**Exhibit 1.1**

 

SENECA GAMING CORPORATION(a tribally chartered entity under the laws of the Seneca Nation)

 

$200,000,00071⁄4% Senior Notes due 2012

 

PURCHASE AGREEMENT

 

May 18,2005

 

MERRILL LYNCH & CO.Merrill Lynch, Pierce, Fenner & Smith IncorporatedBanc of America Securities LLC

Wells Fargo Securities, LLC

c/o       Merrill Lynch &Co.

MerrillLynch, Pierce, Fenner & Smith Incorporated

4 World Financial CenterNew York, New York 10080

 

Ladies and Gentlemen:

 

SENECA GAMING CORPORATION(the “Company”), a tribally chartered entity formed by the Seneca Nationof Indians of New York (the “Nation”), a sovereign federally recognizedIndian Nation, and the Guarantors (as defined below), confirm their agreementwith Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & SmithIncorporated (“Merrill Lynch”), Bancof America Securities LLC and WellsFargo Securities, LLC (collectively, the “Initial Purchasers”,which term shall also include any initial purchaser substituted as hereinafterprovided in Section 11 hereof), with respect to the issue and sale by theCompany and the purchase by the Initial Purchasers, acting severally and notjointly, of the respective principal amounts set forth in Schedule Aattached hereto of $200,000,000 aggregate principal amount of the Company’s 71⁄4%Senior Notes due 2012 (together with the Guarantees (as defined below) thereon,the “Securities”).  The Securitiesare to be issued pursuant to an indenture dated as of May 5, 2004 (the “ExistingIndenture,” as supplemented by a supplemental indenture (the “SupplementalIndenture”), dated as of May 23, 2005, the “Indenture”), amongthe Company, the Guarantors and Wells Fargo Bank, National Association, astrustee (the “Trustee”), pursuant to which the Company previously issued on May 5, 2004an aggregate principal amount of $300,000,000 of 71⁄4% Senior Notes due 2012 (the“Existing Securities”).  Securities issued in book-entry form will beissued to Cede & Co. as nominee of The Depository Trust Company (“DTC”)pursuant to a letter agreement, to be dated as of Closing Time (as defined in Section 2(b))(the “DTC Agreement”), among the Company, the Trustee and DTC.

 

Pursuant to theIndenture, each of (i) Seneca Erie Gaming Corporation (“SEGC”) andSeneca Territory Gaming Corporation (“STGC”), each a tribally charteredentity formed by the Nation and wholly owned by the Company, (ii) effectiveupon the repayment of the Existing Facility (as defined in the Indenture) atClosing Time, Seneca Niagara Falls Gaming Corporation (“SNFGC”), atribally chartered entity formed by the Nation and wholly owned by the Company,and (iii) any other subsidiary of the Company that executes a Guarantee(as defined below) in accordance with the provisions of the Indenture (andtogether with SEGC, STGC and SNFGC, collectively, the “Guarantors”),jointly and severally, shall fully and unconditionally guarantee, on a seniorunsecured basis, to each holder of Securities and the Trustee, the payment andperformance of the Company’s obligations under the Indenture and the Securities(each such guarantee being referred to herein as a “Guarantee”).

 

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The Company understandsthat the Initial Purchasers propose to make an offering of the Securities onthe terms and in the manner set forth herein and agrees that the InitialPurchasers may resell, subject to the conditions set forth herein, all or aportion of the Securities to purchasers (“Subsequent Purchasers”) at anytime after this Agreement has been executed and delivered.  The Securities are to be offered and soldthrough the Initial Purchasers without being registered under the SecuritiesAct of 1933, as amended (the “1933 Act”), in reliance uponexemptions therefrom.  Pursuant to theterms of the Securities and the Indenture, investors that acquire Securitiesmay only resell or otherwise transfer such Securities if such Securities arehereafter registered under the 1933 Act or if an exemption from theregistration requirements of the 1933 Act is available (including theexemption afforded by Rule 144A (“Rule 144A”) or Regulation S (“Regulation S”)of the rules and regulations promulgated under the 1933 Act bythe Securities and Exchange Commission (the “Commission”)).

 

Holders of the Securities(including Subsequent Purchasers) will have the registration rights set forthin the registration rights agreement applicable to the Securities (the “Registration Rights Agreement”),to be executed on and dated as of Closing Time (as defined in Section 2(b)).  Pursuant to the Registration RightsAgreement, the Company and the Guarantors will agree, among other things, tofile with the Commission (a) a registration statement under the 1933 Actrelating to Securities (the “Exchange Securities”) which shall beidentical to the Securities (except that the Exchange Securities shall havebeen registered pursuant to such registration statement and will not be subjectto restrictions on transfer or contain additional interest provisions) to beoffered in exchange for the Securities, and/or (b) under certaincircumstances, a shelf registration statement pursuant to Rule 415 underthe Act relating to the resale by certain holders of the Securities.  If required under the Registration RightsAgreement, the Company will issue Exchange Securities to the Initial Purchasers(the “Private Exchange Securities”). If the Company and the Guarantors fail to satisfy their obligationsunder the Registration Rights Agreement, they will be required to payadditional interest to the holders of the Securities under certaincircumstances, as set forth in the Registration Rights Agreement.

 

In connection with theoffering of the Existing Securities, the Nation entered into an agreement withthe Trustee, dated as of May 5, 2004 (the “Existing Nation Agreement”),for the benefit of the holders of Existing Securities.  In connection with the offering of theSecurities, the Nation will enter into an amendment to the Existing NationAgreement, dated as of May 23, 2005 (collectively, the “NationAgreement”) for the benefit of the holders of Securities.

 

The Company has preparedand delivered to each Initial Purchaser copies of a preliminary offeringmemorandum dated May 9, 2005 (the “Preliminary Offering Memorandum”)and has prepared and will deliver to each Initial Purchaser copies of a finaloffering memorandum dated the date hereof (the “Final Offering Memorandum”),each for use by such Initial Purchaser in connection with its solicitation ofpurchases of, or offering of, the Securities. “Offering Memorandum” means, with respect to any date or timereferred to in this Agreement, the most recent offering memorandum (whether thePreliminary Offering Memorandum or the Final Offering Memorandum, or anyamendment or supplement to either such document), including exhibits theretoand any documents incorporated therein by reference, which has been preparedand delivered by the Company to the Initial Purchasers in connection with theirsolicitation of purchases of, or offering of, the Securities.

 

SECTION 1.  Representations andWarranties of the Company and the Guarantors.

 

(a) *Representations and Warranties*.  The Company and the Guarantors, jointly andseverally, represent and warrant to each Initial Purchaser as of the datehereof and as of Closing Time referred to in Section 2(b) hereof, andagree with each Initial Purchaser, as follows:

 

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(i)            OfferingMemorandum.  The Preliminary OfferingMemorandum, as of the date thereof, did not, and the Final Offering Memorandum,does not, and at Closing Time will not, include an untrue statement of amaterial fact or omit to state a material fact necessary in order to make thestatements therein, in the light of the circumstances under which they weremade, not misleading; provided that this representation, warranty andagreement shall not apply to statements in or omissions from the OfferingMemorandum made in reliance upon and in conformity with written informationfurnished to the Company by any Initial Purchaser through Merrill Lynchexpressly for use in the Offering Memorandum.

 

(ii)           IndependentAccountants.  The accountants whocertified the financial statements included in the Offering Memorandum areindependent public accountants with respect to the Company and its subsidiarieswithin the meaning of Regulation S-X under the 1933 Act.

 

(iii)          FinancialStatements.  The consolidatedfinancial statements, together with the related notes, included in the OfferingMemorandum present fairly the financial position of the Company and itsconsolidated subsidiaries at the dates indicated and the statement ofoperations and changes in capital and cash flows of the Company and itsconsolidated subsidiaries for the periods specified; said financial statementshave been prepared in conformity with generally accepted accounting principles(“GAAP”) applied on a consistent basis throughout the periodsinvolved.  The financial data presentedunder the section titled “Selected Consolidated Financial and Other Data”in the Offering Memorandum present fairly the information shown therein andhave been compiled on a basis consistent with that of the audited financialstatements included in the Offering Memorandum.

 

(iv)          NoMaterial Adverse Change in Business. Since the respective dates as of which information is given in theOffering Memorandum, except as otherwise stated therein, (A) there hasbeen no material adverse change in the condition, financial or otherwise, or inthe earnings, business affairs or business prospects of the Company and itssubsidiaries considered as one enterprise, whether or not arising in the ordinarycourse of business, (B) there have been no transactions entered into bythe Company or any of its subsidiaries, other than those in the ordinary courseof business, which are material with respect to the Company and itssubsidiaries considered as one enterprise, and (C) there has been nodividend or distribution of any kind declared, paid or made by the Company tothe Nation.

 

(v)           Authorityof the Company.  The Company is avalidly existing tribally chartered entity under the laws of the Nation and haspower and authority to own, lease and operate its properties and to conduct itsbusiness as described in the Offering Memorandum and to enter into and performits obligations under this Agreement.

 

(vi)          Authorityof Subsidiaries.  Each subsidiary ofthe Company listed on Schedule C hereto has power and authority to own,lease and operate its properties and to conduct its business as described inthe Offering Memorandum; each Guarantor has power and authority to enter intoand perform its obligations under this Agreement; each subsidiary of theCompany listed on Schedule C hereto is owned solely by the Companydirectly or indirectly through subsidiaries.

