FINANCIAL SERVICES AGREEMENT
THIS AGREEMENT is effective on this 22nd day of February, 1996 by and
between GAME FINANCIAL CORPORATION OF WISCONSIN, ("Game"), and Ho-Chunk Nation
("Gaming Operator") with its executive offices located at XX Xxx 000, Xxxxx
Xxxxx Xxxxx, XX 00000.
BACKGROUND
A. The Gaming Operator is a separate sovereign Indian Tribe federally
recognized under the laws of the United States. Pursuant to 25 U.S.C. ss.
2701-2721, the Gaming Operator has negotiated and entered into a "Tribal-State
Compact" (the "Compact") with respect to certain Class III gambling conducted at
Ho-Chunk Casino & Bingo, Rainbow Casino & Bingo and Majestic Pines Casino &
Bingo operated by Gaming Operator. Pursuant to the Compact and the above
described statutes, the Gaming Operator is authorized to legally conduct certain
gambling activities in it's Gaming Establishments.
The Gaming Operator wishes to engage Game to provide check cashing and
credit card facilities and services, and related financial services to the
patrons and customers of the Gaming Establishments.
NOW, THEREFORE, subject to the timely satisfaction of the conditions
precedent stated at section 30, the parties mutually agree as follows:
1. DEFINITIONS. When used herein, the term "Gaming Establishment" shall
be applied to the following properties: Ho- Chunk Casino & Bingo in Baraboo,
Rainbow Casino & Bingo in Nekoosa and Majestic Pines Casino & Bingo in Black
River Falls.
2. VALIDITY OF COMPACT. The Gaming Operator hereby represents and
warrants that the Compact concerning all Class III gambling conducted in the
Gaming Establishments currently in full force and effect and that all such
gambling is authorized, legal and will be conducted by the Gaming Establishment
in all respects material to the rights and responsibilities of Game hereunder in
accordance with the Compact and with all regulations, restrictions,
requirements, rules, statutes, ordinances and laws affecting such Class III
gambling. The Gaming Operator will indemnify, defend and hold Game, its
officers, directors, shareholders, agents and employees harmless from any and
all liabilities arising out of or in any manner related to the inaccuracy of the
foregoing representations.
3. SERVICES. (a) Game will provide the following services at
and in the Gaming Establishments:
* Check Cashing of all types including, but not limited to,
Payroll and Personal.
* Mastercard/Visa/Discover Card Quasi-Cash Advances
* Wire Transfers
* ATM Transactions at all Gaming Establishments (excluding
Ho-Chunk Casino & Bingo)
(b) In addition to the services described at
subsection 3(a), Game shall make available to gaming Operator with respect to
each Gaming Establishment and without charge the following services and programs
as more fully described in Exhibit A:
(i) Targeted Coupons;
(ii) Full-Color Custom Drafts with Gaming Establishment's Logos;
(iii) Coupon Maintenance Program;
(iv) Ongoing Marketing Consultation;
(v) Monthly Transaction and Demographic Reports (up to 10);
(vi) CashStat(R) Systems Monitoring;
(vii) Immediate Customer Data Retrieval;
4. EXCLUSIVITY. Game's right to provide the services described in
section 3(a) at each Gaming Establishment during the term of this Agreement is
exclusive. During the term of this Agreement, neither the Gaming Operator nor
any of its managers or affiliates will grant anyone else the right in or within
100 feet of a Gaming Establishment building to provide the services provided by
Game.
5. FEES. Game will charge the following fees to the users of its
services.
TYPE OF SERVICE FEES
--------------- ----
A.) CHECKS
Personal Checks 6% plus change
Government Checks 1.25% plus change
Payroll Checks:
Computerized 3% plus change
Handwritten 5% plus change
Approved Money Orders 5% plus change
B.) CREDIT CARD ADVANCES
GameCash Gold(R)Systems $4 or 6% (whichever is greater)
plus change
GameCash in the Pit(R)Systems $4 or 6% (whichever is greater)
plus change
C.) ATM'S (EXCLUDING HO-CHUNK CASINO & BINGO)
In the event the State of Wisconsin adopts legislation to permit
surcharging on ATM Transactions, Game and Gaming Operator shall
negotiate in good faith a separate ATM agreement to include the
equitable allocation of ATM Surcharge Fees on a basis no less
favorable to Gaming Operator than the allocation of fees otherwise
hereunder.
