UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 1-U
Current Report Pursuant to Regulation A
Date of Report (Date of earliest event reported): April 23, 2020 (April 23, 2020)
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Otis Collection LLC
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(Exact name of issuer as specified in its charter)
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Delaware
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84-3316802
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification No.)
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335 Madison Ave, 16th Floor, New York, NY 10017
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(Full mailing address of principal executive offices)
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201-479-4408
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(Issuer’s telephone number, including area code)
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Series Collection Drop 001 Interests, Series Collection Drop 002 Interests, Series Collection Drop 003 Interests*
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(Title of each class of securities issued pursuant to Regulation A)
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*No interests have been issued as of the date of this Current Report
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Item 1
Fundamental Changes
Amendments to Material Definitive Agreements
On April 23, 2020, Series Collection Drop 001, a series of Otis Collection LLC, a Delaware series limited liability company (which we refer to as “we,” “us,” “our” or “our company”), entered into a First Amendment to Purchase and Sale Agreement with Otis Wealth, Inc., a Delaware corporation (which we refer to as our manager), the manager of our company and each series of our company, which amendment amended the purchase price and consideration for the acquisition of the Series Collection Drop 001 Asset from our manager set forth in that certain Purchase and Sale Agreement, dated November 22, 2019. A copy of the amendment has been filed as Exhibit 6.3.2 to this report. Series Collection Drop 001 had issued a promissory note, dated November 22, 2019, to our manager as the original consideration for the asset acquisition. As replacement consideration therefor in connection with the amendment, Series Collection Drop 001 issued a promissory note, dated April 23, 2020, to our manager in the sum of $13,000, which amends and restates in its entirety, and replaces, the original note. Aside from the revised principal amount, the note remains unchanged. A copy of the note has been filed as Exhibit 6.4.2 to this report.
On April 23, 2020, Series Collection Drop 003, a series of our company, entered into a First Amendment to Purchase and Sale Agreement with our manager, which amendment amended the purchase price and consideration for the acquisition of the Series Collection Drop 003 Asset from our manager set forth in that certain Purchase and Sale Agreement, dated November 25, 2019. A copy of the amendment has been filed as Exhibit 6.9.2 to this report. Series Collection Drop 003 had issued a promissory note, dated November 25, 2019, to our manager as the original consideration for the asset acquisition. As replacement consideration therefor in connection with the amendment, Series Collection Drop 003 issued a promissory note, dated April 23, 2020, to our manager in the sum of $12,500, which amends and restates in its entirety, and replaces, the original note. Aside from the revised principal amount, the note remains unchanged. A copy of the note has been filed as Exhibit 6.10.2 to this report.
On April 23, 2020, in connection with a decrease in the aggregate offering size of Series Collection Drop 001 Interests, Series Collection Drop 001 entered into a First Amendment to Asset Management Agreement with our manager, which amendment reduced the sourcing fee paid to our manager as compensation for sourcing the Series Collection Drop 001 Asset as set forth in that certain Asset Management Agreement, dated November 22, 2019, and also makes minor corrections. A copy of the amendment has been filed as Exhibit 6.2.2 to this report.
On April 23, 2020, in connection with a decrease in the aggregate offering size of Series Collection Drop 003 Interests, Series Collection Drop 003 entered into a First Amendment to Asset Management Agreement with our manager, which amendment reduced the sourcing fee paid to our manager as compensation for sourcing the Series Collection Drop 003 Asset as set forth in that certain Asset Management Agreement, dated November 25, 2019, and also makes minor corrections. A copy of the amendment has been filed as Exhibit 6.8.2 to this report.
Item 3
Material Modification to Rights of Securityholders
Amendment of Constituent Instruments
The interests of the series of our company offered under our Preliminary Offering Circular, dated March 12, 2020 and qualified on March 27, 2020 (which we refer to as our offering circular) may be referred to in this report as “Interests” and each, individually, as an “Interest.”
On April 23, 2020, in connection with a decrease in the aggregate offering size of Series Collection Drop 001 Interests, from 600 to 520, our manager, as manager of our company, adopted and approved an amended and restated series designation for Series Collection Drop 001 to reduce the maximum number of Series Collection Drop 001 Interests our company can issue to 520 and update the asset management fee in connection with the above. A copy of the series designation has been filed as Exhibit 3.1 to this report and will replace the previously filed series designation. No interests under this series designation have been issued as of the date of this report.
On April 23, 2020, in connection with a decrease in the aggregate offering size of Series Collection Drop 003 Interests, from 580 to 500, our manager, as manager of our company, adopted and approved an amended and restated series designation for Series Collection Drop 003 to reduce the maximum number of Series Collection Drop 003 Interests our company can issue to 500 and update the asset management fee in connection with the above. A copy of the series designation has been filed as Exhibit 3.2 to this report and will replace the previously filed series designation. No interests under this series designation have been issued as of the date of this report.