 

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

 

(viii)        Authorizationof Agreement.  This Agreement hasbeen duly authorized, executed and delivered by the Company and the Guarantors.

 

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(ix)           Authorizationof the Supplemental Indenture.  TheSupplemental Indenture has been duly authorized by the Company and theGuarantors and, when executed and delivered by the Company, the Guarantors andthe Trustee, the Indenture will constitute a valid and binding agreement of theCompany and the Guarantors (assuming the Supplemental Indenture is a legal, validand binding obligation of the Trustee), enforceable against each of them inaccordance with its terms, except as the enforcement thereof may be limited bybankruptcy, insolvency (including, without limitation, all laws relating tofraudulent transfers), reorganization, moratorium or similar laws affectingenforcement of creditors’ rights generally and except as enforcement thereof issubject to general principles of equity (regardless of whether enforcement isconsidered in a proceeding in equity or at law).

 

(x)            Authorizationof the Registration Rights Agreement. The Registration Rights Agreement has been duly authorized by theCompany and the Guarantors and, when duly executed and delivered in accordancewith its terms by each of the parties thereto, will constitute a valid andbinding agreement of the Company and the Guarantors, enforceable against eachof them in accordance with its terms, except (A) as the enforcementthereof may be limited by bankruptcy, insolvency (including, withoutlimitation, all laws relating to fraudulent transfers), reorganization,moratorium or similar laws affecting enforcement of creditors’ rights generallyand except as enforcement thereof is subject to general principles of equity(regardless of whether enforcement is considered in a proceeding in equity orat law) and (B) the enforceability of rights to indemnification andcontribution thereunder may be limited by federal or state securities laws.

 

(xi)           Authorizationof the Exchange Securities and the Private Exchange Securities. TheExchange Securities and the Private Exchange Securities have been dulyauthorized and, when authenticated, issued and delivered in the manner providedfor in the Indenture and delivered in exchange for the Securities in accordancewith the terms of the Registration Rights Agreement, will constitute valid andbinding obligations of the Company and the Guarantors, enforceable against eachof them in accordance with their terms, except as the enforcement thereof maybe limited by bankruptcy, insolvency (including, without limitation, all lawsrelating to fraudulent transfers) reorganization, moratorium or similar lawsaffecting enforcement of creditors’ rights generally and except as enforcementthereof is subject to general principles of equity (regardless of whetherenforcement is considered in a proceeding in equity or at law), and will be inthe form contemplated by, and entitled to the benefits of, the Indenture.

 

(xii)          Authorizationof the Securities.  The Securitieshave been duly authorized and, at Closing Time, will have been duly executed bythe Company and the Guarantors and, when authenticated, issued and delivered inthe manner provided for in the Indenture and delivered against payment of thepurchase price therefor as provided in this Agreement, will constitute validand binding obligations of the Company and the Guarantors, enforceable againsteach of them in accordance with their terms, except as the enforcement thereofmay be limited by bankruptcy, insolvency (including, without limitation, alllaws relating to fraudulent transfers) reorganization, moratorium or similarlaws affecting enforcement of creditors’ rights generally and except asenforcement thereof is subject to general principles of equity (regardless ofwhether enforcement is considered in a proceeding in equity or at law), andwill be in the form contemplated by, and entitled to the benefits of, theIndenture.

 

(xiii)         Descriptionof the Securities and the Indenture. The Securities and the Indenture will conform in all material respectsto the respective statements relating thereto contained in the OfferingMemorandum.

 

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(xiv)        Absenceof Defaults and Conflicts.  Neitherthe Company nor any of its subsidiaries is in violation of its charter orby-laws or in default in the performance or observance of any obligation,agreement, covenant or condition contained in any contract, indenture,mortgage, deed of trust, loan or credit agreement, note, lease or otheragreement or instrument to which the Company or any of its subsidiaries is aparty or by which or any of them may be bound, or to which any of the propertyor assets of the Company or any of its subsidiaries is subject (collectively, “Agreementsand Instruments”) except for such defaults that would not result in amaterial adverse effect on the condition, financial or otherwise, or in theearnings, business affairs or business prospects of the Company and itssubsidiaries considered as one enterprise, whether or not arising in theordinary course of business (a “Material Adverse Effect”); and theexecution, delivery and performance of this Agreement, the SupplementalIndenture and the Securities and any other agreement or instrument entered intoor issued or to be entered into or issued by the Company in connection with thetransactions contemplated hereby or thereby or in the Offering Memorandum andthe consummation of the transactions contemplated herein and in the OfferingMemorandum (including the issuance and sale of the Securities and the use ofthe proceeds from the sale of the Securities as described in the OfferingMemorandum under the caption “Use of Proceeds”) and compliance by the Companywith its obligations hereunder have been duly authorized by all necessary actionand do not and will not, whether with or without the giving of notice orpassage of time or both, conflict with or constitute a breach of, or default orRepayment Event (as defined below) under, or result in the creation orimposition of any lien, charge or encumbrance upon any property or assets ofthe Company or any of its subsidiaries pursuant to, the Agreements andInstruments except for such conflicts, breaches or defaults or Repayment Eventsor liens, charges or encumbrances that, singly or in the aggregate, would notresult in a Material Adverse Effect, nor will such action result in anyviolation of the provisions of the charter or by-laws of the Company or any ofits subsidiaries or any applicable law, statute, rule, regulation, judgment,order, writ or decree of any government, government instrumentality or court,domestic or foreign, having jurisdiction over the Company or any of itssubsidiaries or any of their assets, properties or operations.  As used herein, a “Repayment Event”means any event or condition which gives the holder of any note, debenture orother evidence of indebtedness (or any person acting on such holder’s behalf)the right to require the repurchase, redemption or repayment of all or aportion of such indebtedness by the Company or any of its subsidiaries.

 

(xv)         Absenceof Labor Dispute.  No labor disputewith the employees of the Company or any of its subsidiaries exists or, to theknowledge of the Company, is imminent, and the Company is not aware of anyexisting or imminent labor disturbance by the employees of any of its or any ofits subsidiaries’ principal suppliers, manufacturers, customers or contractors,which, in either case, would result in a Material Adverse Effect.

 

(xvi)        Absenceof Proceedings.  Except as describedin the Offering Memorandum, there are no actions, suits, proceedings, inquiriesor investigations before or brought by any court or governmental agency or body(tribal, domestic or foreign), now pending, or, to the knowledge of theCompany, threatened, against or affecting the Company or any of itssubsidiaries which are reasonably likely to result in a Material AdverseEffect, or which are reasonably likely to materially and adversely affect theproperties or assets of the Company and its subsidiaries considered as oneenterprise, or the consummation of the transactions contemplated by thisAgreement or the performance by the Company and the Guarantors of theirobligations hereunder.  The aggregate ofall pending legal or governmental proceedings to which the Company or any ofits subsidiaries is a party or of which any of their respective property orassets is the subject which are not described in the Offering Memorandum,including ordinary routine 

 

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litigation incidental to the business,could not reasonably be expected to result in a Material Adverse Effect.

 

(xvii)       Absenceof Manipulation.  Neither the Companynor any affiliate of the Company has taken, nor will the Company or anyaffiliate take, directly or indirectly, any action which is designed to orwhich has constituted or which would be expected to cause or result instabilization or manipulation of the price of any security of the Company tofacilitate the sale or resale of the Securities.

 

(xviii)      Possessionof Intellectual Property.  TheCompany and its subsidiaries own or possess, or can acquire on reasonableterms, adequate licenses, copyrights, know-how (including trade secrets andother unpatented and/or unpatentable proprietary or confidential information,systems or procedures), trademarks, service marks, trade names or otherintellectual property (collectively, “Intellectual Property”) necessaryto carry on the business now operated by them, and neither the Company nor anyof its subsidiaries has received any notice or is otherwise aware of anyinfringement of or conflict with asserted rights of others with respect to anyIntellectual Property or of any facts or circumstances which would render anyIntellectual Property invalid or inadequate to protect the interest of theCompany or any of its subsidiaries therein, and which infringement or conflict(if the subject of any unfavorable decision, ruling or finding) or invalidityor inadequacy, singly or in the aggregate, would result in a Material AdverseEffect.

 

(xix)         Absenceof Further Requirements.  No filingwith, or authorization, approval, consent, license, order, registration,qualification or decree of, any court or governmental authority or agency,including without limitation approval by the Bureau of Indian Affairs, UnitedStates Department of Interior under 25 U.S.C. §81 or approval by the NationalIndian Gaming Commission under 25 C.F.R. §502.5, is necessary or required forthe performance by the Company or the Guarantors of their obligationshereunder, in connection with the offering, issuance or sale of the Securitieshereunder or the consummation of the transactions contemplated by thisAgreement (other than the registration of the Exchange Notes pursuant to theRegistration Rights Agreement), except such as have been already obtained or asmay be required under any necessary qualification under the securities or bluesky laws of the various jurisdictions in which the Securities are being offeredby the Initial Purchasers.

