As filed with the Securities and Exchange Commission on December 16, 1996.
Registration No. 333-15769
U.S. SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1 TO FORM S-1
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
GAME FINANCIAL CORPORATION
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
MINNESOTA
(State or other jurisdiction of
incorporation or organization)
7398
(Primary Standard Industrial
Classification Code Number)
41-1684452
(I.R.S. Employer Identification Number)
13705 FIRST AVENUE NORTH
MINNEAPOLIS, MINNESOTA 55441
TELEPHONE: (612) 476-8500
WWW.GAMECASH.COM
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF PRINCIPAL EXECUTIVE OFFICES)
GARY A. DACHIS, PRESIDENT
13705 FIRST AVENUE NORTH
MINNEAPOLIS, MINNESOTA 55441
TELEPHONE: (612) 476-8500
TELECOPIER: (612) 476-8402
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER,
INCLUDING AREA CODE, OF AGENT FOR SERVICE)
Copies of communications to:
ERIC O. MADSON, ESQ. JOHN T. KRAMER, ESQ.
WINTHROP & WEINSTINE, P.A. DORSEY & WHITNEY LLP
3000 DAIN BOSWORTH PLAZA 220 SIXTH STREET SOUTH
60 SOUTH SIXTH STREET MINNEAPOLIS, MINNESOTA 55402
MINNEAPOLIS, MINNESOTA 55402-4430 TELEPHONE: (612) 340-8702
TELEPHONE: (612) 347-0622 TELECOPIER: (612) 340-8738
TELECOPIER: (612) 347-0600
Approximate date of commencement of proposed sale to the public:
AS SOON AS PRACTICABLE AFTER THE REGISTRATION STATEMENT BECOMES EFFECTIVE.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 13. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The following table sets forth the estimated expenses to be borne by the Company
in connection with the issuance and distribution of the shares of Common Stock
offered hereby:
SEC registration fee $ 7,061
NASD filing fee 2,830
Nasdaq NNM Listing Fee 17,500
Legal fees and expenses 90,000
Accounting fees and expenses 25,000
Representatives' expense
allowance 65,000
Blue Sky fees and expenses 6,000
Printing expenses 50,000
Transfer agent fees and expenses 5,000
Miscellaneous 31,609
TOTAL $300,000
Each amount set forth above, except the SEC registration fee and the NASD filing
fee, is estimated.
ITEM 14. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 302A.521 of the Minnesota Statutes provides that unless prohibited or
limited by a corporation's articles of incorporation or bylaws, the Company must
indemnify its current and former officers, directors, employees and agents
against expenses (including attorney's fees), judgments, penalties, fines and
amounts paid in settlement and which were incurred in connection with actions,
suits, or proceedings in which such persons are parties by reason of the fact
that they are or were an officer, director, employee or agent of the
corporation, if they (i) have not been indemnified by another organization, (ii)
acted in good faith, (iii) received no improper personal benefit, (iv) in the
case of a criminal proceeding, had no reasonable cause to believe the conduct
was unlawful, and (v) reasonably believed that the conduct was in the best
interests of the corporation. Section 302A.521 also permits a corporation to
purchase and maintain insurance on behalf of its officers, directors, employees
and agents against any liability which may be asserted against, or incurred by,
such person in their capacities as officers, directors, employees and agents of
the corporation, whether or not the corporation would have been required to
indemnify the person against the liability under the provisions of such section.
Article VI of the Company's Bylaws provides that the directors, officers,
committee members of the Company and other persons shall have the rights to
indemnification provided by Section 302A.521 of the Minnesota Statutes. In
addition, Article VIII of the Company's Articles of Incorporation provides that
no director of the Company shall be personally liable to the Company or its
shareholders for monetary damages for breach of fiduciary duty as a director,
except (1) for any breach of the director's duty of loyalty to the Company or
its shareholder; (2) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law; (3) under Minnesota
Statutes, Sections 302A.559 or 80A.23; or (4) for any transaction from which the
director derives an improper personal benefit.
The form of Underwriting Agreement (Exhibit 1.1 hereto) contains provisions by
which the Underwriters have agreed to indemnify the Company, each person, if
any, who controls the Company within the meaning of Section 15 of the Securities
Act, each director of the Company, and each officer of the Company who signs
this Registration Statement, with respect to information furnished in writing by
or on behalf of the Underwriters for use in this Registration Statement.
ITEM 15. RECENT SALES OF UNREGISTERED SECURITIES
During the past three years, the Registrant has issued the following securities
pursuant to exemptions from registration under the Securities Act:
1. On February 24, 1994, the Company issued 1,760,000 shares of Common Stock to
its three existing shareholders pursuant to a 177-for-one stock split effected
as a stock dividend. No cash consideration was paid for such shares. No
commissions were paid in connection with the issuance of such shares. The
issuance of such shares was not deemed a "sale" for purposes of the Securities
Act.
