THE FILM DEPARTMENT HOLDINGS, INC. [ ] Shares of Common Stock (Par Value $0.001 Per Share) UNDERWRITING AGREEMENTUnderwriting Agreement • June 24th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production • New York
Girard Securities, Inc. as Representative of the several Underwriters named in Schedule A hereto c/o Girard Securities, Inc. 9560 Waples Street, Suite B San Diego, California 92121
ContractFilm Department Holdings, Inc. • June 24th, 2010 • Services-motion picture & video tape production • California
THIS WARRANT MAY NOT BE EXERCISED PRIOR TO ___, 2010 AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED PRIOR TO THAT DATE EXCEPT TO AN OFFICER OR PARTNER OF THE HOLDER. THIS WARRANT WILL EXPIRE AND BE VOID AFTER ___, 2015.
AMENDED AND RESTATED EXECUTIVE SERVICES AGREEMENTExecutive Services Agreement • January 25th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production • California
This AMENDED AND RESTATED EXECUTIVE SERVICES AGREEMENT (this “Agreement”), dated as of December 1, 2009 (the “Effective Date”), by and among The Film Department Holdings LLC, a Delaware limited liability company (the “Company”), Chateau Holdings, Inc., an Idaho corporation (the “Lender”), and Robert Katz (the “Executive”), for the executive services of the Executive.
EMPLOYMENT AGREEMENTEmployment Agreement • January 25th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production • California
EMPLOYMENT AGREEMENT (this “Agreement”), is dated as of June 27, 2007 (the “Effective Date”) between The Film Department Holdings LLC, a Delaware limited liability company (the “Company”), and Daniel Stutz (the “Executive”), for the executive services of the Executive.
FOURTH AMENDMENT TO AMENDED AND RESTATED EXECUTIVEServices Agreement • June 10th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production
This Fourth Amendment (the “Amendment”) to that certain Amended and Restated Executive Services Agreement dated as of November 30, 2009 (the “Employment Agreement”) by and between Chateau Holdings, Inc, (the “Lender”), Robert Katz (the “Employee”) and The Film Department Holdings, Inc., a Delaware corporation, as successor-in-interest to The Film Department Holdings, LLC, (the “Company”), is made as of May 12, 2010 (the “Effective Date”), and is entered into by and between Company, Lender and Employee.
THIRD AMENDMENT TO SECOND AMENDED AND RESTATED EXECUTIVE SERVICES AGREEMENTExecutive Services Agreement • May 14th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production
This Third Amendment (the “Amendment”) to that certain Second Amended and Restated Executive Services Agreement dated as of November 30, 2009 (the “Employment Agreement”) by and between Pain Cuit, Inc. (the “Lender”), Mark Gill (“Employee”) and The Film Department Holdings Inc., a Delaware corporation, as successor-in-interest to The Film Department Holdings LLC, (the “Company”), is made as of April 27, 2010 (the “Effective Date”), and is entered into by and between Company, Lender and Employee.
WAIVER, CONSENT AND AMENDMENT February 27, 2009Film Department Holdings, Inc. • June 24th, 2010 • Services-motion picture & video tape production • New York
The undersigned, constituting the Required Holders, the Company, THE FILM DEPARTMENT HOLDINGS LLC, a Delaware limited liability company (“Holdings”), the Collateral Agent, and TFD LITERARY ACQUISITIONS, LLC, a Delaware limited liability company (“TFD Acquisitions”) pursuant to and in accordance with the provisions of the Securities Purchase Agreement (as defined below), in consideration of the mutual agreements herein contained and other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, hereby agree as follows:
SECOND AMENDMENT TO EMPLOYMENT AGREEMENTSecond Amendment • January 25th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production
This Second Amendment (the “Second Amendment”) to that certain Employment Agreement dated as of June 27, 2007 (“Employment Agreement”) by and between Daniel Stutz (“Employee”) and The Film Department Holdings LLC, a Delaware limited liability company (the “Company”) is effective as of July 16, 2009 (the “Effective Date”), and is entered into by and between Company and Employee.
