Exhibit 4.2


 


REGISTRATION RIGHTS AGREEMENT


 


This Registration Rights Agreement (the “Agreement”)
is made and entered into this 23rd day of May, 2005, among Seneca Gaming
Corporation, a tribally chartered entity under the laws of the Seneca Nation of
Indians of New York (the “Company”), the Guarantors party hereto, and
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Banc of America Securities LLC and Wells Fargo Securities, LLC
(collectively, the “Initial Purchasers”).


 


This Agreement is made pursuant to the Purchase
Agreement, dated May 18, 2005, among the Company, the Guarantors party
thereto and the Initial Purchasers (the “Purchase Agreement”), which
provides for the sale by the Company to the Initial Purchasers of an aggregate
of $200,000,000 principal amount of the Company’s 71⁄4% Senior Notes due 2012
(together with the Guarantees, the “Securities”).  In order to induce the Initial Purchasers to
enter into the Purchase Agreement, the Company and the Guarantors have agreed
to provide to the Initial Purchasers and their direct and indirect transferees
the registration rights set forth in this Agreement.  The execution of this Agreement is a
condition to the closing under the Purchase Agreement.


 


In consideration of the foregoing, the parties hereto
agree as follows:


 


1.             Definitions.


 


As used in this Agreement, the following
capitalized defined terms shall have the following meanings:


 


“1933 Act”
shall mean the Securities Act of 1933, as amended from time to time.


 


“1934 Act”
shall mean the Securities Exchange Act of l934, as amended from time to time.


 


“Closing Date”
shall mean the Closing Time as defined in the Purchase Agreement.


 


“Company”
shall have the meaning set forth in the preamble and shall also include the
Company’s successors.


 


“Depositary”
shall mean The Depository Trust Company, or any other depositary appointed by
the Company, provided, however,
that such depositary must have an address in the Borough of Manhattan, in the
City of New York.


 


“Exchange Offer”
shall mean the exchange offer by the Company and the Guarantors of Exchange
Securities for Registrable Securities pursuant to Section 2.1
hereof.


 


“Exchange Offer Registration”
shall mean a registration under the 1933 Act effected pursuant to Section 2.1
hereof.


 





















 


“Exchange Offer Registration Statement”
shall mean an exchange offer registration statement on Form S-4 (or, if
applicable, on another appropriate form), and all amendments and supplements to
such registration statement, including the Prospectus contained therein, all
exhibits thereto and all documents incorporated by reference therein.


 


“Exchange
Period” shall have the meaning set forth in Section 2.1 hereof.


 


“Exchange Securities”
shall mean the 71⁄4% Senior Notes due 2012 issued by the Company under the Indenture,
and the Guarantees thereon, containing terms identical to the Securities in all
material respects (except for references to certain interest rate provisions,
restrictions on transfers and restrictive legends), to be offered to Holders of
Securities in exchange for Registrable Securities pursuant to the Exchange
Offer.


 


“Guarantee”
means the senior unsecured guarantee by each Guarantor of the Company’s payment
obligations under the Indenture and the Securities, the Exchange Securities and
the Private Exchange Securities, executed pursuant to the Indenture.


 


“Guarantors”
means each of: (1) Seneca Erie Gaming Corporation and Seneca Territory
Gaming Corporation, each a tribally chartered entity formed by the Nation and
wholly owned by the Company; (2) effective upon the repayment of the
Existing Facility (as defined in the Indenture) on the Closing Date, Seneca
Niagara Falls Gaming Corporation, a tribally chartered entity formed by the
Nation and wholly owned by the Company, and (3) any other Subsidiary that
executes a Guarantee in accordance with the provisions of the Indenture; and
their respective successors and assigns, in each case, until such Person is
released from its Guarantee in accordance with the terms of the Indenture.


 


“Holder”
shall mean an Initial Purchaser, for so long as it owns any Registrable
Securities, and each of its successors, assigns and direct and indirect
transferees who become registered owners of Registrable Securities under the
Indenture and each Participating Broker-Dealer that holds Exchange Securities
for so long as such Participating Broker-Dealer is required to deliver a
prospectus meeting the requirements of the 1933 Act in connection with any
resale of such Exchange Securities.


 


“Indenture”
shall mean the Indenture relating to the Securities, dated as of May 5,
2004, as amended by the supplemental indenture, dated as of May 23, 2005,
among the Company, the Guarantors and Wells Fargo Bank, National Association,
as trustee, as the same may be amended, supplemented, waived or otherwise
modified from time to time in accordance with the terms thereof.


 


“Initial Purchaser”
or “Initial Purchasers” shall have the meaning set forth in the
preamble.


 


“Majority Holders”
shall mean the Holders of a majority of the aggregate principal amount of
outstanding Registrable Securities;  provided
that whenever the consent or approval of Holders of a specified percentage of
Registrable Securities is required hereunder, Registrable Securities held by
the Company and other obligors on the


 


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Securities or any Affiliate (as defined in
the Indenture) of the Company shall be disregarded in determining whether such
consent or approval was given by the Holders of such required percentage
amount.


 


“Nation”
shall mean the Seneca Nation of Indians of New York, a sovereign Indian Nation.


 


“Participating Broker-Dealer”
shall mean any of Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Banc of America Securities LLC and Wells Fargo Securities,
LLC and any other broker-dealer which makes a market in the Securities and
exchanges Registrable Securities in the Exchange Offer for Exchange Securities.


 


“Person”
shall mean an individual, partnership (general or limited), corporation,
limited liability company, trust or unincorporated organization, or a
government or agency or political subdivision thereof.


 


“Private
Exchange” shall have the meaning set forth in Section 2.1
hereof.


 


“Private
Exchange Securities” shall have the meaning set forth in Section 2.1
hereof.


 


“Prospectus”
shall mean the prospectus included in a Registration Statement, including any
preliminary prospectus, and any such prospectus as amended or supplemented by
any prospectus supplement, including any such prospectus supplement with
respect to the terms of the offering of any portion of the Registrable
Securities covered by a Shelf Registration Statement, and by all other
amendments and supplements to a prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
therein.


 


“Purchase Agreement”
shall have the meaning set forth in the preamble.


 


“Registrable Securities”
shall mean the Securities and, if issued, the Private Exchange Securities; provided, however, that Securities and, if
issued, the Private Exchange Securities, shall cease to be Registrable
Securities when (i) a Registration Statement with respect to such
Securities shall have been declared effective under the 1933 Act and such
Securities shall have been disposed of pursuant to such Registration Statement,
(ii) such Securities are eligible to be sold pursuant to Rule l44(k)
(or any similar provision then in force, but not Rule 144A) under the 1933
Act, (iii) such Securities shall have ceased to be outstanding or (iv) the
Exchange Offer is consummated (except in the case of Securities purchased from
the Company and continued to be held by the Initial Purchasers).


 


“Registration Expenses”
shall mean any and all expenses incident to performance of or compliance by the
Company and the Guarantors with this Agreement, including without
limitation:  (i) all SEC, stock
exchange or National Association of Securities Dealers, Inc. (the “NASD”)
registration and filing fees, including, if applicable, the fees and expenses
of any “qualified independent underwriter” (and its counsel) that is required


 


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to be retained by any holder of Registrable
Securities in accordance with the rules and regulations of the NASD, (ii) all
fees and expenses incurred in connection with compliance with state securities
or blue sky laws and compliance with the rules of the NASD (including
reasonable fees and disbursements of counsel for any underwriters or Holders in
connection with blue sky qualifications of any of the Exchange Securities or
Registrable Securities and any filings with the NASD), (iii) all expenses
of any Persons in preparing or assisting in preparing, word processing,
printing and distributing any Registration Statement, any Prospectus, any
amendments or supplements thereto, any underwriting agreements, securities
sales agreements and other documents relating to the performance of and
compliance with this Agreement, (iv) all fees and expenses incurred in
connection with the listing, if any, of any of the Registrable Securities on
any securities exchange or exchanges, (v) all rating agency fees, (vi) the
fees and disbursements of counsel for the Company and the Guarantors and of the
independent public accountants of the Company, including the expenses of any
special audits or “cold comfort” letters required by or incident to such
performance and compliance, (vii) the fees and expenses of the Trustee,
and any escrow agent or custodian, (viii) the reasonable fees and expenses
of the Initial Purchasers in connection with the Exchange Offer, including the
reasonable fees and expenses of counsel to the Initial Purchasers in connection
therewith, (ix) in the case of an Exchange Offer or a Shelf Registration,
all costs and expenses (including, without limitation, legal fees and expenses)
of the Holders, Initial Purchasers or underwriters up to $10,000 in the
aggregate and (x) any fees and disbursements of the underwriters
customarily required to be paid by issuers or sellers of securities and the fees
and expenses of any special experts retained by the Company and the Guarantors
in connection with any Registration Statement, but excluding underwriting
discounts and commissions and transfer taxes, if any, relating to the sale or
disposition of Registrable Securities by a Holder.


 


“Registration Statement”
shall mean any registration statement of the Company and the Guarantors which
covers any of the Exchange Securities or Registrable Securities pursuant to the
provisions of this Agreement, and all amendments and supplements to any such
Registration Statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.


