REGIONAL CENTER SPONSORSHIP AGREEMENT

Transcription

1 REGIONAL CENTER SPONSORSHIP AGREEMENT This Regional Center Sponsorship Agreement (this Agreement ) is entered into on, 2013 (the Effective Date ) by and between Access the USA, LLC, a Washington limited liability company ( AUSA ), and Pacific Hospitality Management, LLC, a Washington limited liability company ( Company, and together with AUSA, the Parties ), with reference to and in reliance upon the following facts: Recitals A. AUSA operates the Washington Regional Center (the Regional Center ), which is approved by and in good standing with the United States Citizenship and Immigration Services ( USCIS ) as a Regional Center within the meaning of the EB-5 Immigrant Investor Program under the Immigration Act of 1990, as amended (the Program ), and 610 of Pub. L , as amended, to sponsor qualifying investments in such capacity in designated geographic areas and industries, as such areas and industries may be modified from time to time. B. Company contemplates the development, construction, and operation of a Hyatt Place hotel (the Hotel ), to be built in the city of SeaTac, Washington (the Proposed Project ) by an entity designated to use funds derived from the Program (the Project Company ). The Hotel is to be operated under the Hyatt Place hospitality brand by InterMountain Management, LLC, a third-party hotel management company affiliated with Hyatt. C. Company desires to use an appropriate single purpose entity (the Funding Vehicle ) to raise up to twelve million dollars ($12,000,000) (the Proposed Offering ) for the Proposed Project from immigrant investors through the Program, and, through appropriate entities and arrangements, apply the proceeds of the Proposed Offering in the Proposed Project, which is intended to be a qualifying project under the Program. D. Subject to the terms and conditions of this Agreement, Company wishes to engage AUSA, and AUSA desires to be so engaged, to sponsor the Proposed Project as a qualifying project under the Program for this purpose. NOW, THEREFORE, in reliance upon the foregoing facts, and in consideration of other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: 1. Engagement; Sponsorship. AGREEMENT 1.1 Appointment. On the terms and subject to the conditions set forth herein, Company hereby engages AUSA to sponsor the Proposed Project as a qualifying investment under the Program, and AUSA hereby accepts such engagement. This appointment is subject to Company providing sufficient information about the Proposed Project for AUSA to verify that Proposed Project satisfies its underwriting criteria. Such approval will be based on Company s sole and absolute discretion about the -1-

2 adequacy of information provided by Company to AUSA, and subject to AUSA s sole and absolute discretion about the adequacy of the Proposed Project s underwriting profile. 1.2 Sponsorship. AUSA as a Regional Center agrees to sponsor the Proposed Project by allowing Company and the investors in the Proposed Project to represent to USCIS that they are associated with a Regional Center for purposes of claiming credit for indirect job creation arising from the Proposed Project in the investors' petitions to USCIS seeking permanent residence in the United States of America based on their investment in the Proposed Project. AUSA agrees that Company may disclose such sponsorship for purposes of offering the investment opportunity in the Proposed Project through the Program, including marketing and fundraising activities in connection with raising EB-5 investor equity. 1.3 Subcontractors. AUSA and Company may hire or engage one or more subcontractors (including its affiliates) to perform all or any of AUSA s or Company s obligations under this Agreement; provided, however, AUSA and Company shall in all cases remain primarily responsible for all obligations undertaken by each such subcontractor on its behalf pursuant to the terms of this Agreement with respect to the scope, quality and nature of the services provided to each other. 1.4 Duties. Subject to the terms and conditions of this Agreement, the Parties shall perform services as follows: (a) AUSA shall provide Company with the following services: 1. Make submissions to USCIS, including Form I-924A, as AUSA reasonably deems appropriate, using documents supplied by Company and subject to AUSA s approval; 2. Provide to Company, for use in marketing the Proposed Offering to investors and for use by investors in filing I-526 petitions with USCIS, a letter to Company recognizing the affiliation of AUSA with the Proposed Project for purposes of investors counting indirect jobs in meeting the requirements for permanent residence, if Company requests such a letter; 3. Use commercially reasonable efforts to provide all services required by law and the rules and regulations of USCIS of regional centers under the Program, including reporting to USCIS as necessary the following information: a. The principal authorized official responsible for the normal operation, management and administration of the Proposed Project; b. The Regional Center s role in the ongoing monitoring, evaluation, oversight, and follow-up on the investors investments into the Funding Vehicle, including due diligence screenings of investors lawful sources of capital; c. The name, date of birth, petition receipt number, and alien registration number (if one was assigned by USCIS) of each investor who has filed an I-526 petition with USCIS, whether such petition was approved, denied, or -2-

