**Exhibit 3.3**

 

**THIRD AMENDED AND RESTATED CHARTER**

 

**OF THE**

 

**SENECANIAGARA FALLS GAMING CORPORATION**

 

**WHEREAS**, Section I of the Constitution of theSeneca Nation of Indians of 1848, as amended, vests the Legislative Authorityof the Seneca People in the Nation’s Tribal Council; and

 

**WHEREAS**, it is declared the policy of theNation to promote the welfare and prosperity of its members and to activelypromote, attract, encourage and develop economically sound commerce andindustry through governmental action for the purpose of preventing unemploymentand economic stagnation; and

 

**WHEREAS**, the Gaming industry is vitallyimportant to the economy of the Nation and the general welfare of its members;and

 

**WHEREAS**, the Nationby charter has created the Seneca Gaming Corporation for purposes ofdeveloping, financing, operating and conducting the business of Nation GamingFacilities, as more fully set forth in such charter; and

 

**WHEREAS**, the charterof the Seneca Gaming Corporation grants to the Seneca Gaming Corporation thepower, upon the direction of the Council and in a manner consistent with thepurposes of such charter, to exercise any or all of its powers through thecontrol, operation and management of a subsidiary company or other entitycreated by or under authority of the Nation for the purpose of developing,financing, operating and conducting the business of any one or more NationGaming Facility; and

 

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**WHEREAS**, the Nationdesires to establish a separate legal entity for purposes of developing,financing, operating and conducting the business of the Nation Gaming Facilityto be established on Nation territory within the exterior boundaries of NiagaraCounty pursuant to the terms of the Nation-State Gaming Compact between theNation and the State of New York, and further desires that such legal entity tobe subject to the control, operation and management of the Seneca GamingCorporation; and

 

**WHEREAS**, the neednow arises to amend and restate the Second Amended and Restated Charter of theSENECA NIAGARA FALLS GAMING CORPORATION.

 

**NOW, THEREFORE**, the Nation’s Council, pursuantto its constitutional authority, does hereby grant this Third Amended andRestated Charter to re-create, re-appoint and re-constitute the SENECA NIAGARAFALLS GAMING CORPORATION.

 

**1.****                                      Creationof Seneca Niagara Falls Gaming Corporation and Principal Place of Business**

 

By this Charter, the Nation creates the Seneca Niagara Falls GamingCorporation (the “Company”). The Company shall have its principal place ofbusiness at the William Seneca Administration Building, 1490 Route 438,Cattaraugus Reservation, Irving, New York 14081, or at such other locationwithin the Nation’s territories that the Board of Directors of the Companyshall determine.

 

**2.****                                      Purpose**

 

The Company is organized for the purpose of developing, constructing,owning, leasing, operating, managing, maintaining, promoting and financing aNation Gaming Facility on

 

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Nation territory within the exterior boundaries of Niagara County pursuantto the terms of the Compact, and engaging in any other lawful activity, subjectto any limitations imposed by any contract, indenture or other instrument bywhich the Company is bound. The Nation intends that the Company shall assumeall obligations, responsibilities and duties, and exercise all powers, of theSeneca Gaming Corporation to the extent applicable to the Niagara Falls GamingFacility, subject to the control of the Seneca Gaming Corporation.

 

**3.****                                      Relation to Nation**

 

a.               The Company shallconstitute a governmental instrumentality of the Nation, having autonomousexistence separate and distinct from the Nation.

 

b.              Forpurposes of taxation, civil jurisdiction and regulatory jurisdiction, 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, when capitalized, the following termsshall have the meanings respectively specified—

 

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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 Niagara Falls Gaming Corporation, created by thisCharter.

 

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 play anygaming as contemplated in the Seneca Nation of Indians Class III GamingOrdinance of 2002 or the Indian Gaming Regulatory 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.

 

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k.               “NationGaming Facility” shall mean any existing and future establishment of the Nation(i) upon which Gaming takes place, (ii) which is authorized and licensed underapplicable law, and (iii) which the Council designates for ownership, lease,development, construction, operation or management by the Company, includingwithout limitation any Class III Gaming facilities established in accordance withthe Compact.

