**Exhibit 10.17**

 

SECOND AMENDED AND RESTATEDEMPLOYMENT AGREEMENT

 

AGREEMENT amended and restatedas of this 6th day of April, 2005 by and between the Seneca Gaming Corporation(the “Parent”), a governmental instrumentality of the Seneca Nation of Indiansof New York (the “Nation”) with its principal place of business in the State ofNew York and John Pasqualoni (“Executive”).

 

WHEREAS, Executive and theSeneca Niagara Falls Gaming Corporation (“SNFGC”) entered into an employmentagreement, effective as of October 14, 2002 (the “Employment Agreement”),pursuant to which Executive served as the Vice President of Slot Operations ofSNFGC;

 

WHEREAS, Executive and theSNFGC entered into an amended and restated employment agreement, effective asof July 13, 2004 (the “Amended and Restated Employment Agreement”), (i) pursuantto which Executive served as the Senior Vice President of SlotOperations/Marketing of the Parent and each of SNFGC, the Seneca TerritoryGaming Corporation (“STGC”), and the Seneca Erie Gaming Corporation (“SEGC”),each a wholly-owned subsidiary of the Parent and a governmental instrumentalityof the Nation (collectively, the “Subsidiaries” and together with Parent, the “Employer”)and (ii) by which the Parent assumed the Employment Agreement andExecutive continued to serve as Senior Vice President of SlotOperations/Marketing of the Parent and each of SNFGC, STGC, and SEGC;

 

WHEREAS, Executive wasappointed to Chief Operating Officer of all the gaming operations of Employeron February 16, 2005;

 

WHEREAS, Executive and Employernow desire that Executive serve as the interim President and Chief ExecutiveOfficer of the Employer;

 

WHEREAS, Employer is, as of thedate of this Agreement, or shortly hereafter will be, in the process ofconducting a limited search for an individual to serve as its permanentPresident and Chief Executive Officer, which search includes, or will include,Employer’s consideration of Executive for such position;

 

WHEREAS, in the event thatEmployer does not select Executive as its permanent President and ChiefExecutive Officer, then Executive shall, at the time such permanent Presidentand Chief Executive Officer takes office, serve as the Chief Operating Officerof Employer;

 

WHEREAS, the parties desire toamend and restate the Amended and Restated Employment Agreement to set forththe terms and conditions of Executive’s continued relationship with and newposition with the Employer as set forth in this Agreement (this “Second Amendedand Restated Employment Agreement”); and

 

WHEREAS, Executive shall serveas interim President and Chief Executive Officer, or, as the case may be, theChief Operating Officer, of the Parent and each of the Subsidiaries and theterms of this Second Amended and Restated Employment Agreement assume thatExecutive shall serve in such positions as set forth herein until theTermination Date (defined below).

 

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IT IS HEREBY AGREED AS FOLLOWS:

 

# 1.             Employment.  Employer herebyemploys Executive as its interim President and Chief Executive Officer.  Executive shall report and be accountable toand work under the authority of the Board of Directors of Parent (the “Board”).  Executive shall perform such duties and havesuch responsibilities that are customary for such position and including thosethat may be specified from time to time by the Board that are not inconsistentwith such position.

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# 2.             Term.  The term of thisAgreement shall commence as of April 1, 2005 (the “Effective Date”) andterminate on the earlier of (a) September 30, 2007 or (b) thedate on which Executive becomes the permanent President and Chief ExecutiveOfficer (the “Termination Date”), unless renewed by a subsequent writtenagreement of the parties.

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# 3.             Compensation.

