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February 19, 2021 

VIA EMAIL

Gina M. Jacobs, Esq. 

Jones Walker LLP

190 E Capitol Street, Suite 800 

Jackson, MS 39201 

Re: Review of the 2020 Loan Documents for the Eastern Band of Cherokee Indians 

Dear Ms. Jacobs:

This letter responds to your December 14, 2020 request, on behalf of the Eastern Band of 

Cherokee Indians, for the National Indian Gaming Commission, Office of the General Counsel, 

to review certain loan documents and to provide an opinion as to whether or not the submitted 

loan documents are management contracts requiring the NIGC Chairman's approval pursuant to 

the Indian Gaming Regulatory Act of 1988. You have also asked for my opinion as to whether or 

not the loan documents violate IGRA's requirement that a tribe have the sole proprietary interest 

in its gaming operation.

In my review, I considered the following unexecuted document (collectively, "the 2020 

Loan Documents"):

• Sixth Amended and Restated Loan Agreement among Tribal Casino Gaming

Enterprise, as the Borrower, the Lenders party hereto from time to time and Wells

Fargo Bank, National Association, as Administrative Agent, L/C Issuer and Swing

Line Lender; Wells Fargo Securities, LLC [___] and [___], as Joint Lead Arrangers

and Joint Bookrunners [___], and [___], as Co-Syndication Agents marked in lower

left-hand corner with 4149-5495-5560-8, together with the following Exhibits:

• Exhibit A – Notice of Loan Borrowing marked in upper right hand corner with Orrick

Draft 12/14/2020 and in lower left-hand corner with 4129-9762-3336.2;

• Exhibit B – Notice of Conversion marked in upper right hand corner with Orrick

Draft 12/14/2020 and in lower left-hand corner with 4149-5495-5560-8;

• Exhibit C – Notice of Interest Period Selection marked in upper right hand corner

with Orrick Draft 12/14/2020 and in lower left-hand corner with 4149-5495-5560-8;

• Exhibit D – Reserved marked in upper right hand corner with Orrick Draft

12/14/2020 and in lower left-hand corner with 4149-5495-5560-8;
Letter to Gina M. Jacobs, Esq. 

Re: Review of the 2020 Loan Documents for the Eastern Band of CherokeeIndians

February 19, 2021 

Page 2 of 4 

• Exhibit E – Pricing Certificate marked in upper right hand corner with Orrick Draft

12/14/2020 and in lower left-hand corner with 4149-5495-5560-8;

• Exhibit F – Assignment of Construction Contract marked in upper right hand corner

with Orrick Draft 12/14/2020 and in lower left-hand corner with 4164-5826-0264.2;

• Exhibit G – Notice of Swing Line Borrowing marked in upper right hand corner with

Orrick Draft 12/14/2020 and in lower left-hand corner with 4149-5495-5560-8;

• Exhibit H – Revolving Loan Note marked in upper right hand corner with Orrick

Draft 12/14/2020 and in lower left-hand corner with 4149-5495-5560-8;

• Exhibit I – DD Term Loan Note marked in upper right hand corner with Orrick Draft

12/14/2020 and in lower left-hand corner with 4149-5495-5560-8;

• Exhibit J – Swing Line Note marked in upper right hand corner with Orrick Draft

12/14/2020 and in lower left-hand corner with 4149-5495-5560-8;

• Exhibit K – Assignment Agreement marked in upper right hand corner with Orrick

Draft 12/14/2020 and in lower left-hand corner with 4149-5495-5560-8;

• Exhibit L – Compliance Certificate marked in upper right hand corner with Orrick

Draft 12/14/2020 and in lower left-hand corner with 4149-5495-5560-8;

• Exhibit M - Subordinated Promissory Note marked in upper right hand corner with

Orrick Draft 12/14/2020 and in lower left-hand corner with 4135-3705-8600.2;

• Exhibit N – Request to Increase the Total Revolving Loan Commitment (Section

2.5(c)) marked in upper right hand corner with Orrick Draft 12/14/2020 and in lower

left-hand corner with 4149-5495-5560-8;

• Exhibit O – Form of Distribution Certificate marked in upper right hand corner with

Orrick Draft 12/14/2020 and in lower left-hand corner with 4149-5495-5560-8;

• Exhibit P-1 – Form of U.S. Tax Compliance Certificate (Owner) marked in upper

right hand corner with Orrick Draft 12/14/2020 and in lower left-hand corner with

4149-5495-5560-8;

• Exhibit P-2 – Form of U.S. Tax Compliance Certificate (Participant) marked in upper

right hand corner with Orrick Draft 12/14/2020 and in lower left-hand corner with

4149-5495-5560-8;

• Exhibit P-3 – Form of U.S. Tax Compliance Certificate (Participant) marked in upper

right hand corner with Orrick Draft 12/14/2020 and in lower left-hand corner with

4149-5495-5560-8;

• Exhibit P-4 – Form of U.S. Tax Compliance Certificate (Owner) marked in upper

right hand corner with Orrick Draft 12/14/2020 and in lower left-hand corner with

4149-5495-5560-8;

• Schedule 4.3, Insurance, Gaming Insurance Requirements, marked in lower left-hand

corner with 4140-5327-4920.2;
Letter to Gina M. Jacobs, Esq. 

