Exhibit 10.1


 


EXECUTION VERSION


 


PURCHASE AGREEMENT


 


November 8, 2010


 


MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATION

     As Representative of the Initial Purchasers

One Bryant Park

New York, New York  10036


 


Ladies
and Gentlemen:


 


Introductory.  Seneca
Gaming Corporation (the “Company”), a
governmental instrumentality chartered under the laws of the Seneca Nation of
Indians (the “Nation”), a sovereign federally
recognized Indian Nation, proposes to issue and sell to the several Initial
Purchasers named in Schedule A hereto (the “Initial
Purchasers”), acting severally and not jointly, the respective
amounts set forth in such Schedule A of an $325,000,000 aggregate principal
amount of the Company’s 8.25% Senior Notes
due 2018 (the “Notes”).  Merrill
Lynch, Pierce, Fenner & Smith Incorporated has agreed to act as the
representative of the several Initial Purchasers (the “Representative”)
in connection with the offering and sale of the Notes.


 


The
Securities (as defined below) will be issued pursuant to an indenture, to be
dated as of November 18, 2010 (the “Indenture”), among the Company, the Guarantors (as defined
below) and Wells Fargo Bank, National Association, as trustee (the “Trustee”).  Notes will
be issued only in book-entry form in the name of Cede & Co., as
nominee of The Depository Trust Company (the “Depositary”)
pursuant to a letter of representations, to be dated on or before the Closing
Date (as defined in Section 2 hereof) (the “DTC
Agreement”), between the Company and the Depositary.


 


The
payment of principal of, premium, if any, and interest on the Notes will be
fully and unconditionally guaranteed on a senior unsecured basis, jointly and
severally by (i) the entities listed on the signature pages hereof as
“Guarantors” and (ii) any subsidiary of the Company formed or acquired
after the Closing Date that executes an additional guarantee in accordance with
the terms of the Indenture, and their respective successors and assigns
(collectively, the “Guarantors”),
pursuant to their guarantees (the “Guarantees”).  The Notes and the Guarantees attached thereto
are herein collectively referred to as the “Securities.”


 


Concurrently
with the issuance of the Notes, the Company will enter into a $225,000,000 senior secured credit facility (the “New Senior
Secured Credit Facility”), pursuant to a credit agreement among the
Company, the subsidiary guarantors party thereto, Bank of America, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer; Banc of America
Securities LLC, as Joint Lead Arranger and Joint Book Manager; Keybank National
Association, as Joint Lead Arranger, Joint Book Manager and Syndication Agent;
Commerzbank AG, as Joint Lead Arranger,


 

















 


Joint
Book Manager and Documentation Agent; RBS Citizens, N.A., as Documentation
Agent; and the other lenders party thereto.  
The New Senior Secured Credit Facility will replace the Company’s
existing $50,000,000 loan agreement (the “Existing Senior Secured
Loan Agreement”) entered into by the Company, as borrower, and
KeyBank National Association, as lender, on June 19, 2008 and amended on December 18,
2009.


 


On
November 3, 2010, the Company
announced a cash tender offer (the “Tender Offer”)
to purchase any and all of the Company’s outstanding 7 1⁄4% Senior Notes due 2012
(the “2012  Notes”)
issued pursuant to an Indenture, dated as of May 5, 2004 (as amended to
date, the “2012 Notes Indenture”), among the
Company, Seneca Niagara Falls Gaming Corporation, the guarantors named therein
and Wells Fargo Bank, National Association, as trustee.  The Company expects to use the net proceeds
of the offering of the Notes, plus drawings under the New Senior Credit Facility and cash on hand, to purchase the 2012 Notes validly tendered by holders and accepted by the Company in
the Tender Offer.


 


In
connection with the offering of the Securities, the Nation will enter into an
agreement with the Trustee, the
Administrative Agent under the New Senior Secured Credit Facility and the
Initial Purchasers, to be dated as of November 18, 2010 (the “Nation Agreement”),
for the benefit of the holders of Securities.


 


The
Company understands that the Initial Purchasers propose to make an offering of
the Securities on the terms and in the manner set forth herein and in the
Pricing Disclosure Package (as defined below) and agrees that the Initial
Purchasers may resell, subject to the conditions set forth herein, all or a
portion of the Securities to purchasers (the “Subsequent
Purchasers”) on the terms set forth in the Pricing Disclosure
Package (the first time when sales of the Securities are made is referred to as
the “Time of Sale”).  The Securities are to be offered and sold to
or through the Initial Purchasers without being registered with the Securities
and Exchange Commission (the “Commission”)
under the Securities Act of 1933 (as amended, the “Securities
Act,” which term, as used herein, includes the rules and
regulations of the Commission promulgated thereunder), in reliance upon
exemptions therefrom.  Pursuant to the
terms of the Securities and the Indenture, investors who acquire Securities
shall be deemed to have agreed that Securities may only be resold or otherwise
transferred, after the date hereof, if such Securities are registered for sale
under the Securities Act or if an exemption from the registration requirements
of the Securities Act is available (including the exemptions afforded by Rule 144A
under the Securities Act (“Rule 144A”)
or Regulation S under the Securities Act (“Regulation S”)).


 


The
Company has prepared and delivered to each Initial Purchaser copies of a
preliminary offering memorandum, dated November 3, 2010 (as
amended or supplemented at the Time of Sale, including any information
incorporated by reference therein, the “Preliminary Offering
Memorandum”), and has prepared and delivered to each Initial
Purchaser copies of a pricing supplement, dated November 8, 2010 (the “Pricing Supplement”),
substantially in the form attached hereto as Schedule B, describing the terms
of the Securities, each for use by such Initial Purchaser in connection with
its solicitation of offers to purchase the Securities.  The Preliminary Offering Memorandum and the
Pricing Supplement are herein referred to as the “Pricing
Disclosure Package.”  Promptly
after this Agreement is executed and delivered, the Company will prepare and
deliver to each Initial Purchaser a final offering memorandum dated the date
hereof 


 


2

















 


(including
any information incorporated by reference therein, the “Final
Offering Memorandum”).


 


All
references herein to the terms “Pricing Disclosure Package” and “Final  Offering Memorandum” shall be deemed to mean and include
all information filed under the Securities Exchange Act of 1934 (as amended,
the “Exchange Act,” which term, as used
herein, includes the rules and regulations of the Commission promulgated
thereunder) prior to the Time of Sale and incorporated by reference in the
Pricing Disclosure Package (including the Preliminary Offering Memorandum) or
the Final Offering Memorandum (as the case may be), and all references herein
to the terms “amend,” “amendment”
or “supplement” with respect to the Final
Offering Memorandum shall be deemed to mean and include all information filed
under the Exchange Act after the Time of Sale and incorporated by reference in
the Final Offering Memorandum.


 


The
Company hereby confirms its agreements with the Initial Purchasers as follows:


 


SECTION 1.           Representations and
Warranties.  Each of the
Company and the Guarantors, jointly and severally, hereby represents, warrants and
covenants to each Initial Purchaser that, as of the date hereof and as of the
Closing Date (references in this Section 1 to the “Offering
Memorandum” are to (x) the Pricing Disclosure Package in the
case of representations and warranties made as of the date hereof and (y) the
Final Offering Memorandum in the case of representations and warranties made as
of the Closing Date):


 


(a)           No Registration Required.  Subject to compliance by the Initial
Purchasers with the representations and warranties set forth in Section 2
hereof and with the procedures set forth in Section 7 hereof, it is not
necessary in connection with the offer, sale and delivery of the Securities to
the Initial Purchasers and to each Subsequent Purchaser in the manner
contemplated by this Agreement and the Offering Memorandum to register the
Securities under the Securities Act or to qualify the Indenture under the Trust
Indenture Act of 1939 (the “Trust Indenture Act,”
which term, as used herein, includes the rules and regulations of the Commission
promulgated thereunder).


 


(b)           No Integration of
Offerings or General Solicitation. 
None of the Company, its affiliates (as such term is defined in Rule 501
under the Securities Act) (each, an “Affiliate”), or
any person acting on its or any of their behalf (other than the Initial
Purchasers, as to whom the Company makes no representation, warranty or
covenant) has, directly or indirectly, solicited any offer to buy or offered to
sell, or will, directly or indirectly, solicit any offer to buy or offer to
sell, in the United States or to any United States citizen or resident, any
security which is or would be integrated with the sale of the Securities in a
manner that would require the Securities to be registered under the Securities
Act.  None of the Company, its
Affiliates, or any person acting on its or any of their behalf (other than the
Initial Purchasers, as to whom the Company makes no representation, warranty or
covenant) has engaged or will engage, in connection with the offering of the
Securities, in any form of general solicitation or general advertising within
the meaning of Rule 502 under the Securities Act.  With respect to those Securities sold in
reliance upon Regulation S, (i) none of the Company, its Affiliates or any
person acting on its or their behalf (other than the Initial Purchasers, as to
whom the Company makes no representation, warranty or covenant) has engaged or
will engage in any directed selling efforts within the meaning of Regulation S
and (ii) each of the Company and its Affiliates and any person acting on
its or 


 


3

















 


their behalf (other than the Initial Purchasers, as
to whom the Company makes no representation or warranty) has complied and will
comply with the offering restrictions set forth in Regulation S.


 


(c)           Eligibility for Resale
under Rule 144A.  The
Securities are eligible for resale pursuant to Rule 144A and will not be,
at the Closing Date, of the same class as securities listed on a national
securities exchange registered under Section 6 of the Exchange Act or
quoted in a U.S. automated interdealer quotation system.


 


(d)           The Pricing Disclosure
Package and Offering Memorandum.  Neither the Pricing Disclosure Package, as of
the Time of Sale, nor the Final Offering Memorandum, as of its date or (as
amended or supplemented in accordance with Section 3(a), as applicable) as
of the Closing Date, contains an untrue statement of a material fact or omits
to state a material fact necessary in order to make the statements therein, in
the light of the circumstances under which they were made, not misleading;
provided that this representation, warranty and agreement shall not apply to
statements in or omissions from the Pricing Disclosure Package, the Final
Offering Memorandum or any amendment or supplement thereto made in reliance
upon and in conformity with information furnished to the Company in writing by or on behalf of any Initial Purchaser through the Representative
expressly for use in the Pricing Disclosure Package, the Final Offering
Memorandum or amendment or supplement thereto, as the case may be.  The Pricing Disclosure Package contains, and
the Final Offering Memorandum will contain, all the information specified in,
and meeting the requirements of, Rule 144A.  The Company has not distributed and will not
distribute, prior to the later of the Closing Date and the completion of the
Initial Purchasers’ distribution of the Securities, any offering material with
respect to the offering and sale of the Securities other than the Pricing
Disclosure Package and the Final Offering Memorandum.


 


(e)           Company Additional Written
Communications.  The Company
has not prepared, made, used, authorized, approved or distributed and will not
prepare, make, use, authorize, approve or distribute any written communication
that constitutes an offer to sell or solicitation of an offer to buy the
Securities other than (i) the Pricing Disclosure Package, (ii) the
Final Offering Memorandum and (iii) any electronic road show or other
written communications, in each case used in accordance with Section 3(a).  Each such communication by the Company or its
agents and representatives pursuant to clause (iii) of the preceding
sentence (each, a “Company Additional Written
Communication”), when taken together with the Pricing Disclosure
Package, did not as of the Time of Sale, and at the Closing Date will not,
contain any untrue statement of a material fact or omit to state a material
fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; provided that this
representation, warranty and agreement shall not apply to statements in or
omissions from each such Company Additional Written Communication made in
reliance upon and in conformity with information furnished to the Company in
writing by or on behalf of any Initial Purchaser
through the Representative expressly for use in any Company Additional Written
Communication.


 


(f)            Incorporated Documents.  The documents incorporated or deemed to be
incorporated by reference in the Offering Memorandum at the time they were or
hereafter are filed with the Commission (collectively, the “Incorporated Documents”) complied and will comply as to form
in all material respects with the requirements of the Exchange Act.  Each such Incorporated 


 


4

















 


Document, when taken together with the Pricing
Disclosure Package, did not as of the Time of Sale, and at the Closing Date
will not, contain any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.


 


(g)           The Purchase Agreement.  This Agreement has been duly authorized, executed
and delivered by the Company and the Guarantors.


 


(h)           The DTC Agreement.  The DTC Agreement has been duly authorized
and, on the Closing Date, will have been duly executed and delivered by, and
will constitute a valid and binding agreement of, the Company, enforceable in
accordance with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general principles
of equity.