Safe Harbor Statement
This Current Report on Form 1-U may contain forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934, as amended. The words “anticipates,” “believes,” “continue,” “could,” “estimates,” “expects,” “intends,” “may,” “might,” “plans,” “possible,” “potential,” “predicts,” “projects,” “seeks,” “should,” “will,” “would” and similar expressions and variations, or comparable terminology, or the negatives of any of the foregoing, may identify forward-looking statements, but the absence of these words does not mean that a statement is not forward-looking. Such forward-looking statements are subject to various risks and uncertainties, including those described under the section entitled “Risk Factors” in our offering circular, as such factors may be updated from time to time in our periodic filings and offering circular supplements filed with the Securities and Exchange Commission (which we refer to as the SEC), which are accessible on the SEC’s website at www.sec.gov. Accordingly, there are or will be important factors that could cause actual outcomes or results to differ materially from those indicated in these statements. These factors should not be construed as exhaustive and should be read in conjunction with the other cautionary statements that are included in our filings with the SEC. We undertake no obligation to publicly update or review any forward-looking statement, whether as a result of new information, future developments or otherwise, except as required by law.
EXHIBITS
The following exhibits are filed herewith:
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Exhibit No.
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Description of Exhibit
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3.1
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3.2
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6.2.2
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6.3.2
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6.4.2
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6.8.2
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6.9.2
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6.10.2
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SIGNATURES
Pursuant to the requirements of Regulation A, the issuer has duly caused this report to be signed on its behalf by the undersigned, thereunto duly authorized.
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Date: April 23, 2020
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OTIS COLLECTION LLC
By: Otis Wealth, Inc., its managing member
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/s/ Michael Karnjanaprakorn
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Name: Michael Karnjanaprakorn
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Title: Chief Executive Officer
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Exhibit 3.1
Amended and Restated
Series Collection Drop 001, a Series of Otis Collection LLC
Capitalized terms used but not defined herein have the meanings assigned to such terms in the Limited Liability Company Agreement of Otis Collection LLC, as in effect as of the effective date set forth below (the “Operating Agreement”). References to Sections and Articles set forth herein are references to Sections and Articles of the Operating Agreement.
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Name of Series
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Series Collection Drop 001, a Series of Otis Collection LLC (“Series Collection Drop 001”).
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Effective Date of Establishment
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November 22, 2019.
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Effective Date of Amendment and Restatement
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April 23, 2020.
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Managing Member
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Otis Wealth, Inc. was appointed as the Managing Member of the Series Collection Drop 001 with effect from the date of the Operating Agreement and shall continue to act as the Managing Member of Series Collection Drop 001 until dissolution of Series Collection Drop 001 pursuant to Section 11.01(b) or its removal and replacement pursuant to Section 4.03 or ARTICLE X.
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Initial Member
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Otis Wealth, Inc.
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Series Collection Drop 001 Asset
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The Series Collection Drop 001 Asset shall be one copy of Amazing Spider-Man #129 acquired by Series Collection Drop 001 as at the date of this Series Designation and any assets and liabilities associated with such asset and such other assets and liabilities acquired by Series Collection Drop 001 from time to time, as determined by the Managing Member in its sole discretion.
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Asset Manager
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Otis Wealth, Inc.
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Asset Management Fee
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Pursuant to the Asset Management Agreement, the Asset Manager is entitled to a Sourcing Fee as compensation for sourcing the Series Collection Drop 001 Asset that is equal to 0.93% of the gross proceeds of the Initial Offering, which the Asset Manager may waive in its sole discretion.
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Issuance
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Subject to Section 6.03(a), the maximum number of Series Collection Drop 001 Interests the Company can issue is 520.
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Number of Series Collection Drop 001 Interests held by the Managing Member
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Upon designation of Series Collection Drop 001, the Managing Member was granted a single interest in Series Collection Drop 001.
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Broker
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North Capital Private Securities Corporation.
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Brokerage Fee
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1% of the purchase price of the Series Collection Drop 001 Interests sold in the Initial Offering of the Series Collection Drop 001 Interests (excluding the Series Collection Drop 001 Interests acquired by the Managing Member).
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Other Rights
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Holders of Series Collection Drop 001 Interests shall have no conversion, exchange, sinking fund, redemption or appraisal rights, no preemptive rights to subscribe for any securities of the Company and no preferential rights to distributions of Series Collection Drop 001 Interests.
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Officers
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There shall initially be no specific officers associated with Series Collection Drop 001, although the Managing Member may appoint officers of Series Collection Drop 001 from time to time, in its sole discretion.
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Minimum Interests
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One (1) Interest per Member.
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Exhibit 3.2
Amended and Restated
Series Collection Drop 003, a Series of Otis Collection LLC
Capitalized terms used but not defined herein have the meanings assigned to such terms in the Limited Liability Company Agreement of Otis Collection LLC, as in effect as of the effective date set forth below (the “Operating Agreement”). References to Sections and Articles set forth herein are references to Sections and Articles of the Operating Agreement.
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Name of Series
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Series Collection Drop 003, a Series of Otis Collection LLC (“Series Collection Drop 003”).
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Effective Date of Establishment
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November 25, 2019.
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Effective Date of Amendment and Restatement
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April 23, 2020.
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Managing Member
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Otis Wealth, Inc. was appointed as the Managing Member of the Series Collection Drop 003 with effect from the date of the Operating Agreement and shall continue to act as the Managing Member of Series Collection Drop 003 until dissolution of Series Collection Drop 003 pursuant to Section 11.01(b) or its removal and replacement pursuant to Section 4.03 or ARTICLE X.
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Initial Member
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Otis Wealth, Inc.
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Series Collection Drop 003 Asset
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The Series Collection Drop 003 Asset shall be one copy of Giant Size X-Men #1 (comic) acquired by Series Collection Drop 003 as at the date of this Series Designation and any assets and liabilities associated with such asset and such other assets and liabilities acquired by Series Collection Drop 003 from time to time, as determined by the Managing Member in its sole discretion.
