AMENDMENT NO. 2 dated as of September 22,2004 to the
Amended and Restated Credit, Security, Guaranty and
Pledge Agreement dated as of December 15,2003 among
Lions Gate Entertainment Corp. and Lions Gate
Entertainment Inc. (together, the "Borrowers"), the
Guarantors named therein, the Lenders referred to
therein, JPMorgan Chase Bank, as Administrative Agent
and as Issuing Bank for the Lenders (the "Agent"),
JPMorgan Chase Bank, Toronto Branch as Canadian Agent,
Fleet National Bank, as Co-Syndication Agent and BNP
Paribas, as Co-Syndication Agent (as the same may be
amended, supplemented or otherwise modified, the "Credit
Agreement").
INTRODUCTORY STATEMENT
The Lenders have made available to the Borrowers a credit facility
pursuant to the terms of the Credit Agreement.
The Lenders and the Agent have agreed to amend the Credit Agreement, all
on the terms and subject to the conditions herein set forth.
Therefore, the parties hereto hereby agree as follows:
Section 1. Defined Terms. Capitalized terms used herein and not otherwise
defined herein shall have the meaning given them in the Credit Agreement.
Section 2. Amendments to the Credit Agreement. Subject to the satisfaction
of the conditions precedent set forth in Section 3 hereof, the Credit Agreement
is hereby amended as of the Effective Date (as hereinafter defined) as follows:
(A) Article 1 of the Credit Agreement is hereby amended by adding the
following definition in the appropriate alphabetical sequence:
"2004 Convertible Subordinated Notes" shall mean LGEI's convertible senior
subordinated notes issued in 2004 which are not subject to maturity,
redemption, prepayment or repurchase at the option of the holders prior to
201 1 other than for a "Designated Event" as defined in Article 7 hereof
and for which the written agreements governing such notes substantially
reflect the terms set forth on Schedule A hereto and are otherwise in form
and substance reasonably acceptable to the Administrative Agent.
(B) The definition of "Convertible Senior Subordinated Notes" appearing in
Article 1 of the Credit Agreement is hereby amended in its entirety to read as
follows:
"Convertible Senior Subordinated Notes" shall mean (i) LGEI's convertible
senior subordinated notes issued pursuant to an offering circular dated
November 28, 2003 which are due on November 30, 2010, and (ii) the 2004
Convertible Subordinated Notes.
(C) Section 2.12(c) of the Credit Agreement is hereby amended by deleting
the last sentence thereof and adding the following at the end thereof that reads
as follows:
"The Borrowers shall pay to the Administrative Agent for the pro rata
account of each Lender any proceeds received by any Credit Party from
Replication Advances in excess o f US$55,000,000, such excess shall be
applied to the last principal payment of the Term Loans due in accordance
with Section 2.5 hereof; provided, that after the Term Loans have been
repaid in full, then all such proceeds shall be used to prepay the
Revolving Credit Loans. The Borrower shall also pay to the Administrative
Agent for the pro rata account of each Lender the first 50% of net
proceeds received from the issuance of the 2004 Convertible Subordinated
Notes (but in no event shall the amount required to be used to prepay
Loans hereunder be greater than $60,000,000), of which the first
$20,000,000 shall be applied to the next principal payment of the Term
Loans due in accordance with Section 2.5 hereof immediately following the
issuance of such notes and the balance shall be applied to the last
principal payment of the Term Loans due in accordance with Section 2.5
hereof; provided, that after the Term Loans have been repaid in full, then
ail such proceeds shall be used to prepay the Revolving Credit Loans."
(D) Section 6.4 of the Credit Agreement is hereby amended by adding the
following clause (xviii) to the end thereof that reads as follows: "Investments
in connection with acquisitions permitted under Section 6.7(b)(iii) hereof."
(E) Section 6.5 of the Credit Agreement is hereby amended by deleting the
words "dividends and distributions" appearing in clause (i) thereof and
inserting in lieu thereof the words "Restricted Payments".