 


(i)            Authorization of the Notes
and the Guarantees.  The Notes
to be purchased by the Initial Purchasers from the Company will on the Closing
Date be in the form contemplated by the Indenture, have been duly authorized
for issuance and sale pursuant to this Agreement and the Indenture and, at the
Closing Date, will have been duly executed by the Company and, when
authenticated in the manner provided for in the Indenture and delivered against
payment of the purchase price therefor, will constitute valid and binding
obligations of the Company, enforceable in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the rights
and remedies of creditors or by general principles of equity and will be
entitled to the benefits of the Indenture. 
The Guarantees of the Notes on the Closing Date will be in the forms
contemplated by the Indenture and have been duly authorized for issuance
pursuant to this Agreement and the Indenture; the Guarantees of the Notes, at
the Closing Date, will have been duly executed by each of the Guarantors and,
when the Notes have been authenticated in the manner provided for in the
Indenture and issued and delivered against payment of the purchase price
therefor, the Guarantees of the Notes will constitute valid and binding
agreements of the Guarantors enforceable in accordance with their terms, except
as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium or other similar laws relating to or affecting the
rights and remedies of creditors or by general equitable principles and will be
entitled to the benefits of the Indenture.


 


(j)            Authorization of the
Indenture.  The Indenture has
been duly authorized by the Company and the Guarantors and, at the Closing
Date, will have been duly executed and delivered by the Company and the
Guarantors and will constitute a valid and binding agreement of the Company and
the Guarantors, enforceable against the Company and the Guarantors in
accordance with its terms, except as the enforcement thereof may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
relating to or affecting the rights and remedies of creditors or by general
principles of equity.


 


(k)           Description of the
Securities and the Indenture. 
The Securities and the Indenture will conform in all material respects
to the descriptions thereof contained in the Offering Memorandum.


 


5

















 


(l)            No Material Adverse Change
in Business.  Since the
respective dates as of which information is given in the Offering Memorandum
(exclusive of any amendment of supplement thereto), except as otherwise stated
therein, (A) there has been no material adverse change in the financial condition,
business, assets or results of operation of the Company and its
subsidiaries considered as one enterprise, whether or not arising in the
ordinary course of business (any such change is called a “Material Adverse
Change”), (B) there have been no transactions entered into by the Company
or any of its subsidiaries, other than those in the ordinary course of
business, which are material with respect to the Company and its subsidiaries
considered as one enterprise, and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company to the Nation other than the type disclosed in the Offering Memorandum.


 


(m)          Independent Accountants.  Ernst & Young LLP , which expressed
its opinion with respect to the financial statements (which term as used in
this Agreement includes the related notes thereto) and supporting schedules
included in the Offering Memorandum is an independent registered public
accounting firm within the meaning of the Securities Act, the Exchange Act and
the rules of the Public Company Accounting Oversight Board, and any
non-audit services provided by Ernst & Young LLP to the Company or any
of the Guarantors have been approved by the Audit Committee of the Board of
Directors of the Company.


 


(n)           Preparation of the
Financial Statements.  The
financial statements, together with the related schedules and notes, included
in the Offering Memorandum present fairly in all material respects the consolidated
financial position of the entities to which they relate as of and at the dates
indicated and the results of their operations and cash flows for the periods
specified.  Such financial statements
have been prepared in conformity with generally accepted accounting principles
as applied in the United States applied on a consistent basis throughout the
periods involved, except as may be expressly stated in the related notes
thereto.  The financial data set forth in
the Offering Memorandum under the captions “Summary—Summary Historical
Consolidated Financial and Other Data” and “Selected Consolidated Financial and
Other Data” fairly present the information set forth therein on the basis
stated in the Offering Memorandum.  The
statistical and market-related data and forward-looking statements included in
the Offering Memorandum are based on or derived from sources that the Company
and its subsidiaries believe to be reliable and accurate in all material
respects and represent their good faith estimates that are made on the basis of
data derived from such sources.


 


(o)           Good Standing of the
Company and its Subsidiaries. 
The Company and its subsidiaries are validly existing entities chartered
under the laws of the Nation, each with power and authority to conduct its
business as described in the Offering Memorandum and, in the case of the
Company and the Guarantors, to enter into and perform its obligations under
each of this Agreement, the DTC Agreement, the Securities and the Indenture.
The Company does not own or control, directly or indirectly, any corporation,
association or other entity other than the subsidiaries listed in Exhibit B
hereto.


 


(p)           Capitalization and Other
Capital Stock Matters.  At June 30,
2010, on a consolidated basis, after giving pro forma effect to the issuance
and sale of the Securities pursuant hereto and the Indenture, and the
consummation of the Refinancing Transactions (as defined in 


 


6

















 


the Pricing Disclosure Package and the Offering Memorandum),
the Company would have the capitalization as set forth in the Offering
Memorandum under the caption “Capitalization.”


 


(q)           Ownership.  The Company is owned solely by the Nation.


 


(r)            Non-Contravention of
Existing Instruments; No Further Authorizations or Approvals Required.  Neither the Company nor any of its
subsidiaries is (i) in violation of its charter, bylaws or other
constitutive document or (ii) in default (or, with the giving of notice or
lapse of time, would be in default) (“Default”) under
any indenture, mortgage, loan or credit agreement, note, contract, franchise,
lease or other instrument to which the Company or any of its subsidiaries is a
party or by which it or any of them may be bound (including, without
limitation, the 2012 Notes Indenture, and the Existing Senior Secured Loan
Agreement) or to which any of the property or assets of the Company or any of
its subsidiaries is subject (each, an “Existing Instrument”),
except, in the case of clause (ii) above, for such Defaults as would not,
individually or in the aggregate, result in a Material Adverse Change.  The Company’s execution, delivery and
performance of this Agreement, the DTC Agreement and the Indenture, and the
issuance and delivery of the Securities, and consummation of the transactions
contemplated hereby and thereby and by the Offering Memorandum (i) have
been duly authorized by all necessary  action required by the charter of the Company and will not result in any
violation of the provisions of the charter, bylaws or other constitutive
document of the Company or any subsidiary, (ii) will not conflict with or
constitute a breach of, or Default or a Debt Repayment Triggering Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, or require the consent of any other party to, any
Existing Instrument, except for such conflicts, breaches, Defaults, liens,
charges or encumbrances as would not, individually or in the aggregate, result
in a Material Adverse Change, and (iii) will not result in any violation
of any law, administrative regulation or administrative or court decree
applicable to the Company or any subsidiary. 
No consent, approval, authorization or other order of, or registration
or filing with, any court or other governmental or regulatory authority or
agency is required for the Company’s execution, delivery and performance of
this Agreement, the DTC Agreement or the Indenture, or the issuance and
delivery of the Securities, or consummation of the transactions contemplated
hereby and thereby and by the Offering Memorandum, except such as have been
obtained or made by the Company and are in full force and effect or except as may be required under blue sky laws or other applicable
securities laws of the several states of the United States or provinces of
Canada.  As used herein, a “Debt Repayment Triggering Event” means any event or
condition which gives, or with the giving of notice or lapse of time would
give, the holder of any note, debenture or other evidence of indebtedness (or
any person acting on such holder’s behalf) the right to require the repurchase,
redemption or repayment of all or a portion of such indebtedness by the Company
or any of its subsidiaries.


 


(s)           Absence of Proceedings.  Except as described in the Offering
Memorandum, there are no actions, suits, proceedings, inquiries or
investigations before or brought by any court or governmental agency or body
(tribal, domestic or foreign), now pending, or, to the knowledge of the
Company, threatened, against or affecting the Company or any of its
subsidiaries which are reasonably likely to result in a Material Adverse
Change, or which are reasonably likely to materially and adversely affect the
properties or assets of the Company and its subsidiaries considered 


 


7

















 


as one enterprise, or the consummation of the
transactions contemplated by this Agreement or the performance by the Company
and the Guarantors of their obligations hereunder.  Other than matters disclosed in the Offering
Memorandum, the aggregate of all pending legal or governmental proceedings to
which the Company or any of its subsidiaries is a party or of which any of their
respective property or assets is the subject, including ordinary routine
litigation incidental to the business, could not reasonably be expected to
result in a Material Adverse Change.


 


(t)            Possession of Intellectual
Property.  The Company and its
subsidiaries own or possess, or can acquire on reasonable terms, adequate
licenses, copyrights, know-how (including trade secrets and other unpatented
and/or unpatentable proprietary or confidential information, systems or
procedures), trademarks, service marks, trade names or other intellectual
property (collectively, “Intellectual Property”) necessary to carry on the
business now operated by them, and neither the Company nor any of its
subsidiaries has received any notice or is otherwise aware of any infringement
of or conflict with asserted rights of others with respect to any Intellectual
Property or of any facts or circumstances which would render any Intellectual
Property invalid or inadequate to protect the interest of the Company or any of
its subsidiaries therein, and which infringement or conflict (if the subject of
any unfavorable decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, would result in a Material Adverse Change.


 


(u)           Absence of Further
Requirements. No filing with, or authorization, approval, consent,
license, order, registration, qualification or decree of, any court or
governmental authority or agency, including without limitation approval by the
Bureau of Indian Affairs, United States Department of Interior under 25 U.S.C.
§81 or approval by the National Indian Gaming Commission under 25 C.F.R.
§502.5, is necessary or required for the performance by the Company or the
Guarantors of their obligations hereunder, in connection with the offering,
issuance or sale of the Securities hereunder or the consummation of the
transactions contemplated by this Agreement, except such as have been already
obtained or as may be required under any necessary qualification under the
securities or blue sky laws of the various jurisdictions in which the
Securities are being offered by the Initial Purchasers.


 


(v)           Possession of Licenses and
Permits.  The Company and its
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, “Governmental Licenses”) issued by the
appropriate Nation, federal, state, local or foreign regulatory agencies or
bodies necessary to conduct the business now operated by them, except where the
failure so to possess would not, singly or in the aggregate, result in a
Material Adverse Change; the Company and its subsidiaries are in compliance
with the terms and conditions of all such Governmental Licenses, except where
the failure so to comply would not, singly or in the aggregate, result in a
Material Adverse Change; all of the Governmental Licenses are valid and in full
force and effect, except where the invalidity of such Governmental Licenses or
the failure of such Governmental Licenses to be in full force and effect would
not, singly or in the aggregate, result in a Material Adverse Change; and,
except as disclosed in the Offering Memorandum, neither the Company nor any of
its subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly or
in the aggregate, if the subject of an unfavorable decision, ruling or finding,
would result in a Material Adverse Change.


 


(w)          Title to Properties.  The Company and its subsidiaries have good
title to all real property owned by the Company and its subsidiaries and good
title to all other properties owned 


 


8

















 


by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (a) are described in the Offering
Memorandum or (b) would not, singly or in the aggregate, result in a
Material Adverse Change; and, except as described in the Offering Memorandum,
all of the leases and subleases material to the business of the Company and its
subsidiaries, considered as one enterprise, and under which the Company or any
of its subsidiaries holds properties described in the Offering Memorandum, are
in full force and effect, and except as described in the Offering Memorandum,
neither the Company nor any of its subsidiaries has any notice of any material
claim of any sort that has been asserted by anyone adverse to the rights of the
Company or any of its subsidiaries under any of the leases or subleases
mentioned above, or affecting or questioning the rights of the Company or any
subsidiary thereof to the continued possession of the leased or subleased
premises under any such lease or sublease.


 


(x)            Tax Matters.  The Company and its subsidiaries have filed
all necessary federal, state and foreign income, franchise and material other
tax returns and have paid all taxes required to be paid by any of them and, if
due and payable, except as disclosed in the Offering Memorandum, any related or
similar assessment, fine or penalty levied against any of them.  The Company has made adequate charges,
accruals and reserves in accordance with GAAP in the applicable financial
statements referred to in Section 1(m) hereof in respect of all
federal, state and foreign income, franchise and material other taxes for all
periods as to which the tax liability of the Company or any of its subsidiaries
has not been finally determined.  Subject
to the qualifications and limitations set forth in the Offering Memorandum under
the caption “Risk Factors — Risks Relating to our Relationship to the Nation —
There is a lack of authority regarding the United States’ tax treatment of entities that have been chartered by Indian
Tribes,” each of the Company and the Guarantors is a non-taxable entity for
purposes of federal income taxation under the Internal Revenue Code of 1986, as
amended, and the income of the Company and the Guarantors is exempt from
federal and state income taxation; the operations of the Company and the
Guarantors are not subject to any sales  or property tax for transactions conducted on lands held in restricted fee or on the
Nation’s reservation territory.


 


(y)           Company and Guarantors Not
an “Investment Company”.  The
Company has been advised of the rules and requirements under the
Investment Company Act of 1940, as amended (the “Investment
Company Act,” which term, as used herein, includes the rules and
regulations of the Commission promulgated thereunder).  Neither the Company nor any Guarantor is, or
after receipt of payment for the Securities will be, an “investment company”
within the meaning of the Investment Company Act and will conduct its business
in a manner so that it will not become subject to the Investment Company Act.