 


“SEC”
shall mean the Securities and Exchange Commission or any successor agency or
government body performing the functions currently performed by the United
States Securities and Exchange Commission.


 


“Shelf Registration”
shall mean a registration effected pursuant to Section 2.2 hereof.


 


“Shelf Registration Statement”
shall mean a “shelf” registration statement of the Company and the Guarantors
pursuant to the provisions of Section 2.2 of this Agreement which
covers all of the Registrable Securities or all of the Private Exchange Securities
on an appropriate form under Rule 415 under the 1933 Act, or any similar rule that
may be adopted by the SEC, and all amendments and supplements to such
registration statement,


 


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including post-effective amendments, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.


 


“Trustee”
shall mean the trustee with respect to the Securities under the Indenture.


 


2.             Registration Under the 1933 Act.


 


2.1           Exchange Offer.  The Company and the Guarantors shall, for the
benefit of the Holders, at the Company’s cost, (A) prepare and, as soon as
practicable but not later than 120 days following the Closing Date, file with
the SEC an Exchange Offer Registration Statement on an appropriate form under
the 1933 Act with respect to a proposed Exchange Offer and the issuance and
delivery to the Holders, in exchange for the Registrable Securities (other than
Private Exchange Securities), of a like principal amount of Exchange
Securities, (B) use its reasonable best efforts to cause the Exchange
Offer Registration Statement to be declared effective under the 1933 Act within
270 days of the Closing Date, (C) use its reasonable best efforts to
keep the Exchange Offer Registration Statement effective until the closing of
the Exchange Offer and (D) use its reasonable best efforts to cause the
Exchange Offer to be consummated not later than 300 days following the Closing
Date.  Upon the effectiveness of the Exchange
Offer Registration Statement, the Company and the Guarantors shall promptly
commence the Exchange Offer, it being the objective of such Exchange Offer to
enable each Holder eligible and electing to exchange Registrable Securities for
Exchange Securities (assuming that such Holder (a) is not an affiliate of
the Company or the Guarantors within the meaning of Rule 405 under the
1933 Act, (b) is not a broker-dealer tendering Registrable Securities
acquired directly from the Company and the Guarantors for its own account, (c) acquired
the Exchange Securities in the ordinary course of such Holder’s business and (d) has
no arrangements or understandings with any Person to participate in the
Exchange Offer for the purpose of distributing the Exchange Securities) to
transfer such Exchange Securities from and after their receipt without any
limitations or restrictions under the 1933 Act and under state securities or
blue sky laws.


 


In connection with the Exchange Offer, the Company and
the Guarantors shall:


 


(a)           mail
as promptly as practicable to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an appropriate
letter of transmittal and related documents;


 


(b)           keep
the Exchange Offer open for acceptance for a period of not less than
30 calendar days after the date notice thereof is mailed to the Holders
(or longer if required by applicable law) (such period referred to herein as
the “Exchange Period”);


 


(c)           utilize
the services of the Depositary for the Exchange Offer;


 


(d)           permit
Holders to withdraw tendered Registrable Securities at any time prior to 5:00 p.m.
(Eastern Time), on the last business day of the Exchange Period, by sending to
the institution specified in the notice, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the principal
amount of Registrable Securities delivered for exchange, and a statement that
such Holder is withdrawing such Holder’s election to have such Securities
exchanged;


 


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(e)           notify
each Holder that any Registrable Security not tendered will remain outstanding
and continue to accrue interest, but will not retain any rights under this
Agreement (except in the case of the Initial Purchasers and Participating
Broker-Dealers as provided herein); and


 


(f)            otherwise
comply in all respects with all applicable laws relating to the Exchange Offer.


 


If, prior to consummation of the Exchange Offer, the
Initial Purchasers hold any Securities acquired by them and having the status
of an unsold allotment in the initial distribution, the Company and the
Guarantors upon the request of any Initial Purchaser shall, simultaneously with
the delivery of the Exchange Securities in the Exchange Offer, issue and
deliver to such Initial Purchaser in exchange (the “Private Exchange”)
for the Securities held by such Initial Purchaser, a like principal amount of
debt securities of the Company on a senior unsecured basis, that are identical
(except that such securities shall bear appropriate transfer restrictions) to
the Exchange Securities (including the Guarantees thereon, the “Private
Exchange Securities”).


 


The Exchange Securities and the Private Exchange
Securities shall be issued under (i) the Indenture or (ii) an
indenture identical in all material respects to the Indenture and which, in
either case, has been qualified under the Trust Indenture Act of 1939, as
amended (the “TIA”), or is exempt from such qualification and shall
provide that the Exchange Securities shall not be subject to the transfer
restrictions set forth in the Indenture but that the Private Exchange
Securities shall be subject to such transfer restrictions.  The Indenture or such indenture shall provide
that the Exchange Securities, the Private Exchange Securities and the
Securities shall vote and consent together on all matters as one class and that
none of the Exchange Securities, the Private Exchange Securities or the
Securities will have the right to vote or consent as a separate class on any
matter.  The Private Exchange Securities
shall be of the same series as and the Company and the Guarantors shall use all
commercially reasonable efforts to have the Private Exchange Securities bear
the same CUSIP number as the Exchange Securities.  The Company and the Guarantors shall not have
any liability under this Agreement solely as a result of such Private Exchange
Securities not bearing the same CUSIP number as the Exchange Securities.


 


As soon as practicable after the close of the Exchange
Offer and/or the Private Exchange, as the case may be, the Company and the
Guarantors shall:


 


(i)  accept for
exchange all Registrable Securities duly tendered and not validly withdrawn
pursuant to the Exchange Offer in accordance with the terms of the Exchange Offer
Registration Statement and the letter of transmittal which shall be an exhibit
thereto;


 


(ii)  accept for
exchange all Securities properly tendered pursuant to the Private Exchange;


 


(iii)  deliver to
the Trustee for cancellation all Registrable Securities so accepted for
exchange; and


 


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(iv)  cause the
Trustee promptly to authenticate and deliver Exchange Securities or Private
Exchange Securities, as the case may be, to each Holder of Registrable Securities
so accepted for exchange in a principal amount equal to the principal amount of
the Registrable Securities of such Holder so accepted for exchange.


 


Interest on each Exchange Security and Private
Exchange Security will accrue from the last date on which interest was paid on
the Registrable Securities surrendered in exchange therefor or, if no interest
has been paid on the Registrable Securities, from the date of original
issuance.  The Exchange Offer and the Private
Exchange shall not be subject to any conditions, other than (i) that the
Exchange Offer or the Private Exchange, or the making of any exchange by a
Holder, does not violate applicable law or any applicable interpretation of the
staff of the SEC, (ii) the due tendering of Registrable Securities in
accordance with the Exchange Offer and the Private Exchange, (iii) that
each Holder of Registrable Securities exchanged in the Exchange Offer shall
have represented that all Exchange Securities to be received by it shall be
acquired in the ordinary course of its business and that at the time of the
consummation of the Exchange Offer it shall have no arrangement or
understanding with any person to participate in the distribution (within the
meaning of the 1933 Act) of the Exchange Securities and shall have made such
other representations as may be reasonably necessary under applicable SEC
rules, regulations or interpretations to render the use of Form S-4 or
other appropriate form under the 1933 Act available and (iv) that no
action or proceeding shall have been instituted or threatened in any court or
by or before any governmental agency with respect to the Exchange Offer or the
Private Exchange which, in the Company’s judgment, would reasonably be expected
to impair the ability of the Company and the Guarantors to proceed with the
Exchange Offer or the Private Exchange. 
The Company shall inform the Initial Purchasers of the names and
addresses of the Holders to whom the Exchange Offer is made, and the Initial Purchasers
shall have the right to contact such Holders and otherwise facilitate the
tender of Registrable Securities in the Exchange Offer.


 


2.2           Shelf Registration.  (i) If, because of any changes in law,
SEC rules or regulations or applicable interpretations thereof by the
staff of the SEC, the Company and the Guarantors are not permitted to effect
the Exchange Offer as contemplated by Section 2.1 hereof, (ii) if
for any other reason the Exchange Offer Registration Statement is not declared
effective within 270 days following the original issue of the Registrable
Securities or the Exchange Offer is not consummated within 300 days after the
original issue of the Registrable Securities, (iii) if a Holder is not
entitled to participate in the Exchange Offer due to a change in law or SEC
policy or if a Holder may not resell the Exchange Notes acquired by it in the
Exchange Offer to the public without delivering a prospectus and the prospectus
contained in the Exchange Offer Registration Statement is not appropriate or
available for such resales by such Holder due to a change in law or SEC policy,
provided that in each case such Holder provides notice to the Company
within 30 days of any such change in law or SEC policy, (iv) if a Holder
notifies the Company that it is a broker-dealer and owns Securities acquired
directly from the Company or the Company’s Affiliates (as defined in the
Indenture), or (v) Holders of a majority of the Securities are not
permitted to resell the Exchange Notes acquired by them in the Exchange Offer
to the public without restriction under the 1933 Act and without restriction
under applicable blue sky or state securities laws, then in case of each of clauses
(i) through (v) the Company and the Guarantors shall, at
the Company’s cost:


 


7





















 


(a)           As
promptly as practicable but no later than 300 days after the original issue of
the Registrable Securities, file with the SEC, and thereafter shall use its
reasonable best efforts to cause to be declared effective as promptly as
practicable thereafter, a Shelf Registration Statement relating to the offer
and sale of the Registrable Securities by the Holders from time to time in
accordance with the methods of distribution elected by the Majority Holders
participating in the Shelf Registration and set forth in such Shelf
Registration Statement.


