EXECUTION COPY MASTER AGREEMENT

Transcription

1 MASTER AGREEMENT This MASTER AGREEMENT (the Agreement ) is entered into as of June 23, 2016, by and among POTALA TOWER SEATTLE, LLC, a Delaware limited liability company ( Tower LLC ), BINJIANG TOWER CORP., a Delaware corporation ( Binjiang ), BINJIANG OTHELLO CORP., a Delaware corporation ( Binjiang Othello ), BINJIANG SHORELINE CORP., a Delaware corporation ( Binjiang Shoreline ), PH SEATTLE TOWER I, LLC, a Nevada limited liability company ( Molasky ), PATH AMERICA TOWER LP, a Washington limited partnership ( Path America LP ), PATH TOWER SEATTLE LP, a Washington limited partnership ( Path Tower LP, and together with Path America LP, the Tower LPs ), PATH AMERICA LLC, a Washington limited liability company ("Path America"), POTALA SHORELINE LLC, a Delaware limited liability company ( Shoreline ), PATH AMERICA FARMER S MARKET LP, a Washington limited partnership ( Farmer s Market ), POTALA VILLAGE KIRKLAND LLC, a Washington limited liability company ( Kirkland ), DARGEY HOLDINGS LLC, a Washington limited liability company ( Dargey Holdings ), DARGEY MANAGEMENT SERVICES, INC., a Washington corporation ( Dargey Management ), DARGEY DEVELOPMENT, LLC, a Washington limited liability company ( Dargey Development ), PATH OTHELLO, LLC, a Delaware limited liability company ( Othello ), Lobsang Dargey, an individual ( Dargey ), and Michael A. Grassmueck, solely in his capacity as the Court-appointed receiver ( Receiver ) for Path America LLC et al. WHEREAS, Tower LLC has been developing a mixed-use, high-rise tower upon that certain real estate owned by Tower LLC and located at th Avenue, Seattle, Washington (the Project ); WHEREAS, in connection with case number C JLR (the Securities Action ) filed in United States District Court, Western District of Washington, Seattle Division (the Court ), entitled Securities and Exchange Commission v Path America, LLC et al., Receiver took possession of the Project and certain legal entities associated with the Project, by order of Judge James L. Robart on October 6, 2015 (the Appointment Order ); WHEREAS, prior to the Appointment Order, the Project was approved by the United States Citizenship and Immigration Services ( USCIS ) as an EB-5 eligible project and Path America KingCo, LLC, a Washington limited liability company ( KingCo ) was designated as an approved regional center to raise qualified investment capital from foreign nationals ( EB-5 Investors ) that were seeking permanent residency in the United States (the EB-5 Program ); WHEREAS, on March 23, 2016, USCIS terminated the regional center designation for KingCo (subject to appeal if filed on or before April 25, 2016); WHEREAS, on April 20, 2016, the Court, directed the Receiver to accelerate its review of options for the sale or transfer of the Project in light of the USCIS decision, and to solicit two sets of proposals, the first from buyers wishing to complete the Project as planned and consistent with the EB-5 Program, and the second from buyers wishing to purchase the Project on an AS- IS, WHERE-IS basis, and then identify the best proposal of each type and make a recommendation to the Court for the best proposal by May 13, 2016;

2 WHEREAS, on or about April 22, 2016, the Receiver caused KingCo to submit to USCIS an appeal of the USCIS notice of termination as to KingCo. (as supplemented, the "Appeal"); WHEREAS, on May 20, 2016, the Court issued an order ("Preliminary Approval Order") approving the Receiver's recommendation of a proposal submitted by Binjiang, a Molasky Affiliate and various Dargey-related entities ("Binjiang/Molasky Proposal"), and directing the parties thereto to finalize the transaction according to an identified schedule. WHEREAS, the Binjiang/Molasky Proposal, as approved by the Preliminary Approval Order, provides for, among other things: (a) redemption of all of Dargey Holdings interest in Tower LLC; (b) amendment and restatement of the limited liability company agreement of Tower LLC in the form attached hereto as Exhibit A (the A&R LLC Agreement ), pursuant to which (i) Binjiang will be appointed the managing member, (ii) Binjiang will make an additional $20 million capital contribution in exchange for an aggregate 85% percentage interest (the "Binjiang Additional Subscription"), (iii) Molasky will make a $10 million capital contribution in exchange for a 15% percentage interest, and (iv) Binjiang and Molasky will share in distributions of available cash after payment of expenses and reserves in percentages agreed upon by Binjiang and Molasky; (c) amendment and restatement of the limited partnership agreements of Tower LPs in the forms attached hereto as Exhibit B (the A&R Partnership Agreements ), pursuant to which interest payments received pursuant to the A&R Loan Agreements defined below will be allocated exclusively to the applicable EB-5 Investors, among other things ; (d) Tower LLC and Molasky entering into a new development agreement for the Project in the form attached hereto as Exhibit C (the New Development Agreement ), pursuant to which (i) Molasky would be appointed to implement and execute the remaining design and construction of the Project in a manner consistent with the original offering documents delivered to the EB-5 Investors as approved by the USCIS; (ii) Molasky would be responsible for development and the day-to-day operation of the Project, subject to the approval by Binjiang with respect to certain matters as specified in the New Development Agreement, including the construction budget; and (iii) Molasky would receive: (A) a development fee equal to 3% of the hard costs and soft costs of the Project incurred after the date of execution of the New Development Agreement (but excluding certain fees payable to Molasky); and (ii) an overhead fee equal to $1,500,000; (e) Tower LLC, Dargey Management and Dargey Development entering into a termination agreement in the form attached hereto as Exhibit D (the Termination Agreement ), pursuant to which that certain Asset Management Agreement, dated as of August 19, 2015, between Dargey Management and Tower LLC, and that certain undated Second Amended and Restated Development Agreement between Dargey Development and Tower LLC, and any other contracts between the Parties relating to the Project, are terminated;