2. Pursuant to the reorganization described in the Prospectus included in
this Registration Statement, the Company issued 30,000 shares of Common Stock
to the shareholders of Game Financial Corporation of Wisconsin ("GFW") and
Game Financial Corporation of Mississippi ("GFM"), which were under common
ownership with the Company. The shares were issued in exchange for the shares of
common stock of GFW and GFM which were surrendered in the Reorganization; no
cash consideration was paid. No commissions were paid in connection with the
issuance of shares in the Reorganization. The transaction was made in reliance
on the exemption from registration provided in Section 4(2) of the Securities
Act, as a transaction not involving a public offering. See "Certain
Transactions."
3. On September 26, 1995, the Company issued 867,947 shares of Common Stock to
its existing shareholders pursuant to a five-for-four stock split effected as a
stock dividend. No cash consideration was paid for such shares. No commissions
were paid in connection with the issuance of such shares. The issuance of the
shares was not deemed a "sale" for purposes of the Securities Act.
4. On June 21, 1996, the Company issued 869,482 shares of Common Stock to its
existing shareholders pursuant to a five-for-four stock split effected as a
stock dividend. No cash consideration was paid for such shares. No commissions
were paid in connection with the issuance of such shares. The issuance of such
shares was not deemed a "sale" for purposes of the Securities Act.
5. In April 1996, the Company issued an aggregate of 132,813 shares to three
persons pursuant to the exercise of Common Stock purchase warrants granted to
the underwriter of its initial public offering in March 1994. No commissions
were paid in connection with the issuance of such shares. The transaction was
made in reliance on the exemption from registration provided in Section 4(2) of
the Securities Act, as a transaction not involving a public offering.
The certificates representing the shares issued or to be issued in the
transactions described above contain, or will contain, a restrictive legend
stating that the shares may not be offered, sold or transferred other than
pursuant to an effective registration statement under the Securities Act, or an
exemption from such registration requirements.
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Listing of Exhibits
The following exhibits are hereby filed as part of this Registration Statement
on Form S-1 or incorporated by reference.
EXHIBIT
NO. DESCRIPTION
1.1 Form of Underwriting Agreement
3.1 Articles of Incorporation of Game Financial Corporation, as amended
3.2 Bylaws of Game Financial Corporation, as amended
5.1 Opinion and Consent of Winthrop & Weinstine, P.A.
10.1 Game Financial Corporation 1994 Stock Option and Incentive Plan, as
amended *
10.2 Employment Agreement between the Company and Gary A. Dachis *
10.2.1 Amendment to Employment Agreement between the Company and Gary A.
Dachis *
10.3 Form of Non-Competition Agreement
10.4 Form of Financial Services Agreement
10.5 Form of Cash Advance Agreement
10.6 Sublease Agreement between the Company and Grand Casinos, Inc.
10.7 Financial Services Agreement between Game Financial Corp. of
Louisiana and Coushatta Indian Tribe of Louisiana +
10.8 Cash Advance Agreement between Game Financial Corp. of Mississippi
and Grand Casinos of Mississippi, Inc. -- Gulfport +
10.9 Cash Advance Agreement between Game Financial Corp. of Mississippi
and Grand Casinos of Mississippi, Inc. -- Biloxi +
10.10 Financial Services Agreement between Game Financial Corp. of
Louisiana and The Tunica Biloxi Indian Tribe of Louisiana +
10.11 Financial Services Agreement between Game Financial Corporation and
The Corporate Commission of the Mille Lacs Band of Ojibwe
(Hinckley) +
10.12 Financial Services Agreement between Game Financial Corporation and
The Corporate Commission of the Mille Lacs Band of Ojibwe (Mille
Lacs) +
10.13 Cash Advance Agreement between Game Financial Corporation and
Stratosphere Corporation +
10.14 Cash Advance Agreement between Game Financial Corporation of
Mississippi and B.L. Development Corporation +
10.15 Financial Services Agreement between GameCash, Inc. and Soaring
Eagle Gaming +
10.16 Automatic Teller Machine Supply and Servicing Agreement dated
August 2, 1996 between GameCash, Inc. and Soaring Eagle Gaming +
10.17 Financial Services Agreement dated February 22, 1996 between Game
Financial Corporation of Wisconsin and Ho-Chunk Nation +
11.1 Statement re Computation of Earnings Per Share
21.1 Subsidiaries of the Company
23.1 Consent of Winthrop & Weinstine, P.A. (included in Exhibit 5.1)
23.2 Consent of Lurie, Besikof, Lapidus & Co., LLP, Independent
Certified Public Accountants
24.1 Powers of Attorney
27 Financial Data Schedule
* Management Contract
+ Confidential treatment has been requested for portions of this exhibit.
(b) Financial Statement Schedules
All financial statement schedules are omitted because the information is
presented in the consolidated financial statements included herein, or the
schedule is not required.
ITEM 17. UNDERTAKINGS
(a) Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers, and controlling persons of the
registrant pursuant to the foregoing provisions or otherwise, the registrant has
been advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit, or proceeding) is asserted by such
director, officer, or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(b) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act, the
information omitted from the form of prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant under Rule 424(b)(1), or (4) or 497(h) under
the Securities Act shall be deemed to be part of this Registration Statement as
of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act, each
post-effective amendment that contains a form of prospectus shall be deemed to
be a new Registration Statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed the initial bona
fide offering thereof.