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## (a)           BaseSalary

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### (i)            In exchange, in part, for Executive’s services as the interim Presidentand Chief Executive Officer, Executive shall be paid a minimum annual basesalary (“Base Compensation”) of Three Hundred Ninety Thousand Dollars($390,000) for the period commencing on June 1, 2004 and ending with theEmployer’s fiscal year ending September 30, 2005; Four Hundred FifteenThousand Dollars ($415,000) for the Employer’s fiscal year ending September 30,2006; and Four Hundred Forty Thousand Dollars ($440,000) for the Employer’sfiscal year ending September 30, 2007 with respect to his service for allof the Employers, with a salary review by the Board each fiscal year thereafterat which time the Board shall determine whether, in its sole discretion,Executive’s Base Compensation shall be increased.  Said salary shall be payable periodically inaccordance with the Employer’s regular payroll practice.

###  

### (ii)           In exchange, in part, for Executive’s services as Chief Operating Officer,if any are provided as provided under Section 3(e), Executive shall bepaid a Base Compensation of Four Hundred Twenty-Five Thousand Dollars($425,000) for the period commencing on June 1, 2004 and ending with theEmployer’s fiscal year ending September 30, 2005; Four Hundred FiftyThousand Dollars ($450,000) for the Employer’s fiscal year ending September 30,2006; and Four Hundred Seventy-Five Thousand Dollars ($475,000) for theEmployer’s fiscal year ending September 30, 2007 with respect to hisservice for all of the Employers, with a salary review by the Board each fiscalyear thereafter at which time the Board shall determine whether, in its solediscretion, Executive’s Base Compensation shall be increased.  Said salary shall be payable periodically inaccordance with the Employer’s regular payroll practice.

 

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## (b)           ProvidedExecutive is then employed with the Employer, Executive shall be eligible foran annual performance bonus as follows:

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### (i)            For the fiscal year ending September 30, 2004, Executive shall beeligible for an annual performance bonus equal to fifty percent (50%) of BaseCompensation if SNFGC’s Earnings Before Interest, Taxes, Depreciation, andAmortization, calculated in a manner consistent with SNFGC’s practices (“EBITDA”),for such fiscal year is equal to or greater than One Hundred Fifteen MillionDollars ($115,000,000);

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### (ii)           For the fiscal year ending September 30, 2005, Executive shall beeligible for an annual performance bonus equal to One Hundred Eighty SevenThousand Five Hundred Dollars ($187,500) if the Consolidated EBITDA of theSubsidiaries that operated and owned casinos in such fiscal year is equal to orgreater than One Hundred Forty Million Dollars ($140,000,000).  For purposes of section 3(b) ofthis Agreement, “Consolidated EBITDA” shall have the meaning set forth in thatcertain Indenture, dated as of May 5, 2004, among the Parent, theGuarantors from time to time parties thereto, and Wells Fargo Bank, NationalAssociation, as trustee, as such may be amended, restated, supplemented orotherwise modified from time to time.

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### (iii)          For the fiscal year ending September 30, 2006, Executive shall beeligible for an annual performance bonus equal to (A) Two Hundred ThousandDollars ($200,000) and (B) One Hundred Thousand Dollars ($100,000) if theConsolidated EBITDA of the Subsidiaries that operated and owned casinos in suchfiscal year is equal to or greater than (Y) One Hundred Forty Five MillionDollars ($145,000,000) and (Z) One Hundred Forty Seven Million Dollars($147,000,000), respectively; and

###  

### (iv)          For the fiscal year ending September 30, 2007, Executive shall beeligible for an annual performance bonus equal to Two Hundred Twelve ThousandFive Hundred Dollars ($212,500) if the Consolidated EBITDA of the Subsidiariesthat operated and owned casinos in such fiscal year is equal to or greater thanOne Hundred Forty Seven Million Dollars ($147,000,000).

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### Each ofthe annual performance bonuses described above shall be referred to as “BonusCompensation” for such fiscal year.

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## (c)           Executiveshall also be eligible to receive any additional performance or incentivecompensation which is approved by the Board in its sole discretion.  Said additional performance or incentivecompensation, if any, shall be in addition to and shall not lessen or reducethe Base Compensation and/or Bonus Compensation, if any, as provided inparagraphs (a) and (b) above. In exercising

 

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## its discretion, the Board shall specificallyconsider the extent to which the goals of the Employer are being met and theextent to which Executive has contributed to same.

