EFTA01108730.pdf

October 22, 2013 withers Bergman " VIA FEDEX 430 Park Avenue. 10ln Floor. New York. Now York 10022-3505 Telephone: •1 212 848 9800 Fax: •1 212 848 9888 Ada Clapp www.wanersworkhudecom Black Family Partners cto Apollo Management 9 West 57' Street New York. NY 10019 Re: Joint Purchase Agreements Dear Ada: The joint ownership items are the following: 1. Joint Purchase Agreement with the Neue Gallery for the Max Beckman painting-Self Portrait with Horn dated June 1, 2001. 2. Joint Purchase Agreement and Promise Gift Agreement with the Museum of Modern Art for the Georges Braque painting- Homage to J.S. Bach. dated August 12, 2008. 3. Joint Purchase Agreement with the Neue Gallery for the Ernest Ludwig Kirchner painting-Stehendes Madchen Kantatide, dated July 18, 2006. 4. Joint Purchase Agreement with the Neue Gallery for the Ernest Ludwig Kirchner painting- Berliner Strassenszene (recto); Bourne (verso) dated January 15, 2007. (A copy is enclosed.) 5. Joint Purchase Agreement and Promise Gift Agreement with the Museum of Modern Art for the for the Georges Braque painting- La Table. I believe this covers the items that you asked about in your email of September 301". Best Regards. Ralph E. Lerner REUImp Enclosures direct line e-mail: admitted in New York and Florida document number. NY23823/0001-1.18-221277011 San -s 6.' C Sf' EFTA01108730  AGREEMENT OF SALE THIS AGREEMENT made and entered into as of this IC day of January, 2007, by and between Neue Galcrie New York, having an office at 1048 Fifth Avenue, New York, New York 10028 (hereinafter referred to as the "Museum") and Leon D. Black, residing at 760 Park Avenue, New York, New York 10021 (hereinafter referred to as the "Buyer"). WITNESSEIH: WHEREAS, the Museum is a tax exempt organization created for the purpose of displaying works of art to the general public; and WHEREAS, the Museum is the owner of the following work of art: Title: Berliner Strassenszene (recto); Baume (verso) Artist: Ernst Ludwig Kirchner Medium: oil on canvas Size: 47 7/8 x 35 7/8 in. (121.6 x 91.1 cm.) Date: 1913-1914 Signed: signed twice 'E.L. Kirchner' (lower right and lower left); signed again 'EL Kirchner' (on the reverse) (hereinafter referred to as the "Work"); and WHEREAS, the Museum acquired the Work at public auction at Christie's (Lot 37) on November 8, 2006 and desires to sell an undivided one-half interest in the Work (the "Interest") to the Buyer in order to reduce its cost for the Work; and WHEREAS, the Museum has been authorized by its Board to sell the Interest in the Work to the Buyer; and WHEREAS, the Museum wishes to sell the Interest in the Work to the Buyer and the Buyer wishes to buy the Interest in the Work from the Museum, on the terms and conditions set forth in this Agreement. NY I 5980900v.2 EFTA01108731  NOW THEREFORE, in consideration of the mutual promises contained herein, the parties hereto agree as follows: 1. SALE The Museum hereby agrees to sell the Interest in the Work to the Buyer, and the Buyer hereby agrees to buy the Interest in the Work from the Museum, subject to the terms and conditions set forth in this Agreement. 2. PURCHASE PRICE The purchase price of the Interest in the Work (the "Purchase Price") is Nineteen Million Forty-eight Thousand Dollars U.S. ($19,048,000.00). 3. DATE AND MANNER OF PAYMENT The Buyer will pay the Purchase Price by wire transfer in two (2) payments as follows: Eleven Million Forty-eight Thousand Dollars U.S. ($11,048,000.00) payable on February 2, 2007 and Eight Million Dollars U.S. ($8,000,000.00) payable on May 3, 2007. Payment shall be made to the Museum's account as follows: Bank name: Fleet Bank Account name: Neue Galerie New York Account number: ABA routing number: .1 1 11 1 4. MUSEUM'S REPRESENTATIONS AND WARRANTIES A. The Museum does hereby represent and warrant that: i. The Museum is a tax exempt section 501(c)(3) organization under the provisions of the Internal Revenue Code of 1986, has full legal authority to enter into this Agreement, to make the agreements, representations and warranties contained herein, to deliver a bill of sale in the form annexed hereto as Exhibit A (the "Bill of Sale"), to transfer full and -2- EFTA01108732 complete unencumbered title for the Interest in the Work to the Buyer, and to complete the transaction contemplated herein. ii. The Museum has the full right to sell and transfer good and marketable title to the Interest in the Work, and the Interest in the Work, at the time of transfer of title, will be free and clear of any and all liens, mortgages, security interests or other encumbrances held by any person. iii. The