{"id":"court_ctb_1885_1","court":"CTB","case_no":"22-50073","doc_number":1885,"sub_number":1,"doc_type":"ORDER","filed_date":"2023-06-06","title":"Exhibit A ESCROW AGREEMENT","summary_zh":null,"summary_en":null,"body_en":"# **Exhibit A**\n\nCase 22-50073 Doc 1885-1 Filed 06/06/23 Entered 06/06/23 16:18:00 Page 2 of\n\n21\n\nESCROW AGREEMENT\n\nby and among HK International Funds Investments (USA) Limited, LLC, a Delaware limited liability company (\"HK USA\"), the Official Committee of Unsecured Creditors (the \"Committee\") appointed in the Bankruptcy Case, and U.S. Bank National Association, a national banking association, as escrow agent hereunder (\"Escrow Agent\" and, together with HK USA and the Committee, sometimes referred to individually as a \"Party\" or collectively as the \"Parties\").\n\nBACKGROUND\n\nin-possession in that certain bankruptcy case captioned In re: Ho Wan Kwok, Case No. 22-50073\n\nA. J The individual, Ho Wan Kwok (the \"Debtor\"), is presently the debtor-\n\nThis ESCROW AGREEMENT, dated as of April 28, 2022 (this \"Escrow Agreement\"), is\n\n(the \"Bankruptcy Case\") presently pending before the United States Bankruptcy Court, District of Connecticut, Bridgeport Division, the Honorable Julie A. Manning presiding (the \"Bankruptcy\n\nCourt\").\n\nB. HK USA and the Committee, as well as certain other parties thereto, have stipulated and agreed to the terms and conditions set forth in that certain [Proposed] Stipulated Order Compelling HK International Funds Investments (USA) Limited, LLC To Transport and Deliver That Certain Yacht, The \"Lady May\" (\"Stipulated Order\").\n\nC. Solely as between HK USA and the Committee, capitalized terms used herein but not otherwise defined shall have the meanings ascribed to such terms in the Stipulated Order.\n\nD. The Stipulated Order provides that, among other things, HK USA shall deposit the Escrow Funds (as defined below in Section 3) contemporaneously with the execution of this Escrow Agreement into a segregated escrow account to be held by Escrow Agent for the purpose of securing the performance of the \"Delivery Obligation\" as provided for in Stipulated Order.\n\nE. Escrow Agent has agreed to accept, hold, and disburse the Escrow Funds in accordance with the terms of this Escrow Agreement.\n\nF. HK USA has appointed HK USA Representative(s) (as defined below in Section 1) to represent HK USA for all purposes in connection with the Escrow Funds and this Escrow Agreement.\n\nG. J The Committee has appointed the Committee Representative (as defined below in Section 1) to represent the Committee for all purposes in connection with the Escrow Funds and this Escrow Agreement.\n\n### PROVISIONS\n\nNOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties, for themselves, their successors and assigns, hereby agree as follows:\n\n1. Definitions. The following terms shall have the following meanings when used herein:\n\na. \" \"Business Day\" means any day other than a Saturday or Sunday in the United States, or any day on which the Federal Reserve Bank located in New York, New York is closed.\n\nb. \"Committee Representative(s)\" shall mean the person(s) so designated on Schedule B-2 hereto or any other person designated in a writing signed by the Committee and delivered to Escrow Agent and the other Parties in accordance with the notice provisions of this Escrow Agreement, to act as the Committee's representative(s) under this Escrow Agreement.\n\nc. \"HK USA Representative(s)\" shall mean the person(s) so designated on Schedule B-1 hereto or any other person designated in a writing signed by HK USA and delivered to Escrow Agent and the Paties in accordance with the notice provisions of this Escrow Agreement, to act as HK USA's representative(s) under this Escrow Agreement.\n\nd. \"HK USA Certification\" shall mean the \"HK USA Certification\" as defined by and in accordance with the Stipulated Order.\n\ne. \"Escrow Account\" shall mean a segregated account, which shall secure the performance of the Delivery Obligation of HK USA as provided in the Stipulated Order.\n\nf. \" \"Escrow Period\" shall mean the period commencing on the date hereof and ending at the close of Escrow Agent's Business Day on the date all of the Escrow Funds have been distributed by Escrow Agent pursuant to the terms hereof.\n\n2. Appointment of and Acceptance by Escrow Agent. HK USA hereby appoints Escrow Agent to serve as escrow agent hereunder. Escrow Agent hereby accepts such appointment and, upon receipt by wire transfer of the Escrow Funds in accordance with Section 3 below, agrees to hold, invest and disburse the Escrow Funds in accordance with this Escrow Agreement.