VIEWS: 2,295 PAGES: 10 CATEGORY: Equity Financing POSTED ON: 1/22/2011
This is an agreement entered into by a motion picture producer and an investor. The agreement sets forth that the investor agrees to invest a certain amount of money into the motion picture in exchange for the right to share in the equity of the motion picture. The investor deposits the funds in an escrow account in return for a percentage of all net profits the motion picture accumulates. This agreement should be used by film producers who need investors or by investors who want to invest money in a motion picture in return for a percentage of the profits.
This is an agreement entered into by a motion picture producer and an investor. The agreement sets forth that the investor agrees to invest a certain amount of money into the motion picture in exchange for the right to share in the equity of the motion picture. The investor deposits the funds in an escrow account in return for a percentage of all net profits the motion picture accumulates. This agreement should be used by film producers who need investors or by investors who want to invest money in a motion picture in return for a percentage of the profits. INVESTOR FINANCING AGREEMENT This Agreement is made as of this ______________ day of _____________________, 20_____ by and between _____________________, an individual residing at ___________________________________________ (hereinafter referred to as "Investor") and _______________________, having its principle offices at_________________________________ (hereinafter referred to as the "Production Company") The parties hereby agree as follows: 1. The Picture In consideration of acquiring the right to share in the equity of the Picture, the Investor hereby invests $_________________________ in the Motion Picture entitled “______________________” (hereinafter referred to as the “Picture”). This Motion Picture shall be based upon a screenplay entitled ___________________________ written by ______________. 2. Distribution of the Picture The Production Company agrees to use its best efforts to cause the Picture to be exploited effectively in all markets and media, so as to maximize the returns on the Picture. The Production Company agrees to appoint distributors to distribute and/or exploit the Picture on such commercially reasonable terms as the Production Company deems fit. 3. Expenses The Production Company shall be entitled to reimbursement of any reasonable direct out-of- pocket costs or charges in the distribution and marketing of the Picture. 4. Escrow Account The Investor shall pay the Investment Amount by way of cashier's check or in certified funds. The Investment Amount will be deposited in the Production Company's designated Escrow Account. The escrow holder shall not release such funds from escrow to the Production Company unless and until each and all of the following conditions have first occurred: (a) The guarantor has delivered a copy of duly executed completion guaranty naming the Investor as a guarantee to the extent of its investment in the Picture. (b) Upon delivery of the Certificates of insurance to the Investor naming the Investor as an additional insured, indicating that all insurance normally obtained in connection with the © Copyright 2012 Docstoc Inc. registered document proprietary, copy not 2 production of the Picture, including errors and omissions insurance, has been obtained with commercially reasonable liability limits and deductibles. 5. Term This Agreement shall be for a period beginning on the date set forth above, and ending on the date the Investment Amount, and all accrued interest, is paid back to the Investor. 6. Share of Profits In consideration of the Investor’s Investment Amount, the Production Company shall pay or cause to be paid to the Investor the following: (a) Repayment of Investment and Interest--Priority Payments Any and all net profits received by the distribution and exploitation of the Picture (subject, however, to deductions for all costs of sales, marketing and distribution of the Picture), plus interest paid on the unpaid balance at the rate of _________% per annum. (b) Net Profit Participation The Investor shall be entitled to receive _______________% of all net profits of the Picture. The Investor shall participate in the net profits as long as the Picture is generating net profits by distribution and exploitation in any markets and media, except that the Investor shall have no interest in the Picture anymore. “Net profits” shall be defined as all net revenues collected by the Company from the Picture after the payment of all costs of production, sales, marketing and distribution of the Picture. 7. Investor Approval Rights The Production Company agrees to actively involve the Investor on a regular basis in making significant decisions relating to the development, pre-production, production, post- production, distribution and other exploitation of the Picture. In this regard, the Investor shall have the right to approve the final budget, shooting script, Investor, director, lead actors, director of photography and distribution arrangements for the Picture. 