ADD EXHB 3 ex6-60.htm ADD EXHB

 

Exhibit 6.60

 

 

CERTAIN CONFIDENTIAL PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND REPLACED WITH “[***]”. SUCH IDENTIFIED INFORMATION HAS BEEN EXCLUDED FROM THIS EXHIBIT BECAUSE IT IS (I) NOT MATERIAL AND (II)WOULD BE COMPETITIVELY HARMFUL IF PUBLICLY DISCLOSED.

 

ART PURCHASE AGREEMENT

Contract Number PA00401

 

 

 

Artist: Pierre Soulages (the “Work”)
Title: Pxexixnxtxuxrxex x7x1x xxx x1x8x1x xcxmx, x x1x3x xjxuxixlxlxextx x2x0x1x1x  
Medium: Acrylic on Canvas  
Size: 27.9 x 71.2 in. (70.9 x 180.8 cm)  
Date: 2011  

 

THIS ART PURCHASE AGREEMENT (“Purchase Agreement”) is made and entered into this 29th day of September, 2023 (the “Effective Date”), by and between [***] (“Seller”), and Masterworks Gallery, LLC, a Delaware limited liability company with an address at 225 Liberty Street, 29th Floor, New York, New York, 10281 (“Agent”). Seller is acting on behalf of the sole legal and beneficial Owner (“Owner”) of the work of art described above (the “Work”), and has the authority to sell the Work on behalf of the Owner. Agent is acting as agent on behalf of the Gallery Segregated Portfolio of Masterworks Cayman, SPC (“Buyer”), and has the exclusive authority to buy the Work on behalf of Buyer. Seller, on behalf of Owner, has agreed to sell the Work to Buyer, and Agent, on behalf of Buyer, has agreed to buy the Work from Seller, on the terms and conditions set forth in this Purchase Agreement. In consideration of the mutual promises contained in this Purchase Agreement, the parties agree as follows:

 

1. SALE. Seller agrees to sell the Work to Buyer, and Agent on behalf of Buyer agrees to buy the Work from Seller, subject to the terms and conditions set forth in this Purchase Agreement.

 

2. PURCHASE PRICE AND MANNER OF PAYMENT.

 

2.1 The purchase price for the Work is One Million, Four Hundred Fifty Thousand U.S. Dollars (USD$1,450,000) (the “Purchase Price”). For the purposes of this Purchase Agreement, the “Closing Date” shall mean the date upon which Agent or Buyer pays the full Purchase Price to the Seller and the “Closing” shall mean the time such payment is remitted by Buyer and title to the Work is vested in Buyer.

 

2.2 The Purchase Price shall be paid as follows: (i) a non-refundable deposit in the amount of One Hundred Forty Five Thousand U.S. Dollars (USD $145,000) (the “First Installment”) shall be paid within five (5) business days of the Effective Date, and (ii) the remaining One Million, Three Hundred Five Thousand U.S. Dollars (USD $1,305,000) (the “Final Installment”) shall be paid no later than ninety (90) calendar days from the Effective Date.

 

2.3 The obligation to pay the Purchase Price is expressly conditioned on Buyer’s ability to inspect the Work on or prior to the Closing Date. Agent or Buyer shall pay the Purchase Price to Seller by wire transfer in accordance with the wire instructions listed in the invoice, a copy of which is attached hereto as Exhibit B, which shall be verbally confirmed by a designated representative on behalf of Buyer and a designated representative on behalf of Seller prior to payment to Seller.

 

2.4 Provided there is no breach by the Seller or Owner of any of the representations and warranties as they related to authenticity or title of the Work as set forth under this Purchase agreement upon the Agent on behalf of the Buyer’s payment in full of the Purchase Price, or a request for termination by the Seller or Owner for any reason other than arising from a breach on behalf of the Agent or Buyer in a manner that cannot be reasonably cured within ten (10) business days, the First Installment shall be non-refundable.

 

 
 

 

Art Purchase Agreement

Page 2

 

3. REPRESENTATIONS, WARRANTIES, AND COVENANTS OF SELLER.

 

3.1. To induce Agent to enter into this Purchase Agreement, and acknowledging that Agent and Buyer are relying on each and all of the following representations, warranties and covenants, Seller, on behalf of itself and Owner, represents and warrants to Agent and Buyer on the Effective Date and on the Closing Date and agrees with Agent and Buyer that:

 

3.1.1. Seller, without any further action, consent or authority of any other party, and without violation of any party’s rights or claims, has, under written agreement, full right, legal authority and capacity to enter into this Purchase Agreement, to make the covenants, representations, warranties, and indemnifications contained in this Purchase Agreement, on behalf of itself and Owner, to execute and deliver the bill of sale (the “Bill of Sale”) in the form annexed as Exhibit C to this Purchase Agreement, to sell and transfer good and marketable title to the Work to Buyer on the Closing Date and to complete the transaction contemplated by this Purchase Agreement.

