Guo Wengui / Miles Guo — bankruptcy case · DECLARATION · ECF #57-2

METADATA

Defendant: Guo Wengui / Miles Guo / Ho Wan Kwok
Court: CTB
Case No.: 22-50073
ECF #: 57
Type: DECLARATION
Filed: 2022-03-01

FULL TEXT

# **EXHIBIT B**

Friedman Declaration

| UNITED STATES BANKRUPTCY COURT DISTRICT OF CONNECTICUT BRIDGEPORT DIVISION | | | |----------------------------------------------------------------------------------|---------------------|--| | In re: | | | | | Chapter 11 Case No. | | | Ho Wan Kwok1 | 22-50073 (JAM) | | | Debtor. | | | | | | | | Pacific Alliance Asia Opportunity Fund L.P., | | | | Movant, | | | | vs. | | | | Ho Wan Kwok, | | | | Respondent | March 1, 2022 | |

# **DECLARATION OF PETER FRIEDMAN IN SUPPORT OF MOTION OF PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P. FOR A DECLARATION OF INAPPLICABILITY OF THE AUTOMATIC STAY OR RELIEF FROM THE AUTOMATIC STAY PURSUANT TO SECTION 362(d)(2) OF THE BANKRUPTCY CODE**

I, Peter Friedman, declare:

1. I am an attorney admitted to practice law in the State of New York and

Washington, D.C. and am a partner at the law firm of O'Melveny & Myers, 7 Times Square,

New York, NY 10036, counsel for Pacific Alliance Asia Opportunity Fund L.P. ("PAX"). I

respectfully submit this Declaration in support of PAX's *Motion of Pacific Alliance Asia*

*Opportunity Fund L.P. for Entry of Order Confirming the Inapplicability of the Automatic Stay*

*or, in the Alternative, Relief from the Automatic Stay Pursuant to Section 362(d)(2) of the*

*Bankruptcy Code*.

1 The last four digits of the Debtor's taxpayer identification number are 9595.

2. Attached as Exhibit 1 is a true and correct copy of the February 9, 2022 Decision and Order of Justice Ostrager in *PAX v. Kwok, et al.*, Index No. 652077/2017 (N.Y. Sup. 2022), ECF No. 1181.

3. Attached as Exhibit 2 is a true and correct copy of the September 30, 2020 Decision and Order in *PAX v. Kwok, et al.*, Index No. 652077/2017 (N.Y. Sup. 2021), ECF No. 591.

4. Attached as Exhibit 3 is a true and correct copy of the October 15, 2020 Decision and Order in *PAX v. Kwok, et al.*, Index No. 652077/2017 (N.Y. Sup. 2021), ECF No. 630.

5. Attached as Exhibit 4 is a true and correct copy of the March 16, 2021 Decision and Order in *PAX v. Kwok, et al.*, Index No. 652077/2017 (N.Y. Sup. 2021), ECF No. 728.

6. Attached as Exhibit 5 is a true and correct copy of the February 9, 2022 Final Order of Civil Contempt in *PAX v. Kwok, et al.*, Index No. 652077/2017 (N.Y. Sup. 2021), ECF No. 1182.

7. Attached as Exhibit 6 is a true and correct copy of the September 15, 2020 Decision and Order in *PAX v. Kwok, et al.*, Index No. 652077/2017 (N.Y. Sup. 2021), ECF No. 549.

8. Attached as Exhibit 7 is a true and correct copy of the Complaint dated April 18, 2017, in *PAX v. Kwok, et al.*, Index No. 652077/2017 (N.Y. Sup. 2021), ECF No. 2.

9. Attached as Exhibit 8 is a true and correct copy of the February 3, 2021 Judgment of in *PAX v. Kwok, et al.*, Index No. 652077/2017 (N.Y. Sup. 2021), ECF No. 716.

10. Attached as Exhibit 9 is a true and correct copy of the Personal Guarantee, filed as Exhibit 23 to PAX's Statement of Material Facts in Support of PAX's Motion for Partial Summary Judgment, at KWOK000652, in *PAX v. Kwok, et al.*, Index No. 652077/2017 (N.Y.

-2-

Sup. 2020), ECF No. 455.

11. Attached as Exhibit 10 is a true and correct copy of screenshots from the website http (last accessed on February 28, 2022).

12. Attached as Exhibit 11 is a true and correct copy of PAX's Memorandum of Law in Support of Motion for Order of Contempt, dated December 24, 2020, in *PAX v. Kwok, et al.,* Index No. 652077/2017 (N.Y. Sup. 2020), ECF No. 689.

13. Attached as Exhibit 12 is a true and correct copy of Pax's Memorandum of Law in Further Support of Motion for Order of Contempt, dated January 27, 2021, in *PAX v. Kwok, et al.*, Index No. 652077/2017 (N.Y. Sup. 2021), ECF No. 709.

14. Attached as Exhibit 13 is a true and correct copy of the Executed Contract of Sale in *PAX v. Kwok, et al.*, Index No. 652077/2017 (N.Y. Sup. 2021), ECF No. 256.

15. Attached as Exhibit 14 is a true and correct copy of the September 22, 2021 Decision and Order in *PAX v. Kwok, et al.*, Index No. 652077/2017 (N.Y. Sup. 2021), ECF No. 904.

16. Attached as Exhibit 15 is a true and correct copy of the February 18, 2022 Court Notice in *PAX v. Kwok, et al.*, Index No. 652077/2017 (N.Y. Sup 2022), ECF. No. 1191.

*[ Signature follows on next page ]*

Dated: March 1, 2022 New York, New York Respectfully submitted,

## */s/ Peter Friedman*

Peter Friedman pfriedman@omm.com O'MELVENY & MYERS LLP Seven Times Square New York, NY 10036 Telephone: (212) 326-2000 Facsimile: (212) 326-2061

*Attorney for Pacific Alliance Asia Opportunity Fund L.P.*

Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 6 of 134

# **EXHIBIT 1**

# **SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY**

| PRESENT: | HON. BARRY R. OSTRAGER | PART | IAS MOTION 61EFM | |----------|------------------------------------------------------------------------------------|-----------------|----------------------------| | | Justice | | | | | ---------------------------------------------------------------------------------X | | | | | PACIFIC ALLIANCE ASIA OPPORTUNITY FUND | | | | L.P., | | INDEX NO. | 652077/2017 | | | Plaintiff, | | | | | - v - | MOTION DATE | | | | KWOK HO WAN, a/k/a KWOK HO, a/k/a GWO WEN | | 019 | | | GUI, a/k/a GUO WENGUI, a/k/a GUO WEN-GUI, a/k/a | MOTION SEQ. NO. | | | | WAN GUE HAOYUN, a/k/a MILES KWOK, a/k/a | | | | | HAOYUN GUO, GENEVER: HOLDINGS LLC, and | | DECISION + ORDER ON MOTION | | | GENEVER HOLDINGS CORPORATION, | | | | | | | |

Defendants. ---------------------------------------------------------------------------------X HON. BARRY R. OSTRAGER

In this 2017 case with 1,180 docket entries – almost all of which involve defendant Kwok Ho Wan's ("Kwok") efforts to avoid and deceive his creditors by parking his substantial personal assets with a series of corporations, trusted confidants, and family members -- this Court is called upon to determine whether the plaintiff, Pacific Alliance Asia Opportunity Fund L.P. ("PAX"), has met the burden of establishing that the Court should enter a final Order of Civil Contempt against Kwok. For the reasons that follow, this Court is simultaneously issuing a final Order of Civil Contempt.

PAX secured a judgment against Kwok in the sum of \$116,402,019.57 on February 3, 2021 (NYSCEF Doc. No. 716). Thereafter, PAX undertook a year's long effort to enforce its judgment by first identifying and then attempting to levy upon Kwok's assets in the United States. PAX encountered difficulty identifying assets over which Kwok exercised control because Kwok, who is a self-declared multi-billionaire, had secreted his assets in a maze of corporate entities and with family members. This scheme has enabled Kwok to assert that he has no assets despite his lavish lifestyle, which plaintiff has catalogued with material from social

#### **FILED: NEW YORK COUNTY CLERK 02/09/2022 04:33 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 1181 RECEIVED NYSCEF: 02/09/2022 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 8 of 134

media clippings, photographs and videotapes showing Kwok living large and boasting of his wealth, expensive homes, private plane, and yacht. As noted in the transcript of proceedings of February 2, 2022, this evidence is of little probative value, as the witnesses sponsoring this evidence have no first-hand knowledge of the authenticity of this "evidence" other than that it is accessible on various websites.

On February 2, 2022, this Court held an evidentiary hearing at which seven witnesses submitted direct testimony by affidavit and were made available for cross-examination. The hearing followed protracted proceedings by PAX to locate and levy upon assets owned by defendant Kwok. Those proceedings established, among other things, that Kwok exercised dominion and control over a yacht called the Lady May and resulted in a series of orders restraining Kwok and/or the registered owners of the yacht called Lady May from removing the Lady May from the Court's jurisdiction. The first such Order was issued on September 30, 2020, as described in detail *infra,* and was followed by an October 15, 2020 Order that restrained "Mr. Kwok and/or the registered owners of . . . the yacht, the 'Lady May'" from leaving the jurisdiction. (NYSCEF Doc. No. 630). As detailed *infra*, Kwok spent much of July, August and September of 2020 on the Lady May. Contemporaneously with the proceedings resulting in the September 30 and October 15, 2020 restraining Orders, Kwok and his cohorts made arrangement for the Lady May to sail to Florida in early October 2020 and, thereafter, to the Bahamas. On March 16, 2021, the Court issued a conditional order of civil contempt which directed that if Kwok failed to return the Lady May to the jurisdiction of this Court by May 31, 2021, he would be subject to a \$500,000.00 fine for each day that the Lady May remained outside the jurisdiction of this Court.

The Appellate Division, First Department, affirmed this Court's order holding Kwok in conditional civil contempt, finding that "the daily fine of \$500,000.00 was intended to strongly

encourage defendant to purge himself of the contempt, which, despite being permitted to accomplish, he has shown no interest in doing. . ." NYSCEF Doc. No. 953, 199 AD3d 423 (2021). The Appellate Division further held:

The motion court acted within its discretion in holding defendant in civil contempt, as plaintiff established by clear and convincing evidence that defendant violated a lawful, clear mandate of the court, of which he had knowledge, and that such violation resulted in prejudice to plaintiff's rights (*see El-Dehdan v El-Dehdan*, 26 NY3d 19, 29 [2015]; Judiciary Law § 753). … The motion court is instructed to proceed with an evidentiary hearing to resolve a dispute as to ownership and control of the yacht, and to assess appropriate penalties.

Pursuant to the Appellate Division's Order, this Court scheduled the February 2, 2022 evidentiary hearing to resolve the issue of whether Kwok beneficially owns and controls the yacht. Kwok failed to testify at the February 2, 2022 hearing, having previously invoked his Fifth Amendment right to decline to testify or respond to discovery requests relating to the Lady May in response to PAX's asset discovery efforts. PX 27, 28, 29, 30.1 This invocation of the Fifth Amendment notwithstanding, Kwok is an active litigant in multiple fora and he has given prior testimony in this and other proceedings.

Kwok also filed a complaint in this court captioned *Guo Wengui a/k/a Miles Kwok v Hong Zeng*, 157025/2020, which references a blog post from Freebeacon.com dated September 8, 2017 in which Kwok complains about "several incidents involving *his* 152-foot motor yacht, Lady May..." (Complaint ¶ 8, NYSCEF Doc. No. 001) ("the Zeng Complaint"). The Zeng Complaint describes Kwok as an "outspoken critic of the CCP" who has gone to great "lengths to expose the rampant corruption within the CCP and the Chinese government." The *Washington Post* reported that a former advisor to President Trump, Steve Bannon, was arrested in 2020 while on board the Lady May, and described Mr. Bannon as a friend and business

1 "PX" refers to Plaintiff's Trial Exhibits.

associate of Kwok, "a vocal online critic of the Chinese government who was once close with that country's intelligence service but is now wanted by authorities in Beijing on charges of fraud, blackmail and bribery." Other news outlets have reported that Mr. Bannon utilized Kwok's private jet on more than one occasion to travel to political rallies.

The testimony adduced at the hearing out of the mouths of defendants' witnesses clearly and convincingly demonstrated that Kwok beneficially owns and controls the Lady May and has utter contempt for this Court and the judicial process.

Kwok once was the sole shareholder of Hong Kong Investments Limited ("HK International"). The testimony adduced at the hearing established that in 2014 Kwok transferred a 100% interest in HK International to one Qu Guo Jiao for no consideration. Ms. Qu was a trusted business associate of the Kwok family. Thereafter, Kwok fled China and on February 23, 2015, HK International purchased the Lady May for £ 28 million GBP. No testimony adduced at the hearing established the source of funds to purchase the Lady May, but the uncontradicted testimony of Kwok's daughter Mei Guo established that Ms. Qu did not provide the funds to purchase the yacht. Tr. 44. 2 Consequently, a reasonable inference is that Kwok provided the funds to HK International which were used to purchase the yacht. It is undisputed that Ms. Qu transferred the ownership of the Lady May to Kwok's daughter, Mei Guo, on or around June 17, 2017, for \$1 or no consideration. Tr. 47. According to Ms. Guo's affidavit (NYSCEF Doc. No. 1162), Ms. Guo ultimately transferred ownership of the Lady May to the current title holder HK International Funds Investments (USA) Limited, LLC ("HK USA"). Ms. Guo further avers that she is the sole owner of HK USA, although all of the multi-million dollar annual expenses for the

2 "Tr." refers to the transcript of the evidentiary hearing, efiled at NYSCEF Doc. No. 1179.

Lady May, including fuel, maintenance, and the captain and crew are paid by Golden Spring (New York) Ltd. ("Golden Spring."), which is allegedly the Kwok family office.

At the hearing Ms. Guo testified that her brother had bought the Lady May for her. Tr. 46. The Court cannot credit this testimony as there is no evidence that Ms. Guo's brother was involved with the corporate transactions leading to Ms. Guo's acquisition of the title to the yacht. And, indeed, in response to a question from the Court, Ms. Guo acknowledged that her brother was not involved in any of the transfers that occurred before she acquired the yacht. Tr. 47.

Other testimony adduced at the hearing established that Kwok was repeatedly on the yacht every summer and that Ms. Guo was infrequently on the yacht. Trial Tr. 88:8-20. The Lady May's captain testified that Kwok was aboard the yacht for a significant portion of the months of July, August and September in 2020 and that this was consistent with his usual practice in the summer. Trial Tr. 87:24-88:7. Subsequent to this Court's September 30, 2020 restraining Order, in October 2020 the Lady May was sent to Florida and then the Bahamas for repairs and was subsequently dispatched to Italy in October 2021, purportedly at the direction of Golden Spring. Ms. Guo acknowledged that she was aware of both this Court's September 30, 2020 restraining Order and this Court's subsequent March 16, 2021 Order directing that the Lady May be returned to the Court's jurisdiction Tr. 55; 57-60; 62.

Ms. Guo testified that on the one hand, she directed the Lady May's itinerary but, on the other hand, testified that security for Kwok was such a concern that there would be no memorialization of any itinerary. Tr. 52. She further testified that when her father was on the yacht unaccompanied by her he had the freedom to choose wherever he wanted to go. Tr. 50. The fundamental issue, however, is who directed the yacht to be removed from this Court's jurisdiction in October 2020. Ms. Guo claims that in early October 2020 she no longer wished to

use the yacht and relayed that instruction to Golden Spring which, in turn, relayed her directive to the then captain of the ship, Captain Heaslop. Tr. 53.

Upon further questioning, Ms. Guo admitted that it was Golden Spring that advised her that the yacht needed to be moved to a warmer place. Tr. 55. Ms. Guo then repeated her retracted testimony that her brother had given her the yacht, and she stated that her brother is the sole owner of Golden Spring. Tr. 56. This testimony is not credible given that on September 30, 2020 the Court entered a temporary restraining order restraining Kwok

. . . from making or causing any sale, assignment, transfer, or interference with any property in which he has an interest, or from paying over or otherwise disposing of any debt now due or thereafter coming due to him, subject to the exceptions set forth in CPLR 5222 and in the ordinary course.

NYSCEF Doc. No. 591. Significantly, Captain Heaslop, the then Captain of the Lady May, testified that Mr. Kwok told Captain Heaslop that Kwok would no longer be a guest on the Lady May "a few days" before the Lady May departed for Florida in early October 2020 (and apparently after the issuance of this Court's September 30, 2020 Order). Tr. 89. Captain Heaslop also contradicted Ms. Guo's testimony that Ms. Guo gave Captain Heaslop instructions about the yacht's movement. Tr. 94.

Ms. Guo also acknowledged having subsequently read the Court's March 16, 2021 Order requiring the Lady May to be returned to the Court's jurisdiction by May 31, 2021 (NYSCEF Doc. No. 728). She further acknowledged that she had discussed the Order with her lawyer (whose services were paid for by Golden Spring) and that she had *ignored* the Order.

Russell Stockil, the Yacht Management Director for Yachtzoo SARL, testified that his company had a management contract with HK USA dated May 2021 and that he communicated with HK USA and Golden Spring, but never with Ms. Guo. Tr. 78. This was also the testimony of successor Captain Momchil Ivanov. Tr. 82. In short, Ms. Guo's testimony that she owns and

controls the Lady May cannot be credited in any respect. Ms. Guo appears to be a woman in her twenties, has introduced no evidence that she exercised dominion and control of the Lady May, and provided no confirmation that she came into possession of the Lady May, other than as a ruse to shield the Lady May from being levied upon by her father's creditors.

The machinations associated with the shell game Kwok has orchestrated with respect to the Lady May are of a piece with every other evasive and contemptuous act Kwok has taken during the five years this litigation has been pending, which is why there are 1,180 docket entries in this case.

The Court has the authority to hold Kwok in civil contempt under Judiciary Law

§ 753—and "to punish [him], by fine and imprisonment"—where, as here, the Court "expressly find[s] that [Kwok's] actions were calculated to or actually did defeat, impair, impede, or prejudice the rights or remedies of a party to a civil proceeding." *Oppenheimer v. Oscar Shoes, Inc.*, 111 A.D.2d 28, 28 (1st Dep't 1985) (citing N.Y. Judiciary Law § 753). Section 753 sets forth four requirements:

[T]o find that contempt has occurred in a given case, it must be determined that [1] a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. [2] It must appear, with reasonable certainty, that the order has been disobeyed . . . [3] Moreover, the party to be held in contempt must have had knowledge of the court's order, although it is not necessary that the order actually have been served upon the party . . . [4] Finally, prejudice to the right of a party to the litigation must be demonstrated.

*Fleetwood Fin. v Walter J. Dowd, Inc.*, 2016 WL 11546917, at \*2 (N.Y. Sup. Ct. Sept. 14, 2016) (citing *McCormick v Axelrod*, 59 N.Y.2d 574, 583, *amended*, 60 N.Y.2d 652 (1983)). The testimony adduced in this case satisfies each element of this standard. Indeed, the Appellate Division intimated as such. *See Pacific Alliance Asia Opportunity Fund L.P*., 199 A.D.3d 423 (1 st Dep't 2021) ("[PAX has] established by clear and convincing evidence that [Kwok] violated

a lawful, clear mandate of the court, of which he had knowledge, and that such violation resulted in prejudice to plaintiff's rights. . .").

The extent of PAX's ongoing "prejudice" turns on whether PAX has demonstrated that it could ultimately levy on the Lady May to satisfy its now centi-million dollar judgment against Kwok. Under CPLR § 5225, "money or other personal property" is leviable where the debtor holds the requisite "interest." To satisfy this requirement, "[i]t is not necessary that the judgment debtor have legal title to the property; a beneficial interest is sufficient." Weinstein, Korn & Miller, New York Civil Practice: CPLR ¶ 5225.09. "A beneficial interest is '[a] right or expectancy in something . . . as opposed to legal title to that thing.'" *Peterson v. Islamic Rep. of Iran*, 2013 WL 1155576, at \*30 (S.D.N.Y. Mar. 13, 2013) (citing Black's Law Dictionary, Interest (9th ed. 2009)). Kwok has much more than a beneficial interest in the Lady May. Not only does Kwok control the yacht, it appears he provided the funds to purchase it and he is the person who principally enjoys the use of the yacht.

The key factor is whether "the property benefitted [the beneficial owner] as if he had received the property directly." *Id*. (quoting *Exp.-Imp. Bank of U.S. v. Asia Pulp & Paper Co., Ltd.*, 609 F.3d 111, 120 (2d Cir. 2010); *see also Gliklad v. Chernoi*, 129 A.D.3d 604 (1st Dep't 2015) (upholding rejection of the judgment debtor's contention that he no longer held an interest in property because he transferred his interest to his daughters); *Colfin Bulls Funding B, LLC v. Ampton Invs., Inc*., 112 N.Y.S.3d 868 (Table), at \*2, 6 (N.Y. Sup. Ct. 2018) (granting judgment creditor's turnover motion notwithstanding judgment debtor's assertion that he transferred property to a corporation, because even if true, the evidence showed that he "retained control and/or an interest" in the property).

The evidence clearly and convincingly demonstrates that Kwok holds a beneficial interest in and controls the Lady May. In the latter connection, the Court takes notice of the filing of the Zeng case and draws an inference from all the record facts that Kwok has taken extraordinary steps to shield the yacht from his creditors. Moreover, Kwok's "family office" funds the yacht's day-to-day operations and maintenance.

The Court finds that Ms. Guo's testimony was not only internally inconsistent and dissembling, but also significantly undermined by the testimony of Captains Heaslop and Ivanov and Mr. Stockil, who stated that they have never taken yacht-related direction from Ms. Guo in the four and-a-half years that she directly or indirectly held title to the yacht.

In addition, it is established New York law that a party's invocation of the Fifth Amendment in a civil proceeding "may form the basis of an adverse factual inference." *DeBonis v. Corbisiero*, 155 AD2d 299, 300 (1st Dep't 1989). An adverse inference may be applied whenever a factual determination is necessary or permitted, including in the context of contempt motions. *S.E.C. v. Durante*, No. 01 Civ. 9056 (DAB) (AJP), 2013 WL 6800226, at \*10 (S.D.N.Y. Dec. 19, 2013), *aff'd*, 641 F. App'x 73 (2d Cir. 2016); *LiButti v. United States*, 107 F.3d 110, 120–25 (2d Cir. 1997).

Similarly, under the missing witness rule, "[a] trier of fact may draw the strongest inference that the opposing evidence permits against a witness who fails to testify." *Crowder v. Wells & Wells Equip., Inc.*, 11 A.D.3d 360, 361 (1st Dep't 2004) (applying adverse inference where defendant who failed to appear "would be knowledgeable about a material issue raised by the evidence").

PAX is entitled to an adverse inference under both of these avenues. Kwok has invoked his Fifth Amendment right against self-incrimination in response to PAX's post-judgment discovery, including in response to requests specifically about the Lady May. While Kwok

argues that an adverse inference is not appropriate here because "[o]nly after a threshold showing that a piece of evidence is authentic is a party obligated to respond to it," this contention fails of its own weight. PAX has proffered substantial admissible evidence that Kwok has the requisite beneficial interest in and control of the Lady May. *See People v. Primo*, 96 N.Y.2d 351, 753 N.E.2d 164 (2001) (explaining that evidence is probative if it "tends to prove the existence or non-existence of a material fact, *i.e.*, a fact directly at issue in the case").

As of February 7, 2022, the Lady May has remained outside the jurisdiction of the Court for 268 days. Based on the daily fine of \$500,000 imposed by this Court and affirmed by the Appellate Division, the resultant fine would amount to \$134,000,000.00, which is more than PAX's outstanding judgment of nearly \$120 million and a multiple of the GBP £ 28 million purchase price of the Lady May. Nevertheless, if billionaire litigants can simultaneously seek to use Court process in New York and elsewhere in the United States while knowingly and intentionally violating Court orders, there is no rule of law. Kwok must remit \$134,000,000.00 to PAX within five business days of the service of this Court's Order with Notice of Entry. The Court is prepared to exercise its full authority under Judiciary Law § 753 in the event the fine is not timely paid.

Dated: February 9, 2022

**CHECK ONE: CASE DISPOSED** X **NON-FINAL DISPOSITION** X **GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE**

Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 17 of 134

# **EXHIBIT 2**

#### **FILED: NEW YORK COUNTY CLERK 09/30/2020 04:44 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 591 RECEIVED NYSCEF: 09/30/2020 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 18 of 134

# **SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY**

| PRESENT: | HON. BARRY R. OSTRAGER | PART | IAS MOTION 61EFM | |----------|---------------------------------------------------------------------------------------------------------------------------------------|-----------------|----------------------------| | | Justice | | | | | ---------------------------------------------------------------------------------X PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P., | | | | | Plaintiff, | INDEX NO. | 652077/2017 | | | - v - | MOTION DATE | | | | KWOK HO WAN, a/k/a KWOK HO, a/k/a GWO WEN GUI, a/k/a GUO WENGUI, a/k/a GUO WEN-GUI, a/k/a | MOTION SEQ. NO. | 011 | | | WAN GUE HAOYUN, a/k/a MILES KWOK, a/k/a HAOYUN GUO, GENEVER HOLDINGS LLC, and GENEVER HOLDINGS CORPORATION, | | DECISION + ORDER ON MOTION | | | Defendants. | | |

# ---------------------------------------------------------------------------------X HON. BARRY R. OSTRAGER

On September 30, 2020, the Court held oral argument via Skype, with counsel for all parties. On consent, the Court entered a temporary restraining order restraining Mr. Kwok from making or causing any sale, assignment, transfer, or interference with any property in which he has an interest, or from paying over or otherwise disposing of any debt now due or thereafter coming due to him subject to the exceptions set forth in CPLR 5222 and in the ordinary course.

The Court will hear further argument, and if necessary, conduct an evidentiary hearing, on October 15, 2020 at 10:00 am via Microsoft Teams. Defendants must file their opposition to Motion 011 by October 13, 2020 at 4:00 pm. Plaintiff must file their reply, if any, by October 14, 2020 at 4:00 pm. If either party intends to call witnesses, they must exchange witness lists with one another and e-file a witness list with the Court no later than October 13, 2020.

Additionally, the Court will hear oral argument on Plaintiff's Motion 008 for damages and attorney's fees on October 15, 2020 at 10:00 am via Microsoft Teams. Defendants must file

their opposition to Motion 011 by October 13, 2020 at 4:00 pm and Plaintiff must file their reply,

if any, by October 14, 2020 at 4:00 pm.

Any violation of the temporary restraining order issued today shall be considered

criminal contempt.

Dated: September 30, 2020

![](_page_18_Figure_7.jpeg)

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# **EXHIBIT 3**

#### **FILED: NEW YORK COUNTY CLERK 10/15/2020 02:52 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 630 RECEIVED NYSCEF: 10/15/2020 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 21 of 134

# **SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY**

| PRESENT: HON. BARRY R. OSTRAGER | | PART | IAS MOTION 61EFM | |------------------------------------|------------------------------------------------------------------------------------|-----------------|----------------------------| | | Justice | | | | | ---------------------------------------------------------------------------------X | | | | | PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P., | INDEX NO. | 652077/2017 | | | Plaintiff, | MOTION DATE | | | | - v - | | | | | KWOK HO WAN, a/k/a KWOK HO, a/k/a GWO WEN GUI, a/k/a | MOTION SEQ. NO. | 011 | | | GUO WENGUI, a/k/a GUO WEN-GUI, a/k/a WAN GUE | | | | | HAOYUN, a/k/a MILES KWOK, a/k/a HAOYUN GUO, | | | | | GENEVER HOLDINGS LLC, and GENEVER HOLDINGS | | DECISION + ORDER ON MOTION | | CORPORATION, | | | | | | Defendants. | | | | | ---------------------------------------------------------------------------------X | | |

# HON. BARRY R. OSTRAGER

On October 15, 2020, the Court held oral argument via Microsoft Teams, with counsel for all parties participating, on plaintiff's motion for a post-judgment restraining order pursuant to CPLR 5229 (motion 011). On September 15, 2020, the Court granted summary judgment in favor of plaintiff on liability, with damages and the issue of whether the corporate defendants are defendant Kwok's alter egos to be determined at a later date. NYSCEF Doc. 549.

