**Exhibit3.1**

 

**SIXTH AMENDED ANDRESTATED CHARTER OF THE SENECA GAMING CORPORATION**

 

**WHEREAS**, Section I of theConstitution of the Seneca Nation of Indians of 1848, as amended, vests theLegislative Authority of the Seneca People in the Nation’s Tribal Council; and

 

**WHEREAS**, it is declared the policyof the Nation to promote the welfare and prosperity of its members and toactively promote, attract, encourage and develop economically sound commerceand industry through governmental action for the purpose of preventingunemployment and economic stagnation; and

 

**WHEREAS**, the Gaming industry isvitally important to the economy of the Nation and the general welfare of itsmembers; and

 

**WHEREAS**, the ability of the Nationto finance, develop, construct, operate, and maintain certain Nation GamingFacilities will be enhanced by the creation of a separate entity for suchpurposes, and the Company created by this Charter will be able to perform thesefunctions, and, accordingly, will be of benefit to the Nation and its members;and

 

**WHEREAS**, on August 1, 2002,the Nation’s Council granted a Charter to create, appoint and constitute theSENECA GAMING CORPORATION, which Charter has been previously amended andrestated; and

 

**WHEREAS**, the need now arises toamend and restate the Fifth Amended and Restated Charter of the SENECA GAMINGCORPORATION.

 

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**NOW,THEREFORE**, the Nation’s Council, pursuant to itsconstitutional authority, does hereby grant this Sixth Amended and RestatedCharter to re-create, re-appoint and re-constitute the SENECA GAMINGCORPORATION.

 

**1.****            ****Creation ofSeneca Gaming Corporation and Principal Place of Business**

 

Bythis Charter, the Nation creates the Seneca Gaming Corporation (the “Company”).The Company shall have its principal place of business at the William SenecaAdministration Building, 1490 Route 438, Cattaraugus Reservation, Irving, NewYork 14081, or at such other location within the Nation’s territories that theBoard of Directors of the Company shall determine.

 

**2.****            ****Purpose**

 

The Company is organized for the purpose of developing, constructing,owning, leasing, operating, managing, maintaining, promoting and financingNation Gaming Facilities and engaging in any other lawful activity, subject toany limitations imposed by any contract, indenture or other instrument by whichthe Company is bound. The Nation intends that the Company shall assume allobligations, responsibilities and duties of the Nation under gaming lawexisting at the date of enactment of this Charter, with the sole exception of thepower of gaming regulation, gaming licensing and enforcement of applicable law,which powers are reserved to the Nation.

 

**3.****            ****Relation toNation**

 

a.             TheCompany shall constitute a governmental instrumentality of the Nation,

 

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having autonomous existence separate and distinct fromthe Nation.

 

b.             Forpurposes of civil jurisdiction, regulatory jurisdiction and taxation, theCompany shall be deemed a subordinate arm of the Nation and shall be entitledto all of the privileges and immunities of the nation.

 

c.             TheCompany shall have no power to exercise any regulatory or legislative power;the Nation reserves from the Company all regulatory, legislative and othergovernmental power, including, but not limited to the power to grant, issue,revoke, suspend or deny licenses, conduct background investigations, and enactlegislation regulating Gaming on the territories of the Nation.

 

**4.****            ****Definitions**

 

For purposes of this Charter, whencapitalized, the following terms shall have the meanings respectively specified—

 

a.             “Boardof Directors” shall mean the Board of Directors of the Company created by thisCharter.

 

b.             “Compact”shall mean the “Nation-State Gaming Compact Between The Seneca Nation ofIndians And The State Of New York.”

 

c.             “Company”shall mean the Seneca Gaming Corporation, created by this Charter.

 

d.             “Councillors”shall mean the duly elected Councillors of the Nation.

 

e.             “Council”shall mean the legislative elected body of the Nation.

 

f.              “Felony”shall mean only those offenses set forth under the Indian Major Crimes Act (18U.S.C. § 1153).

 

g.             “Gaming”shall mean to deal, operate, carry on, conduct, maintain or expose for

 

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play any gaming as contemplated in the Seneca Nationof Indians Class III Gaming Ordinance of 2002 or the Indian GamingRegulatory Act.