3 (f) Tower LLC and Tower LPs entering into amended and restated loan agreements and promissory notes in the forms attached hereto as Exhibit E hereto (the A&R Loan Agreements ) and Exhibit F hereto (the A&R Notes ), respectively, evidencing the agreements of the Parties with respect to the loans ( Loans ) from Tower LPs to Tower LLC set forth in ARTICLE V hereto; (g) rescission of Binjiang Othello s investment in Othello (the Othello Rescission ) in exchange for payment to Binjiang Othello of $13,396,948.13] and issuance from Othello to Binjiang Othello of a promissory note on the Closing, in the principal amount of $1,603,051.87, representing the remainder of Binjiang Othello s investment in Othello, all pursuant to the terms of a Rescission Agreement in the form attached as Exhibit G hereto (the Othello Rescission Agreement ) and promissory note, in the form attached hereto as Exhibit H (the Binjiang Othello Note ); (h) rescission of Binjiang Shoreline s investment in Shoreline (the Shoreline Rescission ) in exchange for payment to Binjiang Shoreline of $4,900,000 and a claim for the remainder of its investment pursuant to the terms of a Rescission Agreement in the form attached as Exhibit I hereto (the Shoreline Rescission Agreement ); (i) the transfer of assets and treatment of liabilities relating to the Parties hereto in the manner set forth in ARTICLE IV hereto; (j) A Court-approved distribution to Dargey of $1.8 million in cash by transfer directly to Dargey s counsel s trust account, with Court approval that such funds, limited to the payment of legal fees and related expenses, are outside the scope of the Court s Order freezing certain assets; (k) a mutual general release of claims between Binjiang and the Dargey Parties relating to claims and causes of action arising in connection with the Project from acts, events, or circumstances on or prior to the Closing in the form attached as Exhibit J hereto (the Mutual Release ); (l) a general release of claims by the Dargey Parties in favor of Tower LLC, KingCo. and the Tower LPs relating to claims and causes of action arising in connection with the Project from acts, events, or circumstances on or prior to the Closing in the form attached as Exhibit K hereto (the Dargey Release ); (m) a mutual general release of claims between Binjiang and the Receiver relating to claims and causes of action arising in connection with the Project from acts, events, or circumstances on or prior to the Closing in the form attached as Exhibit L hereto (the Receivership Release ); WHEREAS, the Parties hereto desire to effectuate the Preliminary Approval Order; NOW THEREFORE, in consideration of the mutual agreements and covenants herein contained, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties hereto, intending to be legally bound, hereby agree as follows:

4 ARTICLE I DEFINITIONS Section 1.1 Certain Defined Terms. As used in this Agreement, the following defined terms shall have the following meanings (such meanings to be equally applicable to the singular and plural forms of the terms defined): A&R LLC Agreement is defined in the Recitals. A&R Loan Agreements is defined in the Recitals. A&R Notes is defined in the Recitals. A&R Partnership Agreements is defined in the Recitals. Affiliate of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control" (including the terms "controlled by" and "under common control with") means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise. Agreement is defined in the Preamble. "Appeal" is defined in the Recitals. Appointment Order is defined in the Recitals. Binjiang is defined in the Preamble. Binjiang Othello is defined in the Preamble. Binjiang Othello Note is defined in the Recitals. Binjiang Parties means Binjiang, Binjiang Othello and Binjiang Shoreline. Binjiang Shoreline is defined in the Preamble. Business Day means any day except Saturday, Sunday or any other day on which commercial banks located in Seattle, Washington are authorized or required by law to be closed for business. "Claims Order" is defined in Section 4.3. Closing is defined in Section 2.1. Closing Date is defined in Section 2.1. Court is defined in the Recitals

5 Dargey is defined in the Preamble. Dargey Home Receivable is defined in Section 4.1(a)(iii). Dargey Development is defined in the Preamble. Dargey Holdings is defined in the Preamble. Dargey Management is defined in the Preamble. Dargey Parties means Dargey, Dargey Holdings, Dargey Management, Dargey Development and Othello. Dargey Release is defined in the Recitals. EB-5 Disclosure Document is defined in Section 5.1(a). EB-5 Investors is defined in the Recitals. EB-5 Program is defined in the Recitals. Encumbrances is defined in Section 3.1(a). Farmers Market is defined in the Preamble. "Final Court Approval" is defined in Section 12.1(a). Loans is defined in the Recitals. Kingco is defined in the Recitals. Kirkland is defined in the Preamble. Molasky is defined in the Preamble. Mutual Release is defined in the Recitals. New Development Agreement is defined in the Recitals. Othello is defined in the Preamble. Othello Rescission is defined in the Recitals. Othello Rescission Agreement is defined in the Recitals. Party or Parties means individually and collectively, respectively, each of the following Persons: Tower LLC, Binjiang, Binjiang Othello, Binjiang Shoreline, Molasky, Path America, Path Tower, Shoreline, Farmer s Market, Kirkland, Dargey Holdings, Dargey Management, Dargey Development, Othello, Dargey and Receiver