Plaintiff's motion for a restraining order pursuant to CPLR 5229 is granted. Mr. Kwok is restrained from making or causing any sale, assignment, transfer, or interference with any property in which he has an interest, whether directly or indirectly, and from paying over or otherwise disposing of any debt now due or thereafter coming due to him subject to the exceptions set forth in CPLR 5222, in accordance with the proceedings on the record of October 15, 2020.

Specifically, Mr. Kwok and/or the registered owners of (1) the Residence at the Sherry-Netherland Hotel and (2) the yacht, "the Lady May" are restrained from making or causing any sale, assignment, transfer, or interference with those assets.

![](_page_21_Picture_0.jpeg)

Plaintiff is entitled, under CPLR 5229, to take discovery into the above-identified assets as well as to seek discovery into any other assets that Mr. Kwok may own, whether directly or indirectly.

The next appearance will be a pre-trial conference on November 12, 2020 at 2:00 pm via Microsoft Teams.

October 15, 2020 **\$SIG\$ DATE BARRY R. OSTRAGER, J.S.C. CHECK ONE: CASE DISPOSED** X **NON-FINAL DISPOSITION** X **GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE**

Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 23 of 134

# **EXHIBIT 4**

# **SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY**

| PRESENT: | HON. BARRY R. OSTRAGER | PART | IAS MOTION 61EFM | | | |----------------------------------------|------------------------------------------------------------------------------------|--------------------------------|----------------------------|--|--| | | | Justice | | | | | | ---------------------------------------------------------------------------------X | | | | | | | PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P., | INDEX NO. | 652077/2017 | | | | | Plaintiff, | | | | | | | - v - | MOTION DATE MOTION SEQ. NO. | 012 | | | | KWOK HO WAN, a/k/a KWOK HO, et al., | | | DECISION + ORDER ON MOTION | | | | | Defendants. | | | | | | | ---------------------------------------------------------------------------------X | | | | |

# HON. BARRY R. OSTRAGER

Before the Court is Motion 012 by Plaintiff Pacific Alliance Asia Opportunity Fund L.P.

("PAX") to hold Defendant Kwok Ho Wan ("Kwok") in contempt. This Court previously issued

three orders restraining Kwok's interest in the yacht called the "Lady May." On September 30,

2020, this Court entered a Temporary Restraining Order (the "TRO") preventing Kwok from,

among other things, "interference with any property in which he has an interest." NYSCEF Doc.

No. 591. In issuing the TRO, the Court noted that "[a]ny violation . . . shall be considered

criminal contempt." *Id.* On October 15, 2020, the Court issued the Order, which granted PAX's

motion under CPLR 5229 and expressly restrained the Lady May:

Mr. Kwok is restrained from making or causing any sale, assignment, transfer, or interference with any property in which he has an interest, whether directly or indirectly, and from paying over or otherwise disposing of any debt now due or thereafter coming due to him subject to the exceptions set forth in CPLR 5222, in accordance with the proceedings on the record of October 15, 2020. Specifically, Mr. Kwok and/or the registered owners of (1) the Residence at the Sherry-Netherland Hotel and (2) the yacht, "the Lady May" are restrained from making or causing any sale, assignment, transfer, or interference with those assets.

NYSCEF Doc. No. 630. Counsel for Kwok specifically asked the Court whether Kwok could move the yacht from the jurisdiction for licensing purposes. The Court denied this request at the time and directed counsel to make a motion if necessary.

Plaintiff brings this motion because, despite these orders, the Lady May has been moved outside of the United States.

The Court has reviewed the extensive submissions of the parties in connection with PAX's motion to hold Kwok in contempt. Passing the issue of whether any of Mr. Kwok's attorneys have violated the Code of Professional Conduct, it is clear that there has been an intolerable amount of gamesmanship, dissembling. and deceit in proceedings before this Court relating to the whereabouts and ownership of the yacht "Lady May."

The defendant claims that the yacht was removed from the jurisdiction of this Court for "ordinary course" "winter maintenance" notwithstanding restraints imposed on the movement of the yacht by the Court. Rather than catalogue the many "shell games" defendant Kwok has engaged in with the assistance of counsel who should know better, the Court grants the motion for contempt to the following extent: For every day that the yacht is outside the jurisdiction of this Court after May 15, 2021, defendant Kwok will be fined \$500,000. The other restraints relating to the ownership and control of the yacht remain in place.

A status conference remains scheduled for May 4, 2021 at 10:00 am.

Dated: March 16, 2021

| CHECK ONE: | | CASE DISPOSED | | X | NON-FINAL DISPOSITION | | |-----------------------|---|----------------------------|--------|---|-----------------------|-----------| | | X | GRANTED | DENIED | | GRANTED IN PART | OTHER | | APPLICATION: | | SETTLE ORDER | | | SUBMIT ORDER | | | CHECK IF APPROPRIATE: | | INCLUDES TRANSFER/REASSIGN | | | FIDUCIARY APPOINTMENT | REFERENCE |

Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 27 of 134

# **EXHIBIT 5**

### SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

PACIFIC ALLIANCE ASIA OPPORTUNITY FUNDL.P.,

Plaintiff,

KWOKHO WAN, a/k/a KWOK HO, a/k/a GWO WEN GUI, a/kla GUO WENGUI, a/kla GUO WEN GUI; a/k/a WAN GUE HAOYUN, a/kla MILES KWOK, a/kla HAOYUN GUO, GENEVER HOLDINGS CORPORATION, and GENEVER HOLDINGS LLC,

Defendants.

Index No: 652077/2017

Hon. Barry R. Ostrager

**[Fl4QjL08ED]** FINAL ORDER OF CIVIL CONTEMPT

Motion Sequence No. 19

WHEREAS this Co~rt's conditional order of civil contempt, dated March 16,2021, directed that if Defendant Kwok Ho Wan ("Kwok") failed to return the Lady May yacht (the "Lady May") to the jurisdiction of this Court by May 15, 2021, he would be subject to a \$500,000 fine-for each day that the Lady May remained outside the jurisdiction;-

**FILED: NEW YORK COUNTY CLERK 02/09/2022 04:33 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 1182 RECEIVED NYSCEF: 02/09/2022

Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 28 of 134

WHEREAS the Lady May was not returned to the jurisdiction by May 15, 2021;

WHEREAS on November 4,2021, the Appellate Division's First Department affIrme,d this Court's order holding Kwok in conditional civil contempt, finding that "the daily fine of .\$500,000 was intended to strongly encourage defendant to purge himself of the contempt, which, despite being permitted two months to accomplish, he has shown no interest in doing," and \_instructing this Court to proceed with an evidentiary hearing to resolve a dispute as to ownership and control of the yacht, and to assess appropriate penalties;

WHEREAS Kwok to date has failed to return the Lady May to the jurisdiction;

**FILED: NEW YORK COUNTY CLERK 02/09/2022 04:33 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 1182 RECEIVED NYSCEF: 02/09/2022

Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 29 of 134

WHEREAS both Kwok and the registered title holder of the Lady May, HK International (q)peCt.r~(i by *co~V\\$e \* Funds Investments (USA) Limited, LLC, were pregent at the hearini proffered evidence and were represented by counsel; and

WHEREAS, based on the evidence adduced at the hearing, the Court determines that

PAX has clearly and convincingly established that Kwok has a beneficial interest in and control

. h L d M *AS se--'- r-*--l\_ I "" ~ Cr, \A.,/t \:> 'R-'v;,VIMt *Uf* '1, *;:).0* 'd---1-. over tea y aYj "'- ., .~ " ~ ( \)~ C\-'> \'c)v\ ltA,Ad. CJv~ . . Accordingly, IT IS HEREBY ORDERED, ADJUDGED AND DECREED THAT:

- 1. Kwok has violated New York Judiciary Law 9753 and is civil contempt of this Court's orders. - 2. Kwokis directed to tender immediate payment to PAX in the amount of \$134,000,000, representing \$500,000 for each day between May 15,2021 and February 7,2022. - "3. The amount due to PAX shall continue to accrue at t~~rate of \$500,000 per day until Kwok returns the Lady May to the jurisdiction, which additional accrual shall begin ten . ~ e'fv,'(;Il.. ~ *N* f.,' ..L.. *'C* iv business days from t e Bltte of this Order, "'VJ1'~. *i>* u... *crl v* 11 *Y* I - 4. Payment of the amount set forth in paragraph 2 above shall be made to PAX within five se...rv *,'(JL , .*f f..rv business days of the ~ of this Order, w I~ No-t-t (...L. *t!) .* GVt,. *I .*

;:", ' 1'l;::t"l 5. The Court shall exercise its full authority under NeWYork Judiciary Law 9 753 in the event the fine is not timely paid to PAX.

It is SO ORDERED this ?-'" ~ day of *Ii b VYt a* '='Cd' ,2022. R. OSTRAGERJ...\$.C. **A.OSTRAGER .** ,,~SC;}

2 of 2

Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 30 of 134

# **EXHIBIT 6**

134

# **SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY**

| PRESENT: | HON. BARRY R. OSTRAGER | PART | IAS MOTION 61EFM | |----------|--------------------------------------------------------------------------------------------------------------|----------------------------|------------------| | | Justice | | | | | ---------------------------------------------------------------------------------X | | | | | PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P., | | | | | | INDEX NO. | 652077/2017 | | | Plaintiff, | | | | | - v - | MOTION DATE | | | | KWOK HO WAN, a/k/a KWOK HO, a/k/a GWO WEN GUI, a/k/a GUO WENGUI, a/k/a GUO WEN-GUI, a/k/a WAN GUE HAOYUN, | MOTION SEQ. NO. | 007 | | | a/k/a MILES KWOK, a/k/a HAOYUN GUO, GENEVER HOLDINGS LLC, and GENEVER HOLDINGS CORPORATION, | DECISION + ORDER ON MOTION | |

Defendants.

# HON. BARRY R. OSTRAGER

---------------------------------------------------------------------------------X

Before the Court is plaintiff Pacific Alliance Asia Opportunity Fund L.P.'s ("Pacific Alliance") motion for partial summary judgement on Count I of the Amended Complaint against defendant Kwok Ho Wan a/k/a Miles Kwok ("Kwok") and defendant Kwok's cross-motion for reargument on motion 006. The Court heard oral argument via Skype on September 14, 2020. Based on the papers submitted and the arguments made on the record of September 14, 2020, and for the reasons that follow, Pacific Alliance's motion for partial summary judgment is granted, and Kwok's motion for reargument on motion 006 is denied.

# **Background**

In 2008, Pacific Alliance entered into an agreement with Spirit Charter Investment Limited ("Spirit"), one of Kwok's business entities, under which Pacific Alliance provided Spirit with a loan facility in the principal amount of \$30 million. Kwok executed a personal Guarantee of the loan. In September 2009, Spirit executed a deed under which Shiny Times Holdings Limited ("Shiny Times"), a business listing Kwok as its sole shareholder and director, assumed

the loan debt that Spirit owed to Pacific Alliance. Kwok again executed a personal guarantee in favor of Pacific Alliance to secure Shiny Times' repayment obligation.

In March 2011, Pacific Alliance and Shiny Times entered into a new loan facility ("2011 Loan Facility") that expressly superseded and replaced the 2009 Deed of Settlement and a 2010 Letter Agreement. Simultaneously, Kwok entered into a new personal guarantee ("2011 Personal Guarantee") which expressly superseded the 2009 Guarantee. The 2011 Personal Guarantee is the operative agreement in this action.

In April 2013, the parties entered into a Deed of Settlement, whereby the outstanding loan amount would no longer be due and owing to Pacific Alliance if Pacific Alliance purchased certain apartments from Beijing Pangu Investment Inc. ("Beijing Pangu"), another Kwok business entity, and Shiny Times' made certain installment payments to Pacific Alliance. Beijing Pangu was required to satisfy ten conditions precedent in connection with the sale and purchase of each of the apartments by Pacific Alliance. If any such condition was not satisfied by June of 2013, the Deed of Settlement would be terminated in its entirety. Pacific Alliance and Kwok subsequently executed four extensions of the Deed of Settlement, changing only the date by which the conditions precedent needed to be satisfied. The latest Deed of Settlement required that the conditions precedent be satisfied by June of 2015.

Pacific Alliance seeks summary judgment on Count I of the Amended Complaint which alleges that Kwok failed to satisfy the conditions precedent by June of 2015 and thus, per the terms of the agreement, the Deed of Settlement was terminated in its entirety and the 2011 Personal Guarantee again controlled.

The Court recently held, in response to Pacific Alliance's motion for sanctions, that Kwok was judicially estoppel from challenging the authenticity of documents that Kwok had

NYSCEF DOC. NO. 549 RECEIVED NYSCEF: 09/15/2020 134

> previously sponsored in proceedings before this Court. *See* NYSCEF Doc. No. 404. Specifically, at his November 2019 deposition, Kwok denied having signed several agreements discussed above, including the 2011 Loan Facility, the 2011 Personal Guarantee, the 2013 Deed of Settlement, and the four Supplemental Deeds. Kwok testified that the documents were forgeries. On the motion for contempt, Pacific Alliance argued, and the Court found, that these denials were inconsistent with the positions Kwok had taken throughout the duration of this 2017 case. As such, the Court held that Kwok was judicially estopped from challenging the authenticity of these agreements in opposition to Pacific Alliance's motion for summary judgment or at trial.

## **Kwok's Cross-Motion**

Turning first to defendant Kwok's cross-motion for leave to reargue the Court's Decision and Order dated July 7, 2020 (NYSCEF Doc. No. 404), this motion is denied. As stated above, the Court held that Kwok was judicially estopped from challenging the authenticity of the agreements that Kwok had previously sponsored as authentic before the Court in this proceeding. Kwok argues that the Court misapprehended the law in reaching this holding. This Court rejects that argument in its entirety.

At the outset of this case, Kwok moved to dismiss this action on *forum non conveniens* grounds (motion 001). The Court granted Kwok's motion (NYSCEF Doc. No. 102), which decision was subsequently reversed and remitted by the First Department (NYSCEF Doc. 121). In making his motion to dismiss, Kwok argued that the contracts at issue were governed by Hong Kong law. Specifically, Kwok attached to his motion "true and correct" copies of several agreements among the parties including the 2011 Personal Guarantee (NYSCEF Doc. No. 17) and the 2013 Deed of Settlement (NYSCEF Doc. No. 18), which he now contests.

#### NYSCEF DOC. NO. 549 RECEIVED NYSCEF: 09/15/2020 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 34 of 134

Kwok now argues that because the thrust of his argument on the motion to dismiss and the Court's decision related to *forum non conveniens,* (1) he is not actually changing his position on the authenticity of the documents, and (2) the Court did not actually determine the authenticity of the documents. This argument is incorrect. Kwok's assertion that the case should have been dismissed in favor of a resolution in Hong Kong *because the agreements on their face are governed by Hong Kong law* necessarily required an argument by Kwok, and an acceptance by the Court, that the agreements were authentic and not forgeries, as Kwok now claims.

Kwok further argues that in any event judicial estoppel cannot apply because there was no final determination on the merits on the issue of whether the contracts were authentic, because the First Department reversed this Court's decision on the motion to dismiss. This argument is not supported by the case law in the First Department. Judicial estoppel is an equitable doctrine used to prevent a party from changing its position during the same litigation. *See e.g. Nestor v. Britt*, 270 A.D.2d 192, 193 (2000) ("[u]nder the doctrine of judicial estoppel, or estoppel against inconsistent positions, a party is precluded from inequitably adopting a position directly contrary to or inconsistent with an earlier assumed position in the same proceeding."). Indeed, because judicial estoppel is used to prevent parties from changing their position in the same litigation – a final determination *cannot* be a prerequisite for judicial estoppel. *See id* (precluding the landlord from relying on a different lease on appeal than had been relied on at the trial-court level in the same proceeding).

Additionally, the Court notes that Kwok never pleaded that the documents were forgeries in either of his Answers, which is an affirmative defense. *See e.g., Proner v. Julien & Schlesinger, P.C*., 214 A.D.2d 460, 461 (First Dept. 1995) (granting a motion for leave to amend the pleadings to add affirmative defense of forgery); *Great Am. Ins. Co. v. Giardino,* 71 A.D.2d

836, 836 (Fourth Dept. 1979) (holding that "proof of defendants' handwriting was material in light of their affirmative defense of forgery").

Kwok's recent, uncorroborated assertion that the agreements are forgeries is inconsistent with his prior position in this litigation – and therefore provides an appropriate basis for judicial estoppel. Accordingly, Kwok's cross-motion for reargument is denied, and the agreements previously sponsored by Kwok are accepted as authentic for the purpose of evaluating plaintiff's motion for partial summary judgment.

# **Pacific Alliance's Motion**

The Court is granting summary judgment in favor of plaintiff Pacific Alliance holding defendant Kwok liable for breach of contract under the 2011 Personal Guarantee. By the plain terms of the 2013 Deed of Settlement, the failure to satisfy the conditions precedent to the settlement by June 30, 2015, would result in reverting to the 2011 Personal Guarantee being in full force and effect. *See* NYSCEF Doc. 461.

> **Clause 3.4:** Reversion of the Facility Letter after 31 July 2013. In the event that all conditions precedent set out in Clause 3.2 for all Apartments have not been satisfied by 31 July 2013 (or such later date agreed by the Parties in writing[ here, 30 June 2015, per the fourth and final supplemental Deed of Settlement]), **then the entire settlement as contemplated under this Deed shall be terminated and the Parties acknowledge that the Facility Letter shall revert and be in full force and effect immediately** after 31 July 2013 (or such later date agreed by the Parties in writing) and Shiny Times shall be obliged to settle the Total Outstanding Amount and any interest accrued thereon in accordance with the terms and conditions of the Facility Letter. (emphasis added).

*See also* NYSCEF Doc. No. 472 "Fourth Supplemental Deed of Settlement" (changing the date to satisfy the conditions precedent to "30 June 2015").

Plaintiff Pacific Alliance has shown, and defendant Kwok has failed to refute, that several of the conditions precedent in the 2013 Deed of Settlement were not fulfilled. Namely, defendant Kwok failed to deliver clean title, failed to provide plaintiff with an invoice for the

#### NYSCEF DOC. NO. 549 RECEIVED NYSCEF: 09/15/2020 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 36 of 134

purchase of the apartments, failed to provide plaintiff with evidence regarding the payment of all relevant taxes and charges in connection with the sale and purchase of the apartments, and failed to deliver the House Ownership Certificates of any of the Apartments to plaintiff. *See* NYSCEF Doc. No. 461 ¶ 3.2 (e)(g)(h)(i).

Kwok does not dispute that these conditions were never satisfied. Instead, in opposition, Kwok argues that plaintiff Pacific Alliance failed to mitigate its damages when it allegedly did not act on an opportunity to potentially seize the three apartments with the aid of Beijing police.

First, even taking Kwok's version of events as true, mitigation speaks to damages, not liability, and thus these events would not preclude partial summary judgment on liability. Second, as demonstrated by the documentary evidence sponsored by both parties, the alleged opportunity to take possession of the three apartments with the aid of police only came up *after* June 2015, and thus the 2013 Deed of Settlement had already been nullified in its entirety and the 2011 Personal Guarantee was in full force and effect. Third, Kwok has never pleaded, in either of his Answers, mitigation, which is an affirmative defense. *See e.g. Eskenazi v. Mackoul,* 72 A.D.3d 1012, 1014 (2d Dep't 2010) (referring to "the affirmative defense of failure to mitigate damages").

Finally, under Hong Kong law, a party is only required to act *reasonably* to mitigate damages. *See* Affirmation of Vishal Prakash Melwani at ¶17.2 (NYSCEF Doc. No. 535) *and see* Affirmation of Phillip Loukis Georgiou (NYSCEF Doc. No. 498) at ¶¶ 18.3 and 21. The record currently indicates that to take advantage of the alleged offer of the Beijing Police, Pacific Alliance would have needed to pay RMB35m [approximately USD\$5.5 million] per unit to get them released. *See* NYSCEF Doc. No. 519 PAX-KWOK-017288. The prospect of paying approximately \$16 million for assets that the parties had agreed would be transferred free of

NYSCEF DOC. NO. 549 RECEIVED NYSCEF: 09/15/2020 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 37 of 134

charge to settle a debt would likely not have qualified as a *reasonable* opportunity to mitigate

damages under Hong Kong law. Nevertheless, the Court reserves decision as to the issue of

damages.

Under the 2011 Personal Guarantee

- Kwok "irrevocably and unconditionally. . . guarantee[d] to PAX [Pacific Alliance] the due and punctual payment of [Shiny Times'] [o]bligations [under the 2011 Facility] and agree[d] that promptly on PAX's demand he will pay to PAX all [o]bligations that are due but unpaid"; - Kwok "irrevocably and unconditionally agree[d] (as primary obligor and not only as surety) to indemnify and hold harmless PAX on demand from and against any and all losses incurred by PAX as a result of any [o]bligation [of Shiny Times] being or becoming void, voidable, unenforceable, or ineffective as against Shiny Times for any reason whatsoever . . . ."; - Kwok agreed that his "obligations . . . under this Guarantee shall constitute and be continuing obligations which shall not be released or discharged by any intermediate payment of [Shiny Times'] [o]bligations [under the 2011 Loan Facility] or any of them, shall continue in full force and effect until the unconditional and irrevocable payment and discharge in full of [those o]bligations and are in addition to and independent of, and shall not prejudice or merge with, any other security (or any right of setoff) which PAX may at any time hold in respect of [those o]bligations or any of them;" - PAX was permitted to seek recourse against Kwok as primary obligor without first enforcing the debt against Shiny Times; and - Kwok agreed to a catchall waiver of any defenses based on "any other act, event or omission which might operate to discharge, impair or otherwise affect the Guarantor or any of the Obligations or any of the rights, powers, and remedies conferred upon [PAX LP] by this Guarantee or by law."

Kwok does not argue that either he or Shiny Times made any payments under the 2011 Loan

Facility or the 2011 Personal Guarantee to satisfy the debt. Accordingly, the Court finds Kwok

liable for breach of the 2011 Personal Guarantee.

# **Conclusion**

The remaining issue in the action – Count II of the Amended Complaint – seeks to hold

two of Kwok's companies—Genever Holdings LLC and Genever Holdings Corporation— liable

for Kwok's debt to Pacific Alliance as alter egos. This action was scheduled for a jury trial on October 5, 2020. Due to the Covid-19 pandemic, the Court is unable to have a jury trial on that date and the trial is rescheduled for January 15, 2021.

Accordingly, it is hereby,

ORDERED that defendant Kwok's cross-motion for reargument is denied; and it is further

ORDERED that plaintiff's motion for partial summary judgment on Count I of the Amended Complaint is granted in favor of Pacific Alliance Asia Opportunity Fund L.P. and against Kwok Ho Wan, a/k/a Kwok Ho, a/ka, GWO Wen Gui, a/ka/ Gui Wengui, a/ka/ Guo Wen-Gui, a/ka/ Wan Gue Haoyun a/k/a Miles Kwok a/ka/ Haoyun Guo to the extent of holding defendant Kwok liable for breach of contract; and it is further

ORDERED that plaintiff shall move no later than October 14, 2020 by notice of motion returnable in the Submissions Part to establish damages on Count I by presenting affidavits on personal knowledge and evidence in admissible form as to the principal amount due and owing under the 2011 Personal Guarantee, the rate of interest applicable under the 2011 Personal Guarantee, and the date from which interest is accruing, so that the Clerk of Court may calculate the total amount due and owing as of the date of entry of judgment; and it is further

ORDERED that plaintiff shall simultaneously move for an award of legal fees and expenses, setting forth the document which plaintiff is relying on and attaching invoices for services rendered; and it is further

ORDERED that the parties appear for a status conference on December 22, 2020 at 10:20

am.

Dated: September 15, 2020

| CHECK ONE: | CASE DISPOSED | | X | NON-FINAL DISPOSITION | | |-----------------------|----------------------------|--------|---|-----------------------|-----------| | | GRANTED | DENIED | X | GRANTED IN PART | OTHER | | APPLICATION: | SETTLE ORDER | | | SUBMIT ORDER | | | CHECK IF APPROPRIATE: | INCLUDES TRANSFER/REASSIGN | | | FIDUCIARY APPOINTMENT | REFERENCE |

Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 40 of 134

# **EXHIBIT 7**

#### **FILED: NEW YORK COUNTY CLERK 04/18/2017 04:01 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 2 RECEIVED NYSCEF: 04/18/2017 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 41 of 134

# SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK

PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P.,

Plaintiff,

Index No.

**COMPLAINT**

KWOK HO WAN, *a/k/a* KWOK HO, *a/k/a* GWO WEN GUI, *a/k/a* GUO WENGUI, *a/k/a* GUO WEN-GUI, *a/k/a* WAN GUE HAOYUN, *a/k/a* MILES KWOK, *a/k/a* HAOYUN GUO,

Defendant.

## **NATURE OF THE ACTION**

1. This is a straightforward breach of contract case. Kwok Ho Wan, a/k/a Kwok Ho, a/k/a Gwo Wen Gui, a/k/a Guo Wengui, a/k/a Guo Wen-Gui, a/k/a Wan Gue Haoyun, a/k/a Miles Kwok, a/k/a Haoyun Guo ("Kwok"), a reported billionaire, and his controlled entities borrowed millions of dollars from Plaintiff Pacific Alliance Asia Opportunity Fund L.P. ("PAX LP") but have failed to pay any of the amount owed to PAX LP under binding written agreements.

2. In 2008, PAX LP entered into a written agreement with Spirit Charter Investment Limited ("Spirit Charter"), one of Kwok's business entities, under which PAX LP made available to Spirit Charter a loan facility in the principal amount of \$30 million. This loan facility was conditioned on Kwok's execution of a personal guarantee of Spirit Charter's repayment obligations.

3. In 2009, another of Kwok's entities, Shiny Times Holdings Limited ("Shiny Times"), assumed the debt that Spirit Charter owed to PAX LP, which the parties agreed at the time totaled \$45,357,534.25. Kwok executed a personal guarantee of this debt.

4. Then in 2011, PAX LP and Shiny Times entered into a written agreement (the "2011 Facility Letter") that expressly superseded prior agreements between the parties. In the 2011 Facility Letter, the parties agreed that Shiny Times owed PAX LP \$46,426,489 and would repay that amount (plus 15% annual interest from December 31, 2010) by June 30, 2012.

5. That same day, Kwok entered into a separate personal guarantee (that similarly expressly superseded Kwok's prior personal guarantee) under which Kwok guaranteed payment of all amounts owed to PAX LP by Shiny Times under the 2011 Facility Letter (the "Personal Guarantee").

6. To date, neither Shiny Times nor Kwok have paid any amount owed to PAX LP under either the 2011 Facility Letter or the Personal Guarantee.

7. PAX LP has taken all necessary and appropriate steps in accordance with its contracts with Shiny Times and Kwok to recover the monies it is owed—now totaling approximately

#### 2 of 11

\$88 million including contractual interest—but has recovered nothing because it has been ignored by Shiny Times and Kwok at each step.

8. Given that Kwok regularly transacts business, is domiciled and resides, and owns real estate in New York, PAX LP brings this action in this Court to enforce its contractual rights against Kwok.

# **JURISDICTION AND VENUE**

9. This Court has personal jurisdiction over Kwok pursuant to New York's general personal jurisdiction statute, C.P.L.R § 301, because he is engaged in a continuous and systematic course of "doing business" in New York and is domiciled in the state.

10. Venue is proper in this Court under C.P.L.R § 503(a) because Kwok's residence is in New York County.

# **PARTIES**

11. Plaintiff PAX LP is an investment fund organized as an exempted limited partnership under the laws of the Cayman Islands.

12. Defendant Kwok is a Chinese national who is domiciled in New York and engages in a continuous and systematic course of "doing business" in New York.

13. Kwok resides on the 18th Floor of The Sherry-Netherland Hotel in New York City—a residence he purchased in 2015 for \$67.5 million through Genever Holdings, LLC ("Genever"), a domestic limited liability company that he solely owns and that maintains its principal place of business in New York State at 80 State Street in Albany.

