**Exhibit 10.29**

 

*Execution Version*

 

**FIRST AMENDMENT TO LOANAGREEMENT**

 

THISFIRST AMENDMENT TO LOAN AGREEMENT dated as of December 18, 2009 (this“Amendment”), is between the SENECA GAMING CORPORATION (together withits successors and assigns, the “Borrower”), a corporation formed underthe laws of and wholly owned by the Seneca Nation of Indians (the “Nation”),a federally recognized Indian tribe, and KEYBANK NATIONAL ASSOCIATION (the “Lender”),a national banking association.

 

RECITALS

 

TheBorrower and the Lender are parties to a Loan Agreement dated as of June 19,2008 (as the same may be amended, modified, supplemented, renewed or restatedfrom time to time, the “Loan Agreement”).

 

TheBorrower has requested that the Lender make certain amendments to the LoanAgreement, and the Lender has agreed to make such amendments subject to theterms and conditions of this Amendment.

 

NOW,THEREFORE, in consideration of the premises and for other good and valuableconsideration, the receipt and sufficiency of which are hereby acknowledged,the parties hereto hereby agree as follows:

 

1.                                       Defined Terms. Capitalizedterms used in this Amendment which are defined in the Loan Agreement shall havethe same meanings as defined therein, unless otherwise defined herein.

 

2.                                       Amendments.

 

(a)                                  The definition of “Agreement”in Section 1.1 of the Loan Agreement is hereby amended in its entirety andreplaced with the following:

 

““Agreement” means this Loan Agreement, asthe same may be amended, modified or amended and restated from time to time inaccordance with the terms hereof.”

 

(b)                                 The definitionof “Maturity Date” in Section 1.1 of the Loan Agreement is hereby amendedin its entirety and replaced with the following:

 

““Maturity Date” means December 31,2011.”

 

 

(c)                                  The definitionof “Obligations” in Section 1.1 of the Loan Agreement is hereby amended toadd the word “modifications” to the phrase “renewals, extensions or refundingsof any of the foregoing” at the end of the definition, such phrase, as amended,to read as follows:

 

“renewals, extensions, refundings or modificationsof any of the foregoing”

 

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(d)                                 The definitionof “Revolving Commitment” in Section 1.1 of the Loan Agreement is herebyamended in its entirety and replaced with the following:

 

““Revolving Commitment” means $50,000,000, orsuch lesser sum to which the Revolving Commitment may be reduced as provided inthis Agreement, including, without limitation, in Section 2.4 and Section 2.12.”

 

(e)                                  Section 1.1of the Loan Agreement is hereby amended by including the following definedterm:

 

““Short-Term Equipment Financings” means anyIndebtedness of the Borrower or any Guarantor used to finance the acquisitionor refinancing of equipment incident to and useful in any Gaming Business andhaving a term of one year or less (determined by giving effect to any option(s) toextend within the sole discretion of such Borrower or Guarantor, asapplicable).”

 

(f)                                    The definitionof “Total Funded Debt” in Section 1.1 of the Loan Agreement is herebyamended in its entirety and replaced with the following:

 

““Total Funded Debt” as of any date means (a) thesum of (without duplication) the then outstanding principal balance of theAdvances and all other outstanding obligations for borrowed money (regardlessof priority or security), all obligations under Capital Leases, the aggregateamount drawn under letters of credit and other similar instruments not thenreimbursed, and all Contingent Obligations, whether the foregoing are obligationsof the Borrower or any Guarantor, but, as to all of the foregoing, only so longas the creditor or obligee thereof has Recourse to Gaming Assets, and inclusivein each case of any direct or indirect liability or obligation (whether as theprimary obligor or as a surety, and irrespective of whether the Borrower or anyGuarantor is the nominal obligor with respect thereto), minus (b) theamount, if any, then credited to the Debt Repayment Reserve Account.  Notwithstanding anything to the contrary inthe preceding sentence, in determining “Total Funded Debt” the sum of theaggregate amount undrawn under letters of credit and other similar instrumentsand all obligations under Short-Term Equipment Financings shall beexcluded.  For the avoidance of doubt,the Borrower’s distribution obligations under the Distribution Agreement andthe Excluded Distributions shall not be deemed Recourse to the Gaming Assets.”