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## (d)           Executiveshall also receive a monthly interim President and Chief Executive Officerretention bonus of Twenty Thousand Dollars ($20,000), until such time as thepermanent President and Chief Executive Officer takes office.

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## (e)           In theevent that Employer does not select Executive as its permanent President andChief Executive Officer, then Executive shall, at the time such permanentPresident and Chief Executive Officer takes office, serve as the ChiefOperating Officer of Employer.

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## (f)            Executiveshall be provided with coverage under the Employer’s employee benefit insuranceprograms and retirement programs, if any, at least equal to the coverageprovided to other senior executive officers of the Employer.

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## (g)           Anycompensation, if any, due under paragraphs 3(b) or 3(c) of thisAgreement shall be payable within ninety (90) days after the close of thefiscal year with respect to which it is earned.

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# 4.             LicensingIssues.  Executive represents to the Employer that hehas received such licenses as may be required pursuant to the Nation-StateGaming Compact between the Seneca Nation of Indians and the State of New York(the “Compact”) and/or the Nation’s or the Employer’s gaming ordinances as ineffect on the date hereof, as may be necessary to enable him to engage in hisemployment hereunder.  Executive willmaintain such licenses in good standing as a pre-condition of his employment bythe Employer.

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# 5.             Termination.

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## (a)           Executive’semployment hereunder may be terminated by the Parent only under the followingcircumstances and such termination by the Parent shall be a termination withrespect to each Employer, unless otherwise determined by the Board:

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### (i)            upon revocation or disapproval of the license required pursuant to theCompact, or upon disapproval by the National Indian Gaming Commission of theissuance of any license by the Nation pursuant to its own gaming ordinances, ifeither such action renders it unlawful for Executive to perform as interimPresident and Chief Executive Officer, or Chief Operating Office, as the casemay be, of each Employer, or if any event renders it unlawful for the Nationand/or the Employer to continue to conduct casino gaming on Nation Territory.  For purposes of this Agreement, “NationTerritory” shall include current or future Nation reservation territory wherethe Employer conducts or will conduct its gaming operations as of the dateExecutive’s employment is terminated.

 

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### (ii)           upon revocation or disapproval of such licenses for Executive as arerequired pursuant to the Compact and/or by the Nation’s or the Employer’sgaming ordinances;

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### (iii)          Executive shall commit an act constituting “Cause,” which is defined tomean an act of dishonesty by Executive intended to result in gain or personalenrichment of Executive or others at the Employer’s expense, or the deliberateand intentional refusal by Executive (except by reason of disability) toperform his duties hereunder, or by acts constituting gross negligence in theperformance of such duties;

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### (iv)          Executive shall die or the Employer shall for any reason within theEmployer’s or the Nation’s control permanently cease to conduct casino gamingon Nation Territory; or

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### (v)           Executive shall become unable to perform the duties and responsibilitiesset forth in this Agreement for a period of 180 days in any 365 day period byreason of long-term physical or mental disability.

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## (b)           IfExecutive’s employment should be terminated under paragraphs 5(a)(i), (ii) or(iii) above, then the Employer shall at that time pay Executive the BaseCompensation earned through the date Executive is terminated, whereupon theEmployer shall have no further liability or obligation to Executive under thisAgreement or otherwise.

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## (c)           IfExecutive’s employment should be terminated under paragraph 5(a)(iv) or (v) above,then the Employer shall at that time pay Executive (or his estate) his BaseCompensation earned through the date Executive is terminated, and shall payExecutive the pro rata portion, based on the portion of the fiscal yearpreceding such termination, of the Bonus Compensation for the fiscal yearduring which such termination takes place assuming that Executive would haveearned 100% of the Bonus Compensation for such year (the “Pro-Rata Bonus”);whereupon the Employer shall have no further liability or obligation toExecutive under this Agreement or otherwise.