14. Kwok also maintains offices at 767 Fifth Avenue for Golden Spring (New York) Ltd. ("Golden Spring"), a Delaware company that he owns, which is registered to do business as a foreign corporation in New York and has a registered agent for service of process in New York.

15. Kwok also has employees or agents in New York, including those who work for Golden Spring and the attorneys he hired to represent him in two cases in the United States District Court for the Southern District of New York over the last two years.1

# **STATEMENT OF FACTS**

# *The Shiny Times Loan and Kwok's Personal Guarantee to Repay PAX LP*

16. PAX LP and Kwok have had business dealings since approximately February 4, 2008, when PAX LP entered into a written agreement (the "2008 Facility Agreement") with Spirit Charter, one of Kwok's business entities, under which PAX LP made available to Spirit Charter a loan facility in the principal amount of \$30 million.

17. This loan facility was conditioned on Kwok's execution of a personal guarantee of Spirit Charter's repayment obligations.

18. On March 12, 2008, PAX LP and Spirit Charter amended and restated the 2008 Facility Agreement ("Amended and Restated 2008 Facility Agreement").

19. By a deed dated September 17, 2009 (the "September 2009 Deed"), Shiny Times (another of Kwok's entities), Spirit Charter, PAX LP, and various other parties agreed that Shiny Times would replace Spirit Charter as the borrower under the Amended and Restated 2008 Facility Agreement. The parties to the September 2009 Deed also agreed that the outstanding amount under the Amended and Restated 2008 Facility Agreement, including accrued and unpaid interest, was then \$45,357,534.25 as of September 12, 2009 (the "Amended 2008 Loan Facility").

1 In 2015, Kwok and Golden Spring were sued for violations of the Fair Labor Standards Act, and in that lawsuit, Kwok (through counsel) acknowledged that he was properly served with a summons and complaint at The Sherry-Netherland Hotel. *Ahn v. Golden Spring (New York) Ltd. et al.*, No. 1:15-cv-09697 (S.D.N.Y. Dec. 11, 2015). In 2016, Kwok and Genever filed a lawsuit (through counsel) against The Sherry-Netherland Hotel and others relating to a leak in his apartment at the hotel. *Genever Holdings, LLC and Miles Kwok v. The Sherry-Netherland, Inc., et al.,* No. 1:16-cv-06246-GBD (S.D.N.Y. Aug. 5, 2016).

20. The September 2009 Deed required Kwok to execute a personal guarantee in favor of PAX LP to secure Shiny Times' due and punctual performance and repayment of the Amended 2008 Loan Facility. Kwok executed his personal guarantee on November 18, 2009.

21. PAX LP, Kwok, and Shiny Times thereafter agreed to supersede the foregoing agreements with two contracts executed on March 16, 2011—the 2011 Facility Letter (attached as Exhibit A) and the Personal Guarantee (attached as Exhibit B).

22. In the 2011 Facility Letter, the parties agreed that Shiny Times owed PAX LP \$46,426,489 and would repay that amount (plus 15% annual interest from December 31, 2010) by June 30, 2012.

23. The parties further agreed in the 2011 Facility Letter that any failure by Shiny Times to pay any amount owed to PAX LP under the 2011 Facility Letter would constitute an Event of Default, and that in such event PAX LP could (i) declare the entire loan, accrued and unpaid interest, and any other money payable to be immediately due and payable without further demand or notice or other legal formality of any kind, and/or (ii) declare the 2011 Facility Letter terminated.

24. Finally, like the prior agreements between the parties, the 2011 Facility Letter was expressly conditioned on Kwok's execution of the Personal Guarantee to fully backstop Shiny Times' payment obligations to PAX LP:

The Lender [PAX LP] and the Borrower [Shiny Times] agree to enter into this Agreement . . . on the condition that a new personal guarantee of Mr. Kwok (the "Personal Guarantee"), in favour of the Lender is delivered to secure the due and punctual performance of the Borrower to fully repay the [2011 Facility Letter] plus all accrued and unpaid interest in accordance with this Agreement.

25. Kwok signed the 2011 Facility Letter as a Director of Shiny Times and also, on the same day, signed the Personal Guarantee, under which Kwok agreed to "irrevocably and unconditionally" guarantee Shiny Times' payment of all amounts owed under the 2011 Facility Letter. In particular, Kwok:

(a) guaranteed to PAX LP the "due and punctual payment" of Shiny Times' obligations under the 2011 Facility Letter;

134

- (b) agreed "that promptly on [PAX LP's] demand [Kwok] will pay to [PAX LP] all [such amounts] that are due but unpaid"; - (c) agreed to "indemnify and hold harmless [PAX LP] on demand from and against all losses incurred by [PAX LP] as a result of any obligation of Shiny Times under the 2011 Facility Letter being or becoming void, voidable, unenforceable or ineffective as against Shiny Times for any reason whatsoever"; - (d) agreed that PAX LP's demand for payment would constitute *prima facie* evidence that such payment was due and owing; - (e) agreed that PAX LP could seek repayment from either Shiny Times or Kwok; and - (f) agreed to indemnify PAX LP from "any and all costs, claims losses, [and] expenses (including legal fees)" incurred as a result of exercising or enforcing the Personal Guarantee. - 26. Furthermore, Kwok agreed to waive several defenses, including those based on the

winding up or dissolution of Shiny Times, or PAX LP's inability to recover against Shiny Times "for any reason." Kwok also agreed to a catchall waiver of any conceivable defenses based on "any other act, event or omission which might operate to discharge, impair or otherwise affect the Guarantor or any of the Obligations or any of the rights, powers, and remedies conferred upon [PAX LP] by this Guarantee or by law."

27. In other words, Kwok signed an unambiguous and ironclad guarantee that he would

satisfy Shiny Times' debt to PAX LP under any circumstances.

# *The Extensions and Shiny Times' Ultimate Failure to Repay PAX LP*

28. Shiny Times did not repay any portion of the loan principal or accrued interest before the June 30, 2012 repayment date set forth in the 2011 Facility Letter, and the parties subsequently entered into a series of extensions, each labeled a "Deed of Settlement."

29. PAX LP, Shiny Times, and Kwok entered into the first Deed of Settlement (the

"Original Deed of Settlement") along with Beijing Pangu Investment Inc. ("Beijing Pangu"), another company within the Kwok empire, on April 19, 2013.

30. The Original Deed of Settlement provided that the total outstanding amount due under

the 2011 Facility Letter plus all accrued and unpaid interest was \$52 million as of the date of the

Original Deed of Settlement, and that amount would be no longer due and owing upon the satisfaction

of the following conditions:

- (a) If PAX LP completed the purchase of three apartments from Beijing Pangu in a series of three separate transactions for approximately \$5 million each, for a total of approximately \$15 million; and - (b) If Shiny Times completed three installment payments to PAX LP of approximately \$5 million each—one installment payment to be made after each separate apartment purchase—for a total of approximately \$15 million.

31. Before PAX LP could purchase any of the three apartments from Beijing Pangu, however, Beijing Pangu was required under the Original Deed of Settlement to satisfy certain conditions precedent relating to title, taxes, and other common aspects of real estate transactions. If any of these conditions were not met for any of the three apartments by July 31, 2013, the Original Deed of Settlement expressly provided that it would be terminated in its entirety, and the 2011 Facility Letter would revert into full effect.

32. Beijing Pangu failed to satisfy these conditions precedent by July 31, 2013, PAX LP therefore did not complete its purchase of any of the apartments, and Shiny Times did not make any of the three installment payments it owed to PAX LP under the Original Deed of Settlement.

33. Four supplemental deeds of settlement—on December 3, 2013, May 15, 2014, July 11, 2014, and February 10, 2015—extended the dates in the Original Deed of Settlement, including the repayment date and the date for Beijing Pangu to satisfy the conditions precedent.

34. Each of the supplemental deeds had the same terms as the Original Deed of Settlement. And the result was the same each time: Beijing Pangu never met the conditions it was required to satisfy, PAX LP therefore was not required to, and did not, complete its purchase of any of the apartments, and Shiny Times never made any of the three installment payments it owed to PAX LP under the 2011 Facility Letter.

35. Finally, on March 31, 2015, Shiny Times and PAX LP, together with Worldwide Opportunity Holdings Limited and Empire Growth Holdings Limited, entered into an Option Agreement (the "Option Agreement") that provided, among other things, for the repayment via share sale transaction of amounts owed by Shiny Times to PAX LP.

36. Pursuant to its terms, the Option Agreement was to terminate if certain conditions relating to the transfer of property (as stated in the Option Agreement) were not satisfied. None of these conditions were satisfied, and the Option Agreement was terminated without negating Shiny Times' obligation to pay PAX LP.

37. Thus, the 2011 Facility Letter reverted to being in full force and effect, Kwok's obligations under the Personal Guarantee are fully enforceable, and Kwok is independently liable under the Personal Guarantee for the full amount of Shiny Times' debt owed to PAX LP under the 2011 Facility Letter.

# *PAX LP Seeks to Enforce Its Contractual Rights and Collect Amounts Owed*

38. On October 16, 2015, after the Deeds of Settlement and Option Agreement were terminated and the 2011 Facility Letter reverted to being in full force and effect, PAX LP sent a written notice of demand (the "Notice of Demand") to Kwok's address in Hong Kong, as specified under the terms of the Personal Guarantee.

39. The Notice of Demand informed Kwok that "Shiny Times ha[d] failed to repay any part of the sum due" under the 2011 Facility Letter and demanded immediate payment of \$71,818,633.44. The Notice of Demand also informed Kwok that legal proceedings might be commenced against him if he did not make immediate payment, and reserved PAX LP's contractual rights under both the 2011 Facility Letter and the Personal Guarantee.

40. Kwok never responded to the Notice of Demand.

41. On February 19, 2016, PAX LP sent a letter to Shiny Times demanding payment of \$82,219,404.08 due and owing under the 2011 Facility Letter (the "Shiny Times Demand Letter"), which represented the principal plus contractual interest of 15% per annum calculated up to the date of the Shiny Times Demand Letter.

42. Shiny Times never responded to the Shiny Times Demand Letter.

43. When Shiny Times did not respond, PAX LP submitted an application to court in the British Virgin Islands ("BVI") on February 29, 2016 seeking the appointment of joint liquidators to put Shiny Times, which is a BVI corporation, into liquidation. The application alleged that (i) Shiny Times had failed to pay the sum then-owing of \$82,410,197.87, (ii) Shiny Times was unable to pay its debts, and (iii) Shiny Times was insolvent and should be liquidated.

44. Although Shiny Times was in fact placed into liquidation as a result of the BVI proceeding, PAX LP was unable to collect any of the monies owed to it under the 2011 Facility Letter.

45. To date, Kwok has not repaid any of the money due and owing to PAX LP under the Personal Guarantee. The sum due and owing—which includes the outstanding principal plus accrued and unpaid interest—is currently approximately \$88 million.

46. As a result of Kwok's failure to repay any of the money due and owing to PAX LP, Plaintiff has incurred "costs, claims losses, [and] expenses (including legal fees)" in connection with

enforcing the Personal Guarantee. Kwok is obligated to indemnify those amounts under the express terms of the Personal Guarantee (*see* Paragraph 25(f)).

# **COUNT I – BREACH OF CONTRACT Against Defendant Kwok**

47. Plaintiff realleges and incorporates by reference each and every allegation contained in paragraphs 1 through 46 as though fully set forth herein.

48. The Personal Guarantee obligates Kwok to repay PAX LP for the loan facility (as amended) that PAX LP made available to Spirit Charter, along with unpaid interest. The current amount due and owing is approximately \$88 million.

49. Plaintiff performed its own obligations under the Personal Guarantee (and other related agreements).

50. Kwok has not repaid any of the money due and owing to PAX LP under the Personal Guarantee.

51. As a direct result of Kwok's breach of his payment obligations under the Personal

Guarantee, Plaintiff continues to suffer the loss of approximately \$88 million dollars, an amount that continues to incur interest.

WHEREFORE, Plaintiff requests judgment against Defendant as follows:

(a) in the amount of \$46,426,489 under the Personal Guarantee;

(b) in the amount of \$41,096,982.46 in interest;

(c) the reasonable attorneys' fees, costs, and expenses PAX LP has incurred, and will continue to incur, in connection with its enforcement of the Personal Guarantee against Kwok under the Personal Guarantee's indemnification clause; and

(d) such other and further relief to which PAX LP shows itself justly entitled.

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Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 52 of 134

# **EXHIBIT 8**

**FILED: NEW YORK COUNTY CLERK 02/03/2021 12:28 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 716 RECEIVED NYSCEF: 02/03/2021 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 53 of 134

| SUPREME COURT OF THE STATE OF NEW YORK | | | |----------------------------------------|-------------------------|-----------| | COUNTY OF NEW YORK | | | | PACIFIC ALLIANCE ASIA OPPORTUNITY | | | | FUNDL.P., | | 17 652077 | | Plaintiff, | | | | V. | Index No. 652077/2017 | | | KWOK HOW AN, a/k/a KWOK HO, a/k/a GWO | [liftOI OSEff] JUDGMENT | | | WEN GUI, a/k/a GUO WENGUI, a/k/a GUO | | | | WEN-GUI, a/k/a WAN GUE HAO YUN, a/k/a | | | | MILES KWOK, a/k/a HAOYUN GUO, | | |

Defendants.

GENEVER HOLDINGS CORPORATION, and

GENEVER HOLDINGS LLC,

WHEREAS, on April 18, 2017, Plaintiff Pacific Alliance Asia Opportunity Fund L.P., filed a complaint against Defendant Kwok Ho Wan, a/k/a Kwok Ho, a/k/a Gwo Wen Gui, a/k/a Guo Wengui, a/k/a Guo Wen-Gui, a/k/a Wan Gue Haoyun, a/k/a Miles Kwok, a/k/a Haoyun Guo ("Kwok"), alleging a cause of action for breach of contract against Defendant Kwok.

WHEREAS, on April 18, 2019, Plaintiff filed a First Amended Complaint against Kwok, and Genever Holdings LLC, and Genever Holdings Corporation ( together with Genever Holdings LLC, the "Genever Defendants"), alleging causes of action for (i) breach of contract against Defendant Kwok and (ii) veil piercing against the Genever Defendants.

WHEREAS, on July 24, 2020, Plaintiff moved for partial summary judgment on its breach of contract claim against Kwok, and the motion was fully briefed and heard before Justice Barry R. Ostrager, who issued a Decision and Order dated September 15, 2020, which was entered in the New York County Clerk's Office on September 16, 2020, granting Plaintiffs motion on Count I of the Amended Complaint for breach of contract, and directed Plaintiff move by Notice of Motion to establish damages on Count I no later than October 14, 2020.

#### **FILED: NEW YORK COUNTY CLERK 02/03/2021 12:28 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 716 RECEIVED NYSCEF: 02/03/2021 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 54 of 134

# **17 652077**

WHEREAS, (i) on September 21, 2020, Plaintiff moved by Notice of Motion to establish damages, legal fees and expenses; (ii) Plaintiff agreed to temporarily withdraw, without prejudice and with the Court's permission and the other parties' understanding that it would be renewed at a later date, the portion of its application relating to legal fees and expenses (i.e., enforcement costs); and (iii) the motion was fully briefed and heard before Justice Barry R. Ostrager, who issued a Decision and Order dated December 18, 2020 (the "Damages Order"), and entered into the New York County Clerk's office on December 18, 2020, directing the Clerk of Court to enter judgment in favor of Plaintiff and against Defendant Kwok in the amount of \$46,426,489.00 plus contractual interest at a rate of 15% per annum from effective date of December 31, 2010 and at the statutory rate of 9% per annum from the date of entry of this decision and order.

NOW, upon motion ofO'Melveny & Myers LLP, attorneys for Plaintiff, it is:

ADJUDGED that Plaintiff Pacific Alliance Asia Opportunity Fund L.P., having a business address at 33/F, Three Pacific Place, 1 Queen's Road East, Hong Kong, have judgment against and do recover from Defendant Kwok Ho Wan, residing at 781 Fifth Avenue, 18th Floor, New York, NY 10022, the amount of **\$46,426,489.00** , plus contractual ------------ interest in the amount **of \_\_\_ ~\$\_6\_9~,\_4\_4\_8~,\_9\_3\_9\_.\_7\_1 \_\_\_\_\_ ,** plus post-judgment interest at the statutory rate of9% in the amount **of \_\_\_ \$\_5\_2\_6\_,\_5\_9\_0\_.\_8\_6 \_\_\_\_\_\_ ,** for a total of

**X \$116,402,019.57** , and Plaintiff shall have execution thereof.

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> SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PACIFIC ALLIANCE ASIA OPPORTUNITY FUNDL.P.,

> > Plaintiff,

KWOK HOW AN, *a/k/a* KWOK HO, *a/k/a* GWO WEN GUI, *a/k/a* GUO WENGUI, *a/k/a* GUO WEN-GUI, *a/k/a* WAN GUE HAO YUN, *a/k/a* MILES KWOK, *a/k/a* HAOYUN GUO, GENEVER HOLDINGS CORPORATION, and GENEVER HOLDINGS LLC,

Index No. 652077/2017

**AFFIRMATION OF EDWARD MOSS, ESQ.**

![](_page_54_Picture_7.jpeg)

Defendants.

I, Edward Moss, an attorney duly admitted to practice before the Courts of the

State of New York, hereby affirm, under penalty of perjury, pursuant to the Civil Practice Law

and Rules of the State ofNew York§ 2106, as follows:

1. I am a member of the bar of this Court and a partner in the law firm of O'Melveny

& Myers LLP, counsel ofrecord for Plaintiff Pacific Alliance Asia Opportunity Fund L.P.

("PAX") in this matter.

2. I am fully familiar with the facts and circumstances in this action. For purposes

of entry of this judgment, I submit this affirmation waiving costs and disbursements.

Dated: January 25, 2021 New York, New York By: /s/ *Edward Moss* Edward Moss

SlXPRE.\lE COURT Of THE STATE OF NE\V YC)RK COUNTY or··Nt\v·.·vonK fod~KNn,. 652077/2(H7

PACTFlC. ALJ.lANC E ASl.A OFPO.RTl)NfTY FU ND LJt,

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# **JUDGMENT**

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.:.\ttrnm«y~ for Pb.infrfff';,i(:Hk i\l lfam~('. .. :\jfa OppmtrnRy Fimd,LY.

Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 57 of 134

# **EXHIBIT 9**

#### **FILED: NEW YORK COUNTY CLERK 06/29/2017 05:31 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 06/29/2017 **FILED: NEW YORK COUNTY CLERK 07/24/2020 11:49 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 455 RECEIVED NYSCEF: 07/24/2020 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 58 of

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Qhi;P THE:i6ti1JAY OF MARCH 2011

KWOKHOWAN as Guarantor

lnf'avourof

(

PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P.

PERSONALGUARAN~E

\. .:

Honi;,:Kong

#### 11-11S GUARANTEE is mad~ the16tllday of March 2011

#### SETWEEN:

KWOK HO WAN (~~\*I holder of Hong t<ong Identity card no, P146467{7) of Room 411, 4th Floot, Nan Fung Tower, 173 Da& VoeW< Road Central, Hong !<:on11 (the "Guarantor''); and ·

134

PACIF1C ALLIANCE ASIA OPPORTUNITY FUND 1.,P,, an exempted llmlled partnership establlsned under Iha Jew\$ of the Cayman Islands wtiosa registered office Is at P.a. Box 472, 2"4 Roor, Harbour Place, Grand Cayman, Cayman Islands **("PAX'').**

#### RECIT#\L.S

- A. On or about the date of this Guarantee, PAX and Shiny Timas Holdlngs Limited ("Shiny Times") entered Into ii\ facility letter (the "Facility Letti.r''} whereby It was agreed that (a} the total prlnolpal amount undsr !he FacilltY Letter as or *tha* Effective Date US\$4S,428,489 {Iha "OutetandJng Amount") and tb) Iha outstanding Amount shall be deemed as the new revised i:,rlnclpal amount under the Faolllty Letter, which shall ai::c:rue Interest at the rale of 15% per annum from the Effective Da~ unUl fully repaid, It was rurther agreed that tt,e maturity date for payment of lhs Loan (as defined in the FaclKly Letter) shall b& on er before 30 June 2012. - B. A condition preoedar\t to the complellott Undi!tf the Fac!II\Y Letter !s Iha Guarantor's del!very of this Guaranlee to secure due and punctual performance of an of Shiny Tlmea' payment and perfurmanca obligations whatsoavGr (tha ''Obllgatlons", and "Obligation" shall ba cooslrued accordingly), under or In relation to t'le Faclllty letter. - C. It was ftlrther agreed that, lmmedialely alter the Elfscll'le Date, and upon the compfellon of the oondllions precedent under the Facility Letter, Shiny Times and the Guarantor shall be discharged and released In full from an Iha obllgatlons, llablllikls and responsibilities under lhe Deed and Letter Agreement(bolfl terms **are** defi,1ed In fhe FaeRlty Leiter) respeotlvely and claims arising oul of or In connactk)n Wllh the Deed and Leiter Agreement sha!I also b1:1 fully discharged. - 1, INTE~ETATION - 1.1 References **to** Agreements

Unless oth&!Wise slated, any rererence h'I this Guarantee to any agreement or document 0ncludlng any reference to this Guarantee or the Faclllty Le«er) shall be construed as a reference to:

- (a) such agreement or document as amended, varied, noVE1ted or supplemenletl from ~e to lime; - (b) any other agreement or document whereby such agreement or document ts so amended, vafled or novaled: a11d - {e) any other agreement or document entered into pursuant to or In accor:lanca With 11uch agreement or document,

# 134

**FILED: NEW YORK COUNTY CLERK 06/29/2017 05:31 PM** INDEX NO. 652077/2017

#### 1.2 Clausie- Headings

Clause headings ar8 for ease of reference only and shell not affect the construction of 1hls Guarantee.

- **2, GUARANTEE** - 2.1 Guarantee and Indemnity

The Guarantor hereby Irrevocably Md uncond!tlonally:

- (a) guaranteei; to PAX the due and punctual payment or Iha Obllgallons and agrees that prompt!y on PAX's demand he wUI pay to PAX all Obllgatlons that are due but unpaid; and - (l>• agre~ (as primary obllgor and not only **B\$** eurety) to indemnify and hold harmless PAX on demand from and against ell los&es lricurred by PAX as a result of any Obllgatlon being or becoming void, vo!dable, unenforcea,b!e or Ineffective as against Shiny Tlmes for any raaoon whatsoever (whether or not known to **PAX** or any other person), Ille amount of such loss being the amoun1 that PAX would otherwl&e have been entlllad to recover from Shiny nmes,

PROVIDED Tl:IAT Uta 101aI JiabllJl!es of the Obligations or amowit due from the Guarantor llf\dar this <3uaranlee shall always **be** llmlled lo the sum ol the Outstanding Amount plus Interest of *Iha* rate of 15% per annum accrued from 31 December 201 O to the date on which all such llabHltles are paid In full.

For the avoidance of doubt, this Guarantee came Into effect on 31 December, 2010 (the "Elfeclive Dale'').

2.2 Demands

The amount specified ln a demand made l>y PAX pursuant to this Guarantee as to 1ha amount *or* any Obllgatton or the amount due from Iha Guarantor under this Guarantee shell be *prima fac!e* evidence. that such Obligation or auoh amount fa due and payable,

#### **3. CONTINUl~G SECURITY'**

#### 3.1 Continuing and Independent Obtlgatlons

Tha obflgal!ons at the Guarantor under Ihle Guarantee 1,hall constitute and be continuln11 obligations which shaH not be released or discharged by any intermediate payment of Iha Obligations or any or them, shall continue In ftlll force and effect until the uncondltlonal and lrravocable payment and discharge tn full of the Obl[gatlons and are In addition to amt tndepandent of, and shall rial prejudice or merge with, any other security (or any right of set-Dff) which PAX may at any lime hold In respect of the ObUgat!ons or any of them,

#### 3.2 **Avoidance** of **Payments**

Where any release, discharge or other arrangemen~ In respect Dfany Obligation PAX may hold. for such Obllga11on, !s given or made In reUanee on any payment or other disposition that ls avoided or must be repaid {whether In whole or In part) in an lnaolvency, llqUidatlon or otherwise, and wnether or not PAX has conceded or <.ompromlsed any claim lhat any suah payment or other disposition wfll or should ba avoided or repaid (In whole or In part), this

NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 06/29/2017 NYSCEF DOC. NO. 455 RECEIVED NYSCEF: 07/24/2020 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 61 of

134

Guarantee shaH continue as If such release, dlschatge or othar atran\_gE!ment had not bean gmn or made.

#### 3.3 Immediate **Racou,ae**

PAX shall not be obliged bemre exari.iilng any of the rights conferred on It by this. Guarantee *Of* by law to seek lo reeover amounts due from Shiny Times or to exercise or enforee any olher tight o~ seour!IY It may have or hold lo respect of the Obigat!ons.

#### 3.4 **Waiver of** Defencea

Nelfher the obligalio11s of the Guarantor contained In lhis Guarantee nor tha tl!Jhla, powers Md remedlea conferred upon *?AX bv* this Guarantee Qr by law shan ba discharged, Impaired **or otherwise** affected by:

- (a) the wlndfng-up, dissolution, administration or re.al!,lanlselion of Shiny TimeG or *anv* other person or any change In the status, funetlon, control or ownarshlp of Shiny Tfmes or any such paruon: - (b} any of the ObffgaUons or any security held by PAX in respact thereof being or becoming mega!, Invalid, unellforceable or lneffectlv11 In any respeel; - (C} any time or other lodulgem:e bel119 granted or agreed (i) to or with Shiny 11mes or any other person in respect of the Obl!gatlons or any of them or (11) In reapacl of any securlly held l>y PAX In respect thereof; - (d) any amendment lo, or any varlaUon, waiver or release cf, the Ol>lrgatlons or any of them or any security held by PAX In respect thereof; - **(e)** any total or partial failure to ti.lee or perfect any S!;!Ctlrlty proposed to be taken In respect of the ObUgaUons or any of !hem; - {fl MY tolal or partial fallure to reaijsa the value of, or any re!ea!!fl, discharge, exchange or subslltutlon of, any security t,eld by ln respect of the Obllgatlons or any ot them; or - (g) any other ao~ avant or omission which mq;iht opera1e to d!sohcuge, fmpalr or othelWlse affect the Guarantor or any of the Oblfgations or *any* of the rights, powers and ramedlfls conferred upon PAX by this Gl.lerantee or by law.

#### 3.6 No CQmpetltlon with PAX

*Atrf* right which the Guarantor may have by way of contribution or Indemnity !n relaUon to ttie Obllgat!ons, or olherwtse lo clalm or prove as a C!'lldilor of Shiny nmea or any 1>ther person or Its estate In competltlon with PA, shall be exerclsed by the Guarantor only if and to lhe extent that PAX so requires and *In* such manner and upon such terms es PAX may specify, and the Guarantor shall hotel all monies, rights or securltv held or received by It as a f81,1,1II af the exercise of any such right on trust for PAX for appllcaHon In accordance wllh the tarm& of this Guarantee as if such monies, rights 01' security were he.Id *or* received by PAX under this Guarantee.

#### 3.& Appropriation

PAX shall not ba obliged to apply any sum held or received by It In respect of the Obl!galfons *In* or toward5 payment of lhe Obllgat10n~ and all such 11ums may be crMlted 11'.l **a** l>ijspense or Impersonal acoount and held In such account pending lhe appllcaUon from time **to** time

NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 06/29/2017 NYSCEF DOC. NO. 455 RECEIVED NYSCEF: 07/24/2020 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 62 of

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(as PAX may think tit) of such sur:ns In or towards the discharge of such obllgaUons of Iha Guarantor to PAX as PAX may selact.

- 4. **PAYMENrs** - 4. i **Grossing Up**

All payments made by tha Guarantor under this Guarantee shall be made free and clear and without any deduction and free and olear of, and without deduction for or on account of, tax except, !n the lalter case, to the Blllent that the Guarantor Is required by **law** to make payment subject ta tax. If any tax or amount ln respect of lax must be d0ducted, or any olher deduction must ba made, from *any* amount payable Of paid by the Guarantor under this Guarantee, lhe Guarantor shall pay such addttJonat amounl:i as may be n8tleasary to ensure that PAX recelve:i a net amount equal to the ruu amot.mt which It would have received had pay1nent not be.en made subjact to laK.

