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December 18, 2015

Mr. Edward D. Manuel, Chairman.
Tohono O’odham Nation

Desert Diamond Casinos & Entertainment
P.O. Box 22230

Tucson, Arizona 85734

Re: Review of financing documents for the Tohono O’odham Nation
Dear Chairman Manuel:

This letter responds to the Tohono O’odham Nation’s request, for the National
Indian Gaming Commission's Office of General Counsel to review several agreements for
the refinancing of existing debt related to the Tribe's gaming enterprise. The Tribe has
asked for an opinion whether these agreements are management contracts requiring the
NIGC Chair's approval under the Indian Gaming Regulatory Act. The Tribe also has asked
for an opinion whether the agreements violate IGRA's requirement that a tribe have the sole
proprietary interest in its gaming operation.

Inmy review, I considered the following submissions (collectively, “the Financing
Documents”) all unexecuted, but represented to be in substantially final form:

° Credit Agreement among the Tohono O’odham Gaming Enterprise, Bank of
America, N.A., the Other Lenders Party Hereto, PNC Bank, National
Association, and Wells Fargo Bank, National Association, marked at the top
right “SMRH Draft (12/04/15)”, marked at the bottom left
“SMRH:209038607.12”;

e Security Agreement among the Tohono O’odham Gaming Enterprise, each of
the subsidiaries of the Borrower that become party as an additional Grantor, in
favor of the Bank of America, N.A., marked at the top right “SMRH DRAFT
10/14/15 EXHIBIT K”, marked at the bottom left “SMRH:224166576.6";

e Deposit Account Control] Agreement among Tohono O’odham Gaming
Enterprise, and Bank of America, N.A., marked “EXHIBIT N”, marked at the
bottom left “SMRH:224164782.5”;

e Form of Joinder Agreement among the New Lenders, the Tohono O’odham
Nation, and the Bank of America, N.A., marked at the top right “EXHIBIT G”,
marked at the bottom left “SMRH:224164151.5”;

° Non-Impairment and Estoppel Agreement made and given by the Tohono
O’odham Nation, in favor of Bank of America, N.A., for the benefit of each

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

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WWW.NIGC.GOV


Chairman Manuel

Re: Review of financing documents for the Tohono O’odham Nation
December 18, 2015

Page 2 of 3

lender party to the Credit Agreement, and each Secured Party marked at the top

right “SMRH Draft 10-12-15”, marked at the bottom left

“SMRH:223052264.4”;

° Exhibits to Credit Agreement:

o Form of Administrative Questionnaire, marked at the top right “EXHIBIT
A-B”, marked at the bottom left “SMRH:209500706.5”;

o Assignment of Leases and Rent, marked at the top right “EXHIBIT C”,
marked at the bottom left “SMRH:209500706.5”;

o Committed Loan Notice Form, marked at the top right “EXHIBIT D”,
marked at the bottom left, “SMRH:209500706.5”;

o Compliance Certificate Form, marked at the top right “EXHIBIT E”,
marked at the bottom left “SMRH:209500706.5:;

o Guaranty Form, marked top right “EXHIBIT F”, marked bottom left
“SMRH:209500706.5”;

o Form of Increase Joinder, marked top right “SMRH:209500706.4
EXHIBIT G”, marked bottom left “SMRH:209500706.5”;

o Revolving Credit Note Form, marked top right “Exhibit H”, marked
bottom left “SMRH:209500706.5”;

o Term Note Form, marked top right “EXHIBIT I”, marked bottom left
“SMRH:209500706.5”;

o U.S. Tax Compliance Certificate Form, marked top right “EXHIBIT J-1,
J-2, J-3, J-4” marked bottom left “SMRH:209500706.5”5

o Subordination Agreement Form, marked top right “EXHIBIT M”, marked
bottom left “SMRH:209500706.5”;

o Form of Account Control Agreement, marked top right “EXHIBIT N”,
marked bottom left “SMRH:209500706.5”;

o. Fee Letter, Dated November 20, 2015, marked bottom left
“SMRH:224368473.1”, marked bottom right “OBN1-201630”.

The Financing Documents contain terms similar to other agreements the Office of
General Counsel has already reviewed and analyzed. See, generally www.nigce.gov.
Applying the same analysis here, it is my opinion that the Financing Documents are not
management contracts and do not require the approval ofthe Chair. It is also my opinion that
they do not violate IGRA's sole proprietary interest requirement.

I understand that the Financing Documents are in substantially final form with respect to
terms affecting this opinion. If such terms change in any material way or are inconsistent with
assumptions made herein, this opinion shall not apply. Further, this opinion is limited to the
Financing Documents listed above. This opinion does not include or extend to any other
agreements.

I anticipate this letter will be posted to the NIGC's website. Prior to posting, NIGC will
notify you and give you an opportunity to identify and request that information subject to the


Chairman Manuel
Re: Review of financing documents for the Tohono O’odham Nation

December 18, 2015
Page 3 of 3

exemptions under FOIA be redacted or withheld. A list of the FOIA exemptions may be found at
5 U.S.C. § 552(b).

If you have any questions, please contact NIGC Staff Attorney Rea Cisneros at (202)
632-7024.

Meh Poe

Michael Hoenig
General Counsel

ce: Britt E. Clapham II, General Counsel, Tohono O’odham Nation (via e-mail)
Christine L. Swanick, Esq., Sheppard Mullin Richter & Hampton (via e-mail)