 

3.1.2. The Work is authentic, meaning the Work was created by the artist indicated on the attached Exhibit A.

 

3.1.3. Owner is the sole legal and beneficial owner of the Work and has good and marketable title to the Work.

 

3.1.4. The Work is not, and through the Closing shall not be, subject to or the subject of any rights or interests of others, claims, liens, security interests, restrictions, conditions, options or other encumbrances of any kind held or claimed by any person, entity, government or government agency (actual, threatened or pending) (collectively, “Claims”). Neither Seller nor Owner has any knowledge of any facts or circumstances likely to give rise to any Claims.

 

3.1.5. Neither Seller nor Owner is aware of any challenges or disputes (current, past, pending or threatened) relating to the attribution, authenticity, description or provenance of the Work. Seller has provided Agent with all information in Seller’s and Owner’s knowledge concerning the attribution, authenticity, description, and condition of the Work.

 

3.1.6. The condition of the Work is as of the Effective Date, and shall be upon inspection of the Work by Buyer and delivery and inspection of the Work at the Delivery Location (as defined in Section 8.1 below) and at the Closing, as stated in the condition report attached hereto and incorporated by reference as Exhibit A (the “Condition Report”). Upon delivery at the Delivery Location, a new condition report for the Work shall be prepared at the sole cost and expense of Buyer, which shall confirm that the condition of the Work is the same as set forth in the Condition Report. If the Work is not in the same condition as reflected in the Condition Report at the time of Closing or its delivery at the Delivery Location, in accordance with Section 6.1, Buyer agrees to make a claim for loss or damage in the first instance to Seller’s insurance carrier. In the event that Seller’s insurance carrier issues a good-faith denial of the claim which otherwise should be covered by the policy for any reason (other than due to an act or omission of Agent or Buyer), Buyer shall have the right to terminate this Purchase Agreement.

 

3.1.7. To the best of Seller’s knowledge, and at all times while owned by Owner, the Work has been lawfully exported and imported as required by the laws of any country in which it was located or to which it was transported, and any duties and taxes on the export and import of the Work have been paid and any required declarations upon the export and import have been made.

 

3.1.8. The Work has not been used and the Purchase Price funds will not be used to violate the banking, anti-money laundering or currency transfer laws or regulations, anti-terrorism, sanctions, or international restrictions of the United States or any other country. Seller, and/or a designated representative of Seller trained in legal or financial compliance, has obtained and reviewed Owner’s official identification and confirmed Owner’s identity (including any ultimate beneficial owner of a 25% or greater interest in the Work (a “Beneficial Owner”) and confirmed that Owner (including any Beneficial Owner) is not as of the Effective Date or the Closing Date named on any Office of Foreign Assets Control (OFAC) List, U.N. Terrorism list, U.K. Sanctions List, EU Sanction Lists, The Dept. of Foreign Affairs & Trade List, or other generally applicable law or regulation.

 

3.1.9. If a certificate of authenticity or other similar documentary or other evidence of ownership (collectively, a “Certificate”) exists with respect to the Work, Seller has physical possession of such Certificate and will furnish evidence of such Certificate to Agent prior to any payment. Seller confirms that no Certificate or similar documentary evidence exists for the Work.

 

 
 

 

Art Purchase Agreement

Page 3

 

3.1.10. If, at any time prior to the Closing, Seller shall become aware of any fact(s) or circumstance(s) arising after the Effective Date that would make any of the representations and warranties in this Section 3 false or materially inaccurate as of the Effective Date or the Closing Date, Seller shall promptly notify Agent or Buyer in writing of such fact(s) or circumstance(s).

 

3.2. Seller, on behalf of itself and Owner, jointly and severally, do hereby agree to indemnify, defend and hold Agent and Buyer free and harmless from any and all demands, claims, suits, judgments, obligations, damages, losses, or other liability asserted or alleged against Agent or Buyer as well as all reasonable attorney or other professional fees and other reasonable costs, fees and expenses, suffered or incurred by, or asserted or alleged against Agent or Buyer arising by reason of, or in connection with, the breach or alleged material breach by Seller or Owner of any provision of this Purchase Agreement, or the actual or alleged falsity or inaccuracy of any representation or warranty by Seller or Owner contained in this Purchase Agreement. Notwithstanding anything to the contrary in this Section 3.2, Owner shall not be responsible for any amounts under this Section 3.2 that are duplicative as between Agent and Buyer in their capacity as related parties.