GameCash ATM Prevailing Bank Rates
Installation
(90-120 day lead time) FREE (No Charge to Nation)
Maintenance/ Service FREE (No Charge to Nation)
Custom Color Screens To Be Determined
Promotional Coupons To Be Determined
Full-Color Custom Receipts with
Casino's Logos To Be Determined
Ongoing Marketing Consultation FREE (No Charge to Nation)
Systems Monitoring FREE (No Charge to Nation)
D.) OTHER
MoneyGram Wire Transfer As Designated in MoneyGram
Fee Schedule
6. A.) PAYMENTS. For the exclusive right to provide the service
described at Subsection 3(a) during the term of this Agreement, Game will pay to
the Gaming Operator a monthly fee equal to [confidential treatment]% of Game's
monthly gross revenues which are derived from Game's operations within the
Ho-Chunk Casino & Bingo and [confidential treatment]% of monthly gross revenues
derived from Game's operations within all other Gaming Establishments. Said fees
shall apply during the first [confidential treatment] months of this Agreement.
Said fees shall increase by [confidential treatment]% (to [confidential
treatment]% and [confidential treatment]% respectively) during the [confidential
treatment] through the [confidential treatment] months of this Agreement, and by
an additional [confidential treatment]% (to [confidential treatment]% and
[confidential treatment]% respectively) after the [confidential treatment] month
of this Agreement. For example, if Game's annual gross revenues for 1996 are
$[confidential treatment] at Ho-Chunk Casino & Bingo and annual gross revenues
are $[confidential treatment] at the other three Gaming Establishments, Game
will pay the Gaming Establishment $[confidential treatment] annually or
$[confidential treatment] per month, assuming that gross revenue is received in
equal monthly amounts. Such monthly gross revenues shall be determined in
accordance with generally accepted accounting principals on a monthly basis. The
amount owing to the Gaming Operator will be paid in immediately available funds
within 20 (twenty) days after the end of each calendar month. Game shall
maintain adequate books and records with respect to the gross revenue, income,
expenses and profits with respect to the Game facility conducted at each Gaming
Establishment, and will make such books and records available for inspection,
review and audit by the Gaming Operator or is duly authorized representatives,
at the Gaming Operator's sole cost and expense upon 48 hours telephone notice to
Game by the Gaming Operator. However, if such an audit discloses a deficiency in
reported gross revenue in excess of 1% of such gross revenue, then the cost for
such audit will be paid by Game. Game shall not combine or commingle any
accounts of the Gaming Establishment with any other facility that Game may
manage or account that Game may maintain.
B.) [confidential treatment]
7. TELLER FACILITY. A suitable area in each Gaming Establishment from
which Game will provide its services shall be provided by the Gaming Operator
[confidential treatment]. Game shall be deemed to have and is hereby granted by
the Gaming Operator a limited right to enter upon, occupy and use such portion
of the Gaming Establishment as Gaming Operator my designate for use as Game's
teller facility during the term of this Agreement. Such area for Game's use may
be changed from time to time by Gaming Operator at is sole discretion. Game will
consult with Gaming Operator regarding the adequacy of the teller space to be
provided to Game in the Gaming Establishment for it to provide the services
outlined above. Such space shall be approximately an 8-foot by 12-foot teller
facility with appropriate telephone lines and electrical outlets and a small
office adjacent thereto. Signage and coloration are subject to approval of
Gaming Operator management, which approval will not be unreasonably withheld.
[confidential treatment]
8. EQUIPMENT/PERSONNEL. Game will furnish, at its cost, all equipment
and personnel for the operation of the check cashing/financial services facility
in each Gaming Establishment. Game will provide uniforms of the Gaming
Establishment's choice for Game personnel. Upon the expiration or termination of
this Agreement, Game shall be entitled to remove, at its cost, all equipment,
machinery, facilities and furniture installed or purchased by Game.