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## (d)           IfExecutive’s employment should be terminated by the Parent for any reason otherthan those specified in paragraph 5(a) above (it being understood that apurported termination for Cause which is contested by Executive and finallydetermined not to have been proper shall be treated as a termination under thisparagraph 5(d)), then the Employer shall: (i) pay Executive his BaseCompensation earned, but unpaid, through the date Executive is terminated, (ii) payExecutive a Pro-Rata Bonus for the year of termination, (iii) continue topay Executive his Base Compensation in effect as of the date of termination fora period following his termination (the “Severance Period”) equal to the lesserof (A) eighteen (18) months or (B) the remainder of the period endingon the Termination Date, and (iv) to the extent elected by Executive, payfor the cost of

 

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## (A) Executive’s premiums for continuationhealthcare coverage under Section 4980B of the Internal Revenue Code of1986, as amended (“COBRA”), and (B) the premiums for Exec-u-Care® or anysimilar executive medical reimbursement insurance plan maintained by theEmployer on the date Executive’s employment is terminated, for the lesser of (1) theSeverance Period, (2) until Executive is no longer eligible for COBRAcontinuation coverage, or (3) until Executive obtains comparablehealthcare benefits from any other employer during the Severance Period,whereupon the Employer shall have no further liability or obligation toExecutive under this Agreement or otherwise; provided, however,that Executive shall have a duty to mitigate damages as follows: during theSeverance Period, Executive shall endeavor to mitigate damages by seekingemployment with duties and salary comparable to those provided for herein, andif he shall obtain such employment, he shall reimburse the Employer the amountof the compensation he has received from such other entity for such period, butnot to exceed the amount of the compensation the Employer shall have paid himfor such period.

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## (e)           Executivemay terminate his employment for any reason upon one-hundred-twenty (120) dayswritten notice to the Parent.  IfExecutive terminates his employment pursuant to this paragraph 5(e), theEmployer shall pay Executive the Base Compensation earned through the date oftermination, whereupon the Employer shall have no further liability orobligation to Executive under this Agreement or otherwise.

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## (f)            Executiveacknowledges and agrees that the payments set forth in this section 5constitute liquidated damages for termination of his employment during theemployment period and such liquidated damages shall be his only remedy withrespect to any claim, including, without limitation, breach of contact, he mayhave under this Agreement and that prior to receiving any such payments under section 5and as a material condition thereof, Executive shall sign and agree to be boundby a general release of claims against the Employer related to Executive’semployment (and termination of employment) with the Employer in substantiallythe form as attached hereto as Exhibit A as may be modified by theEmployer in good faith to reflect changes in law or its employmentpractices.  Notwithstanding any otherprovision of this Agreement to the contrary, Executive acknowledges and agreesthat other than any claim for the liquidated damages contemplated hereunder, hewaives any rights to be awarded any other damages with respect to any claim hemay have under this Agreement, including, without limitation, compensatory orpunitive damages.

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# 6.             RestrictiveCovenants.

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## (a)           Executiveacknowledges that:  (i) as a resultof Executive’s employment with the Employer, he will obtain secret, proprietaryand confidential information concerning the business of the Employer,including, without limitation, business and marketing plans, strategies,employee lists, patron lists, operating procedures, business relationships(including persons, corporations or other entities performing services onbehalf of or otherwise engaged in business transactions

 

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## with the Employer), accounts, financial data,know-how, computer software and related documentation, trade secrets,processes, policies and/or personnel, and other information relating to theEmployer (“Confidential Information”); (ii) the Confidential Informationhas been developed and created by the Employer at substantial expense and theConfidential Information constitutes valuable proprietary assets and theEmployer will suffer substantial damage and irreparable harm which will bedifficult to compute if, during the term of the Agreement and thereafter,Executive should enter a Competitive Business (as defined herein) in violationof the provisions of this Agreement; (iii) the Employer will suffersubstantial damage which will be difficult to compute if, during the term ofthe Agreement or thereafter, Executive should solicit or interfere with theEmployer’s employees, patrons or vendors or should divulge ConfidentialInformation relating to the business of the Employer; (iv) the provisionsof this section 6 are reasonable and necessary for the protection of thebusiness of the Employer; (v) the Employer would not have hired oremployed Executive unless he signed this Agreement; and (vi) theprovisions of this Agreement will not preclude Executive from other gainfulemployment.  “Competitive Business” shallmean any gaming establishment which provides to its patrons games of chancesuch as slot machines, card games, roulette, and similar games in the State ofNew York or within the 100 mile radius of Nation Territory.