ITEM 18. FINANCIAL STATEMENTS AND SCHEDULES
None.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant has
duly caused this Amendment No. 1 to Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized, in the City of Plymouth,
State of Minnesota, on December 16, 1996.
GAME FINANCIAL CORPORATION
By: /S/ GARY A. DACHIS
Gary A. Dachis
PRESIDENT AND CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this Amendment No. 1
to Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
/s/ GARY A. DACHIS President, Chief Executive December 16, 1996
Gary A. Dachis Officer, Secretary, Treasurer, and
Director (Principal Executive
Officer)
/s/ * Vice President Information Systems December 16, 1996
Stephen P. Weisbrod and Development, and Director
/s/ JEFFREY L. RINGER Vice President Finance and Chief December 16, 1996
Jeffrey L. Ringer Financial Officer (Principal
Financial and Accounting Officer)
/s/ * Director December 16, 1996
Paul H. Ravich
* /s/ GARY A. DACHIS Attorney-in-fact December 16, 1996
Gary A. Dachis
</TABLE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NO. DESCRIPTION METHOD OF FILING
<S> <C> <C>
1.1 Form of Underwriting Agreement Filed as Exhibit 1.1 to Form S-1 Registration Statement
on November 8, 1996, File No. 333-15769
3.1 Articles of Incorporation of Game Financial Corporation, Filed as Exhibit 3.1 to Form SB-2 Registration
as amended Statement on February 24, 1994, File No. 33-75730C
and incorporated herein by reference.
3.2 Bylaws of Game Financial Corporation, as amended Filed as Exhibit 3.2 to Form SB-2 Registration
Statement on February 24, 1994, File No. 33-75730C
and incorporated herein by reference.
5.1 Opinion and Consent of Winthrop & Weinstine, P.A. Filed as Exhibit 5.1 to Form S-1 Registration Statement
on November 8, 1996, File No. 333-15769
10.1 Game Financial Corporation 1994 Stock Option and Filed as Exhibit 10.1 to Form SB-2 Registration
Incentive Plan, as amended * Statement on February 24, 1994, File No. 33-75730C
and incorporated herein by reference.
10.2 Employment Agreement between the Company and Gary A. Filed as Exhibit 10.3 to Form SB-2 Registration
Dachis * Statement on February 24, 1994, File No. 33-75730C
and incorporated herein by reference.
10.2.1 Amendment to Employment Agreement between the Company and Filed as Exhibit 10.2.1 to Form S-1 Registration
Gary A. Dachis * Statement on November 8, 1996, File No. 333-15769
10.3 Form of Non-Competition Agreement Filed as Exhibit 10.4 to Form SB-2 Registration
Statement on February 24, 1994, File No. 33-75730C
and incorporated herein by reference.
10.4 Form of Financial Services Agreement Filed as Exhibit 10.5 to Form SB-2 Registration
Statement on February 24, 1994, File No. 33-75730C
and incorporated herein by reference.
10.5 Form of Cash Advance Agreement Filed as Exhibit 10.6 to Form SB-2 Registration
Statement on February 24, 1994, File No. 33-75730C
and incorporated herein by reference.
10.6 Sublease Agreement between the Company and Grand Casinos, Filed as Exhibit 10.6 to Form S-1 Registration Statement
Inc. on November 8, 1996. File No. 333-15769
10.7 Financial Services Agreement between Game Financial Corp. Filed as Exhibit 10.4 to Amendment No. 2 to Form
of Louisiana and Coushatta Indian Tribe of Louisiana + S-3 Registration Statement on February 28, 1996,
File No. 33-98486 and incorporated herein by
reference.
10.8 Cash Advance Agreement between Game Financial Corp. of Filed as Exhibit 10.5 to Amendment No. 2 to Form
Mississippi and Grand Casinos of Mississippi, Inc. -- S-3 Registration Statement on February 28, 1996,
Gulfport + File No. 33-98486 and incorporated herein by
reference.
10.9 Cash Advance Agreement between Game Financial Corp. of Filed as Exhibit 10.6 to Amendment No. 2 to Form
Mississippi and Grand Casinos of Mississippi, Inc. -- S-3 Registration Statement on February 28, 1996,
Biloxi + File No. 33-98486 and incorporated herein by
reference.
10.10 Financial Services Agreement between Game Financial Corp. Filed as Exhibit 10.7 to Amendment No. 2 to Form
of Louisiana and The Tunica Biloxi Indian Tribe of S-3 Registration Statement on February 28, 1996,
Louisiana + File No. 33-98486 and incorporated herein by
reference.
10.11 Financial Services Agreement between Game Financial Filed as Exhibit 10.8 to Amendment No. 2 to Form
Corporation and The Corporate Commission of the Mille Lacs S-3 Registration Statement on February 28, 1996,
Band of Ojibwe (Hinckley) + File No. 33-98486 and incorporated herein by
reference.