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Asset Manager
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Otis Wealth, Inc.
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Asset Management Fee
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Pursuant to the Asset Management Agreement, the Asset Manager is entitled to a Sourcing Fee as compensation for sourcing the Series Collection Drop 003 Asset that is equal to 1.10% of the gross proceeds of the Initial Offering, which the Asset Manager may waive in its sole discretion.
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Issuance
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Subject to Section 6.03(a), the maximum number of Series Collection Drop 003 Interests the Company can issue is 500.
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Number of Series Collection Drop 003 Interests held by the Managing Member
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Upon designation of Series Collection Drop 003, the Managing Member was granted a single interest in Series Collection Drop 003.
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Broker
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North Capital Private Securities Corporation.
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Brokerage Fee
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1% of the purchase price of the Series Collection Drop 003 Interests sold in the Initial Offering of the Series Collection Drop 003 Interests (excluding the Series Collection Drop 003 Interests acquired by the Managing Member).
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Other Rights
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Holders of Series Collection Drop 003 Interests shall have no conversion, exchange, sinking fund, redemption or appraisal rights, no preemptive rights to subscribe for any securities of the Company and no preferential rights to distributions of Series Collection Drop 003 Interests.
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Officers
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There shall initially be no specific officers associated with Series Collection Drop 003, although the Managing Member may appoint officers of Series Collection Drop 003 from time to time, in its sole discretion.
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Minimum Interests
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One (1) Interest per Member.
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Exhibit 6.2.2
FIRST AMENDMENT TO ASSET MANAGEMENT AGREEMENT
SERIES COLLECTION DROP 001
This FIRST AMENDMENT TO ASSET MANAGEMENT AGREEMENT (this “Amendment”), dated as of April 23, 2020, is entered into between Otis Wealth, Inc., a corporation organized under the laws of the State of Delaware (the “Asset Manager”), and Series Collection Drop 001, a Series of Otis Collection LLC (the “Series”).
WHEREAS, the Asset Manager and the Series are party to that certain Asset Management Agreement, dated November 22, 2019 (the “Agreement”); and
WHEREAS, the parties desire to modify and amend the Agreement, as set forth in this Amendment.
NOW THEREFORE, in consideration of the mutual agreements herein contained, the parties hereby covenant and agree as follows:
1. Amendment. The Agreement is hereby amended as follows:
(a) Subsection 2(iii) of the Agreement is hereby deleted in its entirety and replaced with the following:
“(iii)
engage third party independent contractors for the care, custody, maintenance and management of the Series Collection Drop 001 Asset;”
(b) Subsection 7(a) of the Agreement is hereby deleted in its entirety and replaced with the following:
“(a) As compensation for sourcing the Series Collection Drop 001 Asset, the Asset Manager may be granted a sourcing fee equal to 0.93% of the total aggregate amount of Series Collection Drop 001 membership interests that are sold in the Series’ offering under Regulation A of the Securities Act of 1933, as amended (the “Offering”), which the Asset Manager may waive in its sole discretion.”
(c) The notice addresses set forth in Section 11 of the Agreement are hereby deleted in their entirety and replaced with the following:
“If to the Series:
Series Collection Drop 001
c/o Otis Wealth, Inc.
335 Madison Avenue, 16th Floor
New York, NY 10017
Attention: Michael Karnjanaprakorn, CEO
Email: michael@otiswealth.com
If to the Asset Manager:
Otis Wealth, Inc.
335 Madison Avenue, 16th Floor
New York, NY 10017
Attention: Michael Karnjanaprakorn, CEO
Email: michael@otiswealth.com”
2. Miscellaneous.
(a) The parties hereby ratify and affirm each of the terms and provisions of the Agreement, as amended by this Amendment, which shall remain in full force and effect.
(b) This Amendment constitutes the entire amendment to the Agreement and shall not constitute a modification, acceptance and/or waiver of any other provision of the Agreement and/or any rights or claims thereunder.
(c) In the event of a conflict between any provisions of the Agreement and any provisions of this Amendment, such provision of this Amendment shall control.
(d) The Agreement, as amended by this Amendment, comprises the full and complete agreement of the parties with respect to the transactions contemplated by the Agreement and supersedes and cancels all prior communications, understandings and agreements between the parties, whether written or oral, expressed or implied.
(e) This Amendment shall be governed by and construed and interpreted in accordance with the substantive laws of the State of New York, without regard to conflict of laws principles and shall supersede any previous agreements, written and/or oral, expressed or implied, between the parties relating to the subject matter hereof.
(f) This Amendment may be executed in multiple counterparts, each of which will be deemed an original, and all of which will constitute the same document.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly appointed agents so as to be effective on the day, month and year first above written.
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Otis Wealth, Inc.
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By:
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/s/ Michael Karnjanaprakorn
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Name:
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Michael Karnjanaprakorn
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Title:
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Chief Executive Officer
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Series Collection Drop 001, a Series of Otis Collection LLC
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By: Otis Wealth, Inc., as managing member
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By:
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/s/ Michael Karnjanaprakorn
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Name:
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Michael Karnjanaprakorn
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Title:
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Chief Executive Officer
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Exhibit 6.3.2
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (this “Amendment”) is made and entered into as of this April 23, 2020, by and between (i) Series Collection Drop 001, a Series of Otis Collection LLC, a Delaware series limited liability company (“Purchaser”), and (ii) Otis Wealth, Inc., a Delaware corporation (“Seller”).