3 withdrawn by the petitioner, and the date or dates of the filing, adjudication, or withdrawal of such petition; d. The total number of visas being sought by each investor, including those of such investor s spouse, children, or other dependents who are also seeking visas based upon such investor s investment into the Proposed Project; e. The country of nationality of each investor who has filed an I-526 petition with USCIS; f. The United States city and state of residence or intended residence of each investor who has made an investment and filed an I-526 petition with USCIS; g. Each investor s date and amount of investment into the Funding Vehicle, and the date or dates, nature, and amount or amounts of any payment, remuneration, profit, or return on investment made to such investor by the Funding Vehicle; h. The amounts of Program-related investment and non-program-related, domestic investment into each of the target industry categories of business activity within the geographic boundaries of the Regional Center; and i. All other information or reports required by USCIS for the maintenance of a Regional Center s approval. 4. Respond to any USCIS Request for Evidence ( RFE ) in connection with the Proposed Project within the timeframe allotted by USCIS for responses to those RFEs; and 5. Provide such information as may be reasonably requested by Company for compliance with securities disclosure laws or to sponsor the Proposed Project as a qualifying project under the Program and the Regional Center. (b) Company shall be responsible for the following: 1. Provide to AUSA and to USCIS all services necessary to enable AUSA to perform all actions required by law and the rules and regulations of USCIS applicable to regional centers under the Program and related to the Proposed Project, including preparation of all documentation, review of investor petitions including source of funds, tracking and reporting of all expenditures and job creation, and any other documentation required; 2. Obtain all investment necessary for the Proposed Project, pursuant to a marketing plan mutually agreed upon by Company and AUSA; 3. Commission and pay for an economic study to determine whether the Proposed Project is located within a targeted employment area, as that term is defined in the regulations governing the Program (a TEA ), and to determine how many jobs are likely to be created by the Proposed Project; -3-

4 2. Financial Terms. 4. If the Proposed Project is located within a TEA, obtain as necessary a letter from the appropriate Washington state government official certifying the same; and 5. Perform all other duties related to the Proposed Project and all duties under this Agreement not specifically assigned AUSA hereunder. Company shall pay, or cause to be paid, to AUSA from an alternate source satisfactory to AUSA in its reasonable discretion, the following: 2.1 Annual Administrative Fee. An annual payment equal to the full amount of distributions received by Company from the Funding Vehicle, pursuant to the Limited Partnership Agreement of the Funding Vehicle, for each year during which sponsorship by AUSA hereunder of the Proposed Project shall continue. Each payment will be paid by Company within thirty (30) days after the end of each year during which Company has received such distributions from the Funding Vehicle. The Annual Administrative Fee shall compensate AUSA for its sponsorship services performed for the Proposed Project, and shall reimburse AUSA for any actual costs, including legal fees, incurred by AUSA to review offering documents and marketing materials or other documentation prepared by Company for submission to USCIS or any other government authority, or incurred by AUSA to perform services required by law and the rules and regulations of USCIS applying to regional centers under the Program, and related to the Project and its investors. 2.2 Actual Costs. Any actual costs, including legal fees, incurred by LVEIC to review offering documents and marketing materials or other documentation prepared by Company for submission to USCIS or any other government authority, or incurred by LVEIC to perform services required by law and the rules and regulations of USCIS application regional centers under the Program, and related to the Project and its investors. 2.3 Taxes. All fees set forth in this Agreement are expressed exclusive of taxes. Each Party will be responsible for its respective tax obligations in connection with all payments due under this Agreement. Each Party will comply with any mandatory tax withholding required by applicable laws or regulations. If either Party is required to withhold any taxes from the amounts otherwise due to the other Party, such Party will promptly notify the other Party in writing of the fact and amount of such withholding and furnish to the other Party a copy of all receipts and other documents relating to such withholding. Such Party will provide all reasonable cooperation and assistance to the other Party to reduce or eliminate the amount of such withholdings and apply for any refunds or credits available under applicable laws or regulations. 3. Representations and Warranties Each Party represents to the other party the following: 3.1 Recitals. The recitals set forth above are true and correct and are incorporated herein by reference. -4-