 

3.3. Agent, on behalf of itself and Buyer, represents and warrants to Seller and Owner that the Purchase Price funds have not been used and the Work will not be used to violate the banking, anti-money laundering or currency transfer laws or regulations, anti-terrorism, sanctions, or international restrictions of the United States or confirms that Buyer or Agent (including any Beneficial Owner) is not as of the Effective Date or the Closing Date named on any Office of Foreign Assets Control (OFAC) List, U.N. Terrorism list, U.K. Sanctions List, EU Sanction Lists, The Dept. of Foreign Affairs & Trade List, or other generally applicable law or regulation. Agent, on behalf of itself and Buyer jointly and several, does hereby agree to indemnify, defend and hold Seller and Owner free and harmless from any and all demands, claims, suits, judgements, obligations, damages, losses or other liability asserted against Seller or Owner as well as all reasonable attorney or other professional fees and other reasonable documented costs, fees and expenses suffered or incurred by, or asserted against Seller or Owner arising by reason of or in connection with the breach or alleged material by Agent or Buyer of any provision or this Purchase Agreement, or the actual falsity of inaccuracy of any representation or warranty by Agent contained in this Purchase Agreement. Notwithstanding anything to the contrary in this Section 3.3, Agent and Buyer shall not be responsible for any amounts under this Section 3.3 that are duplicative as between Seller and Owner in their capacity as related parties.

 

3.4 The benefits of the representations, warranties, covenants and indemnities contained in this Purchase Agreement shall survive completion of the transaction contemplated by this Purchase Agreement, including without limitation transfer of the Work to Buyer. It shall be a condition precedent to Agent and Buyer’s obligations that Seller’s representations and warranties contained in this Purchase Agreement are true and correct on and as of the Closing Date and delivery of the Work to Buyer. Notwithstanding anything to the contrary herein, Seller’s and Owner’s representation, warranty and indemnification relating to the authenticity of the Work shall survive for a period of four (4) years from the Closing Date.

 

3.5 For the avoidance of doubt, the parties acknowledge that the standard business practices of Masterworks as a company engaged in securitization of artworks shall not, in any way, invalidate or negate any of the representations, warranties, guarantees, or obligations under this Purchase Agreement.

 

3.6 Other than as specifically represented and warranted under this Purchase Agreement, Agent on behalf of Buyer, is purchasing the Work “AS IS” without any representation and warranties, express or implied, including without limitation, representation or warranties as to value, condition, quality, rarity, importance, provenance, exhibitions, literature or historical relevance.

 

4. INSPECTION. Buyer, or Agent on behalf of Buyer, inspected the work at the Seller’s premises located at [***] (the “Current Location”) on September 26th, 2023. Buyer shall be entitled to inspect the Work prior to the Closing Date to confirm the condition of the Work matches the condition reflected in the Condition Report attached hereto as Exhibit A. When the Work is delivered to the Delivery Location, Delaware Freeport shall be entitled to inspect the Work to confirm the condition of the Work matches the condition reflected in the Condition Report.

 

 
 

 

Art Purchase Agreement

Page 4

 

5. STORAGE AND CARE OF THE WORK.

 

5.1. Between the Effective Date and the date on which Seller packs and ships the Work for delivery to the Delivery Location on the Agent’s behalf (as defined in Section 8.1 below), Seller shall store the Work at the Current Location or SAT, with an address of [***] (in either event, the “Storage Location”). Seller shall notify Agent in writing prior to any relocation of the Work, unless agreed upon under separate cover.

 

5.2. Seller agrees to ensure an appropriate storage environment consistent with professional fine art museum and conservation standards is provided to safeguard the quality and condition of the Work and to protect the Work from water, fire, loss, damage, deterioration, theft, mishandling, dirt, vermin, insects, and from extremes of light, temperature, and humidity from the Effective Date and until the Work is delivered to the Delivery Location. Any damage to the Work must be reported immediately to Agent. As of the Effective Date, Seller will not perform any conservation or restoration on the Work without notice to Agent.

 

6. INSURANCE & RISK OF LOSS.

 

6.1 Seller shall arrange and pay for the Work to be insured under Seller’s blanket fine arts policy, subject to standard exclusions, for an amount equal to the Purchase Price commencing on the Effective Date and continuing until risk of loss transfers to Buyer. Subject to Section 6.2 below, risk of loss to the Work shall transfer from Seller to Buyer following both: (i) payment by Buyer of the amount due on the Closing Date; and (ii) Buyer’s acceptance of the Work at the Delivery Location. On the Effective Date, Seller shall provide Agent with a certificate of insurance evidencing Seller’s insurance coverage, and naming Buyer as an additional insured and loss payee in the then-current amount of Buyer’s financial interest.

