Commentary

Bill Stenger: A response to VTDigger’s stories on EB-5 investors

Editor’s note: This commentary is by Bill Stenger, who is president and CEO of Jay Peak Resort.

One of the basic tenets of professional journalism is the “free exchange of information that is accurate, fair and thorough.” With that in mind, we feel compelled to respond to recent posts on VTDigger, specifically the stories posted on July 27, Oct. 5 and Oct. 22, as they are rife with misstatements and unsubstantiated allegations. Here are the irrefutable facts of the Tram Haus Lodge, Jay Peak’s first EB-5 project.

• The Tram Haus Lodge construction was begun in 2008 and opened for operation in December 2009. Its construction and quality exceeded the required financial commitments of the EB-5 offering and Jay Peak paid for all aspects of these enhancements. The $17.5 million of investor’s funds was augmented by over $5 million of Jay Peak investment. The total project was a $23 million effort. It is an outstanding product that is very appreciated by many EB-5 Phase I investors and all guests of the hotel.

• Every investor in the Tram Haus Lodge project has received their green card, a return on their investment and, over the next 38 months, will have their entire $500,000 investment returned to them with interest.

• Every investor in the Tram Haus Lodge project signed what is called a “subscription agreement.” The agreement is very specific in what is at risk stating on the very first page that “I [the investor] realize that an investment in [the Tram Haus] is of speculative nature and may result in a loss of my entire investment.” The investor further attests that they “have accumulated a net worth of not less than $US 1,000,000, or have an individual income of not less than US$ 200,000 per annum or a joint income with my spouse of not less than US$ 300,000 per annum.”

• The investor also attests in the subscription agreement that “I can bear the risk of the proposed investment, including the loss of my entire investment, a lack of liquidity in the investment or an inability to sell the investment for an indefinite period of time.” These clauses were put in place to ensure that investors fully vetted their own financial worth before making their investment; that a loss of their money would not put them in dire financial straits.

Fortunately, no Jay Peak investor has ever had to confront any of the above possibilities as Jay Peak is actively paying back every investor in the Tram Haus Lodge project 100 percent of their money. In fact, out of the more than 750 EB-5 projects in the country, Jay Peak is one of only a handful actively engaged in paying back its investors.

As to Mr. Sutton’s request to review the project’s accounting books, we have agreed and have invited him to the resort to do so. Unfortunately, Mr. Sutton has chosen instead to communicate through VTDigger.

 

VTDigger has become a mouthpiece for a small group of disgruntled investors who feel they should have received a greater return on their investment. Who doesn’t want a greater return on any investment they make whether it’s real estate or the stock market? But EB-5 investors know their money is at risk.

Investments in any EB-5 project are speculative; U.S. law requires that EB-5 investment be “at risk.” The “at risk” provision is to protect the job-creating business and give it the opportunity to grow and develop and have the ability to maintain employment levels, the core principle of a successful EB-5 project.

We had hoped that the Tram Haus Lodge would generate greater returns, but the economic downturn that began in 2008 looped an anchor around the nation’s economy and the value of the Tram Haus Lodge units were part of that real estate downturn. That being said, once built, the property did generate a return for every investor every year and those dividends have been paid. And just this past August, we were able to guarantee the full return of every investor’s $500,000 investment. Checks have been sent to all 35 investors and all 35 investors have cashed those checks. Payments will continue each of the next three years and in January of 2018, all investors will have been paid back in full with interest.

Tony Sutton, one of Digger’s resources for their latest piece, says in the story that he wants the “developers to account for how [investor] money was spent.” He need only read the United States Customs and Immigration Service (USCIS) I-829 document that granted him his green card to see how the money was spent. EB-5 projects in Vermont are meticulously accounted for and the I-829 petition that is submitted to the USCIS includes every receipt for every one of the $23 million paid to complete the Tram Haus project. A developer has to build what they say they were going to build and create the jobs they said they were going to create. Those are the pillars of the subscription agreement and the federal government’s I-829 petition. If these conditions aren’t met, investors don’t receive their green cards and EB-5 projects are not approved.

