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August 20, 2020

VIA EMAIL

Mr. Matt Wesaw, Chairman

Pokagon Band of Potawatomi Indians

58620 Sink Road

P.O. Box 180

Dowagiac, MI 49047

Re: Review of Amendments to Loan Documents for Pokagon Gaming Authority

Dear Mr. Wesaw:

This letter responds to your August 11, 2020 request for the National Indian Gaming 

Commission’s Office of General Counsel to review a limited waiver in connection to its loan 

agreement between the Pokagon Gaming Authority and its lenders and Bank of America, as 

administrative agent. 

Specifically, you have asked for my opinion whether the amendments to the credit 

agreement constitute a management contract or whether the amendments impact the prior 

declination letters for the credit agreement that would require the NIGC Chair’s approval under 

the Indian Gaming Regulatory Act (IGRA). You also asked for my opinion whether the 

amendments violates IGRA’s requirement that the Tribe have the sole proprietary interest in its 

gaming activity.

In my review, I considered the Second Amendment to Credit Agreement (marked as 

“SMRH:4817-7218-9636.5” in the footer, and “SMRH 08-05-20” in the header), which included 

the following attachments:

• A redline of the conformed copy of the Credit Agreement (marked as “SMRH 4832-

5782-4964.3” in the footer);

• Exhibit A – Compliance Certificate (labeled as Exhibit D marked as “SMRH:4838-3390-

6373.3” in the footer);

• Exhibit B – Distribution Certificate (labeled as Exhibit M marked as “SMRH:4850-9023-

2005.2” in the footer); and

• Exhibit C – Joinder Agreement (labeled as Exhibit N marked as “SMRH:4846-5710-

2789.1” in the footer).

The amendments are unexecuted, but represented to be in substantially final form.
Mr. Matt Wesaw, Chairman

Re: Review of Amendments to Loan Documents for Pokagon Gaming Authority

August 20, 2020

Page 2 of 2

The amendments contain terms similar to other agreements the Office of General Counsel 

has already reviewed and analyzed, which are available on the NIGC’s website. Applying the 

same analysis here, it is my opinion that the amendments do not constitute a management 

contract and does not require the approval of the NIGC Chair. It is also my opinion that the 

amendments do not violate IGRA’s sole proprietary interest requirement.

It is my understanding that the draft is represented to be in substantially final form, and if 

the amendments change in any material way prior to execution or are inconsistent with 

assumptions made herein, this opinion shall not apply. Further, this opinion is limited to the 

documents listed above. This opinion 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 

explaining the grounds for the objection and highlighting the information that 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 any withholding should be analyzed under 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, the letter will be made public and objections will no longer be considered.5

If you have any questions, please contact Joshua Proper at (202) 632-0294 or 

joshua_proper@nigc.gov. 

Sincerely, 

Michael Hoenig

General Counsel

cc: Michael Phelan, General Counsel, mike.phelan@pokagoband.nsn

 1 See 25 C.F.R. § 517.7(c). 2 5 U.S.C. § 552(b)(4).

3 139 S. Ct. 2356 (2019).

4 See 25 C.F.R. § 517.7(d). 5 Id.