 

(xx)          Possessionof Licenses and Permits.  The Companyand its subsidiaries possess such permits, licenses, approvals, consents andother authorizations (collectively, “Governmental Licenses”) issued bythe appropriate Nation, federal, state, local or foreign regulatory agencies orbodies necessary to conduct the business now operated by them, except where thefailure so to possess would not, singly or in the aggregate, result in aMaterial Adverse Effect; the Company and its subsidiaries are in compliancewith the terms and conditions of all such Governmental Licenses, except wherethe failure so to comply would not, singly or in the aggregate, result in aMaterial Adverse Effect; all of the Governmental Licenses are valid and in fullforce and effect, except where the invalidity of such Governmental Licenses orthe failure of such Governmental Licenses to be in full force and effect wouldnot, singly or in the aggregate, result in a Material Adverse Effect; andneither the Company nor any of its subsidiaries has received any notice ofproceedings relating to the revocation or modification of any such GovernmentalLicenses which, singly or in the aggregate, if the subject of an unfavorabledecision, ruling or finding, would result in a Material Adverse Effect.

 

(xxi)         Titleto Property.  The Company and itssubsidiaries have good and marketable title to all real property owned by theCompany and its subsidiaries and good title to all other properties owned bythem, in each case, free and clear of all mortgages, pledges, liens, security 

 

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interests, claims,restrictions or encumbrances of any kind except such as (a) are describedin the Offering Memorandum or (b) do not, singly or in the aggregate,materially affect the value of such property and do not interfere with the usemade and proposed to be made of such property by the Company or any of itssubsidiaries; and, except as described in the Offering Memorandum, all of theleases and subleases material to the business of the Company and itssubsidiaries, considered as one enterprise, and under which the Company or anyof its subsidiaries holds properties described in the Offering Memorandum, arein full force and effect, and neither the Company nor any of its subsidiarieshas any notice of any material claim of any sort that has been asserted byanyone adverse to the rights of the Company or any of its subsidiaries underany of the leases or subleases mentioned above, or affecting or questioning therights of the Company or any subsidiary thereof to the continued possession ofthe leased or subleased premises under any such lease or sublease.

 

(xxii)        EnvironmentalLaws.  Except as described in theOffering Memorandum and except such matters as would not, singly or in theaggregate, result in a Material Adverse Effect, (A) neither the Companynor any of its subsidiaries is in violation of any federal, state, local orforeign statute, law, rule, regulation, ordinance, code, policy or rule ofcommon law or any judicial or administrative interpretation thereof, includingany judicial or administrative order, consent, decree or judgment, relating topollution or protection of human health, the environment (including, withoutlimitation, ambient air, surface water, groundwater, land surface or subsurfacestrata) or wildlife, including, without limitation, laws and regulationsrelating to the release or threatened release of chemicals, pollutants,contaminants, wastes, toxic substances, hazardous substances, petroleum orpetroleum products, asbestos-containing materials or mold (collectively, “HazardousMaterials”) or to the manufacture, processing, distribution, use,treatment, storage, disposal, transport or handling of Hazardous Materials(collectively, “Environmental Laws”), (B) the Company and itssubsidiaries have all permits, authorizations and approvals required under anyapplicable Environmental Laws and are each in compliance with theirrequirements, (C) there are no pending or threatened administrative,regulatory or judicial actions, suits, demands, demand letters, claims, liens,notices of noncompliance or violation, investigation or proceedings relating toany Environmental Law against the Company or any of its subsidiaries and (D) thereare no events or circumstances that would reasonably be expected to form thebasis of an order for clean-up or remediation, or an action, suit or proceedingby any private party or governmental body or agency, against or affecting theCompany or any of its subsidiaries relating to Hazardous Materials orEnvironmental Laws.

 

(xxiii)       InvestmentCompany Act.  The Company is notrequired, and upon the issuance and sale of the offered Securities as hereincontemplated and the application of the net proceeds therefrom as described inthe Offering Memorandum will not be required, to register as an “investmentcompany” under the Investment Company Act of 1940, as amended.

 

(xxiv)       SimilarOfferings.  Neither the Company norany of its affiliates, as such term is defined in Rule 501(b) underthe 1933 Act (each, an “Affiliate”), has, directly or indirectly,solicited any offer to buy, sold or offered to sell or otherwise negotiated inrespect of, or will solicit any offer to buy, sell or offer to sell orotherwise negotiate in respect of, in the United States or to any United Statescitizen or resident, any security which is or would be integrated with the saleof the Securities in a manner that would require the offered Securities to beregistered under the 1933 Act.

 

(xxv)        Rule 144AEligibility.  The Securities areeligible for resale pursuant to Rule 144A and will not be, at ClosingTime, of the same class as securities listed on a national 

 

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securitiesexchange registered under Section 6 of the 1934 Act, or quoted in aU.S. automated interdealer quotation system.

 

(xxvi)       NoGeneral Solicitation.  None of theCompany, its Affiliates or any person acting on its or any of their behalf(other than the Initial Purchasers, as to whom the Company makes no representation)has engaged or will engage, in connection with the offering of the offeredSecurities, in any form of general solicitation or general advertising withinthe meaning of Rule 502(c) under the 1933 Act.

 

(xxvii)      NoRegistration Required.  Subject tocompliance by the Initial Purchasers with the representations and warrantiesset forth in Section 2 and the procedures set forth in Section 6hereof, it is not necessary in connection with the offer, sale and delivery ofthe offered Securities to the Initial Purchasers and to each SubsequentPurchaser in the manner contemplated by this Agreement and the OfferingMemorandum to register the Securities under the 1933 Act or to qualify theIndenture under the Trust Indenture Act of 1939, as amended.

 

(xxviii)     NoDirected Selling Efforts. With respect to those offered Securities sold inreliance on Regulation S, (A) none of the Company, its Affiliates orany person acting on its or their behalf (other than the Initial Purchasers, asto whom the Company makes no representation) has engaged or will engage in anydirected selling efforts within the meaning of Regulation S and (B) eachof the Company and its Affiliates and any person acting on its or their behalf(other than the Initial Purchasers, as to whom the Company makes norepresentation) has complied and will comply with the offering restrictionsrequirement of Regulation S.

 

(xxix)       TaxMatters.  Subject to thequalifications and limitations set forth in the Offering Memorandum under thecaption “Risk Factors – A change in our current tax-exempt status could have amaterial adverse effect on our ability to repay our obligations under theNotes,” each of the Company and the Guarantors is a non-taxable entity forpurposes of federal income taxation under the Internal Revenue Code, Title 26U.S.C., and the revenues of the Company and the Guarantors are exempt fromfederal and state income taxation; the operations of the Company and theGuarantors are not subject to any sales tax.

 

(xxx)        MaterialAgreements and Orders.  Attachedhereto as Exhibit A are lists of: (a) all agreements andinstruments to which the Company or a Guarantor is a party and under which adefault by the Company or such Guarantor could reasonably be expected to have aMaterial Adverse Effect (the “Material Agreements”), and (b) alljudgments, orders and decrees of any court or administrative agency a violationof which could reasonably be expected to have a Material Adverse Effect (the “MaterialOrders”).  True, correct and completecopies of all Material Agreements and Material Orders have been delivered ormade available prior to the date hereof to the Initial Purchasers, and none ofthe Material Agreements or Material Orders has subsequently been amended ormodified.

 

(b)  *Officer’s Certificates*.  Any certificate signed by any officer of theGuarantors or the Company delivered to the Initial Purchasers or to counsel forthe Initial Purchasers shall be deemed a representation and warranty by theCompany or a Guarantor, as applicable, to each Initial Purchaser as to thematters covered thereby.

 

SECTION 2.  Sale and Delivery to Initial Purchasers;Closing.

 

(a) *Securities*.  On the basis of the representations andwarranties herein contained, and subject to the terms and conditions herein setforth, the Company agrees to sell to each Initial Purchaser, severally 

 

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andnot jointly, and each Initial Purchaser, severally and not jointly, agrees topurchase from the Company, at the price set forth in Schedule B, theaggregate principal amount of Securities set forth in Schedule A oppositethe name of such Initial Purchaser, plus any additional principal amount ofSecurities which such Initial Purchaser may become obligated to purchasepursuant to the provisions of Section 11 hereof.

 

(b) *Payment*.  Payment of the purchase price for, anddelivery of certificates for, the Securities shall be made at the office ofMayer, Brown, Rowe & Maw LLP, or at such other place as shall beagreed upon by the Initial Purchasers and the Company, at 9:00 A.M.(Eastern time) on the third****business day after the date hereof (unless postponed inaccordance with the provisions of Section 11), or such other time notlater than ten business days after such date as shall be agreed upon by theInitial Purchasers and the Company (such time and date of payment and deliverybeing herein called “Closing Time”).

 

(c)  Payment shall be made to the Company by wire transfer ofimmediately available funds to a bank account designated by the Company,against delivery to the nominee of The Depository Trust Company, for theaccount of the Initial Purchasers, of one or more global notes representing theSecurities (collectively, the “GlobalNote”), with any transfer taxes payable in connection with the saleof the Securities duly paid by the Company. The Global Note will be made available for inspection by Merrill Lynch(as representative of the Initial Purchasers) not later than 1:00 P.M.,New York City time, on the business day prior to the Closing Time. It isunderstood that each Initial Purchaser has authorized Merrill Lynch (asrepresentative of the Initial Purchasers) for its account, to accept deliveryof, receipt for, and make payment of the purchase price for, the Securitieswhich it has agreed to purchase.  MerrillLynch, individually and not as representative of the Initial Purchasers, may(but shall not be obligated to) make payment of the purchase price for theSecurities to be purchased by any Initial Purchaser whose funds have not beenreceived by Closing Time, but such payment shall not relieve such InitialPurchaser from its obligations hereunder.

