exclusive of any other remedy, and
every remedy shall be cumulative and in addition to every other remedy herein or
now or hereafter existing at law, in equity or by statute. No delay or omission
to exercise any right or power accruing upon an Event of Default shall impair
any such right or power or shall be construed to be a waiver thereof, but any
such right or power may be exercised from time to time and as often as may be
deemed expedient.
Section 6.5. Attorney Fees and Other Expenses. Upon an Event of
Default, the Company on demand shall pay to the Issuer and the Trustee the
reasonable fees and expenses of their attorneys and other reasonable fees and
expenses incurred by any of them in the collection of payments under the Note or
the enforcement of any other obligations of the Company.
Section 6.6. No Additional Waiver Implied by One Waiver. If either
party or its assignee waives a default by the other party under any covenant,
condition or agreement herein, such waiver shall be limited to the particular
breach so waived and shall not be deemed to waive any other default hereunder.
ARTICLE VII
PREPAYMENT OF THE NOTE
Section 7.1. Option To Prepay in Full. Subject to requirements under
the Indenture for Available Moneys in certain instances, the Company may prepay
in full the Note, without penalty or premium, and terminate this Financing
Agreement prior to payment of the Bonds by (a) paying to the Trustee an amount
of cash or U.S. Government Obligations that, together with existing investments
in the Bond Fund, will comply with the requirements for the defeasance of the
Bonds set forth in Article VII of the Indenture, and (b) by making arrangements
satisfactory to the Trustee for giving any required notice of redemption.
Section 7.2. Mandatory Payment. The Company shall prepay the Note in
full or in part (a) upon the occurrence of a Determination of Taxability as
defined in the Indenture, or (b) as otherwise provided in Section 3.01 of the
Indenture.
Section 7.3. Option To Prepay in Part. The Company may prepay the Note
in part, and the Issuer agrees that the Trustee may accept such payments to be
paid to the Trustee for deposit in the Bond Fund and used for redemption or, at
the election of the Company, purchase of outstanding Bonds, in the manner and to
the extent provided in the Indenture. The principal amount of each Bond so
purchased, delivered or credited shall be appropriately credited by the Trustee
against the obligation of the Company to make future payments on the Note.
Section 7.4. Relation of Options to Indenture. The options granted to
the Company in this Article may be exercised whether or not the Company is in
default under this Financing Agreement, provided that any such default will not
result in the nonfulfillment of any condition to the exercise of any such
option.
Section 7.5. Obligations After Payment of Note and Termination of
Financing Agreement. Anything contained in this Article VII to the contrary
notwithstanding, the obligations of the Company contained in Section 5.6 and the
obligation of the Company to pay the costs and expenses of the Issuer and the
Trustee shall continue after payment of the Note and termination of this
Financing Agreement.
ARTICLE X
MISCELLANEOUS
Section 8.1. Term of Financing Agreement; Amounts Remaining After
Payment of the Bonds. This Financing Agreement shall be effective upon execution
and delivery hereof, and subject to earlier termination upon prepayment in full
of the Note and all other amounts required to be paid hereunder, including all
amounts payable under the Indenture, shall expire at midnight on September 1,
2012, or if such payment of the Note has not been made on such date, when
payment in full of the Note and all other amounts required to be paid hereunder
shall have been made, except that, notwithstanding the foregoing, the obligation
of the Company to indemnify and pay the costs and expenses of the Issuer and the
Trustee shall survive the expiration of this Financing Agreement. Any amounts
remaining after payment of the Bonds and payment of the fees and expenses of the
Trustee and the Issuer in accordance with the Indenture shall be distributed as
set forth in Section 4.07 of the Indenture.
Section 8.2. Notices, etc. Unless otherwise provided herein, all
demands, notices, approvals, consents, requests and other communications
hereunder shall be in writing and shall be deemed to have been given when
delivered in person or mailed by first class registered or certified mail,
postage prepaid, addressed:
(a) if to the Issuer, to City of Beckley, West Virginia, City
Hall, 409 South Kanawha Street, Beckley, West Virginia 25801, Attention:
Mayor of City of Beckley;
(b) if to the Trustee, to One Valley Bank, National Association,
P.O. Box 1793, Charleston, West Virginia 25326,
Attention: Corporate Trust Department;
(c) if to the Company, to Beckley Health Care Corp., 405 Stanaford
Road, Beckley, West Virginia 25801;
(d) if to the Underwriter, to Crews and Associates, Inc. 2000
Union National Plaza, 124 West Capitol, Little Rock, Arkansas 72201;
(e) if to the Bank, to NationsBank of Texas, N.A, 901 Main Street,
13th Floor, Dallas, Texas 75202, Attention: Marie Lancanster; and
A duplicate copy of each demand, notice, approval, consent, request or
other communication given hereunder by either the Issuer or the Company to the
other shall also be given to the Trustee and the Bank. The Company, the Issuer,
the Trustee and the Bank may, by notice given hereunder, designate any further
or different addresses to which subsequent demands, notices, approvals,
consents, requests or other communications shall be sent or persons to whose
attention the same shall be directed.
