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A RESOLUTION EXPRESSLY WAIVING THE SOVEREIGN IMMUNITY OF THE CHEROKEE NATION AND OF CHEROKEE NATION HOME HEALTH SERVICES TO THE EXTENT IT MAY EXIST, AS IT APPLIES TO THE ARVEST AND CHEROKEE NATION HOME HEALTH SERVICES LOAN AGREEMENT
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WHEREAS, the Cherokee Nation since time immemorial has exercised the sovereign rights of self-government in behalf of the Cherokee people;
WHEREAS, the Cherokee Nation is a federally recognized Indian Nation with a historic and continual government to government relationship with the United States of America;
WHEREAS, the Council of the Cherokee Nation hereby authorizes the Principal Chief of the Cherokee Nation to expressly waive its sovereign immunity from suit, as articulated below, with respect to any breach of contract, action for indebtedness, foreclosure and execution, deficiency, action for damages or action in mandamus or other proceedings in law or in equity, including rights of appeal, to compel the Cherokee Nation to perform the obligation, covenants and agreements undertaken in the Loan Documents, or any other document executed and delivered by the Cherokee Nation in connection with consummating the loan transactions contemplated in the Loan Documents, with respect to any action against the Cherokee Nation and/or Cherokee Nation Home Health Services. The Nation hereby expressly and irrevocably waives it sovereign immunity (and any defenses based thereon) for only the following remedies as provided by the Nation's Uniform Commercial Code or the Federal Commercial Code if the Nation has no applicable provision: specific performance, money damages for breach not exceeding the face amount of the contract, and/or replevin or attachment in aid of execution. The Nation expressly consents to the exercise of jurisdiction over such actions and over the Nation by the District Court of the Cherokee Nation, or to the extent such jurisdiction is not applicable, by the federal courts located in Oklahoma where venue is proper, and/or appellate courts. Provided, however, that such waiver shall not include any other damages, nor attorney fees and costs. Original actions authorized under this limited waiver of sovereign immunity may be adjudicated in, at the sole and exclusive election of Arvest, and with each party hereby consenting to the jurisdiction and venue of, the District Court of the Cherokee Nation, and federal district court located within the State of Oklahoma where venue is proper, and any appellate courts therefrom; arbitration conducted in accordance with the procedural rules of the federal arbitration Act (Title 9, U.S. Code) and the regulations promulgated thereunder, and under the commercial rules of the American Arbitration Association, and in any federal district court located within the State of Oklahoma where venue is proper for enforcement of any resulting arbitration award, and any appellate courts therefrom;
WHEREAS, the Loan Documents shall be governed by general contract laws principles and commercial law as adopted in, and by the laws of, the Cherokee Nation, or if the Cherokee Nation has no applicable provision, the United States of America, and to the extent required, by the laws of the jurisdiction where the Property is located, except to the extent that state laws are not applicable;
WHEREAS, it is understood that, in the unlikely event of default, Arvest, at its sole and exclusive option, may elect to pursue remedies directly against the Cherokee Nation, without first exhausting its potential remedies against Cherokee Nation Home Health Services, except that Arvest expressly agrees not to invoke any rights, remedies, or collection actions against the Cherokee Nation unless and until Cherokee Nation Home Health Services is three months in arrears on any payment due. This waiver shall not be deemed to authorize the recovery of incidental, consequential, exemplary or punitive damages, lost profits, or any action against any elected officials, officers or employees of the Cherokee Nation;
WHEREAS, the provisions of the waiver are severable and shall not be merged into any termination or expiration of any agreement, judgment or award entered in connection with any dispute without the obligations, covenant and agreements contained in the Loan Documents being fully satisfied. If any part of this waiver is held to be unenforceable, it shall be severed and shall not affect any other part of this waiver;
WHEREAS, the waiver of sovereign immunity contained herein shall not be repealed, rescinded or modified in any manner until the obligations, covenants and agreements contained in the Loan Documents are fully satisfied;
WHEREAS, the signature of the officers of the Cherokee Nation appearing on the Loan Documents, and other agreements, documents, closing papers and certificates executed and delivered pursuant to this Resolution, shall be conclusive evidence of their authority to execute and deliver such agreement and documents on behalf of the Cherokee Nation.
BE IT RESOLVED BY THE CHEROKEE NATION, that the Principal Chief is authorized to waive the sovereign immunity of the Cherokee Nation and of Cherokee Nation Home Health Services, to the extent it may exist, as it applies to the Arvest and Cherokee Nation Home Health Services loan agreements and that Arvest shall not seek recovery of incidental, consequential, exemplary or punitive damages, lost profits or any action against any Cherokee Nation elected official, officer or employees.