Scott Wheat, General Counsel
Re: Review of credit facility
March 10, 2017

Page 4 of 4

officer or authorized representative of the submitter.”* Please submit any written
objection to FOIASubmitterReply@nigc.gov within thirty (30) days of the date of this
Ietter. After this time elapses, the letter will be made public and objections will no
longer be considered. /d. 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 Attomey Esther Dittler at
(202) 420-9229.

Mecho? Poe

Michael Hoenig
General Counsel

4 25 CER. §517.7(c).


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March 10, 2017

Scott Wheat, General Counsel
Spokane Tribe of Indians
P.O. Box 100

Wellpinit, WA 99040

Re: _ Review of credit facility

Dear Mr. Wheat:

This letter responds to your requests of December 31, 2016, and February 13,
2017, on behalf of the Spokane Tribe of Indians for the National Indian Gaming
Commission’s Office of General Counsel to review a credit facility between the Tribe
and Citizens Bank, N.A., who will act as the administrative agent. Specifically, you have
asked for my opinion whether the agreements constitute a management contract requiring
the NIGC Chair’s approval under the Indian Gaming Regulatory Act and whether the
agreement violates 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
Agreements”), which were represented to be in substantially final form:

e Credit Agreement, marked at the bottom left corner as “US-DOCS\71260488.45”
with the following appendix and exhibits:

o Appendix A - Principal Offices, marked at the bottom left corner as “US-
DOCS\75992368.3”;

o Exhibit A - Form of Term B Note, marked at the bottom left corner as
“US-DOCS\75993927.3”;

o Exhibit B - Form of Funding Notice, marked at the bottom left corner as
“US-DOCS\ 76015764.3”;

o. Exhibit C-1 - Form of Guaranty, marked at the bottom left corner as “US-
DOCS\75994081.5”;

o Exhibit E - Form of Compliance Certificate, marked at the bottom left
corner as “US-DOCS\75994279.6”;

o Exhibit F - Form of Assignment and Acceptance, marked at the bottom
left corner as “US-DOCS\75993466.3”;

o Exhibit G - Form of Lender Addendum, marked at the bottom left corner
as “US-DOCS\75993240.3”;

NEW MAILING ADDRESS: NIGC/DEPARTMENT OF THE INTERIOR 1849 C Siraet NW, Mail Stop # 1621 Washington, DC 20240 Tel: 202.632.7003 Fax: 202.632,7066

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WWW.NIGC,GOV.


Scott Wheat, General Counsel
Re: Review of credit facility
March 10, 2017

Page 2 of 4

o Exhibit H - Form of Non-Bank Certificate, marked at the bottom left
comer as “US-DOCS\75993058.3”;

o Exhibit I - Form of Closing Certificate, marked at the bottom left corner
as “US-DOCS\76015612.7”;

o Exhibit J ~ Insurance Requirements, submitted March 9, 2017; and,

o Exhibit K - Form of Intercompany Subordinated Demand Promissory
Note, marked at the bottom left corner as “US-DOCS\75992555.4”.

e Disbursement Agreement, marked at the bottom left corner as “US-
DOCS\71472695.25” with the following exhibits:

o Exhibit A - Form of Disbursement Request, marked at the bottom left
corner as “US-DOCS\75996027.11”;

o Exhibit B - Form of Project Cost Schedule Certificate, marked at the
bottom left corner as “US-DOCS\75996027.11”;

o Exhibit C - Form of Project Budget Amendment Certificate, marked at the
bottom left corner as “US-DOCS\75996027.11”;

o Exhibit D-1 - Form of Opening Date Certificate, marked at the bottom left
corner as “US-DOCS\75996027.11”

o Exhibit D-2 - Form of Borrower’s Opening Completion Certificate,
marked at the bottom left corner as “UWS-DOCS\75996027.11”;

o Exhibit D-3 - Form of Borrower’s Final Completion Certificate, marked at
the bottom left corner as “US-DOCS\75996027.11”;

o Exhibit E - Form of Consent to Collateral Assignment, marked at the
bottom left corner as “US-DOCS\75996027.11”;

o Exhibit F - Form of Lien Releases, marked at the bottom left corner as
“US-DOCS\75996027.11”;

o Exhibit G - List of Key Construction and Design Contracts, marked at the
bottom left corner as “US-DOCS\75996027.11”;

o Exhibit H - Project Schedule, marked at the bottom left corner as “US-
DOCS\75996027.11";

o Exhibit J - Construction Contract Amendment Certificate, marked at the
bottom left corner as “US-DOCS\75996027.11”:

o Exhibit K - Additional Construction Contract Certificate, marked at the
bottom left corner as “US-DOCS\75996027.11”; and

o Exhibit L - Subguard Insurance Coverage, marked at the bottom left
corner as “US-DOCS\80758627.11”.

e Security Agreement, marked at the bottom left corner as
“USDOCS\75681595.11” with the following annex and exhibits;

o Annex I - Joinder Agreement, marked at the bottom left corner as “US-
DOCS\75725728.2”;

o Exhibit A - Security Agreement Supplement, marked at the bottom left
corner as “US-DOCS\75725658.2”;

co. Exhibit C -Securities Account Control Agreement, marked at the bottom
left corner as “US-DOCS\75726535.2”; and


Scott Wheat, General Counsel
Re: Review of credit facility
March 10, 2017

Page 3 of 4

o Exhibit D - Uncertificated Securities Control Agreement, marked at the
bottom left corner as “US-DOCS\75725847.2”.

¢ Intellectual Property Security Agreement; marked at the bottom left corner as
“US-DOCS\ 76059058.4”;

¢ Deposit Account Control Agreement (Citizen Bank — Construction Disbursement
Account and Cash Management Account), marked at the bottom left comer as
“US-DOCS\76208424.3”;

© Deposit Account Control Agreement (Citizen — Blocked Account), marked at the
bottom left corner as “US-DOCS\76228677.4”;

© Deposit Account Control Agreement (U.S. Bank), marked at the bottom left
corner as “US-DOCS\76208229.3”;

¢ Subordination Agreement (Developer), marked at the bottom left comer as “US-
DOCS\80075728.6";

¢ Consent and Agreement (Contractor), marked at the bottom left corner as “US-
DOCS\76183899.7”; and

e Consent and Agreement (Developer), marked at the bottom left commer as “US-
DOCS\76016547.6”.

The Agreements contain terms similar to other agreements the Office of General
Counsel has already reviewed and analyzed that are available on the NIGC website.
Applying the same analysis here, it is my opinion that the Agreements are not
management contracts and do not require the approval of the Chair. It is also my opinion
that they do not violate IGRA’s sole proprietary interest requirement.

It is my understanding that the Agreements are represented to be in substantially
final form with respect to terms affecting this opinion. If the Agreements change in any
material way prior to closing, this opinion shall not apply. Further, this opinion is limited
to the Agreements listed above and 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 i 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

'25 CER. § 517.7(c).
75 U.S.C. § 552(b)(4).
3975 F.2d 871 (D.C. Cir. 1992).