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## (b)           Executiveacknowledges and agrees that the unauthorized disclosure or misuse ofConfidential Information will cause substantial damage to the Employer.  Therefore, Executive agrees not to, at anytime, either during the term of the Agreement or thereafter, divulge, use,publish or in any other manner reveal, directly or indirectly, to any person,firm or corporation any Confidential Information obtained or learned byExecutive during the course of his employment with the Employer, with regard tothe operational, financial, business or other affairs and activities of theEmployer, their officers, directors or employees and the entities with whichthey have business relationships, except (i) as may be necessary to theperformance of Executive’s duties with the Employer, (ii) with the Parent’sexpress written consent, (iii) to the extent that any such information isin the public domain other than as a result of Executive’s breach of any ofobligations hereunder, or (iv) where required to be disclosed by courtorder, subpoena or other government process which is consistent with the termsand conditions of paragraphs 15(f) and 15(g) of the Compact and, insuch event, Executive shall cooperate with the Employer in attempting to keepsuch information confidential.

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## (c)           DuringExecutive’s employment with the Employer and for eighteen (18) months after histermination of employment for any reason (the “Restricted Period”), Executive,without the prior written permission of the Parent, shall not, directly orindirectly, (i) enter into the employ of or render any services to anyperson, engaged in a Competitive Business; or (ii) become associated withor interested in any Competitive Business as an individual, partner, shareholder,member, creditor, director, officer, principal, agent, employee, trustee,consultant, advisor or in any other relationship or capacity.   This paragraph 6(c) shall not preventExecutive from owning common stock in a publicly traded corporation which

 

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## owns or manages a casino provided Executive doesnot take an active role in the ownership or management of such corporation andhis ownership interest represents less than 3% of the voting securities and/oreconomic value of such corporation.

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## (d)           Byexecuting this Agreement, Executive acknowledges that he understands that theEmployer’s ability to operate its business depends upon its ability to attractand retain skilled people and that the Employer has and will continue to investsubstantial resources in training such individuals.  Therefore, during the Restricted Period,Executive shall not, without the prior written permission of the Parent,directly or indirectly solicit, employ or retain, or have or cause any otherperson or entity to solicit, employ or retain, any person who is employed or isproviding personal services to the Employer.

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## (e)           Byexecuting this Agreement, Executive acknowledges that he understands that theEmployer’s ability to operate its business depends upon its ability to attractand retain vendors and patrons. Therefore, during the Restricted Period, Executive shall not, directlyor indirectly, solicit, contact, interfere with, or endeavor to entice awayfrom the Employer any of its current or potential vendors or patrons or anysuch persons or entities that were vendors or patrons of the Employer withinthe one year period immediately prior to Executive’s termination of employment.

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## (f)            Executiveacknowledges and agrees during his employment and for all time thereafter thathe will not defame or publicly criticize the services, business, integrity,veracity or personal or professional reputation of the Employer and itsofficers, directors, employees, affiliates, or agents thereof in either aprofessional or personal manner. Employer acknowledges and agrees that during Executive’s employment andfor all time thereafter, Employer will not defame or publicly criticizeExecutive either in a professional or personal manner, except as may benecessary to defend the Employer from comments made by or on behalf ofExecutive.

