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October 22, 2020

VIA EMAIL

Zeke Fletcher

General Counsel

Gun Lake Tribal Gaming Authority

1123 129th Avenue

Bradley, MI 49323

Terence O’Farrell

Managing Director

KeyBank National Association

100 South Main Street, 6th Floor

Ann Arbor, MI 48104

Re: Review of financing agreements between KeyBank National Association & 

the Gun Lake Tribal Gaming Authority

Dear Mr. Fletcher:

This letter responds to the request for the National Indian Gaming Commission’s Office of 

General Counsel to review financing documents between the Gun Lake Tribal Gaming Authority and 

KeyBank. Specifically, you asked for an opinion whether these agreements are management 

contracts requiring the NIGC Chairman’s approval under the Indian Gaming Regulatory Act. You 

also asked for an opinion whether the agreements violate IGRA’s requirement that a tribe have the 

sole proprietary interest in its gaming operation. 

In my review, I considered the following documents (collectively “the Financing 

Agreements”) submitted, all of which are unexecuted but represented to be in substantial final form: 

• Credit Agreement – Marked as: 4844-8973-5112\6 & DW Draft 9/18/20

• Security Agreement – Marked as: 4847-3573-5753\2 & DW Draft 9/18/2020

• Revolving Note – Marked as: 4842-0305-9145\2

• Tribal Payment Support Agreement –

Marked as: 4847-9555-7065\4 & DW Draft 9/18/20

• Fee Letter – Undated – Only signed by the Tribe; not KeyBank

• Deposit Account Control Agreement –

Marked as: 4843-6509-4452\3 [Executed Version] Dated November 2, 2016. 

• Reaffirmation of Deposit Account Control Agreement –
Letter to Zeke Fletcher and Terence O’Farrell

Re: Review of financing agreements between KeyBank National Association & the Gun Lake 

Tribal Gaming Authority

October 22, 2020

Page 2 of 2

Marked as: 4835-1588-7817\2

The Financing Agreements contain terms similar to other agreements the Office of General 

Counsel has reviewed and analyzed; please refer to the agency’s website. Applying the same analysis 

here, it is my opinion that collectively the Financing Agreements are not management contracts and 

do not require the approval of the Chairman. It is also my opinion they do not violate IGRA’s sole 

proprietary interest requirement.

It is my understanding the Financing Agreements are represented to be in substantially final 

form with respect to terms affecting this opinion, and if such terms change in any material way prior 

to closing or are inconsistent with the assumptions made herein, this opinion shall not apply. Further, 

this opinion is limited to the Financing Agreements listed above. This opinion does not include or 

extend to any other agreements or documents not submitted for review.

Please note it is my intent 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, highlighting the information you believe should be withheld.1 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),2 please be advised that the 

information was voluntarily submitted and, as such, any withholding should be analyzed in 

accordance with the standard set forth in Food Marketing Institute v. Argus Leader Media.

3 Any 

claim of confidentiality should also be supported with “a statement or certification by an officer or 

authorized representative of the submitter.”4 Please submit any written objection to 

FOIASubmitterReply@nigc.gov within thirty (30) days of the date of this letter. After this time 

elapses, this letter will be made public and objections will no longer be considered.5 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/dojguide-freedom-information-act-0. 

If you have any questions, please contact NIGC Staff Attorney Mary Modrich-Alvarado at 

(202) 632-7003. 

Sincerely,

Michael Hoenig

General Counsel

 1 25 C.F.R. § 517.7(c). 2 Freedom of Information Act, 5 U.S.C. § 552(b)(4) (1966). 

3 139 S.Ct. 2356 (2019).

4 25 C.F.R. § 517.7(c).

5 Id.