 

SECTION 3.  Covenants of the Company.  The Company covenants with each InitialPurchaser as follows:

 

(a) *Offering Memorandum*.  The Company, as promptly as possible, willfurnish to each Initial Purchaser, without charge, such number of copies of theOffering Memorandum and any amendments and supplements thereto and documentsincorporated by reference therein as such Initial Purchaser may reasonablyrequest.

 

(b) *Notice and Effect of Material Events*.  The Company will immediately notify eachInitial Purchaser, and confirm such notice in writing, of (x) any filingmade by the Company of information relating to the offering of the Securitieswith any securities exchange or any other regulatory body in the United Statesor any other jurisdiction, and (y) prior to the completion of theplacement of the offered Securities by the Initial Purchasers as evidenced by anotice in writing from the Initial Purchasers to the Company, any materialchanges in or affecting the condition, financial or otherwise, or the earnings,business affairs or business prospects of the Company and its subsidiariesconsidered as one enterprise which (i) make any statement in the OfferingMemorandum false or misleading or (ii) are not disclosed in the OfferingMemorandum.  In such event or if duringsuch time any event shall occur as a result of which it is necessary, in thereasonable opinion of any of the Company, its counsel, the Initial Purchasersor counsel for the Initial Purchasers, to amend or supplement the OfferingMemorandum in order that the Offering Memorandum not include any untruestatement of a material fact or omit to state a material fact necessary in orderto make the statements therein not misleading in the light of the circumstancesthen existing, the Company will forthwith amend or supplement the OfferingMemorandum by preparing and furnishing to each Initial Purchaser an amendmentor amendments of, or a supplement or supplements to, the Offering Memorandum(in form and substance satisfactory in the reasonable opinion of counsel for 

 

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theInitial Purchasers) so that, as so amended or supplemented, the OfferingMemorandum will not include an untrue statement of a material fact or omit tostate a material fact necessary in order to make the statements therein, in thelight of the circumstances existing at the time it is delivered to a SubsequentPurchaser, not misleading.

 

(c) *Amendment to Offering Memorandum andSupplements*.  The Company willadvise each Initial Purchaser promptly of any proposal to amend or supplementthe Offering Memorandum and will not effect such amendment or supplementwithout the consent of the Initial Purchasers (which consent shall not beunreasonably withheld).  Neither theconsent of the Initial Purchasers, nor the Initial Purchaser’s delivery of anysuch amendment or supplement, shall constitute a waiver of any of the conditionsset forth in Section 5 hereof.

 

(d) *Qualification of Securities for Offer andSale*.  The Company will useits reasonable best efforts, in cooperation with the Initial Purchasers, toqualify the offered Securities for offering and sale under the applicablesecurities laws of such states and other jurisdictions as the InitialPurchasers may designate and to maintain such qualifications in effect as longas required for the sale of the Securities; provided, however,that the Company shall not be obligated to file any general consent to serviceof process or to qualify as a foreign corporation or as a dealer in securitiesin any jurisdiction in which it is not so qualified or to subject itself totaxation in respect of doing business in any jurisdiction in which it is nototherwise so subject.

 

(e) *Rating of Securities*.  The Company shall take all reasonable actionnecessary to enable Standard & Poor’s Ratings Services, a division ofMcGraw Hill, Inc. (“S&P”), and Moody’s Investors Service Inc. (“Moody’s”)to provide their respective credit ratings of the Securities.

 

(f) *DTC*.  The Company will cooperate with the InitialPurchasers and use its best efforts to permit the offered Securities to beeligible for clearance and settlement through the facilities of DTC.

 

(g) *Use of Proceeds*.  The Company will use the net proceedsreceived by it from the sale of the Securities in the manner specified in theOffering Memorandum under “Use of Proceeds”.

 

(h) *Restriction on Sale of Securities*.  During a period of 180 days from the date ofthe Offering Memorandum, the Company will not, without the prior writtenconsent of Merrill Lynch, directly or indirectly, issue, sell, offer or agreeto sell, grant any option for the sale of, or otherwise dispose of, any otherdebt securities of the Company or securities of the Company that areconvertible into, or exchangeable for, the offered Securities or such otherdebt securities.

 

(i) *PORTAL Designation*.  The Company will use its reasonable bestefforts to permit the Securities to be designated PORTAL securities inaccordance with the rules and regulations adopted by the NationalAssociation of Securities Dealers, Inc. (“NASD”) relating totrading in the PORTAL Market.

 

SECTION 4.  Payment of Expenses.  The Company will pay all expenses incident tothe performance of its obligations under this Agreement, including (i) thepreparation, printing, delivery to the Initial Purchasers and any filing of theOffering Memorandum (including financial statements and any schedules or exhibits)and of each amendment or supplement thereto, (ii) the preparation,printing and delivery to the Initial Purchasers of this Agreement, the NationAgreement, any Agreement among Initial Purchasers, the Supplemental Indentureand such other documents as may be required in connection with the offering,purchase, sale, issuance or delivery of the Securities, (iii) thepreparation, issuance and delivery of the Global Note to the InitialPurchasers, including any transfer taxes, any stamp or other duties payableupon the sale, issuance and delivery of the Securities to the InitialPurchasers and any charges of DTC in connection therewith, (iv) the feesand disbursements of the Company’s counsel, 

 

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accountantsand other advisors, (v) the qualification of the Securities undersecurities laws in accordance with the provisions of Section 3(d) hereof,including filing fees and the reasonable fees and disbursements of counsel forthe Initial Purchasers in connection therewith and in connection with thepreparation of the Blue Sky Survey, and any supplement thereto, (vi) thefees and expenses of the Trustee, including the fees and disbursements ofcounsel for the Trustee in connection with the Indenture and the Securities, (vii) 50%of the costs and expenses related to travel, lodging and meals incurred inconnection with the offering of the Securities pursuant to this Agreement, (viii) anyfees payable in connection with the rating of the Securities, and (ix) anyfees and expenses payable in connection with the initial and continueddesignation of the Securities as PORTAL securities under the PORTAL Market Rules pursuantto NASD Rule 5322.

 

SECTION 5.  Conditions of InitialPurchasers’ Obligations.  Theobligations of the several Initial Purchasers hereunder are subject to theaccuracy of the representations and warranties of (x) the Company and theGuarantors contained in Section 1(a) hereof or in certificates of anyofficer of the Company or any of the Guarantors delivered pursuant to theprovisions hereof to the performance by the Company and the Guarantors of theircovenants and other obligations hereunder and (y) the Nation contained in theNation Agreement or in certificates of any officer of the Nation delivered pursuantto the provisions of the Nation Agreement by the Nation of its covenants andother obligations thereunder, and to the following further conditions:

 

(a) *Opinion of Counsel for Company*.  At Closing Time, the Initial Purchasers shallhave received the favorable opinion, dated as of Closing Time, of Akin GumpStrauss Hauer & Feld LLP, counsel for the Company, in form andsubstance satisfactory to counsel for the Initial Purchasers, together withsigned or reproduced copies of such letter for each of the other InitialPurchasers to the effect set forth in Exhibit B.

 

(b) *Opinion of Counsel for Initial Purchasers*.  At Closing Time, the Initial Purchasers shallhave received the favorable opinion, dated as of Closing Time, of Mayer, Brown,Rowe & Maw LLP, counsel for the Initial Purchasers, together withsigned or reproduced copies of such letter for each of the other InitialPurchasers to the effect set forth in Exhibit C.  In giving such opinion such counsel may rely,as to all matters governed by the laws of jurisdictions other than the law ofthe State of New York and the federal law of the United States, upon theopinions of counsel satisfactory to the Initial Purchasers.  Such counsel may also state that, insofar assuch opinion involves factual matters, they have relied, to the extent theydeem proper, upon certificates of officers of the Company and its subsidiariesand certificates of public officials.

 

(c) *Opinion of Indian Counselfor Initial Purchasers*.  AtClosing Time, the Initial Purchasers shall have received the favorable opinion,dated as of Closing Time, of Hobbs, Straus, Dean & Walker, LLP,special Indian counsel for the Initial Purchasers, together with signed orreproduced copies of such letter for each of the other Initial Purchasers inform and substance reasonably satisfactory to the Initial Purchasers.

 

(d) *Officers’ Certificate*.  At Closing Time, there shall not have been,since the date hereof or since the respective dates as of which information isgiven in the Final Offering Memorandum (exclusive of any amendments orsupplements thereto subsequent to the date of this Agreement), any materialadverse change in the condition, financial or otherwise, or in the earnings,business affairs or business prospectsof the Company and its subsidiariesconsidered as one enterprise, whether or not arising in the ordinary course ofbusiness, and the Initial Purchasers shall have received (x) a certificate ofthe President or a Vice President of the Company and of the chief financial orchief accounting officer of the Company, dated as of Closing Time, to theeffect that (i) there has been no such material adverse change, (ii) therepresentations and warranties in Section 1(a) hereof are true andcorrect with the same force and effect as 

 

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thoughexpressly made at and as of Closing Time, and (iii) the Company hascomplied with all agreements and satisfied all conditions on its part to beperformed or satisfied at or prior to Closing Time and (y) a certificate of anauthorized officer of the Nation, dated as of Closing Time, to the effect thatthe representations and warranties in the Nation Agreement are true andcorrect.

