Stephen R. Ward, Esq.

Re: Review of 2019 Transaction Documents for the Quapaw Tribe of Oklahoma (O-Gah-Pah)
July 2, 2019

Page 4 of 4

explaining the grounds for the objection and highlighting the information that you believe should
be withheld. 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 4 of the Freedom
of Information Act, 5 U.S.C. § 552(b)(4), please be advised that the information was voluntarily
submitted and, as such, any request to withhold will be analyzed in accordance with the standard
set forth in Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir. 1992). Any claim of
confidentiality should also be supported with “a statement or certification by an officer or
authorized representative of the submitter.” 25 C.F.R. § 517.7(c). Please submit any written
objection to <FOIASubmitterReply@nige.gov> within thirty (30) calendar 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 Armando Acosta, Senior Attorney, at (202)
632-7003.

Sincerely,

Michoud fost

Michael Hoenig
General Counsel


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July 2, 2019

Via email: sward@cwlaw.com
and First Class Mail

Stephen R. Ward, Esq.
Conner & Winters, LLP
4000 One Williams Center
Tulsa, OK 74172-0148

Re: Review of the 2019 Transaction Documents
for the Quapaw Tribe of Oklahoma (O-Gah-Pah)

Dear Mr. Ward:

This letter responds to your May 28, 2019 request, on behalf of the Quapaw Tribe of
Oklahoma (O-Gah-Pah), for the National Indian Gaming Commission, Office of the General
Counsel, to review certain transaction documents and to provide an opinion as to whether or not
these transaction documents are management contracts requiring the NIGC Chairman’s approval
pursuant to the Indian Gaming Regulatory Act of 1988. You have also asked for my opinion as
to whether or not the transaction documents violate IGRA’s requirement that a tribe have the
sole proprietary interest in its gaming operation.

In my review, I considered the following submissions (collectively, “the 2019
Transaction Documents”):

1. Downstream Development Authority of the Quapaw Tribe of Oklahoma (O-Gah-Pah),
$[585, 000,000] [_]% Senior Secured Notes due [2024], Purchase Agreement dated [_],
2019 (marked at top right as “Confidential Draft May 28, 2019”);

2. Downstream Development Authority of the Quapaw Tribe of Oklahoma (O-Gah-Pah) and
Each of the Guarantors Party Hereto, [_]% Senior Secured Notes Due 2024, Indenture
Dated as of [__], 2019, BOKF, NA, as Trustee (marked at bottom left as “US-
DOCS\92966247.2” and at top right as “Confidential Draft May 28, 2019”);

3. Intercreditor Agreement dated as of [__], 2019 among BOKF, NA, as Senior Secured
Notes Indenture Trustee, the other Secured Obligations Representatives from time to time
party hereto, International Bank of Commerce, as Collateral Agent, Downstream
Development Authority of the Quapaw Tribe of Oklahoma (O-Gah-Pah), as Issuer,
Downstream Q Store, LLC, as a Grantor, Saracen Development, LLC, as a Grantor, and

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


Stephen R. Ward, Esq.

Re: Review of 2019 Transaction Documents for the Quapaw Tribe of Oklahoma (O-Gah-Pah)
July 2, 2019

Page 2 of 4

10.

il.

12.
13.

14.

15.

the other Grantors from time to time party hereto (marked at bottom left as “US-
DOCS\107539883.8” and at top right as “Confidential Draft May 28, 2019”);

Security Agreement among Downstream Development Authority of the Quapaw Tribe of
Oklahoma (O-Gah-Pah), as Assignor, Downstream Q Store, LLC, as Assignor, Saracen
Development, LLC, as Assignor, International Bank of Commerce, as Collateral Agent and
BOKF, NA, as Indenture Trustee, Dated as of [__], 2019 (marked at bottom left as “US-
DOCS\107369530.6” and at top right as “Confidential Draft May 28, 2019”);

Deposit Account Control Agreement (marked at bottom left as “US-DOCS\107559139.12”
and at top right as “Confidential Draft May 28, 2019”);

Deposit Account Control Agreement (marked at bottom left as “US-DOCS\107983383.1”
and at top right as “Confidential Draft May 28, 2019”);

Deposit Account Control Agreement (marked at bottom left as “US-DOCS\107925161.5”
and at top right as “Confidential Draft May 28, 2019”);

Deposit Account Control Agreement (marked at bottom left as “US-DOCS\107908400.4”
and at top right as “Confidential Draft May 28, 2019”);