4.2 Payments without Set-off

All paymenls mada by the Guarantor under this Guarantee shall be mads free and clear cf and without any deduotlcn for or on account of *any* set-off ar counterclaim.

4.3 Manner of Payment

Alt payments made by 1he Guarantor under this Guarantee shall be paid In the manner required by PAX.

- S. COSTS ANO EXPENSES - 5.1 TransactJQn Costs

The Guarantor shall on demand of PAX reimburse to PAX on a full lncl&mnity basts au costs and oxpensas (Including lagal feee), incurred by PAX In connect!on wllh the preparation, negotiation and exeoutlon of this Guarantee,

5,2 Stamp Taxes

The Guarantor shall prompUy pay all stamp, registration and olher la>ces lo whlch this G~arantea or any Judgment given In connection with this Guarantee ls ()fat any tim& may be subiecl and shaU on demand indemnify PAX ageinst all Obligations, costs. clalms and 3Xpensas (lncludtng legal fees) resulting from any fallure **to** pay er dl,lay In paying any such tax.

5.3 Indemnity

The Guarantor ihall lndemnlry and held harmless PAX from and aealnsl any and .ill cosw, olaims losses, expenses (Including legel rees) and ObHgatlons, which PAX: may Incur as a result of the axerclse or enforcement by PAX of any of the rights or pQwers conferred on It undar lhls Guarantee or by law.

#### 6. **WAIVERS AND** RE:MEOIES

No f!lllure by PAX to exercise, nor any delay by PAX In exercising, any right or remedy under lhts Guarantee shall operate as a waiver thereof l'IDr shall any single or partial exercise of any such right or remedy prevent any further or 0H1er exercise thereof or the exercise of any Qlh!K such right or remedy,

NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 06/29/2017 NYSCEF DOC. NO. 455 RECEIVED NYSCEF: 07/24/2020 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 63 of

#### 7. ADDITIONAL PROVISIONS

#### 7.1 Partial Invalidity

Ir at any time any provision oflh!s Guaranlea Is or become\$ Illegal, Invalid or unenforoeable In any respect, *or* th!e Guarantee Is or becomes lnllfl'ootlve in any respect under the law of any Jurlsdlctlon, such ll!egallty, tnvalkfily, unenforceabHlly or Ineffectiveness shall not affect:

134

- (a) the legality, valldlly or enfarceabntty of the remaining provisions oi this Guarantee or the ~frecllveness rn any olher respect of this Guarantee under such law: or - (b) the (egalfty, valldily or enforceablllly of at1oh provision or !he effootlveness of this Guarantee under the law of any other jurfsdloHon.

#### 7.2. Potentlally Avoided Payments

If PAX determines that an amount paid to It under the Facility l.eUer Is capable of being avoided or otherwise set aelde on the llquldatlon or admlnl!!lrallon of ·the iierson by whom such amount was paid, then for the purposes of this Guarantee, such .amount shall be regarded as not having been pald,

#### 7.3 Currency Conversion

In order lo apply any sum held or received by PAX In or towards payt'nent of the Obligations, PAX m.w purchase an 1!1'1'1ounl kl another olJl'rency and tile rate of 8J(ci1ange to be used \$hall be lhat a1. which, at such time es it oonsldfirs appropriate, PAX. Is able to efTecl such purchase.

#### 7,4 currency Indemnity

If any sum due from tha Guarantor under this Guarantee or any order or judgme~t glmn or made il'l relat!on to this Guarantee has to be converted from Iha ourranoy [the "first currency") In whloh lhe ~me Is pal/able under this Guarantee or under sucli order or Judgment Into another currency (ihe "second currency") for the purpose of (a) making or filing 11. claim or proof against the GUarantor, (b) obtaining an order or Judgment In any court or other tribunal, or (c) enfurclng any order er judgmoot given or made ln relation to this Guarantee, Iha Guarantor shaff Indemnify and hold ltarmless PAX from and against any loss surtered or Incurred as a result cf any discrspanc;y bet.ween (i) lhe rate of exctumge used for such purpose to convert the sum 1n question from the flret currency Into the eeoond currency, and {II) the rate or reles Of exchange at whleh PAX may In the ordinary course of business purchaee Uie flr6l currency with the second currel'IOY upon receipt of a sum pakl to It h'I saDsfactlon, In whole or In part, of any such order, Judgmant, claim or proof,

7.5 Rlgltts CUmutatlve

The rtghts and remedies pro11lded by this Guarantee are cumulallve and not exclusive of any right or remedy provided by law.

- **8. ASSIGNMENTS** - 8.1 The Guarantor's Rlgl\ts and Obligatlons

The rights and oblh;1allon::i of the Guaranlor undet !h1s Guarantee are not asal11nable or 1ransferable and the Guarantor shalt not pur~ort to esslQn any or all such rlghts or obligations, wlthouttha prior written consent of PAX.

134

### 8.2 PAX's Rights

The rights of PAX under !his Guarantee are assignable In whole or in part, and PAX may asslgn all or any such right without the consent of Iha Guarantor.

- 9. NOTICES - 9.1 Communlcatlon9 In Writing

Each communication lo be made under this Guarantee shall be made !n wrlllng but, unless othelWlse stated, may ba made by fax or letter,

9.2 **Delivery** of **Notli:e.s**

Any communlcallon or document to be made or delivered by one person to another pursuant to this Guarantee shall (unless that other parson has b)r 3 de.ys• written notice to the other specified another address or fax number) be made or delivered 10 that other person at the aulhorlzed addre&s or fax r11JmbBf of that par.'!on ;ind shall be de&med to have been made or delivered when clespatched Qn the case of any oommunk:atlon m-ada by fax), or *Un* the c;asa of any communloalion made by fetter) wlien left at that address or (as Iha oase may be) five days attar being daposlled In the post postage prepaid In an envelope addressed lo It at that address. Subject to the foregoing, the authorised address and fa,c number of eacl'I party, for the purpose of Clause 9, are as follows:

PA:

Address:

15/F, AIA Central 1 Connaught Road Central Hong Kong

Fax; t852 2916 0881 Attn: Jon Lewis, Group General Counsel

The Guarantor:

Address: Room 411, 41h Floor, Nan F\ITlg Tower, 173 Das Voeux Road Central Hong Kong

#### *wtrh a copy to*

| AddraS11: | Stevenson, Wong & Co_ | |-----------|--------------------------| | | 4th Floor, Central Tower | | | 28 Queen's Road Central | | | Hong Kong | | Fa:<: | T852 2668 9928 | | Attn: | Hank Lo |

9.3 Notices to PA

Any communle&llan or dooument to ba made or delivered to PAX shall be effective only when received by PAX and then only If ii is expressly market! for the attanUon of the

134

dep11rtmerit or offiC11r identified with PA's signature below or such other department or offlc1c1r as PAX shall from time to time specify' for this purpose.

#### 9.4 Engll&h Langu~e

Ead1 communloatlon and doc:umant made or delivered by one party to another pursuant to this Guarantee shall ba In English Iii' accompanied by a translation Into Englbh which Is oartlfl&d (by an officer of the p81'\$0n making or delivering the same) as being a true and acaurate trenslallon.

#### **10. GOVERNING LAW**

This Guaraf'\lea I& governed by an<! shall be consliued in accordance wllh the laws of Hong Kong,

- 11, **JURISDICTtON** - 11, 1 Courts of Hong **Kong**

Each of the Guarantor and PAX lrrel/Ocably agrees that \ha courts of Hong Kon!) shall have jurisdiction to hear and detem1lne any eul~ action or proceedings, and to settle any dlSputas, Which may arise out of or In connection with this Guarantee **(respective!y, "Proceedings•** and **'Disputes") and,** for such purposes, tr~ocably submits to the Jwlsdtction ofSuch courts.

#### 11.2 **Appropriate** Fcirom

The Guarantor Irrevocably wa!ues 111ny o\*cllon which ha mlghl now ot hereafter hava to Proceedings being brought or Pleputea 11eUled In the courts of Hong Kong and agrees not to claim that any such oourt Is not a convenient **or** appropriate tbrum.

#### 11.3 **servlc:e oft>rocess**

The Guarantor agrees !hat the procaas by which Proceedings are begun may be .served on him **b)I** being delivered lo him personally In connection with all Proc\sSdlng!I In Hong Kong.

#### 11.4 **ProCfladlngs** In **Other** Jurisdictions

Nothing in Clause 11.,1 *(Cwrta of Hong* Kong)-shall (and sh.all not be oonsuuod so as to) ml'llt the rl9bl of PAX to take ProcaedlhQs agalns~ the GUarantor ln any 01her court of competenljurfadlcllon nor sheH Iha laking or Pt<:1oeedings In anY: one or more Jurlsd\ctfof'lil prsctude lhe taking of Proea~!nga In any other. Jurisdiction (wheU,er concurrently or not} lf end to the axfent i,ermlttacl· by appHcabta law.

11.5 General Consent

The Guarantor consents genertilly In respect of any Proceedings to !hQ giving ol any relief or the Issue of any process In connection wllh weh Proceedings Including the making, enforcement or eXeeuUon against any property whatsoever {Irrespective of Its use or Intended use) of any order or judgment which may be made ar glvan In such Proceedings,

#### **12, COUNTERPARTS**

This Guarantee may be exeouttld In counterparts and such counterparts taken together shall cons!Rute one and tha same lnsl1ument.

#### **13. SOVEREIGN IMMUNITY**

134

*To* the extent that the Guarantor may be enti!led, In any liong Kong Court or other court, to dafm for hlmse/r or his revenue,, Bissels or properties, ~vereign Immunity from selVlce of process, from suit, from the jurisdiction *d any* court. from attachment in aid of 8Jtecutlon or enforcement of a Judgment (interlocutory or final), or from any other legal process, and to tha t;,i:tent !hat, in any such jurisdiction there may be attributed such a sovereign Immunity (whether olatmed or not), the Guarantor lrtevocably agrees not lo claim, and hereby l1revocabf~ waives, such sovereign lmm1Jnlty.

n-, WITNESS WHEREOF this Guarantee has been duty axeouted by the Guarantor end has been signed by PAX.

#### **FILED: NEW YORK COUNTY CLERK 06/29/2017 05:31 PM** INDEX NO. 652077/2017 **FILED: NEW YORK COUNTY CLERK 07/24/2020 11:49 PM** INDEX NO. 652077/2017

NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 06/29/2017 NYSCEF DOC. NO. 455 RECEIVED NYSCEF: 07/24/2020 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 67 of

#### EXS.CUTION PAGE

134

#### PERSONAL GUARANTEE

Signature oflM!ness:

Name: Addm~s:

Ootl.lpation:

SIGNED by ) Jc,n l.Gw!S ) D!re.otor, Pacifl~ Affiance Group Asset ) . Manitgement Ltmll8<l, ) the General Partnar of ) **PACIF!C** ALLIANCE ASIA ) OPPORTUNITY FUND L.P. ) In Iha pres9noeof:- >------w:r---~-

Signature of Witness: , /1,71 . *I/ ,/* Na~e: S"H'ft, r M'-i Addrtis: l,/f, Ptlfr C'.:ew!~At. , I ooluNA-\.<f,KT R,,~J> t.el.f,~H. l'\11)\/u ftl"/9

oeeupatlon: lt'b ,.1, (,o\J. *N* Cf' L-

Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 68 of 134

# **EXHIBIT 10**

Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 69 of 134

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Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 70 of 134

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Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 71 of 134

# **EXHIBIT 11**

**FILED: NEW YORK COUNTY CLERK 12/24/2020 04:11 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 689 RECEIVED NYSCEF: 12/24/2020 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 72 of 134

> SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P.,

> > Plaintiff,

KWOK HO WAN, *a/k/a* KWOK HO, *a/k/a* GWO WEN GUI, *a/k/a* GUO WENGUI, *a/k/a* GUO WEN-GUI, *a/k/a* WAN GUE HAOYUN, *a/k/a*

Index No. 652077/2017

Hon. Barry Ostrager

Part 61

Mot Seq. No. \_\_

Defendants.

GENEVER HOLDINGS CORPORATION, and

MILES KWOK, *a/k/a* HAOYUN GUO,

GENEVER HOLDINGS LLC,

# **MEMORANDUM OF LAW IN SUPPORT OF PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P.'S MOTION FOR ORDER OF CONTEMPT AGAINST DEFENDANT KWOK**

#### **TABLE OF CONTENTS FILED: NEW YORK COUNTY CLERK 12/24/2020 04:11 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 689 RECEIVED NYSCEF: 12/24/2020 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 73 of 134

# **Page**

| PRELIMINARY STATEMENT 1 | | |--------------------------|--| | BACKGROUND 2 | | | ARGUMENT 4 | | | CONCLUSION 6 | |

#### **TABLE OF AUTHORITIES FILED: NEW YORK COUNTY CLERK 12/24/2020 04:11 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 689 RECEIVED NYSCEF: 12/24/2020 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 74 of 134

| Pages Cases | |--------------------------------------------------------------------------------------------------------------------| | Financial v. Walter J. Dowd, Inc. No. 113484/2011, 2016 WL 11546917 (Sup. Ct. N.Y. Cnty. Sept. 14, 2016)………………4 | | McCormick v. Axelrod, 59 N.Y.2d 574, amended, 60 N.Y.2d 652 (1983)……………………………………………4 | | Statutes | | Judiciary Law § 753 …………………………………1, 4 |

| CPLR § 5104 ………………………………….1 | | |-----------------------------|--| | | |

#### **FILED: NEW YORK COUNTY CLERK 12/24/2020 04:11 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 689 RECEIVED NYSCEF: 12/24/2020 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 75 of 134

Pacific Alliance Asia Opportunity Fund L.P. ("PAX") respectfully submits this memorandum of law in support of its motion, under CPLR § 5104 and Judiciary Law § 753, for an order (i) finding Defendant Miles Kwok in contempt of Court for disobeying the Court's October 15, 2020 Restraining Order (the "Order"); (ii) directing Kwok immediately to cause the return of his yacht (the "Lady May") to the jurisdiction of the Court; and (iii) granting such other and further relief as the Court deems just and proper.

### **PRELIMINARY STATEMENT**

This Court previously has recognized that Kwok has "flaunted or exceedingly liberally interpreted" its orders, and has made "intentional or unintentional misstatements that have misled the Court."1 In the words of Yogi Berra, it is déjà vu all over again: there is no doubt that Kwok knowingly has violated this Court's Order restraining him from moving his yacht2 outside the Court's jurisdiction and—perhaps worse—he has once again put his counsel in the line of fire by instructing him to *request the Court's permission to move the yacht even though Kwok knew it already had been moved outside of U.S. territorial waters at the time that request was made*. The Court should hold Kwok in contempt, require him immediately to return the yacht to the jurisdiction, and grant whatever additional relief it deems necessary and appropriate to finally stop Kwok from making a mockery of this proceeding.

1 Dkt. 647 at 26:6–8.

2 Any suggestion by Kwok in opposition that the yacht technically is not "his" would be disingenuous nonsense. If Kwok advances that false argument (which is directly contradicted by, among other evidence and admissions, Kwok's counsel's request at a recent conference *for Kwok* to be able to move the yacht outside this Court's jurisdiction), PAX will respond on reply. PAX notes, however, that any such argument would be irrelevant to this motion because the Order expressly covers the yacht even if it is held by another registered owner (whether it be a Kwok shell company or family member).

![](_page_75_Picture_0.jpeg)

### **BACKGROUND**

On September 30, 2020, this Court entered a Temporary Restraining Order (the "TRO")

preventing Kwok from, among other things, "interference with any property in which he has an

interest."3 In issuing the TRO, the Court noted that "[a]ny violation . . . shall be considered

criminal contempt."4 About two weeks later, on October 15, 2020, the Court issued the Order,

which granted PAX's motion under CPLR 5229 and expressly restrained the Lady May:

Mr. Kwok is restrained from making or causing any sale, assignment, transfer, or interference with any property in which he has an interest, whether directly or indirectly, and from paying over or otherwise disposing of any debt now due or thereafter coming due to him subject to the exceptions set forth in CPLR 5222, in accordance with the proceedings on the record of October 15, 2020. *Specifically, Mr. Kwok and/or the registered owners of* (1) the Residence at the Sherry-Netherland Hotel and (2) *the yacht, "the Lady May" are restrained from making or causing any sale, assignment, transfer, or interference with those assets.*5

On November 12, 2020, the Court held a conference, during which Kwok's counsel

(presumably at his client's instruction) made a specific point to ask this Court if Kwok could

move the yacht offshore:6

Apparently the boat is registered offshore I believe in the British Virgin Islands, and there is a requirement that it return to its home port at sixmonth intervals. It is not an issue that is going to affect in any way ownership or title, but *it needs to travel offshore at some point for a brief period and then come back into the United States*. And we just wanted to disclose that so that there is no thought that this is being secreted or transferred. This is just an ordinary thing it has to do for licensing purposes.7

7 *Id.* at 13:9–18.

3 Dkt. 591 at 1.

4 *Id.* at 2.

5 Dkt. 630.

6 Moss Aff. Ex. 1 (Nov. 12, 2020 Conf. Tr.) at 12:23–25.

The Court unequivocally responded that Kwok was *not* permitted to remove the yacht from this jurisdiction and would be required to make a motion before doing so:

> You will have to make that application on papers. I don't know anything about the requirement that an asset that has been restrained in the United States should be allowed to go to the British Virgin Islands. I seriously doubt [PAX] wants that yacht to be outside the jurisdiction of the Court . . . You will make a motion with supporting documentation on notice to [PAX], and I will rule on it. What I am not going to have happen is Mr. Kwok move the yacht to the British Virgin Islands and then it becomes potentially unavailable for [PAX] to levy upon . . . that's an application that has to be made on formal motion papers with supporting documentation and appropriate opportunity for [PAX] to reply.8

Although Kwok's counsel responded that he "[u]nderstood" "the Court's directive" and would "provide that information in writing,"9 Kwok made no such motion.

Given their experience with Kwok and his misbehavior, PAX and its counsel were concerned by Kwok's counsel's question and did some research. A few days later—based on publicly available information accessed at MarineTraffic.com—PAX learned that the yacht had in fact departed Fort Lauderdale, Florida, on *November 1, 2020*, and as of November 18, 2020, was located in the Bahamas at or near Old Fort Bay, Nassau.10 In other words, Kwok had actually moved the yacht out of United States waters approximately *two weeks after the Order* and *two weeks before his counsel sought permission for Kwok to do precisely that at the*

# *November 12 conference.*

In light of this information, PAX's counsel wrote to Kwok's counsel on November 18,

2020, providing the information it had accessed as to the yacht's whereabouts, expressing its

8 *Id.* at 13:19–15:4.

9 *Id.* at 14:2–3, 15:5–6.

10 Moss Aff. Ex. 2 (Nov. 18, 2020 Ltr.) at Ex. A.

concern "given Mr. Kwok's history of making misrepresentations throughout this litigation," and asking Kwok's counsel to "confirm the location of the Lady May" and "that the vessel will be back in New York within 48 hours."11

Kwok's counsel never responded. Rather, later that night, Kwok's counsel filed a letter

with the Court claiming to know nothing and committing to investigate and report back:

[W]e have just become aware this evening that the yacht, the Lady May, referenced in this Court's restraining order (NYSCEF Doc. 630) and discussed during the Pre-Trial conference held before this Court on November 11, 2020, is currently in international waters. Although Plaintiff's counsel has just sent us a letter regarding the purported whereabouts of the yacht, we have not confirmed any details . . . We are attempting to gain additional information and will promptly inform the Court and counsel when we learn anything further.12

But as of today's filing—*five weeks later*—Kwok's counsel has provided no further information

to either the Court or to PAX's counsel. Also as of today, according to MarineTraffic.com, the

yacht is still moored in or around Nassau, Bahamas.13

# **ARGUMENT**

Under Judiciary Law section 753:

In order to find that contempt has occurred in a given case, [(1)] it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect. [(2)] It must appear, with reasonable certainty, that the order has been disobeyed. [(3)] Moreover, the party to be held in contempt must have had knowledge of the court's order, although it is not necessary that the order actually have been served upon the party. [(4)] Finally, prejudice to the right of a party to the litigation must be demonstrated.

11 *Id.*

12 Dkt. No. Dkt. 649.

13 *See* Moss Aff. ¶ 5.

*McCormick v. Axelrod*, 59 N.Y.2d 574, 583, *amended*, 60 N.Y.2d 652 (1983); *see also Financial v. Walter J. Dowd, Inc.* No. 113484/2011, 2016 WL 11546917, at \*2 (Sup. Ct. N.Y. Cnty. Sept. 14, 2016) (Ostrager, J.) (citing *McCormick* and applying the four-pronged test). PAX easily satisfies each of the four elements for contempt here.

*First*, the Order is a lawful order of the Court: an unequivocal mandate that Kwok is "restrained from making or causing any sale, assignment, transfer, or interference with [the yacht]."14

*Second*, Kwok disobeyed the Order by causing the yacht to leave the jurisdiction about two weeks after the Court issued the Order (and continues to disobey it).

*Third*, Kwok is a sophisticated party, who is involved with this litigation and obviously had knowledge of the Order. Moreover, his counsel specifically sought clarification of the Order at the November 12 conference,15 during which he stated that he "[u]nderstood" "the Court's directive" that Kwok was required to make a motion before removing the yacht from the jurisdiction.16

*Fourth*, PAX has been prejudiced by Kwok's intentional flouting of the Order. Kwok has been trying for years to frustrate the eventual judgment of this Court, and he has been trying for far longer than that to avoid repaying his debt to PAX. Kwok shields his assets through family members and shell companies, and it will be difficult enough for PAX to collect on assets within the United States. If Kwok were permitted to expand his shell game by hiding his yacht

14 *See supra* n.5.

15 *See supra* n.6.

16 *See supra* n.9.

somewhere on the open seas outside this Court's jurisdiction, PAX's chances of enforcing against that asset would decrease significantly.

# **CONCLUSION**

For these reasons, PAX respectfully requests that the Court enter an order, under CPLR 5104 and Judiciary Law section 753, (i) finding Kwok in contempt of Court for disobeying the Order; (ii) directing Kwok immediately to cause the return of his yacht, the Lady May, to the jurisdiction of the Court; and (iii) granting such other and further relief as the Court deems just and proper.

DATED: December 24, 2020 New York, New York Respectfully submitted,

O'MELVENY & MYERS LLP By: */s/ Edward Moss ^* Stuart Sarnoff (ssarnoff@omm.com) Edward Moss (emoss@omm.com) 7 Times Square New York, NY 10036 (212) 326-2000

-and-

Robert W. Seiden (rseiden@seidenlegal.com) 1120 Avenue of the Americas New York, NY 10036 (212) 626-6708

*Attorneys for Plaintiff Pacific Alliance Asia Opportunity Fund L.P.*

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## **CERTIFICATION OF WORD COUNT**

Plaintiff hereby certifies that this document complies with the word count provisions of Commercial Division Rule 17. This memorandum of law was prepared using Microsoft Word, and the total number of words in this memorandum of law, exclusive of the caption, title, and signature block, is less than 4,200 words.

DATED: December 24, 2020 New York, New York Respectfully submitted,

O'MELVENY & MYERS LLP By: */s/ Edward Moss ^* Edward Moss (emoss@omm.com) 7 Times Square New York, NY 10036 (212) 326-2000

*Attorneys for Plaintiff Pacific Alliance Asia Opportunity Fund L.P.*

Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 82 of 134

# **EXHIBIT 12**

**FILED: NEW YORK COUNTY CLERK 01/27/2021 09:30 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 709 RECEIVED NYSCEF: 01/27/2021 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 83 of 134

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P.,

Plaintiff,

Index No. 652077/2017

Hon. Barry Ostrager

KWOK HO WAN, *a/k/a* KWOK HO, *a/k/a* GWO WEN GUI, *a/k/a* GUO WENGUI, *a/k/a* GUO WEN-GUI, *a/k/a* WAN GUE HAOYUN, *a/k/a* MILES KWOK, *a/k/a* HAOYUN GUO, GENEVER HOLDINGS CORPORATION, and GENEVER HOLDINGS LLC,

Mot Seq. No. 12

Part 61

Defendants.

# **MEMORANDUM OF LAW IN FURTHER SUPPORT OF PLAINTIFF PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P.'S MOTION FOR ORDER OF CONTEMPT AGAINST DEFENDANT KWOK**

#### **TABLE OF CONTENTS FILED: NEW YORK COUNTY CLERK 01/27/2021 09:30 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 709 RECEIVED NYSCEF: 01/27/2021 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 84 of 134

# **Page**

| PRELIMINARY STATEMENT 1 | | | | | | |--------------------------|--------------------------------------------------------------------------------------------------------|--|--|--|--| | ARGUMENT 1 | | | | | | | I. | The October 15 Order Prohibited the Lady May from Being Moved Outside this Court's Jurisdiction. 1 | | | | | | II. | The Court Should Hold Kwok in Contempt. 4 | | | | | | CONCLUSION 11 | | | | | |

#### **TABLE OF AUTHORITIES FILED: NEW YORK COUNTY CLERK 01/27/2021 09:30 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 709 RECEIVED NYSCEF: 01/27/2021 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 85 of 134

# **Pages**

# **Cases**

| 1319 Third Ave. Realty Corp. v. Chateaubriant Rest. Dev. Co., LLC, 2007 WL 2701271 (N.Y. Sup. Ct. Sept. 17, 2007) 10 | |--------------------------------------------------------------------------------------------------------------------------| | 2619 Realty, LLC v. Fid. & Guar. Ins. Co., 303 A.D.2d 299 (1st Dep't 2003) 2 | | Bogoni v. Friedlander, 197 A.D.2d 281 (1st Dep't 1994) 6 | | Dep't of Hous. Pres. & Dev. of City of New York v. Deka Realty Corp., 208 A.D.2d 37 (2d Dep't 1995) 10 | | L & R Expl. Venture v. Grynberg, 2011 WL 1564647 (N.Y. Sup. Ct. Apr. 19, 2011) 10 | | Wengui v. Zeng, Index No. 157025 (N.Y. Sup. Ct. Sept. 2, 2020) 5 | | Other Authorities | | MERRIAM-WEBSTER.COM, Interfere 2 | | Rules | | N.Y. R. Professional Conduct 3.3 4 |

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# **PRELIMINARY STATEMENT**1

Given this case's history, it is not clear whether Kwok's Opposition is the single most disingenuous submission he has made to this Court. But it certainly is up there. With a straight face, Kwok argues that (i) moving and keeping the Lady May outside this Court's jurisdiction did not violate the October 15 Order—even though the Court expressly and repeatedly has said that it did; and (ii) even if moving the yacht were a violation, Kwok should not be sanctioned because he does not own the Lady May—even though he repeatedly has stated, both in a court filing and on social media, that he does. Enough is enough. The Court should hold Kwok in contempt and impose a sanction sufficient to motivate him to comply with the Order and bring his yacht back to this jurisdiction—and keep it here.

### **ARGUMENT**

# **I. The October 15 Order Prohibited the Lady May from Being Moved Outside this Court's Jurisdiction.**

Kwok does not dispute that (i) the October 15 Order restrained, "in accordance with the proceedings on the record of October 15, 2020," both "Kwok and/or the registered owners of . . . 'the Lady May' . . . from making or causing any sale, assignment, transfer, or *interference* with th[at] asset[]"; 2 or (ii) the Lady May has been moved out of U.S. waters. Instead, he argues that the move out of the Court's jurisdiction did not technically violate the October 15 Order because

1 This brief refers to (i) Defendant Kwok Ho Wan's Memorandum of Law in Opposition to Plaintiff's Motion for an Order of Contempt (Dkt. No. 698) as the "Opposition" or "Opp;" (ii) the Affirmation of Edward Moss in Further Support of Pacific Alliance Asia Opportunity Fund L.P.'s Motion for Order of Contempt Against Defendant Kwok as the "Moss Reply Aff."; and (iii) the Affirmation of Nathaniel Francis in Support of Pacific Alliance Asia Opportunity Fund L.P.'s Motion for Order of Contempt Against Defendant Kwok as the "Francis Aff." Unless otherwise specified, (i) defined terms have the meaning given to them in the Memorandum of Law in Support of Pacific Alliance Asia Opportunity Fund L.P.'s Motion for Order of Contempt Against Defendant Kwok (Dkt. No. 689), (ii) all emphasis is added, and (iii) all internal citations and quotations are omitted.