6 Path America is defined in the Preamble. Path America LP is defined in the Preamble. Path Tower LP is defined in the Preamble. PCL means PCL Construction Services, Inc. Person means an individual, corporation, partnership, joint venture, limited liability company, governmental agency, unincorporated organization, trust, association or other entity. "PRC Recordals" means (a) the necessary recordal notice from the Administration Committee of China (Shanghai) Pilot Free Trade Zone in respect of the Binjiang Additional Subscription, and (b) registration of the Binjiang Additional Subscription with the relevant branch of the State Administration of Foreign Exchange. Project is defined in the Recitals. Receiver is defined in the Preamble. Receivership Parties means Tower LLC, Path America LP, Path Tower LP, Shoreline, and Farmer s Market. Receivership Release is defined in the Recitals. Redeemed Interests is defined in Section 3.1(a). "Redemption" is defined in Section 3.1(a). Securities Action is defined in the Recitals. Required EB-5 Threshold is defined in Section 5.1(d). Shoreline is defined in the Preamble. Shoreline Rescission Agreement is defined in the Recitals. Taxes means all federal, state, local, foreign and other income, gross receipts, sales, use, production, ad valorem, transfer, franchise, registration, profits, license, lease, service, service use, withholding, payroll, employment, unemployment, estimated, excise, severance, environmental, stamp, occupation, premium, property (real or personal), real property gains, windfall profits, customs, duties or other taxes, fees, assessments or charges of any kind whatsoever, together with any interest, additions or penalties with respect thereto and any interest in respect of such additions or penalties. Termination Agreement is defined in the Recitals. Tower Assigned Receivership Assets is defined in Section 4.1(a)(iv)

7 Tower LLC is defined in the Preamble. Tower LLC Balance Sheet is defined in Section 4.1(a). Tower LPs is defined in the Preamble. Transaction Documents means this Agreement, the A&R LLC Agreement, A&R Partnership Agreements, New Development Agreement, Termination Agreement, A&R Loan Agreements, A&R Notes, Othello Rescission Agreement, Shoreline Rescission Agreement, Mutual Release, Dargey Release and Receivership Release. Transactions means the transactions contemplated to be consummated by the Transaction Documents. USCIS is defined in the Preamble. Voya Loan is defined in Section 12.1(c). Section 1.2 Interpretation. For purposes of this Agreement, (a) the words include, includes and including are deemed to be followed by the words without limitation ; (b) the word or is not exclusive; and (c) the words herein, hereof, hereby, hereto and hereunder refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to sections, schedules and exhibits mean the sections of, and schedules and exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The schedules and exhibits referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. ARTICLE II THE TRANSACTIONS; CLOSING Section 2.1 Closing. Subject to Final Court Approval, the closing of the Transactions (the Closing ) shall be held at the offices of First American Title Insurance Company in Seattle, Washington, on August 31, 2016, at 10:00 a.m. (local time) or any date prior to August 31, 2016, as may be fixed by mutual agreement of the Parties hereto. The date on which the Closing is actually held hereunder is sometimes referred to herein as the Closing Date. Section 2.2 Actions at Closing. Subject to the terms and conditions set forth in this Agreement, at the Closing: (a) each Party hereto shall deliver to each other Party hereto, executed copies of each of the Transaction Documents to which he, it or she is a party; and

8 (b) each Party hereto shall transfer those funds which it is required to transfer to the respective Parties as set forth in ARTICLE III and ARTICLE IV. Section 2.3 Time of the Essence. The Parties hereto acknowledge and agree that, subject only to satisfaction or waiver of the conditions to Closing set forth hereunder, time is of the essence in consummating the Transactions. ARTICLE III REDEMPTION Section 3.1 Redemption. On the Closing, and in consideration of all promises, obligations, concessions, forbearances, stipulations, and other consideration exchanged under this agreement, and subject to the terms and conditions set forth in this Agreement, Tower LLC hereby purchases and redeems from Dargey Holdings (the "Redemption"), and Dargey Holdings hereby sells to Tower LLC all of Dargey Holdings right, title and interest in and to membership interests in Tower LLC (the Redeemed Interests ). The Redeemed Interests shall be delivered to Tower LLC free and clear of all security interests, liens, claims, pledges, encumbrances or other rights or claims of any other Person or any preemptive or similar rights (collectively, Encumbrances ). Upon the Closing, neither Dargey Holdings nor any other Dargey Party shall have any further economic, voting or other interest in Tower LLC. Molasky shall be deemed admitted as a member of Tower LLC immediately prior to the Redemption. Section 3.2 Attorney Fees and Expenses. Tower LLC shall distribute to Dargey $1.8 million in cash by transfer directly to Dargey s counsel s trust account, with Court approval that such funds, limited to the payment of legal fees and related expenses, are outside the scope of the Court s Order freezing certain assets. The distribution shall be paid in cash by wire transfer within five days after the Closing to the trust account of legal counsel to Dargey in accordance with wire transfer instructions provided to Tower LLC. Section 3.3 Seller Representations. Dargey Holdings represents and warrants that it has good and valid title to the Redeemed Interests, free and clear of any and all Encumbrances. ARTICLE IV TRANSFER OF ASSETS; TREATMENT OF LIABILITIES Section 4.1 Transfer of Assets. (a) The Parties acknowledge and agree that as of the Closing, Tower LLC shall have those assets set forth on its balance sheet dated as of May 31, 2016 and attached hereto as Exhibit M (the Tower LLC Balance Sheet ), except: (i) actual cash shall be equal to the cash on the Tower LLC Balance Sheet less amounts used to pay expenses incurred by Tower LLC between the date of the Tower LLC Balance Sheet and Closing;