 

h.             “ManagementContract” shall mean any contract, subcontract or collateral agreement betweenthe Company and a contractor or a contractor and a subcontractor if suchcontract or agreement provides for the management of all or a part of a NationGaming Facility.

 

i.              “Nation”shall mean the Seneca Nation of Indians, a sovereign nation.

 

j.              “NationEntity” shall mean any entity created or owned by the Nation for economic orgovernmental purposes and any entity which is controlled by the Council. Anentity shall be deemed controlled by the Council if a majority of personsserving on the body which governs the entity are chosen by or are required tobe Councillors.

 

k.             “NationGaming Facility” shall mean any existing and future establishment of the Nation(i) upon which Gaming takes place, (ii) which is authorized andlicensed under applicable law, and (iii) which the Council designates forownership, lease, development, construction, operation or management by theCompany, including without limitation any Class III Gaming facilitiesestablished in accordance with the Compact.

 

l.              “Obligations”shall mean any notes, bonds, interim certificates, debentures or otherevidences of indebtedness issued by the Company under this Charter.

 

m.            “Obligee”shall mean any holder of an Obligation, and any agent or trustee for any holderof any Obligation.

 

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**5.****            ****Assets ofCompany**

 

TheCompany shall have only those assets of the Nation formally assigned or leasedto it by the Council or by a Nation Entity, together with whatever assets itacquires by other means as provided in this Charter. No activity of the Companynor any indebtedness incurred by it shall encumber, implicate or in any wayinvolve assets of the Nation or another Nation Entity not assigned or leased inwriting to the Company.

 

**6.****            ****PerpetualSuccession**

 

The Company shall have perpetual succession in its corporate name, provided,that the Council shall review the Company’s operations at least every ten (10) yearsto assess whether the Company continues to serve the interests of the Nationand its people.

 

**7.****            ****Ability toSue and Be Sued**

 

a.             TheCouncil hereby gives its consent to allowing the Company, by resolution dulyadopted by the Board of Directors, to sue and to be sued in its corporate name,upon, or to submit to arbitration or alternative dispute resolution anycontroversy arising under, any contract, claim or obligation arising out of itsactivities under this Charter, provided, that such resolution shall be subjectto the approval of Council. The Council also authorizes the Company, byresolution duly adopted by the Board of Directors, to agree by contract towaive its immunity from suit, provided that such waiver shall be subject to theapproval of Council. Notwithstanding the foregoing, the Nation shall not beliable for the debts or obligations of the Company and the Company shall haveno power to pledge or encumber the assets of the Nation. This action does notconstitute a waiver of any immunity of the Nation or a delegation to theCompany of the power to make

 

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such a waiver. The Company’s ability to sue and besued and to waive its immunity from suit shall at all times remain with theBoard of Directors to be granted by duly adopted resolution subject to theapproval of Council.

 

b.             TheCompany, by resolution duly adopted by the Board of Directors and approved bythe Council, shall have the authority to consent (i) to the exercise ofjurisdiction over any suit or over the Company by the courts of any state, thefederal courts, the courts of the Nation or any other Indian Nation, or thecourts of any United States territory or foreign jurisdiction, and (ii) toarbitration or alternative dispute resolution. Such authority shall at alltimes remain with the Board of Directors to be granted by duly adoptedresolution subject to the approval of Council.

 

c.             Exceptas expressly provided in this section, the Nation by the adoption of thisCharter and the establishment of the Company is not waiving its sovereignimmunity in any respect or consenting to the jurisdiction of any court. Thissection shall be strictly construed with a view toward protecting Nation assetsfrom the reach of creditors and others.

 

**8.****            ****Powers ofCompany**

 

a.             Itis the purpose and intent of this Charter to authorize the Company to do anyand all things necessary or desirable in connection with the financing,development, construction, ownership, lease, operation, management,maintenance, and promotion of Nation Gaming Facilities, or in connection withany other authorized activities conducted by the Company, and to secure thefinancing and

 

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assistance necessary for such activities.