10.12 Financial Services Agreement between Game Financial Filed as Exhibit 10.9 to Amendment No. 2 to Form
Corporation and The Corporate Commission of the Mille Lacs S-3 Registration Statement on February 28, 1996,
Band of Ojibwe (Mille Lacs) + File No. 33-98486 and incorporated herein by
reference.
10.13 Cash Advance Agreement between Game Financial Corporation Filed as Exhibit 10.10 to Amendment No. 2 to Form
and Stratosphere Corporation + S-3 Registration Statement on February 28, 1996,
File No. 33-98486 and incorporated herein by
reference.
10.14 Cash Advance Agreement between Game Financial Corporation Filed as Exhibit 10.11 to Amendment No. 2 to Form
of Mississippi and B.L. Development Corporation + S-3 Registration Statement on February 28, 1996,
File No. 33-98486 and incorporated herein by
reference.
10.15 Financial Services Agreement between GameCash, Inc. and Filed electronically herewith.
Soaring Eagle Gaming +
10.16 Automatic Teller Machine Supply and Servicing Agreement Filed electronically herewith.
between GameCash, Inc. and Soaring Eagle Gaming +
10.17 Financial Services Agreement between Game Financial Filed electronically herewith.
Corporation of Wisconsin and Ho-Chunk Nation +
11.1 Statement re Computation of Earnings Per Share Filed as Exhibit 11.1 to Form S-1 Registration Statement
on November 8, 1996. File No. 333-15769
21.1 Subsidiaries of the Company Filed as Exhibit 21.1 to Form 10K-SB for the year
ended December 31, 1995 and incorporated herein by
reference.
23.1 Consent of Winthrop & Weinstine, P.A. Included in Exhibit 5.1. TO Form S-1 Registratioon
statement filed on November 8, 1996, File No. 333-15769
23.2 Consent of Lurie, Besikof, Lapidus & Co., LLP, Independent Filed as exhibit 23.2 to Form S-1 Registration
Statement on November 8, 1996, File No. 333-15769
Certified Public Accountants
24.1 Powers of Attorney Filed as Exhibit 24.1 to Form S-1 Registration Statement
on November 8, 1996. File No. 333-15769
27 Financial Data Schedule Filed as Exhibit 27 to Form S-1 Registration Statement
on November 8, 1996. File No. 333-15769
</TABLE>
FINANCIAL SERVICES AGREEMENT
THIS AGREEMENT is effective on this 8th day of Jan., 1996 by and
between GAMECASH INC., A MINNESOTA CORPORATION ("Game"), and Soaring Eagle
Gaming, a chartered enterprise of the Saginaw Chippewa Indian Tribe of Michigan
(a federally recognizes tribe), ("Gaming Establishment") located at 2395 South
Leaton, Mt. Pleasant, MI 48858.
BACKGROUND
A. The Saginaw Chippewa Indian Tribe of Michigan is a sovereign
Indian Tribe recognized by the United States of America and the State of
Michigan. The Tribe has negotiated and entered into a "Tribal-State Compact"
with the State of Michigan pursuant to the Indian Gaming Regulatory Act of 1988
(25 U.S.C. ss .2701 et seq). Under the Tribal-State Compact, the Tribe is
authorized to conduct Class III gaming on "Indian Lands" as described therein.
The Gaming Establishment wishes to engage Game to provided check cashing and
credit card quasi-cash advance facilities and services, and related financial
services to the patrons and customers of the Gaming Establishment.
Property Physical Address(es): Soaring Eagle Casino
2395 South Leaton
Mt. Pleasant, MI 48858
NOW, THEREFORE, the parties mutually agree as follows:
1. DEFINITIONS. When used herein, the term "Gaming Establishment" shall
also be applied to the following properties: Soaring Eagle Casino. In addition,
any new properties owned and/or operated by Gaming Establishment shall be
covered under the terms of this Agreement, unless otherwise decided against by
mutual agreement between Game and Gaming Establishment.
2. VALIDITY OF COMPACT. The Gaming Establishment hereby represents and
warrants that the Compact(s) concerning all Class III gambling conducted in the
Gaming Establishment is/are 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 in accordance with the Compact and with all regulations,
restrictions, requirements, rules, statutes, ordinances and laws affecting such
Class III gambling. The Gaming Establishment 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. Game will provide the following services at and in the
Gaming Establishment:
* Check Cashing of all types including, but not limited to,
Payroll and Personal.