Work is the same Work that is described in the Christie's auction catalogue for its Impressionist & Modem Art evening sale, November 8, 2006, Lot 37 and was purchased by the Museum at such sale. iv. Other than as specifically represented and warranted by the Museum as set forth in this Agreement, the Buyer shall purchase the Interest in the Work in "as is" condition, without any representations or warranties by the Museum of any kind whatsoever, express or implied, including without limitation, representations or warranties as to value, condition, provenance, merchantability or fitness for a particular purpose. B. The Museum hereby agrees to indemnify and hold the Buyer harmless from any and all demands, claims, suits, judgments, or other liability (including all attorney or other professional fees and other expenses incurred by the Buyer in connection therewith) incurred by or asserted or alleged against the Buyer or awarded to any person or entity arising by reason of the Museum's breach or alleged breach of any representation or warranty contained in this Agreement. C. The benefits of the agreements, representations, warranties and indemnities contained in this Agreement shall survive completion of the transaction contemplated by this Agreement. -3- EFTA01108733  5. INSPECTION The Buyer has inspected the Work in order to verify the Work's appearance and condition and the Buyer is satisfied with and has approved of and accepts the Work in its "as is" condition. 6. TITLE Title to the Interest in the Work shall pass to the Buyer from the Museum upon payment in full of the Purchase Price in good funds pursuant to this Agreement, at which time the Museum agrees to effectuate the transfer of title to the Interest in the Work to the Buyer, and to provide such documentation as_ i5 reasonably required upon sale including a Bill of Sale for the Interest in the Work from the Museum. 7. RIGHT TO POSSESSION The Museum shall have the right to possess, display and use the Work for one- half (1/2) of each year commencing with the effective date of this Agreement (and for each succeeding twelve-month period thereafter) and the Buyer shall have the right to possess, display and use the Work for the other one-half of each such twelve-month period. The Museum and the Buyer agree to arrange between themselves which period of time that each shall possess the Work during any twelve-month period. In the case of any disagreement between the parties with respect to the timing of possession of the Work in any year, then the Work shall be in the possession of the Museum from June 10 through September 10 and November 20 through February 20 of such year, and in the possession of the Buyer from February 21 through June 9 and September 11 through November 19 of such year. 8. EXPENSES AND INSURANCE A. The Buyer and the Museum shall keep the Work in his or its possession insured for the benefit of both parties under an all risk fine arts insurance policy in the amount of -4- EFTA01108734  the fair market replacement value of the Work, but in no case less than twice the Purchase Price for the Interest in the Work as stated in Paragraph 2 of this Agreement. The Museum agrees to insure the Work under the Museum's blanket fine arts insurance policy when it is in its possession and in transit to or from the Buyer to the Museum. The Buyer agrees to insure the Work when it is in his possession at his premises under his all risk fine arts insurance policy. Each insurance policy shall name the Museum and the Buyer as insured parties as their respective interests shall appear. B. All costs of packing and shipping the Work from the Museum to the Buyer and from the Buyer to the Museum shall be borne by the Museum. The shipping crate constructed for the Work shall be stored at or by the Museum at no cost to the Buyer whether the work is in the possession of the Museum or the Buyer. 9. CARE OF THE WORK The Museum and the Buyer will take reasonable precautions to protect the Work from fire, theft, mishandling and extremes of light, temperature and humidity while in their respective possession. No conservation or repairs will be made to the Work without the approval of both the Museum and the Buyer. Should any conservation, cleaning, repairs or similar maintenance of the Work be required, after the written approval of the Museum and the Buyer, the parties agree to each pay an equal portion of any such expense. 