AMENDMENT NO. 3 TO SECURITIES PURCHASE AGREEMENTSecurities Purchase Agreement • June 24th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production • New York
AMENDMENT NO. 3 TO SECURITIES PURCHASE AGREEMENT dated as of September 9, 2008 (this “Amendment”) with respect to the Securities Purchase Agreement dated as of June 27, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Securities Purchase Agreement”) among THE FILM DEPARTMENT LLC, a Delaware limited liability company (the “Company”), THE FILM DEPARTMENT HOLDINGS LLC, a Delaware limited liability company (“Holdings”), the Purchasers party thereto and UNION BANK OF CALIFORNIA, N.A., as collateral agent for the Secured Parties defined therein (in such capacity, and together with its successors and permitted assigns, the “Collateral Agent”). Terms defined in the Securities Purchase Agreement and not otherwise defined herein are used herein as therein defined.
ContractFilm Department Holdings, Inc. • April 6th, 2010 • Services-motion picture & video tape production • New York
Picture, of 100% of the amount of “P&A Budget” (as defined herein) for such Picture or TWC’s receipt from Licensor of such other financial assurances to secure TWC’s receipt of the amount of the P&A Budget (in a form acceptable to TWC in its sole discretion) for the full amount of such P&A Budget (“Funding Condition Precedent”). Notwithstanding the foregoing or anything else to the contrary in this Agreement, the parties acknowledge and agree that on a Picture-by-Picture basis, the actual “licensor” to TWC of the Rights set forth herein may be a single purpose company which contains no assets other than the applicable Picture (“SPC”), and in such event, Licensor shall cause the SPC to execute the Short Form Assignment in lieu of Licensor provided that the SPC agrees in writing to be bound by all of the terms, conditions and obligations hereof and provided further that Licensor shall remain liable hereunder with respect to all Pictures.
AMENDMENT TO SECURITIES PURCHASE AGREEMENT AND OTHER NOTE DOCUMENTSSecurities Purchase Agreement • June 24th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production • New York
AMENDMENT TO SECURITIES PURCHASE AGREEMENT AND OTHER NOTE DOCUMENTS dated as of August 12, 2009 (this “Amendment”), with respect to the Securities Purchase Agreement dated as of June 27, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Securities Purchase Agreement”), among THE FILM DEPARTMENT LLC, a Delaware limited liability company (the “Company”), THE FILM DEPARTMENT HOLDINGS LLC, a Delaware limited liability company (“Holdings”), the Purchasers party thereto and UNION BANK, N.A., formerly known as Union Bank of California, N.A. (“UBOC”), as collateral agent for the Secured Parties defined therein (in such capacity, and together with its successors and permitted assigns, the “Collateral Agent”). Terms defined in the Securities Purchase Agreement and not otherwise defined herein are used herein as therein defined.
AMENDMENT NO 2 TO FORBEARANCE AGREEMENTForbearance Agreement • June 24th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production • New York
Amendment No. 2 dated as of September 9, 2009 (this “Amendment”) to the Forbearance Agreement and Amendment to Securities Purchase Agreement and Other Note Documents dated as of September 2, 2009 (as amended by Amendment No. 1, dated as of September 4, 2009, the “Forbearance Agreement”).
FIRST AMENDMENT TO SECOND AMENDED AND RESTATED EXECUTIVE SERVICES AGREEMENTExecutive Services Agreement • April 6th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production • Delaware
This First Amendment (the “Amendment”) to that certain Second Amended and Restated Executive Services Agreement dated as of November 30, 2009 (the “Employment Agreement”) by and between Neil Sacker (“Employee”) and The Film Department Holdings LLC, a Delaware limited liability company (the “Company”), is made as of as of March 30, 2010 (the “Effective Date”), and is entered into by and between Company and Employee.
FIFTH AMENDMENT TO AMENDED AND RESTATED EXECUTIVE SERVICES AGREEMENTExecutive Services Agreement • June 10th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production
This Fifth Amendment (the “Amendment”) to that certain Amended and Restated Executive Services Agreement dated as of November 30, 2009 (the “Employment Agreement”) by and between Chateau Holdings, Inc, (the “Lender”), Robert Katz (the “Employee”) and The Film Department Holdings, Inc., a Delaware corporation, as successor-in-interest to The Film Department Holdings, LLC, (the “Company”), is made as of May 27, 2010 (the “Effective Date”), and is entered into by and between Company, Lender and Employee.