(F) Section 6.7(b) of the Credit Agreement is hereby amended by adding
the following clause (iii) to the end thereof that reads as follows:
"(iii) acquisitions in an amount not to exceed $65 million in the
aggregate for which the consideration comes from (A) the issuance of new capital
stock or the proceeds of such newly issued capital stock and/or (B) up to 50% of
any proceeds of Replication Advances and Subordinated Debt received by a Credit
Party after the Effective Date as such term is defined in Amendment Number 2
dated as of September 22,2004 to this Credit Agreement, provided that, such
acquisitions (w) are within the scope of permitted business activities set forth
in Section 6.13 hereof, (x) are in Subsidiaries that are 100% controlled by one
or more Credit Party; provided, however, that up to 20% of the equity interest
in any such entity may be retained by previous investors, ( y) no Event of
Default shall be continuing after giving effect on a pro forma basis to any such
acquisition as demonstrated by a certificate from an Authorized Officer in form
and substance reasonably satisfactory to the Administrative Agent and attaching
supporting
2
schedules demonstrating in reasonable detail such compliance and (z) such newly
acquired Subsidiary becomes a Guarantor hereunder in accordance with Section
6.32 hereof.
(G) Section 6.16 of the Credit Agreement is hereby amended by replacing
clause (i) thereof with the following:
"(i) 75% of all new net equity invested in LGEC and new Subordinated Debt
issued, in cither case. after March 31, 2004, plus"
(H) Section 6.32 is hereby amended by deleting the words ";provided,
however, that a Credit Party may incorporate additional Subsidiaries if each"
with the word "unless".
(I) Section 7 of the Credit Agreement is hereby amended by adding the
following clause (11)following clause (t) thereof:
"(u) the occurrence of any "Designated Event" as defined in the Indenture
dated December 3, 2003 and the indenture issued in connection with the
2004 Convertible Subordinated Notes.
Section 3. Conditions to Effectiveness. The effectiveness of this
Amendment is subject to the satisfaction of all of the following conditions
precedent (the date on which all such conditions have been satisfied being
herein called the "Effective Date"):
(A) the receipt by the Agent of counterparts of this Amendment which, when
taken together. bear the signatures of the Borrowers, each Guarantor, the Agent
and the Required Lenders;
(B) the receipt by the Agent of all fees as set forth in Section 5 of this
Amendment; (C) the payment of all fees and expenses (including, without
limitation, fees and disbursements of counsel and consultants retained by the
Agent) due and payable by any Credit Party to the Agent and/or the Lenders; and
(D) all legal matters incident to this Amendment shall be satisfactory to
Morgan, Lewis & Bockius LLP, counsel for the Agent.
Section 4. Representations and Warranties. Each Credit Party represents
and warrants that:
(A) after giving effect to this Amendment, the representations and
warranties contained in the Credit Agreement are true and correct in all
material respects on and as of the date hereof as if such representations and
warranties had been made on and as of the date hereof (except to the extent that
any such representations and warranties specifically relate to an earlier date);
and
(B) after giving effect to this Amendment, no Event of Default or Default
will have occurred and be continuing on and as of the date hereof.
3
Section 5 . Fees. The Borrowers agree to pay the Agent for the account of
each of the Lenders who executes this Agreement by September 30,2004, a fee
equal to 1/8% of the aggregate Commitment of each such Lender under the Credit
Agreement.
Section 6. Further Assurances. At any time and from time to time, upon the
Agent's request and at the sole expense of the Credit Parties, each Credit Party
will promptly and duly execute and deliver any and all further instruments and
documents and take such further action as the Agent reasonably deems necessary
to effect the purposes of this Amendment.
Section 7. Fundamental Documents. This Amendment is designated a
Fundamental Document by the Agent.
Section 8. Full Force and Effect. Except as expressly amended hereby, the
Credit Agreement and the other Fundamental Documents shall continue in full
force and effect in accordance with the provisions thereof on the date hereof.
As used in the Credit Agreement, the terms "Agreement", "this Agreement",
"herein", "hereafter", "hereto", "hereof ', and words of similar import, shall,
unless the context otherwise requires, mean the Credit Agreement as amended by
this Amendment .
Section 9. APPLICABLE LAW. THIS AMENDMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Section 10. Counterparts. This Amendment may be executed in two or more
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute but one instrument.