Section 8.3. Amendments to financing Agreement and Note. Neither this
Financing Agreement nor the Note shall be amended or supplemented and no
substitution shall be made for the Note subsequent to the issuance of the Bonds
and before payment of the Bonds, without the consent of the Trustee, given in
accordance with Article XI of the Indenture.
Section 8.4. Successors and Assigns. This Financing Agreement shall be
binding upon, inure to the benefit of and be enforceable by the parties and
their respective successors and assigns. Without the prior written consent of
the Issuer, the Trustee and the Bank, no assignment by the Company shall relieve
the Company of its obligations hereunder.
Section 8.5. Severability. If any provision of this Financing
Agreement shall be held invalid by any court of competent jurisdiction, such
holding shall not invalidate any other provision hereof.
Section 8.6. Applicable Law. This Financing Agreement shall be
governed by the applicable laws of the State of West
Virginia.
Section 8.7. Counterparts. This Financing Agreement may be executed in
counterparts, each of which shall be an original and all of which, taken
together, shall constitute but one and the same instrument; except that to the
extent, that this Financing Agreement shall constitute personal property under
the Uniform Commercial Code of West Virginia, no security interest in this
Financing Agreement may be created or perfected through the transfer or
possession of any counterpart of this Financing Agreement other than the
original counterpart, which shall be the counterpart containing the receipt
therefor executed by the Trustee following the signatures to this Financing
Agreement.
Section 8.8. Bank May Perform Company's Obligations. The Bank may
perform or observe any covenant, condition or agreement of the Company hereunder
and such performance or observance shall be treated in all respects as the act
of the Company.
Section 8.9. Entire Agreement. This Financing Agreement together with
the Indenture and the Note constitute the entire agreement between the Issuer
and the Company and supersede all prior agreements and understandings, both oral
and written, between the Issuer and the Company with respect to the subject
matter hereof.
IN WITNESS WHEREOF, the Issuer has caused this Financing Agreement to
be executed on its behalf and its seal to be affixed hereto and attested by the
duly authorized Mayor of the City of Beckley, West Virginia, and the Company has
caused this Financing Agreement to be executed in its name by the duly
authorized officer, all as of the date first above written.
THE CITY OF BECKLEY, WEST VIRGINIA
(SEAL) By
--------------------------------------------------------------
Mayor
ATTEST:
By
Its
BECKLEY HEALTH CARE CORP., a West Virginia
corporation
By
Its
ATTEST:
By
Its
RECEIPT
Receipt of the foregoing original counterpart of the Financing
Agreement dated as of September 1, 1996, between the City of Beckley, West
Virginia and Beckley Health Care Corp., is hereby acknowledged as of the 30th
day of September, 1996.
ONE VALLEY BANK, NATIONAL ASSOCIATION,
as Trustee
By
Vice President
The material exhibits to this document are as follows, and are available upon
request:
CONTINUING DISCLOSURE AGREEMENT executed and delivered by BECKLEY HEALTH CARE
CORP., a West Virginia limited partnership, as the borrower and ONE VALLEY BANK,
NATIONAL ASSOCIATION, in connection with the issuance of $2,830,000 City of
Beckley, West Virginia First Mortgage Refunding Revenue Bonds, Series 1996 being
issued pursuant to a Trust Indenture dated as of September 1, 1996, by and
between the City of Beckley, West Virginia and One Valley Bank, National
Association.
Official Statement regarding exemption from taxation.
TAX REGULATORY AGREEMENT AND NO ARBITRAGE CERTIFICATE by and among City of
Beckley, West Virginia, Beckley Health Care Corp. and One Valley Bank, National
Association, Charleston, West Virginia, as Trustee.