2 Opp. at 3 (citing (Dkt. No. 630)).

#### **FILED: NEW YORK COUNTY CLERK 01/27/2021 09:30 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 709 RECEIVED NYSCEF: 01/27/2021 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 87 of 134

(i) the Lady May's "ownership" has not changed; (ii) "Plaintiff neither asked for nor received any direction from the Court prohibiting the Lady May's relocation" at the October 15 hearing; and (iii) the Court explained at the October 15 hearing that ordinary course expenditures—for example, "if Mr. Kwok wants to take a vacation in the middle of the coronavirus pandemic" were permitted.3

These arguments are frivolous. To begin, Kwok has no answer for why moving the yacht does not count as "interference" with the October 15 Order (it does), 4 nor how spending money in the ordinary course on a vacation somehow equates to moving a restrained, multi-million dollar asset outside of the jurisdiction (it does not). Indeed, the Court already has rejected Kwok's "ordinary-course" argument. In response to Kwok's counsel's question seeking clarification as to whether the restraining order applied to the payment of legal fees, the Court explained the contours of what it meant by "ordinary course."5 *Immediately after that clarification***,** Kwok's counsel asked whether the Lady May could be moved to the British Virgin Islands because that was "just an *ordinary thing* that is has to do for licensing purposes."6 The Court responded in no uncertain terms that Kwok *was not permitted to move the yacht before making (and winning) a motion seeking leave to do so*. 7

3 Opp. at 6–9.

4 "[I]t is common practice for the courts of this State to refer to the dictionary to determine the plain and ordinary meaning of words to a contract." *2619 Realty, LLC v. Fid. & Guar. Ins. Co.*, 303 A.D.2d 299, 301 (1st Dep't 2003). The ordinary meaning of "to interfere" is "to interpose in a way that hinders or impedes." MERRIAM-WEBSTER.COM, *Interfere* (*available at* http).

5 *See* Dkt. 691 at 12:23–13:5 (permitting legal fees that are "customary and reasonable").

6 *Id.* at 13:9–18.

7 *Id.* at 13:19–24.

Worse, Kwok completely ignores this Court's *repeated, clear, and unequivocal statements* that moving the Lady May *would (and did) violate the Order*. First, at the October 15 hearing (which was expressly incorporated into the October 15 Order that issued later that day), the Court specifically discussed the Lady May and directed Kwok that the yacht and other assets not be moved so that they would be available for collection if PAX were to prevail (*i.e.*, so as not to *interfere* with PAX's potential judgment-enforcement efforts):

> *Wherever these assets are held, they are going to remain held where they presently reside* and if it's determined that the entities that are presently listed as the owners of the assets are the alter ego of Mr. Kwok or are wholly dominated and controlled by Mr. Kwok, *those assets will be made available to satisfy any judgment that the plaintiff recovers.*8

Then, at the November 20 hearing, Kwok's counsel asked "two questions . . . *clarifying*

*the scope of the restraining order* that the Court has entered"—one of which was whether the

Lady May could be moved outside the jurisdiction (even though, we now know, it already had

been moved by that time).9 As noted above, the Court unequivocally answered "no"—not

without first making and winning a motion and a further Court order:

You will have to make that application on papers. *I don't know anything about the requirement that an asset that has been restrained in the United States should be allowed to go to the British Virgin Islands*. I seriously doubt Mr. Moss wants that yacht to be outside the jurisdiction of the Court. . . . *What I am not going to have happen is Mr. Kwok move the yacht to the British Virgin Islands and then it becomes potentially unavailable for Mr. Moss's client to levy upon*. . . . Mr. Siegal asked me a question about *whether the restraining order can be modified to allow this yacht to move from a US port to the British Virgin Islands*, and I said that's an application that has to be made on formal motion papers with supporting documentation and appropriate opportunity for Mr. Moss to reply.10

8 Dkt. No. 647 at 22:8–14.

9 Dkt*.* No. 691 at 12:23–25.

10 Dkt*.* No. 691 at 13:19–15:4.

Finally, at the most recent hearing on December 18, the Court again reiterated what should have been quite obvious to Kwok by that point:

> Okay. So, let me ask you, we have an issue *with respect to a boat that I enjoined Mr. Kwok from moving* which he may or may not have *moved in violation of the Court's order*. . . . It seems to me *I ordered the boat not be moved*. 11

Given the plain meaning of "interference" (*see supra* note 4) and the Court's repeated,

unequivocal directives, there is no question that the October 15 Order has been violated. Kwok's

suggestion otherwise is misleading. 12 And if Kwok argues that he should get a pass because the

yacht already had been moved by the time of the October 15 hearing (*i.e.*, before his counsel

asked and was denied permission to move it), then the answer is quite simple: it should have

been brought back *immediately* after the Court issued the October 15 Order.13

# **II. The Court Should Hold Kwok in Contempt.**

While Kwok advances several other meritless arguments for why he personally should

11 Dkt. No. 695 at 25:15–18, 27:21–22.

12 *See* N.Y. R. Professional Conduct 3.3(a)(1) (providing that a lawyer's duty of candor toward the tribunal prohibits him or her from knowingly "mak[ing] a false statement of fact or law to a tribunal"); *see also* Dkt. No. 647 at 21:11–16 ("The Court believes . . . that Mr. Kwok has attempted to mislead the Court. The Court believes that Mr. Kwok is, as the plaintiff contends, playing a shell game with his assets, and has violated if not the letter of court orders, the spirit of court orders."), 26:5–9 ("While orders of the Court are either flaunted or exceedingly liberally interpreted, and while intentional or unintentional misstatements that have misled the Court have been made to the Court, we are going to have closure in this case in January of 2021.").

13 We take Kwok's counsel at his word that he did not know the Lady May already had been moved out of the jurisdiction when he asked the Court if the Lady May could be moved out of the jurisdiction. But later—after being informed by PAX that the yacht was actually out of the jurisdiction—Kwok's counsel wrote to the Court and explained that because his firm had just been informed by PAX about the yacht's location, "we have not confirmed any details," but were "attempting to gain additional information and will promptly inform the Court and counsel when we learn anything further." Dkt. No. 649. Contrary to that representation, however, Kwok did not, before responding to this Motion, provide any additional information to the Court about the yacht's location. *See* N.Y. R. Professional Conduct 3.3(b) ("A lawyer who represents a client before a tribunal and who knows that a person intends to engage, is engaging or has engaged in criminal or fraudulent conduct related to the proceeding shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.").

not be held in contempt, they all reduce to his core assertion that he does not own—and therefore cannot control the movements of—the Lady May. Who does Kwok think he's kidding?

As PAX already has demonstrated, Kwok alleged fewer than five months ago—in a September 1, 2020 complaint *he filed i*n New York Supreme Court—that "pawns of the Chinese Communist Party . . . have attempted to cause Guo [a/k/a Kwok] injury while on *his yacht*." *See Wengui v. Zeng*, Index No. 157025/2017 (N.Y. Sup. Ct. Sept. 2, 2020), Dkt. No. 1 (Complaint at ¶ 8). That sentence in Kwok's own complaint ends with a footnote that cites and links to (and thereby incorporates by reference) an article by *freebeacon.com* entitled "Beijing Suspected in Hacking Yacht *Owned by* Chinese Billionaire," which states that "Guo Wengui, who uses the English name *Miles Kwok, said* several incidents involving *his 152-foot motor yacht, Lady May*, appear to be part of a Chinese government effort to threaten and intimidate him."14 It is not surprising, then, that in the context of restraining the Lady May, the Court described it as the "27 million-dollar yacht *which Mr. Kwok once claimed to have owned*."15

Notably, counsel for the Genever Defendants in this action, Aaron Mitchell, serves as counsel for Kwok personally in *Wengui v. Zeng*. Mr. Mitchell signed the complaint that repeatedly referred to the Lady May as "his [*i.e.*, Kwok's] yacht" and incorporated by reference the *freebeacon.com* article reporting that the yacht was "owned" by Kwok. Even though Mr. Mitchell supposedly does not represent Kwok in this case, he argued on Kwok's behalf at the December 18 hearing, contending that his September 2020 complaint "wasn't referring to ownership," but rather merely to "the fact that Mr. Kwok was on that boat," and chided PAX's

14 *See id.* at 3 n.1 (citing http). The complaint also refers to the Lady May as "his" (*i.e.*, Kwok's) yacht in Paragraph 7 and in Prayer for Relief (d).

15 Dkt. No. 647 at 22:5–6.

counsel for its "absurd reliance" on that pleading.16 Given Kwok's track record, perhaps Mr. Mitchell was onto something when he suggested it was "absurd" for PAX to actually rely on Kwok's own words.

Kwok's Opposition is even more disingenuous; it mischaracterizes PAX as arguing that Kwok owns the yacht in part because he was supposedly a "guest" on it (something PAX has never argued), and claims that PAX has no evidence of ownership.17 Even if Kwok's *own pleading*—a judicial admission18—were insufficient to establish ownership (and it is more than sufficient), PAX has much, much more:

On May 10, 2017, Kwok "tweeted" (on his since-suspended Twitter account) the following photo of himself sitting on the Lady May, accompanied by Chinese characters that, translated, state "I am posting a few photos of the yacht *I gave to my daughter* and named after her. . . . Her name is Lady May. . . . *I bought it for 41 million euro*":19

16 Dkt. No. 695 at 26:23–27:12.

17 Opp. at 8–9.

18 *See Bogoni v. Friedlander*, 197 A.D.2d 281, 291–292 (1st Dep't 1994) (An admission in an initial pleading is a "formal judicial admission" which is "evidence of the facts admitted.").

19 Francis Aff. Ex. A.

![](_page_91_Picture_1.jpeg)

Then, on August 27, 2017, Kwok (again, on his since-suspended account), referred to the

"Lady May" as "*my ship*" and recalled that "two years ago when I was in Miami . . . *I [] signed*

*the most important investment contract of my life*," and it "all seems so meaningful."21

But we have saved the best for last. As an October 14, 2017 YouTube video shows,22

Kwok was filmed *stating unequivocally that the boat was his*: 23

> *I decided to sell it* because it has an aluminum body. With an aluminum body, it drifts a bit at sea. It's okay in shallow waters. I wanted to use the heavier one, the bigger one, which is also a Feadship, since it is made of steel. I wanted to go further out to sea. . . . *I advertised it twice*, but my offers were relatively high, about US\$50 million, 31 million euros, which

20 *Id*.

21 *Id.*

22 *See* Moss Reply Aff. ¶ 3 (directing the Court to minute 2:50 through minute 4:15 in a YouTube video available at http).

23 Moss Reply Aff. Ex. 4.

was around US\$50 million. When *I listed* it at that higher price, *I had one offer* just below *my* asking price, but *I did not sell it.*

![](_page_92_Picture_2.jpeg)

![](_page_92_Picture_4.jpeg)

This is all straight from Kwok's mouth: *He* bought the Lady May, *he* had it shipped, *he* decided to list it for sale, and *he* put it in his daughter's name to shield it from creditors. Kwok's contention that he is merely some "guest" aboard the yacht is (yet another) flat-out lie.

24 *Id.* The screenshots were taken directly from YouTube and already included the captions, which a certified translation confirms are substantially accurate. *See* Moss Aff. Ex. 4.

Of course, Kwok's contention that he does not own or control the Lady May and that it is really owned by an entity, HK International Funds Investments (USA) Limited LLC, which is wholly owned and controlled by his daughter Mei (pronounced "May") Guo, is right on-brand. Kwok is a self-proclaimed billionaire who, when it suits him, pretends to have no assets25 precisely because his practice is to use shell companies and his children and employees to shield his assets. For example, Kwok is now claiming in the Genever bankruptcy case that the Genever Defendants are beneficially owned by another shell company that is owned by his son—despite never disclosing that to the Sherry-Netherland and never making that argument before this Court to try to avoid an attachment.26 And not only has Kwok repeatedly stated that the Lady May is "his" (including in the above-described September 2020 complaint that he filed *after* he supposedly gave the yacht to his daughter), but HK International is a mere shell company (i) that did not have the yacht registered in its name until April 2020 (when PAX was in the red zone in this litigation);27 and (ii) with a "principal office" address of 162 E. 64th Street—the same address as (surprise!) the offices of Mr. Mitchell—who regularly represents Kwok or his shell entities, depending on the case.28

\* \* \*

During the October 15 hearing, even before the Court knew that Kwok had moved the yacht, it explained that in this "2017 case in which there's been a great deal of gamesmanship, a

25 Dkt. No. 580 at 100:2–3 (testifying that his net worth is "negative"); 101:3–5 (testifying that "[i]n reality, under the law" he has "no" assets).

26 *See* Moss Reply Aff. Ex. 5 at ¶ 4 (claiming that Bravo Luck is (i) "the beneficial owner" of the Sherry-Netherland apartment and (ii) "a company owned by Mr. Qiang Guo, the son of Mr. Kwok Ho Wan a/k/a Miles Kwok").

27 *See* Opp. at 4, n.2.

28 *See* Dkt. No. 705 at 1*.*

great deal of dissembling, and some flagrant disregard of court orders . . . [t]he Court believes that Mr. Kwok is, as the plaintiff contends, playing a shell game with his assets . . . ."29 The Court further stated that "we are not going to have any more shell games."30 Unfortunately, Kwok's shell games have continued, his dissembling and gamesmanship have only intensified, and he has once again flagrantly violated an order of this Court.

This Court has the discretion to impose a sanction on Kwok sufficient to motivate him to comply with the October 15 Order. Indeed, "the purpose of civil contempt is to coerce obedience to a court order."31 In a separate case against him in Nevada, for example, Kwok was sanctioned \$250,000 per day until he finally complied with a court order requiring him to meet his most basic discovery obligations.32 The violation here is far worse.

Given Kwok's repeated violation of this Court's orders, his obvious financial means as a self-proclaimed multi-billionaire, and the gravity of and materiality to PAX of the current violation, PAX respectfully requests a sanction—monetary or otherwise—that is sufficient to compel Kwok to comply with the October 15 Order and bring the Lady May back to the jurisdiction immediately.

29 Dkt. No. 647 at 24:9–11; 21:13–15.

30 *Id.* at 22:7.

31 *1319 Third Ave. Realty Corp. v. Chateaubriant Rest. Dev. Co., LLC*, 2007 WL 2701271, at \*2 (N.Y. Sup. Ct. Sept. 17, 2007); *see also Dep't of Hous. Pres. & Dev. of City of New York v. Deka Realty Corp.*, 208 A.D.2d 37, 42 (2d Dep't 1995) ("A civil contempt penalty is imposed not to punish but, rather, to compensate the injured private party or to coerce compliance with the court's mandate.")*; L & R Expl. Venture v. Grynberg*, 2011 WL 1564647, at \*4 (N.Y. Sup. Ct. Apr. 19, 2011) ("The court has authority to punish a litigant that disobeys a lawful mandate. The purpose of civil contempt is to coerce compliance with a court order or to compensate a party who is injured as a result of disobedience of a court order.").

32 *See* Dkt. No. 557 at 2 (ordering Kwok to provide the Court with a phone number where he could be reached and either (i) an address where he would accept service of discovery documents, or (ii) and email address where such documents may be sent).

![](_page_95_Picture_0.jpeg)

### **CONCLUSION**

For these reasons, PAX respectfully submits that the Court should hold Kwok in

contempt and order appropriate sanctions.

DATED: January 27, 2021 New York, New York Respectfully submitted,

O'MELVENY & MYERS LLP By: */s/ Edward Moss ^* Stuart Sarnoff (ssarnoff@omm.com) Edward Moss (emoss@omm.com) 7 Times Square New York, NY 10036 (212) 326-2000

-and-

Robert W. Seiden (rseiden@seidenlegal.com) 1120 Avenue of the Americas New York, NY 10036 (212) 626-6708

*Attorneys for Plaintiff Pacific Alliance Asia Opportunity Fund L.P.*

![](_page_96_Picture_0.jpeg)

### **CERTIFICATION OF WORD COUNT**

PAX hereby certifies that this document complies with the word count provisions of Commercial Division Rule 17. This memorandum of law was prepared using Microsoft Word, and the total number of words in this memorandum of law, exclusive of the caption, title, and signature block, is less than 4,200 words.

DATED: January 27, 2021 New York, New York Respectfully submitted,

O'MELVENY & MYERS LLP By: */s/ Edward Moss ^* Edward Moss (emoss@omm.com) 7 Times Square New York, NY 10036 (212) 326-2000

*Attorneys for Plaintiff Pacific Alliance Asia Opportunity Fund L.P.*

Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 98 of 134

# **EXHIBIT 13**

# **Susan Hennelly**

From: Sent: To: **Subject:** Attachments:

Susan Hennelly Tuesday, March 03, 2015 3:31 PM BoardOfDirectors Sale of Apartment 1801 and Maid's Room 2219 Kwok board package.pdf

We have received a contract for the sale of the 2,950 shares allocated to Apartment 180'1 and the 50 shares allocated to Maid's Room 2219 from Sherry 1800s, LLC (Haroche) to Genever Holdings LLC (Miles Kwok).

Attached are copies of the contract of sale1 Mr. Kwok's application and several letters of reference.

The purchase price is \$67,500,000, plus \$2,500))00 for the furnishings. The 2015 maintenance is \$55,214 per month plus an additional \$936 for the Maid's Room. This is a residential apartment and will be used by Mr. Kwok and his family.

Due to Mr. Kwok's foreign status and purchasing in an LLC, he will be required to sign an occupancy agreement and personally guarantee the lease. He will also be required to provide a security deposit.

This apartment encompasses the entire floor and is approximately 7,300 sq. ft. plus 2,170 sq. ft. of terraces. Attached is a floor plan.

Mr. Kwok has also entered into a contract to purchase Maid's Room 719 which he will purchase simultaneously, if approved.

Michael Horvitz and Fred Seegal have interviewed Miles Kwok and his son, Mileson Kwok. His wife, Hing Chi, was present via Skype.

Very truly yours,

Michael J. Ullman Executive Vice President & Chief Operating Officer The Sherry Netherland Hotel 781 Fifth A venue New York, NY 10022 P: 212-231-6811 F: 212-832-4845 For reservations and special offers, go to

# Executed Contract of Sale

**FILED: NEW YORK COUNTY CLERK 11/28/2018 12:22 PM** INDEX NO. 652077/2017

134

NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 11/28/2018 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 101 of

### CONSULT YOUR LA WYER l3EP'ORE SIGNJNC THIS AGREEMENT Contrllc(of Salc-\_Cooperative Apartment

T/Jis Contract is marle as of February \_\_\_ , *2015* between the "Seller" and the "Purchaser)I identified be!ow.

J Certain Dcfinlt!ons And foformation ! . I The: "Parties" arc: J.f.'Z "Purclrnsor"; Gcncver Holdingi LLC

*1.1.1* ''Seller"; Sherry l800s, LLC *Prtor Hames 1.1.ud by Sellar: ;fddrc~s. l 233 Rock Rimmon RMr/i Sf(lmf1'rd, CT 06903*

*Tcv: ID. No .. l0-0780J54*

*A dd1e,1·,r* · *SS. No .. •*

1.2 Tl1e "Atcornc:ys" ort *(name, firm name, address <111d telephone.fax).*

Michael *J.* Jones, Esq, Im Gilbert, **Esq, 170 Muon** *Street,* Greenwich, CT O@JIJ 1285 Avenue of the Amerl.:11 Tel: 203-661..{;000 New Ywk1 [';\' 10019-6064 Fax: *203-661,1088* **Tei;** 2l2<J?3-3529 mJorm@iholow.com Fu: ZU-492-0529

J .J 1ne "Escrowcc" is *1he (Seller 'sj* Attorney,

l ,4 The Managing Agent is *(1tom.e addre.rs and Je/ephorre, fax)· Sherry Nelftt:rlrmd Hofe/ Susan Hmud(y 7~1 Flfllt A11m11e, r', New York., NY /0022 Tel: J /J.]3!~68/ l 2/1-83;....,MJ*

*1,5* TI1c real estate ''Broker{st (see~ 12) is/are: J-0!111 Burger, 11 n d **Ka** thy Sloime, Drown !~lllrris Stever1s *And* Soren *a* Bo11rdmirn, Sotheby's l *,G* The name of the cooperative housing corporation (''Corporarion'') is: Sh~rry **Netherland,** lne:.

I. 7 "J110 "Unit" !lumber is: 1801, which eocomp11tsses the entire •

! .8 The Unit is located in "Pr:miscs" known as: *7B* I fifth Avenue, New Yor!<1 NY

l. 9 The ''Sh!!rcs" ore the sh!lres of the Corporation allocuted to the Units.

• 11,<" Floor, excrp( elevator haflw11y onrl ioclu~ling Maid's Room 1519

1.1 0 The 'Lease" is the Corporation'., proprielary lc11sc *or* I, 19 **!Purchaser}** shall pay lhc Corpornt:on's flip tux, trans for occupancy ugreernen? for the U:iit, given by the Corroration fee (apart from the transfer agent fee) and/or waiver *o(* option which expires on fee ("Pllp 'fox"), ff ~ny.

exlent existing i11 the Unil on **the** date hereof: t/ie rddge111tors, *-hJO,Hf'-h.J{),-P}* freezers, rang~, ovens, bui/(-i11 microwave owns, dish,;,tashcrs, ~fvMWHOO,y-«J¥ly-¾Br-lir-1aftOiHg-ifH:iooM-OtioR-',Y+llt-#lls garbc1gc disposal 1Jllits, cabinet:; iu1d coun:ers, lighlin~ fixtures, 6€».:HilHi-•Pw4as~ati<:IA-1~~\rncl--tll ch11r1deliers, waif-lo-wall carpc:ing, rlumbing and ht:iiting 0011tiA~fH>ft.W-.,1JMl6il-·-O-f--O-booft-C~fflfflt{moot-~t.ir-..to/-U1e fixtures, central a.ir-<.:ondition/ng **;and/or** window or sleeve unit:;, 6%ft~!ffi~-Ga~.:i+, washing 111aci1ine;;, *cryrrs,* screen:; .ind storm wiodows, window +~~P.¼lr-\lfl~-may-af})lly--feHiFWM~nH~oo-Yrlth-lhts !m1rmcnts. switch pJatcs, door h:mJwllfc, mirrors. buif:-ins not ~-&-~H1~as~RHJ0Hgalien-to-fHtl'OOtlSfH.l1ltlef-4.is-GMtffi~-tS excluded Jn *1* l.12 tllld all of the 'urnishiogs n,,ekt<ltnttbtH· n&t Ml-GGnH<1g1!flHJJ}OJ1• 6tJUi\noooH1-h-Oan-Q:imffiitm<;fOH&Wr H,nH-«l- *~o-* -evcr,rd rtr- dtin~, -~.---p,nn,-rovkrng-- H-erm, +o-J{}.J.Jlur<;1t1.asw-,t;h,a~-epp~.feHifH1Ratf\-g-11KOOf100t-ioo-w.itl1 **Rt1tWM'-e,1t1-we!f-1H"'i.'f")'ft111-tm~-rl-eeaftters,-etc-hi-tfw** *~le. bltt"'ttt'-c-ilr"* and personal property (except os 1.21 Tr~ I 2G. I or-1..,;,o~ffli~o-!!-RMn-G~w+J.S

1.2. I "Seller's Allorney" ! .2.2 ''Pun:haser's Attorney'' **Ivey,** D1mrnm & **O'Mar11 1**LLC Paul, Weiss, **Rffkl11ci 1**Wlrnrton & Gnrr!son, LLP igllbcrt@pa ulwclss .com

1see l.12 below0

t. !2 Sp.c,;;;.fi.1;..iUy..cx,.;Juo,:,J../.;o~l..illL&.s11lc-u .all..J1"t.501Jl'i .. pt0f~- **-!lwi.** in<lu,:k4-~.;4,i . .J.J-uu.i.<lU...w~LJu.clud~~ .tw;..iul.t- "4fu.tM~ffj.H~I-J.ff~,gi. tHtff-4f'IIWfflg'~nt~ **'lfect"mf'J"fl,-k,,e1t-« ,f-wa -LR-fwUJ..oo.~rf16r~&fHH- "'k1t~k-ktltek!1Lw-e{1-a~:,~r-fl~~~•11ttt,** p **tcttrreS ,-e1e.**

L 13 **The** safo [docs} [e~J Include Seller's lnt¢rest in [~}/ *[Servnnt 1 s* Room# 15191/ f Pw-ktftg-SpslOOJ

("lnch,Jed !nten:sts") 1.14 TI1e "Closing" is the transfer of ownership of the !-ihares and Lease,

1.15 The dato scheduled for Closing is no later than 3/6/15 C'Scheduled Closing Date"} at I0:00 **A.M.** (Sec ml *9* and lO)

I. t6 The uPurchase Price" is: \$67,500,000.00

1.16.1 The "Contract Deposit" is: \$7,000,0-00.00

l .16.2 The HBalance" of the Purchase Price due al Closing is;

\$63rOOO,OOO.OO (See~ 2.2.2) See SR18 in Second Rider

1.17 The monthly "Ma.lntc1111ncc" charge is \$57,085.53 (Sec i

4) LI 8 The "As:;i;ssment", if any, payable to the Corporation, n(

*the* date of this Contract *is* NONE, pay11bfc *as* follows:

I.I I "Personally" is lht: following person11/ property, to the *+.-a~tftfttlfflg-GptiiiFY.,-{~le-AWH,/-lh.e-{o/lewittg* ?11 *UI.I,*

specifically excluded in 1.2.2), including but uroH1-loon--of-~----f1•HJ~(unn--0~----.ye,m;..:1r-1;uch-J£1r,1;t,r not UJtlited t..o 411 it~ms set t,oxth i.ri trie series of videos contained in the DVD(the "DVD") delivered by Brown Harris Stevens to Unit 1801 at L:Ou pm or i-ebruary :LU, 201 o.

(j 1.12 - Specifically excluded from this sate are thirteen (13) **paintings** and drawings; one antique secretary desk on east wall of LR *(to* be replaced by a piece of furniture that resembles this desk); personal 'knick knacks' such as small boxes, docks, picture frames, pictures, etc. (but if 'knick knacks' are in the DVD, they are included); file cabinets in Gil's office and contents thereof; all the clothing, framed photographs(except specific frame to be designated by buyer) and the model of the Seller's private yacht located in Seller's office.

**FILED: NEW YORK COUNTY CLERK 11/28/2018 12:22 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 11/28/2018 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 102 of

c,,:1nut *,(* j,1,ft (ll~jtHttl','t n.pl'l(/l,j(fli1 1-:.00 I J'cop.r,,I h) "'' (.',,,,,,i,rr<un Co11don1l1,l11,11 ,11i/ <:001m~fln *o(* Iii< ll<MI l'ru1m 1y Serl/on 1/ tli~ Ii"• *York* lilllf *Dur* A11arlnl1u,1

CONSULT VOUR LA WYE!{ I3Efl'ORII SYGNJNG THIS AGREEMENT

134

#### Contract Qf Sulc - Cooperative Apartment

Tills Contract is made *as* of Fcbruary\_l\_i\_1 20 J 5 between the "Sellcr'1 and the "Purchaser'' identified below.