* Mastercard/Visa/Discover Card Quasi-Cash Advances
* Wire Transfers
4. EXCLUSIVITY. Game's right to provide the above services at the
Gaming Establishment during the term of this Agreement is exclusive. During the
term of this Agreement, neither the Gaming Establishment nor any of its managers
or affiliates will grant anyone else the right in or near the Gaming
Establishment 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
--------------- ----
Government Checks 3% of check amount or $1.50
(whichever is greater)
Payroll/Computerized Checks 3% of check amount
Handwritten Payroll Checks 8% of check amount
Personal Checks 5% of check amount
Second Party Checks 10% of check amount
Mastercard/Visa/Discover Cash Advances 6% of advance or $4
(whichever is greater)
Photocopies $.10 per page
Fax (per page) $2 first, $1 thereafter
Wire Transfer Fees As designated in Fee
Schedule
6. PAYMENTS. Game will pay occupancy costs to the Gaming Establishment
equal to [confidential treatment]% of Game's annual pre-tax profits in excess of
$[confidential treatment] per calendar year which are realized through Game's
facility at the Gaming Establishment. For example, if Game's pre-tax profits for
1995 are $[confidential treatment] Game will pay the Gaming Establishment
$[confidential treatment]. Such annual pre-tax profits shall be determined in
accordance with generally accepted accounting principles on a calendar year
basis. Or, Game shall pay Gaming Establishment [confidential treatment]% of the
gross credit card quasi-cash advance fee income realized through Game's
facilities at the Gaming Establishment, whichever is higher. The amount owing to
Gaming Establishment will be paid monthly twenty (20) days after the end of each
calendar month, based upon such calendar month's gross income. In the event the
pre-tax profit sharing option kicks in, the amount owing to the Gaming
Establishment will be paid within sixty (60) days after the end of the calendar
year. Game will provide the Gaming Establishment with a reasonably detailed
accounting of the annual pre-tax profits within sixty (60) days after the end of
the calendar year. Game shall maintain adequate books and records with respect
to the income, expenses and profits with respect to the Game facility conducted
at the Gaming Establishment and will make such books and records available for
inspection, review and audit by the Gaming Establishment, or its duly authorized
representatives, at the Gaming Establishment's sole cost and expense upon
reasonable notice to Game by the Gaming Establishment. However, if such an audit
discloses a deficiency in reported income in excess of 10% of such income, then
the costs of such audit will be paid by Game and shall be allowed as a deduction
as an ordinary operating expense. If the term of this Agreement does not include
a full calendar year, the pro rata sharing of pre-tax profits shall be adjusted
on a per diem basis taking into account only the portion of the calendar year
which is included in the term of this Agreement.
7. TELLER FACILITY. The Game facility in the Gaming Establishment will
be provided by the Gaming Establishment [confidential treatment]. Game shall be
deemed to have and is hereby granted a license by the Gaming Establishment to
occupy and use the portion of the Gaming Establishment occupied by the Game
teller's facility during the term of this Agreement. Game will provide
assistance during construction to ensure the teller space to be provided to Game
in the Gaming Establishment is adequate 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 the approval of Gaming
Establishment management, which approval will not be unreasonably withheld.
8. EQUIPMENT/PERSONNEL. Game will furnish, at its cost, all equipment
and personnel for the operation of the check cashing/financial services facility
in the Gaming Establishment. Game will provide uniforms of the Gaming
Establishment's choice for Game personnel. Upon the expiration of 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 Establishment shall
have no right, claim or interest therein or thereto. The Gaming Establishment
shall not take any action or engage in any activity which might reasonable cause
or allow any person to believe that any of the Equipment is owned by the Gaming
Establishment. Without limiting the generality of the foregoing, the Gaming
Establishment 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 Establishment shall not purport to grant any security interest in or lien
against any Equipment. The Gaming Establishment shall, from time to time,
execute and provide to Game such documents or instruments Game may request to
evidence Game's ownership of the Equipment, including, with limitation, UCC-1
Financing Statements to be filed for notice purposes in such public offices as
Game may determine. Without limiting the foregoing, Game may, at its option,
cause a copy of this Agreement (redacting such provisions as Game may determine)
to be filed or placed of record in any public office for the purpose of
indicating Game's ownership of the Equipment.
9. UNCOLLECTIBLE CHECKS. The Gaming Establishment and the Saginaw
Chippewa Indian Tribe of Michigan 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.
10. CASHING LIMITS. Game and the Gaming Establishment staff will
establish a reasonable limit on checks cashed by a guest of the Gaming
Establishment within a 24-hour period. Initially the parties agree that Game
will not cash checks in aggregate over $[confidential treatment] in any 24-hour
period for one customer.
11. GAMING ESTABLISHMENT EMPLOYEES. If requested to do so, Game will
cash payroll checks issued to the Gaming Establishment's employees at a charge
of $1.00 plus change to such employees. Funds for such check cashing will be
provided to Game at no charge or cost and Gaming Establishment agrees to
repurchase such checks daily. In addition, Game will perform other reasonable
requested financial services listed in Section 2 hereof for the Gaming
Establishment and its personnel, in a manner as may be agreed upon by the
parties.
12. CASH. The Gaming Establishment will provide Game, on a daily basis,
with sufficient cash to allow Game to cash checks, which cash will be purchased
by Game with its check simultaneously with receiving the cash.
13. HOURS OF OPERATION. Game will staff at least one Game employee at
the teller station at all times the Gaming Establishment is operating, unless it
is otherwise mutually agreed by the Gaming Establishment and Game that shorter
hours are acceptable.