 

l.                  “NationGaming Operation” shall have the meaning ascribed to such term in the Compact.

 

m.            “NiagaraFalls Gaming Facility” shall mean any Nation Gaming Facility established onNation territory within the exterior boundaries of Niagara County pursuant andsubject to the terms of the Compact.

 

n.              “SenecaGaming Corporation” or “SGC” shall mean the corporation chartered by the Nationon August 1, 2002, for the purpose of developing, constructing, owning,leasing, operating, managing, maintaining, promoting and financing NationGaming Facilities.

 

o.              “SGCBoard” shall mean the Board of Directors of the Seneca Gaming Corporation.

 

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

 

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

 

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**5.****                                      Assets of Company**

 

The Company shall have only those assets of the Nation formallyassigned or leased to it by the Council or by a Nation Entity, together withwhatever assets it acquires by other means as provided in this Charter. Noactivity of the Company nor any indebtedness incurred by it shall encumber,implicate or in any way involve assets of the Nation or another Nation Entitynot assigned or leased in writing to the Company.

 

**6.****                                      Perpetual Succession**

 

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)years to assess whether the Company continues to serve the interests of theNation and its people.

 

**7.****                                      Ability to Sue 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 besubject to Council approval.  The Councilalso authorizes the Company, by resolution duly adopted by the Board ofDirectors, to agree by contract to waive its immunity from suit, provided,that such waiver shall be subject to the approval of Council.  Notwithstanding the foregoing, the Nationshall not be liable for the debts or obligations of the Company, and theCompany shall have no power to pledge or encumber the assets of the Nation. Thisaction does not

 

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constitute a waiver of any immunity of the Nation or a delegation tothe Company of the power to make such a waiver. The Company’s ability to sueand be sued and to waive its immunity from suit shall at all times remain withthe Board 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 byCouncil, 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 of Company**

 

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 the Niagara Falls Gaming Facility, or inconnection with any other authorized 

 

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activities conducted by the Company, and to secure the financing andassistance necessary for such activities.

 

b.              TheNiagara Falls Gaming Facility shall be operated by the Company as provided inthis Charter.

 

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 the Niagara Falls Gaming  Facility, including expansions and enlargements thereof, including the power  to enter into leases and leasehold mortgages, provided, that prior to  engaging in any of the activities authorized by this subsection that require  a significant expenditure of Company resources that the Company submit a  comprehensive business plan to Council for its review and approval; |
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|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          |
| ii.    | if the Board of Directors determines it to  be in the best interests of the Company and the Nation, to terminate the  operation of the Niagara Falls                                                                                                                                                                                                                                                                                                                                          |

 

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|   | Gaming Facility and to dispose of, demolish  or abandon any facilities relating thereto, subject to the approval of  Council;                                                                                                                                                                                                                                                                                                                                                                                                            |
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|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
| iii.   | to have a corporate seal, and alter the  seal, and use it by causing it or a facsimile to be affixed, impressed or  reproduced in any other manner;                                                                                                                                                                                                                                                                                                                                                                                      |
|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
| iv.    | to adopt, amend or repeal bylaws, including  emergency bylaws, relating to the business of the Company, the conduct of its  affairs, its rights and powers and powers of its Board of Directors and  officers, subject to the review and approval of Council;                                                                                                                                                                                                                                                                            |
|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
| v.     | to elect or appoint officers, employees or  other agents of the Company, prescribe their duties and fix their  compensation, and indemnify members, officers, employees and agents;                                                                                                                                                                                                                                                                                                                                                      |
|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
| vi.    | to enter into, make, perform and carry out,  cancel and rescind contracts, agreements and understandings for any lawful  purpose pertaining to its business with any Nation, federal, state or local  governmental agency or with any person, partnership, limited partnership,  corporation, limited liability company, Indian Nation, Nation Entity, or  other entity, provided, that any such contracts, agreements or  understandings with any government or governmental agency or entity shall be  subject to approval of Council; |
|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
| vii.   | to enter into, make, perform and carry out,  cancel and rescind any Management Contract, subject to the approval of  Council;                                                                                                                                                                                                                                                                                                                                                                                                            |
|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                     |
| viii.  | to lease property from the Nation, a Nation  Entity or others for such periods as are authorized by law, and to hold,  mortgage, manage or sublease the same; provided, however, that  nothing herein shall be construed to include,                                                                                                                                                                                                                                                                                                     |

