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February 24, 2017
VIA FIRST CLASS MAIL

John Warren, Chairman

Pokagon Band of Potawatomi Indians
P.O. Box 180

58620 Sink Road

Dowagiac, MI 49047

Re: Review of loan documents for the Pokagon Band of Potawatomie Indians
Dear Chairman Warren:

This letter responds to your request of January 13, 2017, on behalf of the Pokagon Band
of Potawatomic Indians for the National Indian Gaming Commission’s Office of the General
Counsel to review certain loan documents. Specifically, you have asked for my opinion whether
the agreements submitted constitute a management contract requiring the NIGC Chair’s approval
under the Indian Gaming Regulatory Act. The request also askes fo my opinon as to whether 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 submissions (collectively, “the Loan
Documents”):

Credit Agreement, SMRH Draft 02/07/2017, SMRH:225950668. 12;

Exhibits to the Credit Agreement;

Security Agreement, SMRH Draft 01/12/ 17, SMRH:226022954.4;

Patent, Trademark and Copyright Security Agreement, SMRH Draft 1/12/ 17,
SMRH:226023058.4;

e Securities Account Control Agreement, SMRH Draft 1/30/17, SMRH:226023061.4;

¢ Deposit Account Control Agreement, SMRH 1/1 1/17, SMRH:226023056.2;

e Amendment No. 2 to Deposit Account Control Agreement, SMRH Draft 2/7/17, DA; and

e Fee Letter from Bank of America and Merrill Lynch, Pierce, Fenner & Smith, Inc.to
Pokagon Gaming Authority, dated November 15, 2016, SMRH:225828031.5, OBNI-
168123.

cece @

NEW MAILING ADDRESS: NIGC/DEPARTMENT OF THE INTERIOR 1849 C Street NW, Mail Stop # 1621 Washington, DC 20240 Tel: 202.632.7003 Fax: 202.632.7066

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WWW.NIGC.GOV


Chair Warren

Re: Review of loan documents for the Pokagon Band of Potawatomie Indians
February 24, 2017

Page 2 of 2

The Loan Documents contain terms similar to other agreements the Office of General
Counsel has already reviewed and analyzed. Some of these letters may be found on the NIGC
website. Applying the same analysis here, it is my opinion that collectively the Loan Documents
are not management contracts and do not require the approval of the Chairman. It is also my
opinion that they do not violate IGRA’s sole proprietary interest requirement.

It is my understanding that the Loan Documents are represented to be in substantially
final form with respect to terms affecting this opinion, and if such terms change in any material
way prior to closing or are inconsistent with assumptions made herein, this opinion shall not
apply. Further, this opinion is limited to the Loan Documents listed above. This opinion does
not include or extend to any other agreements or documents not submitted for review.

Please note that it is my intent that 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 and highlighting the information that you believe should
be withheld.' 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),’ please be advised that the information was voluntarily submitted and,
as such, that any withholding should be analyzed in accordance with the standard set forth in
Critical Mass Energy Project v. NRC} Any claim of confidentiality should also be supported
with “a statement or certification by an officer or authorized representative of the submitter.”*
Please submit any written objection to FOIASubmitterReply@nige.gov within thirty (30) days
of the date of this letter. After this time elapses, the letter will be made public and objections
will no longer be considered.° If 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 NIGC Staff Attorney Suzanne Nunn at (202)
632-7013.

Sincerely,

Miho then:

Michael Hoenig
General Counsel

ce: Michael Phelan, Esq. (via email: mike.phelan@pokagonband-nsn.gov)

*25 C.F.R. §517.7(c).

5 U.S.C. § 552(b)(4).

° 975 F.2d 871 (D.C. Cir, 1992).
£25 C.P.R. § 517.1(c).

* Id.