14. INFORMATION - CONFIDENTIALITY. Game will provide information
reasonably requested by the Gaming Establishment from Game's database concerning
customers of the Gaming Establishment using Game's services. Game agrees that it
will not release or disclose any information from its database concerning its
customers at the Gaming Establishment to any owner, operator, manager or
employee of any gambling establishment other than the Gaming Establishment
without the prior written consent of the Gaming Establishment.
15. EMPLOYEES. Game agrees that, to the extent it may legally do so, it
will grant a preference to hiring members of the Gaming Establishment or other
native American persons as its employees in the Gaming Establishment.
16. GAME EMPLOYEES. The Gaming Establishment recognizes that Game will
devote significant resources to hire and train its employees. The Gaming
Establishment agrees that without the prior written consent of Game, neither the
Gaming Establishment nor the manager of the Gaming Establishment, nor any other
check cashier subsequently contracted with, if a third party, will hire, engage
or otherwise utilize the similar services of any game employee who is not a
tribal member, past or present, for check cashing services or for the other
services listed in Section 3 hereof for a period of 12 months from and after the
termination of this Agreement. All non-tribal member Game employees will be
required to sign written statements acknowledging their ineligibility for SEG
employment for a period of 12 months under the identical terms as are stated in
Section 16 of this Agreement.
17. TERM; CANCELLATION. This Agreement shall commence on the date of
installation and shall continue for an initial two (2) year term. Thereafter,
the term of this Agreement shall automatically renew for additional consecutive
[confidential treatment] year terms; subject to cancellation by either party at
the end of the initial two (2) year terms and at the end of each said
[confidential treatment] year terms 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 Section 17 hereof and in Section 19
below. Game's right to provide the services detailed in Section 3 hereof at the
Gaming Establishment shall be exclusive during the term of this agreement and
prior to the cancellation or termination thereof as provided above.
18. RIGHT OF FIRST REFUSAL. Upon the expiration of termination of the
initial term hereof, or any extension, modification or renewal thereof, Game
shall have the right of first refusal to provide cash advance services (or its
equivalent) to the facility on the same terms and conditions as may be proposed
by alternate providers.
19. 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: Gary A. Dachis
Game Financial Corporation
10911 W. Hwy. 55, Suite 205
Plymouth, MN 55441-6114
If to the Gaming Establishment: Soaring Eagle Gaming
2395 South Leaton
Mt. Pleasant, MI 48858
20. REMEDIES FOR BREACH. Except as noted below, if either party should
materially violate any of the terms or provisions of this Agreement, the other
party may, at its option, cancel and terminate this Agreement upon thirty
(30)days written notice to the breaching party. 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. If either party materially breaches this
Agreement, in addition to all other remedies, the breaching party shall pay all
attorneys' fees and related costs incurred by the non-breaching party.
However, if a dispute arises between the parties with respect to the
calculations or payments made under Section 6 hereof, such dispute or
disagreement shall be resolved by binding arbitration, to which the Gaming
Establishment and Game hereby consent. Such arbitration shall be conducted in
accordance with Rules of the American Arbitration Association promulgate
thereunder.
21. AUTHORITY. Each of the undersigned individuals executing this
document respectably on behalf of the Gaming Establishment, 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.
GAMECASH, INC., A MINNESOTA CORPORATION (Game)
By: /s/ Gary A. Dachis
------------------------------------------
Gary A. Dachis, President
Date: 12/22/95
----------
----------------------------------------------
Soaring Eagle Gaming, (Gaming Establishment)
By: /s/ Josephine Jackson
---------------------
Date: 1/3/96
-------
AUTOMATIC TELLER MACHINE
SUPPLY AND SERVICING AGREEMENT
THIS AGREEMENT (the "Agreement") is made and entered into by and
between GameCash, Inc. ("Game") with offices at 10911 Highway 55, P.O. Box
26008, Minneapolis, Minnesota 55441-6114 (FAX no. 612/544- 6836), and Soaring
Eagle Gaming ("SEG"), a chartered enterprise of the Saginaw Chippewa Indian
Tribe of Michigan (a federally recognized tribe) with offices at 6715 East
Broadway, Mt. Pleasant, Michigan 48858 (FAX no. 517/775-3040).
WHEREAS SEG desires to obtain installation, servicing and management
services for automatic teller machines ("ATM's") in its gaming operations and
Game is capable of providing such services, for good and valuable consideration,
the SEG and Game hereby agree as follows:
1. TERM OF AGREEMENT.
The Agreement shall be effective for a period of three (3) years, which
period shall commence on the date Game first provides services in SEG's gaming
operations. This Agreement shall automatically renew for [CONFIDENTIAL
TREATMENT]-year terms unless either party gives the other party ninety (90) days
prior written notice of termination.
