C:\Sample Agreement

311 Pages·2017·2.28 MB·English

by  Cantillon, Jack

Elli Finance (UK) Plc and Elli Investments Limited
16 March 2018
ANNOUNCEMENT
£350,000,000 of 8.750% Senior Secured Notes due 2019 (the “Senior Secured Notes”)
£175,000,000 of 12.250% Senior Notes due 2020 (the “Senior Notes”)
(Collectively referred to as the “Notes”)
(ISIN: XS0794786011 / ISIN: XS0794785633
ISIN: XS0794787415 / ISIN: XS0794787175)
Issued by Elli Finance (UK) Plc (“EFUK”) and Elli Investments Limited (“EIL”, together with EFUK, the
“Issuers”, and together with their subsidiaries, “Four Seasons”)

The Notes are admitted to the Official List of the Irish Stock Exchange and to trading on the Global Exchange
Market
Four Seasons Health Care (“Four Seasons” or the “Company”) today announces that the Issuers and H/2
Capital Partners, on behalf of its affiliated investment funds (“H/2”), have signed a £70.0 million super senior
facility agreement dated 15 March 2018 (the “Facility”). The Facility will assist the Company in stabilising
operations and ensuring continuity of care for residents.
The net proceeds from the Facility will be used to fund working capital and to prepay and cancel in full the £40.0
million super senior credit facility made available to the Company pursuant to a credit facility agreement dated
9 October 2017.
Pursuant to the governance deeds executed in connection with the Facility terms, the Company has
implemented a number of governance changes to facilitate a consensual restructuring. Following such changes,
independent directors have been named to, and will comprise a majority of, the boards of directors of EIL and
Elli Acquisitions Limited (“EAL”). In addition, the Company has agreed to appoint Martin Healy as a senior
professional responsible for facilitating the implementation of a restructuring. Mr. Healy, who will report to the
boards of EIL and EFUK, is an experienced executive with expertise in restructuring and post-acquisition
integration.
In connection with the Facility, the Issuers have also entered into supplemental indentures dated 15 March 2018
in respect of the Notes (“Supplemental Indentures”). The Facility agreement and governance deeds can be
found on the “Investor” section of the Four Seasons Health Care website (please click the following link to view
the document: https://www.fshc.co.uk/investors). The Supplemental Indentures will be made available to
noteholders upon written request to the respective Issuers.
The standstill agreement between the parties includes several remaining milestones that are required to be met
on or before specific dates over the restructuring process. These milestones include long-stop dates of 16 April
2018 for agreement on a restructuring plan and 1 June 2018 for the approval of the restructuring.
Robbie Barr, Chairman, Four Seasons Health Care, said: “We are very appreciative of H/2 expanding its already
substantial commitment to Four Seasons Health Care in providing this funding in pursuit of a consensual
agreement. We welcome the independent directors to the boards of EIL and EAL, and the appointment of Martin
Healy to the Four Seasons team. This incremental liquidity and the revised governance structure benefit all
stakeholders and further promote continuity of care for our residents.”
Four Seasons and H/2 Capital Partners continue to work together to facilitate an orderly transition and seek
agreement on implementation terms for a restructuring on behalf of creditors. The primary objective of a
restructuring plan is to create a sustainable, long-term capital structure that best serves residents, patients and
employees.

For further enquiries, please contact:

Company financial adviser contacts:

Tom Campbell, PJT Partners Mike Wilcox, PJT Partners
[phone] [phone]
[email protected] [email protected]

Company media contacts:

Neil Bennett, Maitland Daniel Yea, Maitland
[phone] [phone]
[email protected] [email protected]

For more information on Four Seasons Health Care, please visit https://www.fshc.co.uk/investors.

This announcement has been given by the Issuers of the Notes:

Elli Finance (UK) Plc Elli Investments Limited
Norcliffe House Old Bank Chambers
Station Road La Grand Rue
Wilmslow St Martin’s, Guernsey
SK9 1BU GY4 6RT
Weil, Gotshal & Manges (London) LLP
110 Fetter Lane
London EC4A 1AY
[phone] main tel
[phone] main fax
weil.com

EXECUTION VERSION

15 March 2018
£70,000,000 CREDIT FACILITY AGREEMENT
between
ELLI ACQUISITIONS LIMITED
as Company
ELLI FINANCE (UK) PLC
as Original Borrower
THE FINANCIAL INSTITUTIONS
as Original Lenders
WILMINGTON TRUST (LONDON) LIMITED
as Agent
and
BARCLAYS BANK PLC
as Security Agent