 


(b)           Use
its reasonable best efforts to keep the Shelf Registration Statement
continuously supplemented and amended until the earliest of (i) the time
when the Registrable Securities covered by the Shelf Registration Statement can
be sold pursuant to Rule 144 without any limitations under clauses (c),
(e), (f) and (h) of Rule 144, (ii) the
second anniversary of the effective date of the Shelf Registration Statement,
or (iii) for such shorter period that will terminate when all Registrable
Securities covered by the Shelf Registration Statement have been sold pursuant
to the Shelf Registration Statement or cease to be outstanding or otherwise to
be Registrable Securities (the “Effectiveness Period”);  provided, however,
that the Effectiveness Period in respect of the Shelf Registration Statement
shall be extended to the extent required to permit dealers to comply with the
applicable prospectus delivery requirements of Rule 174 under the 1933 Act
and as otherwise provided herein.


 


(c)           Notwithstanding
any other provisions hereof, use its best efforts to ensure that (i) any
Shelf Registration Statement and any amendment thereto and any Prospectus
forming part thereof and any supplement thereto complies in all material
respects with the 1933 Act and the rules and regulations thereunder, (ii) any
Shelf Registration Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading and (iii) any Prospectus forming part of
any Shelf Registration Statement, and any supplement to such Prospectus (as
amended or supplemented from time to time), does not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements, in light of the circumstances under which they
were made, not misleading.


 


The Company and the Guarantors shall not permit any
securities other than Registrable Securities to be included in the Shelf
Registration Statement.  The Company and
the Guarantors further agree, if necessary, to supplement or amend the Shelf
Registration Statement, as required by Section 3(b) below, and
to furnish to the Holders of Registrable Securities copies of any such
supplement or amendment promptly after its being used or filed with the SEC.


 


2.3           Expenses.  The Company shall pay all Registration
Expenses in connection with the registration pursuant to Section 2.1
or 2.2.  Each Holder shall pay all
underwriting discounts and commissions and transfer taxes, if any, relating to
the sale or disposition of such Holder’s Registrable Securities pursuant to the
Shelf Registration Statement.


 


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2.4           Effectiveness.  (a) The Company and the Guarantors will
be deemed not to have used their reasonable best efforts to cause the Exchange
Offer Registration Statement or the Shelf Registration Statement, as the case
may be, to become, or to remain, effective during the requisite period if the
Company and the Guarantors voluntarily take any action that would, or omit to
take any action which omission would, result in any such Registration Statement
not being declared effective or in the Holders of Registrable Securities
covered thereby not being able to exchange or offer and sell such Registrable
Securities during that period as and to the extent contemplated hereby, unless
such action is required by applicable law.


 


(b)           An
Exchange Offer Registration Statement pursuant to Section 2.1
hereof or a Shelf Registration Statement pursuant to Section 2.2
hereof will not be deemed to have become effective unless it has been declared
effective by the SEC; provided, however,
that if, after it has been declared effective, the offering of Registrable
Securities pursuant to an Exchange Offer Registration Statement or a Shelf
Registration Statement is interfered with by any stop order, injunction or
other order or requirement of the SEC or any other governmental agency or
court, such Registration Statement will be deemed not to have become effective
during the period of such interference, until the offering of Registrable
Securities pursuant to such Registration Statement may legally resume.


 


2.5           Interest.  In the event that either (a) the
Exchange Offer Registration Statement is not filed with the Commission on or
prior to the 120th calendar day following the date of original issue of the
Securities, (b) the Exchange Offer Registration Statement has not been
declared effective on or prior to the 270th calendar day following the date of
original issue of the Securities or (c) the Exchange Offer is not
consummated or a Shelf Registration Statement is not filed, in either case, on
or prior to the 300th calendar day following the date of original issue of the
Securities (each such event referred to in clauses (a) through (c) above,
a “Registration Default”), the interest rate borne by the Securities
shall be increased (“Additional Interest”) by one-quarter of one percent
per annum upon the occurrence of each Registration Default, which rate will
increase by one quarter of one percent (0.25%) each 90-day period that such
Additional Interest continues to accrue under any such circumstance, provided
that the maximum aggregate increase in the interest rate will in no event
exceed one percent (1%) per annum. 
Following the cure of all Registration Defaults the accrual of
Additional Interest will cease and the interest rate will revert to the
original rate.


 


If the Shelf Registration Statement is unusable by the
Holders for any reason after the effective date, and the aggregate number of
days in any consecutive twelve-month period for which the Shelf Registration
Statement shall not be usable exceeds 30 days in the aggregate, then the
interest rate borne by the Securities will be increased by 0.25% per annum of
the principal amount of the Securities for the first 90-day period (or portion
thereof) beginning on the 31st such date that such Shelf
Registration Statement ceases to be usable, which rate shall be increased by an
additional 0.25% per annum of the principal amount of the Securities at the
beginning of each subsequent 90-day period, provided that the maximum
aggregate increase in the interest rate will in no event exceed one percent
(1%) per annum.  Any amounts payable
under this paragraph shall also be deemed “Additional Interest” for purposes of
this Agreement.  Upon the Shelf
Registration Statement once again becoming usable, the interest rate borne by the
Securities will be reduced to the original interest rate if the Company and the
Guarantors are otherwise in compliance with this Agreement at such time.  Additional Interest shall be


 


9





















 


computed based on the actual
number of days elapsed in each 90-day period in which the Shelf Registration
Statement is unusable.


 


A Registration Default referred to above shall be
deemed not to have occurred and be continuing in relation to a Shelf
Registration Statement if (i) such Registration Default has occurred
solely as a result of (x) the filing of a post-effective amendment to such
Shelf Registration Statement to incorporate annual audited financial
information with respect to the Company where such post-effective amendment is
not yet effective and needs to be declared effective to permit Holders to use
the related prospectus or (y) other material events, with respect to the
Company that would need to be described in such Shelf Registration Statement
and (ii) in the case of clause (y), the Company is proceeding
promptly and in good faith to amend or supplement such Shelf Registration
Statement to describe such events; provided, however, that in any
case if such Registration Default occurs for a continuous period in excess of
30 days, Additional Interest shall be payable in accordance with the above
paragraph from the day such Registration Default occurs until such
Registration Default is cured.


 


The Company and the Guarantors shall notify the
Trustee within three business days after each and every date on which an event
occurs in respect of which Additional Interest is required to be paid (an “Event
Date”).  Additional Interest shall be
paid by depositing with the Trustee, in trust, for the benefit of the Holders
of Registrable Securities, on or before the applicable semiannual interest
payment date, immediately available funds in sums sufficient to pay the
Additional Interest then due.  The
Additional Interest due shall be payable on each interest payment date to the
record Holder of Securities entitled to receive the interest payment to be paid
on such date as set forth in the Indenture. 
Each obligation to pay Additional Interest shall be deemed to accrue
from and including the day following the applicable Event Date.


 


3.             Registration Procedures.


 


In connection with the obligations of the Company and
the Guarantors with respect to Registration Statements pursuant to Sections
2.1 and 2.2 hereof, the Company and the Guarantors shall:


 


(a)           prepare
and file with the SEC a Registration Statement, within the relevant time period
specified in Section 2, on the appropriate form under the 1933 Act,
which form (i) shall be selected by the Company, (ii) shall, in the
case of a Shelf Registration, be available for the sale of the Registrable
Securities by the selling Holders thereof, (iii) shall comply as to form
in all material respects with the requirements of the applicable form and
include or incorporate by reference all financial statements required by the
SEC to be filed therewith or incorporated by reference therein, and (iv) shall
comply in all respects with the requirements of Regulation S-T under the 1933
Act, and use its best efforts to cause such Registration Statement to become
effective and remain effective in accordance with Section 2 hereof;


 


(b)           prepare
and file with the SEC such amendments and post-effective amendments to each
Registration Statement as may be necessary under applicable law to keep such
Registration Statement effective for the applicable period; and cause each
Prospectus to be supplemented by any required prospectus supplement, and as so
supplemented to be filed pursuant to Rule 424 (or any similar provision
then in force) under the 1933 Act and comply


 


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with the provisions of the 1933
Act, the 1934 Act and the rules and regulations thereunder applicable to
them with respect to the disposition of all securities covered by each
Registration Statement during the applicable period in accordance with the intended
method or methods of distribution by the selling Holders thereof (including
sales by any Participating Broker-Dealer);


 