 


(z)            No Price Stabilization or
Manipulation.  None of the
Company or any of the Guarantors has taken and will not take, directly or
indirectly, any action designed to or that might be reasonably expected to
cause or result in stabilization or manipulation of the price of any security
of the Company to facilitate the sale or resale of the Securities.


 


(aa)         Solvency.  Each of the Company and the Guarantors is,
and immediately after the Closing Date will be, Solvent.  As used herein, the term “Solvent” means, with respect to any person on a particular
date, that on such date (i) the fair market value of the assets of such
person is greater than the total amount of liabilities (including contingent
liabilities) of such person, (ii) 


 


9

















 


the present fair salable value of the assets of such
person is greater than the amount that will be required to pay the probable
liabilities of such person on its debts as they become absolute and matured,
and (iii) such person is able to realize upon its assets and pay its debts
and other liabilities, including contingent obligations, as they mature.


 


(bb)         Compliance with
Sarbanes-Oxley.  The Company
and its subsidiaries and their respective officers and directors are in
compliance with the applicable provisions of the Sarbanes-Oxley Act of 2002
(the “Sarbanes-Oxley Act,” which term, as
used herein, includes the rules and regulations of the Commission
promulgated thereunder).


 


(cc)         Company’s Accounting
System.  The Company and its
subsidiaries maintain a system of internal control over financial reporting
that is in compliance with the Sarbanes-Oxley Act and is sufficient to provide
reasonable assurance that:  (i) transactions
are executed in accordance with management’s general or specific authorization;
(ii) transactions are recorded as necessary to permit preparation of
financial statements in conformity with generally accepted accounting
principles as applied in the United States and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and (iv) the recorded
accountability for assets is compared with existing assets at reasonable
intervals and appropriate action is taken with respect to any differences; the
Company’s auditors and the Audit Committee of the Board of Directors of the
Company have been advised of: (A) any significant deficiencies or material
weaknesses in the design or operation of internal controls which could
adversely affect the Company’s ability to record, process, summarize, and
report financial data; and (B) any fraud, whether or not material, that
involves management or other employees who have a role in the Company’s
internal controls; and since the date of the most recent evaluation of such
internal control over financial reporting there has been no change that has materially affected, or is reasonably
likely to materially affect, the Company’s internal control over financial
reporting.


 


(dd)         Disclosure Controls and
Procedures.  The Company has
established and maintains disclosure controls and procedures (as such term is
defined in Rules 13a-15 and 15d-15 under the Exchange Act); such
disclosure controls and procedures are designed to ensure that information
required to be disclosed by the Company in the reports that it files or submits
under the Exchange Act is recorded, processed, summarized and reported, within
the time periods specified in the rules and forms of the Commission,
including, without limitation, controls and procedures designed to ensure that
information required to be disclosed by the Company in the reports that it
files or submits under the Exchange Act is accumulated and communicated to the
Company’s management, including the chief executive officer and chief financial
officer of the Company, to allow timely decisions regarding required
disclosure.  Such disclosure controls and
procedures are reasonably effective to perform the functions for which they
were established subject to the limitations of any such control system.


 


(ee)         Environmental Laws.  Except as described in the Offering
Memorandum and except such matters as would not, individually or in the
aggregate, result in a Material Adverse Change, neither the Company nor any of
its subsidiaries (i) has failed to comply with any Federal, state, local,
Nation, and foreign statutes, laws (including common law), treaties,
regulations, ordinances, rules, codes, judgments, orders (including consent
orders), decrees, permits, concessions, grants, franchises, licenses,
agreements or governmental restrictions relating to pollution


 


10






 












 


and the protection of the environment, natural
resources  or the release or threatened
release of , or exposure to, chemicals, pollutants, contaminants, wastes, toxic
substances, hazardous substances, toxic materials, hazardous materials,
petroleum or petroleum products, polychlorinated biphenyls, asbestos-containing
materials or mold (collectively, “Hazardous Materials”)
or the generation, manufacture, processing, distribution, use, treatment,
storage, recycling or handling of, or the arrangement of such activities with
respect to, Hazardous Materials (collectively, “Environmental
Law”), or to take, in a timely manner, all actions necessary to
obtain, maintain, renew and comply with any permit required under Environmental
Law applicable to it or the Seneca Niagara Casino and Hotel, the Seneca
Allegany Casino and Hotel, the Seneca Buffalo Creek Casino, the Seneca Hickory
Stick Golf Course and any other location that the Company or any Guarantor
conducts gaming business within the exclusivity area described in the Compact
as in effect on the date hereof (collectively, the “Venue”),
and all such permits are in full force and effect and not subject to any
administrative or judicial appeal; (ii) has become a party to any governmental,
administrative or judicial proceeding or any officer possesses knowledge of any
such proceeding that has been threatened in
writing against it under Environmental Law; (iii) has received written notice
of, become subject to, or is aware of any facts or circumstances that could
reasonably be expected to form the basis for, any Environmental Claim or
Environmental Liability  applicable to it
or any Venue; (iv) possesses knowledge that any Venue (a) is subject to
any lien, restriction on ownership, occupancy, use or transferability imposed
pursuant to Environmental Law or (b) contains or previously contained
Hazardous Materials of a form or type or in a quantity or location that could
reasonably be expected to result in any Environmental Liability; (v) possesses
knowledge that there has been a release or threat of release of Hazardous
Materials at or from the Venues (or from any facilities or other properties
formerly owned, leased or operated by the Company or any of its subsidiaries)
in violation of, or in amounts or in a manner that could give rise to any
Environmental Liability; (vi) has generated, treated, stored, transported or
released Hazardous Materials in violation of, or in a manner or to a location,
that, in either case, could reasonably be expected to give rise to any Environmental
Liability; (vii) is aware of any facts, circumstances, conditions or
occurrences in respect of any of the facilities and properties owned, leased or
operated by the Company or any of its subsidiaries that could reasonably be
expected to (i) form the basis of any action, suit, claim or other
judicial or administrative proceeding relating to liability under or
noncompliance with any Environmental Law on the part of the Company or any of
its subsidiaries, (ii) interfere with or prevent continued compliance with
Environmental Law by the Company or any of its subsidiaries, (iii) require
material upgrades or capital expenditures in order to maintain compliance or
avoid environmental claims or environmental liabilities or (iv) result in
any Environmental Liability; or (viii) has, pursuant to any order, decree,
judgment or agreement by which it is bound, assumed the Environmental Liability
of any other person. As used herein, “Environmental Claim” means any
investigation, notice, notice of violation, claim, action, suit, proceeding,
demand, abatement order or other order or directive (conditional or otherwise)
brought pursuant to Environmental Law or otherwise directly or indirectly
relating to or in connection with any actual or alleged Environmental
Liability.  As used herein, “Environmental Liability”
means any liability, obligation, damage, loss, claims, action, suit, judgment,
order, fine, penalty, fee, expense or cost (including administrative oversight
costs, natural resource damages and remediation costs), whether contingent or
otherwise of  the Company or
any of its subsidiaries directly or indirectly resulting from or based upon (1)
compliance or non-compliance with any Environmental Law, (2) the generation,
use, handling, transportation, storage, treatment or disposal of any Hazardous
Materials, (3) exposure to 


 


11

















 


any Hazardous Materials, (4) the release or threatened release of any Hazardous Materials, or (5) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.


 


(ff)          Absence of Labor Disputes.  No labor dispute with the employees of the
Company or any of its subsidiaries exists or, to the knowledge of the Company,
is imminent, and the Company is not aware of any existing or imminent labor
disturbance by the employees of any of its or any of its subsidiaries’
principal suppliers, manufacturers, customers or contractors, which, in either
case, would result in a Material Adverse Change.


 


(gg)         Related Party
Transactions.  No
relationship, direct or indirect, exists between or among any of the Company or
any affiliate of the Company, on the one hand, and any director, officer,
member, stockholder, customer or supplier of the Company or any affiliate of
the Company, on the other hand, which is required by the Securities Act to be
disclosed in a registration statement on Form S-1 which is not so disclosed in
the Offering Memorandum.  There are no
outstanding loans, advances (except advances for business expenses in the
ordinary course of business) or guarantees of indebtedness by the Company or
any affiliate of the Company to or for the benefit of any of the officers or
directors of the Company or any affiliate of the Company or any of their
respective family members.


 


(hh)         No Unlawful Contributions
or Other Payments.  Neither
the Company nor any of its subsidiaries nor, to the knowledge of the Company,
any director, officer, agent, employee or affiliate of the Company or any of
its subsidiaries is aware of or has taken any action, directly or indirectly,
that would result in a violation by such persons of the FCPA, including,
without limitation, making use of the mails or any means or instrumentality of
interstate commerce corruptly in furtherance of an offer, payment, promise to
pay or authorization of the payment of any money, or other property, gift,
promise to give, or authorization of the giving of anything of value to any “foreign
official” (as such term is defined in the FCPA) or any foreign political party
or official thereof or any candidate for foreign political office, in
contravention of the FCPA and the Company, its subsidiaries and, to the
knowledge of the Company, its affiliates have conducted their businesses in
compliance with the FCPA and have instituted and maintain policies and
procedures designed to ensure, and which are reasonably expected to continue to
ensure, continued compliance therewith.


 


“FCPA” means Foreign Corrupt Practices
Act of 1977, as amended, and the rules and regulations thereunder.


 


(ii)           No Conflict with Money
Laundering Laws.  The
operations of the Company and its subsidiaries are and have been conducted at
all times in compliance with applicable financial recordkeeping and reporting
requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all applicable jurisdictions, the
rules and regulations thereunder and any related or similar rules, regulations
or guidelines issued, administered or enforced by any governmental agency
(collectively, the “Money Laundering Laws”)
and no action, suit or proceeding by or before any court or governmental
agency, authority or body or any arbitrator involving the Company or any of its
subsidiaries with respect to the Money Laundering Laws is pending or, to the
best knowledge of the Company, threatened.


 


12

















 


(jj)           No Conflict with OFAC
Laws.  Neither the Company nor
any of its subsidiaries nor, to the knowledge of the Company, any director,
officer, agent, employee or affiliate of the Company or any of its subsidiaries
is currently subject to any U.S. sanctions administered by the Office of
Foreign Assets Control of the U.S. Treasury Department (“OFAC”);
and the Company will not directly or indirectly use the proceeds of the
offering, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity, for the purpose of
financing the activities of any person currently subject to any U.S. sanctions
administered by OFAC.


 


(kk)         Sovereign Immunity.  The waivers of sovereign immunity (including
the related agreements to submit claims to binding arbitration) by each of the
Company and the Guarantors contained in this Agreement , the Indenture and the
Nation Agreement are in compliance with all applicable federal and tribal laws
and, upon execution of such documents, will effectively waive the sovereign
immunity of such parties, will be irrevocable, validly and legally binding on
such each of them, enforceable against such each of them in accordance with
their respective terms and, no further action will be required to make any such
waiver effective.


 


(ll)           New Senior Secured Credit
Facility.  The New Senior
Secured Credit Facility has been duly and validly authorized by the Company and
the Guarantors and, when duly executed and delivered by the Company and the
Guarantors, will be the valid and legally binding obligation of the Company and
the Guarantors, enforceable in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general principles of equity.


 


(mm)      Regulation S.  The Company, the Guarantors and its their
respective affiliates and all persons acting on their behalf (other than the
Initial Purchasers, as to whom the Company and the Guarantors make no
representation) have complied with and will comply with the offering
restrictions requirements of Regulation S in connection with the offering of
the Securities outside the United States and, in connection therewith, the
Offering Memorandum will contain the disclosure required by Rule 902.


 


(nn)         Material Agreements and
Orders.  Except as described
in the Offering Memorandum, there are no agreements or instruments to which the
Company or a Guarantor is a party and under which a default by the Company or
such Guarantor could reasonably be expected to have a Material Adverse Change
(the “Material Agreements”), or any all judgments, orders or decrees of any
court or administrative agency a violation of which could reasonably be
expected to have a Material Adverse Change (the “Material Orders”).


 


Any
certificate signed by an officer of the Company or any Guarantor and delivered
to the Initial Purchasers or to counsel for the Initial Purchasers shall be
deemed to be a representation and warranty by the Company or such Guarantor to
each Initial Purchaser as to the matters set forth in such certificate.


 


13

















 


SECTION 2.         Purchase, Sale and
Delivery of the Securities.


 


(a)           The Securities.  The Company agrees to issue and sell to the
Initial Purchasers, severally and not jointly, all of the Notes, and the
Initial Purchasers agree, severally and not jointly, to purchase from the
Company the aggregate principal amount of Notes set forth opposite their names
on Schedule A, at a purchase price of 98% of the
principal amount thereof payable on the Closing Date, in each case, on the
basis of the representations, warranties and agreements herein contained, and
upon the terms, subject to the conditions thereto, herein set forth.