10. LOAN OF THE WORK The Museum and the Buyer agree that the Work will not be placed on loan to any other museum or institution without the written consent and approval of both the Museum and the Buyer. -5- EFTA01108735  I 1. RIGHT TO SELL A. On six (6) months written notice (the "Sale Notice") to the other party, either the Museum or the Buyer can give Sale Notice to the other that he or it wants to sell its Interest in the Work to the other. The price to be paid by either party for the other's Interest in the Work shall be the greater of (i) one-half (1/2) the fair market value of the Work on the date of the Sale Notice, or (ii) the Purchase Price of the Interest in the Work increased by three percent (3%) per annum to the date of the Sale Notice. The fair market value of the Work shall be determined by appraisal, with the Buyer and the Museum each selecting an appraiser for the Work and the two appraisers so selected selecting a third appraiser for the Work. The results of the three appraisals prepared shall then be averaged to determine the fair market value of the Work. The costs for all the appraisals shall be shared equally between the parties. The selling price for the Interest in the Work shall be paid at the end of the six (6) month Sale Notice period. The party to whom the Interest in the Work has been offered (the "Offeree Party") shall have the option of (i) purchasing the other party's Interest in the Work at a price as determined above, or (ii) electing to apply Paragraph 11B below even if it is earlier than ten (10) years from the date of this Agreement. If the Offeree Party elects not to purchase the other party's Interest in the Work nor apply Paragraph 11B below, then the Work shall be sold in such manner and under such terms and conditions as the parties shall reasonably agree upon or failing such agreement, the Work shall be sold at public auction within six months of such disagreement. Neither party may sell its Interest in the Work to a third party. B. Separate and apart from and notwithstanding anything in Subparagraph A above, at any time after ten (10) years of the date of this Agreement (other than the exception set forth in Paragraph IIA above) and upon three (3) months written notice (the "Exchange Notice") either the Museum or the Buyer can give Exchange Notice to the other that (a) he or it wants to exchange his or its Interest in the Work for the other party's interest in the Max Beckmann Self- -6- EFTA01108736 Portrait With Horn (the "Beckmann Interest") that the parties own jointly or (b) he or it wants to exchange his or its Beckmann Interest for the other party's Interest in the Work. In order to effectuate the Exchange, the parties shall flip a coin to determine the deciding party (the "Deciding Party"). The Deciding Party shall either (a) transfer the Interest in the Work he or it owns in exchange for the other party's Beckmann Interest, or (b) transfer the Beckmann Interest he or it owns in exchange for the other party's Interest in the Work. The parties agree that the Interest in the Work and the Beckmann Interest are of equal value. After the Exchange, each party is free to decidc whether or not to sell or keep the 100% ownership in the work of art he or it owns as a result of the Exchange. 12. REPRODUCTION RIGHTS The Museum shall be solely responsible for clearing any reproduction rights from the owner of the copyright of the Work. The Buyer consents to the Museum's use of the reproduction rights for normal and usual museum purposes for items on paper. Prior to the Museum utilizing the reproduction rights for any other purpose, the Museum shall obtain the written consent of the Buyer, which consent shall not be unreasonably withheld. 13. COMMISSIONS The Buyer shall not be responsible for and shall not pay any commissions or fees due any person acting on behalf of the Museum as a result of the transaction contemplated by this Agreement. The Museum shall not be responsible for and shall not pay any commission or fees due any person acting on behalf of the Buyer as a result of the transaction contemplated by this Agreement. 14. CONFIDENTIALITY During the term of this Agreement and after the closing of title, neither the Buyer nor the Museum will disclose the purchase price or the specific terms of this Agreement to any third party without the other's written consent, except insofar as necessary to carry out the terms - 7- EFTA01108737 of this Agreement, or as may be required by law. In displaying the Work, the Museum shall not indicate or reveal the Buyer's name or his ownership interest. The terms of this Paragraph shall survive the closing of title or termination of this Agreement for any reason including termination prior to closin 15. MIS ELLANEOUS This Agre ent represents the entire understanding • all the