EXHIBIT 4.1


 


Execution Version


 


SENECA GAMING CORPORATION,


 


THE GUARANTORS, parties hereto


 


and


 


WELLS FARGO BANK, NATIONAL ASSOCIATION,


as Trustee


 






 


THIRD SUPPLEMENTAL INDENTURE


Dated as of November 18, 2010


 


to


 


INDENTURE


 


Dated as of May 5, 2004


As Supplemented by a Supplemental Indenture


Dated as of May 23, 2005,


and a Second Supplemental Indenture


Dated as of December 28, 2007


 










 


71/4% Senior Notes due 2012


 





















 


THIRD
SUPPLEMENTAL INDENTURE (this “Third Supplemental Indenture”), dated as of November 18,
2010, among Seneca Gaming Corporation (the “Company”), the subsidiary
guarantors parties hereto (the “Guarantors”) and Wells Fargo Bank, National
Association, as trustee (the “Trustee”).


 


WHEREAS,
the Company, the Guarantors and the Trustee are parties to an Indenture, dated
as of May 5, 2004, as supplemented by a Supplemental Indenture, dated as
of May 23, 2005, and a Second Supplemental Indenture, dated as of December 28,
2007 (as so supplemented and amended, the “Indenture”), pursuant to which the Company
issued $500,000,000 aggregate principal amount of 71/4% Senior Notes due 2012 (the
“Notes”);


 


WHEREAS,
pursuant to Section 8.2 of the Indenture, the Company, when authorized by
a resolution of its Board of Directors, the Guarantors and the Trustee may
amend certain terms of the Indenture with the written consent of the Holders
(as defined in the Indenture) of at least a majority in aggregate principal
amount of the Notes then outstanding;


 


WHEREAS,
the Company has offered to purchase for cash any and all of the Notes (the “Offer”)
and has solicited consents (the “Solicitation”) to certain amendments to the
Indenture (the “Proposed Amendments”) pursuant to the Company’s Offer to
Purchase and Consent Solicitation Statement dated November 3, 2010 (the “Solicitation
Statement”);


 


WHEREAS,
the Company has obtained the written consent to the Proposed Amendments to the
Indenture from the Holders of at least a majority in aggregate principal amount
of the Notes (the “Requisite Consents”);


 


WHEREAS,
the Holders who have delivered such written consents to the Proposed Amendments
have waived any rights to withdraw such consents pursuant to the Indenture;


 


WHEREAS,
the execution and delivery of this Third Supplemental Indenture have been duly
authorized by the parties hereto, and all conditions and requirements necessary
to make this instrument a valid and binding agreement have been duly performed
and complied with;


 


WHEREAS,
the Trustee is indemnified pursuant to Section 7.7 of the Indenture in
connection with the Trustee’s execution of this Third Supplemental Indenture;
and


 


WHEREAS,
the Company has heretofore delivered or is delivering contemporaneously
herewith to the Trustee (i) a copy of the resolutions of the Board of
Directors of the Company authorizing the execution of this Third Supplemental
Indenture, (ii) confirmation from D.F. King & Co., Inc., as
depositary for the Solicitation, of the receipt from Holders of the Requisite
Consents, (iii) the Officers’ Certificate and the Opinion of Counsel
described in Sections 8.6, 12.4 and 12.5 of the Indenture, and (iv) a
written request to execute this Third Supplemental Indenture.


 


NOW,
THEREFORE, for and in consideration of the foregoing premises, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders
of the Notes, as follows:


 


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ARTICLE I


Amendments to the Indenture


 


1.1          Effectiveness of Third Supplemental Indenture.  This Third Supplemental Indenture shall
become effective as of the date hereof provided that the amendments to the
Indenture set forth in Section 1.2 below shall not become operative until
the date that the Notes are accepted for purchase by the Company pursuant to
the Offer to Purchase and Consent Solicitation Statement dated November 3,
2010 (the “Amendment Effective Date”).


 


1.2          Amendments to the
Indenture.


 


(a)           Section 1.1
of the Indenture is hereby amended by adding the following definitions:


 


“Amendment Effective Date” shall mean the “Amendment
Effective Date” as defined in the Third Supplemental Indenture.


