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September 30, 2019
By U.S. Mail and Email

Townsend Hyatt

Orrick, Herrington & Sutcliffe
1120 NW Couch St.

Suite 200

Portland, OR 97209-4163

Re: Review of Loan Documents for the Viejas Band of Kumeyaay Indians
Dear Mr. Hyatt:

This letter responds to your September 3, 2019 request for the National Indian
Gaming Commission’s Office of General Counsel to review a collection of financing
documents between the Viejas Band of Kumeyaay Indians (Tribe) and U.S. Bank, NA.
Specifically, you have asked for my opinion whether the documents are a management
contract requiring the NIGC Chair’s approval under the Indian Gaming Regulatory Act.
You also asked for my opinion whether the documents violate IGRA’s requirement that
the Tribe have the sole proprietary interest in its gaming activity.

As part of this review, I analyzed the following documents (collectively, the Loan
Documents):

e Credit Agreement (NIGC Submission Draft 09-24-19, Doc. No. 4819-4996-
9312\10)

e Exhibits to Credit Agreement (NIGC Submission Draft 09-03-19, Doc. No. 4821-
6807-3 120\8)

© Security Agreement (NIGC Submission Draft 09-03-19, Doc. No. 4827-2172-
1248\4)

© Deposit Account Control Agreement (Draft 09-11-19, Doc No. 7011 7203_v3)

The Loan Documents you have submitted contain terms similar to other
agreements the Office of General Counsel has already reviewed and analyzed. Copies of
declination letters can be found on the NIGC’s website. Applying the same analysis here,
it is my opinion that the Loan Documents are not a management contract and do not
require the approval of the NIGC Chair. It is also my opinion that they do not violate
IGRA’s sole proprietary interest requirement.

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Letter to Townsend Hyatt

September 30, 2019

Re: Review of Loan Documents for Viejas Band of Kumeyaay Indians
Page 2 of 2

It is my understanding that the drafts are represented to be in substantially final
form, and if the Loan Documents 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. This opinion does not include or extend to any
other agreements 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. See 25 C.F.R. § 517.7(c). 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), 5 U.S.C.
§ 552(b)(4), please be advised that any withholding should be analyzed under the
standard set forth in Food Marketing Institute v. Argus Leader Media, No. 18-481, 2019
WL 2570624, at *7 (U.S., June 24, 2019). Any claim of confidentiality should also be
supported with “a statement or certification by an officer or authorized representative of
the submitter.” See 25 C.F.R. § 517.7(d). 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. Id.

If you have any questions, please contact NIGC Senior Attorney Jennifer Lawson

at (202) 632-7003.
Sincerely, |

Michael Hoenig
General Counsel

ce: Tuari Bigknife, General Counsel of the Viejas Band of Kumeyaay Indians
Michael Pignato, Dorsey & Whitney (pignato.michael@dorsey.com)