All equipment, machinery or furniture installed or placed in the Gaming
Establishment by Game (collectively, the "Equipment") shall be and remain the
property of Game, solely and exclusively, and the Gaming Operator shall have no
right, claim or interest therein or thereto. The Gaming Operator shall not take
any action or engage in any activity which might reasonably cause or allow any
person to believe that any of the Equipment is owned by the Gaming Operator.
Without limiting the generality of the foregoing, the Gaming Operator shall not
remove any label, insignia or lettering which may have been placed upon any
Equipment to indicate Game's ownership thereof and the Gaming Operator shall not
purport to grant any security interest in or lien against any Equipment. The
Gaming Operator shall, from time to time, execute and provide to Game
acknowledgment of Game's ownership of the Equipment and UCC-1 Financing
Statements to be filed for notice purposes in such public offices as Game may
determine.
9. UNCOLLECTIBLE CHECKS. The Gaming Operator and the Gaming
Establishments will not be responsible or liable in any manner to Game or any
other party for the collection, payment or reimbursement of any checks returned
"NSF", "account closed" or other uncollectible checks or instruments. Game
assumes all risks with respect to the collection of checks or other instruments
cashed by Game. However, Game's assumption of this business risk is based upon
the accuracy of the representation by the Gaming Establishment contained in
paragraph 2 hereof and if any check or other instrument should be uncollectible
by reason of any gambling conducted by the Gaming Establishment in any illegal
or unauthorized manner, then the foregoing exculpation shall not apply.
10. CASHING LIMITS.
New (non approved) Customers [confidential treatment]
New (approved) Customers [confidential treatment]
Low Volume Users [confidential treatment]
High Volume Users [confidential treatment]
Notwithstanding the foregoing, Game reserves the right to (a) refuse service to
any person who it believes to be a credit risk or (b) reduce the maximum cashing
limit available to any such person.
11. SERVICES FOR GAMING OPERATOR EMPLOYEES. Game will cash payroll
checks issued to the Gaming Operator's employees in accordance with the fee
schedule described in Section 5. In addition, Game will perform other reasonable
requested financial services listed in Subsection 3(a) hereof for the Gaming
Operator and its personnel, in a manner as may be agreed upon by the parties.
12. CASH. Game will provide its own cash in amounts sufficient to carry
out its obligations under this Agreement.
13. HOURS OF OPERATION. Game will staff each Gaming Establishment with
such number of adequately trained personnel as shall be required to meet the
reasonably foreseeable service needs of such Gaming Establishment at all times,
and shall maintain at least one Game employee at the teller station at all times
each Gaming Establishment is operating, unless it is otherwise mutually agreed
by the Gaming Operator and Game that shorter hours are acceptable. Such
agreement must be in writing and signed by the Director of Business.
14. INFORMATION - CONFIDENTIALITY. Game will provide information
reasonably requested by the Gaming Operator from Game's database concerning
customers of each Gaming Establishment using Game's services (the "Database").
Game will not release or disclose any information from the database to any
person or entity, including any owner, operator, manager or employee of any
gambling establishment, other that the Gaming Operator, without the prior
written consent of the Gaming Operator; provided, however, that Game may
disclose any information from the Database if required to do so by any
governmental authority having jurisdiction and may use any information from the
Database as necessary in connection with Game's pursuit of any rights that it
may have against any customer of any Gaming Establishment. Game's obligation of
confidentiality with respect to Gaming Establishment customers shall survive any
termination of this agreement indefinitely. Upon any termination of this
Agreement, Game shall provide Gaming Operator copies of all information
contained in the Database. Notwithstanding the foregoing provisions, Game will
not be restricted from using the Database to establish credit risks and other
necessary operational procedures at its Gaming Locations during the term of this
Agreement. Gaming Operator agrees not to disclose to any person or entity,
including any owner, operator, manager or employee of any other gaming
establishment, the terms and conditions outlined in this Agreement.