 


“Third Supplemental Indenture” shall mean
that certain Third Supplemental Indenture, dated as of November 18, 2010,
among the Company, the Guarantors and the Trustee.”


 


(b)           Section 3.3
of the Indenture is hereby amended and restated in its entirety to read as
follows:


 


“SECTION 3.3. Notice of Redemption.  At least 3 Business Days but not more than 60
days before a date for redemption of Notes, the Company shall mail a notice of
redemption by first-class mail to each Holder of Notes to be redeemed at his or
her last address as the same appears on the registry books maintained by the
Registrar pursuant to Section 2.4 hereof.


 


The notice shall identify the Notes to be redeemed
(including the CUSIP numbers thereof) and shall state:


 


(1) the Redemption Date;


 


(2) the redemption price and the amount of
premium and accrued interest to be paid;


 


(3) if any Note is being redeemed in part, the
portion of the principal amount of such Note to be redeemed and that, after the
Redemption Date and upon surrender of such Note, a new Note or Notes in
principal amount equal to the unredeemed portion will be issued;


 


(4) the name and address of the Paying Agent;


 


(5) that Notes called for redemption must be
surrendered to the Paying Agent to collect the redemption price;


 


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(6) that, unless the Company defaults in making
such redemption payment, interest on Notes (or portion thereof) called for
redemption ceases to accrue on and after the Redemption Date; and


 


(7) the provision of the Notes and/or  Section of the Indenture, as the case
may be, pursuant to which the Notes called for redemption are being redeemed;
and


 


(8) the aggregate principal amount of Notes
that are being redeemed.


 


At the Company’s written request made at least five
Business Days prior to the date on which the notice is to be given, the Trustee
shall give the notice of redemption in the Company’s name and at the Company’s
sole expense.”


 


(c)           Section 4.7
of the Indenture is hereby amended and restated in its entirety to read as
follows:


 


“SECTION 4.7       [Intentionally
Omitted].”


 


(d)           Section 4.8
of the Indenture is hereby amended to add a new sentence at the end of such
section to read as follows:


 


“The forgoing provisions of this Section 4.8
shall not apply with respect to any Change of Control that occurs after the
Amendment Effective Date.”


 


(e)           Sections
4.9 through 4.10 of the Indenture are hereby amended and restated in their
entirety to read as follows:


 


“SECTION 4.9       [Intentionally
Omitted]


 


SECTION 4.10       [Intentionally
Omitted]”


 


(f)            Section 4.11
of the Indenture is hereby amended to add a new subsection (h) to read as
follows:


 


“(h) The
foregoing provisions of this Section 4.11 shall not apply with    respect to any Asset Sale consummated after
the Amendment Effective Date.”


 


(g)           Sections
4.12 through 4.20 and Sections 4.23 through 4.24 of the Indenture are hereby
amended and restated in their entirety to read as follows:


 


“SECTION 4.12     [Intentionally
Omitted]


 


SECTION 4.13       [Intentionally
Omitted]


 


SECTION 4.14       [Intentionally
Omitted]


 


SECTION 4.15       [Intentionally
Omitted]


 


SECTION 4.16       [Intentionally
Omitted]


 


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SECTION 4.17       [Intentionally
Omitted]


 


SECTION 4.18       [Intentionally
Omitted]


 


SECTION 4.19       [Intentionally
Omitted]


 


SECTION 4.20       [Intentionally
Omitted]


 


SECTION 4.23       [Intentionally
Omitted]


 


SECTION 4.24       [Intentionally
Omitted]”


 


(h)           Section 5.1
of the Indenture is hereby amended and restated in its entirety to read as
follows:


 


“SECTION 5.1    Merger, Consolidation and Sale of
Assets.    (a) The
Company will not consolidate with or merge with or into (whether or not the
Company is the Surviving Person) any other entity and the Company will not, and
will not cause or permit any Restricted Subsidiary to, sell, convey, assign,
transfer, lease or otherwise dispose of all or substantially all of the Company’s
and its Restricted Subsidiaries’ assets (determined on a consolidated basis for
the Company and its Restricted Subsidiaries) to any Person in a single
transaction or series of related transactions, unless:


 


(1) either (A) the Company will be the
Surviving Person or (B) the Surviving Person (if other than the Company)
will be an entity organized and validly existing under the laws of the Nation,
and will, in any such case, expressly assume by a supplemental indenture, the
due and punctual payment of the principal of, premium, if any, and interest on
all the Notes and the performance and observance of every covenant of this
Indenture and the Registration Rights Agreement to be performed or observed on
the part of the Company.