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TABLE OF CONTENTS
1 DEFINITIONS AND INTERPRETATION ................................................................................... 1
2 THE FACILITY ............................................................................................................................ 31
3 PURPOSE ..................................................................................................................................... 32
4 CONDITIONS OF UTILISATION .............................................................................................. 32
5 UTILISATION – LOANS ............................................................................................................ 33
6 [RESERVED] ............................................................................................................................... 34
7 REPAYMENT .............................................................................................................................. 34
8 ILLEGALITY, VOLUNTARY PREPAYMENT AND CANCELLATION ................................ 34
9 MANDATORY PREPAYMENT ................................................................................................. 36
10 RESTRICTIONS ........................................................................................................................... 36
11 INTEREST .................................................................................................................................... 38
12 INTEREST PERIODS .................................................................................................................. 38
13 CHANGES TO THE CALCULATION OF INTEREST .............................................................. 39
14 FEES ............................................................................................................................................. 40
15 TAX GROSS UP AND INDEMNITIES ...................................................................................... 40
16 INCREASED COSTS ................................................................................................................... 48
17 OTHER INDEMNITIES ............................................................................................................... 50
18 MITIGATION BY THE LENDERS ............................................................................................. 52
19 COSTS AND EXPENSES ............................................................................................................ 52
20 GUARANTEE, INDEMNITY AND SECURITY ........................................................................ 53
21 REPRESENTATIONS .................................................................................................................. 57
22 INFORMATION UNDERTAKINGS ........................................................................................... 65
23 FINANCIAL COVENANTS ........................................................................................................ 73
24 GENERAL UNDERTAKINGS .................................................................................................... 73
25 EVENTS OF DEFAULT .............................................................................................................. 83
26 CHANGES TO THE LENDERS .................................................................................................. 89
27 DEBT PURCHASE TRANSACTIONS ....................................................................................... 93
28 CHANGES TO THE OBLIGORS ................................................................................................ 94
29 ROLE OF THE AGENT AND OTHERS ..................................................................................... 97
30 CONDUCT OF BUSINESS BY THE FINANCE PARTIES ......................................................105
31 SHARING AMONG THE FINANCE PARTIES ........................................................................105
32 PAYMENT MECHANICS ..........................................................................................................106
33 SET-OFF ......................................................................................................................................110
34 NOTICES .....................................................................................................................................110
35 CALCULATIONS AND CERTIFICATES .................................................................................112
36 PARTIAL INVALIDITY .............................................................................................................113
37 REMEDIES AND WAIVERS .....................................................................................................113

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38 AMENDMENTS AND WAIVERS .............................................................................................113
39 CONFIDENTIALITY ..................................................................................................................114
40 COUNTERPARTS ......................................................................................................................118
41 GOVERNING LAW ....................................................................................................................118
42 ENFORCEMENT ........................................................................................................................118
43 Survival ........................................................................................................................................119
SCHEDULE 1
THE ORIGINAL PARTIES ...........................................................................................120
SCHEDULE 2
CONDITIONS PRECEDENT ........................................................................................125
SCHEDULE 3
UTILISATION REQUEST ............................................................................................135
SCHEDULE 4
[RESERVED] .................................................................................................................136
SCHEDULE 5
FORM OF TRANSFER CERTIFICATE .......................................................................137
SCHEDULE 6
FORM OF ASSIGNMENT AGREEMENT ..................................................................141
SCHEDULE 7
FORM OF ACCESSION DOCUMENT ........................................................................145
SCHEDULE 8
FORM OF RESIGNATION LETTER ...........................................................................148
SCHEDULE 9
FORM OF COMPLIANCE CERTIFICATE .................................................................149
SCHEDULE 10
LMA FORM OF CONFIDENTIALITY UNDERTAKING ..........................................151
SCHEDULE 11
TIMETABLE .................................................................................................................155
SCHEDULE 12
AGREED SECURITY PRINCIPLES ............................................................................156
SCHEDULE 13
MATERIAL COMPANIES ...........................................................................................161
SCHEDULE 14
[RESERVED] .................................................................................................................162
SCHEDULE 15
[RESERVED] .................................................................................................................163
SCHEDULE 16
RESTRICTIVE COVENANTS .....................................................................................164
SCHEDULE 17
TRANSACTION SECURITY .......................................................................................212
SCHEDULE 18
MONTHLY FINANCIAL INFORMATION .................................................................217
Schedule 19
PERMITTED INVESTMENTS .....................................................................................219
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THIS AGREEMENT is made on 1 5 March 2018 between the following parties:
(1) ELLI ACQUISITIONS LIMITED a limited liability company incorporated under the laws of
Guernsey with its registered office at Old Bank Chambers, La Grande Rue, St Martin's, Guernsey,
Channel Islands GY4 6RT and registered with company number 55186 (the “Company”);
(2) ELLI FINANCE (UK) PLC, a public limited company incorporated under the laws of England
and Wales with its registered office at Norcliffe House, Station Road, Wilmslow, SK9 lBU and
registered with company number 08094161 (the “Original Borrower”);
(3) THE ENTITIES listed in in Part 3 of Schedule 1 as the original guarantors (the “Original
Guarantors”);
(4) THE FINANCIAL INSTITUTIONS listed in Part 1 of Schedule 1 as lenders (the “Original
Lenders”);
(5) Wilmington Trust (London) Limited, a private limited liability company incorporated under the
laws of England and Wales with its registered office at Third Floor, 1 King’s Arms Yard, London
EC2R 7AF and registered company number 05650152, as agent of the other Finance Parties (the
“Agent)”; and
(6) BARCLAYS BANK PLC, as security trustee and as security agent for the Secured Parties (the
“Security Agent”).
IT IS AGREED as follows
1 DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement:
“Acceleration Notice” means a notice served by the Agent pursuant to and in accordance with
Clause 25.17 (Acceleration).
“Acceptable Bank” means:
(a) a bank or financial institution which has a rating for its short-term unsecured and non-
credit enhanced debt obligations of A-1 or higher by S&P Global Ratings, Fl or higher by
Fitch Ratings Limited or P-1 or higher by Moody's Investor Services Limited or a
comparable rating from an internationally recognised credit rating agency; or
(b) any other bank or financial institution approved by the Agent (acting reasonably).
“Accession Document” means a document substantially in the form set out in Schedule 7 (Form
of Accession Document).
“Accounting Principles” means the generally accepted accounting principles of the United
Kingdom.
“Accounting Reference Date” means 31 December (or such other date as may be agreed in
accordance with this Agreement).
“Additional Borrower” means a company which becomes an Additional Borrower in accordance
with Clause 28.2 (Additional Borrowers).