 

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|   | and the Company shall not have, any power  to grant or permit or purport to grant or permit any right, lien, encumbrance  or interest in or on any real property within Nation territories unless  pursuant to a lease, authorized and approved by the Council;                                                                                                                                                                                         |
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|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
| ix.    | to give guarantees and incur liabilities, provided,  that significant guarantees or liabilities shall be subject to the approval  of Council;                                                                                                                                                                                                                                                                                                           |
|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
| x.     | to lend money to any subsidiary or parent  corporation subject to the approval of Council, invest and reinvest funds,  and take and hold the Company’s real and personal property as security for  the payment of funds so loaned or invested;                                                                                                                                                                                                     |
|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
| xi.    | subject to the provisions of this Charter, to  obtain financing and refinancing, to borrow money at rates of interest as the  Company may determine, to issue temporary or long term indebtedness and to  repay the same;                                                                                                                                                                                                                               |
|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                    |
| xii.   | subject to the provisions of this Charter,  to mortgage 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, bequest or otherwise, lease or otherwise acquire, own, hold, improve,  employ, use, and otherwise enjoy all powers necessary or appropriate to deal  in and with, real and personal property, or an interest in real or personal  property, wherever situated, provided, that purchases of real property  and significant expenditures of personal property shall be subject to the  approval of Council; |

 

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| xv.    | subject to the provisions of this Charter,  to sell, convey, lease, exchange, transfer or otherwise dispose of, or  mortgage or pledge, or create a security interest in any of its property or  an interest in its property, wherever situated; provided, however,  that nothing herein shall be construed to include, and the Company shall not  have, any power to grant or permit or purport to grant or permit any right,  lien, encumbrance or interest in or on any real property within the Nation  unless pursuant to a lease, authorized and approved by the Council; |
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|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            |
| 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 and otherwise deal in and with,  bonds and other obligations, shares or other securities or interests issued  by others, whether engaged in similar or different business, governmental, or  other activities, including banking corporations and trust companies, subject  to the approval of Council;                                                                                                  |
|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            |
| xvii.  | to employ contractors, consultants,  attorneys and accountants, provided, that the Company shall not engage in any  efforts to politically influence any Indian nation, federal, state, or local  government of their officials;                                                                                                                                                                                                                                                                                                                                                |
|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            |
| xviii. | to employ, discipline and discharge  employees and establish personnel policies and terms and conditions of  employment;                                                                                                                                                                                                                                                                                                                                                                                                                                                        |
|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            |
| xix.   | to undertake and carry out studies and  analyses of the Niagara Falls Gaming Facility;                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          |
|   |                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            |
| xx.    | to establish procedures for resolving  disputes between the Gaming public and the Niagara Falls Gaming Facility or  any management contractor, and to                                                                                                                                                                                                                                                                                                                                                                                                                           |

 