5 3.2 Authority. It has the full power and authority to execute and deliver this Agreement and all other agreements, documents, and instruments to be executed and delivered hereunder and to perform its respective obligations hereunder and thereunder. This Agreement and its performance and consummation of the duties and obligations contemplated herein and therein are and have been approved and authorized by all requisite action, and no other proceedings on its part of any Party are necessary therefor. 3.3 No Conflicts. Its execution, delivery, and performance of this Agreement will not (i) violate any law to which any it may be subject, (ii) conflict with or result in a breach of any provision of its organizational documents, (iii) require any consent, approval or authorization of, or notice to, or declaration, filing or registration with, any governmental authority, (iv) violate any order of any governmental authority to which it may be subject, (v) contravene, conflict with, or result in a violation of any of the terms or requirements of, or give any governmental authority the right to revoke, withdraw, suspend, cancel, terminate, or modify, any of its licenses. 4. Covenants. 4.1 Periodic Information. As long as Company continues to intend to use or uses sponsorship by AUSA for its Proposed Project, or in the event that Company has caused any I-526 immigrant petition to be filed by an investor in the Proposed Project, Company shall cooperate in good faith with AUSA and provide all documentation to AUSA in accordance with Sections 1.4 and 1.5 above so that AUSA may (i) satisfy its reporting and other regulatory requirements in order to maintain the AUSA as an approved regional center, (ii) provide reasonably required information relating to EB-5 investor I-526 and I-829 petitions, (iii) provide information required by the Form I-924A annual reporting documentation, and (iv) any other information requested or required by USCIS from time to time. In so cooperating, Company shall provide, or cause to be provided, to AUSA the following information during the following periods: (a) Prior to conducting the Proposed Offering or using any new piece of offering or marketing information in connection with the Proposed Offering, a copy of the final forms of each of the following, if any (collectively, the Offering Documents ): i. Executive Summary; ii. Private Placement Memorandum or Offering Circular; iii. Operating Agreements/Limited Partnership Agreements; iv. Subscription Agreements; v. Project-specific Business Plan (which shall be prepared in accordance with the Matter of Ho guidelines); vi. Economic Report; vii. Escrow Agreement(s), if applicable; viii. Any investment agreement between the Funding Vehicle and the target commercial enterprise receiving the EB-5 capital (the Project Company); -5-

6 ix. Any advertisement, presentation or other written material to be shown to prospective investors or agents about the Proposed Project or Proposed Offering; x. Any agreements with marketing agents for the Proposed Offering; xi. A Marketing Plan describing the steps to be taken in using the above documents to identify and subscribe investors; and xii. Such other offering or marketing materials generated by the Company (also referred to herein as Marketing Materials ), if any, that may be used from time to time. (b) (c) Prior to the filing of any I-526 petition or I-829 petition, any further documents about the Proposed Offering, the Proposed Project, or related matters not previously approved by AUSA; Within 30 days of the end of each federal government fiscal year, sufficient information for AUSA to provide the information required by Form I-924A, plus the following about each investor in the Proposed Project: 1. Name and U.S. residence address; 2. Amount of investment; 3. Date of investment into the Funding Vehicle and the date such investment was disbursed to the Proposed Project and amount of investment. (d) (e) (f) (g) (h) Within 30 days after the filing of the first I-526, notice of that fact. Within 30 days after the release of capital to the Funding Vehicle for an investor using AUSA s sponsorship, or on a quarterly basis, the names of each such investor and the date of release of such investor's capital to the Funding Vehicle. At all times during which the Regional Center must report to USCIS on behalf of the Proposed Project or another project of Company, reasonable access to the offices of Company, the Funding Vehicle, and the Project Company during normal business hours after reasonable prior notice for purposes of obtaining or confirming the information described in Sections 5.1(a)-(e) above. Within 10 days after Company makes arrangements to use the sponsorship of any other regional center for investors in the Proposed Project, notice of that fact. Any other information required by USCIS in the Form I-924A used for annual regional center reporting or otherwise required by USCIS. 4.2 Other information. As long as (a) Company continues to intend to use or uses sponsorship by AUSA for its Proposed Project, or (b) in the event that Company has caused any I-526 immigrant petition to be filed by an investor in the Proposed Project, then Company shall promptly -6-