Section 11 . Expenses. The Borrowers agree to pay all out-of-pocket
expenses incurred by the Agent in connection with the preparation, execution and
delivery of this Amendment, including, but not limited to, the reasonable fees
and disbursements of counsel for the Agent.
Section 12. Headings. The headings of this Amendment are for the purposes
of reference only and shall not affect the construction of or be taken into
consideration in interpreting this Amendment.
4
IN WITNESS WHEREOF, the parties hereby have caused this Amendment to be
duly executed as of the date first written above:
BORROWERS:
LIONS GATE ENTERTAINMENT CORP.
By /s/
__________________________
Name:
Title:
LIONS GATE ENTERTAINMENT INC.
By /s/
__________________________
Name:
Title:
GUARANTORS:
408376 B.C. LIMITED
AM PSYCHO PRODUCTIONS, INC.
ATTRACTION PRODUCTIONS LLC
BLUE PRODUCTIONS INC.
CINEPIX ANIMATION INC./ANIMATION
CINEPIX INC.
CINEPIX FILMS INC./FILMS CINEPIX INC.
CONFIDENCE PRODUCTIONS, INC.
COVEN PRODUCTIONS CORP.
CUBE FORWARD PRODUCTIONS CORP.
DEAD ZONE PRODUCTION CORP.
DEVILS REJECTS, INC.
FINAL CUT PRODUCTIONS CORP.
FIVE DAYS PRODUCTIONS CORP.
FRAILTY PRODUCTIONS, INC.
HIGH CONCEPT PRODUCTIONS INC.
HYPERCUBE PRODUCTIONS CORP.
KING OF THE WORLD PRODUCTIONS LLC
LG PICTURES INC.
LIONS GATE FILMS CORP.
LIONS GATE FILMS DEVELOPMENT CORP.
LIONS GATE FILMS PRODUCTIONS
CORP./PRODUCTIONS FILMS LIONS
GATE S.A.R.F.
LIONS GATE MUSIC CORP.
LIONS GATE RECORDS, INC.
5
LIONS GATE STUDIO MANAGEMENT LTD.
LIONS GATE TELEVISION CORP.
LIONS GATE TELEVISION (ONTARIO) CORP.
LIONS GATE TELEVISION
DEVELOPMENT LLC
LIONS GATE TELEVISION INC.
LUCKY 7 PRODUCTIONS CORP.
MISSING PRODUCTIONS CORP.
MISSING PRODUCTIONS I CORP.
MISSING PRODUCTIONS II CORP.
MOTHER PRODUCTIONS CORP.
M WAYS PRODUCTIONS CORP.
M WAYS II PRODUCTIONS CORP.
PLANETARY PRODUCTIONS, LLC
PRESSURE PRODUCTIONS CORP.
PRISONER OF LOVE PRODUCTIONS CORP.
PROFILER PRODUCTIONS CORP.
PSYCHO PRODUCTIONS SERVICES CORP.
SHUTTERSPEED PRODUCTIONS CORP.
TERRESTRIAL PRODUCTIONS CORP.
VOID PRODUCTIONS CORP.
WEEDS PRODUCTIONS INC.
WRITERS ON THE WAVE
3F SERVICES, INC.
ARIMA INC.
ARTISAN ENTERTAINMENT INC.
ARTISAN FILMED PRODUCTIONS, INC.
ARTISAN HOME ENTERTAINMENT INC.
ARTISAN MUSIC INC.
ARTISAN PICTURES INC.
ARTISAN RELEASING INC.
ARTISAN TELEVISION INC.
BD OPTICAL MEDIA, INC.
BL DISTRIBUTION CORP.
CAVE PRODUCTIONS, INC.
FHCL, LLC
FILM HOLDINGS CO.
FUSION PRODUCTIONS, INC.
LANDSCAPE ENTERTAINMENT CORP.
POST PRODUCTION, INC.
PUNISHER PRODUCTIONS, INC.
SCREENING ROOM, INC.
6
SILENT DEVELOPMENT CORP.
VESTRON INC.
By: /s/
____________________________
Name:
Title:
BLAIR WITCH FILM PARTNERS LTD.