9 (ii) the intercompany receivable owed from Farmer s Market to Tower LLC shall be reduced to an agreed allowed claim for $500,000 in favor of Tower LLC against Farmer s Market; (iii) Tower LLC shall receive at Closing 50% of the net proceeds obtained by Receiver from the sale of Dargey's Bellevue residence (after repair costs, taxes, broker s commissions, and related closing costs) in full satisfaction of the receivable owed from Dargey to Tower LLC for funds used to purchase the residence (the Dargey Home Receivable ), with the remainder of the net sale proceeds hereby assigned to Receiver for the benefit of the receivership estate; (iv) except for (A) the intercompany receivable owed to Tower LLC by Othello set forth under Section 4.1(b)(i) and (B) the Dargey Home Receivable, all assets identified as Other Loans and Other Syndication Costs, etc. on the Tower LLC Balance Sheet, and all of Tower LLC's rights, title and interest therein, shall be assigned to Receiver for the benefit of the receivership estate ( Tower Assigned Receivership Assets ) and not constitute assets of Tower LLC; and (v) Tower LLC will be paid by the Receiver an amount equal to 30% of the net amounts received by the Receiver from the Tower Assigned Receivership Assets within ten (10) days of receipt of such net amounts by the Receiver. (b) The Parties acknowledge and agree that the intercompany receivables in favor of Tower LLC on the Tower LLC Balance Sheet from Othello, Shoreline, and Kirkland shall be settled as follows: (i) Othello shall pay to Tower LLC at Closing $1,023, in cash, representing payment in full of its intercompany debt owed to Tower LLC; (ii) Shoreline shall pay to Tower LLC at Closing $7,745, in cash, representing payment in full of its intercompany debt owed to Tower LLC; Tower LLC will have an allowed claim for the full intercompany receivable owed to Tower LLC by Kirkland. Within five (5) days of the issuance of the Claims Order (defined below) from the Court, assuming the Kirkland assets have been sold, the net proceeds of such sale shall be paid to Tower LLC on its allowed claim, pro rata with any other intercompany payments made to extinguish Kirkland intercompany debt and other unsecured allowed claims relating to the Kirkland property, if any. If the Kirkland receivership assets have not been sold before the issuance of the Claims Order, the payment shall be made within five (5) days after the sale of the Kirkland assets. Any deficiency in the amount paid from those sale proceeds to Tower LLC will be an allowed claim of Tower LLC against the Kirkland-related assets in the receivership estate. (c) As part of the Othello Rescission, Othello shall pay to Binjiang Othello at Closing $[13,200,000], representing the balance of its cash after Othello repays intercompany debts owed to Tower LLC and Farmer's Market. The remainder of Binjiang Othello s investment in Othello shall be repaid pursuant to the terms of the Othello Rescission Agreement. (d) As part of the Shoreline Rescission, Shoreline shall pay to Binjiang Shoreline at Closing $4,900,000, representing the balance of Shoreline's cash after it repays

10 intercompany debt owed to Tower LLC, and after $1.5 million in cash is withheld by the Receiver, with the remainder of Binjiang Shoreline s investment in Shoreline repaid pursuant to the terms of the Shoreline Rescission Agreement. (e) intercompany debt. Othello shall pay to Farmer s Market $270,000, representing repayment of (f) Tower LLC will receive at Closing, in cash, all amounts held in or for the Tower LPs in any account, which is currently $2,050, (g) Tower LLC will receive at Closing, in cash, all funds of the EB-5 Investors held in escrow with respect to the Project, which is currently $16,500, (h) Molasky, or its designee, will be issued 100% of the ownership interests in KingCo free and clear of any Encumbrances. Molasky, or its designee, shall be responsible for continued prosecution of the Appeal after the Closing, if still pending. (i) The Receiver shall provide Tower LLC with reports not less often than quarterly with respect to collections from the Tower Assigned Receivership Assets and Kirkland property. Whenever the Receiver receives any funds with respect to such assets which are to be paid to Tower LLC pursuant to this Agreement it shall promptly do so. Section 4.2 Treatment of Liabilities. (a) The Final Approval Order shall include a provision that Tower LLC shall be free and clear of all liabilities other than those set forth in this Agreement, under the A&R Loan Agreements and A&R Notes and the New Development Agreement. (b) Tower LLC shall, after the Closing and the Receiver's resolution of the claims in (i) and (ii) herein, pay to the Receiver s designee an aggregate amount equal to (i) the amount of Receiver s final payments to any creditors or claimants other than PCL with respect to the Project up to $1,000,000 in the aggregate, plus (ii) the amount of Receiver s final payment to PCL resolving its claims, if any, with respect to the Project. (c) The Final Approval Order shall include a provision that KingCo and the Tower LPs shall be free and clear of all liabilities other than those under the A&R Loan Agreements and A&R Notes, and obligations to repay the EB-5 Investors according to the terms of the A&R Partnership Agreements. (d) At Closing, Receiver shall withhold from Tower LLC $1,500, for the benefit of the receivership estate, in full and final satisfaction of any legal, professional, or administrative fees and costs owed to the Receiver or his professionals now or in the future attributable to Binjiang (or its affiliates), Molasky, Tower LLC, Kingco or Tower LPs. Section 4.3 Claims Process. The Receiver will diligently conduct a claims process to identify any non-investor claims against all entities in the receivership estate. The Receiver will seek imposition of a claims bar date that is no later than 60 days following publication of the Court-approved claims notice. The Receiver will promptly review any and all claims, and will