2. SERVICES.
Game shall provide the following services at the Soaring Eagle Casino &
Resort:
(a) install 12 Deibold 1060 or 1064 ATM's, or a suitable equivalent
acceptable to SEG, which equipment shall be owned or leased by Game;
(b) service and maintain the ATM's at Game's sole expense;
(c) replenish cash in the ATM's on an as- needed basis;
(d) provide ATM hardware at Game's sole expense;
(e) pay for the cost of the telephone lien at Game's sole expense; and
(f) provide normal and reasonable maintenance to the equipment provided
for in this Agreement and take all reasonable steps to repair any
malfunction(s) within twenty four (24) hours.
Game shall, at its own expense, be responsible for providing any insurance,
licenses or permits usual or necessary for conducting the services described in
this Agreement. SEG shall not cause any lien or encumbrance to be placed on the
ATM's or the equipment relating thereto.
Game may consult with third parties in the performance of the Agreement
but SEG shall not be liable for any costs related to the services of any third
parties except by separate agreement between SEG and the third parties.
SEG and Game understand and agree that Game is an independent
contractor and not an employee of SEG, that the benefits and rights to which
Game is entitled are limited to those expressly set forth in this Agreement and
that no other rights or benefits are conferred upon Game by any other contract,
tribal law or policy, including any employee Personnel Policies and Procedures.
3. FEES AND PAYMENTS.
Game is entitled to a convenience fee of THREE AND 0/100'S DOLLARS
($3.00) for each customer ATM transaction. The ATM transaction charge will be
charged to the ATM customer's account and will not be paid by SEG under any
circumstances. Game will pay SEG a commission fee of [CONFIDENTIAL TREATMENT]
for all ATM transactions. Said convenience fees paid to Game include all costs
and expenses and SEG shall not be liable for any other expense, fee or cost
related to the services to be performed under this Agreement.
The Consultant shall be responsible for all state and federal tax
filing requirements, insurance and worker's compensation coverage and any other
state or federal requirements pursuant to any tax, insurance or governmental
program that may apply to an independent contractor. When required by law, SEG
shall provide an IRS 1099 form to Game and the IRS at the proper time.
4. TERMINATION OF AGREEMENT.
Should either party default in the performance of this Agreement or
breach any of the material provisions of this Agreement, the non-breaching party
shall give written notice to the breaching party of such default. If the default
is not cured by the breaching party within 15 days from the date of the written
notification of default, the Agreement may be terminated immediately by the
non-breaching party. Material breach shall include without limitation the
following:
i. nonpayment of any amounts due
under this Agreement after 10 days
following written demand for payment;
ii. failure of SEG to cooperate with
Game or its representatives with respect
to access to ATM locations for the
purposes defined in this Agreement; and
iii. failure of Game to service,
maintain or stock the ATM or related
equipment as required herein in a timely
manner.
Either party may also terminate this Agreement upon the bankruptcy or insolvency
of the other party.
5. WARRANTIES.
Game warrants and represents to SEG:
(a) that Game has taken all the necessary actions and received all the
necessary approvals under the terms of its articles and by-laws to
authorize its execution of this Agreement;
(b) that the person executing this Agreement has the authority under
Game's by-laws to execute this Agreement; and
(c) that it has obtained all the necessary government approvals to
carry out the purposes of this Agreement.
6. GENERAL PROVISIONS.
(a) Confidentiality. Any information of a confidential nature obtained
by either party from the other party shall be used solely for the
purposes of fulfilling the obligations under this Agreement. Generally,
confidential information is any information that is not known to either
party prior to entering this Agreement and not generally known within
the finance or gaming industry and includes, but is not limited to,
written information, information that is disclosed verbally and any
other information which may be made available to either party as a
party to this Agreement and pursuant to its purposes. The parties shall
at all times during and after the term of this Agreement maintain the
confidentiality of any such information and shall not disclose such
information to third parties without the express written consent of the
other party. The parties shall not duplicate any confidential
information in a tangible form and shall return such information to the
other party along with any notes or compilations immediately after the
need for such information has expired.
(b) Exclusivity. SEG agrees that during the term of this Agreement, or
any extension thereof, Game shall be the sole exclusive supplier of ATM
equipment and services within SEG's gaming operations.
(c) Notices. Any notice which by any provision of this Agreement is
required or permitted to be given or served shall be deemed so given
and served if sent by confirmed facsimile or by United States mail,
certified or registered, postage and fees fully pre-paid, return
receipt requested. Such notices shall be effective upon the date
received if sent by confirmed facsimile or, if mailed, upon the earlier
of (i) 72 hours, or (ii) actual receipt as indicated in the return
receipt. Any notice sent forth above shall be addressed to SEG or Game
at the address stated above or, if sent by facsimile, it shall be sent
to SEG's or Game's facsimile number set forth above. Any party may
change its address or facsimile number for service of notices by giving
notice to the other party in the manner described herein.
(d) Assignment and Subcontractors. This Agreement shall not be assigned
by Game and such assignment shall be void without the prior written
consent of SEG. Game shall not subcontract any part or all of the
services to be rendered under this Agreement without the prior written
consent of SEG.
(e) Time is of the Essence. Time is of the essence of this Agreement.
