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September 6, 2013

Via e-mail: john. witherspoon@harrang.com
and First Class Mail

John T. Witherspoon, Esq.
Harrang Long Gary Rudnick P.C.
1001 SW Fifth Avenue, 16th Floor
Portland, OR 97204

Re: —_ Review of Restructuring Documents for the Confederated Tribes of Coos,
Lower Umpqua and Siuslaw Indians

Dear Attorney Witherspoon:

This letter responds to your July 16, 2013 request on behalf of the Confederated Tribes of
Coos, Lower Umpqua and Siuslaw Indians (“Tribes”) for the Office of the General Counsel
(“OGC”), National Indian Gaming Commission (“NIGC”), to review the documents listed
below. The Tribes ask for my opinion as to whether the submitted amended restructuring
documents are management contracts requiring the NIGC Chair’s approval pursuant to the
Indian Gaming Regulatory Act of 1988 (“IGRA”). The Tribes also ask for my opinion as to
whether the amended documents violate IGRA’s requirement that a tribe have sole proprietary
interest in its gaming operation.

In my review, I considered the following submissions (collectively, “the Restructuring
Documents”):

© Indenture Between Confederated Tribes of Coos, Lower Umpqua and Siustaw Indians and
Weils Fargo Bank, National Association, as Trustee, Dated as of October 27, 2006, As
amended by that certain First Supplemental Indenture dated as of April 15, 2010, and as
amended and restated pursuant to that certain Second Supplemental Indenture dated as of
August _, 2013, and marked at bottom left as “A/75503599.6” (“Amended Indenture”;
received by the NIGC on 8/30/2013);

¢ Second Supplemental Indenture, dated September __, 2013, and marked at bottom left as
“A/75412154.7” (received by the NIGC on 8/07/2013);

The Restructuring Documents contain terms similar to other agreements that OGC has
previously reviewed and analyzed. Some of these opinion letters may be found at
http://www.nige.gov/Reading_Room/Management_Review_Letters_Declination_Letters.aspx.

NATIONAL HEADQUARTERS 1447 L St. NW, Suite 9100, Washington, DC 20005 Tel; 202.632.7003 Fax 202.632.7066 Www.nicc.cov

REGIONAL OFFICES Portland, OR; Sacramento, CA; Phoenix, AZ; St. Paul, MN; Tulsa, OK


John T. Witherspoon, Esq.

Re: Review of Amended Restructuring Documents for the Tribes
September 6, 2013

Page 2 of 3

Applying the same analysis here, it is my opinion that, collectively, the Restructuring Documents
are not management contracts and do not require the approval of the NIGC Chair. It is also my
opinion that they do not violate IGRA’s sole proprictary interest requirement.

I will, however, take this opportunity to note that while OGC’s stance on the appointment
of a receiver as a default remedy has evolved to the present point where we will not issue
dectination letters for financing agreements that provide for receivership of gross gaming
revenue, the limiting language contained in the Amended Indenture allays our concerns. While
the Restructuring Documents expressly contemplate the appointment of a receiver, they limit the
authority granted to a receiver by prohibiting the exercise of management activities. Specificaily,
the Amended Indenture provides that “the rights of the receiver shall be limited to the extent set
forth in Section 15.15 hereof.” Amended Indenture, § 10.4. Section 15.15 tequires the receiver to
tirst distribute funds necessary to pay the operating expenses:

(viii) budgeting, allocating, or conditioning payments of the Tribe’s
operating expenses (it being understood that the collection and disbursement of
the Tribe’s revenues by a receiver shall not constitute Management Activities
under this clause (viii) se long as such receiver disburses to the Operating
Account, from funds received by the receiver and legally available therefor,
amounts necessary to fund the Operating Costs Set Aside Amount each month
and, if there has been a shortfall in the amount transferred to the Operating
Account in the previous month, the amount of such shortfall; ...);

Id. at § 15.15. The Restructuring Documents define the “Operating Costs Set Aside Amount” as:

the projected cash flow reasonably required for payment of Operating Costs ...
plus a reasonably determined operating cash flow reserve in an amount no greater
than of the projected Operating Costs past due or payable during such month
in the operating budget for the Gaming Operations, as approved by the Tribe ... .

Id. at § 1.1 (definition of “Operating Costs Set Aside Amount”). In short, the Restructuring
Docu:nents contemplate that even in the event of default and the appointment of a receiver, the
Tribes alone determine the moathly budget for their gaming operation that is then deposited into
the Operating Acconnt that the receiver is required to disburse each month. Thus, the
Restructuring Documents prohibit the receiver from exercising authority over operating
expenses. Although these documents permit the receivership of all collateral, which includes the
gross gaming revenue, this limitation gives the provision essentiully the same practical effect as
an allowance of receivership over net gaming revenues. It is therefore iny opinion that limited in
this manner, the receivership provision herein will not lead to a management activity.

It is ny understanding that the Restructuring Documents are represented to be in
substantially final form, and any further changes will not be material tv OGC’s analysis. This
opinion shall not apply if the Restructuring Documents: (i) change in any material way prior to


John T. Witherspoon, Esq.

Re: Review of Amended Restructuring Documents for the Tribes
September 6, 2013

Page 3 of 3

closing; (ii) are not executed; or (iii) are inconsistent with assumptions made herein. Further, this
opinion is limited to the aforementioned Restructuring Documents and does not include or
extend to any other agreements not submitted for review.

I anticipate that this letter will be posted on the NIGC’s website. Prior to posting, the
NIGC FOIA Officer will notify you and provide you with an opportunity to identify and request
that information subject to the exemptions under the Freedom of Information Act (“FOIA”) be
redacted or withheld. A list of the FOIA exemptions may be found at 5 U.S.C. 552(b).

Lam also sending a copy of the submitted Restructuring Documents to the Office of
Indian Gaming, Department of the Interior, for review under 25 U.S.C. 81. If you have any
questions, please contact Armando Acosta, OGC Staff Attorney, at (202) 632-7003.

Sincerely,

Cea

Eric Shepard
Acting General Counsel

ce: Bob Garcia, Chairman of the Confederated Tribes of Coos, Lower Umpqua and Siuslaw
Indians
(via e-mail: bgarcia@ctclust.org)

Townsend Hyatt, Orrick, Herrington & Sutcliffe LLP
{via e-mail: thyatt@orrick.com)

Christopher Lawrence, Bingham McCutchen LLP
(via e-mail: chris.lawrence@bingham.com)