11 diligently pursue resolution, both informally and through summary adjudication by the Court, of any claims disputes, and will move the Court for an order approving claim amounts ("Claims Order") that the Receiver believes should be allowed. ARTICLE V EB-5 ISSUES Section 5.1 Disclosure to EB-5 Investors; Opt-in/Opt-out. The Parties agree to implement the following with respect to the EB-5 Investors: (a) on or before July 25, 2016, Receiver shall send a disclosure and optin/opt-out document to the EB-5 Investors in the form attached hereto as Exhibit N (the EB-5 Disclosure Document ); (b) Receiver shall send the EB-5 Disclosure Document to the EB-5 Investor addresses in the available investor records by (1) mail and (2) electronic mail. Receiver shall send the EB-5 Disclosure Document to all attorneys who have identified themselves to Receiver as representing one or more EB-5 Investors in the Project, and shall post an electronic copy of the EB-5 Disclosure Document on the Receiver's Path America receivership website. Receiver shall also publish a notice regarding the EB-5 Disclosure Document in the legal notices section of a newspaper regularly issued and of general circulation in Seattle, Washington at least two times between July 20, 2016 and August 20, Receiver shall allow the EB-5 Investors to submit their responses to the EB-5 Disclosure Document online via a web-based form where they can enter responses. EB-5 Investors shall also be permitted to submit responses by , facsimile and mail, and can request a date-stamped copy acknowledging receipt. Receiver shall establish and operate a help line in English and Chinese to assist EB-5 Investors with the EB-5 Disclosure Document. Receiver shall engage a third party administrator to send out the EB-5 Disclosure Documents to the EB-5 Investors by mail and ; establish and operate the web portal for response submission; operate the help line for the technical assistance on submitting responses; receive response submissions online, by mail, facsimile and ; and create a database of responses received for use by the Receiver; (c) any EB-5 Investor who does not affirmatively opt-in or affirmatively optout of the Transactions by August 24, 2016, will be deemed to have opted-in to the Transactions and by remaining in the Project and continuing to benefit from its development, such EB-5 Investor will be bound by the same obligations, agreements, releases, and bar order as if that EB- 5 Investor had affirmatively acted to opt-in; and (d) if at least 80% of EB-5 Investors do not opt-in to the Transactions, either through affirmative response or inaction, Binjiang and Molasky will not be obligated to proceed with the Transactions (the Required EB-5 Threshold ). If the Required EB-5 Threshold is reached but some EB-5 Investors choose to affirmatively opt-out of the Transactions, Tower LLC shall pay each opting-out EB-5 Investor $250,000 within five days after Closing (but only after receiving from each such investor the fully executed unconditional release, consent, and acknowledgement of the bar order preventing any further action by such EB5 investor against Binjiang, Molasky, or Tower LLC, as set forth in the EB-5 Disclosure Document) and Binjiang shall procure the necessary funds to Tower LLC to replace any such amounts paid to such

12 opting-out EB-5 Investors, in such form as Binjiang may in its sole discretion deem fit, which may include the form of mezzanine financing, new EB-5 financing or additional or new bank loans, provided that (i) if such additional funds, are provided by Binjiang in any form other than EB-5 financing, such additional financing shall be at a rate of interest which is not higher than the interest rate charged on the construction loan obtained by Tower LLC and junior in priority only to the Voya Loan but will rank pari passu with any loan provided by Molasky to Tower LLC; and (ii) if such additional funds are provided by way of new EB-5 financing, such new financing shall not be on terms which are more favorable to the new EB-5 investors than those terms that are applicable to the existing EB-5 Investors. Funds for each opt-out payment contemplated by this section 5.1(d) shall be transferred by Tower LLC to the applicable Tower LP, which shall then make the payment to the EB-5 Investor. Section 5.2 EB-5 Financing Terms. The Parties agree that the Loans shall be amended in accordance with the terms set forth in the A&R Loan Agreements, the A&R Notes and A&R Partnership Agreements, in the forms attached hereto as Exhibits E, F and B, respectively. ARTICLE VI PROJECT ISSUES Section 6.1 shall be as follows: Sources of Funds. The sources of funds for the completion of the Project Construction Loan: $ 100,000,000 Binjiang Equity: $ 50,000,000 Molasky Equity: $ 10,000,000 EB-5 Investors: $ up to 83,000,000 Section 6.2 Completion Guaranties. Molasky shall cause Affiliates reasonably acceptable to the lender of the Voya Loan to execute payment and completion guaranties with respect to such loan reasonably acceptable to such lender and the guarantors; provided that the.amount guarantied does not exceed $100,000,000. Unless at such time there is an uncured material default under the Voya Loan such guaranties will terminate on the Final Completion Date, as defined in the New Development Agreement. Section 6.3 Additional Captial. If any additional capital is required for cost overruns or to meet debt covenants, Molasky or its affiliate shall be reponsible for contributing the required capital through additional subordinated debt financing at a lending rate not greater than 4% per annum, as set forth in section 10.2(a) of the A&R LLC Agreement. Section 6.4 Other Costs. Molasky or its designee, for no more compensation than a pass-through of expenses up to $50,000 per year, shall manage all EB-5 related issues including the preparation of any new disclosure documents which may be required to be provided to EB-5 Investors and communications with EB-5 Investors. Any outside legal costs incurred by Molasky prior to Closing and related specifically to the Appeal shall be treated as Project costs and added to the Project budget