RECITALS
A. Purchaser and Seller are party to that certain Purchase and Sale Agreement, dated November 22, 2019 (the “Agreement”).
B. The parties desire to modify and amend the Agreement, as set forth in this Amendment.
AMENDMENT
NOW, THEREFORE, in consideration of the mutual premises and covenants contained herein, the parties agree as follows:
1. Amendment. The Agreement is hereby amended as follows:
1.1. Section 2 of the Agreement is hereby deleted in its entirety and replaced with the following:
“2. Purchase Price; Consideration. Purchaser on the date hereof (the “Closing Date”) issued to Seller a promissory note, dated November 22, 2019 (the “Original Note”), as the original consideration for the Ownership Interests. As replacement consideration for the Ownership Interests, on April 23, 2020, Purchaser issued to Seller a promissory note in the form previously provided to Seller in the sum of Thirteen Thousand Dollars ($13,000) (the “Promissory Note”), which amends and restates in its entirety, and replaces, the Original Note.”
1.2. Exhibit B to the Agreement is hereby deleted in its entirety.
2. Miscellaneous.
2.1. The parties hereby ratify and affirm each of the terms and provisions of the Agreement, as amended by this Amendment, which shall remain in full force and effect.
2.2. This Amendment constitutes the entire amendment to the Agreement and shall not constitute a modification, acceptance and/or waiver of any other provision of the Agreement and/or any rights or claims thereunder.
2.3. In the event of a conflict between any provisions of the Agreement and any provisions of this Amendment, such provision of this Amendment shall control.
2.4. The Agreement, as amended by this Amendment, comprises the full and complete agreement of the parties with respect to the transactions contemplated by the Agreement and supersedes and cancels all prior communications, understandings and agreements between the parties, whether written or oral, expressed or implied.
2.5. This Amendment shall be governed by and construed and interpreted in accordance with the substantive laws of the State of New York, without regard to conflict of laws principles and shall supersede any previous agreements, written and/or oral, expressed or implied, between the parties relating to the subject matter hereof.
2.6. This Amendment may be executed in multiple counterparts, each of which will be deemed an original, and all of which will constitute the same document.
[Signature page follows]
IN WITNESS WHEREOF, this Amendment has been signed by Purchaser and Seller as of the date first above written.
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PURCHASER:
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Series Collection Drop 001, a Series of Otis Collection LLC
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By: Otis Wealth, Inc., as managing member
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By:
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/s/ Michael Karnjanaprakorn
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Name:
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Michael Karnjanaprakorn
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Title:
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Chief Executive Officer
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SELLER:
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Otis Wealth, Inc.
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By:
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/s/ Michael Karnjanaprakorn
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Name:
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Michael Karnjanaprakorn
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Title:
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Chief Executive Officer
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Exhibit 6.4.2
THIS NOTE HAS NOT BEEN REGISTERED FOR SALE UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY OTHER APPLICABLE SECURITIES LAWS. THIS NOTE MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR OTHER APPLICABLE SECURITIES LAWS OR, IN THE ABSENCE THEREOF, AN OPINION OF COUNSEL IN FORM, SUBSTANCE AND SCOPE CUSTOMARY FOR OPINIONS OF COUNSEL IN COMPARABLE TRANSACTIONS, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT, OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT. THIS NOTE IS SUBJECT TO THE TRANSFER RESTRICTIONS SET FORTH HEREIN.
AMENDED AND RESTATED PROMISSORY NOTE
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Note No. 1
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Date: April 23, 2020
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Principal Amount: $13,000
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New York, NY
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FOR VALUE RECEIVED, Series Collection Drop 001, a Series of Otis Collection LLC, a Delaware series limited liability company (the “Company”), or its permitted assignees, hereby promise(s) to pay to the order of Otis Wealth, Inc., with an address at 335 Madison Avenue, 16th Floor, New York, NY 10017 (“Lender”), or its permitted assignees, in lawful money of the United States of America and in immediately available funds, the principal amount of Thirteen Thousand Dollars ($13,000) (the “Principal Amount”), together with all accrued interest thereon as set forth below. This Amended and Restated Promissory Note (this “Note”) amends and restates in its entirety, and replaces, that certain Promissory Note, dated November 22, 2019, previously issued by the Company in favor of the Lender.
1.
Background; Use of Funds; Definitions. This Note constitutes the consideration payable to the Lender for the Series Collection Drop 001 Asset (the “Series Asset”) pursuant to the Purchase and Sale Agreement relating to the Series Asset that was entered into between the Company and the Lender on or about the date hereof. As used in this Note, the following terms shall have the following meanings:
a.
“Applicable Rate” means the rate per annum equal to 7.5%.
b.
“Business Day” means every day other than a Saturday, Sunday, or day on which the banks in the State of New York are required or authorized to close in New York City. “Non-Business Day” means every day that is not a Business Day.
c.
“Person” shall mean any natural person or individual, firm, company, general partnership, limited partnership, limited liability partnership, joint venture association, corporation, limited liability company, trust, business trust, estate, other legal entity.
d.
“Lien” shall mean the right of first claim against the Series Asset that will be provided to Lender should there be an Event of Default (as defined below) by the Company or should the offering associated with the Series Asset be terminated prior to the Offering Funding Date (as defined below). Upon repayment of the Note, the Lender’s right to implement the Lien shall become null and void.
e.