\n\n3. Deposit of Escrow Funds. Simultaneously with the execution and delivery of this Escrow Agreement, HK USA will transfer cash in the amount of Thirty-Seven Million (\\$37,000,000) Dollars by wire transfer of immediately available funds (such amount, together with any interest and other income thereon (collectively \"Earnings\"), the \"Escrow Funds\"), to an account designated by Escrow Agent (the \"Escrow Account\"). The Escrow Account will be maintained as a segregated and separately named and numbered account.\n\n#### Disbursements of Escrow Funds. 4.\n\na. Escrow Agent shall disburse the Escrow Funds at any time upon receipt of, and in accordance with, (i) the HK USA Certification, accompanied by a certificate executed by HK USA's counsel, Zeisler, P.C., Bridgeport, Connecticut, to the effect that such HK USA Certification has been duly submitted to the Escrow Agent in accordance with the Stipulated Order, upon which documents Escrow Agent shall conclusively rely, (ii) a final, non-\n\nappealable order entered by the Bankruptcy Court on or after July 16, 2022, directing delivery of the Escrow Funds, accompanied by a certificate executed by the Party requesting disbursement to the effect that such order of the Bankruptcy Court is a final, non-appealable order of the Bankruptcy Court, upon which certificate Escrow Agent shall conclusively rely (a \"Final Order\"), (iii) a final, non-appealable award, order, decision, judgment or ruling of an arbitrator or court of competent jurisdiction entered on or after July 16, 2022, determining the rights of HK USA, the Debtor and the Committee, creditors of the Debtor, including, but not limited to, Pacific Alliance Asia Opportunity Fund, L.P., an investment fund organized as an exempted limited partnership under the laws of the Cayman Islands (\"PAX\"), with respect to the Escrow Funds or a portion thereof and directing delivery of the Escrow Funds, accompanied by a certificate executed by the Party requesting disbursement to the effect that such award, order, decision, judgment or ruling of an arbitrator or court is a final, non-appealable award, order, decision, judgment or ruling of an arbitrator or court of competent jurisdiction upon which certificate Escrow Agent shall\n\nconclusively rely (a \"Final Determination\") or (iv) an order not subject to any stay entered by the\n\nBankruptcy Court on or after July 16, 2022, directing delivery of the Escrow Funds in accordance with Section 9 of the Stipulated Order, accompanied by a certificate executed by the Party requesting disbursement to the effect that such order of the Bankruptcy Court is an order of the Bankruptcy Court not subject to any stay, upon which certificate Escrow Agent shall conclusively rely (a \"Section 9 Order\"). The Party requesting disbursement shall provide a copy of its certificate simultaneously via e-mail to all other Parties in accordance with Section 15 of this Escrow Agreement and Escrow Agent shall, prior to any disbursement, confirm based solely upon its review of such e-mail full compliance with the notice obligations set forth in this sentence. Such HK USA Certification, Final Determination, Section 9 Order (or certificate accompanying such HK USA Certification, Final Order, Final Determination Section 9 Order), as the case may be, shall contain complete payment instructions, including wiring instructions or an address to which a check shall be sent.\n\nb. Prior to any disbursement, Escrow Agent shall have received reasonable identifying information regarding any recipient(s) of such disbursement(s) such that Escrow Agent may comply with its regulatory obligations and commercially reasonable business practices, including without limitation a completed original United States Internal Revenue Service (\"IRS\") Form W-9 or IRS Form W-8, as applicable. All disbursements of funds from the Escrow Funds shall be subject to the fees and claims of Escrow Agent pursuant to Section 10 and Section 11.\n\nprovided herein.\n\nc. Escrow Agent shall not disburse any Escrow Funds except as\n\n5. Suspension of Performance; Disbursement into Court. If, at any time, (a) there shall exist any dispute between HK USA and the Committee with respect to the holding or disposition of all or any portion of the Escrow Funds or any other obligations of Escrow Agent hereunder, (b) Escrow Agent is unable to determine, in good faith, the proper disposition of all or any portion of the Escrow Funds or Escrow Agent's proper actions with respect to its obligations hereunder, or (c) HK USA and the Committee have not, within sixty (60) calendar days of the furnishing by Escrow Agent of a notice of resignation pursuant to Section 7, appointed a successor escrow agent