Exhibit 10.29


 


Execution Version


 


FIRST AMENDMENT TO LOAN
AGREEMENT


 


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


 


RECITALS


 


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


 


The
Borrower has requested that the Lender make certain amendments to the Loan
Agreement, and the Lender has agreed to make such amendments subject to the
terms and conditions of this Amendment.


 


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


 


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


 


2.                                       Amendments.


 


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


 


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


 


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


 


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


 


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


“2.12.                  Reduction of Revolving
Commitment; Debt Repayment Reserve Account.


 


(a)                                  The amount of the Revolving
Commitment will be reduced from time to time by the amount of any reduction in
the credit amount of the 


 


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


 


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


 


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


 


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


 


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


 


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


 


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provided, further, that notwithstanding the foregoing covenant
or any other covenant in any Loan Document, the Deposit Accounts with financial
institutions to be closed consistent with the foregoing covenant shall not be
required to be formally closed until such time as formal closure is permitted
under the applicable account agreements, as required to accommodate such
matters as the clearance of outstanding checks. 
Borrower agrees that if the aggregate value of Borrower’s and Guarantors
assets maintained with Lender (a) is less than $40,000,000, all of such
assets will be credited to Deposit Accounts and (b) is equal to or greater
than $40,000,000, at least $40,000,000 will be credited to Deposit
Accounts.  Lender agrees that if the
Borrower’s and Guarantors’ Deposit Accounts maintained with Lender are not
fully protected by FDIC Insurance and Lender’s debt ratings from S&P or
Moody’s shall cease to be investment grade, Lender will fully collateralize
with “Eligible Collateral” (defined below) the Borrower’s and Guarantors’
Deposit Accounts maintained with Lender and will provide Borrower with a
perfection legal opinion with respect to Borrower’s security interest in such
collateral.  Lender agrees to take such
actions and execute such documents as Borrower may reasonably request to carry
out and facilitate its collateralization and opinion obligations in the
preceding sentence, such obligations to be complied with on or before the date
of the occurrence of the two events specified in the preceding sentence which
trigger such obligations.  All
documentation entered into in connection with the foregoing Lender obligations
shall contain customary terms and shall be satisfactory to Borrower.  For purposes of this Section 4.12, “Eligible
Collateral” means, at Lender’s option, either (a) U.S. treasury
securities with maturities of 90 days or less or (b) an irrevocable letter
of credit issued in favor of the Borrower and/or one or more Guarantors, as
applicable, by either (i) a bank, other than the Lender, whose commercial
paper and other unsecured short-term debt obligations (or in the case of a bank
which is the principal subsidiary of a holding company, whose holding company’s
commercial paper and other unsecured short-term debt obligations) are rated in
one of the three highest rating categories based on the credit of such bank or
holding company by at least one nationally recognized statistical rating
organization or (ii) a bank, other than the Lender, which is in compliance
with applicable Federal minimum risk-based capital requirements.  For the avoidance of doubt, Lender’s
obligation to “fully collateralize” requires that the Borrower’s and Guarantor’s
Deposit Accounts be continuously collateralized with Eligible Collateral with a
value at least equal to the aggregate amount credited to such Deposit
Accounts.  Lender will provide advance
written notice to Borrower of any event or circumstance reasonably likely to (a) result
in its debt ratings from S&P or Moody’s ceasing to be investment grade or (b) otherwise
materially adversely affect Lender.” 
Lender represents and warrants to Borrower that it has the power to
perform its obligations under this Section 4.12 and that such obligations
are valid and binding obligations of the Lender, enforceable against Lender in
accordance with their terms; and that Lender’s performance of its obligations
under this Section 4.12 will not violate any law, rule or regulation
applicable to Lender.


 


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


 


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


 


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


 


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


 


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


 


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


 


3.                                       Representations
and Warranties. The Borrower hereby represents and warrants to the
Lender as follows:


 


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


 


(b)                                 the execution, delivery and
performance by the Borrower of this Amendment and the borrowings and issuance
of Letters of Credit from time to time under the Loan Agreement as amended
hereby have been duly authorized by all necessary action and do not and will
not (i) require any authorization, consent or approval by, or
registration, declaration or filing with, or notice to, the Nation or any governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, or any third party, except such authorization, consent, approval,
registration, declaration, filing or notice as has been obtained, accomplished
or given prior to the date hereof; (ii) violate any provision of any law, rule or
regulation or of any order, writ, injunction or decree presently in effect
having applicability to the Borrower or any Guarantor or of the Borrower’s or
any Guarantor’s Constituent Documents; (iii) result in a breach of or
constitute a default under any material Contractual Obligation to which the
Borrower or 


 


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


 


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


 


4.                                       Conditions to
Effectiveness of this Amendment.  Unless waived by the Lender in writing, the
effectiveness of this Amendment is subject to the satisfaction of the following
conditions precedent :


 


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


 


(i)                                     four executed
counterparts of this Amendment;


 


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


 


(iii)                               the favorable written legal opinion of counsel to the
Borrower and the Guarantors (which counsel shall be satisfactory to the
Lender), together with copies of all factual certificates and legal opinions
upon which such counsel have relied;


 


(iv)                              such documentation as the Lender may require to
establish (A) federal recognition of the Nation as an Indian tribe within
the meaning of IGRA, (B)  the Borrower’s and the Guarantors’ authority to
execute, deliver and perform the Loan Documents to be delivered on the date
hereof to which they are a party, and (C) the identity, authority and
capacity of each Senior Officer authorized to act on the Borrower’s and each
Guarantor’s behalf, including certified copies of the actions of the Borrower’s
governing body, incumbency certificates and the like;


 


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


 


(vi)                              certificates signed by the Secretary of the Borrower
and each Guarantor, and by the Clerk of the Nation, attaching true, correct and
complete 


 


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copies of the applicable
approvals (authorizing resolutions) of this Amendment and the Acknowledgement,
Reaffirmation and Agreement attached hereto, 
and true, correct and complete copies of the Constituent Documents of
the Borrower, each Guarantor and the Nation (including, in each case, any
amendments or modifications of the terms thereof entered into as of the date
hereof);


 


(vii)                           evidence that the Lender has all Permits required by
Law with respect to the transactions contemplated in this Amendment and in the
other Loan Documents; and


 


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


 


(b)                                 Perfection of Security
Interests in Collateral.  The
Lender shall hold a valid, perfected first priority security interest in all
Collateral (subject to Permitted Liens).


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


9.                                       Governing Law. This
Amendment shall be governed by and construed in accordance with the substantive
law of the State of New York.


 


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


 


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


 


[Signature Page Follows]


 


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


 


 


	
   

  	
  BORROWER:

  
	
   

  	
   

  
	
   

  	
  SENECA
  GAMING CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Catherine Walker

  
	
   

  	
  Name: Catherine Walker

  
	
   

  	
  Title: Chief Operating Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  LENDER:

  
	
   

  	
   

  
	
   

  	
  KEYBANK NATIONAL ASSOCIATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Terence E. O’Farrell

  
	
   

  	
  Name: Terence E.
  O’Farrell

  
	
   

  	
  Title: Senior Vice President

  



 

















 


Schedule 3(c)


to First Amendment to Loan Agreement


 


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


 


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


 


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