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## (g)           IfExecutive commits a breach, or threatens to commit a breach, of any of theprovisions of this paragraph 6 of the Agreement, the Employer shall have theright and remedy to have the provisions specifically enforced by any courthaving jurisdiction, it being acknowledged and agreed by Executive that theservices being rendered hereunder to the Employer are of a special, unique andextraordinary character and that any such breach or threatened breach willcause irreparable injury to the Employer and that money damages will notprovide an adequate remedy to the Employer. Such right and remedy shall be in addition to, and not in lieu of, anyother rights and remedies available to the Employer at law or in equity.  Accordingly, Executive consents to theissuance of an injunction, whether preliminary or permanent, consistent withthe terms of this Agreement.

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## (h)           If, atany time, the provisions of this Agreement shall be determined to be invalid orunenforceable under any applicable law, by reason of being vague orunreasonable as to area, duration or scope of activity, this Agreement shall be

 

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## considered divisible and shall become and beimmediately amended to only such area, duration and scope of activity as shallbe determined to be reasonable and enforceable by the court or other bodyhaving jurisdiction over the matter and Executive and the Employer agree thatthis Agreement as so amended shall be valid and binding as though any invalidor unenforceable provision had not been included herein.

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# 7.             Miscellaneous.

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## (a)           Executiveagrees that during the term of this Agreement**unless earlier terminated, he will commit his full time and energiesto the duties imposed hereby; provided, that, with the priorwritten approval of the Board, Executive may expend as much of his personaltime on his own ventures or investments, so long as: (i) such time is notsubstantial and does not interfere with his ability to perform his duties asinterim President and Chief Executive Officer of the Employer, or ChiefOperating Office, as the case may be; (ii) such activities do not competeor conflict with the business of the Employer or create a personal conflict ofinterest to Executive and (iii) such venture or investment does nottransact any business with the Employer without prior disclosure to, andapproval by, the Board.

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## (b)           Executiverepresents to the Employer that there are no restrictions or agreements towhich he is a party which would be violated by his execution of this Agreementand his employment hereunder.

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## (c)           Noprovisions of this Agreement may be amended, modified, or waived unless suchamendment or modification is agreed to in writing signed by Executive and by aduly authorized officer of the Parent, and such waiver is set forth in writingand signed by the party to be charged. No waiver by any party hereto at any time of any breach by the otherparty hereto of any condition or provision of this Agreement to be performed bysuch other party shall be deemed a waiver of similar or dissimilar provisionsor conditions at the same or at any prior or subsequent time.  No agreements or representations, oral orotherwise, express or implied, with respect to the subject matter hereof havebeen made by either party which are not set forth expressly in thisAgreement.  The respective rights andobligations of the parties hereunder of this Agreement shall survive Executive’stermination of employment and the termination of this Agreement to the extentnecessary for the intended preservation of such rights and obligations.

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## (d)           Thevalidity, interpretation, construction and performance of this Agreement shallbe governed by the laws of the State of New York without regard to itsconflicts of law principles.

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## (e)           Exceptas provided in paragraph 6(g) of this Agreement, any dispute, controversyor claim arising out of or relating to this Agreement shall be settled bybinding arbitration in Niagara Falls, New York in accordance with the Rules ofthe American Arbitration Association, and judgment upon the award rendered bythe arbitrator(s) may be entered in the United States District Court for theWestern District of New York.  Theparties agree that the only remedies available to

 

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## Executive under this Agreement are those that areset forth in paragraph 5 and the arbitrator shall have no authority to awardany other damages, including, without limitation, punitive and/or compensatorydamages.

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## (f)            For thepurposes of this Agreement, notices, demands and all other communicationsprovided for in this Agreement shall be in writing and shall be deemed to havebeen duly given when delivered either personally or by United States certifiedor registered mail, return receipt requested, postage prepaid, addressed asfollows:

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If to Executive:

 

136 Division Street

West Creek, New Jersey  08092

Attn: John Pasqualoni

 

If to the Parent:

 

310 4th Street

P.O. Box 77

Niagara Falls, New York (Seneca Nation Territory) 14303

Attn: President and Chief Executive Officer of SenecaGaming Corporation

 

or to such other address as any party may have furnishedto the others in writing in accordance herewith, except that notices of changeof address shall be effective only upon receipt.

