September 10, 2020

Via U.S. Mail & Email

Cody J. Martinez, Chairman

Sycuan Band of the Kumeyaay Nation

2 Kwaaypaay Court

El Cajon, CA 92019

Re: Review of financing agreements between Bank of American & 

the Sycuan Band of the Kumeyaay Nation

Dear Chairman Martinez:

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

Office of General Counsel to review financing documents between the Sycuan Band of 

the Kumeyaay Nation and Bank of America. 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: 

• Fourth Amendment to Credit Agreement – Marked as SMRH: 4829-7809-9136.6

• Revised Fourth Amendment to Credit Agreement – Marked as SMRH: 4829-

7809-9136.6 – submitted via email 8/31/2020

• Credit Agreement – Version 3 – Conformed Through First Amendment, Second 

Amendment, Third Amendment, Payment Deferral Letter and Fourth Amendment 

– Marked as: SMRH: 4847-0644-8833.3

• Compliance Certificate - Exhibit E to Credit Agreement – Marked as SMRH: 

4840-0108-6145.2

• Distribution Certificate – Exhibit L to Credit Agreement – Marked as SMRH: 

4840-4250-5409.

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 
Cody J. Martinez, Chairman Sycuan Band of the Kumeyaay Nation

Re: Review of financing agreements between Bank of American &

 the Sycuan Band of the Kumeyaay Nation

September 10, 2020

Page 2 of 2

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/doj-guide-freedom-information-act-0. 

I realize your letter referenced FOIA, specifically Exemption Four. Please be sure 

to follow the instructions above to ensure your information is protected.

If you have any questions, please contact NIGC Staff Attorney Mary ModrichAlvarado 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.