“Offering Funding Date” shall mean the date on which the offering for the Series Asset is fully funded through an offering conducted by the Company.
2.
Repayment of Interest and Principal. Except as otherwise provided herein, the Company will repay the outstanding principal amount of this Note within 14 Business Days of the Offering Funding Date (the “Maturity Date”), together with all accrued interest thereon. This Note shall accrue interest at an annual rate equal to the Applicable Rate from the date of this Note until the entirety of the Principal Amount and Interest is paid in full. Interest shall only accrue for a period of up to four months from November 22, 2019. At the option of the Lender, funds available for repayment of the loan may be held in a Company account, interest free, after the Maturity Date. Such fund shall not be used or otherwise pledged until such time as the Company and Lender have entered into another note.
3.
Prepayment. Except as otherwise provided in Section 8, the Company may prepay all or any part of the principal of this Note at any time or from time to time without premium, or penalty of any kind whatsoever. In the event that the Company prepays less than the entire outstanding principal amount of the Note, the Company shall deliver to the holder hereof upon such prepayment a replacement Note representing the remaining outstanding principal thereof.
4.
Events of Default. The occurrence of any one or more of the following events shall be deemed an “Event of Default”:
a.
The failure to pay any amounts when due hereunder.
b.
The Company shall: (i) admit in writing its inability to pay its debts generally as they become due; (ii) make an assignment for the benefit of its creditors; or (iii) consent to the appointment of a receiver of itself or of the whole or any substantial part of its property.
c.
The Company shall file a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States or any state or district or territory thereof.
d.
A court of competent jurisdiction shall enter an order, judgment or decree appointing, without the consent of Company, a receiver for Company or of the whole or any substantial part of its property, or approving a petition filed against the Company seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any state or district or territory thereof, and such order, judgment or decree shall not be vacated or set aside or stayed within thirty (30) days from the date of the entry thereof.
e.
Under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the Company or of the whole or any substantial part of their property, and such custody or control shall not be terminated or stayed within thirty (30) days from the date of assumption of such custody or control.
f.
A final judgment or order for the payment of money, or any final order granting equitable relief, shall be entered against the Company and such judgment or order has or will have a materially adverse effect on the financial condition of the Company.
5.
Governing law. THE LAWS OF THE STATE OF NEW YORK, EXCLUDING THEIR CONFLICTS OF LAWS PROVISIONS, SHALL GOVERN THIS NOTE IN ALL RESPECTS, INCLUDING CONSTRUCTION, VALIDITY, TERMS, PERFORMANCE, AND WAIVER.
6.
Successors and Assigns. All of the covenants, stipulations, promises, and agreements in this Note contained by or on behalf of the Company shall bind its successors and assigns, whether so expressed or not. The Company may not assign this Note without the prior written consent of Lender. This Note may be transferred or assigned by Lender, in whole or in part, to any Person without the prior written consent of the Company.
7.
Headings; Construction. The headings of the sections of this Note are inserted for convenience only and shall not be deemed to constitute a part hereof. Words used herein of any gender shall be construed to include any other gender where appropriate, and words used herein that are either singular or plural shall be construed to include the other where appropriate.
8.
Payments. In any case where a payment of principal is due on a Non-Business Day, the Company shall be entitled to delay such payment until the next succeeding Business Day. Each payment or prepayment hereon must be paid at the address of Lender set forth below (or as otherwise notified to the Company in accordance with Section 9) in lawful money as therein specified and may be made at the Company’s election by the Company’s check, by wire transfer, or by bank or cashier’s check.
9.
Notices. Any notices required or permitted to be given under this Note by the Company to Lender or by Lender to the Company, as the case may be, shall be given in writing and shall be deemed received (a) when personally delivered to Lender at the address set forth below or to the Company at the address set forth below or (b) if sent by mail, on the third Business Day following the date when deposited in the United States mail, certified or registered mail, postage prepaid, to Lender at the address set forth below.
10.
Waiver and Amendments. Except as expressly provided in this Note, the Company does hereby waive presentment and demand for payment, protest, notice of protest and nonpayment, and notice of the intention to accelerate, and agrees that its liability on this Note shall not be affected by any renewal or extension in the time of payment hereof, by any indulgences, or by any release or change in any security for the payment of this Note. No provision of this Note may be amended, waived or otherwise modified unless such amendment, waiver or other modification is in writing and is signed or otherwise approved by the Company and the Lender.
11.
Maximum Interest Rate. It is the intention of Lender hereof to conform strictly to applicable usury laws now or hereafter in force, and therefore all agreements between the Company and Lender are expressly limited so that in no contingency or event whatsoever, whether by reason of advancement of the proceeds hereof, acceleration of maturity of the unpaid principal balance hereof, or otherwise, shall the amount paid or agreed to be paid to Lender hereof, for the use, forbearance, or detention of the money to be advanced hereunder exceed the highest lawful rate permitted under the laws of the State of New York.
[Signature Page to Follow]
IN WITNESS WHEREOF, the undersigned has executed this Note as of the date first written above.
