NAL IA
4° "0,

= %
* *
$ é
a,
Uy, ©

Cc comM

December 18, 2019

Matt Wesaw

Tribal Chairman

Pokagon Band of Potawatomi Indians
P.O. Box 180

58620 Sink Road

Dowagiac, MI 49047

Re: Review of Loan Documents for the Pokagon Band of Potawatomi Indians
Dear Chairman Wesaw:

This letter responds to your November 21, 2019 request for the National Indian Gaming
Commission’s Office of General Counsel to review Transaction Documents between the Pokagon
Gaming Authority and Bank of America. Specifically, you have asked for my opinion whether the
Transaction Documents constitute a management contract or collateral agreement to a management
contract requiring the NIGC Chair’s approval under the Indian Gaming Regulatory Act, and whether
they violate |GRA’s requirement that a tribe have the sole proprietary interest in its gaming
operation.

In my review, I considered the following submission (collectively referred to as “the Loan
Documents”):

ql) the Credit Agreement among the Authority as Borrower, the Tribe, each lender from
time to time party thereto, and Bank of America, N.A. as Administrative Agent,
Swing Line Lender and L/C Issuer and BofA Securities, Inc. as sole arranger and
bookrunner, marked as “SMRH Draft 11/20/19” on the first page;

(2) Exhibits to the Credit Agreement, marked as “SMRH Draft 11/20/19” on the first
page;

(3) the Security Agreement made by the Authority as grantor in favor of Bank of
America, N.A., as Administrative Agent for the Secured Parties, marked as “SMRH
Draft 11/20/19” on the first page;

(4) Amendment No. 4 to the Deposit Account Control Agreement dated June 30, 2011
(the “DACA”), as amended on May 31, 2013, and further amended on February 28,
2017 and January 12, 2018, by and among the Authority, Bank of America, N.A., as
Administrative Agent for the Secured Parties and Fifth Third Bank as depository
bank, marked as “SMRH Draft 11/20/19” on the first page, along with a conformed
copy of the DACA marked as “SMRH Draft 11/20/19” on the first page;

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 Matt Wesaw

Re: Review of Loan Documents for the Pokagon Band of Potawatomi Indians
December 18, 2019

Page 2 of 2

(5) the Securities Account Control Agreement by and among the Authority as pledgor,
U.S. Bank National Association as intermediary and Bank of America, N.A., as
Administrative Agent for the Secured Parties, marked as “SMRH Draft 11/20/19” on
the first page;

(6) (6) the Patent, Trademark and Copyright Security Agreement made by the Authority
as grantor in favor of Bank of America, N.A., as Administrative Agent for the
Secured Parties (the “IP Security Agreement”) marked as “SMRH Draft 11/20/19” on
the first page (items (1) through (6), collectively, the “Loan Documents”).

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

It is my understanding that the Loan Documents are represented to be in substantially final
form with respect to terms affecting this opinion. If they change in any material way prior to closing,
this opinion shall not apply. Further, this opinion is limited to the Loan Documents 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.
See 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 Four of the Freedom of Information
Act (FOIA), 5 U.S.C. § 552(b)(4), please be advised that any withholding should be analyzed under
the standard set forth in Food Marketing Institute v. Argus Leader Media, No. 18-481, 2019 WL
2570624, at *7 (U.S., June 24, 2019). Any claim of confidentiality should also be supported with “a
statement or certification by an officer or authorized representative of the submitter.” See 25 C.F.R. §
517.7(d). 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 have any questions, please contact me at (202) 632-7003.

Sincerely,

Mero be

Michael Hoenig
General Counsel