 

b.             EachNation Gaming Facility shall be operated by the Company as provided in thisCharter.

 

c.             Subjectto the limitations set forth in this Charter and Nation law, the Board ofDirectors shall manage and have complete control over the conduct of Companyaffairs and shall have the full power to act for and bind the Company. Suchauthority shall be exercised pursuant to the bylaws of the Company and, whereappropriate, by duly adopted resolution.

 

d.             Subjectto the limitations set forth in this Charter and Nation law, the Company, byand through the Board of Directors acting on behalf of the Company, shall havethe following powers which it may exercise consistent with the purposes forwhich the Company was established:

 

i.              to develop,construct, own, lease, mortgage, operate, manage, promote and finance NationGaming Facilities, including expansions and enlargements thereof, including thepower to enter into leases and leasehold mortgages, provided, that prior toengaging in any of the activities authorized by this subsection that require asignificant expenditure of Company resources that the Company submit acomprehensive business plan to Council for its review and approval;

 

ii.             if the Board of Directors determines it to be in thebest interests of the Company and the Nation, to terminate the operation of anyNation Gaming Facility and to dispose of, demolish or abandon any facilitiesrelating thereto, subject to the approval of Council;

 

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iii.            to have a corporate seal, and alter the seal, anduse it by causing it or a facsimile to be affixed, impressed or reproduced inany other manner;

 

iv.            to adopt, amend or repeal bylaws, includingemergency bylaws, relating to the business of the Company, the conduct of itsaffairs, its rights and powers and powers of its Board of Directors andofficers, subject to the review and approval of Council as provided in thisCharter;

 

v.             to elect orappoint officers, employees or other agents of the Company, prescribe theirduties and fix their compensation, and indemnify members, officers, employeesand agents;

 

vi.            to enter into, make, perform and carry out, canceland rescind contracts, agreements and understandings for any lawful purposepertaining to its business with any Nation, federal, state or localgovernmental agency or with any person, partnership, limited partnership,corporation, limited liability company, Indian Nation, Nation Entity, or otherentity, provided, that any such contracts, agreements or understandings withany government or governmental agency or entity shall be subject to theapproval of Council;

 

vii.           to enter into, make, perform and carry out, canceland rescind any Management Contract, subject to the approval of Council;

 

viii.          to lease property from the Nation, a Nation Entityor others for such periods as are authorized by law, and to hold, mortgage,manage or sublease the same; provided, however, that nothing herein shall beconstrued to include, and the Company shall not have, any power to grant 

 

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orpermit or purport to grant or permit any right, lien, encumbrance or interestin or on any real property within Nation territories unless pursuant to alease, authorized and approved by the Council;

 

ix.            to give guarantees and incur liabilities, providedthat significant guarantees or liabilities shall be subject to the approval ofCouncil;

 

x.             to lend moneyto any subsidiary corporation subject to the approval of Council, invest andreinvest funds, and take and hold the Company’s real and personal property assecurity for the payment of funds so loaned or invested;

 

xi.            subject to the provisions of this Charter, to obtainfinancing and refinancing, to borrow money at rates of interest as the Companymay determine, to issue temporary or long term indebtedness and to repay thesame;

 

xii.           subject to the provisions of this Charter, tomortgage or pledge assets and receipts of the Company as security for debts;

 

xiii.          to agree to any conditions attached to federal,state or local financial assistance;

 

xiv.          to purchase, receive, take by grant, devise, bequestor otherwise, lease or otherwise acquire, own, hold, improve, employ, use, andotherwise enjoy all powers necessary or appropriate to deal in and with, realand personal property, or an interest in real or personal property, whereversituated; provided, that purchases of real property and significantexpenditures of personal property shall be subject to the approval of Council;

 

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xv.                               subject to theprovisions of this Charter, to sell, convey, lease, exchange, transfer orotherwise dispose of, or mortgage or pledge, or create a security interest inany of its property or an interest in its property, wherever situated;provided, however, that nothing herein shall be construed to include, and theCompany shall not have, any power to grant or permit or purport to grant orpermit any right, lien, encumbrance or interest in or on any real propertywithin the Nation unless pursuant to a lease, authorized and approved by theCouncil;