Securities Account Control Agreement (marked at bottom left as “US-DOCS\107913429.5”
and at top right as “Confidential Draft May 28, 2019”);

Cash Collateral and Disbursement Agreement Among Simmons Bank, as Disbursement
Agent, BOKF, NA, as Trustee, International Bank of Commerce, as Collateral Agent,
Downstream Development Authority of the Quapaw Tribe of Oklahoma (O-Gah-Pah), as
Authority, Saracen Development, LLC, as Project Owner, and Professional Associates
Construction Services, Inc., as Independent Construction Consultant, dated as of [_], 2019
(marked at bottom left as “US-DOCS\107361601.10” and at top right as “Confidential
Draft May 28, 2019”);

e Exhibits to Cash Collateral and Disbursement Agreement;

Grant of Security Interest in United States Trademarks, [ _], 2019 (marked at bottom left
as “US-DOCS\107391666.6” and at top right as “Confidential Draft May 28, 2019”);

First Supplemental Indenture (marked at top right as “Confidential Draft May 28, 2019”);

Dealer Manager and Solicitation Agent Agreement (marked at top right as “Confidential
Draft May 28, 2019”);

Credit Agreement Dated as of [_], 2019, Saracen Development, LLC, an Arkansas limited
liability company, as Borrower, Downstream Development Authority of the Quapaw Tribe
of Oklahoma (O-Gah-Pah), a wholly-owned unincorporated instrumentality of the Quapaw
Nation also known as the Quapaw Tribe of Oklahoma (O-Gah-Pah), as the Parent, and
International Bank of Commerce, as Lender (marked at bottom left as “{1971381;5}” and
at top right as “Confidential Draft 5/28/19”);

Promissory Note $40,000,000.00, _, 2019 (marked at bottom left as “{1967071;4}” and at
top right as “Confidential Draft 5/28/19”);


Stephen R. Ward, Esq.

Re: Review of 2019 Transaction Documents for the Quapaw Tribe of Oklahoma (O-Gah-Pah)
July 2, 2019

Page 3 of 4

16. Security Agreement Dated as of __, 2019 among each of the Grantors party hereto, and
International Bank of Commerce, as Collateral Agent (marked at bottom left as
“{1967074;9}” and at top right as “Confidential Draft 5/28/19”);

17. Guaranty Dated as of _, 2019, By Downstream Development Authority of the Quapaw
Tribe of Oklahoma (O-Gah-Pah), a wholly-owned unincorporated instrumentality of the
Quapaw Nation, a federally recognized Indian tribe, also known as the Quapaw Tribe of
Oklahoma (O-Gah-Pah), In favor of International Bank of Commerce, an Oklahoma state
banking corporation, Lender (marked at bottom left as “{1967146;5}” and at top right as

“Confidential Draft 5/28/19”);

18. Grant of Security Interest in United States Trademarks (marked at bottom left as
“£1968966;}” and at top right as “Confidential Draft 5/28/19”);

19. Joinder Agreement — Additional Secured Obligations (marked at bottom left as
“{1969062;2}” and at top right as “Confidential Draft 5/28/19”);

20. Joinder Agreement — Additional Secured Obligations (marked at bottom left as
“{1968960;3}” and at top right as “Confidential Draft 5/28/19”);

21. Additional Secured Obligations Designation (marked at bottom left as “{1968958;}” and at
top right as “Confidential Draft 5/28/19”);

22, Additional Secured Obligations Designation (marked at bottom left as “{1969063;}” and at
top right as “Confidential Draft 5/28/19”);

23. Reaffirmation Agreement (marked at bottom left as “{1969065;2}” and at top right as
“Confidential Draft 5/28/19”); and

24, Reaffirmation Agreement (marked at bottom left as “{1968959;2}” and at top right as
“Confidential Draft 5/28/19”).

The 2019 Transaction Documents contain terms similar to other agreements that OGC
has previously reviewed and analyzed. Some of these opinion letters may be found on the
NIGC’s website located at <www.nigc.gov>. Applying the same analysis here, it is my opinion
that, collectively, the 2019 Transaction Documents are not management contracts and do not
require the approval of the NIGC Chairman. It is also my opinion that they do not violate
IGRA’s sole proprietary interest requirement.

It is my understanding that the 2019 Transaction Documents are represented to be in
substantially final form, and any further changes will not be material to OGC’s analysis. This
opinion shall not apply if the 2019 Transaction Documents change in any material way prior to
closing or are inconsistent with the assumptions made herein. Further, this opinion is limited to
the aforementioned 2019 Transaction Documents and does not include or extend to any other
agreements 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