 

(g)                                 Article IIof the Loan Agreement is hereby amended by including the following as Section 2.12thereof:

 

“2.12.                  Reduction of RevolvingCommitment; Debt Repayment Reserve Account.

 

(a)                                  The amount of the RevolvingCommitment will be reduced from time to time by the amount of any reduction inthe credit amount of the 

 

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IrrevocableLetter of Credit Number XXXXXXX issued on October 7, 2005 (the “ESDCLetter of Credit”), as amended, issued by KeyBank National Association forthe benefit of the New York State Urban Development Corporation d/b/a EmpireState Development Corporation (the “ESDC”); provided, however, that theaggregate amount of any such reductions of the Revolving Commitment pursuant tothis subsection (a) shall not exceed $10,000,000.  The Borrower will promptly request that thecredit amount of the ESDC Letter of Credit be reduced from time to time to theextent any such reductions are permitted by the ESDC.

 

(b)                                 On and after June 18,2010, if the applicable Revolving Commitment is greater than $40,000,000, theBorrower will continue to maintain a Deposit Account (as defined in theSecurity Agreement) with the Lender pursuant to arrangements reasonablysatisfactory to the Lender and consistent with the terms hereof (the “DebtRepayment Reserve Account”) in the name of the Borrower but under the controlof the Lender and shall cause funds to be maintained in such Debt RepaymentReserve Account in an amount not less than the amount by which the thenapplicable Revolving Commitment exceeds $40,000,000 (the “Debt RepaymentReserve Account Requirement”). Amounts credited to the Debt Repayment Reserve Account equal to the thenapplicable Debt Repayment Reserve Account Requirement” shall constitute cashunder the exclusive control of Lender and amounts credited to the DebtRepayment Reserve Account in excess of the then applicable Debt RepaymentReserve Account Requirement shall not be under the exclusive control of theLender unless an Event of Default shall have occurred and be continuing.

 

(h)                                 Section 4.9of the Loan Agreement is hereby amended in its entirety and replaced with thefollowing:

 

“Section 4.9 Use of Proceeds. Use the proceeds of the Advances and any Lettersof Credit only for purposes related to any Gaming Business and for fundingDistributions permitted by the terms of this Agreement.”

 

(i)                                     Article IVof the Loan Agreement is hereby amended by including the following as Section 4.12thereof:

 

“Section 4.12 Maintenance of Deposit Accounts and Securities Accounts with Lender.  Establish and maintain all Deposit Accounts(as defined in the Security Agreement) and Securities Accounts (as defined in Article 8-501of the UCC (as defined in the Security Agreement)) with the Lender, other than (a) thesecurities account maintained with Merrill Lynch with account number XXX-XXXXX(the “Merrill Lynch Account”) and (b) the Deposit Accountmaintained with Royal Bank of Canada with account number XXX-XXXXXX (the “RBCAccount”); *provided*, *however*,that the fair market value of the assets from time to time credited to theMerrill Lynch Account as set forth in account statements for such SecuritiesAccount shall not exceed $6,500,000, and the amount of funds from time to timeon deposit in the RBC Account shall not exceed $1,000,000; 

 

