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December 17, 2018
Via email: <kent.richey@FaegreBD.com>
And First Class Mail
Kent E. Richey, Esq.
Faegre Baker Daniels LLP
2200 Wells Fargo Center
90 South Seventh Street

Minneapolis, MN 55402-3901

Re: Review of the 2018 Loan Documents for the Seneca Nation of Indians

Dear Mr. Richey:

This letter responds to your November 6, 2018 request, on behalf of Seneca Gaming
Corporation and your client, Fifth Third Bank, for the National Indian Gaming Commission,
Office of the General Counsel, to review certain financial transaction documents involving the
Seneca Nation of Indians, 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 submissions (collectively, “the 2018 Loan
Documents”):

© Credit Agreement Dated as of [_], 2018 among Seneca Gaming Corporation, as the
Borrower, Fifth Third Bank, as Administrative Agent and Swing Line Lender, The L/C
Issuers Party Hereto, and The Other Lenders Party Hereto, Fifth Third Bank, as Joint Lead
Arranger and Joint Book Runner, Keybank National Association, as Joint Lead Arranger,
Joint Book Runner and Co-Syndication Agent, U.S. Bank National Association, as Joint Lead
Arranger, Joint Book Runner and Co-Syndication Agent (marked at bottom left as “US-
DOCS\103032270.17” and at top right as “NIGC Submission Draft 11/5/18”);

e Appendix I to the Credit Agreement, Intercreditor Provisions (marked at bottom left as
“US-DOCS\103988971.2” and at top right as “NIGC Submission Draft 11/5/18”);

© Appendix II to the Credit Agreement, Acknowledgement Agreement (marked at bottom
left as “US-DOCS\103989658.2” and at top right as “NIGC Submission Draft 11/5/18”);

NEW MAILING ADDRESS: NIGC/DEPARTMENT OF THE INTERIOR 1849 C Stee:

REGIONAL OFFICES — Portlan

Tel: 202.632.7003 Fax: 202.632.70


Mr. Kent E. Richey, Esq.
Re: Review of the 2018 Loan Documents for the Seneca Nation of Indians

December 17, 2018
Page 2 of 3

e Exhibit A to Credit Agreement, Form of Committed Loan Notice (marked at bottom left
as “US-DOCS\103441383.5” and at top right as “NIGC Submission Draft 11/5/18”);

e Exhibit B to Credit Agreement, Form of Swing Line Loan Notice (marked at bottom left
as “US-DOCS\103441383.5”);

e Exhibit C to Credit Agreement, Form of Note (marked at bottom left as “US-
DOCS\103441383.5”); .

e Exhibit D to Credit Agreement, Form of Compliance Certificate (marked at bottom left
as “US-DOCS\103441383.5”);

e Exhibit E to. Credit Agreement, Form of Assignment and Assumption (marked at bottom
left as “US-DOCS\103441383.5”);

e Exhibit G to Credit Agreement, Security Agreement among Seneca Gaming Corporation
as Borrower and a Grantor and Each of the Other Grantors Party Hereto, as Grantors

and Fifth Third Bank as Collateral Agent, Dated as of. 2018 (marked at bottom left
as “US-DOCS\103307874.5” and at top right as “NIGC Submission Draft 11/5/18”);

e Exhibit H to Credit Agreement, Form of Administrative Questionnaire (marked at bottom
left as “US-DOCS\103441383.5”);
¢ Guaranty (marked at bottom left as “US-DOCS\103307897.4” and at top right as “NIGC
Submission Draft 11/5/18”);

e Intellectual Property Security Agreement (marked at bottom left as “US-
DOCS\103998668.3” and at top right as “NIGC Submission Draft 11/5/18”);

e Fifth Third Bank Deposit Account Control Agreement (marked at bottom left as
“CHARI\1522991v1” and at top right as “NIGC Submission Draft 11/5/18”);

e Nation Agreement (marked at bottom left as “US-DOCS\103684036.7” and at top right as
“NIGC Submission Draft 11-28-2018”);

e Deposit Account Control Agreement (marked at bottom left as “US-DOCS\103422210.10”
and at top right as “NIGC Submission Draft 11/28/2018”); and

© Blocked Account Agreement (marked at bottom left as “0184295” and at top right as “NIGC
Submission Draft 12-13-2018”). .

The 2018 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>. Applying the same analysis here, it is my opinion that,
collectively, the 2018 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 2018 Loan Documents are represented to be in
substantially final form, and any further changes will not be material to OGC’s analysis. This


Mr. Kent E. Richey, Esq.
Re: Review of the 2018 Loan Documents for the Seneca Nation of Indians

December 17, 2018
Page 3 of 3

opinion shall not apply if the 2018 Loan Documents change in any material way prior to closing
or are inconsistent with assumptions made herein. Further, this opinion is limited to the
aforementioned 2018 Loan Documents and 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. 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 4 of the Freedom
of Information Act, 5 U.S.C. § 552(b)(4), please be advised that the information was voluntarily
submitted and, as such, any request to withhold will be analyzed in accordance with the standard
set forth in Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 1992). Any claim of
confidentiality should also be supported with “a statement or certification by an officer or
authorized representative of the submitter.” 25 C.F.R. § 517.7(c). Please submit any written
objection to <FOLASubmitterReply@nigc.gov> within thirty (30) calendar days of the date of
this letter. 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 Armando Acosta, Senior Attorney, at (202)
632-7003.

Sincerely,

Miche Aloe

Michael Hoenig
General Counsel

ce: Miko E. Hernandez, Esq. (via email only: <miko.hernandez@FaegreBD.com>)
Townsend Hyatt, Esq. (via email only: <thyatt@orrick.com>)