J Certain Definitions 1rnd Informa1!011 1.1 Th~ "Panics" am: l.i.l 11Sc/ler": Sherry *1800s,* u:,c **l,f,2** 11Purchssor 11 1Gonovcr f-loldlngs LLC

*Prior Hattuu 1md by Sd!ar: Addr!!n: 1233 Rock Rlt11mott Read, Sla11tf(}nf1 CT 0690J*

*Tax ID. No.: 'J0-0780.fJ'I*

*Addre,v.,;·: S.S. N1J,:*

1.2 The "Attorneys" ore *(nam,, firm name, add,·e.rs and ulephone, fax),* 1.2. I "Seller's /\tcornoy" ! .2.2 "Purchast:r's Allomey'' Mlch11e! J. *Jones,* E;q, *il'R* GUbert, *tsq,* Ivty, 131mn1m & O1 M11r11 1 LLC Poul, **Weiss,** Rll'kfnd, Wh11rton & G11rrlsori1 LLP *1 '70* Muon *Street,* Groenwlch1 CT 06830 l:28~ Avenue o(the America Tel: 203-661-6000 New York, N\' 10019-6064 Fu: 203-651-7088 Tri: Zl2-J7J.JSl9 mJorie.s@lhofow.com Fin:: **212-492•0529**

l .3 The "E~crowcc" *Is 1he /Seller 'J}* A Horney.

l ,4 The Managing l\genl is *(Ham,e, addres., and telep!wrra, fu.X): Slfttrry Nti1(11:rin11d Hori:( Susan H1m11el{J! 781 Flftlt Avttnw.:, 1'1 1 Nt!W fork, NY 10011 Td: :Jl].J3J,681J P~ JJJ-8J:.i-fU5*

*1.5* TI1c real cstat~ 1 'Brnl<~r(s)" (see~ 12) ls/are: John Burger, 1rnd Kathy S1011.ne, Drown **Harris** *Stevens ind* Serena Dondm•n, Sotheby'\$ 1.v The name of the ccoporatlve hol.l!llng corporal/on ( 11C-Orporarlon") b: Sherry Netherland, Inc.

I. 7 'Jl10 "Unit" 1wmber I:;: 1801, which eticompaues the entire•

! , *8* The Unii ls locate<! /11 "Pr-::mlses" known us: 78 **t** fflfth

**Avenue,** New York, **NY** 1.9 The "Shares" are the shores or the Corporation aflocated to

the Unit.a • **JH'"** Floor, except clcv11tor hallw»y 11nd Including Maid's Room 1519

LIO The "Lec~c" *is* !he Corporation's pruprletvry tense or U *9* IJ"'urchuor} shall pay (Ile Corpor1ttion's flip ui;r;, tta11\$for occupanay ogrcement for the U:-ilt, g(vcn by the Corr,oratlon fee (apat\ from the transfer aicnl fctJ) and/or waiver oi option which ~1<p!rcs on fee (''Flip Tru<''), Ir 11ny.

cxh;11t existing in lhe Unit on the cliue ht'!reor: 1hc refrigerators, *f-:;Jl>..J-tlf'-/-;-J{):1-) frcc,.crs,* ranges, *ovens,* bul/(•in m lcrowovo oven~, dish washers, ~~r-fifi8:fKttilf:-tlH9fHl-eeHeA-Wkfl---#lJs gorb~ge dlspo5fll units, Cftblnets DJld counter.i, llghtlng fj:,:turcs, ~1&-P-uf'OOB~&Hgatwn-4~hl&-Ooo\taCHil chn11dollers, wal/-10-wflll *carpo:ing,* plumbing ond he!lting &OOt-ffi&:~~~er--Oy--tlie *f1xturos,* Qan(rai alr...cundhlon/ng ;and/or window or sleeve uni!s, l,,ffn <AmmhMenl Date ('Ill *8.* I .2) washing mschlno~. *dry~rs,* screens and *storm* window,, wii1dow ~r~~ey-app~y..fw--RMfl~~<>fl-WHIHhf5 treafmcnt5, switch piatcs, door h!mlware, mirrors, buil:•lns no! ealiHl~~UgaHen-40-p1;1HJtWJ&-u~Hltl~ excluded /11 Y l. 12 *and* all of tit~ .. urn/.,hJni:.v tR1ktdf1tg-b«l-tt&! IHl~gtlflt--upon--i~o~n-{;emmltmool-le¼Wr H11tf~- **-~~d** 'tr - c-ftfti11 ;-p-&f,,---p1'1ltr,-ci,oirinir-H'C m,, ~~~1:1,-tiwi~1~tofi00-with fltt **tw1tt1e; 1tt-wttl-M-c-ry,<-11-t 1Mltt'"1tttd--d~e1t!lieNr -e~** m-tm,

lgllbor(@pllulwob-.com

1soe 1.12 helow0

I. 12 Spc.;;!kt1Uy..e;..;;lu.;JuLCl'.,ru....i.h~alc.J\$.lllLp,:ironaJ.propco.y .• mJl• tn-t,looe,d ..Jn ~"a-1 *""1-1-u .. i.* all-400tt..u'-Jw:;Juded. .ia..t!ie-.-i.1+:t~ **wfff"t-+ite--e«"t><~J.J..p~,g1r«ffQ4f°ffW~~~ te«l&fff')'~&tt-ffM--Wili-ff.1.J+twUI-IJ+-~r~ttWH- "knl-t.1<'1ffl1ttkt1'-~t-•t-e~~~~lfH--ff•Mff\ plct11'1"C3;e((',** I. 1J nw safo [dtwsJ [~) lnclude Scllc(s !ntttest io (Sto~t,i)/ [Servnnt's Room 1115191/ (PsAEi11g opaaej (•tncJudol.f **Jntt1ro-il.f')** 1.14 The ~closing" i, the tram:for of ownership of tho Shares and **Lcase,** *I.IS* The date scheduled for Closing ts no later than 3/6/15

('1 Scheduled Closing Date") *at* I0:00 **A.M.** (Seo *V'\19* and 10)

I, 16 The "Purohuse Price" Js: \$67,500,000.00

I, 16, l Tho "Contraot Deposit" *Is:* \$71000,000,00

LI *6,2* The "13alence" of the Purchase Price dUI! a( Closing !s: \$6J,ooo,ooo.oo (See~ 2.2,2) See SR18 in Second Rider

LI 7 The rnonthly "Malnlcnoncc'' charge fs \$S7,0BS.5J (Sec 1 4)

1.18 The "As~i:ssrnenl", If any, payable to the Cnrporatlo11, 111 the dale ofthfs Contract is NON€, payable as fol!uw:;:

f. I r uri:rson11/!y" is tile followlng pmon11I propcrt1, to th<i *-ti~-fl11HH1-0tng-GpH,1A-t,-fDoiffl!--lwc-({-<hv-fQ{fowt11t•.W-,LJ{;L/,*

bff"!tt"("tlr and personal property ( except as l.-at--f-P./-l,-.'10-,l--0r- h-20,~-«pplH)Hr1ho..!!.f.'1nnn~li1g-. 1'-0fr1w!!..-fof-•1-l 8

specifically excluded in 1.12), including but 11ro1----0-l1Jo11-0f-~- for-11-(vrrn· of-- -----y~11rn or-1,uoh-ll<vf!t•t· r;i.ot. UJllit~~ to till it~ms set f.o.rth in the series of videos contained In the DVD(the "DVD") delfvered by Brown Harris Stevens to unit 1801 at 2:0u pm or r-ebruary :.::u, 201b·.

G 1.12 - Speclflcally excluded from this sale are thirteen (13) paintings and drawings; one antique secretary desk on east wall of LR (to be replaced by a piece of furniture that resembles this desk)i personal 'knick knacks' such as small boxes, clocks, picture frames, pictures, etc. {but if 'knick knacks' are In the DVD, they ere , Included); file cabinets in Gil's office and contents thereof, all the ciothlng, framed photographs(except specific frame to be designated by buyer) and the model of the Seller's private yacht located in Seller's office. ·

8Hl0tJIH **Of** AhOf~M-ffif'--0~ aoae111~el0 ta Puf&hfl9Ell't e-tt~-4,oott--Gllflrn ttfft~t-Ptt?-for~f- ~g... i !I 1;1u/i;ntfor 111\y,,-a-Aef-d+~;er)' Dttli!,

I .22 The ''Delivery Date" oflhh Contract !s the :late on which a (1.JIJy executed counterpart of this Co11tr11ct l:i deemed given to ond r~ceived by Purchnser or P Jrchascr's Anorney as provided in~ l7.3.

1.23 All "Proposed OccupeJJts" ofthu U11H fire

l .2J i person, and relationship t, Purchnser:

L23,2pcm:

I. 24 The Contract Deposit sh1:!I be held in (A non-! IOLA -:scrow account. ff the account is o non• IOLA ucc0unt then Interest shall bo *paid* to the Party ontlllcd ''lo the Contract Deposit. The Party receiving the interest shall piy any Income 111.xes thereon. The escrow accoont shull be a segregated bank account at Depository: BNY MELLON

Addres~: 10 **Mamo Street,** Greenwich, CT 06830 (See 127) l 25 Th/,:; Conlrnct *Is* continuBd r,11 uwiched rlder(s),

*Z* **Agreement** to Se!l 11ntl P1m::hase; Purchase **Ptico;** Escrow

2.1 Seller **agrees** lo sell to Purrniiser, and Purchaser **agrees** to purchnse from Soller, the Seller's Shares, Lea.,c, Pmooally and any Inciuded Interests 11nd all o·hcr item~ lncluccd /11 thls sale, for tho Purcha~c: Price 1111d upO':'l the terms nnd condllion~ **set** forth in chll Comrncl.

2.2 The Purchase Price is payable to Seller by Purchaser **as** follows:

2,2. l th1.1 Conlracl Deposit a,t the time of signing this Contrncl *by* Purchaser's good check to the orcer of Escrowee; imd

2,2.2 the Bahince al Closing, or:!y by cushkr's or offi-:inl bank check or ccrllfied check of Purd:aser payahle to :he di reel order of Seller. The check(.~) shall be dn1wn on 1md payable by o branch of a commercial or sa.vings bank, sa, lngs a11d loan Hs:1ociAllon or trust company localed In the same City c,· County ns the Unit. Seller may direc(, on n::asonablc Nofico (defined in~ 17) pdor to Closing, th11t all or a portion of tho Buie nee shall be niado payable to person~ other thar. Seller (see l 17.7).

3 PerrnnAHy

J I Subject to ony rights of the C:irporatlon or any holder of a mong1\ge lo which the Lease Is ~ut:ordinate, this sale includes all of tht: Sel!i.ir'~ lnt1;Jre~t. if ony, In ·.he Per~ons!ty Md the Included !11terests.

3 ,2 No conslderntlc-11 is being paid for th1;: Pen.onalty or for the lncludcd Interests; nothing :1hall be sold lo Purchaser if the Closing does not occur.

3,3 Prior to Closing, Seiter shal remove from t:,e Unit all the furniture, .furnishings and other property not !r.clude:i fn this sale, 1md repair MY damage caused by such removal.

*4* **Representlltlons** Hnd **Cov1tnar.ts**

4. l St,bject to any matter affccl ng title to the Prernis.es (as to which Seller makea no rcprose:ritotlons or covonantB), Seller repre.~ents a11d covenants tiiat:

4, J. l SelieJ" is, and sl;atl at Closing be, the sole owner of the Shares, Lease, Personalty and l11cl11dcd I **,-nere!lt~,** Wi\r: the full right, power 11nd flUthorl\y tu sci and asslgn them, Sclier Jhali maku timely provision to satisfy cxii;tlfli security intc--cs1{s) in the Shan.:H Bnd Lease and havtl lhi some deltvored at Closing (See ~10 l);

4, l ,:2 tile Sht\rcs wcrll dlily l\$suc:d, fully *µttiJ* for and arti nonasst:ssobte;

4.) ,3 the Le(lse is, t1nd wiii nt *Clcsing* be, in fuil f:m:e nnd effect and 10 notice of default under the Lease Is tlOW o~ wil! at Closin& be in effect;

4, 1.4 the Mnintcnance 1md Asscss:ncnt~ payable !J!j of the date hcr:)ofarcfls 3peci0cd 111 i11.17 ind 1,18;

4 I.Sas oftl1ts date, Seifer neither :1as actual kno'-Vlcdge nor hM received ttny written notk;e of uny incrctlsc in 1'.fotntenancc or uny A,;scssrnenl which has been adopted by the Board of Directors of the Corporation and ls not reflected ln the amounts sci forth *In* I. l 711nd *I.* 18;

4, ! ,6 Seller hus not muJe w,y mnlerltil alterations or additions to the Unit wilhoL( any required consent of the Corporation or, to Seller's actual knowledge, without compliance with all appllcable Jaw. This provision shRII not survive C!o~ing.

4.) .7 Setler hos not entered Into, shnll not enter Into, and has no aclutil knowkdge of any agreement (ulher (han 1he Lease) affecting tJt!e lo tile Unit or Its use and/or occupMwy anor Closing, or which would be binding on or 11dYemly o!fect Purchaser ofter Closing (e.g. n sublease or aitcnirrnn ngrecmont); 4.1,8 Seller ha\$ been knowri by no other name for the pest I 0 years ~xcept ns set forth In~ ! . I, I.

4, 1.9 at Clo£ing in accordance with~ l 5.2;

*4.* J *,9,* ! there sl:all be 110 judgments outs1a11<ilng e.galn:ll Seller which have not been bo:1ded against collection out of the Unit ("Judgment.'!'');

4. J .9.2 the Sho~es, Len.so, Personalty and any lnclucied *lntertsts* shall be free and clear of liens (other than the Corpor1ttlon's ge1iernl lien on t.he Shares for which no monies shall bt owed), encumbrances and adverse interests ("Liens");

4. 1.9.3 all sums due to the Corporatlon shail be fuliy paid by Seller to the end of the payment period lrnmedlotcly prece<ling the date of Closing;

4.1,9.4 Scltor sball not be indebted for labor or materiill which might **give** rlso to ttrn fllittg of a notice of mechurlic's lien 11g1tlnst the Unll or the **Premlses; and**

4, 1.9.~ M vlolotlons shall be of record which the owner of the Sht1rcs and Loftsc would be oo\lgated to remedy under the Lease. 4.2 Purchaser **represents** nm.I covenants thot:

4.2, **l** Purchaser Is acquiring the Shares tuid Lease for **resldential** occupa11cy of the Unlt solely *by* the Proposed Occupants **ldcnt!fied** in~ ! .23

4.2,2 Purchaser is not, and wi(hin the past 7 yeHrs h1U not been, the s11bjec1 of a bnnkrup1cy proceeding;

4.2.3 if, l.20,3 applies, Purchaser ~hull not apply for fin!lncing In connection with thts purchase,

4,2.4 Each lndh idual comprising Purchaser is *over* the age or 13 and Is purchasing for P•.1rchascr's own ncco\lnt (benefioli!I ond of **record);**

4.2.5 Purclrn~er :;hall not make *any* representation~ to the Corporatkin co:1trnry to the **foregoing** und ~hall provlJe all documents In support thereof required by the Corporadon in connc'C!ion with Purchaser's appl ic.:ntion for approval of this tronsllctlor1; and

4,2.6 there are not now ond shall not be ut Clo~lng any \mpald tax liens or monetary Judgrmmts against Purchaser.

4.3 Each Party covenants that Its representations and covenant~ contained In **1** 4 shall **be** true and complete at C!osJng and, except for 4.1.6, shal I survive Closing but any uction based thereon mus< be instituted w{thin one year after Closing.

**5 Corporate DocumeotJ**

Purchaser ha, cxnmincd and (\$ sutlstied witl\, or (except as to any matlt.Jr represl!nted in this Contract by Seller) accepl~ and assumes th,; l'isk of not havin~ cx1mdncd, thti Lease, tho Corpomtion'R Certificate of Jncorporaflon, By-law3, House Rules, minutes of !iharchoJd~rs' and directors' meetings, most recent :i.udlted f. nancial stntcmcnt and most recent statement of tax deductions llYttilahic to the Corporation's sharcholder-i under lnterMJ Revenue Code ("!RC'') §2 i *6* (or 1:1ny successor 3tr.tuto),

6 Requlrc<J Approvnl and **Ref•rence.s**

6.1 This sule is subJect to the unconditional consent of th~ Corpor1Hlon.

6.2 Purchttscr 3r11tl/ i11 good folth:

6.2. I submit 10 the Corporo.tfon or rhe Mrtnilging Ag~nt an application with respect to thi!! sale on the form requlr~d *by* the Corpora1lon, ccntaining such data and together with *such* documents tts tho Corporntlon requires, nnd pay the applicable

fees ond charges ch11t the Corporation Imposes upon ?urchaser Ail oJ' tho foregoing ,hall bo submitted within IO bus.nm doys tifkr the Delivery Date, or, I!' ii l .20.1 or 1.20.2 appfks and the Loan Comrr,i!ment Let1or is rcqi.tln:d by the Corpora.t/Jn, wlthl11 J business day/I ll.fler the earller of (I) the Lonn Co·r.mitment Dene (defined In~ 1.21) *or* (ii) the d!Uo of receipt of the Loim Commitment Letter *(* defined in 18. 1.2);

6.2,2 a(tcnd ( and *ca,se* eny Proposed Oc-c11pant lo 11ttcnd) one or more personal riterviews, RS requested by the Corporntlon; And

6.2J promp1ly submit to the Corpornt!on such fltrthc( rclerences, elate and documents rcastmabfy reque.~Ced by the Corporation,

6J Either Party, after learning of the Corporation's decision, ilhall promptly advise the other ?arty thereof, *If* the Corporation hris no! made *a* decision on or bt:forc the Scheduled Closing Date, the Closing shall be 11djourncd fol' JO business *dr.ys* for **the** purpose of obtaining such consent. If 11uch consent i~ not given by rnch t1djoumed date, o[ther Party may cancel this Coniraci by Notice, provided thnl the **Corporation's** consent Js rot issued hoforc such Notice of cancellot.on ls glvcn, If such consent *is* refused nt any time, cilhcr **Pany** may cancel this C0rHract by Notice. In the event *or* c11ncelktiun pursuam co this V 6.3, the Escrnwoti shall rerJnd the Contn1ct Deposit to Purchasor,

6. 4 ff .such consent is refused, Cir not given, due to P·.irchaser's bad faith condi.;ct. Purchaser sh2II be In acfa.ult und 13, l shall govern.

#### 7 Condition or Unit and Pcrsor111ty; Possc9sion

7, I Seller makes no representat:on as to the physical condlllon or srnte of rcpa!r of the Unit the Personally, lhti Included Interests *or* che Premises. Purc.1ascr has Inspected or waived inspecrfon of the Unit, tbc Porsooalty and the Inoluded [nterests ond shnll take the .~flme ''us Is", as of the date of this Contract, except for re11Sonable wear nnd tear, Howc.ivcr, ut tho lime of Closing, the nppliflnces shall be Jn working or~er and required smoke detector(s) shall be instolbd and operable.

*7.Z* Al Closing, Seller shall d:;liv1:r *possession* of :he *Unit,* Per,rn1rnlty ond Included Interest; 1n the condition requin,d by~ 7, l, broom-clean, vacunt nnd free of atl nccupnnts o.nd rlghl9 of pos~ession,

#### *B* Risk of Loss

8.1 The provision\$ of General Obligations Law *§* S-1311, as modified herein, shall apply lo this Lnrnsactlon as lf it were u ::111\e or realty. ror purposes of l.hls parngroph, tho ter:11 "Unit'' I nc!udes built-In Personalty.

8.2 Dcstruct:on shall be deemed "material" under OOL ? *5* l J 11, If the reasonably rnimatd cost *to* restore lhe Unit shall exceed *5%* of tile Purcha~c Price, ·

8.3 !n the even( or any destructhn of the Unll or the Premises, when neither logal title nor the po:rncsslon of the Unit hos been transferred to Purchaser, Si.:ller sh.ill **give** Notice of the loss to Purcnaser {''Los:i Notice") by the earlier of the date of Closing or 7 bus,noss dnys flflcr lhc diltc r-f the loss.

8.4 If there *is* material destruction of the Unit withou: fault of Purchtiscr, this Conlract .~hall be Jee1ned canceled ln accordance with , 16,3, unles5 Purchaser eleot~ by Notice to Seller to complete the purchase with an abatement of the Purchi:se Price; or

3. *5* Whether or not *there is* atty destruction of the Unit, lf without fault of Purchasa, rnore thon I 0% of ~he units In the Premisc.s nro rendered uninhabitable, or reasom1hlc acceRs to the Unit i5 not ftvoilab/c, lhen Purchaser shall have Ll1e right to cunccl this Contract In accordaoce with 16.3 by Notice to Selle!'.

8,6 PurchMcr's Notice pursuant t.o 8 4 or~ *8.5* shalt be glvcr. wi1hin 7 busint;1s.'l duys fo1iowing the giving of the Loss Notice except thut *Ir* Seller dot:s not grvc d Los:; Notice, Pu.rcho.ser'\$ Notico may be given *B.\* any time r:t or prior to Closing.

8, 7 In the event of 8ny destruction of the Unit, Purchaser sholl not be entitled \o nn obatement of the Pl1rcho.se Price (i) lhat exc1;eds the rcasonnbly eMimated cost uf repolr ond restoration or (il) for any loss thet the Corporation is obliged *to* repair or restore; but 8ellor shall assign to Purchaser, without recourse, Seller'~ cliilm, if any, ngl\lrist the Corporation with re~pcct to such loss.

#### 9 **Closing** Locution

The Closing shall be held ut the location designated by the Corporation or, lf no such designation ls m11de, at the office of **Seller's** Attorney.

#### 10 **Closing**

I **0,** I At **Clo:1i11g,** Seiter shall dellver or cause (o be delivered:

l 0. LI Seller's certificate for the S!larea duly endorsed for transfer to Purchaser or accompanled by a separate duly executed stock power to Purchaser, and In either case, with any **gu1mmtcc of Sellcr'R** signature **required** by the Corporation;

10.1.2 Seller's counterpart originnl of **the Lea.~e,** al I assignmer:ts and as~umptlons in lho chain or title and R duly executed **assignment** thereof to Purchaser In lhe form required by the Corporation;

IO. l J rtRPTA documents **required** by~ 25;

I 0, l ,4 keys to the Unh, but id ina cntroncc(s), 11nd, if applicable, garage, m&!lbox, storago unit und any locke In the Unit;

I 0. U If requested, an asslg111ncn! to Purctiascr of So!ler'.'.I intemt In the Pertlonalty and Included lntermi;

10. L6 any documents and payments to comply wllh l 5.2

l0.1.7 If Seller is unable to deliver the documents required in ,1 10. I.! or 10. 1.2 then Seller shall deliver or cause to bij ctel!vored all documenfa and payments required by the Corporati()n for the issuance of a new certificnto for the Share:> or a new Lease. 10,2 At Closing, Purchaser shall:

t0.2, I PRY the 8Rlancc In 11ocordonce with ~2.2,2;

10.2,2 execute and deliver to Seller and the Corporation an agreement wisumlng the Lease, in the form required by the

Corporation; and to,2.3 if requested by the Corporation, execute nnd deliver **counterparts** of a new **lease** substantially the same 11s the Lease, for the **bu:ance** of the Lease term, in which cflse the Lease shall be canceled and surrendered to the Corporation togeiher whh

Seller's assignment tl1ereofto Purch11Rer 10.J At Closing, the Parlics shall complete end execute all documents necessury:

I0.3, l for Internal Revenue Ser.ice ("IRS") form !099-S or othor ,9/mll0r requirements:

I 0.3.2 to comply with smoke detecior requiremonts and any applicnble transfer tux ftl!ngs; and

t 0.3 .3 to trnnsfer Seller's lnteresl, if any, In and to the Personalty and Included rnterests.

I 0.4 Purchnser shrill not be. obligurcd to close urilcs,q, u1 Closing, the Corporntion dellvers ·

10.4, 1 to Purchaser u new certli: cute for (he Shares in the nume of Purcha5er; and

I 0.4.2 a written statement by an officer or nuthori1.cd agent of tho Corporation consenting *to* the traMfcr of tho Shares and Lease to Purchaser and setting forth the amounts of *and* payment status of all sums owed by Seller to tne Corporation, Including Molntenance and any Assessments, nnd the date.'! tn which e!lch has been paid.

#### ll **Closing Fees, Tftxca llnd Apportionments**

11. l At *or* prior to Clo.,fng,

I 1.1, l Seller shnll pny, if t1ppl!cuble:

**11,** I. f, i the cost of stock tram fer .stamps; and

11. r, 1,2 transfer taxes, except as set forth in l I. l. 2 .2

11. 1.2 Purchaser shnl! pt1y, if 11pplicable:

l I, 1,2, l any foe Jmpo~cd by the Corporntion relRting to Purcha:rnr's financing; 11nd

11.1.2.2 trnr.~fcr taxes imposed by statute pdnrnrlly on Purchaser (e.g., the ''mAn,ion ~ux 11 ),

! l.2 The Flip Tax, if any, shall b1; paid by the Purty sr,ec1ficd In ,, I.I 9,

I I J Any fee imposed by the Corporation and not specified in this Contract she\! be p1tld by the Party upon whom such fee Is expressly *imposed* hy the Co•ror•tlon, nnd 1f 110 Pr1r1y !~ sped fied by the Corporation, t·1en :mch foe sh11ll be p!iid by Seller,

114 Tht". Port/c3 sluill npportlon es of ! 1 :59..P.M. o: lhc *day* preceding tho Closing, the Malrtcnance, 11nd anyother periodic charges due the Corporation 'other thun Assessments) und STAR Tax Exumption (if tho Uolt ls tht: beneficiary of &amo), 'oas~d on \he 11umber of the days in the month of Closin6,

l l *.5* Assessment,, whether fnyablc In II lump sum or instflllmenls, *shall* not be apportioned, out shall be paid by UH: Party who is the owner of the **Shues** on the d!lte specified by the Corporation for payrnenL Purch~ser slwl! pay nny lnstollments payable after Closing provided Selier had the right and oiected to pay tl1e Assessment 111 installmonts,

I l .6 E11ch Party sh&IJ timely pay any transfer **taxes** for which it is prlmndly ltabte purs1111n1 tn law by cashier's, official bank, i:;1iriiiied *or* Rl!orney's escrow chock, Th/9 l 1.6 shul. survive Closing,

I l. 7 Any computational errors Cli' omissions shall be l.)Orrected within 6 months after Clo~ing, *Ths* ~I l 7 shall **survive** Closing, 12 Broker

12. l Each Pa11y represents that SL ch Party hes not dealt with 1rny pe,3011 uctin~ Iii/ a broker, whctfier licensed or onliceirned, in connection wlU1 this transactlnn other thnn the Broker(-'>) named in~ U.

12.2 **Seller** ~hall pay lhc l3roket's commis~ion pursuant to a suporntc Rgreemcnl The Broker(s) shn/1 not be dccmcc to be a third-party bt:neficiary of this Crmtrnct.

12.3 "111/s ~l2 shall survive Cioslng, conce!lntlon or (er:nim1Uon of th is Contract.

#### 13 Def11ults 1 Remedies *and* Indumnities

I J. l In the event of n dofo11!t or m i:.rcpros\!ntotlon by Purchaser, Sollcr's soto und exclutiivo rcn.;:dics shall he to ctmce! thl~ Contract, rctt1l11 lho Contract Depos1t as liquldtncd d11rnages und, *If* npp/lcoblc, Soller may enforce the indomnlty in , l3.3 as co brokcrago comrnl!slon or sue uncer ii l 3.4. Purchaser prcfors to limit Purchaser's exposure for actual damages to the amount of the Controct Deposit, which Purchasor e.groc:; constltuta11 a fair ond reasonable amount of compensation for S~ller>s tl!images under Hie clroutnstnnces and is not a penally, The principles of real property law shtill apply to this liquidated damogcs provision.