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“Additional Guarantor” means a company which becomes an Additional Guarantor in
accordance with Clause 28.5 (Additional Guarantors).
“Additional Guernsey Transaction Security Document” means a security interest agreement in
respect of a bank account between the Company and the Security Agent dated on or about the date
of this Agreement.
“Additional Jersey Transaction Security Documents” means:
(a) a security interest agreement in respect of Fino (Jersey) Newco 1 Limited and Silver
Springs Limited between brighterkind Jersey Developments Limited (formerly FSHC
Jersey Developments Limited) and the Security Agent dated on or about the date of this
Agreement;
(b) a security interest agreement in respect of Rhyme (Jersey) Limited between Elli
Acquisitions Limited and the Security Agent dated on or about the date of this
Agreement;
(c) a security interest agreement in respect of a bank account between PHF (CHP) Limited
and the Security Agent dated on or about the date of this Agreement;
(d) a security interest agreement in respect of, amongst others, PHF Securities No. 1 Limited
and PHF Securities No. 2 Limited, between Principal Healthcare Finance Limited and the
Security Agent dated on or about the date of this Agreement; and
(e) a security interest agreement in respect of brighterkind Jersey Developments Limited
(formerly FSHC Jersey Developments Limited) and Principal Healthcare Finance Limited
between Rhyme (Jersey) Limited and the Security Agent dated on or about the date of this
Agreement.
“Additional Obligor” means an Additional Borrower or an Additional Guarantor.
“Affiliate” means, in relation to any person, a Subsidiary of that person or a Holding Company of
that person or any other Subsidiary of that Holding Company and for the purposes of Clause 26
(Changes to the Lenders) in relation to any Lender which is a fund, any of its Related Funds.
“Agreed Security Principles” means the principles set out in Schedule 12 (Agreed Security
Principles).
“Annual Financial Statements” means the financial statements for a Financial Year delivered
pursuant to paragraph (a)(i) of Clause 22.1 (Financial Statements).
“Appointor” has the meaning given to that term in the relevant Governance Document.
“Asset Threshold” has the meaning given to it in paragraph (d)(ii) of Clause 24.12 (Guarantors).
“Assignment Agreement” means an agreement substantially in the form set out in Schedule 6
(Form of Assignment Agreement) or any other form agreed between the relevant assignor and
assignee provided that if that other form does not contain the undertaking set out in the form set
out in Schedule 6 (Form of Assignment Agreement) it shall not be a Creditor/Creditor
Representative Accession Undertaking as defined in, and for the purposes of, the Intercreditor
Agreement.
“Audit Laws” means the EU Regulation (537/2014) on specific requirements regarding statutory
audit of public interest entities and repealing Commission Decision 2005/909/EC and the EU
Directive (2014/56/EU) amending Directive 2006/43/EC on statutory audits of annual accounts
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and consolidated accounts and any law or regulation which implements that EU Directive
(2014/56/EU).
“Auditors” means PricewaterhouseCoopers, Ernst & Young, KPMG or Deloitte LLP or any other
firm appointed by the applicable company to act as its statutory auditors.
“Authorisation” means an authorisation, consent, approval, resolution, licence, exemption, filing,
notarisation or registration.
“Availability Period” means:
(a) in relation to the Initial Utilisation, the period from and including the date of this
Agreement to and including the date falling three Business Days thereafter; and
(b) in relation to any other Utilisation, the period from and including the Closing Date to and
including 15 May 2018.
“Available Commitment” means a Lender's Commitment minus the amount of its participation
in any outstanding Utilisations.
“Available Facility” means the aggregate for the time being of each Lender's Available
Commitment.
“Base Reference Bank Rate” means the arithmetic mean of the rates (rounded upwards to four
decimal places) as supplied to the Agent at its request by the Base Reference Banks in relation to
LIBOR as the rate at which the relevant Base Reference Bank could borrow funds in the London
interbank market in Sterling and for the relevant period, were it to do so by asking for and then
accepting interbank offers for deposits in reasonable market size in Sterling and for that period.