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*provided, further*, that notwithstanding the foregoing covenantor any other covenant in any Loan Document, the Deposit Accounts with financialinstitutions to be closed consistent with the foregoing covenant shall not berequired to be formally closed until such time as formal closure is permittedunder the applicable account agreements, as required to accommodate suchmatters as the clearance of outstanding checks. Borrower agrees that if the aggregate value of Borrower’s and Guarantorsassets maintained with Lender (a) is less than $40,000,000, all of suchassets will be credited to Deposit Accounts and (b) is equal to or greaterthan $40,000,000, at least $40,000,000 will be credited to DepositAccounts.  Lender agrees that if theBorrower’s and Guarantors’ Deposit Accounts maintained with Lender are notfully protected by FDIC Insurance and Lender’s debt ratings from S&P orMoody’s shall cease to be investment grade, Lender will fully collateralizewith “Eligible Collateral” (defined below) the Borrower’s and Guarantors’Deposit Accounts maintained with Lender and will provide Borrower with aperfection legal opinion with respect to Borrower’s security interest in suchcollateral.  Lender agrees to take suchactions and execute such documents as Borrower may reasonably request to carryout and facilitate its collateralization and opinion obligations in thepreceding sentence, such obligations to be complied with on or before the dateof the occurrence of the two events specified in the preceding sentence whichtrigger such obligations.  Alldocumentation entered into in connection with the foregoing Lender obligationsshall contain customary terms and shall be satisfactory to Borrower.  For purposes of this Section 4.12, “EligibleCollateral” means, at Lender’s option, either (a) U.S. treasurysecurities with maturities of 90 days or less or (b) an irrevocable letterof credit issued in favor of the Borrower and/or one or more Guarantors, asapplicable, by either (i) a bank, other than the Lender, whose commercialpaper and other unsecured short-term debt obligations (or in the case of a bankwhich is the principal subsidiary of a holding company, whose holding company’scommercial paper and other unsecured short-term debt obligations) are rated inone of the three highest rating categories based on the credit of such bank orholding company by at least one nationally recognized statistical ratingorganization or (ii) a bank, other than the Lender, which is in compliancewith applicable Federal minimum risk-based capital requirements.  For the avoidance of doubt, Lender’sobligation to “fully collateralize” requires that the Borrower’s and Guarantor’sDeposit Accounts be continuously collateralized with Eligible Collateral with avalue at least equal to the aggregate amount credited to such DepositAccounts.  Lender will provide advancewritten notice to Borrower of any event or circumstance reasonably likely to (a) resultin its debt ratings from S&P or Moody’s ceasing to be investment grade or (b) otherwisematerially adversely affect Lender.” Lender represents and warrants to Borrower that it has the power toperform its obligations under this Section 4.12 and that such obligationsare valid and binding obligations of the Lender, enforceable against Lender inaccordance with their terms; and that Lender’s performance of its obligationsunder this Section 4.12 will not violate any law, rule or regulationapplicable to Lender.

 

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(j)                                     Section 5.9of the Loan Agreement is hereby amended in its entirety and replaced with thefollowing:

 

“Section 5.9 Leverage Ratio. Permit theLeverage Ratio on any Covenant Calculation Date to exceed 3.5 to 1.0.”

 

(k)                                  Section 5.11of the Loan Agreement is hereby amended in its entirety and replaced with thefollowing:

 

“Section 5.11 Fixed Charge Coverage Ratio.Permit the Fixed Charge Coverage Ratio on any Covenant Calculation Date to beless than 1.20 to 1.”

 

(l)                                     Section 5.12of the Loan Agreement is hereby amended in its entirety and replaced with thefollowing:

 

“Section 5.12 Minimum EBITDA. PermitEBITDA on any Covenant Calculation Date to be less than $145,000,000.”

 

3.                                       Representationsand Warranties. The Borrower hereby represents and warrants to theLender as follows:

 

(a)                                  the Borrower has allrequisite power and authority to execute this Amendment and to perform all ofits obligations hereunder, this Amendment has been duly executed and deliveredby the Borrower and this Amendment and the Loan Agreement, as amended hereby,constitute the legal, valid and binding obligations of the Borrower,enforceable against the Borrower in accordance with their terms, except as theenforcement thereof may be limited by bankruptcy, insolvency (including,without limitation, all laws relating to fraudulent transfers), reorganization,moratorium or similar laws affecting enforcement of creditors’ rights generallyand except as enforcement thereof is subject to general principles of equity(regardless of whether enforcement is considered in a proceeding in equity orat law) and except as the ability to waive exhaustion of tribal court remediesmay be limited by applicable law;

 