By: Artisan Filmed Productions Inc.
Its: General Partner
By: /s/
____________________________
Name:
Title:
LENDERS:
JPMORGAN CHASE BANK,
individually and as Administrative Agent
By:
_____________________________
Name:
Title:
Address: 1166 Avenue of the Americas,
17th floor
New York, NY 10136-2708
Attention: Garrett Verdone
Facsimile: (212) 899-2893
BANK LUEMI USA
By:
______________________________
Name:
Title:
Address:
Attention:
Facsimile:
7
SILENT DEVELOPMENT CORP.
VESTRON INC.
By: ________________________________________
Name:
Title:
BLAIR WITCH FILM PARTNERS LTD.
By: Artisan Filmed Productions Inc.
Its: General Partner
By: ________________________________________
Name:
Title:
LENDERS:
JPMORGAN CHASE BANK,
individually and as Administrative Agent
By: /s/ Garrett J. Verdone
________________________________________
Name: GARRETT J. VERDONE
Title: SENIOR VICE PRESIDENT
Address: 1166 Avenue of the Americas,
17th floor
New York, NY 10136-2708
Attention: Garrett Verdone
Facsimile: (212) 899-2893
BANK LEUMI USA
By: ________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
7
SILENT DEVELOPMENT CORP.
VESTRON INC.
By: ________________________________________
Name:
Title:
BLAIR WITCH FILM PARTNERS LTD.
By: Artisan Filmed Productions Inc.
Its: General Partner
By: ________________________________________
Name:
Title:
JPMORGAN CHASE BANK,
individually and as Administrative Agent
By:
________________________________________
Name:
Title:
Address: 1166 Avenue of the Americas,
17th floor
New York, NY 10136-2708
Attention: Garrett Verdone
Facsimile: (212) 899-2893
BANK LEUMI USA
By: /s/ Melanie L. Krinsky
________________________________________
Name: Melanie L. Krinsky
Title: First Vice President
Address: 8383 Wilshire Blvd., #400
Attention: Beverly Hills, CA 90211
Facsimile: (323) 966-4251
7
BNP PARIBAS
By /s/ Frederique Merhaut
______________________________
Name: Frederique Merhaut
Title: Director
Address:
Attention:
Facsimile:
By /s/ Tjalling Terpstra
______________________________
Name: Tjalling Terpstra
Title: Director
Address:
Attention:
Facsimile:
CITY NATIONAL BANK
By
______________________________
Name:
Title:
Address:
Attention:
Facsimile:
FLEET NATIONAL BANK
By
______________________________
Name:
Title:
Address:
Attention:
Facsimile:
8
BNP PARIBAS
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
CITY NATIONAL BANK
By /s/ NORMAN B. STARR
_____________________________
Name: NORMAN B. STARR
Title: SENIOR VICE PRESIDENT
Address:
Attention:
Facsimile:
FLEET NATIONAL BANK
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
8
BNP PARIBAS
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
CITY NATIONAL BANK
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
FLEET NATIONAL BANK
By /s/ AMY PEDEN
_____________________________
Name: Amy Peden
Title: Vice President
Address: 335 Madison Ave
New York, NY 20034
Attention:
Facsimile: 212-503-7173
8
ISRAEL DISCOUNT BANK OF NEW YORK
/s/ Alan Lefkowitz
By _______________________________
Name: Alan Lefkowitz
Title: FVP
Address: 511 5th Avenue, New York, New York 10017
Attention: Alan Lefkowitz
Facsimile: 212 551 8720
/s/ Lucas Ramirez
By _______________________________
Name: Lucas Ramirez
Title: AVP
Address: 511 5th Avenue, New York, New York 10017
Attention: Lucas Ramirez
Facsimile: 212 551 8720
JP MORGAN CHASE BANK, TORONTO
BRANCH, individually and as Canadian Agent
By _______________________________
Name:
Title:
Address:
Attention:
Facsimile:
MANUFACTURERS BANK
By _______________________________
Name:
Title:
Address:
Attention:
Facsimile:
9
ISRAEL DISCOUNT BANK OF NEW YORK
By _______________________________
Name:
Title:
Address:
Attention:
Facsimile:
By _______________________________
Name:
Title:
Address:
Attention:
Facsimile:
JP MORGAN CHASE BANK, TORONTO
BRANCH, individually and as Canadian Agent
/s/ Christine Chan
By _______________________________
Name: Christine Chan
Title: Vice President
Address: 200 Bay Street, Royal Bank Plaza,
South Tower, 18th Floor, Toronto,
Ontario M5J 2J2 Canada
Attention: Christine Chan
Facsimile: 416-981-9138
MANUFACTURERS BANK
By _______________________________
Name:
Title:
Address:
Attention:
Facsimile:
9
ISRAEL DISCOUNT BANK OF NEW YORK
By _______________________________
Name:
Title:
Address:
Attention:
Facsimile:
By _______________________________
Name:
Title:
Address:
Attention:
Facsimile:
JP MORGAN CHASE BANK, TORONTO
BRANCH, individually and as Canadian Agent
By _______________________________
Name:
Title:
Address:
Attention:
Facsimile:
MANUFACTURERS BANK
/s/ Sandy Lee
By _______________________________
Name: Sandy Lee
Title: Vice President
Address: 515 S. Figueroa St.