to act hereunder, then Escrow Agent may, in its sole discretion, take either or both of the following actions:\n\n15. Wire Instruction and Notices. All notices, approvals, consents, requests, and other communications hereunder shall be in writing (provided that any communication sent to Escrow Agent hereunder must be in the form of a document that is signed manually or by way of a digital signature provided by DocuSign) and shall be delivered: (a) by hand delivery, (b) by FedEx or other similar overnight courier service, or (c) via email (to the extent the recipient has an email address below) by way of a PDF attachment thereto. Notice made in accordance with this Section 15 shall be deemed delivered on (a) receipt if delivered by hand or email (proving proof of sending), or (b) the next Business Day after deposit with an overnight courier service if delivered for next day delivery. Such notices shall be sent to the applicable Party or Parties at the address specified below:\n\n#### If to HK USA, at:\n\nZeisler & Zeisler, P.C. 10 Middle St., 15th Fl. Bridgeport, CT 06604\n\nAttn .: Stephen M. Kindseth, Esq. and Aaron Romney, Esq.\n\nEmail:\n\nStephen M. Kindseth, Esq. (skindseth(@zeislaw.com) and\n\nAaron Romney, Esq. (aromney(@zeislaw.com)\n\nWith copy to:\n\nHo Wan Kwok c/o William R. Baldiga (WBaldiga@brownrudnick.com) and Jeffrey L. Jonas (Jonas@brownrudnick.com)\n\n### If to the Committee, at:\n\nPullman & Comley, LLC 850 Main Street Bridgeport. CT 06601 Attn: Irve Goldman\n\nEmail: Irve Goldman, Esq. (igoldman@pullcom.com) and Jonathan Kaplan, Esq. (jkaplan(@pullcom.com)\n\nWith copy to:\n\nSamuel Nunberg, snunberg(@winstonashe.com)\n\nAnd with copy to:\n\nPacific Alliance Asia Opportunity Fund, L.P. Email: jlewis@pagasia.com\n\nPeter Friedman, Esq. (pfriedman(a)omm.com)\n\nCarollynn H.G. Callari, Esq. (ccallari(@callaripartners.com)\n\n### If to Escrow Agent at:\n\nU.S. Bank National Association, as Escrow Agent Attn: Global Corporate Trust 185 Asylum Street, 27th Floor Hartford, CT 06103 Email: laurel.casasanta@usbank.com\n\nand to:\n\nU.S. Bank National Association Attn: Jeffrey Biehn Trust Finance Management, Escrow Dept. 60 Livingston Street St. Paul, MN 55107 Email: jeffrey.biehn@usbank.com and tfmcorporateescrowshared(@usbank.com\n\nwhose wire transfer instructions for the Escrow Funds are as follows:\n\n|       | RBK: U.S. Bank N.A                                                |\n|-------|-------------------------------------------------------------------|\n| ABA:  |                                                                   |\n|       | BNF: U.S. Bank TFM Escrow                                         |\n|       | 777 E. Wisconsin Avenue                                           |\n|       | Milwaukee, WI 53202-5300                                          |\n| Acct: |                                                                   |\n|       | FFC: HK International Funds Investments (USA) Limited, LLC Escrow |\n|       | #                                                                 |\n\nor to such other address as each Party may designate for itself by like notice and unless otherwise provided herein shall be deemed to have been given on the date received. The other Parties agree to assume all risks arising out of the use of electronic methods to submit documentation contemplated by Section 4 of this Escrow Agreement and any other instructions or directions to\n\n16. Amendment, Waiver and Assignment. None of the terms or conditions of\n\n21\n\nEscrow Agent, including without limitation the risk of Escrow Agent acting on unauthorized\n\nthis Escrow Agreement may be changed, waived, modified, discharged, terminated or varied in any manner whatsoever unless ordered by the Bankruptcy Court or such other court having jurisdiction over this Escrow Agreement and the Escrow Funds. No course of conduct shall constitute a waiver of any of the terms and conditions of this Escrow Agreement, unless such waiver is specified in writing, and then only to the extent so specified. A waiver of any of the terms and conditions of this Escrow Agreement on one occasion shall not constitute a waiver of the other terms of this Escrow Agreement, or of such terms and conditions on any other occasion. Except as provided in Section 8, this Escrow Agreement may not be assigned by any Party without\n\ninstructions, and the risk of interception and misuse by third parties.\n\nthe written consent of the other Parties.\n\n17. Severability. To the extent any provision of this Escrow Agreement is prohibited by or invalid under applicable Law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Escrow Agreement.