As to Mr. Sutton’s request to review the project’s accounting books, we have agreed and have invited him to the resort to do so. Unfortunately, Mr. Sutton has chosen instead to communicate through VTDigger. If he did communicate directly with us he would understand that we asked him to sign a standard non-disclosure agreement as we are responsible for protecting the confidential information of the other 34 investors that is contained in the books. Signing an NDA is one of the basic principles surrounding any investment document. In fact, Mr. Sutton signed an NDA as part of his subscription agreement. Accounting documents contain sensitive investor financials. It would be inherently irresponsible of Jay Peak to not request such a protection on behalf of the broader investor group. Unfortunately VTDigger described the NDA as a gag order. Another inflammatory characterization.

The state of Vermont’s EB-5 Regional Center is one of the most successful in the country. The state’s oversight of the Jay Peak EB-5 projects over the last six years has led to the creation of thousands of jobs throughout Vermont’s Northeast Kingdom. According to a report released this summer by the Vermont Department of Labor, Orleans County is leading the state in job creation. Never in Vermont’s 223-year history has this been the case. State economist Tom Kavet, in his July 24 report to the state’s Joint Fiscal Committee, cited Jay Peak’s EB-5 projects as the driver of growth in Orleans County. These facts, along with the fact that every Tram Haus investor who applied for their green card received their green card, are a great example of what happens when private business works with state policy makers to create jobs.

Vermont’s EB-5 program is a great job-creating economic development story, but one that has many complexities. All we ask is the story be told fairly and accurately.


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Commentary

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  • Bill Olenick

    I ask why,as an American,did you have to go overseas,with the governments blessing, in what amounts to selling our citizenship for non-US capital?
    Why not use the normal American way to raise money in country?
    What made you take this distasteful route to raise capital…the American regulatory environment?
    I would really like to know…

  • Bruce Post

    The EB5 program reminds me of Churchill’s description of Soviet Russia: “It is a riddle wrapped in a mystery inside an enigma.” Or, like Shakespeare’s Hamlet, it contains “a play within a play.”

    Obviously, a small posting on VTDigger is insufficient to burrow deep down to EB5’s rotten core. What struck me about Mr. Stenger’s commentary was this statement: “VTDigger has become a mouthpiece ….”

    He should talk. Bill Stenger himself has trotted out a number of high-powered mouthpieces to advance his business plan. Foremost among them: U.S. Senator Patrick Leahy, U.S. Senator Bernie Sanders, U.S. Congressman Peter Welch and Vermont Governor Peter Shumlin. Stenger even hired one of Peter Shumlin’s closest confidantes, Alexandra Maclean, to tout his plans. (See:https://www.youtube.com/watch?v=o3UuMeHqwwM)

    Churchill, in assessing the Soviet enigma, also said, “Perhaps there is a key.” And, in the case of Jay Peak, that key seems to be money.

    EB5 is one more example of the crony capitalism (a play within a play) that is a persistent feature of Vermont history. The ending is usually the same: The spoils of the despoiled lands end up in the pockets of a few.

  • Josh Fitzhugh

    Bill, this is a guess because I really don’t know the answer, but because the government provides a green card, the cost of the capital should be less than what a US investor would want.

  • Randy Koch

    Dang, Digger is a “mouthpiece” for disgruntled investors? How dare you, Digger. Surely you realize that it is the Great Stegner alone who shall have mouthpieces singing his praises. Get with the program!

  • Barry Kade

    When I read the original Digger articles, I came away with the impression that a major issue for the investors was that Jay Peak cancelled the partnership. The investors had put their considerable funds at risk, as Stenger notes here, but now, when it appeared that the project would be successful, the major Partner was cancelling their right to profits and paying back their money and over a longer time. frame than the investors had expected.
    Capitalism is particularly distasteful when not only wealth but power, meaning the ability to acquire more wealth, is concentrated in the hands of a few. Here is an apparent example of the very wealthy screwing the merely somewhat wealthy.

