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EXHIBIT 10.12
DATE: 25 JANUARY 2005
SUBJECT TO CONTRACT
TRM (ATM) LIMITED
AND
ALLIANCE & LEICESTER CASH SOLUTIONS LIMITED
AGREEMENT FOR THE PROVISION OF CASH
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CONTENTS
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1. DEFINITIONS AND
INTERPRETATION.............................................................................
4
2. PROVISION OF
SERVICES......................................................................................
6
3. TITLE, RISK AND
DECLARATION OF
TRUST.......................................................................
8
4.
FEES.......................................................................................................
9
5.
DURATION...................................................................................................
10
6.
WARRANTIES.................................................................................................
10
7.
CONFIDENTIALITY............................................................................................
11
8. INTELLECTUAL
PROPERTY......................................................................................
12
9. ENTIRE
AGREEMENT...........................................................................................
12
10.
ASSIGNMENT..............................................................................................
12
11.
TERMINATION.............................................................................................
12
12. FORCE
MAJEURE...........................................................................................
13
13. LIABILITY
AND
INSURANCE.................................................................................
14
14.
DISCREPANCIES...........................................................................................
15
15.
DISPUTES................................................................................................
16
16.
WAIVER..................................................................................................
16
17.
SEVERABILITY............................................................................................
16
18.
NOTICES.................................................................................................
16
19.
AUTHORITIES.............................................................................................
16
20. THIRD
PARTY
RIGHTS......................................................................................
16
21. APPLICABLE
LAWS AND DATA
PROTECTION.....................................................................
16
22. AUDIT AND
PROVISION OF
INFORMATION......................................................................
17
23.
LAW.....................................................................................................
17
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This Agreement is made on the 25 day of
January 2005
BETWEEN
(1) TRM ATM LIMITED (Company
Number: 3782309) whose registered office is at
Tower
42,Level 23,25 Broad Street, London EC2N 1HQ ("CUSTOMER"); and
(2) ALLIANCE & LEICESTER
CASH SOLUTIONS LIMITED (Company Number 4282945) whose
registered
office is at Carlton Park, Narborough, Leicester, LE19 0AL
("ALCS")
WHEREAS:-
1. The Customer has a
requirement for bank notes for its ATM business in the
UK.
2. ALCS has agreed to
supply bank notes to the Customer in accordance with
the terms
and conditions of this Agreement.
NOW IT IS HEREBY AGREED AS FOLLOWS:
1. DEFINITIONS AND
INTERPRETATION
In this Agreement, unless the context
otherwise requires, the following
expressions shall bear the meanings set out
against them below:
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"ADDITIONAL SERVICES"
means any additional services agreed to be
provided by ALCS as set out in Schedule 1.
"AFFILIATE"
means any Subsidiary(s) or Holding
Company(s) of that party and any other
Subsidiary(s) of that/those Holding
Company(s) at any time during the term of
this Agreement.
"AGENT"
means Securicor Cash Centres Limited or any
other agent appointed by ALCS pursuant to
Clause 2.3 of this Agreement for the
purposes of providing all or part of the
Services.
"ATM"
means an automated teller machine owned by
the Customer in
respect of which Notes are
supplied by ALCS subject to the terms and
conditions of this Agreement.
"ATM USER"
means any cardholder authorised to use an
ATM.
"BANKING DAY"
means a day (other than a Saturday or a
Sunday) on which banks in London are open
for general business.
"BASE RATE"
means the base rate of Alliance & Leicester
plc from time to time.
"CARRIER"
means a cash in transit company employed to
transport Cash between Nominated Cash
Centres and the Customer approved by ALCS in
accordance with Clause 10.3.
"CASH"
means legal tender under the Currency and
Bank Notes Act 1954; any banknotes which are
legal tender in Scotland, Northern Ireland
and the Channel Islands (including the Isle
of Man, Jersey and Guernsey); and any bank
notes in any denominations which are at any
time legal tender in those jurisdictions.
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"CASH VALUE"
means the face value of all Cash provided by
ALCS to the Customer.
"CHAPS"
means the Clearing Houses Automated Payment
System.
"COMMENCEMENT DATE"
means 1st February 2004
"CONFIDENTIAL INFORMATION"
means this Agreement, and all information
and materials in whatever form relating to a
party's business and customers (which in the
case of ALCS includes its Agent's business
and customers) obtained by a party as a
result of entering into this Agreement,
together with any other information or
materials which by their nature are
confidential.
"CUT-OFF TIME"
means the time before which Cash must be
collected from a Nominated Cash Centre by a
Carrier, as notified to the Customer by ALCS
from time to time.
"DAY OF ORDER"
means each day on which the Customer
generates an Order with ALCS for Notes under
this Agreement.