15. EMPLOYEES. Game shall, during the term of this Agreement, give
preference, in accordance with the applicable provisions of the Ho-Chunk
Nation's Tribal Employment Rights Ordinance, in recruiting, hiring, training,
promotion, and all other elements of employment to qualified members of the
Ho-Chunk Nation, or Native Americans, their spouses, and children in all job
categories of Game's operation at the Gaming Establishment's, including
management positions. In order to fulfill this requirement, Game shall consult
with the Tribal Rights Office (TERO) and will use its best efforts to fill all
open employment positions with qualified applicants listed by the Ho-Chunk
Nation Labor Department and TERO office as seeking employment. Game agrees to
pay any TERO fee generally imposed on employers operating on Ho-Chunk Nation
trust Lands, and acknowledges that the amount of such fee under the currently
effective TERO Ordinance is 2% gross payroll paid on a quarterly basis.
16. TERM; CANCELLATION. This Agreement shall commence on the
installation date as hereafter defined and shall continue for an initial one
year term. Thereafter, the term of this Agreement shall automatically renew for
additional consecutive [confidential treatment] year term; subject to
cancellation by either party at the end of the initial one year term and at the
end of each said [confidential treatment] year term by written notice given at
least ninety (90) days prior to the end of the then effective term. This
Agreement shall be subject to cancellation only as provided in this Section 16
hereof and in Section 18 and 23 below. Game's right to provide the services
detailed in Subsection 3(a) hereof at the Gaming Establishment shall be
exclusive during the term of this agreement and prior to the cancellation or
termination thereof as provided at Section 4.
17. NOTICES AND OTHER COMMUNICATIONS. Any notice, request,
communication or other transmission of information between the parties hereto
shall be deemed duly sent and made if sent by first class mail, postage prepaid,
return receipt requested, addressed as follows:
If to Game: Xxxx X. Xxxxxx
Game Financial Corporation
00000 X. Xxx. 00, Xxxxx 000
Xxxxxxxx, XX 00000-0000
If to the Gaming Establishment: Ho-Chunk Nation
XX Xxx 000
Xxxxx Xxxxx Xxxxx, XX 00000
Attn: Executive Director of Business
With copies to: Ho-Chunk Nation
XX Xxx 000
Xxxxx Xxxxx Xxxxx, XX 00000
Attn:: Attorney General
Ho-Chunk Nation
XX Xxx 000
Xxxxx Xxxxx Xxxxx, XX 00000
Attn: Legislative Counsel
18. REMEDIES FOR BREACH. Except as noted below, if either party should
materially violate any of the terms or provisions of this Agreement, and such
violation is not cured or corrected within 30 days following the receipt of
written notice thereof from the other party, such other party may, at its
option, cancel and terminate this Agreement upon expiration of said thirty (30)
day cure period. Such right of cancellation shall not be an exclusive remedy and
shall be in addition to all other remedies available at law or in equity.
19. OPERATIONAL PROCEDURES. Upon receipt of a signed contract and upon
commencement of operations, Game will provide to Gaming Establishment a copy of
the operating procedures manual.
20. REQUIRED REPORTING AND AVAILABILITY OF INFORMATION
DAILY CASH REPORTS
SEE EXHIBIT B
Daily recaps showing complete operational details will be
provided by Game to Gaming Operator with monthly statement.
Monthly Statements
SEE EXHIBIT C
Unaudited monthly financial statements and a schedule of fee
receipts upon which the fee is based will be provided to
Nation with each monthly fee payment pursuant to Section 6.
Game agrees to allow Nation to independently audit Game
operations within any of the Nation's casinos as necessary in
addition to the financial audit provided for in Section 6.
Gaming Operator shall, upon 48 hour telephone notice provided
to Game, have the right to access and audit of all books and
records relating specifically to any operation conducted by
Game for as covered under this Agreement. Game shall provide
access to all bank records, systems utilized in transaction
processing, all financial reports relating to any Operator
locations, and any other such do amounts determined necessary
by Gaming Operator. Gaming Operator shall notify Game of any
underpayment of overpayment and the parties agree to settle
the underpayment of overpayment within thirty (30) days of
such notification. This provision shall survive any
termination of the Agreement for a period of six (6) months
after termination or until settlement in accordance herewith
is completed.
20. REQUIRED REPORTING AND AVAILABILITY OF INFORMATION (CONTINUED)
CUSTOMER LIST
SEE EXHIBIT D
Game will provide Gaming Operator a customer list at any time
on demand in hardcopy report, mailing labels or electronic
format to include all dollar amounts, access patterns, and
addresses of all credit card customers from any Gaming
Establishment. A listing of all check cashing patrons
including customer addresses will be provided within 1 week of
the initial request. Under no circumstances will any data
collected at the Gaming Establishments be divulged to any
entity outside of Game and the Gaming Operator.