 


(b)           The Closing Date.  Delivery of certificates for the Securities
in definitive form to be purchased by the Initial Purchasers and payment
therefor shall be made at the offices of Latham & Watkins LLP, 885 Third
Avenue, New York, NY 10022, (or such other place as may be agreed to by the Company
and the Representative) at 9:00 a.m. New York City time, on 

November 18 , 2010, or such other time
and date as the Representative shall designate by notice to the Company (the
time and date of such closing are called the “Closing Date”).  The Company hereby acknowledges that
circumstances under which the Representative may provide notice to postpone the
Closing Date as originally scheduled include, but are in no way limited to, any
determination by the Company or the Initial Purchasers to recirculate to investors
copies of an amended or supplemented Offering Memorandum or a delay as
contemplated by the provisions of Section 17 hereof.


 


(c)           Delivery of the
Securities.  The Company shall
deliver, or cause to be delivered, to the Representative for the accounts of
the several Initial Purchasers certificates for the Notes at the Closing Date
against the irrevocable release of a wire transfer of immediately available
funds for the amount of the purchase price therefor.  The certificates for the Notes shall be in such
denominations and registered in the name of Cede & Co., as nominee of the
Depositary, pursuant to the DTC Agreement, and shall be made available for
inspection on the business day preceding the Closing Date at a location in New
York City, as the Representative may designate. 
Time shall be of the essence, and delivery at the time and place
specified in this Agreement is a further condition to the obligations of the
Initial Purchasers.


 


(d)           Initial Purchasers as
Qualified Institutional Buyers. 
Each Initial Purchaser severally and not jointly represents and warrants
to, and agrees with, the Company that:


 


(i)      it will offer and sell Securities only to (a) persons who it
reasonably believes are “qualified institutional buyers” within the meaning of
Rule 144A (“Qualified Institutional Buyers”)
in transactions meeting the requirements of Rule 144A or (b) upon the terms and
conditions set forth in Annex I to this Agreement;


 


(ii)     it is an institutional “accredited investor” within the meaning
of Rule 501(a)(1), (2), (3) or (7) under the Securities Act; and


 


(iii)    it will not offer or sell Securities by, any form of general
solicitation or general advertising, including but not limited to the methods
described in Rule 502(c) under the Securities Act.


 


SECTION 3.         Additional Covenants.  Each of the Company and the Guarantors
further covenants and agrees with each Initial Purchaser as follows:


 


14

















 


(a)           Preparation of Final
Offering Memorandum; Initial Purchasers’ Review of Proposed Amendments and
Supplements and Company Additional Written Communications.  As promptly as practicable following the Time
of Sale and in any event not later than the second business day following the
date hereof, the Company will prepare and deliver to the Initial Purchasers the
Final Offering Memorandum, which shall consist of the Preliminary Offering
Memorandum as modified only by the information contained in the Pricing
Supplement.  The Company will not amend
or supplement the Preliminary Offering Memorandum or the Pricing
Supplement.  The Company will not amend
or supplement the Final Offering Memorandum prior to the Closing Date unless
the Representative shall previously have been furnished a copy of the proposed
amendment or supplement at least 24
hours prior to the proposed use or filing, and shall not have objected to
such amendment or supplement.  Before
making, preparing, using, authorizing, approving or distributing any Company
Additional Written Communication, the Company will furnish to the
Representative a copy of such written communication for review and will not
make, prepare, use, authorize, approve or distribute any such written
communication to which the Representative reasonably objects.


 


(b)           Amendments and Supplements
to the Final Offering Memorandum and Other Securities Act Matters.  If at any time prior to the Closing Date (i)
any event shall occur or condition shall exist as a result of which any of the
Pricing Disclosure Package as then amended or supplemented would include any
untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading or (ii) it is
necessary to amend or supplement any of the Pricing Disclosure Package to
comply with law, the Company and the Guarantors will promptly notify the
Initial Purchasers thereof and forthwith prepare and (subject to Section 3(a)
hereof) furnish to the Initial Purchasers such amendments or supplements to any
of the Pricing Disclosure Package as may be necessary so that the statements in
any of the Pricing Disclosure Package as so amended or supplemented will not,
in the light of the circumstances under which they were made, be misleading or
so that any of the Pricing Disclosure Package will comply with all applicable
law.  If, prior to the completion of the
placement of the Securities by the Initial Purchasers with the Subsequent
Purchasers, any event shall occur or condition exist as a result of which it is
necessary to amend or supplement the Final Offering Memorandum, as then amended
or supplemented, in order to make the statements therein, in the light of the
circumstances when the Final Offering Memorandum is delivered to a Subsequent
Purchaser, not misleading, or if in the judgment of the Representative or
counsel for the Initial Purchasers it is otherwise necessary to amend or
supplement the Final Offering Memorandum to comply with law, the Company and
the Guarantors agree to promptly prepare (subject to Section 3 hereof) and
furnish at its own expense to the Initial Purchasers, amendments or supplements
to the Final Offering Memorandum so that the statements in the Final Offering
Memorandum as so amended or supplemented will not, in the light of the
circumstances at the Closing Date and at the time of sale of Securities, be
misleading or so that the Final Offering Memorandum, as amended or
supplemented, will comply with all applicable law.


 


The Company hereby expressly acknowledges that the indemnification and
contribution provisions of Sections 8 and 9 hereof are specifically
applicable and relate to each offering memorandum, amendment or supplement
referred to in this Section 3.


 


15

















 


(c)           Copies of the Offering
Memorandum.  The Company
agrees to furnish the Initial Purchasers, without charge, as many copies of the
Pricing Disclosure Package and the Final Offering Memorandum and any amendments
and supplements thereto as they shall reasonably request.


 


(d)           Blue Sky Compliance.  Each of the Company and the Guarantors shall
cooperate with the Representative and counsel for the Initial Purchasers to
qualify or register (or to obtain exemptions from qualifying or registering)
all or any part of the Securities for offer and sale under the securities laws
of the several states of the United States, the provinces of Canada or any
other jurisdictions designated by the Representative, shall comply with such
laws and shall cooperate with the Representative and counsel for the Initial
Purchasers to continue such qualifications, registrations and exemptions in
effect so long as required for the distribution of the Securities by the
Initial Purchasers; provided, however, that
none of the Company or any of the Guarantors shall be required to qualify as a
foreign corporation or to take any action that would subject it to general
service of process in any such jurisdiction where it is not presently qualified
or where it would be subject to taxation as a foreign corporation.  The Company will advise the Representative
promptly of the suspension of the qualification or registration of (or any such
exemption relating to) the Securities for offering, sale or trading in any
jurisdiction or any initiation or threat of any proceeding for any such
purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, each of the Company and the
Guarantors shall use its best efforts to obtain the withdrawal thereof at the
earliest possible moment.


 


(e)           Use of Proceeds.  The Company shall apply the net proceeds from
the sale of the Securities sold by it in the manner described under the caption
“Use of Proceeds” in the Pricing Disclosure Package.


 


(f)            The Depositary.  The Company will cooperate with the Initial
Purchasers and use its best efforts to permit the Securities to be eligible for
clearance and settlement through the facilities of the Depositary.


 


(g)           Additional Issuer
Information.  So long as any
of the Notes are “restricted securities” within the meaning of Rule 144(a)(3)
under the Act, the Company will, during any period in which it is not subject
to and in compliance with Section 13 or 15(d) of the Exchange Act or it is not
exempt from such reporting requirements pursuant to and in compliance with Rule
12g3-2(b) under the Exchange Act, for the benefit of holders and beneficial
owners from time to time of the Securities, furnish, at its expense, upon
request, to holders and beneficial owners of Securities and prospective
purchasers of Securities information (“Additional Issuer
Information”) satisfying the requirements of Rule 144A(d)(4).


 


(h)           Agreement Not To Offer or
Sell Additional Securities. 
During the period of 60 days following the date hereof, the Company will
not, without the prior written consent of Merrill
Lynch, Pierce, Fenner & Smith Incorporated (which consent may be
withheld at the sole discretion of Merrill
Lynch, Pierce, Fenner & Smith Incorporated), directly or indirectly,
sell, offer, contract or grant any option to sell, pledge, transfer or
establish an open “put equivalent position” within the meaning of Rule 16a-1
under the Exchange Act, or otherwise dispose of or transfer, or announce the
offering of, or file any registration statement under the Securities Act in 


 


16

















 


respect of, any debt securities of the Company or
securities exchangeable for or convertible into debt securities of the Company
(other than as contemplated by this Agreement).


 


(i)            No Integration.  The Company agrees that it will not and will
cause its Affiliates not to make any offer or sale of securities of the Company
of any class if, as a result of the doctrine of “integration” referred to in
Rule 502 under the Securities Act, such offer or sale would render invalid (for
the purpose of (i) the sale of the Securities by the Company to the Initial
Purchasers, (ii) the resale of the Securities by the Initial Purchasers to
Subsequent Purchasers or (iii) the resale of the Securities by such Subsequent
Purchasers to others) the exemption from the registration requirements of the
Securities Act provided by Section 4(2) thereof or by Rule 144A or by
Regulation S thereunder or otherwise.


 


(j)            No General Solicitation or
Directed Selling Efforts.  The
Company agrees that it will not and will not permit any of its Affiliates or
any other person acting on its or their behalf (other than the Initial
Purchasers, as to which no covenant is given) to (i) solicit offers for,
or offer or sell, the Securities by means of any form of general solicitation
or general advertising within the meaning of Rule 502(c) of Regulation D or in
any manner involving a public offering within the meaning of Section 4(2) of
the Securities Act or (ii) engage in any directed selling efforts with respect
to the Securities within the meaning of Regulation S, and the Company will and
will cause all such persons to comply with the offering restrictions
requirement of Regulation S with respect to the Securities.


 


(k)           No Restricted Resales.  The Company will not, and will not permit any
of its affiliates (as defined in Rule 144 under the Securities Act) to resell
any of the Notes that have been reacquired by any of them.


 


(l)            Legended Securities.  Each certificate for a Note will bear the
legend contained in “Transfer Restrictions” in the Preliminary Offering
Memorandum for the time period and upon the other terms stated in the
Preliminary Offering Memorandum.


 


The
Representative on behalf of the several Initial Purchasers, may, in its sole
discretion, waive in writing the performance by the Company or any Guarantor of
any one or more of the foregoing covenants or extend the time for their
performance.


 


SECTION 4.         Payment of Expenses.  Each of the Company and the Guarantors agrees
to pay all costs, fees and expenses incurred in connection with the performance
of its obligations hereunder and in connection with the transactions
contemplated hereby, including, without limitation, (i) all expenses incident
to the issuance and delivery of the Securities (including all printing and
engraving costs), (ii) all necessary issue, transfer and other stamp taxes in
connection with the issuance and sale of the Securities to the Initial
Purchasers, (iii) all fees and expenses of the Company’s and the Guarantors’
counsel, independent public or certified public accountants and other advisors,
(iv) all costs and expenses incurred in connection with the preparation,
printing, filing, shipping and distribution of the Pricing Disclosure Package
and the Final Offering Memorandum (including financial statements and
exhibits), and all amendments and supplements thereto, this Agreement, the
Nation Agreement, the Indenture, the DTC Agreement and the Notes and
Guarantees, (v) all filing fees, attorneys’ fees and expenses incurred by the
Company, the Guarantors or the Initial Purchasers in connection with qualifying
or registering (or obtaining 


 


17

















 


exemptions from the qualification or registration
of) all or any part of the Securities for offer and sale under the securities
laws of the several states of the United States, the  provinces of Canada or other jurisdictions
designated by the Initial Purchasers (including, without limitation, the cost of
preparing, printing and mailing preliminary and final blue sky or legal
investment memoranda and any related supplements to the Pricing Disclosure
Package or the Final Offering Memorandum, (vi) the fees and expenses of the
Trustee, including the fees and disbursements of counsel for the Trustee in
connection with the Indenture and the Securities, (vii) any fees payable in
connection with the rating of the Securities with the ratings agencies, (viii)
any filing fees incident to, and any reasonable fees and disbursements of
counsel to the Initial Purchasers in connection with the review by FINRA, if
any, of the terms of the sale of the Securities, (ix) all fees and expenses
(including reasonable fees and expenses of counsel) of the Company and the
Guarantors in connection with approval of the Securities by the Depositary for “book-entry”
transfer, and the performance by the Company and the Guarantors of their
respective other obligations under this Agreement and (x) all expenses incident
to the “road show” for the offering of the Securities, including the cost of
any chartered airplane or other transportation;  provided that to the extent the expenses described in clause
(x) of this paragraph exceed $200,000, the Initial Purchasers agree to pay for
50% of such expenses in excess of such amount. 
Except as provided in this Section 4 and Sections 6, 8 and 9
hereof, the Initial Purchasers shall pay their own expenses, including the fees
and disbursements of their counsel.