7 provide, or shall cause such information to be promptly provided, to AUSA such information beyond that identified in Section 5.1, above, as AUSA may reasonably request in furtherance of carrying out AUSA s obligations under this Agreement, fulfilling its responsibilities as a regional center, and to otherwise exercise diligence and monitor the Proposed Offering and the Proposed Project. This information may include, but is not limited to (i) plans for budget, timelines, milestones, and critical steps to actively engage in the Proposed Offer or to monitor the Proposed Project, (ii) a breakdown of aggregate amounts of capital invested into the Proposed Project into EB-5 and non-eb-5 capital, if applicable, and (iii) any information required by USCIS for an I-924A filing. Company, for itself, the Funding Vehicle, the Project Company, and such other applicable parties, represents and warrants and covenants that (i) all information concerning the Company, the Funding Vehicle, the Project Company, and such other applicable parties and the Proposed Project that has been, or is hereafter, provided to AUSA shall be complete and correct in all material respects and does not contain any untrue statement of material fact or omit to state a material fact necessary in order to make the statements contained therein not misleading in light of the circumstances under which such statements have been made and (ii) to the extent that any such information contains projections, such projections were prepared in good faith on the basis of (a) assumptions, methods, and tests that are believed to be reasonable at the time such projections were prepared and (b) information believed to have been accurate based upon the information available at the time such projections were prepared. The Company shall, and shall cause the Funding Vehicle, the Project Company, and such other applicable parties to, promptly advise AUSA in writing if any information previously provided has become inaccurate in any material respect or is required to be updated. 4.3 Records. Company shall maintain, and shall cause the Funding Vehicle, the Project Company, and such other applicable parties to maintain, (i) all records relating to the information to be provided pursuant to this Agreement, and (ii) all records, data, and information that Company, the Funding Vehicle, the Project Company, or other applicable parties should know to keep and maintain, including, without limitation, records of all investment activities as required on USCIS Form I-924A supplement, source of funds, use of funds, I-526 petition filings, I-829 petition filings, and related filings (such as responses to requests for evidence, notices of intent to deny, appeals, etc.). 4.4 Compliance. Company shall, and shall cause the Funding Vehicle, the Project Company, and such other applicable parties to, comply with all laws, rules, and regulations applicable to the Proposed Offering, the Proposed Project, and such other activities that may be conducted by Company, the Funding Vehicle, the Project Company, or such other applicable parties. The Proposed Offering shall be conducted only in compliance with applicable securities, investment company, investment adviser, and other laws, and only if it is exempt from registration, whether pursuant to Regulation D, Regulation S, or both. Company shall, and shall cause the Funding Vehicle, the Project Company, and such other applicable parties to, comply with all USCIS rules and regulations and other laws relating to confirming the legal source of funds invested by investors in the Funding Vehicle or the Proposed Project and to cause its escrow companies to comply with 31 U.S.C (i), Due Diligence for United States Private Banking and Correspondent Bank Accounts Involving Foreign Persons. 4.5 Consent. Company shall not, and shall cause the Funding Vehicle and such other applicable parties not to: -7-