 


(2) [Intentionally Omitted].


 


(3) [Intentionally Omitted].


 


Any Restricted Subsidiary of the Company may
consolidate with, merge into or transfer all or part of its assets to the
Company or another Restricted Subsidiary of the Company.


 


(b)  [Intentionally Omitted].


 


(c) In connection with any consolidation,
merger, transfer, lease or other disposition contemplated hereby, the Company
will deliver, or cause to be delivered, to the Trustee, in form and substance
reasonably satisfactory to the Trustee, an Officers’ Certificate and an Opinion
of Counsel, together stating that such consolidation, merger, transfer, lease
or other disposition and the supplemental indenture in respect thereof comply
with the requirements under this Indenture. In addition, each Guarantor, in the
case of a transaction described in Section 5.1(a) where the Company is not the
Surviving Person, unless it is the other party to the transaction or unless its
Guarantee will be 


 


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released
and discharged in accordance with its terms as a result of the transaction,
will be required to confirm, by supplemental indenture, that its Guarantee will
continue to apply to the obligations of the Surviving Person under this
Indenture.”


 


(i)            Clauses (5) and (6) of Section 6.1 of the
Indenture are hereby amended and restated in their entirety to read as follows:


 


“(5)         [Intentionally omitted].


 


(6)           [Intentionally omitted].”


 


(j)            All references in the Indenture or the Notes to a
provision deleted pursuant to the amendments set forth in Subsections (a) through
(i) of this Section 1.1 shall be deleted in their entirety from the
Indenture and the Notes, and any definitions used exclusively in the provisions
of the Indenture deleted pursuant to the amendments set forth in Subsections (a) through
(i) of this Section 1.1 shall be deleted in their entirety from the
Indenture.  The requirement of any
provision of the Indenture that any action on behalf of the Company or the
Trustee be taken in accordance with or pursuant to any of the provisions of the
Indenture that are deleted pursuant to Subsections (a) through (i) of
this Section 1.1 shall be disregarded and the Company or the Trustee shall
be deemed to have taken such action in accordance with and pursuant to such
deleted provision.  None of the Company,
the Trustee or other parties to or beneficiaries of the Indenture shall have
any rights, obligations or liabilities under any of the provisions of the
Indenture that are deleted pursuant to Subsections (a) through (i) of
this Section 1.1, and such deleted provisions shall not be considered in
determining whether an Event of Default has occurred or whether the Company has
observed, performed or complied with the provisions of the Indenture.


 


ARTICLE II


Miscellaneous


 


2.1          Counterparts.  This Third Supplemental Indenture may be
signed in counterparts by the different parties hereto in separate
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same instrument.


 


2.2          Severability.  In case any provision in this Third
Supplemental Indenture shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.


 


2.3          Effect of Headings.  The Section headings of this Third
Supplemental Indenture have been inserted for convenience of reference only,
are not to be considered part of this Third Supplemental Indenture and shall in
no way modify or restrict any of the terms or provisions hereof.


 


2.4          Successors and
Assigns.  This Third
Supplemental Indenture shall inure to the benefit of and be binding upon the
parties hereto and each of their respective successors and permitted
assigns.  Without limiting the generality
of the foregoing, this Third Supplemental Indenture shall inure to benefit of
all Holders from time to time.  Nothing
expressed or mentioned in this Third Supplemental Indenture is intended to or
shall be construed to give any 


 


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Person,
other than the parties hereto, their respective successor and assigns, and the
Holders, any legal or equitable right, remedy or claim under or in respect of
this Third Supplemental Indenture or any provision herein contained.


