FIRST AMENDMENT TO CONSTRUCTION MANAGEMENT AGREEMENT

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Exhibit 10.22

FIRST AMENDMENT TO CONSTRUCTION MANAGEMENT AGREEMENT

        THIS FIRST AMENDMENT TO CONSTRUCTION MANAGEMENT AGREEMENT (this "First Amendment"), dated as of January 12, 2006, is made by and between SENECA CONSTRUCTION MANAGEMENT CORPORATION ("Construction Manager") and SENECA TERRITORY GAMING CORPORATION ("Owner").

RECITALS

        A.    Pursuant to a Construction Management Agreement dated as of July 14, 2005 between Construction Manager and Owner (the "Construction Agreement"), Owner retained Construction Manager to provide construction management services in connection with the construction of the Casino Hotel (as defined in the Construction Agreement).

        B.    Construction Manager and Owner desire to amend the Construction Agreement in connection therewith, as set forth herein.

        NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, agree as follows:

        1.    DEFINITIONS.    All capitalized terms used but not otherwise defined in this First Amendment shall have the meanings ascribed to them in the Construction Agreement. Unless otherwise specified, all section references herein refer to sections of the Construction Agreement.

        2.    AMENDMENTS.    The Construction Agreement is hereby amended as follows:

        2.1    Amendments to Section 1.1.    

        (a)   The following definitions, as set forth in Section 1.1 of the Construction Agreement, are hereby amended in their entirety to read as follows:

"Event of Default" or "Default" means the occurrence of any of the following events, circumstances or conditions: (i) the failure by either Party to perform or comply with any material agreement, covenant, obligation or other provision contained in this Agreement when such failure has not been remedied (after delivery of written notice thereof) within thirty (30) Days; (ii) the entry of either Party into voluntary or involuntary bankruptcy, receivership or similar protective proceedings; or (iii) the inaccuracy or breach of any material representation or warranty contained in Article X.

"Guaranteed Completion Date" means, as the context may require, the Phase One Guaranteed Completion Date or the Phase Two Guaranteed Completion Date.

"Stated Rate" means an annual rate of interest (compounded monthly) equal to the lesser of (i) the sum of the one year LIBOR rate quoted in the Wall Street Journal (or, in its absence, a similar publication) on the first Day of the applicable month plus two percent (2%) and (ii) the maximum rated permitted under applicable law.

        (b)   Section 1.1 of the Construction Agreement is hereby amended to add the following definitions:

"Architect" is defined in Section 2.2.

"Bonus Target" is defined in Section 5.6.

"Phase" means, as the context may require, Phase One or Phase Two.

"Phase One" means the portion of the Work designated in the Scope of Work as Phase One.

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"Phase One Guaranteed Completion Date" is defined in Section 6.1.

"Phase Two" means the portion of the Work designated in the Scope of Work as Phase Two, and which shall include the Completion of the Casino Hotel for purposes of this Agreement including, without limitation, Section 9.1.

"Phase Two Guaranteed Completion Date" is defined in Section 6.1.

"Substantial Completion" is defined in Section 10.4.

        (c)   Section 1.1 of the Construction Agreement is hereby amended by deleting the definition of "Performance Security."

        2.2    Amendments to Article II.    

        (a)   Section 2.2 of the Construction Agreement is hereby amended to add at the end of such Section 2.2 the following:

"Notwithstanding anything in this Agreement to the contrary, Owner and Construction Manager acknowledge that Owner has retained or will retain one or more architects to perform services in connection with the Casino Hotel (collectively, the "Architect"). Owner shall deliver to Construction Manager a copy of each written agreement for services between Owner and Architect with respect to the Casino Hotel, which agreements shall set forth the duties and responsibilities of the Architect. The Parties acknowledge and agree that the services to be performed by the Architect are separate from, and not a part of, the Work and will be performed by or on behalf of the Architect. Construction Manager shall not be responsible for any actions taken by, or for any omissions of, the Architect pursuant to such agreements when rendering such services; provided, however, that Construction Manager agrees to notify Owner in a timely manner if Construction Manager becomes aware of any errors or omissions of the Architect, or any defects in the services provided by the Architect, in connection with the Casino Hotel."

        (b)   Section 2.3 of the Construction Agreement is hereby amended in its entirety to read as follows:

        "2.3 Use of Contractors.

        (a)   For the purpose of providing the Work, Construction Manager may use independent contractors, who are not employees of either Owner or Construction Manager, to perform the Work in accordance with this Agreement. Construction Manager shall not engage any Contractor to perform part of the Construction Work hereunder unless Construction Manager has a written agreement with that Contractor which meets the requirements set forth in Section 2.3(b). If any proposed written agreement between Construction Manager and any Contractor fails to meet any of the requirements set forth in Section 2.3(b), Construction Manager must submit the proposed agreement to Owner for review and approval. Construction Manager shall not have the right to waive any of the requirements of Section 2.3(b) without the prior written consent of Owner.

        (b)   Use of any Contractor by Construction Manager shall not relieve Construction Manager of any of its obligations under this Agreement and Construction Manager shall, at all times, be responsible for the performance and completion of the Work. All Work performed by a Contractor shall be pursuant to a written agreement between Contractor and Construction Manager which shall:

        (i)    conform to and require the Contractor to perform in accordance with the requirements, terms and conditions of this Agreement;

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        (ii)   be assignable to Owner upon Owner's written request and at no cost to Owner;

        (iii)  preserve and protect the rights of Owner under this Agreement and with respect to the Work to be performed;

        (iv)  require that the Contractor provide and maintain the insurance specified in Schedule 4;

        (v)   require that the Contractor provide the indemnification required by Section 13.2(b); and

        (vi)  obligate Contractor to execute a waiver and release with respect to any lien rights for each payment received by such Contractor for the Work.