13 ARTICLE VII REPRESENTATIONS AND WARRANTIES OF THE RECEIVERSHIP PARTIES As a material inducement to the Dargey Parties, Binjiang, Molasky and each other Party to enter into the Transaction Documents to which he, she or it is a party and to consummate the Transactions to which he, she or it is a party, each of the Receivership Parties represents and warrants to each other Party as of the date hereof and the Closing as follows: Section 7.1 Authority. Subject to Final Court Approval, each Receivership Party has the requisite power and authority to execute and deliver this Agreement, to perform fully its obligations hereunder and to consummate the transactions contemplated hereby. ARTICLE VIII REPRESENTATIONS AND WARRANTIES OF THE DARGEY PARTIES As a material inducement to the Receivership Parties, Binjiang, Molasky and each other Party to enter into the Transaction Documents to which he, she or it is a party and to consummate the Transactions to which he, she or it is party, each of the Dargey Parties represents and warrants to each other Party as of the date hereof and the Closing as follows: Section 8.1 Organization. Each Dargey Party (other than Dargey) is duly organized, validly and in good standing under the laws of the state of its organization and has all the requisite organizational power and authority to enter into this Agreement and the other Transaction Documents, to carry out its obligations hereunder and thereunder and to consummate the Transactions and the other transactions contemplated hereby. Section 8.2 Authority. Subject to Final Court Approval, each Dargey Party has full authority, right, power and capacity to enter into each Transaction Document to which it is party and each agreement, document and instrument to be executed and delivered by or on behalf of such Dargey Party, as applicable, pursuant to or as contemplated by the Transaction Documents (or any of them) and to carry out the Transactions and the other transactions contemplated hereby and thereby to which it is party. The execution, delivery and performance by each Dargey Party of this Agreement, the other Transaction Documents and each such other agreement, document and instrument to which it is party have been duly authorized by all necessary action of such Dargey Party, as applicable, and no other action on the part of such Dargey Party is required in connection therewith. This Agreement and each agreement, document and instrument to be executed and delivered by the Dargey Parties pursuant to or as contemplated by the Transaction Documents (or any of them) constitute, or when executed and delivered will constitute, valid and binding obligations of each applicable Dargey Party, enforceable in accordance with their respective terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting the rights of creditors generally and subject to the rules of law governing (and all limitations on) specific performance, injunctive relief and other equitable remedies. Section 8.3 Consents and Approvals. Except for Final Court Approval, the execution, delivery and performance of any Transaction Documents by any Dargey Party will not, as of the Closing Date, require any third-party consents, approvals, authorizations or actions, except

14 where the failure to obtain such consents, approvals, authorizations or actions would not delay or prevent the consummation of the transactions contemplated by this Agreement or have a material adverse effect on the ability of any Dargey Party to perform its obligations under any Transaction Document. Section 8.4 No Project Involvement. No Dargey Party has sought nor obtained any interest of any kind in the Project (whether legal, beneficial, executory, springing, conditional, discretionary, oral, or potential), nor does any Dargey Party have any commitment, promise, understanding, or expectation that Molasky, Binjiang or any other party to the Transactions is providing or will provide in the future any benefit to any Dargey Party that does not expressly appear in the written terms of this Agreement. No Dargey Party has any knowledge or information of any facts or circumstances that would make the foregoing representation untrue or misleading in any way. ARTICLE IX REPRESENTATIONS AND WARRANTIES OF THE BINJIANG PARTIES As a material inducement to the Receivership Parties, the Dargey Parties, Molasky and each other Party to enter into the Transaction Documents to which he, she or it is a party and to consummate the Transactions to which he, she or it is party, the Binjiang Parties represent and warrant to each other Party as of the date hereof and the Closing as follows: Section 9.1 Organization. Each Binjiang Party is duly organized, validly and in good standing under the laws of the state of its organization and has all the requisite organizational power and authority to enter into this Agreement and the other Transaction Documents, to carry out its obligations hereunder and thereunder and to consummate the Transactions and the other transactions contemplated hereby. Section 9.2 Authority. Each Binjiang Party has as of the Closing full authority, right, power and capacity to enter into each Transaction Document to which it is party and each agreement, document and instrument to be executed and delivered by or on behalf of such Binjiang Party, as applicable, pursuant to or as contemplated by the Transaction Documents (or any of them) and to carry out the Transactions and the other transactions contemplated hereby and thereby to which it is party. The execution, delivery and performance by each of this Agreement, the other Transaction Documents and each such other agreement, document and instrument to which it is party have been duly authorized by all necessary action of such Binjiang Party, as applicable, and no other action on the part of such Binjiang Party is required in connection therewith. This Agreement and each agreement, document and instrument to be executed and delivered by each Binjiang Party pursuant to or as contemplated by the Transaction Documents (or any of them) constitute, or when executed and delivered will constitute, valid and binding obligations of each applicable Binjiang Party, enforceable in accordance with their respective terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting the rights of creditors generally and subject to the rules of law governing (and all limitations on) specific performance, injunctive relief and other equitable remedies