(c)           in
the case of a Shelf Registration, (i) notify each Holder of Registrable
Securities, at least five business days prior to filing, that a Shelf
Registration Statement with respect to the Registrable Securities is being
filed and advising such Holders that the distribution of Registrable Securities
will be made in accordance with the method selected by the Majority Holders
participating in the Shelf Registration; (ii) furnish to each Holder of
Registrable Securities and to each underwriter of an underwritten offering of
Registrable Securities, if any, without charge, as many copies of each
Prospectus, including each preliminary Prospectus, and any amendment or
supplement thereto and such other documents as such Holder or underwriter may
reasonably request, including financial statements and schedules and, if the
Holder so requests, all exhibits in order to facilitate the public sale or
other disposition of the Registrable Securities; and (iii) hereby consent
to the use of the Prospectus or any amendment or supplement thereto by each of
the selling Holders of Registrable Securities in connection with the offering
and sale of the Registrable Securities covered by the Prospectus or any
amendment or supplement thereto;


 


(d)           use
its best efforts to register or qualify the Registrable Securities under all
applicable state securities or “blue sky” laws of such jurisdictions as any
Holder of Registrable Securities covered by a Registration Statement and each
underwriter of an underwritten offering of Registrable Securities shall
reasonably request by the time the applicable Registration Statement is
declared effective by the SEC, and do any and all other acts and things which
may be reasonably necessary or advisable to enable each such Holder and
underwriter to consummate the disposition in each such jurisdiction of such
Registrable Securities owned by such Holder; provided, however, that the Company and the
Guarantors shall not be required to (i) qualify as foreign corporations or
as dealers in securities in any jurisdiction where they would not otherwise be
required to qualify but for this Section 3(d), or (ii) take
any action which would subject them to general service of process or taxation
in any such jurisdiction where they are not then so subject;


 


(e)           notify
promptly each Holder of Registrable Securities under a Shelf Registration or
any Participating Broker-Dealer who has notified the Company and the Guarantors
that it is utilizing the Exchange Offer Registration Statement as provided in
paragraph (f) below and, if requested by such Holder or Participating
Broker-Dealer, confirm such advice in writing promptly (i) when a
Registration Statement has become effective and when any post-effective
amendments and supplements thereto become effective, (ii) of any request
by the SEC or any state securities authority for post-effective amendments and
supplements to a Registration Statement and Prospectus or for additional
information after the Registration Statement has become effective, (iii) of
the issuance by the SEC or any state securities authority of any stop order
suspending the effectiveness of a Registration Statement or the initiation of any
proceedings for that purpose, (iv) in the case of a Shelf Registration,
if, between the effective date of a Registration Statement and the closing of
any sale of Registrable Securities covered thereby, the representations and
warranties of the Company and the Guarantors contained in any underwriting
agreement, securities sales agreement or other similar


 


11





















 


agreement, if any, relating to
the offering cease to be true and correct in all material respects, (v) of
the happening of any event or the discovery of any facts during the period a
Shelf Registration Statement is effective which makes any statement made in
such Registration Statement or the related Prospectus untrue in any material
respect or which requires the making of any changes in such Registration
Statement or Prospectus in order to make the statements therein not misleading,
(vi) of the receipt by the Company and the Guarantors of any notification
with respect to the suspension of the qualification of the Registrable
Securities or the Exchange Securities, as the case may be, for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose and (vii) of any determination by the Company and the Guarantors
that a post-effective amendment to such Registration Statement would be
appropriate;


 


(f)            (A) 
in the case of the Exchange Offer Registration Statement (i) include in
the Exchange Offer Registration Statement a section entitled “Plan of
Distribution” which section shall be reasonably acceptable to Merrill
Lynch on behalf of the Participating Broker-Dealers, and which shall contain a
summary statement of the positions taken or policies made by the staff of the
SEC with respect to the potential “underwriter” status of any broker-dealer
that holds Registrable Securities acquired for its own account as a result of
market-making activities or other trading activities and that will be the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act) of
Exchange Securities to be received by such broker-dealer in the Exchange Offer,
whether such positions or policies have been publicly disseminated by the staff
of the SEC or such positions or policies, in the reasonable judgment of Merrill
Lynch on behalf of the Participating Broker-Dealers and its counsel, represent
the prevailing views of the staff of the SEC, including a statement that any
such broker-dealer who receives Exchange Securities for Registrable Securities
pursuant to the Exchange Offer may be deemed a statutory underwriter and must
deliver a prospectus meeting the requirements of the 1933 Act in connection
with any resale of such Exchange Securities, (ii) furnish to each
Participating Broker-Dealer who has delivered to the Company and the Guarantors
the notice referred to in Section 3(e), without charge, as many
copies of each Prospectus included in the Exchange Offer Registration
Statement, including any preliminary prospectus, and any amendment or
supplement thereto, as such Participating Broker-Dealer may reasonably request,
(iii) hereby consent to the use of the Prospectus forming part of the
Exchange Offer Registration Statement or any amendment or supplement thereto,
by any Person subject to the prospectus delivery requirements of the SEC,
including all Participating Broker-Dealers, in connection with the sale or
transfer of the Exchange Securities covered by the Prospectus or any amendment
or supplement thereto, and (iv) include in the transmittal letter or
similar documentation to be executed by an exchange offeree in order to
participate in the Exchange Offer (x) the following provision:


 


“If the exchange offeree is a broker-dealer holding
Registrable Securities acquired for its own account as a result of
market-making activities or other trading activities, it will deliver a
prospectus meeting the requirements of the 1933 Act in connection with any
resale of Exchange Securities received in respect of such Registrable
Securities pursuant to the Exchange Offer;” and


 


12





















 


(y) a
statement to the effect that by a broker-dealer making the acknowledgment
described in clause (x) and by delivering a Prospectus in connection
with the exchange of Registrable Securities, the broker-dealer will not be
deemed to admit that it is an underwriter within the meaning of the 1933 Act;
and


 


(B)  in the case of
any Exchange Offer Registration Statement, the Company and the Guarantors agree
to deliver to the Initial Purchasers on behalf of the Participating
Broker-Dealers upon the effectiveness of the Exchange Offer Registration
Statement (i) an opinion of counsel or opinions of counsel substantially
in the form attached hereto as Exhibit A, (ii) officers’ certificates
substantially in the form customarily delivered in a public offering of debt
securities and (iii) an agreed upon procedures letter or letters in
customary form from the Company’s independent certified public accountants
(and, if necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company and the
Guarantors for which financial statements are, or are required to be, included
in the Registration Statement) at least as broad in scope and coverage as the
comfort letter or comfort letters delivered to the Initial Purchasers in
connection with the initial sale of the Securities to the Initial Purchasers;


 


(g)           (i) 
in the case of an Exchange Offer, furnish counsel for the Initial Purchasers
and (ii) in the case of a Shelf Registration, furnish counsel for the
Holders of Registrable Securities copies of any comment letters received from
the SEC or any other request by the SEC or any state securities authority for
amendments or supplements to a Registration Statement and Prospectus or for
additional information;


 


(h)           make
every reasonable effort to obtain the withdrawal of any order suspending the
effectiveness of a Registration Statement at the earliest possible moment;


 


(i)            in
the case of a Shelf Registration, furnish to each Holder of Registrable
Securities, and each underwriter, if any, without charge, at least one
conformed copy of each Registration Statement and any post-effective amendment
thereto, including financial statements and schedules (without documents
incorporated therein by reference and all exhibits thereto, unless requested);


 


(j)            in
the case of a Shelf Registration, cooperate with the selling Holders of
Registrable Securities to facilitate the timely preparation and delivery of
certificates representing Registrable Securities to be sold and not bearing any
restrictive legends; and enable such Registrable Securities to be in such
denominations (consistent with the provisions of the Indenture) and registered
in such names as the selling Holders or the underwriters, if any, may
reasonably request at least three business days prior to the closing of any
sale of Registrable Securities;


 


(k)           in
the case of a Shelf Registration, upon the occurrence of any event or the
discovery of any facts, each as contemplated by Sections 3(e)(v) and
3(e)(vi) hereof, as promptly as practicable after the occurrence of
such an event, use its reasonable best efforts to prepare a supplement or
post-effective amendment to the Registration Statement or the related
Prospectus or any document incorporated therein by reference or file any other
required document so that, as


 


13





















 


thereafter delivered to the
purchasers of the Registrable Securities or Participating Broker-Dealers, such
Prospectus will not contain at the time of such delivery any untrue statement
of a material fact or omit to state a material fact necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading or will remain so qualified. 
At such time as such public disclosure is otherwise made or the Company
determines that such disclosure is not necessary, in each case to correct any
misstatement of a material fact or to include any omitted material fact, the
Company agrees promptly to notify each Holder of such determination and to
furnish each Holder such number of copies of the Prospectus as amended or
supplemented, as such Holder may reasonably request;


 


(l)            in
the case of a Shelf Registration, a reasonable time prior to the filing of any
Registration Statement, any Prospectus, any amendment to a Registration
Statement or amendment or supplement to a Prospectus or any document which is
to be incorporated by reference into a Registration Statement or a Prospectus
after initial filing of a Registration Statement, provide copies of such
document to the Initial Purchasers on behalf of such Holders; and make
representatives of the Company as shall be reasonably requested by the Holders
of Registrable Securities, or the Initial Purchasers on behalf of such Holders,
available for discussion of such document;


 