 

xvi.                            to purchase,take, receive, subscribe for, or otherwise acquire, own, hold, vote, employ,sell, lend, lease, exchange, transfer or otherwise dispose of, pledge, use andotherwise deal in and with, bonds and other obligations, shares or othersecurities or interests issued by others, whether engaged in similar ordifferent business, governmental, or other activities, including bankingcorporations and trust companies, subject to the approval of Council;

 

xvii.                         to employcontractors, consultants, attorneys and accountants, provided that the Companyshall not engage in any efforts to politically influence any Indian nation,federal, state, or local government or their officials;

 

xviii.                      to employ,discipline and discharge employees and establish personnel policies and termsand conditions of employment;

 

xix.                              to undertakeand carry out studies and analyses of existing and potential Nation GamingFacilities;

 

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xx.                               to establishprocedures for resolving disputes between the Gaming public and the NationGaming Facility or any management contractor, and to establish and implementany such procedures that may be required to be established and implemented withrespect to operation of the Nation Gaming Facility in accordance with theCompact or applicable law;

 

xxi.                            to purchaseinsurance from any stock or mutual company for any property or against any riskor hazards;

 

xxii.                         to establishand maintain such bank accounts as may be necessary or convenient;

 

xxiii.                      to participatewith others in any corporation, partnership, limited partnership, limitedliability company, or other association of any kind, or in any transaction,undertaking, or agreement which the Company would have power to conduct byitself, subject to the approval of Council;

 

xxiv.                     subject to the provisions ofthis Charter, to allow the Company to sue and be sued in its corporate name,upon any contract, claim or obligation arising out of its activities under thisCharter and to agree by contract to waive its immunity from suit;

 

xxv.                          subject to theprovisions of this Charter, to consent to the exercise of jurisdiction over anysuit or over the Company by the courts of any state, the federal courts, the courtsof the Nation or any other Indian Nation, or the courts of any United Statesterritory or foreign jurisdiction, or to arbitration or alternative disputeresolution;

 

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xxvi.                       to utilize,with the consent of the President of the Nation, the agents, employees andfacilities of the Nation for in-kind services, paying the Nation mutuallyagreed upon share of the costs for said in-kind services;

 

xxvii.                    to act as, and to exerciseall rights and perform all obligations of, the “Nation Gaming Operation” assuch entity is defined in the Compact;

 

xxviii.                 to take such furtherspecific actions as the Board of Directors may deem necessary to effectuate anyor all of the purposes for which the Company is organized;

 

xxix.                         to enjoy thesovereign immunity of the Nation, to the same extent as the Nation, providedthat the actions of the Company or any of its officials, employees, or dulyauthorized agents are authorized by the provisions of this Charter; and

 

xxx.                            upon thedirection of the Council, to exercise any or all of the foregoing powersthrough the control, operation and management of any subsidiary company orother entity created by or under authority of the Nation for the purpose ofdeveloping, financing, operating and conducting the business of any one or moreNation Gaming Facility; provided, however, that any such subsidiary company orother entity shall be  operated andmanaged in accordance with and in fulfillment of the purposes set forth in thisCharter and any charter or other enabling authority governing such subsidiarycompany or other entity.

 

**9.****                                     ****Management of the Company**

 

a.                                       There is hereby established a Board of Directors of theCompany, the purpose of

 

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which is to carry out the duties and powers of theCompany as set forth in this Charter.

 

b.                                      There shall be no less than four (4) nor more than seven(7) members of the Board, not less than five (5) of whom shall beenrolled Senecas.  No elected official ofthe Nation may serve on the Board, nor any Company employee or any person withan economic interest in any of the Company’s activities.  Board members shall constitute “publicofficials” for purposes of the Nation Ethics Law.