Los Angeles, CA 90071
Attention: Sandy Lee
Facsimile: 213-489-6028
9
U.S. BANK NATIONAL ASSOCIATION
By /s/ Joan F. Stigllanoi
___________________________________________
Name: Joan F. Stigliano
Title: Senior Vice President
Entertainment Industries Group
Address: U.S. Bank, National Association
Attention: 633 West Fifth Street 30th Floor
Los Angeles, CA 90071
Facsimile: 213/615-6797
SOCIETE GENERALE
By
___________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
THE LEWIS HORWITZ ORGANIZATION, a
division of Imperial Capital Bank
By
___________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
UNION BANK OF CALIFORNIA, N.A.
By
___________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
10
U.S. BANK NATIONAL ASSOCIATION
By
___________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
SOCIETE GENERALE
By /s/ Mark Vigil
___________________________________________
Name: Mark Vigil
Title: Managing Director
Address: 1221 Avenue of the Americas
New York, NY 10020
Attention: Mark Vigil
Facsimile: (212) 278-6146
THE LEWIS HORWITZ ORGANIZATION, a
division of Imperial Capital Bank
By
___________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
UNION BANK OF CALIFORNIA, N.A.
By
___________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
10
U.S. BANK NATIONAL ASSOCIATION
By
___________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
SOCIETE GENERALE
By
___________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
THE LEWIS HORWITZ ORGANIZATION, a
division of Imperial Capital Bank
By /s/ [SIGNATURE ILLEGIBLE]
___________________________________________
Name: David [ILLEGIBLE]
Title: VP/M.D.
Address: 1840 Century Park East #1000
Attention:
Facsimile: 310 275-8055
UNION BANK OF CALIFORNIA, N.A.
By
___________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
10
U.S. BANK NATIONAL ASSOCIATION
By
___________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
SOCIETE GENERALE
By
___________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
THE LEWIS HORWITZ ORGANIZATION, a
division of Imperial Capital Bank
By
___________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
UNION BANK OF CALIFORNIA, N.A.
By /s/ Kin Cheng
___________________________________________
Name: Kin Cheng
Title: Assistant Vice President
Address: 445 S. Figueroa St. 16th Floor
LA, CA 90071
Attention: Danny Mandel
Facsimile: 213-236-5852
10
WESTLB AG (formerly Westdeutsche Landesbank
Girozentrale), NEW YORK BRANCH
By
----------------------------------------
Name:
Title:
Address:
Attention:
Facsimile:
By
----------------------------------------
Name:
Title:
Address:
Attention:
Facsimile:
THE ROYAL BANK OF SCOTLAND PLC
By /s/ T. Castledine
----------------------------------------
Name: TREVOR CASTLEDINE
Title: AUTHORISED SIGNATORY
Address:
Attention:
Facsimile:
ARES VI CLO LTD.