15 Section 9.3 Consents and Approvals. Except for Final Court Approval, the execution, delivery and performance of any Transaction Document by each Binjiang Party will not, as of the Closing Date, require any third-party consents, approvals, authorizations or actions, except where the failure to obtain such consents, approvals, authorizations or actions would not delay or prevent the consummation of the transactions contemplated by this Agreement or have a material adverse effect on the ability of any to perform its obligations under any Transaction Document. The Receiver agrees to cooperate and assist in good faith in any actions and filings reasonably necessary to accomplish any pre-closing PRC Recordals or foreign exchange approvals. Section 9.4 No Dargey Project Involvement. No Binjiang Party has any obligation to any Dargey Party, and has not promised or led any Dargey Party to expect any benefit from it, other than as expressly stated in this Agreement, and is not holding, will not hold, and will not create, bestow, deliver, or arrange in the future, any beneficial interest or benefit of any kind for any Dargey Party or for any agent, designee, or person acting in concert with, or for the benefit of, any Dargey Party. Other than as expressly stated in this Agreement, no Binjiang Party will employ any person, make any payment, or otherwise act in any way to benefit any Dargey Party or his relatives or other designated persons, and each Binjiang Party expressly denies any obligation to do so. No Binjiang Party has any knowledge or information of any facts or circumstances that would make any of the Dargey Parties' representations in Section 8.4 untrue or misleading in any way. ARTICLE X REPRESENTATIONS AND WARRANTIES OF MOLASKY As a material inducement to the Receivership Parties, the Binjiang Parties, the Dargey Parties and each other Party to enter into the Transaction Documents to which he, she or it is a party and to consummate the Transactions to which he, she or it is party, Molasky represents and warrants to each other Party as of the date hereof and the Closing as follows: Section 10.1 Organization. Molasky is duly organized, validly and in good standing under the laws of the state of its organization and has all the requisite organizational power and authority to enter into this Agreement and the other Transaction Documents, to carry out its obligations hereunder and thereunder and to consummate the Transactions and the other transactions contemplated hereby. Section 10.2 Authority. Molasky has full authority, right, power and capacity to enter into each Transaction Document to which it is party and each agreement, document and instrument to be executed and delivered by or on behalf of such, as applicable, pursuant to or as contemplated by the Transaction Documents (or any of them) and to carry out the Transactions and the other transactions contemplated hereby and thereby to which it is party. The execution, delivery and performance by it of this Agreement, the other Transaction Documents and each such other agreement, document and instrument to which it is party have been duly authorized by all necessary action of Molasky, and no other action on the part of Molasky is required in connection therewith. This Agreement and each agreement, document and instrument to be executed and delivered by Molasky pursuant to or as contemplated by the Transaction Documents (or any of them) constitute, or when executed and delivered will constitute, valid and binding obligations of Molasky, enforceable in accordance with their respective terms, except as

16 the same may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws affecting the rights of creditors generally and subject to the rules of law governing (and all limitations on) specific performance, injunctive relief and other equitable remedies. Section 10.3 Consents and Approvals. Except for Final Court Approval, the execution, delivery and performance of any Transaction Document by Molasky will not, as of the Closing Date, require any third-party consents, approvals, authorizations or actions, except where the failure to obtain such consents, approvals, authorizations or actions would not delay or prevent the consummation of the transactions contemplated by this Agreement or have a material adverse effect on the ability of Molasky to perform its obligations under any Transaction Document. Section 10.4 No Dargey Project Involvement. No Molasky Party has any obligation to any Dargey Party, and has not promised or led any Dargey Party to expect any benefit from it, other than as expressly stated in this Agreement, and is not holding, will not hold, and will not create, bestow, deliver, or arrange in the future, any beneficial interest or benefit of any kind for any Dargey Party or for any agent, designee, or person acting in concert with, or for the benefit of, any Dargey Party. Other than as expressly stated in this Agreement, no Molasky Party will employ any person, make any payment, or otherwise act in any way to benefit any Dargey Party or his relatives, and each Molasky Party expressly denies any obligation to do so. No Molasky Party has any knowledge or information of any facts or circumstances that would make any of the Dargey Parties' representations in Section 8.4 untrue or misleading in any way. ARTICLE XI ADDITIONAL COVENANTS Section 11.1 Taxes/Fees. Binjiang and Molasky, jointly and severally, hereby assume, and indemnify the Receiver from and against, any and all Tax liabilities or obligations, or government-imposed imposition or fee, of any nature whatsoever, if any, arising out of the Transactions, other than Tax liabilities arising solely from the inclusion of the Receiver as a Party to the Transactions. For the avoidance of doubt, Binjiang and Molasky shall be solely responsible for, and shall indemnify the Receiver from and against, any Taxes attributable to Washington State or local real estate excise tax with respect to the Project or the Transactions. Binjiang and Molasky hereby jointly agree to cause all Tax returns and filings for Tower LLC, the Tower LPs and KingCo required from and after the Closing Date to be made, provided that any such Tax returns and filings which cover or include a time period prior to the Closing Date shall be subject to the reasonable approval of the Receiver. Section 11.2 Brokers. Upon the Closing of the Transaction, Newmark Realty Capital is entitled to receive from Tower LLC a structuring fee in the amount of $750,000, payable half on closing of the construction loan and half once the Project receives a certificate of occupancy for both its hotel and apartments. Berkadia Real Estate Advisors, Inc. was separately retained as broker for Receiver and will be paid any fees owing by Receiver. Section 11.3 The Dargey Parties expressly indemnify Binjiang, Molasky, Tower LLC, Tower LPs and KingCo for any claims filed by EB-5 Investors, whether they consented or did not consent to the documents described in Section 5.1, with all costs of defending, settling, or paying such claims to be borne by the Dargey Parties