\n\n18. Governing Law. This Escrow Agreement shall be construed and interpreted in accordance with the internal Laws of the State of Connecticut without giving effect to the conflict of laws principles thereof.\n\n19. Entire Agreement, No Third Party Beneficiaries. This Escrow Agreement constitutes the entire agreement between the Parties relating to the holding, investment and disbursement of the Escrow Funds and sets forth in their entirety the obligations and duties of Escrow Agent with respect to the Escrow Funds. Except as provided in Section 10, nothing in this Escrow Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Escrow Agreement.\n\n20. Execution in Counterparts, Facsimiles. This Escrow Agreement may be executed in two or more counterparts, which when so executed shall constitute one and the same agreement or direction. The delivery of copies of this Escrow Agreement or any Joint Written Direction and their respective signature pages by PDF or facsimile or other electronic transmission (including any electronic signature complying with the U.S. federal ESIGN Act of 2000, e.g., www.docusign.com) shall constitute effective execution and delivery as to the Parties and may be used in lieu of originals for all purposes.\n\n21. Termination. This Escrow Agreement shall terminate upon the distribution of all the Escrow Funds pursuant to any applicable provision of this Escrow Agreement.\n\n22. Dealings. Escrow Agent and any stockholder, director, officer or employee of Escrow Agent may buy, sell, and deal in any of the securities of HK USA and become pecuniarily interested in any transaction in which HK USA may be interested, and contract and lend money to HK USA and otherwise act as fully and freely as though it were not Escrow Agent under this Escrow Agreement. Nothing herein shall preclude Escrow Agent from acting in any other capacity for HK USA or for any other entity.\n\nthen as between HK USA and the Committee (but not as to the Escrow Agent), the terms of the Stipulated Order shall control and supersede any conflicting terms herein.\n\n28. No Right to Escrow Funds. Except as otherwise expressly set forth herein, HK USA and the Committee shall not have any right, title or interest in or possession of any of the Escrow Funds. Without limiting the generality of the foregoing: (i) HK USA and the Committee shall not have the ability to pledge, convey, hypothecate or grant a security interest in any portion of the Escrow Funds unless and until such portion of the Escrow Funds have been disbursed to such person in accordance with the provisions of this Escrow Agreement and (ii) until the Escrow Funds have been disbursed in accordance with the provisions of this Escrow Agreement, the Escrow Agent shall be in sole possession of the Escrow Funds and will not act or be deemed to act as custodian for any Party for purposes of perfecting a security interest therein.\n\n[Signature pages immediately follow.]\n\nIN WITNESS WHEREOF, the Parties have caused this Escrow Agreement to be executed as of the date first above written.\n\n## HK INTERNATIONAL FUNDS INVESTMENTS (USA) LIMITED, LLC:\n\nBy: Name: Mei Guo Title: Sole Member\n\nIN WITNESS WHEREOF, the Parties have caused this Escrow Agreement to be executed as of the date first above written.\n\n#### ESCROW AGENT:\n\nU.S. BANK NATIONAL ASSOCIATION as Escrow Agent\n\n್ಳಾ By:\n\nName: Laurel Casasanta Title: Vice President\n\nIN WITNESS WHEREOF, the Parties have caused this Escrow Agreement to be executed as of the date first above written.\n\n> THE OFFICIAL COMMITTEE OF UNSECURED CREDITORS, APPOINTED IN THE BANKRUPTCY CASE, IN RE: HO WAN KWOK, CASE NO. 22-50073(JAM)\n\nBy: Samuel Numberg\n\nName: Samuel Nunberg, Chairman\n\n#### SCHEDULE A\n\n#### Escrow Agent Compensation\n\n| Acceptance Fee         | \\$750.00           |\n|------------------------|--------------------|\n| Administration Fee     | \\$2,500.00         |\n| Trades/Investments     | \\$65.00 per trade* |\n| Wire Fees              | \\$35.00 each*      |\n| Counsel Fee            | Billed as incurred |\n| Out-of-Pocket Expenses | Billed as incurred |\n\n\\* Waived if funds are invested in U.S. Bank MMDA\n\n### Extraordinary Administration Expenses:\n\nFees for services not specifically set forth in this schedule will be determined by appraisal. Such services may include, but not be limited to, additional responsibilities and services incurred in connection with amendments or extensions of the governing documents, unusual time spent as in the case of litigation.\n\n#### Out-of-Pocket Expenses:\n\nAny out-of-pocket expenses incurred by us will be billed at cost. These items will include, but not be limited to, reasonable legal costs, travel expenses, document duplication and facsimiles, courier services, etc.