8 (a) conduct the Proposed Offering unless and until AUSA has reasonably approved the documents to be used in connection with the Proposed Offering; (b) utilize any marketing document that is not previously approved by AUSA, which approval AUSA shall withhold only in the exercise of its reasonable discretion; (c) submit any I-526 petition until the documents provided to each investor relating to the Proposed Project for filing with such I-526 have been approved by AUSA. AUSA shall provide approval or consent, or compelling justification for reasonable refusal of consent (including the specific bases for reasonable refusal as well as proposed acceptable changes) within five (5) business days of any submission by Company or related party pursuant to this section, and the failure to provide either within five (5) business days shall be deemed consent or approval. 4.6 Cooperation. Company shall, and shall cause the Funding Vehicle, the Project Company, and such other applicable parties to, authorize attorneys assisting with any I-526 petitions to cooperate with AUSA to the extent reasonably necessary to enable AUSA to satisfy its obligations to USCIS as an approved regional center. 4.7 Regional Center Maintenance. AUSA agrees that it shall, at its sole cost and expense, undertake appropriate management and administration of the Regional Center in accordance with all applicable laws, rules, and regulations, including maintaining applicable approvals, certifications, and designations from USCIS. During the term of this Agreement, AUSA agrees that it will provide Company with all relevant correspondence received from USCIS regarding administration of the Regional Center. 5. Term and Termination. 5.1 Term. The Term of this Agreement commences on the Effective Date and continues for ( ) months or until the first to occur of the following, whichever is earlier: (a) Failure of USCIS to approve an exemplar I-526 petition related to the Proposed Project, if Company prepares a request for such approval; (b) The approval or denial or withdrawal of all I-829 petitions submitted with respect to the Proposed Offering and the Proposed Project; or (c) Mutual written agreement to terminate. 5.2 Termination for Insolvency or Breach. Either Party may terminate this Agreement immediately upon written notice to the other Party if: (a) the other Party or its ultimate parent corporation or holding company becomes insolvent or repeatedly fails to pay any outstanding debts as they become due, makes an assignment for the benefit of creditors, files a voluntary or involuntary petition in bankruptcy or for reorganization or is adjudicated as bankrupt or insolvent, or has a liquidator or trustee appointed over its affairs, and, in the -8-

9 case of a petition or judgment obtained or filed by a third party, such petition or judgment is not dismissed within, or such appointment continues for more than, thirty (30) days; or (b) the other Party defaults materially in performing any of its obligations in this Agreement; provided, however, if such default is curable, such default continues for a period of thirty (30) days after written notice of such default has been given. 5.3 Effect of Termination. If any investor in the Proposed Project files an I-526 in reliance on the sponsorship by of AUSA during the term of this Agreement, then the parties will fulfill all of their responsibilities under this Agreement relating to support of that investor's I-526 and I-829 petitions, USCIS monitoring, payments to AUSA, and related functions regardless of the termination. 6. Confidentiality and Non-Circumvention. 6.1 Confidentiality. Except solely to disclose that AUSA is sponsoring the Proposed Project, to a Party s own professional advisors, to enforce the rights of a Party against a breaching Party, or as required by law, the terms and conditions of this Agreement are confidential information of the Parties, and may not be disclosed without each Party s express prior written consent. In the event disclosure is required of either Party under any applicable laws, rules, or regulations, such Party will cooperate with the other Party to limit the disclosure to the minimum that is required to be disclosed, including redacting specific financial and payment information contained herein. Subject to the foregoing sentences, AUSA shall treat as confidential and shall not disclose to third parties or use any information or documents not otherwise made publicly available through proper and lawful disclosure relating to the Project or the Proposed Offering other than in connection with AUSA's service as the regional center affiliated with the Proposed Offering and Project. 6.2 Non-Circumvention. AUSA agrees not to solicit for its own projects investors in the Proposed Offering identified to AUSA by Company under this Agreement without the express permission of Company. 7. Acknowledgements 7.1. No Guaranty. Company and AUSA acknowledge that this Agreement does not guarantee or predict a specific outcome of the Proposed Offering or the Proposed Project, including, but not limited to, any assurance that investors will subscribe to the Proposed Offering, that the Proposed Project will meet USCIS guidelines, or that any investors will be successful in their immigration petitions. 7.2 Other Activities. Nothing in this Agreement obligates either Party to enter into additional or further business relationships with the other Party. Except as set forth herein, nothing contained in this Agreement shall be deemed to preclude AUSA or its affiliates from engaging in similar activities or transactions, whether the same are competitive with the Company, the Proposed Offering, the Proposed Project, or otherwise, without having or incurring any obligation to offer any interest in such activities to the Company, the Funding Vehicle, the Project Company, or other applicable parties. 8. Indemnification; Limitation of Liability. -9-