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|   | establish and implement any such procedures  that may be required to be established and implemented with respect to  operation of the Niagara Falls Gaming Facility in accordance with the Compact  or applicable law;                                                                                                                                      |
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|   |                                                                                                                                                                                                                                                                                                                                                        |
| xxi.   | to purchase insurance from any stock or  mutual company for any property or against any risk or hazards;                                                                                                                                                                                                                                                    |
|   |                                                                                                                                                                                                                                                                                                                                                        |
| xxii.  | to establish and maintain such bank  accounts as may be necessary or convenient;                                                                                                                                                                                                                                                                            |
|   |                                                                                                                                                                                                                                                                                                                                                        |
| xxiii. | to participate with others in any  corporation, partnership, limited partnership, limited liability company, or  other association of any kind, or in any transaction, undertaking, or  agreement which the Company would have power to conduct by itself, subject to  the approval of Council;                                                             |
|   |                                                                                                                                                                                                                                                                                                                                                        |
| xxiv.  | subject to the provisions of this 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 this  Charter and to agree by contract to waive its immunity from suit;                                                                                              |
|   |                                                                                                                                                                                                                                                                                                                                                        |
| xxv.   | subject to the provisions of this Charter,  to consent to the exercise of jurisdiction over any suit or over the Company  by the courts of any state, the federal courts, the courts of the Nation or  any other Indian Nation, or the courts of any United States territory or foreign  jurisdiction, or to arbitration or alternative dispute resolution; |
|   |                                                                                                                                                                                                                                                                                                                                                        |
| xxvi.  | to utilize, with the consent of the  President of the Nation, the agents, employees and facilities of the Nation  for in-kind services, paying the Nation mutually agreed upon share of the  costs for said in-kind services;                                                                                                                               |

 

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| xxvii.  | soley with respect to the Niagara Falls  Gaming Facility, to act as, and to exercise all rights and perform all  obligations of, the Nation Gaming Operation;                                                                                |
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|    |                                                                                                                                                                                                                                         |
| xxviii. | to take such further specific actions as  the Board of Directors may deem necessary to effectuate any or all of the  purposes for which the Company is organized; and                                                                        |
|    |                                                                                                                                                                                                                                         |
| xxix.   | to enjoy the sovereign immunity of the  Nation, to the same extent as the Nation, provided that the actions of  the Company or any of its officials, employees, or duly authorized agents are  authorized by the provisions of this Charter. |

 

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

 

a.               Thereis hereby established a Board of Directors of the Company, the purpose of whichis to carry out the duties and powers of the Company as set forth in thisCharter.

 

b.              Thereshall be no less than four (4) nor more than seven (7) members of the Board,not less than five (5) of whom shall be enrolled Senecas.  No Councillor may serve on the Board, norshall any Company employee or any person with an economic interest in any ofthe Company’s activities.  Board membersshall constitute “public officials” for purposes of the Nation Ethics Law.

 

c.               TheCouncil shall appoint all members of the Board of Directors of the Company.Vacancies shall also be filled by Council appointment. An appointment of aBoard

 

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member shall take effect from the date and time at which the Counciladopts the resolution authorizing such appointment.

 

d.              AnyBoard candidate who is at least twenty-one years old, who has earned at least ahigh school diploma or equivalent, and who shall not have been convicted of aFelony, is eligible to serve as a member of the Board.

 

e.               AnySGC Board member may contemporaneously serve as a member of the Board of theCompany, if so appointed.

 

f.                 Boardmembers shall serve for a term of three (3) years, provided, however,that of the initial Board, four (4) members shall be appointed to serve a termof three (3) years, two (2) members shall be appointed to serve a term of two(2) years, and one (1) member shall be appointed to serve a term of one (1)year from the date of appointment by the SGC Board.

 

g.              TheCouncil , upon the recommendation of a majority of the Board, may remove aBoard member for cause. The Council, upon its own initiative, may remove Boardmember for cause upon the affirmative vote of at least ten (10) Councillors.

 

**10.****                               Operation of Company**

 

a.               TheCompany shall conduct business pursuant to bylaws consistent with this Charterand adopted by the Board of Directors, subject to the approval of Council.

 

b.              TheCompany may have such officers and committees as the bylaws may provide.

 

c.               Inits capacity as the Nation Gaming Operation for the Niagara Falls GamingFacility, the Company shall establish such departments and employ suchpersonnel, and otherwise shall operate, as required under the Compact.

 

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d.              TheBoard of Directors shall meet as often as necessary to conduct its business,but no less frequently than monthly.  Allmeetings shall be held at either the Allegany or Cattaraugus Territory.  Four (4)members of the Board of Directors shallbe necessary to constitute a quorum for the transaction of business. An actiontaken or approved by at least four (4) of the Board members present at ameeting at which a quorum is present shall be necessary to constitute anofficial act of the Company. The Board of Directors shall keep complete andaccurate records of all meetings and actions taken.

