Exhibit 10.56
TERMINATION AGREEMENT
This Agreement is entered into as of September 30, 1999 by and between ICT
Group, Inc. ("ICT") 800 Town Center Drive, Langhorne, PA 19047 and Cellular
Express, Inc., d/b/a Boston Communications Group ("Client"), 100 Sylvan Road,
Suite 100, Woburn, MA 01801.
WHEREAS, ICT and Client have entered into that certain Management Services
Agreement dated May 15, 1998 (the "Services Agreement") relating to the facility
located at Woodland Plaza Shopping Center, Deland Florida (the "Deland
Facility"); and
WHEREAS, pursuant to Section 14 of the Services Agreement, Client may terminate
the Agreement provided Client has made the payments to ICT and assumed the
equipment and real estate lease obligations as described therein; and
WHEREAS, Client and ICT wish to terminate the Agreement in accordance with the
provisions of Section 14.
NOW, THEREFORE, in consideration of the covenants and promises contained herein,
and intending to be legally bound hereby, ICT and Client hereby agree as
follows:
1.Termination of Services Agreement: Client and ICT hereby agree that the
Services Agreement is terminated as of September 30, 1999 (the "Effective Date")
pursuant to the provisions of Section 14.2 of the Services Agreement. Except as
set forth in this Agreement, and except for the payment of any amounts owed by
Client to ICT due under the Services Agreement, Client and ICT hereby release
and forever discharge the other from any and all claims, damages or losses
arising from the acts, omissions or performance of either party under the
Agreement prior to the Effective Date.
ICT is liable for and agrees to pay all expenses incurred under the Services
Agreement through September 30, 1999, including, but not limited to rent,
additional rent, equipment lease payments, maintenance costs, facility costs,
and utilities.
2. Assumption of Real Estate Lease: Client hereby agrees as of the Effective
Date to assume all of ICT's obligations arising on or after the Effective Date
under the real estate lease (the "Real Estate Lease") dated June 1, 1998 as
amended by that certain First Amendment to Lease Agreement dated June 1, 1998,
and as further amended by that certain Second Amendment to Lease Agreement dated
November 23, 1998 by and between ICT, as tenant, and BDC Deland, Inc.
("Landlord") for the rental of the Deland Facility as more fully described in
the Real Estate Lease. In furtherance thereof, Client and ICT agree to execute
simultaneously with this Agreement a real estate assignment and assumption
agreement (the "Real Estate Assumption and Assignment") with regard to the
Deland Facility in the form of Exhibit A attached hereto and made part hereof.
In addition to the warranties contained in the real estate assignment and
assumption agreement, with respect to the Real Estate Lease, ICT further
warrants and represents:
a. That the Lease is in full force and effect and is a valid legally
binding obligations of the parties thereto.
b. That ICT is not in breach of any of the terms and conditions of
said Lease and is current in the payment of all rent, additional
rent, utilities and other payments due under the terms of said
Lease.
c. That ICT has not assigned any of its rights under the Lease to
any third party.
d. That ICT has full corporate power and authority to enter into the
Real Estate Assumption and Assignment and to carry out its
obligations thereunder, that the execution and delivery thereof
have been duly authorized by the Board of Directors of ICT and no
other corporate proceedings on the part of ICT are necessary to
authorize the Real Estate Assumption and Assignment, and that the
Real Estate Assumption and Assignment constitutes the valid and
binding obligations of ICT.
e. That the execution, delivery and performance of the Real Estate
Assumption and Assignment by ICT do not require the consent,
waiver, approval, or authorization of any person or authority
(other than the lessor of the Lease) and will not violate, result
in a breach of or the acceleration of any obligation under or
constitute a default under, any provision of any charter, by-law,
indenture, mortgage, lien, lease, agreement, contract,
instrument, order, judgment, decree, ordinance, or regulations or
any restriction to which any property of ICT is subject or by
which ICT is bound or affected.
3. Assumption of Equipment Leases: Client hereby agrees as of the Effective Date
to assume all of ICT's obligations arising on or after the Effective Date under
the equipment leases identified in Schedule 1 hereto (the "Equipment Leases")
for the equipment identified in Schedule 1 hereto (the "Equipment"). In
furtherance thereof, Client and ICT agree to execute simultaneously with this
Agreement an equipment assignment and assumption agreement for each of the
equipment leases identified in Schedule 1 in the form of Exhibit B attached
hereto and made part hereof. In addition to the warranties contained in the
Equipment assignment and assumption agreement, with respect to the Equipment
Leases, ICT further warrants and represents:
a. That Lessee is not in breach of any of the terms and conditions
of said Lease and is current in the payment of all rent,
additional rent, utilities and other payments due under the
terms of said Lease.
b. That Lessee has not assigned any of its rights under the Lease
to any third party.
c. That Lessee has full corporate power and authority to enter into
this Assignment and to carry out its obligations hereunder, that
the execution and delivery hereof have been duly authorized by
the Board of Directors of Lessee and no other corporate
proceedings on the part of Lessee are necessary to authorize
this Assignment, and that the Assignment constitutes the valid
and binding obligations of Lessee.
d. That the execution, delivery and performance of this Agreement
by Lessee do not require the consent, waiver, approval, or
authorization of any person or authority (other than the lessor
of the Lease) and will not violate, result in a breach of or the
acceleration of any obligation under or constitute a default
under, any provision of any charter, by-law, indenture,
mortgage, lien, lease, agreement, contract, instrument, order,
judgment, decree, ordinance, or regulations or any restriction
to which any property of Lessee is subject or by which Lessee is
bound or affected.
e. That all equipment assigned hereunder is in good working order
and that all documentation relating to such equipment will be
provided to Assignee upon execution of this Agreement.
f. That it has inquired of all providers of Equipment and software
operating on such Equipment, and has obtained assurances from
such providers that the Equipment and software are year 2000
compliant.
4. Assignment of Maintenance Agreements: ICT will assign any maintenance
agreements which ICT has for the Equipment (the "Maintenance Agreements") to
Client immediately following the Effective Date. As of the Effective Date of
such assignment and subject to satisfactory terms and conditions of such
Maintenance Agreements, Client agrees to assume all of ICT's obligations under
such agreements. Until such time that Client assumes the Maintenance
Agreements, ICT will remain liable for all obligations of such agreements.
5. Transfer of Software Licenses: ICT warrant that, to the extent it has
software licenses for the Equipment (the "Software Licenses"), such Software
Licenses are transferable. ICT will transfer such Software Licenses to Client
as soon as practicable. If ICT is unable to transfer the existing licenses ICT
will pay Client the costs incurred by Client in obtaining new Software Licenses.
6. Payments to ICT: Client hereby agrees to pay ICT the following amounts by
wire transfer of immediately available federal funds to an account designated by
ICT or by check:
a) The amount of $ $802,752.00 on September 30, 1999; and
b) Eleven (11) equal monthly payments of $138,584.00 per month
payable on the last business day of each calendar month with the
first of such payments due October 29, 1999.
Any amount not paid when due shall bear interest at the rate of one and one-half
percent (1.5%) per month compounded daily. In the event Client fails to make any
payment when due, the entire unpaid balance of all payments due hereunder, plus
interest thereon, shall become immediately due and payable.
7. Deposits: ICT has paid deposits (the "Deposit Amounts") to the Lessors of the
Equipment Leases and the Real Estate Lease. In conjunction with the Assumption
and Assignment Agreements with respect to such leases, Client has paid to ICT
the Deposit Amounts. Should the Lessors mistakenly refund those Deposit Amounts
to ICT, ICT agrees that it will immediately forward such Deposit Amounts to
Client.
8. Indemnification: Each party hereby agrees to indemnify and hold harmless the
other from any claims, losses or damages, including attorney fees, suffered by
the other arising from a party's breach of this Agreement or any of the
Assignment and Assumption Agreements executed pursuant to Section 2 and 3 of
this Agreement or other failure to perform its obligations hereunder. A party
seeking indemnification shall provide the other party with prompt written notice
of any claim, suit, demand or other action for which such party seeks to be
indemnified and shall grant control of the defense and settlement thereof to the
other party. The party seeking indemnification shall cooperate with the other
party in the defense of any such claim, suit, demand or other action and shall
have the right, but not the obligation, to participate therein by using
attorneys of its choice at its expense. Any settlement of such claim, suit,
demand or other action shall require the consent of both Client and ICT, which
consent shall not be unreasonably withheld.
ICT agrees to indemnify and hold harmless Client from any claims, suits,
actions, causes of action, liabilities, losses or damages of a third party
incurred prior to the termination of the Services Agreement arising from the
occupancy of the space or the possession or operation of the equipment.
9. Third Party Consents: Client and ICT hereby agree to obtain prior to the
Effective Date all consents of third parties, including without limitation the
Landlord and the lessors under the Equipment Leases, necessary to complete the
assignment and assumption of the Real Estate Lease and the Equipment Leases as
set forth on Sections 2 and 3 hereof.
10. Default by Client: In the event Client defaults under the Equipment
Leases, the Real Estate Lease, the Maintenance Agreements or the Software
Licenses at any time after Client's assumption thereof hereunder and as a result
of such default ICT incurs any liability, and Client fails to cure such default
or pay ICT the amount of such liability within 30 days after written notice from
ICT, then Client shall be in default under this Agreement (a "Default"). In the
event of a Default, in addition to any other remedies, which may be available to
ICT, ICT shall have the right, but not the obligation, to retake possession of
the Deland Facility and the Equipment for ICT's sole use. If ICT wishes to
exercise such rights of possession, it shall provide Client with written notice
of such election and within ten (10) days after receipt thereof Client shall
deliver possession of the Deland Facility and the Equipment to ICT. At the time
Client so delivers possession to ICT, Client shall execute any assignment
agreements reasonably requested by ICT to effect such delivery.
11. Miscellaneous: This Agreement represents the entire agreement between the
parties with respect to the subject matter hereof and supercedes and replaces
any prior agreements, oral or written, with respect thereto. The laws of the
Commonwealth of Pennsylvania, except for its conflict of laws provisions shall
govern this Agreement. Any notices under this Agreement shall be sent by
certified or registered mail, return receipt requested, to the addresses of the
parties first above written, or as may be changed by notice given in accordance
with this Section 11, to the attention of the Chief Financial Officer with a
copy to the General Counsel
In WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
day and year first above written.
ICT Group, Inc. Cellular Express, Inc. d/b/a/ Boston
Communications Group
By: /s/ VA Paccapaniccia By: /s/ Karen A. Walker
Name: VA Paccapaniccia Name: Karen A. Walker
Title: Sr. VP Finance and CFO Title: CFO
TRANSFER & ASSUMPTION AGREEMENT
Assumption Agreement made by and between ICT Group, Inc., ("Lessee"),
Boston Communications Group, Inc. ("Transferee"), The ELEX Group, Inc.,
("Lessor"), and EUROPEAN AMERICAN BANK ("EAB"), a corporation organized under
the Banking Laws of the State of New York ("Assignee").
WHEREAS, Lessee is presently indebted to Lessor under an Agreement for
Leasing dated September 24, 1998, and Lease #980715 (collectively the "Lease")
between Lessee and ELEX, and duly assigned to EAB, copies of which Lease,
delivery and acceptance receipt, sale and Collateral Assignment by ELEX to EAB,
notice of assignment and financing statements filed with the Secretary of State
of Pennsylvania and Florida, with regard to the following equipment, are annexed
hereto as Exhibit A.
SEE ATTACHED SCHEDULE "A"
and,
WHEREAS, Lessee has agreed to sell, transfer and assign its interest in
such equipment and Lease to Transferee, and Transferee has agreed to assume all
of Lessee's obligations to Lessor:
NOW, THEREFORE, IT IS AGREED:
1. Rent Balance All of the parties acknowledge that the balance due to Lessor as
of the date hereof is payable in the manner set forth in the Lease, or other
evidences of indebtedness and any other documents, waivers or agreements in
connection therewith heretofore executed by Lessee (herein collectively referred
to as the "Obligations").
2. Rent Payments Lessee and Transferee hereby agree jointly and severally to pay
and discharge the lease payments and all other amounts payable under the
Obligations to Lessor or its successors and assigns, in accordance with the
terms of the Obligations and upon execution of this Agreement, to pay to EAB the
monthly installments of $35,590.00 for the next 47 remaining months including
the installment beginning with 11/1/99.
3. Assumption Transferee hereby assumes and agrees to perform all the covenants
of Lessee set forth in the Obligations.
4. Lessee's Liability Lessee shall continue to remain liable on the Obligations
and remain firmly bound as though this Agreement had never been entered into.
5. Lease Terms All terms, conditions, and covenants of the Obligations shall
remain unchanged and shall continue to remain in full force and effect.
6. Estoppel Lessee and Transferee hereby warrant, represent, and covenant that
the Obligations are not subject to any disputes, offsets, or counterclaims of
any kind or nature whatsoever.
7. Security Transferee acknowledges that Lessor has a valid first security
interest in the equipment and in confirmation thereof agrees to execute all
financing statements and other documents which Lessor may, in its sole
discretion, deem necessary to protect such security interest.
8. No release Lessee agrees that its obligations hereunder shall not be impaired
by any modification, release, or other alteration of any Obligations of Lessee
or of any security therefore, to all of which Lessee hereby consents and that
the liability of Lessee hereunder is direct and unconditional and may be
enforced without requiring Lessor or its assignees first to resort to any other
right, remedy, or security.
9. Consent Lessor hereby consents to the aforesaid transfer by Lessee to
Transferee.
Transferee: Lessee:
Boston Communications Group Inc. ICT Group, Inc.
By: /s/ Karen A Walker By: /s/ V A Paccapaniccia
Title: Chief Financial Officer Title: Sr. VP Finance & CFO
CONSENTED TO: CONSENTED TO:
Assignee: Lessor:
EUROPEAN AMERICAN BANK The ELEX Group, Inc.
By: Frederick W. Frinkelmare By: JoDee B. Pettine
Title: A V P Title: President
AGREEMENT FOR LEASING
THIS AGREEMENT by and between THE ELEX GROUP, INC., a New Jersey corporation,
whose address is P.O. Box 14, Medford, New Jersey 08055 ("ELEX"), and ICT GROUP,
INC., a Pennsylvania corporation whose address is 800 Town Center Drive,
Langhorne,PA 19047 ("Lessee").
WITNESSETH
WHEREAS, Lessee desires to lease items of equipment from ELEX or certain lessors
represented by ELEX, and ELEX is willing to arrange such leases; and
WHEREAS, the parties wish to set forth in full certain terms to be incorporated
in all leases to be executed pursuant to this Agreement For Leasing:
NOW THEREFORE, in consideration of the mutual covenants herein contained and
intending to be legally bound hereby, it is agreed as follows:
1. Leasing. Lessee hereby authorizes ELEX, and ELEX agrees to use its best
efforts to arrange leases of equipment wherein Lessee shall be the lessee and
ELEX or the other party or parties represented by ELEX shall be the lessor.
Such leases shall cover such equipment and shall contain such provisions
respecting payments, terms, covenants, conditions and provisions ("Provisions")
as the respective parties thereto may agree. Lessee will execute such leases
when ELEX or a lessor secured by ELEX is ready to enter into such leases. ELEX
shall make all arrangements between Lessee, and all lessor(s) represented by
ELEX.
2. Lease Provisions. Each such lease, ("Lease") shall, in addition to its
Provisions, incorporate by reference all of the following terms and conditions,
covenants and provisions (the term "ELEX" as used hereafter, being deemed to
refer to the lessor under each such Lease; the term "Unit" being deemed to refer
to each item of equipment described in and covered by a Lease; the term
"Equipment" being deemed to refer to all items of equipment described in and
covered by a Lease; and the term "Date of Acceptance" being deemed to refer to
the date a Unit is available to be placed in service for its intended purpose):
(a) Term. The Lease of the Equipment shall commence as of the date thereof
and shall continue in full force and effect until terminated by either
party as of any succeeding rental payment date, upon not less than one
hundred eighty days prior written notice to the other party; provided,
however, that the term of the Lease shall in no event be less than the
period specified as the "Initial Term" in the Lease covering such
Equipment.
If any term shall be extended or any renewal options shall be exercised, the
word "term" as used herein shall be deemed to refer to the Initial Term and all
extended or renewal terms of any Lease hereto, and all provisions of this
Agreement For Leasing shall apply during extended or renewal terms.
(b) Rent. As used herein, "rent" for the Equipment shall be the "total
rent" specified in the Lease, payable in successive installments at
the times set forth in the Lease. It is understood and agreed by the
Lessee that such "total rent" shall be of the essence of the Lease and
that ELEX shall be entitled to the payment of the full amount thereof
in consideration of the letting of the Equipment, including payment of
the then outstanding balance of such total rent (plus all other sums
due under the I-ease) in the event of the happening of any default
specified in Paragraph 20) below, subject to reduction only as
provided in Paragraph 20)(2)(b). Rent shall be paid to ELEX at its
address specified in the Lease, or as otherwise directed by ELEX free
from all claims, demands, or setoffs against ELEX, the manufacturer of
the Equipment or any assignee of ELEX If ELEX is subjected to any
liability because of any non-compliance with the Lease or any
regulatory law applicable to any of the Equipment on the part of the
Lessee, then upon notice to the Lessee of the nature and/or amount
thereof, the Lessee shall forthwith discharge the same, and if ELEX
shall incur any expense by reason thereof, the amount of such expense
shall be added to the installment of rent next falling due as
additional rent.
If any installment of rent is not paid within ten (10) days following the due
date thereof, a late charge equal to five percent (5%) of such installment shall
be due and payable as additional rent, and thereafter an additional late charge
of five percent (5%) of the then unpaid installment and late charges shall be
due and payable as of the eleventh day of each succeeding month thereafter until
such installment is paid.
(c) Use, Care and Operation. Lessee shall, at its expense:
(1) Receipt and Acceptance. Receive each Unit of Equipment at, and pay all
delivery charges for each Unit to, the location of original use
specified therefore; unload, and, if required, assemble and install
the same.
Lessee will signify the Date of Acceptance of each Unit of the
Equipment by the prompt execution and delivery to ELEX of a
Certificate of Acceptance in the form attached hereto as Exhibit I
("Certificate of Acceptance"). The Lessee's execution and delivery to
ELEX of the Certificate of Acceptance, signed by an officer of Lessee,
shall conclusively establish as between ELEX and the Lessee that each
Unit is in good operating order, repair, condition, appearance, is
suitable for the purpose of Lessee and the Lease, conforms to the
specifications applicable thereto and that such unit has not been used
or operated prior to the Date of Acceptance indicated therein. Such
acceptance shall not affect Lessee's claims against the manufacturer
or manufacturer's warranties.
(2) Fees and Taxes. Pay, and file any necessary returns with respect to,
all license fees, assessments or other governmental charges, and
sales, use, gross receipts, personal property, and other tax or taxes,
now or hereafter imposed by any state, federal or local government or
agency upon any Unit or upon the leasing, use or operation thereof, or
upon the receipt of rentals therefore or earnings arising therefrom
(excluding taxes imposed on ELEX's net income, except any such taxes
which are in substitution for, or relieve the Lessee from, the payment
of taxes which it would otherwise be obligated to pay or reimburse as
herein provided) before the same shall become in default or subject to
the payment of any penalty or interest and supply ELEX with receipts
or other evidence of payment satisfactory to ELEX; Lessee shall
promptly reimburse ELEX for all property taxes, or levies assessed
upon any Unit, paid by ELEX; however, there shall be no obligation of
ELEX to make payment of any property taxes assessed upon any Unit.
(3) Maintenance. At all times keep and maintain each Unit in good working
order, repair, and appearance; install, keep, and maintain on such
insignia and identification as ELEX may designate, and certify that
such has been done; make any and all necessary repairs and thereto in
order that each Unit, its components and accessories, shall continue
to fulfill their intended function or use; and keep and the same as
specified in the Lease therefore; except that Lessee shall not,
without ELEX's prior written consent, affix or install any accessory,
equipment, device, advertising matter or insignia to any Unit. ELEX
passes through to Lessee all warranties of the manufacturer of the
Equipment and Lessee shall have the right to, and will, directly avail
itself of all warranties and representations made by the manufacturer
with respect to the Equipment and ELEX agrees to execute such
documents as may be required to enable Lessee to obtain customary
warranty service for each Unit of Equipment from the manufacturer.
The Lessee agrees to execute at its own expense a maintenance contract
with the manufacturer of the Equipment and to keep said contract force
until the Equipment is surrendered to ELEX. Said maintenance contract
shall provide for at least the same services by the manufacturer as
those furnished under the manufacturer's standard maintenance contract
for nine-hour per day use of the Equipment, and shall provide for the
incorporation of such engineering changes and improvements in the
Equipment which are available without additional charge as part of such
services. A maintenance contract for the Equipment may not be entered
into with other than the manufacturer of the Equipment without the
approval of ELEX, which approval will not be unreasonably withheld.
All replacements, repairs, parts, and supplies shall be obtained at
Lessee's expense and shall be performed and supplied only by such
persons as shall be approved by ELEX. All replacements, repairs,
parts, supplies, accessories, equipment, devices, or other items
furnished or affixed to any Unit shall thereupon become ELEX's property
and Lessee shall arrange that there be delivered promptly to ELEX all
instruments or documents as may be necessary to evidence ELEX's
original and free, clear and unencumbered title thereto and ownership
thereof.
(4) Provisioning. Provide all labor, materials, services, utilities,
electric power, parts, and other supplies or items consumed by, or
required for, or in connection with the recommended use of, each Unit.
(5) Compliance with Law. Observe and comply with, and perform and execute,
all laws, rules, regulations, or orders of all state, federal, and
local governments or agencies which in any way affect or relate to, or
are applicable to, any Unit, or the use, operation, maintenance, or
storage thereof, and Lessee shall, and does hereby, indemnify ELEX and
agrees to hold ELEX harmless from any and all liability that may arise
from any infringement or violation of any such law, rule, regulation,
or order by Lessee, or Lessee's employees, or any other person.
(6) Use and Operation. Not use, operate, maintain, or store any Unit
improperly, carelessly, or in violation of the Lease or any
instructions furnished therefore by the manufacturer or by ELEX; nor
install or operate the same other than as specified in the Lease; nor
permit anyone other than its authorized agents, persons, and employees,
all of whom must be competent operators to operate the same, and for
whom Lessee agrees to be responsible.
(7) Non-Transferability. Not, without ELEX's prior written consent, which
shall not be unreasonably withheld, let or sublet any Unit; nor lend or
part with the possession of any Unit, or any part thereof-, nor assign
the Lease or any interest therein.
(8) Risk Bear and assume all risk and liability for (and Lessee does hereby
agree to indemnify and hold ELEX harmless from any and all claims,
liens, demands, or liability arising out of) the loss of or damage to
each Unit, the use, operation, maintenance, and storage thereof, and
the loads thereon, and the injury or death of persons and/or damage to
property howsoever arising therefrom or the use therefore, or the
condition of such Unit, during the continuance of the Lease and until
the return of such Unit. The indemnities and assumptions of liability
herein provided shall continue in full force and effect notwithstanding
the termination of the Lease, whether by expiration of time, by
operation of law, or otherwise
(9) Inspection. Upon ELEX's demand, permit ELEX, its agents or
representatives and persons designated by ELEX to enter upon the
premises where each Unit is located and to inspect each Unit, and its
manner of use, at any reasonable time and from time to time.
(10) Notice of Location. Not, without ELEX's written consent, remove any
Unit from the location of original use-, and at all time keep ELEX
advised of the location of any Unit should Lessee remove it from the
location of original use.