21. INSTALLATION OF EQUIPMENT. Game will be prepared to install its
Equipment and begin providing its services described herein at each Gaming
Establishment on or before 30-45 days from mutual acceptance of this agreement,
(the "Installation Date"). In reliance thereon, Gaming Operator shall notify the
entity currently providing check cashing service at the Gaming Establishments
that its services and license to occupy each Gaming Establishment shall cease on
the Installation Date. If the current check cashing provider ceases operations
prior to the Installation Date, Game will immediately upon notice from Gaming
Operator, commence installation of the Equipment and providing the services
described at Subsection 3(a) as promptly as feasible, including the provision of
such services on a temporary or interim basis without fully activating the
Equipment to the extent adequate access to Game's data can otherwise be
arranged.
22. CRIMINAL AND CREDIT INVESTIGATION. Game agrees that all of its
officers, director, shareholders of five percent (5%) or more, partners and key
employees shall consent to and cooperate with any and all regulatory background
investigations conducted by the Ho-Chunk Nation, the State of Wisconsin, the
Federal Bureau of Investigation, the Bureau of Indian Affairs, the National
Indian Gaming Commission, or any law enforcement authority pursuant to
applicable law, and shall pay any fee imposed by law in connection therewith.
All background investigations shall meet the standard of investigation imposed
under the IGRA, the Compact, and the Amended and Restated Gaming Ordinance of
the Ho-Chunk Nation as applicable. The Gaming Operator shall provide Game with a
copy of any amendments to the Amended an Restated Gaming Ordinance when such
amendments are enacted. Game agrees to cooperate with any reasonable financial
and credit investigations and to disclose any information requested by the
Ho-Chunk Nation or Bureau of Indian Affairs which would facilitate such
investigations. The results of any and all investigations may be disclosed to
the Ho-Chunk Nation Gaming Commission ("Commission") for review to ascertain
whether Game creates or enhances the danger of unsuitable, unfair or illegal
activities within the conduct of gaming. Such a finding shall be grounds for the
Commission to find Game unsuitable for holding a Gaming License, if required by
law. The Gaming Operator agrees to keep confidential any and all information
received from the investigation reports and shall not disclose such information
to any third party, with the exception of any bona fide request from a Ho-Chunk
Nation, State, Federal or Provincial governmental regulatory agency, without the
consent of Game.
23. REGULATORY REQUIREMENTS. Game warrants that it meets all regulatory
requirements of the State of Wisconsin, including, but not limited to, obtaining
any necessary approvals from the Wisconsin Gaming Commission, Wisconsin Banking
Commission, and Wisconsin Department of Revenue. The loss or suspension of any
necessary regulatory license, approval or good standing shall be grounds for the
termination of this Agreement by the Gaming Operator upon written notification
to Game.
24. APPLICABLE LAW. This Agreement and all rights and obligations
herein shall be governed in accordance with the laws of the Ho-Chunk Nation.
25. JURISDICTION. Notwithstanding anything in this Agreement to the
contrary, nothing herein is intended to be, nor shall be construed as, a grant
of jurisdiction from the Ho-Chunk Nation to the State of Wisconsin or any other
civil authority of the United States beyond that provided by applicable law.
26. ENTIRE AGREEMENT. This Agreement constitutes the entire
understanding and agreement between the parties and supersedes and all prior
negotiation, correspondence and undertakings between the parties with respect to
the subject matter herein. No representation or condition which relate to the
subject matter hereof and which is not expressed in the Agreement shall be given
any effect unless set forth in writing and signed by the party to be charged
subsequent to the Agreement.
27. FORUM. Game hereby consents and agrees that any legal action or
proceeding arising under the terms of this Agreement shall be maintained and
determined by the Courts of the Ho-Chunk Nation.
28. PERFORMANCE OF SERVICES. Game shall perform its obligations
hereunder, including the services that it is to render pursuant to Section 3, in
manner that meets or exceeds industry standards for such services and in
conformance with applicable law.