 


2.5          Governing Law.  THIS THIRD SUPPLEMENTAL
INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK.


 


2.6          Effect of
Supplemental Indenture.  Except as amended by this Third Supplemental
Indenture, the terms and provisions of the Indenture shall remain in full force
and effect.


 


2.7          This Supplemental
Indenture is a Supplement to The Indenture.  This Third
Supplemental Indenture is executed as and shall constitute an indenture
supplemental to the Indenture and shall be construed in connection with and as
part of the Indenture.  Subject to Section 12.1
of the Indenture, in the case of conflict between the Indenture and this Third
Supplemental Indenture, the provisions of this Third Supplemental Indenture
shall control.


 


2.8          Trust Indenture
Act.  If any provisions hereof limit, qualify, or
conflict with any provisions of the TIA required under the TIA to be a part of and
govern this Third Supplemental Indenture, the provisions of the TIA shall
control.  If any provision hereof
modifies or excludes any provision of the TIA that pursuant to the TIA may be
so modified or excluded, the provisions of the TIA as so modified or excluded
hereby shall apply.


 


2.9          Trustee.  The Trustee accepts the
amendments of the Indenture effected by this Third Supplemental Indenture, but
on the terms and conditions set forth in the Indenture, including the terms and
provisions defining and limiting the liabilities and responsibilities of the
Trustee.  Without limiting the generality
of the foregoing, the Trustee shall not be responsible in any manner whatsoever
for or with respect to any of the recitals or statements contained herein, all
of which recitals or statements are made solely by the Company, the Guarantors,
or for or with respect to (i) the validity or sufficiency of this Third
Supplemental Indenture or any of the terms or provisions hereof, (ii) the
proper authorization hereof by the Company and the Guarantors by corporate
action or otherwise, (iii) the due execution hereof by the Company and the
Guarantors or (iv) the consequences of any amendment herein provided for,
and the Trustee makes no representation with respect to any such matters.


 


2.10        References to This
Supplemental Indenture.  Any and all notices, requests, certificates
and other instruments executed and delivered after the execution and delivery
of this Third Supplemental Indenture may refer to the Indenture without making
specific reference to this Third Supplemental Indenture, but nevertheless all
such references shall include this Third Supplemental Indenture unless the
context otherwise requires.


 


2.11        Capitalized Terms.  Capitalized terms used herein but not defined
shall have the meanings assigned to them in the Indenture.


 


[signature
page follows]


 


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IN
WITNESS WHEREOF, each of the parties hereto have caused this Third Supplemental
Indenture to be duly executed on its behalf by its duly authorized officer as
of the day and year first above written.


 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL

  
	
   

  	
  ASSOCIATION,
  as Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Raymond Delli Colli

  
	
   

  	
  Name:
  

  	
  Raymond
  Delli Colli

  
	
   

  	
  Title:

  	
  Vice
  President

  



 


[SIGNATURE PAGE TO THIRD
SUPPLEMENTAL INDENTURE]


 


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  SENECA
  GAMING CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Catherine A. Walker

  
	
   

  	
  Name:
  

  	
  Catherine
  A. Walker

  
	
   

  	
  Title:

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  SENECA
  NIAGARA FALLS GAMING

  
	
   

  	
  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Catherine A. Walker

  
	
   

  	
  Name:
  

  	
  Catherine
  A. Walker

  
	
   

  	
  Title:

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  	
   

  
	
   

  	
  SENECA
  TERRITORY GAMING

  
	
   

  	
  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Catherine A. Walker

  
	
   

  	
  Name:
  

  	
  Catherine
  A. Walker

  
	
   

  	
  Title:

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
  SENECA
  ERIE GAMING CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Catherine A. Walker

  
	
   

  	
  Name:
  

  	
  Catherine
  A. Walker

  
	
   

  	
  Title:

  	
  President
  and Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
  LEWISTON
  GOLF COURSE

  
	
   

  	
  CORPORATION

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/
  Catherine A. Walker

  
	
   

  	
  Name:
  

  	
  Catherine
  A. Walker

  
	
   

  	
  Title:

  	
  President
  and Chief Executive Officer

  



 


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