AMENDMENT TO SECURITIES PURCHASE AGREEMENT AND OTHER NOTE DOCUMENTSSecurities Purchase Agreement • June 24th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production • New York
AMENDMENT TO SECURITIES PURCHASE AGREEMENT AND OTHER NOTE DOCUMENTS dated as of June 29, 2009 (this “Amendment”), with respect to the Securities Purchase Agreement dated as of June 27, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Securities Purchase Agreement”), among THE FILM DEPARTMENT LLC, a Delaware limited liability company (the “Company”), THE FILM DEPARTMENT HOLDINGS LLC, a Delaware limited liability company (“Holdings”), the Purchasers party thereto and UNION BANK, N.A., formerly known as Union Bank of California, N.A. (“UBOC”), as collateral agent for the Secured Parties defined therein (in such capacity, and together with its successors and permitted assigns, the “Collateral Agent”). Terms defined in the Securities Purchase Agreement and not otherwise defined herein are used herein as therein defined.
THIRD AMENDMENT TO EMPLOYMENT AGREEMENTThird Amendment • January 25th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production
This Third Amendment (the “Third Amendment”) to that certain Employment Agreement dated as of June 27, 2007 (“Employment Agreement”), by and between Bernd Stephan (“Employee”) and The Film Department Holdings LLC, a Delaware limited liability company (the “Company”), is effective as of July 16, 2009 (the “Effective Date”), and is entered into by and between Company and Employee.
Alliance Films Inc. 145 King Street East Third Floor Toronto, Ontario M5C 2Y7 Effective as of October 20, 2008 The Film Department LLC 8439 Sunset Blvd., 2nd Floor West Hollywood, CA 90069 Attention: Neil Sacker, President and COO Re: Second Amended...Film Department Holdings, Inc. • March 8th, 2010 • Services-motion picture & video tape production • California
This Second Amended and Restated letter agreement when fully executed shall supersede and replace the Amended and Restated Output Agreement of even date herewith by and between Alliance Films, Inc. (“Alliance”) and The Film Department LLC (“FD”), and will serve to confirm the agreement (“Agreement”) reached between Alliance and FD, with respect to the main deal terms related to the output arrangement between Alliance and FD, pursuant to which Alliance licenses the rights in and to certain films from FD as further described herein.
SECOND AMENDMENT TO AMENDED AND RESTATED EXECUTIVE SERVICES AGREEMENTExecutive Services Agreement • April 7th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production
This Second Amendment (the “Amendment”) to that certain Amended and Restated Executive Services Agreement dated as of December 1, 2009, as amended (the “Employment Agreement”) by and among Chateau Holdings, Inc., an Idaho corporation (“Lender”), Robert Katz (“Executive”) and The Film Department Holdings LLC, a Delaware limited liability company (the “Company”), is made as of January 1, 2010, and is entered into by and between Company, Lender and Executive.
SIXTH AMENDMENT TO SECOND AMENDED ANDExecutive Services Agreement • June 10th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production
This Sixth Amendment (the “Amendment”) to that certain Second Amended and Restated Executive Services Agreement dated as of November 30, 2009 (the “Employment Agreement”) by and between Sacker Consultants, Inc. (the “Lender”), Neil Sacker (the “Employee”) and The Film Department Holdings, Inc., a Delaware corporation, as successor-in-interest to The Film Department Holdings, LLC, (the “Company”), is made as of May 27, 2010 (the “Effective Date”), and is entered into by and between Company, Lender and Employee.
SECOND AMENDMENT TO AMENDED AND RESTATED EXECUTIVE SERVICES AGREEMENTExecutive Services Agreement • April 7th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production
This Second Amendment (the “Amendment”) to that certain Amended and Restated Executive Services Agreement dated as of December 1, 2009, as amended (the “Employment Agreement”) by and among Sacker Consultants, Inc., a California corporation (“Lender”), Neil Sacker (“Executive”) and The Film Department Holdings LLC, a Delaware limited liability company (the “Company”), is made as January 1, 2010, and is entered into by and between Company, Lender and Executive.
FORBEARANCE AGREEMENT AND AMENDMENT TO SECURITIES PURCHASE AGREEMENT AND OTHER NOTE DOCUMENTSForbearance Agreement • June 24th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production • New York
This Forbearance Agreement and Amendment to Securities Purchase Agreement and other Note Documents (this “Agreement”) is entered into as of September 2, 2009, by and among THE FILM DEPARTMENT, LLC, a Delaware limited liability company (the “Company”), THE FILM DEPARTMENT HOLDINGS, LLC, a Delaware limited liability company (“Holdings”), the other Company Parties (as defined below and set forth on the signature pages to this Agreement party hereto and UNION BANK, in its capacity as collateral agent for the Holders (in such capacity, together with its successors and assigns, the “Collateral Agent”), and the Holders set forth on the signature pages to this Agreement (each a “Holder” and collectively, the “Holders”). Capitalized terms used herein and not otherwise defined herein shall have the meanings assigned to such terms in the Securities Purchase Agreement referred to below.
