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November 20, 2020

VIA EMAIL

Vanya Hogen

Legal Counsel

Hogen Adams PLLC 

1935 West County Rd B2 Ste. 460

St. Paul, MN 55113

Re: Review of financing agreement between CIT Bank, N. A. & Lake of the Torches 

Federal Development Corporation

Dear Ms. Hogen:

This letter responds to your request on behalf of Lake of the Torches Federal 

Development Corporation and Lac du Flambeau Band of Lake Superior Chippewa for the 

National Indian Gaming Commission’s Office of General Counsel to review financing 

documents between the Lake of the Torches Federal Development Corporation and CIT Bank, 

N. A. Specifically, you asked for an opinion whether the agreement is a management contract 

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

asked for an opinion whether the agreement violates 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 

Agreement”), all of which are unexecuted, but represented to be in substantially final form: 

• Waiver And Amendment No. 2 to Loan Agreement – between tribe & lender

Marked as: SMRH:4825-9121-7868.5 in lower left hand corner; 21CT-269361 in lower 

right hand corner; dated in upper right hand corner “NIGC Review 10-26-20”

• Reaffirmation and Consent Agreement Marked as: SMRH: 4825-9121-7868.5 in lower left 

hand corner; 21CT-269361 in lower right hand corner; dated in upper right hand corner 

“NIGC Review 10-26-20.”

The Financing Agreement contains terms similar to other agreements the Office of 

General Counsel has reviewed and analyzed, which are available on the NIGC’s website. 

Applying the same analysis here, it is my opinion that the Financing Agreement is not a 
Vanya Hogen

Re: Review of financing agreement between CIT Bank, N. A. & Lake of the Torches 

Federal Development Corporation

November 20, 2020

Page 2 of 2

management contract and does not require the approval of the Chairman. It is also my opinion 

that it does not violate IGRA’s sole proprietary interest requirement.

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

form with respect to terms affecting this opinion. 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 Agreement 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/doj-guide-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(d).

5 Id.