(d) Representations. Lessee does hereby agree that each Unit is of a size,
design, capacity, and material selected by Lessee, and that Lessee is
satisfied that each such Unit is suitable for Lessee's purposes, and
sufficiently durable under the conditions of usage thereof by Lessee,
and that ELEX has made no representations or warranties with respect to
the suitability or durability of any Unit for the purposes or uses of
Lessee, or with respect to the permissible load thereof, or any other
representation or warranty, express or implied, with respect thereto.
Lessee understands and acknowledges that no broker or supplier, nor any
salesman, broker or agent of any broker or supplier is an agent of
ELEX. Lessee represents to ELEX that the Equipment will be used
exclusively for business or commercial purposes and will not be used at
any time during the term of the Lease for personal, family or household
purposes.
NO REPRESENTATIONS
ELEX DOES NOT WARRANT THE EQUIPMENT IN ANY RESPECT, EITHER EXPRESSLY OR BY
IMPLICATION AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ELEX EXPRESSLY
DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS OR ADEQUACY FOR ANY
PURPOSE OR USE, QUALITY, PRODUCTIVENESS OR CAPACITY.
(e) Non-Liability of ELEX. ELEX shall not be liable to Lessee for any
loss, incidental or consequential damage, expense of any kind or nature
caused, directly, indirectly, by any Unit or the Equipment or the use,
maintenance, operation, handling, or storage thereof, or loads thereon,
or the repairs, servicing, or adjustments thereto, or because the same
is, or has become, unsuitable, or unserviceable, or by any interruption
of service or loss of use thereof, or strict liability with respect
thereto, or for any loss of business or damage whatsoever or howsoever
caused. ELEX shall not be liable to Lessee for delay in delivering, or
failure to deliver any Unit.
(f) Insurance. Lessee will procure and maintain at its sole cost and
expense, bodily injury and third party property damage insurance, with
insurers satisfactory to ELEX, for the Equipment, with liability limits
of not less than those specified in the Lease. Lessee will further,
without cost to ELEX maintain or cause to be maintained in effect
throughout the term of the Lease for the Equipment, with insurers
satisfactory to ELEX, insurance policies insuring against all-risk
physical loss or damage to such Equipment for an amount equal to the
Casualty Value (hereinafter defined) of such Equipment as of the last
monthly rent payment date set forth in Schedule of Casualty Values
attached to the Lease. All policies shall name as additional insured
ELEX, and assignees of ELEX and Lessee as their interest may appear and
provide that they cannot be amended or canceled with respect to ELEX,
and its assignees except on at least thirty (30) days prior written
notice to ELEX and its assignees. All policies or certificates thereof
and endorsements thereto shall be delivered to ELEX effective and
enforce at the time of execution of the Lease. All renewals thereof
shall be delivered to ELEX, least ten (10) days prior to the expiration
of the current policy. Lessee hereby appoints ELEX as its attorney-in-
fact, coupled with an interest, with full power of substitution, for
purposes of executing any proof of loss or related document, endorsing
any check, draft or other means of payment in connection with any loss,
compensable under such policies. This power is irrevocable for so long
as the Lessee remains indebted to FLEX or its assignee hereunder or
under any other agreement or instrument.
(g) Damage. Should any Unit:
(1) be damaged by reason of any cause, and be capable of repair without
impairment of value, Lessee shall repair the same at Lessee's sole
expense, as quickly as circumstances permit, without any abatement of
rent. In such event, should ELEX be indemnified under any insurance
Policy Or policies pursuant to the provisions of the Lease covering
such Unit, ELEX shall pay to Lessee the proceeds received by ELEX from
such insurance but only to the extent necessary to reimburse Lessee for
all amounts paid by it pursuant to this paragraph and properly
documented. In any event ELEX shall not be liable for any amount in
excess of said insurance proceeds; or
(2) be lost, stolen, destroyed, taken for a public use, or damaged beyond
repair by any cause whatsoever, ("Casualty") Lessee shall pay ELEX
within fifteen (15) days thereafter an amount equal to ELEX's original
cost of said Unit, as shown in Schedule A of the Lease of said Unit,
multiplied by the casualty loss percentage applicable to the date of
Casualty, as shown in Schedule B of the Lease of said Unit, ("Casualty
Value"). Upon such payment, and if the Lessee shall then not be in
default under the Lease, the balance of the rent due under the Lease
shall abate in an amount determined by the same percentage as the
original cost of the Unit(s) suffering the Casualty bears to the cost
of the Equipment. Until such payment Lessee shall continue the prompt
payment of all rent under the Lease and any such rent due for the
period before payment shall not abate. Following payment of the
Casualty Value Lessee shall be entitled to the proceeds of any
insurance covering the Unit(s) suffering a Casualty, but in no event
shall the amount of such reimbursement exceed the Casualty Value
previously paid by Lessee, and any excess shall be the property of
ELEX.
(h) Return of Equipment. Within ten (10) days after the expiration or
sooner termination of the term of the Lease (or of any extension
thereof), Lessee will, at Lessee's expense, return each Unit which has
not been lost, stolen, destroyed, or damaged beyond repair, to ELEX, or
ELEX's designee or designees, loaded on such appropriate conveyance and
properly packed and at such destination or destinations as ELEX may
designate, free of all advertising or insignia placed thereon pursuant
to Section 2(c) (3) by Lessee (other than identification tags of ELEX),
and in the same operating condition, order, repair, and appearance as
when received [reasonable wear and tear {except as provided in
Paragraph 2 (c) (3) above) and damage by any cause for which ELEX has
recovered under insurance, excepted]. If any such Unit is not so
returned within the time specified herein, Lessee shall continue to pay
the rent specified in the Lease until the Equipment is so returned in
the aforesaid condition.
(i) Time of Essence. Tune is of the essence of this Agreement. No express
or implied waiver by ELEX of any default hereunder shall in any way be,
or be construed to be, a waiver of any future or other default of
Lessee, or a waiver of any rights of ELEX, or a modification of any of
the I-ease terms, or an extension or enlargement of Lessee's rights
under the Lease.
(j) Default by Lessee.
(1) If (a) Lessee shall fail to pay the rent when due; or (b) Lessee shall
fail to perform any other term or condition of the Lease and such
failure shall continue for a period of thirty (30) days; or (c)
proceedings under the Federal Bankruptcy Code shall be instituted
against Lessee, or a receiver shall be appointed for Lessee or any of
its property, or any of the Equipment shall be attached or levied upon,
and such proceedings shall not be vacated, or fully stayed within ninety
(90) days-in the case of proceedings under the Federal Bankruptcy Code,
otherwise within twenty (20) days thereof; or (d) Lessee shall make an
assignment for the benefit of creditors, or institute proceedings for
debtor relief under the Federal Bankruptcy Code, or admit in writing its
inability to pay its debts generally as they become due; or (e) if any
representations or warranty made by Lessee hereunder or in connection
herewith shall be false, misleading or untrue in any material respect,
(2) then ELEX at its option, may declare the balance of the rent due under
the Lease, as well as any amounts specified herein or in the Lease as
items of additional rent and not then accrued and owing, immediately due
and payable, and upon any such declaration the same, plus the aggregate
amounts of any installment of rent(including any late charge thereon)
and any other sums then accrued and unpaid, shall be due and payable
forthwith, and ELEX shall have the right to take all steps appropriate
to collect the same and
(a) to take immediate possession of the Equipment, and
(b) to lease or sell, or both, the Equipment or any Unit upon such terms as
ELEX may elect, and apply the net proceeds on account of Lessee's
obligations hereunder, and
(c) in accordance with the terms of the Lease to confess a judgment against
the Lessee for the full amount of the rent and other sums due and owing
under the Lease.
The foregoing remedies and any other remedy available at law or equity are
cumulative and available to ELEX but ELEX shall be under no obligation to
exercise any such remedy. The exercise by ELEX of any such remedies shall not
release Lessee from its obligations hereunder or bar ELEX from proceeding
otherwise. Lessee shall additionally pay ELEX a reasonable sum as and for
attorneys' fees and an amount equal to such unreimbursed expenses as shall have
been paid or incurred by ELEX in the seizure of the Equipment or any Unit, or in
the enforcement of any of ELEX's rights or privileges hereunder.
(k) Assignment by ELEX. ELEX shall have the right to assign all or any part
of its rights under the Lease. In such event, the assignee shall be
entitled to enforce the rights so assigned but shall be under no
liability to the Lessee to perform any of the obligation of ELEX, unless
assignee assumes such liability in writing, in which case ELEX shall, to
the extent assignee assumes such liability, be released from all
of its obligations to Lessee. Lessee agrees that it will pay the rent
and all other sums due by Lessee hereunder directly to such assignee
after receipt of notice of such Assignment. Any assignee of ELEX's
rights may reassign such rights with the same force and effect as an
original assignment.
(1) Security. As security for the faithful performance by Lessee of the
terms and conditions of the Lease, Lessee shall deposit with ELEX the
amount indicated in the Lease as security deposit and/or advance
rentals. Provided Lessee has at all times fully performed all its
covenants and conditions agreed upon to be performed, ELEX will return
to Lessee the security deposit at the expiration of the Lease. ELEX
may, but shall not be required to, apply such security deposit and/or
advance rentals to discharge any overdue obligation of the Lease.
(m) Notices. All notices, consents, waivers or other communications required
under the Lease shall be in writing by certified mail, and any such
notice, consent, waiver or communications shall be irrevocable and
become effective when deposited in the United States mail, with proper
postage prepaid, addressed to the party intended to be served at its
address appearing in this Agreement or in the Lease, or at such other
address as such party may, from time to time, designate in writing.
(n) General. This is a contract of lease only, and nothing herein shall be
construed as conveying to Lessee any right, title, or interest in or to
the Equipment, except its rights as a Lessee only. Title to the
Equipment shall at all times remain in ELEX, and Lessee shall at all
times, at Lessee's expense, protect and defend ELEX's title thereto
against all claims, liens, and legal processes of Lessee's creditors, or
persons claiming through Lessee, and keep the Equipment free and clear
from all such liens, claims, and processes. ELEX covenants, subject to
performance by Lessee of all of its obligations under the Lease, that
Lessee will have quiet enjoyment of the Equipment during the term of the
Lease. Each Unit is, and shall remain, personal property irrespective
of its use or manner of attachment to real property, and Lessee shall
obtain for ELEX a real property waiver from owner or mortgagee of the
premises where any Unit is kept. Said waiver shall provide that the
Equipment shall remain personal property removable by ELEX or its
assignee at any time without notice; ELEX or its assigns shall have
access to the premises as may be required for the purpose of inspection,
sale, and removal the real property owner waives any right, title, lien,
or interest, which he may otherwise have in the Equipment. The parties
agree that this Agreement for Leasing and each I-ease are intended to
qualify as a "finance lease" under Article 2A of the Uniform Commercial
Code. Lessee acknowledges that (a) Lessee has received a copy of the
contract by which ELEX acquired the Equipment (the" Supply Contract") or
(b) Lessee has reviewed and approved the Supply Contract or (c) ELEX has
informed Lessee in writing that Lessee may have rights under the Supply
Contract and that Lessee should contact the supplier of the description
of any such rights.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSEE HEREBY WAIVES ANY RIGHTS TO
(i) CANCEL ANY LEASE, (ii) REPUDIATE ANY LEASE, (iii) REVOKE ACCEPTANCE OF THE
EQUIPMENT, (iv) RECOVER DAMAGES FROM ELEX FOR ANY BREACHES OF WARRANTY OR FOR
ANY OTHER REASON, (v) A SECURITY INTEREST IN THE EQUIPMENT IN LESSEE'S
POSSESSION OR CONTROL FOR ANY REASON, (vi) DEDUCT ALL OR ANY PART OF ANY CLAIMED
DAMAGES RESULTING FROM ELEX'S DEFAULT, IF ANY, UNDER ANY LEASE, (vii) "COVER" BY
MAKING ANY PURCHASE OR LEASE OF, OR CONTRACT TO PURCHASE OR LEASE, EQUIPMENT IN
SUBSTITUTION FOR THAT DUE FROM ELEX, (viii) RECOVER ANY GENERAL, SPECIAL
INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR ANY REASON WHATSOEVER, AND (ix)
SPECIFIC PERFORMANCE, REPLEVIN, DETINUE, SEQUESTRATION, CLAIM OR DELIVERY OR THE
LIKE FOR ANY EQUIPMENT IDENTIFIED TO ANY LEASE.
Each individual Lease executed pursuant to the Agreement for Leasing shall
constitute a separate and independent lease.
ELEX's obligations shall be suspended to the extent that ELEX is hindered or
prevented from complying therewith because of strikes, lockouts, war, acts of
God, fires, storms, accidents, governmental regulations or interference or other
acts beyond ELEX's control. No obligation of ELEX, except as otherwise
specified herein, shall survive the term of the Lease, or sooner termination
thereof, and should ELEX permit use by Lessee of any Unit beyond the term
specified therefore, the Lease obligations of Lessee shall continue and such
permissive use shall not be construed as a renewal of the term thereof, or as a
waiver of any right or continuation of any obligation of ELEX thereunder, and
ELEX may take possession of any such Unit at any time upon demand after 10 days
written notice. The cancellation or other termination, whether by operation of
law or otherwise, of the Lease shall not release Lessee from any of its
obligations hereunder or thereunder save [except as provided in Paragraph 2(c)
(8) above] upon payment in full by Lessee to ELEX of the Termination Value set
forth in the Lease. In the event ELEX shall be entitled, pursuant to any
provision hereof, to repossess any Unit, ELEX shall not be liable to the Lessee
in respect of any damage arising out of any such repossession except for ELEX's
negligent or wrongful act. This Agreement contains the entire understanding
between ELEX and Lessee, and any change or modification must be in writing and
signed by both parties. This Agreement is entered into under and shall be
construed in accordance with the laws of the State of New Jersey insofar as
applicable to the rights of ELEX, Lessee and any third party as to the
Equipment.
No term of provision of this Agreement for Leasing or any Lease may be amended,
altered, waived, discharged, or terminated except by a written instrument signed
by the parties hereto, and in compliance with Section 2-208(2)of the Uniform
Commercial Code requiring separate signature of this provision, Lessee has
signed in the space provided below.
___VP___________
(Lessee's initials)
(o) Lessee shall furnish to ELEX (i) within ninety (90) days after the close
of each fiscal year of Lessee, a copy of its financial statements,
including a Balance Sheet and Profit and Loss Statement of Lessee as of
the end of such year, in each case certified by public accountants of
recognize standing acceptable to ELEX and (ii) other such financial
information respecting the Financial condition and operation of Lessee
as ELEX may from time to time reasonable request.
3. Special Provisions.
4. Resolutions and Recording Costs.
(a) Lessee agrees that it will provide ELEX or its assignee with appropriate
opinions of counsel and certified copies of all necessary authorizing
resolutions, as may be reasonably requested by ELEX or any assignee or
counsel therefore.
(b) Lessee agrees that it will pay any and all recording costs necessarily
incurred to establish and record any lien in favor of any assignee of
ELEX
5. Miscellaneous.
(a) It is understood and agreed between the parties hereto that, subject to
Lessee's rights to the Equipment so long as Lessee is not in default
under the Lease, the several instruments and documents incidental or
related to this Agreement, to the assignment of any Lease, and/or to the
mortgaging of any of the Equipment by ELEX may contain such provisions
-as may be required by reason of the laws of the place where any of the
Equipment is located in order that ELEX or its assignees or a mortgagee
or holder of a security interest may obtain the full benefits of this
Agreement in accordance with its original intendments and purposes, or
as may be reasonably required by any such assignee for the full
protection of any security interest which such assignee may have in the
Equipment or any Lease, and the provisions of this Agreement are subject
to all such requirements.
(b) The headings and sub-headings contained in this Agreement are solely for
convenience and are not intended to be complete or accurate summations
or indices of the contents of their respective paragraphs.
(c) Any provision of this Agreement found to be prohibited by law shall be
ineffective to the extent of such prohibition without invalidating the
rest of this Agreement.
(d) Lessee agrees that at any time and from time to time, upon the written
request of ELEX or its Assignees, Lessee will promptly and duly execute
and deliver any and all such further instruments and documents as ELEX
or its Assignees may deem desirable in obtaining the full benefits of
this Agreement and any Lease herewith and of the rights and powers
granted thereunder. Lessee hereby grants ELEX the authority to sign and
file on Lessee's behalf any document or financing statement ELEX deems
necessary to perfect or protect ELEX's interest in the Equipment or
pursuant to the Uniform Commercial Code.
(e) This Agreement contains the whole understanding of the parties; shall be
cons trued and enforced in accordance with the laws of the State of New
Jersey and shall inure to the benefit of, and be binding upon, the
respective legal representatives and heirs of the individual parties;
and the successors and assigns of the corporate parties.
IN WITNESS WHEREOF, the parties hereto have executed these presents, the
corporate parties by their officers thereunto duly authorized this 24th day of
September 1998.
ICT GROUP, INC. THE ELEX GROUP, INC.
(Lessee) (ELEX)
BY /s/ VA Paccapaniccia BY /s/ JoDee B. Pettine
TITLE Senior VP Finance and CFO TITLE President
Signed in my presence in the Signed in my presence in the State of
Commonwealth of Pennsylvania New Jersey
/s/ Diane Haeselin, Notary /s/ Sharon McCarty, Notary
Notarial Seal SHARON MCCARTY
Diane Haeselin, Notary Public NOTARY PUBLIC OF NEW JERSEY
Middletown Twp., Bucks County MY COMMISSION EXPIRES MARCH 27, 1999
My Commission Expires May 12, 2001
Member, Pennsylvania Association of Notaries'
LEASE #980715
THE ELEX GROUP, INC., a New Jersey corporation, whose address is P.O. Box 14,
Medford, New Jersey 08055 ("ELEX"), hereby leases to ICT GROUP, INC., a
Pennsylvania corporation whose address is 800 Town Center Drive, Langhorne, PA
19047
('Lessee"), and Lessee hereby hires and takes from ELEX, the equipment described
in Schedule A attached hereto and made a part hereof ('Equipment"), at the rent
and upon the terms and conditions herein set forth:
1. Location of Original Use: 1398 South Woodland Blvd., DeLand FL 32720
2. Initial Term: Commencing on the first day of the month following the Date of
Acceptance of the Equipment under Lease and expiring Sixty (60) months
thereafter.
3. Rental: Monthly Rent: $ 35,590.00 Security Deposit: $ 71,180.00 Advanced
Rentals: $ None
Total Rent: $ Payable in Sixty (60) successive equal monthly installments of
Thirty Five Thousand Five Hundred Ninety Dollars and No Cents ($35,590.00)
each plus the Additional Rent specified in the Special Provision For Terminal
Rental Adjustment.
Each installment shall be due upon the first day of each and every month after
the Date of Acceptance of the Equipment, except for the first monthly
installment thereof and any Security which is due upon the execution of this
Lease. Additionally the Lessee shall pay to ELEX an interim rent for the period
from the Date of Acceptance of the Equipment to the first day of the month
following such date ('Interim Rent Period"). Said interim rent shall be that
proportion of a monthly rent installment which bears the same ratio as the
number of days of the Interim Rent Period bears to thirty (30) days, and shall
be payable on the first day of the month following the Interim Rent Period.
4. Reports and Payment of Rental: Lessee shall make all payment and send all
notices to ELEX at the address of ELEX set forth above, or at such other address
as ELEX may, from time to time, designate in writing.
5. Liability Insurance: Lessee shall provide and maintain the following
liability insurance:
A. Public Liability Bodily Injury, not less than $500,000 per one person,
$1,000,000 per one accident.
B. Property Damage, not less than $500,000.
6. Confession of Judgment: In the event of any default by Lessee under this
Lease as provided in Paragraph 20) of the Agreement For Leasing, Lessee hereby
empowers any Prothonotary, Clerk of Court or attorney of any Court of Record to
appear for Lessee and, with or without complaint filed, confess judgment, or a
series of judgments, against Lessee in favor of ELEX or any assignees of ELEX,
as of any term, present or future, for all or any part of the rent specified in
this Lease and then unpaid including at ELEX's option the rent for the entire
unexpired balance of the term of this Lease and all other charges, payments,
costs and expenses reserved as rent or additional rent, together with interest
thereon, costs of suit and an attorney's commission for collection of five (5%)
percent of the total of the foregoing sums; but in any event said attorney's
commission shall be not less than One Thousand Dollars ($1,000.00); and for so
doing, this Lease or a copy hereof, verified by affidavit, shall be a sufficient
warrant; and the said judgment from and after entry thereof, shall bear interest
at the highest rate of interest a judgment may bear under the laws of the State
of New Jersey.
Lessee hereby waves the benefit of any laws which might now or hereafter
authorize the stay of any execution to be issued on any judgment recovered on
this Lease or the exemption of any property from levy or sale thereunder.
Lessee also waives and releases ELEX or any assignee of ELEX and said attorney,
from all errors, defects and imperfections whatsoever of a procedural nature in
the entering of any judgment or any process or proceedings relating thereto.
7. WARRANTIES AND REPRESENTATIONS: LESSEE DOES HEREBY AGREE THAT EACH UNIT IS OF
A SIZE, DESIGN, CAPACITY AND MATERIAL SELECTED BY LESSEE, AND THAT LESSEE IS
SATISFIED THAT EACH SUCH UNIT IS SUITABLE FOR LESSEE'S PURPOSES, AND
SUFFICIENTLY DURABLE UNDER THE CONDITIONS OF USAGE THEREOF BY LESSEE, AND THAT
ELEX MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE SUITABILITY,
DURABILITY, MERCHANTABILITY OR FITNESS FOR ANY PURPOSE OF ANY UNIT OR ANY OTHER
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT THERETO.
8. Special Provisions: The following special provisions shall be incorporated
herein by reference:
Special Provision For Option To Purchase
Special Provision For Option To Renew
Special Provision For Option To Early Terminate
Special Provision For Terminal Rental Adjustment
"This is Counter-part No. 2 of 3 signed counterparts. A security interest in
this Lease may be created only by possession of Counter-part No. 1."
I
9. By the execution hereof, there are incorporated and made a part hereof for
all purposes, as though set forth herein at length, each and all of the terms,
conditions and provisions of Paragraphs 2 through 5 of the Agreement For Leasing
dated September 1998 between Lessee and THE ELEX GROUP, INC. a copy of which is
attached hereto. Unless specifically defined in this Lease the defined terms
used herein shall have the same meaning as set forth in the Agreement For
Leasing.
10. UPON ACCEPTANCE OF THE EQUIPMENT, THIS LEASE SHALL CONSTITUTE A
NONCANCELABLE NET LEASE COVERING THE EQUIPMENT. LESSEE'S OBLIGATIONS TO PAY ALL
RENT AND OTHER AMOUNTS WHEN DUE AND TO PERFORM AS REQUIRED UNDER THIS LEASE ARE
UNCONDITIONAL AND IRREVOCABLE- SUCH OBLIGATIONS ARE NOT SUBJECT TO CANCELLATION,
MODIFICATION, REPUDIATION, REVOCATION OR EXCUSE. LESSEE SHALL NOT BE ENTITLED TO
ANY ABATEMENT, REDUCTION, OFFSET OR COUNTERCLAIM WITH RESPECT TO THESE
OBLIGATIONS FOR ANY REASON WHATSOEVER, WHETHER ARISING OUT OF CLAIMS AGAINST
ELEX, THE MANUFACTURER OR SUPPLIES' DEFECT IN, LACK OF FITNESS FOR USE OF, LOSS
OF POSSESSION OR USE OF OR DAMAGE OR DESTRUCTION OF THE EQUIPMENT, ANY
PROHIBITION AGAINST USE OR OTHERWISE.