 


SECTION 5.         Conditions of the
Obligations of the Initial Purchasers.  The obligations of the several Initial
Purchasers to purchase and pay for the Securities as provided herein on the
Closing Date shall be subject to the accuracy of the representations and
warranties (x) on the part of the Company and the Guarantors set forth in Section
1 hereof as of the date hereof and as of the Closing Date as though then made
and to the timely performance by the Company of its covenants and other
obligations hereunder; (y) on the part of the Nation contained in the Nation
Agreement as of its date and as of the Closing Date as though then made and to
the timely performance by the Nation of its covenants and other obligations
thereunder, and to each of the following additional conditions:


 


(a)           Accountants’ Comfort
Letter.  On the date hereof,
the Initial Purchasers shall have received from Ernst & Young LLP, the
independent registered public accounting firm for the Company, a “comfort
letter” dated the date hereof addressed to the Initial Purchasers, in form and
substance satisfactory to the Representative, covering the financial
information in the Pricing Disclosure Package and other customary matters.  In addition, on the Closing Date, the Initial
Purchasers shall have received from such accountants a “bring-down comfort
letter” dated the Closing Date addressed to the Initial Purchasers, in form and
substance satisfactory to the Representative, in the form of the “comfort
letter” delivered on the date hereof, except that (i) it shall cover the
financial information in the Final Offering Memorandum and any amendment or
supplement thereto and (ii) procedures shall be brought down to a date no more
than 5 days prior to the Closing Date.


 


(b)           No Material Adverse Change
or Ratings Agency Change.  For
the period from and after the date of this Agreement and prior to the Closing
Date:


 


(i)            in the judgment of the Representative there shall not
have occurred any Material Adverse Change; and


 


18

















 


(ii)           there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential downgrading or of any
review for a possible change that does not indicate the direction of the
possible change, in the rating accorded the Company or any of its subsidiaries
or any of their securities or indebtedness by any “nationally recognized
statistical rating organization” as such term is defined for purposes of Rule
436 under the Securities Act.


 


(c)           Opinion of Counsel for the
Company.  On the Closing Date
the Initial Purchasers shall have received the favorable opinion and negative
assurance letter of Orrick, Herrington & Sutcliffe LLP, counsel for the
Company, dated as of such Closing Date, the form of which is attached as
Exhibit A.


 


(d)           Opinion of Counsel for the
Initial Purchasers.  On the
Closing Date the Initial Purchasers shall have received the favorable opinion
and negative assurance letter of Latham & Watkins LLP, counsel for the
Initial Purchasers, dated as of such Closing Date, with respect to such matters
as may be reasonably requested by the Initial Purchasers.


 


(e)           Opinion of Indian Law
Counsel for Initial Purchasers. 
On the Closing Date the Initial Purchasers shall have received the
favorable opinion and negative assurance letter of Faegre & Benson, LLP,
special Indian Law counsel for the Initial Purchasers, dated as of such Closing
Date, with respect to such matters as may be reasonably requested by the
Initial Purchasers.


 


(f)            Officers’ Certificate.  On the Closing Date the Initial Purchasers
shall have received:


 


(x) a written certificate executed by the Chairman
of the Board, Chief Executive Officer or President of the Company and each
Guarantor and the Chief Financial Officer or Chief Accounting Officer of the
Company and each Guarantor, dated as of the Closing Date, to the effect set forth
in Section 5(b)(ii) hereof, and further to the effect that:


 


(i)            for the period from and after the date of this Agreement
and prior to the Closing Date there has not occurred any Material Adverse
Change;


 


(ii)           the representations, warranties and covenants of the
Company and the Guarantors set forth in Section 1 hereof were true and
correct as of the date hereof and are true and correct as of the Closing Date
with the same force and effect as though expressly made on and as of the
Closing Date; and


 


(iii)          the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied at or
prior to the Closing Date; and


 


(y) a certificate of an authorized officer of the
Nation, dated as of Closing Date, to the effect that (i) the representations
and warranties in the Nation Agreement were
true and correct as of the date hereof and are true and correct as of
the Closing Date 


 


19

















 


with the same force and effect as though expressly
made on and as of the Closing Date and (ii) the Nation has complied with all
the agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date.


 


(g)           Indenture.  The Company and the
Guarantors shall have executed and delivered the Indenture, in form and
substance reasonably satisfactory to the Initial Purchasers, and the Initial
Purchasers shall have received executed copies thereof.


 


(h)           New Senior Secured Credit
Facility.  The New Senior Secured
Credit Facility shall have been consummated on the terms and conditions
described in the Pricing Disclosure Package.


 


(i)            Nation Agreement.  On or before the Closing Date, the
Nation shall have executed the Nation Agreement, which shall be substantially in form
attached hereto as Exhibit C.


 


(j)            Approval by the Nation’s
Council.  (i) The Company and
each of the Guarantors shall have received on or before the Closing Date
approval by the Nation’s Council of (A) the waiver by the Company and each
Guarantor of its sovereign immunity and (B) the submission by the Company and
each Guarantor to jurisdiction of non-Nation courts, in the case of each of
clauses (A) and (B), as set forth in this Agreement, the New Senior Secured
Credit Facility, the DTC Agreement and the Indenture, and (ii) the Company and
each of the Guarantors shall have received on or before the Closing Date
approval by the Nation’s Council of the execution, delivery and performance of
each of the transaction documents (including the Notes and the Guarantees) in
connection with the offering of the Securities.


 


(k)           Additional Documents.  On or before the Closing Date, the Initial
Purchasers and counsel for the Initial Purchasers shall have received such
information, documents and opinions as they may reasonably require for the
purposes of enabling them to pass upon the issuance and sale of the Securities
as contemplated herein, or in order to evidence the accuracy of any of the
representations and warranties, or the satisfaction of any of the conditions or
agreements, herein contained.


 


(l)            Letter of Representation.  On or before the Closing Date, a letter of
representation from Seneca Gaming Authority shall have been received in form
and substance satisfactory to the Initial Purchasers to the effect that none of
the Initial Purchasers or the Holders of Notes or the Trustee is required to be
licensed or registered or found suitable under applicable Nation law in
connection with the transactions contemplated hereby, the ownership of any
Notes or the execution and performance of the Indenture.


 


If
any condition specified in this Section 5 is not satisfied when and as
required to be satisfied, this Agreement may be terminated by the
Representative by notice to the Company at any time on or prior to the Closing
Date, which termination shall be without liability on the part of any party to
any other party, except that Sections 4, 6, 8 and 9 hereof shall at all
times be effective and shall survive such termination.


 


SECTION 6.         Reimbursement of Initial
Purchasers’ Expenses.  If this
Agreement is terminated by the Representative pursuant to Section 5 or 10
hereof, including if the sale to the


 


20






 












 


Initial Purchasers of the Securities on the Closing
Date is not consummated because of any refusal, inability or failure on the
part of the Company to perform any agreement herein or to comply with any
provision hereof, the Company agrees to reimburse the Initial Purchasers,
severally, upon demand for all out-of-pocket expenses that shall have been
reasonably incurred by the Initial Purchasers in connection with the proposed
purchase and the offering and sale of the Securities, including, without
limitation, fees and disbursements of counsel, printing expenses, travel
expenses, postage, facsimile and telephone charges.


 


SECTION 7.                                Offer,
Sale and Resale Procedures.  Each of the Initial Purchasers, on the one
hand, and the Company and each of the Guarantors, on the other hand, hereby
agree to observe the following procedures in connection with the offer and sale
of the Securities:


 


(a)                                  Offers and
sales of the Securities will be made only by the Initial Purchasers or
Affiliates thereof qualified to do so in the jurisdictions in which such offers
or sales are made.  Each such offer or
sale shall only be made to persons whom the offeror or seller reasonably
believes to be Qualified Institutional Buyers or non-U.S. persons outside the
United States to whom the offeror or seller reasonably believes offers and
sales of the Securities may be made in reliance upon Regulation S upon the
terms and conditions set forth in Annex I hereto, which Annex I is hereby
expressly made a part hereof.


 


(b)                                 The Securities
will be offered by approaching prospective Subsequent Purchasers on an
individual basis.  No general
solicitation or general advertising (within the meaning of Rule 502 under the
Securities Act) will be used in the United States in connection with the
offering of the Securities.


 


(c)                                  Upon original
issuance by the Company, and until such time as the same is no longer required
under the applicable requirements of the Securities Act, the Notes (and all
securities issued in exchange therefor or in substitution thereof) shall bear
the following legend:


 


“THIS NOTE HAS NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”) AND MAY NOT BE OFFERED, SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A) (1) TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE ACT PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (2) IN AN OFFSHORE TRANSACTION COMPLYING WITH RULE 903 OR RULE 904 OF
REGULATION S UNDER THE ACT, (3) TO AN INSTITUTIONAL ACCREDITED INVESTOR IN A
TRANSACTION EXEMPT FROM THE REGISTRATION REQUIREMENTS OF THE ACT AND IN A
MINIMUM PRINCIPAL AMOUNT OF THE NOTES OF $250,000, (4) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE),
OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE ACT AND (B) IN
ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED 


 


21

















 


STATES.  THE HOLDER HEREOF AGREES THAT IT WILL DELIVER
TO EACH PERSON WHOM THIS NOTE OR AN INTEREST HEREIN IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND.”


 


Following
the sale of the Securities by the Initial Purchasers to Subsequent Purchasers
pursuant to the terms of this Agreement and the Indenture, the Initial
Purchasers shall not be liable or responsible to the Company for any losses,
damages or liabilities suffered or incurred by the Company, including any
losses, damages or liabilities under the Securities Act, arising from or
relating to any resale or transfer of any Security.


 


SECTION 8.                                Indemnification.


 


(a)                                  Indemnification
of the Initial Purchasers.  Each of the Company and the Guarantors,
jointly and severally, agrees to indemnify and hold harmless each Initial
Purchaser, its affiliates, directors, officers and employees, and each person,
if any, who controls any Initial Purchaser within the meaning of the Securities
Act and the Exchange Act against any loss, claim, damage, liability or expense,
as incurred, to which such Initial Purchaser, affiliate, director, officer,
employee or controlling person may become subject, under the Securities Act,
the Exchange Act or other federal or state statutory law or regulation, or at
common law or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of the Company), insofar as
such loss, claim, damage, liability or expense (or actions in respect thereof
as contemplated below) arises out of or is based:  (i) upon any untrue statement or alleged
untrue statement of a material fact contained in the Preliminary Offering
Memorandum, the Pricing Supplement, any Company Additional Written Communication
or the Final Offering Memorandum (or any amendment or supplement thereto), or
the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading; or (ii) in whole or in part upon any
inaccuracy in the representations and warranties of the Company contained
herein; or (iii) in whole or in part upon any failure of the Company to
perform its obligations hereunder or under law; or (iv) any act or failure
to act or any alleged act or failure to act by any Initial Purchaser in
connection with, or relating in any manner to, the offering contemplated
hereby, and which is included as part of or referred to in any loss, claim,
damage, liability or action arising out of or based upon any matter covered by
clause (i) above, provided that the Company shall not be liable under this
clause (iv) to the extent that a court of competent jurisdiction shall have
determined by a final judgment that such loss, claim, damage, liability or
action resulted directly from any such acts or failures to act undertaken or
omitted to be taken by such Initial Purchaser through its gross negligence or
willful misconduct; and to reimburse each Initial Purchaser and each such
affiliate, director, officer, employee or controlling person for any and all
expenses (including the fees and disbursements of counsel chosen by Merrill Lynch, Pierce, Fenner & Smith Incorporated) as such
expenses are reasonably incurred by such Initial Purchaser or such affiliate,
director, officer, employee or controlling person in connection with
investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action; provided, however, that the
foregoing indemnity agreement shall not apply, with respect to an Initial
Purchaser, to any loss, claim, damage, liability or expense to the extent, but
only to the extent, arising out of or based upon any untrue statement or
alleged untrue statement or omission or alleged 


 


22

















 


omission made in reliance upon and in conformity
with written information furnished to the Company by such Initial Purchaser
through the Representative expressly for use in the Preliminary Offering
Memorandum, the Pricing Supplement, any Company Additional Written
Communication or the Final Offering Memorandum (or any amendment or supplement
thereto).  The indemnity agreement set
forth in this Section 8(a) shall be in addition to any liabilities that
the Company may otherwise have.