(m)          obtain
a CUSIP number for all Exchange Securities, Private Exchange Securities or
Registrable Securities, as the case may be, not later than the effective date
of a Registration Statement, and provide the Trustee with printed certificates
for the Exchange Securities, Private Exchange Securities or the Registrable
Securities, as the case may be, in a form eligible for deposit with the
Depositary;


 


(n)           (i) 
cause the Indenture to be qualified under the TIA in connection with the
registration of the Exchange Securities or Registrable Securities, as the case
may be, (ii) cooperate with the Trustee and the Holders to effect such
changes to the Indenture as may be required for the Indenture to be so
qualified in accordance with the terms of the TIA and (iii) execute, and
use its best efforts to cause the Trustee to execute, all documents as may be
required to effect such changes, and all other forms and documents required to
be filed with the SEC to enable the Indenture to be so qualified in a timely
manner;


 


(o)           in
the case of a Shelf Registration, enter into agreements (including underwriting
agreements) and take all other customary and appropriate actions in order to
expedite or facilitate the disposition of such Registrable Securities and in
such connection whether or not an underwriting agreement is entered into and
whether or not the registration is an underwritten registration:


 


(i)  make such
representations and warranties to the Holders of such Registrable Securities
and the underwriters, if any, in form, substance and scope as are customarily
made by issuers to underwriters in similar underwritten offerings as may be
reasonably requested by them;


 


(ii)  obtain
opinions of counsel to the Company and the Guarantors and updates thereof
(which counsel and opinions (in form, scope and substance) shall be reasonably
satisfactory to the managing underwriters, if any, and the holders of a
majority in


 


14





















 


principal amount of the Registrable Securities being
sold) addressed to each selling Holder and the underwriters, if any, covering
the matters customarily covered in opinions requested in sales of securities or
underwritten offerings and such other matters as may be reasonably requested by
such Holders and underwriters;


 


(iii)  obtain “cold
comfort” letters and updates thereof from the Company’s independent certified
public accountants (and, if necessary, any other independent certified public
accountants of any subsidiary of the Company or of any business acquired by the
Company and the Guarantors for which financial statements are, or are required
to be, included in the Registration Statement) addressed to the underwriters,
if any, and use reasonable efforts to have such letter addressed to the selling
Holders of Registrable Securities (to the extent consistent with Statement on
Auditing Standards No. 72 of the American Institute of Certified Public
Accounts), such letters to be in customary form and covering matters of the type
customarily covered in “cold comfort” letters to underwriters in connection
with similar underwritten offerings;


 


(iv)  enter into a
securities sales agreement with the Holders and an agent of the Holders
providing for, among other things, the appointment of such agent for the
selling Holders for the purpose of soliciting purchases of Registrable
Securities, which agreement shall be in form, substance and scope customary for
similar offerings;


 


(v)  if an
underwriting agreement is entered into, cause the same to set forth
indemnification provisions and procedures substantially equivalent to the
indemnification provisions and procedures set forth in Section 4
hereof with respect to the underwriters and all other parties to be indemnified
pursuant to said Section or, at the request of any underwriters, in the
form customarily provided to such underwriters in similar types of
transactions; and


 


(vi)  deliver such
documents and certificates as may be reasonably requested and as are
customarily delivered in similar offerings to the Holders of a majority in
principal amount of the Registrable Securities being sold and the managing
underwriters, if any.


 


The above shall be done at (i) the effectiveness
of such Registration Statement (and each post-effective amendment thereto) and (ii) each
closing under any underwriting or similar agreement as and to the extent
required thereunder;


 


(p)           in
the case of a Shelf Registration or if a Prospectus is required to be delivered
by any Participating Broker-Dealer in the case of an Exchange Offer, make
available for inspection by representatives of the Holders of the Registrable
Securities, any underwriters participating in any disposition pursuant to a
Shelf Registration Statement, any Participating Broker-Dealer and any counsel
or accountant retained by any of the foregoing, all financial and other
records, pertinent corporate documents and properties of the Company and the
Guarantors reasonably requested by any such persons, and cause the respective
officers, directors, employees, and any other agents of the Company and the
Guarantors to supply all information reasonably requested by any such
representative, underwriter, special counsel or accountant in connection with a
Registration Statement, and make such representatives of the Company and


 


15





















 


the Guarantors available for
discussion of such documents as shall be reasonably requested by the Initial
Purchasers;


 


(q)           (i) 
in the case of an Exchange Offer Registration Statement, a reasonable time
prior to the filing of any Exchange Offer Registration Statement, any
Prospectus forming a part thereof, any amendment to an Exchange Offer
Registration Statement or amendment or supplement to such Prospectus, provide
copies of such document to the Initial Purchasers and to counsel to the Holders
of Registrable Securities and make such changes in any such document prior to
the filing thereof as the Initial Purchasers or counsel to the Holders of
Registrable Securities may reasonably request and, except as otherwise required
by applicable law, not file any such document in a form to which the Initial
Purchasers on behalf of the Holders of Registrable Securities and counsel to
the Holders of Registrable Securities shall not have previously been advised
and furnished a copy of or to which the Initial Purchasers on behalf of the
Holders of Registrable Securities or counsel to the Holders of Registrable
Securities shall reasonably object, and make the representatives of the Company
and the Guarantors available for discussion of such documents as shall be
reasonably requested by the Initial Purchasers; and


 


(ii)  in the case of
a Shelf Registration, a reasonable time prior to filing any Shelf Registration
Statement, any Prospectus forming a part thereof, any amendment to such Shelf
Registration Statement or amendment or supplement to such Prospectus, provide
copies of such document to the Holders of Registrable Securities, to the
Initial Purchasers, to counsel for the Holders and to the underwriter or
underwriters of an underwritten offering of Registrable Securities, if any,
make such changes in any such document prior to the filing thereof as the
Initial Purchasers, the counsel to the Holders or the underwriter or
underwriters reasonably request and not file any such document in a form to
which the Majority Holders, the Initial Purchasers on behalf of the Holders of
Registrable Securities, counsel for the Holders of Registrable Securities or
any underwriter shall not have previously been advised and furnished a copy of
or to which the Majority Holders, the Initial Purchasers on behalf of the
Holders of Registrable Securities, counsel to the Holders of Registrable
Securities or any underwriter shall reasonably object, and make the
representatives of the Company and the Guarantors available for discussion of
such document as shall be reasonably requested by the Holders of Registrable
Securities, the Initial Purchasers on behalf of such Holders, counsel for the
Holders of Registrable Securities or any underwriter.


 


(r)            in
the case of a Shelf Registration, use its best efforts to cause all Registrable
Securities to be listed on any securities exchange on which similar debt
securities issued by the Company are then listed if requested by the Majority
Holders, or if requested by the underwriter or underwriters of an underwritten
offering of Registrable Securities, if any;


 


(s)           in
the case of a Shelf Registration, use its best efforts to cause the Registrable
Securities to be rated by the appropriate rating agencies, if so requested by
the Majority Holders, or if requested by the underwriter or underwriters of an
underwritten offering of Registrable Securities, if any;


 


16





















 


(t)            otherwise
comply with all applicable rules and regulations of the SEC and make
available to its security holders, as soon as reasonably practicable, an
earnings statement covering at least 12 months which shall satisfy the
provisions of Section 11(a) of the 1933 Act and Rule 158
thereunder;


 


(u)           cooperate
and assist in any filings required to be made with the NASD and, in the case of
a Shelf Registration, in the performance of any due diligence investigation by
any underwriter and its counsel (including any “qualified independent
underwriter” that is required to be retained in accordance with the rules and
regulations of the NASD); and


 


(v)           upon
consummation of an Exchange Offer or a Private Exchange, obtain a customary
opinion of counsel to the Company and the Guarantors addressed to the Trustee
for the benefit of all Holders of Registrable Securities participating in the
Exchange Offer or Private Exchange, and which includes an opinion that (i) the
Company and the Guarantors have duly authorized, executed and delivered the
Exchange Securities and/or Private Exchange Securities, as applicable, and the
related indenture, and (ii) each of the Exchange Securities and related
indenture constitute a legal, valid and binding obligation of the Company and
the Guarantors, enforceable against the Company and the Guarantors in
accordance with its respective terms (with customary exceptions).


 


In the case of a Shelf Registration Statement, the
Company and the Guarantors may (as a condition to such Holder’s participation
in the Shelf Registration) require each Holder of Registrable Securities to
furnish to the Company and the Guarantors such information regarding the Holder
and the proposed distribution by such Holder of such Registrable Securities as
the Company may from time to time reasonably request in writing.


 


In the case of a Shelf Registration Statement, each
Holder agrees that, upon receipt of any notice from the Company of the
happening of any event or the discovery of any facts, each of the kind
described in Section 3(e)(v) hereof, such Holder will
forthwith discontinue disposition of Registrable Securities pursuant to a
Registration Statement until such Holder’s receipt of the copies of the
supplemented or amended Prospectus contemplated by Section 3(k)
hereof, and, if so directed by the Company, such Holder will deliver to the
Company (at its expense) all copies in such Holder’s possession, other than
permanent file copies then in such Holder’s possession, of the Prospectus
covering such Registrable Securities current at the time of receipt of such
notice.