11. Lessee warrants and agrees that it has not and will not use or operate any
Unit(s) of Equipment prior to the Date of Acceptance of the Unit(s) under Lease.
In order to assure ELEX of the tax benefits available to an owner of Equipment
with whom the first use begins the parties incorporate herein the provisions of
"Schedule C" attached hereto.
This Lease shall inure to the benefit of and shall be binding upon ELEX and
Lessee, their assigns and successors.
12. IN WITNESS WHEREOF, the parties hereto have hereunto caused this Lease to be
duly executed as of the 24th day of September 1998.
ICT GROUP, INC. (Lessee) THE ELEX GROUP, INC.
BY /s/ VA Paccapaniccia BY /s/ JoDee B. Pettine
TITLE Senior VP Finance and CFO TITLE President
ATTEST: /s/ Robert Hawling, VP Facilities
Signed in my presence in Signed in my presence in the State of
the Commonwealth of Pennsylvania New Jersey
/s/ Diane Haeselin, Notary /s/ Sharon McCarty, Notary
Notarial Seal SHARON MCCARTY
Diane Haeselin, Notary Public NOTARY PUBLIC OF NEW JERSEY
Middletown Twp., Bucks County
MY COMMISSION EXPIRES MARCH 27, 1999
My Commission Expires May 12, 2001
Member, Pennsylvania Association of Notaries'
SCHEDULE A
Page 1 of 1 Pages
DESCRIPTION OF EQUIPMENT
Manufacturer: Aspect, Commercial Business Interiors, Interior Concepts,
Centercore, IKON Office Solutions, AFO Consulting, Marshall B. Bone, Inc.,
Kronos, DeLand Heating & Air Conditioning Co., Florida Electric Works
Location: 1398 South Woodland, Deland FL 32720
QTY. MODEL# DESCRIPTION SERIAL NUMBER
VARIOUS FURNITURE AND FIXTURES AND TELECOMMUNICATIONS EQUIPMENT
SCHEDULE B
CASUALTY LOSS AND TERMINATION VALUE SCHEDULE
Casualty Loss Occurring or Notification of Termination Given After Casualty
Termination
Rental Payment Number Loss Values* Values*
0 115
12 98
24 81 72.90
36 59 55.50
48 38 35.90
60 10 10.00
*Values are given as a percentage of original cost.
LB16T60 Lease Number 980715
SCHEDULE C
Indemnity for Loss of Depreciation
If ELEX shall not be entitled to a deduction with respect to ELEX's full cost of
any Unit of Equipment list in Schedule A of this Lease based upon The
Accelerated Cost Recovery System provided by Section 168 of the Internal Revenue
Code of 1986, as amended, in the amounts specified in Section 168 (b) (1)
thereof for Recovery Property defined therein as having a class life of 5-Year
Property (Deduction") then Lessee shall pay to ELEX within 30 days of ELEX's
demand, as additional rent hereunder, an amount which, after deduction of all
taxes required to be paid by ELEX in respect of the receipt thereof, shall be
equal to the sum of (x) an amount equal to the additional taxes paid or payable
by ELF-X in consequence of the failure to obtain the benefit of such Deduction
and (z) any interest or penalty which may be assessed against ELEX in connection
with such inability to obtain the benefit of such Deduction, all of which
amounts shall be payable on written demand made at any time after payment of
the additional income tax. Notwithstanding the indemnity given by Lessee hereby,
it is understood and agreed that ELEX shall have full control over the filing of
its tax returns and any and all negotiations with tax authorities with respect
thereto; and shall be the sole judge of the terms upon which it is appropriate
to settle any controversy with the taxing authorities with respect thereto.
Without limiting the generality of the preceding sentence, in the event of any
such controversy, ELEX shall, to the extent practicable, notify Lessee of, and
consult with Lessee in connection with, any negotiations with tax authorities
relative to such controversy. The term, "tax return" as used herein shall
include any tax return filed separately by ELEX or any consolidated return in
the filing of which ELEX may join with an affiliated corporation.
L-C1951 Lease Number
980715
Special Provision For Option To Purchase
In the event that the Lease has not been earlier terminated and that no default
has occurred Lessee may, by written notice delivered to ELEX at least one
hundred eighty (180) days prior to the expiration date of the term or any
previously extended term (the "Expiration Date"), elect to purchase the
Equipment then subject to the Lease for a purchase price equal to the "Fair
Market Value" thereof as of the end of such term, such purchase to be on an
as-is, where-is basis, without representation or warranty, expressed or implied,
of any kind whatsoever by ELEX. As used in this Section, "Fair Market Value"
shall be determined by ELEX and Lessee on the basis of what would be obtained in
an arm's length transaction between an informed and willing buyer (other than a
buyer currently in possession or a used equipment dealer) and an informed seller
under no compulsion to sell, and in determining such amount (i) the cost of
removal from the location of current use shall not be a deduction from such
amount and (6) it shall be assumed that each Unit is in the condition required
by the Lease. If on or before sixty (60) days prior to the Expiration Date ELEX
and Lessee are unable to agree upon "Fair Market Value", such Fair Market
Value shall be determined by an independent appraiser mutually agreed upon by
ELEX and Lessee within (10) days after selection, or failing such agreement, by
a panel of three independent, qualified appraisers one of whom shall be selected
by ELEX, the second by Lessee and third appointed by the first two selected all
within the ten (10) days. The appraiser or panel of appraisers, as the case may
be, shall make its determination within a period of thirty (30) days following
appointment. The determination so made shall be conclusively binding upon both
ELEX and Lessee. The expenses and fees of all appraisers shall be borne by
Lessee.
SP-OTI'95 Lease Number
980715
Special Provision For Option To Renew
(1) Renewal Option. In the event that the Lease has not been earlier terminated
and that no default has occurred and is continuing, Lessee shall have the option
to extend the term of Us Lease or prior extensions thereof with respect to the
Equipment for a period specified by Lessee but in any event each extension shall
be for not less than six (6) months in duration ('Additional Term"), commencing
on the expiration date of the term or any previously extended term (the
"Expiration Date") if notice of the exercise of such option is given by Lessee
in Writing to ELEX at least one hundred eighty (180) days prior to the
Expiration Date of its intention to extend the term of this Lease for the
Additional Term.
(2) Rentals During Additional Term. The rental to be paid during all such
extensions shall be an amount equal to "Fair Market Rental" as of the
commencement of the Additional Term, payable in advance in equal and
consecutive monthly installments on each monthly anniversary of the Expiration
Date commencing with the Expiration Date. As used in this section, the term
"Fair Market Rental" shall mean an amount equal to the aggregate net rental
which would be obtained in an arm's length transaction between an informed and
willing lessee (other than a lessee in possession or a used equipment dealer)
and an informed and willing lessor under no compulsion to lease, and in
determining such amount (i) the cost of removal from the location of current
use shall not be a deduction from such amount and (~) it shall be assumed that
at the time of the commencement of such Additional Term, each Unit is in the
condition required by the Lease. If on or before sixty (60) days prior to the
Expiration Date, ELEX and Lessee are unable to agree upon a determination of
Fair Market Rental, such Fair Market Rental shall be determined by an
independent appraiser mutually agreed upon by ELEX and Lessee within ten (10)
days after selection, or failing such agreement, by a panel of three independent
qualified appraisers, one of whom shall be selected by ELEX, the second by
Lessee and the third appointed by the first two selected all within the ten (10)
days. The appraiser or panel of appraisers, as the case may be, shall make its
determination within a period of thirty (30) days following appointment. The
determination so made shall be conclusively binding upon both ELEX and Lessee.
The expenses and fees of all appraisers shall be borne by Lessee.
SP-OTR95 Lease Number
980715
Special Provision For Early Termination
(1) If during the Initial Term all or part of the Equipment becomes obsolete or
surplus to Lessee's requirements, and provided no default has occurred, Lessee
may at any time after the thirty sixth (36th) month, upon not less than ninety
(90) days prior written notice to ELEX, terminate,the Lease with respect to such
Equipment, or any Unit(s) thereof, ("Terminated Unit(s)"j, as of any succeeding
rental payment date specified in said notice (Termination Date").
(2)On the Termination Date the Lessee shall return the Terminated Unit(s) to
ELEX pursuant to the provisions of sub-paragraph 2(h) of the Agreement For
Leasing.
(3) Following the giving of written notice to terminate the Lease as to any Unit
s), ELEX and Lessee shall endeavor to obtain bids for the purchase or lease of
the Terminated Unit(s) on an as-is, where-is basis and without representations
or warranties, expressed or implied, of any kind whatsoever.
(4) Upon the Termination Date, Lessee shall pay ELEX the regular monthly
installment of rent, without any abatement as described in paragraph ten (10)
hereof, plus the net Termination Value, which shall be deemed to be the amount,
if any, by which the Termination Value, defined in paragraph seven (7) hereof,
exceeds the net amount received by ELEX for the Terminated Unit (s).
(5) If by the Termination Date a satisfactory bidder(s) has not been obtained
for the sale or lease of all of the Terminated Unit(s), ELEX shall within ninety
(90) days after the return of the remaining Unit(s) to ELEX sell or lease the
Unit(s) for the highest offer then available.
(6) Lessee shall be refunded an amount equal to the proceeds of the sale or the
present value of the lease, as defined in paragraph eight (8) hereof, less the
actual expenses incurred by ELEX in making the sale(s) or lease(s), including,
without limitation, storage, insurance, advertising, sales taxes and attorneys'
fees for the Terminated Unit(s) and, but in no event shall the refund be in
excess of the net Termination Value previously paid by Lessee to ELEX
(7) The Termination Value shall be computed by multiplying ELEX 's original cost
for the Terminated Unit(s) as shown on Schedule A of the Lease, by the
applicable termination percentage shown on Schedule B of the Lease (Termination
Value').
(8) The present value of a lease shall be deemed to be equal to the aggregate
net rentals of such lease discounted at a rate equal to three percent (3%) over
the average then current prime interest rate or equivalent thereof charged by
the three largest New York commercial banks on the Termination Date.
(9)In the event that no bidder has been obtained for the sale or lease of all of
the Terminated Unit(s) -, within ninety (90) days after the Termination Date,
ELEX shall transfer ownership of the Unit(s) to Lessee.
(10) In the event of termination of the Lease as to any Unit(s), the amount of
each remaining installment of rent as provided in the Lease shall be reduced
and abated by the same percentage as ELEX's original cost of such Terminated
Unit(s) bears to the total original cost of all Unit(s) as shown in Schedule A
of the Lease.
SP-PPM5 Lease Number
980715 -
SPECIAL PROVISION FOR TERMINAL RENTAL ADJUSTMENT
(1) Since the rental payments due under the Lease are based upon the anticipated
residual value of the Equipment being equal to or greater than 10% of the
original cost, as shown on Schedule A of the Lease, ("Residual Value"), it is
agreed that notwithstanding anything to the contrary contained herein Lessee
shall pay to ELEX prior to the termination of the Term of the Lease
("Termination Date") as "Additional Rent" the amount, if any, by which the
Termination Value, as specified on Schedule B of the Lease, exceeds the net
proceeds received as of the date thereof from the sale of the Equipment.
(2) Following the giving of written notice to terminate the Lease, ELEX and
Lessee shall endeavor to obtain bids for the purchase of the Units of Equipment
on an as-is, where-is basis and without representations or warranties, express
or implied, of any kind whatsoever. Within ninety (90) days after the
Termination Date, ELEX shall sell said Unit(s) for the highest offer then
available. Upon such sale, Lessee shall be refunded an amount equal to the
proceeds of the sale less the actual expense incurred by ELEX in making the
sale, including, without limitation, storage, insurance, advertising, sales
taxes and attorneys' fees, but in no event shall the refund be in excess of the
Additional Rent previously paid.
(3) In the event that no bidder has been obtained for the sale of all of the
Units of Equipment within ninety (90) days after the Termination Date, ELEX may
at its option transfer title to Lessee for those Units of Equipment which have
not been sold.
SPFTRA1981 Lease # 980715
AGREEMENT FOR THE PURCHASE OF EQUIPMENT UNDER LEASE
By and between The ELEX Group, Inc., a New Jersey corporation whose address is
P.O. Box 14, Medford, New Jersey 08055 ("ELEX"), and ICT GROUP, INC., a
Pennsylvania corporation whose address is 800 Town Center Drive, Langhorne, PA
19047 ("Lessee").
WITNESSETH:
WHEREAS, ELEX and Lessee have entered into a lease covering the equipment set
forth on Schedule A attached hereto and made a part hereof ("Equipment") dated
September 1998 -#980715 ("Lease"); and
WHEREAS, the parties now wish to modify some of the terms and conditions of the
Lease;
NOW, THEREFORE, in consideration of the mutual promises set forth hereinafter
and in the Lease and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is hereby agreed as follows:
1) In the event that the Lease has not been earlier terminated and that no
continuing default is then occurring, either party may, by giving written notice
to the other party at least one hundred eighty (180) days prior to the
expiration date of the term of the Lease ("Expiration Date"), elect to have the
equipment then subject to the Lease purchased by the Lessee on the Expiration
date for a purchase price equal to ten percent (10%) of the original cost of the
Equipment, such purchase to be on an as-is, where-is basis, without
representation or warranty, expressed or implied, of any kind whatsoever by ELEX
2) In the event of a conflict between the provisions of the aforesaid Lease and
this Agreement, the provisions of this Agreement shall govern.
In witness whereof, the parties hereto have caused this Agreement For The
Purchase Of Equipment
Under Lease to be duly executed this 24th day of September 1998.
ICT GROUP, INC. THE ELEX GROUP, INC.
(Lessee) (ELEX)
By: /s/ VA Paccapaniccia By: /s/ JoDee B. Pettine
Title: Sr VP Finance and CFO Title: President
LESSEE'S CONSENT AND AGREEMENT
The undersigned ("Lessee") acknowledges receipt of notice that ELEX will execute
the attached Collateral Assignment(s), relating to the Lease of even date
herewith ("Lease"), and for good and valuable consideration, receipt whereof is
hereby acknowledged, Lessee hereby consents to the execution and delivery of
said Collateral Assignment(s) and to all the terms and provisions thereof and
agrees that upon notice to the Lessee of such Collateral Assignment(s):
(a) The Lessee will pay directly to the last Assignee or to whomsoever such
Assignee shall direct (i) all rent and other moneys due and to become due from
the Lessee as set forth in the Lease, (ii) all amounts payable by reason of
acceleration of the liability of the Lessee for such rent or other moneys and
(iii) all other amounts at any time owing under the Lease by the Lessee.
(b) The Lessee will not assert against such last Assignee, or against whomsoever
such Assignee shall have directed payment to be made, any defense, setoff or
counterclaim (including recoupment against, or other diminution of, amounts
payable by the Lessee to such Assignee) which it may have against ELEX or
anyone, whether arising under the Lease, hereunder or otherwise. Lessee
acknowledges that any assignment or transfer by ELEX shall not materially change
Lessee's duties or obligations under the Lease.
(c) The Lessee will not modify or consent to any modification of the terms of
the Lease without the written consent of ELEX and such last Assignee.
(d)All obligations and warranties of ELEX contained in the Lease shall be and
remain enforceable by the Lessee against and only against ELEX and its
successors and assigns and not against the Collateral Assignee.
(e)Any assignment executed and delivered pursuant to the right reserved to ELEX
and its assignees in Paragraph 2(k) of the Agreement for Leasing shall be deemed
to be included within this Consent and Agreement.
Dated: September 24, 1998 ICT GROUP, INC.
(Lessee)
BY /s/ VA Paccapaniccia
Title Sr. VP Finance and CFO
SEAL
Attest Robert Hawling VP Facilitie
EXHIBIT I
CERTIFICATE OF ACCEPTANCE
TO: THE ELEX GROUP, INC. ("ELEX")
I, a duly appointed inspector and authorized representative of ICT GROUP, INC.,
a Pennsylvania corporation whose address is 800 Town Center Drive, Langhorne, PA
19047
("Lessee"), do hereby certify in accordance with the Lease dated September 1998
between Lessee and ELEX that (i) I do accept the Unit(s) of Equipment listed in
the Schedule A attached hereto and made a part hereof which has (have) a
purchase price of $ 1,987,056 (ii) the Date of Acceptance is as set forth below
and (iii) the Unit(s) has (have) been delivered and installed at:
1398 South Woodland Blvd., DeLand FL 32720
The execution of this Certificate of Acceptance will in no way relieve or
decrease the responsibility of any manufacturer of any Unit(s) of Equipment for
any warranties it has made with respect to any Unit(s) of Equipment.
ICT GROUP-INC.(Lessee)
BY /s/ VA Paccapaniccia
(Person authorized to sign)
TITLE Sr VP Finance and CFO
DATE 9/24/98
Signed in my presence in Signed in my presence in the
the Commonwealth of Pennsylvania State of New Jersey
/s/ Diane Haeselin, Notary /s/ Sharon McCarty, Notary
Notarial Seal SHARON MCCARTY
Diane Haeselin, Notary Public NOTARY PUBLIC OF NEW JERSEY
Middletown Twp., Bucks County MY COMMISSION EXPIRES MARCH 27, 1999
My Commission Expires May 12, 2001
Member, Pennsylvania Association of Notaries'
THE ELEX GROUP, INC
(ELEX)
BY JoDee B. Pettine
TITLE President
TRANSFER & ASSUMPTION AGREEMENT
Assumption Agreement made by and between ICT Group, Inc., ("Lessee"),
Boston Communications Group, Inc. ("Transferee"), The ELEX Group, Inc.,
("Lessor"), and JEFFERSON BANK ("Jefferson"), a corporation organized under the
Banking Laws of the State of Pennsylvania ("Assignee").
WHEREAS, Lessee is presently indebted to Lessor under an Agreement for
Leasing dated March 29, 1999 and Lease #990727 (collectively the "Lease")
between Lessee and ELEX, and duly assigned to Jefferson, copies of which Lease,
delivery and acceptance receipt, sale and Collateral Assignment by ELEX to
Jefferson, notice of assignment and financing statements filed with the
Secretary of State of Pennsylvania and Florida, with regard to the following
equipment, are annexed hereto as Exhibit A.
SEE ATTACHED SCHEDULE "A"
and,
WHEREAS, Lessee has agreed to sell, transfer and assign its interest in
such equipment and Lease to Transferee, and Transferee has agreed to assume all
of Lessee's obligations to Lessor:
NOW, THEREFORE, IT IS AGREED:
1. Lessee hereby assigns and sets over to Transferee all of
Lessee's rights, title and interest in, under and to the Lease.
2. Rent Balance All of the parties acknowledge that the balance
due to Lessor as of the date hereof is payable in the manner set forth in the
Lease, or other evidences of indebtedness and any other documents, waivers or
agreements in connection therewith heretofore executed by Lessee (herein
collectively referred to as the "Obligations").
3. Rent Payments Lessee and Transferee hereby agree jointly and
severally to pay and discharge the lease payments and all other amounts payable
under the Obligations to Lessor or its successors and assigns, in accordance
with the terms of the Obligations and upon execution of this Agreement, to pay
to Jefferson Bank the monthly installments of $18,395.00 for the next 47
remaining months including the installment beginning with 11/1/99.
4. Assumption Transferee hereby assumes and agrees to perform all
the covenants of Lessee set forth in the Obligations.
5. Lease Terms All terms, conditions, and covenants of the
Obligations shall remain unchanged and shall continue to remain in full force
and effect.
6. Estoppel Lessee and Transferee hereby warrant, represent, and
covenant that the Obligations are not subject to any disputes, offsets, or
counterclaims of any kind or nature whatsoever.
7. Security Transferee acknowledges that Lessor has a valid first
security interest in the equipment and in confirmation thereof agrees to execute
all financing statements and other documents which Lessor may, in its sole
discretion, deem necessary to protect such security interest.
8. Consent and Release Lessor and Assignee hereby consent to the
aforesaid transfer by Lessee to Transferee, and hereby agrees that Lessee is
hereby released and forever discharged from any and all Obligations arising
from the Lease which is the subject hereof.
9. Lessee hereby warrants and represents:
a. That Lessee is not in breach of any of the terms and
conditions of said Lease and is current in the payment of all
rent, additional rent, utilities and other payments due under
the terms of said Lease.
b. That Lessee has not assigned any of its rights under the
Lease to any third party.
c. That Lessee has full corporate power and authority to enter
into this Transfer & Assumption Agreement ("Agreement") and
to carry out its obligations hereunder, that the execution
and delivery hereof have been duly authorized by the Board of
Directors of Lessee and no other corporate proceedings on the
part of Lessee are necessary to authorize this Assignment and
that the Agreement constitutes the valid and binding
obligations of Lessee.
d. That the execution, delivery and performance of this
Agreement by Lessee do not require the consent, waiver,
approval, or authorization of any person or authority (other
than the Lessor of the Lease) and will not violate, result in
a breach of or the acceleration of any obligation under or
constitute a default under, any provision of any charter, by-
law, indenture, mortgage, lien, lease, agreement, contract,
instrument, order, judgment, decree, ordinance, or
regulations or any restriction to which any property of
Lessee is subject or by which Lessee is bound or affected.
10. Lessee hereby warrants and represents:
a. That all equipment assigned hereunder is in good working
order and that all documentation relating to such equipment
will be provided to Transferee upon execution of this
agreement.
b. That it has inquired of all providers of equipment assigned
hereunder and software operating on such equipment and has
obtained assurances from such providers that the equipment
and software are year 2000 compliant.
11. Transferee hereby represents and warrants:
a. That Transferee has a copy of the Lease, including the
Lessees Consent and Agreement, The Certificate of Acceptance
and all relating documents of the Lease and that Transferee
agrees to all the terms and conditions of all documents
relating to the Lease.
12. This Agreement shall be binding upon the successors and assigns
of the parties. The parties shall execute and deliver such
further or additional documents as may be necessary to evidence
or carry out the provisions of this Agreement.
13. This Transfer and Assumption Agreement shall become effective
upon the consummation of the Transaction, the signing hereof by
both Lessee and Transferee and the execution by the Lessor of the
consent hereto in the form set forth below.
Transferee: Lessee:
Boston Communications Group Inc. ICT Group, Inc.
By: /s/ Karen A. Walker By: /s/ V A Paccapaniccia
Title: Chief Financial Officer Title Sr. VP Finance & CFO
CONSENTED TO: CONSENTED TO:
Assignee: Lessor:
JEFFERSON BANK The ELEX Group, Inc.
By: /s/ B W Galley By: JoDee B. Pettine
Title: Vice President Title: President
TRANSFER & ASSUMPTION AGREEMENT
Assumption Agreement made by and between ICT Group, Inc., ("Lessee"),
Boston Communications Group, Inc. ("Transferee"), The ELEX Group, Inc.,
("Lessor"), and JEFFERSON BANK ("Jefferson"), a corporation organized under the
Banking Laws of the State of Pennsylvania ("Assignee").
WHEREAS, Lessee is presently indebted to Lessor under an Agreement for
Leasing dated March 29, 1999 and Lease #990727 (collectively the "Lease")
between Lessee and ELEX, and duly assigned to Jefferson, copies of which Lease,
delivery and acceptance receipt, sale and Collateral Assignment by ELEX to
Jefferson, notice of assignment and financing statements filed with the
Secretary of State of Pennsylvania and Florida, with regard to the following
equipment, are annexed hereto as Exhibit A.