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COMPANY:
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Series Collection Drop 001, a Series of Otis Collection LLC
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By: Otis Wealth, Inc., as managing member
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By:
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/s/ Michael Karnjanaprakorn
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Name:
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Michael Karnjanaprakorn
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Title:
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Chief Executive Officer
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Address:
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335 Madison Avenue, 16th Floor
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New York, NY 10017
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THE FOREGOING NOTE IS HEREBY
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AGREED TO AND ACCEPTED BY THE UNDERSIGNED:
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Otis Wealth, Inc.
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By:
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/s/ Michael Karnjanaprakorn
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Name:
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Michael Karnjanaprakorn
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Title:
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Chief Executive Officer
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Address:
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335 Madison Avenue, 16th Floor
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New York, NY 10017
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Exhibit 6.8.2
FIRST AMENDMENT TO ASSET MANAGEMENT AGREEMENT
SERIES COLLECTION DROP 003
This FIRST AMENDMENT TO ASSET MANAGEMENT AGREEMENT (this “Amendment”), dated as of April 23, 2020, is entered into between Otis Wealth, Inc., a corporation organized under the laws of the State of Delaware (the “Asset Manager”), and Series Collection Drop 003, a Series of Otis Collection LLC (the “Series”).
WHEREAS, the Asset Manager and the Series are party to that certain Asset Management Agreement, dated November 25, 2019 (the “Agreement”); and
WHEREAS, the parties desire to modify and amend the Agreement, as set forth in this Amendment.
NOW THEREFORE, in consideration of the mutual agreements herein contained, the parties hereby covenant and agree as follows:
1. Amendment. The Agreement is hereby amended as follows:
(a) Subsection 2(iii) of the Agreement is hereby deleted in its entirety and replaced with the following:
“(iii)
engage third party independent contractors for the care, custody, maintenance and management of the Series Collection Drop 003 Asset;”
(b) Subsection 7(a) of the Agreement is hereby deleted in its entirety and replaced with the following:
“(a) As compensation for sourcing the Series Collection Drop 003 Asset, the Asset Manager may be granted a sourcing fee equal to 1.10% of the total aggregate amount of Series Collection Drop 003 membership interests that are sold in the Series’ offering under Regulation A of the Securities Act of 1933, as amended (the “Offering”), which the Asset Manager may waive in its sole discretion.”
(c) The notice addresses set forth in Section 11 of the Agreement are hereby deleted in their entirety and replaced with the following:
“If to the Series:
Series Collection Drop 003
c/o Otis Wealth, Inc.
335 Madison Avenue, 16th Floor
New York, NY 10017
Attention: Michael Karnjanaprakorn, CEO
Email: michael@otiswealth.com
If to the Asset Manager:
Otis Wealth, Inc.
335 Madison Avenue, 16th Floor
New York, NY 10017
Attention: Michael Karnjanaprakorn, CEO
Email: michael@otiswealth.com”
2. Miscellaneous.
(a) The parties hereby ratify and affirm each of the terms and provisions of the Agreement, as amended by this Amendment, which shall remain in full force and effect.
(b) This Amendment constitutes the entire amendment to the Agreement and shall not constitute a modification, acceptance and/or waiver of any other provision of the Agreement and/or any rights or claims thereunder.
(c) In the event of a conflict between any provisions of the Agreement and any provisions of this Amendment, such provision of this Amendment shall control.
(d) The Agreement, as amended by this Amendment, comprises the full and complete agreement of the parties with respect to the transactions contemplated by the Agreement and supersedes and cancels all prior communications, understandings and agreements between the parties, whether written or oral, expressed or implied.
(e) This Amendment shall be governed by and construed and interpreted in accordance with the substantive laws of the State of New York, without regard to conflict of laws principles and shall supersede any previous agreements, written and/or oral, expressed or implied, between the parties relating to the subject matter hereof.
(f) This Amendment may be executed in multiple counterparts, each of which will be deemed an original, and all of which will constitute the same document.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed by their duly appointed agents so as to be effective on the day, month and year first above written.
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Otis Wealth, Inc.
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By:
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/s/ Michael Karnjanaprakorn
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Name:
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Michael Karnjanaprakorn
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Title:
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Chief Executive Officer
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Series Collection Drop 003, a Series of Otis Collection LLC
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By: Otis Wealth, Inc., as managing member
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By:
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/s/ Michael Karnjanaprakorn
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Name:
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Michael Karnjanaprakorn
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Title:
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Chief Executive Officer
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Exhibit 6.9.2
FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT
THIS FIRST AMENDMENT TO PURCHASE AND SALE AGREEMENT (this “Amendment”) is made and entered into as of this April 23, 2020, by and between (i) Series Collection Drop 003, a Series of Otis Collection LLC, a Delaware series limited liability company (“Purchaser”), and (ii) Otis Wealth, Inc., a Delaware corporation (“Seller”).
RECITALS
A. Purchaser and Seller are party to that certain Purchase and Sale Agreement, dated November 25, 2019 (the “Agreement”).
B. The parties desire to modify and amend the Agreement, as set forth in this Amendment.
AMENDMENT
NOW, THEREFORE, in consideration of the mutual premises and covenants contained herein, the parties agree as follows:
1. Amendment. The Agreement is hereby amended as follows:
1.1. Section 2 of the Agreement is hereby deleted in its entirety and replaced with the following:
“2. Purchase Price; Consideration. Purchaser on the date hereof (the “Closing Date”) issued to Seller a promissory note, dated November 25, 2019 (the “Original Note”), as the original consideration for the Ownership Interests. As replacement consideration for the Ownership Interests, on April 23, 2020, Purchaser issued to Seller a promissory note in the form previously provided to Seller in the sum of Twelve Thousand and Five Hundred Dollars ($12,500) (the “Promissory Note”), which amends and restates in its entirety, and replaces, the Original Note.”
