The Cherokee Code: Published by Order of the Tribal Council of the Eastern Band of Cherokee Indians

Chapter 16E - Comprehensive Ordinance Approving Tribal Casino Gaming Enterprise Financing

Sec. 16E-1. Authority of Principal Chief.

(a) The Principal Chief is hereby authorized and directed to execute and deliver the Tribal Agreement and any other Loan Document to which the Tribe is a party, on behalf of the Tribe, and to take such other steps and to execute and deliver such other documents that may be appropriate or required to implement the Loan Documents, and/or to accomplish, complete and provide for the continued development, construction, financing, refinancing and operation of the Permanent Casino and the addition thereto of the Hotel II Project.

(b) The Principal Chief is hereby further authorized and directed to take such additional steps on behalf of the Tribe as may be required to perform, implement, give effect to and administer the Tribal Agreement and any other Loan Documents to which the Tribe is a party and to complete the construction and equipping of the Hotel II Project as part of the Permanent Casino and open and commence operation of the Hotel II Project as part of the Permanent Casino, including without limitation, the forwarding of such of the Loan Documents or other documents related to the development of the Hotel II Project (as legal counsel for the Tribe or other parties to the Loan Documents may request) to the Bureau of Indian Affairs or to other regulatory authorities for regulatory review or approval and/or for confirmation that any regulatory approval is not required.

(Ord. No. 655, 4-13-2001; Ord. No. 914, § 3, 9-24-2001; Ord. No. 955, 9-11-2003)

Sec. 16E-2. Authority of TCGE Board.

(a) The TCGE Board of Advisors is hereby authorized and directed (i) to execute and deliver the Loan Agreement, Security Agreement and all other Loan Documents to which the TCGE is a party on behalf of the TCGE, with such changes as are deemed advisable and approved by the TCGE Board of Advisors, the execution by the TCGE being conclusive evidence of the necessity and approval of such changes (except that the maximum principal amount of the loan facilities under the Loan Agreement shall not be increased above $175,000,000, the five (5) year term of the loan facilities shall not be extended, the pricing grid for the calculation of interest shall not be modified to increase the effective interest rate for the loan facilities under the Loan Documents, no additional assets shall be pledged to secure the obligations under the Loan Documents, the limited waiver of sovereign immunity shall not be expanded or recourse rights of the Lenders expanded without the prior approval of the Tribal Council), (ii) to borrow the loans and issue letters of credit under the Loan Agreement and grant the security interest in the personal property assets of the TCGE under the Security Agreement, and (iii) to take such other steps and to execute and deliver such other documents that may be appropriate or required to implement the Loan Documents, and/or to accomplish, complete and provide for the refinancing and the financing, development, construction and operation of the Hotel II Project. Without limiting the foregoing, the Board of Advisors of the TCGE is hereby authorized and directed in connection with the execution and delivery of the Loan Documents to the Lenders to make, on behalf of the TCGE, as an instrumentality of the Tribe, the representations, warranties and agreements set forth in the Loan Documents.

(b) The TCGE Board of Advisors is hereby further authorized and directed (i) to take such additional steps as an instrumentality of the Tribe as may be required to perform, implement, give effect to and administer the Loan Documents to which the TCGE is a party including, without limitation, the execution and delivery of any necessary amendments or waivers to the Loan Documents as deemed advisable and approved by the TCGE Board of Advisors (except that the maximum principal amount of the loan facilities under the Loan Agreement shall not be increased above $175,000,000, the five (5) year term of the loan facilities shall not be extended, the pricing grid for the calculation of interest shall not be modified to increase the effective interest rate for the loan facilities under the Loan Documents, no additional assets shall be pledged to secure the obligations under the Loan Documents, the limited waiver of sovereign immunity shall not be expanded or recourse rights of the Lenders expanded without the prior approval of the Tribal Council) and (ii) to complete the development, construction and equipping of the Hotel II Project and open and commence operation of the Hotel II Project, including, without limitation, the execution and/or delivery of such agreements (as legal counsel for the TCGE or other parties to the Agreements may request) to the Bureau of Indian Affairs or to other regulatory authorities for regulatory review or approval and/or for confirmation that any regulatory approval is not required.