  • John Perry

    This piece sounds like prevaricated, hair-splitting lawyer talk. Does Bill expect that it will inspire confidence? Or is the confidence man a con?

  • Don Peterson

    If I followed this correctly, the original at risk investment was secured by assets, and that investment is now unsecured.

    Is this true or not?

    • Andrew Carr

      THE CORE OF THE PROBLEM

      Yes Don , you’ve hit the proverbial nail on the head. It seems these investors believe the promissory document they have received from Jay Peak mentions no assets.

      Bill Stenger on the other hand, insists it is covered by assets even though the investors say that if that were true those assets would have been written down in black and white – which as far as I understand – are not.

      • Don Peterson

        So has the nature of the assets been changed from one thing to another?

        • Willem Post

          Don,

          It is simple. Even a grade school kid can figure this out.

          It is classic bait and switch.

          Once Stenger and Quiros had the investor money, and the Phase I and II were having good revenues and profits, they did not want to share those profits with Asian investors.

          These investors were summarily told they were no longer owners, but lenders.

          BTW, here is an IOU. Now, keep quiet and go away.

          Steiger, CEO of Jay Peak, In., had a “handshake” agreement with Quiros for 20% of Jay Peak, Inc.

          Jay Peak, Inc. has been Stenger’s pet project for years.

          He had every incentive to increase the market value of Jay Peak, Inc., even by illegally misappropriating EB-5 funds for:

          – Improvements at Jay Peak not related to Phase I and II projects and

          – Filling Phase I and II budget holes with EB-5 funds meant for financing later projects in the NEK.

          It would enhance the market value of Jay Peak, Inc., and increase his net worth.

          Steiger now claims he did nothing wrong.

          I bet there are hundreds of very unhappy Asian multi-millionaires, who are not going away.

  • Henault Judith

    And still, the residents and taxpayers of Newport are being asked to trust a developer who plays fast and loose with his investors while we watch are taxes go up and way of life decimated.

    How our elected (and appointed) officials have fallen for this boondoggle still baffles and angers me. Their mantra of “Expand the Grand List” isn’t enough to justify the costs inherent in that expansion; costs which were never fully
    investigated or considered and probably never will be.

  • walter moses

    Bill Olenick’s post is most interesting:
    Why is it necessary to sell one of our most precious possessions, US citizenship, to raise the necessary funds for Stenger’s little projects? The very fact that Shumlin was off to China and Maclean is now part of the grand scheme gives this deal a strange odor. We all know Shumlin’s attraction to the good deal in real-estate, ask his neighbor.

    • Pam Ladds

      A Green Card is not citizenship! A Green Card is legal residency, sometimes permanently, sometimes for a specific number of years (often only 2) and allows the holder to work legally. The specifics of the Green Card depend on the “deal” negotiated My understanding of the EB5 program is that the card issued here is “conditional” on whatever terms were negotiated – usually something connected to the number of jobs generated. It is certainly convenient but is not the only way for comfortably off foreigners/investors to reside in this country. And the EB5 program itself is now a job generator. Check out the following link – nothing like an opportunity !!!! http://eb5duediligence.com/?cct_info=1|19364|3162854880|31871784|3485873244|b|48066097404|tc||g|||&cct_ver=3&cct_bk=eb-5%20immigration%20lawyer&gclid=CMuP0t6g88ECFeJF7Aod9iAAfA

  • Ben LaJoie

    ” The state’s oversight of the Jay Peak EB-5 projects over the last six years has led to the creation of thousands of jobs throughout Vermont’s Northeast Kingdom.”

    Bill Stenger, really? Thousands of jobs? In light of recent developments regarding the shadiness of the EB-5 program in the NEK that you were instrumental in, I have a difficult time placing any faith in your numbers.