(b)                                 the execution, delivery andperformance by the Borrower of this Amendment and the borrowings and issuanceof Letters of Credit from time to time under the Loan Agreement as amendedhereby have been duly authorized by all necessary action and do not and willnot (i) require any authorization, consent or approval by, orregistration, declaration or filing with, or notice to, the Nation or any governmentaldepartment, commission, board, bureau, agency or instrumentality, domestic orforeign, or any third party, except such authorization, consent, approval,registration, declaration, filing or notice as has been obtained, accomplishedor given prior to the date hereof; (ii) violate any provision of any law, rule orregulation or of any order, writ, injunction or decree presently in effecthaving applicability to the Borrower or any Guarantor or of the Borrower’s orany Guarantor’s Constituent Documents; (iii) result in a breach of orconstitute a default under any material Contractual Obligation to which theBorrower or 

 

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anyGuarantor is a party or by which it or its properties may be bound or subject;or (iv) result in, or require, the creation or imposition of any Lien(other than the Security Interest) upon or with respect to any of theproperties now owned or hereafter acquired by the Borrower or any Guarantor;and

 

(c)                                  except as noted onSchedule 3(c) attached hereto, all of the representations andwarranties contained in Article III of the Loan Agreement are true andcorrect in all material respects on and as of the date hereof as though made onand as of such date, except to the extent that such representations andwarranties relate solely to an earlier date.

 

4.                                       Conditions toEffectiveness of this Amendment.  Unless waived by the Lender in writing, theeffectiveness of this Amendment is subject to the satisfaction of the followingconditions precedent :

 

(a)                                  Documents. The Lendershall have received all of the following, each of which shall be an original(except where only evidence is required) unless otherwise specified, each dulyexecuted and delivered by each party thereto, each dated as of the date hereof,and each in form and substance satisfactory to the Lender and its legal counsel(unless otherwise specified or, in the case of the date of any of thefollowing, unless the Lender otherwise agrees or directs):

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(i)                                     four executedcounterparts of this Amendment;

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(ii)                                  fourcounterparts of the Acknowledgement, Reaffirmation and Agreement dated as ofthe date hereof executed by each of the Borrower and the Guarantors in favor ofthe Lender;

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### (iii)                               the favorable written legal opinion of counsel to theBorrower and the Guarantors (which counsel shall be satisfactory to theLender), together with copies of all factual certificates and legal opinionsupon which such counsel have relied;

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### (iv)                              such documentation as the Lender may require toestablish (A) federal recognition of the Nation as an Indian tribe withinthe meaning of IGRA, (B)  the Borrower’s and the Guarantors’ authority toexecute, deliver and perform the Loan Documents to be delivered on the datehereof to which they are a party, and (C) the identity, authority andcapacity of each Senior Officer authorized to act on the Borrower’s and eachGuarantor’s behalf, including certified copies of the actions of the Borrower’sgoverning body, incumbency certificates and the like;

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### (v)                                 evidence that all Nation and Borrower actions havebeen taken to permit the Borrower’s limited waiver of sovereign immunity,waiver of rights to tribal court, consent to federal and certain state courtsin the State, and arbitration of disputes, all as provided in this Amendmentand the other Loan Documents;

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### (vi)                              certificates signed by the Secretary of the Borrowerand each Guarantor, and by the Clerk of the Nation, attaching true, correct andcomplete 

 

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### copies of the applicableapprovals (authorizing resolutions) of this Amendment and the Acknowledgement,Reaffirmation and Agreement attached hereto, and true, correct and complete copies of the Constituent Documents ofthe Borrower, each Guarantor and the Nation (including, in each case, anyamendments or modifications of the terms thereof entered into as of the datehereof);

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### (vii)                           evidence that the Lender has all Permits required byLaw with respect to the transactions contemplated in this Amendment and in theother Loan Documents; and

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### (viii)                        such other assurances, certificates, documents,consents or opinions as the Lender may reasonably require.

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(b)                                 Perfection of SecurityInterests in Collateral.  TheLender shall hold a valid, perfected first priority security interest in allCollateral (subject to Permitted Liens).

 

(c)                                  Fee.  An up-front fee of $7,500 shall have beenpaid.

 

(d)                                 Costs and Expenses.  The Borrower shall have paid the costs andexpenses required by Section 5 hereof.

 

(e)                                  Due Diligence. The Lendershall have completed its review of all business and credit matters concerningthe extension of credit under the Loan Agreement as amended hereby, and thesecurity therefor, as the Lender deems appropriate.