 

c.                                       The Council shall appoint Board members.  The Clerk of the Nation shall give publicnotice of Board vacancies on or before February 1 of each year.  The Clerk shall receive candidateapplications and certify to the Council that all candidate qualifications setforth in subsection 9(b) have been met and that each candidate hascertified that the candidate meets each of the additional criteria set forth insubsections 9(d)(i) and (d)(ii). Upon certification, the Clerk shallnotify the Councillors and coordinate with the Council Administrator aninterview for each eligible candidate at least seven (7) days prior to hisor her scheduled appointment.  Vacanciesshall be filled by Council appointment following at least thirty (30) dayspublic notice of said vacancy, unless in the event of an emergency.  An appointment of a Board member shall takeeffect from the date and time at which the Council adopts the resolutionauthorizing such appointment.

 

d.                                      Any Board candidate shall be eligible to serve as a member ofthe Board only if the following additional criteria are satisfied:

 

(i)                                     is at least 21 years old,

 

(ii)                                  has earned a high schooldiploma or equivalent,

 

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(iii)                             has not beenconvicted of a felony,

 

(iv)                              has beencertified by the Seneca Gaming Authority as having met the substantivestandards necessary to obtain a license from the Authority if such candidatewere a “Class III Gaming Key Employee,” as that term is used in the Nation’sClass III Gaming Ordinance.

 

TheCouncil shall appoint at least one (1) board member who shall (i) possessa Master of Business Administration or Juris Doctorate degree, or (ii) bea Certified Public Accountant, or (iii) have at least ten (10) yearsexperience as a senior manager or board member of a publicly held gamingcorporation.

 

e.                                       Board members shall serve for a term of three (3) yearsand until his or her successor has been appointed or until his or her earlierdeath, resignation, or removal.  Directorterms commence and expire as of the date of the annual meeting of a given year.

 

f.                                         Board members have a fiduciary duty to the Company, includingduties of care, loyalty and obedience. In simple terms this means that they are required to act reasonably,prudently and in the best interests of the Company, to avoid negligence orfraud, and to avoid conflicts of interest. In the event that the duties of care, loyalty and/or obedience arebreached, the person breaching the duty is potentially liable to the Companyfor any damages caused as a result of the breach.

 

1. The duty of care is very broad, requiring officers and directors toexercise ordinary and reasonable care in the performance of their duties,exhibiting honesty and good faith. Officers and directors must act in a manner

 

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which they believe to be in the best interests of theCompany, and with such care, including reasonable inquiry, as an ordinarilyprudent person in a like position would use under similar circumstances.

 

2. The duty of loyalty encompasses a duty to avoid conflicts of interestsand to provide undivided allegiance to the Company’s mission.  A conflict may exist when an officer ordirector participates in the deliberation and resolution of an issue importantto the Company while the individual, at the same time, has other professional,business or volunteer responsibilities outside of the Company that couldpredispose or bias the individual one way or another regarding the issue.  In these situations, it is typically not enoughfor the individual to be aware of the conflict and to attempt to act in theCompany’s best interests despite the conflict. Rather, for many conflicts, full disclosure to the Board and refrainingfrom participation in the Board’s deliberation and resolution of the issue(i.e., recusal) are required to remedy the conflict.  For serious, visible, and continuing orpervasive conflicts, withdrawal from the officer or directorship, or from theoutside conflicting responsibility, may be required.  It is important to be sensitive to and avoidapparent conflicts of interest as well as actual ones.

 

3. The duty of obedience requires officers and directors to act inaccordance with the Company’s Charter, bylaws and other governing documents, aswell as applicable laws and regulations.

 

4. Unless an officer or director has knowledge that makes relianceunwarranted, an officer or director, in performing his or her duties to theCompany, may rely on (written or oral) information, opinions, reports or

 

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statements, including financial statements and otherfinancial data, if prepared or presented by: (i) one or more officers or employees of the Company whom theofficer or director believes in good faith to be reliable and competent in thematters presented; (ii) legal counsel, public accountants, or otherpersons as to matters which the officer or director believes in good faith tobe within the person’s professional or expert competence; or (iii) in thecase of reliance by directors, a committee of the board on which the directordoes not serve if the director believes in good faith that the committee meritsconfidence.

 

5. Directors cannot remain willfully ignorant of the affairs of theCompany.  A director chosen as treasurer,for example, with limited knowledge of finance cannot simply rely on therepresentations and reports of staff or auditors that “all is well.”