SEE ATTACHED SCHEDULE "A"
and,
WHEREAS, Lessee has agreed to sell, transfer and assign its interest in
such equipment and Lease to Transferee, and Transferee has agreed to assume all
of Lessee's obligations to Lessor:
NOW, THEREFORE, IT IS AGREED:
1. Lessee hereby assigns and sets over to Transferee all of
Lessee's rights, title and interest in, under and to the Lease.
2. Rent Balance All of the parties acknowledge that the balance
due to Lessor as of the date hereof is payable in the manner set forth in the
Lease, or other evidences of indebtedness and any other documents, waivers or
agreements in connection therewith heretofore executed by Lessee (herein
collectively referred to as the "Obligations").
3. Rent Payments Lessee and Transferee hereby agree jointly and
severally to pay and discharge the lease payments and all other amounts payable
under the Obligations to Lessor or its successors and assigns, in accordance
with the terms of the Obligations and upon execution of this Agreement, to pay
to Jefferson Bank the monthly installments of $18,395.00 for the next 47
remaining months including the installment beginning with 11/1/99.
4. Assumption Transferee hereby assumes and agrees to perform all
the covenants of Lessee set forth in the Obligations.
5. Lease Terms All terms, conditions, and covenants of the
Obligations shall remain unchanged and shall continue to remain in full force
and effect.
6. Estoppel Lessee and Transferee hereby warrant, represent, and
covenant that the Obligations are not subject to any disputes, offsets, or
counterclaims of any kind or nature whatsoever.
7. Security Transferee acknowledges that Lessor has a valid first
security interest in the equipment and in confirmation thereof agrees to
execute all financing statements and other documents which Lessor may, in its
sole discretion, deem necessary to protect such security interest.
8. Consent and Release Lessor and Assignee hereby consent to the
aforesaid transfer by Lessee to Transferee, and hereby agrees that Lessee is
hereby released and forever discharged from any and all Obligations arising from
the Lease which is the subject hereof.
14. Lessee hereby warrants and represents:
e. That Lessee is not in breach of any of the terms and
conditions of said Lease and is current in the payment of all
rent, additional rent, utilities and other payments due under
the terms of said Lease.
f. That Lessee has not assigned any of its rights under the
Lease to any third party.
g. That Lessee has full corporate power and authority to enter
into this Transfer & Assumption Agreement ("Agreement") and
to carry out its obligations hereunder, that the execution
and delivery hereof have been duly authorized by the Board of
Directors of Lessee and no other corporate proceedings on the
part of Lessee are necessary to authorize this Assignment and
that the Agreement constitutes the valid and binding
obligations of Lessee.
h. That the execution, delivery and performance of this
Agreement by Lessee do not require the consent, waiver,
approval, or authorization of any person or authority (other
than the Lessor of the Lease) and will not violate, result in
a breach of or the acceleration of any obligation under or
constitute a default under, any provision of any charter, by-
law, indenture, mortgage, lien, lease, agreement, contract,
instrument, order, judgment, decree, ordinance, or
regulations or any restriction to which any property of
Lessee is subject or by which Lessee is bound or affected.
15. Lessee hereby warrants and represents:
c. That all equipment assigned hereunder is in good working
order and that all documentation relating to such equipment
will be provided to Transferee upon execution of this
agreement.
d. That it has inquired of all providers of equipment assigned
hereunder and software operating on such equipment and has
obtained assurances from such providers that the equipment
and software are year 2000 compliant.
16. Transferee hereby represents and warrants:
b. That Transferee has a copy of the Lease, including the
Lessees Consent and Agreement, The Certificate of Acceptance
and all relating documents of the Lease and that Transferee
agrees to all the terms and conditions of all documents
relating to the Lease.
17. This Agreement shall be binding upon the successors and assigns
of the parties. The parties shall execute and deliver such further or
additional documents as may be necessary to evidence or carry out the provisions
of this Agreement.
18. This Transfer and Assumption Agreement shall become effective
upon the consummation of the Transaction, the signing hereof by both Lessee and
Transferee and the execution by the Lessor of the consent hereto in the form set
forth below.
Transferee: Lessee:
Boston Communications Group Inc. ICT Group, Inc.
By: /s/ Karen A. Walker By: /s/ V A Paccapaniccia
Title: Chief Financial Officer Title Sr. VP Finance & CFO
CONSENTED TO: CONSENTED TO:
Assignee: Lessor:
JEFFERSON BANK The ELEX Group, Inc.
By: /s/ B W Galley By: JoDee B. Pettine
Title: Vice President Title: President
AGREEMENT FOR LEASING
THIS AGREEMENT by and between THE ELEX GROUP, INC, a New Jersey corporation,
whose address is P.O. Box 14, Medford, New Jersey 08055 ("ELEX"), and ICT GROUP,
INC., a Pennsylvania corporation whose address is 800 Town Center Drive,
Langhorne, PA 19047
("Lessee").
WITNESSETH
WHEREAS, Lessee desires to lease items of equipment from ELEX or certain
lessors represented by ELEX, and ELEX is willing to arrange such leases; and
WHEREAS, the parties wish to set forth in full certain terms to be
incorporated in all leases to be executed pursuant to this Agreement For
Leasing:
NOW THEREFORE, in consideration of the mutual covenants herein contained and
intending to be legally bound hereby,it is agreed as follows:
1. Leasing. Lessee hereby authorizes ELEX, and ELEX agrees to use its best
efforts to arrange leases of equipment wherein Lessee shall be the lessee and
ELEX or the other party or parties represented by ELEX shall be the lessor.
Such leases shall cover such equipment and shall contain such provisions
respecting payments, terms, covenants, conditions and provisions ("Provisions')
as the respective parties thereto may agree. Lessee will execute such leases
when ELEX or a lessor secured by ELEX is ready to enter into such leases. ELEX
shall make all arrangements between Lessee, and all lessor(s) represented by
ELEX.
2. Lease Provisions. Each such lease, ("Lease") shall, in addition to its
Provisions, incorporate by reference all of the following terms and conditions,
covenants and provisions (the term "ELEX" as used hereafter, being deemed to
refer to the lessor under each such Lease; the term "Unit" being deemed to refer
to each item of equipment described in and covered by a Lease; the term
"Equipment" being deemed to refer to all items of equipment described in and
covered by a Lease; and the term "Date of Acceptance" being deemed to refer to
the date a Unit is available to be placed in service for its intended purpose):
(a) Term. The Lease of the Equipment shall commence as of the date thereof
and shall continue in full force and effect until terminated by either party as
of any succeeding rental payment date, upon not less than one hundred eighty
days prior written notice to the other party; provided, however, that the term
of the Lease shall in no event be less than the period specified as the
"Initial Term' in the Lease covering such Equipment.
If any term shall be extended or any renewal options shall be exercised, the
word "term" as used herein shall be deemed to refer to the Initial Term and all
extended or renewal terms of any Lease hereto, and all provisions of this
Agreement For Leasing shall apply during extended or renewal terms.
(b) Rent. As used herein, "rent" for the Equipment shall be the "total rent"
specified in the Lease, payable in successive installments at the times set
forth in the Lease. It is understood and agreed by the Lessee that such 'total
rent" shall be of the essence of the Lease and that ELEX shall be entitled to
the payment of the full amount thereof in consideration of the letting of the
Equipment, including payment of the then outstanding balance of such total rent
(plus all other sums due under the Lease) in the event of the happening of any
default specified in Paragraph 20) below, subject to reduction only as provided
in Paragraph 20)(2)(b). Rent shall be paid to ELEX at its address specified in
the Lease, or as otherwise directed by ELEX free from all claims, demands, or
setoffs against ELEX the manufacturer of the Equipment or any assignee of ELEX.
If ELEX is subjected to any liability because of any non-compliance with the
Lease or any regulatory law applicable to any of the Equipment on the part of
the Lessee, then upon notice to the Lessee of the nature and/or amount thereof,
the Lessee shall forthwith discharge the same, and if ELEX shall incur any
expense by reason thereof, the amount of such expense shall be added to the
installment of rent next falling due as additional rent.
If any installment of rent is not paid within ten (10) days following the due
date thereof, a late charge equal to five percent (5%) of such installment shall
be due and payable as additional rent, and there-after an additional late charge
of five percent (5%) of the then unpaid installment and late charges shall be
due and payable as of the eleventh day of each succeeding month thereafter until
uch installment is paid.
(c) Use, Care and Operation. Lessee shall, at its expense:
(1) Receipt and Acceptance. Receive each Unit of Equipment at, and pay all
delivery charges for each Unit to, the location of original use specified
therefore; unload, and, if required, assemble and install the same.
Lessee will signify the Date of Acceptance of each Unit of the Equipment by the
prompt execution and delivery to ELEX of a Certificate of Acceptance in the form
attached hereto as Exhibit I ("Certificate of Acceptance"). The Lessee's
execution and delivery to ELEX of the Certificate of Acceptance, signed by an
officer of Lessee, shall conclusively establish as between ELEX and the Lessee
that each Unit is in good operating order, repair, condition, appearance, is
suitable for the purpose of Lessee and the Lease, conforms to the specifications
applicable thereto and that such unit has not been used or operated prior to the
Date of Acceptance indicated therein. Such acceptance shall not affect Lessee's
claims against the manufacturer or manufacturer's warranties.
(2) Fees and Taxes. Pay, and file any necessary returns with respect to, all
license fees, assessments or other governmental charges, and sales, use, gross
receipts, personal property, and other tax or taxes, now or hereafter imposed by
any state, federal or local government or agency upon any Unit or upon the
leasing, use or operation thereof, or upon the receipt of rentals therefore or
earnings arising therefrom (excluding taxes imposed on ELEX's net income,
except any such taxes which are in substitution for, or relieve the Lessee from,
the payment of taxes which it would otherwise be obligated to pay or reimburse
as herein provided) before the same shall become in default or subject to the
(3) payment of any penalty or interest and supply ELEX with receipts or other
evidence of payment satisfactory to ELEX; Lessee shall promptly reimburse ELEX
for all property taxes, or levies assessed upon any Unit, paid by ELEX however,
there shall be no obligation of ELEX to make payment of any property taxes
assessed upon any Unit.
(3) Maintenance. At all times keep and maintain each Unit in good working
order, repair, and appearance; install, keep, and maintain C., each Unit such
insignia and identification as ELEX may designate, and certify that such has
been done; make any and all necessary repairs and replacements. thereto in order
that each Unit, its components and accessories, shall continue to fulfill their
intended function or use; and keep and operate the same as specified in the
Lease therefore; except that Lessee shall not, without ELEX's prior written
consent, affix or install any accessory, equipment, device, advertising matter
or insignia to any Unit. ELEX passes through to Lessee all warranties of the
manufacturer of the Equipment and Lessee shall have the right to, and will,
directly avail itself of all warranties and representations made by the
manufacturer with respect to the Equipment and ELJEX agrees to execute such
documents as may be required to enable Lessee to obtain customary warranty
service for each Unit of Equipment from the manufacturer.
The Lessee agrees to execute at its own expense a maintenance contract with the
manufacturer of the Equipment and to keep said Contract in force until the
Equipment is surrendered to ELEX. Said maintenance contract shall provide for
at least the same services by the manufacturer as those furnished under the
manufacturer's standard maintenance contract for nine-hour per day use of the
Equipment, and shall provide for the incorporation of such engineering changes
and improvements in the Equipment which arc available without additional charge
as part of such services. A maintenance contract for the Equipment may not be
entered into with other than the manufacturer of the Equipment without the
approval of ELEX, which approval will not be unreasonably withheld.
All replacements, repairs, parts, and supplies shall be obtained at Lessee's
expense and shall be performed and supplied only by such persons as shall be
approved by ELEX. All replacements, repairs, parts, supplies, accessories,
equipment, devices, or other items furnished or affixed to any Unit shall
thereupon become ELEX's property and Lessee shall arrange that there be
delivered promptly to ELEX all instruments or documents as may be necessary to
evidence ELEX's original and free, clear and unencumbered title thereto and
ownership thereof.
(4) Provisioning. Provide all labor, materials, services, utilities,
electric power, parts, and other supplies or items consumed by, or required for,
or in connection with the recommended use of, each Unit.
(5) Compliance with Law. Observe and comply with, and perform and execute,
all laws, rules, regulations, or orders of all state, federal, and local
governments or agencies which in anyway affect or relate to, or are applicable
to, any Unit, or the use, operation, maintenance, or storage thereof; and Lessee
shall, and does hereby, indemnify ELEX and agrees to hold ELEX harmless from any
and all liability that may arise from any infringement or violation of any such
law, rule, regulation, or order by Lessee, or Lessee's employees, or any other
person.
(6) Use and Operation. Not use, operate, maintain, or store any Unit
improperly, carelessly, or in violation of the Lease or any instructions
furnished therefore by the manufacturer or by ELEX; nor install or operate the
same other than as specified in the Lease; nor permit anyone other than its
authorized agents, persons, and employees, all of whom must be competent
operators to operate the same, and for whom Lessee agrees to be responsible.
(7) Non -Transferability. Not, without ELEX's prior written consent, which
shall not be unreasonably withheld, let or sublet any Unit; nor lend or part
with the possession of any Unit, or any part thereof; nor assign the Lease or
any interest therein.
(8) Risk Bear and assume all risk and liability for (and Lessee does hereby
agree to indemnify and hold ELEX harmless from any and all claims, liens,
demands, or liability arising out of the loss of or damage to each Unit, the
use, operation, maintenance, and storage thereof, and the loads thereon, and the
injury or death of persons and/or damage to property howsoever arising therefrom
or the use therefore, or the condition of such Unit, during the continuance of
the Lease and until the return of such Unit. The indemnities and assumptions of
liability herein provided - continue in full force and effect notwithstanding
the termination of the Lease, whether by expiration of time, by operation of
law, or other.
(9) Inspection. Upon ELEX's demand, permit ELEX, its agents oe
representatives and persons designated by ELEX to enter upon the premises where
each Unit is located and to inspect each Unit, and its manner of use, at any
reasonable time and from time to time.
(10) Notice of Location. Not, without ELEX's written consent, remove any Unit
from the location of original use; and at all time keep ELEX advised of the
location of any Unit should Lessee remove it from the location of original use.
(d) Representations. Lessee does hereby agree that each Unit is of a size,
design, capacity, and material selected by Lessee, and that Lessee is satisfied
that each such Unit is suitable for Lessee's purposes, and sufficiently durable
under the conditions of usage thereof by Lessee, and that ELEX has made no
representations or warranties with respect to the suitability or durability of
any Unit for the purposes or uses of Lessee, or with respect to the permissible
load thereof, or any other representation or warranty, express or implied, with
respect thereto. Lessee understands and acknowledges that no broker or supplier,
nor any salesman, broker or agent of any broker or supplier is an agent of ELEX
Lessee represents to ELEX that the Equipment will be used exclusively for
business or commercial purposes and will not be used at any time during the term
of the Lease for personal, family or household purposes.
NO REPRESENTATIONS
ELEX DOES NOT WARRANT THE EQUIPMENT IN ANY RESPECT, EITHER EXPRESSLY OR BY
IMPLICATION AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ELEX EXPRESSLY
DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS OR ADEQUACY FOR ANY
PURPOSE OR USE, QUALITY, PRODUCTIVENESS OR CAPACITY.
(e) Non-Liability of ELEX ELEX shall not be liable to Lessee for any loss,
incidental or consequential damage, expense of any kind or nature Caused,
directly, indirectly, by any Unit or the Equipment or the use, maintenance,
operation, handling, or storage thereof, or loads thereon, or the repairs,
servicing, or adjustments thereto, or because the same is, or has become,
unsuitable, or unserviceable, or by any interruption of service or loss of use
thereof, or strict liability with respect thereto, or for any loss of business
or damage whatsoever or howsoever caused. ELEX shall not be liable to Lessee
for delay in delivering, or failure to deliver any Unit.
(f) Insurance. Lessee will procure and maintain at its sole cost and
expense, bodily injury and third party property damage insurance, with insurers
satisfactory to ELEX, for the Equipment, with liability limits of not less than
those specified in the Lease. Lessee will further, without cost to ELEX,
maintain or cause to be maintained in effect throughout the term of the Lease
for the Equipment, with insurers satisfactory to ELEX, insurance policies
insuring against all-risk physical loss or damage to such Equipment for an
amount equal to the Casualty Value (hereinafter defined) of such Equipment as of
the last monthly rent payment date set forth in Schedule of Casualty Values
attached to the Lease. All policies shall name as additional insured ELEX, and
assignees of ELEX and Lessee as their interest may appear and provide that they
cannot be amended or canceled with respect to ELEX and its assignees except on
at least thirty (30) days prior written notice to ELEX and its assignees. All
policies or certificates thereof and endorsement thereto shall be delivered to
ELEX effective and enforce at the time of execution of the Lease. All renewals
thereof shall be delivered to ELEX at least ten (10) days prior to the
expiration of the current policy. Lessee hereby appoints ELEX as its attorney-
in-fact, coupled with an interest, with full power of substitution, for purposes
of executing any proof of loss or related document, endorsing any check, draft
or other means of payment in connection with any loss, compensable under such
policies. This power is irrevocable for so long as the Lessee remains indebted
to ELEX or its assignee hereunder or under any other agreement or instrument.
Damage. Should any Unit:
(1) be damaged by reason of any cause, and be capable of repair without
impairment of value, Lessee shall repair the same at Lessee's Sole expense, as
quickly as circumstances permit, without any abatement of rent. In such event,
should ELEX be indemnified under any insurance policy or policies pursuant to
the provisions of the Lease covering such Unit, ELEX shall pay to Lessee the
proceeds received by ELEX from such insurance but only to the extent necessary
to reimburse Lessee for all amounts paid by it pursuant to this paragraph and
properly documented. In any event ELEX shall not be liable for any amount in
excess of said insurance proceeds; or
(2) be lost, stolen, destroyed, taken for a public use, or damaged beyond
repair by any cause whatsoever, ("Casualty") Lessee shall pay ELEX within
fifteen (15) days thereafter an amount equal to ELEX's original cost of said
Unit, as shown in Schedule A of the Lease of said Unit, multiplied by the
casualty loss percentage applicable to the date of Casualty, as shown in
Schedule B of the Lease of said Unit, ("Casualty Value"). Upon such payment, and
if the Lessee shall then not be in default under the Lease, the balance of the
rent due under the Lease shall abate in an amount determined by the same
percentage as the original cost of the Unit(s) suffering the Casualty bears to
the cost of the Equipment. Until such payment Lessee shall continue the prompt
payment of all rent under the Lease and any such rent due for the period before
payment shall not abate. Following payment of the Casualty Value Lessee shall be
entitled to the proceeds of any insurance covering the Unit(s) suffering a
Casualty, but in no event shall the amount of such reimbursement exceed the
Casualty Value previously paid by Lessee, and any excess shall be the property
of ELEX
(h) Return of Equipment. Within ten (10) days after the expiration or sooner
termination of the term of the Lease (or of any extension thereof), Lessee will,
at Lessee's expense, return each Unit which has not been lost, stolen,
destroyed, or damaged beyond repair, to ELEX or ELEX's designee or designees,
loaded on such appropriate conveyance and properly packed and at such
destination or destinations as ELEX may designate, free of all advertising or
insignia placed thereon pursuant to Section 2(c) (3) by Lessee (other than
identification tags of ELEX), and in the same operating condition, order,
repair, and appearance as when received [reasonable wear and tear (except as
provided in Paragraph 2 (c) (3) above) and damage by any cause for which ELEX
has recovered under insurance, excepted]. If any such Unit is not so returned
within the time specified herein, Lessee shall continue to pay the rent
specified in the Lease until the Equipment is so returned in the aforesaid
condition.
(i) Time of Essence. Time is of the essence of this Agreement. No express or
implied waiver by ELEX of any default hereunder shall in any way be, or be
construed to be, a waiver of any future or other default of Lessee, or a waiver
of any rights of ELEX, or a modification of any of the Lease terms, or an
extension or enlargement of Lessee's rights under the Lease.
(j) Default by Lessee.
(1) If (a) Lessee shall fail to pay the rent when due; or (b) Lessee shall
fail to perform any other term or condition of the Lease and such failure shall
continue for a period of thirty (30) days; or (c) proceedings under the Federal
Bankruptcy Code shall be instituted against Lessee, or a receiver shall be
appointed for Lessee or any of its property, or any of the Equipment shall be
attached or levied upon, and such proceedings shall not be vacated, or fully
stayed within ninety (90) days in the case of proceedings under the Federal
Bankruptcy Code, otherwise within twenty (20) days thereof; or (d) Lessee shall
make an assignment for the benefit of creditors, or institute .proceedings for
debtor relief under the Federal Bankruptcy Code, or admit in writing its
inability to pay its debts generally as they become due; or (e) if any
representations or warranty made by Lessee hereunder or in connection herewith
shall be false, misleading or untrue in any material respect,
(2) then ELEX. at its option, may declare the balance of the rent due under
the Lease, as well as any amounts specified herein or in the Lease as items of
additional rent and not then accrued and owing, immediately due and payable, and
upon any such declaration the same, plus the aggregate amounts of any
installment of rent(including any late charge thereon) and any other sums then
accrued and unpaid, shall be due and payable forthwith, and ELEX shall have the
right to take all steps appropriate to collect the same and
(a) to take immediate possession of the Equipment, and
(b) to lease or sell, or both, the Equipment or any Unit upon such
terms as ELEX may elect, and apply the net proceeds on account of Lessee's
obligations hereunder, and
(c) in accordance with the terms of the Lease to confess a judgment
against the Lessee for the full amount of the rent and other sums due and owing
under the Lease.
The foregoing remedies and any other remedy available at law or equity are
cumulative and available to ELEX but ELEX shall be under no obligation to
exercise any such remedy. The exercise by ELEX of any such remedies shall not
release Lessee from its obligations hereunder or bar ELEX from proceeding
otherwise. Lessee shall additionally pay ELEX a reasonable sum as and for
attorneys' fees and an amount equal to such unreimbursed expenses as shall have
been paid or incurred by ELEX in the seizure of the Equipment or any Unit, or in
the enforcement of any of ELEX's rights or privileges hereunder.
(k) Assignment by ELEX ELEX shall have the right to assign all or any part
of its rights under the Lease. In such event, the assignee shall be entitled to
enforce the rights so assigned but shall be under no liability to the Lessee to
perform any of the obligation of ELEX unless assignee assumes such liability in
writing, in which case ELEX shall, to the extent assignee assumes such
liability, be released from all of its obligations to Lessee.
Lessee agrees that it will pay the rent and all other sums due by Lessee
hereunder directly to such assignee after receipt of notice of such Assignment.
Any assignee of ELEX's rights may reassign such rights with the same force and
effect as an original assignment.
(l) Security. As security for the faithful performance by Lessee of the
terms and conditions of the Lease, Lessee shall deposit with ELEX the amount
indicated in the Lease as security deposit and/or advance rentals. Provided
Lessee has at all times fully performed all its covenants and conditions agreed
upon to be performed, ELEX will return to Lessee the security deposit at the
expiration of the Lease. ELEX may, but shall not be required to, apply such
security deposit and/or advance rentals to discharge any overdue obligation of
the Lease.
(in) Notices. All notices, consents, waivers or other communications required
under the Lease shall be in writing by certified mail, and any such notice,
consent, waiver or communications shall be irrevocable and become effective when
deposited in the United States mail, with proper postage prepaid, addressed to
the party intended to be served at its address appearing in this Agreement or in
the Lease, or at such other address as such party may, from time to time,
designate in writing.