 


In the event that the Company and the Guarantors fail
to effect the Exchange Offer or file any Shelf Registration Statement and
maintain the effectiveness of any Shelf Registration Statement as provided
herein, the Company and the Guarantors shall not file any Registration
Statement with respect to any securities (within the meaning of Section 2(1) of
the 1933 Act) of the Company other than Registrable Securities.


 


If any of the Registrable Securities covered by any
Shelf Registration Statement are to be sold in an underwritten offering, the
underwriter or underwriters and manager or managers that will manage such
offering will be selected by the Majority Holders of such Registrable
Securities included in such offering and shall be acceptable to the
Company.  No Holder of Registrable
Securities may participate in any underwritten registration hereunder


 


17





















 


unless such Holder (a) agrees
to sell such Holder’s Registrable Securities on the basis provided in any
underwriting arrangements approved by the persons entitled hereunder to approve
such arrangements and (b) completes and executes all questionnaires,
powers of attorney, indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements.


 


4.             Indemnification; Contribution.


 


(a)           The
Company and the Guarantors, jointly and severally, agree to indemnify and hold
harmless the Initial Purchasers, each Holder, each Participating Broker-Dealer,
each Person who participates as an underwriter (any such Person being an “Underwriter”)
and each Person, if any, who controls any Holder or Underwriter within the
meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act
as follows:


 


(i)  against any and
all loss, liability, claim, damage and expense whatsoever, as incurred, arising
out of any untrue statement or alleged untrue statement of a material fact
contained in any Registration Statement (or any amendment or supplement
thereto) pursuant to which Exchange Securities or Registrable Securities were
registered under the 1933 Act, including all documents incorporated therein by
reference, or the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or arising out of any untrue statement or alleged untrue statement
of a material fact contained in any Prospectus (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;


 


(ii)  against any
and all loss, liability, claim, damage and expense whatsoever, as incurred, to
the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission;  provided that (subject to Section 4(d) below)
any such settlement is effected with the written consent of the Company; and


 


(iii)  against any
and all expense whatsoever, as incurred (including the fees and disbursements
of counsel chosen by any indemnified party), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under subparagraph (i) or (ii) above;


 


provided, however, that this
indemnity agreement shall not apply to any loss, liability, claim, damage or
expense to the extent arising out of any untrue statement or omission or
alleged untrue statement or omission made in reliance upon and in conformity
with written information furnished to the Company by the Holder or Underwriter
expressly for use in a Registration


 


18





















 


Statement (or any amendment thereto) or any Prospectus
(or any amendment or supplement thereto).


 


(b)           Each
Holder severally, but not jointly, agrees to indemnify and hold harmless the
Company, the Guarantors, the Initial Purchasers, each Underwriter and the other
selling Holders, and each of their respective directors and officers, and each
Person, if any, who controls the Company, the Guarantors, the Initial
Purchasers, any Underwriter or any other selling Holder within the meaning of Section 15
of the 1933 Act or Section 20 of the 1934 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in Section 4(a) hereof,
as incurred, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Shelf Registration
Statement (or any amendment thereto) or any Prospectus included therein (or any
amendment or supplement thereto) in reliance upon and in conformity with
written information with respect to such Holder furnished to the Company by
such Holder expressly for use in the Shelf Registration Statement (or any
amendment thereto) or such Prospectus (or any amendment or supplement thereto);
provided, however,
that no such Holder shall be liable for any claims hereunder in excess of the
amount of net proceeds received by such Holder from the sale of Registrable
Securities pursuant to such Shelf Registration Statement.


 


(c)           Each
indemnified party shall give notice as promptly as reasonably practicable to
each indemnifying party of any costs and expenses incurred by such indemnifying
party or any action commenced against it in respect of which indemnity may be
sought hereunder, but failure so to notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it
is not materially prejudiced as a result thereof and in any event shall not
relieve it from any liability which it may have otherwise than on account of this
indemnity agreement.  An indemnifying
party may participate at its own expense in the defense of such action; provided,
however, that counsel to the indemnifying party shall not (except with
the consent of the indemnified party) also be counsel to the indemnified
party.  In no event shall the
indemnifying party or parties be liable for the fees and expenses of more than
one counsel (in addition to any local counsel) separate from their own counsel
for all indemnified parties in connection with any one action or separate but
similar or related actions in the same jurisdiction arising out of the same
general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or consent
to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under this Section 4 (whether or not
the indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement
as to or an admission of fault, culpability or a failure to act by or on behalf
of any indemnified party.


 


(d)           If
at any time an indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 4(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days
after receipt by such indemnifying


 


19





















 


party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of
such settlement at least 30 days prior to such settlement being entered into
and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.


 


(e)           If
the indemnification provided for in this Section 4 is for any
reason unavailable to or insufficient to hold harmless an indemnified party in
respect of any losses, liabilities, claims, damages or expenses referred to
therein, then each indemnifying party shall contribute to the aggregate amount
of such losses, liabilities, claims, damages and expenses incurred by such
indemnified party, as incurred, in such proportion as is appropriate to reflect
the relative fault of the Company and the Guarantors on the one hand and the
Holders and the Initial Purchasers on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.


 


The relative fault of the Company and the Guarantors
on the one hand and the Holders 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 relates to information supplied by the
Company, the Guarantors, the Holders or the Initial Purchasers and the parties’
relative intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission.


 


The Company, the Guarantors, the Holders and the
Initial Purchasers agree that it would not be just and equitable if
contribution pursuant to this Section 4 were determined by pro rata
allocation (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 above in this Section 4.
The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 4
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.


 


Notwithstanding the provisions of this Section 4,
no Initial Purchaser shall be required to contribute any amount in excess of
the amount by which the total price at which the Securities sold by it were
offered exceeds the amount of any damages which such Initial Purchaser has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission.


 


No Person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any Person who was not guilty of such fraudulent
misrepresentation.


 


For purposes of this Section 4, each
Person, if any, who controls an Initial Purchaser or Holder within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act shall
have the same rights to contribution as such Initial Purchaser or Holder, and
each director of the Company or the Guarantors, and each Person, if any, who
controls the Company or the Guarantors within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934


 


20





















 


Act shall have the same rights
to contribution as the Company or the Guarantors.  The Initial Purchasers’ respective
obligations to contribute pursuant to this Section 4 are several in
proportion to the principal amount of Securities set forth opposite their
respective names in Schedule A to the Purchase Agreement and not joint.


 


5.             Miscellaneous.


 


5.1           Rule 144 and Rule 144A.  For so long as the Company is subject to the
reporting requirements of Section 13 or 15 of the 1934 Act, the Company
covenants that it will use its reasonable best efforts to file the reports
required to be filed by it under the 1933 Act and Section 13(a) or 15(d) of
the 1934 Act and the rules and regulations adopted by the SEC
thereunder.  If the Company ceases to be
so required to file such reports, the Company covenants that it will upon the
request of any Holder of Registrable Securities (a) make publicly
available such information as is necessary to permit sales pursuant to Rule 144
under the 1933 Act, (b) deliver such information to a prospective purchaser
as is necessary to permit sales pursuant to Rule 144A under the 1933 Act
and it will take such further action as any Holder of Registrable Securities
may reasonably request, and (c) take such further action that is
reasonable in the circumstances, in each case, to the extent required from time
to time to enable such Holder to sell its Registrable Securities without
registration under the 1933 Act within the limitation of the exemptions
provided by (i) Rule 144 under the 1933 Act, as such Rule may be
amended from time to time, (ii) Rule 144A under the 1933 Act, as such
Rule may be amended from time to time, or (iii) any similar rules or
regulations hereafter adopted by the SEC. 
Upon the request of any Holder of Registrable Securities, the Company
will deliver to such Holder a written statement as to whether it has complied
with such requirements.  Notwithstanding
the foregoing, nothing in this Section 5.1 shall be deemed to require the
Company and the Guarantors to register any of their securities under the 1934
Act.


 


5.2           No Inconsistent Agreements.  Neither the Company nor the Guarantors have
entered into, and the Company and the Guarantors will not after the date of
this Agreement enter into, any agreement which is inconsistent with the rights
granted to the Holders of Registrable Securities in this Agreement or otherwise
conflicts with the provisions hereof. 
The rights granted to the Holders hereunder do not and will not for the
term of this Agreement in any way conflict with the rights granted to the
holders of the Company’s and the Guarantors’ other issued and outstanding
securities under any such agreements.


 


5.3           Amendments and Waivers.  The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given unless the Company has obtained the written consent of Holders of at
least a majority in aggregate principal amount of the outstanding Registrable
Securities affected by such amendment, modification, supplement, waiver or
departure.


 


5.4           Notices.  All notices and other communications provided
for or permitted hereunder shall be made in writing by hand delivery,
registered first-class mail, telex, telecopier, or any courier guaranteeing
overnight delivery (a) if to a Holder, at the most current address given
by such Holder to the Company by means of a notice given in accordance with the
provisions of this Section 5.4, which address initially is the
address set forth in the Purchase


 


21





















 


Agreement with respect to the
Initial Purchasers; and (b) if to the Company or the Guarantors, initially
at the Company’s address set forth in the Purchase Agreement, and thereafter at
such other address of which notice is given in accordance with the provisions
of this Section 5.4.