8. Return of Unexpended Contributions The cash cost budget of the Picture is expected to be $_________________ or less (the "Budget Cost"). If the actual cost of producing the Picture turns out to be less than the Budget Cost, the Production Company shall pay any such remaining amount to the Investor. Any monies such received by the Investor shall reduce, the amount of money payable to the Investor. © Copyright 2012 Docstoc Inc. registered document proprietary, copy not 3 9. Default/Acceleration If any one or more of the following events shall occur (hereinafter called an “Event of Default”), namely: (i) the Production Company fails to make payment as provided in Section 6 above, and such failure is not cured within five (5) business days of written notice by Investor to Production Company; or (ii) the Production Company makes an assignment for the benefit of his creditors, or shall file or commence, or have filed or commenced against him any proceeding for any relief under any bankruptcy or insolvency law, or a receiver or trustee shall be appointed for the Production Company; Upon the occurrence of any such Event of Default, Investor at its election, and without presentment, demand or notice of any kind, all of which are expressly waived by the Production Company, may declare the entire outstanding balance of principal and interest thereon immediately due and payable, together with all costs of collection, including attorneys’ fees, in addition to all of its other rights and remedies, all of which are cumulative. 10. Warranties The Production Company hereby warrants and represents to the Investor that: (a) It has no deferments granted in the past or will be granting in the future to any person or party which in any way affect the interests of the Investor under this Agreement; (b) It has not permitted nor will permit in the future to any person or party any gross participations in profits in the past which in any way affect the interests of the Investor under this Agreement; and (c) It is duly incorporated, validly existing and in good standing. It has the corporate power and all necessary rights and title to enter into and perform this Agreement and the transactions contemplated hereby and has taken all necessary action to authorize the entry into and performance of this Agreement and such transactions. (d) This Agreement constitutes a legal, valid and binding obligation of the Production Company and is in proper form for enforcement against it. (e) The entry into and performance of this Agreement and the transactions contemplated hereby do not and will not conflict with: (i) any existing law or regulation or any official or judicial order, or (ii) its articles of incorporation, or (iii) any agreement or document to which it is a party or which is binding upon it or any of its assets. (f) There are no liens, claims, encumbrances, legal proceedings, restrictions, agreements or understandings which might conflict or interfere with, limit, derogate from, or are inconsistent with or otherwise affect any of the provisions of this Agreement or any of the representations or warranties of the Production Company contained under this Agreement. © Copyright 2012 Docstoc Inc. registered document proprietary, copy not 4 (g) It has taken all authorizations, approvals, consents, licenses, exemptions, filings, registrations, notarizations and other matters, official or otherwise, required in connection with the entry into, performance, validity and enforceability of this Agreement and the transactions contemplated hereby. (h) There are no present litigations, arbitrations or administrative proceedings threatened or, to its knowledge, pending affecting the validity or performance of its obligations hereunder. (i) All required information has been disclosed in writing to the Investor and there are no facts or circumstances which might make such information misleading or inaccurate. (j) The Production Company's warranties, representations and agreements are of the essence of this Agreement and shall survive the early termination hereof. None of the Production Company's warranties, representations or agreements shall in any way be limited by reason of any investigation made by the Investor or on behalf of the Investor regarding said warranties, representations or agreements. 11. Indemnification by Production Company The Production Company shall, at its own expense, indemnify, save and hold harmless the Investor and its successors, licensees, assigns, agents, representatives and affiliates from and against any and all claims, demands, causes of action, obligations, liability, loss, damage, cost and expenses (including reasonable attorneys' fees), incurred or sustained by reason of or arising out of any breach or alleged breach of any of the warranties, representations or undertakings made by the Production Company, and/or from any acts made upon reliance of any such warranties, representations or undertakings. If any third party or entity makes any claim or institute any suit or proceeding alleging any facts, which, if true, would constitute a breach by the Production Company, of any warranty, representation or agreement herein made, the Production Company shall give prompt written notice of the same to the Investor and the Production Company shall undertake at its own cost and expense the defense thereof. 