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A RESOLUTION AUTHORIZING CERTAIN LENDING TRANSACTIONS INVOLVING CHEROKEE NATION BUSINESSES, L.L.C., A CHEROKEE NATION TRIBAL LIMITED LIABILITY COMPANY, AND AUTHORIZING A LIMITED WAIVER OF SOVEREIGN IMMUNITY
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WHEREAS, the Cherokee Nation since time immemorial has exercised the sovereign rights of self-government on behalf of the Cherokee people; and
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; and
WHEREAS, Cherokee Nation Businesses, L.L.C. (“CNB”) is a for-profit limited liability company organized under the laws of the Cherokee Nation, is wholly owned by the Cherokee Nation and enjoys sovereign immunity from suit under federal law; and
WHEREAS, Cherokee Nation Entertainment, L.L.C. (“CNE”) is a for-profit limited liability company organized under the laws of the Cherokee Nation, is wholly-owned by CNB and enjoys sovereign immunity from suit under federal law; and
WHEREAS, in 2013, (i) CNB obtained a five-year credit facility from BOKF, NA dba Bank of Oklahoma (“BOK”) in the original amount of $100,000,000 in accordance with the credit agreement relating thereto (the “Credit Agreement”), (ii) CNE and its subsidiaries guaranteed the loan, (iii) CNB, CNE, and CNE’s subsidiaries pledged certain of their assets relating to gaming and entertainment operations, and (iv) the Cherokee Nation entered into a Non-Interference Agreement and provided limited waivers of sovereign immunity to allow BOK to enforce the transaction parties’ obligations with respect to the credit facility and to enforce the Cherokee Nation's obligations with respect to the Non-Interference Agreement; and
WHEREAS, in 2017, (i) the parties increased the amount of credit available under the Credit Agreement from $100,000,000 to $150,000,000 and extended the maturity date, (ii) the guarantees, the asset pledges and the Non-Interference Agreement were ratified and confirmed, and (iii) the Cherokee Nation provided an updated limited waiver of sovereign immunity; and
WHEREAS, in 2019, (i) the parties increased the amount of credit available under the Credit Agreement from $150,000,000 to $300,000,000 and extended the maturity date, (ii) the guarantees, the asset pledges and the Non-Interference Agreement were ratified and confirmed, and (iii) the Cherokee Nation provided an updated limited waiver of sovereign immunity; and
WHEREAS, in 2022, (i) the parties amended and restated the Credit Agreement (the “Amended/Restated Credit Agreement”) to, among other things, increase the amount of credit available under the Credit Agreement from $300,000,000 to $650,000,000, consisting of a $400,000,000 Revolving Credit Facility and a $250,000,000 Delayed Draw Term Loan, plus an additional Accordion allowing the parties to increase the Revolver by an amount of up to $200,000,000, (ii) extended the maturity date further, (iii) the guarantees, the asset pledges and the Non-Interference Agreement were ratified and confirmed, (iv) various other Loan Documents and other documents were executed and delivered to BOK (on behalf of the lenders) in connection therewith or required thereby, and (v) the Cherokee Nation provided an updated limited waiver of sovereign immunity; and
WHEREAS, the parties to the transactions desire to amend and restate the Amended/Restated Credit Agreement (the “Second Amended/Restated Credit Agreement”) to, among other things, (i) increase the aggregate Commitments from $650,000,000 to $1,000,000,000 in the form of a Revolving Credit Facility, and terminate the Accordion and Delayed Draw Term Loan, (ii) extend the maturity date further, (iii) have the guarantees ratified and confirmed, (iv) have the asset pledges and the Non-Interference Agreement amended and restated, (v) have various other Loan Documents and other documents, agreements, instruments, amendments and certificates related thereto executed and delivered to BOK (on behalf of the lenders) in connection therewith or required thereby, including, but not limited to, replacement promissory notes, equity pledge agreements, account control agreements, security agreements, applications for letters of credit, letters of credit, and derivative transaction agreements, and (vi) have the Cherokee Nation provide an updated limited waiver of sovereign immunity.
BE IT RESOLVED BY THE CHEROKEE NATION, that the Council of the Cherokee Nation hereby authorizes the increase of the amount of credit available under the Credit Agreement to $1,000,000,000 as set forth above and the extension of the maturity date, and authorizes the ratification and confirmation of the guarantees, the amendment and restatement of various asset pledges and the Non-Interference Agreement, and the execution and delivery of all other Loan Documents, all on terms and conditions to be negotiated by the authorized officers of CNB, CNE, and CNE’s subsidiaries and/or the Principal Chief; and
BE IT FURTHER RESOLVED BY THE CHEROKEE NATION, that the Council of the Cherokee Nation hereby authorizes the Principal Chief and/or his or her designee to negotiate as necessary and to expressly waive the sovereign immunity and jurisdiction of the transaction parties as they apply to the loan transactions, the governing law, waiver of jury trial and consent to jurisdiction provisions of the transaction parties as they apply to the loan transactions and of the Cherokee Nation as they apply to the amended and restated Non-Interference Agreement and any other documents, certificates and instruments which relate to the Second Amended/Restated Credit Agreement and to which the Cherokee Nation is a party; and
BE IT FINALLY RESOLVED BY THE CHEROKEE NATION, that the Cherokee Nation determines that the limited waiver of sovereign immunity described above and in the financing documents meets all requirements of the governing laws, rules and regulations of the Cherokee Nation and conform in all respects to the laws of the Nation; and
BE IT FINALLY RESOLVED BY THE CHEROKEE NATION, that the transactions contemplated by the Second Amended/Restated Credit Agreement, including but not limited to the incurrence of liabilities and other obligations under the credit facilities, be, and each hereby is, approved, authorized and confirmed by the Cherokee Nation; and
BE IT FINALLY RESOLVED BY THE CHEROKEE NATION, that upon the execution and delivery of the Non-Interference Agreement to which the Cherokee Nation is a party, together with any amendments or modifications thereto and other instruments or other documents delivered in connection with the credit facilities to which the Cherokee Nation is a party, they shall be the valid and binding obligations of the Cherokee Nation enforceable in accordance with their respective terms; and
BE IT FINALLY RESOLVED BY THE CHEROKEE NATION, that this Resolution shall become effective as of the date and time of its passage and approval by the Cherokee Nation; and
BE IT FINALLY RESOLVED BY THE CHEROKEE NATION, that this Resolution shall in no manner or in any respect operate or be construed to operate to waive or otherwise diminish the sovereign immunity of the Cherokee Nation, except as to allow certain actions against the transaction parties and the Cherokee Nation as provided herein and in the applicable loan documents.