(f) Force Majeure. Game shall not be excused from the performance of
any of its obligations under this Agreement except when such
performance is prevented by events which are beyond the reasonable
control of Game, such as acts of God, labor contract strikes, or civil
unrest. Game shall give prompt notice to SEG of any event of Force
Majeure that may prevent performance by Game. Any obligations of Game
under this Agreement which may be excused due to an event of Force
Majeure shall be excused only for the duration of the event and only to
the extent that the performance of such obligations is prevented by the
event.
(g) Entire Agreement. This Agreement supersedes all prior written or
oral agreements and is not contingent upon or conditioned on the
performance of any other agreement which may have been entered into by
the parties. This Agreement and any exhibits or attachments
incorporated herein by reference constitute the entire agreement of the
parties and there are no other written or oral agreements,
representations, or understandings of any kind. If there is any
conflict or inconsistency between the terms of this Agreement and any
exhibits or attachments, this Agreement shall take precedence unless
the matters set forth in the exhibit or attachment expressly and
explicitly provide otherwise.
(h) Modifications. This Agreement may only be modified by a written
agreement that is signed by a duly authorized representative for each
party. Only the Chairperson or Vice- Chairperson, upon the approval of
a quorum of the SEG Board, has authority to modify this Agreement or to
enter into a different Agreement with Game, which must be in writing
and signed by the Chairperson or Vice- Chairperson to be enforceable.
(i) Severability and Headings. The provisions of this Agreement are
severable. If any provision of this Agreement is determined to be
invalid or unenforceable it shall be considered deleted from this
Agreement and the invalidity of such provision shall not affect the
validity or enforceability of any other provisions which shall be given
effect in the absence of the invalid provision. The headings of this
Agreement are for reference purposes only and only the text of each
provision shall be construed to be the terms and conditions of this
Agreement.
(j) Remedies and Waiver of Breach. The remedies provided for in this
Agreement are cumulative rather than exclusive and are in addition to
all other remedies provided by law or equity. The failure of either
party to insist upon strict performance of any of the covenants and
agreements contained herein, or to exercise any right or option
conferred by such provisions, in any one or more instances, shall not
be construed to be a waiver or relinquishment of any such option or
right, or of any other covenants or agreements, but the same shall
remain in full force and effect.
(k) Indemnification and Insurance. SEG shall indemnify and hold
harmless Game and Game's owners, managers, employees and
representatives against all liability, claims, actions, damages,
demands, penalties, fines or expenses arising directly from any acts or
omissions of SEG. Any negligence of Game in such instance shall not
operate as a bar to Game's right to indemnification under this
Agreement.
Game shall indemnify and hold harmless SEG and SEG's officials,
employees and representatives against all liability, claims, actions, damages,
demands, penalties, fines or expenses arising directly from any acts or
omissions of Game. Any negligence of SEG in such instance shall not operate as a
bar to SEG's right to indemnification under this Agreement.
SEG and Game shall at their own expense procure and maintain in force
at all times during the term of this Agreement or any extension thereof, a
policy or policies of comprehensive general liability insurance, combined single
limit of at least $1,000,000 with a company qualified to do business in the
State of Michigan.
(l) Attorney's Fees. In the event of any arbitration or court
proceeding brought to resolve any dispute or claim arising from this
Agreement, the prevailing party shall be entitled to recover from the
other party its reasonable attorneys' fees and costs of such action.
For purposes of this Agreement, the "prevailing party" shall be deemed
to be that party that prevails on a majority of the material issues
brought in such action.
(m) Governing Law. The governing law for this Agreement shall be the
laws of the Saginaw Chippewa Indian Tribe of Michigan. Game agrees that
all disputes, actions and claims arising from this Agreement shall be
subject to the exclusive jurisdiction of the Saginaw Chippewa Tribal
Court and Game consents to the personal jurisdiction of the Tribal
Court.
AGREED
SOARING EAGLE GAMING GAMECASH, INC.
/s/ Phillip G. Peters, Sr. /s/ Gary Dachis
- ----------------------------------- -------------------------------------
Phillip G. Peters, Sr., Chairperson Gary Dachis, President and CEO
7/22/96 8/2/96
- ----------------------------------- -------------------------------------
Date Date
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 PO Box 640, Black
River Falls, WI 54615.
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: Gary A. Dachis
Game Financial Corporation
10911 W. Hwy. 55, Suite 205
Plymouth, MN 55441-6114
If to the Gaming Establishment: Ho-Chunk Nation
PO Box 640
Black River Falls, WI 54615
Attn: Executive Director of Business
With copies to: Ho-Chunk Nation
PO Box 667
Black River Falls, WI 54615
Attn:: Attorney General
Ho-Chunk Nation
PO Box 667
Black River Falls, WI 54615
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/ Gary A. Dachis
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Gary A. Dachis, President
Date: 2/22/96
---------------------------------------------
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Ho-Chunk Nation., Gaming Operator
By: /s/ Choris A. Lowe, Jr.
-----------------------------------------------
Chloris A. Lowe, Jr., 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/ Gary A. Dachis
---------------------------------------------------
Gary A. Dachis, President