29. SOVEREIGN IMMUNITY. Nothing contained herein shall be constructed
as a waiver of immunity from legal suit possessed by Gaming Operator as a
sovereign Indian Nation, and Gaming Operator hereby reserves and asserts its
immunity to the full extent provided by law, except that Gaming Operator agrees
that Game may enforce the obligations explicitly undertaken by Gaming Operator
by the written terms of this Agreement and waives its immunity to such extent,
and only to such extent. This limited waiver does not apply to any extra-textual
rights or claims that Game may purport to have, whether in contract, tort or
otherwise. The limited waiver of immunity with respect to Gaming Operator's
explicit written undertakings pursuant to this Agreement is personal to Game, an
may not be assigned or otherwise utilized in any manner by any other person or
entity.
30. CONDITIONS PRECEDENT. The agreements stated herein are subject to
the satisfaction of the following conditions precedent:
(a) delivery by Game to Gaming Operator of photocopies of the licenses
issued to Game by the Wisconsin Banking Commission to carry on the
business described at Section 3(a) at each of the Gaming Establishments
within 30 days of this Agreement. The time periods stated above for
satisfaction of the foregoing conditions may be extended by mutual
agreement of the parties and Gaming Operator may waive the condition at
paragraph (b) at its sole discretion. If not waived or the period for
satisfaction extended, upon failure to timely meet any of the foregoing
conditions, either party may notify the other of the cancellation of
this Agreement, and it shall thereafter be considered void and of no
effect.
31. TRANSITION PLAN. Gaming Operator and Game agree that should Gaming
Operator or its designee desire to perform any or all of the services provided
by Game under this Agreement, upon the expiration of the initial or any renewal
Agreement term, Game will cooperate to the fullest extent possible to assist
Gaming Operator and provide for a mutually cooperative transition of services;
including without limitation, instructing the designees of Gaming Operator in
the management and performance of all aspects of the services to be assumed by
Gaming Operator or its designee, including counter service, data management,
funds management and collections, during the ninety (90) days preceding the
termination of this Agreement. Such instruction shall allow the trainees a wide
opportunity to observe and participate in the management and operations
functions for which they are trained in order that they may be fully prepared to
assume responsibility for those functions upon termination of this Agreement.
Game and Gaming Operator acknowledge that preparation of members and designees
of Gaming Operator to manage and operate the services provided by Game at the
Gaming Establishments hereunder is an ongoing process, and Game agrees to
cooperate and consult with Gaming Operator throughout the term of this
Agreement, and to provide suitable training in accordance with the program
described in Game's employee training manual, a copy of which will be provided
upon the commencement of Game's operation in the Gaming Establishments. Game
will also provide the opportunity to observe and study the operations of Game at
the Gaming Establishments to those persons designated by Gaming Operator in
order that Gaming Operator, directly, or through a designee, may prepare to
assume operation of any or all services provided by Game under this Agreement,
if it chooses to do so at the termination of this Agreement.
32. AUTHORITY. Each of the undersigned individuals executing this
document respectively on behalf of the Gaming Operator, and Game hereby
represent and warrant that they have been duly authorized by all necessary
corporate and/or tribal action to enter into this Agreement on behalf of the
respective parties and that, once so executed by such individuals, this
Agreement shall be binding upon and enforceable against the respective parties
hereto.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement, as of the
date first above written.
GAME FINANCIAL CORPORATION OF WISCONSIN, (Game)
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------------
Xxxx X. Xxxxxx, President
Date: 2/22/96
---------------------------------------------
--------------------------------------------------
Ho-Chunk Nation., Gaming Operator
By: /s/ Choris X. Xxxx, Xx.
-----------------------------------------------
Xxxxxxx X. Xxxx, Xx., President
Date: 2/26/96 (confirming signed contract
-------------------- delivered by Fax 2/22/96)
Game Financial Corporation hereby guarantees the timely performance of
the duties and obligations undertaken by its subsidiary, Game Financial
Corporation of Wisconsin, under the Agreement in accordance with its terms.
GAME FINANCIAL CORPORATION
BY:/s/ Xxxx X. Xxxxxx
---------------------------------------------------
Xxxx X. Xxxxxx, President