12. Accounting and Reporting (a) Production Company will Provide Investor a quarterly accounting statements commencing 45 days after the first quarter commencing after the initial distribution of the Picture. All monies due and payable to Investor pursuant to this Agreement will be paid simultaneously with the rendering of such quarterly statements. Payments shall be made payable to ____________________________________________. (b) Production Company shall keep and maintain until expiration of the Term and for a period of five (5) years thereafter, complete detailed, permanent, true and accurate books of account and records relating to the distribution and exploitation of the Picture. (d) Investor shall be entitled to inspect such books and records of Production Company relating to the Picture during regular business hours and shall be entitled to audit such books and records of Production Company relating to the Picture upon _________ business days, © Copyright 2012 Docstoc Inc. registered document proprietary, copy not 5 written notice to Production Company and provided that not more one audit is conducted every twelve months during each calendar year and further provided that such audit does not interfere with Production Company's normal operations. Within Thirty (30) days of the completion of the audit, Investor will furnish Production Company with a copy of said audit. In the event that the audit discloses that Investor has been underpaid, Production Company shall reimburse Investor for all audit costs. Otherwise, all audit expenses shall be borne by Investor. 13. Funds Held in Trust All monies received by the Production Company which are payable to the Investor in accordance with the provisions of this Agreement shall be held by the Production Company, in trust, for the sole use and benefit of the Investor and shall be immediately deposited upon receipt in a separate interest-bearing bank account naming the Investor as the beneficiary thereof. The Production Company shall not commingle the monies payable to the Investor hereunder with other monies of the Production Company. 14. Relationship of Parties The Investor and the Production Company each acknowledge that they are independent contractors and that no partnership, joint venture, agency or employment relationship has or will be created by this Agreement. 15. Business Opportunities Each of the parties acknowledges that this Agreement relates only to the Picture and than none of the parties will in any way be restricted from any other business activity (including any motion picture activity), whether or not competitive to the Picture, it being agreed that so-called "corporate and/or joint venture opportunities" or fiduciary opportunities in relation to any such other activities are hereby waived by each of the parties. 16. Additional Documents Each of the parties agree to execute any additional documents which may be required or be desirable to fully effectuate the purposes and intent of this Agreement or to carry out the obligations of the parties hereunder, provided that they are not inconsistent with the provisions of this Agreement. 17. Notices All notices, correspondence, writings, statements or other communication required or permitted to be given hereunder by either of the parties to the other of them shall be given, made or communicated, as the case may be, by personally delivering the same, by telex, © Copyright 2012 Docstoc Inc. registered document proprietary, copy not 6 telegram or electronic facsimile transfer, or by registered or certified mail, first-class, postage prepaid, return receipt requested, addressed to the recipient as follows: TO THE INVESTOR: _____________________________________ _____________________________________ TO THE PRODUCTION COMPANY: _____________________________________ _____________________________________ Both parties reserve the right to change the address of service at any time, with notice in writing to the receiving party. 18. Assignment No party hereto shall have the right to assign all or any part of its right or obligations hereunder without the prior consent of the other party, except that nothing contained in this sentence shall prevent any party from assigning its right to receive monies hereunder. 19. Entire Agreement This agreement constitutes and contains the entire agreement between the parties with respect to the subject matter hereof and supersedes any prior or contemporaneous oral or written agreements. This Agreement may not be modified or amended, except by an instrument in writing signed by duly authorized officers of both of the parties hereto. 20. Counterparts This Agreement may be executed in counterparts each of which shall be deemed an original and all such counterparts shall constitute one and the same agreement. 21. Third Party Beneficiary This Agreement shall in no event be construed as a third party beneficiary contract and is not intended for the benefit of any person or company whomsoever except the parties hereto. 22. No Waiver © Copyright 2012 Docstoc Inc. registered document proprietary, copy not 7 No waiver by one party of a breach or default by the other party shall be deemed to be a waiver of any preceding, continuing or succeeding breach of the same or any other provision of this Agreement. 23. Governing Law This Agreement has been entered into in the State of ____________________ and shall be construed and enforced under and subject to the laws of said state. 24. Dispute Resolution Should there be any dispute between the parties concerning the interpretation of this Agreement or concerning an alleged breach of this Agreement, which the parties are unable to resolve after consultation with each other, such dispute shall be decided by arbitration pursuant to the regulations and procedures of the American Arbitration Association. The parties agree that any award rendered by the American Arbitration Association may be entered in the appropriate state or federal court located within the state of _____________. IN WITNESS WHEREOF, the parties have executed this Agreement as on the day and year first written above. ________________________________ “PRODUCTION COMPANY” _________________________________ “INVESTOR” © Copyright 2012 Docstoc Inc. registered document proprietary, copy not 8 © Copyright 2012 Docstoc Inc. registered document proprietary, copy not 9
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