(n) General. This is a contract of lease only, and nothing herein shall be
construed as conveying to Lessee any right, title, or interest in or to the
Equipment. except its rights as a Lessee only. Title to the Equipment shall at
all times remain in ELEX and Lessee shall at all times, at Lessee's expense,
protect and defend ELEX's title thereto against all claims, liens, and legal
processes of Lessee's creditors, or persons claiming through Lessee, and keep
the Equipment free and clear from all such liens, claims, and processes. ELEX
covenants, subject to performance by Lessee of all of its obligations under the
Lease, that Lessee will have quiet enjoyment of the Equipment during the term of
the Lease. Each Unit is, and shall remain, Personal property irrespective of its
use or manner of attachment to real property, and Lessee shall obtain for ELEX a
real property waiver from owner Or mortgagee of the premises where any Unit is
kept, Said waiver shall provide that the Equipment shall remain personal
property removable by ELEX or its a at any time without notice; ELEX or its
assigns shall have access to the premises as may be required for the purpose of
inspection, sale, and removal, the real property owner waives any right, title,
lien, or interest which he may otherwise have in the Equipment . The parties
agree that this Agreement for Leasing and each Lease are intended to qualify as
a "finance lease" under Article 2A of the Uniform Commercial Code. Lessee
acknowledges that (a) Lessee has received a copy of the contract by which ELEX
acquired the Equipment (the" Supply Contract') or (b) Lessee has reviewed and
approved the Supply Contract or (c) ELEX has informed Lessee in writing that
Lessee may have rights under the Supply Contract and that Lessee should contact
the supplier of the description of any such rights.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSEE HEREBY WAIVES ANY RIGHTS TO
(i) CANCEL ANY LEASE, (ii) REPUDIATE ANY LEASE, (iii) REVOKE ACCEPTANCE OF THE
EQUIPMENT, (iv) RECOVER DAMAGES FROM ELEX FOR ANY BREACHES OF WARRANTY OR FOR
ANY OTHER REASON, (v) A SECURITY INTEREST IN THE EQUIPMENT IN LESSEE'S
POSSESSION OR CONTROL FOR ANY REASON, (vi) DEDUCT ALL OR ANY PART OF ANY
CLAIMED DAMAGES RESULTING FROM ELEX'S DEFAULT, IF ANY, UNDER ANY LEASE, (vi)
- - -COVER- BY MAKING ANY PURCHASE OR LEASE OF, OR CONTRACT TO PURCHASE OR LEASE,
EQUIPMENT IN SUBSTITUTION FOR THAT DUE FROM ELEX, (viii) RECOVER ANY GENERAL,
SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR ANY REASON WHATSOEVER, AND (ix)
SPECIFIC PERFORMANCE, REPLEVIN, DETINUE, SEQUESTRATION, CLAIM OR DELIVERY OR
THE LIKE FOR ANY EQUIPMENT IDENTIFIED TO ANY LEASE.
Each individual Lease executed pursuant to the Agreement for Leasing shall
constitute a separate and independent lease.
ELEX's obligations shall be suspended to the extent that ELEX is hindered or
prevented from complying therewith because of strikes, lockouts, war, acts of
God, fires, storms, accidents, governmental regulations or interference or
other acts beyond ELEX's control. No obligation of ELEX, except as otherwise
specified herein, shall survive the term of the Lease, or sooner termination
thereof, and should ELEX permit use by Lessee of any Unit beyond the term
specified therefore, the Lease obligations of Lessee shall continue and such
permissive use shall not be construed as a renewal of the term thereof, or as a
waiver of any right or continuation of any obligation of ELEX thereunder, and
ELEX may take possession of any such Unit at any time upon demand after 10 days
written notice. The cancellation or other termination, whether by operation of
law or otherwise, of the Lease shall not release Lessee from any of its
obligations hereunder or thereunder save [except as provided in Paragraph 2(c)
(8) above] upon payment in full by Lessee to EL.EX of the Termination Value set
forth in the Lease. In the event ELEX shall be entitled, pursuant to any
provision hereof, to repossess any Unit, ELEX shall not be liable to the
Lessee in respect of any damage arising out of any such repossession except
for ELEX's negligent or wrongful act. This Agreement contains the entire
understanding between ELEX and Lessee, and any change or modification must be
in writing and signed by both parties. This Agreement is entered into under
and shall be construed in accordance with the laws of the State of New Jersey
insofar as applicable to the rights of ELEX Lessee and any third party as to the
Equipment.
No term or provision of this Agreement for Leasing or any Lease may be amended,
ltered, waived, discharged or terminated except by a written instrument signed
by the parties hereto, and in compliance with Section 2-208(2) of the Uniform
Commercial Code requiring separate signature of this provision, Lessee has
signed in e space provided below.
__________s/s JB________________
(Lessee's initials)
(o) Lessee shall furnish to ELEX (i) within ninety (90) days after the close
of each fiscal year of Lessee, a copy of its financial statements, including a
Balance Sheet and Profit and Loss Statement of Lessee as of the end of such year
in each case certified by public accountants of recognized standing acceptable
to ELEX and (ii) other such financial information respecting the financial
condition and operation of Lessee as ELEX may from time to time reasonably
request.
3. Special Provisions.
4. Resolutions and Recording Costs.
(a) Lessee agrees that it will provide ELEX or its assignee with appropriate
opinions of counsel and certified copies of all necessary authorizing
resolutions, as may be reasonably requested by ELEX or any assignee or counsel
therefore.
(b) Lessee agrees that it will pay any and all recording costs necessarily
incurred to establish and record any lien in favor of any assignee of ELEX.
5. Miscellaneous.
(a) It is understood and agreed between the parties hereto that, subject to
Lessee's rights to the Equipment so long as Lessee is not in default under the
Lease, the several instruments and documents incidental or related to this
Agreement, to the assignment of any 'Lease, and/or to the mortgaging of any of
the Equipment by ELEX may contain such provisions as may be required by reason
of the laws of the place where any of the Equipment is located in order that
ELEX or its assignees or a mortgagee or holder of a security interest may obtain
the full benefits of this Agreement in accordance, with its original intendments
and purposes, or as may be reasonably required by any such assignee for the full
protection of any security interest which such assignee may have in the
Equipment or any Lease, and the provisions of this Agreement are subject to all
such requirements.
(b) The headings and sub-headings contained in this Agreement are solely for
convenience and are not intended to be complete or accurate summations or
indices of the contents of their respective paragraphs.
(c) Any provision of this Agreement found to be prohibited by law shall be
ineffective to the extent of such prohibition without invalidating the rest of
this Agreement.
(d) Lessee agrees that at any time and from time to time, upon the written
request of ELEX or its Assignees, Lessee will promptly and duly execute and
deliver any and all such further instruments and documents as ELEX or its
Assignees may deem desirable in obtaining the full benefits of this Agreement
and any Lease herewith and of the rights and powers granted thereunder. Lessee
hereby grants ELEX the authority to sign and file on Lessee's behalf any
document or financing statement ELEX deems necessary to perfect or protect
ELEX's interest in the Equipment or pursuant to the Uniform Commercial Code.
(e) This Agreement contains the whole understanding of the parties; shall be
construed and enforced in accordance with the laws of the State of New Jersey
and shall inure to the benefit of, and be binding upon, the respective legal
representatives and heirs of the individual parties; and the successors and
assigns of the corporate parties. 'Me Lessee irrevocably waives and covenants
that they will not assert (as Plaintiff, Defendant, or otherwise), any right to
trial by jury in any action, counterclaim, dispute, or proceeding based upon, or
related to the subject matter of any Lease or otherwise relating to the
Obligations of the Lessee to ELEX
IN WITNESS WHEREOF, the parties hereto have executed these presents, the
corporate parties by their officers thereunto duly authorized, this 29th
day of March 1999.
ICT GROUP, INC. THE ELEX GROUP, INC Lessee)
(ELEX)
BY_____________John J. Brennan BY______________________________
TITLE__ President & CFO__________________ TITLE______Secretary_____________
Signed in my presence in the Commonwealth of Pennsylvania
_______Diane Haeselin__________
Notary
Notarial Seal
Diane Haeselin, Notary Public
Middletown Twp., Bucks County
My Commission Expires May 12, 2001
Member, Pennsylvania Association of Notaries
LEASE
990727
THE ELEX GROUP, INC., a New Jersey corporation, whose address is P.O. Box 14,
Medford, New Jersey 08055 ("ELEX"), hereby leases to ICT GROUP, INC., a
Pennsylvania corporation whose address is 80.0 Town Center Drive, Langhorne PA
19047
("Lessee"), and Lessee hereby hires and takes from ELEX, the equipment
described in Schedule A attached hereto and made a part hereof ("Equipment"),
at the rent and upon the terms and conditions herein set forth:
1. Location of original use: 1398 South Woodland Blvd., DeLand FL 32720
2. Initial Term: Commencing on the first day of the month following the
Date of Acceptance of the Equipment under Lease and expiring Fifty-Four (54)
months thereafter.
3. Rental: Monthly Rent: $ 18,395.00 Security Deposit: S 36,790.00
Advanced Rentals: $ None
Total Rent: $ Payable in Fifty Four (54) successive equal monthly
installments of Eighteen Thousand Three Hundred Ninety Five Dollars and No Cents
($18,395.00) each plus the Additional Rent specified in the Special Provision
For Terminal Rental Adjustment.
Each installment shall be due upon the first day of each and every month
after the Date of Acceptance of the Equipment, except for the first monthly
installment thereof and any Security which is due upon the execution of this
Lease. Additionally the Lessee shall pay to ELEX an interim rent for the period
from the Date of Acceptance of the Equipment to the first day of the month
following such date ("Interim Rent Period"). Said interim rent shall be that
proportion of a monthly rent installment which bears the same ratio as the
number of days of the Interim Rent Period bears to thirty (30) days, and shall
be payable on the first day of the month following the Interim Rent Period.
4. Reports and Payment of Rental: Lessee shall make all payment and send
all notices to ELEX at the address of ELEX set forth above, or at such other
address as ELEX may, from time to time, designate in writing.
5. Liability Insurance: Lessee shall provide and maintain the following
liability insurance:
A. Public Liability Bodily Injury, not less than $500,000 per one
person, $1,000,000 per one accident.
B. Property Damage, not less than $500,000.
6. Confession of Judgment: In the event of any default by Lessee under this
Lease as provided in Paragraph 2 (j) of the Agreement For Leasing, Lessee hereby
empowers any Prothonotary, Clerk of Court or attorney of any Court of Record to
appear for Lessee and, with or without complaint filed, confess judgment, or a
series of judgments, against Lessee in favor of ELEX or any assignees of ELEX,
as of any term, present or future, for all or any part of the rent specified in
this Lease and then unpaid including at ELEX's option the rent for the entire
unexpired balance of the term of this Lease and all other charges, payments,
costs and expenses reserved as rent or additional rent, together with interest
thereon, costs of suit and an attorney's commission for collection of five (5%)
percent of the total of the foregoing sums; but in any event said attorney's
commission shall be not less than One Thousand Dollars ($l,000.00); and for so
doing, this Lease or a copy hereof, verified by affidavit, shall be a sufficient
warrant; and the said judgment from and after entry thereof, shall bear interest
at the highest rate of interest a judgment may bear under the laws of the State
of New Jersey.
Lessee hereby waves the benefit of any laws which might now or hereafter
authorize the stay of any execution to be issued on any judgment recovered on
this Lease or the exemption of any property from levy or sale thereunder. Lessee
also waives and releases ELEX or any assignee of ELEX and said attorney, from
all errors, defects and imperfections whatsoever of a procedural nature in the
entering of any judgment or any process or proceedings relating thereto.
7. WARRANTIES AND REPRESENTATIONS: LESSEE DOES HEREBY AGREE THAT EACH UNIT
IS OF A SIZE, DESIGN, CAPACITY AND MATERIAL SELECTED BY LESSEE, AND THAT LESSEE
IS SATISFIED THAT EACH SUCH UNIT IS SUITABLE FOR LESSEE'S PURPOSES, AND
SUFFICIENTLY DURABLE UNDER THE CONDITIONS OF USAGE THEREOF BY LESSEE, AND THAT
ELEX MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE SUITABILITY,
DURABILITY, MERCHANTABILITY OR FITNESS FOR ANY PURPOSE OF ANY UNIT OR ANY OTHER
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT THERETO.
8. Special Provisions: The following special provisions shall be
incorporated herein by reference:
Special Provision For Option To Purchase
Special Provision For Option To Renew
Special Provision For Option to Early Terminate
Special Provision For Terminal Rental Adjustment
"This is Counterpart No. 2 of 3 signed counterparts. A security interest
in this Lease may be created only by possession of Counterpart No. 1."
9. By the execution hereof, there are incorporated and made a part hereof
for all purposes, as though set forth herein at length, each, and all of the
terms, conditions and provisions of Paragraphs 2 through 5 of the Agreement For
Leasing dated March 1999 between Lessee and THE ELEX GROUP, INC. a copy of which
is attached hereto. Unless specifically defined in this Lease i7b defined terms
used herein shall have the same meaning as set forth in the Agreement For
Leasing.
10. UPON ACCEPTANCE OFTHE EQUIPMENT, THIS LEASE SHALL CONSTITUTE A
NONCANCELABLE NET LEASE COVERING THE EQUIPMENT. LESSEE'S OBLIGATIONS TO PAY ALL
RENT AND OTHER AMOUNTS WHEN DUE AND TO PERFORM AS REQUIRED UNDER THIS LEASE ARE
UNCONDITIONAL AND IRREVOCABLE- SUCH OBLIGATIONS ARE NOT SUBJECTO CANCELLATION,
MODIFICATION, REPUDIATION, REVOCATION OR EXCUSE. LESSEE SHALL NOT BE ENTITLED TO
ANY ABATEMENT, REDUCTION, OFFSET OR COUNTERCLAIM WITH RESPECT TO THESE
OBLIGATIONS FOR ANY REASON WHATSOEVER, WHETHER ARISING OUT OF CLAIMS AGAINST
ELEX, THE MANUFACTURER OR SUPPLIER, DEFECT IN LACK OF FITNESS FOR USE OF, LOSS
OF POSSESSION OR USE OF OR DAMAGE OR DESTRUCTION OF THE EQUIPMENT ANY
PROHIBITION AGAINST USE OR OTHERWISE.
11. Lessee warrants and agrees that it has not and will not use or operate
any Unit(s) of Equipment prior to the Date of Acceptance o the Unit(s) under
Lease. In order to assure ELEX of the tax benefits available to an owner of
Equipment with whom the first use begins the parties incorporate herein the
provisions of "Schedule C" attached hereto.
This Lease shall inure to the benefit of and shall be binding upon ELEX and
Lessee, their assigns and successors.
12 IN WITNESS WHEREOF, the parties hereto have hereunto caused this
Lease to be duly executed as of the 29th day of March 1999
ICT GROUP, INC.__________________ THE ELEX GROUP, INC.___
(Lessee)
(ELEX)
By_s/s John J Brennan BY________________________
Title: ___President & CFO ___________ Title_____Secretary _______
(SEAL)
Attest ______David J. McHugh_______
Signed in my presence in the Commonwealth of Pennsylvania
seal
___Diane Haeselin____________________
Notary
Notarial Seal
Diane Haeselin, Notary Public
Middletown Twp., Bucks County
My Commission Expires May 12, 2001
Member, Pennsylvania Association of Notaries
SCHEDULE A
Page 1 of 1 Page
DESCRIPTION OF EQUIPMENT
Manufacturer: Abell's Floor Covering, Aspect Telecommunications, C&R Roofing
Enterprises, Inc., Center Core, Charles B. Flynn & Company, Inc., Commercial
Business Interiors, Creative Design, DeLand Heating & Air Conditioning Co.,
Florida Electric Works, Inc., GTE Corp., Ikon, Lemoine's Welding, Inc., Mills &
Nebraska, Pioneer Appliance Company, Quality Precast & Co., Stebilla Drywall
Services, Inc., STEPP Office Supply, Tarmac, U.S. Blinds Fabrications, Inc.,
West Volusia Fire Equipment, Inc.
Location: 1398 South Woodland Boulevard, Deland, FL 32720
QTY. MODEL# DESCRIPTION SERIAL NUMBER
Various Furniture and Fixtures and Telecommunications Equipment
L-A1951
SCHEDULE B
CASUALTY LOSS AND TERMINAUON
VALUE SCHEDULE
Casualty Loss Occurring
or Notification of
Termination Given After Casualty Termination
Rental Payment Number Loss Values* Values*
0 115
12 97
24 76 69.56
36 55 48.60
48 28 26.11
54 12 12.00
*Values are given as a percentage of original cost.
LBIM4 Lease Number- 990727 -
SCHEDULE c
Indemnify for Loss of Depreciation
If ELEX shall not be entitled to a deduction with respect to ELEX's cost of any
Unit of Equipment listed in Schedule A of this Lease based upon The Accelerated
Cost Recovery System provided by Section 168 of the Internal Revenue Code of
1986, as amended, in the amounts specifiedin Section 168 (b) (1) thereof for
Recovery Property defined therein as having a class life of 5-Year Property
(Deduction") then Lessee shall pa) to ELEX within 30 days of ELEX's demand, as
additional rent hereunder, an amount which, after deduction of all taxes
required to be paid b) ELEX in respect of the receipt thereof, shall be equal to
the sum of (x) an amount equal to the additional taxes paid or payable by ELEX
in consequence of the failure to obtain the benefit of such Deduction and (z)
any interest or penalty which may be assessed against ELEX in connection with
such inability to obtain the benefit of such Deduction, all of which amounts
shall be payable on written demand made at any time after payment of the
additional income tax. Notwithstanding the indemnity given by Lessee hereby, it
is understood and agreed that ELEX shall have full control over the filing of
its tax returns and any and all negotiations with tax authorities with respect
thereto; and shall be the sole judge of the terms upon which it is appropriate
to settle any controversy with the taxing authorities with respect thereto.
Without limiting the generality of the preceding sentence, in the event of any
such controversy, ELEX shall, to the extent practicable, notify Lessee -of, and
consult with Lessee in connection with, any negotiations with tax authorities
relative to such controversy. The term, "tax return" as used herein shall
include any tax return filed separately by ELEX or any consolidated return in
the filing of which ELEX may join with an affiliated corporation.
Special Provision For Option To Purchase
In the event that the Lease has not been earlier terminated and that no defaul
thas occurred Lessee may, by written notice delivered to ELEX at least one
hundred eighty (180) days prior to the expiration date of the term or any
previously extended term (the "Expiration Date"), elect to purchase the
Equipment then subject to the Lease for a purchase price equal to the "Fair
Market Value" thereof as of the end of such term, such purchase to be on an
as-is, where-is basis, without representation or warranty, expressed or implied,
of any kind whatsoever by ELEX. As used in this Section, "Fair Market Value"
shall be determined by ELEX and Lessee on the basis of what would be obtained
in an arm's length transaction between an informed and willing buyer (other than
a buyer currently in possession or a used equipment dealer) and an informed
seller under no compulsion to sell, and in determining such amount (i) the cost
of removal from the location of current use all not be a deduction from such
amount and (ii) it shall be assumed that each Unit is in the condition required
by the Lease. If on or before sixty (60) days prior to the Expiration Date ELEX
and Lessee are unable to agree upon "Fair Market Value" such Fair Market Value
shall be determined by an independent appraiser mutually agreed upon by ELEX and
Lessee within (10) days after selection, or failing such agreement, by a panel
of three independent, qualified appraisers, one of whom shall be selected by
ELEX the second by Lessee and third appointed by the first two selected all
within the ten (10) days. The appraiser or panel of appraisers, as the case may
be, shall make its determination within a period of thirty (30) days following
appointment. The determination so made shall be conclusively binding upon both
ELEX and Lessee. The expenses and fees of all appraisers shall be borne by
Lessee.
Special Provision For Option To Renew
(1) Renewal option. In the event that the Lease has not been earlier
terminated and that no default has occurred and is continuing, Lessee, shall
have the option to extend the term of this Lease or prior extensions thereof
with respect to the Equipment for a period specified by Lessee but in any event
each extension shall be for not less than six (6) months in duration
("Additional Term") commencing on the expiration date of the term or any
previously extended term (the "Expiration Date") if notice of the exercise of
such option is given by Lessee in writing to ELEX at least one hundred eighty
(180) days prior to the Expiration Date of its intention to extend the term Of
this Lease for the Additional Term.
(2) Rentals During Additional Term The rental to be paid during all such
extensions shall be an amount equal to "Fair Market Rental" as of the
commencement of the Additional Term, payable in advance in equal and
consecutive monthly installments on each monthly anniversary of the Expiration
Date commencing with the Expiration Date. As used in this section, the term
"Fair Market Rental" shall mean an amount equal to the aggregate net rental
which would be obtained in an arm's length transaction between an informed and
willing lessee (other than a lessee in possession or a used equipment dealer)
and an informed and willing lessor under no compulsion to lease, and in
determining such amount (i) the cost of removal from the location of current
use shall not be a deduction, from such amount and (ii) it shall be assumed
that at the time of the commencement of such Additional Term, each Unit is in
the condition required by the Lease. If on or before sixty (60) days prior to
the Expiration Date, ELEX and Lessee are unable to agree upon a determination of
Fair Market Rental, such Fair Market Rental shall be determined by an
independent appraiser mutually agreed upon by ELEX and Lessee within ten (10)
days after selection, or failing such agreement, by a panel of three
independent, qualified appraisers, one of whom shall be selected by ELEX, the
second by Lessee and the third appointed by the first two selected all within
the ten (10) days. The appraiser or panel of appraisers, as the case may be,
shall make its determination within a period of thirty (30) days following
appointment. The determination so made shall be conclusively binding upon both
ELEX and Lessee. The expenses and fees of all appraisers shall be borne by
Lessee.
SP-OTR95 Lease Number 990727
Special Provision For Early Termination
1) If during the Initial Term all or part of the Equipment becomes
obsolete or surplus to Lessee's requirements, and provided no default has
occurred, Lessee may at any time after the thirty sixth (36th) month, upon not
less than ninety (90) days prior written notice to ELEX, terminate the Lease
with respect to such Equipment, or any Unit(s) thereof, ("Terminated Unit(s)"),
as of any succeeding rental payment date specified in said notice
("Termination Date").
(2) On the Termination Date the Lessee shall return the Terminated Unit(s)
to ELEX pursuant to the provisions of sub-paragraph 2(h) of the Agreement For
Leasing.
(3) Following the giving of written notice to terminate the Lease as to any
Unit(s), ELEX and Lessee shall endeavor to obtain bids for the purchase or lease
of the Terminated Unit(s) on an as-is, where-is basis and without
representations or warranties, expressed or implied, of any kind whatsoever.
(4) Upon the Termination Date, Lessee shall pay ELEX the regular monthly
installment of rent, without any abatement as described in paragraph ten (10)
hereof, plus the net Termination Value, which shall be deemed to be the amount,
if any, by which the Termination Value, defined in paragraph seven (7) hereof,
exceeds the net amount received by ELEX for the Terminated Unit(s).
(5) If by the Termination Date a satisfactory bidder(s) has not been
obtained for the sale or lease of all of the Terminated Unit(s), ELEX shall
within ninety (90) days after the return of the remaining Unit(s) to ELEX sell
or lease the Unit(s) for the highest offer then available.