10 8.1 By Company. Company will indemnify, defend, and hold AUSA and its affiliates (and the respective employees, contractors, advisors, directors, agents, and representatives of each) (together with AUSA, each a AUSA Indemnified Party ) harmless from and against any and all losses, claims, damages, liabilities, and reasonable out-of-pocket expenses to which such AUSA Indemnified Party may become subject, insofar as such losses, claims, damages, liabilities (or actions or other proceedings commenced or threatened in respect thereof), and reasonable out-of-pocket expenses arise out of or in any way relate to or result from (i) any breach or alleged breach by Company any of its representations, warranties, covenants, or obligations in this Agreement, except to the extent caused by the negligence or willful misconduct of AUSA, or its employees, contractors, advisors, directors, agents, and representatives, (ii) the Proposed Offering, or (iii) the Proposed Project. 8.2 By AUSA. AUSA will indemnify, defend, and hold Company and its affiliates (and the respective employees, contractors, advisors, directors, agents, and representatives of each) (together with Company, each a Company Indemnified Party ) harmless from and against any and all losses, claims, damages, liabilities, and reasonable out-of-pocket expenses to which such Company Indemnified Party may become subject, insofar as such losses, claims, damages, liabilities (or actions or other proceedings commenced or threatened in respect thereof), and reasonable out-of-pocket expenses arise out of or in any way relate to or result from any breach or alleged breach by AUSA any of its representations, warranties, covenants, or obligations in this Agreement, except to the extent caused by the negligence or willful misconduct of Company, the Funding Vehicle, the Project Company, or such other applicable parties. 8.3 Force Majeure. Neither Party shall be under any liability for failure to fulfill any obligation under this Agreement, so long as and to the extent to which the fulfillment of such obligation is prevented, frustrated, hindered, or delayed as a consequence of any circumstance beyond the control of such Party, which by its nature could not have been foreseen by such Party, or, if it could have been foreseen, was unavoidable and includes, without limitation, acts of God, storms, floods, riots, fires, sabotage, civil commotion or civil unrest, strikes, walkouts, interference by civil or military authorities, acts of war (declared or undeclared), and governmental restrictions. 9. Miscellaneous 9.1 Notices. Any notice or other communication required or which may be given hereunder will be in writing and will be delivered personally, via facsimile or , or sent by certified, registered, or express or overnight (by a reputable carrier) mail, postage prepaid, as follows (as such information may be subsequently changed by notice duly given): To AUSA: Access the USA, LLC 665 Woodland Square Loop SE, Ste. 100 Lacey, WA Attn: Mike Mattox Facsimile: (206) mike@accesstheusa.com -10-