 


(b)                                 Indemnification
of the Company and the Guarantors.  Each Initial Purchaser agrees, severally and
not jointly, to indemnify and hold harmless the Company, each Guarantor, each
of their respective directors, officers, employees and each person, if any, who
controls the Company or any Guarantor within the meaning of the Securities Act
or the Exchange Act, against any loss, claim, damage, liability or expense, as
incurred, to which the Company, any Guarantor or any such director, officer,
employee or controlling person may become subject, under the Securities Act,
the Exchange Act, or other federal or state statutory law or regulation, or at
common law or otherwise (including in settlement of any litigation, if such
settlement is effected with the written consent of such Initial Purchaser),
insofar as such loss, claim, damage, liability or expense (or actions in
respect thereof as contemplated below) arises out of or is based upon any
untrue statement or alleged untrue statement of a material fact contained in
the Preliminary Offering Memorandum, the Pricing Supplement, any Company
Additional Written Communication or the Final Offering Memorandum (or any
amendment or supplement thereto), or the omission or alleged omission therefrom
of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, in each
case to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in the Preliminary
Offering Memorandum, the Pricing Supplement, any Company Additional Written
Communication or the Final Offering Memorandum (or any amendment or supplement
thereto), in reliance upon and in conformity with written information furnished
to the Company by such Initial Purchaser through the Representative expressly
for use therein; and to reimburse the Company, any Guarantor and each such
director or controlling person for any and all expenses (including the fees and
disbursements of counsel) as such expenses are reasonably incurred by the
Company, any Guarantor or such director or controlling person in connection
with investigating, defending, settling, compromising or paying any such loss,
claim, damage, liability, expense or action. 
Each of the Company and the Guarantors hereby acknowledges that the only
information that the Initial Purchasers through the Representative have
furnished to the Company expressly for use in the Preliminary Offering
Memorandum, the Pricing Supplement, any Company Additional Written
Communication or the Final Offering Memorandum (or any amendment or supplement
thereto) are the statements set forth in the last paragraph of the cover page
to the Preliminary Offering Memorandum and the Final Offering Memorandum and in
the following paragraphs (and, where specified,
sentences) under the caption “Plan of Distribution / Conflicts” in the
Preliminary Offering Memorandum and the Final Offering Memorandum: the third
paragraph, the first sentence of the fifth paragraph, the third sentence of the
seventh paragraph, the tenth paragraph and the eleventh paragraph.  The indemnity agreement set forth in this
Section 8(b) shall be in addition to any liabilities that each Initial
Purchaser may otherwise have.


 


(c)                                  Notifications
and Other Indemnification Procedures.  Promptly after receipt by an indemnified
party under this Section 8 of notice of the commencement of any action, such 


 


23

















 


indemnified party will, if a claim in respect
thereof is to be made against an indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement thereof; provided
that the failure to so notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party under this Section 8
except to the extent that it has been materially prejudiced by such failure
(through the forfeiture of substantive rights and defenses) and shall not
relieve the indemnifying party from any liability that the indemnifying party
may have to an indemnified party other than under this Section 8.  In case any such action is brought against
any indemnified party and such indemnified party seeks or intends to seek
indemnity from an indemnifying party, the indemnifying party will be entitled
to participate in and, to the extent that it shall elect, jointly with all
other indemnifying parties similarly notified, by written notice delivered to
the indemnified party promptly after receiving the aforesaid notice from such
indemnified party, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party; provided, however, if the defendants in
any such action include both the indemnified party and the indemnifying party
and the indemnified party shall have reasonably concluded that a conflict may
arise between the positions of the indemnifying party and the indemnified party
in conducting the defense of any such action or that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, the
indemnified party or parties shall have the right to select separate counsel to
assume such legal defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties.  Upon receipt of notice from the indemnifying
party to such indemnified party of such indemnifying party’s election so to
assume the defense of such action and approval by the indemnified party of
counsel, the indemnifying party will not be liable to such indemnified party
under this Section 8 for any legal or other expenses subsequently incurred by
such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the
proviso to the immediately preceding sentence (it being understood, however,
that the indemnifying party shall not be liable for the expenses of more than
one separate counsel (together with local counsel (in each jurisdiction)),
approved by the indemnifying party (Merrill
Lynch, Pierce, Fenner & Smith Incorporated in the case of
Sections 8(b) and 9 hereof), representing the indemnified parties who are
parties to such action) or (ii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action, in
each of which cases the fees and expenses of counsel shall be at the expense of
the indemnifying party.


 


(d)                                 Settlements.  The indemnifying party under this Section 8
shall not be liable for any settlement of any proceeding effected without its
written consent, which will not be unreasonably withheld, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party against any loss,
claim, damage, liability or expense by reason of such settlement or
judgment.  Notwithstanding the foregoing
sentence, if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as contemplated by this Section 8, the indemnifying party agrees
that it shall be liable for any settlement of any proceeding effected without
its written consent if (i) such settlement is entered into more than 30 days
after receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in
accordance with such request prior to the date of such settlement.  No indemnifying party shall, without the
prior written consent of the indemnified 


 


24

















 


party, effect any settlement, compromise or consent
to the entry of judgment in any pending or threatened action, suit or
proceeding in respect of which any indemnified party is or could have been a
party and indemnity was or could have been sought hereunder by such indemnified
party, unless such settlement, compromise or consent (i) includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such action, suit or proceeding and (ii) does
not include any statements as to or any findings of fault, culpability or
failure to act by or on behalf of any indemnified party.


 


SECTION 9.                                Contribution.  If the indemnification provided for in
Section 8 hereof is for any reason held to be unavailable to or otherwise
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages, liabilities or expenses referred to therein, then each
indemnifying party shall contribute to the aggregate amount paid or payable by
such indemnified party, as incurred, as a result of any losses, claims,
damages, liabilities or expenses referred to therein (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand,
from the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
the Guarantors, on the one hand, and the Initial Purchasers, on the other hand,
in connection with the statements or omissions or inaccuracies in the representations
and warranties herein which resulted in such losses, claims, damages,
liabilities or expenses, as well as any other relevant equitable
considerations.  The relative benefits
received by the Company and the Guarantors, on the one hand, and the Initial
Purchasers, on the other hand, in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company, and the total discount received by the Initial Purchasers bear to
the aggregate initial offering price of the Securities.  The relative fault of the Company and the
Guarantors, on the one hand, and the Initial Purchasers, on the other hand,
shall be determined by reference to, among other things, whether any such
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact or any such inaccurate or alleged inaccurate
representation or warranty relates to information supplied by the Company and
the Guarantors, on the one hand, or the Initial Purchasers, on the other hand,
and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission or inaccuracy.


 


The
amount paid or payable by a party as a result of the losses, claims, damages,
liabilities and expenses referred to above shall be deemed to include, subject
to the limitations set forth in Section 8 hereof, any legal or other fees
or expenses reasonably incurred by such party in connection with investigating
or defending any action or claim.  The
provisions set forth in Section 8 hereof with respect to notice of
commencement of any action shall apply if a claim for contribution is to be
made under this Section 9; provided, however, that no additional notice
shall be required with respect to any action for which notice has been given
under Section 8 hereof for purposes of indemnification.


 


The
Company, the Guarantors and the Initial Purchasers agree that it would not be
just and equitable if contribution pursuant to this Section 9 were determined
by pro rata allocation 


 


25

















 


(even
if the Initial Purchasers were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the equitable
considerations referred to in this Section 9.


 


Notwithstanding
the provisions of this Section 9, no Initial Purchaser shall be required to
contribute any amount in excess of the discount received by such Initial
Purchaser in connection with the Securities distributed by it.  No person guilty of fraudulent
misrepresentation (within the meaning of Section 11 of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.  The
Initial Purchasers’ obligations to contribute pursuant to this Section 9 are
several, and not joint, in proportion to their respective commitments as set
forth opposite their names in Schedule A. 
For purposes of this Section 9, each director, officer and employee of
an Initial Purchaser and each person, if any, who controls an Initial Purchaser
within the meaning of the Securities Act and the Exchange Act shall have the
same rights to contribution as such Initial Purchaser, and each director of the
Company or any Guarantor, and each person, if any, who controls the Company or
any Guarantor with the meaning of the Securities Act and the Exchange Act shall
have the same rights to contribution as the Company and the Guarantors.


 


SECTION 10.                          Termination
of this Agreement.  Prior to the
Closing Date, this Agreement may be terminated by the Representative by notice
given to the Company if at any time:  (i)
trading or quotation in any of the Company’s securities shall have been
suspended or limited by the Commission, or trading in securities generally on
either the Nasdaq Stock Market or the New York Stock Exchange shall have been
suspended or limited, or minimum or maximum prices shall have been generally
established on any of such quotation system or stock exchange by the Commission
or FINRA; (ii) a general banking moratorium shall have been declared by any of
federal or New York State authority; (iii) there shall have occurred any
outbreak or escalation of national or international hostilities or any crisis
or calamity, or any change in the United States or international financial
markets, or any substantial change or development involving a prospective
substantial change in United States’ or international political, financial or
economic conditions, as in the judgment of the Representative is material and
adverse and makes it impracticable or inadvisable to proceed with the offering
sale or delivery of the Securities in the manner and on the terms described in
the Pricing Disclosure Package or to enforce contracts for the sale of
securities; or (iv) in the reasonable judgment of the Representative there
shall have occurred any Material Adverse Change.  Any termination pursuant to this Section 10
shall be without liability on the part of (i) the Company or any Guarantor to
any Initial Purchaser, except that the Company and the Guarantors shall be
obligated to reimburse the expenses of the Initial Purchasers pursuant to
Sections 4 and 6 hereof, (ii) any Initial Purchaser to the Company, or
(iii) any party hereto to any other party except that the provisions of
Sections 8 and 9 hereof shall at all times be effective and shall survive
such termination.


 


SECTION 11.                          Representations
and Indemnities to Survive Delivery.  The respective indemnities, agreements,
representations, warranties and other statements of the Company, the
Guarantors, their respective officers and the several Initial Purchasers set
forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Initial
Purchaser, the Company, any Guarantor or any of their partners, 


 


26

















 


officers or directors or any controlling person, as
the case may be, and will survive delivery of and payment for the Securities
sold hereunder and any termination of this Agreement.


 


SECTION 12.                          Notices.  All communications hereunder shall be in writing
and shall be mailed, hand delivered, couriered or facsimiled and confirmed to
the parties hereto as follows:


 


If to the Initial Purchasers:


 


Merrill Lynch, Pierce, Fenner & Smith
Incorporated

One Bryant Park

New York, New York 10036 

Facsimile: 1-212-901-7897

Attention: Legal


 


with a copy to:


 


Latham
& Watkins LLP

885 Third Avenue

New York, New York 10022

Facsimile: 1-212-751-4864

Attention: Raymond Lin, Esq.


 


If
to the Company or the Guarantors:


 


Seneca
Gaming Corporation


310
Fourth Street


Niagara
Falls, New York 14303

Facsimile: 1-716-501-2888

Attention: Lee Shannon, Senior Vice President & General Counsel




Any
party hereto may change the address or facsimile number for receipt of
communications by giving written notice to the others.


 


SECTION 13.                          Successors.  This Agreement will inure to the benefit of
and be binding upon the parties hereto, and to the benefit of the indemnified
parties referred to in Sections 8 and 9 hereof, and in each case their
respective successors, and no other person will have any right or obligation
hereunder.  The term “successors” shall
not include any Subsequent Purchaser or other purchaser of the Securities as
such from any of the Initial Purchasers merely by reason of such purchase.


 


SECTION 14.                          Authority
of the Representative.  Any
action by the Initial Purchasers hereunder may be taken by the Representative
on behalf of the Initial Purchasers, and any such action taken by the
Representative shall be binding upon the Initial Purchasers.


 


SECTION 15.                          Partial
Unenforceability.  The
invalidity or unenforceability of any section, paragraph or provision of this
Agreement shall not affect the validity or enforceability of 


 


27

















 


any other section, paragraph or provision
hereof.  If any section, paragraph or
provision of this Agreement is for any reason determined to be invalid or
unenforceable, there shall be deemed to be made such minor changes (and only
such minor changes) as are necessary to make it valid and enforceable.


 


SECTION 16.                                    Limited
Waiver of Sovereign Immunity.


 


(a)                                  Retention
of Sovereign Immunity.  By
executing this Agreement, none of the Company or the Guarantors waives, limits
or modifies its sovereign immunity from unconsented suit or judicial
litigation, except as provided for herein.


 


(b)                                 Scope
of Waiver.  Subject to
the limitations contained herein, the Company and each of the Guarantors hereby
expressly and irrevocably grants to the Initial Purchasers and any indemnified
party under this Agreement, an irrevocable limited waiver of the Company’s and
each Guarantor’s sovereign immunity from unconsented suit or other legal
proceedings of any nature (including arbitration and interim and provisional
proceedings) with respect to any action, suit, proceeding or counterclaim,
whether based on contract, tort or otherwise, including any action commenced
under the Indian Civil Rights Act (25 U.S.C. §1301 et. Seq.), concerning any
claim, dispute, or controversy (each, a “Claim”) arising
out of or related to this Agreement or the transactions contemplated hereby,
whether arising in law or in equity (the foregoing waiver being referred to as
the “Limited Waiver”), and expressly and
irrevocably consent to suit and arbitration with respect to any such Claim.