By
----------------------------------------
Name:
Title:
Address:
Attention:
Facsimile:
11
WESTLB AG (formerly Westdeutsche Landesbank
Girozentrale), NEW YORK BRANCH
By
----------------------------------------
Name:
Title:
Address:
Attention:
Facsimile:
By
----------------------------------------
Name:
Title:
Address:
Attention:
Facsimile:
THE ROYAL BANK OF SCOTLAND PLC
By
----------------------------------------
Name:
Title:
Address:
Attention:
Facsimile:
ARES VI CLO LTD.
By /s/ Seth J. Brufsky
----------------------------------------
Name: SETH J. BRUFSKY
Title: VICE PRESIDENT
Address:
Attention:
Facsimile:
11
ARES VII CLO LTD.
By /s/ Seth J. Brufsky
_____________________________
Name: SETH J. BRUFSKY
Title: VICE PRESIDENT
Address:
Attention:
Facsimile:
ARES VIII CLO LTD.
By /s/ Seth J. Brufsky
_____________________________
Name: SETH J. BRUFSKY
Title: VICE PRESIDENT
Address:
Attention:
Facsimile:
ARES LEVERAGED INVESTMENT FUND II,
L.P.
By /s/ Seth J. Brufsky
_____________________________
Name: SETH J. BRUFSKY
Title: VICE PRESIDENT
Address:
Attention:
Facsimile:
BLACKROCK LIMITED DURATION INCOME
TRUST
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
12
ELC (CAYMAN) LTD. 1999-II
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
ELC (CAYMAN) LTD. 1999-III
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
ELC (CAYMAN) LTD. 2000-I
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
MAPLEWOOD (CAYMAN) LIMITED
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
14
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
PRESEUS CDO I LIMITED
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
SEABOARD CLO 2000 LTD.
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
SIMSBURY CLO, LIMITED
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
15
TRYON CLO LTD. 2000-I
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
EATON VANCE INSTITUTIONAL SENIOR
LOAN FUND
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
EATON VANCE LIMITED DURATION
INCOME FUND
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
EATON VANCE SENIOR FLOATING RATE
TRUST
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
16
EATON VANCE SENIOR INCOME TRUST
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
EATON VANCE VT FLOATING-RATE
INCOME FUND
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
GRAYSON & CO.
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
SENIOR DEBT PORTFOLIO
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
17
OXFORD STRATEGIC INCOME FUND
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
FIDELITY ADVISOR SERIES II: FIDELITY
ADVISOR FLOATING HIGH RATE INCOME
FUND (161)
By
_____________________________
Name:
Title:
Address:
Attention:
Facsimile:
18
ARCHIMEDES FUNDING III, LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
BY: /s/ Steven Gorski
________________________________________
Name: Steven Gorski
Title: Director
ARCHIMEDES FUNDING IV (CAYMAN), LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
BY: /s/ Steven Gorski
________________________________________
Name: Steven Gorski
Title: Director
ENDURANCE CLO I, LTD.
By: ING Capital Advisors LLC,
as Portfolio Manager
BY: /s/ Steven Gorski
________________________________________
Name: Steven Gorski
Title: Director
ING-ORYX CLO LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
BY: /s/ Steven Gorski
________________________________________
Name: Steven Gorski
Title: Director
19
NEMEAN CLO LTD.
By: ING Capital Advisors LLC,
as Investment Manager
By: /s/ Steven Gorski
________________________________________
Name: Steven Gorski
Title: Director
SEQUILS-ING I (HBDGM), LTD.
BY: ING Capital Advisors LLC,
as Collateral Manager
BY: /s/ Steven Gorski
________________________________________
Name: Steven Gorski
Title: Director
OCTAGON INVESTMENT PARTNERS II, LLC
By ________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
OCTAGON INVESTMENT PARTNERS III, LTD.
By ________________________________________
Name:
Title:
Address:
Attention:
Facsimile:
20
OCTAGON INVESTMENT PARTNERS IV, LTD.
By
----------------------------------
Name:
Title:
Address:
Attention:
Facsimile:
OCTAGON INVESTMENT PARTNERS V, LTD.
By
----------------------------------
Name:
Title:
Address:
Attention:
Facsimile:
OCTAGON INVESTMENT PARTNERS VI, LTD.