13.2 ln the event of a default o· mlsrcprcscntatlon by Seller, Purchager shall have:: su(.:h remedies as Purchaser Is entitled to nl *11\W M* in equity, i11cludi11g sped1-: pr.:rformirncc, bccuuse tit,;: Unit and possession tbereof can no: be dup/ icated,

13.3 Subject to th¢ provi:1ions of~ 4.3, **ea.oh** Party indemnifies nnd holds harmless the other egalnst and from an} claim, Judgment, los~, liability, cosl or cxpen:.e rt:sultlng from the indcmnltor's breach of ony of Its rt:prescntations or ccvenants stated to survive Closing, cence l11tion or tennltlation of this Con(racc Purchtl-'icr indtrnnlfles and holds harmles~ Seller nguinsi and from any cloim, Judiment, [oss, li~blllty, i:;ost or i;:xpense resulting from the Lct\sc '.)b/igations 11ccru!ng from ond after the Closing. Each indernnit) in..:lud~s, without llmltatlon, reasonable attorneys' **fees** and disbursernc:nt.~, court ccsts und l!tlga\ion expenses arising from the defense of any cliim and cnforcemcn1 or coliectio11 of fl judgment under this indemnity, provided the indemnitoc is glvea Nollce nnd upportunlly lo defend th¢ cluil11, Thi~ ii IJ,J shall survive Closing, cuncclfa!ion or l<.:rm inatlon of th is Contract,

13 .4 In the event 11ny instrument for the payment of the Contrnc( Dopo~it falls of collection, Seiter shall have the right to sue on the uncollected instrument. In nrlditlon, such fullurn of collect Ion shall be a defo.ult under this Contract, provided Selle1 gives Purchaser Notice of such raHun: of collcctlon and, within 3 business dayi after Notice ls givi,n, E,gcrowee do~ not recelvc from Purchaser an unondor:.ed good cortlfiod check, bank che-ck or immediately avalfab/e funds in th" amount of the uncollected funds, failure to cure \$UCh default shall en!ltle Seller to the remedies set forth in **1** 13. I and to retain 1111 sums as mny be coHcctcd and/or recovered

#### 14 Entire Agreement; Modlfk1H!on

!4.1 l'dl prlM ord! or written rcprcsentntl11nfi, understandings nnd **11greemcnts** had between Hie P;;rtJI::, wl\h rclµte\ lo the subjecl ,nnttcr of thb Contract, nnd with the Escrnwcc as to 27, aro merged in lhi11 Con!racl, whlch alone fully and compk:tely expresses the Parties' find Escrowee•~ t1greement. 14.2 The Attorneys may extend In wrl1f og any of the time llmlM:t!ons ~tat~d in thio Contract.. Any otllef provi1,lon of !his Contrnc( ,rniy bo chtinse-d or wuived only in writing signed by !he Party or Bscrnwcc to **be** charged,

#### **15** Removal of Liens rrnd Judgm~nts

l *5,* 1 Purchnscr shall deliver or cnuse to be delivered to Seller or Seller's Atto1·noy, not less than l O oulendnr <fays prior to the Scheduled Clo:3ini Date fl Lien and Jucigmtint StW'oh, **except** that Liens or Judimen!s first disclosed in a continuation ,oe.rch shall be reported to Seller within 2 business days after receipt there-Of, but not lator them tho Closing. Seller shall have the right to adjourn the Clos/ni pursuant to~ 16 to remove ony .rnch Liens ttnd Judgments, Failure by Purchaser to timely **dollver** such search or continuation search shall not const!tule a waiver of Sellen covenants in ~4 as to Liens and Judgments, However, lf the Closing Is adjourned solely by reason of untimely delivory of the Lien and Judgment seMch, tho t'lpportionments under , I U shall be made as of 1 I :59 P.M. of the duy pm.:eding the Scheduled Closing Date In 1.15,

l5.2 Seller, 11t Seller's expense, shall obtain and deliver (o t11e Purchnser the documents ond pf\ymenu necessary to secure the relea.qe, satlsfoctlon, termlnotlon nnd d 1sch11rge *or* removal of record of any Liens and Judgments, Sdler muy use any portion of the Purchl\&e Price for such purposes.

i 5.3 This ~115 shall survive Closing,

16 Seller's Inability

*16.1 lf* Seller shall be unable to (ronsfer the Items set forth in 1 2. l lo accordance wlrh thll:l Contract for any mason other lhrui Seller's failure to make a n:quin:d payment or other willful act or omJsslon 1lhen Seller shall have the right to adjourn the Clolllng for periods nol exceeding 60 calendar days in !he **llggregate,** bul not extending beyond the expiration of Purch11ser'i Loan Commitment Letter, lffi l .20. J or 1.20.2 app!les.

l 6.2 ff Seller does not duct tu ad}ourn tho Closing or (if odjournod) on tho odjournod date of Closing Seller is stlll unflhle :o perform. tl1en unless Purchaser clecti to proceed with lhe Closing without abatement of the Purchase Price, either Party may cancel this Contract on Notlce to the other Party given e.t any time thereafter.

16.J In the even~ of such cancel let ion, lhti sole liability of Seller shall be to cause the Contract Deposit lo be refunded to Purchaser nnd to reimburse Purchaser *for* the actual *casts* incurred for Purcha.sc's lion and tltle !iea.rch, If 11ny,

#### 17 Notice, nnd Contrnct Delivery

17.1 Any notlcti or demond ("Norioe") shnll be in writing ond delivered either by hand. Overnight llel1very or certified or registeroct :ntill, return reoeipt rcque,ted, to the; Party ~d j/mu!tancously, in like manner, to such Party's Attorney, if uny, and to ERcrowee ut their respective 11ddn:sses or to such other 11ddrtlss as shall hereafter be designntcd by Notice g!vcn pursuant to this i1 17.

134

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datt¾-

~.J.2 Puroha:ser 11hall-4¼Hv-0f-No;roe-of-eoo00Hauoo~»t>r wkhin-5-iw&i06Ss-day1r-1tfter-th!'r•t->&a~

+-&.lr+rt~~t-400--bea»-G~Hf¼ffittf'f!?l\{~(tf tlfl1taeffi•ng--f211roha8~--L1-11ot **Ale( (d.g. Jl11Fehoso1 1 j**fmanolal **HHIRI 6ta(Le 6t:1fte1s 8FI**

**~~oo--reJ.a~e-&&le-ot:-o11 e1tlstlAg n,,leenaa, ele.) el'** I 8 **a,? J ewo** to **1h11** ~11p~t-a--beoo-•G~mmiIBH)ll~

~tte<l-w-ltH~~oo-tr.n~i~-flft~mo1~(',-bllfli11ea~

#### **19 Singular/Plural** And **JolnUSeven1I**

The use *or* the slngufor !!hall be ceemed lo include the plural ond vice *ver.>'B,* whenever tl!e *context so* requires. lf *more* !hl¾n one person cons1ltutes Seller or Purchaser, their obi fgafions as such Party shall be Joini and ~evcra/.

#### 20 **No** Sundv11i

oofltl.W011 **91 IIA1pl0~1**

No representation and/or co~nant contained herein shell survive Closing except as exprc.ssly provided. Payment of the Delancc sh~ll constitute *a* dlscha:-ge and release by Purchaser of nil of Seller's obligations hemmder except those expressly stuted to survive Cio~ing.

#### 2l lnsp11ctio11s

Purchaser Md Purchnser's representatives sho/J he.ve the ri&hl to Inspect the U11it within 48 hour.; prioi· to Closing, anc at other misonable times upon nmona.bk request *tq* Seller.

#### 22 Governing LRw and Venue

This Contract !ihttll be governed by the laws o[thc Ste.tc of New York without regard to principies of conflict ofh1ws. Any 11ctlon or proceedini **Oiising** o\lt or this Contrnct slrnl I b~ brought In tile county or Federal district whe!'! the Unit is located and the Parties hereby consent to said venue.

#### 23 No **Assignment** by Purclrnser; Death of Purchaser

2J, I Purchescr may *not* ns.slin this Contract or any of Purchaser'~ right:i hereunder. A:iy such purported assignment :Jhiill be null ond *void*

23,2 This Contract shnll ttrmirrnte upon the death of ft!. persons comprising Purchaser ond the Contract Deposit shall be refunded 10 the Purchaser. Upon maklng .mch ref'md and rvimtium:ment. ncilhc:r Party she.II have any further liability or claim against tile **other hereu11del',** except !lS Sllt forth In ,r 12,

#### 24 **Cooparatlon** of Parties

24. l The ?~rtics shall each CJopernte with the other, the Corporation and Purchaser's hstltutlonal Lender and title compc1ny, if *any,* and obtain execule and delive1· such documents as are reasonably necessary (a consummate 1.11. sale. 24,2 The Parties shall timely f le all required documents in vonncclion witb nil governmentil fl!lngs that are reqJlred by luw. Each *Pany represents* ro the *otiwr that its* 1.tatementJ In *such tilings* shall be true end complete. This **,i** 24.2 :,hall survive Clo~ing,

#### 25 **FIRPTA**

The parties she!I comply with !RC \*1 897, 1445 and the regulation~ thereunder e.~ :mme m.!ly be amended ("FIRPTA"). If appllcoblc, Seller shalt execute and deliver to purc!111Ser 11t Closlng a Ccrtlflcntlon of Non~ Foreign Stulus ("C~S") or Jeli11et ti Withho!dlng Certi(1catc from **the** JRS, ff Seller fails to deliver a CNS or a Wlthhoidhig Certiflcale, Purchaser shall withhold from the Balance, ond ~emit lo the IRS, such sum **11s** may be required *by* law. Seller he·eby waivos any right of action nga!nst Purchaser on account of such withholdlng ond rcrniHance. This 12,~ shall survive Closlnli',,

#### 26 Additional Rcq11irement.s

26.1 Purchaser shall not be oblfb'(ltcd lo closi.; unle:;s all of 1he following requirements **are** sntisfied at the time o(the Cbsing;

26, i. I the Corporation *19* !n good standing;

26. l .2 cho Corporntlon hos fee or leasehold title to the Premises, whether or :10t mttrkc111b(e or Insurable; and

26, l.3 there is no pending *In rem* action, rnx certiticate/ Jon sule *or* foreclosure action of any unde dying mongogc affecting the Prcmi~cs,

26.2 lf any rcqulremcnt in 26. l ls not sa{isfred o.t !he time of lhe Closing, Purchaser .~hnll give Seller Notict:l and if the some L'.l noi sulisflcd wlth!n a reasom1bk period of time thereafti.;r, Chen either Party *way* cancel this Contract (pursuant to ,i 16.3) by Notice,

#### **2 7 Escrow** Terms

27.1 The Contmct Deposit shul! he deposited by Rscrowoe ln un escrow account us set forth tn *'i* l ,24 and !lie proceeds held 1md disbursed in 11ccordancc **with** the ti.:rms of this Conlract At Closing, 1he Contract Deposit shall be p11id by Escrowee to Seller. If the Closlng does nor occur *and* eHher Party gives Notice lo Escrnwcc demundlng payment of the Contract De:po81t, Escrowee shall gfve prompt Notlcc to the other Party of such demand. lf Esctowee does not receive a Notice of objection to the proposed pAyment from such o~her Party within l 0 bus(ness dny5 after the **giving** of l3scrowee's Notice, B:icrowce **b** h\lrcby 11uthorizcd and directed to make such p11ymcnt to the domand[ng party. If Escrowee does receive such *a* Nottcc of objoctlon within soid period, or if for any reason Escrowee in good faith e!ecls not to make such paycrn:ml, Escrowco may continue to hold the Contnict Deposit until otherwise directed by a joint Notice by tht: Partlos or a fins!, non-appealeble judimcnt, order or decree of a court of competent jurisdiction. However, Bscrowee shall hnve the right at ony time to dcpo~lt the Contract Deposit er,d the interest thereon, if any, with t.hc cl~rk of fl court In tho cou1ty as set forth in 1 22 and shall give Notico of such deposit to each Party, Upon disposition of the Contrac.:t Depo5it *and* Interest thereon, *if* any, in accordance wl\h this 27, Escrowee shall be **released and** discharged of all e~crow

**obligations** and **liabilities,**

**27.2 The** Pnrty whose **Attorney** is Escrowce shall be llable for loss of the Contract Deposit. **Jf the** Escrowee is Scl!cr'i **attorney,** then Purchaser shall be credited with the amount or !he **contract** Deposit at Closing.

27.3 Escrawee wlll ~erve without compensotlon. Escrowec **is** tlctrng solely as a stakeho!dcr at the Par(le61reque8C ~nd for their convenience, Escrowee :shull not be liable to either Party for a11y oct *or* omissfon unless lt involves bad faith, willful disregard or this Contract or gniss negligence. [n the evenl of any dispute, Seller nnd Purchns1;:r sh.ti! jointly and severally (with rJght of contribution) defend (by 11ttorneys elected by Escrowec}, indemnify and hold harmlti~a' Escrowee erom and against any chtlm, judgment, foss, !iab!lity, cost and tJxpensts tncurred in connection with the performance of Escrowee's acts or omissions not lnvolvlng bad fallh, wl llful disrer.ard of thls Contract *or* gross negligence. This Indemnity *Includes,* without limitation, rcRsonnble attornoys' fees either p!ild lo retoin nttomeys or repre~entlng the fair value of loge.I services rendered by Escrowee to itself and disbursements, court (;OSts and litigation expenses.

27.4 Escrowcc i,.cknowlodges receipt of the Contract Deposit, by check subject to collection.

27.5 Rscrowoe agrees *to* tho provisions of this~ 27.

?.7.6 If Escrowcc Is the Attorney for **a** Party, E:icrowec shall be

pt:rmltted to t'eprosent such Party !n ,my d{spulc or lawsuit. 27.7 Thi~ 1 27 shall survive Closing, canctilla(ion or \~rmlnlllion of this Contrncl

#### 28 M~rgln Headlnis

**The margin** bending do not constitute part of lhc tcxl of ~his Conlrnct.

#### **29 Misccllancou.s**

This Contract sh1t!I not bt, binding units~ nnd until Seller delivers **a** fully executed counterpart of this Controct lo Purchaser (or P Jrchaser's Attorney) purrnont to 17.2 and I 7.3. This Contract shal! bind

onrt Inure to tho benefit of the Porties hereto 11nct their respective helm, ptrsorrnl and kgul represe11tellv~~ and successors In i:Herest

**FILED: NEW YORK COUNTY CLERK 11/28/2018 12:22 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 11/28/2018 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 108 of 134

> 30 Lead Paint If appJlcabfo, lho oomplote and fully executed Disclosure or lnformlltlon on Lead Based Paint and or Lead•Basod Paint Hanrd3 Is attached hereto and mid,; a part hereof.

In Witness Whereof, the Parties horeto havo duly executed this Contract us of tho date flrst above written.

| S .d(1mo TO: | SBLLER: SUB:RRY 1800s, LLC / Hy: • f!:. ··-········ _______ | PUR.CHASBR: G!NEVER HOLD~QS LLC ~#"v· -~x/ ,,~~- vi'Ji-,< LL_( Byt~\!,,.,,X:,<, | |--------------|----------------------------------------------------------------------------|------------------------------------------------------------------------------------------------| | | | | | | | ------ ~-+••··--- | | | | |

### **FIRST RIDER ANNEXED TO AND FORMING A PART OF CONTRACT OF SALE FOR THE 18TH FLOOR KNOWN AS UNIT 1801 AT SHERRY NETHERLAND**• **INC .• 781 FIFTH AVENUE, NEW YORK, NEW YORK, A COOPERATIVE APARTMENT BETWEEN SHERRY 1800s, LLC, AS SELLER, AND GENEVER HOLDINGS LLC, AS PURCHASER, DATED FEBRUARYZ..I, 2015**

31. In the event of any conflict between the provision of this Rider or any other Rider, and the provisions of the Contract to which this Rider is attached, the provisions of this Rider shall control.

32. In addition to the representation made by Purchaser in Paragraph 4 of this Contract) Purchaser) jointly and severally, represents and warrants to Seller that Purchaser knows of no outstanding judgments or tax liens and knows of no threatened lawsuit or claim (including criminal and/or tax proceedings).

33. Supplementing Paragraph 20, the acceptance of the Shares and the assumption of the Lease by Purchaser anc the delivery of possession of the Unit and keys by Seller shall be deemed full perfonmmce by Seller of Seller's obligations under this Contract, except any of which that survive Closing, and such acceptance and assumption by Purchaser shall discharge Seller from all terms• conditions, representations and agreements required to be performed by Seller under this Contract1 except any of which that survive Closing. No liability on the part of Seller shall survive the Closing except as expressly set forth *in* this Contract.

34. In the event that there is any refund on real estate taxes attributable to the time period in which Seller has owned the Unit, such refund shall belong solely to Seller. In this regard, Purchaser shall cooperate with Seller in connection with obtaining such refund and Purchaser agrees to sign any reasonable documentat:on to assist Seller in obtaining such refund, If such refund is delivered to Purchaser (or credited t::Jwards Purchaser's monthly maintenance by the Corporation), Purchaser shall promptly remit such refund to Seller. The Parties acknowledge that the provision of this Paragraph 34 shall survive the Closing

35. An increase in the maintenance or the imposition of an assessment after the date hereof shall not be deemed a misreprcsentF,ltion or breach by Seller hereunder. In this regard, any assessment imposed by the Corporation after the date of this Contract, shall be solely the obligation of Purchaser if such assessment is payable on or after the date of Closing, Seller will send Purchaser a copy of any notices from the Corporation regarding material facts relating to the Corporation including any maintenance increases.

3 6. A "Disc~osure of Infonnation on Lead.Based Paint and/or Lead Based Paint Hazards" *is* attached hereto as Exhibit A hereto. Such document may be executed in counterpruis, This Contract shall be ceemed executed when signed by the parties hereto notwithstanding that the Broker's signature on such Exhibit A have not yet been obtained. Purchaser acknowledges that Purchaser has received the pamphlet Protect Your Home From Lead in Your Home and Purchaser hereby waives the opportunity to conduct a. risk assessment or inspection for the presence of lead• based paint and/or lead-based paint hazards in the Unit and/or the Premises. Purchaser acknowledges that Seller has made no representations to Purchaser concerning the presence of lead paint in the Premises except in the Unit and then only to the extent expressly set forth in the attached disclosure form. Notwithstanding any requirements pursuant to any Local Law, Purchaser

the Premises and Unit in their current 11as is 11 condition concerning the presence of lead paint and any hazards related to same,

134

37. All representations made by the Seller in the Contract or any Rider thereto are made to the best of Seller's knowledge and belief without independent investigation and shall not survive the closing.

**IN WITNESS WHEREOF,** of the parties hereto have executed this Rider to Contract of Sale as of the date first above written.

### **SELLER:**

### **PURCHASER:**

**GENEVER HOLDINGS LLC**

> SECOND RlDER TO CONTRACT *OF* SALE DATED AS OF FEBRUARYjJ\_, 2015, BETWEEN SHERR v 1800S LLC, AS SELLER, AND GENEVER HOLDrNGS LLC, AS PURCHASER, COVERING PREMISES LOCATED AT 781 FIFTH A VENUE, NEW YORK, NEW YORK, 18TH FLOOR (UNITS 1801, 1804, 1807, 18091 1811, SERVANTS ROOM 1519)

> SR 1. In case of any inconsistency or conflict between the printed portion of this Contract or the First Rider, and the provisions of this Second Rider, the provisions of this Second Rider shall control,

> SR2. Seller shall, promptly after receipt thereof, deliver to Purchaser copies of any written notices from the Corporation receiwd after the Delivery Date and relating to: (1) any increase in the amount of the monthly Maintenance as set forth in paragraph 1.1 7; (2) any intended or proposed assessment other than the Assessment; (3) any intended or proposed changes to the "flip tax" or other transfer fee charged by the Corporation or its Managing Agent; ( 4) any proposed amendment or modification of the Lease, the Certificate ofincorporation of the Corporation or the Cc-rporation's By-Laws; (5) any proposed construction or repair work the cost of which is intended to be borne by the Corporation, its insurers or its shareholders; (6) any refinancing or other material change with respect to any mortgage affecting the Premises; or (7) any damage or casualty to the Unit or the Premises.

> SR3. Supplementing paragraph 3.3: In the event Setler removes any light fixtures from the Unit, such fixtures will be replaced with standard fixtures, so that no exposed wiring or bulbs remain in place of the removed fixtures. Seller shall, at its own expense and prior to the Closing, remove from the Unit all furniture, furnishings and other personal property and/or fixtures not included in this transaction and shall repair in a good and workmanlike manner any material damage caused cy such removal. Any of Seller's personal property not included in the sale contemplated hereby which is not removed from the Unit prior to the Closing shall be deemed abandoned property. Purchaser may (but shall not be obligated to) cause any such abandoned property to be removed from the Unit at Seller's risk and expense. The provisions of this paragraph shall survive the Closing.

SR4. Notwithstanding the provisions of paragraph 7 or any other provision of this Contract to the ccntrary, Seller represents and warrants that the plumbing, heating, electrical and air conditioning systems and fixtures and all Personalty shall be in working order at the Closing, to the extent the responsibility of Seller under the Lease.

SR5. (a) As 1i material inducement to Purchaser entering into this Contract, Seller hereby represents that Seller has obtained all necessary approvals, pennits and certificates from the Corporation and the New York City Department of Buildings for any work done by Seller to the Unit. Fu:iher, Seller is not obligated to perform any work or expend any monies

D(1cY: US! 984 I I 54v4

( other than maintenance) pursuant to any agreement ( other than the Lease and other Co-op Documents) with the Corporation that would be binding on Purchaser after Closing.

(b) Prior to Closing, Seller shall, at its sole cost and expense, cause any and all open permits against the Unit to be closed, discharged, and otherwise paid **for,** and shall deliver satisfactory proof of same to Purchaser. A Letter of Completion from the NYC Department of Buildings shall be deemed satisfactory proof. Notwithstanding the foregoing, Seller shall not be required to close two open permits that are listed by the New York City Department of Buildings as Job Nos. 101785169 and 101778836, copies of which Jobs are attached hereto. The parties acknowledge the reason for the prior sentence is that the Corporation has stated it will agree in writing to duly close these two open pennits. In the event the Corporation does not deliver such written agreement, then Seller may either elect to close these permits, but if it does not, then either party may terminate this Contract.

(c) Seller shall either (a) deliver to Purchaser a letter of completion from the New York City Deprrtment of Buildings evidencing that the Unit has been legally combined, or (b) at Closing, execu:e and file with the transfer taxes returns an affidavit stating the reELo;;ons that the Unit is properly and legally considered to be a single unit with one kitchen and that transfer tax should be paid to New York City at the rate of 1.425%. Seller shall also deliver an indemnity letter to Purchaser indemnifying Purchaser against any costs and damages (including, but not limited to penalties and interest for late payment) resulting from the City's requiring payment at a higher rate of taxafon. Notwithstanding the foregoing, if (i) Seller is unable to deliver a letter of completion as set ::'brth above, and (ii) Seller elects to pay the New York City transfer tax at the rate of 1.425% (rather than the so-called "bulk rate" of 2.625% ), then Seller's attorneys shall hold in escrow the sum of \$840,000 representing the difference between these rates of taxation. Seller's attorneys shall hold such sum for the shorter of (i) two (2) years (representing the current audit period for this tax by the New York City Department of Finance ("DOF")i or (ii) until such time that the Corporation delivers satisfactory written evidence from the New York City Department of Buildings (and/or other appropriate governmental entities) that the Unit has been properly and legally combined. Seller's attorneys shall either release the balance to Seller if it is determined thet 1.425% was the appropriate rate of taxation, or pay this sum, plus interest and penalties, if any, in the event it is determined by DOF that 2.625% was the appropriate transfer tax rate.

SR6. Supplementing paragraph 4.1: "4.1.10. To Seller's knowledge, Seller has not received any written notice of any major repairs or replacements contemplated to the Premises or to the building systems in the Premises (including, without limitation, the heating, plumbing and electrical systems~ that could materially affect the Premises or the Unit.

"4.1.1 L To Seller 1 s knowledge, there are currently no water leaks into the Unit and there have been no such leaks during the twelve (12)- month period immediately

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preceding the date hereof. In addition, Seller has not been notified during said twelve ( 12) month period of any water leaks elsewhere in the Premises which were purported to emanate from the Unit."

"4.1.12 During Seller's ownership of the Unit, to Seller's knowledge, Seller has not been aware of (a)° the presence any toxic mold in either the Unit, or (b) any bedbug infestation in the Unit."

"4. 1. 13 That to Seller's knowledge, there are no claims, actions, suits or legal proceedings of any kind pending or threatened (in writing), wrjch affect the Unit, Seller's ownership of the Unit or which may cause a lien of any kind to be imposed against the Unit or the Seller.''

''4.1.14 To Seller's knowledge, in the last twelve ( 12) months, that neither Seller, nor any person acting on behalf of Seller, has made any complaint **(in writing,** electronic communication or by telephone) to tl:e Corporation, Managing Agent, superintendent or any other unit owner or tenant-shareholder at the Premises regarding noise, offensive odors, offensive conduct, lack of heat or hot water, or any other disturbance or adverse condition affecting the Unit."

SR 7. All representations, warranties and covenants of Seller set forth in this Contract shall be true in all material respects as of the Closing, and Purchaser's obligation to perform under this Contract is expressly conditioned upon there being no breach, inaccuracy or misrepresentation in any of the same.

SR8. If the Corporation approves the Purchaser's application but conditions its consent upon Purchaser complying with requirements outside the scope of the Contract, such as a demand for the Purchaser to deposit funds into escrow, then Purchaser may elect, in its sole discretion, to either (i) comply with such conditions and proceed with the Purchase, or (ii) decline to comply wi-:h such conditions. If Purchaser decHnes *to* comply, then Purchaser shall deliver to Seller written notice of same and this Contract shall be deemed canceled, and Escrowee shall promptly refund ,the Contract Deposit to Purchaser. Further, Seller acknowledges and agrees that Purchaser shall only be required to disclose to the Corporation liquid assets of \$420,000,000.00 (more than five times the Purchase Price), with supporting docwnentation as may be required by the Corporation as *to* the aforesaid amount (such as bank statements), Submission by Purch3.ser of the foregoing shall be deemed complete for purposes of the "Financial Statemenf', "Statement of Assets and Liabilities signed by Purchaser or Accountant" and supporting "Veri4cation of Assets" which are required by the Corporation as part of its HStandard Transfer Requirements" Board application. Purchaser may, in its sole discretion, decline any request by the Corporation to submit any documentation showing liquid assets in excess of the aforesaid amount, so th2.t in the event the Corporation rejects the Purchaser's

Doc# US I 984 I I 54v4

application for any reason (other than willful bad faith by Purchaser), this Contract shall be deemed canceled, and Escrowee shall promptly refund the Contract Deposit to Purchaser.

SR9. Supplementing paragraph 11. l. 1.2: Seller's obligation with respect to payment of transfer taxes shall apply to transfer taxes imposed by both the City and the State of New York. Within fourteen (14) days following the Closing, Seller shall furnish to Purchaser's attorney proof of filir:g of such transfer taxes. Seller shall indemnify and hold Purchaser harmless from and against any and all costs, loss or expenses incurred by Purchaser, including reasonable attorneys' fees and disbursements, by reason of Seller's failure to timely perform its obligations with respect to such transfer taxes. The provisions of this paragraph shall survive the Closing.

SR 10. Supplementing paragraph 13: "13 *.5* Should either party willfully default in its obligations hereunder, it shall be liable to the other for reasonable attorneys' fees and costs incurred by the other party in enforcing this Contract as determined by a court of competent jurisdiction. In the event that either party purports to cancel this Contract and Seller elects to retain the Contract Deposit as liquidated damages, the prevailing party in any subsequent lawsuit shall recover its reasonable attorneys' fees and costs from the non~prevailing party. The award of such attorneys' fees and costs shall be recoverable as actual compensatory damages in addition to the amour:t of the Contract Deposit and/or liquidated damages which may be payable hereunder by either party."

SRl 1. Supplementing paragraph 15.1: Purchaser may also deliver a supplemental list of s·.1ch Liens at a later date but not subsequent to the Closing if Purchaser becomes aware of the same at such later date.

SR12. Supplementing paragraph 16: "16.4. Seller shall not be deemed unable to transfer the Lease anc. the Shares if such inability can be overcome by the payment of a sum of money by Seller not in excess of the Purchase Price less any loan payoff, brokerage commission, transfer truces and customary closing costs."

SR! 3. Seller agrees to deliver to Purchaser, at or prior to the execution of this Contract, to the extent within Seller) s actual possession, all drawings and plans of the Unit, including the original floor plans, and all renderings of any proposed or completed renovations therein. In addition, Seller agrees to deliver to Purchaser, at or prior to the Closing and to the extent within Seller's actual possession, originals of all instruction manuals and all guaranties and warranty agreements affecting the Unit or any of the appliances or other personalty included in this sale, the rights under which shall be deemed assigned, to the extent assignable, to Purchaser at the Closing.