“Base Reference Banks” means, in relation to LIBOR, the principal London office of Barclays
Bank PLC, HSBC Bank plc and The Royal Bank of Scotland plc or such other banks as may be
appointed by the Agent in consultation with the Company.
“Borrower” means the Original Borrower or an Additional Borrower unless it has ceased to be a
Borrower in accordance with Clause 28.2 (Additional Borrowers).
“Break Costs” means the amount (if any) by which:
(a) the interest (excluding the Margin) which a Lender should have received for the period
from the date of receipt of all or any part of its participation in a Loan or Unpaid Sum to
the last day of the current Interest Period in respect of that Loan or Unpaid Sum, had the
principal amount or Unpaid Sum received been paid on the last day of that Interest Period;
exceeds:
(b) the amount which that Lender would be able to obtain by placing an amount equal to the
principal amount or Unpaid Sum received by it on deposit with a leading bank in the
Relevant Interbank Market for a period starting on the Business Day following receipt or
recovery and ending on the last day of the current Interest Period.
“Budget” means any budget delivered by the Company to the Agent in respect of that period
pursuant to Clause 22.5 (Budget).
“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for
general business in London.
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“Capital Expenditures” means any expenditures or obligations in respect of expenditures which,
in accordance with the Accounting Principles, is treated as capital expenditures (and including the
capital element of any expenditures or obligations incurred in connection with a Finance Lease).
“Care Contracts” means the contracts entered into from time to time by any member of the
Restricted Group with local authorities, health authorities or the Department of Social Security (or
any equivalent governmental department, organisation, regulatory or supervisory body in any
jurisdiction other than England) for or in connection with the provision of residential and nursing
care services by such member of the Restricted Group.
“Care Home Division” means the operational care home division of the Group for care of the
elderly.
“Cash” means, at any time, cash in hand or at bank and (in the latter case) credited to an account
in the name of a member of the Restricted Group with an Acceptable Bank and to which it alone
(or together with other Restricted Subsidiaries) is beneficially entitled and for so long as:
(a) that cash is denominated in Sterling, or another currency freely convertible into Sterling;
(b) that cash is repayable within 30 days after the relevant date of calculation;
(c) repayment of that cash is not contingent on the prior discharge of any other indebtedness
of any member of the Restricted Group or of any other person whatsoever or on the
satisfaction of any other condition;
(d) there is no Security over that cash except for Transaction Security or any Security
permitted or not restricted by this Agreement, provided that no step or other enforcement
action has been taken to enforce such Security by the holders of such Security; and
(e) the cash is freely and (except as mentioned in paragraph (b) above) immediately available
to be applied in repayment or prepayment of the Facility.
“Cash Equivalent Investments” means at any time:
(a) certificates of deposit maturing within one year after the relevant date of calculation and
issued by an Acceptable Bank;
(b) any investment in marketable debt obligations issued or guaranteed by the government of
the United Kingdom, any member state of the European Economic Area or any
Participating Member State or by an instrumentality or agency of any of them having an
equivalent credit rating, maturing within one year after the relevant date of calculation and
not convertible or exchangeable to any other security;
(c) commercial paper not convertible or exchangeable to any other security:
(i) for which a recognised trading market exists;
(ii) issued by an issuer incorporated in the United Kingdom, any member state of the
European Economic Area or any Participating Member State;
(iii) which matures within one year after the relevant date of calculation; and (iv)
which has a credit rating of either A-1 or higher by S&P Global Ratings or F1 or
higher by Fitch Ratings Limited or P-1 or higher by Moody's Investor Services
Limited, or, if no rating is available in respect of the commercial paper, the issuer
of which has, in respect of its long-term unsecured and non-credit enhanced debt
obligations, an equivalent rating;
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