(6) Lessee shall be refunded an amount equal to the proceeds of the sale or
the present value of the lease, as defined in paragraph eight (8) hereof, less
the actual expenses incurred by ELEX in making the sale(s) or lease(s)
including, without limitation, storage, insurance, advertising, sales taxes and
attorneys' fees for the Terminated Unit(s) and, but in no event shall the refund
be in excess of the net Termination Value previously paid by Lessee to ELEX
(7) The Termination Value shall be computed by multiplying ELEX's original
cost for the Terminated Unit(s) as shown on Schedule A of the Lease, by the
applicable termination percentage shown on Schedule B of the Lease
("Termination Value").
(8) The present value of a lease shall be deemed to be equal to the
aggregate net rentals of such lease discounted at a rate equal to three percent
(3%) over the average then current prime interest rate or equivalent thereof
charged by the three largest New York commercial banks on the Termination Date.
(9) In the event that no bidder has been obtained for the sale or lease of
all of the Terminated Unit(s) within ninety (90) days after the Termination
Date, ELEX shall transfer ownership of the Unit(s) to Lessee.
(10) In the event of termination of the Lease as to any Unit(s), the amount
of each remaining installment of rent as provided in the Lease shall be reduced
and abated by the same percentage as ELEX's original cost of such Terminated
Unit(s) bears to the total original cost of all Unit(s) as shown in Schedule
A of the Lease.
SP-PET95 Lease Number 990727 -
SPECIAL PROVISION FOR TERMINAL RENTAL ADJUSTMENT
(1) Since the rental payments due under the Lease are based upon the
anticipated residual value of the Equipment being equal to or greater than 10%
of the original cost, as shown on Schedule A of the Lease, ("Residual Value"),
it is agreed that notwithstanding anything to the contrary contained herein
Lessee shall pay to ELEX prior to the termination of the Term of the Lease
('Termination Date") as "Additional Rent" the amount, if any, by which the
Termination Value, as specified on Schedule B of the Lease, exceeds the net
proceeds received as of the date thereof from the sale of the Equipment.
(2) Following the giving of written notice to terminate the Lease, ELEX and
Lessee shall endeavor to obtain bids for the purchase of the Units of Equipment
on an as-is, where-is basis and without representations or warranties, express
or implied, of any kind whatsoever. Within ninety (90) days after the
Termination Date, ELEX shall sell said Unit(s) for the highest offer then
available. Upon such sale, Lessee shall be refunded an amount equal to
the proceeds of the sale less the actual expense incurred by ELEX in making
the sale, including, without limitation, storage, insurance, advertising, sales
taxes and attorneys' fees, but in no event shall the refund be in excess of the
Additional Rent previously paid.
(3) In the event that no bidder has been obtained for the sale of all of the
Units of Equipment within ninety (90) days after the Termination Date, ELEX
may at its option transfer title to Lessee for those Units of Equipment which
have not been sold.
AGREEMENT FOR THE PURCHASE OF EQUIPMENT UNDER LEASE
By and between The ELEX Group, Inc., a New Jersey corporation whose address is
P.O. Box 14,' Medford, New Jersey 08055 ("ELEX"), and ICT GROUP, INC., a
Pennsylvania corporation whose address is 800 Town Center Drive, Langhorne, PA
19047 ("Lessee").
WITNESSETH:
WHEREAS, ELEX and Lessee have entered into a lease covering the equipment set
orth on Schedule A attached hereto and made a part hereof ("Equipment") dated
March 1999 -#990727 ("Lease"); and
WHEREAS, the parties now wish to modify some of the terms and conditions of the
Lease;
NOW, THEREFORE, in consideration of the mutual promises set forth hereinafter
and in the Lease and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is hereby agreed as follows:
1) In the event that the Lease has not been earlier terminated and that no
continuing default is then occurring, either party may, by giving written
notice to the other party at least one hundred eighty (180) days prior to the
expiration date of the term of the Lease ("Expiration Date"), elect to have the
equipment then subject to the Lease purchased by the Lessee on the Expiration
date for a purchase price equal to ten percent (10%) of the original cost of
the Equipment, such purchase to be on an as-is, where-is basis, without
representation or warranty, expressed or implied, of any kind whatsoever by
ELEX.
2) In the event of a conflict between the provisions of the aforesaid Lease and
this Agreement, the provisions of this Agreement shall govern.
In witness whereof, the parties hereto have caused this Agreement For The
Purchase Of Equipment Under Lease to be duly executed this 29th day of March
1999.
ICT GROUP, INC. THE ELEX GROUP, INC.
(Lessee) (ELEX)
BY: /s/ John J. Brennan BY:___________________
Title: President & CFO Title: Secretary
AGRPUREQ - 1961
EXHIBIT I
CERTIFICATE OF ACCEPTANCE
TO: THE ELEX GROUP, INC. (-ELEX-)
1, a duly appointed inspector and authorized representative of ICT GROUP, INC.,
a Pennsylvania corporation whose address is 800 Town Center Drive, Langhorne, PA
19047
("Lessee"), do hereby certify in accordance with the Lease dated March 29, 1999
between Lessee and ELEX that (i) I do accept the Unit(s) of Equipment listed in
the Schedule A attached hereto and made a part hereof which has (have) a
purchase price of $ 936,734 (ii) the Date of Acceptance is as set forth below
and (iii) the Unit(s) has (have) been delivered and installed at:
1398 South Woodland Blvd., DeLand FL 32720
The execution of this Certificate of Acceptance will in no way relieve or
decrease the responsibility of any manufacturer of any Unit(s) of Equipment for
any warranties it has made with respect to any Unit(s) of Equipment.
ICT GROUP, INC.____________
(Lessee)
BY /s/ John J. Brennan
TITLE President and CFO
DATE 3/29/99
Signed in my presence in the Commonwealth of Pennsylvania
Dian Haeselin______
Notary
Notarial Seal
Diane Haeselin, Notary Public
Middletown Twp., Bucks County
My Commission Expires May 12, 2001
Member, Pennsylvania Association of Notaries
ELEX hereby accepts Lessee's Certificate of Acceptance and grants Lessee the
right to use the Equipment.
THE ELEX GROUP, INC._______________
(ELEX)
BY_________________________________
TITLE______Secretary_________________
Lease Number 990727
COA-1971
LESSEE'S CONSENT AND AGREEMENT
The undersigned ("Lessee") acknowledges receipt of notice that ELEX will
execute a Collateral Assignment(s) relating to the Lease of even date herewith
("Lease"), and for good and valuable consideration, receipt whereof is hereby
acknowledged, Lessee hereby consents to the execution and delivery of said
Collateral Assignment(s) and to all the terms and provisions thereof and
agrees that upon notice to the, Lessee of such Collateral Assignment(s):
(a) The Lessee will pay directly to the last Assignee or to whomsoever such
Assignee shall direct (i) all rent and other moneys due and to become due from
the Lessee as set forth in the Lease, (ii) all amounts payable by reason of
acceleration of the liability of the Lessee for such rent or other moneys and
(iii) all other amounts at any time owing under the Lease by the Lessee.
(b) The Lessee will not assert against such last Assignee, or against
whomsoever such Assignee shall have directed payment to be made, any defense,
setoff or counterclaim (including recoupment against, or other diminution of,
amounts payable by the Lessee to such Assignee) which it may have against ELEX
or anyone, whether arising under the Lease, hereunder or otherwise.
(c) The Lessee will not modify or consent to any modification of the terms
of the Lease without the written consent of ELEX and such last Assignee.
(d) All obligations and warranties of ELEX contained in the Lease shall be
and remain enforceable by the Lessee against and only against ELEX and its
successors and assigns and not against the Collateral Assignee.
(e) Any assignment executed and delivered pursuant to the right reserved
to ELEX and its assignees in Paragraph 2(k) of the Agreement for Leasing shall
be deemed to be included within this Consent and Agreement.
Dated: March 29, 1999 ICT GROUP, INC___________
(Lessee)
BY__________John J. Brennan_____________
TITLE______President and CFO____________
SEAL
Attest________David F. McHugh___________
TRANSFER & ASSUMPTION AGREEMENT
Assumption Agreement made by and between ICT Group, Inc., ("Lessee"),
Boston Communications Group, Inc. ("Transferee"), The ELEX Group, Inc.,
("Lessor"), and EUROPEAN AMERICAN BANK ("EAB"), a corporation organized under
the Banking Laws of the State of New York ("Assignee").
WHEREAS, Lessee is presently indebted to Lessor under an Agreement for
Leasing dated September 24, 1998, and Lease #990729(collectively the "Lease")
between Lessee and ELEX, and duly assigned to EAB, copies of which Lease,
delivery and acceptance receipt, sale and Collateral Assignment by ELEX to
EAB, notice of assignment and financing statements filed with the Secretary of
State of Pennsylvania and Florida, with regard to the following equipment, are
annexed hereto as Exhibit A.
SEE ATTACHED SCHEDULE "A"
and,
WHEREAS, Lessee has agreed to sell, transfer and assign its interest
in such equipment and Lease to Transferee, and Transferee has agreed to assume
all of Lessee's obligations to Lessor:
NOW, THEREFORE, IT IS AGREED:
1. Rent Balance All of the parties acknowledge that the
balance due to Lessor as of the date hereof is payable in the manner set forth
in the Lease, or other evidences of indebtedness and any other documents,
waivers or agreements in connection therewith heretofore executed by Lessee
(herein collectively referred to as the "Obligations").
2. Rent Payments Lessee and Transferee hereby agree jointly and
severally to pay and discharge the lease payments and all other amounts
payable under the Obligations to Lessor or its successors and assigns, in
accordance with the terms of the Obligations and upon execution of this
Agreement, to pay to EAB the monthly installments of $8,960.00 for the next 47
remaining months including the installment beginning with 11/1/99.
3. Assumption Transferee hereby assumes and agrees to perform
all the covenants of Lessee set forth in the Obligations.
4. Lessee's Liability Lessee shall continue to remain liable on
the Obligations and remain firmly bound as though this Agreement had never
been entered into.
5. Lease Terms All terms, conditions, and covenants of the
Obligations shall remain unchanged and shall continue to remain in full force
and effect.
6. Estoppel Lessee and Transferee hereby warrant, represent, and
covenant that the Obligations are not subject to any disputes, offsets, or
counterclaims of any kind or nature whatsoever.
7. Security Transferee acknowledges that Lessor has a valid first
security interest in the equipment and in confirmation thereof agrees to
execute all financing statements and other documents which Lessor may, in its
sole discretion, deem necessary to protect such security interest.
8. No release Lessee agrees that its obligations hereunder shall
not be impaired by any modification, release, or other alteration of any
Obligations of Lessee or of any security therefore, to all of which Lessee
hereby consents and that the liability of Lessee hereunder is direct and
unconditional and may be enforced without requiring Lessor or its assignees
first to resort to any other right, remedy, or security.
9. Consent Lessor hereby consents to the aforesaid transfer by Lessee to
Transferee.
Transferee: Lessee:
Boston Communications Group Inc. ICT Group, Inc.
By: /s/ Karen A. Walker______ By: /s/ V A Paccapaniccia
Title Chief Financial Officer____ Title Sr. VP Financial & CFO
CONSENTED TO: CONSENTED TO:
Assignee: Lessor:
EUROPEAN AMERICAN BANK The ELEX Group, Inc.
By: Frederick W. Frinkelmare By:_/s/ JoDee B. Pettine
Title ___A V P__________________ Title: President
AGREEMENT FOR LEASING
THIS AGREEMENT by and between THE ELEX GROUP, INC., a New Jersey
corporation, whose address is P.O. Box 14, Medford, New Jersey 08055 ('ELEX'),
and ICT GROUP, INC., a Pennsylvania corporation whose address is 800 Town
Center Drive, Langhorne, PA 19047 ("Lessee").
WITNESSETH
WHEREAS, Lessee desires to lease items of equipment from ELEX or certain
lessors represented by ELEX, and ELEX is willing to arrange such leases; and
WHEREAS, the parties wish to set forth in full certain terms to be incorporated
in all leases to be executed pursuant to this Agreement For Leasing:
NOW THEREFORE, in consideration of the mutual covenants herein contained and
intending to be legally bound hereby, it is agreed as follows:
1. Leasing. Lessee hereby authorizes ELEX, and ELEX agrees to use its best
efforts to arrange leases of equipment wherein Lessee shall be the lessee and
ELEX or the other party or parties represented by ELEX shall be the lessor.
Such leases shall cover such equipment and shall contain such provisions
respecting payments, terms, covenants, conditions and provisions ("Provisions")
as the respective parties thereto may agree. Lessee will execute such leases
when ELEX or a lessor secured by ELEX is ready to enter into such leases. ELEX
shall make all arrangements between Lessee, and all lessor(s) represented by
ELEX
2, Lease Provisions. Each such lease, ("Lease") shall, in addition to its
Provisions, incorporate by reference all of the following terms and conditions,
covenants and provisions (the term "ELEX as used hereafter, being deemed to
refer to the lessor under each such Lease; the term "Unit" being deemed to refer
to each item of equipment described in and covered by a Lease; the term
"Equipment" being deemed to refer to all items of equipment described in and
covered by a Lease; and the term "Date of Acceptance" being deemed to refer to
the date a Unit is available to be placed in service for its intended purpose):
(a) Term The Lease of the Equipment shall commence as of the date thereof
and shall continue in full force and effect until terminated by either party
as of any succeeding rental payment date, upon not less than one hundred eighty
days prior written notice to the other party; provided, however, that the term
of the Lease shall in no event be less than the period specified as the
"Initial Term" in the Lease covering such Equipment.
If any term shall be extended or any renewal options shall be exercised, the
word "term" as used herein shall be deemed to refer to the Initial Term and
all extended or renewal terms of any Lease hereto, and all provisions of this
Agreement For Leasing shall apply during extended or renewal terms.
(b) Rent. As used herein, "rent" for the Equipment shall be the "total
rent" specified in the Lease, payable in successive installments at the times
set forth in the Lease. It is understood and agreed by the Lessee that such
"total rent" shall be of the essence of the Lease and that ELEX shall be
entitled to the payment of the full amount thereof in consideration of the
letting of the Equipment, including payment of the then outstanding balance
of such total rent (plus all other sums due under the Lease) in the event of
the happening of any default specified in Paragraph 20) below, subject to
reduction only as provided in Paragraph 20)(2)(b). Rent shall be paid to ELEX
at its address specified in the Lease, or as otherwise directed by ELEX free
from all claims, demands, or setoffs against ELEX, the manufacturer of the
Equipment or any assignee of ELEX. If ELEX is subjected to any liability
because of any non-compliance with the Lease or any regulatory law applicable
to any of the Equipment on the part of the Lessee, then upon notice to the
Lessee of the nature and/or amount thereof, the Lessee shall forthwith
discharge the same, and if ELEX shall incur any expense by reason thereof,
the amount of such expense shall be added to the installment of rent next
falling due as additional rent.
If any installment of rent is not paid within ten (10) days following the due
date thereof, a late charge equal to five percent (5%) of such installment
shall be due and payable as additional rent, and thereafter an additional late
charge of five percent (5%) of the then unpaid installment and late charges
shall be due and payable as of the eleventh day of each succeeding month
thereafter until such installment is paid.
(c) Use, Care and Operation. Lessee shall, at its expense:
(l) Receipt and Acceptance. Receive each Unit of Equipment at, and pay all
delivery charges for each Unit to, the location of original use specified
therefore; unload, and, if required, assemble and install the same.
Lessee will signify the Date of Acceptance of each Unit of the Equipment by the
prompt execution and delivery to ELEX of a Certificate of Acceptance in the
form attached hereto as Exhibit 1 ("Certificate of Acceptance"). The Lessee's
execution and delivery to ELEX of the Certificate of Acceptance, signed by an
officer of Lessee, shall conclusively establish as between ELEX and the Lessee
that each Unit is in good operating order, repair, condition, appearance, is
suitable for the purpose of Lessee and the Lease, conforms to the
specifications applicable thereto and that such unit has not been used or
operated prior to the Date of Acceptance indicated therein. Such acceptance
shall not affect Lessee's claims against the manufacturer or manufacturer's
warranties.
(2) Fees and Tares. Pay, and file any necessary returns with respect to,
all license fees, assessments or other governmental charges, and sales, use,
gross receipts, personal property, and other tax or taxes, now or hereafter
imposed by any state, federal or local government or agency upon any Unit or
upon the leasing, use or operation thereof, or upon the receipt of rentals
therefore or earnings arising therefrom (excluding taxes imposed on ELEX's net
income, except any such taxes which are in substitution for, or relieve the
Lessee from, the payment of taxes which it would otherwise be obligated to pay
or reimburse as herein provided) before the same shall become in default or
subject to the payment of any penalty or interest and supply ELEX with receipts
or other evidence of payment satisfactory to ELEX; Lessee shall promptly
reimburse ELEX for all property taxes, or levies assessed upon any Unit, paid
by ELEX; however, there shall be no obligation of ELEX to make payment of any
property taxes assessed upon any Unit.
(3) Maintenance. At all times keep and maintain each Unit in good working
order, repair, and appearance; install, keep, and maintain each unitsuch
insignia and identification as ELEX may designate, and certify that such has
been done; make any and all necessary repairs and replacement thereto in order
that each Unit, its components and accessories, shall continue to fulfill their
intended function or use; and keep and operate the same as specified in the
Lease therefore; except that Lessee shall not, without ELEX's prior written
consent, affix or install any accessory, equipment, device, advertising matter
or insignia to any Unit. ELEX passes through to Lessee all warranties of the
manufacturer of the Equipment and Lessee shall have the right to, and will,
directly avail itself of all warranties and representations made by the
manufacturer with respect to the Equipment and ELEX agrees to execute such
documents as may be required to enable Lessee to obtain customary warranty
service for each Unit of Equipment from the manufacturer.
The Lessee agrees to execute at its own expense a maintenance contract with the
manufacturer of the Equipment and to keep said Contract in force until the
Equipment is surrendered to ELEX. Said maintenance contract shall provide for
at least the same services by the manufacturer as those furnished under the
manufacturer's standard maintenance contract for nine-hour per day use of the
Equipment, and shall provide for the incorporation of such engineering changes
and improvements in the Equipment which are available without additional charge
as part of such services. A maintenance contract for the Equipment may not be
entered into with other than the manufacturer of the Equipment without the
approval of ELEX, which approval will not be unreasonably withheld.
All replacements, repairs, parts, and supplies shall be obtained at Lessee's
expense and shall be performed and supplied only by such persons as shall be
approved by ELEX. All replacements, repairs, parts, supplies, accessories,
equipment, devices, or other items furnished or affixed to any Unit shall
thereupon become ELEX's property and Lessee shall arrange that there be
delivered promptly to ELEX all instruments or documents as may be necessary to
evidence ELEX's original and free, clear and unencumbered title thereto and
ownership thereof.
(4) Provisioning. Provide all labor, materials, services, utilities,
electric power, parts, and other supplies or items consumed by, or required
for, or in connection with the recommended use of, each Unit.
(5) Compliance with Law. Observe and comply with, and perform and execute,
all laws, rules, regulations, or orders of all state, federal, and local
governments or agencies which in any way affect or relate to, or are applicable
to, any Unit, or the use, operation, maintenance, or storage thereof; and
Lessee shall, and does hereby, indemnify ELEX and agrees to hold ELEX harmless
from any and all liability that may arise from any infringement or violation
of any such law, rule, regulation, or order by Lessee, or Lessee's employees,
or any other person.
(6) Use and Operation. Not use, operate, maintain, or store any Unit
improperly, carelessly, or in violation of the Lease or any instructions
furnished therefore by the manufacturer or by ELEX; nor install or operate the
same other than as specified in the Lease; nor permit anyone other than its
authorized agents, persons, and employees, all of whom must be competent
operators to operate the same, and for whom Lessee agrees to be responsible.
(7) Non -Transferability. Not, without ELEX's prior written consent, which
shall not be unreasonably withheld, let or sublet any Unit; nor lend or part
with the possession of any Unit, or any part thereof, nor assign the Lease or
any interest therein.
(8) Risk. Bear and assume all risk and liability for (and Lessee does
hereby agree to indemnify and hold ELEX harmless from any and all claims,
liens, demands, or liability arising out of the loss of or damage to each Unit,
the use, operation, maintenance, and storage thereof, and the loads thereon,
and the injury or death of persons and/or damage to property howsoever arising
therefrom or the use therefore, or the condition of such Unit, during the
continuance of the Lease and until the return of such Unit. The indemnities
and assumptions of liability herein provided shall continue in full force and
effect notwithstanding the termination of the Lease, whether by expiration of
time, by operation of law, or other.
(9) Inspection. Upon ELEX's demand, permit ELEX, its agents or
representatives and persons designated by ELEX to enter upon the premises where
each Unit is located and to inspect each Unit, and its manner of use, at any
reasonable time and from time to time.
(10) Notice of Location. Not, without ELEX's written consent, remove any
Unit from the location of original use; and at all time keep ELEX advised of
the location of any Unit should Lessee remove it from the location of original
use.
(d) Representations. Lessee does hereby agree that each Unit is of a size,
design, capacity, and material selected by Lessee, and that Lessee is satisfied
that each such Unit is suitable for Lessee's purposes, and sufficiently durable
under the conditions of usage thereof by Lessee, and that ELEX has made no or
uses of Lessee, or with respect to the permissible load thereof, or any other
representation or warranty, express or implied, with respect thereto. Lessee
understands and acknowledges that no broker or supplier, nor any salesman,
broker or agent of any broker or supplier is an agent of ELEX Lessee represent
to ELEX that the Equipment will be used exclusively for business or commercial
purposes and will not be used at any time during the term of the Lease for
personal, family or household purposes.(e)
NO REPRESENTATIONS
ELEX DOES NOT WARRANT THE EQUIPMENT IN ANY RESPECT, EITHER EXPRESSLY OR BY
IMPLICATION AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ELEX
EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS OR
ADEQUACY FOR ANY PURPOSE OR USE, QUALITY, PRODUCTIVENESS OR CAPACITY.
(e) Non-Liability of ELEX ELEX shall not be liable to Lessee for any loss,
incidental or consequential damage, expense of any kind or nature caused,
directly, indirectly, by any Unit or the Equipment or the use, maintenance,
operation, handling, or storage thereof, or loads thereon, or the repairs,
servicing, or adjustments thereto, or because the same is, or has become,
unsuitable, or unserviceable, or by any interruption of service or loss of
use thereof, or strict liability with respect thereto, or for any loss of
business or damage whatsoever or howsoever caused. ELEX shall not be liable to
Lessee for delay in delivering, or failure to deliver any Unit.
(f) Insurance. Lessee will procure and maintain at its sole cost and
expense, bodily injury and third party property damage insurance, with insurers
satisfactory to ELEX, for the Equipment, with liability limits of not less than
those specified in the Lease. Lessee will further, without cost to ELEX
maintain or Cause to be maintained in effect throughout the term of the Lease
for the Equipment, with insurers satisfactory to ELEX, insurance policies
insuring against all-risk physical loss or damage to such Equipment for an
amount equal to the Casualty Value (hereinafter defined) of such Equipment as
of the last monthly rent payment date set forth in Schedule of Casualty Values
attached to the Lease. All policies shall name as additional insured ELEX, and
assignees of ELEX and Lessee as their interest may appear and provide that they
cannot be amended or canceled with respect to ELEX, and its assignees except on
at least thirty (30) days prior written notice to ELEX and its assignees. All
policies or certificates thereof and endorser, thereto shall be delivered to
ELEX effective and enforce at the time of execution of the I-ease. All renewals
thereof shall be delivered to ELEX, least ten (10) days prior to the expiration
of the current policy. Lessee hereby appoints ELEX as its attorney-in-fact,
coupled with an interest, With full power of substitution, for purposes of
executing any proof of loss or related document, endorsing any check, draft or
other means of payment in connection with any loss, compensable under such
policies. This power is irrevocable for so long as the Lessee remains indebted
to ELEX or its assignee hereunder or under any other agreement or instrument.
