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December 21, 2021

VIA EMAIL

Cody J. Martinez, Chairman

Sycuan Band of the Kumeyaay Nation

2 Kwaaypaay Court 

El Cajon, CA 92019

Re: Review of Loan Documents between Bank of America & 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 Loan 

Documents”) submitted, all of which are unexecuted but represented to be in substantially final

form:

• Amended and Restated Credit Agreement (Sycuan), marked in lower left-and corner

“SMRH:4820-8768-8700.8”;

• Exhibits to Amended and Restated Credit Agreement (Sycuan 2021), marked in

lowerleft-hand corner “SMRH 4884-6844-3649.2”;

• Bank of America Revolving Note, marked in lower left-hand corner “SMRH: 4860-

1570-3044.2”;

• Umpqua Revolving Note, marked in lower left-hand corner “SMRH: 4893-6242-

9188.2”;

• Bank of America Term Note, marked in lower left-hand corner “SMRH: 4887-

1611-3924.2”;

• Umpqua Term Note, marked in lower left-hand corner “SMRH: 4869-0974-

4644.2”;

• Amended and Restated Security and Pledge Agreement (Sycuan 2021), marked in

lowerleft hand corner “SMRH: 4846-5661-0558.2”;
Letter to Cody J. Martinez, Chairman 

Re: Review of Loan Documents between Bank of America & the

Sycuan Band of the Kumeyaay Nation

December 21, 2021

Page |2

• Copyright Security Agreement (Sycuan 2021), “marked in lower left-hand corner

SMRH:4892-6443-9041.2”;

• Trademark Security Agreement ;(Sycuan 2021), marked in lower left-hand corner

“SMRH: 4876-2518-9633.2”;

• Patent Security Agreement (Sycuan 2021), marked in lower left-hand corner 

“SMRH:4883-9628-6209.2”;

• Non-Recourse Agreement - Sycuan 2021 (Umpqua - Tax Revenue Financing),

marked inlower left-hand corner “SMRH: 4895-5773-5426.3”;

• Non-Recourse Agreement - Sycuan 2021 (Pinnacle Bank Financing) marked in 

lowerleft-hand corner “SMRH:4884-0514-9699.3”;

• Umpqua DACA - Sycuan (2021 BofA Amended and Restated Credit Agreement),

marked in lower left-hand corner “SMRH 4880-2776-0386.2”; and

• 2021 11-18 NIGC Transmission Letter – Sycuan.

The Loan Documents contain terms similar to other agreements the Office of General 

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

analysis here, it is my opinion that collectively the Loan Documents 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 Loan Documents 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 Loan Documents listed above. This opinion does

not include or extend to any other agreements or documents 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 

 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).
Letter to Cody J. Martinez, Chairman 

Re: Review of Loan Documents between Bank of America & the

Sycuan Band of the Kumeyaay Nation

December 21, 2021

Page |3

time elapses, the 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 

https://www.justice.gov/oip/doj-guide-freedom-information-act-0. 

If you have any questions, please contact NIGC Senior Attorney Maria Getoff at

(703) 338-7748.

Sincerely,

 

Michael Hoenig

General Counsel

cc: Mark Radoff, Esq.

 5 Id.