 


(c)                                  Procedural
Requirements.  The Limited
Waiver by the Company and each of the Guarantors will be effective as to a
Claim if, and only if, each and every one of the following conditions is met:


 


(i)                                     the Claim is
made by a Claimant (as defined below) and not by any other person whatsoever;


 


(ii)                                  the Claim
alleges a breach by the Company or any of the Guarantors of one or more of the
specific obligations or duties expressly set forth under the terms of this
Agreement or a specific right otherwise available to a Claimant at law or in
equity arising out of or relating to this Agreement;


 


(iii)                               the Claim seeks
(a) payment of a specified sum, some specific action, or discontinuance of some
action, by the Company or any of the Guarantors to bring the Company or any of
the Guarantors into full compliance with its duties and obligations expressly
set forth under this Agreement or to permit relief under other principles of
law or equity; or (b) money damages for noncompliance with the terms and
provisions of this Agreement or for any other reason related to or arising
hereunder; provided, however, that the property, assets or funds specifically
pledged and assigned and subject to levy, execution or judicial process to
satisfy any judgment against the Company or any of the Guarantors pursuant to
the Limited Waiver shall include, to the extent lawful under federal law, but
be limited to, the personal property of the Company and the Guarantors;


 


28

















 


(iv)                              exclusive of
any Claim for provisional or interim relief, the Claim shall have been made in
writing to the Company or any of the Guarantors, stating the specific relief
sought, and the Company or such Guarantor shall have seven (7) calendar days to
provide such relief before judicial proceedings may be instituted; provided,
however, that this cure period may be extended for non-monetary matters for an
additional fourteen (14) calendar days so long as the Company or such Guarantor
is making good faith efforts to cure the alleged breach or non-performance; and


 


(v)                                 with respect to
any Claim authorized herein, initial suit, as authorized herein, shall be
commenced within the later of three (3) years after the claim accrues or is
discovered upon the exercise of due diligence, or such claim shall be forever
barred.  The Limited Waiver granted in
this Agreement shall commence on the date of such agreements and shall continue
for three (3) years following the date of the termination of thereof, except
that the waiver shall remain effective for any proceedings then pending, and
all appeals therefrom.


 


(d)                                 Recipient
of Waiver.  The
recipients of the benefit of this irrevocable waiver of sovereign immunity are
limited to the Initial Purchasers and any and all persons covered by the
indemnification provisions hereof, their heirs, permitted successors and
assigns (each, a “Claimant”).


 


(e)                                  Governing
Law.  THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE
OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO BE PERFORMED IN SUCH STATE
WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.


 


(f)                                    Enforcement.  Subject to the terms of the Limited Waiver,
the Company and each of the Guarantors will expressly and irrevocably waive its
sovereign immunity from a judgment or order consistent with the terms and
provisions of the Limited Waiver, and will consent to the jurisdiction of, to
be sued in and to accept and be bound by any order or judgment of any of the
United States District Courts for New York or the New York State Supreme Court,
any federal or state court having appellate jurisdiction thereover
(collectively, “New York Forums”), and, to the
extent consistent with this Agreement, each Nation Forum defined below, all to
the extent consistent with the terms and provisions of the Limited Waiver.  Subject to the terms of the Limited Waiver,
the Company and each of the Guarantors will waive its sovereign immunity as to
an action by any Claimant in any of the New York Forums, and, to the extent
consistent with this Agreement, each Nation Forum, seeking injunctive and/or
declaratory relief against the Company or any of the Guarantors based upon an
attempt by the Company or such Guarantors to revoke or limit in whole or in
party the Limited Waiver, and as to enforcement in said New York Forums or
Nation Forums of any such final judgment against the Company or any Guarantor.


 


(g)                                 Waivers.  Subject to the terms of the Limited Waiver,
the Company and each of the Guarantors hereby expressly and irrevocably waives:


 


(i)                                     its rights to have
any Claim heard in any forum other than New York Forums, whether or not such
forum now exists or is hereafter created including, without 


 


29

















 


limitation,
any court or other tribunal, form, council, or adjudicative body of the Nation
(each, a “Nation Forum”);


 


(ii)                                  any claim or
right which it may possess to the exercise of jurisdiction by any Nation Forum,
including, without limitation, any determination that any Nation Forum has
jurisdiction over any such dispute, controversy, suit, action or proceeding or
jurisdiction to determine the scope of such Nation Forum’s jurisdiction;


 


(iii)                               any claim or
right to assert that a requirement may exist for exhaustion of any remedies
available in any Nation Forum prior to the commencement of any dispute,
controversy, suit, action or proceeding in any state or federal court even if
any such Nation Forum would have concurrent jurisdiction over any such dispute,
controversy, suit, action or proceeding but for the Limited Waiver;


 


(iv)                              its sovereign
immunity as to the action of the Initial Purchasers or any indemnified party
under this Agreement in any of the New York Forums or, to the extent consistent
with this Agreement, seeking injunctive and/or declaratory relief against the
Company or any of the Guarantors based upon an attempt by it to revoke or limit
in whole or in part the Limited Waiver; and


 


(v)                                 its sovereign
immunity from a judgment or order (including any appellate judgment or other
order) and post-judgment proceedings supplemental thereto consistent with the
terms and provisions of the Limited Waiver, which is final because either the
time for appeal thereof has expired or the judgment or an order is issued by
the court having final jurisdiction over the matter.


 


(h)                                 No
Revocation of Sovereign Immunity Waiver.  The Company and each of the Guarantors agree
not to revoke or limit, in whole or in part, the Limited Waiver contained in
this Agreement, and forever releases and waives its rights to so revoke or
limit the Limited Waiver.  In the event
of any attempted limitation or revocation in whole or in part of the Limited
Waiver, any Claimant may immediately seek judicial injunctive relief as
provided in this Agreement in any New York Forum, or, to the extent consistent
with this Agreement, any Nation Forum, and the Company and each of the
Guarantors expressly consents to the jurisdiction of, and agrees to be bound by
any order or judgment of such forums.


 


(i)                                     Arbitration.  If, and only if, a dispute arises between the
parties over a Claim subject to the Limited Waiver (the “Dispute”),
and neither the United States District Courts for New York nor the New York
State Supreme Court can or is willing to hear the Dispute, then either party
may request binding arbitration of the Dispute in accordance with the
procedures set forth herein.  To initiate
binding arbitration of a Dispute, a party shall notify the other party in
writing.  The Dispute shall be settled by
binding arbitration in accordance with the Commercial Arbitration Rules of the
American Arbitration Association, and judgment on the award rendered by the
arbitrator may be entered in any court of competent jurisdiction.  One arbitrator shall preside and shall be
selected by the American Arbitration Association.


 


30
















 


Any
party, before or during any arbitration, may apply to a court having
jurisdiction for a temporary restraining order or preliminary injunction where
such relief is necessary to protect its interests pending completion of the
dispute resolution proceedings.


 


No
party nor the arbitrator may disclose the existence or results of any
arbitration hereunder, which shall be considered confidential to the parties,
except:


 


(i)                                     with the
express prior written consent of the other party, which consent shall not be unreasonably
withheld or delayed;


 


(ii)                                  as required by
applicable law, the rules of any relevant stock exchange or requirement of any
lender, by order or decree of a court or other governmental authority having
jurisdiction over such party, or in connection with such party’s enforcement of
any rights it may have at law or in equity;


 


(iii)                               on a “need to
know” basis to persons within or outside such party’s organization, such as
attorneys, accountants, bankers, financial advisors and other consultants; or


 


(iv)                              after such
information has become publicly available without breach of this Agreement.


 


In
the event of arbitration, the prevailing party shall be entitled to all of its
costs, including reasonable attorneys’ fees and costs and expenses, from the
nonprevailing party.


 


The
arbitration shall take place at a location in an agreed city in the State of
New York or such other place as the parties may jointly agree.  The arbitrator shall render an award within
forty-five (45) days from the conclusion of the arbitration.


 


The
decision of the arbitrator will be final and binding and enforced with the same
force and effect as a decree of a court having competent jurisdiction.  For this purpose, should the losing party in
any arbitration proceeding pursuant to this Agreement refuse to abide by the
decision of the arbitrator, the prevailing party may apply to any of the United
States District Courts for New York, the New York State Supreme Court or a
Nation Forum having jurisdiction to compel enforcement of the arbitrator’s
award resulting from binding arbitration and each party hereto consents to the
jurisdiction of each such court for this purpose.  Subject to the terms of the Limited Waiver,
the Company and each of the Guarantors will expressly and irrevocably waive its
sovereign immunity with respect to the entry of judgment on, and enforcement
of, such award by such forums.


 


(j)                                     Service
of Process.  In any
legal action or proceeding as to which the Company or any of the Guarantors has
waived its sovereign immunity as set forth this Section 16, the Company and
each of the Guarantors will consent and agree that process against such person
shall be effective if served:


 


(i)                                     on the Chairman
of the Company’s Board of Directors; and


 


31

















 


(ii)                                  by sending two
(2) copies of the process by registered or certified mail to the General
Counsel of the Company (if any) at the address set forth in Section 12 hereof.


 


The
Company and each of the Guarantors will irrevocably appoint each of the persons
in the foregoing clauses and their respective successors in said offices from
time to time, as agent for service of process made in accordance therewith.


 


SECTION 17.                          Default
of One or More of the Several Initial Purchasers.  If any one or more of the several Initial
Purchasers shall fail or refuse to purchase Securities that it or they have
agreed to purchase hereunder on the Closing Date, and the aggregate number of
Securities which such defaulting Initial Purchaser or Initial Purchasers agreed
but failed or refused to purchase does not exceed 10% of the aggregate number
of the Securities to be purchased on such date, the other Initial Purchasers
shall be obligated, severally, in the proportions that the number of Securities
set forth opposite their respective names on Schedule A bears to the aggregate
number of Securities set forth opposite the names of all such non-defaulting
Initial Purchasers, or in such other proportions as may be specified by the
Initial Purchasers with the consent of the non-defaulting Initial Purchasers,
to purchase the Securities which such defaulting Initial Purchaser or Initial
Purchasers agreed but failed or refused to purchase on the Closing Date.  If any one or more of the Initial Purchasers
shall fail or refuse to purchase Securities and the aggregate number of
Securities with respect to which such default occurs exceeds 10% of the
aggregate number of Securities to be purchased on the Closing Date, and
arrangements satisfactory to the Initial Purchasers and the Company for the
purchase of such Securities are not made within 48 hours after such default,
this Agreement shall terminate without liability of any party to any other
party except that the provisions of Sections 4, 6, 8 and 9 hereof shall at
all times be effective and shall survive such termination.  In any such case either the Initial
Purchasers or the Company shall have the right to postpone the Closing Date, as
the case may be, but in no event for longer than seven days in order that the
required changes, if any, to the Final Offering Memorandum or any other
documents or arrangements may be effected.


 


As
used in this Agreement, the term “Initial Purchaser”
shall be deemed to include any person substituted for a defaulting Initial
Purchaser under this Section 17. 
Any action taken under this Section 17 shall not relieve any defaulting
Initial Purchaser from liability in respect of any default of such Initial
Purchaser under this Agreement.


 


SECTION 18.                          No
Advisory or Fiduciary Responsibility.  Each of the Company and the Guarantors
acknowledges and agrees that: (i) the purchase and sale of the Securities
pursuant to this Agreement, including the determination of the offering price
of the Securities and any related discounts and commissions, is an arm’s-length
commercial transaction between the Company and the Guarantors, on the one hand,
and the several Initial Purchasers, on the other hand, and the Company and the
Guarantors are capable of evaluating and understanding and understand and
accept the terms, risks and conditions of the transactions contemplated by this
Agreement; (ii) in connection with each transaction contemplated hereby and the
process leading to such transaction each Initial Purchaser is and has been
acting solely as a principal and is not the agent or fiduciary of the Company,
and the Guarantors or their respective affiliates, creditors or employees or
any other party; (iii) no Initial Purchaser has assumed or will assume an
advisory or fiduciary responsibility in favor of the Company and the Guarantors
with respect to any of the transactions contemplated hereby or the process
leading thereto (irrespective of whether


 


32

















 


such Initial Purchaser has advised or is currently
advising the Company and the Guarantors on other matters) or any other
obligation to the Company and the Guarantors except the obligations expressly
set forth in this Agreement; (iv) the several Initial Purchasers and their
respective affiliates may be engaged in a broad range of transactions that
involve interests that differ from those of the Company and the Guarantors, and
the several Initial Purchasers have no obligation to disclose any of such
interests by virtue of any fiduciary or advisory relationship; and (v) the Initial
Purchasers have not provided any legal, accounting, regulatory or tax advice
with respect to the offering contemplated hereby, and the Company and the
Guarantors have consulted their own legal, accounting, regulatory and tax
advisors to the extent they deemed appropriate.