11 With a copy to (which shall not constitute notice): To Company: Homeier & Law, P.C Riverside Drive, Ste. 120 Sherman Oaks, CA Attn: Michael G. Homeier, Esq. Facsimile: (818) michael@homeierlaw.com Pacific Hospitality Management, LLC 665 Woodland Square Loop SE, Ste. 100 Lacey, WA Attn: Mike Mattox Facsimile: (206) mike@accesstheusa.com Notice by any other means will be deemed made when actually received by the Party to which notice is provided. 9.2 Assignment; Sub-licensing. Except as otherwise specifically provided for in this Agreement, neither Party may assign, voluntarily, by operation of law, or otherwise, any rights or delegate any duties under this Agreement without the other Party s prior written consent, and any attempt to do so without that consent will be null and void and of no force or effect. Notwithstanding the foregoing, however, Company may grant sub-licenses to affiliated entities involved in the Project, as may be reasonably necessary in connection with offering the investment opportunity in the Proposed Offering through the Program, or otherwise to facilitate the acquisition of land and the development, construction, and operation of the Proposed Project, however such sub-licensees may not include any party who maintains an interest in another USCIS-approved EB-5 regional center. This Agreement will bind and inure to the benefit of the Parties and their respective successors and permitted assigns. 9.3 Governing Law. This Agreement will be governed by and construed using Washington law, without giving effect to Washington conflict of law provisions or to constructive presumptions favoring either Party. For any dispute arising out of or relating to this Agreement, the Parties hereby irrevocably consent to venue and the exclusive jurisdiction of the state and federal courts located in King County, Washington. 9.4 Specific Performance. Each Party acknowledges and agrees that the other Party would be damaged irreparably if any provision of this Agreement is not performed in accordance with its specific terms or is otherwise breached. Accordingly, each Party agrees that the other Parties will be entitled to an injunction or injunctions, in addition to any other remedy to which they may be entitled, at law or in equity, to prevent breaches of the provisions of this Agreement and to specifically enforce specifically this Agreement and its terms and provisions. -11-

12 9.5 Relationship of the Parties. This Agreement shall not be construed as creating or constituting an employee-employer relationship, a partnership, a joint venture, or a franchise between AUSA and Company, the Funding Vehicle, the Project Company, or other applicable parties. Neither AUSA nor Company may bind the other in contracts with third parties or make promises or representations on behalf of the other Party. Except for Section 8, this Agreement is made for the benefit of Parties hereto, and this Agreement is not for the benefit of any third parties. 9.6 No General Waiver. Waiver of any one default will not waive subsequent defaults of the same or different kind, and no failure or delay of either Party to exercise or enforce any of its rights under this Agreement will act as a waiver of those rights. 9.7 Entire Agreement; Amendments; Severability. This Agreement is the complete and exclusive agreement between the Parties with respect to the subject matter contemplated by this Agreement, superseding and replacing any and all prior or contemporaneous agreements, communications, and understandings, both oral and written, regarding that subject matter. This Agreement may be amended only by a written agreement signed by authorized representatives of both Parties. If any provision or part of a provision in this Agreement is held to be illegal, invalid, or unenforceable by a court or other decision making authority of competent jurisdiction, then the remainder of the provision will be enforced so as to effect the intention of the Parties, and the validity and enforceability of all other provisions in this Agreement will not be affected or impaired. 9.8 Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, and all of which together will constitute one and the same instrument. Execution and delivery of this Agreement may be evidenced by facsimile transmission or electronic mail to the extent the receiving party confirms receipt. 9.9 Interpretation of this Agreement and these Terms. The Parties desire that this Agreement be construed fairly, according to its terms, in plain English, without constructive presumptions against the drafting party, and without reference to the section headings, which are for reference only. Whenever the terms use include or including, it should be understood as illustrative and not exhaustive. The use of the word or in a list shall mean and/or. The term applicable parties, when used in reference to the Company, the Funding Vehicle, the Project Company, or the Proposed Project, means the parties other than AUSA that are affiliates of, or involved with, directly or indirectly, the Company, the Funding Vehicle, the Project Company, or the Proposed Project. [ Balance of page intentionally left blank. ] -12-

13 9.10 Further Assurances. Except as otherwise indicated in this Agreement, each Party agrees, at its own expense, to take any further action and to execute any further documents or instruments as the other Party may reasonably request to give effect to the transactions contemplated by, and to the terms of, this Agreement. IN WITNESS WHEREOF, the Parties have caused this Regional Center Sponsorship Agreement to be executed by their duly authorized representatives on the date first set forth above. AUSA : ACCESS THE USA, LLC A Washington Limited Liability Company COMPANY : PACIFIC HOSPITALITY MANAGEMENT, LLC A Washington Limited Liability Company By: Name: Title: By: Name: Title: -13-