 

6.2 Notwithstanding anything to the contrary in this Purchase Agreement, in the event of any loss or damage to the Work on or following the Closing Date (before risk is passed to the Buyer under 6.1 above), the parties agree that, to the exclusion of any other remedy available under the law, Buyer shall receive payment directly for such loss or damage in the amount determined in accordance with Seller’s insurance provider.

 

7. TITLE. On the Closing Date, Seller, on behalf of Owner, hereby transfers to Buyer good and marketable title and exclusive and unrestricted right to possession of the Work, free and clear of any and all Claims. On the Closing Date, Seller shall deliver to Agent a signed copy of the Bill of Sale, together with any Certificate or other evidence of title or authenticity in the actual or constructive possession of Seller or Owner (if applicable). Seller shall be solely responsible for remitting any and all sale proceeds due to Owner in connection with the sale of the Work hereunder.

 

8. DELIVERY AND EXPENSES.

 

8.1. Within five (5) business days of the Closing Date, if the Seller has not already done so, Seller shall arrange for the Work to be packed and shipped by fine art shippers approved by Agent in writing to Agent’s account at Delaware Freeport, located at 315 Ruthar Drive, Newark, Delaware 19711 (the “Delivery Location”).

 

8.2. Seller shall pay all costs related to and be responsible for arranging the crating, packing, shipping and insuring the Work from its Storage location to the Delivery Location and shall be responsible for all costs and expenses relating to such relocation of the Work.

 

9. THIRD-PARTY COMMISSIONS. Neither Agent nor Buyer shall be responsible for and neither shall pay any commissions or fees due any person acting on behalf of Seller or Owner as a result of the transaction contemplated by this Purchase Agreement. Seller shall not be responsible for and shall not pay any commissions or fees due any person acting on behalf of Agent or Buyer as a result of the transaction contemplated by this Purchase Agreement. Seller shall be responsible to pay any fees or costs to any agent or advisor engaged by Seller in connection with the transactions contemplated hereby and Agent and Buyer shall be indemnified and held harmless from any claim by any such agent or advisor relating to this Purchase Agreement and the transactions contemplated hereby. The parties acknowledge and agree that no such agent or advisor to Seller is an employee or affiliate of Buyer or Agent.

 

 
 

 

Art Purchase Agreement

Page 5

 

10. TERMINATION.

 

10.1 Buyer shall have the right to terminate this Purchase Agreement prior to the Closing in the event of: (i) a material breach by Seller of any of the covenants or obligations of Seller under this Purchase Agreement; or (ii) the falsity or material inaccuracy of any of Seller’s representations or warranties contained in this Purchase Agreement including without limitation Section 3.1.5 (whether or not such falsity or material inaccuracy results from an intentional or unintentional misrepresentation by Seller or from facts or events occurring before or after the Effective Date).

 

10.2 In the event of termination as set forth above, then Seller shall within thirty (30) days of notice from Buyer, repay to Buyer all amounts previously paid by Buyer to Seller under this Purchase Agreement, and if such breach occurs or is discovered after the Work has been delivered to Buyer, upon receipt of such funds, Buyer will release the Work to Seller, unless prevented by law from doing so.

 

10.3 For the purposes of this Section 10, “Seller” shall refer to Seller, on behalf of itself and Owner, and “Buyer” shall refer to Buyer, and Agent on behalf of Buyer.

 

11. MISCELLANEOUS. This Purchase Agreement, including the exhibits attached hereto, represents the entire understanding of the parties hereto with respect to the subject matter hereof, supersedes any and all other and prior agreements between the parties with respect to the sale of the Work and declares all such prior agreements between the parties null and void. In the event of a conflict between this Purchase Agreement and any invoice issued by Seller, the terms of this Purchase Agreement shall control. Seller, on behalf of itself and Owner, agrees that Buyer is a third-party beneficiary of this Purchase Agreement. The terms of this Purchase Agreement may not be modified or amended, except in a writing signed by the parties hereto. Seller may not assign this Purchase Agreement without the prior written consent of Agent or Buyer. This Purchase Agreement shall inure to the benefit of, and shall be binding upon, the successors, permitted assigns, heirs, executors, administrators and legal representatives of the parties hereto. This Purchase Agreement, and all matters arising out of or relating to this Purchase Agreement, shall be governed and construed in accordance with the laws of the State of New York, without regard to its conflict of laws provisions. Any dispute arising under or related to this Purchase Agreement shall be resolved in the New York State Supreme Court, New York County or in the United States District Court for the Southern District of New York. This Purchase Agreement may be executed in counterparts, including by PDF or facsimile, each of which shall be deemed an original, and all of which together shall constitute one and the same instrument.