SRI 4. This Contract may be executed in any number of counterparts. Each such counterpart shaH for all purposes be deemed to be an original, and all such counterparts shalJ

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together constitute and be but one and the same instrument. Facsimile signatures or scanned signatures sent by e~mail shall bind the parties,

SRI 5 Seller hereby agrees to cooperate with Purchaser if Purchaser elects to obtain leasehold title insurance or the Eagle 9 UCC Cooperative Interest Insurance Policy in connection with Purchaser's purchase of the Unit, including, without limitation, signing a title affidavit in the form requested by the issuer of the Eagle 9 UCC Cooperative Interest Insurance Policy.

SR16. 1ffor any reason the Corporation does not permit the Purchaser to purchase the Unit1 then Purchaser may assign this Contract to another entity within the control of the Purchaser herein.

SR 1 7. Each of the parties hereto desire that this Contract and the terms thereof (the "Confidential Aspects") be kept confidential to the greatest extent practicable. Accordingly, each of the parties hereto shall, and s~all instruct his or her agents, representatives and contractors to, maintain the confidentiality of the Confidential Aspects. It is understood, however, that the Co:ifidentia1 Aspects may be disclosed: (a) to the professional advisors of each of the parties (for example, without limitation, their attorneys and accountants), and to various other third parties (such as, for example, title insurance companies) who may be involved in aspects of the transactions or are otherwise necessary in order to consummate the transactions contemplated hereby; (b) if required to be disclosed by court order, subpoena, or other government process, or ifrequired by law; (c)with the consent of the parties; or (d) if already in the public domain,

SRI 8. Notwithstanding anything contained herein to the contrary, the parties hereby agree that the sum of (a) \$67,500,000 is hereby allocated to the Purchase Price for the Unit, and that the adc:.itional sum of (b) \$2,500,000 is hereby allocated to the Personalty included in the Unit. Accordingly, appropriate New York State and City transfer taxes shall be paid by the respective parties based upon the sum of \$67,500,000, and, in addition, Purchaser shall pay the New York State sales tax on the Personalty, whlch Seller shall collect at Closing. *() fY1 flt7*

SRl 9. Seller represents it will cause the third party sale of an additional maid'{n the Building to Purchaser either prior to or simultaneously with the closing of this transaction, In the event that Pmchaser is unable to buy this additional maid's room either prior to or simultaneous with the actual Closing of this transaction, Seller acknowledges that Purchaser may terminate this Contra~t and receive a full and prompt refund of the Contract Deposit, with interest. It is within the sole discretion of Purchaser whether to exercise or waive thls option to terminate. It is also r..oted that the Brokers listed ln this Contract shall pay for the maid's room, including costs and expenses associated therewith (including transfer **taxes).**

Doc/I: *US* I :984 l ( 54v4

*I / l*

**FILED: NEW YORK COUNTY CLERK 11/28/2018 12:22 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 11/28/2018 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 116 of

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SR20. In the event th2.t for any reason the parties are unable to close this transaction by March *6,* 2015, then Purchaser may terminate this Contract and receive a full refund of the Contract Deposit. It is within the sole discretion of Purchaser whether to exercise or waive this option t:) terminate.

SR21. Seller shal! pay the brokerage commissions based upon the total consideration being paid by Purchase:- for both the Unit and Personalty (which is the sum of \$70,000,000.00).

SHERRY 1800s LLC, Seller ,,,., -•~~•~•••~'<~•••,\_. · ">' vs•••••••~,.V,•--

Name: Title:

GENEVER HOLDINGS LLC, Purchaser V\..- \.../ 1 (.., ,\_ <- l,-'"', By: ~-? */J"'J,.,~~'=-~/,* , *c:--:-:~::-;;.~i r~* Ira J. Gi~ert 1 Authorized Person

Doc#: USl :98411 **S4v4**

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![](_page_116_Picture_2.jpeg)

• 3142--Ludp,i•<illsclosure,glrafd"<lllng, l• C'FR Put ,S, Cfll fu, *?<1\$, 9+96,*

# **Disclosure** of **Information on Lead-Based Paint and/or Lead-Based Paint Hazards**

### **SALES**

# **Lead Warning Statement**

**Ev~ry purchaser of any interest in residential** real property on which a residential dwelling was **built prior to 1978 is notified that such property** mny present exposurt: to lead from lead-1:msed paint **that may place young children at risk of developing** lt>,t1d poisoning. Lead poisoning in young children **may produce permanent neurological damage,** including learning disabilities, reduced intclti~cnce quotient, behavioral problems, and impaired memory. I.,ead poisoning also poses a particular nsk to pregnant women. The seller of any interest in residential real property is required to provide the buyer with any inlbmrntion on lead-bused paint hazards from risk assessments or inspections in the seUer's possession and notify the buyer of any known lead-based paint haiards. A risk assessment or inspec~ tion for possible lend~based paint hazards is recommended prior to purchase.

# **Seller's Disclosure**

(a) ~resence of lead-based paint and/or lead-based paint hazards *(Check (i) or (ii) below):*

(1) D Known lead-based paint and/or lead-based paint hazards are present in the housing *(explain).*

<<' "•••• •••••"\*·•' • ••••'·"•'''"'"' •• •••••••••• •• ••~•••• .,.,.,.,, •• n,;, ,,, "' ,.,.,,,,, . ., .... ,,, .............................. ,.,.,0.,,, .. 0.,,,,.,, •• ,\_.,,,u•,•••• •••••••••• •~•• ••"••••• •••• ,,.,,, ,.,., .-..,

![](_page_116_Picture_12.jpeg)

/P~··::··:.·::.::::::::::::::::::::::::::::·:::::::::::·:::::::::::::·::::::::.:::·::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::·:::::::::::::::::::::·:::::::::::::::::::::::::::::::::::::::::::: (ii) Seller has no bow ledge of lead-based paint and/or lead-based paint hazards in the housing. /

(b) Records and reports available to the seller *(Check (i) or (ii) below):*

(i) Cl Seller has provided the purchaser with all available records and reports pertaining to lead- *fii/J* based paint and/or lead-based paint hazards in the housing *(list documents below).*

*w* .. , .. ,,,.,::::::::::::::::::::::::::: .. :::::::::::::::::::::::::::::.,::.::::::.::::::.::::.::::::::::::::::::::::::::::::::::::::::::::~:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::

(ii) eller has no reports or records pertaining to lead-based paint and/or lead-based paint aza ·ds in the housing.

# **Purchaser's Acknowledgment** *(initial)*

(c) Purchaser has received copies of all infonnation listed above. *\_L* Purchaser has received the pamphlet *Protect Your Family from lead in four lf ome.*

··-·· --··· Purchaser has *(check (i) or (ii) below):*

(i) D received a lQ .. day opportunity (or mutually agreed upon period) to conduct a risk assess- ,m;nt or inspection for the presence of lead-based paint and/or lead-based paint hazMds; or

(ii) 05- wai vcd the opportunity to conduct a risk assessment or inspection for the presence of lead- \_..- based paint and/or lead-based paim hazards,

# **Agent's Acknowledgment** *(initial)*

(f) \_\_\_ Agent has bfonned the seller of the seller's obligations under 42 U.S.C. 4852d and is aware of his/her responsibility to ensure compliance.

# Certfficatton **of Accuracy**

| ac~ Y The following parties have reviewed the information above and certify, to the best of their knowledge, ;/l,; Iha< the information they have provioed is true and | | | | | | | |------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|------------------------------------------------------------------|---------------------|--|--|--|--| | | ~--~-,-~-- | _;., • /.~' r / LC_ | | | | | | siCu:Re,.z;,,~.-J<--;.-,;::,;"J.) L,(-c:. i,,;. -DATE: l , , '- / P -~ :±- -~-~\ I (>_,:'::,} !'½-to, l·\'s"\< j} | /Ill ta e"Jr SF.Ll~R ' \ (f~f!. v'". 11r --- b | '1i/:!;!-P | | | | | | T --} PuRCHASe;R IDAre: | Pu~t;M,i.,.1.a:r-r | DATE | | | | | | | | | | | | |

;

*[*

#### Purchase Application

NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 11/28/2018 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 119 of

Pt:rchase Application

New York . Fe~ru~\_ry 26 20 15 Apoiicant's N.irn,! 11Miles" KwokJ:i?.\IY~\_r:!\_JGeneve£ t{\_olqLQ\_gs L\_!:-\_fJ \_\_ (t-fam~ or Nam~~ mu,t f.><: t!nt;,r1>d ~hove i11 manner rhat Srcrk Cert1[icole ~nd oilier Doc.Jm~I),IS ,rn tc b~ drawl\.) Applicant's Attorney Ira Gi!bert Esq. (igilbert@paulweiss~\_:>-~rduphoiw 212-373-3529 1\1tomey'~ Firm and Addrn\$, \_\_\_ eaul: ~~is\_s\B\_i!\_½\_i~S!, Y\'harton, & Ga\_r[i~q\_n L~p 1285.A.v\_eoue.ofJhe.8.rnencas. New York,.NYJ0O19:6064 Se!ltn's Nnme **She,r~ 1800s,b~Q** Seller's Attorney MifhaE?J J. Jones) Es\_q. J'elq:ho11!'\_?9~::.?~1~E3gpo Attonwis Fi~.n and :\ddrcs.~ \_\_ Jvey, Barnum & O'Ma\_r.c1.~~q\_ .. -------~- 170 MafiQn S.tr~~t Greenwich, CT 0683D Closing Date and Tirne\_Jj\_Q lat~J.tb~D *~L6{16* at 1 O.am \_\_\_\_ .\_ D~f-? of Po9session\_l'J9 later tnan *316115* ThP u11dcrs11-;ned lwrnby 1.,if,11\ to p~(rcha:;r 3,000 .shares of the 1.\1p,hli stvd: n/ Ttw :::iiwrry-Nrlhelland, Inc. and the ;1,:t:ompa11yu,g prupr1eta1y li.!aiie lot Ap.irtm(•nr :J..B.OJ\* \_\_\_\_\_ in thQ huildit·,g !oc,1ted a1 781 Fifth /\vcmh!, *:,.Jew* Yc,rk, New York, en !lw lolfr\_,v,nng term•; m-:.i condtll()OS • and Maid's room 1519 Purchase Pnce d Stock\$ 67,500,000 Mcnrh *1,* 57,085.53 \_Present Estimated Prnpriu'.ary Rental Per DCf!OSit S \_\_ Z,QQO,OQQ\_\_\_ Specla: conditions, ff ;mv:.6Q.ditiqnal sum of \$2.,\_;)QQ,QOO is allocated to the personal prop~rty inc:ludE?c1Jn the ~nit-F1nar.c-,ns: Yes • No(8J 1\mOi.HI!\_ **None \_\_ ·~---**Bank. \_\_\_ ~----- :he undersigned h;c;s filled 0ci! the irformation sheei below and understands fr,,;t thif> inform,,!ion is essential lo considering this appllcatlcm. 1t is further und<:rstood th.it t.his appl.cat1on, wher signed by rhe under~igned, ts to be subiect to appruval by the Seller or Authorlzed Representative and to the Terms and Conditions on the r<?vf!rse ,1de hereof. Broker\_Selle E,iurgerLBrown Harris Stevens and Serena Boardman, Sotheby's Purchaser: Kathy Sloane, Brown Harris Stevens Signan,r~ ot Purcn.se Appi\canl !JJlQL!l1.i1ltQlJ...&\_f..ii1:4.i.L~rmLK£!.C! lfome ,\dd,.:;s :!\_6A, \_\_ ,~\_oyth Bay Roa~,--~!9.~9 \_\_ ~?fl[ \_\_\_\_ Te!<-phone +852 2169 0888 Buslness Connection and h;:,;rtiori: and Owner (Securitie.s~n~--R-~-~ Estate Investments) Bus:··i.:;ss Addr,'.ss. ~9/F, B~n~\_9,!\_~hina ToweE:~?..:~, . \_\_ ,.\_ fc!ep!lcme +852 2160 0888 :-Jnr•,eq ,;f p•r:,:1!1~-~/1~~~11f1~~~{,; 9,fQ;[~;'/;8:;~.1~~~~ if chllciren. statt> nllmber and their apprc,xmtate ;,ge~:(1) Kwok Ho Wa, Purchc!\_~~L(?Jf\lgok Hmg\_Chi;yVife *of* PL1rchas€lr 13) QLJo\_ Qia ng\_; \$c:>n\_ 9,( Purchaser ('1J QJJ\_o Mei:. Daug.hter.of...2u.rctiaseL(5).Yaz Qinghua;\_ Sister of Purchaser:s Wife N,11\_nes of a!l :.·Jubs ar,d society m,m1bersi1ipsl fraterr\llies and honorary societies to which ;;ppl1cant t-;elongs: .Mar:~.--~~~g c.,Ll~, Pa,.m Beach: FL Jru\_rnp Golf Cql)\_rse. Palm Beach. FL Schools ,md coll,•rts .3t'.end1•d by hu;-;l;<11id, wdP and chi!dr,,11:. \_\_\_\_ , Mr and \_ty1rs. \_rwwk receiye.cJ\_H1e.ir education in GJtlr29 Guo of Mr. Kv\_.iokj attended Bard-College

### **FILED: NEW YORK COUNTY CLERK 11/28/2018 12:22 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 11/28/2018 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 120 of 134

| | No Does applicant wish to maintain pets, and lf so please spHcify: | |--------------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------| | | | | Landlwd: | | | | Present Landlord or Agent Own a p_rivat~!:_e5idenc~_ | | | • Addrt'»> !~:='??_Lilh ~ay Road_,_ ~r1JL K2D.9 | | | Approximate L~ngth oi Occupancy_ | | | Previous Landlord or i\r,cnl __ _ | | | | | | Address of previous rcsidertce and approx,rnate l&ngth of ,v:cup,mcy: ___ _ | | | _ -· _ --······· Ste':~~_ Wong (Bank- Personal Account) Addr~s, UBSA~~2.fF Two l~tE:_rnational fir1~11ce Centre.!8f=ir1anc~_Street, Central, Hong Kong (Business) H~~~_!:<'.l, Pa_rtner~~tev~_!lS_C>_n, Wor_igJtQQ_ ,\,Mrm Centraf To~er,. ?§.9.U§EJn'sRq~cf. C~n.trnl, t!,Q[19152rt9 | | A. B C | Stock Brol <er, any<br="" c.p.a,="" executor,="" if="">i\dJrc;; ____ . _______ ····---··" For Information regarding source of income contact.</er,> | | | | | N.1m,• | ··"··· _!he Rt Hon. Tony Blah~_ | | | ,\ <tdrns,_ 6051~.,.london="" box="" po="" td="" uk<="" w,2?.ju=""></tdrns,_> | | | | | | | | | ---- ··- ------~~ |

Special Remarks:

Please give any additlonai information which may be pertinent or h.elpftil: .. Mr.- and Mrs. Kwok are Y~!'/\_ir,nprei.segvv,itl1\_Th<;<§herry-NEitb1:1rlen~2nct .... look forward to making The Sherry-Netherland the principle residence for ffielffamr1y ·•·············· ······ ···· · ·· -·· · ·-- ····-·

# **FILED: NEW YORK COUNTY CLERK 11/28/2018 12:22 PM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 11/28/2018 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 121 of

134

Purchase Application

| | New York _______ ~20_,_ | | |---------------------------------------------------------------------------------------------------------------------------------------------------------------------|---------------------------------------------------------------------|--| | KWOK ·~-ll:.->-a-k'\,A Applicant's Name | __________ _ | | | (Name or Names must be entenro abQve in manner that Stock Certibcatund other DocW!lents are to be drawn.) | | | | Applicant's Attorney | Ira_. J. t:td~ ~~Te!ephonelJ,I )-J jj 3 3;.).tj | | | inn and Address~~~~~~-WNL.b¼d:• Alloc1;1ey' !L~-rl\L~w,'), r-:ltw J>:_\l.2 | 6~ i,J' ~JM rC[ - 60 l:t!f: | | | Seller's Name, ____________________________ _ | | | | Seller's Attomey ________________ Telephone ______ | _ | | | Attorney's Firm and Address ______________________ _ | | | | Closing Date and Time ______________ Dateof Possession ___ _ | | | | The undersigned hereby o{fers to purchase __________ .shares of the | | | | capital stock of The Sherry-Netherland, Inc. and the accompanying proprietary lease for _____ Apartment the foHowing terms and conditions. | ln the building located at 781 Fifth Avenue, New York, New York, on | | | Purchase Price of Stock \$ _________ ,Prt>sent Estimated Proprietary Rental Per ___ Month\$ _ | | | | | Special conditions, if any;, ____________ _ | | | Yes D Nol:8J | Amount _______ Sank _______ | | | Financing: ( Note: 'Th.is proposal shall r"sult in no legal obligation u.niiI a formal contract of purchase and ~e i:!. executed by the parties <:oncer11ed.) | _ | | | The undersigned has filled out the information sheet below and understands that this | | | | information is essential in considering this application. It is further understood that this | | | | | | | | application, when signed by the undersigned, is to be subject to approval by the Seller or Authorized Representative and to the Terms and Conditions on the | reof. | | | | | | | Broker ___________ _ | -------- | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |

# Personal Letter of Reference

NYSCEF DOC. NO. 256 RECEIVED NYSCEF: 11/28/2018 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 123 of 134

From The Rt Hon Tony Blair

February 2015

Ladies and Gentlemen *9f* the Board of The Sherry Netherland,

It is my great pleasure that I am writing you this letter of reference for Miles Kwok as a potential owner in your building. I have known Miles for seven years and have only the highest respect for him in business and as a friend. I have worked closely with Miles over the years and have always admired his honesty and loyalty.

Miles is dependable, sincere and extremely responsible as an individual; conducting himself with dignity and intelligence. Miles is honest, forthright and has impeccable taste.

I would highly recommend him to your building as I know that Miles would be a wonderful addition as your neighbour at The Sherry Netherland. Miles is a very accomplished man and, in my opinion, would be a most valuable asset to The Sherry Netherland.

PO Box 60619 London W27JU

# Business Letter of Reference

| | FILED: NEW YORK COUNTY CLERK 11/28/2018 12:22 PM | | | | | INDEX NO. 652077/2017 | |------------------------------------------------------------------------------------------------------------------------|--------------------------------------------------|----------------|-----|--------------------------------------------------------------------------------------------------------------------------------------------------------------|-------------------------------------|--------------------------------------------| | NYSCEF DOC. NO. 256 | Case 22-50073 Doc 57-2 | Filed 03/01/22 | | Entered 03/01/22 22:13:12 | | Page 125 of RECEIVED NYSCEF: 11/28/2018 | | | Stevenson Wong &Co. | | 134 | Wi!ly Y.P. Cheng- 0 .Hank H.F Lo• | ~::;::ii ~tfHt | | | | X 1:_ ]![ §£:. | Pfr grp | | Cathenne K.G. Por Er,c CH. Lui• 1~4evHte J,J, \VatkinS"' W(:ndy \NS. L,;m• | ;~U~ Sz,~ ta£J 1H~H | | | ()ur Ref | EYC/HLO(P)/75450/15 | | | Lai 5, Lam• Cornelia VV,C. Chu· J,mice L.H Heidi H. Chui• Er <a cheng<="" th="" yy=""><th>,tf;(r,\" ;;~~]{ \;,f,rf Ya;</th><th></th></a> | ,tf;(r,\" ;;~~]{ \;,f,rf Ya; | | | Your ,' <et< th=""><th></th><th></th><th></th><th>)er·ior Consultant: Angus Forsyth1n</th><th></th><th></th></et<> | | | | )er·ior Consultant: Angus Forsyth1n | | | | Rep!y Fax | | | | Consuf!ant Sher!ynn G. Chan | | | | | 17 February 2015 | | | ~~,;,:-::m:~Rt | Notary Public of Hong K0ng | | | | | | | q:i:ffl~H.i;lifA | o China-Appointed Attesting Officer | | | BY POST | | | | ~~~-lf}, | • Civil CelebiJnt of fAarriages | |

Board of Directors of The Sherry-Netherland The Sherry-Netherland 781 Fifth Avenue New York, NY 10022

Dear Board members of The Sherr/ Netherland,

I am writing this letter of recommendation rn support of the application of Mr. Kwok Ho Wan (also known as Miles Kwok) to become a resident shareholder of your cooperative.

I first met Miles when he engaged my /aw firm in one of his business transactions about seven years ago. I was and am a partner of my firm. We have since established a long-standing relationship. Over the years, my firm has acted for Miles in various business transactions in different areas, including project financing, fund-raising, corporate mergers and acquisitions and acquisition of aircrafts, leisure boats and properties in Hong Kong, China and different parts of the world.

Miles is a successful businessman and a polite, dependable and responsible individual who conducts himself with dignity and intelligence. Putting aside our work relations, Miles has also been a good friend of mine. Personally, I know Miles to be delightful, considerate and respectful. I trust that his personal qualities will definitely make him a good neighbor and responsible steward of your building.

In my opinion, Miles will be a valued addition to your building.

If you wish to contact me personally, please feel free to call me at +852 2533 2552,

**[ Hank** Lo Partner

STEVENSON, WONG & CO.

i'}~rfl ~.i'tFr:b\ii1'112a,~Ji: c:pl\Lf:J:1.1~, sml,}, 1 4/F, &, 1602, Central Tovver, 2.8 Queen's Road Central, Hong Kong *t1!~~,* Tt.~!: i 852 2526 6.J 11 **·WJ,i** fax, ~e52 2845 0638 **l!lt(l** [m,,i/ info(\llsv,;-hk.com *\NWW.* S\V~hk.corr,

g™ 1N .. dfJ it B *i&, W* itr\_;, t,U·ti ri;ii \* ;;,tt; i **i.HH** *i-1,:Jf* % *it'.* a~ Hong Kong Cuangzhou 5h;:,ngha. -~anjing Shenz~ien Suzhou !n!erl.:i-v 19/l.1

18 February 2015

**BY POST**

Board of Directors of The Sherry-Netherland The Sherry-Netherland 781 Fifth Avenue New York, NY 10022

Dear Ladies and Gentlemen of the Board of The Sherry Netherland,

It is a great pleasure for me to recommend Kwok Ho Wan, also known as Miles Kwok, to be a shareholder in The Sherry-Netherland, Inc. and~ resident in your building. I am a managing director of the Wealth Management and Swiss Bank Department at UBS AG and attach my name card for your kind reference. I *have* known Miles for about five years since he first began working with UBS AG. Miles has since been working with us in the areas of securities investment and also in financing his various projects in areas such as aircraft acquisitions.

Miles has been a successful and accomplished entrepreneur who has developed and managed a number of companies, both domestically and internationally. Over the years, Miles has earned his credibility in our bank. He is very reliable and always fulfills his repayment obligations. For this reason, our bank is happy to have him as our long-term client.

From a personal standpoint, Miles is a sincere and modest gentleman with a warm heart. He is financially sound but very humble. He is also one of the most intelligent, genuine and respectful people I have ever known.

Based on my long standing relationship with Miles, I do recommend Miles to be a shareholder in your cooperative and a resident in your building. I am sure your community will be pleased to have him and his family join you at The Sherry.

If you have any questions, please do not hesitate to contact me at stephen-kc. wong@ubs.com.

Yours faithfully,

# Financial Letter of Reference

.UDu

134

Hong Kong Branch 52/F Two International Finance Centre 8 Finance Street, Central, Hong Kong Tel. +852-2971 8888 Fax +852-2971 8001

Feb. 23, 2015

Board of Directors of the Sherry-Netherland The Sherry-Netherland 781 Fifth Avenue New York, NY 10022

Dear Sirs,

# **Bank Reference - [Application for Real Estate Investments]**

We have been asked to provide a reference letter in connection with Application for Real Estate Investments. We confirm that:

## **Kwok Ho Wan**

[client's ID: P746467(7)J

has been a client of ours through a personal investment company since July 2012 and during this time Mr. Kwok Ho Wan has had a satisfactory banking relationship with us. As at 18 Feb, 2015, the funds involved in thts banking relationship is not less than USD400, 000,000.

The above information is based on our experience of this banking relationship as at current date and is given in confidence for your private use only, without any responsibility on the part of UBS AG or its employees. This letter may only be used in the business context outlined at the beginning of this letter and does not constitute a guarantee or any other obligation on the part of UBS AG. In particular, we are under no obligation to inform you of any subsequent change of circumstances in this banking relationship.

Yours faithfuliy, For and on behalf of UBS AG Hong Kong Branch

~})/ rom4 Che6ng

Managing1Director

Stephen ong Managing Director

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Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 130 of 134

# **EXHIBIT 14**

# **SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY**

| PRESENT: | HON. BARRY R. OSTRAGER | PART | IAS MOTION 61EFM | | |----------|-------------------------------------------------------------------------------------------------------------------|----------------------------|------------------|--| | | Justice | | | | | | --------------------------------------------------------------------------------X | | | | | | PACIFIC ALLIANCE ASIA OPPORTUNITY FUND L.P., | | | | | | Plaintiff, | INDEX NO. | 652077/2017 | | | | - v - | MOTION DATE | | | | | KWOK HO WAN, a/k/a KWOK HO, a/k/a GWO WEN GUI, a/k/a GUO WENGUI, a/k/a GUO WEN-GUI, a/k/a | MOTION SEQ. NO. | 018 | | | | WAN GUE HAOYUN, a/k/a MILES KWOK, a/k/a HAOYUN GUO, GENEVER HOLDINGS LLC, and GENEVER HOLDINGS CORPORATION, | DECISION + ORDER ON MOTION | | | | | | | | |

Defendants. --------------------------------------------------------------------------------X

# HON. BARRY R. OSTRAGER

Before the Court is Motion 018 by PAX for a post-judgment turnover pursuant to CPLR 5255 of Kwok's shares in Genever Holdings Corporation ("Genever BVI") and other relief. In accordance with the transcript of proceedings of September 22, 2021, the motion is granted to the extent of directing Kwok to take the steps necessary to effect the turnover his shares in Genever BVI to PAX. This order is expressly subject to the approval of Justice Adrian Jack who issued a stay in the British Virgin Islands ("BVI") in the related BVI litigation. The Court declines to appoint a receiver at this time.

Accordingly, it is hereby,

ORDERED that Kwok Ho Wan take whatever steps are necessary in the British Virgin Islands to turnover all share certificates with respect to his 100% ownership interest in Genever Holdings Corporation ("Genever BVI"); and it is further

ORDERED that this decision and order is expressly contingent on the approval of Justice Jack in the related proceeding in the British Virgin Islands. Any actions affecting Genever

Holdings LLC, a wholly owned subsidiary of Genever BVI, are subject to the jurisdiction of Justice Garrity in the Bankruptcy proceeding in the Southern District of New York involving Genever Holdings LLC, in which PAX is participating.

A status conference is scheduled for November 16, 2021 at 10:00 am.

Dated: September 22, 2021

Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 133 of 134

# **EXHIBIT 15**

**FILED: NEW YORK COUNTY CLERK 02/18/2022 11:18 AM** INDEX NO. 652077/2017 NYSCEF DOC. NO. 1191 RECEIVED NYSCEF: 02/18/2022 Case 22-50073 Doc 57-2 Filed 03/01/22 Entered 03/01/22 22:13:12 Page 134 of 134

**COUNTY OF NEW YORK JUDGE OSTRAGER, BARRY R. MOTION JUDGE OSTRAGER, BARRY R. SUPREME COURT OF THE STATE OF NEW YORK**

![](_page_133_Picture_2.jpeg)

**Motion 026**

**Index No.**

**652077/2017**

**Pacific Alliance Asia Opportunity Fund L.P.**

**- v. -**

**Kwok Ho Wan et al**

# **COURT NOTICE**

Filing on Behalf of - Rose Ann Magaldi, Principal Law Clerk to Justice Ostrager

In light of the bankruptcy filing by Mr. Kwok, the Court proposes that plaintiff either withdraw the pending contempt motion (026) without prejudice to an appropriate application in the Bankruptcy Court and/or without prejudice to renewal before this Court, if appropriate, upon the conclusion of the bankruptcy proceedings. The Court prefers not to keep fully submitted motions pending for an indefinite time. If counsel have an alternative suggestion, the Court will, of course, consider it.

We ask that plaintiff, and any other interested party, efile a letter by March 3, 2022 addressing the issues raised in this Court Notice. Thank you. DATED 02/18/2022 FILED By RoseAnn Magaldi