 


All such notices and communications shall be deemed to
have been duly given:  at the time
delivered by hand, if personally delivered; two business days after being
deposited in the mail, postage prepaid, if mailed; when answered back, if
telexed; when receipt is acknowledged, if telecopied; and on the next business
day if timely delivered to an air courier guaranteeing overnight delivery.


 


Copies of all such notices, demands, or other
communications shall be concurrently delivered by the person giving the same to
the Trustee under the Indenture, at the address specified in such Indenture.


 


5.5           Successor and Assigns.  This Agreement shall inure to the benefit of
and be binding upon the successors, assigns and transferees of each of the
parties, including, without limitation and without the need for an express
assignment, subsequent Holders; provided that nothing herein shall be
deemed to permit any assignment, transfer or other disposition of Registrable
Securities in violation of the terms of the Purchase Agreement or the
Indenture.  If any transferee of any
Holder shall acquire Registrable Securities, in any manner, whether by
operation of law or otherwise, such Registrable Securities shall be held
subject to all of the terms of this Agreement, and by taking and holding such
Registrable Securities such person shall be conclusively deemed to have agreed
to be bound by and to perform all of the terms and provisions of this
Agreement, including the restrictions on resale set forth in this Agreement
and, if applicable, the Purchase Agreement, and such person shall be entitled
to receive the benefits hereof.


 


5.6           Third Party Beneficiaries.  The Initial Purchasers (even if the Initial
Purchasers are not Holders of Registrable Securities) shall be third party
beneficiaries to the agreements made hereunder between the Company and the
Guarantors, on the one hand, and the Holders, on the other hand, and shall have
the right to enforce such agreements directly to the extent they deem such
enforcement necessary or advisable to protect their rights or the rights of
Holders hereunder.  Each Holder of
Registrable Securities shall be a third party beneficiary to the agreements
made hereunder between the Company and the Guarantors, on the one hand, and the
Initial Purchasers, on the other hand, and shall have the right to enforce such
agreements directly to the extent it deems such enforcement necessary or
advisable to protect its rights hereunder.


 


5.7           Specific
Enforcement.  Without limiting the
remedies available to the Initial Purchasers and the Holders, the Company and
the Guarantors acknowledge that any failure by the Company or the Guarantors to
comply with their obligations under Sections 2.1 through 2.4
hereof may result in material irreparable injury to the Initial Purchasers or
the Holders for which there is no adequate remedy at law, that it would not be
possible to measure damages for such injuries precisely and that, in the event
of any such failure, the Initial Purchasers or any Holder may obtain such
relief as may be required to specifically enforce the Company’s and the
Guarantors’ obligations under Sections 2.1 through 2.4 hereof.


 


22





















 


5.8           Restriction
on Resales.  Until the expiration of
two years after the original issuance of the Securities and the Guarantees, the
Company and the Guarantors will not, and will cause their “affiliates” (as such
term is defined in Rule 144(a)(1) under the 1933 Act) not to, resell
any Securities and Guarantees which are “restricted securities” (as such term
is defined under Rule 144(a)(3) under the 1933 Act) that have been
reacquired by any of them and shall immediately upon any purchase of any such
Securities and Guarantees submit such Securities and Guarantees to the Trustee
for cancellation.


 


5.9           Counterparts.  This Agreement may be executed in any number
of counterparts and by the parties hereto in separate counterparts, each of
which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.


 


5.10         Headings.  The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning hereof.


 


5.11         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
provisions contained herein, each of the Company and the Guarantors hereby
expressly grants to the Initial Purchasers and any indemnified party under this
Agreement, an irrevocable limited waiver of its sovereign immunity from
unconsented suit and consent irrevocably to suit exclusively to:


 


(i)            interpret or
enforce the terms of this Agreement;


 


(ii)           compel
arbitration under the commercial arbitration rules of the American
Arbitration Association;


 


(iii)          enforce an
arbitrator’s decision with respect to arbitration under the commercial
arbitration rules of the American Arbitration Association;


 


(iv)          order amounts
payable under this Agreement to be paid in accordance with the terms thereof
and enforce the award of damages owing as a consequence of a breach of this
Agreement, whether such order or award is the product of litigation or
arbitration;


 


(v)           order the
seizure and sale of any assets of the Company or a Guarantor used or held for
use in the Related Business (as defined in the Indenture), or the exercise of
any other remedy available generally in the State of New York for judgment
creditors;


 


(vi)          determine
whether any consent or approval of the Company or a Guarantor has been
improperly granted or unreasonably withheld; and


 


23





















 


(vii)         enforce any judgment or arbitration
decision prohibiting the Company or a Guarantor from taking any action, or
mandating or obligating the Company or a Guarantor to take any action.


 


(c)           Procedural Requirements.  The limited
waiver by each of the Company and the Guarantors of its sovereign immunity as
to unconsented suit is effective if, and only if, each and every one of the
following conditions is met:


 


(i)  the claim is
made by a party designated under clause (d) below and not by any
other person whatsoever;


 


(ii)  the claim
alleges a breach by one or more of the Company and the Guarantors of one or
more of the specific obligations or duties expressly assumed by the Company and
the Guarantors under the terms of this Agreement;


 


(iii)  the claim
seeks (a) payment of a specified sum, some specific action, or
discontinuance of some action, by one or more of the Company and the Guarantors
to bring the Company or the Guarantors, as applicable, into full compliance
with the duties and obligations expressly assumed by the Company and the
Guarantors under this Agreement; or (b) money damages for noncompliance
with the terms and provisions of this Agreement;


 


(iv)  the claim is
made in a detailed written statement to each of the Company and the Guarantors
against which such claim is being made stating the specific action or
discontinuance of action by the Company and the Guarantors that would cure the
alleged breach or non-performance, or the sum of money claimed to be due and
owing to one or more of the Initial Purchasers or Holders by reason of such
specific breach or non-performance, and the Company and the Guarantors shall
have seven (7) calendar days to cure or cause the cure of such breach or
non-performance or to make such payment before judicial proceedings may be
instituted; provided, however, that this cure period may be
reasonably extended in the sole discretion of the Initial Purchasers and the
Holders for non-monetary matters as long as the Company and the Guarantors are
making good faith efforts to cure such 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 waiver granted herein shall commence on the date
hereof and shall continue for three (3) years following the date of the
termination of this Agreement, 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, the Holders and any and all persons covered by the
indemnification provisions hereof; provided, however, that as to
such latter persons, this waiver extends only to the enforcement of any rights
to indemnification by the Company and the Guarantors and to no other actions or
persons.


 


24





















 


(e)           Governing Law.  The Company, the
Guarantors, the Initial Purchasers and the Holders agree that any dispute
arising under the provisions of this Agreement shall be governed by, and
construed in accordance with, the laws of the State of New York applicable to
contracts executed in and to be performed in that state.


 


(f)            Enforcement.  Each of the Company and
the Guarantors irrevocably waives its sovereign immunity from a judgment or
order consistent with the terms and provisions of this limited waiver and
agreement, which is final because either the time for appeal thereof has
expired or the judgment or an order is issued by a court having final appellate
jurisdiction over the matter. Each of the Company and the Guarantors
consents to the jurisdiction of, to be sued in and accepts and agrees to 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, and any federal or state court
having appellate jurisdiction thereover, consistent with the terms and
provisions of this limited waiver and agreement. Each of the Company and
the Guarantors irrevocably waives its sovereign immunity as to any action by
the Initial Purchasers or the Holders in any of the United States District
Courts for New York or the New York State Supreme Court, and in the federal or
state courts having appellate jurisdiction thereover, seeking injunctive and/or
declaratory relief against any of the Company and the Guarantors based upon any
attempt to revoke its irrevocable waiver of its sovereign immunity under this
Agreement, and as to enforcement in said United States Federal District Courts
or New York State Supreme Court of any such final judgment against any of the
Company and the Guarantors. Without in any way limiting the generality of
the foregoing, each of the Company and the Guarantors expressly authorizes any
governmental authorities who have the right and duty under applicable law to
take any action authorized or ordered by any such court, to take such action to
give effect to any judgment entered or order granted in accordance with this
Agreement.


 


(g)           Waivers. 
Each of the Company and the Guarantors hereby expressly and irrevocably
waives:


 


(i)  its rights to
have any dispute, controversy, suit, action or proceeding arising under this
Agreement heard in any other forum whether or not such forum now exists or is
hereafter created including, without limitation, any court or other tribunal,
forum, 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
requirement which 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 such waiver;


 


(iv)  its sovereign
immunity as to the action of the Initial Purchasers or the Holders in any of
the United States District Courts for New York or the New York State


 


25





















 


Supreme Courts, and in the federal or state courts
having appellate jurisdiction thereover, seeking injunctive and/or declaratory
relief against any of the Company and the Guarantors based upon an attempt by
any of them to revoke its irrevocable waiver of its sovereign immunity or other
waivers granted hereunder; 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 hereof, 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. 
Each of the Company and the Guarantors agrees not to revoke or limit, in whole
or in part, its limited waiver of sovereign immunity contained in this limited
waiver and agreement or in any way attempt to revoke or limit, in whole or in
part, such limited waiver of sovereign immunity.  In the event of any such
revocation, limitation, attempted revocation, or attempted limitation, the
parties expressly recognize and agree that there remains no adequate remedy at
law available to the Initial Purchasers and the Holders, each will be
irreparably injured upon any revocation or limitation hereof, and each of the
Company and the Guarantors hereby consents to the entry of appropriate
injunctive relief, consistent with the terms and conditions of this
Agreement. In the event of any attempted limitation or revocation of the
limited waiver of sovereign immunity granted herein, the Initial Purchaser or
the Holder affected thereby may immediately seek judicial injunctive relief as
provided in this limited waiver and agreement without first complying with any
of the prerequisites contained herein to the limited waiver of sovereign
immunity granted herein.  Any action seeking injunctive relief hereunder
shall be brought in one of the United States District Courts for New York or
the New York State Supreme Court, and each of the Company and the Guarantors
expressly consents to the jurisdiction of, and agrees to be bound by any order
or judgment of such District Courts or state court, and any federal or state
court with appellate jurisdiction thereover.