 

[Signature Page to follow]

 

 
 

 

Art Purchase Agreement

Page 6

 

IN WITNESS WHEREOF, the parties hereto have hereunto signed their hands and seals as of the Effective Date.

 

  SELLER:
     
  [***]
     
   
  BY:  
  ITS:  
     
  AGENT:
     
  MASTERWORKS GALLERY, LLC
     
   
  BY: Mariya Golovina
  ITS: Executive Vice President, Acquisitions

 

[Signature Page to Art Purchase Agreement]

 

 
 

 

Art Purchase Agreement

Page 7

 

EXHIBIT A

 

DESCRIPTION OF WORK AND CONDITION REPORT

 

 
 

 

Art Purchase Agreement

Page 8

 

EXHIBIT B

 

INVOICE

 

 
 

 

Art Purchase Agreement

Page 9

 

[***]

 

Purchaser Invoice [***]
Masterworks Gallery, LLC as agent for Masterworks Cayman, SPC September 29, 2023
225 Liberty Street, 29th FL  
New York, NY 10281  
UNITED STATES  

 

Ship to

Masterworks Gallery, LLC as agent for Masterworks Cayman, SPC

c/o Delaware Freeport

315 Ruthar Drive

Newark, DE 19711

UNITED STATES

 

 

 

PIERRE SOULAGES

Pxexixnxtxuxrxex x7x1x xxx x1x8x1x xcxmx, x x1x3x xjxuxixlxlxextx x2x0x1x1x

2011

Acrylic on canvas

27¹⁵⁄₁₆ x 71¼ inches

(71 x 181 cm)

[***]

(the “Work”)

     
  Sales Price: $1,450,000.00
     
  No New York Sales Tax  
  (resale certificate on file): $0.00
     
  Total Due in $ USD: $1,450,000.00

 

 

 

This invoice is subject to the terms and conditions of the Purchase Agreement dated September 29, 2023

 

[***]

 

 
 

 

Art Purchase Agreement

Page 10

 

[***]

 

PAYMENT TERMS

 

10% deposit payment due five (5) days from the date of execution of Purchase Agreement

 

Remaining balance due in full ninety (90) days from the date of execution of Purchase Agreement

 

Payment must be received in $ USD from the purchaser named on the invoice referencing the invoice number.

 

The Purchaser is responsible for verifying the bank wiring instructions with [***] prior to sending payment. [***] is not responsible for payments mistakenly sent to third parties.

 

BANK WIRE TRANSFER INSTRUCTIONS

 

Beneficiary Bank Name: East West Bank
Bank Address: 9300 Flair Drive, 4th Floor, El Monte, CA 91731
   
Beneficiary Account Name: [***]
Beneficiary Address: [***]
Beneficiary Account Number: [***]
ABA/Routing Number: [***]
SWIFT Code: [***]

 

[***]

 

 
 

 

Art Purchase Agreement

Page 11

 

EXHIBIT C

 

BILL OF SALE

 

Dated: ________________, 2023  
    (“Seller”)
Sold by: [***]  
     
Sold to: Gallery Segregated Portfolio (“Buyer”)
  Masterworks Cayman, SPC  
  225 Liberty Street, 29th Floor  
  New York, New York 10281  
     
Artist: Pierre Soulages (the “Work”)
Title: Pxexixnxtxuxrxex x7x1x xxx x1x8x1x xcxmx, x x1x3x xjxuxixlxlxextx x2x0x1x1x  
Medium: Acrylic on Canvas  
Size: 27.9 x 71.2 in. (70.9 x 180.8 cm)  
Date: 2011  
     
NY Sales Tax: None Withheld; Delaware Delivery  
Purchase Price: USD $1,450,000  

 

For value received, Seller acknowledges that the Work, good and marketable title to the Work, and all right to possession thereto and all legal ownership thereof, have been irrevocably, and without condition or reservation of any kind, sold, transferred, and conveyed to Buyer.

 

The Work is sold subject to each and all of the provisions, terms, conditions, covenants, representations, warranties and indemnities contained in the Art Purchase Agreement No. PA00401 by and between Seller and Masterworks Gallery, LLC dated September 29, 2023, and all such provisions, terms, conditions, covenants, representations, warranties and indemnities of the parties thereunder are incorporated herein by this reference as if fully set forth herein in their entirety.

 

  SELLER:
     
  [***]
     
   
  BY:          
  ITS: