Mr. Jeffrey B. Trattner

Re: Review of the 2019 Credit Documents for the Poarch Band of Creek Indians
May 24, 2019

Page 4 of 4

objection to <FOIASubmitterReply@nige.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. Jd. 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,

Micke? Aa

Michael Hoenig
General Counsel

ce: Townsend Hyatt, Esq. (via email only <thyatt@orrick.com>)


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May 24, 2019

Via email: <jtrattner@pci-nsn.gov>
And First Class Mail

Jeffrey B. Trattner, Esq.
Assistant Attorney General
Poarch Band of Creek Indians
5811 Jack Springs Road
Atmore, Alabama 36502

Re: Review of the 2019 Credit Documents for the Poarch Band of Creek Indians
Dear Mr. Trattner:

This letter responds to your April 10, 2019 request, on behalf of the Poarch Band of
Creek Indians (“Tribe”) and PCI Gaming Authority, an unincorporated, chartered instrumentality
of the Tribe, for the National Indian Gaming Commission, Office of the General Counsel, to
review certain transaction documents and to provide an opinion as to whether or not these
transaction 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 these transaction 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 (“2019 Credit Documents”):

© Credit Agreement Dated as of [__], 2019, among PCI Gaming Authority, as Borrower, The
Subsidiaries of Borrower Party Hereto, as Guarantors, The Lenders Party Hereto, The L/C
Lenders Party Hereto, and Credit Suisse AG, Cayman Islands Branch, as Administrative
Agent and as Collateral Agent, Credit Suisse Securities (USA) LLC, Capital One, National
Association, and KeyBanc Capital Markets Inc., as Joint Lead Arrangers and Joint
Bookrumners (marked at bottom left as “US-DOCS\105110338.17” and at top right as “L&W
Draft 5/20/19”);

e Exhibit A-1 Form of Revolving Note (marked at bottom left as “US-DOCS\105088464.6”
and at top right as “L&W Draft 4/9/2019”);

e Exhibit A-2 Form of Term B Facility Note (marked at bottom left as “US-
DOCS\105088472.5” and at top right as “L&W Draft 4/9/2019”);

e Exhibit B Form of Notice of Borrowing (marked at bottom left as “US-
DOCS\105088480.6” and at top right as “L&W Draft 4/9/2019”);

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

REGIONAL OFFICES Portland, OR; Sacramento, CA; Phoenix, AZ; St. Paul, MN; Tulsa OK; Oklahoma City, OK
WWW.NIGC.GOV


Mr. Jeffrey B. Trattner
Re: Review of the 2019 Credit Documents for the Poarch Band of Creek Indians

May 24, 2019
Page 2 of 4

e Exhibit C Form of Notice of Continuation/Conversion (marked at bottom left as “US-
DOCS\105088499.5” and at top right as “L&W Draft 4/9/2019”);

e Exhibit D Forms of U.S. Tax Compliance Certificate (marked at bottom left as “US-
DOCS\105443550.4” and at top right as “L&W Draft 4/9/2019”);

e Exhibit E Form of Compliance Certificate (marked at bottom left as “US-
DOCS\107146302.11” and at top right as “L&W Draft 5/20/2019”);

e Exhibit F Form of Non-Interference Agreement (marked at bottom left as “US-
DOCS\105071661.8” and at top right as “L&W Draft 4/23/19”);

e Exhibit G Form of Solvency Certificate (marked at bottom left as “US-
DOCS\105444 132.4” and at top right as “L&W Draft 4/9/2019”);

e Exhibit H Form of Security Agreement made by PCI Gaming Authority, and The
Guarantors Party Hereto, as Pledgors, in favor of Credit Suisse AG, Cayman Islands
Branch, as Collateral Agent Dated as of [ _], 2019 (marked at bottom left as “US-
DOCS\107185124.3” and at top right as “L&W Draft 5/20/2019”);

e Exhibit I Open-End Fee [and Leasehold] Mortgage, Assignment of Rents and Leases,
Security Agreement and Fixture Filing Made By [__], as Mortgagor, to Credit Suisse
AG, Cayman Islands Branch, in its capacity as Collateral Agent for the benefit of the
Secured Parties, as Mortgagee (marked at bottom left as “US-DOCS\106283874.5” and
at top right as “L&W Draft 5/20/19”);

e Exhibit J Form of Affiliated Lender Assignment and Assumption Agreement (marked at
bottom left as “US-DOCS\106905389,2” and at top right as “L&W Draft 4/9/2019”);

e Exhibit K Form of Assignment and Assumption Agreement (marked at bottom left as
“US-DOCS\105444400.5” and at top right as “L&W Draft 4/9/2019”);

e Exhibit L Form of Letter of Credit Request (marked at bottom left as “US-
DOCS\105444821.5” and at top right as “L&W Draft 4/9/2019”);

e Exhibit M Form of Joinder Agreement (marked at bottom left as “US-
DOCS\105445671.5” and at top right as “L&W Draft 4/9/2019”);

e Exhibit N Form of Perfection Certificate (marked at bottom left as “US-
DOCS\105445734.5” and at top right as “L&W Draft 4/9/2019”);

e Exhibit O Form of Auction Procedures (marked at bottom left as “US-
DOCS\105446449.4” and at top right as “L&W Draft 4/9/2019”);

e Exhibit P Form of Open Market Assignment and Assumption Agreement (marked at
bottom left as “US-DOCS\105446579.4” and at top right as “L&W Draft 4/9/2019”);

e Exhibit Q Form of Term Loan Extension Amendment (marked at bottom left as “US-
DOCS\105446622.4” and at top right as “L&W Draft 4/9/2019”);


Mr. Jeffrey B. Trattner

Re: Review of the 2019 Credit Documents for the Poarch Band of Creek Indians
May 24, 2019

Page 3 of 4

e Exhibit R Form of Revolving Extension Amendment (marked at bottom left as “US-
DOCS\105446716.4” and at top right as “L&W Draft 4/9/2019”);

e Exhibit S Form of Pari Passu Intercreditor Agreement dated as of [__], 20[ __] Among
Credit Suisse AG, Cayman Islands Branch, as Administrative Agent and Collateral Agent
Sor the Credit Agreement Secured Parties, [ _], as the Initial Other Authorized
Representative, [ _], as the Initial Other Collateral Agent, and each additional
Authorized Representative and Collateral Agent from time to time party hereto (marked
at bottom left as “US-DOCS\105912814.6” and at top right as “L&W Draft 4/9/2019”);

e Exhibit T Form of Second Lien Intercreditor Agreement among Credit Suisse AG,
Cayman Islands Branch, as Senior Representative for the Credit Agreement Secured
Parties, {__], as the Initial Second Priority Representative and each additional
Representative from time to time party hereto dated as of [__], 20[__] (marked at bottom
left as “US-DOCS\105912833.6” and at top right as “L&W Draft 4/9/2019”);

¢ Global Intercompany Note (marked at bottom left as “US-DOCS\106412442.2” and at top
right as “L&W Draft 5/20/2019”); and

© Confirmatory Grant of Security Interest in United States Intellectual Property (marked at
bottom left as “US-DOCS\105755698.5” and at top right as “L&W Draft 4/23/2019”).

The 2019 Credit Documents contains 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 2019 Credit Documents are not a 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 2019 Credit Documents are represented to be in
substantially final form, and any further changes will not be material to OGC’s analysis. This
opinion shall not apply if the 2019 Credit Documents change in any material way prior to their
execution or are inconsistent with assumptions made herein. Further, this opinion is limited to
the aforementioned 2019 Credit 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