\n\n#### Escrow Agent's Counsel:\n\nThe Escrow Agent has engaged Shipman & Goodwin LLP to represent it in this matter. Escrow Agent's reasonable Counsel fees and disbursements will be billed at cost directly by Shipman & Goodwin LLP.\n\n#### Payment Upon Execution of this Agreement:\n\nThe Acceptance Fee and the Administration Fee are due upon closing of the transaction without further invoice from the Escrow Agent to the responsible party. Wiring instructions for such payment are as set forth in Section 15. To the extent that fees are included in the incoming wire(s) of the escrow amounts and deposited in the Escrow Funds, the Escrow Agent is hereby authorized to debit such fees from the Escrow Funds.\n\n#### SCHEDULE A\n\n### Escrow Agent Compensation\n\n| Acceptance Fee         | \\$750.00           |\n|------------------------|--------------------|\n| Administration Fee     | \\$2,500.00         |\n| Trades/Investments     | \\$65.00 per trade* |\n| Wire Fees              | \\$35.00 each*      |\n| Counsel Fee            | Billed as incurred |\n| Out-of-Pocket Expenses | Billed as incurred |\n\n\\* Waived if funds are invested in U.S. Bank MMDA\n\n#### Extraordinary Administration Expenses:\n\nFees for services not specifically set forth in this schedule will be determined by appraisal. Such services may include, but not be limited to, additional responsibilities and services incurred in connection with amendments or extensions of the governing documents, unusual time spent as in the case of litigation.\n\n### Out-of-Pocket Expenses:\n\nAny out-of-pocket expenses incurred by us will be billed at cost. These items will include, but not be limited to, reasonable legal costs, travel expenses, document duplication and facsimiles, courier services, etc.\n\n### Escrow Agent's Counsel:\n\nThe Escrow Agent has engaged Shipman & Goodwin LLP to represent it in this matter. Escrow Agent's reasonable Counsel fees and disbursements will be billed at cost directly by Shipman & Goodwin LLP.\n\n### Payment Upon Execution of this Agreement:\n\nThe Acceptance Fee and the Administration Fee are due upon closing of the transaction without further invoice from the Escrow Agent to the responsible party. Wiring instructions for such payment are as set forth in Section 15. To the extent that fees are included in the incoming wire(s) of the escrow amounts and deposited in the Escrow Funds, the Escrow Agent is hereby authorized to debit such fees from the Escrow Funds.\n\n#### SCHEDULE C\n\n#### U.S. BANK NATIONAL ASSOCIATION Investment Authorization Form\n\n#### U.S. BANK MONEY MARKET DEPOSIT ACCOUNT\n\n#### Description and Terms\n\nThe U.S. Bank Money Market Deposit Account is a U.S. Bank National Association (\"U.S. Bank\") interest-bearing money market deposit account designed to meet the needs of U.S. Bank's Corporate Trust Escrow Group and other Corporate Trust customers of U.S. Bank. Selection of this investment includes authorization to place funds on deposit and invest with U.S. Bank.\n\nU.S. Bank uses the daily balance method to calculate interest on this account (actual/365 or 366). This method applies a daily periodic rate to the principal balance in the account each day. Interest is accrued daily and credited monthly to the account. Interest rates are determined at U.S. Bank's discretion, and may be tiered by customer deposit amount.\n\nThe owner of the account is U.S. Bank as agent for its Corporate Trust customers. U.S. Bank's Corporate Trust Escrow Group performs all account deposits and withdrawals. Deposit accounts are FDIC insured per depositor, as determined under FDIC Regulations, up to applicable FDIC limits.\n\nU.S. BANK IS NOT REQUIRED TO REGISTER AS A MUNICIPAL ADVISOR WITH THE SECURITIES AND EXCHANGE COMMISSION FOR PURPOSES OF COMPLYING WITH THE DODD-FRANK WALL STREET REFORM & CONSUMER PROTECTION ACT. INVESTMENT ADVICE, IF NEEDED, SHOULD BE OBTAINED FROM YOUR FINANCIAL ADVISOR.\n\n#### Automatic Authorization\n\nIn the absence of specific written direction to the contrary, U.S. Bank is hereby directed to invest and reinvest proceeds and other available moneys in the U.S. Bank Money Market Deposit Account. The customer(s) confirm that the U.S. Bank Money Market Deposit Account is a permitted investment under the operative documents and this authorization is the permanent direction for investment of the moneys until notified in writing of alternate instructions.","body_zh":null,"key_entities":["Je","Kwok","Ho Wan Kwok","CIPA","Guo"],"ecf_references":[],"word_count":3555,"status":"published","published_at":"2023-06-06 00:00:00","created_at":"2023-06-06","updated_at":"2026-07-07 07:56:58"}