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December 4, 2018

Christine M. Masse, Esq.
Miller Nash Graham & Dunn LLP

Pier 70

2801 Alaskan Way, Suite 300
Seattle, WA 98121

Re: Review of Refinancing

Dear Ms. Masse:

This letter responds to your request of October 31, 2018, that requested on behalf of the
Cowlitz Indian Tribe (Tribe) for the National Indian Gaming Commission’s Office of General
Counsel to review a financing agreement and related documents, identified below, between the
Tribe and KeyBank, N.A., as administrative agent, and various lenders. Specifically, you have
asked for my opinion whether the Agreement, defined below, constitutes a management contract
requiring the NIGC Chairman’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 agreements (collectively, “the Agreement”),
which were represented to be in substantially final form:

e Revolving Credit and Term Loan Agreement, marked at the bottom left corner as
“US-DOCS\103381486.14”, with:

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Oo

NEW MAILING ADDRESS: NIGC/DEPARTMENT OF THE INTERIOR 1849 C Street NW, Mail Stop # 162) Washington, DC 20240 Tel: 202.632.7003 Fax: 202.632.7066

Appendix A — Principal Offices, marked at the bottom left corner as “US-
DOCS\103605071.2”;

Exhibit A-1 — Form of Term A Note, marked at the bottom left corner as “US-
DOCS\103605071.2”;

Exhibit A-2 — Form of Revolving Note, marked at the bottom left corner as “US-
DOCS\103605071.2”;

Exhibit B-1 — Form of Funding Notice, marked at the bottom left corner as “US-
DOCS\103605071.2”;

Exhibit B-2 — Form of Issuance/Amendment Notice, marked at the bottom left
corner as “US-DOCS\103605071.2”;

Exhibit B-3 — Form of Conversion/Continuation Notice, marked at the bottom left
comer as “US-DOCS\103605071.2”;

Exhibit B-4 — Form of Notice of Account Designation, marked at the bottom left
corner as “US-DOCS\103605071.2”;

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

WWW.NIGC.GOV


Christine M. Masse, Esq.
Re: Review of Refinancing

December 4, 2018
o Exhibit C-1 — Form of Guaranty, marked at the bottom left corner as “US-
DOCS\103605070.2”;
= Exhibit A — Joinder Agreement, marked at the bottom left corner as “US-
DOCS\103605070.2”;
o Exhibit C-2 — Security Agreement, marked at the bottom left corner as “US-
DOCS\103434367.5”;

= Exhibit A — Security Agreement Supplement, marked at the bottom left
corner as “US-DOCS\103772729.2”;
= Exhibit B — Deposit Account Control Agreement, marked at the bottom
left corner as “US-DOCS\103697611.3”, with Exhibits A, B, and C,
unmarked;
= Exhibit C — For of Securities Account Control Agreement, marked at the
bottom left corner as “US-DOCS\103697778.4”, with Exhibit A,
unmarked;
= Exhibit D — Uncertificated Securities Control Agreement, marked at the
bottom left corner as “US-DOCS\103721645.2”;
e Exhibit A, marked at the bottom left corner as “US-
DOCS\103721645.2”;
o Exhibit D — Form of: Solvency Certificate, marked at the bottom left corner as
“US-DOCS\103605071.2”;
o Exhibit E —- Form of Compliance Certificate, marked at the bottom left corner as
“US-DOCS\103605081.3”;
o Exhibit F — Form of Assignment and Acceptance, marked at the bottom left
corner as “US-DOCS\103605077.2”;
= Schedule 1, marked at the bottom left corner as “US-
DOCS\103605077.2”;
= Annex 1 — Standard Terms and Conditions for Assignment and
Acceptance, marked at the bottom left corner as “US-
DOCS\103605077.2”;
o Exhibit H — Form of Non-Bank Certificate, marked at the bottom left corner as
“US-DOCS\103605071.2”;
o Exhibit I — Form of Closing Certificate, marked at the bottom left corner as “US-
DOCS\103605069.3”;
o Exhibit K — Form of Intercompany Subordinated Demand Promissory Note,
marked at the bottom left corner as “US-DOCS\103605074.2”;
= Schedule A — Transactions on Intercompany Subordinated Demand
Promissory Note, marked at the bottom left corner as “US-
DOCS\103605074.2”;
= Endorsement, marked at the bottom left corner as “US-
DOCS\103605074.2”;
o Exhibit L — Subordination Agreement, submitted on December 3, 2018, marked at
the bottom left corner as “US-DOCS\103678442.3”;
o Exhibit M ~ Form of Administrative Questionnaire, marked at the bottom left
corner as “US-DOCS\103605071.2”;


Christine M. Masse, Esq.
Re: Review of Refinancing
December 4, 2018

o Exhibit O — Form of Joinder Agreement, marked at the bottom left corner as “US-
DOCS\103605073.2”; and
= Schedule A, marked at the bottom left corer as “US-
DOCS\103605073.2”.

The Agreement contains 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 Agreement is not a management contract and does not
require the approval of the Chairman. It is also my opinion that it does not violate IGRA’s sole
proprietary interest requirement.

It is my understanding that the Agreement is represented to be in substantially final form
with respect to terms affecting this opinion. If the Agreement changes in any material way prior
to closing, this opinion shall not apply. Further, this opinion is limited to the Agreement 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 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@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. 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 NIGC Senior Attorney Esther Dittler at (202)
420-9229.

Sincerely,

Mecho fy——

Michael Hoenig
General Counsel

'25 CFR. §517.7(0).
25 U.S.C. § 552(b)(4).
* 975 F.2d 871 (D.C. Cir. 1992).
4 25 CFR. § 517.7(c).