(g) Damage. Should any Unit:
(1) be damaged by reason of any cause, and be capable of repair without
impairment of value, Lessee shall repair the same at Lessee's sole expense, as
quickly as circumstances permit, without any abatement of rent. In such event,
should ELEX be indemnified under any insurance policy or policies pursuant to
the provisions of the Lease covering such Unit, ELEX shall pay to Lessee the
proceeds received by ELEX from such insurance but only to the extent necessary
to reimburse Lessee for all amounts paid by it pursuant to this paragraph and
properly documented. In any even, ELEX shall not be liable for any amount in
excess of said insurance proceeds; or
(2) be lost, stolen, destroyed, taken for public use, or damaged beyond
repair by any cause whatsoever, ("Casualty") Lessee shall pay ELEX within
fifteen (15) days thereafter an amount equal to ELEX's original cost of said
Unit, as shown in Schedule A of the I-ease of said Unit, multiplied by the
casualty loss percentage applicable to the date of Casualty, as shown in
Schedule B of the Lease of said Unit, ("Casualty Value'). Upon such payment,
and if the Lessee shall then not be in default under the Lease, the balance of
the rent due under the Lease shall abate in an amount determined by the same
percentage as the original cost of the Unit(s) suffering the Casualty bears to
the cost of the Equipment. Until such payment Lessee shall continue the prompt
payment of all rent under the Lease and any such rent due for the period before
payment shall not abate. Following payment of the Casualty Value Lessee shall
be entitled to the proceeds of any insurance covering the Unit(s) suffering a
casualty, but in no event shall the amount of such reimbursement exceed the
Casualty Value previously paid by Lessee, and any excess shall be the property
of ELEX
(h) Return of Equipment. Within ten (10) days after the expiration or
sooner termination of the term of the Lease (or of any extension thereof),
Lessee will, at Lessee's expense, return each Unit which has not been lost,
stolen, destroyed, or damaged beyond repair, to ELEX, or ELEX's designee or
designees, loaded on such appropriate conveyance and properly packed and at
such destination or destinations as ELEX may designate, free of all advertising
or insignia placed thereon pursuant to Section 2(c) (3) by Lessee (other than
identification tags of ELEX), and in the same operating condition, order,
repair, and appearance as when received (reasonable wear and tear (except as
provided in Paragraph 2 (c) (3) above) and damage by any cause for which ELEX
has recovered under insurance, excepted]. If any such Unit is not so returned
within the time specified herein, Lessee shall continue to pay the rent
specified in the Lease until the Equipment is so returned in the aforesaid
condition.
(i) Time of Essence. Tune is of the essence of this Agreement. No expres
or implied waiver by ELEX of any default hereunder shall in any way be, or be
construed to be, a waiver of any future or other default of Lessee, or a waiver
of any rights of ELEX or a modification of any of the Lease terms, or an
extension or enlargement of Lessee's rights under the Lease.
(j) Default by Lessee.
(1) If (a) Lessee shall fail to pay the rent when due; or (b) Lessee shall
fail to perform any other term or condition of the Lease and such failure shall
continue for a period of thirty (30) days; or (c) proceedings under the Federal
Bankruptcy Code shall be instituted against Lessee, or a receiver shall be
appointed for Lessee or any of its property, or any of the Equipment shall be
attached or levied upon, and such proceedings shall not be vacated, or fully
stayed within ninety (90) days in the case of proceedings under the Federal
Bankruptcy Code, otherwise within twenty (20) days thereof; or (d) Lessee shall
make an assignment for the benefit of creditors, or institute proceedings for
debtor relief under the Federal Bankruptcy Code, or admit in writing its
inability to pay its debts generally as they become due; or (e) if any
representations or warranty made by Lessee hereunder or in connection herewith
shall be false, misleading or untrue in any material respect,
(2) then ELEX, at its option, may declare the balance of the rent due under
the Lease, as well as any amounts specified herein or in the Lease as items of
additional rent and not then accrued and owing, immediately due and payable,
and upon any such declaration the same, plus the aggregate amounts of any
installment of rent (including any late charge thereon) and any other sums
then accrued and unpaid, shall be due and payable forthwith, and ELEX shall
have the right to take all steps appropriate to collect the same and
(a) to take immediate possession of the Equipment, and
(b)to lease or sell, or both, the Equipment or any Unit upon such terms
as ELEX may elect, and apply the net proceeds on account of Lessee's
obligations hereunder, and
(c) in accordance with the terms of the Lease to confess a judgment
against the Lessee for the full amount of the rent and other sums due and
owing under the Lease.
The foregoing remedies and any other remedy available at law or equity are
cumulative and available to ELEX but ELEX shall be under no obligation to
exercise any such remedy. The exercise by ELEX of any such remedies shall not
release Lessee from its obligations hereunder or bar ELEX from proceeding
otherwise. Lessee shall additionally pay ELEX a reasonable sum as and for
attorneys' fees and an amount equal to such unreimbursed expenses as shall have
been paid or incurred by ELEX in the seizure of the Equipment or any Unit, or
in the enforcement of any of ELEX's rights or privileges hereunder.
(k) Assignment by ELEX ELEX shall have the right to assign all or any part
of its rights under the Lease. In such event, the assignee shall be entitled
to enforce the rights so assigned but shall be under no liability to the Lessee
to perform any of the obligation of ELEX, unless assignee assumes such
liability in writing, in which case ELEX shall, to the extent assignee assumes
such liability, be released from all of its obligations to Lessee. Lessee
agrees that it will pay the rent and all other sums due by Lessee hereunder
directly to such assignee after receipt of notice of such Assignment. Any
assignee of ELEX's rights may reassign such rights with the same force and
effect as an original assignment.
(1) Security. As security for the faithful performance by Lessee of the
terms and conditions of the Lease, Lessee shall deposit with ELEX the amount
indicated in the Lease as security deposit and/or advance rentals. Provided
Lessee has at all times fully performed all its covenants and conditions agreed
upon to be performed, ELEX will return to Lessee the security deposit at the
expiration of the Lease. ELEX may, but shall not be required to, apply such
security deposit and/or advance rentals to discharge any overdue obligation of
the Lease.
(m) Notices. All notices, consents, waivers or other communications
required under the Lease shall be in writing by certified mail, and any such
notice, consent, waiver or communications shall be irrevocable and become
effective when deposited in the United States mail, with proper postage prepaid
addressed to the party intended to be served at its address appearing in this
Agreement or in the Lease, or at such other address as such party may, from
time to time, designate in writing.
(n) General. This is a contract of lease only, and nothing herein shall be
construed as conveying to Lessee any right, title, or interest in or to the
Equipment, except its rights as a Lessee only. Title to the Equipment shall at
all times remain in ELEX, and Lessee shall at all times, at Lessee's expense,
protect and defend ELEX's title thereto against all claims, liens, and legal
processes of Lessee's creditors, or persons claiming through Lessee, and keep
the Equipment free and clear from all such liens, claims, and processes. ELEX
covenants, subject to performance by Lessee of all of its obligations under the
Lease, that Lessee will have quiet enjoyment of the Equipment during the term
of the Lease. Each Unit is, and shall remain, personal property irrespective of
its use or manner of attachment to real property, and Lessee shall obtain for
ELEX a real property waiver from owner or mortgage, of the premises where any
Unit is kept. Said waiver shall provide that the Equipment shall remain
personal property removable by ELEX or its assigns at any time without notice;
ELEX or its assigns shall have access to the premises as may be required for
the purpose of inspection, sale, and removal, the real property owner waives
any right, title, lien, or interest which he may otherwise have in the
Equipment. The parties agree that this Agreement for Leasing and each Lease are
intended to qualify as a "finance lease" under Article 2A of the Uniform
Commercial Code. Lessee acknowledges that (a) Lessee has received a copy of the
contract by which ELEX acquired the Equipment (the" Supply Contract") or (b)
Lessee has reviewed and approved the Supply Contract or (c) ELEX has informed
Lessee in writing that Lessee may have rights under the Supply Contract and
that Lessee should contact the supplier of the description of any such rights.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, LESSEE HEREBY WAIVES ANY RIGHTS TO
(i) CANCEL ANY LEASE, (ii) REPUDIATE ANY LEASE, (iii) REVOKE ACCEPTANCE OF THE
EQUIPMENT, (iv) RECOVER DAMAGES FROM ELEX FOR ANY BREACHES OF WARRANTY OR FOR
ANY OTHER REASON, (v) A SECURITY INTEREST IN THE EQUIPMENT IN LESSEE'S
POSSESSION OR CONTROL FOR ANY REASON, (vi) DEDUCT ALL OR ANY PART OF ANY
CLAIMED DAMAGES RESULTING FROM ELEX'S DEFAULT, IF ANY, UNDER ANY LEASE, (viii)
"COVER" BY MAKING ANY PURCHASE OR LEASE OF, OR CONTRACT TO PURCHASE OR LEASE,
EQUIPMENT IN SUBSTITUTION FOR THAT DUE FROM ELEX, (viii) RECOVER ANY GENERAL,
SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR ANY REASON WHATSOEVER, AND (ix)
SPECIFIC PERFORMANCE, REPLEVIN, DETINUE, SEQUESTRATION, CLAIM OR DELIVERY OR
THE LIKE FOR ANY EQUIPMENT IDENTIFIED TO ANY LEASE.
Each individual Lease executed pursuant to the Agreement for Leasing shall
constitute a separate and independent \lease.
ELEX's obligations shall be suspended to the extent that ELEX is hindered or
prevented from complying therewith because of strikes, lockouts, war, acts of
God, fires, storms, accidents, governmental regulations or interference or
other acts beyond ELEX's control. No obligation of ELEX, except as otherwise
specified herein, shall survive the term of the I-ease, or sooner termination
thereof, and should ELEX permit use by Lessee of any Unit beyond the term
specified therefore, the Lease obligations of Lessee shall continue and such
permissive use shall not be construed as a renewal of the term thereof, or as a
waiver of any right or continuation of any obligation of ELEX thereunder, and
ELEX may take possession of any such Unit at any time upon demand after 10 days
written notice. The cancellation or other termination, whether by operation of
law or otherwise, of the Lease shall not release Lessee from any of its
obligations hereunder or thereunder save [except as provided in Paragraph 2(c)
(8) above] upon payment in full by Lessee to ELEX of the Termination Value set
forth in the Lease. In the event ELEX shall be entitled, pursuant to any
provision hereof, to repossess any Unit, ELEX shall not be liable to the Lessee
in respect of any damage arising out of any such repossession except for ELEX's
negligent or wrongful act. This Agreement contains the entire understanding
between ELEX and Lessee, and any change or modification must be in writing and
signed by both parties. This Agreement is entered into under and shall be
construed in accordance with the laws of the State of New Jersey insofar as
applicable to the rights of ELEX, Lessee and any third party as to the
Equipment.
No term of provision of this Agreement for Leasing or any Lease may be amended,
altered, waived, discharged, or terminated except by a written instrument
signed by the parties hereto, and in compliance with Section 2-208(2) of the
Uniform Commercial Code requiring separate signature of this provision, Lessee
has signed in the space provided below.
VP
_________________________________
(Lessee's initials)
(o) Lessee shall furnish to ELEX (i) within ninety (90) days after the
close of each fiscal year of Lessee, a copy of its financial statements,
including a Balance Sheet and Profit and Loss Statement of Lessee as of the
end of such year, in each case certified by public accountants of recognize
standing acceptable to ELEX and (ii) other such financial information
respecting the financial condition and operation of Lessee as ELEX may from
time to time reasonable request.
3. Special Provisions.
4 Resolutions and Recording Costs.
(a) Lessee agrees that it will provide ELEX or its assignee with
appropriate opinions of counsel and certified copies of all necessary
authorizing resolutions, as may be reasonably requested by ELEX or any
assignee or counsel therefore.
(b) Lessee agrees that it will pay any and all recording costs necessarily
incurred to establish and record any lien in favor of any assignee of ELEX
5. Miscellaneous
(a) It is understood and agreed between the parties hereto that,
subject to Lessee's rights to the Equipment so long as Lessee is not in default
under the Lease, the several instruments and documents incidental or related to
this Agreement, to the assignment of any Lease,and/or to the mortgaging of any
of the Equipment by ELEX may contain such provisions -as may be required by
reason of the laws of the place where any of the Equipment is located in order
that ELEX or its assignees or a mortgagee or holder of a security interest may
obtain the full benefits of this Agreement in accordance with its original
intendments and purposes, or as may be reasonably required by any such assignee
for the full protection of any security interest which such assignee may have
in the Equipment or any Lease, and the provisions of this Agreement are subject
to all such requirements.
(b) The headings and sub-headings contained in this Agreement arc solely for
convenience and are not intended to be complete or accurate summations or
indices of the contents of their respective paragraphs.
(c) Any provision of this Agreement found to be prohibited by law shall be
ineffective to the extent of such prohibition without invalidating the rest of
this Agreement.
(d) Lessee agrees that at any time and from time to time, upon the
written request of ELEX or its Assignees, Lessee will promptly and duly execute
and deliver any and all such further instruments and documents as ELEX or its
Assignees may deem desirable in obtaining the full benefits of this Agreement
and any Lease herewith and of the rights and powers granted thereunder. Lessee
hereby grants ELEX the authority to sign and file on Lessee's behalf any
document or financing statement ELEX deems necessary to perfect or protect
ELEX's interest in the Equipment or pursuant to the Uniform Commercial Code.
(e) This Agreement contains the whole understanding of the parties; shall
be construed and enforced in accordance with the laws of the State of New
Jersey and shall inure to the benefit of, and be binding upon, the respective
legal representatives and heirs of the individual parties; and the successors
and assigns of the corporate parties.
IN WITNESS WHEREOF, the parties hereto have executed these
presents, the corporate parties by their officers thereunto duly authorized
this. 29th day of September 1998
ICT GROUP, INC. THE ELEX GROUP, INC.
(Lessee) (ELEX)
By /s/ V.A. Paccapaniccia BY /s/ JoDee B Pettine
TITLE Sr. V P Finance & CFO TITLE President
Signed in my presence in the Commonwealth of Pennsylvania
/s/ __Diane Haeselin,____
Notary
Notarial Seal
Diane Haeselin, Notary Public
Middletown Twp., Bucks County
My Commission expires May 12, 2001 4;
Member, Pennsylvania Association of Notaries
LEASE 990729
THE ELEX GROUP, INC., a New Jersey corporation, whose address is P.O. Box 14,
Medford, New Jersey 08055 ("ELEX"), hereby leases to ICT GROUP, INC., a
Pennsylvania corporation whose address is 800 Town Center Drive, Langhorne, PA
19047
("Lessee"), and Lessee hereby hires and takes from ELEX, the equipment
described in Schedule A attached hereto and made a part hereof ("Equipment"),
at the rent and upon the terms and conditions herein set forth:
1. Location of Original Use: 1398 South Woodland Boulevard, DeLand, FL
32720
2. Initial Term: Commencing on the first day of the month following the
Date of Acceptance of the Equipment under Lease and expiring Fifty-One (51)
months thereafter.
3. Rental: Monthly Rent: $ 8,960.00 Security Deposit: $ 17,920.00
Advanced Rentals: $ None
Total Rent: Payable in Fifty One (51) successive equal monthly installments
of Eight Thousand Nine Hundred Sixty Dollars and No Cents ($8,960.00) each plus
the Additional Rent specified in the Special Provision For Terminal Rental
Adjustment.
Each installment shall be due upon the first day of each and every month after
the Date of Acceptance of the Equipment, except for the first monthly
installment thereof and any Security which is due upon the execution of this
Lease. Additionally the Lessee shall pay to ELEX an interim rent for the period
from the Date of Acceptance of the Equipment to the first day of the month
following such date ("Interim Rent Period"). Said interim rent shall be that
proportion of a monthly rent installment which bears the same ratio as the
number of days of the Interim Rent Period bears to thirty (30) days, and shall
be payable on the first day of the month following the Interim Rent Period.
4. Reports and Payment of Rental: Lessee shall make all payment and send
all notices to ELEX at the address of ELEX set forth above, or at such other
address as ELEX may, from time to time, designate in writing.
S. Liability Insurance: Lessee shall provide and maintain the following
liability insurance:
A. Public Liability Bodily Injury, not less than S500,000 per one
person, $1,000,000 per one accident.
B. Property Damage, not less than $500,000.
6. Confession of Judgment: In the event of any default by Lessee under
this Lease as provided in Paragraph 2(j) of the Agreement For Leasing, Lessee
hereby empowers any Prothonotary, Clerk of Court or attorney of any Court of
Record to appear for Lessee and, with or without complaint filed, confess
judgment, or a series of judgments, against Lessee in favor of ELEX or any
assignees of ELEX, as of any term, present or future, for all or any part of
the rent specified in this Lease and then unpaid including at ELEX's option the
rent for the entire unexpired balance of the term of this Lease and all other
charges, payments, costs and expenses reserved as rent or additional rent,
together with interest thereon, costs of suit and an attorney's commission for
collection of five (5%) percent of the total of the foregoing sums; but in any
event said attorney's commission shall be not less than One Thousand Dollars
($1,000.00); and for so doing, this Lease or a copy hereof by affidavit, shall
be a sufficient warrant; and the said judgment from and after entry thereof,
shall bear interest at the highest rate of interest a judgment may bear under
the laws of the State of New Jersey.
Lessee hereby waves the benefit of any laws which might now or hereafter
authorize the stay of any execution to be issued on any judgment recovered on
this Lease or the exemption of any property from levy or sale thereunder.
Lessee also waives and releases ELEX or any assignee of ELEX and said attorney,
from all errors, defects and imperfections whatsoever of a procedural nature in
the entering of any judgment or any process or proceedings relating thereto.
1
7. WARRANTIES AND REPRESENTATIONS: LESSEE DOES HEREBY AGREE THAT EACH UNIT
IS OF A SIZE, DESIGN, CAPACITY AND MATERIAL SELECTED BY LESSEE, AND THAT LESSEE
IS SATISFIED THAT EACH SUCH UNIT IS SUITABLE FOR LESSEES PURPOSES, AND
SUFFICIENTLY DURABLE UNDER THE CONDITIONS OF USAGE THEREOF BY LESSEE, AND THAT
ELEX MAKES NO REPRESENTATION OR WARRANTY WITH RESPECT TO THE SUITABILITY,
DURABILITY, MERCHANTABILITY OR FITNESS FOR ANY PURPOSE OF ANY UNIT OR ANY OTHER
REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT THERETO.
8. Special Provisions: The following special provisions shall be
incorporated herein by reference:
Special Provision For Option To Purchase
Special Provision For Option To Renew
Special Provision For Option To Early Terminate
Special Provision For Terminal Rental Adjustment
This is Counterpart No. 2 of 3 signed counterparts. A security interest in
this Lease may be created only by possession of Counterpart No. 1.
9. By the execution hereof, there are incorporated and made a part hereof for
all purposes, as though set forth herein at length, each and all of the terms,
conditions and provisions of Paragraphs 2 through 5 of the Agreement For
Leasing dated - September 24, 1998 between Lessee and THE ELEX GROUP, INC. a
copy of which is attached hereto. Unless specifically defined in this Lease
the defined terms used herein shall have the same meaning as set forth in the
Agreement For Leasing.
10. UPON ACCEPTANCE OF THE EQUIPMENT, THIS LEASE SHALL CONSTITUTE A
NONCANCELABLE NET LEASE COVERING THE EQUIPMENT. LESSEE'S OBLIGATIONS TO PAY ALL
RENT AND OTHER AMOUNTS WHEN DUE AND TO PERFORM AS REQUIRED UNDER THIS LEASE ARE
UNCONDITIONAL AND IRREVOCABLE. SUCH OBLIGATIONS ARE NOT SUBJECT TO
CANCELLATION, MODIFICATION, REPUDIATION, REVOCATION OR EXCUSE. LESSEE SHALL NOT
BE ENTITLED TO ANY ABATEMENT, REDUCTION, OFFSET OR COUNTERCLAIM WITH RESPECT TO
THESE OBLIGATIONS FOR ANY REASON WHATSOEVER, WHETHER ARISING OUT OF CLAIMS
AGAINST ELEX, THE MANUFACTURER OR SUPPLIER, DEFECT IN, LACK OF FITNESS FOR USE
OF, LOSS OF POSSESSION OR USE OF OR DAMAGE OR DESTRUCTION OF TIRE EQUIPMENT,
ANY PROHIBITION AGAINST USE OR OTHERWISE.
11. Lessee warrants and agrees that it has not and will not use or operate
any Unit(s) of Equipment prior to the Date of Acceptance of the Unit(s) under
Lease. In order to assure ELEX of the tax benefits available to an owner of
Equipment with whom the first use begins the parties incorporate herein the
provisions of "Schedule C" attached hereto.
This Lease shall inure to the benefit of and shall be binding upon ELEX and
Lessee, their assigns and successors.
12.. IN WITNESS WHEREOF, the parties hereto have hereunto caused this Lease to
be duly executed as of the 25th day
of June 1999
ICT GROUP, INC. THE ELEX GROUP, INC.
(Lessee) (ELEX)
By____/s/ V A Paccapaniccia_________ By /s/ JoDee B Pettine
Title Sr. VP Finance & CFO Title President
(SEAL)
Attest s/s David J McHugh,_____
VP Corporate Controller
Signed in my presence in the State of New Jersey
s/s Loretta J. Bozoski 6-25-99
LORETTA J. BOZOSKI
A Notary Public of New Jersey
My Commission Expires Jan, 7, 2000
Signed in my presence in the Commonwealth of Pennsylvania
s/s Diane Haeselin_____
Notary
Notarial Seal
Diane Haeselin, Notary Public
Middletown Twp., Bucks County
MY Commission Expires May 12, 2001
Member, Pennsylvania Association of Notaries
SCHEDULE A
Page 1 of 1 Page
DESCRIPTION OF EQUIPMENT
Manufacturer Aspect Telecommunications Corp., GTE, Abell's Floor Covering,
Inc., Florida Electric Works, Inc., Stebilla Drywall Services, Inc., MN Mills &
Nebraska, John Stoudenmire Car-ter Architect, P.A, DeLand Metal Craft Co.,
Hardy Construction, Inc., Quality Precast & Co., A&S Tile Outlet, Inc., Colson
Corporation Inc.
Location: 1398 South Woodland Boulevard, DeLand, FL 32720
QTY. MODEL# DESCRIPTION SERIAL NUMBER
VARIOUS FURNITURE AND FIXTURES AND TELECOMMUNICATIONS EQUIPMENT
SCHEDULE B
CASUALTY LOSS AND TERMINATION
VALUE SCHEDULE
Casualty Loss Occurring
or Notification of
Termination Given After Casualty Termination
Rental Payment Number Loss Values* Values*
0 115
12 97
24 76 69.56
36 55 48.60
48 28 26.11
51 12 12.00
*Values are given as a percentage of original cost.