 


5.12         Dispute
Resolution.


 


(a)           Arbitration.  If, and only if, a dispute arises between the
parties over a matter for which the Company and the Guarantors have provided a
limited waiver of immunity under this Agreement (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 such Dispute in accordance with the procedures
set forth herein.  To initiate binding arbitration of such 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.  One arbitrator shall preside and
shall be selected by the American Arbitration Association.


 


(b)           Restraining Order/Preliminary Injunction.  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.


 


26





















 


(c)           Confidentiality.  Neither 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 Initial Purchaser or Holder, 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.


 


(d)           Fees and Costs.  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.


 


(e)           Location of Arbitration.  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.


 


(f)            Enforcement of Arbitration Decisions.  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 limited waiver and 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 or the New York State Supreme
Court 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.  Each of the Company and the Guarantors hereby
expressly and irrevocably waives its sovereign immunity with respect to the
entry of judgment on, and enforcement of, such award by such courts.


 


5.13         Service
of Process.


 


(a)           Designation of Service Recipients.  In any action or proceeding as to which each
of the Company and the Guarantors have waived their sovereign immunity as
provided herein, each of the Company and the Guarantors consents and agrees
that process against it shall be effective if served:


 


(i)  On the Chairman
of the Board of Directors thereof; and


 


27





















 


(ii)  By sending two
(2) copies of the process by registered or certified mail to the Chief
Executive Officer of the Company or the Guarantors, as applicable, at the
address set forth above.


 


(b)           Appointment Irrevocable.  The Company and the Guarantors 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 herewith.


 


5.14         Severability.
In the event that any one or more of the provisions contained herein, or the
application thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of any such provision
in every other respect and of the remaining provisions contained herein shall
not be affected or impaired thereby.


 


28





















 


IN WITNESS WHEREOF, the parties have executed
this Agreement as of the date first written above.


 


	
   

  	
  SENECA GAMING CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ John Pasqualoni

  	
   

  
	
   

  	
  Name: John Pasqualoni

  
	
   

  	
  Title: Interim President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SENECA ERIE GAMING CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ John Pasqualoni

  	
   

  
	
   

  	
  Name: John Pasqualoni

  
	
   

  	
  Title: Interim President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SENECA TERRITORY GAMING CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ John Pasqualoni

  	
   

  
	
   

  	
  Name: John Pasqualoni

  
	
   

  	
  Title: Interim President and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  SENECA NIAGARA FALLS GAMING

  CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
      /s/ John Pasqualoni

  	
   

  
	
   

  	
  Name: John Pasqualoni

  
	
   

  	
  Title: Interim President and Chief Executive Officer

  
							



 





















 


	
  CONFIRMED AND ACCEPTED,

  	
   

  
	
   as of the
  date first above written:

  	
   

  
	
   

  	
   

  
	
  MERRILL LYNCH & CO.

  	
   

  
	
   

  	
   

  
	
  MERRILL LYNCH, PIERCE, FENNER & SMITH

  
	
   

  	
  INCORPORATED

  
	
   

  
	
  BANC OF AMERICA SECURITIES
  LLC

  	
   

  
	
   

  	
   

  
	
  WELLS FARGO SECURITIES,
  LLC

  	
   

  
	
   

  	
   

  
	
  By: MERRILL LYNCH, PIERCE, FENNER &
  SMITH

  
	
   

  	
  INCORPORATED

  
	
   

  
	
  By:

  	
       /s/ David Tuvlin

  	
   

  
	
  Name:

  	
  David Tuvlin

  
	
  Title:

  	
  Managing
  Director

  
							



 





















 


Exhibit A


 


Form of Opinion of Counsel


 


	
  Merrill Lynch & Co.

  
	
  Merrill Lynch, Pierce, Fenner &
  Smith

  
	
   

  	
  Incorporated

  
	
  Banc of America Securities LLC

  
	
  Wells Fargo Securities, LLC

  
	
  c/o Merrill Lynch, Pierce,
  Fenner & Smith

  
	
   

  	
  Incorporated

  
	
  4 World Financial Center

  
	
  New York, New York 10080

  
			



 


Ladies and Gentlemen:


 


We have acted as special
counsel for Seneca Gaming Corporation, a tribally chartered entity under the
laws of the Nation (the “Company”), and the Guarantors (as defined in
the Registration Rights Agreement), in connection with the sale by the Company
to the Initial Purchasers (as defined below) of $200,000,000 aggregate
principal amount of 71⁄4% Senior Notes due 2012 (the “Notes”) of the
Company pursuant to the Purchase Agreement dated May 18, 2005 (the “Purchase
Agreement”) among the Company, the Guarantors party thereto and Merrill
Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Banc of America Securities LLC and Wells Fargo Securities, LLC
(collectively, the “Initial Purchasers”) and the filing by the Company
and the Guarantors of an Exchange Offer Registration Statement (the “Registration
Statement”) in connection with an Exchange Offer to be effected pursuant to
the Registration Rights Agreement (the “Registration Rights Agreement”),
dated May 23, 2005 among the Company, the Guarantors and the Initial
Purchasers.  This opinion is furnished to
you pursuant to Section 3(f)(B) of the Registration Rights
Agreement.  Unless otherwise defined
herein, capitalized terms used in this opinion that are defined in the
Registration Rights Agreement are used herein as so defined.


 


We have examined such
documents, records and matters of law as we have deemed necessary for purposes
of this opinion.  In rendering this
opinion, as to all matters of fact relevant to this opinion, we have assumed
the completeness and accuracy of, and are relying solely upon, the
representations and warranties of the Company and the Guarantors set forth in
the Purchase Agreement and the statements set forth in certificates of public
officials and officers of the Company and the Guarantors, without making any
independent investigation or inquiry with respect to the completeness or
accuracy of such representations, warranties or statements, other than a review
of the charter, by-laws and relevant minute books of the Company and the
Guarantors.


 


Because the
primary purpose of our professional engagement was not to establish or confirm
factual matters or financial or accounting information, and because many
determinations involved in the preparation of the Registration Statement and
the Prospectus are of a wholly or


 





















 


partially non-legal character,
we are not passing upon and do not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus and we make no representation that we have
independently verified the accuracy, completeness or fairness of such
statements.


 


However, in the
course of our acting as special counsel to the Company in connection with its
preparation of the Registration Statement and the Prospectus, prior to the
filing of the Registration Statement and the Prospectus, we participated in
conferences and telephone conversations with representatives of the Company,
representatives of the independent public accountants for the Company, during
which conferences and conversations the contents of the Registration Statement
and the Prospectus and related matters were discussed, and we reviewed certain
corporate records and documents furnished to us by the Company.


 


Based on our
participation in such conferences and conversations, our review of such records
and documents as described above, our understanding of the U.S. federal
securities laws and the experience we have gained in our practice thereunder, we
advise you that:


 


(1) 
The Registration Statement and the Prospectus (except the financial statements,
financial schedules and other financial data included therein and the
statements set forth under the heading “Plan of Distribution” and the Statement
of Eligibility and Qualification of the Trustee on Form T-1 as to which we
express no view), at the time it was filed with the Commission, appeared on its
face to be appropriately responsive in all material respects to the
requirements of the 1933 Act and the rules and regulations
thereunder.  In addition, we do not know
of any contracts or other documents of a character required to be filed as
exhibits to the Registration Statement and the Prospectus or required to be
described in the Registration Statement and the Prospectus that are not filed
or described as required.


 


(2) 
No information has come to our attention that causes us to believe that the
Registration Statement and the Prospectus (except the financial statements and
other financial data included therein and the statements set forth under the
heading “Plan of Distribution” and the Statement of Eligibility and
Qualification of the Trustee on Form T-1 as to which we express no view),
as of the date thereof or hereof, contained or contains an untrue statement of
a material fact or omitted 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.


 


This opinion is being
furnished to you solely for your benefit in connection with the transactions
contemplated by the Registration Rights Agreement, and may not be used for any
other purpose or relied upon by any person other than you.  Except with our prior written consent, the
opinions herein expressed are not to be used, circulated, quoted or otherwise
referred to in connection with any transactions other than those contemplated
by the Registration Rights Agreement by or to any other person.


 


Very truly yours,