 

e.               TheBoard of Directors shall keep full and accurate financial records, makeperiodic reports to the SGC Board and submit a complete annual report, in writtenform, to the SGC Board as required by the provisions of this Charter.

 

f.                 Themembers of the Board of Directors may receive a stipend for their services asprovided in the bylaws, and shall be reimbursed for actual expenses incurred inthe discharge of their duties, including necessary travel expenses. In no eventshall compensation be based on the profitability of Gaming operations.

 

**11.****                               Obligations**

 

a.               TheCompany may obtain financing and issue Obligations from time to time subject tothe approval of Council for any of its purposes and may also refinance andissue refunding obligations for the purpose of paying or retiring Obligationsas it may determine, including Obligations on which the principal and interestare payable:

 
| i. | exclusively from the income and revenues of  the Niagara Falls Gaming Facility financed with the proceeds of such  Obligations, or with such income |
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|   | and revenues together with a grant or  subsidy from the federal, state or Nation government in aid of such  establishment or development; or |
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| ii. | from its revenues generally. |
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b.              Neitherthe members of the Board of Directors nor any person executing the Obligationsshall be liable personally on the Obligations by reason of issuance thereof.

 

c.               TheObligations of the Company shall not be a debt of the Nation or of the SenecaGaming Corporation or any other Nation-chartered Gaming corporation, and theObligations shall explicitly so state on their face.

 

d.              Obligationsof the Company may be in negotiable form.

 

e.               Inconnection with the issuance of Obligations and to secure the payment of suchObligations, the Company, subject to the limitations in this Charter and therequirements of the Compact, may;

 
| i.     | pledge all or any part of the gross fees or  revenues of the Company to which its rights then exist or may thereafter come  into existence;                                                                                                                                                                            |
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|   |                                                                                                                                                                                                                                                                                                                   |
| ii.    | provide for the powers and duties of  Obligees and limit their liabilities; and provide the terms and conditions on  which such Obligees may enforce any covenant or rights securing or relating  to the Obligations;                                                                                                  |
|   |                                                                                                                                                                                                                                                                                                                   |
| iii.   | covenant against pledging all or any part  of the fees and revenues of the Company or against mortgaging any or all of  the real or personal property of the Company to which its title or right then  exists or may thereafter come into existence or permitting or suffering any  lien on such revenues or property; |

 

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| iv.    | covenant with respect to limitations on the  right of the Company to sell, lease or otherwise dispose of the Niagara Falls  Gaming Facility or any part thereof;                                                                                      |
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|   |                                                                                                                                                                                                                                                  |
| v.     | covenant as to what other or additional  debts or obligations may be incurred by it;                                                                                                                                                                  |
|   |                                                                                                                                                                                                                                                  |
| vi.    | covenant as to the Obligations to be issued  and as to the issuance of such Obligations in escrow or otherwise, and as to  the use and disposition of the proceeds thereof;                                                                           |
|   |                                                                                                                                                                                                                                                  |
| vii.   | provide for the replacement of lost,  destroyed or mutilated Obligations;                                                                                                                                                                             |
|   |                                                                                                                                                                                                                                                  |
| viii.  | covenant against extending time for the  payment of its Obligations or interest thereon;                                                                                                                                                              |
|   |                                                                                                                                                                                                                                                  |
| ix.    | redeem the Obligations and covenant for  their redemption and provide for the terms and conditions thereof;                                                                                                                                           |
|   |                                                                                                                                                                                                                                                  |
| x.     | covenant concerning any fees to be charged  in the operation of the Niagara Falls Gaming Facility, the amount to be  raised each year or other period of time by such fees and other revenues, and  as to the use and disposition to be made thereof; |
|   |                                                                                                                                                                                                                                                  |
| xi.    | create or authorize the creation of special  funds for monies held for construction, development or operating costs, debt  service, reserve or other purposes, and covenant as to the use and  disposition of the monies held in such funds;          |
|   |                                                                                                                                                                                                                                                  |
| xii.   | prescribe the procedure, if any, by which  the terms of any contract with holders of Obligations may be amended or abrogated,  the proportion of                                                                                                      |