 

(e) *Accountants’ Comfort Letter*.  At the time of the execution of this Agreement,the Initial Purchasers shall have received from Ernst & Young LLP aletter dated such date, in form and substance satisfactory to the InitialPurchasers, together with signed or reproduced copies of such letter for eachof the other Initial Purchasers containing statements and information of thetype ordinarily included in accountants’ “comfort letters” to InitialPurchasers with respect to the financial statements and certain financialinformation contained in the Offering Memorandum.

 

(f) *Bring-down Comfort Letter*.  At Closing Time, the Initial Purchasers shallhave received from Ernst & Young LLP a letter, dated as of ClosingTime, to the effect that they reaffirm the statements made in the letterfurnished pursuant to subsection (e) of this Section, except that thespecified date referred to shall be a date not more than three business daysprior to Closing Time.

 

(g) *Maintenance of Rating*.  Subsequent to the date of this Agreement,there shall not have occurred a downgrading in the rating assigned to theSecurities or any of the Company’s other debt by any “nationally recognizedstatistical rating agency”, as that term is defined by the Commission forpurposes of Rule 436(g)(2) under the 1933 Act, and no suchsecurities rating agency shall have publicly announced that it has undersurveillance or review, with possible negative implications, its rating of theSecurities or any of the Company’s other debt securities.

 

(h)  *PORTAL*.  At Closing Time, the Securities shall havebeen designated for trading on PORTAL.

 

(i) *Nation Agreement*.  AtClosing Time, the Nation shall have executed the Nation Agreement, which shallbe in form and substance satisfactory to the Initial Purchasers.

 

(j)*  AdditionalDocuments*.  At Closing Time,counsel for the Initial Purchasers shall have been furnished with suchdocuments and opinions as they may require for the purpose of enabling them topass upon the issuance and sale of the Securities as herein contemplated, or inorder to evidence the accuracy of any of the representations or warranties, orthe fulfillment of any of the conditions, herein contained; and all proceedingstaken by the Company in connection with the issuance and sale of the Securitiesas herein contemplated shall be satisfactory in form and substance to theInitial Purchasers and counsel for the Initial Purchasers.

 

(k)*  Terminationof Agreement*.  If anycondition specified in this Section shall not have been fulfilled when andas required to be fulfilled, this Agreement may be terminated by the InitialPurchasers by notice to the Company at any time at or prior to Closing Time,and such termination shall be without liability of any party to any other partyexcept as provided in Section 4 and except that Sections 7 and 8shall survive any such termination and remain in full force and effect.

 

(l)  *PayoffLetter.*  The InitialPurchasers shall have received at Closing Time a payoff letter from FreemantleLimited or the agent under SNFGC’s existing senior secured term loan in formand substance satisfactory to the Initial Purchasers.

 

(m)  *Approval bythe Nation’s Council.*  (i) TheCompany and each of the Guarantors shall have received at or prior to ClosingTime approval by the Nation’s Council of (A) the waiver by the Company andeach Guarantor of its sovereign immunity and (B) the submission by theCompany and each 

 

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Guarantorto jurisdiction of non-Nation courts, in the case of each of clauses (A) and(B), as set forth in this Agreement, the Registration Rights Agreementand the Supplemental Indenture, and (ii) the Company and each of theGuarantors shall have received at or prior to Closing Time approval by theNation’s Council of the execution, delivery and performance of each of thetransaction documents (including the Securities and the Guarantees) inconnection with the offering of the Securities.

 

SECTION 6.  Subsequent Offers andResales of the Securities.

 

(a) *Offer and Sale Procedures*.  Each of the Initial Purchasers and theCompany hereby establish and agree to observe the following procedures inconnection with the offer and sale of the Securities:

 

(i)            Offersand Sales.  Offers and sales of theSecurities shall be made to such persons and in such manner as is contemplatedby the Offering Memorandum.  Each InitialPurchaser severally agrees that it will not offer, sell or deliver any of theSecurities in any jurisdiction outside the United States except undercircumstances that will result in compliance with the applicable laws thereof,and that it will take at its own expense whatever action is required to permitits purchase and resale of the Securities in such jurisdictions.

 

(ii)           NoGeneral Solicitation.  No generalsolicitation or general advertising (within the meaning of Rule 502(c) underthe 1933 Act) will be used in the United States in connection with theoffering or sale of the Securities.

 

(iii)          Purchasesby Non-Bank Fiduciaries.  In the caseof a non-bank Subsequent Purchaser of a Security acting as a fiduciary for oneor more third parties, each third party shall, in the judgment of theapplicable Initial Purchaser, be an “accredited investor” within the meaning ofRule 501(a) under the 1933 Act or a “qualified institutionalbuyer” within the meaning of Rule 144A under the 1933 Act (a “QualifiedInstitutional Buyer”) or a non-U.S. person outside the United States.

 

(iv)          SubsequentPurchaser Notification.  Each InitialPurchaser will take reasonable steps to inform, and cause each of its U.S.Affiliates to take reasonable steps to inform, persons acquiring Securitiesfrom such Initial Purchaser or affiliate, as the case may be, in the UnitedStates that the Securities (A) have not been and will not be registeredunder the 1933 Act, (B) are being sold to them without registrationunder the 1933 Act in reliance on Rule 144A or in accordance withanother exemption from registration under the 1933 Act, as the case maybe, and (C) may not be offered, sold or otherwise transferred except (1) tothe Company, (2) outside the United States in accordance withRegulation S, or (3) inside the United States in accordance with(x) Rule 144A to a person whom the seller reasonably believes is aQualified Institutional Buyer that is purchasing such Securities for its ownaccount or for the account of a Qualified Institutional Buyer to whom notice isgiven that the offer, sale or transfer is being made in reliance on Rule 144Aor (y) pursuant to another available exemption from registration under the1933 Act.

 

(v)           MinimumPrincipal Amount.  No sale of the Securitiesto any one Subsequent Purchaser will be for less than U.S. $1,000 principalamount and no Security will be issued in a smaller principal amount.  If the Subsequent Purchaser is a non-bankfiduciary acting on behalf of others, each person for whom it is acting mustpurchase at least U.S. $1,000 principal amount of the Securities.

 

(vi)          SGARegistration.  Each Initial Purchasershall cooperate with the Company to enable the Company to obtain from eachSubsequent Purchaser such information as is reasonably 

 

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requested by theSeneca Gaming Authority, and shall take reasonable steps to send to eachSubsequent Purchaser the form requested by the Seneca Gaming Authority as setforth in Exhibit D hereto, after the Closing Time; provided,however, that no Initial Purchaser shall be required to disclose anyinformation which violates any client confidentiality policies.

 

(b) *Covenants of the Company*.  The Company covenants with each InitialPurchaser as follows:

 

(i)            Integration.  The Company agrees that it will not and willcause its Affiliates not to, directly or indirectly, solicit any offer to buy,sell or make any offer or sale of, or otherwise negotiate in respect of,securities of the Company of any class if, as a result of the doctrine of “integration”referred to in Rule 502 under the 1933 Act, such offer or sale wouldrender invalid (for the purpose of (i) the sale of the offered Securitiesby the Company to the Initial Purchasers, (ii) the resale of the offeredSecurities by the Initial Purchasers to Subsequent Purchasers or (iii) theresale of the offered Securities by such Subsequent Purchasers to others) theexemption from the registration requirements of the 1933 Act provided by Section 4(2) thereofor by Rule 144A or by Regulation S thereunder or otherwise.

 

(ii)           Rule 144AInformation.  The Company agreesthat, in order to render the offered Securities eligible for resale pursuant toRule 144A under the 1933 Act, while any of the offered Securitiesremain outstanding, it will make available, upon request, to any holder ofoffered Securities or prospective purchasers of Securities the informationspecified in Rule 144A(d)(4), unless the Companyfurnishes information to the Commission pursuant to Section 13 or 15(d) ofthe 1934 Act.

 

(iii)          Restrictionon Repurchases.  Until the expirationof two years after the original issuance of the offered Securities, the Companywill not, and will cause its Affiliates not to, resell any offered Securitieswhich are “restricted securities” (as such term is defined under Rule 144(a)(3) under the 1933 Act), whether as beneficialowner or otherwise (except as agent acting as a securities broker on behalf ofand for the account of customers in the ordinary course of business inunsolicited broker’s transactions).

 

(c) *Qualified Institutional Buyer*.  Each Initial Purchaser severally and notjointly represents and warrants to, and agrees with, the Company that it is aQualified Institutional Buyer and an “accredited investor” within the meaningof Rule 501(a) under the 1933 Act.