17 ARTICLE XII CONDITIONS TO CLOSING Section 12.1 Conditions to the Obligations of Each Party. The respective obligations of each Party to consummate the Transactions shall be subject to the satisfaction or waiver (in writing), at or prior to the Closing, of each of the following conditions, any or all of which may be waived, in whole or in part by the Parties hereto (but only to the extent that such matter is a precondition to the obligations of such waiving Party), to the extent permitted by applicable law: (a) The Court shall have issued an order which, among other things, (i) approves this Agreement and the Transactions, including the form of the EB-5 Disclosure Document identified in Section 5.1(a) and the means of delivering the EB-5 Disclosure Document to EB-5 Investors set forth in Section 5.1(b), (ii) lifts the injunction in place over escrowed funds of the EB-5 Investors related to the Project, and (iii) orders the escrow company to release to Tower LLC all escrowed funds related to the Project ("Final Court Approval"); (b) The Transaction Documents shall have been executed and delivered by each of the parties thereto; (c) Tower LLC has closed a loan (the Voya Loan ) with Voya Investment Management, or other construction lender, providing for construction financing for the Project in an amount not less than $100 million on terms and conditions reasonably acceptable to Binjiang and Molasky; (d) No suit, action or other proceeding shall be pending before any court or governmental agency with respect to the Project other than claims identified in the claims process set forth in Section 4.3 provided such claims would not prevent closing of the Transactions, affect post-closing title to Tower LLC, the Tower LPs, KingCo or any of their assets, or create any post-closing liability of any of such Persons; (e) Written confirmation from Molasky and the Binjiang Parties in favor of the Receiver that they are satisfied that the construction budget for the Project will cover the full hard and soft costs of construction, and that Tower LLC will in the reasonable opinion of each of Binjiang and Molasky have sufficient funds available to pay such costs; and (f) The parties shall have taken the actions set forth in Section 5.1 and neither Binjiang or Molasky have terminated the Transactions as a result of failure to meet the Required EB-5 Threshold. Section 12.2 Conditions to Obligations of the Receivership Parties. The obligations of the Receivership Parties to consummate the Transactions shall be subject to the satisfaction or waiver, at or prior to the Closing, of each of the following conditions: (a) Representations and Warranties. Each of the representations and warranties of the Dargey Parties, Binjiang and Molasky contained in any Transaction Document that are qualified as to materiality shall be true and correct in all respects and all other representations and warranties of the Dargey Parties, the Binjiang Entities and Molasky contained in any Transaction Document shall be true and correct in all material respects, in each

18 case on and as of the Closing Date, with the same effect as though made on and as of the Closing Date, except to the extent such representations and warranties are specifically made as of a particular date or as of the date of the applicable Transaction Document (in which case such representations and warranties shall be true and correct as of such date). (b) Covenants. All covenants contained in any Transaction Document to be performed or complied with by any of the Dargey Parties, Binjiang or Molasky on or before the Closing shall have been performed or complied with in all material respects. Section 12.3 Conditions to Obligations of the Dargey Parties. The obligations of the Dargey Parties to consummate the Transactions shall be subject to the satisfaction or waiver, at or prior to the Closing, of each of the following conditions: (a) Representations and Warranties. Each of the representations and warranties of the Receivership Parties, Binjiang and Molasky contained in any Transaction Document that are qualified as to materiality shall be true and correct in all respects and all other representations and warranties of the Receivership Parties, Binjiang and Molasky contained in any Transaction Document shall be true and correct in all material respects, in each case on and as of the Closing Date, with the same effect as though made on and as of the Closing Date, except to the extent such representations and warranties are specifically made as of a particular date or as of the date of the applicable Transaction Document (in which case such representations and warranties shall be true and correct as of such date). (b) Covenants. All covenants contained in any Transaction Document to be performed or complied with by any of the Receivership Parties, Binjiang or Molasky on or before the Closing shall have been performed or complied with in all material respects. Section 12.4 Conditions to Obligations of the Binjiang Parties. The obligations of the Binjiang Parties to consummate the Transactions shall be subject to the satisfaction or waiver, at or prior to the Closing, of each of the following conditions: (a) Representations and Warranties. Each of the representations and warranties of the Dargey Parties, Receivership Parties and Molasky contained in any Transaction Document that are qualified as to materiality shall be true and correct in all respects and all other representations and warranties of the Dargey Parties, Receivership Parties and Molasky contained in any Transaction Document shall be true and correct in all material respects, in each case on and as of the Closing Date, with the same effect as though made on and as of the Closing Date, except to the extent such representations and warranties are specifically made as of a particular date or as of the date of the applicable Transaction Document (in which case such representations and warranties shall be true and correct as of such date). (b) Covenants. All covenants contained in any Transaction Document to be performed or complied with by any of the Dargey Parties, Receivership Parties or Molasky on or before the Closing shall have been performed or complied with in all material respects. (c) Construction Contract. Tower LLC and the Contractor shall have executed the Construction Contract (as such terms are defined in the New Development Agreement)