 

g.                                      The Council, upon the recommendation of a majority of theBoard, may remove a Board member for cause. The Council, upon its owninitiative, may remove a Board member for cause upon the affirmative vote of atleast ten (10) Councillors.

 

**10.****                              ****Operationof Company**

 

a.                                       The Company shall conduct business pursuant to bylawsconsistent with this Charter and adopted by the Board of Directors, subject tothe approval of Council.

 

b.                                      The Company may have such officers and committees as thebylaws may provide.

 

c.                                       The Board of Directors shall meet as often as necessary toconduct its business, but no less frequently than monthly. An agenda for everymeeting shall be prepared by the Board Chairman and posted publicly at leastthree (3) days prior

 

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to the next scheduled meeting, unless in the event ofan emergency.  All meetings shall be heldat either the Allegany or Cattaraugus Territory. Four (4) members of theBoard of Directors shall be necessary to constitute a quorum for thetransaction of business. An action taken or approved by at least four (4) ofthe Board members present at a meeting at which a quorum is present shall benecessary to constitute an official act of the Company. The Board of Directorsshall keep complete and accurate records of all meetings and actions taken.

 

d.                                      The Board of Directors shall keep full and accurate financialrecords, make periodic reports to the Council and submit a complete annualreport, in written form, to the Council as required by the provisions of thisCharter.

 

e.                                       The Board of Directors shall hold a meeting open to theSeneca public on the fourth Saturday of January, April, July, and October everyyear at which the Board shall provide information on the health and well-beingof the Company.

 

f.                                         The members of the Board of Directors may receive a stipendfor their services as provided in the bylaws, and shall be reimbursed foractual expenses incurred in the discharge of their duties, including necessarytravel expenses. In no event shall compensation be based on the profitabilityof Gaming operations.

 

**11.****                              ****Obligations**

 

a.                                       The Company may obtain financing and issue Obligations fromtime to time subject to the approval of Council for any of its purposes and mayalso refinance and issue refunding obligations for the purpose of paying orretiring Obligations as it may determine, including Obligations on which theprincipal and interest are

 

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payable:

 

i.                                        exclusivelyfrom the income and revenues of the Nation Gaming Facility financed with theproceeds of such Obligations, or with such income and revenues together with agrant or subsidy from the federal, state or Nation government in aid of suchestablishment or development;

 

ii.                                     exclusivelyfrom the income and revenues of certain designated Nation Gaming Facilitieswhether or not they were financed in whole or in part with the proceeds of suchObligations; or

 

iii.                                  from itsrevenues generally.

 

b.                                      Neither the members of the Board of Directors nor any personexecuting the Obligations shall be liable personally on the Obligations byreason of issuance thereof.

 

c.                                       The Obligations of the Company shall not be a debt of theNation and the Obligations shall explicitly so state on their face.

 

d.                                      Obligations of the Company may be in negotiable form.

 

e.                                       In connection with the issuance of Obligations and to securethe payment of such Obligations, the Company, subject to the limitations inthis Charter and the requirements of the Compact, may;

 

i.                                        pledge all orany part of the gross fees or revenues of the Company to which its rights then existor may thereafter come into existence;

 

ii.                                     provide for thepowers and duties of Obligees and limit their liabilities; and provide theterms and conditions on which such Obligees may enforce any covenant or rightssecuring or relating to the Obligations;

 

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iii.                                  covenantagainst pledging all or any part of the fees and revenues of the Company oragainst mortgaging any or all of the real or personal property of the Companyto which its title or right then exists or may thereafter come into existenceor permitting or suffering any lien on such revenues or property;

 

iv.                                 covenant withrespect to limitations on the right of the Company to sell, lease or otherwisedispose of any Nation Gaming Facility or any part thereof;

 

v.                                    covenant as towhat other or additional debts or obligations may be incurred by it;

 

vi.                                 covenant as tothe Obligations to be issued and as to the issuance of such Obligations inescrow or otherwise, and as to the use and disposition of the proceeds thereof;

 

vii.                              provide for thereplacement of lost, destroyed or mutilated Obligations;