 

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|   | outstanding Obligations the holders of which must consent thereto,  and the manner in which such consent may be given;                                                                                                                                                                               |
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|   |                                                                                                                                                                                                                                                                                                 |
| xiii.  | covenant as to the use, maintenance and  replacement of the real and personal property of the Company, the insurance  to be carried thereon and the use and disposition of insurance proceeds;                                                                                                       |
|   |                                                                                                                                                                                                                                                                                                 |
| xiv.   | covenant as to the rights, liabilities,  powers and duties arising upon the breach by it of any covenant, condition or  obligation;                                                                                                                                                                  |
|   |                                                                                                                                                                                                                                                                                                 |
| xv.    | covenant and prescribe as to events of  default and terms and conditions upon which any or all of its Obligations  become or may be declared due before maturity, and as to the terms and  conditions upon which such declaration and its consequences may be waived;                                |
|   |                                                                                                                                                                                                                                                                                                 |
| xvi.   | vest in any Obligees or any proportion of  them the right to enforce the payment of Obligations or any covenant securing  or relating to the Obligations;                                                                                                                                            |
|   |                                                                                                                                                                                                                                                                                                 |
| xvii.  | exercise all or a part or a combination of  the powers granted in this section;                                                                                                                                                                                                                      |
|   |                                                                                                                                                                                                                                                                                                 |
| xviii. | make covenants other than and in addition  to the covenants expressly authorized in this section, of like or different  character;                                                                                                                                                                   |
|   |                                                                                                                                                                                                                                                                                                 |
| xix.   | make any covenants and do any acts and  things necessary or convenient or desirable in order to secure its  Obligations, or, in the absolute discretion of the Company, tending to make  the Obligations more marketable although the covenants, acts or things are  not enumerated in this section; |
|   |                                                                                                                                                                                                                                                                                                 |
| xx.    | pledge, mortgage or grant a security interest  in all or any part of the assets of the Company; and                                                                                                                                                                                                  |

 

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| xxi. | waive, conditionally, or unconditionally,  the sovereign immunity of the Company; |
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provided, however, that nothing hereinshall be construed to include, and the Company shall not have, any power towaive any of the privileges or immunities of the Nation, to borrow or lendmoney on behalf of the Nation, or to grant or permit or purport to grant orpermit any right, lien, encumbrance or interest in or on any of the assets ofthe Nation.

 

**12.****                               Reports to the SGC Board**

 

a.               TheBoard of Directors shall prepare and submit to the SGC Board within thirty (30)days after the close of each quarter a quarterly report, signed by the BoardChairperson and the Chairperson of the Board Finance Committee, showing:

 
| i.     | a summary of the quarter’s activities;                                         |
|--------|-------------------------------------------------------------------------------------|
|   |                                                                                |
| ii.    | the financial condition of the Company and  of the Niagara Falls Gaming Facility;   |
|   |                                                                                |
| iii.   | any significant problems and  accomplishments;                                      |
|   |                                                                                |
| iv.    | plans for the following quarter; and                                                |
|   |                                                                                |
| v.     | such other information as the Board of  Directors or the SGC Board deems pertinent. |

 

b.              TheBoard of Directors shall prepare and submit to the SGC Board within sixty (60)days after the close of each fiscal year an annual report, signed by the BoardChairperson and the Chairperson of the Board Finance Committee, showing;

 
| i. | a summary of the fiscal year’s activities; |
|----|-------------------------------------------------|

 

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| ii.    | the complete financial condition of the Company  and of the Niagara Falls Gaming Facility including a detailed report  outlining the operations of the Company and of the Niagara Falls Gaming  Facility; |
|--------|-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|
|   |                                                                                                                                                                                                      |
| iii.   | any significant problems and  accomplishments;                                                                                                                                                            |
|   |                                                                                                                                                                                                      |
| iv.    | plans for the following fiscal year; and                                                                                                                                                                  |
|   |                                                                                                                                                                                                      |
| v.     | such other information as the Board of  Directors or the SGC Board deems pertinent.                                                                                                                       |

 

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

 

a.               Thefiscal year of the Company shall be the fiscal year of the Nation.