By
----------------------------------
Title:
Address:
Attention:
Facsimile:
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PUTNAM DIVERSIFIED INCOME TRUST
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PUTNAM HIGH YIELD ADVANTAGE FUND
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PUTNAM HIGH YIELD TRUST
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PUTNAM VARIABLE TRUST - PVT HIGH
YIELD FUND
By
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FOOTHILL INCOME TRUST, LP
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SCHEDULE A
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LIONS GATE ENTERTAINMENT
___% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2024
- --------------------------------------------------------------------------------
INDICATIVE TERM SHEET -- SEPTEMBER 21, 2004
- --------------------------------------------------------------------------------
ISSUER: Lions Gate Entertainment Inc. ("U.S. Lions
Gate")
GUARANTOR: Lions Gate Entertainment Corp. ("Lions Gate")
TRADE DATE: October [__], 2004
SETTLEMENT DATE: October [ ], 2004 (T+3)
MATURITY DATE: October 15, 2024
REPURCHASE AT OPTION OF HOLDER: Each holder may require U.S. Lions Gate to
repurchase the notes in cash, in whole or in
part, on each of October 15, 2011, 2014 and 2019
for a repurchase price equal to 100% of the
principal amount of the notes plus accrued and
unpaid interest and additional interest, if any,
to, but excluding, the date of repurchase.
OPTIONAL REDEMPTION BY COMPANY: Lions Gate may redeem all or portion of the
notes at its option on or after October 15, 2009
at the following redemption prices:
Redemption
Date Price
------------------------------------------------
October 15, 2009 to October 14, 2010 [ ]%
October 15, 2010 to October 14, 2011 [ ]%
October 15, 2011 and thereafter 100.000%
OFFERING SIZE: $125,000,000
OVER-ALLOTMENT OPTION: $25,000,000
FACE AMOUNT: $1,000
OFFERING PRICE: 100.00
COUPON/YIELD TO MATURITY: [__%]
COUPON PAYMENT DATES: [October] 15 and [April] 15, beginning [April]
15, 2005
CLOSING SALE PRICE (______/04): $
CONVERSION PREMIUM: [__%]
CONVERSION PRICE: $[__]
CONVERSION RATIO: [__]
GUARANTEE: The notes will be fully and unconditionally
guaranteed by Lions Gate, U.S. Lions Gate's
ultimate parent company.
RANKING: The notes and the related guarantee, as
applicable;
- will be unsecured senior subordinated
obligations;
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- will rank subordinate in right of payment to (1) up
to $340 million outstanding principal amount of bank
debt, (2) up to $75 million outstanding principal
amount of vendor financing, and (3) secured
financing in connection with motion picture and
television productions and/or acquisitions, or
acquisitions of libraries or catalogues, with
respect to such secured financing, only to the
extent of the value of the assets secured;
- will be effectively subordinated to all other
existing and future secured indebtedness of U.S.
Lions Gate or Lions Gate, as applicable, to the
extent of the value of the assets securing such
debt;
- will be effectively subordinated to the liabilities,
including trade payables, of Lions Gate's direct and
indirect subsidiaries other than U.S. Lions Gate;
and
- other than as set out above, will rank on parity in
right of payment with all U.S. Lions Gate's and
Lions Gate's existing and future unsecured senior
debt.
CONVERSION: Each holder may convert the notes into common shares of
Lions Gate at a conversion rate of _____ common shares per
$1,000 principal amount of notes, subject to adjustment,
before the close of business on the trading day immediately
before the maturity date, unless the notes have been
previously redeemed or repurchased, under any of the
following circumstances during the periods specified:
- if, on or before October 15, 2019, the closing price
of the common shares of Lions Gate for at least 20
trading days in the 30 consecutive trading day
period ending on the eleventh trading day of the
preceding fiscal quarter exceeds 120% of the
then-current conversion price in effect, then the
holder will have the right to convert its notes
until the eleventh trading day of the immediately
following fiscal quarter;
- if, on any trading day after October 15, 2019, the
closing sale price of the common shares of Lions
Gate exceeds 120% of the then-current conversion
price in effect, then the holder will have the right
to convert its notes at all times thereafter until
the close of business on the trading day immediately
before the maturity date;
- if, at any time on or before October 15, 2019, the
trading price per $1,000 principal amount of notes
for each trading day of any five consecutive
trading-day period was less than 98% of the product
of the closing sale price of the common shares of
Lions Gate and the conversion rate then in effect,
then the
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holder will have the right to convert its notes
until the close of business on the fifth trading
day immediately following the conclusion of any
such five consecutive trading-day period;
- if U.S. Lions Gate calls the holder's notes for
redemption, the holder will have the right to
convert the notes called for redemption from the
date of the notice of redemption until the close
of business on the trading day immediately before
the redemption date, after which time the
holder's right to convert will expire unless U.S.