Re: Review of the 2020 Loan Documents for the Eastern Band of Cherokee Indians

February 19, 2021 

Page 3 of 4 

• Undated Fourth Amended Restated Demand Deposit Account Control Agreement by

and among: Wells Fargo, TCGE and First-Citizens Bank & Trust Company marked

in upper right hand corner with Orrick Draft 12/14/2020 and in lower left-hand corner

with 4159-6516-7656.4;

• Undated Sixth Amended and Restated Tribal Agreement, between the Tribe and

Wells Fargo, as agent marked in upper right hand corner with Orrick Draft

12/14/2020 and in lower left-hand corner with 4156-8257-6424.4;

• Undated Third Amended and Restated Tribal Subordination Agreement between the

Eastern Band of Cherokee Indians and Wells Fargo Bank, marked in upper right hand

corner with Orrick Draft 12/14/2020 and in lower left-hand corner with 4157-6161-

2840.2];

• Undated Fourth Amended and Restated Security Agreement made by Tribal Casino

Gaming, an enterprise and instrumentality of the Eastern Band of Cherokee Indians in

favor of Wells Fargo Bank for itself and as the administrative agent, marked in upper

right hand corner with Orrick Draft 12/14/2020 and in lower left-hand corner with

4165-6495-3128.3; and

• Undated Third Amended and Restated Unjust Enrichment and Sovereign Immunity

Agreement made by the Eastern Band of Cherokee Indians and Tribal Casino Gaming

Enterprise (the “Enterprise”), an instrumentality and enterprise of the Tribe, in favor

of Wells Fargo Bank, National Association, for itself and as the agent on behalf of the

Benefits Providers (as defined below) (in such capacity, the “Agent”), marked in

upper right hand corner with Orrick Draft 12/14/2020 and in lower left-hand corner

with 4159.6654.3912.2.

The 2020 Loan Documents contain terms similar to other agreements that OGC has 

previously reviewed and analyzed. Some of these opinion letters may be found on the NIGC's 

website located at www.nigc.gov. In applying the same analysis here, it is my opinion that, 

collectively, the 2020 Loan Documents are not management contracts and do not require the 

approval of the NIGC Chairman. It is also my opinion that they do not violate IGRA's sole 

proprietary interest requirement. 

It is my understanding that the 2020 Loan Documents are represented to be in 

substantially final form, and any further changes will not be material to OGC's analysis. This 

opinion shall not apply if the 2020 Loan Documents change in any material way prior to closing 

or are inconsistent with the assumptions made herein. Further, this opinion is limited to the 

aforementioned 2020 Loan Documents and does not include or extend to any other agreements 

not submitted for review. 

Please note it is my intent this letter be released to the public through the NIGC’s 

website. If you have any objection to this disclosure, please provide a written statement 

explaining the grounds for the objection, highlighting the information you believe should be 
Letter to Gina M. Jacobs, Esq. 

Re: Review of the 2020 Loan Documents for the Eastern Band of Cherokee Indians 

February 19, 2021 

Page 4 of 4 

withheld.1

If you object on the grounds that the information qualifies as confidential commercial 

information subject to withholding under Exemption Four of the Freedom of Information Act 

(FOIA),2

please be advised that the information was voluntarily submitted and, as such, any 

withholding should be analyzed in accordance with the standard set forth in Food Marketing 

Institute v. Argus Leader Media.

3 Any claim of confidentiality should also be supported with “a 

statement or certification by an officer or authorized representative of the submitter.”4 Please 

submit any written objection to FOIASubmitterReply@nigc.gov within thirty (30) days of the

date of this letter. After this time elapses, this letter will be made public and objections will no

longer be considered.5If you need any additional guidance regarding potential grounds for 

withholding, please see the United States Department of Justice’s Guide to the Freedom of 

Information Act at http://www.justice.gov/oip/doj-guide-freedom-information-act-0. 

If you have any questions, please contact Maria Getoff, Senior Attorney, at (202) 632-

7003.

Sincerely,

Michael Hoenig

 General Counsel

1 25 C.F.R. § 517.7(c). 2 Freedom of Information Act, 5 U.S.C. § 552(b)(4) (1966). 

3 139 S.Ct. 2356 (2019).

4 25 C.F.R. § 517.7(c). 5 Id.