"DISCREPANCY"
means any irregularity in the amount of
Notes that the Customer claims it has
received from or provided to ALCS, and the
amount of value of the Notes that ALCS
believes it has provided or received from
the Customer.
"FEES"
means the fees to be paid by the Customer to
ALCS under this Agreement as set out in
Schedule 2 and this Agreement.
"FULLY SERVICED"
means, in relation to an ATM, that ATM is
stocked with Notes supplied solely by ALCS
in accordance with the terms of this
Agreement.
"HOLDING COMPANY"
has the meaning given in Section 736 of the
Companies Act 1985.
"INTELLECTUAL PROPERTY"
means all rights in copyright, patents,
know-how, Confidential Information, database
rights and designs (whether registered or
unregistered) and any applications to
register or rights to apply to register the
same existing anywhere in the world.
"LIBOR"
means the London Interbank Offer Rate for
one month as published in the Financial
Times on the day prior to the last Banking
Day of each calendar month.
"LINK"
means Link Interchange Network Limited.
"LINK OPERATING RULES"
means the operating rules of LINK in force
from time to time.
"MERCHANT SERVICED"
means, in relation to an ATM, that ATM is
stocked with Notes supplied by a party other
than ALCS.
"NCS"
means the Bank of England's note circulation
scheme, as amended from time to time, and
any successor scheme.
"NOMINATED CASH CENTRE"
means those cash centres of ALCS or its
Agents nominated by ALCS for use by the
Customer for the purposes of this Agreement.
"NOTE"
means Cash in the form of banknotes.
"ORDER"
means each order from the Customer for the
provision of Cash by ALCS.
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"PBNE"
means plastic banknote envelopes (including
envelopes, sachets, packets, containers,
plastic or linen bags or otherwise) for
provision of, or deposits of, Cash.
"PROCESSING AGENT"
means ATMOS or such other person as may
be approved by ALCS in accordance with
Clause 10.3 from time to time.
"REQUIREMENTS DOCUMENT"
means the Requirements Document set out in
Schedule 3 to this Agreement, as amended
from time to time by written agreement
between the parties.
"RPI"
means the percentage increase, in each
calendar year from the Commencement Date in
the United Kingdom All Items Index published
by the UK National Statistical Office (or by
a successor Ministry, Department or other
office) from time to time or any replacement
index.
"SUBSIDIARY"
has the meaning given in Section 736 of the
Companies Act 1985.
"THE SERVICES"
means the provision of Cash in accordance
with this Agreement, together with any
Additional Services set out in Schedule 1.
"VAT"
means value-added tax under or pursuant to
the EC Sixth VAT Directive 77/388/EEC or any
subsequent legislation and any similar tax
imposed in substitution for, or in addition
to, such tax.
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1.1 Clause headings are for
convenience only and shall not affect the
interpretation of this Agreement.
1.2 All Schedules to this
Agreement constitute an integral part of this
Agreement.
1.3 Except where the context
otherwise requires, words importing the singular
include
the plural and vice versa.
2. PROVISION OF
SERVICES
2.1 In consideration of the
payment of the Fees, and subject to the Customer
complying
with its obligations under this Agreement, ALCS shall provide
Notes to
the Customer for use in ATMs in accordance with Orders and
subject to
the terms and conditions of this Agreement and the requirements
of
Schedule 1 and the Requirements Document. The Customer may not
Order
more than
(pound)60,000 of Notes per ATM in any one Order without the
prior
written consent of ALCS
2.2 ALCS may provide Additional
Services by agreement with the Customer, and
such
additional terms and conditions as the parties shall agree in
writing
shall apply in
respect of such Additional Services.
2.3 ALCS shall be permitted to
use third parties to act as agents on its
behalf for
the provision and receipt of Cash as required, and to provide
any other
services agreed to be provided by ALCS to the Customer under
this
Agreement.
2.4 The Customer shall ensure
that all Ordered Cash is collected from
Nominated
Cash Centres each day before the relevant Cut-Off Time.
2.5 All Cash provided pursuant
to this Agreement is to be collected by the
Customer's
Carrier from the Nominated Cash Centres at the Customer's sole
cost.
2.6 All collections and deposits
of Cash at Nominated Cash Centres made on
behalf of
the Customer shall be made only by Carriers approved by ALCS in
accordance
with Clause 10.3 who are accredited by the British Security
Industry
Association. The Customer shall provide ALCS with evidence of
such
accreditation to ALCS prior to employing a carrier in connection
with
this Agreement, and annually
thereafter.
2.7 Orders for Cash shall be
generated by the Customer in accordance with the
procedures
set out in Schedule 1 and the Requirements Document, and as
notified
by ALCS to the Customer from time to time.