parties hereto, supersedes any and all other an nor agreements relating e subject matter herein between the parties and declares all such prior eements b een the parties null and void. The terms of this Agreement may not be modified or a ded, except in a writing signed by the party to be charged. This Agreement shall inure < the bene of, and shall be binding upon, the successors, heirs, executors and administra rs of the parties hereto. This Agreement and all matters relating to it shall be governed b he laws of the State of New York. y dispute arising hereunder shall be resolved in t courts of the State of New York or in the United tates District Court for the Southern 'strict of the State of New York; provided, however, that the p• es hereto agree that the will make concerted efforts to settle any dispute between them in an cable manner without the necessity of litigation. This Agreement may be executed in counterparts. -8- EFTA01108738  IN WITNESS WHEREOF, the parties hereto have hereunto signed their hands and seals the day and year first above written. MUSEUM Ne G lerie New York aA.44, By: onald Lauer, 'resident BUYER 9 AO Leon D. Black -9- EFTA01108739  EXHIBIT A BILL OF SALE Dated: January / C, 2007 Sold by: Neue Galerie New York (Museum) 1048 Fifth Avenue New York, NY 10028 Sold to: Leon D. Black (Buyer) 760 Park Avenue New York, NY 10021 Work sold: An undivided One-Half Interest in the Work Title: Berliner Strassenszene (recto); Bonnie (verso) (Work) Artist: Ernst Ludwig Kirchner Medium: oil on canvas Size: 47 7/8 x 35 7/8 in. (121.6 x 91.1 cm.) Date: 1913-1914 Signed: signed twice `E.L. Kirchner' (lower right and lower left); signed again `EL Kirchner' (on the reverse) Purchase Price: $19,048,000.00 U.S. Payable: In full at or prior to transfer of title to the Interest in the Work to the Buyer. The Work is sold subject to all agreements, terms, conditions, representations and warranties contained in an Agreement dated January /C , 2007 between the Museum and the Buyer, and all such agreements, terms, conditions, representations and warranties thereunder are incorporated herein by this reference as if fully set forth herein in their entirety. Title to the Interest in the Work shall pass to the Buyer upon payment in full of the Purchase Price to the Museum. Neu alcrie New York 0-4.1k By: President EFTA01108740  12/04/2006 12:38 FAX 2128794753 HE UE 3ALERIE fa 002/002 DEC. 1. 2006 11 !42AM CASHIERS N0.498 P. 1 INVOICE Client CHRISTIE'S Neue Galerie 1048 Fifth Avenue INVOICE J133092 New York NY 10028 655851 T3IDD&R.AI 7002 DOE DATE: NOV 15 06 INVOICE DATE: NOV 9 06 TEL. SALE: 1722 ROCK 08NOV06 Impressionist and Modern (Eveninc sale) MR C. BURGE 761543 LOT I PURCHASEPRICE I TAX SALESN5Z NUMBER LOT DESCRIPTION RATE TAX Tit purse= of tbe property Booting on ta /cooks Dattfeu 11 0 j to the: tit:waits of Salo at Mated Waite la Math , i nzat ot the otstan cattdopact lot the toncefenown rak. 37 38096000.00 'Ernst Ludwig Kirchner taisdu, prlso iS Co nun of the fatal ail isake &strati= iBerliner Strabenszene, 1913/14 bY The baiter 0120% of ate fiat bid price op to dad lo/c, 121 x 98 cm ir ding mutt es US of Ca tall bad prico ton S200,o00, mottle; or mast la the takters or air. Lots Itozoinin on Ctriodea Fracases for more et cat calcadas days aft at. Cu fa atit lane Cafgc. Bums cosy boa a Oa rano of 134% per latOath ez (Cc putelltat Moo goo baYor dad not tae parrazzlz rag ia cuts= wiaa ex 0:iodides% at Salt 1100 to property Idso011ed an this itraoteto trice poi Fast to the nit trD Whit= his soiltned pals= la full from Cie Dryer. Solo/Oi Tito If 2 Wiye tact de 'y b dal of the fttlkneasc state, ChAnar'S men collect acy applicable SW co' hag nits or co tax begot PreocitU sbippol: C.orttrala. Contr.:Ws, Dont, =Doss, Mossachusotts, Haw Jam Ilya 'wok, Parnistranla Ms= hist. Tat: or W2tAitattoaD.C. IaW1OpaySKUctWilitalimmyliYa46,Wyclepotir tt=ttost.mattosca0=0Famossorittscom T.S 38096000,00 PrIto The Start= fifty Frqracy identified CO an RP =oat is nut wire ottatnoo w of ciodosue Thy/ =O. the 6 ' 152.7. traria. wigs!'uara& Dot ...of ale nPmayo y trot csWosoe and erg. a/ atwoutoott iron tll coortotlast aft. 0tlyit gamin ihst action. &twat" ilo tvitimicgdat lavtinealect vim rt.:myna% is Ca [natal arciw LNVOIC-E J133092 >C PAYMP14T /NFULL IS D SALE: 1722 ROCK 08NOV06 SEVEN CALENDAR DAYS LDS% 6S5881 Neue Galerie 1'. 4 :a0 the back of able eavoiat TOTALPVACHASEPRICEI for corople:o paypitat italrga SillelMZETAPC. 38096000.00 iala age huington; gal* LIVOICS DATB: NOV 9 0 6 TOTAL 4401.11T PAYMI L11: Clufrakes 20 Rockefeller Pb az, Now York: Now York 10020 7 • 1 AMA EFTA01108741