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August 10, 2018
Via U.S. Mail & Email

Townsend Hyatt

Orrick, Herrington & Sutcliffe LLP
1120 NW Couch Street

Suite 200

Portland, OR 97209-4163
thyatt@orrick.com

Re: Review of financing agreements between
Wells Fargo & the Viejas Band of Kumeyaay Indians

Dear Mr. Hyatt:

On August 3, 2018, I issued a letter responding to your request for the National Indian
Gaming Commission’s Office of General Counsel’s review of financing agreements between the
Viejas Band of Kumeyaay Indians and Wells Fargo Bank National Association. Subsequently,
you supplemented the documents and exhibits comprising the financing agreements and
requested an opinion as to whether the financing agreements, as supplemented, are management
contracts requiring the NIGC Chair’s approval under the Indian Gaming Regulatory Act. You
also asked for an opinion whether the financing agreements violate IGRA’s requirement that a
tribe have the sole proprietary interest in its gaming operation.

In my review, I considered the following documents (collectively “the Financing
Agreements”), all of which are unexecuted but represented to be in substantial final form:

Credit Agreement, marked NIGC Submission Draft (8-3-18), US.118478115.09;
Exhibits to Credit Agreement, marked NIGC Submission Draft (7-9-18),
US.118559112.02;

° Schedules 8.6 and 8.6A to Credit Agreement (Insurance), marked NIGC
Submission Draft (7-26-18), US. 118480733.02;

° Security Agreement, marked NIGC Submission Draft (7-9-18),
US.118480721.03; and

e Deposit Account Control Agreement, marked US.119191636.01.

The Financing Agreements contain terms similar to other agreements the Office of
General Counsel has reviewed and analyzed, which are available at the NIGC’s website.
Applying the same analysis here, it is my opinion that collectively the Financing Agreements are

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


Letter to Townsend Hyatt

Re: Viejas Band Financing Documents
August 10, 2018

Page 2 of 2

not management contracts and do not require the approval of the Chair. It is also my opinion they
do not violate IGRA’s sole proprietary interest requirement.

It is my understanding that the Financing Agreements 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 the assumptions made herein, this
opinion shall not apply. Further, this opinion is limited to the Financing Agreements listed
above. This opinion does not include or extend to any other agreements or documents not
submitted for review.

Please note 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@nigc.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. /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 Attorney Austin Badger at (202)
632-7003.

Sincerely,

a

Michael Hoenig
General Counsel

cc: Jennifer Micrnicki, Facgre Baker Danicls (email only: jennifer.miernicki@FaegreBD.com)

'25 CR. § 517.7(c).

? Freedom of Information Act, 5 U.S.C. § 552(b)(4) (1966).

> Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 1992).
425 CER. § 517.7(c).