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2.8 The
Customer shall arrange for collection by its Carrier of
Notes which have not been withdrawn from ATMs by ATM Users,
and the delivery of those Notes to Nominated Cash Centres, in
accordance with the timeframes and procedures agreed between
the parties from time to time and the provisions of the
Requirements Document.
2.9 The
Customer hereby undertakes to ensure that its Carrier:
2.9.1 is
made aware of the responsibilities accepted by the
Customer and the liabilities imposed on the Customer
under this Agreement;
2.9.2 is,
in respect of the Notes, comprehensively insured
for loss, theft, damage and other risks at all times
that Notes are in the Carrier's possession;
2.9.3 at
all times keeps Notes in containers separate from
all other notes in its possession and ensures that
such containers are distinctly marked to enable the
Notes to be identified as having been supplied to the
Customer by ALCS;
2.9.4
ensures that all Notes collected from Nominated Cash
Centres are filled into ATMs within 7 Banking Days of
collection from ALCS;
2.9.5
ensures (when making deposits at Nominated Cash
Centres under Clause 2.9 that the deposit
documentation provided with each such deposit clearly
identifies the ATM from which the Notes/ATM cassettes
have been collected prior to their return to the
Nominated Cash Centre. If a deposit comprises
Notes/ATM cassettes removed from more than one ATM;
then the deposit documentation provided with such
deposit shall clearly identify which deposit of
Notes/identified ATM cassettes have been removed from
each individually identified ATM;
2.9.6
provides a monthly statement to ALCS detailing Notes
held in the name of ALCS, Notes to be used for ATM
replenishment and Notes awaiting return to ALCS, and
provides all necessary co-operation to enable ALCS to
carry out a monthly check to confirm the total value
of Notes held by each Carrier from time to time; and
2.9.7 is
aware that beneficial ownership of the Notes is
vested at all times in ALCS.
2.10
The Customer undertakes to ensure that its Processing Agent
carries
out full reconciliation of ATMs (to include
calculation of Note withdrawals by ATM Users and Note
refilling by the Customer's Carrier) on a daily basis.
2.11
The Customer shall give ALCS at least 10 days written notice
if the status of any ATM is to be changed from Fully Serviced
to Merchant Serviced so as to enable ALCS to terminate the
existing Regular Orders for that ATM. No notice may be served
until a Fully Serviced ATM has been serviced by ALCS under
this Agreement for at least 2 months. ALCS shall not provide
Notes for any Merchant Serviced ATMs.
2.12
The Customer hereby undertakes that it shall, promptly upon
written request by ALCS, make such arrangements as are
reasonably required by ALCS to provide security to ALCS:
2.13.1 for the
discharge by the Customer of its obligations
under this Agreement;
2.13.2 for the
security of the Notes; and/or
2.13.3 the
return of the Notes to ALCS.
2.13
The Customer shall procure settlement of the Cash
Value of the Notes in favour of ALCS in accordance
with the following procedure:
2.13.1 in
respect of Notes withdrawn by ATM Users from ATMs,
by direct credit by
LINK into a Bank of England
settlement account in the name of ALCS of an amount
equal to the Cash Value of Notes withdrawn in
accordance with the LINK Operating Rules; and
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2.13.2 in
respect of Notes not withdrawn by ATM Users from
ATMs, by the return of Notes to a Nominated Cash
Centre in accordance with Clause 2.9.
2.14 Discrepancies of
Cash shall be dealt with in accordance with
Clause 14. Discrepancies in respect of Additional Services
shall be dealt with as agreed between the parties.
2.15
The parties shall hold quarterly meetings at a location to be
agreed to review any relevant matters in relation to this
Agreement generally.
2.16
Each party shall meet all their respective obligations as set
out in Schedules 1 and the Requirements Document within the
time frames set out in Schedule 1 and the Requirements
Document. In particular, the Customer shall ensure that its
Processing Agent and its Carrier(s) carry out their duties on
the Customers' behalf so as to meet all the Customers
obligations within those required time frames. In the event of
any conflict between Schedule 1 and the Requirements Document,
the provisions of the Requirements Document will prevail, but
only to the extent required to resolve such conflict.
2.17
If the Customer wishes ALCS to provide Euro banknotes under
this
Agreement then ALCS shall consider if this is practical
and the parties shall discuss the Customer's proposal. If ALCS
agrees to provide Euro banknotes then this Agreement shall be
amended in accordance with Clause 9.1 to incorporate any
additional or amended Fees and terms and conditions in respect
of the same.