 

(d)  *Resale Pursuant to Rule 903 ofRegulation S or Rule 144A*. Each Initial Purchaser understands that the offered Securities have notbeen and will not be registered under the 1933 Act and may not be offeredor sold within the United States or to, or for the account or benefit of, U.S.persons except in accordance with Regulation S under the 1933 Act orpursuant to an exemption from the registration requirements of the1933 Act.  Each Initial Purchaserseverally represents and agrees, that, except as permitted by Section 6(a) above,it has offered and sold Securities and will offer and sell Securities (i) aspart of their distribution at any time and (ii) otherwise until forty daysafter the later of the date upon which the offering of the Securities commencesand Closing Time, only in accordance with Rule 903 of Regulation S, Rule 144Aunder the 1933 Act or another applicable exemption from the registrationrequirements of the 1933 Act. Accordingly, neither the Initial Purchasers, theiraffiliates nor any persons acting on their behalf have engaged or willengage in any directed selling efforts with respect to Securities soldhereunder pursuant to Regulation S, and the Initial Purchasers, their affiliatesand any person acting on their behalf have complied and will comply with theoffering restriction requirements of Regulation S.  Each Initial Purchaser severally agrees that,at or prior to confirmation of a sale of offered Securities pursuant toRegulation S it will have sent to each distributor, dealer or personreceiving a 

 

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selling concession, fee or otherremuneration that purchases offered Securities from it or through it during therestricted period a confirmation or notice to substantially the followingeffect:

 

“The Securities covered hereby have not beenregistered under the United States Securities Act of 1933 (the “Securities Act”)and may not be offered or sold within the United States or to or for theaccount or benefit of U.S. persons (i) as part of their distribution atany time and (ii) otherwise until forty days after the later of the dateupon which the offering of the Securities commenced and the date of closing,except in either case in accordance with Regulation S or Rule 144Aunder the Securities Act.  Terms usedabove have the meaning given to them by Regulation S.”

 

Terms used in the aboveparagraph have the meanings given to them by Regulation S.

 

SECTION 7.  Indemnification.

 

(a) *Indemnification of Initial Purchasers*.  The Company and the Guarantors agree, jointlyand severally, to indemnify and hold harmless each Initial Purchaser, itsAffiliates, its selling agents and each person, if any, who controls anyInitial Purchaser within the meaning of Section 15 of the 1933 Act orSection 20 of the 1934 Act as follows:

 

(i)            againstany and all loss, liability, claim, damage and expense whatsoever, as incurred,arising out of any untrue statement or alleged untrue statement of a materialfact contained in any Preliminary Offering Memorandum or the Final OfferingMemorandum (or any amendment or supplement thereto), or the omission or allegedomission therefrom of a material fact necessary in order to make the statementstherein, in the light of the circumstances under which they were made, notmisleading;

 

(ii)           againstany and all loss, liability, claim, damage and expense whatsoever, as incurred,to the extent of the aggregate amount paid in settlement of any litigation, orany investigation or proceeding by any governmental agency or body, commencedor threatened, or of any claim whatsoever based upon any such untrue statementor omission, or any such alleged untrue statement or omission; providedthat (subject to Section 7(d) below) any such settlement is effectedwith the written consent of the Company; and

 

(iii)          againstany and all expense whatsoever, as incurred (including the fees anddisbursements of counsel chosen by Merrill Lynch), reasonably incurred ininvestigating, preparing or defending against any litigation, or anyinvestigation or proceeding by any governmental agency or body, commenced orthreatened, or any claim whatsoever based upon any such untrue statement oromission, or any such alleged untrue statement or omission, to the extent thatany such expense is not paid under (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 untruestatement or omission or alleged untrue statement or omission made in relianceupon and in conformity with written information furnished to the Company by anyInitial Purchaser through Merrill Lynch expressly for use in the OfferingMemorandum (or any amendment thereto).

 

(b) *Indemnification of Company*.  Each Initial Purchaser severally agrees toindemnify and hold harmless the Company, the Guarantors and each person, ifany, who controls the Company or the 

 

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Guarantorswithin the meaning of Section 15 of the 1933 Act or Section 20of the 1934 Act against any and all loss, liability, claim, damage andexpense described in the indemnity contained in subsection (a) ofthis Section, as incurred, but only with respect to untrue statements oromissions, or alleged untrue statements or omissions, made in the OfferingMemorandum in reliance upon and in conformity with written informationfurnished to the Company by such Initial Purchaser expressly for use in theOffering Memorandum.

 

(c) *Actions against Parties; Notification*.  Each indemnified party shall give notice aspromptly as reasonably practicable to each indemnifying party of any costs andexpenses incurred by such indemnifying party or any action commenced against itin respect of which indemnity may be sought hereunder, but failure to so notifyan indemnifying party shall not relieve such indemnifying party from anyliability hereunder to the extent it is not materially prejudiced as a resultthereof and in any event shall not relieve it from any liability which it mayhave otherwise than on account of this indemnity agreement.  In the case of parties indemnified pursuantto Section 7(a) above, counsel to the indemnified parties shall beselected by Merrill Lynch, and, in the case of parties indemnified pursuant to Section 7(b) above,counsel to the indemnified parties shall be selected by the Company.  An indemnifying party may participate at itsown expense in the defense of any such action; provided, however,that counsel to the indemnifying party shall not (except with the consent ofthe indemnified party) also be counsel to the indemnified party.  In no event shall the indemnifying parties beliable for fees and expenses of more than one counsel (in addition to any localcounsel) separate from their own counsel for all indemnified parties inconnection with any one action or separate but similar or related actions inthe same jurisdiction arising out of the same general allegations orcircumstances.  No indemnifying party shall,without the prior written consent of the indemnified parties, settle orcompromise or consent to the entry of any judgment with respect to anylitigation, or any investigation or proceeding by any governmental agency orbody, commenced or threatened, or any claim whatsoever in respect of whichindemnification or contribution could be sought under this Section or Section 8hereof (whether or not the indemnified parties are actual or potential partiesthereto), unless such settlement, compromise or consent (i) includes anunconditional release of each indemnified party from all liability arising outof such litigation, investigation, proceeding or claim and (ii) does notinclude a statement as to or an admission of fault, culpability or a failure toact by or on behalf of any indemnified party.

 

(d) *Settlement without Consent if Failure toReimburse*.  If at any time anindemnified party shall have requested an indemnifying party to reimburse theindemnified party for fees and expenses of counsel, such indemnifying partyagrees that it shall be liable for any settlement of the nature contemplated bySection 7(a)(ii) effected without its written consent if (i) suchsettlement is entered into more than 45 days after receipt by such indemnifyingparty of the aforesaid request, (ii) such indemnifying party shall havereceived notice of the terms of such settlement at least 30 days prior to suchsettlement being entered into and (iii) such indemnifying party shall nothave reimbursed such indemnified party in accordance with such request prior tothe date of such settlement.

 

SECTION 8.  Contribution.  If the indemnification provided for in Section 7hereof is for any reason unavailable to or insufficient to hold harmless anindemnified party in respect of any losses, liabilities, claims, damages orexpenses referred to therein, then each indemnifying party shall contribute tothe aggregate amount of such losses, liabilities, claims, damages and expensesincurred by such indemnified party, as incurred, (i) in such proportion asis appropriate to reflect the relative benefits received by the Company and theGuarantors on the one hand and the Initial Purchasers on the other hand fromthe offering of the Securities pursuant to this Agreement or (ii) if theallocation provided by clause (i) is not permitted by applicable law,in such proportion as is appropriate to reflect not only the relative benefitsreferred to in clause (i) above but also the relative fault of theCompany and the Guarantors on the one hand and of the Initial Purchasers on theother hand in connection with the 

 

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statementsor omissions which resulted in such losses, liabilities, claims, damages orexpenses, as well as any other relevant equitable considerations.

 

The relative benefitsreceived by the Company and the Guarantors on the one hand and the InitialPurchasers on the other hand in connection with the offering of the Securitiespursuant to this Agreement shall be deemed to be in the same respectiveproportions as the total net proceeds from the offering of the Securitiespursuant to this Agreement (before deducting expenses) received by the Companyand the total underwriting discount received by the Initial Purchasers, bear tothe aggregate initial offering price of the Securities.

 

The relative fault of theCompany and the Guarantors on the one hand and the Initial Purchasers on theother hand shall be determined by reference to, among other things, whether anysuch untrue or alleged untrue statement of a material fact or omission oralleged omission to state a material fact relates to information supplied bythe Company and the Guarantors or by the Initial Purchasers and the parties’relative intent, knowledge, access to information and opportunity to correct orprevent such statement or omission.

 

The Company, theGuarantors and the Initial Purchasers agree that it would not be just andequitable if contribution pursuant to this Section were determined by prorata allocation (even if the Initial Purchasers were treated as one entity forsuch purpose) or by any other method of allocation which does not take accountof the equitable considerations referred to above in this Section.  The aggregate amount of losses, liabilities,claims, damages and expenses incurred by an indemnified party and referred toabove in this Section shall be deemed to include any legal or otherexpenses reasonably incurred by such indemnified party in investigating,preparing or defending against any litigation, or any investigation orproceeding by any governmental agency or body, commenced or threatened, or anyclaim whatsoever based upon any such untrue or alleged untrue statement oromission or alleged omission.

 

Notwithstanding theprovisions of this Section, no Initial Purchaser shall be required tocontribute any amount in excess of the amount by which the total price at whichthe Securities purchased and sold by it hereunder exceeds the amount of anydamages which such Initial Purchaser has otherwise been required to pay byreason of such untrue or alleged untrue statement or omission or allegedomission.