 


This
Agreement supersedes all prior agreements and understandings (whether written
or oral) between the Company, the Guarantors and the several Initial
Purchasers, or any of them, with respect to the subject matter hereof.  The Company and the Guarantors hereby waive
and release, to the fullest extent permitted by law, any claims that the
Company and the Guarantors may have against the several Initial Purchasers with
respect to any breach or alleged breach of fiduciary duty.


 


SECTION 19.                          General
Provisions.  This Agreement
constitutes the entire agreement of the parties to this Agreement and
supersedes all prior written or oral and all contemporaneous oral agreements,
understandings and negotiations with respect to the subject matter hereof;
provided, however, that this Agreement shall not supersede or modify the
Settlement Agreement and Release, dated as of August 19, 2010, as amended,
between the Company and the Representative. 
This Agreement may be executed in two or more counterparts, each one of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument. 
Delivery of an executed counterpart of a signature page to this
Agreement by telecopier, facsimile or other electronic transmission (i.e., a “pdf”
or “tif”) shall be effective as delivery of a manually executed counterpart
thereof.  This Agreement may not be
amended or modified unless in writing by all of the parties hereto, and no
condition herein (express or implied) may be waived unless waived in writing by
each party whom the condition is meant to benefit.  The section headings herein are for the
convenience of the parties only and shall not affect the construction or
interpretation of this Agreement.


 


33

















 


If
the foregoing is in accordance with your understanding of our agreement, kindly
sign and return to the Company the enclosed copies hereof, whereupon this
instrument, along with all counterparts hereof, shall become a binding
agreement in accordance with its terms.


 


	
  Very
  truly yours,

  	
   

  	
   

  
	
   

  	
  SENECA
  GAMING CORPORATION

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Catherine A. Walker

  
	
   

  	
   

  	
  Name:
  Catherine A. Walker

  
	
   

  	
   

  	
  Title:
  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  SENECA
  NIAGARA FALLS GAMING

  CORPORATION,

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Catherine A. Walker

  
	
   

  	
   

  	
  Name:
  Catherine A. Walker

  
	
   

  	
   

  	
  Title:
  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  SENECA
  TERRITORY GAMING

  CORPORATION,

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Catherine A. Walker

  
	
   

  	
   

  	
  Name:
  Catherine A. Walker

  
	
   

  	
   

  	
  Title:
  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  SENECA
  ERIE GAMING CORPORATION,

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Catherine A. Walker

  
	
   

  	
   

  	
  Name:
  Catherine A. Walker

  
	
   

  	
   

  	
  Title:
  President and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  LEWISTON
  GOLF COURSE

  CORPORATION,

  
	
   

  	
  as
  Guarantor

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Catherine A. Walker

  
	
   

  	
   

  	
  Name:
  Catherine A. Walker

  
	
   

  	
   

  	
  Title:
  President and Chief Executive Officer

  
				



 


34

















 


The
foregoing Purchase Agreement is hereby confirmed and accepted by the Initial
Purchasers as of the date first above written.


 


 


MERRILL
LYNCH, PIERCE, FENNER & SMITH INCORPORATED


Acting
on behalf of itself


and
as the Representative of


the
several Initial Purchasers


 


	
  By:

  	
  /s/
  Sarang Gadkari

  	
   

  
	
   

  	
  Managing
  Director

  



 


35

















 


SCHEDULE A


 


	
  Initial Purchasers

  	
   

  	
  Aggregate Principal

  Amount of

  Securities to be

  Purchased

  	
   

  
	
  Merrill Lynch, Pierce,
  Fenner & Smith Incorporated

  	
   

  	
  $

  	
  170,625,000

  	
   

  
	
  RBS Securities Inc.

  	
   

  	
  $

  	
  65,000,000

  	
   

  
	
  KeyBanc Capital Markets Inc.

  	
   

  	
  $

  	
  32,500,000

  	
   

  
	
  Commerz
  Markets LLC

  	
   

  	
  $

  	
  32,500,000

  	
   

  
	
  Capital One Southcoast, Inc.

  	
   

  	
  $

  	
  16,250,000

  	
   

  
	
  Comerica Securities,
  Inc.

  	
   

  	
  $

  	
  8,125,000

  	
   

  
	
  Total

  	
   

  	
  $

  	
  325,000,000

  	
   

  



 
















 


SCHEDULE B


 


Seneca Gaming Corporation


 


$325,000,000  8.25%
Senior Notes due 2018


 


November 8, 2010


 


Pricing Supplement


 


Pricing
Supplement dated November 8, 2010 to the
Preliminary Offering Memorandum dated November 3, 2010 of
Seneca Gaming Corporation (the “Preliminary Offering Memorandum”).  This Pricing Supplement is qualified in its
entirety by reference to the Preliminary Offering Memorandum. The
information in this Pricing Supplement supplements the Preliminary Offering
Memorandum and supersedes the information in the Preliminary Offering
Memorandum to the extent it is inconsistent with the information in the
Preliminary Offering Memorandum.  Capitalized terms used in this Pricing
Supplement but not defined have the meanings given them in the Preliminary
Offering Memorandum.


 


	
  Issuer

  	
   

  	
  Seneca
  Gaming Corporation

  
	
   

  	
   

  	
   

  
	
  Title
  of Securities

  	
   

  	
  8.25% Senior Notes due 2018
  (the “Notes”)

  
	
   

  	
   

  	
   

  
	
  Aggregate
  Principal Amount

  	
   

  	
  $325,000,000

  
	
   

  	
   

  	
   

  
	
  Ratings*

  	
   

  	
  B1 (Moody’s Investors Service, Inc.)/ BB (Standard &
  Poor’s Ratings Services)

  
	
   

  	
   

  	
   

  
	
  Distribution

  	
   

  	
  144A/Regulation
  S, without Registration Rights

  
	
   

  	
   

  	
   

  
	
  Maturity
  Date

  	
   

  	
  December 1, 2018

  
	
   

  	
   

  	
   

  
	
  Issue
  Price

  	
   

  	
  100% of the principal amount
  of the Notes, plus accrued interest, if any, from November 18, 2010

  
	
   

  	
   

  	
   

  
	
  Coupon

  	
   

  	
  8.25%

  
	
   

  	
   

  	
   

  
	
  Yield
  to Maturity

  	
   

  	
  8.25%

  
	
   

  	
   

  	
   

  
	
  Interest
  Payment Dates

  	
   

  	
  June 1 and December 1 of each year

  
	
   

  	
   

  	
   

  
	
  First
  Interest Payment Date

  	
   

  	
  June 1, 2011

  
	
   

  	
   

  	
   

  
	
  Record
  Dates

  	
   

  	
  May 15 and November 15 of each year

  
	
   

  	
   

  	
   

  
	
  Trade
  Date

  	
   

  	
  November 8, 2010

  
	
   

  	
   

  	
   

  
	
  Settlement
  Date

  	
   

  	
  November 18, 2010 (T+7 )

  
	
   

  	
   

  	
   

  
	
  Optional
  Redemption

  	
   

  	
  On
  or after December 1, 2014, at the redemption prices (expressed as a percentage of principal
  amount of Notes to be redeemed)
  set forth below, plus accrued and unpaid interest, if any, on
  Notes to be redeemed to the applicable date
  of redemption, if redeemed during the
  twelve-month period beginning on December 1 of the years indicated
  below:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Year

  	
   

  	
  Percentage

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2014

  	
   

  	
  104.125

  	
  %

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2015

  	
   

  	
  102.063

  	
  %

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  2016 and
  thereafter

  	
   

  	
  100.000

  	
  %

  	
   

  



 


Exhibit A-1

















 


	
  Optional
  Redemption with the net cash proceeds of
  a distribution to the Issuer from the Compact Reserve Account

  	
   

  	
  Prior
  to December 1, 2013, up to 35% of the aggregate principal amount of the
  Notes issued at a redemption price equal to 108.25% of the
  principal amount of Notes to be redeemed, plus accrued and unpaid interest,
  if any, on Notes to be redeemed
  to the applicable date of redemption

  
	
   

  	
   

  	
   

  
	
  Change
  of Control

  	
   

  	
  101%
  of the aggregate principal amount of Notes to be repurchased, plus accrued
  and unpaid interest

  
	
   

  	
   

  	
   

  
	
  Joint
  Book-Running Managers

  	
   

  	
  Merrill
  Lynch, Pierce, Fenner & SmithIncorporated 

  RBS Securities Inc.

  
	
   

  	
   

  	
   

  
	
  Lead-Manager

  	
   

  	
  KeyBanc
  Capital Markets Inc.

  
	
   

  	
   

  	
   

  
	
  Co-Manager

  	
   

  	
  Commerz
  Markets LLC 

  Capital One Southcoast, Inc.  

  Comerica Securities, Inc.

  
	
   

  	
   

  	
   

  
	
  CUSIP
  Numbers

  	
   

  	
  Rule 144A:
  817082 AF7  

  Regulation S: U81655 AC3

  
	
   

  	
   

  	
   

  
	
  ISIN
  Numbers

  	
   

  	
  Rule 144A:
  US817082AF76  

  Regulation S: USU81655AC31

  
	
   

  	
   

  	
   

  
	
  Denominations

  	
   

  	
  Minimum
  denominations of $2,000 and integral multiples of $1,000 in excess thereof

  



 






*Note: A securities rating is not a recommendation
to buy, sell or hold securities and may be subject to revision or withdrawal at
any time.


 


This material
is strictly confidential and has been prepared by the Issuer solely for use in
connection with the proposed offering of the securities described in the
Preliminary Offering Memorandum. This
material is personal to each offeree and does not constitute an offer to any
other person or the public generally to subscribe for or otherwise acquire the
securities. Please refer to the Preliminary Offering Memorandum for a complete
description.


 


The
securities have not been registered under the Securities Act of 1933, as
amended (the “Securities Act”), and are being offered only to (1) “qualified
institutional buyers” as defined in Rule 144A under the Securities Act and
(2) outside the United States to non-U.S. persons in compliance with
Regulation S under the Securities Act, and this communication is only being distributed
to such persons.


 


This
communication is not an offer to sell the securities and it is not a
solicitation of an offer to buy the securities in any jurisdiction to any
person to whom it is unlawful to make such offer or soliciation in such
jurisdiction.


 


Any
disclaimer or notices that may appear on this Pricing Supplement below the text
of this legend are not applicable to this Pricing Supplement and should be
disregarded.  Such disclaimers or other
notices were automatically generated as a result of this communication being
sent via Bloomberg or another e-mail system.


 


2

















 


EXHIBIT B


 


SUBSIDIARIES


 


Seneca
Niagara Falls Gaming Corporation


Seneca
Erie Gaming Corporation


Seneca
Territory Gaming Corporation


Lewiston
Golf Course Corporation


 


Exhibit B-1

















 


ANNEX I


 


Resale Pursuant to Regulation S or Rule 144A.  Each Initial Purchaser understands that:


 


Such
Initial Purchaser agrees that it has not offered or sold and will not offer or
sell the Securities in the United States or to, or for the benefit or account
of, a U.S. Person (other than a distributor), in each case, as defined in
Rule 902 of Regulation S (i) as part of its distribution at any
time and (ii) otherwise until 40 days after the later of the commencement
of the offering of the Securities pursuant hereto and the Closing Date, other
than in accordance with Regulation S or another exemption from the
registration requirements of the Securities Act.  Such Initial Purchaser agrees that, during
such 40-day restricted period, it will not cause any advertisement with respect
to the Securities (including any “tombstone” advertisement) to be published in
any newspaper or periodical or posted in any public place and will not issue
any circular relating to the Securities, except such advertisements as are
permitted by and include the statements required by Regulation S.


 


Such
Initial Purchaser agrees that, at or prior to confirmation of a sale of
Securities by it to any distributor, dealer or person receiving a selling
concession, fee or other remuneration during the 40-day restricted period
referred to in Rule 903 of Regulation S, it will send to such
distributor, dealer or person receiving a selling concession, fee or other
remuneration a confirmation or notice to substantially the following effect:


 


“The
Securities covered hereby have not been registered under the U.S. Securities
Act of 1933, as amended (the “Securities Act”), and may not be offered and sold
within the United States or to, or for the account or benefit of, U.S. persons (i) as
part of your distribution at any time or (ii) otherwise until 40 days
after the later of the date the Securities were first offered to persons other
than distributors in reliance upon Regulation S and the Closing Date,
except in either case in accordance with Regulation S under the Securities Act
(or in accordance with Rule 144A under the Securities Act or to accredited
investors in transactions that are exempt from the registration requirements of
the Securities Act), and in connection with any subsequent sale by you of the
Securities covered hereby in reliance on Regulation S under the Securities
Act during the period referred to above to any distributor, dealer or person receiving
a selling concession, fee or other remuneration, you must deliver a notice to
substantially the foregoing effect. 
Terms used above have the meanings assigned to them in Regulation S
under the Securities Act.”


 


Annex I-1