THE WEINSTEIN COMPANY 375 Greenwich Street, 3rd Floor New York, New York 10013Film Department Holdings, Inc. • April 15th, 2010 • Services-motion picture & video tape production • New York
This Agreement when fully executed shall supersede and replace the Term Sheet dated as of December 24, 2009 entered into between TWC and Licensor.
SECURITIES PURCHASE AGREEMENT $30,000,000 PRINCIPAL AMOUNT OF SECURED SECOND LIEN NOTES DUE 2014 AND WARRANTS TO PURCHASE CLASS C UNITS Dated as of June 27, 2007 among THE FILM DEPARTMENT LLC, as the Company THE FILM DEPARTMENT HOLDINGS LLC, as one of...Securities Purchase Agreement • June 24th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production • New York
This SECURITIES PURCHASE AGREEMENT, dated as of June 27, 2007, is entered into among THE FILM DEPARTMENT LLC, a Delaware limited liability company (the “Company”), THE FILM DEPARTMENT HOLDINGS LLC, a Delaware limited liability company (“Holdings”), the Purchasers (as defined below)and GENERAL ELECTRIC CAPITAL CORPORATION (“GE Capital”), as collateral agent for the Secured Parties (as defined below) (in such capacity, and together with its successors and permitted assigns, the “Collateral Agent”).
AMENDMENT NO. 2 TO SECURITIES PURCHASE AGREEMENTSecurities Purchase Agreement • June 24th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production • New York
AMENDMENT NO. 2 TO SECURITIES PURCHASE AGREEMENT dated as of May 22, 2008 (this “Amendment”) with respect to the Securities Purchase Agreement dated as of June 27, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Securities Purchase Agreement”) among THE FILM DEPARTMENT LLC, a Delaware limited liability company (the “Company”), THE FILM DEPARTMENT HOLDINGS LLC, a Delaware limited liability company (“Holdings”), the Purchasers party thereto and UNION BANK OF CALIFORNIA, N.A., as collateral agent for the Secured Parties defined therein (in such capacity, and together with its successors and permitted assigns, the “Collateral Agent”). Terms defined in the Securities Purchase Agreement and not otherwise defined herein are used herein as therein defined.
BUYOUT AGREEMENTBuyout Agreement • June 24th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production • New York
This Buyout Agreement (this “Agreement”) is entered into as of November 23, 2009, by and among H & W MOVIE PARTNERS, LLC, a Delaware limited liability company (“HWMP”), THE FILM DEPARTMENT HOLDINGS LLC, a Delaware limited liability company (“Holdings”), THE FILM DEPARTMENT LLC, a Delaware limited liability company (the “Company”), the other Company Parties (as defined in the Forbearance Agreement referred to below) party hereto, UNION BANK, N.A., in its capacity as collateral agent for Holders (in such capacity, together with its successors and assigns, the “Collateral Agent”), and the Holders set forth on the signature pages to this Agreement (each a “Holder” and collectively, the “Holders”).
FOURTH AMENDMENT TO SECOND AMENDED AND RESTATEDExecutive Services Agreement • June 10th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production • Delaware
This Fourth Amendment (the “Amendment”) to that certain Second Amended and Restated Executive Services Agreement dated as of November 30, 2009 (the “Employment Agreement”) by and between Pain Cuit, Inc., (the “Lender”), Mark Gill (“Employee”) and The Film Department Holdings Inc., a Delaware corporation, as successor-in-interest to The Film Department, LLC, (the “Company”), is made as of May 12, 2010 (the “Effective Date”), and is entered into by and between Company, Lender and Employee.
THIRD AMENDMENT TO AMENDED AND RESTATED EXECUTIVE SERVICES AGREEMENTExecutive Services Agreement • May 14th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production
This Third Amendment (the “Amendment”) to that certain Amended and Restated Executive Services Agreement dated as of November 30, 2009 (the “Employment Agreement”) by and between Chateau Holdings, Inc. (the “Lender”), Robert Katz (the “Employee”) and The Film Department Holdings, Inc., a Delaware corporation, as successor-in-interest to The Film Department Holdings LLC, (the “Company”), is made as of April 27, 2010 (the “Effective Date”), and is entered into by and between Company, Lender and Employee.