 

No person guilty offraudulent misrepresentation (within the meaning of Section 11(f) ofthe 1933 Act) shall be entitled to contribution from any person who was notguilty of such fraudulent misrepresentation.

 

For purposes of thisSection, each person, if any, who controls an Initial Purchaser within themeaning of Section 15 of the 1933 Act or Section 20 of the1934 Act and each Initial Purchaser’s Affiliates and selling agents shallhave the same rights to contribution as such Initial Purchaser, and eachperson, if any, who controls the Company and the Guarantors within the meaningof Section 15 of the 1933 Act or Section 20 of the 1934 Actshall have the same rights to contribution as the Company and theGuarantors.  The Initial Purchasers’respective obligations to contribute pursuant to this Section are severalin proportion to the principal amount of Securities set forth opposite theirrespective names in Schedule A hereto and not joint.

 

SECTION 9.  Representations,Warranties and Agreements to Survive.  All representations, warranties andagreements contained in this Agreement or in certificates of officers of theCompany or any of its subsidiaries submitted pursuant hereto shall remainoperative and in full force and effect, regardless of (i) anyinvestigation made by or on behalf of any Initial Purchaser or its Affiliatesor selling agents, any person controlling any Initial Purchaser, its officersor directors or any person controlling the Company and (ii) delivery ofand payment for the Securities.

 

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SECTION 10.  Termination of Agreement.

 

(a) *Termination; General*.  The Initial Purchasers may terminate thisAgreement, by notice to the Company, at any time at or prior to Closing Time (i) ifthere has been, since the time of execution of this Agreement or since therespective dates as of which information is given in the Final OfferingMemorandum (exclusive of any amendments or supplements thereto subsequent tothe date of this Agreement), any material adverse change in the condition,financial or otherwise, or in the earnings, business affairs or businessprospects of the Company and its subsidiaries considered as one enterprise,whether or not arising in the ordinary course of business, or (ii) ifthere has occurred any material adverse change in the financial markets in theUnited States or the international financial markets, any outbreak ofhostilities or escalation thereof or other calamity or crisis or any change ordevelopment involving a prospective change in national or internationalpolitical, financial or economic conditions, in each case the effect of whichis such as to make it, in the judgment of the Initial Purchasers, impracticableor inadvisable to market the Securities or to enforce contracts for the sale ofthe Securities, or (iii) if trading in any securities of the Company hasbeen suspended or materially limited by the Commission or, or if tradinggenerally on the American Stock Exchange or the New York Stock Exchange or inthe NASDAQ System has been suspended or materially limited, or minimum ormaximum prices for trading have been fixed, or maximum ranges for prices havebeen required, by any of said exchanges or by such system or by order of theCommission, the National Association of Securities Dealers, Inc. or anyother governmental authority, or (iv) a material disruption has occurredin commercial banking or securities settlement or clearance services in theUnited States or with respect to Clearstream or Euroclear systems in Europe, or(v) if a banking moratorium has been declared by either federal or NewYork authorities.

 

(b) *Liabilities*.  If this Agreement is terminated pursuant to thisSection, such termination shall be without liability of any party to any otherparty except as provided in Section 4 hereof, and providedfurtherthat Sections 7 and 8 shall survive such termination and remain in fullforce and effect.

 

SECTION 11.  Default by One or Moreof the Initial Purchasers.  Ifone or more of the Initial Purchasers shall fail at Closing Time to purchasethe Securities which it or they are obligated to purchase under this Agreement(the “Defaulted Securities”), the Initial Purchasers shall have theright, within 24 hours thereafter, to make arrangements for one or more ofthe non-defaulting Initial Purchasers, or any other initial purchasers, topurchase all, but not less than all, of the Defaulted Securities in such amountsas may be agreed upon and upon the terms herein set forth; if, however, theInitial Purchasers shall not have completed such arrangements within such 24-hourperiod, then:

 

(a) if the number of Defaulted Securities does not exceed 10% of the aggregateprincipal amount of the Securities to be purchased hereunder, each of thenon-defaulting Initial Purchasers shall be obligated, severally and notjointly, to purchase the full amount thereof in the proportions that theirrespective underwriting obligations hereunder bear to the underwritingobligations of all non-defaulting Initial Purchasers, or

 

(b) if the number of Defaulted Securities exceeds 10% ofthe aggregate principal amount of the Securities to be purchased hereunder,this Agreement shall terminate without liability on the part of anynon-defaulting Initial Purchaser.

 

No action taken pursuantto this Section shall relieve any defaulting Initial Purchaser fromliability in respect of its default.

 

In the event of any suchdefault which does not result in a termination of this Agreement, either theInitial Purchasers or the Company shall have the right to postpone Closing Timefor a period not exceeding seven days in order to effect any required changesin the Offering Memorandum or in any 

 

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otherdocuments or arrangements.  As usedherein, the term “Initial Purchaser” includes any person substituted foran Initial Purchaser under this Section.

 

SECTION 12.  Tax Disclosure.  Notwithstanding any other provision of thisAgreement, from the commencement of discussions with respect to thetransactions contemplated hereby, the Company (and each employee,representative or other agent of the Company) may disclose to any and allpersons, without limitation of any kind, the tax treatment and tax structure(as such terms are used in Sections 6011, 6111 and 6112 of the U.S. Code andthe Treasury Regulations promulgated thereunder) of the transactionscontemplated by this Agreement and all materials of any kind (includingopinions or other tax analyses) that are provided relating to such taxtreatment and tax structure.

 

SECTION 13.  Notices.  All notices and other communicationshereunder shall be in writing and shall be deemed to have been duly given ifmailed or transmitted by any standard form of telecommunication.  Notices to the Initial Purchasers shall bedirected to Merrill Lynch at 4 World Financial Center, New York, New York10080, attention of David Tuvlin, notices to the Company shall be directed toit at Seneca Niagara Casino, 310 Fourth Street, Niagara Falls, New York (SenecaNation Territory) 14303, attention of Chief Executive Officer.

 

SECTION 14.  Parties.  This Agreement shall inure to the benefit ofand be binding upon the Initial Purchasers, the Company and the Guarantors andtheir respective successors.  Nothingexpressed or mentioned in this Agreement is intended or shall be construed togive any person, firm or corporation, other than the Initial Purchasers, theCompany and the Guarantors and their respective successors and the controllingpersons and officers and directors referred to in Sections 7 and 8 andtheir heirs and legal representatives, any legal or equitable right, remedy orclaim under or in respect of this Agreement or any provision hereincontained.  This Agreement and allconditions and provisions hereof are intended to be for the sole and exclusivebenefit of the Initial Purchasers and the Company and their respectivesuccessors, and said controlling persons and officers and directors and theirheirs and legal representatives, and for the benefit of no other person, firmor corporation.  No purchaser ofSecurities from any Initial Purchaser shall be deemed to be a successor byreason merely of such purchase.

 

SECTION 15.  Limited Waiver of Sovereign Immunity

 

(a)  *Retention of SovereignImmunity*.  By executing this Agreement, none of the Company orthe Guarantors waives, limits or modifies itssovereign immunity from unconsented suit or judicial litigation, except asprovided for herein.

 

(b) *Scope of Waiver*. Subject to the provisions contained herein, each of the Company and theGuarantors hereby expressly grants to the Initial Purchasers and anyindemnified party under this Agreement, an irrevocable limited waiver of itssovereign immunity from unconsented suit and consent irrevocably to suitexclusively to:

 

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

 

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

 

(iii)          enforce an arbitrator’s decision with respect to arbitrationunder the commercial arbitration rules of the American ArbitrationAssociation;

 

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

 

(v)           orderthe seizure and sale of any assets of the Company or a Guarantor used or heldfor use in the Related Business (as defined in the Indenture), or the exerciseof any other remedy available generally in the State of New York for judgmentcreditors;

 

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

 

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

 

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

 

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

 

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

 

(iii)          theclaim seeks payment of (a) a specified sum, some specific action, ordiscontinuance of some action, by one or more of the Company and the Guarantorsto bring the Company or the Guarantors, as applicable, into full compliancewith the duties and obligations expressly assumed by the Company and theGuarantors under this Agreement; or (b) money damages for noncompliancewith the terms and provisions of this Agreement;

 

(iv)          theclaim is made in a detailed written statement to each of the Company and theGuarantors against which such claim is being made stating the specific actionor discontinuance of action by the Company and the Guarantors that would curethe alleged breach or non-performance, or the sum of money claimed to be dueand owing to one or more of the Initial Purchasers by reason of such specificbreach or non-performance, and the Company and the Guarantors shall have seven (7) calendardays to cure or cause the cure of such breach or non-performance or to makesuch payment before judicial proceedings may be instituted; provided, however, that this cure periodmay be reasonably extended in the sole discretion of the Initial Purchasers fornon-monetary matters as long as the Company and the Guarantors are making goodfaith efforts to cure such breach or non-performance; and

 

(v)           withrespect to any claim authorized herein, initial suit, as authorized herein,shall be commenced within the later of three (3) years after the claimaccrues or is discovered upon the exercise of due diligence, or such claimshall be forever barred.  The waiver granted herein shall commence on thedate hereof and shall continue for three (3) years following the date ofthe termination of this Agreement, except that the waiver shall remaineffective for any proceedings then pending, and all appeals therefrom.