        (c)   Prior to entering into any contract with any Contractor, Construction Manager shall have performed a reasonable level of due diligence to determine whether, for the portion of the Work the Contractor is to perform, such Contractor is (i) fully experienced, properly qualified, properly licensed, properly equipped and properly organized; (ii) financially solvent at the time such Contractor enters into a contract with Construction Manager; (iii) authorized to do business in the jurisdictions in which such Contractor will perform; and (iv) familiar with the portion of the Work to be performed.

        (d)   Construction Manager shall provide to Owner a copy of each contract entered into with a Contractor within two (2) Business Days of execution."

        2.3    Amendments to Article III.    

        (a)   The last sentence of Section 3.6 of the Construction Agreement is hereby amended in its entirety to read as follows:

"Construction Manager shall promptly notify Owner of any significant circumstance, event, occurrence or condition (whether then existing or, in Construction Manager's opinion, expected to exist in the near future), including issues related to the acquisition (including eminent domain proceedings) of rights of way and similar matters, of which Construction Manager has knowledge and which could reasonably be expected to have a material adverse effect on the completion of the Casino Hotel pursuant to this Agreement."

        (b)   Section 3.7 of the Construction Agreement is hereby amended in its entirety to read as follows:

        "3.7    Care, Custody and Control of Materials in Transit; Risk of Loss.    It is contemplated that all materials, equipment and supplies incorporated into, or used in connection with, the Casino Hotel will be purchased or furnished for Owner's account. Notwithstanding the foregoing or any passing of title to Owner, as between Owner and Construction Manager, Construction Manager shall retain care, custody and control of, and bear the risk of physical loss or damage to the materials, equipment and supplies that are (a) to be incorporated into, or used in connection with, the Casino Hotel and (b) in transit to the Property, to the extent that such loss is not covered by the insurance required to be maintained by Owner pursuant to Section 13.4(d)."

        2.4    Amendments to Article V.    

        (a)   Section 5.1 of the Construction Agreement is hereby amended to add at the end of such Section 5.1 the following Sentence:

"Construction Manager agrees to implement any reasonable practices or procedures recommended by Owner as a result of any such audit for purposes of improving support for the payment of Construction Manager's billings to Owner."

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        (b)   Section 5.2 of the Construction Agreement is hereby amended in its entirety to read as follows:

        "5.2    Contract Price.    For the performance of the Work during the term of this Agreement, Owner agrees to pay Construction Manager an amount equal to the Costs plus four percent (4%) (the "Contract Price"); provided, however, that the Contract Price may in no event exceed $132,450,000 (the "Guaranteed Maximum Price"), unless otherwise agreed upon by Owner and Construction Manager in accordance with the provisions of Article VII. The Contract Price will be Construction Manager's complete compensation for the Work whether the Work is performed by Construction Manager's personnel or by Contractors."

        (c)   Section 5.3 of the Construction Agreement is hereby amended to add at the end of such Section 5.3 the following:

"If requested by Owner, Construction Manager shall provide Progress Reports to Owner on a weekly, rather than monthly, basis, which Progress Reports shall contain the information set forth in Section 5.3(e), as modified to reflect the weekly delivery thereof. If, in connection with any Request for Payment, Construction Manager fails to provide Owner with Invoices or any supporting materials required under this Section 5.3 in a form satisfying the criteria mutually agreed upon by Owner and Construction Manager, and (i) such failure is not cured by Construction Manager within ten (10) Days after Construction Manager's receipt of written notice from Owner of such failure, and (ii) Owner is thereafter required to use its own accounting personnel, professionals and resources to correct any deficiencies in any Invoice or related materials provided by Construction Manager for purposes of processing any Invoice, then Owner shall be reimbursed, or the fee payable by Owner to Construction Manager shall be reduced, in the following manner. With respect to any Invoice submitted to Owner before January 1, 2006, Owner may charge Construction Manager a reasonable fee (based on a reasonable hourly rate) for the use of such accounting personnel, professionals and resources, which fee may be offset by Owner against Construction Manager's four percent (4%) fee attributable to such Invoice. With respect to any Invoice submitted to Owner on or after January 1, 2006, the fee payable to Construction Manager with respect to any Costs included on such Invoice for which adequate supporting documentation was not provided shall be reduced from four percent (4%) to two percent (2%) of such Costs."

        (d)   Section 5.4 of the Construction Agreement is hereby amended in its entirety to read as follows:

        "5.4    Payments.    Owner shall pay to Construction Manager the amount of each Invoice (less the Retainage described in Section 5.5) within thirty (30) Days of receipt of each such Invoice. If Owner fails to make timely payments of any Invoice amount, or portion thereof, then Construction Manager shall be entitled to collect such unpaid amount, together with interest at the Stated Rate on any unpaid amount. If Owner's failure to pay is a result of a good faith dispute of any Invoice amount and Owner has given notice to Construction Manager that it disputes such amount, and has paid any undisputed amount, within thirty (30) Days of receipt of such Invoice, then interest will be payable only on the unpaid portion that is found or agreed by the Parties to be ultimately due. Interest shall accrue on unpaid amounts for the period beginning on the payment due date of the applicable Invoice and ending upon payment of such amount (together with the interest thereon); provided, however, that interest shall not accrue with respect to any Invoice if Construction Manager has failed to supply, in accordance with Section 5.3, the required supporting documentation for such Invoice, unless such Invoice is not paid within thirty (30) Days of Owner's rece