 

viii.                           covenantagainst extending time for the payment of its Obligations or interest thereon;

 

ix.                                   redeem theObligations and covenant for their redemption and provide for the terms andconditions thereof;

 

x.                                      covenantconcerning any fees to be charged in the operation of a Nation Gaming Facility,the amount to be raised each year or other period of time by such fees andother revenues, and as to the use and disposition to be made thereof;

 

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xi.            create or authorize the creation of special fundsfor monies held for construction, development or operating costs, debt service,reserve or other purposes, and covenant as to the use and disposition of themonies held in such funds;

 

xii.           prescribe the procedure, if any, by which the termsof any contract with holders of Obligations may be amended or abrogated, theproportion of outstanding Obligations the holders of which must consentthereto, and the manner in which such consent may be given;

 

xiii.          covenant as to the use, maintenance and replacementof the real and personal property of the Company, the insurance to be carriedthereon and the use and disposition of insurance proceeds;

 

xiv.          covenant as to the rights, liabilities, powers andduties arising upon the breach by it of any covenant, condition or obligation;

 

xv.           covenant and prescribe as to events of default andterms and conditions upon which any or all of its Obligations become or may bedeclared due before maturity, and as to the terms and conditions upon whichsuch declaration and its consequences may be waived;

 

xvi.          vest in any Obligees or any proportion of them theright to enforce the payment of Obligations or any covenant securing orrelating to the Obligations;

 

xvii.         exercise all or a part or a combination of thepowers granted in this section;

 

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xviii.       make covenants other thanand in addition to the covenants expressly authorized in this section, of likeor different character;

 

xix.          make any covenants and doany acts and things necessary or convenient or desirable in order to secure itsObligations, or, in the absolute discretion of the Company, tending to make theObligations more marketable although the covenants, acts or things are notenumerated in this section;

 

xx.           pledge, mortgage or grant asecurity interest in all or any part of the assets of the Company; and

 

xxi.          waive, conditionally, orunconditionally, the sovereign immunity of the Company;

 

provided, however, that nothing herein shall beconstrued to include, and the Company shall not have, any power to waive any ofthe privileges or immunities of the Nation, to borrow or lend money on behalfof the Nation, or to grant or permit or purport to grant or permit any right,lien, encumbrance or interest in or on any of the assets of the Nation.

 

**12.****                              ****Reports to the Council**

 

a.                                       The Board of Directors shall prepare and submit to theCouncil within thirty (30) days after the close of each quarter a quarterlyreport, signed by the Board Chairperson and the Chairperson of the BoardFinance Committee, showing:

 

i.              a summary ofthe quarter’s activities;

 

ii.             the financial condition of the Company and of eachNation Gaming Facility;

 

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iii.            any significant problems and accomplishments;

 

iv.            plans for the following quarter; and

 

v.             such otherinformation as the Board of Directors or the Council deems pertinent.

 

b.                                      The Board of Directors shall prepare and submit to theCouncil within sixty (60) days after the close of each fiscal year an annualreport, signed by the Board Chairperson and the Chairperson of the BoardFinance Committee, showing;

 

i.              a summary ofthe fiscal year’s activities;

 

ii.             the complete financial condition of the Company andof each Nation Gaming Facility including a detailed report outlining theoperations of the Company and of each Nation Gaming Facility;

 

iii.            any significant problems and accomplishments;

 

iv.            plans for the following fiscal year; and

 

v.             such otherinformation as the Board of Directors or the Council deems pertinent.

 

**13.****         ****Finances and Accounting**

 

a.                                       The fiscal year of the Company shall be the fiscal year ofthe Nation.

 

b.                                      The Board of Directors shall establish and install anaccounting system (i) in conformity with accounting principles generallyaccepted in the Gaming industry, and (ii) necessary and advisable, in thereasonable discretion of the Board of Directors, in order to manage the assetsof the Company and the Gaming assets of the Nation. Such accounting systemshall insure the availability of information as

 

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may be necessary to comply with the Compact, and withapplicable Nation and federal regulatory requirements.