(c) Without limiting the foregoing, the TCGE Board of Advisors is hereby authorized and directed to execute and deliver as an instrumentality of the Tribe, the Security Agreement, one or more control agreements for the pledge of all deposits or other accounts of the TCGE and such other documents (collectively the "Security Documents") as necessary to create a perfected first priority security interest and first priority lien on the collateral described in the Security Agreement. It is acknowledged that the ownership and title to all personal property, whether now existing or hereafter acquired (including cash and revenues) of the Permanent Casino and the Hotel II Project as a part thereof is in the name of the TCGE, as an instrumentality of the Tribe; provided, however, that nothing herein shall affect the title to the real property, which includes all land, buildings, improvements or fixtures (the "Real Property") related to the Permanent Casino including the Hotel II Project or any Real Property related to other facilities that the Tribe authorizes to be a part of the Permanent Casino, which shall continue to be owned in the name of the Tribe with restrictions upon alienation imposed by the United States or in the name of the United States in trust for the Tribe and title to such Real Property shall always remain in trust status.

(Ord. No. 655, 4-13-2001; Ord. No. 914, § 3, 9-24-2001; Ord. No. 955, 9-11-2003)

Sec. 16E-3. Agreements are obligations of Tribal signatories.

(a) Upon the execution and delivery of the Loan Documents as authorized by this Comprehensive Ordinance, the Loan Agreement, Security Agreement, the Tribal Agreement and the other Loan Documents are under the laws of the Tribe, legal, valid and binding obligations of the TCGE and/or the Tribe (collectively the "Tribal Signatories") who are parties thereto, enforceable against the Tribal Signatories in accordance with their terms including the waiver of sovereign immunity, consent to jurisdiction and arbitration provisions in sections 10.25 of the Loan Agreement, sections 5.7 of the Tribal Agreement and sections 11.11 of the Security Agreement and limited recourse provision as set forth in section 10.33 of the Loan Agreement, section 5.19 of the Tribal Agreement and section 11.13 of the Security Agreement, notwithstanding any contrary provision of Tribal law, except as otherwise provided in paragraph (f) below.

(b) Upon the execution and delivery of the Loan Documents as authorized by this Comprehensive Ordinance, the Administrative Agent, for the benefit of the Lenders under the Security Agreement shall have under the laws of the Tribe a valid and perfected first priority security interest in and lien on all collateral described in the Security Agreement superior to the claim of any other creditor of the TCGE, or of the Tribe, whether such creditor is the Tribe itself, the TCGE, any other instrumentality or agency of the Tribe, or anyone else.

(c) No permits, licenses or other governmental approvals, or renewals thereof, are required to be issued by the Tribe or any agency of the Tribe for or in connection with the Loan Documents or the development, construction, and operation of the Permanent Casino or the Hotel II Project to become a part thereof, except for permits, licenses and governmental approvals, and renewals thereof, which have already been issued or which are not required as of the date hereof for the Hotel II Project.

(d) No Indian Traders License is required to be issued under Tribal law or under the Indian Trader's Licensing Act, 25 U.S.C. 261-254 and accompanying regulations, for any party in connection with the closing and performance of the transactions contemplated by the Loan Documents.

(e) The provisions of this Ordinance shall control and take precedence over any contrary provisions of any ordinance, resolution or other law of the Tribe or adopted on behalf of the Tribe, or by any agent, corporation, enterprise or instrumentality of the Tribe.

(f) Nothing contained herein shall have the effect of making any term contained in the Loan Documents enforceable if such term is otherwise unenforceable under the laws of the state whose laws are designated as governing pursuant to the terms of such Loan Documents. Further, this Ordinance shall not have the effect of waiving nor shall it be construed as waiving any defense to the enforceability of any term of the Loan Documents which, absent this Ordinance, would be available to the parties to the Loan Documents under the laws of the state whose laws are designated as governing pursuant to the terms of such Loan Documents. Any such defense is hereby specifically retained.

(Ord. No. 655, 4-13-2001; Ord. No. 914, § 3, 9-24-2001; Ord. No. 955, 9-11-2003)

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