Lions Gate defaults in the payment of the
redemption price;
- if Lions Gate distributes to all or substantially
all holders of its common shares, rights, options
or warrants entitling them to purchase its common
shares at a price less than the average closing
sale price of the common shares of Lions Gate for
the ten trading days ending on the trading day
immediately before the declaration date, the
holder will have the right to convert its notes
until a specified date unless it can participate
in the distribution without converting its notes;
or
- if Lions Gate distributes to all holders of its
common shares, cash or other assets, debt
securities or rights to purchase its securities,
which distribution has a per common share value
exceeding 5% of the closing sale price of its
common shares on the trading day immediately
before the declaration date for such
distribution, the holder will have the right to
convert its notes until a specified date unless
it can participate in the distribution without
converting its notes.
In addition, if Lions Gate or U.S. Lions Gate becomes a
party to a consolidation, merger, binding share exchange
or sale or conveyance of all or substantially all of its
property and assets that constitutes a "designated event"
(a change in control (as defined) or a termination of
trading), or such an event occurs that would have been a
change in control but for certain exceptions, then the
holder will have the right to convert its notes beginning
15 days before the date announced by Lions Gate or U.S.
Lions Gate, as the case may be, as the anticipated
effective date of the transaction until and including the
date which is 15 days after the actual effective date of
the transaction. Under certain circumstances, the holder
will also be entitled to receive a make whole premium
upon such a change in control.
HOLDERS REPURCHASE
RIGHT: Holders will have the right to require U.S. Lions Gate to
repurchase the notes at par upon a designated event.
MAKE WHOLE PREMIUM: Upon the occurrence of a change in control, under certain
circumstances U.S. Lions Gate will pay, in addition to
the repurchase price, a make whole premium on notes
converted or tendered for repurchase in connection with
the change in control.
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The amount of the make whole premium, if any, will be based
on the price of the common shares of Lions Gate on the
effective date of the designated event. No make whole
premium will be paid if the price of the common shares of
Lions Gate is less than $[7.00] or if the price of the
common shares of Lions Gate exceeds $[50.00] (in each case,
subject to adjustment).
In the event of a change in control that would otherwise
trigger the obligation of U.S. Lions Gate to pay the make
whole premium, U.S. Lions Gate will have the option of
paying the make whole premium to the holders or causing the
notes to be convertible into common shares of the surviving
company in such change in control so long as such shares
are traded primarily on a national securities exchange or
quoted primarily on the NASDAQ Market.
RATING: Not rated
GROSS SPREAD: 3.00%
PLACEMENT AGENTS: SG Cowen & Co., LLC
OFFERING TYPE: 144A offering
CUSIP NUMBER: --
COMMON STOCK TICKER: LGF
USE OF PROCEEDS: To repay certain obligations under existing credit facility
and for general corporate purposes, including acquisitions.
The terms set forth above are to be kept in strictest confidence; any
reproduction or distribution of such terms, in whole or in part, or disclosure
of any of its contents is strictly prohibited. The terms set forth above do not
constitute a direct or implied commitment on the part of SG Cowen to sell the
securities. Such engagement shall be set forth in a separate agreement and may
be subject to, among other things, satisfactory completion of due diligence by
SG Cowen, market conditions, the absence of adverse changes to the Company's
business or financial condition, approval of SG Cowen's internal committee and
any other conditions that SG Cowen may deem appropriate for transactions of
such nature.
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