 

(f)                                    Financial Statements. The Lendershall have received the consolidated Financial Statements, including theconsolidated balance sheet, statements of income and retained earnings andstatement of cash flow of Borrower and the Guarantors, for the third quarterended June 30, 2009 and, to the extent filed with the SEC prior to thedate hereof, for the fiscal year ended September 30, 2009.

 

(g)                                 Miscellaneous. The Lendershall have received such other instruments, agreements, certificates, opinions,statements, documents and information relating to the operations or condition(financial or otherwise) of the Borrower, and compliance by the Borrower withthe terms of the Loan Agreement as amended hereby and the other Loan Documentsas the Lender may reasonably request.

 

5.                                       Costs andExpenses.  TheBorrower will pay on demand all reasonable costs and expenses of the Lenderincurred in connection with the negotiation, preparation, closing, executionand delivery of this Amendment (including, but not limited to, reasonableattorneys’ fees in an amount not to exceed $25,000), and any other costs andexpenses incurred by the Lender in connection with the Loan Documents, whichthe Borrower is required to pay under the Loan Documents which remain unpaid asof the date hereof.

 

6.                                       References. Allreferences in the Loan Agreement to “this Agreement” shall be deemed to referto the Loan Agreement as amended hereby; and any and all references in anyother Loan Documents shall be deemed to refer to the Loan Agreement as amendedhereby.

 

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7.                                       No Waiver. The executionof this Amendment and any documents related hereto shall not be deemed to be awaiver of any Default or any Event of Default under the Loan Agreement or anybreach, default or event of default under any other Loan Document, whether ornot known to the Lender and whether or not existing on the date of thisAmendment.

 

8.                                       Counterparts. ThisAmendment may be executed in any number of counterparts, each of which when soexecuted and delivered shall be deemed an original and all of whichcounterparts, taken together, shall constitute one and the same agreement.

 

9.                                       Governing Law. ThisAmendment shall be governed by and construed in accordance with the substantivelaw of the State of New York.

 

10.                                 No Further Amendments.  Except as amended hereby, the Loan Agreementshall remain unmodified and in full force and effect.  Each other Loan Document to which Borrower isa party shall remain in full force and effect and shall continue to evidence,secure or otherwise guarantee and support the obligations owing by the Borrowerto the Lender pursuant thereto.

 

11.                                 Miscellaneous. The limitedwaiver of sovereign immunity, jurisdictional, dispute resolution, arbitration,and other provisions contained in Article IX of the Loan Agreement are incorporatedherein, *mutatis mutandis*, by this reference.

 

[Signature Page Follows]

 

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INWITNESS WHEREOF, the parties hereto have executed this Amendment as of the datefirst above written.

 

 
|   | BORROWER:                        |
|--------|----------------------------------|
|   |                             |
|   | **SENECA  GAMING CORPORATION**   |
|   | ** **                       |
|   | ** **                       |
|   | By:                              | /s/ Catherine Walker |
|   | Name: Catherine Walker           |
|   | Title: Chief Operating Officer   |
|   |                             |
|   |                             |
|   | LENDER:                          |
|   |                             |
|   | **KEYBANK NATIONAL ASSOCIATION** |
|   | ** **                       |
|   | ** **                       |
|   | By:                              | /s/ Terence E. O’Farrell |
|   | Name: Terence E.  O’Farrell |
|   | Title: Senior Vice President     |

 

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Schedule 3(c)

to First Amendment to Loan Agreement

 

1.               The representation in Section 3.7of the Loan Agreement is modified to reflect the dissolution of SenecaMassachusetts Gaming Corporation, as previously disclosed in the Borrower’s 34Act reports filed with the SEC.

 

2.               The representation in thelast sentence of Section 3.8 of the Loan Agreement is modified by allfinancial statements contained in 34 Act reports filed with the SEC subsequentto August 1, 2008 and available to Lender.

 

3.               The representation in Section 3.9of the Loan Agreement is modified by the disclosures pertaining to legalproceedings contained in the Borrower’s annual reports on Form 10-K filedwith the SEC subsequent to December 1, 2008 and available to Lender.

 

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