LBIOT54 Lease Number 990729
SCHEDULE C
Indemnity for Loss of Depreciation
If ELEX shall not be entitled to a deduction with respect to ELEX's
fill cost of any Unit of Equipment listed in Schedule A of this Lease based
upon The Accelerated Cost Recovery System provided by Section 168 of the
Internal Revenue Code of 1986, as amended, in the amounts specified in Section
168.(b) ~1) thereof for Recovery Property defined therein as having a class
life of 5-Year Property ("Deduction") then Lessee shall pay to ELEX within 30
days of ELEX's demand, as additional rent hereunder, an amount which, after
deduction of all taxes required to be paid by ELEX in respect of the receipt
thereof shall be equal to the sum of (x) an amount equal to the additional
taxes paid or payable by ELEX in consequence of the failure to obtain the
benefitof such Deduction and (z) any interest or penalty which may be assessed
against ELEX in connection with such inability to obtain the benefit of such
Deduction, all of which amounts shall be payable on written demand made at any
time after payment of the additional income tax. Notwithstanding the indemnity
given by Lessee hereby, it is understood and agreed that ELEX shall have full
control over the filing of its tax returns and any and all negotiations with
tax authorities with respect thereto; and shall be the sole judge of the terms
upon which it is appropriate to settle any controversy with the taxing
authorities with respect thereto. Without limiting the generality of the
preceding sentence, in the event of any such controversy, ELEX shall, to the
extent practicable, notify Lessee of and consult with Lessee in connection
with, any negotiations with tax authorities relative to such controversy. The
term, "tax return" as used herein shall include any tax return filed separately
by ELEX or any consolidated return in the filing of which ELEX may join with
an affiliated corporation.
Special Provision For Option To Purchase
In the event that the Lease has not been earlier terminated and that no default
has occurred Lessee may, by written notice delivered to ELEX at least one
hundred eighty (180) days prior to the expiration date of the term or any
previously extended term (the "Expiration Date"), elect to purchase the
Equipment then subject to the Lease for a purchase price equal to the "Fair
Market Value-thereof as of the end of such term, such purchase to be on an
as-is, where-is basis, without representation or warranty, expressed or
implied, of any kind whatsoever by ELEX As used in this Section, T-air Market
Value" shall be determined by ELEX and Lessee on the basis of what would be
obtained in an arm's length transaction between an informed and willing buyer
(other than a buyer currently in possession or a used equipment dealer) and an
informed seller under no compulsion to sell, and in determining such amount (i)
the cost of removal from the location of cur-rent use shall not be a deduction
from such amount and (h) it shall be assumed that each Unit is in the condition
required by the Lease. If on or before sixty (60) days prior to the Expiration
Date = and Lessee are unable to agree upon "Fair Market Value, such Fair Market
Value shall be determined by an independent appraiser mutually agreed upon by
M and Lessee within (10) days after selection, or failing such agreement, by a
panel ofthree independent, qualified appraisers, one of whom shall be selected
by El EX the second by Lessee and third appointed by the first two selected all
within the ten (10) days. The appraiser or panel of appraisers, as the case may
be, shall make its determination within a period of thirty (30) days following
appointment. The determination so made shall be conclusively binding upon both
ELEX and Lessee. The expenses and fees of all appraisers shall be borne by
Lessee.
Special Provision For Option To Renew
(1) Renewal Option. In the event that the Lease has not been earlier
terminated and that no default has ccurred and is continuing. Lessee shall
have the option to extend the term of this Lease or prior extensions thereof
with respect to the Equipment for a period specified by Lessee but in any event
each extension shall be for not less than six (6) months in duration
("Additional Term") commencing the expiration date of the term or any
previously extended -term (the 'Expiration Date"), if notice of the exercise of
such option is given by Lessee in writing to ELEX at least one hundred eighty
(180) days prior to the Expiration Date of its intention to extend the term of
this Lease for the Additional Term.
(2) Rentals During Additional Term The rental to be paid during all such
extensions shall be an amount equal to "Fair Market Rental" of the commencement
of the Additional Term, payable in advance in equal and consecutive monthly
installments on each monthly anniversary of the Expiration Date commencing with
the Expiration Date. As used in this section, the term "Fair Market Rental"
shall mean an amount equal to the aggregate net rental which would be obtained
in an arm's length transaction between an informed and willing lessee (other
than a lessee in possession or a used equipment dealer) and an informed and
willing lessor under no compulsion to lease, and in determining such amount (i)
the cost of removal from the location of current use shall not be a deduction
from such amount and (ii) it shall be assumed that at the time of the
commencement of such Additional Term, each Unit is in the condition required
by the Lease. If on or before sixty (60) days prior to the Expiration Date,
ELEX and Lessee are unable to agree upon a determination of air Market Rental,
such Fair Market Rental shall be determined by an independent appraiser
mutually agreed upon by ELEX and Lessee within ten (10) days after selection,
or failing such agreement, by a panel of three independent, qualified
appraisers one of whom shall be selected by ELEX the second by Lessee and the
third appointed by the first two selected all within the ten (10) days. The
appraiser or panel of appraiser, as the case may be, shall make its
determination within a period of thirty (30) days following appointment. The
determination so made shall be conclusively binding upon both ELEX and Lessee.
The expenses and fees of all appraisers shall be born by Lessee.
Special Provision For Early Termination
(1) If during the Initial term all or part of the Equipment becomes
obsolete or surplus to Lessee's requirements, and provided no default has
occurred, Lessee may at any time after the thirty sixth (36th) month, upon not
less than ninety (90) days prior written notice to ELEX, terminate the Lease
with respect to such Equipment, or any Unit(s) thereof, (Terminated Unit(s)"),
as of any succeeding rental payment date specified in said notice ("Termination
Date").
(2) On the Termination Date the Lessee shall return the Terminated Unit(s)
to ELEX pursuant to the provisions of sub-paragraph 2(h) of the Agreement For
Leasing
(3) Following the giving of written notice to terminate the Lease as to any
Unit(s), ELEX and Lessee shall endeavor to obtain bids for the purchase or
lease of the Terminated Unit(s) on an as-is, where-is basis and without
representations or wan-antics, expressed or implied, of any kind whatsoever.
(4) Upon the Termination Date, Lessee shall pay ELEX the regular monthly
installment of rent, without any abatement as described in paragraph ten (10)
hereof, plus the net Termination Value, which shall be deemed to be the amount,
if any, by which the Termination Value, defined in paragraph seven (7) hereof,
exceeds the net amount received by ELEX for the Terminated Unit(s).
(5) If by the Termination Date a satisfactory bidder(s) has not been
obtained for the sale or lease of all of the Terminated Unit(s), ELEX shall
within ninety (90) days after the return of the remaining Unit(s) to ELEX sell
or lease the Unit(s) for the highest offer then available.
(6) Lessee shall be refunded an amount equal to the proceeds of the sale or
the present value of the lease, as defined in paragraph eight (8) hereof, less
the actual expenses incurred by ELEX in making the sale(s) or lease(s),
including, without limitation, storage, insurance, advertising, sales taxes and
attorneys' fees for the Terminated Unit(s) and, but in no event shall the
refund be in excess of the net Termination Value previously paid by Lessee to
ELEX
(7) The Termination Value shall be computed by multiplying ELEX's original
cost for the Terminated Unit(s) as shown on Schedule A of the Lease, by the
applicable termination percentage shown on Schedule B of the Lease
("Termination Value").
(8) The present value of a lease shall be deemed to be equal to the
aggregate net rentals of such lease discounted at a rate equal to three
percent (3%) over the average then current prime interest rate or equivalent
thereof charged by the three largest New York commercial banks on the
Termination Date.
(9) In the event that no bidder has been obtained for the sale or lease of
all of the Terminated Unit(s) within ninety (90) days after the Termination
Date, ELEX shall transfer ownership of the Unit(s) to Lessee.
(10) In the event of termination of the Lease as to any Unit(s), the amount
of each remaining installment of rent as provided in the Lease shall be
reduced and abated by the same percentage as ELEX s original cost of such
Terminated Unit(s) bears to the total original cost of all Unit(s) as shown in
Schedule A of the Lease.
SPECIAL PROVISION FOR TERMINAL RENTAL ADJUSTMENT
(1) Since the rental payments due under the Lease are based upon the
anticipated residual value of the Equipment being equal to or greater than
10% of the original cost, as shown on Schedule A of the Lease,("Residual
Value"), it is agreed that notwithstanding anything to the contrary contained
herein Lessee shall pay to ELEX prior to the termination of the term of the
Lease ("Termination Date") as "Additional Rent" the amount, if any, by which
the Termination Value, as specified on Schedule B of the Lease, exceeds the
net proceeds received as of the date thereof from the sale of the Equipment.
(2) Following the giving of written notice to terminate the Lease, ELEX and
Lessee shall endeavor to obtain bids for the purchase of the Units of Equipment
on an as-is, where-is basis and without representations or warranties, express
or implied, of any kind whatsoever. Within ninety (90) days after the
Termination Date, ELEX shall sell said Unit(s) for the highest offer then
available. Upon such sale, Lessee shall be refunded an amount equal to the
proceeds of the sale less the actual expense incurred by ELEX in making the
sale, including, without limitation, storage, insurance, advertising, sales
taxes and attorneys' fees, but in no event shall the refund be in excess of the
Additional Rent previously paid.
(3) In the event that no bidder has been obtained for the sale of all of the
Units of Equipment within ninety (90) days after the Termination Date, ELEX
may at its option transfer title to Lessee for those Units of Equipment which
have not been sold.
AGREEMENT FOR THE PURCHASE OF EQUIPMENT UNDER LEASE
By and between The ELEX Group, Inc., a New Jersey corporation whose address is
P.O. Box 14, Medford, New Jersey 08055 ("ELEX"), and ICT GROUP, INC., a
Pennsylvania corporation whose address is 800 Town Center Drive, Langhorne, PA
19047 ("Lessee").
WITNESSETH:
WHEREAS, ELEX and Lessee have entered into a lease covering the equipment set
forth on Schedule A attached hereto and made a part hereof ("Equipment") dated
June 1999 - #990729 ("Lease"); and
WHEREAS, the parties now wish to modify some of the terms and conditions of
the Lease;
NOW, THEREFORE, in consideration of the mutual promises set forth hereinafter
and in the Lease and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, it is hereby agreed as follows:
1) In the event that the Lease has not been earlier terminated and that no
continuing default is then occurring, either party may, by giving writ ten
notice to the other party at least one hundred eighty (180) days prior to the
expiration date of the term of the Lease ("Expiration Date"), elect to have the
equipment then subject to the Lease purchased by the Lessee on the Expiration
date for a purchase price equal to ten percent (10%) of the original cost of
the Equipment, such purchase to be on an as-is, where-is basis, without
representation or warranty, expressed or implied, of any kind whatsoever by
ELEX
2) In the event of a conflict between the provisions of the aforesaid Lease
and this Agreement, the provisions of this Agreement shall govern.
In witness whereof, the parties hereto have caused this Agreement For The
Purchase Of Equipment
Under Lease to be duly executed this 25th day of June 1999.
ICT GROUP, INC. THE ELEX GROUP, INC.
By: /s/ V.A. Paccipanaccia By: JoDee B.Pettine
Title: Sr. VP Finance and CFO Title: President
SCHEDULE A
Page 1 of 1 Pages
DESCRIPTION OF EQUIPMENT
Manufacturer. Aspect Telecommunications Corp., GTE, Abell's Floor Covering,
Inc., Florida Electric Works,Inc., Stebilla Drywall Services, Inc., MN Mills &
Nebraska, John Stoudenmire Carter Architect, P.A., DeLand Metal Craft Co.,
Hardy Construction, Inc., Quality Precast & Co., A&S Tile Outlet, Inc.,
Colson Corporation Inc.
Location: 1398 South Woodland Boulevard, DeLand, FL 32720
QTY. MODEL# DESCRIPTION SERIAL NUMBER
VARIOUS FURNITURE AND FIXTURES AND TELECOMMUNICATIONS EQUIPMENT
LESSEE'S CONSENT AND AGREEMENT
The undersigned ("Lessee") acknowledges receipt of notice that ELEX will
execute a Collateral Assignment(s), relating to the Lease of ven date herewith
("Lease"), and for good and valuable consideration, receipt whereof is hereby
acknowledged, Lessee hereby consents to the execution and delivery of said
Collateral Assignment(s) and to all the terms and provisions thereof and
agrees that upon notice to the Lessee of such Collateral Assignment(s):
(a) The Lessee will pay directly to the last Assignee or to whomsoever such
Assignee shall direct (i) all rent and other moneys due and to become due from
the Lessee as set forth in the Lease, (ii) all amounts payable by reason of
acceleration of the liability of the Lessee for such rent or other moneys and
(iii) all other
amounts at any time owing under the Lease by the Lessee.
(b) The Lessee will not assert against such last Assignee, or against
whomsoever such Assignee shall have directed payment to be made, any defense,
setoff or counterclaim (including recoupment against, or other diminution of,
amounts payable by the Lessee to such Assignee) which it may have against ELEX
or anyone, whether arising under the Lease, hereunder or otherwise. Lessee
acknowledges that any assignment or transfer by ELEX shall not materially
change Lessee's duties or obligations under the Lease.
(c) The Lessee will not modify or consent to any modification of the terms
of the Lease without the written consent of ELEX and such last Assignee.
(d) All obligations and warranties of ELEX contained in the Lease shall be
and remain enforceable by the Lessee against and only against ELEX and its
successors and assigns and not against the Collateral Assignee.
(e) Any assignment executed and delivered pursuant to the right reserved
to ELEX and its assignees in Paragraph 2(k) of the Agreement for Leasing shall
be deemed to be included within this Consent and Agreement.
Dated: June 25 1999 ICT GROUP, INC.
BY /s/ VA Paccapnaccia
Title Sr. VP Finance and CFO
SEAL
Attest David F. Mc Hugh Coporate Controller
EXHIBIT I
CERTIFICATE OF ACCEPTANCE
THE ELEX GROUP, INC. ('ELEX")
I, a duly appointed inspector and authorized representative of ICT GROUP, INC.,
a Pennsylvania corporation whose address is 800 Town Center Drive, Langhorne, PA
19047 ("Lessee"), do hereby certify in accordance with the Lease dated June 25,
1999 between
Lessee and ELEX that i) I do accept the Unit(s) of Equipment listed in the
Schedule A attached hereto and made a part hereof which has (have) a purchase
price of $435,320, (ii) the Date of Acceptance is as set forth below and (iii)
the Unit(s) has (have) been delivered and installed at:
1398 South Woodland Boulevard, DeLand, FL 32720
The execution of this Certificate of Acceptance will in no way relieve or
decrease the responsibility of any manufacturer of any Unit(s) of Equipment
for any warranties it has made with respect to any Unit(s) of Equipment.
ICT GROUP INC.
BY /s/ VA Paccapanaccia
(Person authorized to sign)
TITLE Sr VP Finance amd CFO
DATE June 25, 1999
Signed in my presence in the Commonwealth of Pennsylvania
Notary Notarial Seal
Diane Haeselin, Notary Public
Middletown Twp., Bucks County
My Commission Expires May 12, 2001
Member Pennsylvania Association of Notaries
Signed in my presence in the State of New Jersey
Lorretta J. BOZOSKI 6\25\99
Lorretta J. BOZOSKI
A Notary Public of New Jersey
ELEX hereby accepts Lessee's Certificate of Acceptance and grants Lessee the
right to use the Equipment. My Commission
Expires Jan. 7, 2000
THE ELEX GROUP,INC
By: JoDee B. Pettine
TITLE: President
EQUIPMENT LEASE
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption is dated September 30, 1999 by and between ICT
Group, Inc., A Pennsylvania Corporation ("Assignor") and Cellular Express, Inc.
d/b/a Boston Communications Group, a Massachusetts corporation ("Assignee").
WHEREAS, Assignor leases certain equipment located at 1398 South Woodland Blvd,
DeLand L, 32720 (the "Premises") pursuant to that certain equipment lease
agreements dated as of September 24, 1998 (#980715), March 29, 1999 (#990727),
and June 25, 1999 (#990729) (the "Leases") between Assignor as lessee and The
ELEX Group, Inc. ("Lessor"); and
WHEREAS, Assignor proposes to transfer to Assignee the operations relating to
the business conducted at the Premises (the "Transaction").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
1. Assignor hereby assigns and sets over to Assignee all of Assignor's rights,
title and interest in, under and to the Leases .
2. Assignee hereby agrees to accept and undertake to discharge each and
everyone of the obligations of Assignor under the Leases arising solely from
and after September 30, 1999.
3. This Assignment and Assumption Agreement shall become effective upon the
consummation of the Transaction, the signing hereof by both Assignor and
Assignee and the execution by the Landlord of the consent hereto in the form
set forth below.
4. Assignor hereby warrants and represents:
f. That the Leases is in full force and effect and is a valid legally binding
obligations of the parties thereto.
g. That Assignor is not in breach of any of the terms and conditions of said
Leases and is current in the payment of all rent, additional rent, utilities
and other payments due under the terms of said Leases .
h. That Assignor has not assigned any of its rights under the Leases to any
third party.
i. That Assignor has full corporate power and authority to enter into this
Assignment and to carry out its obligations hereunder, that the execution
and delivery hereof have been duly authorized by the Board of Directors
of Assignor and no other corporate proceedings on the part of Assignor are
necessary to authorize this Assignment, and that the Assignment
constitutes the valid and binding obligations of Assignor.
j. That the execution, delivery and performance of this Agreement by
Assignor do not require the consent, waiver, approval, or authorization of
any person or authority (other than the lessor of the Leases ) and will not
violate, result in a breach of or the acceleration of any obligation under or
constitute a default under, any provision of any charter, by-law, indenture,
mortgage, lien, Leases , agreement, contract, instrument, order, judgment,
decree, ordinance, or regulations or any restriction to which any property
of Assignor is subject or by which Assignor is bound or affected.
5. Assignor hereby warrants and represents:
a. That all equipment assigned hereunder is in good working order and that
all documentation relating to such equipment will be provided to Assignee
upon execution of this Agreement.
b. That all equipment assigned hereunder is year 2000 compliant, in that it
will record, store, process and present calendar dates falling on or after
January 1, 2000 with similar functionality and performance, as such
equipment on or before December 31, 1999. Such equipment shall ensure
year 2000 compatibility and shall include, but not be limited to, date data,
century recognition, calculations that accommodate same century and
multi-century formulas and date values, and data interface values that
reflect the century.
6. This Assignment and Assumption Agreement is subject to and conditioned upon
the consent of the lessor of said Leases to said Assignment in the form
provided below.
7. This Agreement shall be binding upon the successors and assigns of the
parties. The parties shall execute and deliver such further or additional
documents as may be necessary to evidence or carry out the provisions of this
Agreement.
8. This Assignment and Assumption Agreement may be executed in counterparts,
each of which shall be an original and all of which together shall constitute
one instrument.
9. This Assignment and Assumption Agreement shall be governed by and construed
in accordance with the internal laws of the Commonwealth of Pennsylvania,
without regard to its conflict of laws provisions.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their officers thereunto duly authorized as of the date first above written.
ICT GROUP, INC. CELLULAR EXPRESS, INC.
d/b/a BOSTON COMMUNICATION
GROUP
By: /s/ VA Paccapaniccia By: /s/ Karen A. Walker
Name: VA Paccapaniccia Name: Karen A. Walker
Title: Sr. VP Finance and CFO Title: CFO
Lessor hereby consents to the foregoing Assignment and Assumption Agreement,
agrees that the Lease shall remain in full force and effect with Assignee as
the lessee, and agrees that Assignor is hereby released and forever discharged
from any and all obligations and liabilities arising under the Lease.
The ELEX Group, Inc.
By: /s/ JoDee B. Pettine
Name: JoDee B. Pettine
Title: President
REAL ESTATE LEASE
ASSIGNMENT AND ASSUMPTION AGREEMENT
This Assignment and Assumption is dated September 30, 1999 by and between ICT
Group, Inc., A Pennsylvania Corporation ("Assignor") and Cellular Express, Inc.
d/b/a Boston Communications Group, a Massachusetts corporation ("Assignee").
WHEREAS, Assignor leases certain equipment located at 1398 South Woodland Blvd,
DeLand L, 32720 (the "Premises") pursuant to that certain equipment lease
agreements dated as of September 24, 1998 (the "Lease") between Assignor as
lessee and The ELEX Group, Inc. ("Lessor"); and
WHEREAS, Assignor proposes to transfer to Assignee the operations relating to
the business conducted at the Premises (the "Transaction").
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, and intending to be legally bound
hereby, the parties hereto agree as follows:
4. Assignor hereby assigns and sets over to Assignee all of Assignor's rights,
title and interest in, under and to the Lease.
5. Assignee hereby agrees to accept and undertake to discharge each and
everyone of the obligations of Assignor under the Lease arising solely from and
after September 30, 1999.
6. This Assignment and Assumption Agreement shall become effective upon the
consummation of the Transaction, the signing hereof by both Assignor and
Assignee and the execution by the Landlord of the consent hereto in the form
set forth below.
10. Assignor hereby warrants and represents for each Lease to be assigned
thereunder:
k. That the Lease is in full force and effect and is a valid legally binding
obligations of the parties thereto.
l. That Assignor is not in breach of any of the terms and conditions of said
Lease and is current in the payment of all rent, additional rent, utilities
and other payments due under the terms of said Lease.
m. That Assignor has not assigned any of its rights under the Lease to any
third party [except for that certain Collateral Assignment dated
which shall be discharged prior to the execution of this Assignment
and Assumption Agreement.]
n. That Assignor has full corporate power and authority to enter into this
Assignment and to carry out its obligations hereunder, that the execution
and delivery hereof have been duly authorized by the Board of Directors
of Assignor and no other corporate proceedings on the part of Assignor are
necessary to authorize this Assignment, and that the Assignment
constitutes the valid and binding obligations of Assignor.
o. That the execution, delivery and performance of this Agreement by
Assignor do not require the consent, waiver, approval, or authorization of
any person or authority (other than the lessor of the Lease) and will not
violate, result in a breach of or the acceleration of any obligation under or
constitute a default under, any provision of any charter, by-law, indenture,
mortgage, lien, lease, agreement, contract, instrument, order, judgment,
decree, ordinance, or regulations or any restriction to which any property
of Assignor is subject or by which Assignor is bound or affected.
11. This Assignment and Assumption Agreement is subject to and conditioned upon
the consent of the lessor of said Lease to said Assignment in the form provided
below.
12. This Agreement shall be binding upon the successors and assigns of the
parties. The parties shall execute and deliver such further or additional
documents as may be necessary to evidence or carry out the provisions of this
Agreement.
13. This Assignment and Assumption Agreement may be executed in counterparts,
each of which shall be an original and all of which together shall constitute
one instrument.
14. This Assignment and Assumption Agreement shall be governed by and construed
in accordance with the internal laws of the Commonwealth of Pennsylvania,
without regard to its conflict of laws provisions.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their officers thereunto duly authorized as of the date first above written.
ICT GROUP, INC. CELLULAR EXPRESS, INC.
d/b/a BOSTON COMMUNICATION
GROUP
By: /s/ VA Paccapaniccia By: /s/ Karen A. Walker
Name: VA Paccapaniccia Name: Karen A. Walker
Title: Sr. VP Finance and CFO Title: CFO
Lessor hereby consents to the foregoing Assignment and Assumption Agreement,
agrees that the Lease shall remain in full force and effect with Assignee as
the lessee, and agrees that Assignor is hereby released and forever discharged
from any and all obligations and liabilities arising under the Lease.
The ELEX Group, Inc.
By: /s/ JoDee B. Pettine
Name: JoDee B. Pettine
Title: President