[2.18]
Deleted
2.19
Re-banking of Notes not withdrawn by ATM Users from ATMs by
way of redelivery to a Nominated Cash Centre will be carried
out at ALCS' cost provided that the Cash Value of Notes to be
re-banked does not exceed 30% of the value of the Order(s)
relating to those particular Notes. If re-banking of Notes
exceeds the 30% limit on a regular basis then ALCS and the
Customer shall enter into good faith negotiations to revise
the ATM Management Fee set out in Schedule 2. The parties
shall endeavour to reach agreement on a new ATM Management Fee
within one month of commencement of discussions. If no
agreement is reached in that time, then ALCS may determine, in
its sole discretion, the amended ATM Management Fee applicable
from that date.
3.
TITLE, RISK AND DECLARATION OF TRUST
3.1 On
delivery (by means of a release of Notes to the Customer's
Carrier by ALCS's Agent following an Order placed by the
Customer), risk in the Notes shall pass to the Customer. Risk
in the Notes shall remain with the Customer until the earlier
of:
3.1.1 the
time that the Notes are withdrawn by an ATM User
from ATMs; or
3.1.2 the
time that the Notes are re-delivered to, and
receipted by, ALCS.
The Customer shall be liable to ALCS for the Cash Value of
Notes during the whole of the period in which risk in the
Notes is vested in the Customer under this Clause 3.1.
3.2 ALCS's
Agent at each Nominated Cash Centre will obtain a dated
and time stamped receipt (prepared by the Agent) signed by the
Customer's Carrier as evidence of each delivery of Notes to
the Customer's Carrier.
3.3 Beneficial
ownership of the Notes shall at all times be
retained by ALCS until the Notes are withdrawn by ATM Users
from ATMs. Accordingly, the Customer hereby agrees that it
will hold the Notes on trust for ALCS absolutely from the time
that they are delivered by ALCS to the Carrier until the
earlier of:
3.2.1 the
time that the Notes are withdrawn by an ATM user
from ATMs; or
3.2.2 the
time that the Notes are re-delivered to, and
receipted by, ALCS.
3.4 For the
avoidance of doubt, ALCS shall continue to retain
beneficial ownership of any Notes collected from ATMs which
are to be returned to ALCS under Clause 2.9, and legal
ownership of those Notes shall revert to ALCS immediately upon
delivery of the Notes to ALCS.
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3.5 At the
time of withdrawal by an ATM User of the Notes from
ATMs, legal and beneficial title to the Notes shall be
transferred to the ATM User withdrawing the Notes, and at the
same time a
claim ("a Repayment Claim") will arise in favour
of the Customer against the bank of that ATM User in an amount
equal to the Cash Value of the withdrawal made by that ATM
User. The Customer agrees that it shall hold all Repayment
Claims on trust in accordance with the Declaration of Trust
set out in Schedule 4.
3.6 ALCS's
Agent at each Nominated Cash Centre will issue a dated
and
time-stamped receipt, to the Customer's Carrier as
evidence of acceptance of return of Notes by the Customer's
Carrier under Clause 2.9. Copies of these receipts will be
made available to Customer within 5 business days of request
to ALCS. Customer will receive credit for notes returned on
the date of return provided they are returned by 14.00hrs. A
retrospective interest payment will be credited to the
Customer's invoice on a monthly basis to reflect the value
dating of the notes returned.
4.
FEES
4.1 The
Customer shall pay the Fees to ALCS for the provision of
the Services and
any Additional Services.
4.2 ALCS will
use reasonable endeavours to send the Customer a
notice of the Fees payable for the previous month within 5
Banking Days of the month end.
4.3 The Fees
shall be payable for the duration of the Agreement,
monthly in arrears, on or following issue of the notice of
Fees payable for that month under Clause 4.2. Fees shall be
payable each month from such bank account as may be agreed
between the parties from time to time in accordance with the
direct debit to be provided by the Customer under Clause 4.10.
4.4 All Fees
are expressed to be exclusive of VAT. In the event
that VAT is, or becomes, payable in respect of the Services or
any part of them, a tax invoice shall be issued by ALCS and
all such VAT shall be paid to ALCS by the Customer in addition
to the Fees.
4.5 In the
event of any change in the rules or practice relating
to NCS, or any change to any other industry practice which has
or may have a material effect on the costs ALCS incurs in
providing the Customer with the Services, or VAT is or becomes
payable in respect of the services provided to ALCS by its
Agents pursuant to this Agreement, ALCS reserves the right to
vary the Fees to take account of any additional costs it or
its Agents may incur. If ALCS varies the Fees, ALCS will give
the Customer 30 days notice before any variation takes effect.
4.6 If, for
whatever reason, payment of the Fees is not received
by ALCS in accordance with Clause 4.3, then the Customer shall
pay interest to ALCS on th