1.2. Exhibit B to the Agreement is hereby deleted in its entirety.
2. Miscellaneous.
2.1. The parties hereby ratify and affirm each of the terms and provisions of the Agreement, as amended by this Amendment, which shall remain in full force and effect.
2.2. This Amendment constitutes the entire amendment to the Agreement and shall not constitute a modification, acceptance and/or waiver of any other provision of the Agreement and/or any rights or claims thereunder.
2.3. In the event of a conflict between any provisions of the Agreement and any provisions of this Amendment, such provision of this Amendment shall control.
2.4. The Agreement, as amended by this Amendment, comprises the full and complete agreement of the parties with respect to the transactions contemplated by the Agreement and supersedes and cancels all prior communications, understandings and agreements between the parties, whether written or oral, expressed or implied.
2.5. This Amendment shall be governed by and construed and interpreted in accordance with the substantive laws of the State of New York, without regard to conflict of laws principles and shall supersede any previous agreements, written and/or oral, expressed or implied, between the parties relating to the subject matter hereof.
2.6. This Amendment may be executed in multiple counterparts, each of which will be deemed an original, and all of which will constitute the same document.
[Signature page follows]
IN WITNESS WHEREOF, this Amendment has been signed by Purchaser and Seller as of the date first above written.
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PURCHASER:
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Series Collection Drop 003, a Series of Otis Collection LLC
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By: Otis Wealth, Inc., as managing member
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By:
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/s/ Michael Karnjanaprakorn
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Name:
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Michael Karnjanaprakorn
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Title:
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Chief Executive Officer
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SELLER:
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Otis Wealth, Inc.
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By:
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/s/ Michael Karnjanaprakorn
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Name:
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Michael Karnjanaprakorn
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Title:
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Chief Executive Officer
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Exhibit 6.10.2
THIS NOTE HAS NOT BEEN REGISTERED FOR SALE UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY OTHER APPLICABLE SECURITIES LAWS. THIS NOTE MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT AS TO THE SECURITIES UNDER SAID ACT OR OTHER APPLICABLE SECURITIES LAWS OR, IN THE ABSENCE THEREOF, AN OPINION OF COUNSEL IN FORM, SUBSTANCE AND SCOPE CUSTOMARY FOR OPINIONS OF COUNSEL IN COMPARABLE TRANSACTIONS, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT, OR UNLESS SOLD PURSUANT TO RULE 144 UNDER SAID ACT. THIS NOTE IS SUBJECT TO THE TRANSFER RESTRICTIONS SET FORTH HEREIN.
AMENDED AND RESTATED PROMISSORY NOTE
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Note No. 1
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Date: April 23, 2020
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Principal Amount: $12,500
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New York, NY
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FOR VALUE RECEIVED, Series Collection Drop 003, a Series of Otis Collection LLC, a Delaware series limited liability company (the “Company”), or its permitted assignees, hereby promise(s) to pay to the order of Otis Wealth, Inc., with an address at 335 Madison Avenue, 16th Floor, New York, NY 10017 (“Lender”), or its permitted assignees, in lawful money of the United States of America and in immediately available funds, the principal amount of Twelve Thousand and Five Hundred Dollars ($12,500) (the “Principal Amount”), together with all accrued interest thereon as set forth below in this note. This Amended and Restated Promissory Note (this “Note”) amends and restates in its entirety, and replaces, that certain Promissory Note, dated November 25, 2019, previously issued by the Company in favor of the Lender.
1.
Background; Use of Funds; Definitions. This Note constitutes the consideration payable to the Lender for the Series Collection Drop 003 Asset (the “Series Asset”) pursuant to the Purchase and Sale Agreement relating to the Series Asset that was entered into between the Company and the Lender on or about the date hereof. As used in this Note, the following terms shall have the following meanings:
a.
“Applicable Rate” means the rate per annum equal to 7.5%.
b.
“Business Day” means every day other than a Saturday, Sunday, or day on which the banks in the State of New York are required or authorized to close in New York City. “Non-Business Day” means every day that is not a Business Day.
c.
“Person” shall mean any natural person or individual, firm, company, general partnership, limited partnership, limited liability partnership, joint venture association, corporation, limited liability company, trust, business trust, estate, other legal entity.
d.
“Lien” shall mean the right of first claim against the Series Asset that will be provided to Lender should there be an Event of Default (as defined below) by the Company or should the offering associated with the Series Asset be terminated prior to the Offering Funding Date (as defined below). Upon repayment of the Note, the Lender’s right to implement the Lien shall become null and void.
e.
“Offering Funding Date” shall mean the date on which the offering for the Series Asset is fully funded through an offering conducted by the Company.
2.
Repayment of Interest and Principal. Except as otherwise provided herein, the Company will repay the outstanding principal amount of this Note within 14 Business Days of the Offering Funding Date (the “Maturity Date”), together with all accrued interest thereon. This Note shall accrue interest at an annual rate equal to the Applicable Rate from the date of this Note until the entirety of the Principal Amount and Interest is paid in full. Interest shall only accrue for a period of up to four months from November 25, 2019. At the option of the Lender, funds available for repayment of the loan may be held in a Company account, interest free, after the Maturity Date. Such fund shall not be used or otherwise pledged until such time as the Company and Lender have entered into another note.