 

c.                                       The accounts and records of the Company shall be audited atthe close of each fiscal year in accordance with the provisions of the IndianGaming Regulatory Act and the regulations of the National Indian GamingCommission and, to the extent applicable, the Compact. Copies of such auditreports shall be furnished to the Council.

 

d.                                      In its capacity as the “Nation Gaming Operation” for anyNation Gaming Facility, the Company shall establish a “System of InternalControls” for purposes of, and as defined in, the Compact.

 

e.                                       The books, records and property of the Company shall beavailable for inspection at all reasonable times by authorized representativesof the Nation.

 

**14.****         ****Indemnification**

 

a.                                       The Company shall (i) indemnify, save and hold harmlessthe Nation and its agents and employees from any and all claims arising out ofits activities, (ii) defend at its own cost and expense any action orproceeding commenced for the purpose of asserting any claim arising out of itsactivities, and (iii) reimburse any expense which may be incurred by theNation to defend any such claim until the Company assumes such defense;provided, however, that the Nation shall have the right, but not theobligation, to participate, at the Company’s expense, in any settlement,compromise or litigation thereof through counsel of its own choice and shallhave the right to direct and control the negotiations, settlement and

 

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litigation if the same shall have a direct effect uponthe Nation.

 

b.                                      The Company shall indemnify, save and hold harmless the Boardmembers and officers of the Company, or any person acting at their officialdirection, if any one of them is a party or is threatened to be made a party toany threatened, pending or completed action or proceeding, whether civil,criminal, administrative or investigative, by reason of the fact that he or sheis or was a Company Board member or officer, or person acting at their officialdirection, against expenses (including attorneys’ fees), judgments, fines andamounts paid in connection with such action, suit or proceeding, if such personhad no reasonable cause to believe that his or her conduct was unlawful orotherwise improper; provided, however, that no indemnification shall be madefor which such person shall have been adjudged to be liable for willfulmisconduct or a violation of the criminal law in the performance of such person’sduty to the Company, unless, and then only to the extent that, the court inwhich such action or suit is brought shall determine upon application that,despite the adjudication of liability but in view of all the circumstances ofthe case, such person is fairly and reasonably entitled to indemnity for suchexpense as such court shall deem proper.

 

**15.****                              ****Bond**

 

The Board of Directors, on behalf of and in the name of the Company,shall obtain or provide for the obtaining of adequate fidelity bond coverage ofits officers, agents, or employees handling cash or authorized to sign checksor certify vouchers.

 

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**16.****                              ****Judgment Proof Property**

 

All property including funds acquired or held by the Company pursuantto this Charter shall be exempt from levy and sale by virtue of an execution,and no execution or other judicial process shall issue against the same norshall any judgment against the Company be a charge or lien upon such property.However, the provisions of this section shall not apply to or limit the rightof lenders or Obligees to pursue any remedies for the enforcement of any pledgeor lien given by the Company on its fees or revenues, nor to any explicitwaiver of immunity specifically subjecting Company property to levy, executionor judicial process which is contained in a contract and approved by resolutionof the Board of Directors as provided in this Charter.

 

**17.****                              ****Dissolution or Liquidation**

 

a.                                       In the event of the dissolution or final liquidation of theCompany, none of the property of the Company nor any proceeds thereof shall bedistributed to or divided among any of the directors or officers of the Companyor inure to the benefit of any individual.

 

b.                                      After all liabilities and obligations of the Company havebeen paid, satisfied and discharged, or adequate provision made therefor, allremaining property and assets of the Company shall be distributed to the Nationor, at the Nation’s direction, to one or more organizations designated pursuantto a plan of distribution.

 

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**18.****                              ****Amendment**

 

This Charter may be amended within the firstsixty (60) days if its adoption by a majority vote of the Council; provided,however, that thereafter no provision of this Charter may be amendedunless the Council shall have twice approved such amendment by twelve (12)votes of the Councillors at two (2) separate sessions of the Councilconvened no less than one (1) week apart.

 

**19.****                              ****Severability**

 

If any provision of this Charter is held invalid, the remainder of theprovisions of this Charter shall not be affected.

 

**20.****                              ****Effective Date**

 

This Charter shall be effective on April 23, 2009.

 

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