 

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(d) *Recipient of Waiver*. The recipients of the benefit of this irrevocable waiver of sovereign immunityare limited to the Initial Purchasers and any and all persons covered by theindemnification provisions hereof; provided,however, that as to suchlatter persons, this waiver extends only to the enforcement of any rights toindemnification by the Company and the Guarantors and to no other actions orpersons.

 

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

 

(f)  *Enforcement*. Each of the Company and the Guarantors irrevocably waives its sovereignimmunity from a judgment or order consistent with the terms and provisions ofthis limited waiver and agreement, which is final because either the time forappeal thereof has expired or the judgment or an order is issued by a courthaving final appellate jurisdiction over the matter. Each of the Companyand the Guarantors consents to the jurisdiction of, to be sued in and acceptsand agrees to be bound by any order or judgment of any of the United StatesDistrict Courts for New York or the New York State Supreme Court, and anyfederal or state court having appellate jurisdiction thereover, consistent withthe terms and provisions of this limited waiver and agreement. Each of theCompany and the Guarantors irrevocably waives its sovereign immunity as to anaction by the Initial Purchasers in any United States District Courts for NewYork or the New York State Supreme Court, and in the federal or state courtshaving appellate jurisdiction thereover, seeking injunctive and/or declaratoryrelief against any of the Company and the Guarantors based upon any attempt torevoke its irrevocable waiver of its sovereign immunity under this Agreement,and as to enforcement in said United States Federal District Courts or New YorkState Supreme Court of any such final judgment against any of the Company andthe Guarantors. Without in any way limiting the generality of theforegoing, each of the Company and the Guarantors expressly authorizes anygovernmental authorities who have the right and duty under applicable law totake any action authorized or ordered by any such court, to take such action togive effect to any judgment entered or order granted in accordance with thisAgreement.

 

(g) *Waivers*.  Each of the Company and the Guarantors herebyexpressly and irrevocably waives:

 

(i)            itsrights to have any dispute, controversy, suit, action or proceeding arisingunder this Agreement heard in any other forum whether or not such forum nowexists or is hereafter created including, without limitation, any court orother tribunal, forum, council, or adjudicative body of the Nation (each, a “NationForum”);

 

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

 

(iii)          anyrequirement which may exist for exhaustion of any remedies available in anyNation Forum prior to the commencement of any dispute, controversy, suit,action or proceeding in any state or federal court even if any such NationForum would have concurrent jurisdiction over any such dispute, controversy,suit, action or proceeding but for such waiver;

 

(iv)          itssovereign immunity as to the action of the Initial Purchasers in any of theUnited States District Courts for New York or the New York State SupremeCourts, and in the federal or state courts having appellate jurisdictionthereover, seeking injunctive and/or declaratory relief against any of theCompany and the Guarantors based upon an attempt by any 

 

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ofthem to revoke its irrevocable waiver of its sovereign immunity or otherwaivers granted hereunder; and

 

(v)           its sovereign immunity from a judgment or order (including anyappellate judgment or other order) and post-judgment proceedings supplementalthereto consistent with the terms and provisions hereof, which is final becauseeither the time for appeal thereof has expired or the judgment or an order isissued by the court having final jurisdiction over the matter.

 

(h)  *No Revocation of SovereignImmunity Waiver*.  Each of the Company and the Guarantors agreesnot to revoke or limit, in whole or in part, its limited waiver of sovereignimmunity contained in this limited waiver and agreement or in any way attemptto revoke or limit, in whole or in part, such limited waiver of sovereignimmunity.  In the event of any such revocation, limitation, attemptedrevocation, or attempted limitation, the parties expressly recognize and agreethat there remains no adequate remedy at law available to the InitialPurchasers, each will be irreparably injured upon any revocation or limitationhereof, and each of the Company and the Guarantors hereby consents to the entryof appropriate injunctive relief, consistent with the terms and conditions ofthis Agreement. In the event of any attempted limitation or revocation ofthe limited waiver of sovereign immunity granted herein, the Initial Purchaseraffected thereby may immediately seek judicial injunctive relief as provided inthis limited waiver and agreement without first complying with any of theprerequisites contained herein to the limited waiver of sovereign immunitygranted herein.  Any action seeking injunctive relief hereunder shall bebrought in one of the United States District Courts for New York or the NewYork State Supreme Court, and each of the Company and the Guarantors expresslyconsents to the jurisdiction of, and agrees to be bound by any order orjudgment of such District Courts or state court, and any federal or state courtwith appellate jurisdiction thereover.

 

SECTION 16.  DisputeResolution.

 

(a) *Arbitration*.  If, andonly if, a dispute arises between the parties over a matter for which theCompany and the Guarantors have provided a limited waiver of immunity underthis Agreement (the “Dispute”), and neither the United States DistrictCourts for New York nor the New York State Supreme Court can or is willing tohear the Dispute, then either party may request binding arbitration of suchDispute in accordance with the procedures set forth herein.  To initiatebinding arbitration of such Dispute, a party shall notify the other party inwriting.  The Dispute shall be settled by binding arbitration inaccordance with the Commercial Arbitration Rules of the AmericanArbitration Association, and judgment on the award rendered by the arbitratormay be entered in any court.  One arbitrator shall preside and shall beselected by the American Arbitration Association.

 

(b)  *RestrainingOrder/Preliminary Injunction*. Any party, before or during any arbitration, may apply to a court havingjurisdiction for a temporary restraining order or preliminary injunction wheresuch relief is necessary to protect its interests pending completion of thedispute resolution proceedings.

 

(c)  *Confidentiality*.  Neither party nor the arbitrator may disclosethe existence or results of any arbitration hereunder, which shall beconsidered 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)           asrequired by applicable law, the rules of any relevant stock exchange orrequirement of any Initial Purchaser, by order or decree of a court or other governmentalauthority having jurisdiction over such party, or in connection with such party’senforcement of any rights it may have at law or in equity;

 

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

 

(iv)          after such information has become publicly available withoutbreach of this Agreement.

 

(d)  *Fees and Costs*.  In the event of arbitration, the prevailingparty 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 alocation in an agreed city in the State of New York or such other place as theparties may jointly agree.  The arbitrator shall render an award withinforty-five (45) days from the conclusion of the arbitration.

 

(f) *Enforcement of Arbitration Decisions*.  The decision of the arbitrator will be finaland binding and enforced with the same force and effect as a decree of a courthaving competent jurisdiction.  For this purpose, should the losing partyin any arbitration proceeding pursuant to this limited waiver and agreementrefuse to abide by the decision of the arbitrator, the prevailing party mayapply to any of the United States District Courts for New York or the New YorkState Supreme Court to compel enforcement of the arbitrator’s award resultingfrom binding arbitration and each party hereto consents to the jurisdiction ofeach such court for this purpose.  Each of the Company and the Guarantorshereby expressly and irrevocably waives its sovereign immunity with respect tothe entry of judgment on, and enforcement of, such award by such courts.

 

SECTION 17.  Serviceof Process.

 

(a)  *Designation of ServiceRecipients*.  In any action orproceeding as to which each of the Company and the Guarantors have waived theirsovereign immunity as provided herein, each of the Company and the Guarantorsconsents and agrees that process against it shall be effective if served:

 

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

 

(ii)           Bysending two (2) copies of the process by registered or certified mail tothe Chief Executive Officer of the Company or the Guarantors, as applicable, atthe address set forth above.

 

(b)  *Appointment Irrevocable*.  The Company and the Guarantors irrevocablyappoint each of the persons in the foregoing clauses and their respectivesuccessors in said offices from time to time, as agent for service of processmade in accordance herewith.

 

SECTION 18.TIME.  TIME SHALL BE OF THE ESSENCE OF THISAGREEMENT.  EXCEPT AS OTHERWISE SET FORTHHEREIN, SPECIFIED TIMES OF DAY REFER TO NEW YORK CITY TIME.

 

SECTION 19.  Counterparts.  This Agreement may be executed in any numberof counterparts, each of which shall be deemed to be an original, but all suchcounterparts shall together constitute one and the same Agreement.

 

SECTION 20.  Effect of Headings.  The Section headings herein are forconvenience only and shall not affect the construction hereof.

 

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If the foregoing is inaccordance with your understanding of our agreement, please sign and return tothe Company a counterpart hereof, whereupon this instrument, along with allcounterparts, will become a binding agreement among the Initial Purchasers, theCompany and the Guarantors in accordance with its terms.

 
|   | Very truly yours,                        |
|--------|------------------------------------------|
|   |                                     |
|   |                                     |
|   | 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 |
|        |                                          |  |  |  |

 

 

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CONFIRMED AND ACCEPTED,  as of the date first above written:

 

MERRILL LYNCH &CO.

 

MERRILL LYNCH, PIERCE,FENNER & SMITH

INCORPORATED

 

BANC OF AMERICA SECURITIESLLC

 

WELLSFARGO SECURITIES, LLC

 

**By: MERRILL LYNCH, PIERCE, FENNER & SMITH**

**INCORPORATED**

 

 
| By:    | /s/ David Tuvlin          |   |
|--------|---------------------------|--------|
|   | Name: David Tuvlin        |
|   | Title: Managing  Director |

 

For itself and asrepresentative of the other Initial Purchasers named in Schedule A hereto.

 

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