3.
Prepayment. Except as otherwise provided in Section 8, the Company may prepay all or any part of the principal of this Note at any time or from time to time without premium, or penalty of any kind whatsoever. In the event that the Company prepays less than the entire outstanding principal amount of the Note, the Company shall deliver to the holder hereof upon such prepayment a replacement Note representing the remaining outstanding principal thereof.
4.
Events of Default. The occurrence of any one or more of the following events shall be deemed an “Event of Default”:
a.
The failure to pay any amounts when due hereunder.
b.
The Company shall: (i) admit in writing its inability to pay its debts generally as they become due; (ii) make an assignment for the benefit of its creditors; or (iii) consent to the appointment of a receiver of itself or of the whole or any substantial part of its property.
c.
The Company shall file a petition or answer seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States or any state or district or territory thereof.
d.
A court of competent jurisdiction shall enter an order, judgment or decree appointing, without the consent of Company, a receiver for Company or of the whole or any substantial part of its property, or approving a petition filed against the Company seeking reorganization or arrangement under the federal bankruptcy laws or any other applicable law or statute of the United States of America or any state or district or territory thereof, and such order, judgment or decree shall not be vacated or set aside or stayed within thirty (30) days from the date of the entry thereof.
e.
Under the provisions of any other law for the relief or aid of debtors, any court of competent jurisdiction shall assume custody or control of the Company or of the whole or any substantial part of their property, and such custody or control shall not be terminated or stayed within thirty (30) days from the date of assumption of such custody or control.
f.
A final judgment or order for the payment of money, or any final order granting equitable relief, shall be entered against the Company and such judgment or order has or will have a materially adverse effect on the financial condition of the Company.
5.
Governing law. THE LAWS OF THE STATE OF NEW YORK, EXCLUDING THEIR CONFLICTS OF LAWS PROVISIONS, SHALL GOVERN THIS NOTE IN ALL RESPECTS, INCLUDING CONSTRUCTION, VALIDITY, TERMS, PERFORMANCE, AND WAIVER.
6.
Successors and Assigns. All of the covenants, stipulations, promises, and agreements in this Note contained by or on behalf of the Company shall bind its successors and assigns, whether so expressed or not. The Company may not assign this Note without the prior written consent of Lender. This Note may be transferred or assigned by Lender, in whole or in part, to any Person without the prior written consent of the Company.
7.
Headings; Construction. The headings of the sections of this Note are inserted for convenience only and shall not be deemed to constitute a part hereof. Words used herein of any gender shall be construed to include any other gender where appropriate, and words used herein that are either singular or plural shall be construed to include the other where appropriate.
8.
Payments. In any case where a payment of principal is due on a Non-Business Day, the Company shall be entitled to delay such payment until the next succeeding Business Day. Each payment or prepayment hereon must be paid at the address of Lender set forth below (or as otherwise notified to the Company in accordance with Section 9) in lawful money as therein specified and may be made at the Company’s election by the Company’s check, by wire transfer, or by bank or cashier’s check.
9.
Notices. Any notices required or permitted to be given under this Note by the Company to Lender or by Lender to the Company, as the case may be, shall be given in writing and shall be deemed received (a) when personally delivered to Lender at the address set forth below or to the Company at the address set forth below or (b) if sent by mail, on the third Business Day following the date when deposited in the United States mail, certified or registered mail, postage prepaid, to Lender at the address set forth below.
10.
Waiver and Amendments. Except as expressly provided in this Note, the Company does hereby waive presentment and demand for payment, protest, notice of protest and nonpayment, and notice of the intention to accelerate, and agrees that its liability on this Note shall not be affected by any renewal or extension in the time of payment hereof, by any indulgences, or by any release or change in any security for the payment of this Note. No provision of this Note may be amended, waived or otherwise modified unless such amendment, waiver or other modification is in writing and is signed or otherwise approved by the Company and the Lender.
11.
Maximum Interest Rate. It is the intention of Lender hereof to conform strictly to applicable usury laws now or hereafter in force, and therefore all agreements between the Company and Lender are expressly limited so that in no contingency or event whatsoever, whether by reason of advancement of the proceeds hereof, acceleration of maturity of the unpaid principal balance hereof, or otherwise, shall the amount paid or agreed to be paid to Lender hereof, for the use, forbearance, or detention of the money to be advanced hereunder exceed the highest lawful rate permitted under the laws of the State of New York.
[Signature Page to Follow]
IN WITNESS WHEREOF, the undersigned has executed this Note as of the date first written above.
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COMPANY:
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Series Collection Drop 003, a Series of Otis Collection LLC
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By: Otis Wealth, Inc., as managing member
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By:
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/s/ Michael Karnjanaprakorn
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Name:
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Michael Karnjanaprakorn
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Title:
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Chief Executive Officer
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Address:
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335 Madison Avenue, 16th Floor
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New York, NY 10017
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THE FOREGOING NOTE IS HEREBY
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AGREED TO AND ACCEPTED BY THE UNDERSIGNED:
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Otis Wealth, Inc.
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By:
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/s/ Michael Karnjanaprakorn
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Name:
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Michael Karnjanaprakorn
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Title:
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Chief Executive Officer
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Address:
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335 Madison Avenue, 16th Floor
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New York, NY 10017
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