FOURTH AMENDMENT TO EMPLOYMENT AGREEMENTFourth Amendment • January 25th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production
This Fourth Amendment (the “Fourth Amendment”) to that certain Employment Agreement dated as of July 7, 2007 (“Employment Agreement”), by and between Bernd Stephan (“Employee”) and The Film Department Holdings LLC, a Delaware limited liability company (the “Company”), is made as of as of September 1, 2009 (the “Effective Date”), and is entered into by and between Company and Employee.
FIFTH AMENDMENT TO EMPLOYMENT AGREEMENTEmployment Agreement • March 8th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production
This Fifth Amendment to Employment Agreement (the “Amendment”) is effective as of February 8, 2008, and is entered into by and between The Film Department Holdings LLC, a Delaware limited liability company (the “Company”), and Bernd Stephan (the “Executive”).
FORM OF OMNIBUS AMENDMENT TO NOTE DOCUMENTSNote Documents • June 24th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production • New York
THIS OMNIBUS AMENDMENT TO NOTE DOCUMENTS (this “Amendment”) is entered into as of June ___, 2010 (the “Amendment Date”), by and among H & W MOVIE PARTNERS, LLC, a Delaware limited liability company (“HWMP”), THE FILM DEPARTMENT HOLDING, INC, a Delaware corporation (which is successor to “The Film Department Holdings LLC,” “Holdings”), THE FILM DEPARTMENT LLC, a Delaware limited liability company (“Company”), the other Company Parties (as defined in the Buyout Agreement referred to below), [Union Bank, N.A., a national banking association (“Union”)][Revise Collateral Agent definition if Union not stepping back in], in its capacity as collateral agent for the Holders, and the Holders (“Collateral Agent”), and the Holders set forth on the signature pages to this Amendment (each a “Holder” and collectively, the “Holders”).
AMENDMENT TO SECURITIES PURCHASE AGREEMENT AND OTHER NOTE DOCUMENTSSecurities Purchase Agreement • June 24th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production • New York
AMENDMENT TO SECURITIES PURCHASE AGREEMENT AND OTHER NOTE DOCUMENTS dated as of July 31, 2009 (this “Amendment”), with respect to the Securities Purchase Agreement dated as of June 27, 2007 (as amended, restated, supplemented or otherwise modified from time to time, the “Securities Purchase Agreement”), among THE FILM DEPARTMENT LLC, a Delaware limited liability company (the “Company”), THE FILM DEPARTMENT HOLDINGS LLC, a Delaware limited liability company (“Holdings”), the Purchasers party thereto and UNION BANK, N.A., formerly known as Union Bank of California, N.A. (“UBOC”), as collateral agent for the Secured Parties defined therein (in such capacity, and together with its successors and permitted assigns, the “Collateral Agent”). Terms defined in the Securities Purchase Agreement and not otherwise defined herein are used herein as therein defined.
] Shares of Common Stock THE FILM DEPARTMENT HOLDINGS, INC. UNDERWRITING AGREEMENTLetter Agreement • January 25th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production • California
THIRD AMENDMENT TO SECOND AMENDED AND RESTATED EXECUTIVE SERVICES AGREEMENTExecutive Services Agreement • April 7th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production
This Third Amendment to Second Amended and Restated Executive Services Agreement (the “Amendment”) is effective as of April 6, 2010, and is entered into by and between The Film Department Holdings LLC, a Delaware limited liability company (the “Company”), Sacker Consultants, Inc. (“Lender”) and Neil Sacker (the “Executive”).
FIRST AMENDMENT TO EMPLOYMENT AGREEMENTEmployment Agreement • January 25th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production
This First Amendment (the “Amendment”) to that certain Employment Agreement dated as of July 10, 2007 (“Employment Agreement”) by and between Bernd Stephan (“Executive”) and The Film Department Holdings LLC, a Delaware limited liability company (the “Company”) is effective as of January 16, 2009, and is entered into by and between and Company and Executive.
FIRST AMENDMENT TO AMENDED AND RESTATED EXECUTIVE SERVICES AGREEMENTExecutive Services Agreement • April 6th, 2010 • Film Department Holdings, Inc. • Services-motion picture & video tape production • Delaware
This First Amendment (the “Amendment”) to that certain Amended and Restated Executive Services Agreement dated as of November 30, 2009 (the “Employment Agreement”) by and between Robert Katz (“Employee”) and The Film Department Holdings LLC, a Delaware limited liability company (the “Company”), is made as of as of March 30,2010 (the “Effective Date”), and is entered into by and between Company and Employee.
