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January 22, 2020
By U.S. mail and email

Jeffrey C. Nave

Foster Garvey P.C.

618 West Riverside Avenue
Suite 300

Spokane, WA 99201

Re: Review of Loan Documents for the Lummi Tribe and Wells Fargo Bank, NA

Dear Mr. Nave:

This letter responds to your December 11, 2019 request for the National Indian Gaming
Commission’s Office of General Counsel to review a collection of financing documents among
the Lummi Tribe, various lenders, and Wells Fargo Bank, NA. Specifically, you have asked for
my opinion whether the documents are a management contract requiring the NIGC Chair’s.
approval under the Indian Gaming Regulatory Act. You also asked for my opinion whether the
documents violate IGRA’s requirement that the Tribe have the sole proprietary interest in its
gaming activity.

As part of this review, I analyzed the following undated documents (collectively, the

Loan Documents):
e Loan Agreement among the Lummi Tribe, Lenders, and Wells Fargo Bank, NA (NIGC

Submission Draft 12/11/19, doc no. 4128-7597-7247)
e Exhibit B— Compliance Certificate (NIGC Submission Draft 12/11/19, doc. no. 4144-7843-

6640.3)
e Exhibits to NEW Loan Agreement (NIGC Submission Draft 12/11/19, doc. no. 4143-5391-

7728.4)

e Security Agreement (NIGC Submission Draft 12/11/19, doc. no. 4152-7244-3679.5)

e Unjust Enrichment and Sovereign Immunity (NIGC Submission Draft 12/11/19, doc. no.
OHS WEST:261 121830.5)

e Deposit Account and Sweep Investment Control Agreement (NIGC Submission Draft
12/11/19, doc. no. #71598919_v2)

e Schedule 5.3 — Insurance (NIGC Submission Draft 12/11/19, doc. no, 4125-2752-9248.2)

NEW MAILING ADDRESS: NIGC/DEPARTMENT OF THE INTERIOR 1849 C Street N ‘ax: 202.632.7066

REGIONAL OFFICES Portland, OR

WWW.NIGC,GOV


Letter to Jeffrey Nave

Re: Review of Loan documents for Lummi Tribe and Wells Fargo Bank, NA
January 22, 2020

Page 2 of 2

The Loan Documents you have submitted contain terms similar to other agreements the
Office of General Counsel has already reviewed and analyzed. Copies of declination letters can
be found on the NIGC’s website. Applying the same analysis here, it is my opinion that the Loan
Documents are not a management contract and do not require the approval of the NIGC Chair. It
is also my opinion that they do not violate IGRA’s sole proprietary interest requirement.

It is my understanding that the drafts are represented to be in substantially final form, and
if the Loan Documents change in any material way prior to closing or are inconsistent with
assumptions made herein, this opinion shall not apply. Further, this opinion is limited to the Loan
Documents. This opinion does not include or extend to any other agreements not submitted for
Teview.

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, , 139 S.Ct. 2356 (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. Id.

If you have any questions, please contact NIGC Senior Attorney Jennifer Lawson at
(202) 632-7003.

Sincerely,

Michael Hoenig
General Counsel