 

## (g)           Theinvalidity or unenforceability of any provision or provisions of this Agreementshall not affect the validity or enforceability of any other provision of thisAgreement, which shall remain in full force and effect.

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## (h)           ThisAgreement may be executed in one or more counterparts, each of which shall bedeemed to be an original but all of which together will constitute one and thesame instrument.

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## (i)            Exceptas otherwise provided herein, this Agreement sets forth the entire agreement ofthe parties hereto in respect of the subject matter contained herein andsupersedes all prior agreements, promises, covenants, arrangements,communications, representations or warranties, whether oral or written, by anyofficer, employee or representative of any party hereto in respect of suchsubject matter.  Except as otherwiseprovided herein, any prior agreement of the parties hereto in respect of thesubject matter contained herein is hereby terminated and cancelled.

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## (j)            Allpayments hereunder shall be subject to any required withholding of Federal,state and local taxes pursuant to any applicable law or regulation.

 

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## (k)           The section headingsin this Agreement are for convenience of reference only, and they form no partof this Agreement and shall not affect its interpretation.

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# 8.             Waiverof Sovereign Immunity.

#  

## (a)           TheParent grants a waiver of its sovereign immunity from suit exclusively toExecutive (and his estate in the event of his death) for the purpose ofenforcing this Agreement, or permitting or compelling arbitration and otherremedies as provided herein.  This waiveris solely for the benefit of the aforesaid parties and for no other person or entity.  For this limited purpose, the Parent consentsto be sued solely with respect to the enforcement of any decision by anarbitrator relating to this Agreement as provided in paragraph 7(e) ofthis Agreement in the United States District Court for the Western District ofNew York.

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## (b)           TheParent hereby waives any requirement of exhaustion of tribal remedies, andagrees that it will not present any affirmative defense in any dispute based onany alleged failure to exhaust such remedies. Without in any way limiting the generality of the foregoing, the Parentexpressly authorizes any governmental authorities who have the right and dutyunder applicable law to take any action authorized or ordered by any court, totake such action, including, without limitation, repossessing any property andequipment subject to a security interest or otherwise giving effect to anyjudgment entered; provided, however, that the Parent does nothereby waive the defense of sovereign immunity with respect to any action bythird parties

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## (c)           TheParent’s waiver of immunity from suit is irrevocable and specifically limitedto the remedies provided in paragraph 5 of this Agreement regarding liquidateddamages.  Any monetary award related toany such action shall be satisfied solely from the net income of the Parent.

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## (d)           Notwithstandinganything in this Agreement to the contrary, this waiver is to be interpreted ina manner consistent with the Parent’s ability to enter into this Agreement,including, without limitation, this paragraph 8, as provided in the Charter ofthe Parent, as it may be amended from time to time.  Accordingly, the Nation shall not be liablefor the debts or obligations of the Parent, and the Parent shall have no powerto pledge or encumber the assets of the Nation. Furthermore, this paragraph 8 does not constitute a waiver of anyimmunity of the Nation or a delegation to the Parent of the power to make anysuch waiver. This paragraph 8 shall be strictly construed with a view towardprotecting the Nation’s assets from the reach of creditors and others.

 

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| EXECUTED,  as of the date first written above. |
|------------------------------------------------|
|                                           |
|                                           |
| SENECA  GAMING CORPORATION                     |
|                                           |
|                                           |
| By                                             |   /s/ Barry E.  Snyder |   |
| Name:                                          | Barry  E. Snyder, Sr. |
| Title:                                         | Chairman  of the Board of Directors |
|                                           |
|                                           |
| EXECUTIVE                                      |
|                                           |
|                                           |
| By                                             |  /s/ John Pasqualoni |   |
|                                           |  John Pasqualoni |
|                                                |  |  |  |

 

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