 

b.              TheBoard of Directors shall establish and install an accounting system (i) inconformity with accounting principles generally accepted in the Gamingindustry, and (ii) necessary and advisable, in the reasonable discretion of theBoard of Directors, in order to manage the assets of the Company and the Gamingassets of the Nation. Such accounting system shall insure the availability ofinformation as may be necessary to comply with the Compact, and with applicableNation and federal regulatory requirements.

 

c.               Theaccounts and records of the Company shall be audited at the close of eachfiscal year in accordance with the provisions of the Indian Gaming RegulatoryAct and the regulations of the National Indian Gaming Commission and, to theextent applicable, the Compact. Copies of such audit reports shall be furnishedto the Council.

 

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d.              Inits capacity as the Nation Gaming Operation for the Niagara Falls GamingFacility, the Company shall establish a “System of Internal Controls” forpurposes of, and as defined in, the Compact.

 

e.               Thebooks, records and property of the Company shall be available for inspection atall reasonable times by authorized representatives of the Nation.

 

**14.****                               Indemnification**

 

a.               TheCompany shall (i) indemnify, save and hold harmless the Nation and its agentsand employees from any and all claims arising out of its activities, (ii)defend at its own cost and expense any action or proceeding commenced for thepurpose of asserting any claim arising out of its activities, and (iii) reimburseany expense which may be incurred by the Nation to defend any such claim untilthe Company assumes such defense; provided, however, that theNation shall have the right, but not the obligation, to participate, at theCompany’s expense, in any settlement, compromise or litigation thereof throughcounsel of its own choice and shall have the right to direct and control thenegotiations, settlement and litigation if the same shall have a direct effectupon the Nation.

 

b.              TheCompany shall indemnify, save and hold harmless the Board members and officersof the Company and of the SGC, 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 member of the SGC Board or the Company Board, or officer, or personacting at their

 

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official direction, against expenses (including attorneys’ fees),judgments, fines and amounts paid in connection with such action, suit orproceeding, if such person had no reasonable cause to believe that his or herconduct was unlawful or otherwise improper; provided, however,that no indemnification shall be made for which such person shall have beenadjudged to be liable for willful misconduct or a violation of the criminal lawin the performance of such person’s duty to the Company, unless, and then onlyto the extent that, the court in which such action or suit is brought shalldetermine upon application that, despite the adjudication of liability but inview of all the circumstances of the case, such person is fairly and reasonablyentitled to indemnity for such expense 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.

 

**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

 

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any explicit waiver of immunity specifically subjecting Companyproperty to levy, execution or judicial process which is contained in acontract and approved by resolution of the Board of Directors as provided inthis Charter.

 

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

 

a.               Inthe event of the dissolution or final liquidation of the Company, none of theproperty of the Company nor any proceeds thereof shall be distributed to ordivided among any of the directors or officers of the Company or inure to thebenefit of any individual.

 

b.              Afterall liabilities and obligations of the Company have been paid, satisfied anddischarged, or adequate provision made therefor, all remaining property andassets of the Company shall be distributed to the Nation or, at the Nation’sdirection, to one or more organizations designated pursuant to a plan ofdistribution.

 

**18.****                               Amendment**

 

This Chartermay be amended within the first sixty (60) days if its adoption by a majorityvote of the Council; provided, however, that thereafter noprovision of this Charter may be amended unless the Council shall have twiceapproved such amendment by twelve (12) votes of the Councillors at two (2)separate sessions of the Council convened no less than one (1) week apart.

 

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**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 December 20, 2004.

 

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